I was recently required to come testify on an old case I worked for a local police department a number of years ago. The actual work I performed was hardly a “case breaker”.
I simply looked at casings and projectiles recovered by police and inter-compared them, so see if they were fired from the same gun. No firearm was actually recovered in the case.
What I was actually wanted for was the state wanted me to perform an “on the stand shooting reconstruction”. That is with little to no warning, an attorney is going to ask you to determine which person in a vehicle based on if the casings were recovered outside, or inside the vehicle.
Something that pretty much can’t be done without a lot of experimentation. Even then the results would probably not be conclusive, but rather more strongly suggest one person over the other.
Considering in this case the actual firearm/ammunition combination used in the shooting was never recovered, it just simply isn’t something that could be done with any certainty.
Then the defense attorney took to cross-examining me. They used that most brilliant of cross-examination styles — to completely go back over everything the prosecution did, almost word for word, point by point.
There is nothing like reinforcing the prosecutions case, by getting the exact same answers to the exact same questions back to back to drive the points home to the jury.
The best part about the case was being contacted by the defense after trial to find out about a database of general rifling characteristics I used to base my opinion as to what possible guns could have fired the bullets/casings. Apparently their expert said he didn’t have access to such database.
No related posts.
There are a lot of bad defense lawyers out there, aren’t there? The problem, I suggest is two fold: first, law schools and second, lack of required specialization or regulation of attorneys.
First,
Advocacy is not really taught in law schools. Well, not proper and effective advocacy any way. Heck, in my old law school, now, the students are not even required to learn the Rules of Evidence any more. Frequently the people who teach trial advocacy themselves cannot do it well or never did it to begin with or they are/were civil practitioners who have done less than a handful of trials but maybe have done a lot of depositions (which is useless experience in the criminal world). Also, the adjunct professors they generally bring in to help teach in small groups are themselves not real prolific trial attorneys generally of any note. It is small wonder (to be read sarcastically) why young attorneys cannot cross-examine experts or any one for that matter. Then, we seem shocked when the young attorneys who cannot cross mature and turn into older attorneys who cannot cross. It is not like puberty in that magically on your 13–15 year of existence you turn into a man or a woman. Because they have invested no time into learning their craft they do a chronological responsive and reactive cross like you described. They have no idea of the importance of primacy and recency or the danger of asking totally open-ended questions or even how to effectively “paint the picture” of the point they want to make to the Jury without asking questions that are conclusions. Finally, they actually think that especially when it comes to a cross of an expert that they can get away with doing no homework. They do not request detailed reports with source material that are relied upon by the expert in forming his/her opinion. If sourced material is provided in a footnote, it is never read and/or analyzed. They unforgivably do not request SOPs and methodologies of any testing that is preformed and/or don’t seek proof of certification of the tester and/or the full resume of the tester, and/or don’t seek proficiency testing of the analyst. In short, they don’t work discovery to their advantage. They frequently read nothing on the subject area even generally. Most importantly they forget how Frye and Daubert all but require in any purported empirical scientific test that a full Bayesian-like uncertainty budget be quantified and expressed. They don’t pull transcripts from prior testimony of the expert. They don’t even hit Google. They exercise no due diligence at all. It is maddening.
Second,
Simply put, you do not become an expert by doing 14,000 things. You become an expert by doing 14 things 1000 times each. Just like a doctor should know his/her limits, So should a lawyer. Sadly, many lawyers do not. There is an ever increasing need in my opinion in law in general and especially in criminal law (where a person’s liberty and, yes, even their life is on the line) to require demonstrated and meaningful specialization prior to allowing that person to practice in that area. This is the 21st century. No longer should this be the day where we allow someone who handles esoteric SEC and civil/quasi criminal tax evasion cases effectively in one day to then turn around the very next day with admittedly no practical experience, no local awareness of the jurisdiction and allow him/her to try a high profile rape case (think V.F. and Mike Tyson).
But you are right. You should style your cross along only two lines:
1, Do my questions help establish my theory of the case?
2. Do my questions hurt the Government’s theory of the case?
If it is not #1 or #2, then sit own and don’t ask any questions. Especially of an expert.
To extrapolate your good point and make an even broader observation that I would like to make (for what it is worth) is that the fault of the presentation and the BLIND acceptance both in popular culture and in the Courts of all forms of expert testimony (both good and bad) is really the fault of the criminal defense lawyer.
Good post.