The CAC Code of Ethics discusses the role of the independent expert:
“D. Generally, the principle of "attorney-client" relationship is considered to apply to the work of a physical evidence consultant, except in a situation where a miscarriage of justice might occur. Justice should be the guiding principle.” While the term “justice” may imply fairness, today the term appears to emphasize following legal procedures1. From the ethical guidelines relating to “attorney-client”, the defense must be able to have "work product" to learn the validity or weakness of the prosecution's evidence/analytical results against their client without divulging that information to the prosecution. What a chill to the defense of an accused that the expert hired by the defense would be required to turn over all work that substantiates the prosecution position - it may be that the prosecution did not know that information originally. What is the obligation of the defense to help the prosecution prove its case against the accused and not defend their client? In this situation, if the defense expert wrote the report, depending on its contents, that may appear to thwart justice – itself an apparent ethical violation – since that report would be given to the prosecution harming and to be used against the defendant.
Referring to the CAC Code of Ethics again: “It is the duty of any person practicing the profession of criminalistics to serve the interests of justice to the best of his ability at all times.” By not writing a report and considering the analysis and results as work product for the defense (attorney-client privilege), the private criminalist appears to be adhering to the ethical guidelines of serving the interest of justice in the current system of justice. The accreditation guidelines appear to apply more to government laboratories and criminalists because the accreditation guidelines do not apparently consider the judicial concept of ‘attorney-client’ privilege for the defense. Hence, there appears to be a lapse in accreditation standards with ethical guidelines of the CAC (and probably all forensic science ethical guidelines) and that of the requirements of the judicial system to have a “fair trial” (procedural fairness insuring that certain rights of each party were protected)2 and not a “fact-finding trial” (where witness testimony and physical evidence is used to learn the truth of the event without advocacy.)
The prosecution has a “work product” exception to Brady discovery – not every conversation, memo, email, or other “work product” document is released to the defense or else the prosecution would have a difficult time trying a case as well.
If the defense expert were to take the witness stand at trial a report should be written and then the CAC Code relating to ethical aspects of court presentation is guiding: “G. It is not the object of the criminalist's appearance in court to present only that evidence which supports the view of the side to which he or she is employed. The criminalist has a moral obligation to see to it that the court understands the evidence as it exists and to present it in an impartial manner.” The criminalist would then be obligated to answer questions relating to their analysis and the results.
Based on the attorney-client relationship, the criminalist could create a miscarriage of justice by attempting to adhere to the following ethical guideline:
“C. It shall be regarded as ethical for one criminalist to re-examine evidence materials previously submitted to, or examined by, another. Where a difference of opinion arises, however, as to the significance of the evidence or to test results, it is in the interest of the profession that every effort be made by both analysts to resolve their conflict before the case goes to trial.” The release of certain information to the prosecution witness by the defense expert in order to “resolve their conflict” may hamper the defense in defending their client. Would this appear to some to be a miscarriage of justice?
This issue appears bigger than one profession's ethics, but something that would affect the entire judicial process and the ability of the defense to properly defend their client in the current judicial structure.
1) HILL, Gerald N.; HILL, Kathleen T. (2005) The Free Dictionary by Farlex – Justice.
Recovered Aug 5, 2011 from: http://legal-dictionary.thefreedictionary.com/justice
2) LANGFORD, IAN (2009). Fair Trial: The History of an Idea
Journal of Human Rights, 8:37–52, 2009
Recovered Aug 5, 2011 from:
http://www.tandfonline.com/doi/pdf/10.1080/14754830902765857
