In the Yashanee Vaughn Case, Protecting the Right to Effective Legal Counsel: Guest Opinion

The decision by Parrish Bennette’s attorneys not to reveal the location of Yashanee Vaughn’s body for more than four months has generated an enormous amount of public scorn (“Lawyers opted to withhold body site,” Jan. 18). Some have even suggested passing legislation requiring disclosure of this type of information in the future. This reaction is understandable; whenever we hear that a family has suffered a tragic and painful loss, our compassion directs us to do whatever possible to alleviate that pain and suffering. But discarding those rights enshrined in the state and federal constitutions is not the answer.

This case brings into sharp focus the tension between a family’s desire to know the fate of its loved one and the constitutional right of the accused to present a defense. Our democracy and system of justice are founded on individual protections – protections that are necessary to promote fairness. Among the most important of those protections is the right to counsel. This right is virtually meaningless unless there is a relationship of trust and confidence between the lawyer and the client. That is why Oregon law mandates that lawyers keep their clients’ secrets. It is also the lawyer’s legal, ethical and professional duty to act solely in the client’s best interest. Any other system seriously impairs the relationship between the lawyer and the client and is contrary to our carefully constructed adversarial system.

Long ago our nation adopted an adversarial justice system to avoid the excesses of government action. We rejected an oppressive system that extracted confessions from the accused and held summary trials without counsel. Our adversarial system grants the state substantial power and resources to investigate and prosecute crimes. It has powerful tools at its disposal, including search warrants, subpoenas and grand juries. The accused, in contrast, faces the might of the state clothed solely in the protections afforded to him by the law, which include the right against self-incrimination and the right to effective assistance of counsel.

I appreciate the compelling nature of the dilemma that Bennette’s lawyers faced, and I also understand the community’s response. The issue, however, is whether the defense should be required to step in to aid the prosecution out of compassion for a grieving family. If a legal system begins to erode the rights of the accused – even out of compassion – we would soon find that we no longer have a fair and functional system of justice.

Importantly, our constitutional rights protect both the innocent and the guilty against the dangers of an inquisitorial legal system that would allow the state to compel the accused to speak. To demand that a lawyer reveal client confidences that are shared for purposes of obtaining legal advice is a back door to the same unlawful result.

The advice that a lawyer provides to a client may mean that a crime goes unsolved or that a victim’s family suffers more pain, but this is the cost of our system of justice – a system that protects all individuals against unchecked excesses of government prosecution.


Presenting and Challenging Expert Testimony: Winning the Battle and the War

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. This article provides tips to ensure that your expert’s opinion reaches the jury, or conversely, that your opponent’s expert opinion does not.

There is no question that an expert can provide valuable—even case-ending—testimony. 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. Moreover, through the expert, counsel can often introduce helpful evidence that is otherwise inadmissible. Importantly, the expert can tie together counsel’s theories into a final opinion that proves the ultimate issue of the case.

A good expert is a competent narrator who helps to advance the theme of your case. 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. 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. 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. 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. We succeeded in showing the jurors that the government had been seriously misled by its own informant.

The range of subject matter of relevant permissible expert testimony is only limited by the trial lawyer’s creativity. Experts can take the lawyer and jurors into areas they previously knew little about. 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. 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.

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. The only requirement is that the demonstration or experiment must be sufficiently similar so that it fairly replicates the conditions it purports to represent.[1] In another case I tried, my client had a profound hearing loss. The government had a tape-recorded telephone conversation of my client purportedly expressing joy that the alleged crime had been carried out. 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 audiologist demonstrated what my client actually heard during the critical tape-recorded phone call. 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. 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. The jurors became experts on my client’s profound hearing loss and accepted our theory of the case. Consequently, the jury acquitted my client.

Because expert testimony is so significant, counsel must ensure that the testimony will withstand an evidentiary challenge. For this reason, it is worthwhile to remind ourselves of some basic legal principles governing expert evidence. 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.

The Rules of Evidence define the permissible scope of expert testimony. We are permitted to call experts when there are issues in a case that are beyond the common knowledge of the jury. Expert witnesses therefore must have scientific, technical, or other specialized knowledge through advanced education or significant training. They can testify to ultimate issues in a case and render opinions without personal knowledge of the events. For example, an expert may be called to provide an opinion about the cause of injury or illness, an essential element of the claim. In this regard the expert is uniquely qualified to testify to that ultimate issue.[2] However, trial counsel still needs (i) to be familiar with the qualifications of each party’s expert, (ii) to understand the record the expert relied on in rendering her opinion, and (iii) to know whether her opinion is based on proper methodologies.

Courts often admit expert testimony over the objections of counsel, leaving the jury to determine the weight that the testimony should be given. Thus, an advocate should think twice about challenging an expert where there is simply a dispute within the relevant community over the expert’s opinion. If the expert’s testimony is likely to be admitted over your objection, you will have probably previewed to opposing counsel and the expert the nature of your cross-examination thereby providing them with an opportunity to shore up their arguments.

This concern, of course, should not prevent you from waging a challenge where the expert’s procedures render the opinion unreliable, or where the opinion itself is without basis. In such cases, the expert’s opinion will not be admitted. For this reason, counsel must be prepared to challenge the expert’s theory or scientific methods. For example, a litigant might try to use a psychologist to explain why a victim changed her story or recalled a memory after many years. You must be ready to challenge these likely unreliable theories or the scientific methodology underlying the evidence through a hearing where the expert is subject to cross-examination or will be challenged through the presentation of competing expert testimony.[3]

Because expert testimony can be so persuasive, courts have a duty to disallow unreliable or unduly prejudicial expert evidence. Courts have developed a process to assess the reliability of the expert’s opinion pretrial and determine whether the jury should hear it. Your chance of prevailing at trial may depend on the outcome of these challenges. Therefore, it is important to resolve these issues by motion as soon as possible.

I. Expert Testimony is Generally Admissible if Reliable and Helpful to the Trier of Fact.

“Believe the one who has proved it. Believe an expert.”
— Virgil, Aeneid

Expert testimony generally will be admitted if the expert is qualified and the opinion is reliable. Oregon and federal rules provide a liberal standard for admissibility of expert testimony. If a qualified expert’s “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue” then the testimony is admissible.[4] Even though the standard is liberal, the rules do not permit all expert testimony. Trial courts perform a crucial “gatekeeper” function. First, the trial court must determine whether an expert possesses the appropriate qualifications through either training or experience, or both. The trial court must then decide whether that opinion will ultimately assist the fact finder.[5]

A. An Expert Must Be Qualified

“An expert is a man who has made all the mistakes that can be made, in a very narrow field.”
—Neils Bohr

An expert must be qualified by knowledge, experience, education, or training to testify about a particular subject-matter. “The witness must have such skill, knowledge or experience in the field or calling in question as to make it appear that his opinion or inference-drawing would probably aid the trier of the facts in his search for the truth.”[6]

Professional degrees are not necessarily required in order for an expert to be qualified to testify about an area where that expert has practical or technical experience. In State v. Rogers, for example, the Oregon Supreme Court determined that the expert, who was a properly qualified psychologist, had focused on neuropsychological issues and therefore was qualified to testify on a neuropsychological matter despite not having a degree in that particular discipline.[7] In State v. Moore, however, the court found an expert unqualified to testify regarding battered spouse syndrome when that expert did not have any degrees in the subject matter. Notably in Moore, the expert witness not only lacked a degree in the subject matter, she also had limited experience as a counselor. Given the inherent complexity of a battered spouse defense, requiring the expert to “evaluate the literature and the various phases of the syndrome and to apply the syndrome to the particular facts of the case[,]” the expert’s lack of training and education rendered her unqualified to testify and the jury did not hear her opinion.[8]

Training or job experience may also qualify a witness as an expert. In State v. Park, a forest service officer qualified to testify that marijuana plants were “clones.” The court found he was qualified because he had over 16 hours of training in differentiating different types of marijuana plants.[9] Importantly, the training or experience must be relevant to the issue. For example, a police officer’s general training is not sufficient to qualify him as an expert in the cause of an accident.[10] An expert’s qualifications depend heavily on the facts of a particular case, thus if the subject-matter of the testimony is an area that requires special training, an expert will not be qualified without that training.[11]

The determination of the expert’s qualifications relates directly to the purpose of Rule 702—assisting the trier of fact—because an expert is only helpful to the jury if he or she is qualified. As the Oregon Supreme Court explained it:

Because of these qualifications he is permitted to express his opinion as a witness so that the jury may have the benefit of his special ability to draw inferences from the facts in evidence. “The expert witness is granted the privilege of expressing to the jury an opinion because his superior training enables him to arrive at a conclusion which is more likely to be sound than that of the average juror.”[12]

Thus, it is very important for advocates to understand the qualifications of their own experts and their opponent’s experts and raise issues of qualification before the expert ever meets the jury.

