June 2007, Page 10

Experts: How to Identify Them, Confront Them, and Keep Them Off the Stand
By Eric A. Vos

1. Why Use An Expert?
a. For the Jury’s Sake

Why use an expert? Because they win cases!1 Logically, given the rules which dictate attorney presentations to jurors, lawyers will not be allowed to give long-winded explanations or theories outside of opening and closing arguments. Even if an attorney could miraculously take the witness stand, this would be a rather poor substitute for expert testimony. Hence, most of the heavy lifting is best done by someone other than the defense attorney — the least liked person in the courtroom. An opening statement, a blistering cross-examination, and summation are the sum total of how most defense attorneys set forth theory. Yet, when an expert is employed aggressively, a theory can be impressively presented.

While Criminal Justice Act panel attorneys used experts in less than 2.5 percent of their 2004 cases, government attorneys used experts in 100 percent of their cases. This, of course, starts with the case agent who is sitting next to the prosecutor during the entire matter. Moreover, anytime a firearm is tested, drugs are analyzed, or financial documents are evaluated, an “expert” is being employed by the government. These examples do not even start to address the seemingly endless list of “soft experts” the government now employs. Nor does this mean the “expert” will eventually take the stand, even though many do. It merely means the government is constantly using experts, either as consultants or witnesses, while defense attorneys are rolling poorly loaded dice.2

With the new liberalized approach to expert testimony, adopted in the Federal Rules of Evidence, attorneys are using experts in all kinds of cases. For example, let us say an African-American client has been positively identified by a Japanese-American teller in a photo lineup as the individual who rather rudely used a gun to withdraw funds from a federally insured institution. In this scenario, which is played out daily in federal courts, there is fertile ground for the employment of an expert. In fact, one could easily employ three experts in this factual scenario.

First, there is the area of cross-racial identification. An attorney can certainly appeal to the jury’s experience and intelligence, and talk about the difficulty anyone may encounter when being called upon to identify someone of a different racial background. When and how is the attorney going to do this? I have done this, sans expert, and it is painful. Additionally, the jury will have no “scientific” backing to trust the attorney and, importantly, the attorney runs the risk of angering a jury who may easily see this argument as inappropriately offensive. In the alternative, by presenting this notion with an expert, and employing a vocabulary which is inoffensive, the attorney goes from being a possible bigot to a compelling advocate who has been able to explain a logical phenomenon that may easily be used by sympathetic jurors during deliberation. I invite any attorney to read about cross-racial identification and then entertain the notion of presenting such a defense without employing an expert.

Second, if the teller is informed (or it is suggested) that the suspect is in the lineup, the validity of the lineup may be questioned. In keeping with the notion of proper lineup methodology, what if the photo lineup consists of eight photographs laid out in two neat rows of four photographs on one sheet of paper? An expert may be called upon to explain that such presentations, when the victim knows the suspected “doer” is in the lineup, creates a likelihood of mis-identification which is alarmingly high. It is for this reason many law enforcement bodies have set guidelines for photographic lineups that do not allow the victim to be told the suspect is in the lineup. Moreover, photographs, as the FBI now requires, are not to be put on the same sheet. Instead, the photographs are to be shown to the victim individually, almost like a deck of cards, with the order of presentation to be random, and for that order to be “reshuffled” each time the victim wants to see the photographs anew.

Third, there are entire areas of study which speak directly to our inability to recall important identifying characteristics after seeing a suspect — hours or days previously — for a short period of time during a traumatic event.3 This natural inability must be addressed and presented by an expert. Again, an attorney’s argument is no substitution.

In contrast to the feelings a jury may have about an attorney, an expert, despite being paid, if well-qualified and properly prepared and presented, will almost always command a level of credibility most attorneys will only be able to attain in their wildest dreams. When presented properly, an expert may become a trusted and respected teacher who bases theories on logic and well-accepted fields of study. Under these circumstances, experts stand in stark contrast to an impassioned and adversarial advocate. Most attorneys will certainly agree that the best tool a defense attorney has is effective cross-examination. Despite this, only a foolish advocate would ever attempt to substitute expert testimony for blistering cross-examination of a hostile witness.

At the very least, an expert’s role is to simplify the case so a jury may easily comprehend the litigant’s position and theory. Given the primacy one should place on simplification, attorneys should look to all issues and consider using an expert. Attorneys must not limit the use of experts to arcane and technical issues. The expert can easily take the attorney’s theory and simplify the salient issues in a manner and mode not afforded to the attorney given the constructs of trial presentations.

