SAMPLE DIRECT AND
CROSS-EXAMINATION
OF EXPERT

This is one portion of the direct and cross examination of Dr. Robert Waldman, a defense expert on drug addiction who testified at the involuntary manslaughter trial of Dr. Conrad Murray for killing Michael Jackson.
Part 2
Part 3
Part 4

SAMPLE DIRECT AND
CROSS-EXAMINATION
OF EXPERT

Defense direct examination and aggressive prosecution cross-examination of defense expert witness Dr. Paul White in the trial of Dr. Conrad Murray for killing pop singer Michael Jackson by administration of the drug propofol:
Part One
Part Two
Part Three
Part Four
Part Five
Part Six
Part Seven
Part Eight
Part Nine
Part Ten
Part Eleven

Prosecution direct examination of Dr. Steven Shafer, professor of anesthesiology at Columbia University, to rebut the testimony of Dr. Paul White
Part One


Introduction

On this web page, you'll find lots of links to web sites, some good - some not so good, with information about expert witnesses and where to find them, plus a bit about how to keep an expert's testimony understandable, e.g.,  (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), (19), (20), (21), (22)  (23 - ACFEI), (24 - AMFS), (25 - ASQDE), (26), (27), (28 - WashLaw), (29 - a criminal lawyer's list) (30 - NLADA Forensic Library), (31 - NYSDA list of experts), (32 - Yahoo).  In these modern times, when science and technology are in full flower, it's not surprising that many criminal trials involve the examination of expert or skilled witnesses.

One cannot hope to enjoy success as a prosecutor or defender without having mastered the craft of preparing, presenting, and attacking expert testimony (1), (2), (3). The CCJA publication, Expert Witnesses in Criminal Cases, provides a more sophisticated and comprehensive understanding of the role of the expert in criminal cases that this Expert Witness web page.  [Note: Read Strengthening Forensic Science in the United States: A Path Forward, the 254-page 2009 report of the National Academy of Science that gives crime labs a sickly bill of health, particularly in the areas of forensic analysis of hair, fibers, fingerprints, firearms identification, blood spatter, and bite marks. (1) You can read it for free, but if you are defending a case involving one of those areas, you might consider buying it and using it as a learned treatise  to impeach the opposition's expert or offering it as probative evidence under your state's version of the hearsay exception for learned treatises, see FRE 803 (18). See below for how to impeach using a learned treatise.]

Who is an expert?

An expert may be defined as one who has specialized knowledge by education, training, experience, or skill. (Either formal training or experience will do.)

What are some of the relevant recognized fields of scientific, technical, and other specialized knowledge, and who are some of the people who testify in court as experts?

[Note: Over 400 possible resources have been placed in ( ) in this portion of the monograph on expert witnesses. Except as noted, neither the CCJA nor myself vouches for any of these resources. They are here solely to assist prosecutors and defenders in trying to locate possible expert consultants and/or witnesses. Some of these resources are experts who have been mentioned positively in anecdotal conversations amongst defenders and prosecutors. If you are a practitioner and know of a qualified expert that should be listed or dropped from the list, drop us an e-mail with the expert's name, area of specialization, and web address.]  Many categories of forensic expertise (1), (2), (3), (4) are relevant to criminal cases. They include the following:

  • altered audio and video recordings (1), (2), (3), (4), (5), (6), (7- article)
  • arson (including such matters as gas/vapor flammability, fire properties, thermal stability, electrostatic properties, dust explosion hazards) (1), (2), (3), (4) , (5 - You must have this publication if you are trying an arson case or a case involving explosive; it's the Bible of the trade, the benchmark reference book - NFPA 921, Guide for Fire and Explosions Investigations 2004 Edition, book or PDF download $48; be aware, a new edition will be released in 2008), (6 - Fire and Arson Scene Investigation 2000), (7), (8 - accelerants, (9 - pro-prosecution fire investigation experts), (10a, 10b - prosecution) , (11 - pro-prosecution), (12)
  • audiology (1)
  • blood stain (spatter) pattern analysis (1), (2), (3), (4), (5 - Association - includes list of terminology), (6 Canada), (7), (8a, 8b, 8c - prosecution), (9 at VIFSM - prosecution), (10), (11 - Okla.), (12 - Bloodstain Evidence Institute - Professor Herbert MacDowell, Corning, NY), (13 - Miami, Fla. - prosecution), (14 - Henry Lee Institute of Forensic Science), (15)
  • child sexual abuse accommodation syndrome (CSAAS) (1 - NDAA slide show info), (2- info), (3 - questioned), (4), (5)
  • climatology and meteorology (1), (2), (3 - National Climatic Data Center), (4 - American Meteorology Society Members), (5), (6 -Weather records. Click on Data Products Dots are weather stations; focus on your target area of the country.)
  • computer forensics (recovery of lost or deleted files, theory, etc.) (1), (2), (3), (4), (5), (6), (7), (8), (9), (10 - articles also), (11), (12), (13), (14 - federal guidelines for seizure & search), (15), (16 - cops who seize and examine contents of computers), (17 - Deloitte's Financial Advisory Services -Analytic & Forensic Technology), (18 - headed by ex-FBI agent), (19 - tips for the forensic computer examiner on cross) , (20 - electronic crime scene investigation: 2001 law enforcement guide), (21- forensic examination of digital evidence: 2004 law enforcement guide), (22- article re cross of this expert), (23 - recent casel law under "computer forensics"), (24 - explained), (25 - article), (26 - Federal Guidelines for Searching and Seizing Computers), (27 -DoJ Memo)
  • DNA analysis (1), (2), (3), (4 - Lab Corp of America, North Carolina; does STR-Y), (5), (6), (7), (8), (9-Reliagene Technologies, Louisiana), (animal 11, 1213 - canine), (14), (15 - Association), (16), (17A - good articles also, 17B), (18), (19 - best index), (20), (21), (22 - Bode Technologies- Virginia), ( 23 - Orchid Cellmark, Texas)
  • dui/dwi  (1 , 2 - breath), (3 , 4, 5-prosecution only - HGN), (6, 7, 8, 9, 10 ,11- field tests), (12, 13, 14  blood, breath, urine)
  • facial recognition technology (1)
  • false confessions (1), (2), (3), (4 - articles), (5), (6), (7 - article), (8 - article), (9 -article),  (10  - bibliography) , (11), (12), (13 - transripts of testimony and other information re Drs. Saul Kassin, Richard Leo, and Richard Ofshe), (14 - pro-prosecution info re interviewing and obtaining confessions), (15 - article)
  • forensic art   (1), (2), (3)
  • forensic chemistry (1) , (2 - analytical chemistry), (3 - chemical society), (4&5- periodic table), (6 - database), (7- links)
  • forensic pathology (1) (2- shaken baby doll), (3 - Armed Forces Institute), (4), (5), (6), (7 - child abuse/computer generated graphics of injuries), (8), (9 -pathology of drug use), (10), (11 - a superb forensic pathologist and also a lawyer), (12 - web site contains some brief but useful information re the role of the forensic pathologist), (autopsy info 13, 14 -Association, 15, 16), (medical terms  17), (18 - time of death), (19 - asphyxiation), (20), (21 - Johns Hopkins info re pathology), (22 - forensic views of the body), (23 - Body Farm), (24 - shaken baby), (25), (26 - list), (27)
  • forensic psychology     (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15),  (16 -child abuse), (17), (18 - ABFP), (19 - ATSA), (20), (21), (22-polygraph), (23), (24 -reference), (25 - memory decay re child witness competency),  (26 - National Center for Prosecution of Child Abuse - has vast database of transcripts of of experts used by the defense),    (27 - family psychology), (28- psychopathy indicators) , (29 - info), (30 - info)
  • forensic toxicology        (1- Society), (2), (3), (4 - Glossary), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16, (17), (18 -     employee drug testing only, but with several interesting articles), (18 - mass spectrophotometry), (19 - Board), (20)
  • gangs (1 & 1)
  • homicide investigation (1), (2)
  • hypnotism
  • inability to knowingly waive Miranda (1)
  • Internet sex addiction (1), (2), (3),(4). 
  • knots (1), (2)
  • luminol analysis (1)    
  • neuro-pharmacology (1), (2)
  • pharmacology (1 , 2 - alcohol), (3 , 4 alcohol & drug), (5 - drug), (6)
  • photography/imaging (1), (2)
  • physics    (1)
  • plant botany (1), (2), (3), (4), (5), (6), (7 - article), (8 - article)
  • police procedure (1
  • radiology (1)
  • rape trauma syndrome (1 - 92 pp. article), (2-wiki), (3 -info), (4-info), (5-info), (6- info), (7-info)
  • reasonableness of lethal force in self-defense  (1 - 1)
  • sexual assault nurse examination  (1 - 46 pp. article)
  • statistics (1), (2)
  (prosecution - FBI Trace Evidence Section phone - (703) 632 - 8449) including:
fibers (1),
hair [Note: Hair cannot be positively identified to a particular person.]
tool marks (1), (2
paint/polymers (1)
glass
soil
paper
wood
footwear & shoeprints (1), (2 - brief explanation), (3 - explained)
tire tracks (1)
feathers
building  materials
     explosives and explosive residues     (1 - Guide for Explosion and Bombing Scene                                             Investigation 2000)
pollen
  • voice spectrography  (1)
  • weather & tides (see Climatology)
  • wound ballistics (1), (2), (3 - info)  

There are some terrific sites, e.g., (1), (2), (3)  that contain literally hundreds of forensic links. Start your research with those last two. For somewhat simplistic layman's discussion of some of these fields of forensic science, check these sites: (1) , (2), or (3). Another site has some quick-read articles that will give the rookie prosecutor or defender a fleeting flavor of science as it applies to criminal cases. Check out these forensic evidence links (1), (2), (3), (4) to current articles of interest. You might be interested in the association of crime lab directors or the California Criminalistics Institute sites. Lastly, check your search engines for directories of experts (1). See Other Resources below for hyperlinks to many of the commercial directories of experts. .

How do you find the right expert?

Locating and engaging an expert is the step you take when you anticipate that you will need expert opinion. Note that I have hyperlinked some of the areas of expert specialization with names, e-mail addresses, and web sites of various experts. Most of these folks are well recognized names in their fields and offer their services for a fee. I do not vouch for any of these experts, but provide them as a good starting point for lawyers who are trying to find  the right expert. Here's another great web connection for locating experts. See Other Resources at the bottom of this page for the web locations of a couple of commercial clearinghouse services that supply you with the names of experts throughout the country.] 

