About three years ago, my cousin-in-law became a judge (criminal court) in Los Angeles County. At a family gathering some time later, he noted to me that he has encountered what he perceived as expert “whores” in his court. I asked, sarcastically, “and that surprises you?”
My scientific career started in oceanography at Scripps Institution of Oceanography where I spent ten delightful years. Those years resulted in more than 20 articles in marine ecology, biology and geology. In 1980, I moved on to medicine and worked on issues of pneumoconiosis causation (mainly documenting asbestos in lung tissue). That work led to many cases in asbestos injury litigation. From there I became interested in gunshot forensics and gunshot residue.
What in the world links all of these disciplines? Scanning electron microscopy, of course! For more than thirty years I have had an infatuation with this extraordinary instrument and its application in a number of scientific disciplines. My articles now number close to 70 - most of which incorporate some aspect of scanning electron microscopy.
In 1985 I received my first criminal case. With many civil cases under my belt at the time, I thought what could be different about a criminal case? Both civil and criminal cases are in Superior Court, right? In the years following that first case, I became painfully aware that there is a huge difference. Unlike civil litigation, our criminal justice system actually promotes expert witness incompetence and even worse, instances of expert witness fraud. Flawed testimony appears to be an everyday occurrence in our criminal justice system
The Robert Blake criminal trial is an example. The news media focused on five so-called “consistent” gunshot residue particles found on Mr. Blake’s hand samplers by scanning electron microscopy. The submitted elemental spectra of these particles did not match that expert’s reported composition (these results were apparently mixed with another case). Many other instances of expert incompetence marred this case on both the prosecution and defense sides.
Another example of expert witness incompetence is an individual posing as an expert who frequently comes to San Diego to testify for the prosecution in criminal cases. He has no scientific training and even has stated that he is not a forensic scientist. I witnessed his testimony two years ago. He is a fine actor and would likely be a hit on CSI. Commensurate with his acting ability, he and his associate were paid about $210,000 for a recent case. That is more than twenty times the amount I charge as an expert on a case of similar complexity. There are a number of fine criminalists in San Diego County. I do not understand the need for our District Attorney to hire an overpaid and poorly educated actor for some of their cases.
A need for Change. I entered the field of criminalistics with an international reputation in marine ecology and biology. As a scientist I must submit my work product for review by other scientists. Our courts are dependent on this process for admitting reliable scientific-based testimony. There is a need to extend this accountability to expert testimony in the criminal justice system itself, not only for San Diego County, but for the entire nation.
Why shouldn’t expert testimony itself be subject to peer review? Expert testimony is the published work product of the forensic scientist or criminalist. But, expert testimony review by peers rarely occurs in the criminal case. Indeed, there usually is nothing to stop an expert in a criminal case from proffering erroneous and misleading testimony to accommodate his or her client. Why is that?
- California Evidence Code – Division 6: Section 777(a) “Subject to subdivisions (b) and (c), the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.” I have been excluded a number of times from hearing the opposing expert in a criminal case. The reason is obvious: opposing counsel does not want me to evaluate his expert’s testimony. If I have criticisms about the opposing expert’s testimony, shouldn’t the trier of fact hear that testimony? I also have been blindsided numerous times by prosecution expert testimony rebutting my testimony in which I do not know what was said, nor would I have been allowed to respond even if I knew the content of that testimony.
- Transcripts of expert testimony are controlled by the court reporter who is not an employee of the court. As such, the court reporter controls testimony records. In one case, I tried to find another expert’s testimony. Because of this arrangement with the courts there are no listings of expert testimony on the internet. One has to go down to the courthouse just to find the court reporter’s name and, of course, you must know when and where the trial took place; and then to contact that court reporter; and then to arrange for the transcript; and then to pay for the transcript. (I wonder what happens when the court reporter is deceased?) In order to even start this scenario, you have to know that the expert testified in a particular case. Thus, an expert’s testimony (work product) has little likelihood of review. He can say anything he wants as long as it sounds reasonable.
And my cousin-in-law judge wonders why there are expert whores frequenting his court?
In accordance with the opinions above, articles on many cases that I have worked have been posted on my website, meixatech.com/articles. I invite comment on these articles and I will post all comments (as of this writing I have received only one, despite having 250-350 visitors weekly to my website).
This article by Bryan Burnett, M.S.was published in The San Diego Daily Transcript on April 12, 2006 as part of the Forensic Consultants Newsletter. Bryan Burnett is the Principal of Meixa Tech & Forensic Science Consultants Group and specializes in Scanning Electron Microscopy and its application to such things as gunshot residue and asbestos analysis in lung tissue.
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