TheWildlife Forensic Expert: A Prosecutor’s Perspective

Environmental Crimes Section Environment and Natural Resources Division, U.S. Department of Justice We use forensic experts in wildlife cases for: Class characterization/species i.d. Individualization Necropsy/cause of death Toolmarks/bullet-gun matching Graphic display/trial exhibits Serology Wildlife cases are different from other criminal cases -No victim to testify or “represent” in court -Wildlife law is usually outside comfort zone of judges and general prosecutors - “Harm” issues are different from human cases: Why care about a smuggled snake? Or an electrocuted hawk? Or an oiled duck? Or a shot wolf? -How do I retain credibility in court as a prosecutor of wildlife cases? Purpose of this discussion Provide some insight into how wildlife crime prosecutors view these cases; Charging decisions How the process works The specific evidence rules concerning expert testimony How you can make your forensic witness an effective witness First, a few questions: Is the witness an advocate or a conduit for accurate findings/science? Is your forensic witness’s analysis affected by any bias? What type of witness are you dealing with? e.g., Research scientist vs. Law Enforcement vs. Forensic Scientist? • Best practices? • Error rates? • Accreditation? Chain of Custody Issues are Paramount in Forensics…

“Crime scene to courtroom:” unbroken, provable chain of possession for fungible items. Objective is to prove the thing in the courtroom is the same thing that was collected at the crime scene and same thing that was tested. Weak or broken chain of custody may prevent admission of evidence and your analysis, or create doubt. Short, tight chains are best Common wildlife case proof elements - Species identification - Violation of underlying law - Matching illegal wildlife to site of origin or site of kill - Circumstantial evidence? Direct? - Wildlife market value Expert testimony? Facts of case? Other? -Mens rea - Number of individuals The objectives of a criminal trial For the prosecution: To meet its burden of proving the defendant’s guilt beyond the applicable legal standard by highlighting relevant, admissible evidence in a manner that is understandable to the trier of fact (Judge or Jury); promote fairness. For the defense: To prevent the prosecution from meeting its burden of proof. In U.S. System, no burden of proving “innocence.” Proof comes only from evidence.

Four types of evidence: Testimonial • Relates facts or, in special instances, opinions • Also used to establish foundation for other types of evidence Documentary (including photos/video) Physical Demonstrative • Clarifies one of the preceding types, but is not evidence itself; e.g. charts, graphs, summaries, diagrams Two categories of witnesses: Lay witness Agent, citizen, anyone offering factual testimony about what they have perceived or done Ordinarily cannot offer an opinion Expert witness Specialized knowledge based on skill, experience, training, or education Can offer opinion testimony, if allowed by the Court. The main difference between an “expert” witness and a “lay” witness is that an expert is allowed to offer opinion testimony 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? Daubert standard

Scientific evidence must be derived from the scientific method, and have a valid scientific connection to the pertinent inquiry. Trial judge must make preliminary determination. “General observations” (non-exclusive factors): Is the theory or technique empirically verifiable? Has it been subject to peer review and publication? What is the known or potential rate of error, and what standards exist (and were followed) for controlling the operation? Is it generally accepted in the relevant field (Frye)? Daubert Review Witness must be qualified as an expert Testimony must be based on reliable principles and methods Principles and methods must have been applied reliably And relevant United Kingdom Purpose: Helps the judge and jury test the conclusion’s accuracy Expert Qualifications: Special field where the court cannot form an opinion Admissibility of Evidence: Evidence that convinces the judge the opinions are well founded Conduct of Witness: Duties and ethics override loyalty from whom witnesses are instructed /paid Depositions: Judge examines evidence Israel Purpose: Helps trier of fact understand the evidence Expert Qualifications: Specialized formal education Admissibility of Evidence: Frye Standard, then Daubert Standard Two part model: • Internal examination: court evaluates reliability (evidence content and conclusion’s relation to literature/research methods) • External evaluation: if evidence passes internal, court examines the evidence as it relates to presented material according to rules of law (relevance) Depositions: Judges rule on admissibility and veracity evidence (no jury system used) Australia Expert Qualifications: Special knowledge (training, study, or experience) Admissibility of Evidence (witness establishes): Field of expertise (relevant opinion) Qualified expert Common Knowledge Rule approaches: • Traditional: excludes opinions within ordinary experience (inflexible) • Functional: evidence helps the fact-finders and exposes illogicality of the traditional approach (flexible) Conduct of Witness: Opinions on observations of the 5 senses Depositions: In writing to be considered by the opponent Canada

