| Chapter
7:
BY
JAMES J. CLARK and EDWARD C. MONAHAN
|
Introduction
Step 1: Assess
Mental Health or Other Expertise Needs of the Case
Step 2: Finding
and Evaluating Experts
Step 3: Retaining
the Expert
Step 4: Preparing
the Expert for Evaluating
Step 5: The
Direct Examination of the Expert: Telling the Story Well
Step 6: Preparing
the Expert for Cross-Examination & Improving Cross-Examination Answers
Step 7: Revise
Direct Examination
Step 8: Develop
Demonstrative Evidence
Conclusion
Intro:
One of the strangest findings
in the scientific literature of decision-making and judgment re-search
is that decision-makers typically choose "quick-and-easy" approaches to
making important decisions, instead of using approaches which are thoughtful,
deliberative, and demonstrably most productive. This short-cut approach,
known as "satisfying," values speed and closure over taking the time to
achieve optimal results. H.A. Simon, Administrative Behavior: A Study
of Decision-Making Processes in Administrative Organizations, Free
Press (1976). People satisfice in order to deal with the overwhelming number
of decisions and the complexity of possible alternatives. Certainly attorneys
preparing to try difficult cases choose to satisfice because of such cognitive
overload.
One effective alternative to satisficing and then hoping-for-the-best, is to use decision rules which can guide the decision-maker through the labyrinth of multifaceted alternatives. The purpose of this article is to present a step-wise process--a set of decision-rules--that attorneys can employ to man-age expert witnesses in criminal and civil cases. Although this paper will refer to the "mental health" expert, we believe that it is applicable to experts from other do-mains as well. Despite the importance of man-aging expert witnesses, attorneys often give little attention to the process of developing the expert-attorney relationship. They neglect this relationship at their client's peril. An inappropriate or poorly prepared expert witness can damage a case beyond repair. Service to the client sup-ported by the attorney's development of a productive relationship with the appropriate expert will necessarily be of a higher quality. Although time consuming, attention and enactment of this eight-step process is an investment which regularly pays substantial dividends for the client and the attorney.
Step 1: Assess Mental Health or Other Expertise Needs of the Case
Good decision-making begins with accurate assessments of the needs of the case. Will the case be enhanced with the assistance of a consulting or testifying expert? Will an expert's involvement be to the benefit of the client? If yes, then an attorney is legally and ethically bound to obtain the help of an expert.
In order to make this assessment, it is essential for the attorney and other members on the defense team to brainstorm the case and arrive at potential theories of the case. The defense team acts as a decision-group that can "qualify, shape, and tune" the massive amounts of information into a manageable set of alternatives or directions for action. P.C. Nutt, Making Tough Decisions, Josey-Bass at 216. Developing a work-able theory through careful analysis of the issues in the case will reveal whether an expert's help will benefit the client.
There are obvious examples of cases needing experts. A defense of insanity with an expert testifying to the opinion of insanity is more likely to help fact-finders understand the client's behavior and persuade fact-finders of his ability to know whether something is wrong or conform his con-duct to the law. In a series of recent decisions the Supreme Court has "sent a clear signal to the courts that the provision of mental health expertise... is crucial to adjudication without which a criminal trial involving mental aberration would not be fair and just." P. Casey and I. Keiletz, An Evaluation of Mental Health Expert Assistance Provided to Indigent Criminal Defendants: Organization, Administration, and Fiscal Management. New York Law School Law Review Vol. 34, No. 1 (1989) at 34.
There are less obvious examples. A defense of extreme emotional disturbance can be success-fully launched without an expert's testimony in support of it. However, it is more likely that the client will benefit from an expert's opinion on the extent of the emotional disturbance, its development and its influence on this particular client's behavior. The subjective experience of the client is a paramount perspective for the fact-finders to understand in considering whether there is a reasonable justification for this particular defendant's behavior. Mental health professionals are experts at eliciting and identifying a client's subjective experiences. Shawn Shea, Psychiatric Interviewing: The Art of Understanding (1988) at 50.
There are obscure examples. An expert can persuasively communicate why facts which appear to have an evil origin in fact have a comprehensible explanation. For instance, a client is charged with shooting her husband six times during a domestic argument. Lay witnesses testify that your client probably planned the crime to gain insurance money, and the prosecutor cites such "overkill" as evidence of your client's violent character. However, your expert explains the application of battered woman syndrome, and specifically, the client's core belief that her husband was "larger than life or death" and would be able to pursue and kill her even after he received several gunshot wounds. Lenore Walker, Terrifying Love: Why Battered Women kill and How Society Responds (1989).