B. An Expert’s Opinion Must Be Reliable

“For every expert there is an equal and opposite expert; but for every fact there is not necessarily an equal and opposite fact.”
—Thomas Sowell

An expert witness is only helpful to the trier of fact if the expert’s opinion itself is reliable. If an expert is offering a scientific opinion, one that “draws its convincing force from some principle of science, mathematics and the like”[13] the court applies a more rigorous test and analyzes multiple factors that go to the reliability of the expert’s proffered testimony. Challenges to expert witnesses go to two different areas: whether the advocate’s theory that the expert’s testimony supports is valid and whether the methods or protocols used to reach that theory are valid.[14]

For example, in a recent case I handled, I challenged the government’s key expert in a pretrial hearing. I argued that the expert relied on outdated methods and protocols and therefore his results were unreliable. Because I effectively discredited the expert’s conclusions during the pretrial hearing, the government realized that it could not establish a central element of its case and voluntarily dismissed the charges. Testing the reliability of your adversary’s expert can have case-altering effects. Below are the factors to be aware of as you craft your arguments.

  1. Daubert and the Federal Standard

The standards for admissibility of scientific evidence have changed over time. Under federal law, courts were hamstrung by the burdensome Frye test, which only permitted scientific evidence to come in when it was generally accepted in the field.[15] This excluded too much evidence as science and research progressed. Novel but otherwise reliable evidence was not admissible. In Daubert v. Merrill Dow, the United States Supreme Court determined that the Rules of Evidence superseded the Frye test and adopted a “flexible approach” designed to liberalize the introduction of scientific evidence:

Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, * * * whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.[16]

Daubert proposed four principle factors to aid in this analysis: (1) whether the theory or technique can and has been tested; (2) whether the theory or technique can and has been subject to peer review; (3) the known or potential rate of error, and; (4) the degree of acceptance in the relevant scientific community. Although Daubert involved a question of scientific evidence, later in Kumho Tire Co., Ltd. v. Carmichael, the United States Supreme Court held that the trial court’s gatekeeping obligation to determine the reliability of the evidence extended to “technical or other specialized knowledge” as well.[17]

  1. Brown/O’Key and the Oregon Standard

The Oregon Supreme Court also adopted a different multi-factor test for the admissibility of scientific evidence. Under State v. Brown and State v. O’Key, courts must determine the probative value of the scientific evidence or whether the “proposed evidence is based on scientifically valid principles and is pertinent to the issue to which it is directed.”[18] But this test is not “a mechanical checklist of foundational requirements.”[19] The overall touchstone is the reliability of the scientific opinion.

In Brown, a case about polygraph tests, the court set forth seven factors that Oregon trial courts had to consider before ultimately deciding that the polygraph technique was not admissible.[20] Thus, Brown, which predated Daubert v. Merrill Dow, established a separate and distinct multi-factor test for Oregon courts. Those factors are: (1) the technique’s general acceptance in the field; (2) the expert’s qualification and stature; (3) the use that has been made of the technique; (4) the potential rate of error; (5) the existence of specialized literature; (6) the novelty of the invention, and; (7) the extent to which the technique relies on the subjective interpretation of the expert.[21] The court in Brown concluded that “under proper conditions polygraph evidence may possess some probative value and may, in some cases, be helpful to the trier of fact[,]” however, the court determined the evidence was inadmissible based on different considerations than its potential reliability “under proper conditions,” demonstrating that evidence that otherwise meets the scientific hurdle may still be excluded. The court reasoned the introduction of polygraph evidence might lead to undue delay in proceedings, and to confusing battles of the experts. The court also concluded that jurors might overvalue polygraph evidence, and found that polygraph evidence impermissibly comments on the credibility of witnesses.[22]

A few years later, in O’Key, the Oregon Supreme Court incorporated the test set forth by the United States Supreme Court in Daubert v. Merrill Dow. No one factor is dispositive.[23] Unlike the United States Supreme Court’s ruling in Kumho Tire, Oregon courts have not ruled that the Brown/O’Key test applies to “technical or other specialized knowledge” as well as scientific evidence, however, Oregon courts define scientific evidence broadly. For instance, the courts routinely allow testimony on issues of medical causation,[24] psychological syndromes,[25] and drug or alcohol testing.[26] Oregon courts also have recognized that it is often difficult to distinguish between scientific evidence and evidence involving technical or other specialized knowledge because “[m]ost expert testimony rests at least partly on science.”[27]

  1. The Court’s Belief of the Jury’s Perception Categorizes Evidence as “Scientific”

An advocate must be on the lookout for expert opinions that appear to be scientific and will be relied upon by the jury as such. The Oregon Supreme Court concluded that whether proffered expert testimony is scientific, requiring the proponent to establish an appropriate foundation, “depends primarily on whether the trier of fact will perceive the evidence as such.”[28] In that case, State v. Marrington, the state called a psychologist to testify that the victim’s delay in reporting sexual abuse was a common occurrence. The state did not lay any foundation for scientific evidence required under Brown/O’Key. The defendant objected and argued that because this assertion was scientific evidence, the state was required to demonstrate that it was scientifically valid. The court in Marrington explained that trial courts “must determine whether the expert’s assertions ‘possess significantly increased potential to influence the trier of fact as scientific assertions.’”[29] Thus, the court concluded:

An expert * * * who has a background in behavioral sciences and who claims that her knowledge is based on studies, research, and the literature in the field, announces to the factfinder that the basis of her testimony is ‘scientific,’* * * Because that is how the factfinder would understand it, a court has a duty to ensure that such information possesses the necessary indices of scientific validity.[30]

The court reversed the trial court for failing to require that the state demonstrate that the expert’s opinion was scientifically valid.