[Tip: Be inventive in your search for expert assistance. Don't stop with commercial lists. You will often find the names of outstanding expert witnesses in the reported cases, e.g., See Buchanan v. State, 69 P.3d 694 (Nev. 2003) for names of a slew of experts on both sides of the fence in the field of SIDS (sudden infant death syndrome). You can also find experts who don't advertise by looking at the list of presenters at conferences. For example, a recognized expert in the field of shaken baby syndrome is Dr. John Plunkett, M.D., of Minnesota; psychologist Dr. Phillip Esplin, Ed.D, of Arizona is a recognized expert in sex-offender assessment and the use of the plethysmograph; Dr. Steven B. Karch, MD, an assistant medical examiner in San Francisco and world renown expert in the pathology of drug use and  toxicology, has no web site but is the subject of several pages of references in any search engine.  . Though you may not encounter these expert's names on published lists of experts or personal web sites, each spoke at recent nationwide conferences, e.g., (1), (2). Another example of an expert whose name you would have to work to find would be Jeff Hollifield, a recognized expert in the field of forensic microscopy, chemistry, and trace evidence testing; this expert does not appear to have a web site, but does speak at various conferences; from conference information, one can determine that he is the president of Micro Analytical Laboratory in Greenville, SC, and, using search engines, the phone (864-250-0804) and address of that lab can be found. Another superb source for names of highly competent  forensic scientists would be Dr. Frederic Whitehurst, Ph.D. (in chemistry) and J.D., former FBI lab employee and 1996 whistle-blower who was instrumental in exposing prosecutorial bias in the FBI lab (1) (2) and promoting correction of some of the problems in the lab during the '90's. If I needed the name of a competent expert in the physical sciences, I would try to contact  Dr. Whitehurst, who presently works as a forensic consultant (P.O. Box 820 , Bethel, NC 27812 / 252 825 1123) for leads (1) (2). If, for example, you are looking for a toolmark examiner, he might provide you with the names and contact numbers of such highly reputable experts as Jack Dillon, retired FBI toolmark unit chief, or Bill Tobin, retired FBI chief metallurgist; similarly, if you were looking for a outstanding fingerprint expert, he might furnish you with contact information for Keith Fairchild.  The point of this tip is simply that you will have to expend some time searching and networking for the right contact expert because many of those most skilled in their craft don't advertise or seek publicity.]   

Experts for Indigents

If you represent an indigent, as a matter of fundamental fairness,you may be entitled to public funds with which to employ your own expert. Your research will begin with Ake v. Oklahoma, 470 U.S. 68 (1985) (1),(2),(3),(4) in which the U. S. Supreme Court held it to be a violation of due process for the trial court to deprive an indigent accused of access to the expert services of a state-funded psychiatrist in a capital murder case, where there had been a factual showing by the defense carrying forward the burden of showing that the accused's sanity at the time of the offense would be a significant factor at the trial. But see Caldwell v. Mississippi, 472 U.S. 320 (1985). In Ake, the Supreme Court placed some strictures on the indigent's right to access experts. You will have to show the trial court that your penurious client has a plausible defense in need of expert services. The indigent is not entitled to experts comparable to those that a wealthy defendant might afford. Also, the court said Ake did not have a due process right to freely choose  his own psychiatrist or receive funds to hire his own psychiatrist. You will have to examine the cases in your jurisdiction that interpret Ake, e.g.,in Texas, the seminal case appears to be Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995) (1),(2)making clear that the indigent's right to access to expert assistance is not limited to psychiatrists. When seeking an order from the court authorizing access to state-funded expert assistance, be certain to craft and present your Motion for Court Appointment of a Competent Expert from (insert the pertinent field) to Assist the Defense in a manner that distinctly sets forth your need for assistance. See Motions for a list of several hundred common criminbal defense motions. It is best to file the motion as an ex parte confidential pretrial request. For information regarding funds for employment of an expert at government expense, see 18 U.S.C.A. Section 3006A(e)(1), the federal statute that authorizes the trial court upon request to approve payment of investigative expert or other services necessary for adequate representation. [Case law suggests that the statute authorizes payment for services of a non-testifying expert.] In drafting your pretrial motion, take a look at Art. 26.052 (f) CCP, the Texas statute authorizing advance payment of fees for experts in death penalty cases; it suggests that your motion should include (1) the type of investigation to be conducted; (2) specific facts that suggest the investigation will result in admissible evidence; and (3) an itemized list of anticipated expenses for each investigation. Here's a recent presentation regarding how to obtain expert assistance at state expense.

Why do we use experts?

We use experts to:

  • furnish factual data and explain scientific principles to lawyers in the course of pretrial investigation;
  • furnish information to the trial court in a Daubert or Frye [Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)] hearing challenging the admissibility of novel science in the field of interest
  • furnish the fact finder with facts and data underlying expert opinion;
  • provide expert opinion testimony based on underlying facts and data;
  • explain scientific principles;
  • testify as to test procedures and results
  • clarify the meaning of real evidence;
  • impeach the other sides's experts with contrary testimony;and
  • establish the predicate for the introduction of probative and impeachment evidence from learned treatises.

Remember that non-testifying experts may be employed to assist you in attacking the opposition's case, e.g., preparing you  cross-examine the opposing expert. Also, you may need an expert to testify in a hearing, e.g., Daubert  v. Merrell-Dow, 509 U.S. 579 (1993) (1 - another version) (2 - all the federal Daubert cases from the various circuits) (3 - Daubert procedure), General Electric Co. v. Joiner, 522 U.S. 136 (1997) (1 - another version) (2 - Joiner discussed), United States v. Scheffer, 523 U.S. 303 (1998) (1 - another version) (2Scheffer discussed), Kumho Tire Co., Ltd., et al. v. Carmichael, et al., 526 U.S. 137 (1999) (1 - another version) (2 - Kumho discussed), and Weisgram v. Marley Co. 528 U.S. 440 (2000) (1 - another version) (2 - Weisgram discussed),  attacking the admissibility of unreliable junk science or technical evidence. If that fails, you may want to use the same expert at trial to impeach the opposition's expert witness and/or to authenticate learned treatise. 

When is expert testimony admissible?

Here are some very basic evidentiary matters to consider when you are faced with trying to get expert testimony in or keep it out:

Operable Rules or Statutes - Make yourself aware of any rules or statutes that govern the admissibility of expert testimony. For example, if you practice in federal court, you must master the discovery Rule 16 of the Federal Rules of Criminal Procedure, particularly (a),(1),(G) and (b),(1)(C), and Article Seven of the provisions of the Federal Rules of Evidence; in Texas, my home state, you will need to absorb Article Seven of the Texas Rules of Evidence.

Relevancy - The basic test of relevance for expert testimony is whether it will be of some aid to the trier of fact in deciding the case. The judge decides whether it will. (See Rule 401 and 702 TREFRE)

Ultimate Issue - Under Rule 704 TRE & Rule 704(a) FRE, the expert is allowed to give an opinion embracing the ultimate issue, if it is helpful to the trier of fact. The judge decides if opinion on the ultimate issue will be helpful or not. [Note: In federal court, experts are not allowed to opine as to the presence or absence of the culpable mental state element of the crime or the mental element of a defense.] If the information in question is within the ordinary knowledge and experience of the jurors, the expert's opinion on the ultimate issue is really not needed.

Reliability of the Field of Expertise - Following the lead of the Daubert v. Merrell Dow Pharmaceuticals, in many jurisdictions the judge acts as the gatekeeper in deciding whether expert testimony in the particular field will be allowed. See the discussion of Daubert at the bottom of this page under Other Resources. If you want to prevent the jury from hearing the expert testimony, file a motion to suppress and pursue it at an oral hearing. The rules of evidence don't apply to the factors that the judge considers in deciding whether the field of expertise passes the reliability test. Factors that the judge may consider in making the determination of admissibility of expert testimony in the field in question are: (1) Testing -  Are the principles of the field tested or at least subject to testing? Has the theory or technique been tested? (2) Peer Review - Is there a body of published literature concerning the field of expertise? [Here you determine whether there has been peer review and publications of the field or area by the relevant scientific community.] (3) Error Rates - Is there information concerning error rate? [Here you inquire what the known potential error rate is.], (4) Acceptability in Relevant Scientific Community - Has the theory attracted widespread acceptance within the relevant scientific community? Is there a relevant scientific community, and, if so, what is the relevant scientific community, and does it accept the theory or technique employed? (5) Standards - Are there standards that control the operation of the technique?

General scientific acceptance of a field of expertise is not a precondition to admissibility in Texas or in federal court. Remember, once a trial judge decides that expert opinion is admissible, it remains for the jury to determine the credibility of the evidence.

Challenge to the admissibility of the field of expertise: If there is a challenge to the reliability of the field of expertise, the trial court is required to conduct a hearing. This sort of challenge would typically occur only when the field of expertise involves a new theory and/or methodology of questionable reliability.

If there is a Daubert type challenge to the admissibility of the field of expertise, the trial court is required to conduct a hearing. This sort of challenge would normally occur only when the challenge is to a new theory and/or methodology of questionable reliability.

Texas law re challenge to the field of expertise: In light of Kelly v. State, 824 S.W.2d 568 Tex. Crim. App. 1992), Emerson v. State, 880 S.W.2d 759 (Tex. Crim. App. 1994), and Hartman v. State, 946 S.W.2d 60 (Tex. Crim. App. 1997), the opinion of an expert must be shown to be acceptable in the scientific community. It is not required that an expert's opinion be based on a reasonable degree of scientific certainty. Probability is sufficient. The legal test for admissibility of non-scientific expert testimony is found in Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998). What is "non-scientific" expert testimony? It includes fields based principally upon training and experience in soft sciences, e.g., social sciences, or any other expert testimony not based on hard science. Three questions must be answered: (1) Is the field of expertise a legitimate one? (2) Is the subject matter of the expert's testimony within the scope of that field? and (3) Does the expert's testimony rely upon and or utilize the principles involved in the field? Here is a 61-page discussion of expert testimony in Texas criminal cases.

What objections can you lodge to keep expert testimony out?

