R.
James Seffrin and Christopher J. Seffrin Jersey
Infrared Consultants
P.O. Box 39
Burlington, NJ 08016
609-386-1281
Presented at IR/INFO '99 Las Vegas, Nevada
Abstract
For years
infrared thermography has been utilized for predictive and
preventive maintenance. Thermography is increasingly being
used to provide legal documentation. This paper will discuss
the general aspects of preparing for and delivering expert
witness testimony in which infrared thermography will be introduced
as evidence. The topics that will be discussed will include
proper documentation, preparation, and the thermographers
role as an expert witness.
Introduction
Over the past two decades infrared thermography
has been used as documentation in criminal as well as civil
cases. Courts have accepted thermography as evidence used
to prove or disprove claims by opposing parties.
Infrared imaging for legal documentation
has been commonly used in civil courts for medical cases involving
spinal injuries. In these cases infrared thermography has
been used to document warmer areas of the body associated
with injury and pain.
Criminal courts have also seen their share
of infrared imaging. Law enforcement investigators have utilized
infrared imagery to help obtain search warrants. These cases
are not without controversy as some contend that this use
of infrared imaging is a violation of individual privacy.
Over the past decade thermography has been
introduced in commercial and industrial civil cases to document
failures or to disprove a party's claim that a particular
system or component has failed. Due to its graphic nature,
thermography can make for compelling evidence. Before thermographic
evidence is presented in a case it must be properly collected
and documented. It is then the role of a thermographer to
provide testimony in the role of an expert witness so that
the documentation can be entered into evidence.
The
Expert Witness
Due to their experience and qualifications
in some special field, and expert witness is someone whose
statements and opinions are accepted in a legal proceeding.
Because they possess special skills and knowledge, expert
witnesses are usually paid for their time and efforts by the
clients for whom they work.
While television and films tend to dramatize
the role of experts, the truth is that expert witnessing is
often far less glamorous. The experts role is to document
conditions that he observed and subsequently present these
findings along with his opinions and interpretations in legal
settings.
A talented expert must be multifaceted: he
must be well-trained, he must be a competent investigator,
he must be able to document his findings in a logical and
concise report, and he must be able to intelligently present
his findings during legal proceedings. A true professional
must also be ethical. He must be able to honestly assess his
capabilities and always work within his limits. A professional
expert must seek to maintain his training and to keep himself
informed as to the latest developments within his technology.
In must cases, thermographers who seek work
as expert witnesses will be required to perform or supervise
the infrared inspection as well as provide any subsequent
testimony. In those cases, the client or his attorney will
usually retain the thermographer prior to the start of the
project.
Occasionally, a thermographer may be retained
as an expert to review another thermographers work or documentation.
He may be called as a witness to help rebut another thermographers
testimony or report.
Additionally, a thermographer may be subpoenaed
to testify about his previous work or reports without advance
notice. Although the thermographer may not seek to work as
an expert witness, he may still be considered an expert by
the court if he performed the work in question. Regardless
of how a thermographer is invited to the court, the experience
can be more tolerable if some basic guidelines are followed.
Reviewing
the Case
Usually, an attorney or other professional
initiates the request for a thermographer to participate in
a case. Prior to taking a case, it is important to understand
what the client is trying to determine and what is expected
from the results. Due to limitations of thermography or the
thermographer, sometimes it is not possible to provide the
information a client is looking for. At other times, it may
not be possible to deliver data within a requested time frame.
In such cases an expert should advise why the requested information
cannot be delivered and discuss alternatives with the client.
In some cases, it may be necessary to decline the case or
refer the case to someone else. This would be especially true
in cases where the thermographer has a conflict of interest.
Once it has been established that the request
is reasonable and that the case is within the realm of the
experts area of competence and capabilities, plans can be
made to proceed. The expert should discuss the work with the
client and develop a clear scope of work to be followed. He
should also discuss the type of documentation required and
a time frame for completion. It is also incumbent upon the
thermographer to advise the client that the anticipated results
may not support the case.
Proposal
and Fees
A written proposal should be forwarded to
the client clearly outlining a fee schedule for the initial
work as well as a fee schedule for any subsequent testimony
should it be necessary. Many experts will only work on a retainer
basis. This ensures that the expert is compensated whether
or not the results support the client's case.
Some experts require full payment in advance
while others require a percentage upon acceptance with balance
due upon delivery of report. It is recommended that all fees
be paid prior to any testimony. This helps to ensure the experts
integrity since he does not have a financial stake in the
outcome of the case.
Performing
the Work
Once a scope of work has been defined and
accepted by the client, it should be strictly adhered to.
Following currently accepted Standards, Specifications or
Guidelines reduce the burden upon the thermographer since
he is following accepted industry practices. In short, there
is greater safety in numbers.
Work should be performed by qualified personnel.
Work should only be performed when weather and environmental
conditions are favorable to collecting accurate data. Only
test equipment suited for the inspection should be utilized.
Equipment must have the proper spectral response, optics,
filters, and accuracy required to perform the job properly.
All equipment should be in good working order and within calibration
as recommended by industry standards or manufacturer's recommendations.
Any calibration documentation should be maintained with the
job records.
The results of any verification of infrared
data such as ammeter readings or roof core samples should
be included in the written report. Equipment used for verification
should also be in good working order and within calibration.
If others provide verification, the thermographer should witness
or oversee the verification procedures.
Thermographers must be aware that artificial
conditions such as using a blower door or working under extreme
weather conditions can compromise the credibility of their
work as evidence. Work performed under these conditions may
cause the rejection of the report as evidence. Thermographers
who use software to enhance infrared images also run the risk
of having their work rejected by the court since it has been
artificially manipulated.
