August 2004, Page 54

Preparing to Cross-Examine an Expert Witness-- Part 2
By William P. Wolf

Preparing to Cross-Examine an Expert Witness — Part 2
(Editor’s Note: Part 1 of this series begins on page 38 of the July 2004 issue.)

Get the Entire Laboratory Case File: Preparing for the Subject Matter
 Where I practice, the state’s response to the defense request for discovery with respect to expert evidence consists of the experts’s name, address and a 1-2 page report that discloses the expert’s opinion, which sometimes can be summed up in 4 words. “I think he’s guilty.” Unfortunately, some defense lawyers that I have seen do not ask for any of the notes or data underlying this report, accepting this as “complete discovery.”

Just as you cannot do a decent cross of a police officer without that officer’s reports, you cannot do a decent cross of a forensic expert without all of their reports. Some lawyers that I have advised seem to assume that there’s some magic that “forensically gifted” lawyers have to meet this evidence. There really is no magic, and there is no substitute for getting every piece of paper that the government expert wrote. To see if their data supports their conclusions, you must have the data. It is that simple. This piece of advice is true for DNA experts, ballistics experts, psychologists . . . and so on. You must send a subpoena for everything that the government expert or team of experts produced. That means every scrap of paper, every photograph, every machine result, everything. Some forensic pathologists talk into tape recorders while doing the autopsy. Find out if this is done in your jurisdiction. You can and should also make special, particularized discovery motions demanding this material.


Get the Laboratory Procedures Manual
One thing that typically is not tendered to the defense is the procedures manual for the particular forensic testing done at the government witness’ laboratory. Send a subpoena immediately for this manual. This material serves several purposes. One of the most important reasons to get the manual is to help educate the defense lawyer on the forensic science that the lawyer is learning to prepare the cross-examination. While there are many excellent treatises and articles out there to educate a lawyer about forensic sciences like DNA, I find that repetition of unfamiliar material is key to help comprehend the material.

Second, this material also serves to show whether the state’s witness followed his or her own procedures. You might be surprised to learn that there are analysts who do not know what is in their own procedure manual. I had an analyst in a DNA case insist on the witness stand that there were protocols in the Illinois State Police Forensic Sciences RFLP DNA testing manual that guide the analyst in deciding what constitutes a band on an autorad for comparison purposes and what constitutes a smudge. Since some of the purported bands looked like smudges to me, I decided to make the smudges an issue, as well as the fact that whether something is a band or a smudge is a matter of subjective interpretation. The analyst insisted that the disputed smudge was a band; that it was not a matter of his subjective belief; and that there existed objective criteria in his procedures manual to guide an analyst in making this call. This analyst was surprised to see me hand him a copy of his procedures manual and ask him to find the criteria. He looked a little foolish when he could not find them. It doesn’t take a “forensically gifted” lawyer to realize that points on cross-examination can be made if the analyst does not follow proper lab procedures. More points are made when you can challenge the witness on what is in the procedures manual ... and what isn’t.

Finally, by obtaining a copy of the procedures manual, the manual can be shown to a consulting expert to see whether your expert thinks that the government lab’s procedures are comprehensive, or even adequate.


Get Previous Transcripts of That Expert
These experts testify many times in many cases. Some defense lawyers do not make much of an effort to track down transcripts of previous testimony of the government expert. One reason is simply the cost of getting the transcripts, and another is the fact that we are all very busy. Who isn’t?

Transcripts serve several purposes for any type of witness. They give us a preview of what the witness has said before in other cases. They prepare us for surprise undisclosed expert opinions that may come up that do not appear in the expert’s reports. Assuming the transcripts discuss in any detail the basis for their opinions, the transcripts give you a better idea how necessary it is to get your own expert to verify whether the opinions being given are scientifically valid. They are also available obviously for impeachment purposes. I know that that may seem extremely obvious to write, but you would be surprised how much an expert may change his or her story from trial to trial about things as mundane as personal background.

To acquire such transcripts, it will be necessary to ask around. More and more law offices, especially public defender’s offices, collect transcripts of expert witnesses whom encounter for later use. Criminal defense listservs are also important sources of information. The NACDL Web site is a tremendous resource for asking about specific expert witnesses in seeking transcripts. Many other criminal defense organizations, including affiliates of NACDL, are beginning to maintain their own listserves to pass along information at the state and local level.
 

Study Forensic Sciences
Some lawyers hire an expert with the intention that this expert will solve all of counsel’s problems. While I won’t dispute the necessity for hiring an expert for consultation purposes and for trial, the use of a defense expert cannot serve as a substitute for learning the subject matter yourself. Reading up on the material will help you decide what kind of expert to hire. It will help you decide sometimes who to hire, especially if that person has written on the subject matter of your case.

There are many good volumes to start with to educate yourself on the basics of certain forensic sciences.1 These books can serve as an excellent starting point for further reading materials in other books or in various journals.

Consult with Your Colleagues
This is a time where we as lawyers have to swallow our pride, risk looking foolish, and check our egos at the door by asking lots of questions of our colleagues in the defense bar. Believe me when I say that I have looked foolish to some of my colleagues asking questions that seemed simple or rather stupid. Ask around at the local public defender’s office. There are really knowledgeable people in forensics there. Contact criminal defense lawyer organizations. Many of these organizations, including both the National Association of Criminal Defense Lawyers and the various state affiliates have lawyers who have a great deal of experience in these areas to lend their wisdom. That is one of the main purposes to the NACDL Forensic Sciences committee. They are willing to share their insights, and tell you about the mistakes they have made so you don’t repeat them.

