Expert Witness (10 page)
Anyway, imagine if you will, the arrival of a letter through the post at work saying,
The Crown in the case of R v Bloggs has
indicated it does not accept the report of Dr Sandiford. He
[yet one example of many assumptions by someone who hasn't read my statement and seen that my name is Anna, not Andrew]
will therefore be required to attend court to give evidence at 9.30 a.m. on 7 April.
It was the first letter of its type I'd ever seen (i.e. one with my name on it), it was to be the first time I would give evidence in court and it was a scary thing. I tried not to let it show.
Where was I going to have to go to give evidence? Maybe Bristol. That way I could stay with family the night before and not have to worry about being late or trying to find the court. No such luck. It was Crawley. Where the hell is Crawley? The only thing close to Crawley I knew was a fallen angel called Crowley in Terry Pratchett and Neil Gaiman's book
Good Omens
, who had invented the M25 London Orbital Motorway as a way of calling the Son of the Devil onto Earth during Armageddon. The suggestion that the M25 is a design of Beelzebub is not an unreasonable one in my opinion and probably the opinion of several million other people from around the world, having spent many, many,
many
hours stationary in the outside lane near Heathrow. Given the state of the English motorway system, I decided not to chance it and got the train instead.
At that time, the use of drug trace evidence in the courts was still being thrashed out and this case didn't look to be any different. For two weeks I trekked up and down to Crawley, to sit in court, advise the barrister, listen to possibly relevant testimony, make notes and generally get used to the court environment. More than once I met the barrister on the Tube and every time she insisted on calling me Alison,
even though my name is Anna. Even the barrister for the Crown knew my name, but not my own instructing counsel. Was it arrogance, rudeness or just lack of seeing the wood for the trees? I don't know but it did start to irritate me after the first week.
In terms of actually giving evidence, luckily for me, the judge decided that he wanted the drug trace findings to be tested through a voir dire, which is essentially a trial within a trial. The jury was released for the day and the evidence was heard by the judge alone so that he could decide whether or not it was admissible. This for me was the ideal situation because it meant I got to have a dry run at it before having to give evidence in front of a real, live jury. The judge wasn't bothered about niceties; he just wanted to hear the gist of what each expert was going to say.
I was, at that time, seven months' pregnant and let me say that I did not carry pregnancy well. None of the lovely maternal glow for me. It was more of a lank, pale look of permanent tiredness. The prosecution expert on the other hand was style personified. Here we were then with me looking lank and peaky and the prosecution expert looking resplendent and perky.
I don't remember much about actually giving evidence in either the voir dire or the trial proper, only that I was glad when it was over. We were all standing outside the court room afterwards and the Crown barrister asked me when my baby was due, and do you know what? My own instructing barrister hadn't even noticed I was pregnant.
Courts are usually fairly civilised in their treatment of expert witnesses. Sure, there are discrepancies when you're at court as a âdefence' expert. For example, you're not provided with the same comfort facilities as the Crown witnesses. In England and Wales, the inner sanctum is called the Witness Services private room where Crown witnesses get free tea and coffee, a paper to read and, more importantly, a heater and an indication of what's happening with the case. The Witness Services room also houses the police officers and they know what's going on because at least one of them is allowed in the court room, regardless of what's happening in there. Most witnesses aren't allowed in court until they actually give evidence, just so that they don't align their account of events with any previous witnesses.
Generally speaking, it's not too much of a problem being without the prosecution expert's additional comfort benefits, except where there is a high risk of being in close contact with a defendant or their family, friends or, in some cases, enemies. Even then, it's usually possible to avoid any physical or verbal contact if you wear your best âI'm a lawyer and I'm not
your
lawyer' face.
