Cases Are Better with Experts: The Art and Ethics of Using Expert Testimony.

• Author: Patrick, Wendy L.

What is your favorite part of trial? Many of you will say closing argument. Some of you will say cross-examination of the accused. A few of you (myself included) might say voir dire, fascinated with the art of jury selection. But for some of you, it takes a high degree of cognitive stimulation to really excite you in trial. Your favorite part of the trial is the grueling cross-examination of the defense expert witness.

Having served as an expert witness myself in addition to having spent 25 years both directing and cross-examining them, I appreciate that expert testimony is indeed a significant part of a criminal case. When you have engaged your own expert, chemistry and charisma is important, both between you and your expert, as well as between your expert and the judge or jury.

When it comes to cross-examine an expert, many prosecutors really step up to the task, anticipating the excitement of engaging an expert on his or her own turf. But questioner beware. You might feel totally prepared, but confidence can be dangerous. Sure, you might have been reading medical or psychiatric journals, papers your expert has authored, poured over prior transcripts of his or her prior testimony, even researched the terminology separately on Wikipedia--only to identify a broader range of articles to read of course. You feel like you can not only pronounce, but actually understand what all of those hard-to-pronounce medical terms in the autopsy report actually mean. But make sure your preparation does not create an overinflated sense of "armchair expertise" by the time you are ready to get up and cross-examine, lest you begin to believe you know more about the subject matter at issue than the defense expert.

An expert, by definition, has experience and expertise with the subject matter at hand that transcends, both in terms of quantity and quality, anything you could have possibly mastered close to the time of trial. That string of degrees after an expert's name reflects years, sometimes decades of devotion to the subject matter at hand. A humble approach to effective expert cross-examination is a more realistic method of strategizing how to elicit the information you need, while saving face with the judge and jury.

MANY CASES ARE BETTER WITH EXPERTS

As thrilling as it can be to cross-examine a defense expert, your case in chief will often be better with an expert witness as well. For one thing, in an era of so called #FakeNews and skepticism, many cases are better with experts. Armed with the ability to simplify complex concepts and streamline issues, good experts can inform, educate, and demonstrate. The best...