Expertise on the Stand: Effective Experts Renee Sorrentino, MD Massachusetts General Hospital

Expertise on the Expertise on the Stand: Effective Stand: Effective

ExpertsExperts

Renee Sorrentino, MDRenee Sorrentino, MDMassachusetts General Massachusetts General

HospitalHospitalwww.instituteforsexualwellnwww.instituteforsexualwelln

ess.orgess.org

OutlineOutline Fact vs. Expert WitnessFact vs. Expert Witness Landmark CasesLandmark Cases

Frye Frye DaubertDaubert

Attorney Expert RelationshipAttorney Expert Relationship Courtroom Testimony Courtroom Testimony

Direct ExaminationDirect Examination Cross ExaminationCross Examination Do’s and Don’tsDo’s and Don’ts

General Principles in Report WritingGeneral Principles in Report Writing

Audience SurveyAudience SurveyNovice: Testified 0-5 timesNovice: Testified 0-5 times

Experienced: Testified 5-20 Experienced: Testified 5-20 timestimes

Seasoned: Testified over 20 Seasoned: Testified over 20 timestimes

DefinitionsDefinitions Fact witness

A person with knowledge about what happened in a case, testifies to the facts of the case

Expert witness A person, who by virtue of education,

training, skill, or experience, is believed to have expertise and specialized knowledge in a particular subject beyond that of the average person

View of Mental Health View of Mental Health ExpertExpert

Studies consistently rank psychiatrist as the least credible among medical experts

2001 Survey of courtroom personnel views of Mental health experts 1) Psychiatrist: preferred mental

health expert 2) Clinical diagnosis most important 3) Less interested in research or

actuarial evidence

Admissibility of Admissibility of ExpertsExperts

Frye (1923): It provides that expert Frye (1923): It provides that expert opinion based on a scientific opinion based on a scientific technique is admissible only where technique is admissible only where the technique is generally accepted the technique is generally accepted as reliable in the relevant scientific as reliable in the relevant scientific community.community.

FryeFrye test test, or , or general acceptance general acceptance testtest is a test to determine the is a test to determine the admissibility of scientific evidence. admissibility of scientific evidence.


Daubert v. Merrell DowPharmaceuticals,(1993): Supreme Court case determining the

standard for admitting expert testimony in federal courts.

The Daubert Court overturned the Frye standard; the standard that the Court articulated is referred to as the Daubert standard.


Daubert standard Evidence based on innovative or unusual

scientific knowledge may be admitted only after it has been established that the evidence is reliable and scientifically valid.

Daubert outlined four considerations: 1)testing 2)peer review 3)error rates

4)acceptability in the relevant scientific community.

“Meeting Daubert”

Polygraph ABEL Penile

plethysmography

MMPI Static-99

Initial Attorney Initial Attorney ContactContact

Clarify the specific questionClarify the specific question Is a report requested?Is a report requested?How to communicate findings?How to communicate findings?

Review the specific legal criteria Review the specific legal criteria or standard in the jurisdiction of or standard in the jurisdiction of your caseyour case

Attorney-Expert Attorney-Expert RelationshipRelationship

Discuss your findings on the phone or in Discuss your findings on the phone or in person to avoid “discoverability”person to avoid “discoverability”

Identify strengths and weaknessIdentify strengths and weakness Insist on a pretrial conference to review Insist on a pretrial conference to review

questions, identify points to bring out, questions, identify points to bring out, strategize about weakness/potential strategize about weakness/potential pitfallspitfalls Importance of staying within your area of Importance of staying within your area of

expertiseexpertise Prior testimony in similar casesPrior testimony in similar cases

Courtroom Courtroom AppearanceAppearance

You are on stage the entire time you You are on stage the entire time you are in the court house (bathroom, are in the court house (bathroom, phone calls, lunchroom)phone calls, lunchroom)

You should wait to be called to You should wait to be called to testify outside the courtroomtestify outside the courtroom

Leave the courtroom immediately Leave the courtroom immediately after testifyingafter testifying

Courtroom AttireCourtroom Attire Matching two-piece

solid or pin-striped suit Tailored fit, including

pants length Color: Dark colors,

preferably navy or gray

Shirt with collar: white or light color

Tie required - no bold prints or patterns

Matching two-piece suit (skirt suit) or tailored dress with jacket

Tailored fit, knee-length - no extreme slits

Color: Dark colors, preferably navy or gray

Shirt with collar or tailored blouse: white or light color

Crisp, conservative blouse - no low-cut tops

Courtroom AttireCourtroom Attire Minimal jewelry and make-up (nail

polish, if worn, should be neutral and chip-free)

