How to Testify Matthew L. Ferrara, Ph.D. What is Expert Testimony? Expert testimony is the act of sitting in the witness s chair and dropping off facts during a deposition or trial. Who is an expert? LSOTP Probation Officer Parole Officer Psychologist LPC Social Worker 1
What kind of cases can an expert testify in? Criminal Civil Admin Family What testimony is NOT. It is not your opportunity to win the case. It is not a time to outsmart the other attorney It is not the centerpiece of the trial. It is not your opportunity to advocate. How to testify The foundation of testimony Witness credibility s for testifying 2
The foundation of testimony Case Law Case Law 702 Case Law RULE 702 If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Daubert v. Merrell Dow Chemical (1993) Tested Peer Review 702 Error Rate Acceptance 3
Daubert Criteria for Level of Service Inventory - Revised Has the theory or technique been tested or is it subject to being tested? The Level of Service Inventory (Andrews & Bonta, 1995) was devised in the late 1970s and was revised and published in 1995 as the Level of Service Inventory - Revised (LSI-R). The LSI-R had been the subject of intensive study since that time and hundreds of peer reviewed research studies have been published using it. The LSI-R manual contains a listing of approximately 50 peer reviewed works featuring the LSI-R. Daubert Criteria for Level of Service Inventory - Revised Has the theory or technique been subjected to peer review and publication? The LSI-R Manual (Andrews & Bonta, 1995) contains a listing of approximately 50 peer reviewed works featuring the LSI-R. Daubert Criteria for Level of Service Inventory - Revised What is the known or potential rate of error in applying the particular scientific theory or technique? Simourd (2004) reports that with respect to psychometric properties, the LSI-R has shown to have good internal consistency (coefficient alpha =.72), inter-rater reliability (r =.94) and temporal stability (r =.80). Andrews and Bonta (1995) state in the LSI-R Manual, The false negative rate for the Level of Service Inventory - Revised is usually found to be approximately two to three percent. This means that when an individual is placed in low security based on an LSI-R score, there will rarely be any major problems with that individual. Andrews (1982) also found that even when an individual with a low LSI-R score transgresses, it was usually a minor incident (Level of Service Inventory - Revised Manual; pg. 47). Loza and Green (2003) found the LSI-R had an AUC of 0.78 for general recidivism and an AUC of 0.67 for violent recidivism. 4
Daubert Criteria for Level of Service Inventory - Revised To what extent has the theory or technique received general acceptance in the relevant scientific community? Simourd (2004) reports that the LSI-R Revised has been successfully employed as a classification/management tool among an array of offender groups including probationers, male inmates, female offenders, Native American inmates, juvenile offenders and sex offenders. The LSI-R is used in the Canadian Criminal Justice System and in many states in the U.S. It is also used across many nations in Europe. Gatekeeping: Three-Part Test Thus, it comes as no surprise that in determining the admissibility of expert testimony under 702, we engage in a rigorous threepart inquiry. Trial courts must consider whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. US v Frazier, 2004 No Grandfathering Experts The fact that a trial court has allowed some type of scientific testimony by a particular witness before (perhaps without objection) does not mean that the witness' testimony is, ipso facto, scientifically reliable in this case It may well be scientifically reliable, but the trial court's statement that he has allowed this testimony before does not make it so. Hernandez v Texas, 2003 5
702 requires a Scientific Basis Under the regime of Daubert a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist (Rosen v. Ciba-Geigy Corp, 1996) 702 requires more than the word of the expert But it is the basis of the witness's opinion, and not the witness's qualifications or his bare opinions alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness (Burrow v. Arce, 1999) Accuracy Under 702, the proponent of scientific evidence must show, by clear and convincing proof, that the evidence he is proffering is sufficiently relevant and reliable to assist the jury in accurately understanding other evidence or in determining a fact in issue. Weatherred v State of Texas, 2000 6
