Counsel, know thy expert

And how the expert can be trained to serve the justice system during cross-examination.  There`s a wealth of information to guide us including books and DVDs prepared by experienced trial lawyers.  Training the cross-examining lawyer must include enlightening him or her about how the expert is trained.

I thought of this when I reviewed the topics for the plaintiff legal practice conference entitled “The Doctor Is In: Medical Elements of Injury Cases”.  It’s planned for June 17th and 18th in St. John’s by the Atlantic Provinces Trial Lawyers Association (APTLA).

The last topic in the two day conference is “Making the Most of Cross-Examining Medical Witnesses”.  The conference organizers beseech lawyers to “Have no fear!.  Veteran Wisconsin trial lawyer, Paul Scoptur, will give you the remedy for curing many of the common mistakes we make when confronting the defence medical expert at trial.”

In helping you correct these mistakes, I’m certain Mr. Scoptur will tell you about the excellent resources available in the U.S. for all experts, not just medical.  Texts, DVDs and training like the following – produced by experienced trial lawyers for experts:

  • Cross-examination: The Comprehensive Guide for Experts (a text)
  • How to Become a Dangerous Expert Witness: Advanced Techniques and Strategies (text)  (I think the tone of this text is at odds with our attitude here in Atlantic Canada but it does contain some tips on how we can serve the justice system better)
  • Cross-Examination: How to be an Effective and Ethical Witness (a DVD)
  • The Biggest Mistakes Expert Witnesses Make and How to Avoid Them (text)
  • Preparation and Training for Testifying (a consulting service)

(There is a bias in some of this material to the medical expert)

I have some of this material in my library – and a good amount on writing expert reports, and it’s all good.  I’ve also attended some of the conferences and workshops in the U.S..  The products are very detailed and based on study of many 100s of legal cases, if not 1,000s.

Reviewing material like this will help you get a feel for how experts can be trained and further help you correct your cross-examining mistakes.  Reviewing legal practice handbooks helps me practice as an expert.  I’m certain reviewing expert practice material will help you cross-examine us.

Why am I telling you this?  Because cross-examining lawyer and expert alike are contributing to the same thing: Justice for the injured party whether the victim of an accident or the owner of damaged property.  Albeit in somewhat different ways.  To this end, it behooves us to understand each other’s role and how we are trained for this.

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Counsel in Atlantic Canada, tell your experts about the latest developments in the law of expert evidence

Experts need to understand the law of expert evidence, including the latest developments.  We inform the justice system.  It’s a good idea to know the rules governing the system.  We can get a lot of what we need to know in Canada from standard text books and Google – I just checked and it’s there - except possibly the latest developments.

I thought of this when I reviewed the topics for the plaintiff legal practice conference entitled “The Doctor Is In: Medical Elements of Injury Cases”.  It’s planned for this June in St. John’s by the Atlantic Provinces Trial Lawyers Association (APTLA).

The first topic in the two day conference is “Waiting Room Reading: Case Law Updates – Expert Witnesses“.  The topic promises to report “the latest developments in the law of expert evidence from Atlantic Canada and beyond”.  And to “identify, summarize and deliver everything you need to know to keep up to date in this fast paced area”.  Including case summaries.

All experts – not just medical, would like to know about these latest developments and would benefit from the knowledge.  The conference organizers must give serious consideration to making this information available to us when the conference is over.

We are reminded often enough that as experts we serve the justice system and are to objectively inform and explain the technical issues to the judge and jury.  We can’t do this effectively unless we know the law of expert evidence - and the latest updates – and have this explained to us in layman’s language.

For example, some of us were fortunate enough to learn about Rule 55 in Nova Scotia, but not all know of it.  A very valuable rule that emphasizes objective and thorough investigation and analysis, and good report writing.  I learned about it from my client after I had carried out a complex investigation but fortunately before I wrote the report.  All turned out well.

 

What is forensic photography?

Forensic photography documents the physical appearance of a scene soon after a crime, accident or failure occurs then presents this information to the justice system, and does this objectively. (Ref. 1)  These are the main goals.