Role. In assessing our need for an expert, the team must ask the question: What role do we need the expert to play? A consulting jury expert can help select the best juror on the defense to the crime or for mitigation of the penalty. A consulting mental health expert can help decide on the mental health dimensions in the case and which mental health experts to employ to evaluate and testify. A testifying expert can affirmatively set out matters which are elements of the defense, or can rebut prosecution evidence.
Selection. After understanding the needs of the case, it is necessary to select the type of expert(s) who will most advance a viable theory of defense or theory of mitigation. If the case merits mental health assistance, the selection of the mental health expert is an essential decision be-cause different experts offer different advantages and disadvantages. For instance, it is ineffective to employ a psychiatrist when the fact-finders need to hear the results of psychometric testing; in this case a clinical psychologist or neuropsychologist is indicated.
Consulting Expert. When the case has mental health dimensions it is enormously helpful to use a consulting mental health expert to help think about the case needs in a thorough, unrestricted, critical way. Clark, Veltkamp, Monahan, The Fiend Unmasked: The Mental Health Dimensions of the Defense, Criminal Justice, Vol. 8, No. 2 (1993) at 22. Desirable characteristics for a mental health consultant include:
2. Expertise in detecting childhood trauma and a clinical understanding of how it affects persons later in life.
3. In-depth background in human development research and theory, along with a practical knowledge of psychopathology and the ability to "translate" this specialized knowledge for laypersons.
4. Understands human behavior as purposeful and sees even violent behavior as often an attempt to meet crises and to solve problems.
5. An interdisciplinary orientation and an understanding of the expertise of mental health professionals from disciplines other than his/her own.
6. Enjoys working with attorneys, investigators, and paralegals, and understands and appreciates legal ethics as well as the criminal justice system's valuing of the adversarial process.
7. Perhaps most critical: Sees the client as a human being who is ultimately comprehensible and deserving of the best mental health assistance and advocacy possible."
Id. at 61.
It is important to note
that the consulting expert functions as an agent of the attorneys and should
never be expected to later assume the role of the testifying expert in
the same case. ABA Mental Health Standards at 12.
The team must also be wary of choosing any ex-pert only because he or she is the most "credentialed," e.g., choosing a psychiatrist because of the medical degree’s status. The defense must carefully deliberate which mental health discipline might make the best "fit" for this case. "In short, the various mental health professions should be perceived as equally qualified as experts with respect to general training in legally relevant assessment; but attention should be given the specific spheres of specialized know-ledge the expert may offer." G.B Melton, J. Petrila, and C. Slobogin, Psychological Evaluation for the Courts, Guilford (1987) at 18.
Social workers. These experts are skilled at conducting psychosocial assessments through highly effective interviews and the development of professional-client relationships. Generally, social workers are willing to spend more time with a person than other mental health professionals. Social workers pride themselves on their thoroughness in investigating and effectively communicating the client's story. "The social worker as expert witness informs the sentencer about the defendant's social history and social functioning and the social context of the crime. He or she interprets this information, using social research and theory, to explain the defendant's behavior." Arlene Bowers Andrews, Social Work Expert Testimony Regarding Mitigation in Capital Sentencing Proceedings, Social Work Vol. 36, No. 5 (Sept. 1991) at 441. Social workers identify, document and testify to social behavior themes including:
• absence of consistent social
supports;
• absent or conflicted bonding;
• lack of supervision;
• maternal deprivation;
• paternal absence or deprivation;
• untreated learning, mental,
physical needs;
• malnutrition;
• inadequate moral development;
• early exposure to violence;
• childhood physical, emotional,
sexual abuse and neglect;
• head injuries;
• poverty, homelessness,
transience;
• dysfunctional family;
• attachment disturbances;
• fetal alcohol or drug
syndrome;
• survivor trauma;
• rehabilitative prognosis.
Id. at 442.
Social workers are especially skilled at methods of developing relationships and obtaining information from persons who normally would vigorously defend from disclosing themselves-- especially information that the client perceives as humiliating for self or family members. Social work training also emphasizes the use of "systems theory" which stipulates that individuals can be understood only in the context of their environment, i.e., the significant micro- and macrosystems which impinge on them. Francis J. Turner, Social Work Treatment: Interlocking Theoretical Approaches (Third Edition, 1986).
