Expertise on the Stand: Effective Experts

1. Expertise on the Stand: Effective Experts Renee Sorrentino, MD Massachusetts General Hospital www.instituteforsexualwellness.org

2. Outline • Fact vs. Expert Witness • Landmark Cases • Frye • Daubert • Attorney Expert Relationship • Courtroom Testimony • Direct Examination • Cross Examination • Do’s and Don’ts • General Principles in Report Writing

3. Audience Survey • Novice: Testified 0-5 times • Experienced: Testified 5-20 times • Seasoned: Testified over 20 times

4. Definitions Fact witness A person with knowledge about what happened in a case, testifies to the facts of the case Expert witness A person, who by virtue of education, training, skill, or experience, is believed to have expertise and specialized knowledge in a particular subject beyond that of the average person

6. View of Mental Health Expert Studies consistently rank psychiatrist as the least credible among medical experts 2001 Survey of courtroom personnel views of Mental health experts 1) Psychiatrist: preferred mental health expert 2) Clinical diagnosis most important 3) Less interested in research or actuarial evidence

7. Admissibility of Experts Frye (1923): It provides that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community. Frye test, or general acceptance test is a test to determine the admissibility of scientific evidence.

8. Admissibility of Experts Daubert v. Merrell DowPharmaceuticals,(1993): Supreme Court case determining the standard for admitting expert testimony in federal courts. The Daubert Court overturned the Frye standard; the standard that the Court articulated is referred to as the Daubert standard.

9. Admissibility of Experts Daubert standard Evidence based on innovative or unusual scientific knowledge may be admitted only after it has been established that the evidence is reliable and scientifically valid. Daubert outlined four considerations: 1)testing 2)peer review 3)error rates 4)acceptability in the relevant scientific community.

10. “Meeting Daubert” Polygraph ABEL Penile plethysmography MMPI Static-99

11. Initial Attorney Contact • Clarify the specific question • Is a report requested? • How to communicate findings? • Review the specific legal criteria or standard in the jurisdiction of your case

12. Attorney-Expert Relationship Discuss your findings on the phone or in person to avoid “discoverability” Identify strengths and weakness Insist on a pretrial conference to review questions, identify points to bring out, strategize about weakness/potential pitfalls Importance of staying within your area of expertise Prior testimony in similar cases

13. Courtroom Appearance You are on stage the entire time you are in the court house (bathroom, phone calls, lunchroom) You should wait to be called to testify outside the courtroom Leave the courtroom immediately after testifying

14. Courtroom Attire Matching two-piece solid or pin-striped suit Tailored fit, including pants length Color: Dark colors, preferably navy or gray Shirt with collar: white or light color Tie required - no bold prints or patterns Matching two-piece suit (skirt suit) or tailored dress with jacket Tailored fit, knee-length - no extreme slits Color: Dark colors, preferably navy or gray Shirt with collar or tailored blouse: white or light color Crisp, conservative blouse - no low-cut tops

15. Courtroom Attire Minimal jewelry and make-up (nail polish, if worn, should be neutral and chip-free) Bring professional portfolio or briefcase (dark color) No visible piercing or tattoos No facial hair

17. Courtroom Attire

18. General Tips When Testifying Know the facts of the case cold Do not read your report Bring only necessary notes to stand Make eye contact with the jury-Pay attention to the body language of jurors Do not use humor

19. General Tips When Testifying Don’t volunteer information Refer to your C.V. as a resume Be prepared to answer questions regarding your fee Don’t refer to yourself as an expert or “forensic”

20. Video: Expert

21. How Are Effective Experts Measured? • Credibility • A) Expertise (credentials, skill) • B) Objectivity (trustworthy) • C) Dynamism (performance or delivery)

22. Challenges to Credibility Dissection of the report Cross examination Prior opinions or testifying experiences

23. Andrea Yates: Expert Testimony Ms. Yates’s first conviction was overturned after Dr. Park Dietz, told the jury that before the drownings, NBC ran an episode of the television series “Law & Order” about a woman who was acquitted by reason of insanity after drowning her children. It was later learned that no such episode existed.

