Be sure to see the handout for a CLE I taught back in 2012 for the State Bar of Arizona. “The Newly Adopted Daubert Standard: Implications for Psychological Evaluations in Court.” You can find it under “Resources” > “Educational Resources” > “CLE Seminars“. You can also find the handout in “Topics” under CERT. Even as an older document, it still has good insights for what to look for in psych evaluations and testimony in light of Daubert.
Here’s a more contemporary look at Daubert and how to cross an expert. Susan Eazer is a prosecutor with years of excellent experience and a very smart lawyer. She has really taken me to task in the past. In 2020 she provided a training on “Dealing with Defense Expert Witnesses.” This is a good primer for both prosecutors and defense attorneys to review. You can get the PowerPoint by googling her name and seminar title. Here’s some of her observations:
Arizona Rules Relating to Expert Witnesses
Rule 15.2(c)(2) Arizona Rules of Criminal Procedure
For each expert the defendant intends to call at trial:
- the expert’s name, address, and qualifications;
- any report prepared by the expert and the results of any completed physical examination, scientific test, experiment, or comparison conducted by the expert; and
- if the expert will testify at trial without preparing a written report, a summary of the general subject matter and opinions on which the expert is expected to testify;
Disclosure Considerations
When the expert prepares a report
- Obtain CV
- Consider requesting additional materials in advance of interview if highly specialized expert (Child Abuse, insanity, etc.) in order to question about same during interview
- Determine whether there are Daubert Issues
When there is no report…
- Has there been compliance under Rule 15.2(c)(2)
- Consider requesting something more specific from the Court when necessary
- Lock the witness into a clear and detailed opinion during the pretrial interview
Rule 702 Arizona Rules of Evidence
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
- the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied the principles and methods to the facts of the case.
Testimony which can assist the jury in assessing credibility of a witness admissible but testimony directly commenting on the credibility of a witness or class of witnesses is inadmissible
State v. Ortiz, 238 Ariz.329 (2015):
Rule702, which governs the admissibility of expert witness testimony, “does not bar ‘cold’ experts from offering general, educative testimony to help the trier of fact understand evidence or resolve fact issues.” (Salazar-Mercado, 234 Ariz. 590) “When the facts of the case raise questions of credibility or accuracy that might not be explained by experiences common to jurors – like the reactions of child victims of sexual abuse – expert testimony on the general behavioral characteristics of such victims should be admitted.” State v. Lujan, 192 Ariz. 448 (1998); see also State v. Tucker, 165 Ariz. 340, 346, 798 P.2d 1349, 1355 (App.1990) (“[A]n expert witness may testify about the general characteristics and behavior of sex offenders and victims if the information imparted is not likely to be within the knowledge of most laypersons” so long as the expert does not” quantify nor express an opinion about the veracity of a particular witness or type of witness.”).
Comment to the 2012 Rule
- The 2012 amendment of Rule 702 adopts Federal Rule of Evidence 702 as restyled. The amendment recognizes that trial courts should serve as gatekeepers in assuring that proposed expert testimony is reliable and thus helpful to the jury’s determination of facts at issue. The amendment is not intended to supplant traditional jury determinations of credibility and the weight to be afforded otherwise admissible testimony, nor is the amendment intended to permit a challenge to the testimony of every expert, preclude the testimony of experience based experts, or prohibit testimony based on competing methodologies within a field of expertise The trial court’s gatekeeping function is not intended to replace the adversary system Cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.
- A trial court’s ruling finding an expert’s testimony reliable does not necessarily mean that contradictory expert testimony is not reliable The amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise Where there is contradictory, but reliable, expert testimony, it is the province of the jury to determine the weight and credibility of the testimony.
- This comment has been derived, in part, from the Committee Notes on Rules 2000 Amendment to Federal Rule of Evidence 702.
RULE 703 – Bases of Expert Opinion
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.
- Watch for use of expert solely to get in another unavailable expert’s opinion
- Watch for use solely to get in Defendant’s otherwise inadmissible statement
- Watch for use solely to get in otherwise inadmissible hearsay or other evidence
Scope of Expert Testimony
Proper Subject Matter Common Knowledge/Will it assist the Jury? Expert testimony is permitted when the subject is beyond the common experience of most persons and the opinion of an expert will assist the trier of fact Ariz R Evid 702 If the matter, however, is of such common knowledge that persons of ordinary education and background could reach as intelligent a conclusion as an expert, the testimony should be precluded State v Williams 132 Ariz 153 1982 State v Dickey, 125 Ariz 163 608 P 2 d 302 1980 State v Mosley, 119 Ariz 393 581 P 2 d 238 1978 State v Salazar, 27 Ariz App 620 557 P 2 d 552 (1976). It is within the trial court’s discretion to permit expert testimony, and this decision will not be disturbed unless the discretion was abused.