A comprehensive psychosocial assessment is an essential first step in any mental health evaluation. "Many forensic evaluations are unreliable because the history upon which they are based is erroneous, inadequate, or incomplete. All too often, the medical and social history relied upon by mental health professionals is cursory at best and comes exclusively from the client or possibly from the client and discussions with one or two family members. This can result in a fundamentally skewed view of the relevant history be-cause often the client, and even their family members, are very poor historians and may fail to relate significant events which are critical to a proper determination of an individual's mental state at the time of the offense." John Blume, Mental Health Issues in Criminal Cases: The Elements of a Competent and Reliable Mental Health Evaluation, The Advocate, Vol. 17, No. 4 (Aug. 1995) at 7. Social workers routinely employ genograms, timelines, and social behavior themes are to organize and communicate the voluminous relevant information in lucid and cognitively manageable ways. See M. McGoldrick and R. Gerson, Genograms in Family Assessment (1985).
While social workers--especially licensed clinical social workers with doctoral degrees--are gaining acceptance as forensic experts, there is still resistance in some jurisdictions to considering them as "real" experts. Janet Warren, The Clinical Social Worker as Forensic Expert. Institute of Law, Psychiatry, and Public Policy Monograph (1993) at 11.
Psychologists. These experts base their opinions on both subjective (e.g., the clinical interview) and objective (current and past psychological tests) information. Standard tests classify intellectual and cognitive functioning (e.g., Wechsler Adult Intelligence Scale-Revised [WAIS-R]); assess patterns and conditions of severe psycho-pathology and adjustment to same (e.g., Minnesota Multiphasic Personality Inventory [MMPI]); identify serious personality disorders (e.g., Millon Clinical Multiaxial Inventory [MCMI]); and basic personality patterns in individuals (e.g., Cattell Sixteen Personality Factors [16 PF]). A skilled forensic psychologist will can communicate how a client’s intellectual functioning, longstanding personality traits, and life experiences contribute to the client's patterns of behavior. Joseph Matarazzo, Psychological Assessment Versus Psychological Testing: Validation from Binet to the School Clinic and Courtroom. American Psychologist Vol. 45, No. 9 at 1000.
The clinical psychologist’s specialization in psy-chometrics--the quantification and classification of psychological and intellectual functioning--can introduce a healthy rigor into the mental health theory of the case. However, effective testimony demands that the psychologist is prepared to "translate" these data into language and mental models accessible to lay factfinders. "Jurors look for a Gestalt, a scenario that integrates and ex-plains the data... makes the data meaningful [and] one that fits with the other facts of the case." R.G. Meyer, The Clinician's Handbook, Third Edition, Allyn and Bacon (1993) at 463.
Psychiatrists. "Behavior is at the core of clinical psychiatry. Behavior can be studied physiologically, psychologically, or socially. Ideally, it should be studied in every way possible, so that the efforts of professionals to understand human behavior may capture something of the complexity and richness of the phenomena they observe. If anything differentiates the training of the psychiatrist from other mental health professionals, it is the ability to live in several of these domains simultaneously." Kaplan, MD & Sadock, MD, Comprehensive Textbook of Psychiatry/IV (1985), Foreword.
These experts have the advantage of being medical doctors - a profession that generally commands widespread respect from lay people. Many lay persons view psychiatrists as operating on a very high level with much competence. However, psychiatrists often talk in terms that are difficult for the layperson to understand, sometimes they are too focused on the diagnosis of psychopathology as found in The Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). The primary data of their opinion, the client interview, can be viewed as highly subjective and miss the larger picture of impact of other systems on the client’s life.