Once theories are simplified, important allies (the few jurors who have taken the defendant’s side) will have important, easily used tools which allow them to advocate the attorney’s positions during deliberations. Attorneys would love to believe they have convinced the jury, in its entirety, and grabbed victory from the jaws of defeat. Yet, this is most likely not how it transpires. Rather, there will be some articulate and forceful jurors who advocate the victor’s position despite the attorney’s inability to reach all 12 peers at once.4 Thus, an attorney presenting or attacking expert witnesses, should keep a keen eye on the role of an expert vis-á-vis potential jury advocates. If the expert is to be used as a “tool” by the advocate jurors, the presentation and associated theories must be simple or simplified so they can be easily used by allies during deliberation. Even the most arcane subjects can be simplified. To take an expert’s elevated understanding of the issues, without an eye on simplification, will result in poor utilization of a most important resource.

b. For the Attorney’s Sake
While there may simply not be a human, expert or not, to provide a counterargument concerning opinions offered by government experts, there may be terrific areas which allow for effective cross-examination of the government’s expert. These areas may have never occurred to the attorney but for the help of an expert as a non-witness consultant.

All experts, in conducting their evaluations, use a methodology. The methodology used is not random; it is based on accepted science or academic practices. If the methodology is flawed, one must certainly attack the opposing expert’s conclusion. Even a broken clock is right twice daily and yet, one stands a much better chance of questioning the otherwise correct clock once it is pointed out that it lacks batteries. In this regard, an expert is used to clarify, as a consultant, the field of study, the methodology and the weaknesses in the government’s presentation. Thus, while the above-mentioned Japanese-American teller was correct, the client did use a weapon to withdraw funds, one must show the lineup was suggestive, flawed, and counter to all accepted practices of witness identification. As a result, a correct identification may now be untrustworthy.

2. What Kinds of Experts Are There?

Given the multitude of areas that an attorney may be litigating, coupled with the almost infinite number of possible fact patterns, it would be absurd to ask anyone to come up with an exhaustive list of the types of experts available. There seems to be an endless supply of experts who will help with everything from fingerprints to forensic accounting and back to anthropological studies showing the reasons cross-racial identification is so hard.

The best way of addressing whether or not there is an expert out there is to break down, into discrete parts, the theories which will be asserted by the defense or the government. As with the bank robber in our scenario, the attorney is going to ask, “How was the teller able to get a good look at a man’s face when there was a gun pointed at her?”

The attorney merely needs to take a step back and reduce the question to a basic Internet search. When going to one of the many search engines on the Internet, one needs merely to type in “identification expert witness criminal trial” and there will be ample information allowing an attorney to become well versed in the applied sciences concerning identification and additionally, introduce the attorney to a host of possible candidates suitable for expert testimony. Go to www.google.com and type “expert witness testimony cross racial identification criminal trial.” Again, there is simply no shortage of experts in this area and one will immediately find a multitude of articles and papers which aid the attorney in understanding the subject matter. At the very least, an excellent starting point will begin with the experts the government has given notice of pursuant to Rule 16.

3. First Line of Defense — Offense

Unlike defendants, the government is far more apt to employ expert testimony. As a result, the defendant will be playing
defense, and thus needs to think long and hard about how to take some of the wind out of the opposing expert’s sails. As discussed below, this may be done by excluding the testimony altogether or, in the alternative, diminishing the credibility of that testimony.

a. Keeping the Expert off the Stand
i. Rule 16

Rule 16(a)(1(E) of the Federal Rules of Criminal Procedure states, in part, “[a]t the defendant’s request, the government shall disclose to the defendant a written summary of the testimony that the government intends to use under Rules 702, 703 or 705 of the Federal Rules of Evidence during its case-in-chief at trial. . . . [T]he summary under this subdivision shall describe the witnesses’ opinions, the bases and the reasons for those opinions, and the witnesses’ qualifications.” Thus, the defense attorney, upon first assuming representation, should put together a discovery letter. In that discovery letter there must be a formal request asking, at the very least, for “a written list of the names, addresses and qualifications of all experts the government intends to call as witnesses at trial, together with all reports made by such experts, or if reports have not been made, a brief description of the opinion and subject matter of the opinion to which each is to testify.” Once done, the challenging defense attorney will have fulfilled the Rule 16 obligations requiring the “defendant’s [prior] request.”

There are varying degrees of sloppiness from person to person and from office to office. Even intelligent and conscientious assistant U.S. attorneys may, due to mistake or ignorance, fail to follow the important particulars of Rule 16. Attorneys must make certain the government has done exactly what is required under Rule 16. It is certainly common that, days prior to trial or on the day of trial, the defense attorney will receive the first formal notice of an expert when he or she receives a list of government witnesses. This lack of adherence to the rule will vary from attorney to attorney and from office to office. Yet, it happens and such a mistake may result in preclusion of the government’s important witness.

When the above non-compliance does take place, a formal written motion may be filed to exclude such evidence or, if time does not allow, an oral motion will suffice. In mounting such an attack, it is important to realize the most important law which governs all aspects of federal litigation. We are not talking about the Constitution. Rather, we are speaking of the law of judicial economy.

