Legal question re Expert Witness

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  • Legal question re Expert Witness

    I've spent a couple of hours on the web trying to find an answer to this but no luck.

    I know that in criminal cases an expert witness is normally called by the prosecution or the defense. Does it ever happen - let's say, if the jury is confused by conflicting expert witnesses' testimony - that the court calls in a "neutral" expert witness? I think it happens in Europe but don't know about here.

    I could ask my lawyer but a) he'd think the script is about him, and b) he charges $300 an hour.

    TIA.

  • #2
    Re: Legal question re Expert Witness

    Expert witnesses (at least around here) have already provided their opinions to the court (and each other) in writing before the trial starts - so there shouldn't be any surprises.

    So each side would see exactly what the other side has said and get to rebut each point. And vice-versa. There are plenty of examples when someone representing themselves turns up on court day with 'an expert witness' to give testimony and is horrified when the court refuses to hear the expert - they just don't realise that the system doesn't work like that.

    I've never heard of anything like what you describe happening - nor can I see how it would work in practice - who would call the additional witness? The judge would trawl through the yellow pages and pick someone at random ? And that defeats the purpose of a jury - it isn't as if the system is to hire expert witnesses to vote .. and the judge provides an extra one in case the other two don't agree.

    However there is something similar in coroner's court - basically a 'friend of the court' who explains technical matters. So if a plumber is killed connecting a 5B pipe with a 3B wrench - someone has to explain to the judge whether this has any relevance - there is no way that a judge should be expected to be an expert on plumbing fittings.

    Maybe this is what you mean?

    Theoretically (here in Australia anyway) expert witnesses are all 'officers of the court' rather than 'representing' the particular side who pays them anyway !

    Mac
    Last edited by Mac H.; 10-26-2010, 01:45 AM. Reason: Added disclaimer that I'm talking about Australia
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    • #3
      Re: Legal question re Expert Witness

      Speaking for my own little piece of the world here, the answer would be no (although I am sure many times judges get so frustrated with the lawyers, they wish they could).

      At least i have not seen it.

      The judge is free to ask questions of all experts called by the parties and it could be cool to have the judge cross an expert and squeeze some different answers out of the witness.

      As a matter of course, witnesses are far more deferential to judges and more likely to give the court an 'unguarded' answer. Also, jurors identify with judges throughout the trial, and if a judge asks a question and gets a certain answer, then the jury is far more likely to attach great weight to it.

      I kind of think this would be really cool in a movie... not sure if it helps, but at least I amused myself.

      If you do go this route feel free to PM me and I can tell you more (no charge ).
      Seven years dungeon --- no trials!

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      • #4
        Re: Legal question re Expert Witness

        An expert witness is called by either side in a case, both criminal and civil. Where both sides offer experts with conflicting opinions based upon the facts, the court may ask that a document be prepared listing all points agreed upon and those in disagreement. The expert testimony is to assist the jury in deciding the facts. Experts are not officers of the court, but witnesses; paid by the party calling them, and that payment cannot be contingent upon the outcome of the case. The court (judge) can question the expert witness, subpoena any other expert it wants, or fail to certify the witness as an expert (greater knowledge, education, training, experience than others in the field). The court's role is to have the facts presented so that the jury can understand them, agree or disagree with them, and decide the case. It is uncommon that the court would summon an additional expert, none of whom are 'neutral,' which would only serve to confuse the jury. You want the jury to know how both sides interpret the facts, so that they understand the questions involved.

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        • #5
          Re: Legal question re Expert Witness

          Originally posted by Scriptonian View Post
          The court (judge) can... subpoena any other expert it wants
          While technically this is true, at least in NY it very rarely (like never) happens. The treatises often bemoan the fact that it is on the books but there is really no caselaw to support it and in fact, the one most recent case where a lower court trial judge hinted at doing it the appellate court came this close (imagine fingers really close together) to eliminating this option as even a law on the books (for many of the reasons Scriptonian alludes to)

          So like so many laws that exist, the fact that it exists should not be confused with the fact that if you are going for a realistic situation, I would steer clear of a judge calling an expert witness because it is so rare.

