Can Neglecting to Consult Expert Witnesses Leave You Vulnerable? Attorney Patrick Barone Weighs In

78724325Drunk driving is one of the most challenging areas of criminal defense because the defense of drinking drivers nearly always involves scientific evidence. When death or serious injury is involved, additional expertise in traffic reconstruction is necessary. Understanding this evidence is crucial, and so is finding and using appropriately qualified expert witnesses.

Expert Witnesses Considered Vital for Effective Counsel

Not only is it necessary from a practical standpoint, but a failure to do so can make you liable for an ineffective assistance of counsel claim. In fact, a recent United States Supreme Court found that a failure to retain competent and qualified expert witnesses to rebut the prosecutor’s case falls below the Strickland v. Washington, 466 U. S. 668 (1984), standard. The name of this case is Hinton v. Alabama, 571 U. S. ____ (2014), and in this case the court specifically held that:

“it was unreasonable for Hinton’s lawyer to fail to seek additional funds to hire [a forensic] expert where that failure was based not on any strategic choice but on a mistaken belief that available funding was capped at $1,000.”

This concern for lack of obtaining additional funds to retain qualified expert assistance was based on the court’s review of “one study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases.” Melendez-Diaz v. Massachusetts, 557 U. S. 305, 319 (2009) (citing Garrett & Neufeld, Invalid Forensic Science Testi­mony and Wrongful Convictions, 95 Va. L. Rev. 1, 14 (2009)). The court therefore concluded that “[t]his threat is minimized when the defense re­tains a competent expert to counter the testimony of the prosecution’s expert witnesses; it is maximized when the defense instead fails to understand the resources available to it by law.”

How to Best Use Expert Witnesses


Drunk driving cases almost always involve forensic and/or scientific evidence of some kind. In my book Defending Drinking Drivers, I address the proper and effective use of expert witnesses in such cases. This topic is addressed in several different chapters, including Chapter 6, which is devoted entirely to effective advocacy in drunk driving trials. Use of expert witnesses is also addressed in Chapter 3, which covers pretrial preparation.

In handling any drunk driving case, be sure that you have obtained and consulted with the best available expert witnesses. A few of the common areas where the use of experts can assist the accused in a drunk driving case include infrared spectroscopy, gas chromatography, mass spectroscopy, accident reconstruction and field sobriety testing.

Prior to consulting with your experts, it is also essential that you familiarize yourself with the forensic evidence involved. Chapter 2 of Defending Drinking Drivers is entirely devoted to the scientific evidence you will typically find in a drunk driving case.

A proper understanding of the scientific evidence involved along with the proper use of expert witnesses will assure that your representation in the defense of drinking drivers will always meet the highest ethical standards.