However, of all mental health professionals, they continue to hold the greatest prestige in the criminal justice system--at least among the judiciary. In Ake v. Oklahoma, 470 U.S. 68, 80-81 (1985) the United States Supreme Court observed that psychiatrists "gather facts, through professional examination, interviews, and elsewhere, that they will share with the judge or jury; they analyze the information gathered and from it draw plausible conclusions about the defendant's mental condition, and about the effects of any disorder on behavior; and they offer opinions about how the defendant's mental condition might have affected his behavior at the time in question. They know the probative questions to ask of the opposing party's psychiatrists and how to interpret their answers. Unlike lay witnesses, who can merely describe symptoms they believe might be relevant to the defendant's mental state, psychiatrists can identify the "elusive and often deceptive" symptoms of insanity, Solesbee v. Balkcom, 339 U.S. 9, 12, 70 S.Ct. 457, 458, 94 L.Ed. 604 (1950), and tell the jury why their observations are relevant. Further, where permitted by evidentiary rules, psychiatrists can translate a medical diagnosis into language that will assist the trier of fact, and therefore offer evidence in a form that has meaning for the task at hand. Through this process of investigation, interpretation, and testimony, psychiatrists ideally assist lay jurors, who generally have no training in psychiatric matters, to make a sensible and educated determination about the mental condition of the defendant at the time of the offense."
Neurologists. These experts are specifically skilled at detecting physical disease and damage to the central nervous system, especially the brain. The identification of physical injury does not automatically address how the damage influences behavior, and the forensic neurologist can communicate the link between brain and behavior. "Regardless of the school of psychology to which one subscribes, there must be consensus on one point: diseases of the brain are accompanied by disordered behavior." J.R. Merikangas, Brain-Behavior Relationships, Lexington Books (1981) Introduction.
Neurologists use an increasingly impressive armamentarium of brain-imaging techniques (e.g., magnetic resonance imaging [MRI]) along with the traditional physical neurological examination and medical testing (e.g., blood analysis, EEG, and cerebrospinal fluid analysis). The connection between generalized CNS pathology, disconnection syndromes, and violence have been long established, and should always be explored when developing the mental health theory of the case.
Neuropsychologist. These experts are psychologists with special training in using psycho-metric testing to infer the nature of brain injury and its effects on a person's conduct. In lay-person's terms they act as the bridge between psychology and neurology. Typical tests include the Halstead Reitan Neurology Battery and the Luria-Nebraska Neuropsychological Battery. B. Kolb and I.Q. Whishaw, Fundamentals of Human Neuropsychology, Freeman (1990). Forensic neuro-psychologists have proven especially adept in explaining normal brain development and functioning to the jury, and then demonstrating the impact of abnormal development and dysfunction on the client. It is important to note that what some clinician's label as "personality disorder," may in fact be seen by the neuropsychologist as the development of consistent, if maladaptive, coping techniques which attempt to compensate for brain dysfunction. The capacities of "intellect, memory, speech and linguistic functions, perception, attention and concentration, and problem-solving, decision-making, and planning" are clearly impacted. D. Tranel, Neuropsychological Assessment, Psychiatric Clinics of America 15 (2) 1992 at 283.
Once the mental health theory of the case is developed, the search begins for an expert to evaluate the client and to testify. Before looking for an expert, it is necessary for the attorney to carefully prepare. The attorney has to have enough understanding of the expert's area of competence to dialogue meaningfully with the expert and to know whether this expert is best for this client and this case.
Evaluating whether a particular expert is the "right fit" for the needs of your client and your case is a critical process. The most effective approach is to meet with prospective experts to determine whether they meet your client and case needs. At a minimum, some dialogue must take place on the phone and in writing. Pre-paring an agenda for your communication with the expert is helpful toward focusing on what the attorney and the expert need to accomplish; it will use the limited time with the expert efficiently, and it will communicate the attorney’s competence and professionalism to the expert. An agenda for a first meeting with an expert might include:
2. Expert's Needs. What the expert needs to know to determine if the expert wants to commit to work on this case;
3. Money. Financial arrangements: rate, total amount, in-court and out-of-court rates, timing of payments;
4. Next Steps. If an agreement is reached, what are the next steps in the process.
Critical information
the attorney will need want to know by the conclusion of this initial meeting
with the expert includes:
2. the methodology the expert will employ, how the expert views the methodology used in light of national practice and standards;
3. the core values of the mental health discipline of the expert;
4. how a person and his personality comes to be formed; and why the expert believes some people commit criminal acts;
5. how the expert views culpability and responsibility;
6. the expert's understanding of mitigation;
7. whether the expert is willing to see the client more than once;
8. whether the expert is willing to see and interview more than just the defendant in making their evaluation, e.g., the family of the defendant, prosecution witnesses;
9. whether the expert is willing to review materials provided them;
10. what testing (if appropriate) will the expert conduct;
11. how the expert will come to form the opinions
12. the fees;
14. willingness to help the team prepare cross-examination of the prosecution's mental health expert;
15. ethical issues, including confidentiality and whether there are any conflicts with the expert, defense team, client, the case, the office or firm;
16. whether criminal defendants are amen-able to treatment, rehabilitation;
17. report writing: i.e., should there be a report; can a draft report be obtained; what will the report focus on;
19. does the expert have anything to worry about on cross-examination, e.g., academic difficulties, license problems, board certification, personal matters;
21. after generally indicating your case, ask what the expert thinks the case presents, and obtain the expert's reaction.
