DV Tip of the Week

5 MIN READ

The judge just excluded our resident expert. What now?

IF you did a good job of laying the foundation, then what's the next step?

The problem

I've been working with several agencies that have experienced recent difficulty in establishing expert testimony. In all three cases the witness had previously qualified as an expert. In all three cases the prosecutors did a good job of laying the foundation. In all three cases the defense was able to convince the court to exclude the expert (although in one case the judge was already predisposed to move in that direction.

Dissecting what went wrong

Naming conventions

A common issue in all three cases involved a "strangulation expert." Unless you are a ninja warrior or some military special forces operator, you probably aren't an expert in strangling people. The courts confused this naming with thinking the expert needed to be a doctor.

Most doctors don't have that kind of training. (Courts don't know that)

You are far better off to call your expert by what they truly are: A forensic nurse with specialized knowledge, education, experience, and training in handling cases where a victim has been subjected to strangulation.

OR

A law enforcement officer with specialized knowledge, education, experience, and training in handling cases where a victim has been subjected to strangulation.

Connecting the dots

The second issue I saw in all three cases was a failure to connect the specialized knowledge, education, experience, and training with the issue of why an expert is needed.

There are myths and misperceptions around strangulation that the general population doesn't understand (email me for 5 of them).

Medical professionals do not receive training in this area unless they go to a specialized course. As a result, many people who aren't doctors (nurses, advocates, law enforcement, prosecutors) have more knowledge, education, experience, and training than doctors.

The totality of the courses taken. Some of these courses were developed under the Department of Justice or funded by VAWA. The instructors might be some of the best in the world. That all gets lost if all the witness does is name the course. Talk about the instructors. More importantly, talk about the significance of what was learned in these courses.

Linking their training to the experience of the witness and how what they learned in training correlates to their experience.

Not a diagnosis

We are not using these witnesses to diagnose injury. We are using them to say that the signs and symptoms in a particular hypothetical or patient examination is consistent or inconstant with being strangled.

We are using them to educate the jury about common signs and symptoms.

We are using them to dispel myths about strangulation.

Don't get framed

The other area where all three prosecutors met resistance was in letting either the court or the defense frame the witness testimony as something it wasn't.

"They aren't trained to diagnose. You need a doctor for that."

"If half have injuries and half don't, the witness can't really tell us anything."

Timing is critical

The last area that complicated all three cases involved timing. In all the cases the court expressed some sort of time pressure to get the hearing completed. No court wants to leave a jury waiting. No court wants to conduct a motion in limine when the trial is running behind schedule.

Detailed trail briefs help prevent this, but also getting the motion handled before jury selection can help limit this. Be tactical about your scheduling of the hearing. Work around the court's idiosyncrasies.

The next time

Since your expert failed to qualify this time, anticipate an even greater fight next time. Revise your trial brief, plan a more detailed foundation, and have a backup expert waiting...just in case.

Want those 5 myths or more information on qualifying your witnesses as experts?

Email me: gfineman@dvtrainandconsult.com with any questions.

The legal stuff