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  • 02/10/2011 10:00 AM
    Message # 519815
    Anonymous member (Administrator)
    Thanks!
  • 02/10/2011 2:27 PM
    Reply # 520020 on 519815
    Richard Grzybowski

    Excellent document. I only have two comments:

    1. Reports and Testimony should be separated into two distinct areas. There are differences in what should always be stated as the  basis for the final reported conclusion (opinion) and what is testified to in the court of law as a result of questioning by either party. Reports could not possibly contain everything that is generally solicited by the adversaries during the course of a trial and, therefore, they should completely and sufficiently state the true results of scientific analysis.

    Expert witness testimony is usually much broader and its implications should have additional safequards against misintepretation, misguided conclusions and untrustworthiness.

    2. In Section 4.2.4 determination of what is "legally relevant" should be left to legal profession although forensic scientists should ensure that their clients can properly interpret reported scientific facts.

  • 02/10/2011 5:10 PM
    Reply # 520116 on 519815
    John Thornton
    The code draft defines a forensic scientist as, among other qualifications, as someone who will "testify in a court of law as an expert witness in forensic science," and specifically includes anyone "consult, advise, research, or teach in forensic science." (sic), and then goes on to demand certification in order to testify.

      Research?  Advising?  Teaching?  Consulting?  How would you enforce this?  The foremost expert in wood anatomy in this solar system is a professor in the Department of Forestry at UC Berkeley.  Would you want to exclude him from taking the stand in a case involving the identification of a wood splinter?  And settle for not just the second best, but in all probability the 999th best person to address the jury?

    The code does not countenance the capable expert who doesn't think of himself or herself as a forensic scientist, but nevertheless has credentials that a court is likely to accept -- perhaps the wood anatomist that I have used here as an example, or a diesel mechanic, or an accountant, or the community college teacher that had a group of students do a sterling research project.  It's pretty lame to say, "well, they are excluded because they aren't really forensic scientists."  But they are if the definition of a forensic scientist is as the draft states, someone who will testify in a court of law as an expert witness.

    I'm all in favor of certification.  But I believe it would be a mistake for the CAC to back something where we would ultimately get beaten down on it.
  • 02/10/2011 9:24 PM
    Reply # 520183 on 520116
    Peter Barnett
    John Thornton wrote: The code draft defines a forensic scientist as, among other qualifications, as someone who will "testify in a court of law as an expert witness in forensic science," and specifically includes anyone "consult, advise, research, or teach in forensic science." (sic), and then goes on to demand certification in order to testify.

      Research?  Advising?  Teaching?  Consulting?  How would you enforce this?  The foremost expert in wood anatomy in this solar system is a professor in the Department of Forestry at UC Berkeley.  Would you want to exclude him from taking the stand in a case involving the identification of a wood splinter?  And settle for not just the second best, but in all probability the 999th best person to address the jury?

    The code does not countenance the capable expert who doesn't think of himself or herself as a forensic scientist, but nevertheless has credentials that a court is likely to accept -- perhaps the wood anatomist that I have used here as an example, or a diesel mechanic, or an accountant, or the community college teacher that had a group of students do a sterling research project.  It's pretty lame to say, "well, they are excluded because they aren't really forensic scientists."  But they are if the definition of a forensic scientist is as the draft states, someone who will testify in a court of law as an expert witness.

    I'm all in favor of certification.  But I believe it would be a mistake for the CAC to back something where we would ultimately get beaten down on it.
    As usual, very cogent comments.  This document was written specifically in response to the  NAS mandate which applies to anyone from an institution (even UC) who gets Federal funds.  Maybe they didn't get the consequences of their language - but maybe they did. I don't know.
  • 02/11/2011 8:53 AM
    Reply # 520420 on 519815
    John Thornton
    In looking over what I had written yesterday, and Pete's comment, it occurred to me that there is perhaps an easy way out, by tweaking the language just a bit.  We want forensic scientists to be certified, but clearly courts are going to allow testimony from non-forensic scientists with a niche of expertise.  Suppose we defined forensic scientists as people who "routinely testify in a court of law as an expert witness?"

    The NAS is pushing certification, and in various venues there is increasing discussion of having certification as a necessary license to testify.  It's fair to ask to what extent this will find resonance within our profession.  There are, after all, a significant number of CAC members that are not ABC certified, and despite numerous opportunities to be tested, have not sought certification.
  • 02/11/2011 2:24 PM
    Reply # 520678 on 519815
    Laurie O

    Just wanted to point out a missing word on page 2 of 5.  Near the bottom of the page, it reads "... evaluation by all who a legal right to them" instead of "evaluation by all who have a legal right to them".

  • 02/15/2011 9:05 AM
    Reply # 522562 on 519815
    Michael C. McMahon

    California Evidence Code section 801 governs the admissibility of expert opinion in California courts.  It is the same for civil, criminal, and special proceedings.  The code treats forensic science experts exactly the same as any other expert and has never been amended in any respect.  I suspect this true of most other jurisdictions.  Any Code of Professional Conduct should acknowlege that these evidence laws set the bar very low for qualifying a person to testify to an expert opinion and that it is the express purpose of the CPC to promote a significantly higher standard for forensic experts, above and beyond what is generally required by law.  An uncertified forensic expert may testify, but his or her lack of certification and violation of the CPC should be a fair topic for impeachment on cross-examination. The CPC could state that the forensic science community encourages the impeachment of uncertified experts as fair and significant commentary on the weight to be afforded an opinion from an uncertified witness.

    Anything more would require legislative amendments which are unlikely and probably innapropriate.

    Michael C. McMahon

    Stare Bar Certified Specilaist in Criminal and Appellate Law. (SBN #71909)

     

                  

  • 02/15/2011 10:33 AM
    Reply # 522644 on 519815
    Todd Weller
    I re-raise my concern that I raised in the first draft of this document.  My concern is similar to John's, in that the document may be casting the "forensic scientist" net too far, and will incorporate non-forensic scientists under this code of conduct. 

    The document defines "forensic scientists" as individuals who: "...Recognize, preserve, collect, examine, or analyze evidence".  

    Every police officer is, at some point, tasked with recognizing, preserving and collecting evidence.  I think there could be unintended consequences if we mistakingly incorporate law enforcement officers (or crime scene techs?) into the realm of a "forensic scientist".  

    Why not change the wording to:
    "Recognize, preserve, collect, examine and analyze evidence".  Doesn't this get at the heart of forensic science: providing expert opinions on analysis?  
  • 02/16/2011 3:34 PM
    Reply # 523499 on 519815
    anonymous

    I agree with Weller's and Thornton's wording changes.  Tweak the wording please.

    Kudos to Laurie for catching a missed word!

    I am going to keep re-reading the document over, to see what else is out there.

    Thanks.

     

  • 02/17/2011 7:43 AM
    Reply # 523766 on 519815
    Anonymous

    Thank you to all who have contributed to this document.  It is very much appreciated.

    Nothing to add at this point, except that this is another minor error at the end of the second paragraph on page 2: "New developments should be presented to the profession. In order to continually improve the profession. Research and training should be encouraged."

    Were the last two sentences meant to be one sentence?

    Thanks.

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