It is important to remember
that experts will be simultaneously assessing both the case and the attorney
as a person with whom to work. Experts have substantial needs and they
will assess the capacity of the defense team to meet those needs. Experts
want to look professional; be protected; and to be a part of an endeavor
that has meaning. They do not want to be manipulated, blind sided, or misused.
It is likely that the expert will have questions for the attorney. These
might include:
2. Control. Who is in charge of decisions in the case; who is running the defense team; who will be the liaison;
3. Trust. Is this attorney and defense trust-worthy or manipulative;
4. Communication. Will the attorney fully & accurately communicate the relevant "good and bad" information;
5. Goals. Will the attorney try to obtain an unfairly lenient resolution of the case?
6. Focus. Is there a clear theory of the case and a focus for the expert's involvement?
Knowing when this expert is not ethically permitted to take the case in question is extremely important. The mental health expert has an ethical responsibility to decline a case when: the forensic arena is too anxiety-provoking for pro-per performance; the clinician has no training, knowledge, or experience in the area in question; the defendant is a patient, former patient, or connected in some other way that presents a conflict of interest; when there is any other conflict of interest present. B.A. Weiner and R.M. Weinstein, Legal Issues in Mental Health Care Plenum Press (1993) at 359. Additionally, the expert should decline cases for which he or she has insufficient time to perform adequate evaluations, research, and preparation for testimony.
Finally, the defense team should inquire with other attorneys and colleagues about this expert's. Past performance is generally a good predictor of future performance.
Good, competent, caring experts are busy; they can pick and choose how to spend their time. To interest a quality expert in assisting, it is usually necessary to sell the merits of the case and the meaningfulness of working for this client to the expert. This involves having some understanding of what motivates experts and, in particular, what causes this expert to become involved in any endeavor--especially a forensic case.
During the expert's decision-making process, he or she will assess the client, the crime and the attorney. The defense team needs to market the case, the client, and the team and to demonstrate the case's importance, as well as its interesting and challenging aspects. For example, some experts prefer a case with difficult assessment issues; certain experts want to help present the humanity of the client; others want to insure fair and just results.
The defense team needs to praise the expert and demonstrate the timely, reliable support the team will provide. Create an atmosphere of safety and support. In retaining the expert, communicate that the team is presenting the expert with a set of developed material and will spend the time necessary to make sure the expert is prepared in a way to maximize a successful, persuasive testifying experience. The expert needs to know that this will be a safe voyage through the constant white water of the criminal justice process be-cause the attorney and the team will be competently captaining the ship with full communication to the expert. Above all, communicate commitment to your client, and the real need that the client has for the involvement of this expert. Communicate precisely what is expected from the expert, including the role of consulting or testifying and the exact areas of focus and obtain the expert's explicit commitment to you, the case and the client.
The process of employing the expert can culminate in a formal letter of understanding, agreement or contract which sets out:
|
AGREEMENT FOR EXPERT ASSISTANCE 1. On behalf of John Smith, Ed Solomon, John Smith's attorney, agrees to retain Jill Jones, MSW, as an expert in the case of Smith v. State, Indictment No. 94-1-MR, a capital murder case with the aggravating factor of first degree rape.
|
A sample letter could look
like this:
|
DATE RE: John Smith Dear Expert Psychologist, I am representing John Smith. I would like you to do a psychological evaluation of John Smith. John Smith is charged with murdering and raping a twelve-year-old girl. He is in the county jail. He appears to me to be severely mentally ill. He has a significant mental illness history. The case is now in the pretrial process before this county's circuit court. We need a preliminary report and any recommendations for further evaluations by you or other experts by ____________, and a final written report by ________________. I have spoken with the client and he is agreeable to your evaluation of him. He understands you will be evaluating him on _______________ at ________ p.m. I will be present at that time. While I have generally explained the testing to him, I think it appropriate that you give him more details about your methodology. The issues we would like you to address are: 1. Is Jack Cary mentally
retarded, mentally ill?
