written by NITA Blogger Judge Robert McGahey
The use of – and reliance on – scientific (or “forensic”) evidence has mushroomed over the years. TV shows like the CSI series have added the term “CSI Effect” to the legal lexicon, and any judge or lawyer who handles criminal cases will tell you that it’s real. Some jurors come to court expecting to see DNA or other kinds of forensic testing in every case, which leads to what I call “anti-CSI evidence”: the prosecutor putting on forensic experts to explain why DNA tests or fingerprint comparisons or gunshot residue testing aren’t done in every case. Civil cases are fought by medical, engineering, scientific, or economic experts, and sometimes by all of those (and more) in the same case. There is constant pretrial haggling over qualifications of experts, reliability of opinions or techniques and admissibility. (The phrase “Daubert hearing” will cause a shudder in any trial judge, believe me.) Trials take longer and fact-finders are deluged with opinions that frequently are contradictory. Cases become more expensive as lawyers perceive experts as absolutely necessary to their case and hire experts who charge large fees for their work. We see news reports of problems with forensic examiners around the country who aren’t qualified, whose tests haven’t been done properly, or whose results are questionable.
The over-reliance on this type of evidence is dramatically underscored in 1988’s A Cry in the Dark, which tracks a real murder case in Australia. Lindy and Michael Chamberlain’s baby girl Azaria disappears from a tent on a camping trip. According to Lindy, the child was taken by a dingo, one of Australia’s wild dogs. No body is ever found, but the some of the baby’s clothing, covered with blood, is discovered in rugged territory near the campsite. The authorities do not believe Lindy’s story, and she’s charged with Azaria’s murder. The prosecution relies heavily on forensic evidence about fetal hemoglobin to prove its entirely circumstantial case. Lindy is convicted of her child’s murder and sentenced to life in prison at hard labor; Michael is convicted of being an accessory. Other factors play into the conviction, including a media frenzy around the case (including misinterpretation of Azaria’s name), religious prejudice against the Chamberlains (who were Seventh Day Adventists), and Lindy’s apparently unfeeling personality, but the forensic evidence is the bedrock of the prosecution’s case. Without revealing too much, that bedrock turns out to be less than firm. And it takes a coincidence for the truth to finally emerge.
This film is notable for Meryl Streep’s performance as Lindy Chamberlain. Her accent is perfect (at least according to some of my Aussie friends), and her portrayal of Lindy is said to accurately reflect the real woman. Streep was nominated for a Best Actress Oscar and won the Best Actress Award at the Cannes Film Festival and from the New York Film Critics Circle. The movie itself was voted as the ninth best courtroom drama by the American Film Institute in 2008.
A Cry in the Dark should serves as a cautionary tale about placing too much faith in the opinions of experts. It is certainly true that developments in forensic science have played a positive role in freeing innocent people from prison and in making difficult matters more readily understandable to judges and juries. But those of us who present, argue about, rule on, and base decisions on such evidence always must be alert to the danger of blind acceptance or uncritical reliance on it.
Justice demands no less of us.
If you are interested in Challenging the Admissibility of Forensic Expert Testimony, check out NITA’s free webcast from yesterday, now available on demand.
Being the attorney for a child who is called as a witness in a child protective case is at once the same as and entirely different from representing any other party to a civil case who is going to testify at trial – with the difference, as I see it, significant.
It is not uncommon for a child’s position to change during the period of time a dependency case is pending. Consider the path of many cases: a young person (let’s call her “A”) discloses to a trusted individual that he or she is being maltreated at home (for example, a ten-year-old tells her guidance counselor that her father beat her with a stick and caused welts all over her body when she brought home a bad report card); the person to whom the disclosure was made calls the authorities. A case worker, and maybe even a police officer, interviews A that same day. The youngster repeats her account of what happened to her at home. She is then taken to the hospital, where a full body examination is done and photographs are taken. The case worker comes to the home and speaks with all of the siblings. The police arrest the father, handcuffing him in front of the entire family. The following day, a case is filed in family court alleging abuse against the father and neglect (failure to protect) against the mother; the judge releases the children to the mother and excludes the father from the family residence. The lawyer interviews A, and she confirms the allegations and is happy with the court’s temporary orders.
The case winds its way through the court system over five months. During this time, the family is struggling financially because the parents now have to support two separate residences. A’s siblings start to grumble to her that if she had only kept her mouth shut, they wouldn’t have to live without their dad, seeing him just a few hours a week. A feels badly because she loves her father and feels responsible for getting him into trouble (even though she’s been told by multiple people it’s not her fault). As soon as the case is filed, both parents entered into services, including parenting skills and counseling, and are very compliant. The father’s social worker reports to the court that there was a cultural issue: where he’s from, corporal punishment that is viewed in the U.S. to be excessive is normal, and he has now learned other forms of discipline. Based on this report, the judge has permitted unsupervised visits between A and her father. A loves these visits and is anxious that the family be reunited.
Five months after the initial incident, A is subpoenaed by child protective services (“CPS”) to testify. A tells her lawyer that she no longer wants a finding against either parent and she wishes that the whole case would just “go away.” She says that talking about the “old” incident will reopen old wounds and get her parents mad at her all over again when things are so much better. She states she doesn’t really remember what happened and even if she did, she’s not sure that she can say it in front of the judge.
