TECHNICAL WITNESSES ILEA ENVIRONMENTAL CRIMINAL PROSECUTIONS COURSE BANGKOK

TECHNICAL WITNESSES ILEA ENVIRONMENTAL CRIMINAL PROSECUTIONS COURSE BANGKOK, THAILAND - JUNE 2018

OUTLINE • TYPICAL CASES WE DEAL WITH • WHERE EXPERTS FIT IN • EFFECTIVE EXPERT TESTIMONY • PITFALLS

TECHNICAL WITNESSES ENVIRONMENTAL CASES OFTEN INVOLVE PEOPLE WITH SPECIALIZED SKILL AND/OR TECHNICAL EXPERTISE • INSPECTORS • SAMPLERS & ANALYSTS • CONSULTANTS AND CONTRACTORS • INDIVIDUALS WITH MANUFACTURING & TREATMENT PROCESS KNOWLEDGE • ELECTRONIC EVIDENCE SPECIALISTS • SCIENTISTS (E. G. , FOR WILDLIFE) • REGULATORS (E. G. , HAZARDOUS WASTE CHARACTERIZATION, TYPE OF ENDANGERED FLORA

TYPICAL TYPES OF POLLUTION CASES REQUIRING TECHNICAL WITNESS TESTIMONY

ILLEGAL DUMPING

WETLANDS

HAZARDOUS MATERIALS RELEASES AND WORKER ENDANGERMENT

ILLEGAL ASBESTOS REMOVAL

ILLEGAL DEMOLITION

TECHNICAL EXPERT WITNESSES • EXPERTS RENDER OPINIONS REQUIRING “SPECIALIZED KNOWLEDGE” • MAY BE NEEDED TO FILL GAPS OR DRAW CONCLUSIONS • WHAT METHODS ARE USED TO COLLECT AND ANALYZE DATA? • IS THE DATA REPRESENTATIVE? • CAN YOU EXTRAPOLATE FROM THE DATA? • DID THE CHARACTER OF THE POLLUTANT CHANGE OVER TIME AND DISTANCE OR IN COMBINATION WITH OTHER SUBSTANCES? • DID THE CONDUCT CAUSE RISK, HARM OR DAMAGE? • WHY IS THE DEFENDANT’S EXPERT WRONG? • WHAT ARE THE ERROR RATES FOR BOTH THE PROSECUTION AND DEFENSE METHODS?

SOME EXAMPLES OF HOW WE USE EXPERTS IN OUR CASES: • SITE CHARACTERIZATION • MATERIALS TESTING • “FINGERPRINT” ANALYSES FOR PETROLEUM • HAZARDOUS CHARACTERISTICS • CONCENTRATION ANALYSIS • GRAPHIC DISPLAY/TRIAL EXHIBITS

TECHNICAL FACT WITNESSES IN MANY CASES, TECHNICAL WITNESSES CAN BE TREATED AS FACT WITNESSES • THEY OBSERVED THINGS • THEY KNOW HOW THINGS WORK; THEY CAN EXPLAIN THINGS • THEY PERFORMED VARIOUS TASKS DURING IN THE INVESTIGATION

HOW DOES A FACT DIFFER FROM AN OPINION? • LEVEL OF CERTAINTY/ERROR RATE? • LEVEL OF PRECISION? • EMPIRICAL VERIFIABILITY? • REPEATABILITY? • GENERAL ACCEPTANCE BY THOSE IN THE FIELD? • CAN AN OPINION BECOME A FACT? • CAN SOMETHING BE A FACT AND AN OPINION? • CAN AN EXPRESSION OF VALUE BE A FACT? • IS A THEORY A FACT, OR AN OPINION?

“MARILYN MONROE WAS AN ACTRESS” VERSUS “MARILYN MONROE WAS A GOOD ACTRESS”

“DNA IS COMPOSED OF TWO NUCLEOTIDE STRINGS ARRAYED IN A HELICAL STRUCTURE” VERSUS “GENBANK OFFERS A RELIABLE REFERENCE DATABASE OF GENETIC INFORMATION”

HOW SHOULD A COURT EVALUATE WHETHER A PERSON IS AN EXPERT AND WHETHER HIS/HER TESTIMONY IS RELIABLE AND RELEVANT TO THE MATTER AT ISSUE? WHAT ARE THE SAFEGUARDS AGAINST ADVOCATES POSING AS EXPERTS?

HANDLING EXPERTS • FINDING AN EXPERT • PREPARING THE EXPERT • UNDERSTANDING THE STRENGTHS AND WEAKNESSES OF HIS/HER TESTIMONY • PREPARING THE EXPERT FOR CROSSEXAMINATION • QUALIFYING THE EXPERT

HANDLING EXPERTS • USING THE EXPERT • AFFIDAVITS & REPORTS • TRIAL TESTIMONY • CROSS-EXAMINATION OF DEFENSE EXPERTS • QUALIFICATIONS • BIAS / INCONSISTENT OPINIONS • FOUNDATION

QUALITIES OF A GOOD EXPERT • ABLE TO EXPLAIN DIFFICULT TOPICS, CONCEPTS, OR ISSUES IN MANNER THAT OTHERS CAN UNDERSTAND • ABLE TO EXPRESS OPINION WITH CERTAINTY AND WITHOUT HESITATION • AVAILABLE AND WILLING TO ASSIST WITH THE CASE • NO CONFLICTS OF INTEREST OR MAJOR BIASES • EXPERT RATHER THAN ADVOCATE

EFFECTIVE TESTIMONY REQUIRES: • HUMILITY AND CLARITY – E. G. , JOSH FROST • ACCURATE AND COMPLETE UNDERLYING INVESTIGATIVE OR FORENSIC REPORTING; • KNOWLEDGE OF THE COURT SYSTEM AND YOUR ROLE IN IT; • THOROUGH REVIEW OF THE RELEVANT FACTS AND ISSUES PRIOR TO TESTIMONY; • PREPARATION OF YOUR TESTIMONY WITH THE PROSECUTOR.

