The Social Worker as an Expert Witness in Suspected Child Abuse Cases: A Primer for BeginnersLeRoy Schultz*ABSTRACT: A set of suggestions, rules and guidelines
are provided for the social worker (at the MSW or higher) to serve as an
expert witness. These are based on the author's experience in
child sexual abuse cases in criminal and juvenile courts in West
Virginia. Forensic social work has come of age (Gothard, 1989). The greatest obstacle to achieving social justice is the limited amount of social resources available. The social worker providing information as an expert witness can serve to advance social justice. Courts deal with objectivity and not agency needs when a person is charged with a criminal offense (Barth & Sullivan, 1985). Therefore, one of the professional services provided when courts or the defense or prosecution need assistance is evidence from a social worker not attached to the agency which starts a court action. A long-time goal of social work has been to promote social reform (Spakes, 1987; Hagan, 1983). Social work knowledge has become so specialized that there is a gap between lay persons and the professional social worker. Skill is needed to share special knowledge (Expert Witnesses, in New York Times, 1987) in terms that non-professionals (usually a jury), judges, and attorneys can understand and use. In addition, social workers may need expert witnesses when they are sued, when they experience licensing disagreements (Brodsky, 1988), when they become judges themselves (Maypoll, 1984), when there may be two or more victims (Smoyak, 1985; Kingson, 1988; Melton, 1986), or following decisions that result in false arrest and charges (Perr, 1988; Wong, 1987). Social workers may be called into court as an expert
witness on child abuse cases (Segaloff, 1986), rape cases, child custody
cases, visitation phobia cases (Chase, 1983), child support, stress
syndromes, and as independent social workers (Giller & Morris,
1982). Each state and court will vary in its use and acceptance of
expert witnesses. Social workers considering serving as expert witnesses
should check the statutes and evidentiary rules of their states and
discuss this with the attorney who retains them. How Attorneys Locate Potential Experts Most attorneys rely on standard methods of locating social work experts in a geographic area. They may look for an expert through personal referrals on the basis of reputation, jury-reporting services on a computer, court decisions in local or state law reporters, college and university faculties, directories and rosters of the National Association of Social Workers, state chapters, private social work corporations or firms, and experts already on the case. They may contact social workers who make presentations, speeches, deliver papers or workshops for continuing education credit or have written books, pamphlets, and journal articles on the subject matter at issue. Teachers, instructors and other academics may become
known as specialists in one area or subject useful in clarifying
evidence and other data. Attorneys look for an expert who is likely to
be able to help in the presentation of the theory of the defense. Previous publications and collegial respect (by
social workers or attorneys) are the usual routes by
which a social worker is selected by an attorney as an expert witnesses. Starting Your Case as Expert Witness You will receive a phone call or letter from the attorney representing the defendant, plaintiff, or state asking if you are willing to serve as an expert witness. If you are first contacted by phone, document the call and keep notes on date, time, and content. Retain your notes and any letters for your files. The attorney will explain something about the case. Request any documents you think may be helpful in your understanding the issues. After making a decision, call the attorney and then write a letter with your consent to appear and a written retainer agreement. If you accept the case as expert witness, you should require all facts and documents pertaining to the case, including any prior police records, all medical records of the parties, and school records of the alleged victims. Collect all available agency records, including any video- or audiotapes of previous interviews. Get as many details as possible concerning the circumstances under which the accusations arose and the number of times the child has been questioned. Find out whether questionable or unsupported techniques such as the anatomical dolls were used in the interviews. If these records are not provided ask your attorney to obtain them. Make it clear to the attorney that you expect all pertinent facts to be given to you. While it does not happen often, sometimes an attorney may not tell you something you should know. This can be acutely embarrassing when you are testifying. Ask to interview the suspect, alleged victim, relevant witnesses, and significant others depending upon the nature of case. Even if you are not permitted to interview everybody you ask for, you have made the record that you asked. Tape all interviews, if possible, after gaining legal consent. Keep accurate and complete notes on time, place, setting, persons present, and content. Ask the attorney for all court dates in the future and dates and places for depositions and mark this on your calendar. Often, if you are unavailable, the trial date can be