We are permitted to call experts when there are issues in a case that are beyond the common knowledge of the jury. The Rules of Evidence define the permissible scope of expert testimony. Counsel should also be familiar with the tools available to ensure that your expert’s testimony is admitted and conversely must understand how to use the Rules of Evidence to exclude the opponent’s expert. For this reason, it is worthwhile to remind ourselves of some basic legal principles governing expert evidence. Consequently, the jury acquitted my client.īecause expert testimony is so significant, counsel must ensure that the testimony will withstand an evidentiary challenge. The jurors became experts on my client’s profound hearing loss and accepted our theory of the case. By recreating the conversation as my client experienced it, and by allowing the jurors to hear the conversation just as my client heard it, we had evidence that engaged the jury and made a far greater impact. He accomplished this by removing certain sounds from the government’s recording to replicate the limitations of my client’s hearing, thereby illustrating precisely what my client could and could not hear during the telephone conversation. The audiologist demonstrated what my client actually heard during the critical tape-recorded phone call. Recognizing that my client might not be believed if he simply testified that he did not comprehend what was said during the conversation, and knowing the potential numbing effect of technical evidence, I used an expert audiologist to highlight my client’s hearing deficits. The government had a tape-recorded telephone conversation of my client purportedly expressing joy that the alleged crime had been carried out. In another case I tried, my client had a profound hearing loss. The only requirement is that the demonstration or experiment must be sufficiently similar so that it fairly replicates the conditions it purports to represent. Recreation of events occurs regularly in court rooms through the use of scientific techniques, experts can vividly recreate for jurors accident scenes or other relevant conditions. In another case I tried, the court allowed me to call a retired Rand Corporation research expert to testify as to the traumatic impact that specific events of the Vietnam War had on Vietnamese immigrants in general and on my clients in particular. Experts can recreate for the jury experiences about which they could otherwise only guess-experiences that are far removed from the juror’s own life experience. Experts can take the lawyer and jurors into areas they previously knew little about. The range of subject matter of relevant permissible expert testimony is only limited by the trial lawyer’s creativity. We succeeded in showing the jurors that the government had been seriously misled by its own informant. Through expert testimony, we developed a forceful narrative centering on the theme that the government had unwittingly based its entire investigation on the statements of a pathological liar. With this one expert, I was able to both discredit the government’s main witness and provide a counter-narrative to the one that was presented by the government, namely that my client purportedly confessed an intent to commit the crime in a statement to an alleged co-conspirator, the government’s informant and the person who prompted its investigation. In support of my expert’s opinion, the court also permitted me to introduce examples of the informant’s behavior that the expert had relied upon for his diagnosis. In a federal criminal case I tried, over strenuous objection I called a psychologist who had diagnosed the government’s informant as a pathological liar. Importantly, the expert can tie together counsel’s theories into a final opinion that proves the ultimate issue of the case.Ī good expert is a competent narrator who helps to advance the theme of your case. Moreover, through the expert, counsel can often introduce helpful evidence that is otherwise inadmissible. For example, the expert’s well-reasoned opinion can lend credibility to counsel’s arguments made to the jury by narrating and reinforcing the major themes of your case. There is no question that an expert can provide valuable-even case-ending-testimony. This article provides tips to ensure that your expert’s opinion reaches the jury, or conversely, that your opponent’s expert opinion does not. Trials are at times won or lost based on experts and the lawyer’s ability to make the most of the rules governing the admissibility of expert testimony.
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