At some point, can an experienced expert witness be so famous, so popular, and so suave and entertaining on the witness stand that it actually impedes a defendant's right to a fair trial?
A moment of humor can be a welcome respite from a tense trial on a violent murder. But it is recognized that injecting levity into a trial may create a scintillating and relaxed atmcosphere that may adversely influence the jury's perception of the significance of the evidence.
Dr. Henry Lee is a television personality. Dr. Lee is the highest paid forensic scientist on the planet. He is very widely known as a “star in the investigation field” who has played a role in many of America’s most high-profile cases and who has his very own cable television program, Trace Evidence: From the Case Files of Dr. Henry Lee. He is a regular feature on all cable TV news programs, especially Larry King Live and all the other true crime programming that dominates cable news. He is a also frequent guest at various murder trials across the country, and he was invited by the prosecution to "testify" in The State of Ohio v. Gerald Robinson.
Dr. Lee will testify on any matter, for anyone, his most famous testimony coming in the O.J. Simpson case. “Fingerprint examiners think I'm a fingerprint examiner. Blood spatter experts think I'm a blood spatter expert. DNA people think I'm a DNA expert,” he says.
Defense counsel can hardly object to sensationalized entertainment as evidence without risking disapproval by the court or jurors, especially where the witness is a popular celebrity called to the stand not to offer real evidence but to perform for the jurors. That's not to say that Dr. Lee is bought, or he is wrong -- it simply makes him un-cross-examinable, to coin a phrase. How do you cross-examine someone like Dr. Henry Lee, the most famous forensic expert in the country?
From Court TV’s coverage of Father Robinson’s case:
Because of his reputation, Lee was the most anticipated witness in the trial.
Jurors watched intently as Lee pulled an oversize magnifying glass from his briefcase and inspected police photos. "You never know when you're going to be called to a crime scene and you can't carry a microscope with you," he joked to the jurors, who chuckled.
A lawyer for Robinson spent less than five minutes cross-examining Lee, including offering him a hearty welcome to northwestern Ohio.
"It's a lovely area. I like Toledo very much," Lee replied, smiling at jurors who beamed back at him.
Dr. Lee likes to say that “I approach them [the jurors] in a logical way to present scientific facts—only the facts.”
But the reality is that Henry Lee is not someone you just "call" to the stand. Dr. Lee makes jurors beam at him – smile radiantly at him. Part of the charm comes from years on the witness stand in front of hundreds, maybe thousands of jurors.
Dr. Lee drinks water that's been colored red (or ketchup) and spits it out of his mouth in front of jurors to demonstrate what "blood spatter" means, as though anyone over five needs such a graphic illustration to get it. Dr. Lee’s “testimony” kills with kindness any defense effort to cross-examine this popular witness who may be great on TV but is of questionable fairness in a court of law engaged in the trial of a man for murder.
There is no legitimate reason for Dr. Lee to bring a prop in his pocket, the magnifying glass. He has already examined the photos and knows what they contain in order to form any opinions. But this man, often referred to as “the modern-day Sherlock Holmes,” pulls out a Sherlock Holmes magnifying glass. Examining photos in front of the jury is an opportunity to crack a corny joke, and it entertains the jury. And it makes the cross-examination a minefield for defense counsel.
Less than five minutes of cross-examination of this expert who made such an impression on the jury was inadequate, and Father Robinson's lawyers might have otherwise explored at length the critical fact that Dr. Lee actually disagreed with and undermined the prosecution's only other bloodstain expert - the woman who links the letter-opener owned by Father Robinson to the bloodstains left at the crime scene.
From Court TV:
"I cannot come here to tell you this pattern is produced exactly like this," Lee said holding the medallion [on the letter-opener] out to jurors with one hand and gesturing toward a projection screen showing an enlargement of the stain. "All I can say is 'similar to.'"
Strange, for, according to the prosecutor, the bloodstain "matched" the letter-opener. Dr. Lee, a prosecution witness, would only say it was "similar to."
Once again, the State of Ohio is proven to have selected carefully from among the various theories and witnesses that it presented itself in the murder trial of Father Robinson. If Dr. Lee didn't support the State of Ohio's bloodstain evidence, why was he called to testify?
Yeah, I bet by the time the jurors stopped laughing and beaming, they forgot, too.