July 2004, Page 38

Practice Points- Preparing to Cross-Examine an Expert Witness-- Part 1
By William P. Wolf

Preparing to Cross-Examine an Expert Witness – Part 1
It seems very hard to prepare for an expert witness as a criminal defense lawyer. After all, most of us are not forensic pathologists, DNA experts, ballistic experts, and so on. It is very tempting to procrastinate on expert witness issues, for any one of a number of reasons. Unfortunately, I have seen some colleagues do little to no preparation for expert witnesses at all; or wait until the night before the trial to begin writing the cross-examination of this particular expert. Others simply say, “I’ll get my own expert!” No thought goes into what kind of expert you may need, or about the special circumstances of the case at hand, to find out what you need to know from your expert. Sometimes our experts are only as useful as the questions we think of asking them.1

While cross-examinations of some witnesses may be written as late as the night before the trial, that will never work with respect to experts. One must start early on in the case in preparation for these key witnesses at the onset of the case ... as soon as you are appointed or retained. Given that dedicated post-conviction lawyers are showing that innocent people are being found guilty across the country, an argument can be made that we in the defense bar are not doing enough in this area to prepare for the government expert.2 Sometimes, we are not doing enough to either discover or understand the meaning of the “forensic facts” of the case at hand, leaving that government expert room to say anything he wants to as a basis to support their opinions in our cases.

Through careful preparation, government experts can come off badly on the witness stand. This possibly can be attributed to one fact: these people are not used to being challenged. We have gone too long not reviewing the prosecution expert’s conclusions or the data that supports it, so these experts are sometimes quite surprised to see a defense lawyer be knowledgeable about what happened in their case at all, so much so that you can make huge points on cross-examination.


Preparation for Control
The name of the game in any cross-examination is maintaining control of your witness. One of the reasons why it’s more difficult to keep control of an expert compared to any other type of witness is the court’s declaration of the witness’ expertise.3 After all, (in most jurisdictions) before you ask cross question 1 to challenge their opinions or anything else (except their qualifications), the trial court has declared that witness an expert in front of the jury in their field. This witness has been anointed with credibility by the judge in the eyes of the jury, meaning that you must maintain absolute control leaving no wiggle room for the witness to do anything but answer your precise question. Your ability to keep control will depend heavily on your preparation to show that jury not just that you know what you are talking about, but more importantly, that this expert’s opinion should be heard by the jury with caution.

1. Write your cross-examination on a computer.

While it may seem odd to discuss the writing of the cross-examination at the outset of the column, I find it helpful to discuss what shape your cross-examination will take before you go into the courtroom. I heavily subscribe to the method of dividing the cross-examination subjects into “chapters.4” Once I first learned this method, I always used a legal pad to sketch the cross, dividing up matters into different chapters, and writing the final version on that pad of the cross to take to court.

I no longer use a legal pad to prepare a cross-examination of an expert. As I prepare a case over the days or weeks approaching trial, I divide chapters into different pages in a word processing document on my computer. I have found it to be much easier to not only keep myself organized, but also to keep thinking about the cross without feeling overwhelmed. It is very useful to put sections of reports, learned treatises, medical records, lab manuals, or anything else into the specific chapter that I want to expand on based on new material that I read as I go on preparing. It is also a superb way for me to completely master the facts of the case. I have found in some of my cases that by the time I was done writing the cross, I knew the facts in the case better than anyone else in the courtroom, including the government expert hitting the stand.


2. Develop a forensic time line of events.

While I am writing my cross, I also develop a separate document that I call a “timeline of forensic events.“ It may start with when an ambulance is called, or when an evidence technician first arrives at the scene. It is a very useful tool to have for knowing your facts and developing your forensic theory of the case to explain the forensic evidence. It is also a handy reference to have at the podium during cross-examination if you get stuck as to what happened and when it happened especially when confronted with a large amount of material.

3. Develop a glossary of expert witness terms: use the expert’s terminology.

My worst experience with an expert witness on the witness stand involved my first fingerprint expert. After the debacle that I will politely call cross-examination was over, one of my friends, Assistant Public Defender Bruce Mosbacher, pointed out one of the major problems with my cross. It was something that I never considered in cross-examining this police officer that now is an “expert”: I never used the expert’s terminology. I used words that common-sense told me meant the same thing as their terminology, but this always gave this expert an opportunity to say “I don’t know what you mean by that, counselor.” It was an opportunity that the fingerprint cop took every chance he got in answering my questions when I did not use their precise “terms of art.” I had no control over this witness, and believe me, it showed. The cross-examination was embarrassing.

Use of their specific, exact terms in court avoids this problem. Synonyms to the expert’s terminology are no substitute in part because any lab manual or learned treatise that you can use to keep your witness in line with what you want them to say does not use those synonyms. In order to use the terms in court, one must also understand the meaning of those terms. Thus, in addition to preparing the timeline, I now also prepare a glossary of unfamiliar terms that can be used as a reference in plowing through all of the material.