changed. Establish a good, comfortable relationship with the attorney's secretary, so that quick, last minute court date changes will be communicated to you in time. Get information about the judge and the county as this may be helpful in determining the kind of setting in which the case will occur. Ask attorney for this, if he or she practices law in the area served by the court. Review all relevant literature and articles in journals (The Institute for Psychological Therapies, Minneapolis, Minnesota is a good library resource). Use the university social work and law libraries for recent studies. Then prepare in your mind an explanation of the alleged crime or a rationale for the "not guilty" evidence (See Wakefield & Underwager's 1988 book, Accusations of Child Sexual Abuse). Then, form your opinion and contact the attorney. Do not prepare a written report until instructed to do so by the attorney retaining you. Once prepared, a written report may be discoverable by opposing counsel. The choice to prepare a written report is best made by the lawyer retaining the expert. Discuss with the attorney who has retained you what areas you will be testifying about. Ask the attorney to explain the theory of the case in terms of what you are expected to provide. Your eventual testimony may also be elicited by hypothetical questions from the opposition attorney and the attorney can discuss this with you to help you prepare. The purpose in asking for possible hypothetical questions early on is to ensure that the social worker understands what is expected and can state the likelihood of being in a position to render an opinion. It is imperative to insist on a pretrial meeting between you and the attorney at a reasonable date before going to court, so that mutual data, signals, findings, etc., can be discussed and planned for. You may need to educate the attorney in your area of expertise so questions put to you are on point and permit you to give accurate and reliable information. Bright and competent attorneys may not know anything about your area. Suggest books, articles, or any other material which the attorney may study beforehand to increase knowledge about your area. Be aware of what type of case you are being retained
as an expert in. Criminal, family, and civil cases differ from one
another. For example, family court records are not public whereas civil
and criminal are. The rules of evidence may differ in the three types of
cases. Be familiar with the different standards of proof in criminal and
civil trials. A criminal conviction requires certainty beyond a
reasonable doubt. A civil trial usually requires the preponderance of
the evidence, a lower standard of proof. Fee Arrangements Discuss fee arrangements early on with the attorney. You may choose to provide a written retainer agreement for the attorney to sign and return to you (An example of a standard retainer agreement is included as Appendix A). Hourly fees that you charge should include research time, report construction time, interviews, actual trial time, your assistant's cost per hour, and travel time and costs. Itemize these for attorney and your file. Avoid charging more than you usually get paid for your job or what other professional social workers charge, since you will almost invariably be accused of being a "mercenary" or "hired gun." Objections to your fees, if any, should be raised early by the attorney who has hired you. if you do not provide a standard written agreement specifying fees and payment, request that the attorney give you a letter indicating your consultant role and/or expert role. The letter should specify that the attorney will honor all invoices within 30 days or one month. Get it in writing. A phone call or verbal conversation will not do. Some experts require a retainer before agreeing to take the case. The services are then billed against the retainer. If the case is settled before the retainer is used up, a refund is issued. If you use up the retainer prior to testimony, get another payment prior to going to the witness stand. There is nothing unethical about this policy, but it should be made clear to the attorney. if the attorney retaining you is a prosecutor or public defender, however, a retainer in advance is generally not possible. In that case, be clear on the payment procedures including any required vouchers or purchase agreements before going ahead. Also get clarity on how your expenses are to be handled. If there is a per diem limit, be sure you know about it. Some professionals require payment in full before preparing a formal report and/or testifying in court. This is done to avoid the appearance of bias if some may believe payment is more likely to be forthcoming if the testimony helps the client. However, again, if retained by a prosecutor or public defender this will probably not be possible. Do not agree to work on a contingency basis. It is unethical for a mental health professional to accept a contingency fee for being an expert witness. If your fee depends upon the outcome of the case, this is likely to reduce your objectivity as well as making you highly vulnerable to impeachment during your testimony. Many cases of child abuse are settled out of court, so you may not be called into court at all.
All your fees up to that decision should be tabulated and a bill sent to
the attorney you are working for. Keep a copy for your file.