          I think you could have a great scene with a judge taking over a witness called by one of the parties (I have had judges question witnesses and when they get an absurd answer spin around in their chairs for maximum off the record effect that believe me, goes straight into the jury's psyche without any hint of the judge saying a thing, and though a smart lawyer on the other side could and has ever asked that the judge's reaction be described on the thranscribed record, and this is a great tactic - especially if you want to see a judge turn purple with rage and hate you forever... but that's a whole other story)

          So... tactics are fun, more conflict filled, and I hope this is sort of helping.
          Last edited by tucsonray; 10-25-2010, 08:21 AM.
          Seven years dungeon --- no trials!

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          • #6
            Re: Legal question re Expert Witness

            Interesting summary by Scriptonian.

            Disclaimer: I'm Australian and I suspect we have a slightly different system here. For example I believe we can have payment that is contingent on the outcome of the case as long as it is disclosed. (I've never heard of it happening, though - although that doesn't say much)

            There are a few examples here where the judge appoints an expert witness (eg: Boring example here )

            That's for a Land & Environment court which habitually appoints an expert of it's own for things that are meant to be 'objective'. (Such as how much sunlight or noise a particular place gets)

            However when there are two experts who disagree - what should a judge do?

            It isn't just you who asks the question.

            From a Supreme Court Judge (here in Australia)

            As a judge I heard a case in which the critical issue was whether a
            surgeon had left a radioactive substance in the lungs of a patient. If he
            had, the plaintiff won, if he had not, the plaintiff lost. Two experts gave
            evidence. Their evidence was based on the same x-ray of the patient’s
            lungs. One said it was obvious that the substance was in the lungs. It
            clearly appeared from the x-ray. The other said that the x-ray showed
            only common deviations within the norm. Now what is a judge to do
            with that?
            Here in Australia (although not in the USA, based on Scriptonian's comments) the experts are not actually an advocate for either party (no matter who hires them!) - they are representing the court.

            In fact - you have to actually sign a document to the effect that you aren't advocating for any particular party and submit it to the court before you are permitted to give evidence as an expert witness.

            It's interesting to see how the different areas handle things.

            (Yes, I know that you probably don't care about obscure jurisdictions - but I do enjoy geeking out over things)

            Mac
            New blogposts:
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            • #7
              Re: Legal question re Expert Witness

              Tucsonray is correct; courts rarely call their own experts. The court has the power, though, to do whatever it deems necessary to move the case, subject to appeal by either side that the court abused its discretion. Many options in a script, as Tucsonray suggests, to add abuse of discretion on the court's part, or knowing technique on the lawyer's.

              In Mac H.'s x-ray example, the court would have to instruct the jury on the burden of proof of the party bringing the suit, which is a fair preponderance of the evidence, or fifty-one percent some say, or more likely than not. In a criminal case, the burden on the state is to prove guilt beyond a reasonable doubt, a much greater burden.

              If the x-ray were in a tort (civil) lawsuit, and the experts were split 50/50, the jury must decide whether the burden of proof was met. They could find one witness more credible than the other, or neither, or both. They could find for the plaintiff bringing the case, but award nominal damages. Is it more likely or not that the injury was caused by the action or inaction of the party being sued?

              The jury is the decider of fact, and it is a factual question whether the plaintiff or complainant proved the case against the defendant or respondent by a fair preponderance of the evidence, which includes witness testimony. If the jury agrees it was 50/50, six of one, half dozen of the other, then the burden of proof was not met.

              Good luck.

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              • #8
                Re: Legal question re Expert Witness

                Having represented several corporate defendants at trial, I can say that I've not been in a situation where the judge called another expert witness. I have had a judge threaten to do so, but she never did do it. But judges have questioned an expert witness at length to the point where it was clear that he or she did not believe the expert's testimony. I have also seen judges disqualify expert witnesses before trial.

