Effective Direct Examinations of Expert Witnesses

1. Effective Direct Examinations of Expert Witnesses • Robert Giles • Senior Attorney • National District Attorneys Association

2. What Type of Witness? • Lay Witnesses: • - testifies as to what the witness saw, heard, felt, smelled etc. Expert Witnesses: - renders an opinion or gives the jury information that helps them evaluate the evidence Combination Witnesses: - lay witness with personal knowledge of case and qualifications as expert witness

3. Expert Witnesses: Types: • Responding officers • Investigators • Forensic Interviewer • Medical personnel • Psychologists • Social workers • Computer Forensic Examiner • CSAAS • Common characteristics of children who allege sexual abuse • Handwriting • Accepted massage techniques • Scouting rules and regulations

4. When Can You Call an Expert • Bond hearing • Grand Jury/Preliminary Hearing • Pre-Trial Motions • Victim Competence • Trial • Sentencing • Civil Commitment of Sexually Dangerous Defendants

5. Purpose of Expert Witness: • FRE 704 • Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact

6. Frye Test • Expert testimony is admissible if the subject matter has gained “general acceptance in the particular field in which it belongs.”

7. Daubert/Rule 702 test • “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. “

8. Virginia Rules • An expert’s testimony is admissible not only when scientific knowledge is required but when experience and observation . . . give the expert knowledge of a subject beyond that of person’s of common intellegence and ordinary experience Velazquez v. Virginia, 263 Va. 95, 103 (2002); see also Kilby v. Virginia, 52 Va. App 397 (2008)

9. What is Key?

10. Key to Expert Witness? • Preparation • Preparation • Preparation

11. Preparation: • Meet with expert ahead of time

12. Preparation: • Go through their resume

13. Preparation: • Go through their resume • Experience

14. Preparation: • Go through their resume • Experience • Education

15. Preparation: • Go through their resume • Experience • Education • Training

16. Preparation: • Go through their resume • Experience • Education • Training • Courtroom Attire/Actions

17. Pre-trial Meetings • As early as possible • More than once • Phone meetings as last resort

18. What They Want To Know; But Are Afraid To Ask • Who do they look at? • Can they review notes? • Objections • Out of Element: • (think how you feel at doctor’s office)

19. Preparing for Testimony • Have direct examination questions ready • Prepare for areas of cross examination • Stay within field

20. Expert Prep in Child Abuse Cases: • What part of case do you use? • Ready made experts (investigators, social workers, forensic interviewers, doctor, SANE) who were part of investigation • specific to facts of case: examples

21. Expert Expenses • Sticky situations • Office has necessary funds • many times money is not going directly to expert but to underlying hospital

22. Nationwide Trends • Forensic Interviewer • Medical doctor or SANE • Child psychologist • Child sex abuse accommodation syndrome • Common characteristics of children who allege sexual abuse • DNA Experts Called in Prosecutions:

23. Common Defenses • Anti-AHT • Profile evidence • false confession • police ineptitude • scientific attack on evidence • lack of exhaustive testing

24. Be Prepared for Defense Expert • Get their opinion early • discoverable • discuss with your expert • Can you defeat/deflect some of report in direct examination

25. Preparation: • Prepare to defend your expert • review/look-up their history • Interview the defense expert • prior testimony: prosecution or defense • how many times?

26. Moments to Cherish: • Forensic Interviewer (also police investigator or CAC) • Expert for Prosecution: • “why have you never testified for defense?”

27. Eye for an Eye? • If the defense calls an expert does the prosecution have to call one to rebut them?

28. Common Pitfalls • Non-medical evidence argument by defense • Putting on medical to demonstrate why evidence might not be there...

29. Expert Topics:Child Sex Abuse • Delayed/reluctant disclosure • recantation • piecemeal disclosure • disclosure process • memory and suggestibility • compliant victim dynamics • PTSD • Cultural factors • lack of physical evidence • developmental/cognitive abilities

30. Child Sexual Abuse Accommodation Syndrome • Pattern of five behavioral characteristics often observed in child victims of sexual abuse: • Secrecy • Helplessness • Accommodation • Delayed disclosure • Recantation Roland Summit (1983)

31. CSAAS • Children do not necessarily report abuse right after it happens • Relationship between child and perpetrator is parent/caretaker-child • Opts not to report for fear of hurting other parent, sending perp. to jail, or not being believed • Once child feels distance from the offender, child may disclose the matter • Counter intuitive actions – victim returns to the abuser, compliant victim

32. Limitations on Expert’s Opinions • Witness lying or telling the truth • child’s behaviors are diagnostic of abuse • ultimate issue of guilt

33. Defense Goals With Your Expert • Secure Admissions • Make your expert look: • ill- prepared • argumentative • out of touch

34. Defense Goals With Your Expert: • Time line, manner of injury in child abuse cases • Undermine opinion • create hostility through demeanor on cross-examination

35. Areas of Cross • Expertise • Conclusion • Basis of conclusion • sources of facts • age of information

36. Areas of Cross: Bias • Fees: • breakdown of fees • number of times testifying

37. Areas of Cross Bias:

38. Choosing Your Expert: • Expertise with particular issue in case: • AHT in poisoning case? • Age of Information that forms basis of opinion

39. Choosing Your Expert: • Is experience in field limited? • Has expert dealt primarily with victims or defendants? • theoretical research or first-hand clinical basis

40. Choosing Your Expert: • Has expert kept current in the field • Jury acceptance? • Are they approachable and reachable? • If stuck, call us...NDAA • Lexis/Westlaw great resources to background and credentials...

43. Trial Decisions:

44. Demonstrative Evidence • Use Often • Be creative • Jury studies • Prepare with experts • Motions in Limine

48. Defense Stipulations • Never a good idea to agree to stipulation

49. Building Foundation: • Introduce Expert • Background generally • Experience and training generally • Background in specific subject matter • Experience and training in specific subject matter

50. Building Foundation • Professional memberships • Publications • Achievements in field • Number of examinations/investigations/interviews • Number of times testifying about subject matter • not necessarily as an “expert”