Transcript Admissibility of Experts - The Institute for Sexual Wellness

Expertise on the Stand:
Effective Experts
Renee Sorrentino, MD
Massachusetts General Hospital
www.instituteforsexualwellness.org
Outline
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Fact vs. Expert Witness
Landmark Cases
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Frye
 Daubert
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Attorney Expert Relationship
Courtroom Testimony
Direct Examination
 Cross Examination
 Do’s and Don’ts
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General Principles in Report Writing
Audience Survey
Novice: Testified 0-5 times
Experienced: Testified 5-20 times
Seasoned: Testified over 20 times
Definitions
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Fact witness
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A person with knowledge about what happened in a
case, testifies to the facts of the case
Expert witness
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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
View of Mental Health Expert
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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
Admissibility of Experts
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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.
Admissibility of Experts
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Daubert v. Merrell
DowPharmaceuticals,(1993):
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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.
Admissibility of Experts
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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:
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1)testing 2)peer review 3)error rates 4)acceptability in
the relevant scientific community.
“Meeting Daubert”
Polygraph
 ABEL
 Penile
plethysmography
 MMPI
 Static-99
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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
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Attorney-Expert Relationship
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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
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Courtroom Appearance
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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
Courtroom Attire
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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
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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
Courtroom Attire
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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
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Courtroom Attire
General Tips When Testifying
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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
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”
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Video: Expert
How Are Effective Experts
Measured?
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Credibility
 A) Expertise (credentials, skill)
 B) Objectivity (trustworthy)
 C) Dynamism (performance or delivery)
Challenges to Credibility
 Dissection
of the report
 Cross examination
 Prior opinions or testifying
experiences
Andrea Yates: Expert Testimony
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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.
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It was later learned that no such episode existed.
Video: Expert
Direct Examination
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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
Direct Examination
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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”
Video: Expert
Direct Examination
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Credentials
 Narrative form vs. specific questions
 Appearance of modesty
 Economic use of time
 Reserve special qualifications to relevant
case questions
Direct Examination
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“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%
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Direct Examination
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Doctor, how could Mr. Jones be discharged
when he was experiencing suicidal thoughts?
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In my opinion, it is possible that Mr. Jones did
not report his suicidal intentions to Dr.
Discharge.
Direct Examination
 Should
you identify counterarguments
in your direct testimony/report?
 Yes, if another expert is testifying.
 No, if you are the only expert.
Video: Expert (Odgren)
Cross Examination
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Goals
 1) Attack credentials: education,
experience
 2) Identify bias: hired gun
 3) Challenge the adequacy of the
examinations: privacy, corroboration,
length, inconsistencies
Defeating Counsel’s Tactics
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Tactic: Controlling the witness’s response
by asking a series of “yes” questions then
slipping in an equivocal question
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Reponses: Pause before answering, correct
any errors, focus eye contact on jury.
Defeating Counsel’s Tactics
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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
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Defeating Counsel’s Tactics
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To defeat the “Columbo” tactic
If the counsel is confused, that’s his problem
 Do not volunteer information
 Do not be lulled into complacency
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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.
Defeating Counsel’s Tactics
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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
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.
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Defeating Counsel’s Tactics
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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.
Defeating Counsel’s Tactics
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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
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Defeating Counsel’s Tactics
 Tactic:
Blanket statements regarding
literature
 “Current
with the literature”
 Authoritative text
 Tactic:
Aggressive attack
Cross Examination Strategies
 Always
tell the truth
 Take a moment to think about the
tactic and its implication
 Confident posture
 Provide full opinions
Video: Cross Examination
To Concede or Not to Concede?
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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?
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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.”
Cross Examination Strategies
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Concede points
 Oral acknowledgement
 Affective acknowledgement
 Create cognitive dissonance with oral
acknowledgement and positive affect
Impartial Experts
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“Doctor, would you consider yourself an
impartial expert?”
Truth-telling?
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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.
Truth-telling?
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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
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Report Writing
Report Writing
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Purpose of a report is to answer a legal question
A well written report will assist negotiations
The report will become a permanent part of the
expert’s “record”
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Poorly written reports can be used to impeach
credibility
Value of a report is directly related to ability to
persuade the lay audience
General Principles of Report Writing
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Grammatical and spelling errors indicate
disrespect
Verb tense (past in report, present in summaries)
Maintain a neutral position
Don’t discredit other experts
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Credibility is left to the trier of fact
Stages of Report Writing
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1) Gather material
Primary sources (no summaries)
 Multiple sources
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2) Organize subheadings
3) Formulate opinion
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Umbrella statement
4) Edit
Report: Subheadings
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Qualifications of the expert
Prior relationship of defendant to victim
Defendant’s account of the alleged events
Summaries of police reports, victim & witness
accounts
Violence History
Sexual History
Attorney Control: Report Writing
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Clarify prior to evaluating an evaluee whether a
report is required
Revision in the report may be appropriate if they
do not significantly alter your opinion
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All drafts are discoverable
Principles of Report Writing
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Clear attribution
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Data section is neutral
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He grabbed the policeman’s gun when he knocked at
the door.
Mr. Gee alleges he was at home.
Report is self sufficient
Opinion is formed with clear reasoning
Principles of Report Writing
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Your opinion is stated in simple language with
supporting evidence.
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It is my opinion with reasonable medical certainty that Mr.
Jones was able to appreciate the wrongfulness of his acts on
May 21, 2006. The following evidence supports this opinion:
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1) Mr. Jones told me that he “quickly left the store where he exposed
himself” on May 21, 2006 because he “feared I’d get in trouble with
the cops.”
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2) Mr. Jones wore dark glasses and a hat on May 21, 2006 to disguise
his appearance when he exposed himself because he “didn’t want to
get arrested and go to jail again.”
Do’s & Don’ts of Report Writing
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I have completed a thorough record of Mr.
Smith's record.
Mr. Smith was clearly psychotic when he
committed the offense.
Mr. Smith was not actively suicidal.
Mr. Smith’s memory was not grossly impaired.
Mr. Smith alleged he was unmedicated at the
time of the offense.
Do’s & Don’ts of Report Writing
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Sources of Information: Full clinical evaluation.
Mr. Smith was a poor historian.
Dr. Smart’s diagnosis was not supported by
DSM criteria.
Mr. Smith’s insight and judgment were impaired.
I considered the diagnosis report by Dr. Smart. I
rejected the diagnosis for the following
reasons…
Do’s & Don’ts of Report Writing
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Renee Sorrentino, MD: Forensic expert
The material in this report is confidential.
Summary of opinion.
Qualifications include…internationally
recognized expert in the field of paraphilias.
It can be argued that Mr. Jones was not
compliant with medications.
Red Flag Words to Avoid
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Authorative to describe text
Legally
Draft
Probable and possible
Obviously and clearly
Royal “we”
Complete
Conclusions
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Admissibility of experts determined by legal
standard
Dress for success
Prepare for testimony with attorney consultation
Effective experts are determined by their
credibility
Persuasive testify/reports are simple, clear, and
logical to lay audience