How do you know when an expert witness is getting ready to testify? By the bonfire in his backyard! Upon his conviction for Watergate-related activities, John Ehrlichman, Richard Nixon’s Domestic Policy Advisor, famously said, “As a matter of historical perspective, you can make a pretty good argument that a bonfire on the South Lawn wouldn’t have been a bad idea.”1 One relatively recent appellate level decision seems to carry a similar message to forensic custody evaluators.
A Paragon of Terseness
The Court of Appeals has unequivocally recognized that the “integrity of our judicial system depends on the ability of litigants to locate and identify relevant proof without fear that the truth-seeking process will be thwarted by spoliation of evidence.”2 Notwithstanding this straightforward condemnation of evidentiary destruction, the Appellate Division, Second Department, in O’Loughlin v. Sweetland,3 affirmed a lower court decision that refused to impose any type of sanction upon a forensic custody evaluator who destroyed audiotapes of interviews she conducted in the course of her evaluation. For those who still believe in due process, decisions of this sort send one screaming into the night.