Perhaps
only one out of twenty child abuse cases will go to trial. The attorney
may use your information and findings to settle out of court, or decide
that your information and findings are not useful. Charge fees for the
time you have used up to this point. Pretrial Preparation Welfare, justice and economics are sometimes better served if your expertise results in an agreement before the trial. This could be the dismissal of charges or a plea bargain in a criminal case, a stipulated agreement in family court, or a settlement in a civil case. Costs to a county tax-payers for a full trial may be very high. (See McGuire & Norton, 1988 who describe a trial costing more money than the county had.) Your findings and opinions become known to the attorney who retains your services. It may be the results of your analysis of the case and your opinion are not useful to his or her strategy or plan. You should be paid and released. Your findings may be shared with the other side with or without your permission. If the case goes to trial, you may be served a paper called Subpoena Duces Tecum which will state the court time and dates and location of court. This is routine and should not panic you. You will be asked to present, or have ready to present, all your records connected with your role and the case. This also is routine. Although your attorney may ask for approximately one hour in court time, to present your findings, allow for at least two to three hours to present your testimony. Actual time needed can vary from one hour to two or three weeks, depending upon the complexity of the case and the length of the cross-examination. However, a half a day to two days is routine. Often attorneys underestimate the time required so give yourself some leeway. You may be deposed before the trial. There are two basic types of depositions. In one type, a discovery deposition, the opposing attorney attempts to discover what you are likely to testify to at the later trial. In the other type, the actual testimony can be given through a deposition. In all depositions, both attorneys are present, you are under oath, and the questions and answers are recorded by a court reporter. "Work product," that is, material that relates to attorneys' strategy or plan is not discoverable by the opposing attorney. Ask your attorney to clarify for you what of your work is discoverable and what is considered to be work product. Following the deposition, unless you waive the right, you will be sent a copy of your transcribed testimony to insure that it is correct. Never waive the reading of, and signing of, your deposition. For the trial, request that you be first witness in the morning or after lunch (schedule this with your attorney). Have a final conference with your attorney before all court appearances by you, in which you clear up any remaining questions. Your court-times must be flexible and you may receive short notice of the time to appear. You should clearly determine the following from the attorney before you appear in court: 1. Know what questions will be asked as to your qualifications (have many copies of your vita or resume prepared especially for the court). 2. Be familiar with the orderly sequence of questions and responses for direct examination and for cross-examination by the opposing attorney. The attorney should never be surprised by your answer to a question. 3. Know the anticipated hypothetical questions both attorneys are likely to ask you. Have your answers ready. 4. Know the limits of your findings, area, subject matter and expertise. Be willing and able to state these limitations effectively, under questioning by both attorneys. 5. Discuss all possible approaches or strategies to be used by the opposing attorney during cross-examination, with your attorney before court. 6. Know the demographics of jury members, particularly information that informs you of their educational level that will shape your approach. 7. Learn about the judge's style or special expectations. This is usually known by your attorney if he has practiced before this judge before. 