It's been said that the true danger of expert testimony is that one can get such wholesome returns of conjecture out of a trifling investment of fact. One can object to expert testimony on numerous grounds. Even if a forensic test is  itself valid in theory, defenders sometimes object on other grounds, e.g., that the test was contaminated, corrupted, and or compromised. Here are a few of the most common objections to expert testimony:

  • The testimony will not assist (help) the trier of fact to understand the evidence or to determine a fact in issue;

  • The purported expert testimony is not relevant in that it will not make a fact of consequence to this lawsuit any more or less probable than it would be without the testimony;

  • The particular field is not a proper subject of expert testimony;

  • The purported expert is not qualified by knowledge, skill, experience, training,  or education in the particular field of science, technical, or other specialized knowledge;

  • There is insufficient proof that the technique employed by the expert qualifies as reliable scientific, technical or other specialized evidence;

  • There is no adequate showing that the expert testimony is the product of reliable facts or data (or is the product of reliable principles and methods);

  • The is no adequate showing that the witness has applied reliable principles and methods of the field of expertise to the facts of this case

  • The purported expert testimony is unfairly prejudicial and its probative value is substantially outweighed by the danger that this unfair prejudice will unduly influence the trier of fact;

  • There are insufficient underlying facts or data upon which the expert could legitimately base an opinion;

  • The expert opinion based his opinion on inadmissible facts or data, e.g., inadmissible hearsay, that is not of a type reasonably relied upon by experts in the particular field in forming opinions;and

  • Expert testimony concerning the otherwise inadmissible facts or data upon which the expert bases his opinion should not be allowed in evidence before the jury because the danger that the inadmissible facts or data will be used for a purpose other than explanation or support for the expert's opinion outweighs their value as explanation and support. [Note: If, over your objection, the trial judge allows the expert to testify to otherwise inadmissible evidence in explanation or support of the opinion, be certain to ask for a limiting instruction.]

See the Objections Page and the Monograph on Objections in Criminal Cases.  

[Note to new lawyers: One of the shocking aspects of forensic science is that there is basically no uniform regulation of forensic crime labs and, thus, no real standard requirement of accountability. Other types of laboratories are regulated, but not crime labs. This opens the door for possible fraud and potential cowboy methodology. Maintain a skeptical attitude of crime lab reports until you are convinced that your local lab operates on the up-and-up.]   

What are the basics of direct examination of an expert?

With direct examination of your expert, you seek the expert's opinion and the underlying data and/or factual basis upon which it is founded. You will want the jury to know what your expert did, how s/he did it, and what the result was. You want the jury to believe that your expert is skilled, unbiased, likeable, and truthful Consider the scenario of the typical direct examination of your expert.

    First, you qualify your expert as knowledgeable in the recognized field. The expert's knowledge must be such as to assist the trier of fact. See Rule 702 TRE. You can establish the expert's qualifications in one of several ways, e.g, (1) orally (This may bore the jury if it is long and tedious.); (2) by stipulation (You may want to stipulate to the opposition's expert's competency to testify when their expert looks better on paper and orally than yours. Of course, the other side doesn't have to agree to your offer to stipulate expertise of it's expert and usually won't unless it appears in their interest to do so.); and (3) by submitting an agreed written resume, otherwise known as a CV or curriculum vitae (CV), recounting the expert's credentials. When qualifying your expert witness orally, to keep him from looking like an egotistical popinjay (a strutting supercilious person) lead him, so that you are telling the jury about the expert's qualifications and he is merely agrees with modesty. If you have an expert with a truly great CV, try to get it into evidence as a summary of the witness' credentials..  

     Second, after the proponent has finished attempting on direct to qualify the witness as an expert, the proponent will tender or submit the expert to the trial court (judge) as sufficiently qualified to provide expert opinion testimony to the jury. Typically, the trial court will then ask the opposing counsel if there is any objection to the competency to the witness to testify as an expert. On occasion, the opposing counsel will want to question the witness on voir dire for the purpose of demonstrating grounds for an objection that the witness is not qualified to render expert opinion and, thus, is not competent to testify on the merits before the jury. [Note: Remember how the prosecutor unsuccessfully did this in My Cousin Vinny  (VIDEO) when Mona Lisa Vito (Academy Award winner Marisa Tomei) was called by defender Vincent LaGuardia Gambini (the great Joe Pesci) to testify as an expert on tire treads?] In some instances, the lawyer who has finished qualifying the expert witness will, unless there is an objection to the witness' qualification to render expert opinion, simply proceed to questions about the expert's work on the instant case. This latter approach leaves the trial court out of the qualification determination, unless the opposing counsel seeks a court ruling on the issue of the witness' competency to testify as an expert. [Note: If your opponent feels that your witness is not competent to testify, the opponent typically will ask the court for permission to voir dire the witness out of the jury's presence for the purpose of disqualifying the witness, i.e., showing that the witness is not qualified to give expert testimony. Be ready for the interruption by the opposition during your direct examination before your witness starts testifying as an expert; the prepared opponent will be ready with voir dire questions that will attempt to demonstrate your witness' lack of competence. When your opponent ends her voir dire questions, you should be ready to ask any necessary questions on voir dire to repair the damage and support the witness' competency.]

[Texas Law Alert 1: Texas prosecutors and criminal defense practitioners must be aware that, under Rule 705(b) TRE, prior to your witness giving any expert opinion or disclosing  the underlying facts or data upon which the opinion is based, your opponent will have the mandatory right, upon request, to take your qualified witness on voir dire, outside the hearing of the jury, to inquire concerning the underlying facts or data upon which your expert's anticipated opinion is based. This rule has the practical effect of allowing the opponent to interrupt you, immediately after you qualify your witness as an expert, to question the witness under oath about the underlying facts or data upon which his anticipated opinion is based. If the trial court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion, the opinion is inadmissible. See Rule 705 (c) TRE. If you are opposing the expert, don't let this opportunity to conduct what amounts to a trial deposition of the opposing expert get by you. Ask to take the witness on voir dire before he starts talking about facts or data or gives an opinion. Object to the admissibility of opinion on the basis of insufficient facts and/or data. You may be able to exclude the expert's opinion. At worst, you've gotten to pin the witness down under oath to his facts and data.]   

    Third, get your expert to briefly explain his field of expertise and its application to the case on trial. Talk to the scientific theories or principles involved in the area of expertise. Establish the sources of information relied upon by your expert. Notice that in Texas and federal court, your expert may rely on hearsay, firsthand knowledge, a combination of hearsay and firsthand knowledge, facts related in the testimony of others, and/or facts contained in a hypothetical question. Under the TRE and FRE, your expert can get his/her facts and/or data by: (1) personal perception (first hand information) or (2) by reviewing facts and/or data supplied by others (information of which the expert has no personal knowledge, but which is made available and  reviewed from other experts, from files, from documents, or from lay individuals) or (3) by otherwise gaining knowledge of the facts and/or data. Knowledge about the facts or data can be acquired before or during the hearing or trial at which he testifies. [Note: If your expert is allowed, under Rule 614(3) TRE, to listen to other expert(s) or lay witnesses testify during trial or hearing, your expert can base his/her opinion on the facts and/or data contained in the testimony of the other expert(s) or lay witnesses that s/he hears during such trial or hearing.] The facts and data that your expert relies upon don't have to be admissible, e.g., they may be totally hearsay, as long as the basis for the expert's opinion is facts and/or data of a type reasonably relied upon by experts in the particular field in forming opinions and inferences. Read Rule 703 TRE and FRE.

[Texas Law Alert 2: In Texas criminal cases, if the underlying facts or data upon which the expert bases his/her opinion would be inadmissible in evidence, e.g., hearsay, they are nevertheless presumptively admissible in evidence solely to explain or support the expert's opinion. See Rule 705(d) TRE. [Note:The FRE do not contain any similar provision for getting otherwise inadmissible underlying facts and/or data into evidence before the jury.] A limiting instruction to that effect must be given if the opponent requests it. If you are going to try to introduce otherwise inadmissible evidence , you must be prepared for the possibility that your opponent will make an effort to totally exclude the evidence. How can this happen? Read on. Major Caveat Re Excludability of Inadmissible Underlying Facts and/or Data: The opponent of the expert may move to totally exclude any inadmissible underlying facts and/or data on two grounds, namely: (1) The danger that such underlying facts or data will be used for any purpose other than as explanation or support for the expert's opinion outweighs their value as support or explanation for the experts opinion (balancing test) or (2) The underlying facts and/or data are unfairly prejudicial (no balancing test). The burden of showing the total excludability of the otherwise inadmissible evidence that supports or explains the expert's opinion rests upon the opponent, who must convince the trial judge either: (1) that the danger that the otherwise inadmissible evidence will be used for an improper purpose simply outweighs its value as explanation or support or (2) that introduction of the otherwise inadmissible evidence would be unfairly prejudicial.]     
   
Fourth, have your expert indicate the standard tests or routine tests utilized in the particular field. Prove up the specific test procedures used by your expert in this case. Indicate any other factors that were relied upon by the expert.

Fifth, elicit your expert's opinion by asking Q: Do you have an opinion as to (state the issue)?  A: Yes Q: What is that opinion?  The TRE and FRE allow your expert witness to testify to an opinion or conclusion. The rules don't require that your expert's opinion be based on "a reasonable degree of  (scientific, medical, etc.) certainty."  Judges seem to like to hear those words, but they aren't required. Texas Rule 705(a) and the FRE let's your expert give her opinion without prior disclosure of the underlying facts, unless the court requires otherwise. Technically, you, as the proponent of the witness, could simply qualify your witness as an expert and have her give her expert opinion. This doesn't happen often. Why? Because expert opinion in only as good as the facts and/or data that undergirds it. Consequently, most trial lawyers want to elicit such information from their witness on direct examination. The FRE and TRE do allow opposing counsel on cross-examination to force the expert to reveal the underlying facts and/or data upon which the opinion is based. See Rule 705(a) TRE.  [Note: In states that haven't embraced the FRE, the direct examiner is required to elicit the underlying factual basis for the expert's opinion.]

What use can you make of learned treatises as probative evidence on direct examination of an expert witness?

The contents of a learned treatise can be a persuasive piece of probative evidence, and this evidence is only admissible in cases involving expert testimony. What is a learned treatise? It's a "published treatise, periodical, or pamphlet on a subject of history, medicine, or other science or art." With proper foundation, the contents of a learned treatise are admissible, as an exception to the hearsay rule, for the "truth of the matter asserted." The contents of your offer come from a written document, often a thick bound book. The learned treatise cannot be cross-examined. The authoritative written statement can only be challenged collaterally. The one limitation is that the actual document, e.g., a book, doesn't come into evidence, but the contents can be read to the jurors. If your evidence is written and is read directly from an authoritative book, jurors will view it as incredibly credible. I suggest to you that this is one of the most underutilized modes of proof in the field of evidence. The learned treatise evidence can be moving. The price is right. It's expert testimony that costs nothing other than the cost of the book. And it's relatively simple to establish the predicate. I've never understood why lawyers ignore the potentially persuasive power of learned treatises. Perhaps, it's because this type of probative evidence is only admissible in cases involving expert testimony. Maybe it's because the introduction of the contents of a learned treatise requires the trial lawyer to investigate the literature and actually read scientific and/or technical books, periodicals, or pamphlets prior to trial, something that many trial lawyers went to law school to avoid.