Bring professional portfolio or briefcase (dark color)

No visible piercing or tattoos No facial hair

Courtroom AttireCourtroom Attire

General Tips When General Tips When TestifyingTestifying

Know the facts of the case coldKnow the facts of the case cold Do not read your reportDo not read your report Bring only necessary notes to stand Bring only necessary notes to stand Make eye contact with the jury-Pay Make eye contact with the jury-Pay

attention to the body language of attention to the body language of jurorsjurors

Do not use humorDo not use humor

General Tips When General Tips When TestifyingTestifying

Don’t volunteer informationDon’t volunteer information Refer to your C.V. as a resumeRefer to your C.V. as a resume Be prepared to answer questions Be prepared to answer questions

regarding your feeregarding your fee Don’t refer to yourself as an Don’t refer to yourself as an

expert or “forensic”expert or “forensic”

Video: ExpertVideo: Expert

How Are Effective Experts How Are Effective Experts Measured?Measured?

CredibilityCredibilityA) Expertise (credentials, skill)A) Expertise (credentials, skill)B) Objectivity (trustworthy)B) Objectivity (trustworthy)C) Dynamism (performance or C) Dynamism (performance or

delivery)delivery)

Challenges to Credibility

Dissection of the reportCross examinationPrior opinions or testifying experiences

Andrea Yates: Expert Testimony

Ms. Yates’s first conviction was overturned after Dr. Park Dietz, told the jury that before the drownings, NBC ran an episode of the television series “Law & Order” about a woman who was acquitted by reason of insanity after drowning her children.

It was later learned that no such episode existed.


Direct ExaminationDirect Examination Powerful, persuasive, understandable Powerful, persuasive, understandable

speechspeechState things clearly State things clearly Avoid absolutes: “always” and Avoid absolutes: “always” and

“never”“never”Avoid Avoid emphatic!!emphatic!!Confident language: avoid “it seems, I Confident language: avoid “it seems, I

believe”believe”Do not speculate or guessDo not speculate or guess

Direct ExaminationDirect Examination Powerful, persuasive, understandable Powerful, persuasive, understandable

speechspeech Define technical terms and jargon Define technical terms and jargon

Understandable language is persuasiveUnderstandable language is persuasive Use objective languageUse objective language Minimizes hesitancies such as “umm, uh”Minimizes hesitancies such as “umm, uh” Polite but not excessivePolite but not excessive Don’t acknowledge “sources as Don’t acknowledge “sources as

authoritative”authoritative”


Direct ExaminationDirect Examination CredentialsCredentials

Narrative form vs. specific Narrative form vs. specific questionsquestions

Appearance of modestyAppearance of modestyEconomic use of timeEconomic use of timeReserve special qualifications Reserve special qualifications

to relevant case questionsto relevant case questions

Direct ExaminationDirect Examination ““Doctor, what degree of certainty Doctor, what degree of certainty

did you use to form your opinion?did you use to form your opinion? Reasonable medical certaintyReasonable medical certainty What is “reasonable medical certainty?”What is “reasonable medical certainty?” Varies but jurisdiction but commonly Varies but jurisdiction but commonly

defined as “more likely than not” =51%defined as “more likely than not” =51%

Direct ExaminationDirect Examination Doctor, how could Mr. Jones be Doctor, how could Mr. Jones be

discharged when he was discharged when he was experiencing suicidal thoughts?experiencing suicidal thoughts?

In my opinion, it is possible that Mr. In my opinion, it is possible that Mr. Jones did not report his suicidal Jones did not report his suicidal intentions to Dr. Discharge.intentions to Dr. Discharge.

Direct ExaminationDirect Examination Should you identify Should you identify

counterarguments in your counterarguments in your direct testimony/report?direct testimony/report?

Yes, if another expert is Yes, if another expert is testifying. testifying.

No, if you are the only No, if you are the only expert.expert.

