Tuesday, March 4, 2008

Sure, give defendants a fair trial. Wait, that means they get to challenge the state's experts?

The more I learn about juries, the more convinced I am that the jury system is hopelessly weighted against defendants. And that the general public thinks it should be this way. The niceties of a trial are just a show we go through before we rubber stamp the prosecutor's charge. Apparently, juries aren't interested in hearing any real challenge to the state's evidence. Especially if it comes in the form of a private expert hired by the defense.

I heard from a juror who had just finished serving on a DUI jury that was unable to reach a verdict. The defense at trial was that the defendant was not under the influence. Defense counsel hired an expert to testify about the effects of certain medications that the defendant was on. These medications would have side effects that would make it difficult for the defendant to pass field sobriety tests. The juror reported that several of his colleagues felt it was not fair that the defendant was allowed to hire an expert. I was not able to speak to the juror in depth to get any sense of why these other jurors felt that way. (But I wonder if those jurors felt it was unfair to pit a fancy, hired expert against the poor lowly police officer who conducted the field sobriety tests?)

Then today, I was reading an article about a murder trial. The state brought in an analyst from the state lab to testify that hairs found at the purported crime scene were "microscopically similar" to the victim's hair. Now, anyone who knows anything about hair analysis knows that the analyst's testimony is meaningless fluff. Any two hairs can appear "microscopically similar." Under a microscope, it can be impossible to tell the difference between a dog's hair and a human hair. But to the general public, "microscopically similar" sounds pretty good. Naturally, the defense brought in an expert to testify that the state's "hair evdence" was irrelevant. The article points out that on cross-examination, the witness acknowledged he was paid $5000 to testify. The prosecutor elicited this testimony in the expectation that this one point would completely discredit this witness in the eyes of the jury.

Sadly, based on the jury experience I related above, the prosecutor is probably right. Juries do seem to think that if defense attorneys pay for the testimony, it's worthless. Ph.D.s and medical doctors have no qualms about testifying however we defense attorneys tell them to as long as we pay them. After all, if they'll testify for criminal defendants, they must not have any code of ethics. Even perjury is nothing to them.

This, of course, is nonsense. Academics and scientists at private companies are not interested in lying to assist criminal defendants. They have no desire to risk their reputations or even careers for a few extra thousand bucks. Yet people around the country (you know, jury pools) continue to think defense witnesses are just lying money whores. (Of course, they'll take the word of the convicted felon who claims the defendant confessed to them in prison and then gets a big ol' sentence reduction from the state, but that's a different rant.)

Shame on prosecutors across this country for perpetuating this myth that defense witnesses who are paid are not to be believed. I've never encountered a defense expert who was not asked on cross-examination exactly how much he or she was paid to testify. As if that should invalidate all of the expert's testimony. But prosecutors know better! They have to. If defendants have a need to provide expert testimony to counter claims put on by the state, they have to hire experts. There is no alternative. And there's nothing wrong with it. Nothing sneaky or underhanded. And nothing dishonest about the resulting testimony.

While a criminal defendant can compel material witnesses to testify, that doesn't apply to an expert. A defendant can subpoena an alibi witness or an eyewitness who described somebody who doesn't match the defendant's description. Those witnesses have specific, personal knowledge that no other person has. When the defense wants an outside expert to re-examine the work of the state crime lab analyst, subpoena power just don't apply. A defendant can't force a person with no previous connection to the case to become a part of it. No court will force an independent forensic analyst to take time away from his or her work to take part in a criminal case. If the defense wants an expert, they have to pay.

Experts are just being fairly compensated for their time. No one works for free. When you go to the doctor, she's not treating you just out of the goodness of her heart. She is paid for her time. The vet, the plumber, the hairstylist are all experts in their field who provide a service and get paid fairly for it. The forensic analyst who testified in today's murder trial was not paid for his opinion - he was paid for his time.

The secret they don't tell the public is the state's experts are also paid. The state's experts come from the state crime lab and the medical examiner's office. They get paid through their salary because testing evidence and reporting on the results is part of their job! Defense attorneys, though, are generally not allowed to point this out to juries. The state has a monopoly on access to the state crime labs and all their experts and they get to make it look like those people aren't paid for their time. The state's experts really do just testify because of their pure spirits and their interest in justice. Or so the state would have the public believe. Much to my horror, it appears that the public falls for it, hook, line, and sinker.

It isn't true and it just isn't fair. The state gets to use the full weight of its resources into putting a defendant in prison. It's only fair that the defendant gets to counter those resources with experts and evidence of his own. Just like the state, the defendant has to pay for the testing and analysis and time of those witnesses. So why should it be held against the defendant that he has paid for his expert? It shouldn't.

And I would submit that if the best rebuttal a prosecutor can come up with to the defense expert's testimony is, "You're getting paid for your time here today, aren't you?." the prosecution doesn't have a rebuttal to that testimony. If that's all the prosecution has, that defense expert must be on to something.

No comments:

Blog Designed by : NW Designs