Sunday, 11 October 2015

The Burden Of Forensic Experts In Legal Matters

Expertise and demonstrable knowledge in a particular field of study qualifies a person to become an expert witness and thereby able to give expert opinion in a court of law. 

Therefore, education and training in a particular area of specialization and acquisition of such knowledge above the average person guarantees someone to render his or her expert opinion in a court case as related to his or her field of expertise.

Thus, a forensic expert helps the court to understand the forensic evidence before it by explaining in clear and concise terms the scientific analysis and theory involved in arriving such a scientific evidence.

Given that most forensic experts are non-legal practitioners who are neither trained in court proceeding nor the technicalities involved such, it is expected that and even most certainly that faults and unintentional mistakes could be made.

Also, given the delicateness of the issues at stake and the gravity of the matter at hand in which neither the prosecution nor the defense would like to lose a case, all efforts would be made to by either side of the case to ensure they do not lose.

Hence, legal finesse will come to play as employed by the more desperate counsels.
Also, the court community will want the forensic expert to prove beyond all reasonable doubt the validity and accuracy of the forensic evidence being presented. Such expectations are understandable given the fact that most members of the legal profession are not conversant with the languages and terminologies attributed to only the scientific community.

These postulations and more bear a lot of weight and high expectation on and of the forensic expert whose main objective is to help the court understand the scientific evidence before it, presented objectively and without self interest. Thus the following challenges arise which the forensic expert would have to deal with if he or she is to be successful in achieving his or her objective.


IMPARTIALITY  AND LACK OF OBJECTIVITY IN RENDERING EXPERT REPORT AND OPINION.
OBJECTIVITY: A forensic expert is supposed to be objective in their analyses, reports and when giving expert opinion in court. He or she is supposed to be professional irrespective of who their client is.
Forensic experts have the sole responsibility to only analyze the scientific evidence before them. And they are not to allow personal relationship or the like interfere with their professional work and conduct when working on a case. There is always a tendency to not be objective when working for a client.

Empathy sometimes seems to get the better of forensic specialist. If called upon to defend their reports in court, it is expected of them to present objectively without trace of partiality but just as the scientific analysis is obtained. This is because any hint of such can be exploited by a brilliant counsel to discredit such evidence during cross examination.
Section 200 of the Nigerian Evidence Act states as follows; “Cross examination is (i) to test the accuracy, veracity or credibility of the witness…”

VALIDITY AND ACCURACY:
The scientific analyses carried out by the forensic expert is supposed to be valid and accurate. This is only achieved when all precautions and standard procedures are followed precisely without any chance of anomaly.

The report to be presented in court in defense of the evidence admitted will be probed and scrutinized at all points to ensure it is up to par.
Hence, due diligence should be adhered to on all equipment, reagents, methods, calibrations and procedures to ensure that anything that can damage the validity and accuracy of the forensic evidence is taken care of.

Thus, the evidence presented by either the prosecution or defense to help in their case is not thrown out based on faulty scientific analysis handled by the forensic expert.
Overall, the forensic expert is supposed to be an impartial participant in the court proceedings who should be prepared for his or her evidence and report to be rigorously tested  and possibly discredited.

INABILITY TO MEET CRITERIA FOR ADMISSIBILITY OF (FORENSIC) EVIDENCE IN COURT
For an evidence and in this case, a forensic evidence to be admissible in court, the terms of the court in evidence admissibility must be met else the evidence will not be admissible and the efforts put in by the forensic experts into producing such evidence will be wasted.

This challenge is must be overcome if the forensic expert wants to be successful. The rule for admissibility is used in this case by the court which the forensic expert is supposed to be conversant with in order to secure admissibility of forensic evidence in the court.

This requires patience and understanding by the forensic expert in explaining to the court legal principals the steps taken in producing the evidence based on the acceptable standards for admissibility of evidence.

FRYE TEST: The following are the criteria by the FRYE standard of admissibility which was accepted in 1923 in the US.
The scientific theory must be generally accepted by the scientific community.
The scientific  method has to be generally accepted by the scientific community.
The scientific technique must have been applied correctly.

DAUBERT’S CRITERIA: This was accepted by the supreme court in Illinoi US in 1993 on the Daubert and Dow Pharmaceutical case as a criteria for admissibility of scientific evidence.
Has the theory been tested?
Has the technique been tested?
Has the theory and technique been subjected to peer review and publications?
What are the known potential error rates when the theory or technique is applied?

Given the above criteria, a forensic expert must ensure that he or she understands the various terms of the criteria and rules for admissibility of evidence in a court of law and be ready to explain in clear and concise terms without condescending, the technical terms and processes used to arrive at the scientific evidence in question.

This is to ensure that admissibility of evidence is secured in court to allow jury and or judge make objective decisions based on the scientific  evidence and expert opinion given to explain the  to the facts and facts relevants to the facts in issue.

LACK OF CLARITY AND CONCISENESS IN REPORT AND EXPERT PRESENTATION  IN COURT
Normally, the court community is not conversant with the jargons of scientific technicalities and language. And it is expected of the forensic expert to help the court principals understand the scientific processes involved in the analysis.

This might take a lot of patience and effort that the forensic expert may not be willing to undergo but has to if he or she is wants to either secure admissibility of any evidence during pretrial sessions or defend the report of the evidence presented before the court.
This may proof difficult since a lawyer or judge has little or no background in science or related fields.

Therefore a forensic expert should bear in mind that he or she must be willing to have done their due diligence in order to have a report and presentation that is:
I. Concise and straight to the point.
ii. Clean
iii. Simple to understand and devoid of unnecessary ambiguities.

Lack of basic knowledge of standard court proceedings, and self composure
At first, forensic experts who are summoned to appear in court might be overwhelmed by the manner of court proceedings. You need to be in court for the first time to understand this)

Since the court environment is alien to them and with little or no knowledge of how a court works, the gravity and implications of saying or admitting to statements or words which might have bearings on the matter at hand in a legal environment but which can be ignored as trivial outside the legal community; the forensic expert is almost certain to commit unintentional blunders (pray you meet an understanding  opposing lawyer on your first day as expert witness)

It is important that  forensic experts be briefed on basic court proceedings as well as be encouraged to have high proficiency in legal technicalities to enable them adequately prepare for what is ahead and thus avoid commission of legal mistakes that may be detrimental to their objectives as expert witnesses.

More so, shrewd lawyers may want to take advantage of the ignorance of the expert witness to make them  commit these legal blunders with the sole aim of discrediting either the integrity of the forensic expert or the forensic evidence (really sorry!)

Therefore, forensic  experts must ;
I. Be of even temperament
ii. Exude Confidence when summoned in court.
iii. Memorize for facts without need for reference.
iv. Very knowledgeable in their subject area
v. Be willing to admit the truth when confronted.


It is therefore of noteworthy that given the challenges mentioned above to be faced by a forensic expert in court proceedings, they are not unsurmountable.

To overcome them and any other unforseen problem, a forensic expert only need to ensure that due diligence is given to all processes involved  to achieving his or her objective from the collection of sample forensic evidence at the crime scene, chain of custody, scientific analyses as well as objective report writing and  presentation of expert opinion in court.

Everything has to be done according to standard procedure and regulations to ensure that the guilty is convicted while the innocent is exonerated.