8. Know the special limitations of the courtroom (visit before trial). Learn if court has means to present charts or graphs. Discover if you will need to speak loud and clear (this may vary with the loudspeaker system). Know all electrical outlets, and bring plenty of extension cords (I never count on any court equipment; I bring my own). Some attorneys assume you will give a brief, general opinion or answer, with reasonable certainty to hypothetical questions. Remember that legal evidence may be different than scientific evidence. Keep in mind that your job is not to give an opinion as to the ultimate issue. This is for the finder of fact (judge or jury). Your job is to provide information from your area of expertise that will assist the finder of fact in reaching a decision. During the pretrial conference between you and the attorney, be sure that your attorney understands that the social worker's testimony involves an extensive presentation concerning that social work is as an art and profession, the nature of probability theory, the nature of science, the purpose of your examination of client, the qualitative and quantitative output of your interviews, and the limitation of conclusions. Your attorney must be helped, by you, to understand that all hypothetical questions should be addressed "within reasonable social work probability." Resolve this with the attorney before you take the stand at trial. Always carry a pretrial checklist with you to insure all preparation steps have been taken in getting ready for court. Rehearse all expected questions and your answers before trial. Be prepared, and anticipate the worst. Questions your attorney should ask you before trial are: 1. Is there any aspect of this case that you have any problems with? 2. What would you say if you had been retained by the opposition in relation to any question. 3. Where are you weakest in this case? 4. Are there skeletons in your closet that we haven't
covered yet? The Trial The judge instructs the jury, followed by opening statements by each attorney. Then each side presents its evidence. In a criminal trial, the state (prosecution) presents its evidence first and in a civil trial, the plaintiff presents its evidence first. Then closing arguments are made followed by instructions to the jury in a jury trial and (varies with time) there is decision. When cases are heard only by a judge, it may take from several weeks to months for a decision to be rendered. Your testimony will consist of swearing in, your qualifications as expert witness, direct examination of you, cross-examination by the opposing attorney, redirect examination by your attorney, and recross examination by the opposing attorney. Be prepared for harassment by the opposing attorney. When this occurs, do not become angry or upset. This is what he or she wants. Stay calm, polite and pleasant. Also, answer only the questions that are posed to you. Do not volunteer anything. Any documents or written material you take into the witness stand is available to both sides. If either counsel asks to look at your file or other materials do not let it out of your sight. If ordered to give anything to opposing counsel, ask the judge to let you observe anything done with your material and that the originals be returned to you. Occasionally, the expert witness may be called by the
court or interested organization to prepare a Amicus Curie brief or
position statement on the case, or a guide to sentencing, or a treatment
plan if probation is recommended after a finding of guilt. If acquitted
of child abuse charges, the injured party may profit from a referral to
a mental health agency. (See Defending the Erroneous Charges of Child
Abuse: A Manual for Survival, 1988.) Charts and Illustrations Charts and other visual aids can be powerful additions to your testimony. Take a chart, table or illustration with you on your own flip chart. (Do not rely on courtroom to provide anything but electricity). Use blackboard, charts (chart folders) purchased at any stationary store or where artists supplies are sold. Where you hold the chart for the jury to see depends on the courtroom size and presumed eyesight of jury. Stand up and hold it about 20 feet from the jury box. (Do not use bulky charts, etc.) Visual aids, such as slide projectors, may be provided by court, if you need one of them ask ahead of time and know how to operate it. Do not talk down or up to a jury or judge. Beware of
the use of videotapes tapes as they may disrupt the smooth flow of
testimony; ask your attorney about this. Cue Book A cue-book is a collection of materials that may be useful to support direct testimony. You need authoritative reference material and your cue book insures this. Use a three-ring notebook, this way you can change material from case to case. Have two copies, since one may be taken by court as evidence. The opposition must cast doubt, in the jury's mind,
as to your credibility or standing. The attorney on other side will try
to fluster you. Be prepared for this and rehearse in advance.
The other
attorney may ask a wide range of tangential or esoteric questions such as, "What is the reliability of
your interview data?" or "What is the standard deviation for the I.Q. test that you used?" or "What
is the difference between construct and concurrent validity?"
