It seems to me very odd that states allow paid experts during criminal trials…I don’t think that people are able to make truly sound and objective determinations on what did/didn’t happen if they are are getting paid to prove guilt or innocence.
It seems especially problematic when prosecutors generally have much more funds available than public defenders.
So:
What is the alternative?
Do any states not allow paid experts to testify?
Has the SJC ever considered the issue?
This blood-spatter case made me think about it:
I don’t think it’s that the experts are not objective, it’s just that most of these are subjective and the lawyers just shop around until they find an expert that agrees with what they want the conclusion to be.
There have been some egregious cases of “experts” getting accepted by a court who probably shouldn’t have been, but by and large most people who make money being paid experts have pretty decent credentials and are genuinely looking to give their honest, expert assessment of a situation.
Now, of course you are only going to select an expert that you believe is going to help your case. I believe in a criminal trial if a prosecutor doesn’t like the outcome of his expert’s analysis he doesn’t have the option of just tossing it, the defense can put that into the trial record even if the prosecutor doesn’t wish to use it.
Is it really the case that prosecutors routinely are able to finance more expensive experts and public defenders offices do not have funds for this? Having never been involved in a major criminal trial I wouldn’t know, but that is a factual assertion worth looking into I would think.
Anyway, this is a non-problem. Firstly, our court system is adversarial. If I’m a lawyer and you get an expert who testifies in a way that hurts my case, I’m going to shop for an expert who will say something different to mitigate that, period. The fact that the experts are paid is irrelevant. Even if there was just a big pool of say, psychiatrists, who were interested in doing pro-bono witness testimony. Because of the nature of the adversarial system I’d try to find the one who would be inclined to have an opinion that would help my case.
So if I’m trying to get a client off on an insanity defense I’m going to go after the expert who has had a tendency in the past to give testimony that supports such defenses. I’m not going to select the expert who tends to very tightly define “criminally insane” and who would be unlikely to give that assessment of my client.
I spent about 6 years in “litigation consulting”. Basically it is a branch of management consulting that deals with providing various services to law firms, legal departments and regulatory agencies. Computer forensics, forensic accounting, discovery, expert witness testimony, trial graphics support, jury selection, strategic communications (PR), and so on.
The reason law firms and legal departments hire us (for lots of money) is that lawyers know the law. They don’t know technology or business. So when you are dealing with highly complex business cases like Enron, Bernie Madoff, Worldcom, Lehman or anything else you may or may not have read in the paper, you need people who not only can get at the information they need, but can also understand and make sense of it.
Basically we get paid a lot of money to dummy down complex information into something lawyers, judges and juries understand.
We are not “objective”. We are paid by one side of the case. The opposing side has their own experts and boths sides try to discredit the other. In fact, in most cases we have to go through an elaborate “conflict check” to make sure the company isn’t working both sides of the same case or that there isn’t some other conflict of interest (ie Deloitte is hired by the plaintiff and is also the defendent’s auditor might be, but isn’t always a conflict).
In fact, most cases don’t even go to trial. They are analyzed by armies of consultants, accountants and lawyers on each side until a plea is reached.
The only reasonable alternative would be completely revamping the jury system.
Currently, we have a system that can take an immensely technical case (patent infringement, for example) that would take years of specialized training to understand, and hand it off to 12 jurors with absolutely no knowledge of the subject matter at all. Since they’re totally unqualified to judge the facts, we have to give them something that they can judge, namely the credentials of the experts.
I’ve been involved in cases like this where the judge, jury, and attorneys did not understand the issue. Without experts, it would be impossible to litigate.
ecoaster, are you willing to throw out all forensic evidence? If so, how is the defense to argue against the state’s forensic labs? Also, how are forensic techs in the employ of the state categorically different than private ones?
Not understanding your question. Of course forensic evidence should be admissible. A state forensic tech. should offer his analysis BUT not be prepped by prosecutors. A state technician is paid by the state to process and make sense of the evidence. But he certainly shouldn’t receive additional compensation to show up to court. Why couldn’t we have a system where experts offer their interpretation of the evidence without consulting with the state (or with defense) beforehand?
Because that consultation is necessary to find out whether their expertise is appropriate. I’ve been called by lawyers interested in having me testify as an expert, only to discover that they misunderstood my qualifications and I don’t have adequate background in the specialty they’re calling about.
I know several people who have thorough experience as expert witnesses. Among them are forensic engineers and CPA tax law experts. Most cases for them are not criminal but rather civil suits over property damage, injuries, death, and (for the tax expert) divorce. Expert witnesses answer questions asked by attorney(s) during pre-trial deposition to help them determine if they have a case worthy of trial or possible settlement and if the expert’s knowledge is relevant to a case. Most cases do settle before any trial.
Most experts have Ph.D. degrees and/or are professionally licensed in their field. Although an expert is typically paid by the attorney representing one side in a case, it is in the expert’s interest to be truthful under oath and not reach beyond their particular area of expertise.
Experts are typically very busy in their daily occupation as a professor, lab scientist, accountant, etc., so it seems appropriate that they should be paid for their time.
What if, like jurors, these paid experts have to be agreed upon by both sides, and both sides can veto a selection (within reason). And the money used to pay them is split evenly while still being fair to the poorer side?
First, you see trials where one side (e.g., a rich defendant) wants to call 23 expert witnesses and the other (e.g., a limited-budget district attorney) only wants to call two. With witnesses charging hundreds of dollars per hour, including prep time and travel time, that’s a good bit of money. How do you decide how many will be called?