Logically, until the defendant has received the expert opinion and opposing expert’s curriculum vitae (“CV”) or resume, an attorney may not begin to attack the government’s expert opinion or investigate the expert’s background. Thus, if an attorney receives untimely notice, he or she must impress upon the judge how the defense will need days, if not weeks, to research, interview and ultimately hire a defense expert. Most critically, defendant’s expert will need time to review government evidence and expert opinions and possibly test for any possible counterexplanations. Finally, a defense attorney must investigate the background of the government’s offered expert. This may be rather time-consuming if the government’s expert has a multipage CV.

In short, it would be impossible for an attorney to adequately confront possibly the most important witness for the government without ample time to investigate all avenues and possibly offer up alternative expert opinions. Nor should this work be done without prior formal notice. No attorney can prepare for experts who have not yet been identified or whose opinions remain unarticulated. Many judges will not fully realize or appreciate the lengths to which an attorney must go in order to review and counter a government’s expert. Defendant’s motion must clearly articulate this to the court.

Where there is late disclosure, the court will have some unattractive options. First, it can simply delay the trial by weeks and set a new date. This is generally not an attractive option. In the alternative, the court can simply tell the defense no additional time will be allocated. This is also an unattractive option and leaves an avenue for appeal, which the court may not welcome. Finally, the court will now have the most attractive option of simply prohibiting the presentation of such evidence. This will be even more attractive for the court if defense counsel stresses the extraordinary amount of time this witness, and counterwitness, will need during the trial. With judicial economy being the most important rule, a savvy attorney will play this card first and foremost.

Often the government will call agents in midtrial to act as experts. A common example is the ATF agent, recently deputized as an expert, who will testify as to the interstate nexus enjoyed by the firearm in question. Since the government is aware it can reach into a bag of agents when the need arises, it may not always remember to follow the dictates of Rule 16. There is simply no excuse that may allow the government to provide notice of an expert in the middle of trial. Again, trials are fluid, confusing, and call for new and different approaches midstream. This certainly is not restricted to the defense. Thus, be wary of the government as it tries to present its case and fix unexpected problems with sudden experts.

At the very least, when an expert is dropped in the defendant’s lap midtrial, the attorney must narrate for the court the exhaustive process an attorney engages in when reviewing experts. Moreover, explain that an attorney who sidestepped such a process would pave the way for a rather compelling § 2255 motion.

In addition to introducing experts at the last minute, some of the government’s experts may testify regarding facts that seem to be mere technicalities. An example is the expert who comes in to tell the jury that the firearm traveled in interstate commerce because it was produced in a state other than the state in which it was possessed. Despite the fact the expert seems to be “bulletproof” and stating the obvious, the defense attorney should not relax the investigation. Even if this expert is absolutely correct regarding the firearm, it is important that the attorney see the expert’s CV and opinion pursuant to Rule 16 and vets each. If the CV is filled with inaccuracies, fluff, and outright lies, this will certainly destroy the expert’s otherwise perfectly acceptable opinion. Thus, even with this type of witness, counsel must be vigilant and thorough.

Along with Rule 16 requiring a CV, the rule requires “the government . . . disclose to the defendant a written summary of the testimony that the government intends to use....” Furthermore, “[T]he summary ... shall describe the witnesses’ opinions, the bases and the reasons for those opinions, and the witnesses’ qualifications.”

Both sides love to provide the absolute minimum when alerting one another of the “opinions” and “bases.” It is downright amusing how limited such disclosure may be. For instance, the government may write “the government’s expert will testify to the match between the recovered latent fingerprint and the defendant’s recorded inked fingerprint. This opinion is based on the similarities between the prints.” The provided information does not even come close to what is required. Instead, all opinions must be clearly stated and a detailed reasoning for such an opinion should be provided.

In the case of fingerprints, the government should provide copies used and what points of similarity are being used to support the finding. Logically, unless the opinion and bases are well defined and explained, a critique by the defendant’s expert will be difficult and based on partial information. Thus, make sure the government does not provide abbreviated opinions and worthless reasons for such opinions. Even if the government provides you with decent discovery, out of caution, ask for more. Additionally, give the government as little as possible when meeting the reciprocal demands of Rule 16.

ii. Expert Testimony From Non-Experts

It is not uncommon for the government to slip in expert testimony from non-experts. In the Eastern District of Pennsylvania, the government loves to use police officers to explain the difficulty of obtaining fingerprints from weapons. If a firearm is not tested for fingerprints, an attorney may call into question why the government did not simply test the gun. To ward off this attack, the government attempts to ask the officer, “Why is it you did not submit the firearm for fingerprint analysis?” The officer will then spend a good deal of time explaining to the jury how difficult, and almost impossible, it is for firearms to retain fingerprints.