b. confessing crime to police.
b. extreme emotional disturbance; what was the trigger? c. duress, domination
Your fee of $_______ and expenses will be paid for in the following manner: Travel time will be compensated as follows: Enclosed are the records and mental health reports that we have on Mr. Smith and other materials relevant to this case. We appreciate your help. As this consultation is being performed at the request of Mr. Smith's defense attorney, it is confidential within the legal and ethical attorney-client and work product privileges, which only the client can waive upon advice of his counsel. What additional information do we need to provide you with? |
Too often attorneys assume that experts know how to prepare themselves to evaluate the client, i.e., that is part of their expertise. Yet mental health professionals are just as likely to "satisfice" as other professionals in order to lighten their workload. See S.B. Berlin and J.C. Marsh, Informing Practice Decisions, Macmillan Co. (1993).
It is important for an expert to have as much in-formation and context as possible about the client and the case before the expert assesses the client. An expert must, therefore, understand the defense attorney's desires and needs, the theory of the case, the facts, the focus for the evaluation and the necessity for confidentiality. A busy and costly expert must be provided the case information and background material in a form that can be easily digested, and a form that will in fact be used by the expert in the evaluation process.
For instance, if the expert
is a psychologist the team might present the expert with the social history
of the client in both narrative and chart form, prior school records, relevant
prison records, relevant mental health, medical and military records, prior
mental health test results, work records, the relevant good and bad facts
of the case. This should be organized, identified and indexed for easy
use and retention. A sample table of contents for a capital case could
look like this:
| TAB # |
|
| 1. | A fact timeline. |
| 2. | Birth records, family history, client's baby book. |
| 3. | Genogram. |
| 4. | 1974-84 Ohio School Records & 1952-53 Georgia School Records. |
| 5. | 1984 hospital records. |
| 6. | 1984 Mental Health Center records. |
| 7. | 1989-90 work records. |
| 8. | 1990 Middletown Hospital records. |
| 9. | 1990 psychiatric evaluation |
| 10. | 1991 State Hospital records |
| 11. | 1992 prison records |
| 12. | Military records |
| 13. | Police records in this case |
The expert must be fully informed of all the good and the bad data that the prosecution is likely to know about so that the expert's opinions are completely accurate and not subject to being undermined on cross-examination. (Mental health experts will spread the word about an attorney and defense team who have abused him or her, potentially burning bridges to the entire community of mental health professionals in a given region.) Provide the expert all relevant information in a way that recognizes the prosecution's entitlement to reciprocal discovery.
Inform the expert what the
defense is, what the mitigating factors are, what direction the team is
moving. Educate penalty experts well on the expansive nature of mitigation
in capital cases. In-form the expert who else he/she must interview, and
make sure those interviews take place. An opinion must be based on all
relevant evidence. Preempt cross-examination to undermine the expert's
opinion by demonstrating that he or she had incomplete information or that
the expert's opinion is only based on the self-serving inter-view with
the defendant. Make sure the expert knows that he/she will have to do things
that may not be required by their professional discipline in order
to increase the chances of persuading the triers of fact and reducing damaging
cross, e.g., talking to defendant more than once, talking to more
than just the defendant, being fully informed of all facts and prior history
of defendant, basing their opinion on as much objective information as
possible; supporting their opinion with concrete facts and examples, presenting
their conclusions in more persuasive ways.
Step 5: The Direct Examination of the Expert: Telling the Story Well
Communicating the reality of the client through the direct examination of the expert pretrial, at trial or in the penalty phase of a case is pivotal to persuasion. A persuasive direct examination is structured in a manner that increases its digestibility, comprehension, and retention by the triers of fact. Recent empirical research has found that factfinders' attitudes and behaviors can be shaped by their understanding and interpretation of events. Presenting events in a story or narrative form enhances the ability of jurors to understand events in the way formulated by the storyteller. (N. Pennington and R. Hastie, Evidence Evaluation in Complex Decision Making, 51 (2) J. Personality and Soc Psychology (1986); Inside the Juror, 1993, chapter 8). The legal profession has begun to adopt this paradigm in its teaching of complex ethical principles to students (N. Morris, The Brothel Boy and Other Parables of the Law, Oxford University Press, 1992) and to communicate through argumentation and witnesses' presentations compelling, dramatic, and persuasive stories about their clients. See, e.g., the symposium on storytelling in the legal system in 87 Michigan L. Rev. 2073 (1989).