  1. The Three Step Process

With any challenge to expert testimony, scientific or otherwise, trial courts must engage in a three-step process in determining whether expert evidence is admissible. First, the court determines whether the evidence is relevant under Rule 401.[31] Next, the courts apply Rule 702 to determine whether the expert is qualified and whether the expert’s opinion will assist the fact finder (for scientific evidence, this includes application of the multifactor Brown/O’Key or Daubert tests). Finally, the court will apply the Rule 403 balancing test, and if the expert evidence is more prejudicial than probative, it will be excluded.[32] The 702 factors are relevant to the Rule 403 balancing analysis. In one case, the defendant argued that the state did not lay a proper foundation for the evidence and therefore the probative value was outweighed by the prejudicial effect. The defendant, however, did not challenge the admissibility of evidence under Rule 702. Nonetheless, the Court of Appeals, although recognizing that a Rule 702 argument was not adequately raised, nonetheless agreed that the state did not lay a proper foundation for the evidence and applied the Brown/O’Key factors to determine that the urinalysis test results were not scientifically valid and therefore were not probative. Because the test results appeared scientific, it was unduly prejudicial to admit them.[33]

Although both the state and federal Rule 702 are rules of inclusion for expert testimony, the importance of the trial court’s gatekeeping function cannot be overemphasized. Experts may supplant the jury in its role as finder of fact. As one commentator notes, expert testimony poses a “paradox”:

when experts give an opinion they generally tell the trier of fact what meaning it should give to other evidence. But determining the meaning of the evidence is the central function of the trier of fact. If the trier of fact is unable or disinclined to question the expert’s opinion, it surrenders its central function to an expert whose testimony may be unreliable.[34]

Or, as the Oregon Supreme Court aptly stated in O’Key: “Evidence perceived by lay jurors to be scientific in nature possesses an unusually high degree of persuasive power. The function of the court is to ensure that the persuasive appeal is legitimate. The value of proffered expert scientific testimony critically depends on the scientific validity of the general propositions utilized by the expert.”[35]

II. Balancing the Trial Court’s Gatekeeper Function with the Jury’s Role

“If an expert says it can’t be done, get another expert.”
– David Ben-Gurion

It is, of course, more desirable for a questionable expert espousing questionable science to be excluded from the jury entirely—and that argument might be meritorious on appeal—but the so-called “battle of the experts” is at times inevitable. Ultimately, this is because the policy of Rule 702, and the Rules of Evidence more generally, favor the admission of relevant evidence and the bar for relevance is low.[36] Thus, some courts seem willing to admit doubtful evidence and let the jury sort it out, repeating the now-familiar refrain that challenges to the reliability of an expert’s opinion more often go to “weight, not admissibility.”[37] Even the uniform jury instruction states: “You are not bound by the opinion. Give it the weight, if any, to which you consider it is entitled.”[38] But this policy favoring admissibility conflicts to some extent with the court’s “gatekeeper” function. Trial courts have a duty to ensure that expert testimony is reliable. This is because expert testimony, as discussed above, has several features that could interfere with the jury’s role. Experts can testify to ultimate conclusions under Rule 704. Experts necessarily testify to issues that are beyond everyday understanding. And experts, owing to their specialized training and experience, appear credible to a jury. Thus, the rules must strike a delicate balance between the role of the court and the role of the jury to ensure that the jury’s role is not supplanted by the expert.

A. Advocates Present the Basis of an Expert’s Opinion, and the Jury Assesses the Weight of that Opinion

“The public do not know enough to be experts but know enough to decide between them.”
– Samuel Butler

If the court admits the proffered expert evidence, the jury must then determine for itself what weight to give the opinion. Jurors then perform a similar task to the trial court in a Rule 104 hearing. For example, the criminal model jury instruction provides:

Even though expert witnesses may testify about their opinions, you are not required to accept those opinions. To determine the value, if any, you will give to an expert’s opinion, you should consider such things as the expert’s qualifications, the expert’s opportunity and ability to form the opinion, the expert’s believability, and how the expert reached the opinion or conclusion.[39]

Thus, if the evidence is admitted, it is incumbent on counsel to demonstrate for the jury the flaws of the opponent’s expert’s opinion. As the Oregon Supreme Court has explained, “the witness who testifies to an expert opinion is subject to cross-examination concerning how she arrived at that opinion, and the cross-examiner is given ‘great latitude’ in eliciting testimony to vitiate the opinion.”[40] Necessarily, trial courts provide advocates leeway to essentially re-litigate issues that arose in an unsuccessful challenge under Rule 104, or in those cases where there was no opportunity for a pretrial hearing, to litigate those issues for the first time. To be sure, in a Rule 104 hearing, the trial court and counsel are not constrained by the other rules of evidence.[41] But if counsel is forced to discredit the opponent’s expert during trial, counsel must do so within the bounds of the rules of evidence.

Yet even when the Rules of Evidence apply to the particular proceeding, counsel can introduce evidence underlying the expert’s opinion. For example, Rule 705 provides that the expert may be required to disclose the underlying facts or data they relied upon during cross-examination. Under Rule 706, an expert may even be impeached with statements from a learned treatise.

Generally, if the opposing expert’s conclusions are flawed, you have an opportunity to challenge that expert for relying on an incomplete factual record in rendering the opinion. You can force the opposing expert, on cross-examination, to disclose the bases of her opinion, and, if it is based on inaccurate or incomplete information, then the jury should discount her opinion. Indeed, you have an opportunity to expose the weaknesses in the expert’s opinions, including poor quality control, lack of documentation, failure to consider relevant information or facts, and opinions that have been soundly criticized in the scientific literature. Whether to introduce the underlying facts or data that informs the expert’s opinion is a strategic choice. Conversely, it is beneficial for counsel to introduce the evidence that forms the basis of his own expert’s opinion because through the expert, counsel can often introduce favorable evidence that is otherwise inadmissible.

For example, defense counsel used cross-examination to great effect in Blake v. Cell Tech International, Inc,[42] by drawing out the fact that the expert had used a new and untested method to determine whether there were toxins in the decedent’s liver, and had also conducted three different rounds of that testing that contained false positives. Both the trial court and the Court of Appeals concluded that the opinion was not reliable, and therefore it was inadmissible.[43]

B. Expert Testimony Is Inadmissible When it Intrudes on the Jury’s Function to Determine the Credibility of Witnesses

“A fundamental premise of our criminal trial system is that ‘the jury is the lie detector.’”
United States v. Scheffer[44]

Advocates also should be mindful that on the basis of Rule 403, courts have determined that there is some expert testimony that so thoroughly supplants the role of the jury that it is inadmissible. Even if the science behind the opinion is determined to be reliable, and the expert’s opinion is sensible, as a matter of judicial doctrine, that evidence cannot come in. For example, in State v. Southard, the Oregon Supreme Court decided whether a diagnosis of sexual abuse was admissible.[45] In so deciding, the court followed the framework set forth in Brown/O’Key. First, it determined the evidence was relevant to the issue of whether the victim had been sexually abused. Significantly, it next decided that the evidence was scientifically valid and reliable under Rule 702. The court then looked at the methodology that the psychologist used in formulating the diagnosis of child sex abuse. Noting that the psychologist used standard, conventional, and accepted protocols, the court determined the proffered evidence has sufficient indicia of scientific validity. However, the court ultimately determined that, because the diagnosis did not tell the jury anything that it could not determine on its own—like whether the alleged sexual abuse occurred—it was of limited probative value, while, at the same time, it was very prejudicial. Therefore, the evidence was inadmissible.

For similar reasons, courts also disapprove of evidence that improperly comments on a witness’s credibility. That is why no witness, expert or otherwise, may give an opinion that another witness is or is not telling the truth in their trial testimony.[46] In Milbradt, a psychologist called by the state testified that because of the victim’s severe mental retardation, she lacked the capacity to fabricate a lie. The Oregon Supreme Court unequivocally held that “no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state. The assessment of credibility is for the trier of fact and not for psychotherapists.”[47]

Likewise, as discussed above, the court concluded that polygraph evidence is inadmissible for any purpose, even when parties stipulate to its admissibility.[48] Even though the court earlier had recognized that “under proper conditions polygraph evidence may possess some probative value and may, in some cases, be helpful to the trier of fact,” any probative value was outweighed by the prejudicial effect.[49] Polygraph evidence, even if properly done, has a “potential for misuse and over-valuation * * * by the jury” that is, in fact, exacerbated by the parties’ stipulation to its introduction and reliability—Oregon courts “will not permit this gamble.”[50]

However, evidence that relates to the capacity of a witness to testify is generally relevant.[51] The cases cited above present different theories, and illustrate how important it is for counsel to hone the theory of relevance. In my case, where expert testimony regarding the witness’s diagnosis of being a pathological liar was admitted, the witness had been diagnosed before the FBI chose to rely on him as an informant. The expert’s testimony allowed me to challenge the government’s reliance on a pathological liar to build its case and to interpret the facts. It was also admissible because it pertained to a mental illness that went directly to the witness’s ability to perceive, recall, or recount. The psychologist rendered no opinion regarding the informant’s truthfulness in court.