Documentation
of Results
Documentation is critical both during and
after the infrared inspection. During the infrared inspection
the thermographer should note the name and address of the
company performing the inspection as well as the thermographer
and any qualified assistants or witnesses. The manufacturer,
model, and serial numbers of all test equipment should also
be recorded. Lenses, windows, and filters should be documented
along with their spectral responses and transmission values.
Weather and significant environmental conditions
should also be documented. These include wind speed and direction
as well as sky conditions. For moisture sensitive work, the
latest date of precipitation should also be noted. The condition
of the system being inspected should be noted as well. Ambient
temperature, system load, emissivity, distance to target,
and background radiation values should be measured and recorded.
Finally, the thermographer should document
the observed thermal patterns on thermograms and/or videotape.
The final report forwarded to client should be clear and concise
and contain as much of the previous data that is applicable
to the project at hand. It should also contain all the documentation
required by the standard or specifications that you are working
under. The thermographers final report should also include
his opinions based upon his findings.
When preparing a report that is intended
for use in a legal case, it may be a good idea to forward
a draft report to your client or his attorney. This will help
to avoid contradictions between experts and helps to ensure
that your report properly supports the case. Above all, a
thermographers report should be confined strictly to his area
of expertise and responsibility within the case.
Deposition,
Trials & Arbitration
Once a written report has been submitted,
there are two avenues of progress. If the report does not
support the client's case, the thermographer will likely play
no further role in the case. If the thermographer's report
does support the case, the case will likely proceed to a deposition.
A deposition is usually made outside the
courtroom in a less formal setting such as an attorney's office.
During the deposition a witness provides testimony under oath
but which is recorded and used when the case comes to trial.
Questions here can be more open-ended and the witness must
be careful with his testimony since it can be used against
him in a trial.
Arbitration is a proceeding before an arbitrator
or panel of arbitrators intended to help settle disputes rather
than proceeding to a trial. Although arbitration is less formal
than a courtroom setting, it is every bit as serious as the
expert provides testimony under oath just as in a courtroom
setting. Should arbitration be unsuccessful, the expert may
have to appear again at trial. Once again, an experts previous
testimony can be used.
Trials are conducted by a formal examination
of the facts of a case by a court of law to decide the validity
of a charge or claim. A trial is the most formal of settings
and again the witness is under oath. Again, the experts previous
testimony may be used. It is imperative that an expert always
be aware of his previous testimony in the case as well as
his work.
Prior to making an appearance, it is recommended
that the expert meet with his client's attorney to discuss
potential questions and relevant facts of the case.
Up to this point, we have discussed the course
of action for experts who are appearing willingly in the court.
At times, a thermographer might be subpoenaed without warning.
There are few things more uncomfortable than having a report
introduced that contains inadequate documentation. Experts
who have been subpoenaed can only be compelled to state the
fact relevant to their report. They are not required to provide
opinions about their work.
Delivering
Testimony
Experts who properly
execute their work and document their findings will have a
far easier time when is comes to testifying. Prior to testifying,
the expert should prepare a curriculum vitae which summarizes
his training, qualifications and work experience. This will
be introduced as part of the court record during examination
of the witness. If you are testifying for the first time,
it may be helpful to review the types of questions that you
might be asked under oath with your attorney. Some general
rules are as follows:
Stick to your area of expertise! Do not
volunteer or express opinions for which you have not been
tasked to investigate.
Be prepared and know your information
before you come to court. This includes reviewing your report,
videotapes, field notes and any pertinent depositions.
Never answer a question that you do not
understand. Always ask for clarification when you don't
understand.
Never disclose what your attorney has
discussed with you.
When asked a question, take at least
15 seconds to make sure you understood the question. Try
to anticipate where a line of questioning is headed.
Beware the compound question. Often lawyers
will ask a series of questions together in order to disorient
the expert. When this happens, ask that the question be
restated as several smaller questions.
Be on guard. Opposing counselors are
paid to be good opponents. Do not allow yourself to become
complacent during testimony.
Any documents or notes that you bring
to court or make during a proceeding are discoverable.
Do not try to be humorous.
Speak slowly and clearly. Use a well-modulated
voice.
Do not read prepared narratives as they
can make the expert appear that he does not know is craft.
Do not fidget or use hand gestures. Use
good posture.
Be polite and courteous. Never raise
your voice or appear argumentative.
Dress appropriately and be on time!
If you have been subpoenaed, you are
not required to offer an opinion.
When appropriate, do not answer questions
with yes or no answers. Rather elaborate to the extent necessary
to answer the question properly.
Never state that a published work or
test is correct or factual. The appropriate response is
I've read it or I know of it.
If your attorney objects to a question,
keep silent until the objection is ruled upon and you have
received and instruction on whether to answer.
Be true to your ethics. Do not accept
cases where your testimony would contradict previous testimony
in other cases. Never take a case where you have a conflict
of interest.
When presenting charts, graphs, maps
or videotapes the witness should speak clearly and slowly
and elaborate exactly what he is describing. Videotapes
in particular cannot be incorporated into a transcript.
Summary
Due to its graphic nature thermography makes
for compelling evidence. Because it is often used to document
failures of systems or structures, thermography can often
wind up as evidence in legal cases. Thermographers can better
serve their clients and avoid potentially embarrassing situations
by keeping their training current, working within published
standards, and properly documenting their findings. Facing
an unexpected subpoena is less unpleasant if thermographers
always endeavor to work within industry standards and document
their work thoroughly.
For those who seek a challenge, expert witness
work can provide a whole new area of business and professional
opportunities.
References
1. The Expert
Witness. Peter B. Dorram. Copyright 1982 by the American Planning
Association, Chicago, IL.