Given the witness is most likely not an expert, this should not be allowed. Alternatively, the government would be required to bring in an expert, most likely from one of its forensic laboratories, to testify to fingerprint and firearm surfaces. On cross, the defense attorney would be able to elicit that the lab in question had tested thousands of firearms for fingerprints and, in fact, it had been possible to find fingerprints. Most importantly, this counterattack would easily be warded off by the non-expert who could simply deny such findings and repeat how difficult it was to get fingerprints from firearms. Thus, an attorney must make sure any testimony offered does not require expertise. Even if the witness could be qualified as an expert, an attorney must make sure this fix does not run afoul of the Rule 16 requirements concerning notice and written opinion.

iii. Astrology Versus Astronomy; Using Daubert

Just because it looks like “science” does not necessarily mean it is allowed to come into court. The main concern of Daubert v. Merrell Dow Pharmaceuticals is to make sure the science employed in a courtroom is reliable. For a wealth of information, go to daubertontheweb. com. Some areas, such as astrology, are pretty easy to identify. Other areas, such as fingerprint analysis, seem to be “based on good science” and yet, are now a fertile ground for attack. Also, the government may stitch together reliable areas of expertise and create an entire new area which is “unreliable.”

As to the seemingly reliable areas of expertise, it would be best to employ an Internet search engine. There are few areas of science which have not been critiqued. A legal critique, pursuant to Daubert, must ask specific questions. Has the theory or technique been tested or can it be tested? Has there been peer review of the theory or technique? Are there studies which point to the error rates enjoyed by the theory offered? Is the science presently accepted within the relevant scientific community?

Robert Epstein posed these questions with regard to fingerprints and had some amazing results.5 Although the attack failed, it spawned an entire re-examination of fingerprint analysis and left significant concerns unresolved. Best of all, judges are well aware of possible novel attacks and may be far more willing to hear arguments concerning that which would have once been accepted without question. At the very least, a failed attack allows the defense attorney the much needed opportunity to cross-examine the government’s important witnesses while the jury has yet to hear a word. This should help any attorney both during trial and with subsequent possible expert preparation. As discussed below, the attorney should attack the reliability of the offered area of expertise, and its grounding, while the jury is listening.

As a cautionary note, in Kumho Tire,6 the Court stated the Daubert factors must be applied flexibly. These factors are not a definitive test or checklist. The Kumbo Tire Court indicated the trial court must have considerable leeway in determining how to assess the reliability of an expert’s testimony. Thus, the factors put forth in Daubert were only to be considered when a court was determining the reliability of an offered area of expertise and the supporting science. Sadly, the combined punch provided by Kumbo Tire and Daubert have resulted in the government’s easy introduction of “soft” experts while defendants still face the court’s standard opposition.

An attorney gets no less than two bites at the apple. Begin by attacking the reliability of the science with the court. Next, make that attack before the jury. Pursuant to United States v. Velasquez,7 it is reversible error not to allow the defendant’s presentation of expert testimony or evidence that is critical to the field in question.

Explaining the deficiencies in a particular field can easily be done by using a defense expert. There is a host of academics who, while knowing little about a particular field other than its history, may be able to educate the jury as to the total lack of credibility in an offered area of expertise. Naturally, only the court will be privy to the above reliability question during voir dire and it is incumbent upon the defense team to re-visit this question with the jury. In the end, despite how the court may rule, argue that the government, failing to have a case, rested its now desperate argument on a very questionable science.

b. Rattling the Expert’s Cage

In most cases, efforts to preclude expert testimony will fail. Fortunately, experts suffer from the same disease any inflated ego suffers from — an over-developed sense of intelligence and infallibility. These attributes may make for good cocktail conversation but they also make for vulnerable witnesses. When people are repeatedly put in the position of being the sage, teacher, lecturer, and authority, they start to lose some of the most important characteristics which make them attractive to jurors. These vulnerable witnesses may do poorly when an attorney shakes their cages.

i. Get Personal

If one is going to be successful in shaking an opposing expert’s cage, the inquisitor must first know the expert better than anyone else. Luckily, one will have the expert’s curriculum vitae. This resume might be filled with exaggerations. A nice starting point is to look at each and every degree the expert has obtained. A good place to begin this inquiry is www.studentclearinghouse. org. Student Clearinghouse is a service that verifies education and even provides grades. It may not occur often, but sometimes experts will include things in their CVs that are not accurate. One just needs to think of the many instances where public officials make widely inaccurate claims as to their past education and experience. Surely, we can all imagine this mouth-watering line of cross examination upon finding such “inaccuracies.”

Another “must” is the expert’s impressive list of professional associations. It is incumbent upon the attorney to verify the expert’s membership and find out how an expert becomes a member in any of the listed associations. Also, find out the current status of the expert’s membership. Many organizations have a number of different membership levels. Finally, consult with experts to make sure the government’s expert is not missing any memberships that any self-respecting expert would have already obtained. An attorney would look pretty silly if he or she took the stand without being a member of the bar. The same questions should be posed, when appropriate, when an opposing expert is being qualified.