C. Experts Are Necessary to Prove Certain Facts

“Who’s to say who’s an expert?”
– Paul Newman

It is critical to know when an expert opinion is required and how to articulate the specific theory of admissibility. It is equally important to know how to mount challenges based on an adversary’s failure to use an expert when one is required. Thus, it is important for both the proponent and the opponent of an expert witness to understand how that witness will be put to use, in case you are able to challenge your opponent’s failure to use an expert when one is necessary. Rule 702 is silent about when a party is required to put forth expert testimony, however, case law has held that expert testimony is required to prove certain facts. For example, expert testimony is often required to prove causation. “When the element of causation involves a complex medical question, as a matter of law, no rational juror can find that a plaintiff has established causation unless the plaintiff has presented expert testimony that there is a reasonable medical probability that the alleged negligence caused the plaintiff’s injuries.”[52]

In professional malpractice cases, expert testimony is often required to establish whether the professional breached the profession’s duty of care. In one medical malpractice case, the plaintiff did not call an expert and argued that the doctor should be held liable on a res ipsa loquitor theory. The court rejected that argument, stating that this was “precisely the type of case that the Supreme Court has said requires expert testimony.”[53] Because there was no evidence presented that the doctor failed to perform according to the reasonable standards of the community without expert testimony, there was no way to establish that the doctor had been negligent.

In addition to the opinions required by law and “big picture” conclusions—such as causation—that are the purview of expert witnesses, the rules of evidence require expert testimony to prove certain facts because lay witnesses are not competent to testify to matters requiring specialized knowledge. Lay opinion testimony is limited by Rule 701, which is essentially identical in both Oregon and federal courts. That rule provides:

If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are:

(1) rationally based on the perception of the witness; and

(2) helpful to a clear understanding of testimony of the witness or the determination of a fact in issue.

This rule is interpreted broadly in the sense that lay witnesses often express themselves through opinion based on perception as opposed to hard fact, for example when the witness testifies that, “the weather was cold,” “he seemed angry,” or “he was driving fast.”[54]

Many opinions, of course, are outside of the competence of a lay witness. For example, in State v. Hite, the defendant tried to testify that his ability to communicate was impaired by the medication he was taking. The court did not permit the testimony because the defendant was not competent to testify about medical causation.[55] In another case, a post-conviction matter, the court held that expert testimony was required to explain the nature of the injuries sustained during an assault so the trier of fact had the information needed to decide whether the injury was significant.[56]

III. Challenging your Opponent’s Expert and Protecting your Own

“Make three correct guesses consecutively and you will establish a reputation as an expert.”
– Laurence J. Peter

What is the threshold of reliability for the court to allow the evidence to be presented to the jury? There are two major tacks that an advocate can take to mount a challenge to an expert witness. The advocate can challenge the theory of admissibility, or the advocate can challenge the methodology or protocols used in reaching the expert opinion.

Following a challenge to the theory of admissibility, such as a claim that the theory is bogus or junk science, courts must determine whether the expert’s opinion is reliable. A theory or technique is not unreliable just because it is novel. For example, in Kennedy v. Eden Advanced Pest Technologies,[57] the defendant brought a pretrial challenge to the plaintiff’s treating physician, who was also testifying as an expert in chemical sensitivity.[58] The expert had diagnosed the plaintiff as suffering from “multiple chemical sensitivity.” The defendant challenged that opinion as junk science and introduced testimony from its own expert that there was no such condition as “multiple chemical sensitivity” and then suggested that the plaintiff’s expert’s rate of error was 100%. The trial court excluded the plaintiff’s expert but the Court of Appeals reversed. At most, the court concluded, there was a good faith disagreement in the scientific community and that both sides should be able to present evidence to the jury. In a case involving silicone breast implants, Jennings v. Baxter Healthcare Corp., the defendant challenged the plaintiff’s expert at trial and the trial court excluded the testimony. In his offer of proof, the plaintiff’s expert testified regarding a potential syndrome caused by the leaking implants. In arriving at his conclusions, the expert had followed established clinical diagnostic techniques. The Supreme Court determined that the evidence should have been admitted because, even though the theory was novel, the protocols followed were not.[59]

Even though novelty alone is insufficient to exclude scientific evidence, where there is a lack of traditional corroboration for reliability the court will exclude the evidence. For example, in Blake v. Cell Tech Int’l Inc.,[60] the plaintiff’s expert testified in a pretrial hearing that the decedent died from a build-up of microcystin toxins in his liver.[61] To reach that conclusion, the expert had employed a novel technique that had never before been used to test a human liver. After accepting the premise that novelty alone is not sufficient to exclude scientific testimony, the court concluded that the technique was not reliable for a number of reasons. First, the technique that the expert used was not accepted in the field to test for microcystins in a human liver. There was no known error rate nor was there any peer-reviewed publication regarding the accuracy of such procedures. Moreover, the tests conducted by the expert could not be easily duplicated or subjected to confirmatory tests through more established procedures. Finally, the probative significance was central to the plaintiff’s claim because it would establish causation, and therefore, if admitted, the expert’s testimony would be highly persuasive.[62] The court concluded that the trial court had properly exercised its gatekeeper function.

The appellate and trial courts are more inclined to admit experts and let the jury consider the weight of their testimony rather than exclude experts where the theory, although novel, is still supported by solid scientific techniques and accepted procedures. This preference is clear from looking at the Brown/O’Key and Daubert factors. In those cases, the courts were clear that the focus of the multifactor inquiry was “solely on principles and methodology, not on the conclusions that they generate.”[63] Although, in Marcum, the Oregon Supreme Court expanded the application of the Brown/O’Key test to reach the reliability of an expert’s ultimate conclusions,[64] the fact remains that most of the factors pertain to the reliability of methods used to reach the conclusion.

For example, courts must focus on the techniques used and their acceptance in the field, the rate of error, and the extent to which the technique relies on subjective interpretation. Further, the existence of standards governing the use of the technique or safeguards in employing it is relevant and persuasive and weigh towards admissibility provided those standards and safeguards were applied in that particular case. If protocols and techniques are not followed, then the conclusion is not reliable and the expert’s opinion should be excluded.[65]

A series of cases involving the drug recognition expert (DRE) protocol, which is designed to determine whether a person was under the influence of a controlled substance, demonstrates how a scientifically-valid theory can be undermined by insufficient adherence to proper methods and protocols. The Court of Appeals recognized the scientific validity of the 12-step DRE protocol in State v. Sampson following the test set forth in Brown/O’Key.[66] Thus, following Sampson, DRE protocol results are admissible in future cases. But, in subsequent cases, the courts have excluded DRE protocol results when the opponent of the evidence established that the results were unreliable because the protocol was improperly administered.[67] In State v. Aman, a qualified officer administered 11 of the 12 steps in the DRE protocol, but failed to complete the confirmatory urinalysis test. The court determined that because the confirmatory urinalysis “vitiate[d] the problem of the DRE protocol’s subjectivity” it was essential to the 12-step protocol’s scientific validity under Brown/O’Key.[68] Similarly, the court found that in cases where the DRE protocol administrator was unqualified, like in State v. McFarland,[69] the opinion is unreliable and inadmissible.