Scope of Expert Testimony
Testimony which can assist the jury in assessing credibility of a witness admissible but testimony directly commenting on the credibility of a witness or class of witnesses is inadmissible
State v Ortiz, 238 Ariz 329 2015 Rule 702 which governs the admissibility of expert witness testimony,”does not bar ‘cold’ experts from offering general, educative testimony to help the trier of fact understand evidence or resolve fact issues (Salazar Mercado 234 Ariz 590 )) “When the facts of the case raise questions of credibility or accuracy that might not be explained by experiences common to jurors like the reactions of child victims of sexual abuse expert testimony on the general behavioral characteristics of such victims should be admitted State v Lujan 192 Ariz 448 1998 see also State v Tucker 165 Ariz 340 346 798 P 2 d 1349 1355 (App. 1990) (“[A]n expert witness may testify about the general characteristics and behavior of sex offenders and victims if the information imparted is not likely to be within the knowledge of most lay persons” so long as the expert does not “quantify nor express an opinion about the veracity of a particular witness or type of witness.”).
RULE 703 Bases of Expert Opinion
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.•
- Watch for use of expert solely to get in another unavailable expert’s opinion
- Watch for use solely to get in Defendant’s otherwise inadmissible statement
- Watch for use solely to get in otherwise inadmissible hearsay or other evidence
RULE 704 – Opinion on Ultimate Issue
- In General Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.
- (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense Those matters are for the trier of fact alone
- An expert may testify to an opinion that “embraces an ultimate issue to be decided by the trier of fact” if the testimony is otherwise admissible Ariz R Evid 704 The comment to Arizona Rules of Evidence (Rule) 704 cautions, however, that “[w]itnesses are not permitted as experts on how juries should decide cases.”
- Medical Examiner cannot state death was homicide but can state death was consistent with a close range shooting, not consistent with accident or suicide, etc.
- Law enforcement cannot state defendant was intoxicated but can state defendant exhibited signs and symptoms of intoxication
RULE 705 Disclosing Facts or Data Underlying Expert’s Opinion
Unless the court orders otherwise, an expert may state an opinion and give the reasons for it without first testifying to the underlying facts or data But the expert may be required to disclose those facts or data on cross examination
Note: However, the Prosecutor can and should request full disclosure of same during pretrial interview
Effective Cross Examination Techniques
- Preparation, preparation, preparation
- Determine in advance whether witness will hurt your case or help it
- If expert can help let them and move on. If not…
- Is witness testimony identical to prior testimonies (canned presentation)?
- Does witness primarily testify for defense and offer same opinions?
- Does witness personally interview case witnesses?
- Point out facts relied upon which are incorrect
Ms. Eazer’s last four points are particularly important. Is the cold expert someone who has made canned presentations hundreds of times? Has s/he primarily testified for the prosecution or defense and offered the same opinions?
Effective Cross-Examination Techniques
- Point out facts not considered or ignored
- Inquire generally into fee arrangements and specifically into what witness has been and will be paid in the instant case.
- Point out inconsistencies or misrepresentations taken from written materials (journals, studies, learned treatises, etc.)
- Point out inconsistencies between present testimony and prior testimony given in other cases
- If witness testimony based primarily on studies as opposing to hands on experience, politely and professionally point that out
- If witness opinion is vastly different than majority of literature and scholarly journals in the field, point that out and attempt to get acknowledgement of same from witness
- Inquire whether witness believes all the other folks got it wrong
- Ask for breakdown of how many cases witness consults on and/or provides testimony in per year and approximately how much annual income is derived from same
- Be firm but professional and act in accordance with your duties as a prosecutor at all times
Closing Argument Suggestions
“Expect More”
- An expert’s role is to share specialized knowledge to assist you in understanding things you and I might not otherwise be familiar with
- An expert’s duty is not to advocate that is the job of the attorney
- An expert is supposed to educate you on matters you may not otherwise be familiar with
- The expert was paid handsomely to complete this task
- The expert should be prepared and professional
- The expert should not readily answer questions of one party but argue with the other
“Bias and Skewed”
- Same testimony every time regardless of facts
- More concerned with proving a point than educating and allowing jury how to decide
- The expert downplayed others’ opinions and research that did not fit with their theory
- The expert was evasive and at times openly hostile to the prosecutor
- The expert ignored facts which our common sense tell us should have been considered
Ethics Considerations
“[A] prosecutor cannot attack [an] expert with non-evidence, using irrelevant, insulting cross examination and baseless argument designed to mislead the jury 208 Ariz. 232 92 P 3 d 862 2004
It is NOT Okay to…
- Infer that a defense expert was paid to fabricate a diagnosis
- Intimate that the expert reached conclusions solely for pecuniary gain
- Infer that a defense expert engaged in other unethical conduct without actual evidence of same
- Refer to defense experts as “ for the Defendant
- Refer to defense experts as “hired guns” for the Defense
- Suggest that mental health experts merely create excuses for criminals
- Suggest collusion between defense counsel and their expert
Ms. Eazer’s observations can apply to habitual counterintuitive experts who recite their testimony without knowing important differences case-to-case or accounting for the important distinctions between proven, unproven and false claims of abuse. This CERT resource is designed to get you to apply her wise counsel in your specific case.