The JFK Files and the Expert Witness

Introduction

Most of us will be familiar to some extent, of the events of November 2nd 1963 on Deeley Plaza in Dallas, USA. In short, the sitting President of the USA was assassinated by a snipers bullet or by multiple snipers bullets. The new President of the USA has ordered the release of secret files which may finally lay to rest many theories and many more obfuscations.

There is a lesson in what happened that day for all of us who act as expert witnesses.

Until the Zapruder cine film was released to the public by the press, the official line was a single sniper/single bullet fired from a Book Depository window by a disaffected ex serviceman called Lee Harvey Oswald.

The official enquiry had argued that there was a single bullet, but when various tv coverage, photos and cine films showed extensive damage, the authorities circled their wagons around the official report and came up with the magic bullet theory. This single round travel around bouncing from direction to another, from one person to another. That this theory was ludicrous and did not explain the forensic evidence of human damage seemed not to matter for decades.

This is what happened, believe it, you can trust us, and get on with your life.

Lessons

We are by circumstance obliged to be forensic experts, we look back to understand what happened, we rarely witness the errors, failures or defaults we are asked to explain or measure. We are the public of Dallas without the Zapruder film.

We are left to recreate the circumstances, like Oliver Stone in his film JFK. To do so we need to look at the evidence, weigh the witness of fact statements and arrive at the most likely explanation of events, given our experience of similar events, events we did witness in one way or another.

We are not theoreticians we are analysts who propose solutions based on fact, based on what is perceived as the truth.

In the USA in November 1963, things happened that changed history and our perception of reality, as well as affecting our reliance on statements made by government appointees.

Don't Jump to conclusions, walk ever so slowly towards them.

Within a few hours, on scant evidence, Lee Harvey Oswald was declared guilty and was himself assassinated before he could defend himself. Thereafter, possibly regretting the haste adopted in reaching a conclusion, the authorities were obliged to fit the errant fact to their stated theory. A situation perpetuated for decades after.

I have seen the same situation arise in expert witness situations, an expert has previewed the evidence, listened to their client and has reached a conclusion. Thereafter, their problem replicated that affecting the US Government appointees, how do we fit the facts to my conclusion without looking ridiculous.

Can we sell the idea of a magic bullet and retain our credibility?

Judges and Tribunals are, at worst, well educated and bright, at best they are brilliant. They are not the average gullible citizen who patriotically accept what they are told and then fight for its acceptance.

Our duty is to examine ALL of the available evidence, even contradictory evidence, like a shot came from the grassy knoll, and see if it is credible. We gather all evidence, we correlate it, we rank it for reliability/reasonableness/actuality and then we explain it all. We explain the evidence the evidence we rely upon and the evidence we reject.

It is often this analysis that influence the decision maker rather than our final opinion. How well di the expert do in gathering and analysing, is a question frequently asked.

Do not disregard witness evidence lightly.

As you can imagine, no fewer than seven doctors saw, helped or attended the dying President. Each saw for themselves the nature of the wounds and reached the conclusion that the damage was caused by more than one bullet, at least two bullets from different directions in fact. Some gave evidence in the various hearings but there views were disregarded or explained away by outlandish theories about bullet travel. These witnesses had one common evidential point to make, there was more than one shooter. Yet here we are decades late with people still arguing that seven doctors were wrong.

I was giving evidence in a hearing a year or so ago and, as a QS, I offered two very different evaluations relating to the inserting of inserts onto piperacks. The first evaluation came from the Contractor who used the bill of quantities to value the work that in his opinion that must have been carried out, he was careful to note that he had not seen the work carried out but here was a measure based on the resulting installation and valued by the bill of quantities.

The second evaluation came very late in the day, after the exchange of expert reports from a witness who had been working abroad and was only now offering a witness statement. He conceded that the inserts were added later but he said that he was there and had witnessed the work. He explained that a very efficient short cut method was adopted that amounted to just ten percent of the effort assumed by the bill of quantities method.

One member of the panel was extremely hostile towards me when I was questioned on the value of the shortcut method. I think he believed I was cheating. I pointed out that I had no preferred outcome and had agreed both valuations and that the Tribunal could choose based on the witness evidence. There, in the hearing he perhaps unwisely, explained that one method was based on billed rates and measures, whereas one was based purely on ad-hoc time records and he knew which he preferred.

I agreed that the measure of presumed work done was methodical, intricate and in compliance with RICS notes, but I argued that this was a witness of fact issue. If you believed one you could apply his theoretical measure, if you believed the other you had to accept his cost evaluation.

As experts we treat witness evidence the same as all other evidence, we analyse it for reliability/reasonableness/actuality. We must not reject witness evidence because it does not fit our case, only because it is in some way less credible than it should be.

Hidden Motives.

We are all motivated by one thing or another, loyalty, money, status, acceptance, fame, love etc. In 1963, and thereafter, there were many good and well meaning people who arrived at conclusions the very opposite of those espoused by other well-meaning people. All based on the same events.

As expert witnesses we have to be constantly aware of these prejudices, because that is how they are conveyed in real life. We do owe loyalty to our clients, our loyalty should be to find the truth of the matter and help them to understand their risks in proceeding with the case as presented.

We do not tie, money or reward to our outcomes for obvious reasons but the same should be true of status and acceptance. "Do this one thing for us and you'll be our favoured supplier of services!" is something we should not hear, even if it is spoken.

Conclusion.

If people in high positions, people of power can be swayed by public opinion or by political pressure to accept the untrue, than we could also fall prey to the temptation. We cannot and must not deviate from our true call, ever. To do so once is to cast away the trust and loyalty of our clients and instructing lawyers.

Once a reputation is impugned it is difficult for that person to regain their former status, and this industry is replete with examples of people who have had to move away to distance themselves from an error of judgement.

Be fair, be honest and be the best expert you can be. It will sometime be very hard but this profession never was an easy choice.

Jeffery Whitfield LLB FRICS MCIArb is a testifying expert and a Director at Rimkus.