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Friday, May 21, 2010

Grave Secrets: Bones Episode Begs Question: Can The Alleged Victim Of A Crime Testify As An Expert Witness?

I am a fan of the TV show "Bones." Back in 2008, I did a post about a real case in which Kathy Reichs, the forensic anthropologist who wrote the books which served as the inspiration for the TV show, testified as an expert witness and was subjected to scathing comments from the prosecutor. Well, I finally caught up to last week's episode of "Bones," and it dealt with an interesting evidentiary question: Can the alleged victim of a crime testify as an expert witness at the trial of the defendant for committing that crime? According to the show, the answer is "no." In courts across the United States, however, the answer is "yes."

In last week's episode, "The Boy with the Answer," infamous "Bones" villain The Gravedigger was finally facing trial based upon allegedly burying alive a young boy, FBI Special Agent Seeley Booth, Dr. Jack Hodgins, and Dr. Temperance "Bones" Brennan. The problem was that Brennan and Hodgins were the only experts qualified to offer expert testimony which could have incriminated the defendant in the crime, and the show explained that the alleged victim of a crime could not testify as an expert witness at the trial of the defendant for committing that crime. The show also explained that this created a problem with regard to Booth, who for some reason also had to provide expert testimony.

So, what could the trio do? Well, they had prosecutor Caroline Julian drop the charges against the Gravedigger for the acts committed against them so that the Gravedigger was only charged with burying the boy alive. Thus, they were allowed to testify at that trial, resulting in the Gravedigger's conviction.

In a real court of law, however, they wouldn't have needed to make that decision. Instead, courts across the country have reached the same conclusion as the Court of Appeals of Louisiana in State v. Searcy, 621 So.2s 83 (La.App. 2 Cir. 1993). In Searcy, Danny Searcy was charged with felony theft, and John North, a building contractor and the alleged victim of the theft, testified as an expert witness with regard to the value of the lumber allegedly stolen by Searcy. After he was convicted, Searcy appealed, claiming, inter alia, that as the alleged victim of the crime, North could not testify as an expert witness. The court disagreed, finding that

The defendant does not complain that North lacked sufficient qualifications to testify as an expert. Instead, he asserts that North's testimony about value was improper because North was not an impartial and unbiased witness. Defendant cites, and we have found, no statutory or jurisprudential authority to support a per se prohibition against the testimony of a crime victim as an expert in the trial of the crime in which he was victimized.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/05/i-am-a-fan-of-the-tv-show-bonesback-in-2008-i-dida-post-about-a-real-case-in-which-kathy-reichs-the-forensic-anthropologis.html

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