Vior Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He's Declared An Expert. Part One

Expert witnesses in criminal trials are often members of police forces and Medical Examiner's offices. The County or State spends a lot of money to train these folks and they go to classes and they attend seminars. They have been on the job (especially in the police detective's case) for many years and often personally know the judges they appear before. They also have been found to be experts in dozens of other cases before the one you're trying so that their being named an expert now is a forgone conclusion. I have watched as they routinely are offered up as experts with nary a sound toward their preclusion as an expert. Why are we defense lawyers giving these people a free ride?

I thought about this and decided that, there are a few reasons for the lack of attack on prosecution experts:

1. They almost always get named as experts so we don't bother to try to keep their testimony out.
2. We often expect their testimony, and so we build it into our case.
3. We do not have the tools available to us to get the background and to do a proper Voir Dire.

As noted scientist, author, and attorney Gil Safir writes, we (defense lawyers) don't have the necessary scientific background to argue the admissibility of the expert's testimony and opinion. This short series of posts aims to begin changing that. Today I am presenting part one of this two post presentation. Please feel free to add whatever you can in the comments.

I. Preparing the attack.

A. Frye or Daubert?

The first thing we have to understand is the difference between the tests used to judge the relevance of the experts testimony.
Here in NY, 2 different tests are used to qualify expert testimony. In State court we still use the Frye test(Frye v. United States, 293 Fed. 1013 (Ct. App. D.C. 1923)). In Federal court we use the Daubert test(Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)).

Now Frye is a more conservative test. It requires that there be proof that the community of scientists involved generally accepts the theory or process that is the subject of the testimony.

Daubert on the other hand considers that with the fast breaking developments in science these days, the process or theory may be fundementally sound but that their has been no consensus by the general scientific community about the "soundness" of the procedure involved. A lot more junk science gets in under Daubert. Daubert has been modified by two other cases that now make up the Daubert Trilogy they are General Electric v. Joiner, 522 U.S. 136, 118 S.Ct. 512 (1997)and
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174 (1999).

Understanding which test your jurisdiction is using and what the standards are to get an witness declared an expert, is your first course of preparation.

B. What kind of expert do we need? Consultants v. Testimonial experts.

This may seem like an easy question. If it is a Murder case, then you need a coroner right? Maybe if there is a gun shot we need an expert in gun shot residue or if drugs then toxicology. Well, that is only partially correct.

First thing I want is a consultant. I am looking for a person who has run not just scientific investigations but also taken them apart. I also want a person who knows something about the other guy's experts.

Why not let him testify?

Because as Safir points out in his article, the notes I get from him, and the notes I take, are NOT subject to discovery under either Rosario or in Federal court Jenks. These documents and notes are part of the Attorney's work product. Hence I can use my consultant to inform me, and help prep my testimonial expert! (A caveat: If your testimonial expert uses materials from your consultant, those materials he relies on are discoverable.)

I usually look for a consultant with a knowledge of the field, a good track record at trial, and someone who the prosecution knows well, and who knows them just as well.
Why? Because he or she will have inside dirt I can toss at the other side's expert.

In a recent trial, I learned that one of the medical experts was not a member of any forensic expert society and was not board certified. Another so called expert was only a provisional member of the Society that oversaw his area of expertise. I was able to use both of these pieces of information to attack the experts. I demolished the first guy on summation and kept the second from even being allowed to give an opinion. I doubt I would have gotten that information from some nationally known expert who knows his stuff about the science but not about the labs with which I am dealing.

In seeking a testimonial expert, I am seeking a person who is scholarly and intelligent. I want a person who is recognized in the field as the best of the best. Not always easy on an assigned counsel basis but possible.
Remember, to get this witness qualified you are going to need:
1. Educational/academic degrees
2. a present position in the field, or recognition within the field.
3. Board Certification
4. Publication
5. Peer review of research
6. A lengthy career
7. Teaching/Lecturing within the field to other experts or at least to beginners.
8. Professional Associations and time within them.
9. Positions held in these associations.
10. Awards and honors achieved within the field and with in any sub-specialty.
11. Available and testifies for all sides not just one or the other. (This is to be able to make the argument that he is not some hired gun but that his testimony is consistent and he will help whoever is right, as opposed to the Prosecutor's "paid parakeet who will repeat anything the Prosecutor says like his livelihood depends on it... because it does..." (You get the idea.)

Assuming that the expert has some, if not all of these qualifications and more, I then look to the intangible aspects that make for a good witness.
Testimonial experts are best if they can relate information to a jury without "speaking down" to them. Juror's know the expert is smart, at least smart about something. Hence the expert should not speak to jurors as if they were freshmen in an advanced organic chemistry class, nor should he speak so "high falutantly" that no one but a Nobel Prize Laureate understands him.

If a witness is a smart guy who also is a regular "Joe", all the better. One of my favorite witnesses was a short older German or Austrian Jewish woman who spoke with a heavy accent. She was named Dr. Ruth Finch. Now she was a wonderful character. As easily the Medical Doctor as she was your aunt Sadie. It took no time for the court officers and then the jurors to start speaking of her as Dr. Ruth (after another popular Shrink/sexologist Dr. Ruth Westhiemer who was the rage back then.) She educated the jurors, charmed them and completely frustrated the prosecutor. (Need I say it was a defendant's verdict.)

Now that we have figured out what standard we are going to use to determine if the testimony is going to come in, and we have determined what we need as far as an expert goes, and who (more or less by credentials) the witness will be, we are ready to try to keep the other side's witness off the witness chair, or if they do get up there, make them seem incompetent enough, that no self respecting person would send even an enemy to see them.

And that will be in Part II.