IV. Conclusion

“An investment in knowledge pays the best interest.”
– Benjamin Franklin

Understanding the validity of the scientific evidence of your opponent is not merely an academic exercise. As discussed above, challenges to experts may change the entire landscape of a case. Take the example I mentioned earlier, where the government, quite unexpectedly dismissed an environmental case I was defending during the Daubert hearing process in federal district court.

When I litigated the Daubert hearing in my environmental case, our expert testified that the tests the government witness performed and the conclusions he drew were outdated. Further, our expert explained that other tests and equipment were available, and these modern tests showed that the nature of the substance in dispute was very different than what the government experts claimed. In short, our expert explained that the government’s tests were no longer scientifically valid and were, in fact, unreliable. Before the court had an opportunity to decide whether the government’s evidence would be admitted with the general instructions regarding the jury’s duty to “weigh the evidence,” the government dismissed the case because flaws in its expert’s opinion made it very difficult to prove other issues in the case.

There are several lessons learned from this and other experiences. First, even though they come with a host of issues for advocates, expert witnesses are a critical part of modern litigation. Litigants rely on experts to educate jurors on complex topics and to explain complicated information. Increasingly, sophisticated jurors will expect counsel to use modern science and technology to prove their points. Further, new science is constantly replacing older ideas. Savvy jurors will expect DNA evidence, where once blood analysis was sufficiently convincing. It is important to remember that at one point DNA evidence was frequently challenged but now is accepted without debate.[70] But at the same time, new technology is often unproven and subject to challenge by opponents. For example, litigators are now presenting powerful demonstrative evidence through computer-generated reenactments. But as the use of this technology becomes more common, so too will be the challenges to computer-generated demonstrations.[71]

There are countless examples of new science becoming standard practice, but likewise, there are examples of once valid protocols that are supplanted by more accurate testing methods. Thus, the methods, protocols, accuracy, and underlying assumptions of an expert’s testimony will always present opportunities for challenges where even basic expert evidence is improperly relied upon.

 


[1] See e.g., Dyer v. R.E. Christiansen Trucking, Inc., 318 Or 391, 400 (1994) (trial court did not err in excluding videotape demonstration of “trailer sweep” when it was not sufficiently similar to facts of case to be relevant); Myers v. Cessna Aircraft Corp., 275 Or 501, 509-10 (1976) (admitting expert testimony and lab results where experiment conditions were the same as the conditions under which the evidence indicates the plane was operating).

[2] See Madrid v. Robinson, 324 Or 561 (1997) (accident reconstruction expert permitted to testify to what “caused” the accident). See generally Rule 704 (“Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”)

[3] In federal court and in state criminal proceedings, challenges to experts often occur pretrial. In both state and federal court, the parties are provided expert discovery pretrial, enabling us to make pretrial challenges to this evidence. I am a criminal law practitioner and therefore my experience is with pretrial hearings and this article does not discuss the nuances of setting up challenges when you learn of an expert for the first time during the trial itself. See Stevens v. Czerniak, 336 Or 392, 404-05 (2004) (Oregon Rules of Civil Procedure do not permit court to require pretrial discovery of experts).

According to my experienced colleagues who try civil cases in state court, litigants are required to make their challenges to expert witnesses often during trial because of the lack of pretrial discovery of experts. Thus, it is even more important to know the law and be familiar with the science. The downfall of litigating these objections during trial is the risk that the case may end up gutted of its experts and unable to proceed. As discussed below, in some civil cases, the parties challenge an expert pretrial, but in others, these decisive issues are litigated during trial.

[4] Rule 702. The federal rule is similar, and provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

[5] Rule 702.

[6] Sandow v. Weyerhaeuser Co., 252 Or 377, 380 (1969).

[7] State v. Rogers, 330 Or 282, 317 (2000).

[8] State v. Moore, 72 Or App 454, 459, rev den 299 Or 154 (1985).

[9] State v. Park, 140 Or App 507, 514 (1995), rev den 323 Or 690 (1996).

[10] See Davis v. County of Clackamas, 205 Or App 387, 395, rev den 341 Or 244 (2006) (officer could not give opinion as an expert because he did not apply specialized knowledge as an accident reconstructionist).

[11] See State v. McFarland, 221 Or App 567, 577 (2007) (trainee in Drug Recognition Expert (DRE) protocol was not qualified to testify as an expert because not adequately trained).

[12] State By & Through State Highway Comm’n v. Arnold, 218 Or 43, 64-65, reh’g denied and opinion modified, 218 Or 43 (1959).

[13] State v. Brown, 297 Or 404, 407 (1984).

[14] State v. O’Key, 321 Or 285, 292-93 (1995).

[15] United States v. Frye, 293 F 1012 (DC Cir 1923).

[16] Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 US 579, 592-93 (1993).

[17] 526 US 137, 141-42 (1999).

[18] O’Key, 321 Or at 303.

[19] Id. at 300.

[20] Brown, 297 Or at 445.

[21] Id. at 422-37.

[22] Id. at 440-41.

[23] The factors enunciated in Brown/O’Key are not the only relevant considerations. In a footnote in Brown, and recognized again by the Supreme Court in Marcum v. Adventist Health System, 345 Or 237, 244 n 7 (2008), are 11 more factors: (1) the potential rate of error in using the technique; (2) the existence and maintenance of standards governing its use; (3) presence of safeguards in the characteristics of the technique; (4) analogy to other scientific techniques whose results are admissible; (5) the extent to which the technique has been accepted by scientists in the field involved; (6) the nature and breadth of the inference adduced; (7) the clarity and simplicity with which the technique can be described and its results explained; (8) the extent to which the basic data are verifiable by the court and the jury; (9) the availability of other experts to test and evaluate the technique; (10) the probative significance of the evidence in the circumstances of the case; and (11) the care with which the technique was employed in the case.

[24] Jennings v. Baxter Healthcare Corporation, 331 Or 285, 304 (2000).

[25] State v. Milbradt, 305 Or 621, 631 (1988).

[26] State v. Sampson, 167 Or App 489 (2000).

[27] O’Key, 321 Or at 291 (quoting Christopher B. Mueller and Laird C. Kirpatrick, Modern Evidence § 7.8, 990 (1995).

[28] State v. Marrington, 335 Or 555, 561 (2003).

[29] Id. at 562 (quoting O’Key, 321 Or at 292).

[30] Id. at 563-64.

[31] Id. at 297-98.

[32] Id.

[33] State v. Jayne, 173 Or App 533, 541-43 (2001).

[34] Wright and Gold, Federal Practice and Procedure § 6262 at 179.

[35] O’Key, 321 Or at 291.

[36] Rule 401 provides that evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”

[37] See e.g., Jennings, 331 Or at 309 (expert’s inability to explain mechanism causing plaintiff’s injury went to weight of the evidence, not admissibility); Barrett v. Coast Range Plywood, 294 Or 926, 931 (1983) (that an expert witness did not have a specialized degree in the subject-matter went to the weight accorded to testimony, not admissibility); see also, Baughman v. Pina, 200 Or App 15, 20 (2005) (expert’s failure to explain basis of opinion went to weight of testimony but not basis for directed verdict). The effect is the same in federal court. See generally, Wright & Gold, Federal Practice and Procedure § 6264 at 224 (“courts usually conclude that defects in the underlying logic or basis of expert testimony are jury questions that go to weight, not admissibility”).

[38] Oregon UCJI No 10.06.

[39]Oregon UCJI No 1034. The civil jury instruction is similar. Oregon UCJI No 10.06 provides that “An expert witness may give an opinion on any matter in which that witness has special knowledge, skill, experience, training, or education. You should consider the qualifications and credibility of the expert witness and the reasons given for the opinion. You are not bound by the opinion. Give it the weight, if any, to which you consider it is entitled.”

The Ninth Circuit Criminal jury instruction, and its virtually identical civil counterpart, provides: “You have heard testimony from persons who, because of education or experience, were permitted to state opinions and the reasons for their opinions. Such opinion testimony should be judged like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’s education and experience, the reasons given for the opinion, and all the other evidence in the case.”

