EXPERT EVIDENCE

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.)
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.
[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 forensicmicroscopy, 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

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 TRE & FRE)
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 crossexamine an expert is by way of challenging the witness with statements contained in a learned
treatise. Adiscrediting 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 andFRE 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, seeRule 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 ofMs. 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.