Criminal defense attorneys often turn to physicians and other medical experts for consultation and testimony. Hardly do you ever see an attorney give a medical expert what he or she expects the expert to provide in a case. Practical suggestions for defense attorneys includes:
Protecting Intellectually Honest Experts
There are many physicians whom pay a heavy personal price when they testify for a defendant in a criminal case. Physicians who testify for the defense are often attacked and ridiculed by physicians who testify for the prosecution. With this in mind one can imagine how physicians can destroy each others careers.
Criminal defense lawyers must protect honest experts from those in the medical profession who wish them ill and from prosecutors who will, if they can, sideline the experts for good. Most importantly, a lawyer must not ask a pediatrician for opinions outside of pediatrics, or a pathologist for opinions outside of pathology.
Experts who testify for the defense are being watched. Files are passed from one prosecutor’s office to another. If a defense lawyer pushes an expert to testify in favor of something medical science does not support then that expert may be confronted in a later trial with a transcript of his testimony. This is a way an expert witness can lose their credibility permanently. By losing credibility an expert is unable to do any good for those who represent the accused.
This works vise versa as well in addition to defense lawyers protecting medical experts, lawyers must insist that the experts protect them. When counsel makes initial contact with an expert, the lawyer must ask what baggage the expert carries or what in the expert’s background may become cross-examination material. For instance it could be that an expert is an academic who has never treated a patient or he is a nurse who did not finish college. Whatever baggage the expert carries, the defense lawyer does not want to uncover this information while he or she is being cross-examined. A lawyer must know such information before engaging with the expert.
Experts as Consultations
Every expert a lawyer engages is first a consultant, not a witness. Only once the expert provides an opinion can the lawyer decide if he or she will have the expert testify. Even after deciding to present the expert as a witness, the lawyer should continue to use the expert as a consultant. This is important in order to receive as much help from an expert. A local expert vs an expert who is from a different town or state may lose their credibility before stepping into the courtroom. Many times local experts are known and loved by the community. Although this can be a challenge this should not stop the defense from having an expert who is from outside the area. The defense attorney has a chance to build the defense expert’s credibility in court.
Giving Experts the tools they need
An attorney should give the expert time. By contacting them early in the case it raises the odds that he or she can work in the case into her schedule, preventing mistakes from both ends. The attorney can provide the expert a very short overview of the case in writting. This overview can be provided in an email message. This can also prevent experts from confusing a case from others they may be working on.
Every expert has complaints about the way attorneys send medical records. Organizing medical records is not an exciting task, but important. An attorney may need to do some organizing such as taking out duplicate records. One must consider that most medical experts prefer to work with hard copies in loose-leaf binders. It is always good to ask what the experts prefers. An attorney should not hold back any records. One does not want the prosecutor to be able to score any cheap points in cross-examination by showing that the defendant’s expert had fewer records than the prosecutor’s expert.
Timelines are great way to organize evidence. What happened and what did not happen are easy to grasp when events are presented in a timeline. Medical experts say they find timelines very useful. A timeline must have citations to the medical records this allows experts to improve their report and testimony.
Learning about the Field
In order for a lawyer to get good value from an expert they must learn something about the field. The lawyer has to understand it well enough to describe the expert’s opinion persuasively in opening statement, to examine the expert in a way that is easy for both the expert and the jury to follow, and to cross-examine the opposing expert.
Avoiding conflict between two defense experts
In some cases, and with some budgets a lawyer can use more than one medical expert. In that situation, the danger exist that their opinions will conflict, or a clever cross examiner can make it seem that their opinions conflict. If two experts disagree, the attorney needs to consult with them to find out whether their opinions can be reconciled.
Keeping the defense experts motivated
Physicians who testify for criminal defendants like to get follow-up reports after cases conclude. The defense attorney should phone the medical expert with a comprehensive account of the case’s outcome, particularly when the defense prevails. This allows the expert to be motivated to step into the arena again when another attorney and defendant are in need.
The Morales Law Firm would like to thank The National Association of Criminal Defense Lawyers Champion for sharing this information with us. (March 2013)