I couldn't do the math so I went to law school

"I couldn't do math so I went to law school" was a title I proposed for a continuing legal education program run by a state bar association in New York on forensic science. I hoped the title would catch the interest of potential attendees and make them rush to sign up for the one-day course.

As I thought more about the title, I began to think that most criminal Defense lawyers really are not well versed in forensic sciences and that this can take our clients down the highway to disaster. We are expected to defend our clients to the best of our abilities and we cross-examine witnesses relentlessly on issues of identification, etc., but we often times do a less than splendid job with so-called prosecution forensic experts in arson, ballistics, DNA statistics, gas chromatography.... The list goes on and on but you get the idea.

And here comes the entrance to the highway leading to disaster. The prosecution calls a witness and asks enough questions to have the judge declare the witness to be qualified an "expert" or least qualified to answer opinion (rather than fact) questions. Mind you, the prosecutor will have prepared the expert before she testifies and the testimony will be a smooth narrative designed to impress the jurors and convince them of the guilt of the defendant. The expert, having done this before, will turn to the jurors and smile at them when answering questions. This rapport building has nothing to do with the content of the expert testimony, but then it's not supposed to.

Now the defense lawyer has an opportunity to impeach not only the expert but the findings of the expert. In many cases we see some efforts to impeach the expert but precious little impeachment on the findings and/or methods used by the expert. That is, the "science" relied upon by the expert. Why? The defense lawyer doesn't know enough about the science or even if the subject matter is a science.

Eventually the jury will get the case and will look carefully at the opinions of the expert. Unfortunately, an expert's opinions will be given gospel-like qualities if not impeached, and the defendant may be found guilty on perhaps less than scientific evidence. Lets face it, jurors are not likely to know whether or not the expert knows what she is talking about

A recent film called "My Cousin Vinny" is illustrative. In the film an FBI agent testifies for the prosecution using science that the car belonging to the defendants is the same car that left tire tracks at the scene of the crime. At the conclusion of the testimony the prosecutor, with a smug smile, sits down and we are shown jurors throwing killer looks at the defendants. Fortunately, Vinny's friend (played by Marisa Tomei) is a crackerjack (expert) on cars and completely destroys the prosecution witness. All is rendered well in the universe and the case against the defendants is dismissed.

In the real world we too often see cases such as that of Cameron Todd Willingham where the use of the prosecution's expert arson witness has been challenged on a number of grounds after the execution of Mr. Willingham. I have not read the transcripts of that trial so I will not comment on the testimony of the arson expert or on the effectiveness of Mr. Willingham's counsel. It has been reported that the jury took less than an hour to convict him. I'm betting the jury relied heavily on the prosecution's arson witness. After all, he was an expert.