Testimony about the signs and symptoms of child sexual abuse Symptom X happens 4 times as often among sexually abused children 110 Sexually Abused Children 890 Children with No History of Sexual Abuse 20% have Symptom X 4% have Symptom X 22 Sexually Abused Children have Symptom X 45 Children with No Sexual Abuse Have Symptom X Expert testimony about signs of child sexual abuse wrong 67% of the time 7
Grooming testimony Grooming by Rocking the Victim on His Knee Number of Child Molesting Grandfathers 5 Number of Grandfathers who Do Not Molest 95 Percentage who Groom by use of Knee rocking 100% Percentage of Non- Molesting Grandfathers who Knee rocking 50% Number of Knee Rocking Child Molesters 5 Number of Knee Rocking Non- Molesting 47.5 Expert testimony ensures the jury will be wrong 90% of the time 8
Ethical violation to contribute to a false conviction LSOTPs do not engage in any action in their professional role which violates or diminishes the legal and civil rights of clients or victims who may be affected by their actions. Council on Sex Offender Treatment Ethical Standards RULE 810.92 Code of Ethics Client Relationships: (b) (9) Empirical Study of Credible Testimony Legal Standards Credible Testimony Four Components of Witness Credibility Confidence (50%) Likeability (7%) * - does not equal 100% Trustworthy (9%) Knowledge (5%) 9
What Jurors Look For Confidence Poise Likeable Trust Knowledgeable Style of Communicating Confidence = Poise Direct Exam Appears comfortable Remains calm Stable speaking tone Does not fidget Hides nervousness Behaves naturally Cross Exam Controls emotions when aggressively questioned Knowledge, Trust, & Likeability = Communication Style Nonverbal Good posture Sit-upright Occasionally, lean forward when making a point Eye contact with jury during direct exam Eye contact with opposing counsel during cross exam Verbal Provides more than yes/no responses, but not long answers Responses show organized thoughts Comfortably admit when uncertain of an answer 10
Acquiring Testimony Skills Guidelines for Testifying Screening Preparing Testifying Studying Screening: Acceptance Criteria Competence Science Accept 11
Screening: Provide Testimony Parameters Screening: Distinguish between Evidence and Argument Screening: Say No Now, Prevent Embarrassment Later No, I don t have the experience to testify in this case. No, there is no research that can serve as the basis for my testimony. No, I won't testify about that but I will testify about these other things. No, I won't testify about that because it sounds like argument. I will testify about things that will allow you to make that argument. 12
You are your preparation It is better to look ahead and prepare than look back and regret. Jackie Joyner-Kersee Preparing to Testify Lit Review Write Direct Prepared Literature Review: Overlap between the Case and the Scientific Literature Case Research 13
Literature Review: Clinical is not Empirical Write Your Own Direct Exam Education Training Experience Methodology Overall Opinion Opinion #1 Opinion #2 Opinion #3 Qualification Questions Please state your name. How are you employed? As a licensed psychologist, what kind of work do you do? As a Licensed Sex Offender Treatment Provider, what kind of work do you do? Describe your educational background. What experience do you have that is relevant to this case? 14
Relevant Experience What did I ask you to do in this case? Have you done that kind of work before? Have you ever been designated as an expert and testified in court about your analysis and findings when you have done this type of work? Have you testified for the State as well as for defense attorneys? Methodology What methodology did you use to conduct your risk assessment of Mr. Mxx? After reviewing all of that evidence, do you have an opinion about Mr. Mxx s risk? General Opinion What is your opinion? What do you base that opinion on? 15
First Opinion Could you identify the first risk assessment that you used and tell us what you found? Is Mr. Mxx an exclusive pedophile? What is an exclusive pedophile? Is there a big difference between an exclusive and non-exclusive pedophile? What is the difference? Is Mr. Mxx a sexual predator? Could you tell us what a sexual predator is? Wrap-up Based upon the two risk assessments instruments that you used, do you have an overall opinion about Mr. Mxx? Pass the witness. Testifying s of 3 Implication Surrender Courteous Honesty Emotion Accuracy Jargon Nonverbal Pacing 16
of 3 Breaking the three sentence rule Following the 3 sentence rule 17
Implication Breaking the Implication Following the Implication/Surrender s 18
Pacing Studying 19