[“… I assumed, as I suspect many of my judicial colleagues do, that the forensic disciplines are well grounded in scientific methodology and that the crime laboratories and forensic practitioners follow proven practices that ensure the validity and reliability of forensic evidence offered in court. I was surprisingly mistaken in what I assumed .” … Judge Harry T. Edwards, The NAS Report of Forensic Science — What It Means For The Bench and Bar, May 6, 2010, p. 2. ]
Today, science is challenging these old views on scientific dependability. Defenders should “play offense” – requiring the prosecution to demonstrate the reliability of both its expert and the theory underlying their testimony.
Use the MREs
Begin with the Military Rules of Evidence. Only relevant data is admissible under MRE 402. Remember that failure to challenge the expert amounts to waiver. RAYA, 45 MJ 251, 253 (1996); JOHNSON 35 MJ 17 (1992).
Experts are addressed at MRE 702. See DIBB, 26 MJ 830 (A 1988); LATER, 53 MJ 179 (2000); BANKS, 36 MJ 150 (1992); BUSH, 47 MJ 305 (1997); Schinasi, and Schlueter, MILITARY RULES OF EVIDENCE MANUAL (5th ed.) at 7-13 [excellent analysis].
Consider using the rules of evidence in these areas —
- Make motions in limine under MRE 104; challenge the prosecution “science” at the gatekeeping level. GERARD, 11 MJ 440 (1981); BOTHWELL, 17 MJ 684 (A 1983); Saltzburg, Schinasi, and Schlueter, MILITARY RULES OF EVIDENCE MANUAL (5th ed.) at 7-13.
- Respectfully resist a military judge seeking to take ‘judicial notice” of a particular iffy science and its reliability. See HARRIS, 18 MJ 809 (AF 1984); GREEN 55 MJ 76, 80- 81 (2001).
- If you are denied your side of things, make an offer of proof under MRE 103. Saltzburg, Schinasi, and Schlueter, MILITARY RULES OF EVIDENCE MANUAL (5th ed.) at 1-31; ELVINE, 16 MJ 14 (1983).
- Ask for Special Findings under Rule 403. Again, excellent information is available at Saltzburg, Schinasi, and Schlueter, MILITARY RULES OF EVIDENCE MANUAL (5th ed.) at 7-13; O’QUIN, 16 MJ 650 (AF 1983)..
Challenging Government Experts
- For openers, of course, find out everything you can about the expert — to make sure he/she is truly qualified.
- In interviewing beforehand, ask the expert for any contrary authority.
- When questioning government experts, beware the current buzzword “match.” [The
“ old school” approach was to say that something was correct “to the exclusion of all others”]. Inquire as to the professional reliability of calling anything a “match.”
- Look out for weasel words such as “significant basis of agreement.” –whatever that means!
- In cross-examining a government expert, inquire as to whether there is any uncertainty in the field; or peers who disagree with what the expert has presented.
- As a mischievous [but still useful] rule of thumb, consider anything ending with the word “syndrome” as b.s.
- No science is perfect, so ask the expert to concede that there is at least some degree of uncertainty in what he/she does.