Forewarned is forearmed or, if Latin is your thing, “praemonitus, praemunitus”. So the saying goes and clearly there is great value in knowing what lies ahead for us. If we know what is coming our way we can, in theory, prepare properly for any challenge.
Challenges are nothing new to forensic scientists. Critics routinely point out issues they perceive with various forensic disciplines. Some of those criticisms are fair and reasonable, others are not. Much of the critical commentary affects a discipline as a whole demanding an overall, or group, response by members of each discipline. In my experience, disciplines are generally behind the curve in their responses to critics. Nonetheless, over time some issues have been addressed, at least partially if not completely, through empirical research. Others have not. To be fair, the activities needed to properly address the critics are not trivial and require both time and resources; scarce commodities in modern forensic labs. Overall, things are improving, albeit very slowly.
Criticism takes on a whole new meaning in the context of a court of law. Indeed, I think that criticism is the essence of cross-examination — a fundamental and important aspect of any adversarial justice system. Although essential, it is rarely an enjoyable part of the proceedings for any expert.
I find cross-examination to be the most interesting part of any witness’ time on the stand because they must answer whatever question is posed to them by ‘opposing’ (i.e., unfriendly) counsel. Criticism often begins very personal and has a practical tone since forensic examiners must answer serious questions about their own work. Truly the rubber meets the road during cross-examination.
Sometimes the witness can anticipate a line of questioning but, in general, it is rare that one knows what will come next. I don’t think that bothers any truly ‘expert’ witness. They are, after all, supposed to be knowledgeable about everything within the scope of their domain. In a way, it’s just part and parcel of being an expert. Still, it is nice to have some idea of what might be coming…
In that regard, an article published in the Australian Bar Review journal could be seen by forensic examiners as an early Christmas present. The paper is entitled “How to cross-examine forensic scientists: A guide for lawyers” written by an esteemed collection of academics including Professor Gary Edmond, Kristy Martire, and Richard Kemp, among several others.1
The article provides the reader with an excellent summary of various criticisms that can be raised in cross-examination of a (forensic) expert witness, with the focus in the article being “the identification (or comparison) sciences”; those pertaining to identity/origin/source of some sample or trace. While it provides little in the way of truly novel criticism, it does a great job outlining both general and specific issues presenting them in a very useful and practical way. The abstract reads:
This article is a resource for lawyers approaching the cross-examination of forensic scientists (and other expert witnesses). Through a series of examples, it provides information that will assist lawyers to explore the probative value of forensic science evidence, in particular forensic comparison evidence, on the voir dire and at trial. Questions covering a broad range of potential topics and issues, including relevance, the expression of results, codes of conduct, limitations and errors, are supplemented with detailed commentary and references to authoritative reports and research on the validity and reliability of forensic science techniques.
What better way to be forewarned than to read such recommendations and prepare a response to each and every one of them? In my opinion, every forensic examiner should be able to answer the questions posed in this article. Some are ‘easy ‘, others not so much.
Continue reading “Forewarned…”