So what is that child’s lawyer to do? Like any attorney, you counsel her about all of the possibilities that could occur and the steps you can take as her advocate, including motions to squash the subpoena and, if practicable, a motion to dismiss the case. You get in touch with any service providers and obtain affidavits to support the application you are making. You take the child to a courtroom that is similar to the one he or she will be testifying in and point out where the court personnel and the other parties will sit. Depending on the case, you may want to introduce the child to other counsel or even court officers who will be present. Also, you could try to persuade the CPS lawyer to reconsider its position and offer a favorable resolution to all parties. If, despite your best efforts, you are unsuccessful in persuading CPS not to traumatize the very child it is charged with protecting, you have to prepare a ten-year-old for a hearing in which she is very likely to be impeached by her own prior statements if she tries to minimize what happened. With a child, the only way to do this is to practice both direct and cross-examination – enlist a colleague who is a skilled litigator to play “bad cop.” Additionally, if A swore out a police report or a criminal complaint in the very early days of the case, you have to advise her of the remote but not unheard of possibility of opening herself up to perjury or other criminal charges and probably advise her to assert her Fifth Amendment privilege. All of this plays out against a backdrop of what the client wants most of all – and is the attorney’s paramount advocacy objective – is for her entire family to be permitted to live together again.
In a child protective matter, even though charges are quite often brought because a child says or discloses or manifests something that leads to charges against her parents, she is not the complainant. Therefore, she cannot “drop” or withdraw the allegations that are made. Families’ lives are organic and always growing, and the court process does not always keep pace with the growth or progress (or vice versa). I am not suggesting at all that a ten-year-old should be in the position of calling all the shots when it comes to determining the course of a court case. What I am saying is that we as advocates must keep judges and other parties accountable so that the very actions taken to protect a vulnerable young person do not become counterproductive and result in harm to that child.
NITA Faculty member Edwin U discusses how to deal with bad evidence at trial.
At NITA, we instruct participants to speak without reading or memorizing a text they have written. We lecture about it, and we encourage everyone to try speaking without notes. Some faculty even sneak up to the lectern and steal notes from a participant actively engaged in an examination—leaving speakers momentarily shaken until they realize they can function without them.
Then, we come to evidence day, when all our advice about speaking extemporaneously, about structured improvisation, about the jazz-like quality of courtroom speech, gets thrown out. When it is time to admit evidence, it is time for rote memorization. Suddenly, there is a rigid structure. Exact words, in an exact order, must trip off your tongue. If you aren’t sufficiently prepared, admitting evidence can be as jarring as hitting a speed bump at fifty-five miles per hour. If you haven’t memorized the exact words required by your jurisdiction, admitting evidence can be a sweaty, unpleasant experience that undermines your confidence.
The good news is that if you practice those exact words required in your jurisdiction, you can sail through the process with flying colors. You will look like an old hand, a seasoned professional who takes care to do everything just right. Your own self-esteem will rise, colleagues will be impressed, judges will be grateful, and your clients will be happy (they’ll only be unhappy if you look unprepared by flubbing up; otherwise, they won’t know this is hard).
However, you must practice enough to have muscle memory for the task. Yes, there is logic to the order of the task, but you will not be able to take the time necessary to reason your way through it. Yes, you could write it all down, but you will not have time to read it or a third arm to hold your notes, the piece of evidence, and manipulate a computer while you work your way through the process.
We cannot tell you the exact words you will use, or the exact order you will use them. In fact, each NITA lecturer has a slightly different take on admitting evidence. It differs depending on several factors. Here, we are focusing on how to practice. In general, you will make a series of statements and ask for permission to show a piece of evidence or an exhibit around the courtroom. It will go something like this:
“I’m holding what has been marked as Defense Exhibit 1.”
You walk to opposing counsel and say, “I’m showing opposing counsel.”
You then say, “Your Honor, may I approach the witness?”
When granted permission, you might say, “Mr. Witness, do you recognize this?” “What is it?” “How do you know?” “Would this help you testify about the night we’re talking about?”
When the witness says yes, you might say, “Your Honor, I move Defense Exhibit 1 into evidence.”
Then, continue speaking and improvising your way through trial, as in, “Mr. Witness, when did you buy this baseball bat?”
Once you know exactly what you must say and the order in which you must say it, you become an actor in a TV courtroom drama. Memorize it. Say it over and over until it trips off your tongue. Then, set up a room with an imaginary courtroom. Walk through the steps and repeat your script until you have no doubt how it goes. Do this multiple times over several days, spending ten minutes (or more, if you have the time) during each session. Distributed learning, as this process is called, is the fastest and most reliable way to learn and retain skills.
Practice doesn’t make perfect, except in small increments. Vow to become perfect at this slice of trial work.
Marsha Hunter is a principal in Johnson & Hunter, Inc. She teaches communication skills at regional trial skills programs, the annual National program in Boulder, and is the program director for The Articulate Advocate: Becoming more fluent on your feet, scheduled three times each year at NITA’s Colorado headquarters. Find her on Twitter @MarshaH.