Video: Expert (Odgren)Video: Expert (Odgren)

Cross ExaminationCross Examination GoalsGoals

1) Attack credentials: 1) Attack credentials: education, experienceeducation, experience

2) Identify bias: hired gun 2) Identify bias: hired gun 3) Challenge the adequacy of 3) Challenge the adequacy of

the examinations: privacy, the examinations: privacy, corroboration, length, corroboration, length, inconsistenciesinconsistencies

Defeating Counsel’s Defeating Counsel’s TacticsTactics

Tactic: Controlling the witness’s Tactic: Controlling the witness’s response by asking a series of response by asking a series of “yes” questions then slipping in “yes” questions then slipping in an equivocal questionan equivocal question

Reponses: Pause before Reponses: Pause before answering, correct any errors, answering, correct any errors, focus eye contact on jury. focus eye contact on jury.


Tactic: “Columbo.” Cross-examiner acts Tactic: “Columbo.” Cross-examiner acts confused about statements in the reportconfused about statements in the report

Counsel acts “bumbling or confused” Counsel acts “bumbling or confused” about report with following goals:about report with following goals: Elicit a long, detailed response that will Elicit a long, detailed response that will

provide additional information for crossprovide additional information for cross Elicit, inaccurate reply borne out of Elicit, inaccurate reply borne out of

frustrationfrustration Elicit a correction of the question by the Elicit a correction of the question by the

expertexpert


To defeat the “Columbo” tacticTo defeat the “Columbo” tactic If the counsel is confused, that’s his If the counsel is confused, that’s his

problemproblem Do not volunteer informationDo not volunteer information Do not be lulled into complacencyDo not be lulled into complacency


Hedging exampleHedging example Q: You state in your report on page 6 Q: You state in your report on page 6

that “it seems” that Mr. G was upset?that “it seems” that Mr. G was upset? A: My opinion is that Mr. G. was upset.A: My opinion is that Mr. G. was upset. Q: So the “it seems” portion of your Q: So the “it seems” portion of your

report was written in error?report was written in error? A: Yes. The report should read, “My A: Yes. The report should read, “My

opinion is that Mr. G. was upset.opinion is that Mr. G. was upset.


Tactic: Hedge words are attackedTactic: Hedge words are attacked Counsel may be successful in Counsel may be successful in

showing the expert used these terms showing the expert used these terms because they were unsure of the because they were unsure of the actsacts

This can completely undermine the This can completely undermine the credibility of the expert and may credibility of the expert and may lead to outright reject of expert’s lead to outright reject of expert’s opinion as speculativeopinion as speculative


Tactic: Expert reveals feelingTactic: Expert reveals feeling Counsel will use any statement Counsel will use any statement

that tends to indicate bias or that tends to indicate bias or lack of impartiality.lack of impartiality.

Words such as “I feel, think” can Words such as “I feel, think” can destroy the expert’s credibility.destroy the expert’s credibility.


Tactic: Boilerplate languageTactic: Boilerplate language Q: Your report indicates that Mr. G’s Q: Your report indicates that Mr. G’s

cognition was “grossly intact.”cognition was “grossly intact.” A: YesA: Yes Q: But this was a hypothetical appraisal Q: But this was a hypothetical appraisal

since you didn’t test him?since you didn’t test him? A: No. I didn’t That paragraph is in there A: No. I didn’t That paragraph is in there

because almost all of my evaluees are because almost all of my evaluees are cognitively intact.cognitively intact.


Tactic: Boilerplate languageTactic: Boilerplate language Counsel’s goal is to show that the Counsel’s goal is to show that the

expert’s reports areexpert’s reports are All the sameAll the same Are interchangeableAre interchangeable Are part of a hired-gun assembly line orAre part of a hired-gun assembly line or Are ultimately not to be trusted or Are ultimately not to be trusted or

believedbelieved


Tactic: Blanket statements Tactic: Blanket statements regarding literatureregarding literature““Current with the literature”Current with the literature”Authoritative textAuthoritative text

Tactic: Aggressive attackTactic: Aggressive attack

Cross Examination Cross Examination StrategiesStrategies

Always tell the truthAlways tell the truth Take a moment to think Take a moment to think

about the tactic and its about the tactic and its implicationimplication

Confident postureConfident posture Provide full opinionsProvide full opinions

Video: Cross Video: Cross ExaminationExamination

To Concede or Not to Concede?

Q: Doctor, isn’t it true that, nationally as well as locally, the options in treating a suicidal patient include hospitalization, supervision, mediation and counseling?

A: In a general sense those are not always options available. There are sometimes when hospital is not available. Sometimes when there is no therapist or other people available. And so those factors would influence this.”

