Saturday, March 14, 2009

Expert Witness Bias

I was watching a popular real crime news-tabloid program the other night and there was a lot of discussion about expert witnesses. Especially experts that work for the defense.

Since digital forensics experts fall into that category just like DNA experts and fingerprint experts, I thought I would spend a few words on the subject and hopefully spark some conversation from my readers out there.

To begin with, I think that attempting to imply that an expert witness is biased is just a bit of drama, usually put on by prosecutors or by hot shot lawyers in the big money civil cases. The equivalent of a cheap shot to attempt to discredit the expert by insinuation.

Sadly, that drama can sometimes sway a jury into thinking that the expert has some underlying agenda outside of their stated purpose of representing the facts in the case, in a neutral manner.

The mere fact that you have two experts involved in a case that very likely will not agree on the interpretation of the facts, is not an indicator of bias. Quite the contrary, if you ask me. When two experts examine the same evidence and reach different conclusions, how would you be able to tell which one has the biased opinion in any case? Because they are getting paid to do the work? Court testimony is just part of the job, just like the underlying lab work that must be done to prepare to do that testimony.

One of the points brought up during the show was whether or not the expert exclusively worked for the defense. Of course, that same argument can be made on an even stronger level for prosecution experts who are employed full time to do nothing but work for the prosecution.

Actually, since the prosecution's expert's entire career is spent working for one side, the possibility of bias becomes greater than that for an expert who may work for an attorney once and never work for them again. Being part of the “team”, going after the bad guys and protecting the public can be a very strong influence on a person over time. Especially if getting branded as someone who is not a “team player” can jeopardize their career.

The other big point made is how much the defense expert is getting paid to testify. One of the guest commentators on the show said that experts get four hundred to eight hundred dollars an hour. Obviously, I don't charge enough.

The counter argument is that the prosecution expert is getting paid to testify as well. The retort to that was that the prosecution expert is only getting their government salary. Hello? Do they think we are all stupid?

Of course the prosecution expert is getting paid their salary. If you add in all the overhead required to keep that government expert on the payroll, equip and maintain the state lab, pay benefits, etc, the fully loaded hourly rate is probably pretty close to what most experts charge.

Since private experts don't have the benefit of being funded by the taxpayers, they have to pay everything that the government is paying on behalf of their expert and make a profit in order to stay in business. Oh yeah, and they are probably paying 50% in taxes on that profit if they are incorporated.

In reality, the net that the expert gets to keep is probably less that what the government expert is getting.
If the expert happens to be a medical doctor, four hundred dollars an hour is probably what he bills anyway doing his regular doctor job. How is any of that information relevant to the case? It isn't.

I think that the biggest mistake people make, is to think that experts are on the team to win the case. If an expert does have that attitude, then they should be booted off whatever team they are on and not allowed to testify at all. Experts are there to vet the facts and to keep the other side from mis-interpreting or mis-representing the evidence.

Of course, some attorneys will try to make the jury believe that the expert is there to help their side win. That tactic is used to attempt to instill doubt in the minds of the jury. It is a lot like those trick joke questions you ask people; “So, have you stopped beating your wife yet? Yes or no?”

Those little tricks really have no place in the courtroom, but they get used anyway. And that is sad, since people are playing with a person's life. It is not a game to win or lose. It is a trial that is supposed to be fair and equal under the law.

Using experts on both sides of a case gives the person being tried a better chance for fairness. When you allow an expert to testify on one side without the other side having the benefit of obtaining an an expert analysis of that evidence, you are crippling the chance that person has at getting a fair trial.

I don't think that you can ever really tell if an expert is biased unless they have a history of giving false or misleading testimony. It is a shame that this cheap tactic is used when no evidence of that exists, just to “win.”

What is really frightening are the documented cases of prosecution experts falsifying evidence and lying on the stand to secure a conviction. And in these instances, the experts were allowed to work for years and testify in dozens, and sometimes hundreds of cases.

I think there is probably more hard evidence of biased experts on the prosecution side of the aisle than on the defense. At least in criminal cases.

But hey, the prosecution are the “good guys.” Right? Well, they should be the fair guys.

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