On more than one occasion, security guards have had to separate opposing factions in a case. There was one memorable occasion where the main defence witness was a man who had previously been the defendant's best friend. Unfortunately, between the date of giving statements to the police and the date of the court appearance the defendant and his âbest mate' had a monumental falling out, which resulted in the witness/former best mate refusing to go to court to give evidence. The court had to issue a warrant for the former best mate's
arrest, which made the defendant very agitated, especially when he saw the police car heading off down the road with its blues and twos (blue lights on top of the car and two-tone siren) going and three burly police officers squashed in the back. Forty minutes later the police car returned with three burly police officers plus a bedraggled-looking man who had been forcefully removed from both his shower and his house in order to give evidence for a man he described as a rather unpleasant chap (or four letter words to that effect). The case went downhill from there from the defendant's point of view, although it hadn't been looking too good beforehand. It was a bonus spectator sport for the people standing around the court foyer waiting for their cases to be called â it's not often you see a half-naked, soaking wet bloke being dragged through a court by police officers.
I was once required to attend court in a case involving drug traces on bank notes. I knew the other expert, we got on well, he realised the limitations of his evidence and, even better, he was prepared to acknowledge them on the stand â saved me a lot of time, effort and grief and there was no need for a distracting mud-slinging match about how much should or shouldn't be read into the scientific findings. He was there for the Crown and I was there for the defence. When we first walked in that morning, there was a large contingent of armed police manning the entry doors, the metal detectors, the court room doors and the toilets, which in itself was unusual. I saw the Crown's expert approaching and behind him a scuffle breaking out between heavily armed police and some of the supporters of whoever was being prosecuted. At this point, my Crown counterpart saw what was happening, legged it up the
stairs two at a time and into the Witness Services room â I swear I could hear the door bang behind him, probably as he leaned his entire body weight against it from the other side. Maybe I didn't hear that â perhaps it was just the pounding of fear behind my eyeballs as more firearms appeared and the scuffling and yelling increased. I couldn't even run to the toilet â remember, armed police in the way. No one was shot, though, which was good.
There are exceptions to the no-niceties-for-the-defence-expert rule, of course. I was allowed to watch TV in the security guard's office at a court once because they knew the defendant, they knew there wasn't a chance he'd appear at the appointed time (or ever) and the heating was broken in the main waiting room. They were right â he never showed. Just as well really, because if I gave evidence (even though I was there at the instructions of his solicitor) it would have crucified him, he would not have been allowed to pass Go and he would not have been allowed to collect $200.
A very nice lady at one particular court used to make me a cup of tea when I went there, mostly because I always seemed to be pregnant but also because the tea from the vending machine looked like brown wee â probably tasted like it too. Why do they make the tea like that? Surely, it's not good for business, or do they know they've got a captive market? No one dares leave the building once they enter, just in case their case is called and a warrant for their arrest is issued in their absence.
Sorry your Worships, I was just getting a cuppa â the tea here looks like brown wee
probably won't wash as an excuse.
Â
Having said the court experience is usually OK, I've seen
some pretty bad treatment of experts and some pretty bad behaviour on the part of court staff; these are exceptions (I hope) so there's no need to think these things happen all the time. It's just that when they do, they really stand out.
In one case, for example, the defendant was visibly upset during one part of the Crown's case where graphic photographs of the deceased were shown to the court. The jury asked for the defendant to be provided with a box of tissues. During one of the breaks when the defendant and the jury were out of the court, a member of the court staff slammed a box of tissues down on the table where the defendant would be seated and said in front of some members of the media,
âThese are for Mr fucking Bloggs.'
Unprofessional at the very least, regardless of what he may have thought. I guess it's a function of working in courts all the time; law of averages says that court staff see some pretty bad stuff and bad people but keeping a professional lid on personal opinion is vital.
On another occasion I was one of three expert witnesses at court giving evidence for the defence. One of us was only part way through giving his evidence when the court was adjourned. When this happens, the person giving evidence mustn't discuss anything to do with the case with anyone. We all left the court room and asked our colleague if he would like a drink. As he walked towards us to tell us he'd like a tea with sugar, he was physically restrained by a police officer and shoved into a back office. It was overkill and insulting.