Second, what if there are no experts that both sides agree upon? In some areas of specialty, there may only be a handful of people that can do it. In my field, for example (closed-captioning for television), there are very few experts. By the time you eliminate the people who have worked for one party or the other in a lawsuit or have some other conflict, there may only be one or two qualified experts left willing to testify.
Expert testimony goes on the record. This means it’s pretty easy to see how a particular expert has testified in the past. If the expert is to retain any credibility whatsoever, future testimony will be consistent with past testimony. If the open question is something that’s been litigated before, like cell phones causing brain cancer, no attorney will agree to a witness that has taken his opponent’s position in the past. Therefore, no witnesses get called at all unless you can find all new ones.
Because “breaking even” is giving too much power to the prosecution. If one expert “knows” you’re innocent and ten “know” you’re guilty, that is grounds to suggest there is reasonable doubt as to your guilt, and that you should go free.
First, you see trials where one side (e.g., a rich defendant) wants to call 23 expert witnesses and the other (e.g., a limited-budget district attorney) only wants to call two. With witnesses charging hundreds of dollars per hour, including prep time and travel time, that’s a good bit of money. How do you decide how many will be called?
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Aren’t judges empowered to make decisions similar to this? The judge isn’t on anyone’s side, let him decide on a credible number based on the circumstances
Second, what if there are no experts that both sides agree upon? In some areas of specialty, there may only be a handful of people that can do it. In my field, for example (closed-captioning for television), there are very few experts. By the time you eliminate the people who have worked for one party or the other in a lawsuit or have some other conflict, there may only be one or two qualified experts left willing to testify.
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Well like selecting a jury, I know there are rules that must be followed. Like one side can’t remove all Jewish jurors or black jurors if the trial hinges on race. The Rodney King trial had to be retried cause the first jury, an all-white jury from mostly white Simi Valley found all 4 cops not guilty. Now I don’t know exactly what legal maneuvering went on to get that trial redone (I’m certain it wasn’t simply “oh they were all white people, it was unfair”) but that seems to be relevant here.
If both sides can’t agree on experts, then experts will have to be called that won’t be agreed on. In that case, perhaps an announcement can be made to the jury that the expert being called is, like now, the defense’s or prosecution’s expert. That’s how it works now so I don’t see any additional negatives in this format. I’m sure that once people are accustomed to having neutral and mutually agreed upon experts, these “biased” experts will bear closer scrutiny. Perhaps that’s to the benefit of us all
Expert testimony goes on the record. This means it’s pretty easy to see how a particular expert has testified in the past. If the expert is to retain any credibility whatsoever, future testimony will be consistent with past testimony. If the open question is something that’s been litigated before, like cell phones causing brain cancer, no attorney will agree to a witness that has taken his opponent’s position in the past. Therefore, no witnesses get called at all unless you can find all new ones.
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Well how do attorney’s handle that now? They cross examine the expert, counter with their own, and try to poke holes in the testimony, right? It wouldn’t work any differently than if mutually agreed upon experts were used
Wouldn’t that still fall on whether or not the experts are convincing or not?
The judge gives approval (or disapproval) of expert witnesses for testimony in trials. If attorneys on one side have objections to any witnesses called by the other side, then they can express those objections to the judge who then can make a judgment. For pre-trial depositions, attorneys can question any expert they wish.
In some fields, it is difficult to find experts that do not have a possible conflict of interest. An example of this is tire experts. All tire experts worked for at least one tire company in their career. If someone sues a tire manufacturer and the case goes to trial, then it would be difficult to find a relevant expert who has never been associated with that manufacturer or one of its rival companies.
The OP stated he was interested in *criminal *trials. A lot of the postings to date have been talking about *civil *litigation. They make good & valid points, but may be off-topic for the OP.
I’d answer the OP as written by saying that there are a lot of systemic imbalances between criminal prosecution & criminal defense today in the US. Expert witnesses are used in a tiny fraction of criminal cases & hence are a tiny fraction of the total imbalance.
The assumption that forensic techs are neutral unless reveiving overtimepay to testify is faulty. Not long ago there was quickly-ignored scandal that the FBI’s main crime lab was systematically overstating evidence. Why? Because generating conclusions that appeared solid & led predicably to convictions also led predictably to promotions, increased budgets, and less hassle from HQ.
Any system involving humans involves subterfuge, undesirable incentives, and all the rest. Not to say we should give up; we should in fact be very open about expecting, and correcting for, bias & self-dealing whereever it may appear.
A paid expert is part of the prosecution or defense team. Neither team is objective in any way - each has a legal responsibility to argue their side of the case as well as they possibly can. The lawyers, the experts, the researchers, the defendant, the prosecutor. The job of a paid member of the prosecution team, such as a paid expert, is to try to convince the jury that the defendant is guilty.
The only issue that would arise is if the jury doesn’t realise this. But the other side’s lawyers will make that abundantly clear on cross-examination (if they don’t, they’re not doing their job correctly).
Sure, I can see that financial resources can have an effect on that. Works both ways - a rich defendant may well be able to outspend the state. Then again, if the opposition does a good job of characterizing that as simply throwing money at the problem, it could play badly with the jury.
There’s no conflict of interest. One has to understand that said paid experts are members of one team or the other. They aren’t independent witnesses, and aren’t thought of as such.