You can introduce the relevant contents of of a learned treatise for the truth of the matter asserted, provided the treatise is established as "reliable authority." See Rule 803 (18) TRE & FRE. The relevant statements may be read to the jury from the treatise, but the treatise may not be received as an exhibit. You may be able to establish the treatise as "reliably authoritative" through the testimony of an expert witness, your's or the opposition's, or by judicial notice. See the discussion below.

What about cross-examination of expert witnesses?

Cross-examination of the opposition's expert, like cross of any witness, can be of two types: (1) Supportive and Concession Based - here the cross-examiner seeks to obtain helpful concessions from the opposing expert, or (2) Discrediting - here the expert's credibility is attacked.

The  rules of cross-examination and impeachment apply to expert witnesses in the same manner that they apply to non-experts. The only additional mode of impeachment available to those who cross-examine an expert is by way of challenging the witness with statements contained in a learned treatise. A discrediting cross-examination may focus of factors such as the following:

  • Insufficient expertise.
  • Bias, e.g., fees, or prejudice.
  • Reliance on facts and/or data that are not credible.
  • Lack of thoroughness in gathering and reviewing information.
  • Failure to prevent contamination and or corruption of samples.
  • Insufficient testing.
  • Other likely causes.
  • Subjective nature of the opinion.
  • Differing opinions among qualified experts.
  • Prior inconsistent statements in this and/or other like cases.
  • Learned treatises to impeach with different approaches and conclusions.
  • Hypothetical questions.

If the opposition expert is qualified and knowledgeable, your best approach to cross-examination may be to focus only on the area's of weakness in the evidence and/or the expert's conclusion.

How does one use a learned treatise to cross-examine and impeach the opposing expert witness?

Though the rules allow you to introduce the contents of a published learned treatise as probative evidence for the truth of the matter asserted, you can also use the contents of a learned treatise to impeach the opposition expert. How do you do this?

If you are the prosecutor and you have an expert witness who can establish the predicate for the admission of the contents of the learned treatise, you introduce the contents into evidence. Then, when you cross-examine the defense expert, the contents of the learned treatise are already in evidence for use in your impeaching cross-examination. 

If you are the defense attorney trying to cross-examine the prosecution's expert and the prosecution expert didn't rely on the learned treatise on direct, you have the right to call the treatise to the expert's attention on cross-examination. The problem that you run into is that to use the contents of the treatise for impeachment of the prosecution expert, it has to be recognized by an expert or by the court (under it's power to take judicial notice) as a "reliable authority." In most instances, the prosecution's expert will not recognize the treatise you present as a reliable authority. So, unless you can get the court to take judicial notice of the publication as a "reliable authority," you are stymied from the outset in using the contents of the learned treatise to impeach the opposition expert. If you have your own expert waiting in the wings to testify for the defense, chances are that your expert would testify that the learned treatise is a reliable authority. If so, there is a possible solution under the TRE and FRE. I suggest that you ask the trial court to admit the contents of the learned treatise pursuant to Rule 104(a) which indicates that when the admissibility of evidence, here the contents of what you allege to be a learned treatise, is at issue, the trial court determines its admissibility, e.g., existence of criteria for application of the learned treatise exception to the hearsay rule,  and the trial court is not bound by the rules of evidence in doing so. How do you prove that the learned treatise is a reliable authority for these purposes? Rule 803 (18) TRE and FRE says that the learned treatise can be proved as a reliable authority by the witness on the stand or "other expert testimony." Why not attach an affidavit to the treatise from your expert witness stating that the publication is a published learned treatise on the subject at issue and that the learned treatise is a "reliable authority" on the subject at issue? Have your expert state in the affidavit why the treatise is a "reliable authority." Have your expert witness state that he intends to so testify in the defense case-in-chief. Under Rule 104(b) TRE & FRE, insofar as the relevance of the contents of the learned treatise may depend on proof that it is both a learned treatise and a reliable authority, you can ask the court to admit it during your cross-examination of the opposition expert subject to your introduction of proof of both facts during your direct examination of your expert witness. If the court agrees to admission of the contents of the learned treatise during the cross of the state's expert, you can then use the contents in an effort to impeach the expert. It's a lot of trouble, but the alternative is to forego the impeaching cross using the contents of the learned treatise or simply recall the prosecution expert as an adverse or hostile witness during your case-in-chief after your expert has testified and you've gotten the contents of the learned treatise into evidence. (1  - law review article critical of expanded use of learned treatise for impeachment)

Practice Strategies - Expert Witnesses

Interviewing Your Expert

+ Always check your expert and the opposition's expert on the web by running the expert's name through several of the major search engine (1). If your expert is well recognized as an authority, you will generally find some favorable information that won't be otherwise available. It's always nice to know as much as possible about the opposition's expert. [If you are a rookie lawyer without yet having a case involving an expert and the occasion to look for an expert, for practice, go to good search engine and run one or two of these six highly respected experts: Dr. Henry Lee (criminalist), Dr. Mary Case (forensic pathologist), Dr. Marcella Fierro (forensic pathologist), Dr. Bruce Hyma (forensic pathologist), Dr. Vincent DiMaio (forensic pathologist), Dr. Sparks Veasey (forensic pathologist, professor and prosecutor in Brazoria County, Texas).

+ Find out if your expert has a web page. If so, read it from top to bottom. Look for exaggerations and overblown claims or promises. 

+ If the expert is licensed, check the licensing agencies for any disciplinary actions. See Other Resources below.

+ Before you meet with the expert, bone up on the basics of the field of expertise. There is always literature available. You can easily find books on scientific evidence written by law professors, who probably should have been lab assistants, from most of the legal publishers. The forensic science literature abounds with articles in virtually every field of expertise. Personally, I always check the How Stuff Works web site to see if the subject of the expert's opinion is explained in layman's language. I do this because I know that the subject has to be reduced at trial to a level understandable by lay jurors with no expertise in the field. I want to be able to understand the subject at that level, as well as at the more complex scientific level. So, if I find an explanation on the  "How Stuff Works" web site, I print it and put it in expert's file.

+ Before you meet send your expert any relevant material that you want to discuss in your first meeting. You may even want to direct your expert to web sites, e.g., (1), that contain useful articles by experts advising other experts in the field how to present themselves in court. [Note: Be sure to review any article before suggesting it to your expert.]

+ Meet where the expert works, if possible. You can learn quite a bit about the expert by seeing his or her working conditions. You may even want to take a few snapshots of the lab and review some of the learned treatises your expert considers reliable (the ones in his or her office library)..  .

+ Get a copy of the expert's curriculum vitae (resume).

+ Get a copy of the expert's publications.

+ Ask the expert if s/he has prepared any prepared information, e.g, predicate questions, that have been used in previous cases of a similar nature..

+ Discuss the general field of expertise, including theories, methodologies, lab protocols, technology, etc.

+ Find out the expert's chronology regarding the case, e.g., what the expert has done or will do. This level of inquiry should include matters such as what the expert relies(d) upon in arriving at the expert opinion or inference, to whom the expert has spoken or will speak, what evidence the expert has examined or will examine, etc.

+ Ask about the limitations of the field of expertise in general and in your case specifically. 

+ Ask about potentially problematic areas in the field in general and in your case specifically.

+ Examine from all perspectives what the expert's testimony or consultation can offer to prove or disprove an element of the offense or defense.

+ Look at any available tangible or documentary evidence with the expert.

+ Discuss possible demonstrative exhibits in-aid-of-testimony with your expert and seek suggestions for visuals.

+ Resolve issues that have to do with the logistics of exhibits, e.g., who will bring the slide projector, who will bring the carousel, etc.

Final Preparation of Your Expert

+ Go through the CCJA list of advice to witnesses. Remember to tell your expert to be cautious about using the words "always" and "never." (1)

+ Discuss each side's theory of the case with your expert.

+ Go over the organization of your direct examination with your expert witness. Your expert should know the questions you will ask, and you should know the answers the expert will give. If your expert is going to use technical terms, be sure that s/he knows how to define the the concept in language that is comprehensible to lay jurors.

+ Prepare your expert for cross-examination. Do a mock cross; use an associate as the opposing attorney. Include question's about the expert's own works, publications, as well as learned treatises, if any, which express views different to those of your expert.

+ Prepare the visuals, e.g. copies of documents, photos, reports, charts, summaries, conclusions, etc., that you will introduce when examining the expert. Coordinate the visuals with your expert witness so you both are aware of the sequence in which you will introduce of the visuals. Make sure that that your expert knows the answers to any foundation questions for the introduction of visuals.You may want to create a visual that brings it all together for use in argument. Think about blowing up your expert's curriculum vitae and putting it on foamboard; you can then use the board when questioning your witness' qualifications. For an example, see the approach taken with the sample direct examination of the eyewitness identification expert.

+ Show your expert each potential exhibit that the expert will be asked to authenticate and/or predicate. Discuss and explain the exact legal foundation questions that will be asked of the expert.

+ Coordinate the tentative schedule of the expert's appearance, e.g., arrange any required travel and lodging,  establish schedule for testifying, etc.

Preparing to Cross the Opposition's Expert

+ If you believe that the opposition expert's opinion is inadmissible, object to it early on and keep the jury from ever hearing the witness' testimony and opinion.

+ Ask the trial court to refrain from making a statement giving the imprimatur of competency to the opposition expert in front of the jury. Do this by a motion in limine or oral request on the record before the direct examination of the opposition's expert begins.

+ Try to interview the opposition's expert. 

+ If you are able interview the opposition's expert, try to have a prover (third party) witness present; the prover witness can come in handy as as a source of extrinsic proof of inconsistent statements. Sometimes an expert will say one thing during the interview and something entirely different when s/he testifies. If you have a record of the prior inconsistent statement, you are able to impeach the expert with it.

+ When you interview the opposition's expert, you may want to play dumb. Get the opposing expert talking. Listen. Find out as much about what the expert knows about the field and the issue in question. Remember, you are looking for areas of agreement as well as disagreement with your position. In the concession-based part of your cross, you will want to get the opposing expert to concede as much of your position as possible. [Of course, the concessions will come first in your cross of the other side's expert; then you may attack.] Find out about the opposing expert's fees, the purpose of his testimony, authorities s/he relies upon and recognizes as authoritative, and the availability of copies of his test results and notes. When interviewing the opposing expert, try to get him to admit the competence of your expert.

