Preparing and Presenting Expert Testimony in Child Abuse Litigation: A Guide for Expert Witnesses and Attorneys

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Paul Stern

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  • IVPS: Interpersonal Violence: The Practice Series

    Jon R. Conte, Series Editor

    Interpersonal Violence: The Practice Series is devoted to mental health, social service, and allied professionals who confront daily the problem of interpersonal violence. It is hoped that the knowledge, professional experience, and high standards of practice offered by the authors of these volumes may lead to the end of interpersonal violence.

    In this series…

    LEGAL ISSUES IN CHILD ABUSE AND NEGLECT

    by John E. B. Myers

    CHILD ABUSE TRAUMA: Theory and Treatment of the Lasting Effects

    by John N. Briere

    INTERVENTION FOR MEN WHO BATTER: An Ecological Approach

    by Jeffrey L. Edleson and Richard M. Tolman

    COGNITIVE PROCESSING THERAPY FOR RAPE VICTIMS: A Treatment Manual

    by Patricia A. Resick and Monica K. Schnicke

    GROUP TREATMENT OF ADULT INCEST SURVIVORS

    by Mary Ann Donaldson and Susan Cordes-Green

    TEAM INVESTIGATION OF CHILD SEXUAL ABUSE: The Uneasy Alliance

    by Donna Pence and Charles Wilson

    HOW TO INTERVIEW SEXUAL ABUSE VICTIMS: Including the Use of Anatomical Dolls

    by Marcia Morgan, with contributions from Virginia Edwards

    ASSESSING DANGEROUSNESS: Violence by Sexual Offenders, Batterers, and Child Abusers

    Edited by Jacquelyn C. Campbell

    PATTERN CHANGING FOR ABUSED WOMEN: An Educational Program

    by Marilyn Shear Goodman and Beth Creager Fallon

    GROUPWORK WITH CHILDREN OF BATTERED WOMEN: A Practitioner's Manual

    by Einat Peled and Diane Davis

    PSYCHOTHERAPY WITH SEXUALLY ABUSED BOYS: An Integrated Approach

    by William N. Friedrich

    CONFRONTING ABUSIVE BELIEFS: Group Treatment for Abusive Men

    by Mary Nömme Russell

    TREATMENT STRATEGIES FOR ABUSED CHILDREN: From Victim to Survivor

    by Cheryl L. Karp and Traci L. Butler

    GROUP TREATMENT FOR ADULT SURVIVORS OF ABUSE: A Manual for Practitioners

    by Laura Pistone Webb and James Leehan

    WORKING WITH CHILD ABUSE AND NEGLECT: A Primer

    by Vernon R. Wiehe

    TREATING SEXUALLY ABUSED CHILDREN AND THEIR NONOFFENDING PARENTS: A Cognitive Behavioral Approach

    by Esther Deblinger and Anne Hope Heflin

    HEARING THE INTERNAL TRAUMA: Working With Children and Adolescents Who Have Been Sexually Abused

    by Sandra Wieland

    PREPARING AND PRESENTING EXPERT TESTIMONY IN CHILD ABUSE LITIGATION: A Guide for Expert Witnesses and Attorneys

    by Paul Stern

    Copyright

    View Copyright Page

    Dedication

    To the child abuse professionals who do the work to protect and support children: May you find the energy, the perseverance, and the commitment to achieve our ultimate goal—our obsolescence.

    And to the children upon whose behalf we work—for, if the truth be known, they have more courage than all of us.

    Foreword

    It was a jury of average ignorance, perfectly capable of determining which side had the best attorney.

    Old Judges' Axiom

    Practitioners involved with issues of child abuse quickly discover a reality of their professional life—the inevitability that they will cross the courtroom threshold at some point as an “expert” witness. Regardless of whether that experience is novel, frequently repeated, a voluntary excursion, or one commanded by the necessities of a case or order of a subpoena, the experience often is an intimidating one. Few venues provoke as much discomfort as the witness stand.

    Lawyers who employ or challenge such experts seldom appreciate this dynamic. Their experience with experts occurs from the relative sanctuary of their tables in the courtroom, buttressed by their familiarity with the dynamics of court and rules of evidence, confident in the recognition they get to ask the questions rather than answer them. Those days, after all, were left far behind when they graduated from law school and no longer had to endure the Socratic methods of their professors. Only when they confront the need to cross-examine a knowledgeable expert on a subject foreign to them does their comfort level approach that of the witness.

