Expert Testimony on Battering Sexual Assault and other

Expert Testimony on Battering, Sexual Assault, and other Forms of Trauma Cindene Pezzell, Legal Coordinator National Clearinghouse for the Defense of Battered Women Toward a Long-Term View of Risk: Moving your CCR Beyond an Incident-Based Response New Orleans, LA July 26, 2017

A roadmap for today • Who are experts? Who are expert witnesses? • When are expert witnesses needed and helpful? • What do experts do? What do they talk about? • Considerations for community-based advocacy programs who are considering whether they should provide expert testimony.

Questions for you… • Have any of you testified as an expert witness? • How many of you have gotten calls being asked whether you/your program provides expert witness services? • Do you get calls asking for domestic violence expert referrals? • For those of you who work within courts, do you see a lot of people using expert testimony

On language… • Some language is transferable from court system to court system; some is not. To avoid confusion, please note that I will be using – Victim – to mean victim of battering – Complainant/complaining witness –to mean a person against whom a crime was allegedly committed *A victim might be a complainant, a defendant, or a plaintiff…the court terminology doesn’t reveal whether someone is battered or not.

So, what IS an expert? What is an expert witness? • An expert is a person who has a special set of skills and/or knowledge in a particular field. • An expert witness is a person who has knowledge that others don’t typically possess, and is called to give testimony in court about matters within her area of expertise.

A good expert isn’t necessarily a good expert witness. • Many people have specialized knowledge about something. (Everyone in this room is an expert on something!) • But effective expert witnesses possess certain skills and traits, in addition to their expertise. We will be talking about those skills in a bit.

Expert witnesses • An EXPERT witness is someone who has knowledge not normally possessed by the average person concerning the topic she is to testify about. • EXPERT witnesses are sometimes called OPINION witnesses. In this context, “opinion” has a broader meaning than how we usually think of it:

Who makes the best gumbo? Experts don’t offer that kind of opinion.

Expert witnesses, cont’d • When an expert witness gives an opinion, we are really talking a conclusion arrived at based on experience and specialized knowledge: – “Based on my review of the accident scene, it is my professional opinion that the driver of the car was traveling at a high rate of speed when he or she crashed into the light pole. ” – “Many victims of domestic violence don’t call the police because they fear retaliation from their batterers. ” – “The defendant and the victim are both excluded as the source of the DNA sample marked as exhibit P – 106. ”

Expert witnesses, cont’d • Experts aren’t allowed to be called to testify about things that most people have knowledge about. – NOT OKAY: Based on my knowledge and experience, a green traffic signal indicates that traffic is supposed to proceed through the intersection, while a red traffic signal indicates that traffic is supposed to stop. – OKAY: There are many symptoms of diabetic ketoacidosis which mimic signs of intoxication, including slurred speech, blurred vision, confusion, vomiting…

DV and SA are particularly tricky. • The general public (potential jury pool) KNOWS that they don’t know how to analyze DNA, how to diagnose lymphoma, how to compare fingerprints, how to explain the mechanics of a solar heat engine… • They DON’T know that they don’t understand domestic violence and sexual assault.

Not every case involving DV in some way will involve an expert • The court needs to agree that expert testimony is relevant (tends to help prove or disprove a fact in the case and/or gives the jury the information it needs to properly evaluate evidence). • The court also must agree that the expert testimony is admissible (isn’t prohibited by any rules or laws).

When might an expert witness be helpful? • Myths and misconceptions about domestic violence, sexual assault, trauma might hinder the factfinder’s ability to fairly evaluate the case • Puzzling victim behavior might be confusing, or worse, interpreted as guilty/bad behavior • Context information may be needed to help jury connect dots

Examples • Prosecution cases in which the victim has given seemingly inconsistent accounts of what happened • Victim’s self-defense cases in which the prosecution is arguing that the defendant’s use of force was “disproportionate” • Civil cases in which the jury must understand the severity of the abuse in order to make a determination • Other examples?

Using an expert is a strategy call. • There are good reasons an attorney might opt to NOT use an expert, even if expert testimony would be relevant and admissible.