Commonly accepted working principles for effective communication of the client's story through the direct examination of an expert witness include the following:
1. Maximize the Persuasion: Telling the Client's Story; Revealing the Client's Humanity
B. Create our Persuasive Images, Themes.
C. Emphasize the heart of the matter.
D. Confront & explain the bad to preempt it, or convert it to be consistent with the theory of the case.
E. Consider the audience: use language they will understand, answer the questions they likely have, dialogue with them, do not talk down to them.
F. Witness is the star; communicate the identity and the credentials of your expert.
G. Redirect.
2. Attorney's Leading
of the Learning; The Listening
A. Do not lead except...B. Looping
C. Stretch Out
D. Narrative Tone, Tell the Story of the Client
E. Chapter Headings: organization for emphasis & persuasion
3. Preparation by
Attorney and Expert
A. Thinking4. Organization Based on Plan to Propel the Theory of the Case, Tell the Client's Story, Reveal the Humanity of the ClientB. Writing
C. Revising
D. Consulting
E. Practicing
A. Art of persuasion
B. Power of communicating centered on understanding who the audience is in this case
Do a thorough direct
examination, one that re-cognizes the bad facts and the limitations of
the expertise but also one that emphasizes the good facts and conclusions.
Anticipate cross-examination and preempt the prosecution from revealing
bad aspects. Dealing with the obvious hurtful facts on direct can minimize
their harm. Do not let the expert overstate information, opinions or conclusions.
Put the expert's information and conclusions in a context which will increase persuasion. For in-stance, when a psychiatrist testifies, a persuasive context might be:
For instance, if intentionality is an issue in a case where mental retardation is the defense, an ex-pert can talk about why the defendant's throwing his bloodstained pants away or why his refusal to talk to his interrogators after the crime do not show intentionality or premeditation as much as it is an expected manifestation of the confusion, fear and subjective experience of this mentally retarded defendant.
If drugs are the basis for an intoxication defense, an expert can explain the client's heavy use of them by talking about why many people turn to drugs, why the defendant turned to them, why his use escalated, why he had difficulty in con-trolling his increasing use of them, what influence the drugs had in his actions, whether per-sons can recover from serious drug problems, how drug problems are analogous to alcohol problems that may be more understandable to middle class jurors. An expert can explain that the defendant did not continue to take drugs to get high, but rather, to avoid the vicious pain of withdrawal.
Experts can explain the reality of what was going on with the client in common terms of control, stress, and anger. What are these emotions, where do they originate, how do they develop, how do they explain this client and his acts? If a client's demeanor or affect seems aggravating, an expert can mitigate that superficial negative view of him by talking about why he appears as he does.
Use the expert's direct testimony
to emphasize the guts of your case. One way to do this through direct is
to:
1. set up the basis for the conclusions (experience, qualifications, testing, interviewing);Work to have the expert's opinions surrounded by persuasive witnesses. Have a context for the expert's testimony which is supported and corroborated with facts and conclusions of lay wit-nesses. For instance, in an extreme emotional disturbance case, present lay witnesses to relate the stressors on the client and how these influenced him, so the expert opinion that the client was extremely emotionally disturbed rings true.
2. have the conclusions stated,
3. then emphasize aspects of the conclusion (e.g., stress, anger, control, understanding of himself, affect);
4. and restate the expert's findings.
Above all, do not lose lay decision-makers in a tangle of impressive but intimidating jargon. If the expert is testifying about the client, work to present the conclusions in a way that jurors do not fear the defendant if they believe the conclusions. Place the information in a full context, and present it in terms that jurors can connect them-selves to assist in this effort.
Anticipate any evidentiary difficulties with the expert's testimony, reciprocal discovery, admissibility of underlying facts, expression of opinion on ultimate facts. Prepare the defense expert on the potential evidentiary difficulties with his testimony and the manner to proceed if prosecution objections are successful. Obtain transcripts of the expert's previous testimony and be pre-pared to deal with any prior opinions.
Preparation is highly predictive
of the persuasive quality of an expert’s direct examination. It has been
observed that all direct examinations "take 1% inspiration and 99% preparation."
C.L. Hunt, Calling Your Attention to the Direct Examination: How to
Avoid the What Happened Next Question, 42 Mercer L. Rev. 619 (1991).