Anecdotally, in a matter presented by the U.S. Attorney’s Office, a member of a rather large and important forensic organization was hired by the government to testify as to DNA evidence. Upon investigation, it turned out the expert, because of his lack of credentials, was stuck at the lowest level of membership in regards to this seminal organization. This was so despite the rather impressive title the expert provided. Moreover, there were over half a dozen membership levels above this expert’s status. Lastly, this expert’s level of membership, unlike those above him, merely required a nominal membership fee. At such a low level of membership, this expert did not even automatically receive the organization’s newsletter! This information, of course, was discovered by going to the professional organization’s Web site and following up with a telephone call to the organization’s offices. All of this made for interesting cross-examination during the government’s qualification stage.

Cross-examination along this line will certainly rattle the cage of any expert witness and possibly allow the attorney to go places otherwise not available. With the advent of the Internet, this type of investigation is fast, enlightening, and may prove rather helpful. If an attorney can question the expert’s academic credentials and show impressive listings to be fluff, it will take a rather hearty witness to quickly gain composure in time for the more substantive questions.

An attorney may do all of this by blowing up the expert’s CV so that cross-examination is rather demonstrative and painful. The simple use of a large blowup, 5’ x 7’, highlighted with a heavy red marker, turns a CV into what looks like a student’s failing paper. This certainly has an impact on both the jury and the witness. During closing, with the impressively large marked CV as backdrop, the attorney can pick at the government’s expert and the opinions offered. Give the jury something to think about: “Real opinions do not come from exaggerated, false, and untrustworthy sources. If you were an employer, would you have serious doubts about hiring this expert if you found out these things upon reviewing his CV?”

Experts also have an affinity for the Internet. Many of them have their own Web pages specifically designed to serve as a form of advertising. As with CVs, these sources of information may contain exaggerations and should be fully investigated. Internet pages may become a fertile area for cross-examination during the qualifying stages. Again, there is little harm, and much advantage, to blowing up this embellishment on 5’ x 7’ cards, and highlighting it with a red marker.

Many experts include a list of publications in their CVs. Get a copy of the publications; they may not exist. Moreover, find out what, if anything, the expert had to do with the particular publication. Again, anecdotally, we had the pleasure of working with a government expert who provided a rather impressive list of publications. Consistently, the publications listed by the expert were not his own. Rather, he was mentioned in the acknowledgment sections since the expert worked in the lab where these publications originated. The lab in question had more than 40 people working in it and everyone who worked in the lab was listed on any publication that came from the lab. This was so despite only a handful of the employees actually doing any of the heavy lifting during the production of the scholarly articles. It is common for scientific articles to list a multitude of individuals whose involvement with the publication was scant at best.

One way to determine the actual involvement of the expert is to note the expert’s sequential placement on the list of acknowledgments. Being listed closer to the bottom means closer to having done nothing. Despite this, some experts will readily list these articles on their CVs. While this area of cross-examination will not necessarily question the expert’s final opinion, juries understand puffing much faster than they understand complicated scientific opinions concerning arcane areas of expertise. Many experts will have a dozen or more publications listed on their CVs. What if all of them really involved no contribution worth noting? This would be an appropriate fact to touch upon — with a big red marker — prior to getting to the substantive questions.

When experts understand there is little the attorney does not know about both the science and their backgrounds, they tend to keep their opinions far more restrained and will qualify them to a degree which will later help establish reasonable doubt. Qualified opinions reek of a defense attorney’s favorite smell — reasonable doubt. If an expert is shaken, the opinions offered will certainly not seem unassailable. If one can demonstrate an uncanny understanding of the expert’s background, the expert may have flashes of panic anticipating ugly questions that are potentially personal and embarrassing. Best of all, the expert will want to get off the stand quickly if apprehension looms on the horizon. An intimate question posed at the opening bell might cause a little panic. For instance, one such initial question to an expert was whether or not, 20 years earlier, he had spent his Peace Corps years in coastal Tunisia or in the interior? Such specificity, by counsel, sets off alarms for most experts.

Know where, when, why, and for whom the expert has testified in the past. This information is probably listed on the expert’s CV or Web page. If not, send a letter to the prosecutors requesting the specifics. Once armed with this information, find the litigant’s attorneys and call them. If the expert has testified in civil matters, one may be able to talk to both sides if the rules of professional conduct permit. At the very least, find out how the expert did under direct and cross.

