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b.
Preparing with Your Attorney Client
One of the most important and least-recognized roles the analyst must play
is that of educator. To take our continuing paradigm one step farther, you
can perform the most brilliant analysis, and write the most articulate report,
but if the attorney who is examining you hasn’t a clue what to ask, the whole
exercise may turn out to be futile. Unfortunately, quality time with the
attorney is the first thing to go in the crunch of preparing for trial. We cannot
emphasize enough how critical it is that the attorney understand the full
import of your results and how they fit into the case, and that you understand
how the attorney plans to use your testimony. This is the time to clarify to
the attorney the limitations that must be placed on your conclusions, and to
discuss the scope of your testimony. Having this discussion prior to your
examination on the witness stand can prevent an enormous amount of
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Principles and Practice of Criminalistics
frustration for everyone, and advance the testimony in a much more effective
and efficient manner.
Attorneys on both sides of the bar, with a few exceptions, usually have
to be dragged kicking and screaming into a discussion of the nitty-gritty of
scientific evidence. After all, as they so often remind us, many of them became
attorneys in direct response to the realization that they were about to flunk
chemistry. Nevertheless, it is up to you to make sure your client, be that a
prosecutor or defense attorney, understands both the general ideas behind
the test procedure and the details of the evidence in the case.
In one DNA admissibility hearing, the scientist’s failure to educate the
prosecution team was in large part responsible for a rejection of the motion.
The analyst simply couldn’t be bothered to sit down with the prosecution
team and instruct them in the particular procedures he had used and explain
potential vulnerabilities they might face in their bid to introduce the testing
at trial. The attorneys, working under the mistaken impression that DNA
was a shoo-in, were not ready for an exceptionally aggressive and well-
prepared defense team. In the wake of the court decision, they were still left
wondering what went wrong. Although a number of factors contributed to
this particular fiasco, the analyst’s dereliction of his obligation to educate
and prepare his clients for trial was a major determinant.
One of the common misconceptions that you will constantly battle is the
idea that science can provide irrefutable facts. While the law makes clear
distinctions between guilt and innocence, attorneys are often frustrated with
our inability or unwillingness to commit to an unqualified conclusion. To
their mind, testimony from experts includes too many instances of “could,”
“might,” and “possibly.” Sometimes attorneys think that if we can give opin-
ion testimony, we always should; after all, we are the expert. However, because
science is a process of constantly updating knowledge, the most we can do
is offer our best explanation of the moment that remains unrefuted and to
articulate our assumptions.
It is frequently useful to prepare a list of questions that the attorney can
use as a road map to elicit the information from you that you together have
decided convey the essence of your conclusion. You must be clear about what
you are willing to say and especially what you are 
 
not
willing to say. There
should be no surprises during direct examination; there is enough opportu-
nity for that during cross-examination. The use of exhibits should not be
overlooked. Oversized charts and illustrations can be enormously helpful in
assisting you to summarize the results. They provide a visual focus, especially
for a jury, and seeing and hearing the same information simultaneously
increases the chances that the jury will understand and retain your testimony.
Finally, we have found it helpful to provide the court reporter with a glossary
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291
of technical terms. Interruptions to the testimony to ask for spelling clarifi-
cations are fewer and the final transcript is more accurate. Remember, the
more you can simplify your testimony, while still retaining a reasonable
degree of accuracy, the better chance you have to communicate the import
of your conclusions.