[40] State v. Lyons, 324 Or 256, 278-79 (1996) (quoting Bales v. SAIF, 294 Or 224, 235 n 4 (1982)).

[42] 228 Or App 388 (2009).

[43] Id. at 401-02.

[44] 523 US 303, 313 (1998)

[45] 347 Or 127 (2009).

[46] State v. Middleton, 294 Or 427, 438 (1983), Milbradt, 305 Or at 629-30.

[47] 305 Or at 629-30 (emphasis in original).

[48] State v. Lyon, 304 Or 221, 233-34 (1987).

[49] Id. at 230-31 (quoting Brown, 297 Or at 438).

[50] Id. at 232-33.

[51] See State v. Longoria, 17 Or App 1, 20-21 (1974) (“In a proper case, where there is an indication that a witness suffers mental impairment affecting his testimonial capacity, it may be proper to allow psychiatric or psychological evidence to assist the jury in assessing the ability of that witness to perceive, remember and relate.”); see also United States v. Palmer, 536 F2d 1278 (9th Cir 1976) (citing 3A Wigmore, Evidence § 944 at 778 (Chadburn Rev 1970)) (range of evidence to discredit a witness on capacity to remember, observe, and recount is broad).

[52] Baughman, 200 Or App at 18.

[53] Jeffries v. Murdock, 74 Or App 38, 43, rev den 299 Or 584 (1985).

[54] See State v. Barnes, 208 Or App 640, 650-51 (2006) (witness permitted to testify to opinion that victim was on methamphetamine).

[55] State v. Hite, 131 Or App 59, 62-63 (1994), rev den 320 Or 508 (1995).

[56] Lambert v. Palmateer, 187 Or App 528, 536, rev den 336 Or 125 (2003).

[57] 222 Or App 431 (2008).

[58] Although ordinarily there is no pretrial discovery of experts under the Rules of Civil Procedure, there is an exception in personal injury cases for the reports of physicians and psychologists who have examined the plaintiff. ORCP 44 C; AG v. Guitron, 351 Or 465, 467 (2011).

[59] 331 Or 285, 305 (2000).

[60] 228 Or App 388 (2009).

[61] The opinion does not indicate how the defendants procured a pretrial hearing on this subject.

[62] Id. at 401-02.

[63] O’Key, 321 Or at 305 (quoting Daubert, 509 US at 595).

[64] 345 Or at 245-46 (expanding Brown/O’Key to reliability of opinion of medical causation).

[65] See Jayne, 173 Or App at 544 (urinalysis techniques were error-prone and thus unreliable).

[66] Sampson, 167 Or App 489.

[67] See e.g., State v. Aman, 194 Or App 463 (2004), rev allowed 339 Or 488 (2005), dismissed as improvidently allowed, 339 Or 281 (2005).

[68] Id. at 473 (quoting Sampson, 167 Or App at 510).

[69] 221 Or App 567 (2008).

[70] See State v. Lyons, 324 Or 256 (1996) (determining that DNA evidence is scientifically valid).

[71] See generally Mario Borelli, The Computer as Advocate: An Approach to Computer-Generated Displays in the Courtroom, 71 Ind L J 2 (1996); John Selbak, Digital Litigation: The Prejudicial Effects of Computer-Generated Animation in the Courtroom, 9 Berkeley Tech L J 2 (1994).


Revisiting the First Principles of Cross-Examination

As many lawyers know, one of the most nerve-wracking activities is to stand up in front of a group of colleagues or peers and speak on a subject as an “expert.” Such demonstrations are often more intimidating than appearing before any judge or jury. For this reason, when I agreed to demonstrate a model Cross-Examination as part of this year’s OSB Trial Advocacy College, I was dismayed to learn that not only would my techniques be held up as the “proper way” to conduct a cross, but I would be cross-examining the plaintiff in a type of case in which I had virtually no experience: a personal injury case arising out of a motor vehicle accident. My work preparing that demonstration cross, however, not only reminded me how much fun cross-examination can be, it also confirmed that the tried-and-true techniques for preparing and conducting a cross-examination of a hostile witness will work even with an unfamiliar subject matter. After over thirty years as a trial lawyer, I can almost recite in my sleep the basic concepts behind cross-examination, but this exercise underscored how far certain key concepts can take a lawyer who finds herself in a new or challenging situation.

“I’ll tell you a story.” –F. Scott Fitzgerald

Dicken’s famously said, “Now, what I want is, Facts.” The story the lawyer weaves from the facts ultimately carries the day. Trial practice has much in common with the theater and storytelling. An effective cross-examination will showcase your narrative more than any other part of the trial. With a critical witness such as the plaintiff in a personal injury case, the jury will expect something compelling, or at least somewhat interesting. Developing a captivating narrative requires putting yourself in the shoes of the juror and asking: What would a juror want to know about this case? What is my case theory and how can the witness contribute toward establishing my themes?

Although I knew little about the typical issues that arise in a car accident case, I knew that if I wanted to make an impression on the jury (or, in this case, interest and entertain my fellow lawyers), I had to do something more with my cross of the plaintiff than just elicit basic factual testimony that an accident reconstruction expert could later use to show inconsistencies between the plaintiff’s story and the physical evidence.

In this case, the participants in the training program were given a set of prepared materials involving a motor vehicle accident that had taken place at an intersection in Southwest Portland. The written materials revealed some inconsistencies among the plaintiff’s statements made to police, to doctors, and during depositions, but the statements mostly concerned matters collateral to the cause of accident itself. The records, of course, provided evidence that the plaintiff had a motive to exaggerate—namely, a desire for a financial recovery—and had perhaps overstated the extent of his injuries. I needed to go beyond those issues if I wanted the jury conclude that the plaintiff’s statements that he was driving carefully and well within the speed limit when the collision occurred were not trustworthy.

It is common knowledge that people enjoy solving puzzles. Neuroscientists have found that not only does the brain enjoy puzzle-solving, once a person reaches a conclusion, it becomes a fixed belief. The ancient rhetorical device of creating a syllogism—where an audience is presented with two propositions from which it is meant to reach a desired conclusion—has long been used to sway public opinion. In the context of cross-examination, this means that jurors who are allowed to come to their own conclusions will believe the outcome is a matter of common sense and will not be easily swayed from their conclusion once it has been reached.

In this case the plaintiff testified he was driving the posted speed limit from the time he left work to the time of the accident. Because the defendant pulled out unexpectedly into the plaintiff’s lane of traffic, the plaintiff was unable to slow down to avoid the collision. I knew I needed to set up the following syllogism: The plaintiff drove at a speed in excess of the posted speed limit after he left work. Therefore, the plaintiff’s statement that he was driving the posted speed limit before the collision cannot be trusted. Once the inaccuracy was exposed the jury would have to conclude a person who lies about consistently driving the posted speed limit must be lying when he testified that he was driving carefully immediately before the accident. Therefore, the plaintiff’s careless driving caused the accident.

To determine whether your syllogism works, it is crucial to enlist trusted colleagues, if possible. Talk to those around you about your case theory; ask them if your talking points are persuasive; show them your exhibits to determine whether they make your point. If you can’t accomplish these things in a succinct, appealing way ahead of time with an honest audience, it probably won’t work with twelve strangers on a jury.

“Preparation is the be-all of good trial work.” –Louis Nizer

We have all been told countless times about the importance of preparation in trial practice, and doubtless many of us have learned that lesson the hard way. But it bears repeating that thorough and exacting preparation is nowhere more important than in cross-examination. As stated above, a truly effective cross-examination results in the jurors drawing their own conclusion that the witness cannot be trusted. Your goal is to lead the jurors to conclude that the opponent’s version of events is implausible and defies common sense.

