Expert Witnesses

The concept of expertise is one that seems to go unquestioned, but perhaps should be scrutinized more closely. Surely, there are people who are truly "experts," meaning they are the cream of the crop in their industry through their experience, education, intelligence, research, etc. However, there are also many people who are experts in name only, meaning they have some sort of degree or title, or are popular among their peers, but they would not fare well if rated truly objectively. Everyone has heard of people going to multiple doctors who miss a diagnosis, only to get that 4th or 5th opinion from the best in the field who accurately diagnose the problem.

Where this intersects with the law is in the form of expert testimony, where both sides have experts who look at the same facts and come to competing conclusions based on those facts. In the criminal context, most of the time, the government's experts are State employees who testify for the prosecution. These can be the police, State toxicologists, State psychologists, and the like. After many discussions and interviews with these expert witnesses, I have come to this startling conclusion: experts are just people.

As people, experts are prone to mistakes, ego, peer pressure, influence, and everything else that you and I are subject to. For instance, if one psychologist is consulted to critique the report of another psychologist in the same community, they may be more hesitant to contradict that first psychologist.

The more serious issue is where the State gets in the business of agreeing with itself. The police suggest suggest intoxication in a DUI case, they take a blood sample, and they send it to the Washington State Patrol Toxicology Laboratory. If the name isn't clear, this is a laboratory that is run by the police.

The government running a lab is not inherently good or bad, but a State-run lab is certainly not held to any higher standards than any other laboratory: https://shiftwa.org/another-scandal-brewing-this-time-at-state-patrol/, https://www.seattletimes.com/nation-world/state-crime-lab-chief-to-resign/, https://www.seattletimes.com/nation-world/toxicologists-wash-history-may-taint-calif-cases/.

Thus, in these situations, to overcome potential problems, the State's experts are mainly looking to confirm each other's suspicions. Again, this is not to say that anyone is falsifying results, but a test is more likely to be run again if it were to show no substances in the blood versus finding something in the blood when the police says they suspect the person is on something. And there have been cases where tests have even been run on the same blood multiple times, yielding different results. There are many explanations as to why, some legitimate and some not, but those are beyond the scope of this article.

There is also a large amount of bias in terms of what studies and what science these experts are relying on. If a government organization pushes certain science as truer than other science, and they are in charge of hiring and firing, you can bet that eventually everyone in that organization is going to have the same beliefs. This is compounded if the organization runs their own trainings that they mandate for their employees.

This is dangerous because science is not about simply agreeing with your peers or other branches of your agency. It is about rigor. The more rigor the better. Rigor normally comes in the form of doubting and testing. Someone says there is a mystical force pushing everything centrally downward, you test the theory until it becomes a law. Modern science is now saying eggs are good for you one week and bad for you another. A lack of rigor leads to cherry-picking studies and even looking for things that are "statistically significant" and using those results for conclusions which are technically true, but practically insignificant or conclusions that cannot be replicated.

What does this mean if you are accused of something like a drug DUI and you are not taking anything except your prescription heart medication? Well, it means that you could be convicted.

If the police say you were acting weird, you were involved in a car accident (even though it wasn't your fault), and you had an attitude with them, they may arrest you and get your blood through a warrant. The toxicology lab will run your blood sample and find some substance and then they can piece it all together to try an say the drug appreciably affected your ability to drive, thus making you guilty of DUI. Your blood results may even come back with a substance or substances that you did not take.

It is incumbent on you to hire not only a lawyer, but also to get an expert of your own to confront the State's expert and State's science. While there are certainly people out there driving on drugs who are guilty of DUI, there are many who are not and who do not have the resources to put forth the defense they deserve. However, there is virtually nothing about these situations where the results are bad and an emphasis (and sometimes funding) based off "good" results, i.e. convictions.