If possible, get a transcript of the expert’s past testimony. It is likely that prior cases were appealed, and therefore getting attorneys to share the transcripts will be easier and less costly than ordering them. Even if the expert’s prior testimony was related to a different area of expertise, a copy of the transcript will reveal much of the expert’s personality and aid in preparation. There is no logical reason for the first day of testimony to be the first time the attorney meets the expert. The attorney doing the cross of the expert should be intimately involved in the investigation of the expert. Of course, given time limitations, this seems a task better left to an investigator or new attorney. Yet, if experts win cases, one should leave little room for confusion or misinterpretation of the expert’s background and character.

ii. The Attorney Must Be an Expert

Like initial questions concerning the expert’s intimate background, initial substantive questions should deal with the minutiae of the field which is being addressed. One must come up with ways to let the expert know, from the start, one small mistake will likely result in embarrassment. One need only imagine the damage created when experts feel they can run the gamut without any fear of the defense attorney being able to articulate compelling questions. Think of this as a boxing match. There is no better way to set the tone than to throw some really sharp jabs in the first seconds. The result is a fighter taking a far more defensive and safe posture. Such a posture may well translate into looking more and more like reasonable doubt.

c. Leaving the Reservation

Many experts just cannot help themselves; they have to provide opinions which they are not qualified to give. When this happens attorneys are called upon to dig deep and really notch up their performance.

When experts offer testimony outside of their area of expertise, the attorney may easily object. Of course, what may be easy may not be most effective. Sometimes it is best to let the expert testify, even at length, outside their area of expertise. Then, when crossing the expert, an attorney may go into detail as to what the area of expertise is and how the offered prior testimony is outside of the expert’s area. At this point an attorney may ask the judge, in front of the jury, to strike the prior testimony and instruct the jury appropriately.

If the question arises regarding why the attorney waited until cross-examination for the objection, the attorney may simply explained that it was only during cross-examination that the area of expertise was further defined, and thus found to be lacking as it pertained to the offered testimony. Each approach has advantages and disadvantages. Yet, there is something almost poetic about having the government present testimony which has to be stricken. Ultimately, it may call into question all opinions of the expert — even those the expert was qualified to provide. It demonstrates a witness who will gladly offer opinions as to matters he is unqualified to give. Best of all, an attorney may have this backed up by the striking judge.

d. Please Call Your Expert
i. Helping Create Reasonable Doubt

There are times when one may not keep experts out of the courtroom and there is no good way of attacking their opinion without looking like a sorry ankle-biter. Anticipating this, the government’s attorney will usually suggest a stipulation to facts. Many defense attorneys will go through the internal dialogue which asks, “If I’m going to have to suffer a good two weeks of being thrown off every corner of that darn courtroom, why in heaven’s name shouldn’t I make life a little easier by stipulating to facts that, no matter what I do, are going to be proven?” So, besides loving the assumed role as a pain in the butt, why would counsel not just merely stipulate to the obvious and redirect the attack to a more fruitful area?

The answer to the above question centers around burden. Not all cases will focus on a client’s innocence. Instead, the outcome in some cases will hinge on the notion of the government failing to meet its burden. Consequently, when the government shows it has the ability to bring in highly qualified experts, it creates a stark contrast when its other evidence is lacking. Hopefully, the government’s expert has an impressive background and was flown in from Cairo. Thus, during summation, it should be asserted, “When the government needs an expert, its gets one and flies him in from Cairo.” Again, the defense attorney’s argument usually centers around “the government’s lack of evidence.” Thus, the defense must show how the government can fly experts in from Cairo when necessary. Never deny yourself a witness which shows the government’s superior ability to find evidence if it exists. The jury’s understanding must be, “If there was evidence out there, the government would have brought it.”

ii. Make the Government’s Expert Do Your Lifting

An attorney, when questioning a government’s expert witness, may slyly use the government’s expert to advance an important defense theory. This is much easier than one would imagine since the line of questioning may never have been reviewed during the government’s trial preparation with its expert. It is always nice to ask questions which have not been hammered out prior to the testimony. With that in mind, all adverse witnesses should get a question not in their playbooks. The answer, and the doors that fly open, will certainly have the potential to amaze.

If, for example, the government has found 40 kilograms of cocaine base, and the government attributes it to a defendant, then the question of distribution versus personal use will be addressed. Certainly, the attorney will not spend too much time attacking the question of personal use. One would discuss with this expert, however, the structure of drug dealing and the massive amount of manpower employed when taking drugs from the field to the point where they are finally bagged and distributed. Hence, with so many people involved, and so much searchable data created by proffers, a defense attorney will later be poised to ask the jury, “With all of this, why is there no evidence concerning my client being mentioned in the data?” This is a good example of using the government’s expert to illustrate the structure and frequency of proffers and the amazing wealth of data the government receives. Also, this will help the defense when it is pointed out that there was no mention of thedefendant’s name in this expansive database.

Additionally, let us say the client was found to have the drugs secreted away in his luggage when he arrived at Customs. The attorney may need to argue the client had no knowledge the man who lent him the bag had lined it with drugs. Therefore, an attorney will want the government’s expert to testify as to the structure of the drug trade. In order to do this, the attorney will need to make sure the government’s expert is allowed to testify as to the area of expertise now being addressed by the defendant. This expanding of the expert’s area of testimony may be done during the qualifying stage.