Two Types of Expert Testimony

Victim-specific expert testimony • Experts providing victim-specific expert testimony can and do answer questions about the case being tried in court. Experts providing victim-specific testimony are usually, though not always, qualified to conduct forensic evaluating and testing (psychiatrists, psychologists). Q: You just testified to the definition and symptomology of PTSD. In your expert opinion, did the defendant meet the diagnostic criteria for PTSD? A: Yes, she did.

Victim-specific expert testimony, continued • Experts providing victim-specific expert testimony may do any/all of the following, and more: – Interview the battered person; – Review all the documents (police reports, statements, etc. ) the attorney has about the case; – Provide a written report; – Talk to other witnesses (friends, family) about the abuse; – Administer psychological tests to the battered person.

General Expert Testimony • Experts providing general testimony talk about concepts relevant to the case in court, but not specific to the case in court. For example: Q: Based on your professional experience, can you give some reasons why someone might not leave an abusive relationship? A: Yes, I can. Sometimes victims decide to stay because they are afraid of the consequences of leaving….

What do DV experts typically testify about? • Victim behavior that might otherwise be puzzling, such as – Why a victim might recant – Why a victim might forget details of an incident – Why a victim might not want to end her relationship with her abusive partner

What do DV experts typically testify about, cont’d • Myths and misconceptions about domestic violence that could have a negative impact on the jury’s assessment of the case, such as – Domestic violence only happens in X community; – There are vast and widespread resources available for real victims; – Real victims would never use violence – Others?

What do DV experts testify about, cont’d • Impact of non-physical forms of abuse: – Psychological – Emotional – Financial – Sexual

Experts (particularly those who do case-specific testimony) may also testify to • Impact that prior battering by partner has on ability to assess current danger; • Significance of individual battering events; • Symptomology, psychological tests.

Who can testify as a DV/SA/trauma expert? • Unlike some other kinds of experts, this expertise isn’t limited to a narrow professional field. – Psychologists, psychiatrists – Clergy – Social workers, counselors, therapists – Doctors, nurses, SANEs – Academics, researchers, lawyers

Many advocates are experts • Many advocate experts rely on their experience (as opposed to formal education, research background, etc. . ) as the core of their expertise. • Courts generally allow this approach; one can develop lots of expertise based on direct work with victims and/or abusive partners. • More on this in a minute!

Choosing the right expert • Experts on DV, SA, and trauma are not onesize-fits all. • What kind of expertise does the case require? – Child abuse? Sexual assault? Strangulation? Complex trauma? Battering in the Deaf/deaf community? Battering in LGBTQ relationships? Elder abuse? – Attorneys often need help thinking this through.

Paws for questions

Advocates as Expert Witnesses

Observations • Many advocates are, in fact, experts; • Good expert witnesses can be hard to find, particularly in rural communities; • Many forensic experts (and other non-advocate experts) are extremely expensive; • Most victims involved in any court system do not have the money to retain an expert witness; • Even when “entitled” to expert services paid for by the court, (certain defendants), adequate funds are very difficult to come by; • Advocates can often provide no/low cost expert services.

The organizational position of NCDBW, and why • And all of that being said, it is the position of the National Clearinghouse for the Defense of Battered Women that, for many reasons, in a perfect world, advocates at community-based programs would not testify as expert witnesses. We’ll be discussing: – Role conflict – Victim self-determination and choice – Possible chilling effect

The organizational position of NCDBW, and why, cont’d. • But the world is NOT perfect, and more domestic violence expert witnesses are needed. – Therefore, we urge advocates who have been asked to testify as experts to carefully consider all the potential consequences – positive and negative – before saying “yes. ” – We also encourage programs who do decide to provide expert witness services to develop thorough and thoughtful agency policies regarding the specifics of the circumstances under which advocates may serve as expert witnesses.

Assessing the “coulds” and the “shoulds” of advocates as experts • Can we do it? – Capacity – Experience – Time – Money – Network • Should we do it? – Is there a need within and around out community? – Does it fit within our mission and philosophies? – Potential benefits and drawbacks • To victims • To program

Can your program provide expert testimony? • Not the focus of today’s talk, but providing expert testimony can be resource intensive – Training – Court time – Prep time – Travel time – Ongoing professional development – Increased vulnerability to subpoenas = $ – Fielding requests, evaluating cases

Even if you can, should you? • Even if you determine that your organization and at least some of its employees have the capacity (resources, expertise, teaching skills, etc. ) to provide expert services, there are still important questions to be answered: – Is there a need in and around your community? – Would providing testimony conflict with your organizational mission? – Can an expert’s duty to be a neutral, unbiased witness fit within the principles of your advocacy organization? In other words, would providing expert testimony present an inherent role conflict for advocates who testify as experts?