    Much has been written in the legal literature about the use of expert witnesses from the perspective of case law decisions outlining boundaries of legally permissible expert testimony. While the law states an expert witness is someone with knowledge beyond that of the average juror, attorneys presenting such testimony recognize the true expert as something much more. Knowing the subject may qualify the witness to enter the court, but communicating this knowledge effectively is what defines the true expert. Unfortunately, virtually nothing has been written about how to prepare and present effective expert testimony. This book represents a major step forward in filling this void, offering important practical and theoretical advice to professionals appearing as expert witnesses and attorneys handling these sensitive cases. While the knowledge gleaned from these pages may not alleviate all fears expert witnesses face before and during testimony, it will arm them with resources to confront that experience with skill, poise, and confidence. Attorneys will find this book a valuable how-to manual for preparing, presenting, and confronting expert testimony.

    The use of expert witnesses in cases of child abuse and other forms of interpersonal violence has developed out of a social and legal need to attach more concrete and scientific standards to the evaluation of such allegations. Society is uncomfortable with the concept of child abuse, in particular with allegations made against adult caretakers and parents. The problem is compounded by reluctance to make legal and social determinations regarding the credibility of such allegations on a child's word alone. Society as a whole and jurors and judges in particular look for “evidence” considered more reliable on which to base their decisions.

    The last decade has witnessed a proliferation in the number of litigated cases involving interpersonal violence, mostly in the areas of child maltreatment and domestic violence. The complexity of issues involved in such litigation, breadth of research, and specializations of professionals dealing with these issues have increased the number of experts called into court. Accordingly, attorneys using and confronting these experts must have a thorough appreciation of how these experts are perceived by judges and juries, and how best to present or discredit their testimony. The fact that the use and misuse of expert witnesses remains one of the most frequent issues for appellate litigation, and a common cause for many poorly reasoned decisions by fact finders, suggests much work remains to be done.

    The misuse of expert witnesses has spurred a large body of case law and legal commentary criticizing and restricting the use of expert testimony in child maltreatment cases, especially in cases involving child sexual abuse. Regrettably, such critiques and case law ignore the purpose behind the appropriate use of expert testimony: to assist the fact finder in understanding the evidence or deciding a fact or issue by providing him or her with specialized knowledge. Just as misuse of expert testimony can result in improper verdicts, failure to permit proper use of expert testimony can lead to misinformation decisions based on speculation and bias.

    Research on jurors who decide these complex cases reveals that many bring their biases and beliefs into the jury room, and most have little understanding of family dynamics and victim responses to interpersonal violence. Indeed as the author points out, the selection of jurors in the legal system is designed to impanel the group of least knowledgeable individuals to decide the issues. The necessity to educate these fact finders and to do so persuasively become paramount considerations for litigants, most often prosecutors and other government attorneys who bear the burden of proving such victimization to the requisite degree of legal certainty. The art and science of this persuasion are the subjects of this book. Its accessibility to attorney and professional alike is testament to the author's own ability to educate.

    Early in their careers attorneys learn that experience rather than formal education is their best teacher. Frequently the most important lessons come from the hardest experiences. Paul Stern shares both his experience as a veteran courtroom practitioner and the wisdom he's gained from successes and failures. Throughout the book, the reader will find practical tips that will improve the presentation of testimony by both witness and attorney and facilitate challenges to improper expert testimony. The author's style complements his message, using clear language, analogies, and repetition where necessary to reinforce points. The book excels in illustrating the substantive message through court transcripts and case examples. Most importantly, the book highlights how to use scientific and social science research and professional literature to support appropriate expert opinions and discredit the charlatan expert.

    Chapter Six, authored by Benjamin E. Saunders, provides balance to the manuscript by presenting information and perspective from a respected non-lawyer professional who has had extensive experience as an expert witness and consultant. Saunders accurately comments that the legal profession tends to take itself too seriously, both inside the courtroom and in its relations with non-lawyers, including witnesses. His critique underscores the need for lawyers to obtain the insights of professionals who interface with the legal system. Only through such an exchange of ideas can the legal system hope to balance the frequently conflicting obligations faced by professionals who serve as expert witnesses. Saunders' discussion of the ethical considerations frequently encountered by professionals solicited as expert witnesses is especially important. As is true of most issues involving professional ethics, the answers are seldom black-and-white. For the expert going to court and for the attorney dealing with the expert in and out of court, the time for considering and discussing those issues is well before the first question is posed in the trial.

    Readers who follow the author's advice can turn the old judges' axiom around, “It was a jury of understanding, well informed by the expert's testimony, perfectly capable of determining the issues.” The “best attorney” should not be one who convinces a jury through his courtroom flair, but one who educates the jury, enabling them to make an informed decision. From this, ideally, the search for the truth will emerge, and justice will prevail.