Initially, the government will ask the expert about his training and experience. During cross-examination at the qualifications stage, it will be incumbent upon the defense attorney to lay a foundation which allows this expert to be qualified in “all areas of drug trafficking.” This will include knowing about roles assumed by leaders all the way down to the corner sellers. Given the expert will want to impress the judge and jury, he will not be shy when exaggerating his vast experience and knowledge concerning “all areas of the drug trade.” When the government attempts to move the expert in for purposes of “providing expert testimony on amounts and packaging of drugs which are consistent with distribution,” the defense attorney will be asked by the court if there are any objections. In response, the defense attorney should ask for the expert to be allowed to offer opinions, given his vast area of expertise, as to all areas concerning the drug trade. This will allow the defense attorney to assert his or her own theory using the expert. It is likely the government will not object. If they do, remember the supreme rule — judicial economy. “Your Honor, all I’m attempting to do is move this trial along as fast as possible without having to present a line of experts when one will suffice.”

Now that the expert is on the stand, the defense attorney is free to draw a schematic, which would most likely look like a pyramid. At the top is the “Kingpin” and at the bottom is the person who transports the drugs, i.e., the client. The expert will agree that the lower you go on the triangle the less likely the participant will have an understanding of what is going on. The final question to this particular expert: “Isn’t the entire design of the enterprise to keep the lower echelon workers as much in the dark as possible?” With this, you have used the government’s expert to push your theory, which is that “the courier was in the dark as to drugs.” Moreover, you did not have to worry about counterexperts or previewing your exact strategy to the government. Naturally, the government has a host of objections it could make. Depending on the court, some of these objections will be sustained; others will not. In many instances, the prosecutor will not even take note until it is too late.

Obviously, there are a number of permutations this type of strategy can take. Yet, as suggested above, do not simply look at the government’s expert as a resistance point. A creative attorney should always think of roles all witnesses for the defense or prosecution may take during a trial.

4. Presenting an Expert

The tactics one may use when hurting the government’s expert can also be used to destroy a defendant’s expert. No question should be too hard for the expert to weather. If the expert cannot handle the hardship of the defense attorney’s questions, the expert will face certain difficulty when the government has its way with him or her. It never hurts to test the mettle of a witness in private.

a. Primp, Prime and Beat Up Your Own Expert

While testifying, if an expert ever displays a lack of understanding as to the facts of the case, the jury will be immediately influenced. Ultimately, the expert should sound like an unbiased witness and less like an advocate. Quibbling over peripheral issues, losing one’s temper, crossing one’s arms and being combative are all great ways of flushing this witness away. The expert should be trained not to answer questions unless they are asked and to never assume facts not clarified when answering hypothetical questions. When experts request clarification, it makes them look more careful and the questioning attorney more careless. Unfortunately, given the time restraints placed on attorneys, lawyers tend to get a false sense of comfort with an expert and begin to assume the expert will be an expert witness in all regards. Surely, experts will know their field. But do they know the art of testifying?

Hopefully, the expert will have done some independent study as to what makes a “good” or “bad” witness. Asking an expert for the definition of a “good” witness may not be a bad starting point when evaluating the expert’s level of sophistication. Remember, experts are fungible; “Mom,” the alibi witness, is not. If your expert is a great expert and a bad witness, use him or her as a consultant and get an expert who presents well before the jury.

Hiring attorneys should beat up their own experts far worse than opposing counsel will. Go over every item on the expert’s CV. Ask the expert to review the CV for any corrections, outdated memberships, etc. If the attorney requests that the expert review the CV before submitting it to the attorney, the expert will have a good idea of what is being asked for and remove possible problems before having to discuss them. This does not mean the attorney should forgo a subsequent line-by-line review of the CV with the expert.

A hiring attorney should request the names of an expert’s prior clients and contact them. This will help clarify weaknesses and strengths faced when utilizing expert testimony. There is no excuse for not contacting the expert’s past clients. If possible, copies of transcripts should be obtained from other attorneys or the expert. If an expert takes exception to any of this, the attorney should be alarmed.

Attorneys dress clients and their families; experts should be dressed too. Begin by deciding what role the expert is going to play — teacher, critic, etc. Then choose the appropriate attire. For example, teachers wear tweed and physicians wear blue blazers. If handled well, the expert may come to appreciate the attorney’s comprehensive and effective approach.

b. Invite Your Expert to the Show

Unlike most witnesses, experts are not sequestered. In fact, they are allowed to base their testimony on information gleaned during the trial’s presentation. While it might be foolish and too expensive to have an expert sit through the entire trial, the expert should be there during all relevant testimony and evidence presentation. An attorney’s expert is likely to be a far more powerful critic of another expert’s conclusions if the critic can say, “I was in the court when Dr. Andrews said . . . and his opinion is flawed based on. . . .”

