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Making or breaking a case with expert witnesses

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Most real-life expert witnesses don't lead lives that are quite as edgy and exciting as their Hollywood counterparts depicted in the TV show "CSI" and its many clones. But they often play a central role in helping both prosecutors and defenders prove their cases.

"Expert witnesses have been absolutely critical in the cases we've handled," said Jan Stiglitz, a California Western School of Law professor and co-director of the California Innocence Project. "Most have been DNA cases, as have most exonerated cases handled by innocence projects around the country. Without an expert to do testing and prepare results, you don't have anything to present to court."

Founded in 1999, the California Innocence Project is a non-profit program based at California Western School of Law. The program enables law professors and students to work to free convicted prisoners who maintain their innocence.

To date, the California Innocence Project has been responsible for freeing four wrongfully convicted prisoners. In the case of John Stoll, convicted of child molestation in 1985, testimony from expert witnesses other than DNA experts was essential to attorneys' and students' ability to win their case. Stoll served 20 years in prison when he was convicted in one of a series of infamous sex-ring prosecutions that took place in Kern County California in the mid-1980s.

"In the John Stoll case, we used an expert witness who was a clinical psychologist who testified to the suggestibility of children and explained how improper questioning could plant false memories," explained Stiglitz. "The children eventually recanted their testimony as adults. But this alone wasn't enough to secure a reversal of the conviction. Without the expert witness, the judge wouldn't have understood why they recanted and could have just assumed they weren't telling the truth now. The expert explained why they testified wrongly 20 years ago."

The California Innocence Project dramatically illustrates the power of expert witness testimony in determining the outcome of a case. But according to Bryan Burnett, an expert in gunshot residue who has been involved in numerous criminal cases, including the recent murder trial of actor Robert Blake, it's not always easy to present some types of evidence in a way that's precise or compelling enough to convince a jury.

"The issues surrounding gunshot residue are complex," said Burnett, who uses a sophisticated microscope called a Scanning Electron Microscope and other technology to analyze minute particles for gunshot residue. "Not all physical evidence can be presented as a statistical number. It's not like 'CSI'."

In fact, the popular TV show has received criticism from some expert witnesses in criminal cases who believe jurors that watch "CSI" have misconceptions about just how precisely physical evidence such as gunshot residue can be presented.

Some have even coined a phrase for the phenomenon-"the 'CSI' effect." In a transcript of a recent presentation, "GSR in the Robert Blake Case -- Lessons Learned," high-profile gunshot residue expert Steve Dowell -- who provided expert testimony for the prosecution in the Robert Blake murder trial -- alluded to "the 'CSI' effect" and the role it may have played in the case.

According to Dowell, seven of the 12 jurors watched "CSI" and expected the trial to "be more CSI-like," a fact he found significant and that could have implications for future criminal trials.

Expert witnesses also help both plaintiffs and defendants in a wide array of civil cases.

Bob Buckley, a civil attorney, says expert witnesses who can effectively educate a jury on subjects that are outside the average juror's realm of knowledge are essential to his ability to successfully represent clients. And while hiring the right expert witnesses can sometimes be expensive, it's worth the cost when they make the difference between winning or losing cases involving significant money.

"I've had expert witnesses who have won a case for me," he said. "I was involved in a case where the plaintiff was claiming extensive injuries from a car accident. We were ready to settle for $400,000. But I had an orthopedic surgeon testify who was so convincing at showing how the injuries could be faked that we ended up winning it and paying nothing."

Jack Debes, vice president of the San Diego Forensics Consultants Association, is an expert witness for civil cases, who specializes in biomechanics, biomaterials and accident reconstruction. Debes works for John Fiske Brown Associates Inc., a forensic science and engineering consulting firm based in Solana Beach. The company offers expert witness services for accident reconstruction, product liability and injury causation analysis, primarily for cases involving insurance companies.

"Much of our work is done through reports and depositions," said Debes, who has a Ph.D. in engineering. "Less than 10 percent of the cases we're involved in end up as far as the courtroom -- most cases settle after depositions are taken."

Debes finds being an expert witness rewarding because each case is like a little mystery to solve and no two cases are ever the same. He also enjoys the teaching aspect of the job and has previous teaching experience.

"In presenting to a jury, I often look at the members as students trying to learn everything they can about a case," he explained. "Part of my job is to educate them so they can make an informed decision and, hopefully, the right decision."

O'Donnell is a San Diego-based freelance writer.

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