+ Try to determine the expert's previous relationship with any persons associated with the opposition. For example, experienced prosecutors may have worked many cases with crime lab personnel. There may even be social friendships involved.

+ As you interview the opposing expert, think about developing facts that may give you one or more of these attack points - (1)  the expert himself, (2) the expert's technique, (3) the facts and assumptions involved in the the expert's opinion, (4) the manner in which the expert applied the theory or technique, and (5) the ultimate conclusion or inference that the expert draws.

+ Get a copy of the opposing expert's publications. Read them. Understand them. Ready yourself for cross-examination. When the opposing expert testifies inconsistently, impeach him with his own writings as prior inconsistent statements. When the opposing expert does not mention a relevant subject in his testimony, but his publications contain statements that are favorable to your position, show him his own publication, ask if it is a reliable authority, and when he says it is, offer the favorable portion as a learned treatise, and read it to the expert. [The preceding suggestion only works if there is nothing damaging in the portion of the learned treatise you don't offer. For if there is such damaging information, the opposition may offer it under the remainder (completeness) rule.]

+ Independent experts typically have web pages where they tout their services. Check out the opposing expert's  web page. Look for puffing (overblown claims) that can be used for impeachment.

+ If you are anticipating cross-examining a toolmark (including a firearms) identification expert who will claim a "match," it may behoove you to make a letter request of the opposition and its expert that photomicrographs of the match be made. If so, you should also move the court in a pretrial motion to order that such photographic evidence be created. If you are able to employ your own toolmark expert, it is often a good idea to ask your expert to make photomicrographs of what the other side claims is a match. In many cases, the photomicrographs of what an expert may call a match will not be persuasive.

Questioning the Expert

+ Experts will generally be allowed to give longer narrative answers than lay witnesses. The direct examiner typically wants a bit longer answer because she wants to use the witness not only as a source of opinion but also as an informative teacher who can acquaint the jurors with the nature of the field in question. The cross-examiner may wish to object to narrative answers when they come from a convincing opposition expert. Caveat: Avoid overly long narrative answers on direct if the subject matter is so complicated that it should be delivered in measured doses. Here's an example of a direct examination of a neurologist (Dr. Ronald Uscinski) by the defense in the Louise Woodward "Nanny" shaken-baby murder case. [As you may recall, Louise, a young English nanny, was convicted of murder of an infant by a Massachusetts jury after her defense lawyer, Professor Barry Scheck, unwisely declined to have a manslaughter instruction; fortunately for Ms. Woodward, the trial judge later reduced the conviction to manslaughter and sentenced her to time served.]

+ Keep the language plain or at least understandable.

+ Know your expert's terms and definitions. Make a glossary of essential terms, explaining the technical jargon in layman's terms. Use the glossary to get yourself ready for trial. It will help you translate the terms for the jury. Include your glossary in your trial notebook . Consider making the glossary of key terms a demonstrative exhibit to assist the jury in understanding the expert's testimony. You can authenticate the glossary by having the expert attest to its accuracy and testify that it would assist the jury in understanding the expert's testimony. Offer the glossary as a demonstrative exhibit in aid of testimony.

+ Have your expert witness use examples, analogies, visual aids, and/or summaries.

+ If your expert's view coincides with the consensus of the published literature of experts in the field, have your witness so indicate to the jury. Use your expert to authenticate learned treatises that contain statements favorable to you.

+ As a cross-examiner, you will not be able to change the opposition expert's opinion. Instead, attack the opinion by revealing its deficiencies. Instead, take the opposition expert apart by undermining his education, his experience, his examination, and his explanation. 

+ One of the big issues will be whether the jury can be told about the contents of otherwise  inadmissible evidence,e.g., hearsay, that the expert relied upon in arriving at an opinion. You must be ready to argue this issue if your rules of evidence contain a balancing test that permits the expert to tell the jury about otherwise inadmissible underlying facts or data if their value as explanation or support for the expert's opinion is not outweighed  by the danger that they will be used for other purposes. For example, see Rule 705 (d) TRE & Rule 703 FRE.

Sample Direct Examination to Qualify an Expert

Forensic Psychiatrist - State's Witness re Insanity [The following is a brief edited sample of the prosecution's effort on direct examination to qualify a psychiatrist as an expert on the insanity issue. The sample is derived from the capital murder trial of Ms. Andrea Pia Yates in Houston, Texas, March 7, 2002. By her own admission Mrs. Yates drowned her five children in the family bathtub of her suburban Houston residence on June 20, 2001. After doing so, she promptly called the police. Despite testimony from numerous psychiatrists employed by the defense that Mrs.Yates was insane at the time of the killings, the death-qualified jury chose to believe the prosecution's expert, Dr. Park Dietz, and convicted the accused of capital murder, assessing her punishment at life. The Yates conviction was reversed on January 6, 2005 by Texas' First Court of Appeals. The Yates saga is the subject of Professor Denno's superb law review article, Who Is Andrea Yates? A Short Story About Insanity, 10 Duke Journal of Gender Law  & Policy  1 (Summer 2003). To watch Dr. Dietz in another Texas case, look at the 9:10 minute CourtTV (TruTV) video "Not Guilty Not Sane," in which Dr. Dietz testifies, this time in behalf of a female defendant who stoned her two young sons to death; the defendant, Deanna Laney, was found not guilty by reason of insanity. The following Q & A is not suggested as a model, but simply gives the nascent criminal lawyer an insight as to how an expert is typically qualified by the proponent.]

Q: ( By State's Attorney) Good afternoon, Doctor.
A: Good afternoon.
Q: Will you state your name and your profession for the jury?
A: I 'am Dr. Park Dietz, and I'm a forensic psychiatrist.
Q: Dr. Dietz, will you tell the jury what a forensic psychiatrist is?
A: Well, it means I'm a psychiatrist who specializes in the field of forensic psychiatry, which basically means psychiatry applied to matters that are in dispute, typically in court.
Q: Would you tell the jury your educational background that qualifies you to be a forensic psychiatrist?
A: My education began in college at Cornell University in Ithaca, New York, where I earned a degree in biology and psychology. I then entered medical school, and, in 1975, received the M.D. degree from Johns Hopkins University School of Medicine in Baltimore. In the same year, I received a master's degree in public health, also from Johns Hopkins, and completed the course work and subsequently a dissertation for a PhD in sociology, which was awarded. So, that was my basic education.
Q: Would you tell us what training you had after your basic education? 
A: In medicine one has to enter a residency, if one wants to take up a specialty. I entered a residency in psychiatry at the Johns Hopkins Hospital in Baltimore, and then I spent a third year as resident and chief fellow in forensic psychiatry at the hospital at the University of Pennsylvania in Philadelphia, and it was at that time that I did a fellowship in forensic psychiatry. I finished that in 1978.
Q: What positions have you held since you completed your training?
A: Well, my first job after fellowship was as an assistant professor of psychiatry at the Harvard Medical School in Boston and my assignment was at the McClain hospital, which is a private hospital in the suburbs. Through them I was assigned to work in a maximum security institution for the criminally insane called the Bridgewater State Hospital. For two years, I worked there trying, without much success, to improve the quality of patient care and to turn it into a Harvard teaching hospital. There was a whole group of us who commuted to this very scandalous, awful place. And then I spent my third year primarily commuting back and forth to Washington, D. C., because I was asked by the U.S. Department of Justice to be in charge of the evaluation of John Hinckley after the assassination attempt on President Reagan. Then in my fourth year, I spent my time doing research on mentally disordered offenders, doing a study of defendants who had killed, or nearly killed, their victims and looking at the details of their criminal behavior and their mental problems. Then I received an offer from the University of Virginia to become head of its medical program on psychiatry and law, and I accepted a position there, initially as an associate professor and then later as professor of law and professor of behavioral medicine and psychiatry.
Q: What were your responsibilities at the University of Virginia School of Law?
A: Well, as an associate professor and later as a professor, I was medical director of the Forensic Psychiatry Clinic, medical director of the Institute of Law, Psychiatry, and Public Policy. And I taught a course load in the law school, co-teaching courses on law and psychiatry, psychiatry and criminal law, psychiatry and civil law, law and medicine, and law and public health. And I taught a seminar of my own called crimes of violence.
Q: If I understood you correctly, at that time, you also had a role at the University of Virginia Medical School?
A: Yes, in the medical school, I was responsible for the forensic psychiatry fellowship program for training medical students, residents, and various nursing and social work students. Our Institute did the training for all the people in Virginia who were certified by the state to evaluate people for competence to stand trial and for insanity.
Q: Anything else during your tenure at the University of Virginia?
A: During those years at the University of Virginia, I also engaged in a program of research on violent crime, including a project for the U.S. Department of Justice that was the first study of threats and stalking that led to general recognition of stalking as a problem.
Q: Did you have experience working with the Federal Bureau of Investigation?
A: Yes, I had first done some informal consulting with the F.B.I. starting in 1979, but in the early 1980's, they made me officially a consultant to what was then the behavioral science unit at the F.B.I. Academy at Quantico. And from 1982 up to the present, I have been the forensic psychiatrist for the various successors to that unit. It's part of the critical incident response group of the National Center for the Analysis of Violent Crime. But this particular unit has changed hands. Today it's the Profiling and Behavioral Assessment Unit. And with them, I have done research, trained for many years, agents coming through and specialists in profiling, and I consult with them on open cases, so that they will sometimes bring the unsolved cases and ask me to provide a formal or informal opinion.
Q: How often do you do the F.B.I. consulting?
A: It really varies. I think the contract has me down for ten days a year or something less. They don't always use it up, and sometimes they use more.
Q: Have you published any scholarly writings?
A: Yes.
Q: Would you tell us a few of them that might be relevant to your testimony here today?
A: Well, nearly all my publications,of which there are about 100, somewhat over a hundred, have been about violent behavior, injurious behavior, or both. So, I have tended to look at the extremes of human behavior and the horrible things people do to others and to themselves. I have written quite a bit about homicide and about mentally ill offenders, about how to do forensic evaluations and evaluate criminal insanity and topics related to that.
Q: How long have you been examining criminal defendants for purposes of sanity evaluations?
A: Well, the first one I ever attended was as a freshman in medical school and that would have been in 1970 or 1971, but I began doing it myself, prior to trial, in 1977 and have done it ever since.
Q: How many criminal defendants do you think you've examined for the purposes of sanity or in the criminal field?
A: I stopped counting at a thousand, and that was in 1979 or '80.
Q: Do I understand correctly that you worked on the Menendez brothers case?
A: On the retrial, yes.
Q: And didn't you work on some aspect of O.J. Simpson case?
A: Correct. I turned it down when I was approached for the criminal matter.
Q: But I understand you worked on the civil matter?
A: Yes, I did.
Q: You also worked on on the Unabomber case, the Ted Kaczynski case, is that right?
A: Yes.
Q: Doctor, you are consulting with and now testifying as a witness for the Harris County District Attorney's Office for a fee. Would you tell the jury the fee that you charge?
A: Yes, I'm charging the Harris County D.A.'s Office my standard government fee which is $500 an hour.
Q: Have you done work with parents who kill their children?
A: Yes.
Q: Which we learned here in previous testimony is referred to as "infanticide," as a general term, right?
A: Yes.
Q: What has been your experience in that area?
A: I have seen the usual proportion in the course of my early career, and then I have been invited to see an unusually high proportion because I'm often asked to consult on such cases. And, in addition to the ones you mentioned previously, there have been others like Susan Smith in, perhaps, 15 or 20 states of mothers killing their children. 