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                • #9
                  Re: Legal question re Expert Witness
                  • I dug this up using Google
                  • Expert Witness Institute EWI - UK
                    The objective of the EWI is to support the proper administration of justice and the early resolution of dispute through fair and unbiased expert evidence. To achieve this objective, the EWI;
                    - Acts as a voice for expert witnesses, especially in communicating with the media
                    - Provides support to experts of all professional disciplines and other occupations requiring skills and judgment
                    - Encourages lawyers to make use of experts wherever specialized knowledge is required
                    - Engages in the training of experts to maintain and enhance standards and their status
                    - Works actively with other allied professional bodies and associations
                    - Makes representations to Government and to professional bodies and associations wherever possible

                    The Expert Witness Institute is as a not-for-profit company limited by guarantee. No commercial organization has any representative on the governing body. Its independence and integrity are guaranteed by the Board of Directors (Governors).
                  • Expert Witness Institute EWIA - Australia
                    The functions of the EWIA are to train, educate and support expert witnesses, to promote the provision and delivery of high-quality, impartial and independent evidence, and to improve and maintain high standards in expert witnesses and status.

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                  • #10
                    Re: Legal question re Expert Witness

                    Thank you all - this has been very helpful.

                    The script involves an insanity defense in a murder trial. A psychiatrist called as an expert witness has a personal crisis when his emotional involvement in the case collides with his professional judgment. I had toyed with the idea of having him called BY the court because I thought it would give him a little more weight. But because of everything that has been said here, I'm inclined to take the more normal route - I don 't want to have the characters endlessly explaining technical issues to the audience a la Law & Order, CSI, etc..

                    But let me enlarge the question. If an expert witnress is called in a case like this - by either side - what access does he have to other people involved with the case? For example - my psychiatrist will have to interview the defendant. But members of the defendant's family might also have information that bears on the insanity defense. Would the psychiatrist be permitted to interview them? What if they were also potential witnesses?

                    Thanks again and no more questions on this one - I promise!

                    Comment


                    • #11
                      Re: Legal question re Expert Witness

                      Are you arguing that your defendant is legally insane now, i.e., unable to stand trial, or is the defense that the accused lacked mens rea at the time of the murder (criminal intent and knowledge of a crime being committed)? I'm assuming you're aware that in either case a successful insanity defense (less than 20% succeed and a very small number of cases raise the defense at all) still sends the defendant off to a mental institution (rather than prison), even if found not guilty by the jury.

                      Comment


                      • #12
                        Re: Legal question re Expert Witness

                        Originally posted by mlongton View Post
                        Thank you all - this has been very helpful.

                        The script involves an insanity defense in a murder trial. A psychiatrist called as an expert witness has a personal crisis when his emotional involvement in the case collides with his professional judgment. I had toyed with the idea of having him called BY the court because I thought it would give him a little more weight. But because of everything that has been said here, I'm inclined to take the more normal route - I don 't want to have the characters endlessly explaining technical issues to the audience a la Law & Order, CSI, etc..

                        But let me enlarge the question. If an expert witnress is called in a case like this - by either side - what access does he have to other people involved with the case? For example - my psychiatrist will have to interview the defendant. But members of the defendant's family might also have information that bears on the insanity defense. Would the psychiatrist be permitted to interview them? What if they were also potential witnesses?

                        Thanks again and no more questions on this one - I promise!
                        If your psychiatrist interviews the defendant, I would think that he/she would be part of the defense if he/she has constant contact with the defendant. If the psychiatrist works for the State, I don't think they have any access to the defendant?

                        I believe the court, when a defendant is originally arrested, can order a mental evaluation, but I don't know how much they are involved after the initial evaluation?

                        The defense usually hires a mitigation specialist to interview family, friends, neighbors, teachers, etc...

                        Hope that helps.

                        Comment


                        • #13
                          Re: Legal question re Expert Witness

                          A defendant in a murder trial would not likely receive bail, notwithstanding a presumption of innocence, but would be incarcerated either in a prison or a mental institution, and would be evaluated and monitored closely (and reports made) by all prison and asylum personnel as to mental capacity during the period leading up to the trial. Conversations might be recorded. Behavior could be videoed.

                          A state doctor (prosecution) would evaluate any defendant whose defense is insanity, with interviews and tests, review any footage or recordings, and prepare a formal report. The defense's own doctor would conduct the same evaluation, and have available as part of the assessment any and all information or statements made by witnesses or family members.

