As soon as John Turturro flashed onto the screen, in an ad for the HBO limited series “The Night Of”, I knew that we would be watching the show, even if it turned out to be an eight hour ad for dish detergent. My husband is a huge John Turturro fan, and misses nothing in which the actor appears. Fortunately, “The Night Of” turned out to be a very engaging crime procedural that had us hooked from the first episode. The show was great in that it got us thinking about the criminal justice system. They even had a CPA who was not a stereotype – where you start feeling sleepy just at the sight of him – and he even came with a few surprises too. What really caught my attention on “The Night Of”, however, was not the portrayal of the CPA but of the expert witnesses.
During the investigation, the prosecutor deals with two forensic experts she expects to put on the stand during the trial. In both cases, she speaks with them to find out if the evidence that they have analyzed will help her convict the accused, Nazir Khan, of murder. In one case, she speaks with the medical examiner about how the suspect injured his hand. She then not only suggests a scenario (that works in her favor) which is different from his analysis but also coaches him until he sounds convincing. She also consults an expert about the possible effects of certain drugs and, again, pushes for an opinion that will help her case. In both instances, the experts seem to have no problem changing their narratives to suit the prosecutor, their client.
I was both horrified and disappointed by the ease with which this happened. When I scoured various recaps of the episodes, the critics either skipped over those moments on the show or wrote about them as though they were just par for the course when dealing with expert witnesses. Even when I read articles about the show that consulted and interviewed legal experts, the conversation was centered mainly around the lawyers’ behavior in the court room and on life in prison. Not a single legal expert (all lawyers in the pieces that I read) discussed what actually happens in their reality with expert witnesses.
It’s sad that the defense didn’t appear to make any great attempt at challenging the prosecution experts. They did put forth their own witness who, when testifying, did spend time putting forth information that seemed based on science, and not feelings. I was actually surprised that the defense, with its very limited budget, was able to hire their own expert, who came with a very impressive resume that was highlighted when he took the stand. The casual attitude that critics and reviewers have taken, when writing about these experts, hints at how many view the expert witness as a hired gun or shill, out to say whatever their client wants, not as an objective professional, advocating for the truth and, as such, a potentially critical component of the trail process.
When attending continuing education session on being an expert witness, the question invariably comes up – how do I make sure that I am taken seriously as a neutral witness and not simply as someone giving an opinion for pay? There are several steps that you, and the lawyer that you are working with, can take to clarify your position as a credible expert.
- Money, money, money! It’ss very important to make it clear that you are being paid for your time and not your testimony. Your fee should be based on the time that you spend on the case and should never be a fee contingent on the outcome of the case. Let the judge and jury know that you will be paid, regardless on how the case turns out.
- In order to maintain credibility and also avoid a possible Daubert motion (raised before or during trial, to exclude the presentation of unqualified evidence to the jury), your work should be based solely on the “reliable application” of “reliable principles and methods”.
- Of course, you should be able to take the judge and jury through the steps of your investigation, from start to finish. They should be able to see and understand clearly how you came to the conclusions that you have reached.
- Are you qualified to give the opinions you are giving? Share your qualifications and experience, so that people know that you have received all the relevant training required to support your investigation as well as the conclusions and the facts on which you are opining. Professional credentials, such as the CFE, CFF and CPA, are all viewed with respect, the possession of any of which goes a long way to support your being viewed as a qualified expert.
- Know your work. When you’re on the stand, be sure that you know the relevant subject matter and all the issues you are testifying about backwards and forwards so that you won’t ever be caught slack-jawed, unable to answer some important question about your work.
It’s a lamentable fact that the current general view of the expert witness, as portrayed on television and in the movies, is that of someone who will say whatever the client pays them to say and that the experts who base their work on facts are viewed as the rare heroes. Taking the steps to establish ourselves as credible and objective will go a long way to building a positive view of all expert witnesses. That and, perhaps, getting a few friends in the film business!