Sometimes, ethics demands that you seek out opposing counsel before trial to make sure they are aware of a particular weakness in the evidence.
The crime was attempted arson. An ex-boyfriend had squirted lighter fluid along several feet of the exterior of his ex-girlfriend’s frame house. He used a propane barbecue lighter to set it afire. It scorched and blistered the paint but did not catch the wood siding afire. The lighter and the lighter fluid container were recovered at the scene.
Among the items submitted for fingerprinting were the lighter, the torn packaging it was believed to have come in, and the lighter fluid container. I did not develop any prints on the lighter or the lighter fluid container, but I did get one off the packaging. I identified it as having been made by the suspect.
The trouble was that in the crime scene and supplement reports, the packaging for the propane barbecue lighter was not mentioned. That made me suspicious and I looked through all of the case documentation.
I found packaging for a propane lighter listed in the search warrant return from a search of the suspect’s apartment. The packaging was recovered from the kitchen trash can at the suspect’s residence, not at the crime scene where the rest of the evidence had been recovered. The packaging was for the same brand as the lighter from the scene, but it was a common brand. There was no evidence connecting the packaging from the suspect’s apartment trash to the lighter recovered at the scene of the attempted arson.
I was subpoenaed to testify to the fingerprint on the lighter packaging. I remember thinking that the prosecutor and police were going to try and leave the jury with the impression that the packaging was tied directly to the lighter recovered from the crime scene. I could not have walked away from the trial in good conscience if I had participated in a scheme to impart that false impression to the court.
When I showed up for trial, I watched for the defense attorney and, on seeing him approach the courtroom, I approached and introduced myself. I explained that if the prosecutor did not bring out the location from which the packaging had been recovered, he might want to ask me on cross examination what the various reports had documented as its source.
It is incumbent on forensic scientists to make sure that the court is informed of both the strengths and the weaknesses of the evidence. In most cases, those weaknesses are evident in the reports. But when they are not, the forensic scientist has the obligation to make it known.
I don’t remember the testimony or the outcome of the trial. But I have never regretted seeking out opposing counsel to alert him to a possible scheme of deception.
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NOTE to criminal defense attorneys: I am always happy to discuss your fingerprint cases at no charge and discuss my fee for examining the evidence.