What is the Role of an Expert Witness in a Washington Criminal Case?

It might seem like a no-brainer to say but if you are facing criminal charges you will want to seriously consider any and all advice given to you by your defense attorney. Of course if something doesn’t make sense you will want to ask questions but deliberate over the answer given. Remember that there are years of legal experience going into any advice given and that is why you got a defense attorney in the first place. One area in which defendants sometimes choose not to take their defense attorney’s advice is when it comes to accepting the testimony or consultation of an expert witness.

You may be wondering, “Why would anyone refuse to do that?” It is because expert witnesses are not free. Sometimes their fees can get up into the thousands of dollars. Perhaps, in your case, an expert witness would be a good idea. If so, you will be presented with the idea and the potential cost by your defense attorney. At that point, and probably due to the cost, you may think about turning down the idea too. So, it is a good idea to know what an expert witness can potentially do for you.

One thing they can do for you is provide information for your defense attorney. Your defense attorney is an expert on the law – that is why you will want to consider carefully all he says about your case. However, that does not mean he is also an expert in medicine, toxicology, mechanics, or any other specialized field. If he is seeking the information from an expert witness it means that your defense attorney believes the information could be useful. If he thinks so, it is well worth thinking about.

Can Expert Witnesses Testify on Your Behalf?

They can testify on your behalf. Let’s say the expert witness does give some information that would be very helpful to you. Your defense attorney can mention it in his opening or closing. But he can not take the stand and testify for you. The prosecution may also be bringing their own expert witness. Your defense attorney can use another expert witness to show that the prosecutorial interpretation of the facts is not the only possible interpretation. This can work very well. In fact, sometimes the expert will give a pre-trial summary of their findings and what they plan on testifying. Your defense attorney can bring this to the attention of the prosecution. It has been known to happen that cases have been dismissed or charges reduced simply due to the statements and potential testimony of expert witnesses. Wouldn’t that be a relief? This is just one more reason to seriously consider the suggestion if your defense attorney recommends using an expert witness.

They may also be able to conduct experiments that may help either in trial or even before the trial to throw doubt upon the prosecution’s evidence or even to provide some of your own. Another thing they may be able to provide you is references to other witnesses in case they may not be always available or if you need an expert in another field.

So, yes, the use of an expert witness may cost you more. You may very well be unable to afford the extra expense; you would be the best judge of that. But if your defense attorney is recommending an expert witness he does have a reason and it is for your benefit. Listen to his reasons and consider very carefully what the expert can do for you.

Expert Witnesses in DUI Cases

In Washington, in order to convict a person of driving while under the influence of alcohol, the State must offer evidence sufficient to establish guilt beyond a reasonable doubt. While the State can use circumstantial evidence to meet this burden, it cannot rely on speculative or misleading evidence, as discussed in a recent Washington DUI ruling. If you are charged with driving under the influence of alcohol, you should talk to a Tacoma DUI defense attorney to determine what evidence the State may attempt to use against you.

They are also able to give further help when evaluating the merits of your case and possible success of defense strategies. For example if you’ve been charged with DUI your defense attorney may want to consult with an expert witness to see if there is any scientific way to question the result of any test you may have been given. That’s just one example – in a homicide case he may suggest a DNA expert or in a forgery case he may recommend a handwriting specialist. This expert would then be able to analyze the evidence and give their expert help on developing the defense strategy.

Can the Prosecution Use Expert Witnesses?

The short answer is yes.

Can the Prosecutor’s Expert Witness Testify be Thrown Out?

Yes; in fact, a recent case highlights when and how this can happen:

In a recent case, it was reported that police officers responded to a 911 call reporting a stationary vehicle in the middle of a residential road. Upon arrival, the officers observed the vehicle stopped in the southbound lane with its engine running, headlights and taillights on, and the transmission in drive. The defendant was found asleep in the driver’s seat with his feet on the floorboard. After waking the defendant by knocking on his window, the officers detected the smell of alcohol, observed slurred speech, and noticed other signs of impairment. The defendant failed several field sobriety tests and was arrested for DUI.

Reportedly, a subsequent blood test revealed the defendant had a BAC of 0.076 percent. The State charged the defendant with DUI, operating a vehicle without a functioning ignition interlock device, and driving while his license was revoked. The jury convicted the defendant on the charges related to the ignition interlock device and driving with a revoked license but did not reach a unanimous verdict on the DUI charge. Instead, they found the defendant guilty of the lesser included offense of being in actual physical control of a vehicle while under the influence. The defendant was sentenced within the standard range and subsequently challenged his conviction.

In his challenge, the defendant argued, in part, that the trial court abused its discretion by allowing the toxicologist to testify about the average alcohol metabolization rate in the general population and the AMA’s recommendation to lower the per se BAC limit to 0.05 percent. The court agreed that the trial court erred in admitting this testimony.

Specifically, it held that the testimony about the general population’s alcohol metabolization rate was speculative because it did not account for the defendant’s specific metabolization rate or other relevant factors, making it irrelevant to whether the defendant was impaired at the time of the incident.

The court also found that the toxicologist’s reference to the AMA’s recommended lower BAC limit was irrelevant and potentially misleading, as the defendant was not charged under the per se BAC prong of the DUI statute, which would have required a BAC of 0.08 percent or higher. The court noted that the State strategically introduced this inadmissible evidence, attempting to suggest to the jury that the defendant’s BAC could have been above the legal limit at the time of driving, which was not directly relevant to the charge of being under the influence.

The court ultimately ruled that the aforementioned errors were harmless, however, and did not affect the outcome of the trial. As a result, the court upheld the defendant’s conviction.

The court goes on to discuss that the defense attorney did not raise implicit, institutional and unconscious bias in its motion to suppress.  If the defense had done so, likely the court would have determined that the defendant was “in custody” when boxed in by police vehicles.  As such, he was entitled to have his Miranda Rights read to him before answer questions.  Because his defense attorney did not raise this issue, the defendant’s incriminating statements were used against him and contributed to the conviction by the jury, and the appelate court’s decision to uphold the conviction.

Conclusion

As with any decision of this magnitude you will want to consider the advice of your Pierce County / Tacoma defense attorney and you are more than welcome to ask as many clarifying questions as you want. We will get you your best result possible. Call Smith & White, PLLC – the first consultation is free.