Other Resources

+ Locating and Engaging an Expert: You'll find lead to a number of experts posted near the top of this page. There are various organizations, e.g., (1), (2), (3), (4), (5)  that make a business of helping lawyers (civil and criminal) find and engage an expert. Some search engines provide list of experts, e.g., (1), (2), (3), (4), (5), (6), (7), (8), (9). Check out this excellent on-line reference book listing  over 2000 experts in 400 specialties. [Note: In the paragraph that lists different area of expert specialization at the beginning of this monograph I have provided a number of hyperlinks to experts who have been lauded by defense practitioners. These links may provide you with a starting point for finding an expert. Caveat emptor.] Here's a 17-page list of forensic experts with hyperlinks (some no longer operational) for defenders. For California practitioners there in a handy list of experts residing in the State. In your efforts to find and engage an expert, you may find it helpful to investigate UseNet news groups in which experts in various fields post messages on message boards. Many forensic experts are members of the American Academy of Forensic Sciences. To stay current with developments in forensic science, keep up with science news, e.g., type "bullet lead" in their "search" box, and read the startling 2004 expose "Forensics On Trial."  Check this Brit site for forensic science listings.

+ DNA -   Check this DNA Bibliography of articles from the popular media, journals and books and the excellent Denver DA's Index to DNA for the latest caselaw re DNA. Also be aware of how blessed DNA has been to the convicts it has exonerated (1 - Innocence Project), (2 - Wrongful Convictions), (3 - Innocence Network), (4 & 5 - projects in my home state, Texas).
  • Laboratories for DNA Testing: Orchid Biosciences, headquartered in Princeton, NJ,  has three Cellmark Diagnostics Labs (In Germantown , MD, (301) 428-4980; Dallas, TX; (214) 631-8152 and (800) 752-2774 (Dallas CM does forensic chemistry also); and Nashville, TN, (615) 360-5000).
  • Information about DNA: Start your research by getting the DNA links available on the Innocence Project web site.  For a bit of guidance on DNA look at these resources - DNA Databases, CODISForensic DNA, DNA Technology, DNA-News (1), (2), DNA for Lawyers , DNA Links , DNA Resources, Articles, Juror Understanding of DNA. A downloadable 92-page Reference Guide on DNA Evidence is located on the FJC site.as part of the Reference manual on Scientific Evidence , 2nd edition. The1996 report from the National Research Council of the National Academy of Sciences entitled The Evaluation of Forensic DNA Evidence  was the report that gave the nod to DNA testing as a viable forensic tool in criminal cases. The report is antedated but does contain useful language concerning the admissibility of DNA population statistics. You may still be able to order a copy at 800-624-6242. This is a current list of DNA news. This 2005 indigent defense conference includes presentations on Understanding DNA and DNA in the Courtroom. Here is a 13-page bibliography of sources relating to the admissibility of DNA, along with cites to writings about DNA. This somewhat dated 1998 tutorial is worth a look for those unfamiliar with DNA. So is this 1999 simplified explanation of DNA for cops and also this 2003 six-page explanation for the thin blue line. A Texas defense lawyer put together this 31-page discussion of DNA and its use in pre and post-conviction criminal cases. This 2006 government-sponsored free online DNA training course for prosecutors and defense lawyers requires registration looks promising. There's a somewhat pricey ($120) 192-page book published in 2007 entitled Dealing with DNA Evidence by a chap named Semikhodskii that I might take a look at if I were a defender facing DNA evidence; I haven't read the book, but it apparently highlights weaknesses of DNA testing and discusses defense strategies for refuting such evidence. I would say the same about Michaelis, Flanders & Wulff, A Litigator's Guide to DNA, Academic Press (2008) $90.
  • DNA Cases That Contain Explanations of DNA: Here are several cases that contain understandable descriptions and explanations of the various aspects of DNA: Anderson v. Commonwealth, 634 S.E.2d 372 (Va. 2006) (DNA expert discussed); People v. Brown, 110 Cal. Rptr. 2d 750 (CA. App. 2001) (DNA explained in lay terms); Commonwealth v. Blasioli, 713 A.2d 1117 (PA. 1998) (RFLP technique explained); Commonwealth v. Vao Sok, 683 N.E. 2d 671 (MA. 1997)  (PCR technique discussed); State v. Butterfield, 27 P.3d 1133 (Utah 2001) & People v. Shreck, 22 P.3d 68 (CO. 2001)  (PCR & STR techniques discussed); State v. Scott, 33 S.W.3d 746 (TN. 2000) (Mitochondrial - "mito" - DNA discussed); People v. Venegas, 954 P.2d 525 (CA. 1998) & People v. Soto, 981 P.2d 958 (CA. 1999) (databases discussed) United States v. Shea, 957 F. Supp. 331 (Dist, Ct NH 1997) (probability statistics discussed); Roberson v. State, 16 S.W.3d 156 (Tex. App.- 2000) (DNA alone sufficient to convict)
  • DNA Database - National - See DNA Identification Act, 42 U.S.C. Sections 14131-34 (1994). Be aware of the Combined DNA Index System (CODIS), a DNA database connected to all fifty states, the US Army, and the federal government (FBI), into which are collected mandatory, known DNA samples from offenders; all the states are participatory contributors; approximately thirty-one states take DNA samples from all convicted felons, irrespective of the nature of the felony and including those on probation and parole; states may also provide for collection of samples in connection with arrests for certain offenses, e.g., sexual assaults, murder; the trend across the country is toward collection of samples from all adult felony arrestees, e.g., such will be the case in California beginning January 1, 2009 (1); collection is typically by buccal (mouth) swabs, unless it is necessary in a particular case to collect blood samples. Across the country, the CODIS system has resulted in the solution of many cases involving DNA, including numerous previously unsolvable "cold cases." For an explanation of the theory that allows challenges to DNA based identifications based on its employment of a small number of databases of several hundred people to claim probabilities in the billions see, Curran, An Introduction to Bayesian Credible Intervals for Supplying Error in DNA Profiles, 4 Law, Probability and Risk 115 (2005). See also Adams, Nuclear and Mitochondrial DNA in the Courtroom, 13 J. L. & Pol'y 69 (2005).
  • STR (Short Tandem Repeat) Testing: This is the PCR based nuclear DNA test that is currently being used across the U.S.A. STR has effectively replaced the RFLP test that was used in the 80's and 90's. STR tests 13 loci. It appears that STR will be the coin of the nuclear DNA testing world for years to come.
  • Mitochondrial mtDNA (AKA "Mito"): Note that because the new mitochondrial (non-nuclear) DNA test (1), (2 -20 pages - Examining Legal Mitochondrial DNA Issues) is maternal in nature, being derived only from the female and inheritable only from female relatives, i.e., each of us gets our mtDNA from our mother, the databases are less developed (I believe there are only some 5,000 in the mtDNA database.) and less specific than PCR/STR. Unlike nDNA which is unique to the individual, mtDNA is not unique to an individual. Therefore, the probability statistics from populations are much lower. The mtDNA is not contained in the nucleus of the human cell. The mtDNA sequences are shorter than nDNA but there are a lot more of them, e.g.,+1000 copies in a single cell each with its own sequence of base pairs; therefore, mtDNA may be present in sufficient quantity to permit analysis when there is no nDNA or an insufficient quantity for nDNA testing. This source of maternal DNA can be found in hair shafts that do not contain a root with nuclear cells and in bone without marrow and teeth without pulp. When forensic scientists are trying to identify hair or bones or teeth with mito testing, in the absence of a known sample from the subject, they must go to a female relative on the female side of the family for their comparison sample. Testing for mtDNA involves much of the same analytical procedure as STR. At this point, not all state labs are doing mitochondrial DNA tests. Of course, the FBI Lab in Quantico, Va. is doing the test. For a list of recent cases dealing with the subject of mitochondrial DNA (mtDNA), see this page on the Denver DA's web site. If you are going to cross-examine on this subject, become familiar with the meaning of the term "heteroplasmy." (1) For more information, see Cheng, Mitochondrial DNA: Emerging Legal Issues,13 J.L. & Pol'y 98 (2005). It will be helpful, if you are trying to understand the basics of mtDNA, to read some appellate opinions discussing the science; of necessity, the judges writing these opinions must explain the science in a way that lawyers, and perhaps jurors, can understand. Here are a few cases upholding the admissibility of mtDNA: State v. Underwood, 518 S.E.2d 231 (N.C. 1999); State v. Scott, 33 S.W.3d 746 (Tenn. 2000); Adams v. State, 794 So.2d 1049 (Miss. 2001); State v. Pappas, 776 A.2d 1091 (Conn. 2001); Commonwealth v. Lyons, 833 A.2d 245 (Pa. 2003); Lewis v. State, 889 So.2d 623 (Ala. 2003); People v. Ko, 757 N.Y.S.2d 561 (NY 2003); People v. Holtzer, 660 N.W.2d 405 (Mich. App. 2003).

