Attorney-Expert Relationship

The role of the attorney is quite different from the role of the forensic expert witness. Attorneys are advocates for their clients, whereas experts are educators for the judge and jury. As advocates, attorneys are often perceived negatively by the public, especially regarding their honesty. How then do the roles overlap? Attorneys are to ask questions, whereas experts are to answer questions. Forensic scientists have a duty to describe the evidence as it actually is, whereas attorneys have a duty to describe the evidence in the most favorable light for his or her client. Attorneys may attempt to discredit the expert, whereas experts are to remain calm, report findings, and provide opinions. Attorneys are supposed to support their client, whereas experts are to support the scientific information by providing it in an unbiased manner. It is the duty of the attorney to avoid weakening the expert’s objectivity, to respect the boundaries of each professional position, and to allow the expert sufficient time to review the case.

Ethically, attorneys should review potential questions with the expert before the trial or deposition, should not pick and choose which records or details to provide to the expert, and should defend the expert they have retained to the best of their ability. When selecting private scientific experts, attorneys should choose experts that are reputable, objective, and current in their field, who are willing to testify for either the prosecution or defense, and have opinions that are consistent with the relevant information. If a private expert feels that he or she cannot work within the attorney’s theory or position, he or she should completely remove himself or herself from the case. Expert witnesses and attorneys should prepare for court by discussing the evidence, with either a pretrial conference or a phone call. During this preparation, attorneys and experts review facts and prior statements, and discuss issues pertinent to the case. Attorneys should listen to experts’ suggestions regarding their expertise because the experts may have better ways to explain or present things. It is important that the expert fully understands the attorneys’ questions before answering and does not provide more information than the question warrants. If the attorney is familiar with the opposing counsel, he or she may prepare the expert to read the attorney and to discuss what that attorney typically focuses on, for example, if the attorney commonly attacks experts’ qualifications and/or the methods used. The relationship between the experts and the attorneys should remain open and available to either side. The best experts consider all facts and data; are able to logically counter points made by opposing experts if necessary; are able to recognize limitations of the science, of the evidence, and of their knowledge; and, most importantly, never compromise scientific objectivity.

Experts may face pressures uncommon to their daily lives but common to the judicial environment. It is important to note that adaptation to pressure does not equate yielding to it; experts must understand the pressures they may face in court, yet they do not need to compromise personal or scientific values to operate within those pressures. Modern judges, juries, and attorneys may distrust experts’ roles because in the past experts were part of the criminal justice system. Such experts may have exhibited bias or advocacy, wanted to please their employers, were not sure of their exact role, were not always honest, or may have had problems with confidentiality. In the late 1800s and the early 1900s, scientists became routinely employed as experts. This association gave experts the reputation of being advocates. Some common signs of advocacy include experts making statements that they cannot be wrong; experts who do not describe evaluation procedures or do not bring data, material, or the results of examinations to court; and experts who make personal attacks on opposing witnesses (Hollien, 1990a).

A consequence of commonly being called by one side (either the prosecution or defense) is the pressure caused to the experts by the attorneys, including the following:

  • • Preparation of reports containing minimal information
  • • Reporting findings without an interpretation
  • • Omission of a significant point from a report
  • • Failure to report or acknowledge any weakness
  • • Failure to differentiate between opinions based on experiment and opinions based on experience
  • • Expressing an opinion with greater certainty than the data justify (Lucas, 2007)

Pressures may lead to problems when the expert is invited to strategy sessions, asked to assist in the impeachment of experts testifying for the opposing side, or asked to sit with council and assist with cross-examination of opposing experts (Hollien, 1990a). In general, expert witnesses have a greater impact in court than other witnesses and definitely impress juries. The recent growth of forensic science and the acceptance by the legal system reflect society’s trust in science and technology. Society believes physical evidence and scientific testimony are more reliable than other forms of evidence (Peterson, 1988). The information regarding forensic science is compelling if it is presented correctly and accurately. Many people in the forensic community have stated that in their experience, juries want a TV-like trial where DNA and fingerprints are always available. One attorney has stated, “Many trials are a battle among experts” (Hollien, 1990a). Some judges feel that experts confuse the jury, especially if both sides have their own expert. Experts may offer testimony that is not the exact truth but has the best statistics. Such half-truths may be told for a variety of reasons, such as to receive a good evaluation, to receive funding, or to please the attorney. No matter the reason, the actions that result from common pressures are not appropriate and reflect badly on the scientific profession (Hollien, 1990a).

Ethical dilemmas will occur, but what steps could attorneys and expert witnesses take to eliminate, or at least lessen, issues? If forensic scientists or attorneys were required to reveal evidence developed in the investigative stage, the administration of justice may be enhanced. Since the court, prosecution, and the defense are calling experts, the technical quality and ethics of testimony need to increase. Experts have the right to limit themselves to consultant tasks to avoid ethical conflict, if they feel such action is necessary. Although the cultures of the judicial system and forensic science vary, these actions toward mutual cooperation may help to decrease the potential for ethical dilemmas for both professions.

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