Assessing the need • Bad outcomes in court for victims • Calls to you/your program seeking expert services • Are there other people better positioned to take on expert testimony? – Former advocates – Academics – Clinicians, therapists, social workers – SANEs – Police, former police – Clergy

Examining your program’s mission and philosophies • Does providing expert testimony fit within the mission of your organization? • Could you provide expert testimony in a way that complies with organizational positions and philosophies?

The “shoulds, ” cont’d. • If advocates testify as expert witnesses, especially in cases in which the victim of ongoing battering does not wish to participate in the case, will that create a “chilling effect” in the community? Will advocates lose credibility and trust among battered women in their communities? • Is there a possibility that making advocates available to testify as experts will create a perception that certain victims are “deserving” of expert testimony, and others are not?

The “shoulds, ” cont’d. • Will your resources allow you to provide expert services for all court-involved victims of ongoing battering in your community? How will necessary line-drawing (like testifying only on behalf of the prosecution) leave out some victims? • Will you be willing to testify on behalf of the prosecution in cases in which the victim does not want to participate? • In sum, does providing expert testimony fit within the mission and principles of your organization?

Assessing potential benefits to victims • Potentially better outcomes in court for individual victims; • Education of judges, lawyers, other court personnel (about dynamics of battering, confusing victim behavior, etc. ) can have positive long-term impacts; • Makes available an important resource to victims who couldn’t otherwise afford an expert; • Makes expert services more accessible in rural areas.

Assessing potential benefits for program • Increased visibility and credibility in the legal community. Advocates may be recognized for the experts they truly are; • Can address current gap in services, thereby increasing comprehensiveness of services offered to victims of battering; • Helps to fulfill mission of community education; • Potential to build new relationships between advocacy program and other agencies (public defender offices, etc. ).

Assessing potential drawbacks for victims • Potential to inhibit survivor selfdetermination; – Note the Catch-22 here: Are experts who only testify in cases with “willing” victims actually neutral? Possible “chilling effect”– victims may be less trustful of advocates who testify in court, particularly against the victim’s wishes; • Certain victims may be “left out” of a very resource intensive service, especially since it is highly likely that a program won’t have the resources to testify in every case.

Assessing potential drawbacks for victims, cont’d • General, non victim-specific testimony (which is the type of testimony most likely to be offered by advocate experts, for MANY reasons) may have a tendency to create and enforce static stereotypes about victims; • Potential of confidential records being accessed, if the victim has received services at the same program the advocate expert works at; • Potential for harmful information known to the advocate expert to be used against the victim, if the victim is known to the advocate.

Assessing potential drawbacks for program • Potentially higher likelihood of facing subpoenas; • Extremely resource-intensive, especially considering necessary ongoing training for advocate experts and for lawyers who wish to utilize those experts; • Potential to enhance appearance of bias (always believing the woman), particularly if experts can and do testify on behalf of both the prosecution and the defense; • If expert testimony in criminal court is limited to only testifying on behalf of the prosecution, battered defendants, who probably are most in need of expert services, won’t be able to access this service; • Potential to harm existing relationships within legal community.

Can you mitigate the potential drawbacks? • Testify only in cases outside of your community; • Testify only in cases in which the parties have little likelihood of ever needing to access your program’s services; • Smart referrals – who is set up to help the attorney reach the right kind of expert?

Developing an agency policy • Policies can have downsides – sometimes good results come from “making it up as we go. ” However, we encourage programs to develop thorough and thoughtful policies because – Policies give you something to “hang your hat” on when attorneys call; – Policy development encourages thoughtful and fair practice; – Policies promote consistency; – Policies give guidance to staff; • Should you have a written policy if you decide your program cannot provide expert testimony?

National Clearinghouse for the Defense of Battered Women 125 S. 9 th Street, Suite 302 Philadelphia, PA 19107 215/351 -0010 800/903 -0111, extension 3 www. ncdbw. org cindene@ncdbw. org