There is an expectation that the forensic expert will be ethical in examining and evaluating evidence, reporting data, presenting opinions, and dealing with the relevant parties (lawyers, plaintiffs, defendants, judges, and juries). What is considered ethical behavior is a vague concept because there are no specific conduct rules for forensic scientists within the law. Most forensic scientists are not specifically trained in testimony or the rules of litigation, including the ethics of law. Training is needed to prepare scientists as expert witnesses. Necessary education is obtained by courses, seminars, workshops, and publications. In addition to training on the scientific perspective, an increase in publication by lawyers regarding how to deal with expert witnesses would be helpful. Lawyers could provide experts with insight into the judicial side of expert testimony by preparing the expert with information on specialized examinations, general advice, and courtroom briefings. Scientific professional organizations typically have codes of conduct for members that provide ethical standards for the expert witness. In addition, experts are regulated by state and federal rules, laws, and court decisions.
One area of concern, though typically more of an issue with private experts, is fees for service. Fees are allowable for expert witnesses as long as the details are decided on before the expert is retained for their services and openly communicated to the court. Experts should estimate the time needed for each case so lawyers have a clear idea of the total cost; if the case takes longer than expected and causes an increase in fees, experts should notify the lawyer of the new cost. Customary fees are decided by factors such as the field, the specialty area, and the expert’s experience and reputation. Courts have a right to lower the fee if not considered reasonable. When experts set high fees to discourage lawyers from retaining their service, it looks very bad for the experts when they are called to testify. It is considered unethical for forensic experts to pay for case referrals, although they may pay a service to list their contact information on a directory of experts. Advertising is not unethical but should occur in a professional manner as to not create problems if brought up in testimony (Model Rules of Professional Conduct, 2002). An example is a lawyer stating that an expert is in the business of testifying, which can tarnish the expert’s credibility.
Another area of ethical concern stems from contingency fees, which are outcome based. In such cases, opinions are more likely perceived as biased. To help guide the discussion of fees and eliminate potential misconduct, the National Forensic Center has a guide for expert witness fees. Although the law does not regulate expert conduct, there are some policies in place to encourage appropriate behavior. Though some experts feel their testimony is more valuable and has more weight than other evidence, experts are simply a means for a lawyer to facilitate the jury’s understanding. It is important to remember that law makes one an expert witness, but the person must also remain true to science. As Peter DeForest has stated at many professional conferences, “There is a need to recognize the difference between the ‘opinion of a scientist’ and a ‘scientific opinion’. The former may have no scientific basis and, if so, is out of place in any scientific report or testimony” (Bowen, 2006).
There is a focus on the problems associated with expert testimony. The first problem is the legacy imposed on an expert by his or her predecessors or the legacy of the agency in which the expert is employed. Professional organizations sustain a community of experts and must assure that their members behave responsibly to prevent issues. Next, the lack of specific forensic training for expert witnesses within their disciplines has brought about concern. This concern tends to include the variation of qualifications, certifications, and training among experts. In addition, there are great pressures on the experts from many sources, as we have discussed to this point. Finally, the conflicts of interest imposed by the judicial system pose problems for the scientific experts. The judicial system should take some actions to avoid suffering the consequences of calling an expert witness. Such actions include protecting experts from the effects of advocacy, developing validation procedures to evaluate testimony, and establishing criteria to consistently identify experts (Hollien, 1990a). Although potential problems surround the use of expert witnesses, they are minor in comparison with the value of having expert testimony. Identifying problems regarding expert testimony is the first step toward resolution.