  • Testing the "Y" Chromosome for DNA (STR-Y): This is the flip-side of mtDNA. Be aware of the very new "Y" chromosome test that is being run by Cellmark and few other labs (1 - Lab Corp in NC) as a part of DNA testing; the forensic scientist can look a certain areas of the Y chromosome as a new genetic marker. Males get their "Y" chromosome from their fathers. The "Y"chromosome test requires a sample from a male relative on the male side of the family in the absence of a known sample from the person whose identity is being investigated. (Males have one X and one Y chromosome, while females have two XX's.) If there is a mixture of DNA where the female DNA is much stronger than the male. this test is useful, as opposed to STR, because the female DNA is not even seen; thus, you get additional information re the male. Not all state labs are not currently running the "Y' chromosome test. The Denver District Attorney's web site (Go to the DNA Resources link, then to STR-Y admissibility and court rulings.) is the most valuable source of information on the current legal status of STR-Y of which I am aware. [Note: Eight or ten years ago, the "Y" test would not have been available. Science marches on.]
  • [Editorial Comment re DNA Testing: Many defenders and, perhaps, a few prosecutors (Though prosecutors are constantly receiving specialized, high level training on DNA, particularly by the NCDA in nationwide seminars and the NDAA at the imposing National Advocacy Center in Columbia, SC.), across the country have not kept current on advances in DNA technology, e.g., the STR test. (One big exception is the Innocence Project run by law school Professors Barry Scheck and Paul Neufeld, who clearly know which experts to contact to double-check the crime lab's DNA work and also know how to cross-examine the prosecution's DNA experts.) As a consequence of a large portion of the defense bar's failure to learn even the rudiments (1) of current DNA science, collection, and analysis techniques, the prosecution's evidence in many cases is simply not subjected to the sort of critical scrutiny called for in serious felony cases. For an example of what can go wrong with DNA testing when the defense bar is not on guard, take a look at the report of what went wrong in my own hometown's (1) Houston Police Crime Lab (1). See Rodriquez v. City of Houston, No. H 06-2650 (S.D. Tex. filed June 25, 2009) a $5,000,000 civil verdict finding municipal liability for constitutional violations attributable to forensic misconduct of the notorious Houston Police Crime Laboratory. For more information re lab fraud and Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial.]  A strong suggestion: Every defender and prosecutor involved in a STR DNA case should purchase and read a copy of Dr.John M. Butler's 2001 book, Forensic DNA Typing: Biology and Technology Behind STR Markers, Academic Press, London ISBN# 012147951X. At $73.95 from Amazon, it's not cheap, but it's user understandable and the best resource, short of having a trained expert sit down and instruct you, for getting a handle on STR nDNA testing. If you've read the book and opposing counsel hasn't, you will have an enormous advantage in preparing to introduce or challenge nuclear DNA evidence. Dr. Butler has also made many of his terrific STR articles available in downloadable PDF format.

+ International Association of Forensic Toxicologists This site contains some useful articles. Check these toxicology sites also (1), (2) The crime lab directors also have a web site. You will also find a 37-page Reference Guide on Toxicology on the Federal Judicial Center web site. Toxicology dictionary. If you are overcome with curiosity about about gas chromatography, mass spectrometry, scanning electron microscopy, DNA sequencing, comparison microscopy, infra-red analysis, and/or microspectrophotometry, this site has some nice photos of the lab hardware with brief explanations. This site provides quick information on the drugs de jour.

+ Forensic Pathology - Death Investigations: A couple of forensic pathologists, Hanzlick & Graham, wrote Forensic Pathology in Criminal Cases, ISBN 0327106751 (2000), and it's published by LexisNexis. The DiMaio family also has a 2nd edition of its Forensic Pathology, 592 pp. CRC Press (2001) ISBN: 084930072X on the market. For some free stuff on forensic pathology: (1), (2- Autopsy explained),  (3), (4), (5), (6 - Gray's Anatomy, 1200 old but engaging engravings), (7 - photos), (8 - ME crime scene investigator guidelines, 84 pp.), (9 - The Virtual Autopsy), (10- time of death), (11-glossary), (12 - this is an accelerated autopsy of a young woman who apparently dies on a drug overdose; for the law student or lawyer who has not attended an autopsy but is interested in the practice of criminal law, this video gives you a graphic idea of what is involved; not for the faint-hearted). This forensic pathologist is also an expert in creating computer-generated graphics that explain injuries.

+ Forensic Psychology: Start here - (1), (2), (3), (4 & 5 - resources concerning PTSD and other enduring consequences of traumatic stress),    (6 - great site for DSM-IV terms and other insights), (7), (8 - good current review of psychology of sexual predators and pedophiles from law enforcement perspective) Here's a good encyclopedia of psychology. For a discussion of insanity, diminished capacity, and incompetence to stand trial or be executed and the procedures involved, see Silver Bullets II .

+ Forensic Psychiatry: Start here - (1), (2), (3), (4), (5) to learn some basics. These articles (1), (2) discuss the use of psychiatric self-defense evidence in battered spouse/child cases. A psychiatrist has a free subscription-based site with some brief but interesting articles regarding behavioral science and forensics. This is an article on the use of psychiatric testimony in Texas child sexual abuse cases. Here's one about mental retardation, now a salient issue in capital cases where the Eight Amendment re prevents execution of the retarded.

+ Daubert on the web  This site tracks all the decisions that have occurred in the wake of the famous USSC decision in  Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) (1), (2 - junk science), (3 - some steps in Daubert hearing) replacing the older "Frye Test" of Frye v. United States, 293 F.1013 (D.C.Cir. 1923) in many jurisdictions; Frye remains the test in some states, e.g., New Jersey; the opinions in Daubert on the Web are organized by field of expertise and by tribunal; the site has a searchable database with links to the full text of opinions and to many Daubert-related materials.
  • Fingerprints - For example, the scientific legitimacy of fingerprinting has been unsuccessfully questioned in two score of fingerprint cases in recent years, e.g., United States v. Mitchell, 365 F.3d 215 (3rd Cir. 2004) upholding the admissibility of latent fingerprint identification evidence under Daubert. See also United States v. Llera-Plaza,  179 F. Supp. 2d 482 (E.D.Pa. 2002) and188 F.Supp.2d 549 (E.D. Pa. 2002). See also, Cole, Suspect Identities: A History of Fingerprinting, 381 pp., Harvard Univ. Press (2002); (1 - pro-print blurb with a useful list of cases)  But see, Is Fingerprint Identification Valid? Rhetorics of Reliability in Fingerprint Proponent's Discourse, 28 Law & Policy 109 (January 2006). However, it has recently been suggested by researchers that there is considerable risk of subsequent misidentification when digital cameras and/or digital enhancement techniques are used to record latent fingerprints. On the other hand, questioned document examination seems to have the imprimatur of the courts. See Judge Trott's opinion in United States  v. Prime, 363 F.3d 1028 (9th Circuit, 2004).
  • Bullet Lead Matching - Fraudulent Junk Science -Another "hot" area of forensic science was in the area of bullet lead matching utilizing the FBI's "data chaining" protocol. This comparative, compositional bullet analysis procedure, performed only by the FBI lab, has been the basis for FBI lab testimony and convictions in numerous cases. See Hansen, Bullet Proof, 90 A.B.A.J. 58 (Sept. 2004) which points out that the F.B.I.'s estimates that it has used bullet lead analysis in about 2,500 cases in the past three decades, including 500 trials, and underscores that just because two bullets match in elemental composition does not necessarily mean that they came from the same box of ammunition. The scientific validity of the test has now been totally discounted by a report from the National Research Council. The 228-page report, Forensic Analysis:Weighing Bullet Lead Evidence (2004) is available for $47 from this publisher; type in "bullet lead" in the search box. See Kaasa, et al, Statistical Inference and Forensic Evidence: Evaluating A Bullet Lead Match, 31 Law & Hum. Behav. 433 (2007); Giannelli, Composite Bullet Lead Analysis: An Update, 23 ABA Crim. Just. 24 (2008). Also, check this at Google News (a web-based news source) by typing "matching lead in bullets" in the search window. To some extent bullet lead matching is now a dead issue as the FBI, after initially resisting the NRC report, determined on 9-1-05 that it would no longer conduct the examination of bullet lead. However, the FBI took absolutely no steps to rectify the fraudulent testimony that it had given in hundreds of previous cases. See Ragland v. Commonwealth, 191 S.W.3d 569 (KY 2006) and Clemons v. State, 896 A.2d 1059 (MD. 2006). See also (1). On November 16, 2007, two days before the TV show 60 Minutes did a scathing expose of the junk science bullet lead testimony that the FBI lab had given for three decades under the guise of "scientific evidence," the FBI agreed to release information on all cases where bullet lead testimony was given. It remains to be seen if the criminal defense bar can clean up this appalling fraud. Re bullets, be aware that the ATF's National Integrated Ballistic Information Network (NIBIN) stores shell casings and ballistic images (digital photos of markings and striations on bullets and cartridges) for purposes of aiding traces to individual guns.
  • Toolmark Identification -  There is a feasible argument that toolmark identification, e.g., examination of toolmarks on a cartridge case that link the case to a particular firearm, is not a science. If you expect to face a firearms identification expert who will rely on toolmarks, read United States v. Glynn, 578 F.Supp.2d 567 (Dist. Ct., S.D.NY 2008) which provides fruit for a motion to restrict testimony and cross-examination.
  • Ion Scanner - Another yet to be definitively litigated area of emerging technology is the use of ion scan analysis devices, e,.g, the "Itemiser," to detect traces of drugs on clothing. We see similar devices being used in airport scanning of departing passengers.
  • Neuroscience / Neuroimaging - Brain imaging  technology (MRI - magnetic resonance imaging) promises to provide us with interesting legal issues, e.g., mental defenses, detection of deception. For example, will neuroimaging that measures involuntary brain activity (fMRI = functional magnetic resonance imaging) provide a scientifically reliable measure of functions that reflect deception and thus replace the polygraph? See Wilson v. Corestaff Services, L.P, 900 N.Y.S.2d 639 (2010) a civil case excluding plaintiff's fMRI evidence of lie detection. See also United States v. Semrau, (1) in which the magistrate (1) ruled the fMRI evidence of lie detection inadmissible.  (1, 2 Here are a couple of outfits that offer fMRI testing for lie detection.) See VIDEOS of the keynote address and four panels (Neuroimaging and Deception; Applied Neuroscience; Neuroscience in the Tribunal; and Neuroscience, Gender and Capital Cases) from the University of Akron Symposium on Neuroscience; Greely, Law and the Revolution in Neuroscience: An Early Look Across the Field, 42 Akron L. Rev. 687(2009); Fox, Brain Imaging and the Bill of Rights: Memory Detection Technologies and U.S. Criminal Justice, 8 Am. J. Bioethics 1 (2008); Moriarty, Flickering Admissibility: Neuroimaging Evidence in the U.S Courts, 26 Behavioral Sciences & Law 29 (2008). Be cautious of overclaiming what neuroscience can do.Take a look at the Law and Neuroscience Blog.
  • Profiling - Another emerging issue is the admissibility of testimony from a "profiler"? See State v. Fortin, 745 A.2d 509 (N.J. 2000) disallowing profiler testimony for lack of scientific reliability. Note that some criminal defense lawyers who should know think that Daubert has been irrelevant in enhancing criminal justice and that there are still much needed reforms. See, Professor Neufeld's article.