Sometimes, this glossary can be very brief, but in complicated cases the glossary can also be extensive. In a capital child murder case I was asked to do with my friend (and very capable lawyer) Assistant Public Defender Woody Jordan, the forensic pathologist assigned to the case did not use plain English terms in writing her autopsy report, but used an extensive amount of medical terminology.

To do an effective cross-examination on her, I had to know all of those medical terms used in the report to prevent her from being evasive. The forensic theory developed in that case was that the autopsy was done incompetently and as a result, it was necessary for defense counsel to know an extensive autopsy report better than either of the state’s experts: the forensic pathologist who did the autopsy and a pediatrician/child abuse expert. I borrowed a doctor-friend’s medical dictionary and looked up every medical term that I didn’t know. A glossary, in addition to a timeline, turned out to be indispensable in doing an effective cross of these experts. I guess the bottom line is that unless the defense lawyer understands the material, there is no way the defense lawyer can convince the trier of fact to understand why the government expert is mistaken.


Types of Experts
In preparing for an expert, you are preparing for the specific person on the witness stand. You are challenging their specific qualifications and their specific opinions, nobody else’s. After interviewing various government experts in many fields, I have found that there tend to be three separate types of experts that a defense attorney may encounter. When one goes and interviews (or attempts to) the government witness, I find it to be very helpful to not only interview the government’s expert to try to see what the expert will say on the witness stand, but also to see what type of expert I am dealing with before the expert testifies. Believe me, it helps to know far in advance.


1. ‘The straight shooters’

These are generally the best experts to encounter in the field of the forensic sciences. These are people who call them as they see them. They will occasionally opine in favor of the state. They will occasionally opine in favor of the defense. They owe no loyalty to anyone but the search for the truth, which is the goal of all true science. They will concede unfavorable facts that do not support their opinion if they exist, and will candidly discuss them with you before trial and on the witness stand.


2. ‘The whore’ These are generally some of the worst experts to encounter. These are people who will either testify to whatever the proponent that is paying them wants them to testify; or testify to whatever the influential political movers and shakers wants them to say (in criminal cases, always the state). Many times these people feel that pleasing the state will be extremely helpful to their careers later on in life.

While interviewing them will be helpful before trial, one must keep in mind that what you ask will go directly to the prosecution later. If you do not want to front your cross to the state, one must be very careful what one says to the expert. As opposed to the first category, there is very little you could say or do to change their mind regarding the case.

3. ‘Zealots’

These are generally the most dangerous experts to encounter on the witness stand. These people are experts that generally have “a cause.” Sometimes it is the pediatrician who loves children so much they make immediate judgements through a prism that is a closed mind in the name of protecting children. Sometimes it is the forensic scientist who does not reveal to all parties that the blood evidence does not match the defendant in the name of fighting crime. Sometimes it is simply someone on a power trip, who testifies as the proponent of a particular theory of theirs that they are defending, like hair analysis being as conclusive as fingerprint analysis.

One reason why these people may be dangerous is that they are usually paid very little or even nothing because they simply want to help their cause. Hearing a prosecutor say “Our expert was willing to testify for nothing. The defense expert testifies for money,” can be very influential to a jury. Zealots cannot be underestimated.

When you interview a zealot, you again must be careful as to what you say. When interviewing the pediatrician mentioned above, she asked at the close of the interview who was doing the cross-examination of her. When my lead counsel, Woodward Jordan, pointed to me, she immediately demanded to know why (Woody conducted the entire interview). It seemed obvious to me that the doctor’s agenda for the interview was to learn our cross-examination questions. She hardly answered any of Woody’s “non-softball” questions; them with an evasive “I’ll get back to you on that.” She never did. She was using the session to prepare for our cross by learning the questions in advance. She was very disappointed to learn that someone else other than Woody was asking her the questions that she was not going to know what questions she was going to be asked later.

Investigate the State’s Expert
One thing that I firmly believe is that juries evaluate expert testimony much more on the character of the witness himself rather than the quality of the work or the validity of the opinions being given. In other words, juries are going to decide these issues much more on whether they like the expert rather than the science itself.

We in the defense bar have taken for granted the sincerity and the integrity of the government’s experts for way too long. We should not assume that they are telling the truth about anything any more than a “rat” who makes a deal with the government to testify against your client in trade for a lesser sentence. Unless we take a really hard look at these people that the government throws up on the witness stand, there will be more and more injustices through forensic fraud in the future.

One easy resource is the Internet. Do a Google search on the expert and see what pops up. You may find papers, articles about the expert, or even cases where you have a new resource: a defense lawyer who you know encountered this expert. Go onto Lexis or Westlaw to look for cases where the expert has appeared as an expert witness, as well as articles that may have mentioned the expert by name in high profile litigation. You may find out that they have been sued. Sometimes, you can find a tremendous wealth of information about the expert without ever having to leave your office. It will make life for your investigator a lot easier if you can assist your investigator in the search for the truth.

