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7.
The Ethics of Communicating Your Conclusions
You alone have the power to communicate the full import of your conclusions
to the trier of fact. Throughout a career, you will no doubt encounter oppo-
sition to achieving this goal from opposing counsel, from the court, and even
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Communicating Your Results — Where Science Meets the Law
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from your own attorney. Attorneys often lose sight of the fact that, although
their role is intended to be one of advocacy, the expert witness cannot be a
party to the advocacy. You may get tremendous pressure to testify to only
the part of your results that supports the attorney’s position, or to change
your wording subtly to something the attorney likes better because she can
more easily argue it to support the cause. As much as you feel obligated to
please the attorney for whom you are working, especially if she is paying you
a hefty fee, your primary obligation is to communicate the scientific truth.
Partial results aren’t truth if the missing piece would substantively temper
the conclusion. An example might be including a suspect as the source of
some bloodstains on a garment without mentioning that he is excluded from
other stains on the same garment. Intentionally providing results without
mentioning the relevant limitations is misleading at best, unethical at worst.
This is exemplified by the stereotypical example of stating that two hairs
“match” without mentioning that the discrimination power of this test is low
and the proportion of errors relatively high. This must be tempered with the
understanding that the expert can only answer questions that are put to her.
As frustrating as it is, all experts have had the experience of being stymied
either by opposing counsel, or even by their own attorney, from providing
the best answer to the question.
You take an oath to “tell the truth, the whole truth, and nothing but the
truth.” It is useful to remember that this really means the truth, which may
or may not be the same as any one person’s view of justice. You only have
control over what you say; you have no control over how either attorney uses
those words, or how the judge or jury interprets them. And sometimes, you
don’t even have complete control over what you are allowed to say.