24. Video: Expert

25. Direct Examination • Powerful, persuasive, understandable speech • State things clearly • Avoid absolutes: “always” and “never” • Avoid emphatic!! • Confident language: avoid “it seems, I believe” • Do not speculate or guess

26. Direct Examination • Powerful, persuasive, understandable speech • Define technical terms and jargon Understandable language is persuasive • Use objective language • Minimizes hesitancies such as “umm, uh” • Polite but not excessive • Don’t acknowledge “sources as authoritative”

27. Video: Expert

28. Direct Examination • Credentials • Narrative form vs. specific questions • Appearance of modesty • Economic use of time • Reserve special qualifications to relevant case questions

29. Direct Examination • “Doctor, what degree of certainty did you use to form your opinion? • Reasonable medical certainty • What is “reasonable medical certainty?” • Varies but jurisdiction but commonly defined as “more likely than not” =51%

30. Direct Examination Doctor, how could Mr. Jones be discharged when he was experiencing suicidal thoughts? In my opinion, it is possible that Mr. Jones did not report his suicidal intentions to Dr. Discharge.

31. Direct Examination Should you identify counterarguments in your direct testimony/report? Yes, if another expert is testifying. No, if you are the only expert.

32. Video: Expert (Odgren)

33. Cross Examination • Goals • 1) Attack credentials: education, experience • 2) Identify bias: hired gun • 3) Challenge the adequacy of the examinations: privacy, corroboration, length, inconsistencies

34. Defeating Counsel’s Tactics Tactic: Controlling the witness’s response by asking a series of “yes” questions then slipping in an equivocal question Reponses: Pause before answering, correct any errors, focus eye contact on jury.

35. Defeating Counsel’s Tactics • Tactic: “Columbo.” Cross-examiner acts confused about statements in the report • Counsel acts “bumbling or confused” about report with following goals: • Elicit a long, detailed response that will provide additional information for cross • Elicit, inaccurate reply borne out of frustration • Elicit a correction of the question by the expert

36. Defeating Counsel’s Tactics To defeat the “Columbo” tactic If the counsel is confused, that’s his problem Do not volunteer information Do not be lulled into complacency

37. Defeating Counsel’s Tactics Hedging example Q: You state in your report on page 6 that “it seems” that Mr. G was upset? A: My opinion is that Mr. G. was upset. Q: So the “it seems” portion of your report was written in error? A: Yes. The report should read, “My opinion is that Mr. G. was upset.

38. Defeating Counsel’s Tactics Tactic: Hedge words are attacked Counsel may be successful in showing the expert used these terms because they were unsure of the acts This can completely undermine the credibility of the expert and may lead to outright reject of expert’s opinion as speculative

39. Defeating Counsel’s Tactics Tactic: Expert reveals feeling Counsel will use any statement that tends to indicate bias or lack of impartiality. Words such as “I feel, think” can destroy the expert’s credibility.

40. Defeating Counsel’s Tactics Tactic: Boilerplate language Q: Your report indicates that Mr. G’s cognition was “grossly intact.” A: Yes Q: But this was a hypothetical appraisal since you didn’t test him? A: No. I didn’t That paragraph is in there because almost all of my evaluees are cognitively intact.

41. Defeating Counsel’s Tactics • Tactic: Boilerplate language • Counsel’s goal is to show that the expert’s reports are • All the same • Are interchangeable • Are part of a hired-gun assembly line or • Are ultimately not to be trusted or believed

42. Defeating Counsel’s Tactics • Tactic: Blanket statements regarding literature • “Current with the literature” • Authoritative text • Tactic: Aggressive attack

43. Cross Examination Strategies Always tell the truth Take a moment to think about the tactic and its implication Confident posture Provide full opinions

44. Video: Cross Examination

45. To Concede or Not to Concede? Q: Doctor, isn’t it true that, nationally as well as locally, the options in treating a suicidal patient include hospitalization, supervision, mediation and counseling? A: In a general sense those are not always options available. There are sometimes when hospital is not available. Sometimes when there is no therapist or other people available. And so those factors would influence this.”

46. Cross Examination Strategies • Concede points • Oral acknowledgement • Affective acknowledgement • Create cognitive dissonance with oral acknowledgement and positive affect

47. Impartial Experts “Doctor, would you consider yourself an impartial expert?”

48. Truth-telling? Witnesses take an oath to tell the “whole truth” Admissibility may impede “whole truth” Case: Evidence that would establish the basis for commitment was disallowed because it was obtained prior to the patient’s having been given a non-confidentiality warning. The psychiatrist was only permitted to testify about information obtained subsequent to the warning.

49. Truth-telling? Constraints imposed by the court prevent “whole truth” The witness can “waffle” and withdrawal opinion Continue to assert that the patient should be committed despite convincing evidence

50. Report Writing