If you hope to use a witness’s own words to demonstrate his untrustworthiness or some other negative trait, it is imperative that you know as much as you possibly can about the subject matter at hand. For example, once I determined that the events at the scene of the accident would be the most compelling part of this cross-examination, reviewing and analyzing the written case file was merely the first step. The only way to explore fully the issue was to visit the scene and attempt to understand in a concrete way the context and identify any factors that might undercut the witness’s statements. In any trial there is no substitute for getting out into the field.

In my case, I enlisted a few interested colleagues to travel to the scene with me to take photographs, to assess and document the features of roadway, and to explore what both the plaintiff and defendant would have seen before the accident occurred. We also mapped out and traveled the plaintiff’s route on the day in question. We drove from his place of work to the scene of the accident. I was hoping that the time it took him to reach the point of the accident was shorter than the legal speed limit, proving he was speeding. Unfortunately, this theory did not pan out. Our investigation revealed that even in heavy traffic the plaintiff could have reached the location in the time he testified it took him while traveling well within the speed limit. From past experience I have learned not to waste time and squander credibility by cross-examining a witness on topics that don’t further your goal of casting doubt on the opponent’s case. No matter how good the questioning technique, if the facts don’t support your point, the witness’s answers will have the ring of truth.

What the investigation of the accident scene revealed, however, was that the posted speed limit for certain parts of the route was lower by half than what the plaintiff had testified to in his deposition since there were multiple warning and hazard signs, including school crossings and curves. When taken together, there was persuasive evidence to suggest that if the plaintiff had been driving at 40 mph as he had testified under oath in his deposition, he had been driving substantially faster then the posted speed limit. The jury could therefore conclude that he must have been speeding when he approached the relevant intersection. In other words, his testimony that he had been driving carefully and had slowed down just before the accident could not be trusted. The investigation revealed the key to the syllogism and showed me how I could lead the jurors to conclude that the plaintiff, not the defendant, caused the accident.

“Order is Heaven’s first law.” –Alexander Pope

Once you determine the goals of your cross, formulate a step-by-step plan to achieve those goals. A well-organized cross-examination has several elements. The topics should flow logically; the organization should make sense to the listener and should be easy to follow. Oftentimes, the outcome of a case depends on which lawyer jurors trust more. Jurors are more likely to respect and trust lawyers who have a well-structured cross-examination and appear to know ahead of time what they are trying to accomplish. A well thought-out cross demonstrates to jurors that the lawyer knows her case and is confident in the positions she is taking.

While the Oregon Evidence Code grants the court the discretion to “exercise reasonable control over the mode and order of interrogating witnesses,”[1] the court generally will not interfere with the order of your questioning if it makes logical sense and does not mislead the jury. Focus on one point at a time, and clue jurors in on the topic you are covering by using introductory statements, such as “Now I’d like to discuss the statements you made to the police officer at the scene.”

It is also critical to consider the appropriate time to raise the different topics in your examination and depending on how those topics will impact the witness. Even hostile witnesses will frequently be able to provide testimony favorable to your case. In some instances, this function of cross-examination can be as important as damaging the credibility of the witness. If the witness can provide you with helpful affirmative testimony, elicit that testimony before you begin to impeach him or otherwise attempt to harm his credibility. There’s truth to the old adage “don’t insult the alligators until you have finished crossing the stream.”

In all likelihood, opposing counsel will already have attempted to build up the witness’s credibility during the direct examination and you can take advantage of her efforts by lending credibility to the testimony concerning your own case. When you want information from a hostile witness that will help your case, be nice to him, flatter him, build him up as an authority on the issue and make him feel smart. A witness who feels comfortable and competent will let down his guard and may want to appear to be an expert on the subject and to both continue to remain in your good graces and shine before the jury. He is more likely to answer your questions in a pleasant, affirmative way. Only after you have received the helpful testimony you want from the witness should you revert to “attack mode.” In short, organize your cross examination to frontload the questions that will elicit information helpful to your case and backload the questions that will have the effect of impeaching or criticizing the witness.

“No rule so good as rule of thumb, if it hit.” –Scottish Proverb

The classic rules of cross-examination work and bear repeating. Anything you read on cross-examination will tell you to use simple, leading questions to control the witness. As it is also commonly said, you should do the testifying, and the witness should simply be asked to agree with whatever you say. When you lead a witness by asking questions that themselves strongly imply the desired answer, you are in effect “priming a pump.” Witnesses typically go into a cross-examination anxious and ready for battle, and if you can get the witness answering “yes” over and over, it will lull him into a rhythm. He is then less likely to reject the premise of your question, and more likely to provide the answer you seek

Using simple questions is also critical because it requires the witness to do less thinking and supports the tendency to answer “yes” to every question you ask. Simple, short questions also hold the jury’s attention and provide a coherent story free of confusion.

Some attorneys, like me, have the tendency to ask compound questions. These questions are not only subject to objection, they can be confusing to both the witness and the jury. If you ask a compound or poorly-worded question, don’t be afraid to acknowledge it and to use humor when doing so. Levity and self-effacement can humanize you to the jury and build credibility. Lawyers who recognize their mistakes and appear personable are more likable and generally more trustworthy to the jurors than lawyers who convey a sense that they are always right.

One of the most oft-quoted rules for cross-examination is to only ask questions to which you know the answer. This remains a good rule of thumb, but like all rules of thumb, there are exceptions. There are some situations where any possible answer the witness gives will help you and no possible answer can hurt you. These are few and far between, but can be effective opportunities when recognized. Again, don’t be afraid to use your trusted colleagues to help you determine whether a question you plan to ask can hurt you. If you can identify those questions, they can sometimes provide some of the most effective and compelling testimony in your case.

For example, in this case, the plaintiff had testified during his deposition that his car had “almost bottomed out” on a speed bump just before the accident occurred. The cross-examination question, “What did it feel like when your car almost bottomed out?” probably will not hurt you, even if you don’t know what the witness will say in response. Everyone has had the experience of going over a speed bump a little too fast, so if the witness tries to minimize his earlier statement it will not undercut his prior statement. But, if the witness uses language that unintentionally conveys that he was going very fast over the speed bump, his own words can be used against him much more effectively than any characterization you could give. In my demonstration, the witness unexpectedly responded to that question by describing the feeling of traversing the speed bump as similar to being “on a roller-coaster”—very helpful testimony because using his own words, you could characterize his drive as his “roller-coaster ride.”

“We are not won by arguments that we can analyze, but by tone and temper; by the manner, which is the man himself.” –Louis Brandeis

One of the most common ways that lawyers attempt to undercut an adverse witness’s credibility is through impeachment, especially impeachment with prior inconsistent statements.[2] It is essential to make your impeachment count. All too often, however, the inconsistency appears much bigger and more significant in the mind of the lawyer than it appears to the jury. Jurors may empathize with the witness who is being put on the spot by a crafty lawyer, or they see the distinction the lawyer is making as trivial. Jurors may also fail to understand the meaning of the impeachment or fail to appreciate its importance, if they do not understand the issues. Because we all know our case much better than any juror could hope to, we should remember that during cross-examination the jurors must be led through the impeachment step-by-step. Through a methodical inquiry, they have an opportunity to appreciate fully its significance.

One common and effective way for jurors to appreciate the impact of your impeachment with a prior inconsistent statement is to highlight the original statement and build up the importance of the circumstances under which it was made. You should take the witness through the steps of his first statement: He should affirm how seriously he took that statement, and he should acknowledge that he and understood the importance of being truthful. In doing so, you are demonstrating to the jury that the witness had every incentive to be accurate. The jury must come to believe as a matter of common sense and life experience that a witness is unlikely to make these inconsistent statements by accident. Rather, he must have been intentionally untruthful. If the first statement is highlighted sufficiently, the inconsistencies in the second statement will have much more impact. This can be done very easily with a series of short questions that build on each other.