Your colleagues that have experience in forensic sciences can give insights as to obtaining expert assistance, developing a forensic theory of the case, and discovering articles and ideas that can lead to the making of a defensible case. The theory of the case in the murder case previously mentioned developed because Barry Scheck, the current NACDL President, presented an interesting paper during an NACDL seminar written by a pathologist who conducted a study on how short distance falls can kill infants — a point of extreme contention, because many doctors say that that is impossible.2 This paper fit within our theory of the case, so we retained its author, Dr. John Plunkett, who proved to be an extremely knowledgeable pathologist, and whose testimony may very well have saved our client’s life by establishing residual doubt that our client committed the acts in question.


Back Away From the Trees to See the Forest
As a defense lawyer I tend to be very detail oriented, so much so that I sometimes spend too much time studying the trees in my case and not enough time looking at the forest, or the “big picture.” This can really become a problem when you are part of a defense team that has been assigned the expert witnesses. It is tempting to compartmentalize the work where different team members do different work, bringing it all together later in the end.

The thing to keep in mind is that everything that you do in your case must relate to your theory of the case and your themes you have developed. The cross of the state’s expert witness is no exception to the need to make sure that all of the defense’s points relate back to the defense theory and themes. To prevent isolating each member of the defense team by compartmentalizing the work, have a team meeting to discuss how the scientific evidence will relate back to the theory of the case and the defense themes. If you are the “forensically gifted” lawyer handling the expert evidence, write down themes or catch phrases that occur to you as you prepare the case on a separate sheet of paper. It will be a tremendous help to making the defense team work as a cohesive whole.

Effective themes can be garnered from movies, television, and other media sources. That’s in no small part due to the fact that this is what jurors relate to. They certainly tend to relate to television more than the science. One favorite example of mine that I have been waiting to use deals with the problem area of cross-contamination in a forensic laboratory. One way a juror may relate to why that’s so important is to remind them of a popular Seinfeld episode. George Costanza was caught in a gathering by another dipping a chip, taking a bite, and dipping it again. While George saw nothing wrong with this, the other actor yelled something like “That’s like taking your mouth and putting into the dip. You don’t double dip a chip!”

The theme of “double dipping” may be a good way of explaining to a juror why cross-contamination can lead to false positive results. This theme, or another like it from some other source, will relate much better to the average juror than a demonstration that the defense lawyer understands fancy scientific terminology.
 

Juries Key in On the Visual . . . Or .. . Put It On the Table!
In your team meeting, remember that juries take very little out of an purely audio presentation back into the jury room when they deliberate. I have done cross-examinations that fellow lawyers have listened to and complimented me on. After the jury convicted, I found out that while jurors liked my cross, they could not follow along with what we were talking about, and they could not remember the concepts or ideas that we were emphasizing in our case.

One way to look at it is from the juror’s point of view. If one remembers the movie “Twelve Angry Men,” the jurors had their collective recollections of the evidence. In an actual case, the jurors will have their recollections, notes (if their jurisdiction allows it), and physical evidence that the prosecutor moved into evidence. That’s all they will have unless defense counsel actively changes that situation. While preparing any case, counsel should look for any opportunity to get other items onto the jury table to affect their deliberation process. This can be accomplished by preparing demonstrative evidence, preparing exhibits that can be moved in as substantive evidence (photographs, documents, etc), and preparing jury instructions to use during closing arguments that the jury will have in the jury room.

Remember that sometimes there are two sets of arguments. There are the arguments that the lawyers deliver to the jurors, and then the jurors are locked alone in a room and the real arguing begins. You must be able to give those jurors delivering your arguments in the jury room the tools for them to fight for you to sway the jurors that want to vote for conviction. Preparing exhibits and instructions . . . and getting them put onto the jury table, will enable sympathetic jurors to fight for you and your client.

Many times, photos are commonly used to this end. Think more broadly. Anything an expert wrote is potentially more damaging to the State’s cause than a photograph. After I moved the fax cover sheet into evidence during the course of the previously mentioned sex abuse trial, I used it in closing, see page 38 of The Champion, July 2004. All the jurors leaned forward to read it, seemingly giving me permission to step really close to the jury so I can speak to them about the case and bond with them. That cover sheet probably mattered more in their minds than anything that any of the lawyers or witnesses had to say about it.

Rituals?
This is not an exhaustive list of things to do to prepare for an expert. Some of these suggestions may simply be silly rituals of mine that give me confidence to cross-examine an expert. I hope that you will find some of these suggestions helpful in your practice as you fight for your client and the Bill of Rights in our Constitution.

Notes
1. Two of my favorites are Lee, Harris, Physical Evidence in Forensic Science, Lawyers and Judges Publishing, 2000; and Spitz & Fisher, The Medico-Legal Investigation of Death, Third Edition, Thomas, 1993.
2. See, Plunkett, Fatal Pediatric Injuries Caused by Short-Distance Falls, American Journal of Forensic Medicine and Pathology 22, No. 1-12, (2001).


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