                          Again, there are two types of insanity pleas: 1) insane at the time of the crime (unable to form a criminal intent, or mens rea, and unaware that the criminal action was a crime); or 2) insane at the time of trial, and unable to understand or assist in his or her own defense. The plea of insanity could be both of these or just one of them.

                          The majority of insanity defenses fail, but if successful, and the jury finds the defendant not guilty because of insanity, all states have laws requiring that the defendant be sent to a mental institution for a set period of time, and usually until the institution determines the person is sane and no longer a threat to society. Many never leave the asylum.

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                          • #14
                            Re: Legal question re Expert Witness

                            ..all states have laws requiring that the defendant be sent to a mental institution for a set period of time, and usually until the institution determines the person is sane and no longer a threat to society. Many never leave the asylum.
                            What would happen if the moment the murderer entered the asylum they admitted that they were perfectly fine and were just faking it?

                            For example, while in some US states you are confined - many State Laws don't force the person to stay in an institution - instead they are committed to the jurisdiction of the Psychiatric Security Review Board for the period.

                            However, if the Psychiatric Security Review Board has new evidence (such as data they withheld during the trial) that shows they were perfectly sane .. what legal or medical basis could the doctors have to keep the person actually locked up? If they honestly believed that, in their professional opinion, the murderer was 100% totally sane - wouldn't it be a massive breach of professional ethics to put the patient in an asylum or to recommend or give treatments to the patient?

                            A bit of googling gave a pubmed paper about 'Problems posed by patients who do not appear to be mentally ill' in the Psychiatric Security Review system - but it is behind a paywall so the publicly funded study can't be viewed by the public.

                            One study mentioned in the Alabama Law review noted that the average length of confinement for those who used the 'insanity' defence successfully was NINE time as long as they would have expected if they'd been convicted !

                            Mac
                            Last edited by Mac H.; 11-06-2010, 09:38 PM.
                            New blogposts:
                            *Followup - Seeking Investors in all the wrong places
                            *Preselling your film - Learning from the Experts
                            *Getting your indie film onto iTunes
                            *Case Study - Estimating Film profits

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                            • #15
                              Re: Legal question re Expert Witness

                              Originally posted by Mac H. View Post
                              What would happen if the moment the murderer entered the asylum they admitted that they were perfectly fine and were just faking it?

                              Hmm... I would think, and I really have no idea, that would mean nothing. The murderer put in a plea of insanity. The defense had the murderer evaluated with their own expert witnesses that came to the conclusion that the murderer was in fact insane. A jury was then convinced, through the testimony of that expert witness, and found the murderer guilty by reason of insanity. I am sure that a lot of people who have been proven to be legally insane claim that they are sane? How would the murderer prove that he just "faked it?"

                              For example, while in some US states you are confined - many State Laws don't force the person to stay in an institution - instead they are committed to the jurisdiction of the Psychiatric Security Review Board for the period.

                              However, if the Psychiatric Security Review Board has new evidence (such as data they withheld during the trial) that shows they were perfectly sane .. what legal or medical basis could the doctors have to keep the person actually locked up? If they honestly believed that, in their professional opinion, the murderer was 100% totally sane - wouldn't it be a massive breach of professional ethics to put the patient in an asylum or to recommend or give treatments to the patient?

                              I would think if it could be proven that there was evidence withheld, the murderer then could get a new trial. They wouldn't just let him go. He's still guilty of murder. I guess I would be interested to see if he (after claiming that he "faked" insanity) would again try to get a jury to believe that he was insane or would he take his chances with getting Life Without Parole in a State Prison?

                              A bit of googling gave a pubmed paper about 'Problems posed by patients who do not appear to be mentally ill' in the Psychiatric Security Review system - but it is behind a paywall so the publicly funded study can't be viewed by the public.

                              One study mentioned in the Alabama Law review noted that the average length of confinement for those who used the 'insanity' defence successfully was NINE time as long as they would have expected if they'd been convicted !

                              Mac

                              My answers in blue... I'm pretty sure that is what would happen. Again, they would not just let a murderer loose just because he claimed to be sane... and they wouldn't let a murderer loose if evidence was withheld. He/She would simply be granted a new trial.

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