EFFECTIVE EXPERT TESTIMONY • PREPARATION FOR TESTIMONY BEGINS THE MOMENT YOU BEGIN WORK ON A PIECE OF EVIDENCE • EFFECTIVENESS OF AN EXPERT WITNESS IS RELATED TO: • HOW EXPERT HANDLES EVIDENCE (CHAIN OF CUSTODY) • HOW EXPERT PERFORMED THE ANALYSIS AND ADHERED TO ACCEPTED METHODS • CREDIBILITY IS ALWAYS AN ISSUE • EVERY WORD YOU WRITE ON A REPORT, NOTE, E-

PREPARE WITH PROSECUTOR • DIRECT EXAM QUESTIONS, EXHIBITS • ENSURE PROSECUTOR UNDERSTANDS THE SCIENCE AND PROCEDURES • DISCUSS POTENTIAL AREAS FOR CROSS EXAM, REBUTTAL

THE PROSECUTOR’S ROLE • MAY NEED MORE THAN A GENERAL UNDERSTANDING OF THE SCIENCE ASSOCIATED WITH THE VIOLATION OR TECHNOLOGY OF A CERTAIN OPERATIONAL SYSTEM • SHOULD ADEQUATELY UNDERSTAND SCIENTIFIC PRINCIPLES AND METHODOLOGIES (PARTICULARLY WHEN QUESTIONING DEFENSE EXPERTS)

THE PROSECUTOR’S ROLE • SHOULD ASK SPECIFIC QUESTIONS TO PROPERLY QUALIFY EXPERT AND UNDERSTAND POTENTIAL WEAKNESSES IN THE CASE • SHOULD MAKE NO ASSUMPTIONS ABOUT RELIABILITY OF SCIENTIFIC PROOF OR WITNESS EXPERTISE.

EXPERT SHOULD NOT BE CONCERNED WITH: • PROVING THEY ARE THE SMARTEST PERSON IN THE ROOM • THE GOVERNMENT’S THEORY OF THE CASE • WHY? BECAUSE YOU ARE THERE TO PRESENT AN OPINION BASED ON SCIENCE, NOT TO ADVOCATE FOR A SPECIFIC VERDICT OR FINDING. • IN OTHER WORDS, THE EXPERT’S ROLE 25 IS CONCERNED WITH PROCESS, NOT

GENERAL RULES TO RELAY TO EXPERTS FOR TESTIFYING: • TELL THE TRUTH AT ALL TIMES, EVEN IF THE ANSWER IS “I DON’T KNOW” OR “I DON’T RECALL” OR SOMETHING YOU THINK WILL “HURT” THE PROSECUTION’S CASE. • LTQ/ATQ: THINK ABOUT YOUR ANSWER • ANGER, FEAR, PRIDE WILL DEGRADE THE CLARITY OF YOUR COMMUNICATION;

COMMON AREAS FOR CROSS • CREDIBILITY. • INTERNET FOOTPRINT & SOCIAL MEDIA • HAVE YOUR OPINIONS EVER BEEN DISALLOWED • CONVICTIONS • “DIRT”

COMMON AREAS FOR CROSS • HYPOTHETICALS • LEARNED TREATISES • CONTENTS OF YOUR REPORT AND ASSUMPTIONS, ERROR RATES • CHAINS OF CUSTODY • “NON-DESTRUCTIVE” CROSSES

RULES FOR CROSSEXAMINATION • ALWAYS TELL THE TRUTH • NEVER LOSE YOUR COOL • ALWAYS TAKE TIME TO THINK ABOUT THE QUESTION BEFORE ANSWERING IT • NEVER GUESS AT AN ANSWER • NEVER GIVE IN AND ANSWER A QUESTION INCORRECTLY JUST TO LESSEN THE PAIN • ALWAYS REMEMBER THAT RE-DIRECT WILL PROBABLY COME AFTER CROSS-EXAM

TECHNICAL WITNESS TROUBLES • A SINGLE CASE MAY INVOLVE MULTIPLE TECHNICAL ISSUES, EACH REQUIRING DISTINCT TECHNICAL PROOF • THIS ADDS COMPLEXITY AND LENGTH TO THE INVESTIGATION AND PROSECUTION • COMPLEX TESTIMONY MAY CREATE INTERNAL INCONSISTENCIES AND PROVIDE THE DEFENSE WITH AVENUES OF ATTACK

TECHNICAL WITNESS TROUBLES • GOVERNMENT TECHNICAL WITNESSES MAY BE UNABLE TO EXPLAIN CONCEPTS IN LAYPERSON’S TERMS OR MAY BE RELUCTANT TO REDUCE SCIENCE TO LEGAL CERTAINTIES • THE DEFENDANT’S TECHNICAL WITNESSES MAY BE ADEPT AT INTERJECTING UNCERTAINTY • A “BATTLE OF EXPERTS” IS NEVER DESIRABLE • THE DEFENSE WILL ARGUE THAT COMPLEXITY EQUALS REASONABLE DOUBT

SUMMARY ADVICE • THINK AHEAD – ADDRESS TECHNICAL ISSUES EARLY DURING EVIDENCE GATHERING TO AVOID THE NEED FOR EXPERT TESTIMONY TO FILL EVIDENCE GAPS • CONSIDER YOUR EVIDENTIARY BURDEN WHEN DECIDING HOW TO CHARGE THE CASE • KEEP IT SIMPLE – THE JUDGE & JURY NEED TO BE ABLE TO UNDERSTAND THE EVIDENCE AND THE LAW