    Brian K.Holmgren Senior Attorney APRI's National Center for Prosecution of Child Abuse

    Acknowledgments

    Perhaps the best thing about writing a book is that the publisher gives the author the opportunity to include acknowledgments. In theory, this is the place for the author to acknowledge the people who helped in the creation of the project. However, writing this book was the easy part—the hard part was being in the position to be able to do so. That depended completely on those around me who provided encouragement, teaching, and support and led me through doors I could never have opened alone. And so I say thank you to those people here, and especially to three people.

    First, I want to thank Irene Weiss and Herbert Stern, my mother and father, for instilling in me the belief that anything is possible and then providing the love and support—and editorial critiques—to prove that it is.

    I also want to thank Lucy Berliner, who has been a mentor and friend and who has opened more professional doors for me than I ever had a right to expect. I would never have had the opportunity to do any of what I have done without her help and guidance. I thank Lucy for her belief in me and for her exceptional perspective, which helps me, and I dare say all professionals, to see things more clearly.

    Finally, my thanks to those who have provided belief and support in their teachings and in their encouragement, who have provided input for this project and for me, sometimes, perhaps even unknown to them, just by their mere silent presence. Thank you to Jon Conte, Harry Elias, Chris Feldt, Arnie and Sally and Andy Friedman, Brian Holmgren, Kee MacFarlane, Mary Meinig, Jodie Miller, John E. B. Myers, Scott Olson, Ben Saunders, and Murray Talasnik.

  • Cases Cited

    Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992).
    Daubert v. Dow, 113 S. Ct. 2786 (1993).
    Dawson v. Daly, 845 P.2d 995 (Wash. 1993).
    Duckett v. State, 797 S.W.2d 906 (Tex. Ct. App. 1990).
    Dutchess County Dept. of Social Services v. Mr. G., 534 N.Y.S.2d. 64 (Fam. Ct. 1988)
    Earl M. Kerstetter, Inc., v. Commonwealth, 171 A.2d 163 (Pa., 1961).
    Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923).
    In Re Air Crash Disaster at New Orleans, LA, 795 F.2d 1230 (5th Cir. 1986).
    In Re the Petition of Donna Sue Hubbard, Kern County, CA, Case No. 5.5-2738 (1994).
    Kelly v. State, 399 S.E.2d 568 (Ga. App. 1990).
    Leesona Corp. v. Varta Batteries, Inc., 522 F. Supp. 1304 (S.D.N.Y. 1981).
    People v. Beckley, 456 N.W.2d 391 (Mich. 1990).
    People v. Garcia, San Luis Obispo, CA, Case No. 15883 (1991).
    People v. Howard, Alameda County, CA, Case No. 99217 (1990).
    People v. Leahy, 34 Cal.Rptr.2d 663 (Cal. 1994).
    People v. Mendible, 245 Cal.Rptr. 553 (1988).
    People v. Stoll, 265 Cal.Rptr. 111 (1989).
    Rubanick v. Witco Chemical Corp., 576 A.2d 4 (N.J. Super. A.D. 1990).
    State v. Batangan, 799 P.2d 48 (Hawaii 1990).
    State v. Brown, 802 P.2d 803 (Wash. 1990).
    State v. Cauthron, 846 P.2d 502 (1993).
    State v. Jackson, 721 P.2d 232 (Kansas 1986).
    State v. Lord, 822 P.2d 117 (Wash. 1991), cert. denied, 113 S. Ct. 164 (1992).
    State v. Maule, 667 P.2d 96 (Wa. Ct. App., 1983).
    State v. Milbradt, 756 P.2d 620 (Or. 1988).
    State v. Owens, 913 P.2d 366 (Wash. 1996).
    State v. Ross, Snohomish County, WA, Cause No. 89–1–01380–5 (1990).
    State v. St. Hilaire, 775 P.2d 876 (Or. App. 1989).
    State v. Smith, 564 P.2d 1154 (Wash. 1977).
    State v. Swan, 790 P.2d 610 (Wash. 1990).
    State v. Werlein, Snohomish County, WA, Cause No. 88–1–01148–1 (1989).
    Townsend v. State, 734 P.2d 705 (Nev. 1987).
    Trower v. Jones, 520 N.E.2d 297 (Ill. 1988).
    U.S. v. Crumby, 895 F. Supp. 1354 (D. Ariz., 1995).
    U.S. v. Pierre, 812 F.2d 417 (8th Cir. 1987).
    Van Blargan v. Williams Hospitality Corp., 754 F. Supp. 246 (D. Puerto Rico, 1991).