Expert Qualifications: Skill, knowledge, experience, ed Evidence: Mohan Test: • 1. Issue relevance; assists the trier of fact; absence of an exclusionary rule; qualified expert • 2. Trial judge exercises discretion (balances risk and benefits) Conduct of Witness: Independent and unbiased Depositions: Judge determines if expert is able /willing to carry out the duty Depositions are uncommon before the courts Cross-examination under oath in front of judge U.S. Practice: Gov’t files notice of intent to use expert testimony well in advance of trial; Gov’t produces expert’s resume and lab reports that are the basis for the proposed opinion testimony Gov’t makes evidence available for testing by defense expert (if requested) If defendant files motion to exclude the testimony/evidence Pre-trial hearing before judge (aka “Daubert” hearing): • Proposed expert testifies; briefing by both parties Judge decides admissibility; • But does not declare or certify the witness an “expert” • full examination again at trial; jury can still reject Jury Are Instructed Thus:

“You have heard testimony from a person who, because of education or experience, is permitted to state opinions and the reason for his/her opinion.

Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’s education and experience, the reasons given for the opinion, and all other evidence in the case.” Our Job: Ask the the questions that allow the witness to effectively and dispassionately describe the technique or science

A forensic expert called by the government is not part of the “prosecution team” The forensic expert is not an advocate for conviction. S/he is an advocate for good science explained clearly in the courtroom. Expert Testimony Is Successful When:

It is clear and credible; It is admitted by the judge, based on the applicable rules of evidence; It results in the factfinder’s trust in the expert’s opinion; It results in the factfinder’s reliance on the expert’s opinion when evaluating evidence. Effective Testimony Requires:

Accurate and complete underlying investigative or forensic reporting; Informing your witness on the court system and his/her role in it; Thorough review of the relevant facts and issues by the witness prior to testimony; Preparation of witness’s testimony, including understanding the evidence. Clarity Preparation Communication Pacing/Avoidance of jargon

Credibility – Judged solely by factfinder Preparation Confidence Start Early

Preparation for a forensic witness’s testimony begins the moment s/he begins working on a piece of evidence Effectiveness as witness is related to: How evidence handled How witness performed analysis How clearly the witness communicates what they know Pre-trial: Help your witness help you Assume the defense has all report(s), notes and all e-mails… what holes can the witness point out to you? Review all Point out any errors to you The witness should be prepared to explain discrepancies or mistakes at trial Prepare with Witness

• Direct exam questions, exhibits • Ensure that you understand the science and/or procedures • Discuss potential areas for cross exam, rebuttal Don’t concern your witness with: The government’s theory of the case Why? Because the forensic witness should present an opinion based on science or accurate process, not based on advocating for a specific verdict or finding. In other words, the forensic witness’s role should be concerned with process, not outcome. The more the witness knows about the prosecution’s case theory, the more he or she become subject to bias challenges by the defense. 28 Prepare Your Witness for the Courtroom

Your experiences with other witnesses Testifying may be grueling… How will this affect testimony? Stress test

29 General Rules For Testifying:

Tell the witness to take her/his time Anger, fear, pride will degrade the clarity of a witness’s communication; Tell the truth at all times, even if the answer is “I don’t know” or “I don’t recall” or something the witness thinks will “hurt” the prosecution’s case. Direct Exam

Ask open-ended questions (if this is required in your jurisdiction) Elicit specific testimony necessary to prove elements of crime Authenticate/introduce exhibits Prepare your witness to explain:

Professional qualifications; Theories and methods you used to conduct your analysis; Rejected theories and methods and why; Opinion(s) formed and on what fact(s) it is based; In language understandable by a smart teenager, if jury, or a reasonably smart adult, if judge. Prepare Your Witness for Cross- Examination Leading questions by defense counsel The question suggests the answer Usually a “Yes” or “No” Cross exam is almost always uncomfortable for the witness. Thank you!