Even if you find no dishonesty or fraud through investigation, knowing what kind of expert that you are dealing with will help tailor your facts to your theory of the case. For example, if you have a zealot on the witness stand; someone who has only testified for one side on a particular issue, you will be better able to sell that the expert is part of a biased investigation of your client than if you are dealing with a straight shooter who calls it and he or she sees it.

Interview the State’s Expert
There is really no substitute for interviewing the government’s expert. I have heard some lawyers say that they would choose not to interview them so that government gets no preview of your cross-examination of the expert. While that is a valid concern, I believe that they should be interviewed anyway.

Keep in mind when conducting the interview that you are trying to learn a little bit about the expert’s character as well as the content of their opinions. This will tell you how much control you will have over their witness. It will also tell you whether the expert seems trustworthy. After all, if you think the expert comes off as believable and unbiased, don’t you think that a jury might view that expert the same way?

I have seen lawyers essentially cross-examine experts during the interview itself. The stated reasons for doing this range from showing the expert that the defense lawyer is knowledgeable about the subject matter at hand, to “sending a message” to the expert witness that he is being targeted. This does not help your cause. The goal of many cross-examinations is to limit the amount of information that the jury receives while getting your good points out. The goal during the interview is much different. It is information gathering about the experts opinions as well as the expert himself.

When interviewing the expert, it should be done in a non-confrontational fashion. It should be very friendly, open, and done without asking any leading questions at all. Get the expert to talk, much in the same fashion as you would try to get a potential juror to talk to you about their opinions. You will see whether they are likeable people, whether they appear to be sloppy, lazy, or have any other character traits that might turn off a jury. Exposing unlikeable character traits of an expert witness sometimes can count for much more than pointing out actual flaws in their reasoning to the jury.

You also may never know what you might find out, no matter how general or obvious the question may be. In one of my recent cases, I represented a father who was accused of raping his own daughter. After her outcry, she went to an emergency room. The emergency room doctor there found no tears, bleeding, or anything else to suggest recent trauma. The police and prosecutors three weeks later took the child to a child abuse expert, who after two examinations concluded that the child was sexually abused.

When I interviewed their expert, it was at her office in front of the prosecutor. Because of my (constant) concern that the prosecutor might not tender me all of the records in the case, I gave the expert my records and asked her to compare them to hers to verify that I had everything. I cannot tell you how surprised I was when the doctor stated that there were records I had that she did not have. The state’s expert only had a partial record of the emergency room records. She did not have any of the emergency room records that were most damaging to the prosecution. I honestly cannot say that I would have thought of asking her whether the prosecutor gave her the entire record, but we milked that for everything that it was worth in front of the jury. The jury acquitted in 75 minutes because they believed that this was a biased investigation from the start where the police, the expert and the trial prosecutors all played a part.

Incidentally, this was also a case where developing a forensic timeline of events was another key factor for our success. The state’s expert wrote her final report on the same day as her final evaluation of the child. She wrote in her report that records from the emergency room visit were not available at the time of the writing of her final report. She testified on the witness stand that she did not need any of the emergency room records to form her final opinion.

In reviewing the records that were maintained by the Illinois Department of Children and Family Services, DCFS acquired a fax cover sheet from the emergency room where the girl was treated. The fax was originally sent to the hospital by the State’s expert asking for all of their records, ASAP.

When I put that document into the time line, I realized that their expert sent that fax 3 days after writing her final report. She put herself in the absolutely untenable position of stating that the records weren’t necessary to write her report, but that she also needed the records ASAP. The jury believed the defense contention that she was a zealot; that all children she sees are victims in her eyes so long as the victim says she was abused; and that every allegation that she hears should be believed.

Notes
1. This column is intended to emphasize that different preparation techniques must be used in the preparation of the cross-examination of experts as opposed to any other type of witness in our line of work. While this column covers the method of preparation for any expert in any field, it cannot be completely comprehensive given that any specific field may have special considerations when preparing for that field of expertise.
2. For an excellent discussion of cases where innocence has been established typically through post-conviction DNA testing, see Scheck, Neufeld, and Dwyer, Actual Innocence, Doubleday, 2000
3. I do not mean to imply that the “tried and true techniques” are different for cross-examination of expert witnesses. The techniques for cross-examination are essentially the same for expert as they are for any other type of witness, but I do hope to try to give the reader some helpful tips in preparation to maintain control given that there are some unique problems that defense counsel has in maintaining control of an expert. For an excellent discussion of cross-examination techniques, see, Pozner and Dodd, Cross Examination: Science and Techniques, Michie, 1993. Additionally, one of the best lectures I have ever attended to learn about cross-examination was done by Terence F. MacCarthy Sr., called “ ‘Look Good’ Cross-Examination.”
4. Cf. Pozner and Dodd, Cross Examination: Science and Techniques, Michie, 1993
[Author’s Note: I would like to extend my thanks to my friend and colleague, Brendan Max, as well as my wife Angela, for their thoughtful comments on ealier drafts of this piece.]


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