Keep tabs on when the government’s expert is in the room. It may look a little embarrassing to the government’s expert if the government decides to miss key testimony which would have impacted upon the expert’s opinion. It is certainly appropriate to ask what information an expert used in order to come up with his or her opinion. If an expert can be made to appear to be purposely limiting exposure to data, or ignorantly doing so, a jury should be alerted. This is especially true when the government’s expert could have been privy to testimony which would have had an important bearing on stated opinion.

c. Simplicity

Destroy the discipline’s lexicon. Most areas of expertise have their very own lexicon. Whenever possible, use words and phraseology that already are well known to the jury. Although part of the job is to teach the jury a number of things, the more one teaches a jury, the less jury members will understand or remember. The attorney is providing tools to the few jurors who will advocate the defendant’s position during deliberations. Thus, the attorney should provide these individuals with easily understood and utilized ideas. Each word, as it is uttered during witness preparation, should be evaluated. Merely using words such as “methodology” may make no sense to many potential jurors. Methodology may be a critical concept during presentation, but the attorney should talk about “the correct way to do it” rather than using words such as “methodology.”

Some experts have favorite theories that are rather fascinating, but are too complicated to present to a jury. Be mindful of what may be culled from the expert’s presentation. Government attorneys are famous for overlitigating. There is no reason for a defendant to follow suit. Obviously, this is a tricky area and every possible attack should be mounted. Like many people, however, jurors have limited attention spans. To add to the problem, jurors have varying retention abilities. Let them forget the government’s long-winded presentation and retain the defendant’s well- structured, simple and concise presentation. If a juror cannot articulate a party’s theory, that juror will have a harder time conveying it during deliberation.

Using visual aids during the expert’s presentation is important. According to litigationgroup.com, the retention rate for jurors is increased by 200 percent when accompanied by visual aids. If experts win cases, why not use every tool possible to increase the likelihood of their effectiveness? Naturally, these visual aids should be simple to understand and each presentation should have as little information as possible.

d. Time Management; Qualifying Your Expert

Because jurors have limited attention spans, attorneys should not spend too much time on niceties, introductions, and grand themes. By the time the attorney reaches the heart of the argument, the jury has already entered the REM cycle. It seems impractical, if not criminal, to spend the jury’s most focused five minutes thanking them and speaking of the importance of jury service. A slow start may indicate to the jury that the attorney really has nothing to say.

The same idea holds true for qualifying the expert; do not waste vital time during the qualifying process. Unfortunately, good qualifications will be vital when one wants the jury to trust and use an expert’s opinion. Thus, one walks a fine line.

One way of making this process easier is to use a demonstrative piece of evidence such as a blowup of the expert’s CV. The attorney can have the expert testify about qualifications as he or she points to the backdrop. The expert can indicate specific areas and summarize their achievements rather than provide laborious detail. Because of the 200 percent increase in retention when information is visual, this may help during deliberations if a battle of the experts comes into play. Finally, people seem to believe the written word more than the spoken word. Thus, there seems to be no good reason not to present the CV on 5’ x 7’ cards. It sounds staged, and yet, one gets extra retention, a simplified presentation, and the additional credibility of the written word.

If nothing else, the attorney must highlight the expert’s hands-on experience during the qualifying stage. Jurors loathe academics who have no real world experience. Experts receive far more respect when they can talk about how they muddied their hands and are not relying solely on textbook knowledge.

In the end, the clock is ticking. One should get out of the qualifying area as fast as possible without short changing the important targets. At the same time, an attorney should never rush cross-examining the government’s expert during the qualifying stage.

Notes
1. Joseph L. Petersen et al., The Use and Effects of Forensic Science in the Adjudication of Felony Cases, 32 J. Forensic Sci. 1730, 1748 (1987) (emphasis added).
2. Your have a 2.7 percent chance of rolling “snake eyes” when shooting dice. Thus, you have a better chance of such a roll than seeing a CJA attorney using an expert.
3. For some remarkable information to get you jump started on the pitfalls of eyewitness testimony, go to http://www.psychology.iastate.edu/faculty/gwells/homepage.htm.
4. Recent studies in biological psychiatry have further supported the importance of convincing “some” jurors to convince the rest of the stragglers. As reported in the New York Times article, What Other People Say May Change Your Mind (June 28, 2005), incorrect conclusions, which even a five-year-old could identify as wrong, may be adopted by a person based not on “peer pressure” but rather based on biological effects that take place when a person is exposed to the incorrect conclusions of others.
5. Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint “Science” Is Revealed, 75 S. Cal. L. Rev. 605 (2002).
6. 119 S. Ct. 1167 (1999).
7. 64 F.3d 844 (3d Cir. 1995). n




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