Step 6: Preparing Defense Expert for Cross-Examination & Improving Cross-Examination Answers
"Good cross-examination is the successful and unseen closing of all available escape routes. Like war, it has a strategy and like all battle, it has a theory. In war however, the first casualty of battle is often the theory." D.L. Lewis, Cross-examination, 42 Mercer L. Rev. 627 (1991).
Therefore, anticipate what theories on which the state could cross the expert. Find out what cross the prosecutor has previously used on similar experts. Familiarize yourself with the three volume work by Ziskin and Faust, Coping with Psychiatric and Psychological Testimony, Law and Psychology Press, (5th Ed. 1995), and the two volume work by Faust, Ziskin & Hiers, Brain Damage Claims: Coping with Neuropsychological Evidence (1991).
The most effective experts become better over time on cross-examination and the client's story is told all the more effectively. The expert turns what appears to be a damaging or inconsistent fact into yet another reason which supports the expert's analysis. This is usually done through reframing the adverse question. M.T. Nietzel and R.C. Dillehay, Psychological Consultation in the Courtroom (1986) at 113.
Often, this process of anticipating particular cross will lead the attorney to alter the direct. Ask the expert what areas present vulnerabilities and how he or she will respond to possible areas of cross. Discuss and revise those responses with the expert. It is essential for the expert to understand the sophisticated strategies of a skilled cross-examiner. Pozner and Dodd, Cross-Examination: Science and Techniques (1993).
Based upon a mock cross-examination of the ex-pert or a dialogue with the expert on what he or she would say, you will want to reflect what you learn from the expert's practice answers by revising the direct examination. Role-play experience--a technique with which the mental health expert is quite familiar--helps the attorney and the expert discover what approaches will probably be most effective.
The "principle nemesis of any trial lawyer is not so much his adversary as boredom on the part of the factfinder. Ennui dulls or kills receptivity to information and argument." G.P. Joseph, Modern Visual Evidence (1995) section 1.01. Use demon-strative evidence to increase the understanding and retention of the expert's information, especially on the most important three points. For example, blow up or have an overhead of the MMPI results to emphasize the concreteness, the objectivity of a basis of your expert's conclusions. Present the client's genogram life time-line or social history themes on overheads to emphasize critical family relationships, and the timing and order of critical life events. "Courts look favorably upon the use of demonstrative evidence, because it helps the jury to understand the issues raised at trial." People v. Burrows, 592 N.E. 2nd 997, 1022 (Ill. 1992).
The defense team would not be using an expert unless the expert substantially contributed to the case. Therefore, the attorney must be disciplined in fully integrating the "expert's benefit" throughout the case. Some examples:
B. Voir Dire. It is essential to determine such things as if the prospective jurors are interested in hearing from experts; believe experts are qualified to render opinions; and are open to being persuaded by the opinion of an expert. The defense wants jurors who are eager to hear from and rely on the opinion of experts.
C. Opening. The opening argument is our opportunity to continue to persuade by preconditioning the selected jurors to the importance of the expert's opinions on the issues critical to the jurors' decision-making. "What does being raped as a 9 year old do to a kid? You will hear what the effects childhood physical and sexual abuse had on John from an expert who has looked at hundreds of physically and sexually abused persons."
D. Cross-Examination of state witnesses. The defense expert's opinions will not prevail alone. They must be supported by our providing a basis for them through eliciting supporting information on cross-examination from prosecution witnesses or undermining contrary information or opinions from prosecution experts via our cross-examination.
F. Closing. With some
intensity, focus jurors on how credible and persuasive the expert's analysis
is to understanding this case, the client, the client's behavior.
JAMES J. CLARK, Ph.D., MSW,
LCSW
Assistant Professor
College of Social Work
University of Kentucky
Lexington, KY 40506-0027
Tel: (606) 257-2929; Fax:
(606) 323-1030
E-mail: jjclar00@ukcc.uky.edu
EDWARD C. MONAHAN
Deputy Public Advocate
Director of Education &
Development
Department of Public Advocacy
100 Fair Oaks Lane, Suite
302
Frankfort, Kentucky 40601
Tel: (502) 564-8006, ext.
236; Fax: (502) 564-7890
E-mail: emonahan@mail.pa.state.ky.us
© James J. Clark and
Edward C. Monahan, 1996
©2001
Kentucky Dept. of Public
Advocacy
http://www.dpa.state.ky.us