The forensic engineer also uses the photographs to study the scene again later in his role explaining the technical issues and the cause of the incident to the justice system.  Others also learn about the scene from the photographs.  It is an exacting speciality like all the technologies involved in forensic work.

Police crime scene identification unit

I was reminded of this when I toured the Halifax Regional Police Crime Scene Identification Unit recently.  David Webber, the forensic photographer with the unit, showed me around.  I had met David earlier at a social function hosted by the police department for the Victim Services Unit.

There are 13 people in the identification unit specializing in a number of technologies.  ”Lifting” and analysing finger prints from surfaces and trace fluids from clothing are two the public is familiar with.  David does the photography.  We had a difficult time getting together because he was being called out to one murder scene after another over a period of a week or more.

I didn’t get out to a crime scene but did see how David presents his photographs in a book for use by the justice system.  There is nothing in his presentation or the captions – just a single number, to sway what the justice system and others might see in the photographs.

In civil litigation, the photographs could be of a scene where a personal injury accident or an engineering failure occurred, or where an incident was re-enacted by a forensic engineer.

Almost all photographs are taken at or near ground level – what we call terrestrial photographs in engineering.  But you are certain in future to see low level, oblique aerial photographs taken with cameras fitted to drones.  I use this technique now.  The police Identification Unit are looking at using it.

Uses of photographs in court

Photographs can be used in court for illustrative purposes, if admitted by the judge, to: (Refs 1, 2)

  1. Support, corroborate and explain the evidence of witnesses,
  2. Supply relevant detail in the appearance of objects described in oral testimony,
  3. Reveal steps taken by witnesses to arrive at their opinions, and,
  4. Affect the credibility attached to a witness’ testimony. (Ref. 3)

A witness uses photographs to illustrate what was seen and done during the forensic investigation and the evidence that was collected.

A photograph can also be used as a silent witness, if admitted, as,

  1. Substantive visual evidence.  The photograph is allowed to ”speak for itself”.

There is no witness, the photograph stands alone, a silent witness.

Allowing photographs into court

A judge will allow photographs to be tendered as exhibits and admitted as evidence in a Canadian court if the following test is met: (Ref. 4)

  1. Photographs must be relevant, that is, material to an issue at trial,
  2. Also, accurate in truly representing the facts,
  3. Fair and absent of any intention to mislead,
  4. Verifiable on oath by a person capable to do so,
  5. And if their probative value exceeds their prejudicial effect.

Put another, less comprehensive way, photographs for the court must be: (Ref. 1)

  • True and accurate representation of the subject
  • Free of distortion
  • In proper perspective

Forensic photography as high technology

Getting a true, accurate, distortion-free perspective of the scene is where photographers like David Webber and their knowledge, skill and objectivity come in.  It’s high technology when you realize how many decisions must be made for every click of the shutter: (Refs 1, 5, 6)

  1. Angle to shoot from,
  2. Closeness to the subject – distant, medium distant, close up, detail,
  3. Lighting - natural or artificial,
  4. Film speed,
  5. Lens - normal, wide, telescopic,
  6. Aperture,
  7. Shutter speed.

Then another series of decisions must be made when presenting the photographs objectively to the courts.

That’s forensic photography in a nutshell.

References

  1. Tupper, Allison D., Use of Photographs at Trial, Chap. 15 in The Expert: A Practitioner’s Guide, Vol. 1, Matthews, Kenneth M., Pink, Joel E., Tupper, Allison D. and Wells, Alvin E., Carswell Publishing 1995
  2. Goldstein, BA, LL.B, Elliot, Visual Evidence, A Practitioner’s Manual, Chap. 2, Carswell, 1991 as referenced in Matthews, Kenneth M. et al
  3. Scott, J. D., Motion Picture and Videotape Evidence (November 8, 1974), Ontario Crown Attorneys Bulletin and Benson and Hedges (Can) Inc. v. Ross (1986), 58 NFLD. and P.E.I.R. 38 (P.E.I.S.C.) as referenced in Matthews, Kenneth M. et al
  4. R. v. Creemer (1967), (1968) C.C.C. 14 (N.S.C.A.).
  5. Wikipedia, May  8, 2016
  6. Kook, Frank, photographer, Halifax, May 10, 2016