+ The F.B.I Handbook of Forensic Services This reference source produced by the FBI and  published by the U.S. Dept.of Justice describes various forensic tests and examinations performed by the FBI lab, safe and efficient procedures for handling evidence, the methodology for crime scene search and processing, and the way to deal with hazardous materials at a crime scene. The handbook also contains helpful procedures concerning the proper methods of collecting, preserving, and submitting forensic evidence to the FBI lab. The F.B.I. approach should set a standard for all law enforcement crime scene searches and gathering of forensic evidence for testing.  We should all understand this process both for direct and cross-examination, but also for purposes of pretrial planning and preparation of the case for trial. You can access this handbook online.  Prosecutors and law enforcement personnel may obtain a free hard copy of the handbook from the F.B.I. Every defender should go to the trouble of printing an office copy of the handbook from the web site. It is totally free, other than the cost of your paper. I anticipate that defenders will eventually be able to order a copy in CD-ROM or print from the Government Printing Office. For now, just print a copy from the web site. If you read it, you will find that it will be invaluable in your trials.You may also be interested in taking a look at the investigative report of the FBI's lab practices. Also, take a look at the 647-page FBI Reference Manual on Scientific Evidence - 2nd Edition (2000).

+ Digital Evidence: The DOJ's National Institute of Justice recently published this 81-page report: Digital Evidence in the Courtroom: A Guide for Law Enforcement and Prosecutors (2007). See also (1  - forensic examination of digital evidence (2004)), (2 - investigations involving the Internet and computer networks (2007).

+ The NDAA-APRI, an ethical organization of prosecution researchers, publishes and forthrightly makes available some excellent forensic information, e.g., a 40 page manual describing crash reconstruction, a 36 page manual on HGN (horizontal gaze nystagmus, also described here), a 40-page manual on alcohol toxicology. Prosecutors of DWI cases maybe interested in information available from this highway safety site. Prosecutor based organizations, such as the National Center for Prosecution of Child Abuse, often supply prosecutors with transcripts of previous testimony of defense experts for use in cross-examination of such experts. 

+ For sexual assault cases, here is the National Protocol for Sexual Assault Medical Forensic Examinations. If you prosecute or defend sexual assault cases, you must become familiar with the contents of the Violence Against Women web site, as well as the Legal Momentum site of the legal defense arm of NOW, e.g., (1 - re presenting medical evidence in rapes and sexual assaults).

+ DEA Laboratory Operations Manual - You have to order this 370-page manual at a cost of approximately $30 from the U.S. Drug Enforcement Administration; Phone: 202-307-7596. The DEA Agent's Operations Manual, 1017 pages, written by the U.S. Drug Enforcement can be ordered from the same number for about $60.

+ Impeachment of the opposition's expert with prior inconsistent statements from another proceeding: Impeaching an expert with prior inconsistent statements contained in depositions given by the expert in prior cases is common among civil trial lawyers. Businesses such as Trialsmith sell these items. In the criminal arena, the Internet has made it easy for prosecutors and prosecutor organizations around the country to trade transcripts of expert testimony. And they do in a big way. Indeed, some prosecutor organizations keep a formidable arsenal of transcripts of experts who testify for the defense; these transcripts are made available to prosecutors throughout the nation. Many prosecutors belong to a listserv group that allows them to request this sort of data from one another.

+ Checklist for Direct Examination of Medical Experts. Check up on your doctor witnesses at these sites:  (1 - DocFinder is a super resource), (2 fee). Some sites (1) have profiles of physicians. It's a snap to order free medical journals and look up medical terms (1).

+ Books Written by Your Expert and Theirs: Familiarize yourself with the publications of your expert and the opposition's expert. Check the card catalogues of numerous libraries to locate published materials written by a expert. Articles written by medical experts may be located at the National Library of Medicine. Many experts have web sites containing a resume with a list of publications. Always run the expert's name in the major search engines.

+ Check out an expert's educational degrees and grades. Many states will provide for online verification of licensed professions, e.g., NY; check your own state. Is the medical doctor board certified? Check this list of state medical boards.

+ Find Some Dirt for a Price: For a fee, there are a number of investigative organizations, catering primarily to personal injury lawyers, that may be able to provide you with useful information concerning the opposition's expert, e.g., (1), (2), (3), (4 - has deposition transcripts of experts). Check out these jury verdict sites (1), (2) that track experts and the jury verdicts in cases where they testified; these same can also provide the expert's former testimony. Dirt for Free: The Archive of Forensic Misadventures chronicles the sometimes frightening goof-ups of members of the forensic science community (including a disproportionately large number of disgraced "forensic scientists" from my own hometown, Houston); the injustices recounted in the Archive of Forensic Fraud are even more disconcerting. Here are a number of hyperlinked Internet resources you may use to find and research experts.

+ The NLADA Forensics Library is a good clearinghouse for citiations to articles in various fields of forensic science relevant to criminal cases. The NLADA allows non-members access to the forensics library; you will have to register, but this is a simple matter. The NLADA is more open to helping all lawyers, regardless of the size of their wallet, than the NACDL which restricts most of its useful material to members, who are required to pay hefty annual dues. PBS has a site explaining, in layman's language, various scientific investigative techniques. Here's a 23-page article on Admissibility of Scientific Evidence. This is a helpful starting place for those new to cases involving forensic evidence.

+ The Federal Judicial Center has a number of downloadable monographs that are part of the Reference Manual in Scientific Evidence. These include: Management of Expert Evidence (28 pp); How Science Works (16 pp); Reference Guide on Medical Testimony (46 pp); Supreme Court's Trilogy on Admissibility of Expert Testimony (30pp); Reference Guide on Statistics (96 pp); Reference Guide on DNA Evidence (92 pp); Reference Guide on Toxicology ( 37 pp).

+ Transcripts on the Internet: The transcript of testimony in the Westerfield circumstantial evidence child murder case contains numerous real world examples of direct and cross of forensic experts, e.g., DNA, hair (canine and human) comparison, fiber analysis, forensic entomology (insects/bugs), forensic anthropology, forensic pathology, etc.; here's a transcript (70 pages) of direct and cross of defense medical expert in a sexual assault case. The web contains some articles, e.g., (1), (2), (3 - expert on discrediting expert witness by proof of bias) by lawyers and experts on the direct and cross of experts.

+ Bibliographies re Forensic Science and Experts: Try these sites for an extensive bibliography of forensic science publications, a list of 26 published Internet articles re expert witnesses, and a booklist. Here is a collection of short insights by experts and lawyers about expert testimony and a short article about being an expert (1). For the academically inclined, take a look at Volume 28 of the Oklahoma City University Law Review which contains articles from a 2003 forensics symposium on the use and misuse of forensic evidence. Here's a bibliography and a modest forensic news site. Here's a 114-page paper on Examination of Expert Witnesses (2000) and a 22-page review citing a number of  cases. Here's a glossary of forensic terms and another plus a list of forensic  science resources. The ubiquitous Professor Imwinkelreid (1) addresses the possibility that a court might grant a motion to exclude expert testimony pursuant to the balancing test of FRE 403 when the opposition-movant has no funds to obtain countervailing expert testimony; see Commonwealth v. Serge, 896 A.2d 1170 (PA. 2006) involving computer generated animation. Finally, the CCJA Bibliography page will provide some guidance to relevant forensic resources.

+ National Research Council's Publication "Strengthening Forensic Science in the United States: A Path Forward (2009)  - Good pdf Free Copy of the Report - Listen to the NRC opening statement reports summarizing the report (about 1 hour). - "Badly Fragmented Forensic System Needs Overhaul - Evidence to Support Reliability of Many Techniques Is Lacking"  If you try criminal cases you should at least cscan this report.


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Q: Isn't it true, sir, that you are a professional witness?
A: Quite true. This is no job for an amateur.

Q: What can you tell us about the defendant's DNA?
A: Well, let's just say he's from the  shallow end of the       gene pool.
AUTOPSY CLIP
Sidebar
EXCERPT OF CROSS-EXAMINATION  OF EXPERT WITNESS, DR. MICHAEL BADEN,  BY  DEFENDER TONY SERRA IN THE TRIAL OF RICK TABISH FOR MURDER OF LAS VEGAS CASINO OWNER TED BINION.
Medical Examiner's Expert Testimony
Re Cause of Death -
Homicide
Casey Anthony Case
TESTING OPPOSITION EXPERT WITNESS BY VOIR DIRE
For an example of the direct and cross-examination of an expert, see the the questioning of Dr. Loftus of the issue of misidentification in the
Wig Shop Murder.

I urge all readers to watch the Academy Award winning documentary titled

"The Staircase"
(1)

The story of the case centers on the accused, Michael Peterson, who was accused of murdering his wife.
The riveting film exposes the framework of a criminal case from the inside.

For those interested in forensic science, The Staircase is a rich cornucopia. One of the central forensic issues of the Peterson murder trial centered on blood spatter testimony.

On December 15, 2011, Peterson was granted a new trial by Superior Court Judge Orlando Hudson who ruled that Duane Deaver (1)(2), a former State Bureau of Investigation analyst, misled jurors about the strength of bloodstain evidence in Peterson's 2003 trial.


Free Download of 2011
Reference Manual on
Scientific Evidence
1034 pages from
The Federal Judicial Center

TEXTBOOK EVIDENCE FROM A HIGHLY QUALIFIED AND PERSUASIVE EXPERT

Direct and Cross of the Gunshot and Defense Ballistics Expert at the Trial of George Zimmerman for Murder of Trayvon Martin

This expert, Dr. Vincent Di Maio, formerly the chief medical examiner of Bexar County, TX and now an expert for hire, is a splendid example of a persuasive expert. Note that he is polite,
not arrogant, patronizing, or condescending, and articulate;
also, he does not overstate his opinion. In sum, Di Maio was one of the most valuable defense witnesses in this case. If you are an expert, a prosecutor, or a defender, you should watch this expert's testimony.

(Defense direct continued in
Part 2)

(Prosecution cross-examination
in Part 3)

(Defense re-direct examination
in Part 4)

For an insight into the weakness of some fields of forensic science and the existence of diploma mills. See the Frontline Special
The Real CSI

The questioning of Dr. Cyril Wecht about the qualifications required to be certified by his organization (ACFEI) is particularly interesting and enlighterning.
For an insight into the weakness of the coroner ststem that substitutes for trained medical examiners in some jurisdictions,
see Post Mortem
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