If you are attempting to highlight the improbability of a witness’s statement based on other evidence, you can lead the jurors to recognize the improbability by using small visual bites that paint a picture of the scene that is favorable to your case. Short, clear questions are always more effective in helping jurors recognize the inherent illogic of the witness’s testimony.

“Patience and tenacity are worth more than twice their weight of cleverness.” –Thomas Huxley

A close corollary of this lesson is that it is essential to take your time with a witness when making an important point. While you don’t want to bore the jurors or waste their time with irrelevant lines of questioning that are going nowhere, when you have something to show that will advance your case theory, you should not waste its potential impact by rushing through it. When you are cross-examining a witness, the courtroom belongs to you and no one should rush you or pressure you to finish your examination before you are ready.

Don’t be afraid to draw out a particular subject if it is important to your case theory. This can be an effective means of building suspense and can help to grab the jurors’ attention. Using short questions with small bites of information can have the effect of freeze-framing the action being described and will help the jurors focus on the details that you want to highlight. Think of it as peeling an onion one layer at time. If you are describing an event, think about including questions that focus on the senses to paint a picture. Take your time and use baby steps. Lead the jurors to reach their own inevitable conclusions about your witness by leaving them with no other plausible choice.

For example, at the beginning of my career, I tried a kidnap-rape case and wanted to establish through cross-examination that the act was consensual. I wanted to prove that the complainant’s statement that she did not call for help because no one was around to hear was improbable by establishing that when the alleged rape occurred, it was evening in downtown Portland, every restaurant and bar was open, and there were many people out and about. But instead of taking the witness through these details one by one, I simply asked, “There were lots of people around at the time, weren’t there?” She replied, “Well, none that I could see.” My argument was ineffective because owing to my inexperience, I had rushed through the issue and thereby lost a potentially fruitful line of impeachment. If I had instead used a series of concise questions to establish the scene, including the number of bars that were open, bus stops, street lights and movie theaters on her path, the jury may have concluded that her testimony that she did not call for help because no one was around was implausible. The jury might have then concluded that she had left with my client voluntarily.

“It is the province of knowledge to speak, and it is the privilege of wisdom to listen.” –Oliver Wendell Holmes, Sr.

Another critical principle of cross-examination is the art of listening. Many times lawyers become so focused on their examination outline and the points they hope to make that they fail to hear and absorb important statements the witness made on direct or during the cross. Failure to listen accurately can also harm your credibility with the jurors because they may feel that you are taking advantage of the witness by twisting what his words. The jurors might perceive you as manipulative and can have the added effect of creating sympathy for the witness. Poor listening might also cause you to miss an opportunity to remedy an unhelpful response, or you might miss a helpful answer that you could have used to your advantage during the examination.

During my cross of the plaintiff in this exercise, I asked the plaintiff to confirm (as stated in the police report) that the accident occurred at approximately 4:00 pm, with the goal of subsequently getting his agreement that the accident occurred while the 20 miles-per-hour school zone speed limit was in force. Perhaps sensing that the 4:00 pm time frame could hurt him, the witness was reluctant to agree and stated, “I’m a little shaky on the details.” Had I been so focused on making my point about the 20-mile-per-hour speed limit, I might have missed that the witness had just admitted he was uncertain about his testimony regarding the fundamental details of the accident.

One effective technique to show you are listening to the answers the witness is providing is to use the “mirroring” technique: Use the witness’s own words when posing your questions. A similar technique is “looping,” or integrating the witness’s last answer into your next question. A witness will tend to agree with questions in which his own words are accurately restated.

If you are a careful listener, you will appear to be—and in fact will be—more engaged in the testimony that is being elicited. You will be a much more effective questioner than if you’re simply following your outline. Failure to listen will likely result in missed opportunities.

“Tell me and I’ll forget; show me and I may remember; involve me and I’ll understand.” –Chinese Proverb

The logic of your position and your ability to establish your syllogism in the jurors’ mind is greatly enhanced by the use of visual aids. Visual aids emphasize key areas of testimony and help them remember what they are hearing. Brain science has shown that people learn best and retain more new information when more of their senses are engaged. The brain is most active when it is stimulated in various ways. For example, a study by scientists at University of California at Santa Barbara examined some of the most brain-friendly instructional strategies to enhance learning and established that people learn best when presented with narration and are simultaneously exposed to a visual representation.[3]

In practical terms this means that to augment the impact of a point, the attorney should speak while showing some type of graphic, such as a photograph, demonstrative exhibit, or video clip. The brain is able to absorb both types of information by processing them through separate channels. It will process what it hears through its verbal channel and what it sees through its visual channel. The verbal information will enhance the visually-conveyed message and vice versa, causing more information to be retained.

Notably, contrary to popular wisdom, PowerPoint presentations are not effective visual aids. If the jurors are shown slides filled with words during an oral presentation, they are unable to absorb the written message and spoken information simultaneously because both modes of communication engage the same verbal channel part of the brain. The listener experiences an overload of verbal inputs and the brain is forced to ignore a certain portion of the information.

If, however, images are used as visual aids (e.g., videos, photographs or schematics), it can have the effect of demonstrating your point in a uniquely impactful way that cements the information in the jurors’ brains. In this case, for example, an important part of the model cross-examination of the plaintiff included a series of photographs taken of the road along plaintiff’s route in the mile or so before the intersection where the accident occurred. Luckily, this road had an unusual number of road signs, including several speed limit signs showing posted limits lower than the 40 miles per hour that plaintiff had claimed, as well as a signs requiring a reduction in speed for a park, a school zone and a school crossing, as well as a speed bump warning. By using short questions to elicit small bits of information, while at the same time displaying the numerous road signs to the jury, it cemented the impression that this was a road that should have been traveled slowly and cautiously, and that plaintiff’s admitted speed of 40 miles per hour was at times 20 mph over the posted speed and unreasonably fast.

In a real trial setting, of course, visual exhibits—photographs, films, videos, and the like—must be authenticated and shown to be admissible under the Oregon Evidence Code, particularly OEC 401 (relevance) and OEC 403 (balancing of probative value against risk of unfair prejudice), to be admitted into evidence. Any exhibit must be a “fair and accurate” representation of what existed at the time of the event or when it was prepared. While a visual need not be identical to the original, it must be similar in the aspects that are relevant to an issue in the case. The degree of variance may be taken into account in terms of what weight must be assigned to a piece of evidence rather than in terms of its admissibility.

In your next case, think carefully about the visual exhibits, graphics, and demonstratives that will most effectively get your point across to the jury. Prepare mock-up exhibits and show them to your colleagues to ensure you are choosing images with the greatest possible impact. With thoughtful preparation, the strategic use of visual aids will allow jurors to absorb more information and they may be more receptive to your message.

“Success is a science; if you have the conditions, you get the result.” –Oscar Wilde

Regardless of the subject matter or area of law, an effective cross-examination draws on the same tools and skills. Any successful cross requires intense preparation. It requires that you identify the areas where your examination can lead the jury to conclude, as a matter of common sense, that your view of the case is the only logical one. But once you identify those areas, don’t squander your hard work. Get the most out of your cross by using some of these venerable tools to make the jury take notice and increase your chances of success.

 


[1]See OEC Rule 611.

[2]See Oregon Evidence Code Rules 607, 608, 609 and 609-1 for the key rules of evidence regarding the impeachment of witnesses.

[3]See Roxana Moreno & Richard E. Mayer, Cognitive Principles of Multimedia Learning: The Role of Modality and Contiguity, 91, No. 2, JOURNAL OF EDUCATIONAL PSYCHOLOGY 358 (1999).