“Mr. Wertheim, the court is not concerned with the truth. The court is only concerned with facts. And anything I can prove to the court becomes a fact whether it is the truth or not.” So said the defense attorney.
I had volunteered to be the expert fingerprint witness in a mock trial at the Annual Educational Conference of the California State Division of the International Association for Identification one year in the mid-1990’s. The defense attorney invited to participate was himself a former latent print examiner. If any lawyer knew how to rip into a prosecution fingerprint witness, it was this guy.
I took a case I had testified to previously, including traditional charted enlargements. I took copies of my notes and for both the prosecution and defense attorneys.
The “prosecutor” for the mock trial was from the District Attorney’s office. I had a good “pretrial interview” with him and another latent print examiner was going to sit with him in the mock trial to help him prepare his questions for re-direct.
The mock trial prosecutor led me through my standard questions and I presented my charted enlargements to the “jury” of twelve conference attendees selected for the occasion. Then the defense attorney got up to cross examine me.
If he had met the evidence straight on, I knew I could have parried every challenge. And that’s the way cross examination started. But then he took off with every misleading trick question in the book, demanding yes or no answers, using words with several possible definitions, then misinterpreting my answer in his next question and drawing inferences that were blatantly false.
Of course, it was all for show and I held up well, I thought. I love a strong attack by opposing counsel, but I had never had that degree of misleading attack so outrageously designed to confuse the jury in real court. Still, this was a mock trial staged for training purposes to demonstrate to the attendees how one witness – me – would deal with a strong attack in court.
At the end of the trial, we opened the session up to questions from the audience for any of the cast members of the mock trial. After the audience questions were through, I directed a question at our defense attorney. How, I asked him, could he ethically twist the meaning of my testimony into something that was clearly not the truth?
His response, verbatim as closely as I can remember it, was, “Mr. Wertheim, the court is not concerned with the truth. The court is only concerned with facts. And anything I can prove to the court becomes a fact whether it is the truth or not.”
I think that pretty clearly demonstrates the difference between the ethical obligations of a forensic scientist sworn to tell the truth and an attorney out to prove the facts of the case at trial. Not all attorneys will distort a witness’s testimony as drastically as that attorney did in that mock trial, but I’ve had a few who tried – both prosecution and defense attorneys.