I've had my fair share of unwarranted scowling and hostility from police officers but most of them ask me the same question. How can you do the work that gets these scumbags/criminals/thieves/[insert expletives] off? The answer of course is that I
don't. That's not my job and that's not what it's all about. It's not my job to have an opinion on whether a person is guilty or not guilty, so most of the time I don't think about it. I don't usually know the whole picture so I can't make an informed decision. Occasionally, I've had a case that has penetrated the thick wall I've developed over the years, but thankfully those are few and far between.
Whenever I give evidence I sit outside court so that I know what is happening and when I'll be required. Some times, I advise other witnesses (whether they're part of my case or not) on what to expect when giving evidence; for defence lay witnesses there's some times no one else there outside the court room, they've forgotten what the barrister told them and they have no idea what it's all about. Unfortunately, the
CSI
effect kicks in and they think it's going to be like it is on the telly.
On the basis of having attended court hundreds of times and having given evidence on many of those occasions, I have established my own set of rules.
1 Be 100 per cent happy with what you are going to be saying before you go into court. Confidence is key.
2 You will often be asked a question that requires a simple yes or no answer. You know the answer is not as simple. You know the person asking the question also knows that and they know you know that they know. So don't just answer yes or no. Shift the answer around so you put your proviso in first and finish off with either yes or no. This allows you to present the information the
court needs in order to be properly informed and make its decision based on the relevant information. If you open with a yes or no then counsel has got the answer they want, they'll cut you off as you speak and they'll move past the point. You will have lost the opportunity to clarify. On that point, don't rely on your side to be able to come back and fix it up or give you a chance to clarify; they may either have been thinking about some thing else or they may miss the point of what your clarification will add to their case â you're the witness, not them.
3 If there is a jury, don't have lingering eye contact with anyone on it.
4 When giving evidence, always direct your answer to the trier of fact, which will usually be either a judge or jury. As a witness you're there for the benefit of the court so your answers should be addressed to the court. It's a useful tactic because you can use it to break problematic or aggressive overtones when being cross-examined. If you think about it, most fights break out as the result of over-extended eye contact (usually between alpha males). If you believe the old story, looking an angry dog in the eye will get you savaged. It's the same with opposing legal counsel.
5 Always be serious. Court is a serious place. Everyone else is taking it seriously, so should you. After all, we're here to decide some thing that will affect people for the
rest of their lives. What an expert does at court must therefore be beyond reproach. The trier of fact has the ultimate decision to make and it must be the right and correct decision. If the wrong decision is made for whatever reason, the expert needs to be sure that their part at least was right and correct.
6 Ensure you are very clear about whether or not you have been released from your duty and are free to go. This is particularly relevant if the court takes a break. In England, court starts in the morning, runs until the lunch break and then runs until the end of play, which basically means two sessions of court time. In New Zealand, court starts in the morning, has a break for morning tea, runs until lunch time, has a lunch break, runs until afternoon tea then finishes up a bit later on, resulting in essentially four sessions. It's more civilised in that you know a break will be along soon but it also means you need to be alert about your status when a break starts â are you required to come back afterwards or have they finished with you?
     One particular court occasion springs to mind in which I had given my main evidence, I'd been cross-examined by the other side and been re-examined by my barrister. I'd even answered questions from the judge. Lunch time came along and I was stood down. It was a little unclear from what was said but I assumed I'd been released, so I went over the road and settled into a café. Two o'clock rolled around and I was having lunch and a chat with some friends. Next thing I know
I get a phone call from the court asking, very politely, where the hell was I, the court's waiting for my return! Shit! Your worst nightmare as an expert â the court's waiting, it's raining outside, you have to go back for more and you've allowed your brain to think about some thing other than this case.
     Well, all I can say is that the looks on the jurors' faces said it all as I puffed back up to the witness box with my hair awry and damp. And all they did was ask me to read two lines of evidence from earlier in the trial.
     Be warned. Life as an expert witness is not glam and the court experience is a curly one.
