Expert Witness: Scientists Testifying in Court

By Chris Mangal, MPH, Director of Public Health Preparedness and Response

In years past, many people had long careers in public health laboratories without ever setting foot in a courtroom to testify on the science behind their work. This doesn’t hold true in today’s world. More and more, scientists are being called into court to provide expert testimony on the results of laboratory testing. Complicating these requests for expert scientific testimonies is the perceived knowledge of the jury. In a technology-hungry society saturated with criminal investigation television shows, the general public (jury) has a different perception of evidentiary standards. To prepare public health laboratorians to testify in court, APHL partnered with the FBI to develop and offer a free, one-day pilot training course, Moot Court Expert Witness Training at the FBI Operational Response Center (ORC) in Fredericksburg, VA.

Participants from six state public health laboratories–California, Delaware, Florida, Minnesota, Washington and Virginia–received a much needed introductory session on the American legal system and gained valuable practice during two moot court trials. FBI instructors and former prosecutors, Paula Wulff and Anthony De Leon, delivered a broad overview of the foundation and operating principles of American law. Wulff and De Leon joined instructor Lisa Ference, Supervisory Special Agent, Hazardous Materials Response Training Unit (HMRTU), to deliver an entertaining and educational pilot course to varying levels of laboratory personnel. 

So, what did participants learn in Moot Court Expert Witness Training?

  • The famous phrase, “it depends” has withstood the test of time. Everything is subject to interpretation, so it’s important to have all documentation regarding laboratory tests.
  • Always have a current résumé or curriculum vitae (CV). The instructors provided tips for ensuring accuracy of these documents, emphasizing that laboratorians must be familiar with all items listed.
  • The standards for reliability of scientific evidence vary from state to state with two main standards prevailing: Frye and Daubert. The Daubert standard is viewed as more rigorous than Frye, and thus many states have enacted the Daubert standard for reliability of scientific evidence. The Daubert standard focuses on whether the scientific theory or technique was empirically tested, peer reviewed (by at least two peers) and published, the known or potential error rate and the reproducibility of results, as well as the expert’s qualifications and stature in the scientific community. Laboratorians should consult with their agency’s legal counsel or prosecutors to learn more about state-specific standards for scientific evidence. More information is also available in the National Academy of Science’ publications, Strengthening Forensic Science in the United States: A Path Forward, available here.
  • Be proactive, contact and communicate with your advocate (typically prosecutors). Ask your advocate for information on typical questions you can expect from the opposing counsel (typically defense attorney).
  • Stay within your lane of expertise. Don’t offer information on scientific theories you are not familiar with.
  • Communications – be wary of emails and over sharing of information with colleagues and friends. On instructor noted, “We live in a digital age, and everything is being tracked and can be subpoenaed.”
  • The importance of chain-of-custody for samples beyond suspected terror threats. The instructors noted that routine samples, such as those collected from foodborne outbreaks, can and have been, intentional threats. Thus, maintaining the evidentiary chain is critical when working with all samples. 
  • Clearly identify which materials are guidance versus standard operating procedure (SOP). For guidance documents, laboratorians may diverge and adapt differing processes. For SOPs, it’s important to follow the protocols step-by-step.
  • For de novo (new or unchartered) tests, laboratorians who are called to serve as expert witnesses must educate their advocate (typically the prosecutor) on the reasons for such testing.
  • As one instructor noted, “Whether or not we like it, we’re in a world where most people have grown up with television shows such as CSI and NCIS. Given the portrayal of scientific evidence in these and other shows, it is important to simplify messages and avoid the use of jargon when presenting scientific evidence to present to the jury.”

In addition to these valuable educational tips, participants gathered significant new information on presenting scientific evidence in a courtroom as well as the laws that govern these processes. Participants also discussed the significance of the Laboratory Response Network (LRN), the nation’s premier network for confirming agents of biological and chemical threats.  One participant noted that the standardization across the network, proficiency testing and widely used methodologies are all important contributors to ensure the reliability of scientific evidence.

The one-day training concluded with a tour of the ORC, with highlights including the laboratory training facilities, highly specialized vehicles for response and evidence collection, and the canine units.

Participants positively evaluated the training, noting that it was very useful ,and recommended more and longer courses for their colleagues in other public health laboratories. APHL extends sincere thanks to the course instructors: Paula Wulff, Anthony De Leon and Lisa Ference.

This Moot Court Expert Witness Training was supported via Cooperative Agreement funding from the Centers for Disease Control and Prevention (CDC), Division of Preparedness and Emerging Infections (DPEI), Laboratory Preparedness and Response Branch.

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