Cross Examination Cross Examination StrategiesStrategies

Concede pointsConcede points Oral acknowledgementOral acknowledgement Affective acknowledgementAffective acknowledgement Create cognitive dissonance with Create cognitive dissonance with

oral acknowledgement and oral acknowledgement and positive affectpositive affect

Impartial ExpertsImpartial Experts ““Doctor, would you consider yourself Doctor, would you consider yourself

an impartial expert?”an impartial expert?”

Truth-telling? Witnesses take an oath to tell the “whole

truth” Admissibility may impede “whole truth” Case: Evidence that would establish the

basis for commitment was disallowed because it was obtained prior to the patient’s having been given a non-confidentiality warning. The psychiatrist was only permitted to testify about information obtained subsequent to the warning.

Truth-telling? Constraints imposed by the court

prevent “whole truth” The witness can

“waffle” and withdrawal opinion Continue to assert that the patient

should be committed despite convincing evidence

Report Writing

Report Writing Purpose of a report is to answer a legal

question A well written report will assist

negotiations The report will become a permanent part

of the expert’s “record” Poorly written reports can be used to

impeach credibility Value of a report is directly related to

ability to persuade the lay audience

General Principles of Report Writing

Grammatical and spelling errors indicate disrespect

Verb tense (past in report, present in summaries)

Maintain a neutral position Don’t discredit other experts

Credibility is left to the trier of fact

Stages of Report Writing

1) Gather material Primary sources (no summaries) Multiple sources

2) Organize subheadings 3) Formulate opinion

Umbrella statement 4) Edit

Report: Subheadings

Qualifications of the expert Prior relationship of defendant to

victim Defendant’s account of the alleged

events Summaries of police reports, victim &

witness accounts Violence History Sexual History

Attorney Control: Report Writing

Clarify prior to evaluating an evaluee whether a report is required

Revision in the report may be appropriate if they do not significantly alter your opinion All drafts are discoverable

Principles of Report Writing

Clear attribution He grabbed the policeman’s gun when

he knocked at the door. Data section is neutral

Mr. Gee alleges he was at home. Report is self sufficient Opinion is formed with clear

reasoning

Principles of Report Writing

Your opinion is stated in simple language with supporting evidence. It is my opinion with reasonable medical certainty

that Mr. Jones was able to appreciate the wrongfulness of his acts on May 21, 2006. The following evidence supports this opinion:

1) Mr. Jones told me that he “quickly left the store where he exposed himself” on May 21, 2006 because he “feared I’d get in trouble with the cops.”

2) Mr. Jones wore dark glasses and a hat on May 21, 2006 to disguise his appearance when he exposed himself because he “didn’t want to get arrested and go to jail again.”

Do’s & Don’ts of Report Writing

I have completed a thorough record of Mr. Smith's record.

Mr. Smith was clearly psychotic when he committed the offense.

Mr. Smith was not actively suicidal. Mr. Smith’s memory was not grossly

impaired. Mr. Smith alleged he was unmedicated

at the time of the offense.


Sources of Information: Full clinical evaluation.

Mr. Smith was a poor historian. Dr. Smart’s diagnosis was not supported

by DSM criteria. Mr. Smith’s insight and judgment were

impaired. I considered the diagnosis report by Dr.

Smart. I rejected the diagnosis for the following reasons…


Renee Sorrentino, MD: Forensic expert The material in this report is

confidential. Summary of opinion. Qualifications include…internationally

recognized expert in the field of paraphilias.

It can be argued that Mr. Jones was not compliant with medications.

Red Flag Words to Red Flag Words to AvoidAvoid

Authorative to describe textAuthorative to describe text LegallyLegally DraftDraft Probable and possibleProbable and possible Obviously and clearlyObviously and clearly Royal “we”Royal “we” CompleteComplete

ConclusionsConclusions Admissibility of experts determined by Admissibility of experts determined by

legal standardlegal standard Dress for successDress for success Prepare for testimony with attorney Prepare for testimony with attorney

consultationconsultation Effective experts are determined by Effective experts are determined by

their credibilitytheir credibility Persuasive testify/reports are simple, Persuasive testify/reports are simple,

clear, and logical to lay audienceclear, and logical to lay audience

Documents

Expertise on the Stand: Effective Experts Renee Sorrentino, MD Massachusetts General Hospital