After examining the roles of the attorney and the expert witness, how do the professional cultures collide? Where does misconduct occur and how? Misconduct comes in the form of fraud, false promises, or threats. Many ethical dilemmas are a direct result of the conflicting obligations inherent in practicing law. Other types of misconduct include ignoring, misrepresenting, or misusing scientific evidence or expert testimony. Forensic evidence is misused when biased experts are hired, test results are suppressed, or expert findings are overstated. If these facts regarding misconduct are known, why is no one working to change such a negative perspective? Frankly, misbehavior happens both because it works and because people benefit from it. When lawyers have a strong opening statement, raise arguments with the opponent’s case, or have evidence stricken, the person’s confidence and performance level increases. Typically, the prosecutor is seen as the good guy, and this adds to the attorney’s feeling of empowerment. History shows through examples such as the O. J. Simpson trial that the stronger the case, the more the lawyer is able to get away with in the courtroom, no matter which side they represent. In this case, the defense had the upper hand and used that sense of power to make big moves such as having O. J. Simpson try on the infamous glove in front of the jury. Additionally, it is commonly thought that lawyers are not personally liable for misconduct because it is the nature of the beast meaning that their primary goal is to win the case for their client.
Experts may face a number of problems after agreeing to testify, including the following:
- • Resisting attorneys who want testimony that supports their client’s position
- • Evaluations that prove disadvantageous to the side that has retained them
- • Being approached for a combination of advice, evaluations, and expert testimony (i.e., private experts)
- • Attorneys who waste time
- • Experiencing inconvenience or pressure by attorneys, agencies involved, the clients or their family, the court schedule, travel, or accommodations
- • Having opinions distorted and their reputation impugned
- • Having testimony countered by an expert who is not on their level of expertise but is still viewed by the court as an expert (e.g., federal agents, police officers)
- • Unethical to make negative comments about them
- • Many scientists will refuse to testify in this situation (Hollien, 1990a)
Conflicts of interest are behaviors or actions involving personal gain or financial interest and represent a common purpose for misconduct (Macrina, 2000). Such conflicts undermine or impair a person’s ability to make reliable and objective decisions. For example, an expert may have prior knowledge of the case or an association with people involved, the outcome may directly impact the expert financially, or the relationship with another expert may impact the case. No conflict-of-interest or perceived conflict should exist between the expert and the retaining attorney because this could possibly compromise objectivity and honesty while undermining the expert’s credibility. Conflicts (or potential conflicts) need to be disclosed to all relevant parties before expert testimony is given. There is no standard rule as to what creates a conflict; however, when someone stands to gain something personally or professionally, conflicts must be considered. Limits have been established in laws, guidelines, and regulations that define the level of financial interest that creates conflicts of interest; however, there is little recognition of the damage done to the public well-being caused by conflicts of interest. For instance, there is greater harm done when conflicts of interest influence evidence directly (in the collection, processing, or analysis) rather than the conflict that arises when laboratories purchase instrumentation from a specific vendor, without consideration of other factors or competitors. Actions viewed as conflicts of interest vary by federal and state statutes, case laws, contracts, professional standards, and agreements between parties. Although many codes prohibit activities that create an appearance of conflicts, there is no general agreement about the circumstances that create a true scientific conflict-of-interest. Apparent conflicts should be monitored closely because they can become a real conflict if the person’s interests change. Conflicts of interest in science are especially disturbing because they have the potential to compromise objectivity of scientific judgment. Conflicts specific to forensic science include, but are not limited to, the pressure to get/keep funding, the potential to face issues one has strong feelings for/against, the pressure of backlogs, the lack of economic reward, the lack of resources, and the privileged access to evidence such as money and drugs. Conflicts of interest may cause oversensitivity, may result in the questioning of a person or agency’s decision-making, objectivity, and credibility. It is important to avoid all potential types of conflict to assure the utmost credibility for the scientist, the work, and the profession.
Another area of potential misconduct concerns the experts’ reports. Attorneys may request that experts not write reports because they know the information is discoverable and do not want to risk potentially helping the opposing attorney if the experts’ results support the opposing case. If an expert is asked to change words in a report for purposes of clarifying technical information, he or she should assure that it does not alter the content. If the expert finds errors in a report, he or she should add an amended page, cross out the incorrect portion, or produce a corrected version while maintaining the original in the case file. An expert must exhibit caution when attorneys request him or her to alter reports such as omitting details or simply revising points. Either way, such a request creates the impression of advocacy on the part of the expert, which could lead the triers of fact to deem him or her as untrustworthy.
Although the remaining areas of potential misconduct are infrequent, they do occur due to inappropriate motivation. The first example, intentionally erroneous expert testimony, may occur for the protection or benefit of friends that are in the role of attorney, plaintiff, or defendant. Additional motivations for inaccurate testimony include personal disputes with attorneys or opposing experts, incompetence, and outcome-based compensation. There is a difference between someone called to testify because he or she is reliable, honest, and professional versus the professional testifier or whore. The latter include people who are typically the yes-men and may be seduced into manipulating testimony. The professional testifier may also have a good deal of free time because he or she is retired or is a professional consultant; both cases might yield an income-driven motive for providing testimony. Model Rules of Professional Conduct (American Bar Association, 2002), Rule 3.4, states, in essence, that attorneys cannot obstruct access to evidence or alter, destroy, or conceal any materials having potential evidentiary value. If the attorney knows testimony is false, he or she must ethically refuse to offer such testimony in trial, but if he or she reasonably believes the testimony is false, then it must be offered. Defense attorneys must ethically question a prosecutor’s witness, challenge technicalities, and question physical evidence in an attempt to create reasonable doubt for the triers of fact. Standards and established limits should be determined in order to reduce the gray area and protect the professions. Misconduct is more likely to occur when diverse cultures coexist; it is important to have an awareness of common issues to prevent future incidents from occurring.