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MAKING YOUR OPINION MATTER


April 15, 2015
By Wayne K. Jeffery

Those called to give expert or opinion testimony in court must be impartial û and always seen to be impartial. Although usually called by the Crown, their expertise is also available to the defence. An expert is like a hired-gun in a ‘B’ western û their opinion is based on professional, scientific and observable facts which don’t change and aren’t affected by the party which calls them to court. An expert does not choose who their opinion harms or helps.

In the courtroom context, an expert is a witness who has acquired special or particular knowledge about a specific area through study, experience, reviewing scientific works and/or practical observation. They are allowed to give an opinion in court about evidence û the speed of a vehicle, for example, or the physical condition of an individual who may have been impaired.

A drug expert seeks to be qualified to state their opinion in relation to one or more of the following issues:

<>Personal use or possession for the purpose of trafficking
<>Prices and packaging
<>Methods of use
<>Trafficking methods
<>Production and importing methods
<>Structure of organized crime groups
<>Criminal financial structure
<>Money laundering methods

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Once an expert has obtained the required experience and specialized knowledge from courses, training and working in the field, they prepare a curriculum vitae (CV), which counsel reviews to determine if, and to what extent, to accept or challenge their opinion. The CV is the story of your life û knowledge and experience relevant to the area of expertise under consideration. It sets out education, training and experience and includes a statement as to the final level of formal education, an outline of relevant court experience, articles published and training presentations given.

You normally begin with basic biographical data, work experience, postings and training. Our preferred method is to start with the oldest and move forward in time to show the growth in experience and training.

An individual may be capable of being qualified in more than one area, and may have several different forms of a CV, each aimed at a specific or limited area of expertise. A drug expert, for example, would list operational undercover training, drug investigative techniques, drug recognition expert, clandestine lab investigators, surveillance proceeds of crime and human source (informant) management courses.

Ongoing seminars, lectures and workshops conducted or led by recognized subject matter experts and important work experience should also be listed if appropriate. These may deal with specific drugs or problems such as ‘dial-a-dope’, grow-ops and clan-labs. Take advantage of any opportunity to further your training or assist in presenting a seminar or workshop û and list it on your CV.

Seek out and read or review any scientific or professional literature that has some bearing on your chosen fields û and don’t limit yourself to ‘police professional’ articles. Include counter culture articles and magazines and don’t forget or ignore the Internet (bearing in mind the reliability or lack thereof). Particular articles that you believe to be relevant should be copied and held for reference as you continuously read, search and update your knowledge base.

Bear in mind that, while we and the courts call it a ‘will-say,’ the term is not a truly appropriate description. A will say is a factual description of an investigators’ observations or involvement, but what you are really preparing is a statement of your opinion and its basis.

The fundamental step is to lay out a basis for your opinion û the facts you rely upon. This simple statement should list any and all circumstances, facts, documents and exhibits that you have had or sought access to. Your opinion must be based on admissible evidence that will be presented, or that you expect to be presented, to the court. This will include:

<>The report to Crown counsel (RTCC), including any statements made by the accused and a review of investigator notes, including observations of the accused and the circumstances of the arrest or search
<>Exhibit reports
<>Photographs of the exhibits and search
<>Certificates of analysis

If you met with the investigators or have personal knowledge of some of the facts or defendants in question, this must be acknowledged. Your statement in a given case should set out the specific facts, observations, exhibits, photographs or other items that have a specific bearing and directly impact your opinion. You should briefly review any other exhibits, information or items that have relevance to your opinion. Specifically note items that could contradict your opinion and explain why it still stands.

Also explain your interpretation of the exhibits and any documents, such as score sheets, production or manufacturing outline/grow schedules and, where possible, relate to specific photographs to demonstrate your point.

{Testifying in court}

Always bear in mind that your attendance as an independent expert separates you from the investigators; you should always be prepared to consider and comment on defense theories. Be prepared to either adjust or defend your opinion in the face of spirited questioning by a defense motivated counsel. You must know the case and evidence very well; if you are not sure of something, research it before appearing in court.

Always appear professional û it is not enough to come to court prepared to explain, defend or justify your opinion; you must also show respect for the court and the process.

One of the toughest problems police witnesses or experts face is how to respond to questions that you don’t know the answer to. The question is often asked in a manner that clearly implies you should know the answer, but no one can know everything. You must be prepared to say “I don’t know.”

Here’s a few simple rules for expert witnesses:

ò Crown should identify you as the expert to be called in the case and request the court allow you to sit in and listen to the evidence provided by the investigators. Ensure that your opinion is supported by the admitted evidence
ò Crown counsel has a limited ability to lead or induce you to answer. In that situation, you should begin your evidence with an explanation and flow seamlessly into presenting your opinion
ò Keep your opinion within your experience
ò Keep the answers reasonably short to allow the Crown to gently direct you. Crown counsel is making an entire case and may reinforce other elements not adequately explained by the investigators
ò Candidly explain your opinion and the facts supporting it
ò Keep your written opinion in front of you to ensure that you cover all elements
ò You are interpreting the evidence based on your experience and knowledge, not making the case
ò Never underestimate the ability of any counsel to see the trees and miss the forest. Ensure you present your basic opinion early in your evidence
ò Listen to and ensure that you understand the question during cross examination or while defending your opinion. If you don’t understand or if there is more than one question, ask for an explanation or which question you should answer. Remember that you are impartial
ò If you understand the question, then answer it, not the question that you think should have been asked. Sometimes a stupid question deserves a stupid or direct answer
ò If there is a series of questions, don’t answer the next question in the sequence until it is asked
ò Don’t ramble. Once you have answered a question, wait for the next. Don’t assume that because you would ask another question, someone else will or should

When possible, try to stay in court for the decision and sentencing. It will provide you with an opportunity to hear the judge’s comments regarding your evidence and his/her opinion of your presentation. It also indicates to the court that you are interested in following the matter through to a conclusion. As well, if there is a conviction, it will ensure that the court is aware that all parties are interested in the outcome.

The court’s opinion of your presentation of evidence will become part of your experience and help you to better understand the process. Consider this in future preparation and presentations, but do not tailor your evidence to some perceived ‘good’ or ‘proper’ result.

The RCMP provides the necessary information and specific training for this type of qualification as part of the “E” Division Drug Experts Course and in similar training within other divisions. It’s also offered by municipal police forces.

<<< BIO >>>

(Previously-published article May 2005)

About the authors:

Wayne K Jeffery; B.Sc .(Pharm), M.Sc (Pharm) is former section head, Toxicology Services at the RCMP’s Vancouver forensic laboratory and now a toxicology and drug consultant.

Sgt. Darrel V. Gyorfi works in the RCMP E Division human source unit in Vancouver.

Stephen G. Price; BA, LLB, is a standing agent for the federal attorney general and a former constable with the RCMP K Division.


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