    References

    Adams, J. (1993). Classification of anogenital findings in children with suspected sexual abuse: An evolving process. APSAC Advisor, 6(2), 11–13.
    Bailey, F. L. (1985). To be a trial lawyer. New York: John Wiley.
    Buckley, J. A. (1992). The prosecution's use of social science expert testimony in child sexual abuse cases: National trends and recommendations. Journal of Child Sexual Abuse, 1(2), 75–95.
    Cleary, E. (Ed.). (1972). McCormick's handbook on the law of evidence. St. Paul, MN: West.
    De Parcq, W. H. (1956). Law, science and the expert witness. Tennessee Law Review, 24, 166–171.
    Elliott, D. (1987). Science panels in toxic tort litigation: Why we don't use them. In ICET Symposium III Immunotoxicology: From lab to lab. Ithaca, NY: Cornell University, Institute for Comparative and Environmental Toxicology.
    Ferguson, R., & Fine, S. A. (1990). Washington practice, criminal law. St. Paul, MN: West.
    Griffin, F. H. (1961). Impartial medical testimony: A trial lawyer in favor. Temple Law Quarterly, 34, 402–415.
    Heger, A., & Emans, S. J. (1992). Evaluation of the sexually abused child. New York: Oxford University Press.
    Levy, E. S. (1961). Impartial medical testimony—revisited. Temple Law Quarterly, 34, 416–451.
    Louisell, D. W., & Mueller, C. B. (1992). Federal evidence (Suppl.). San Francisco: Bancroft-Whitney.
    Mailloux, B. (1991, December). How to conduct a thorough background on child abuse experts, twenty easy steps. The Investigator, pp. 3–5.
    Model criminal jury instructions for the Ninth Circuit (Federal Court). (1994). St. Paul, MN: West.
    Murphy, W., & Peters, J. (1992). Profiling child sexual abusers: Psychological considerations. Criminal Justice and Behavior, 19, 24–37.
    Myers, J. E. B. (1992). Evidence in child abuse and neglect cases (
    2nd ed.
    ). New York: John Wiley.
    Myers, J. E. B., Bays, J., Becker, J., Berliner, L., Corwin, D., & Saywitz, K. (1989). Expert testimony in child sexual abuse litigation. Nebraska Law Review, 68, 1–34.
    National Center for Prosecution of Child Abuse. (1993). Investigation and prosecution of child abuse (
    2nd ed.
    ). Alexandria, VA: National District Attorneys Association, American Prosecutors Research Institute.
    Specter (1987, July 28). Diagnosis or verdict? Psychiatrists on the witness stand?Washington Post.
    Stern, P. (1994). Science in the courtroom: From the Frye-pan to the fire. Violence Update, 4(12), 5–6.
    Summit, R. (1992). Misplaced attention to delayed memory. APSAC Advisor, 5(3), 21–25.
    Wecht, C. H. (Ed.). (1993). Forensic sciences (Vol. 4). New York: Matthew Bender.
    Wellman, F. (1974). The art of cross-examination. New York: Collier.
    Williams, L. M., Kendall-Tackett, K., & Stern, P. (1992). A practitioner's guide to interpreting research results. APSAC Advisor, 5(2), 1, 12–14.

    About the Author

    Paul Stern is Senior Deputy Prosecuting Attorney for Snohomish County, Washington. He has been a prosecutor since 1981, and has tried dozens of cases of child sexual abuse, physical abuse, and child homicide, as well as many other murder, assault, and rape cases. He serves on the Executive Committee of the Board of Directors for the American Professional Society on the Abuse of Children and is Past President of the Washington Professional Society on the Abuse of Children. He was appointed to the Governor's Advisory Committee on DNA and currently serves on the Sexual Offender Treatment Provider Advisory Committee. He is a frequent lecturer at conferences dealing with child abuse and neglect issues, and has testified several times before legislative committees on these topics. He has published several articles about expert witnesses and child abuse issues, and has served as legal editor for the APSAC Advisor and Violence Update; he is currently on the editorial board of Child Maltreatment. A graduate of Ithaca College and Rutgers-Camden Law School, he is admitted to practice law in Washington and New Jersey, and before the U.S. Supreme Court.

    About the Contributor

    Benjamin E. Saunders is Associate Professor in the Department of Psychiatry and Behavioral Sciences at the Medical University of South Carolina in Charleston, where he directs the Family and Child Program of the National Crime Victims Research and Treatment Center. He received his Ph.D. in clinical social work from Florida State University and has a master's degree in marriage and family therapy from Virginia Tech. He is a licensed independent social worker and a licensed marriage and family therapist, and he serves on the editorial boards of Child Maltreatment, Journal of Child Sexual Abuse, Journal of Family Social Work, and the APSAC Advisor. His research on crime victims, offenders, and incest families has been funded by federal agencies such as the National Institute of Mental Health, the National Institute of Justice, the National Institute on Drug Abuse, and the National Center on Child Abuse and Neglect. In addition to his research and teaching activities, he maintains an active clinical and consulting practice with victims of sexual assault, family members of victims, and sexual offenders, and often is called as an expert witness in legal cases.


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