Refer
to your cue-book held in lap, for answers unless you can ad lib well. Getting to Court Know where the courthouse and court actually are located. If necessary, clock travel time in advance or allow plenty of time to arrive early. Don't be late as jury may see this as unprofessional. Announce your presence to the bailiff or judge's secretary in the courtroom. Do not stay in the courtroom until you are called as this may result in a mistrial. Stay in corridor or jury room, until called by bailiff or your lawyer. Don't ever talk to anyone associated with the other side. (This may also result in a mistrial.) Do not enter the courtroom until called. If you barge in and listen, the court or attorney may "invoke the rule" — a practice used to keep experts uncontaminated. Sequestered witnesses are prevented from hearing the testimony of other or from talking to anybody about their own testimony. Always ask your attorney, "does the judge invoke the sequestration rule?" When waiting to be called to the courtroom, bring
along something to read not connected to the case, since you may be
waiting a long time. Read to reduce tension. Do not study case material
which you know already. Dress and Decorum Courtrooms are formal and if you want to be effective, dress to suit the court decor. Dress should be businesslike and conservative. Dark suits for male social workers with tie, and dark suits for women (skirts in some courts required) will enhance your credibility. Use a large briefcase or attaché case for court work for records and files. Carry this to court yourself. Be conservative. By the time the bailiff calls you, or your lawyer gets you from the hall, the trial has been in progress for some time, so you are usually entering a hot arena. When you are called by your attorney and sworn in, the jury is ready to hear something not in their everyday experience. This is why you are here as an expert — to provide information not generally known by laypeople. Both sides have already given evidence before you get there. Be serious, concerned, dedicated, as professionals should be whose grasp of information and ability to communicate stand out. When you enter the court room, quickly visually evaluate the setting, and go to the bailiff who swears you in. Do not wait to be instructed by bailiff to raise right hand — do it first. Do not hesitate. Nothing can be done until you are sworn in. Act like it's routine, for the jury's sake. Experts serve as source of influence upon the target of influence (usually the jury). Make the presentation defensible, reliable and valid, within reasonable probability, in a logical and understandable manner to jury and judge. Whenever the judge stands up, you should also. In some jurisdictions everybody also stands when the jury enters the room. There are periodic recesses during the proceedings. The Judge will announce the length of the recess, so check your watch and leave the witness box. Do not go to the restroom (if courthouse has only one) where opposition may go. Ask court bailiff for the right restroom to minimize any allegations of collusion. Come back in time and return to the witness stand. After you have finished testifying, leave the
courtroom. Do not remain to hear subsequent testimony. This gives the
impression of having too much interest in the outcome of the case and
detracts from your appearance of objectivity. Qualification as an Expert The first thing that will happen is that your attorney will qualify you as an expert to the court. You must be qualified to present information that is unique in relation to social work or training that is unlikely to be common knowledge of jurors. Your formal credentials as well as your work experience are considered here. Write your own questions about your qualifications and give to your attorney. Do not overstate your actual credentials. You must demonstrate your specialness to the jury in
terms they can relate to. The opposing attorney must accept you as an
expert. If he objects, both attorneys usually approach the bench
(judge)
to argue (in private) why you are qualified. However, the opposing
attorney may not want your credentials paraded before the jury for fear
of losing the case on credentials alone and may stipulate that you are an
expert so that your credentials will not be presented to the jury.
But
if he objects, your attorney will ask questions about your credentials
and the judge must rule to accept you as an expert. If a judge rules you
are not an expert, step down from the witness chair (gracefully) and
leave the courtroom. Direct Exam The direct exam is given by the attorney who retained you. The purpose is to allow you to give relevant information that is supported by your case and your findings. Your attorney will conduct the direct exam in such a way that your findings and opinions are presented to the jury or judge in a smooth, understandable sequence of questions and answers. Some attorneys use the pretrial conference with you to establish these. Others rely on your spontaneity. You must request a pretrial preparation by your attorney to clear strategy. You should agree with your attorney as to the sequence of questions, length, style, and content of answers, and the use of charts, and the form in which hypothetical questions are to be presented before the trial. During your testimony, you must carefully educate both judge and jury by being a good teacher (patient and explaining). Be neither boring nor confusing. Your attorney asks questions, and you give short answers, pointing out basis for your findings, opinions and testimony. You may be asked questions such as: "How did you become involved in this type of case?" "Are you familiar with circumstances surrounding case?" "What are victim's after-effects, if any?" Know DSM III-R, particularly the Post-traumatic Stress Disorder. Don't rush things or you may get challenged by opposing attorney. Present your data in a sequence that is logical and understandable in respect to the issue being considered by the jury. Avoid technical jargon and give your opinion in clear, understandable language. Avoid overstating conclusions that can be drawn from the data and records. Instead the social work expert explains to jury and or judge what really happened in the case, and whether the standard of care used met acceptable social work standards. When hypothetical questions are asked, focus on what your attorney wants jury to hear. Be clear in your pretrial conference what this is. There should be no surprises to your attorney in any answers given by you in direct examination. Look at the finder of fact when you respond to the questions asked by the attorney, and not at the attorney. If it is a jury trial, look at the jury. Otherwise, look at the judge. Eye contact is important. A common mistake for inexperienced experts is to look at the questioner rather: than the finder of fact. Do not advocate for one side, but for truth based on
your findings. Do not shade data to favor one side or the other.
Do not
omit pertinent facts or expand on inconsequential ones. Resist and
discourage maneuvers of this type. Avoid thinking about winning-losing,
our side-their side, or beating them. If you think in terms of
winning-losing, you lose credibility. The expert is an element of the
adversary process, but not an advocate for one side or the other. Think
of yourself as an advocate for science and truth. Cross Exam Before the cross exam, in your pretrial conference with your attorney, you will have discussed the weakest points in your testimony. Ask for directions from your attorney on how to handle these. Be prepared for intense scrutiny of your information, argue well, but not emotionally. The intent of the opposing attorney is to discredit you. Expect denigration and sarcasm but stay calm and professional. You can be discredited in front of the jury by: 1. Lack of licensing or evidence of falsification of credentials. 2. Showing your bias or an unusual interest in court outcome. 3. Presenting evidence of bad character, i.e., misconduct, drinking, owning a pornography collection. 4. Proof of prior inconsistency (in previous trials). 5. Contradictions in your accounts or publications. 6. Lack of knowledge of case or subject matter. Beware the trap of answering legal questions which only a jury can determine. Offer your opinion but never be drawn out of your expertise, or lured out of your expertise into legal areas, although the opposing attorney may use this tactic. Do not become emotional and defensive on the witness stand — if you have made a mistake in first exam, quickly admit so, and move on. You will probably be asked about your fees in an attempt to present you as a hired gun. Do not become defensive. This is a familiar ploy and comes up in every case. Answer the questions about fees simply and nondefensively. If asked how much you are being paid for your testimony, reply that you are paid for your time, not your testimony. Often in cross examination, you will be forced into a yes or not response. If necessary, state that you cannot answer a given question with a yes of no. Ask to be allowed to explain your answer. If you are not allowed to elaborate on your answer your attorney should give you a chance on redirect. Common Cross-examination Ploys 1. The attorney attempts to destroy your credibility with the jury by getting you to say "I don't know." 2. The "God only knows" gambit. The attorney asks questions for which there is no answer. 3. Yes-No questions. The attorney boxes you in by forcing you to answer only yes or no to questions where this does not fit. 4. Paid-for-testimony questions. The attorney infers a cash motive and implies that you are a hired gun. 5. The attorney charges that your interviews are unreliable — length of time, number of interviews, etc. Have answers ready. 6. Subjective opinion ploy. "Are you personally involved in research?" 7. "Loaded question" ploy. The attorney intentionally misstates previous testimony. 8. Lawyer as expert. The attorney volunteers to
testify for you, substituting his or her own opinion as if it was yours.
Beware, and correct. How to Defend Yourself Against These Tactics 1. Watch for the trap laid for you when the opposing attorney creates false security. He may be setting you up. 2. Give yes or no answers if possible, since every additional word is possible fodder for the other side. Watch for leading questions. 3. Do not get caught in contradictions. 4. Be prepared for uncovering your biases of being for or against the defendant or alleged victim. 5. Beware of the opposing attorney making you admit your answers were rehearsed with your lawyer. 6. Beware of baiting by opposing attorney into anger traps and into emotional outbursts. No matter what he does do not be rude back. Instead, be honest, calm, and brief. 7. Insist that only one question be asked at a time. The Social Worker as an Expert Witness The social work expert can provide expert testimony to promote growth and development of social work standards, including justice. The social worker should provide an advocate service to the accused as well as to the allegedly abused child. The benefit of all will be enhanced by a careful investigation and a reasoned presentation in court. Assure correct interpretation of the facts as you see them, to jury, judge, lawyers and the public, and to other social workers. The most common problems for the social worker as an expert are overstating credentials and/or experience and overstating conclusions that can be drawn from the data and records. In a child abuse case involving a young child with no corroborating evidence, the social worker should be cautious about making very sure statements concerning whether or not the abuse occurred. Social workers get involved in the following types of issues: 1. Private custody following divorce including visitation plan. 2. Neglect, abuse or dependency actions (i.e. allegations of unfit parenthood). 3. Termination of parental rights (unfitness). 4. Guardianship cases (child and adult). 5. Delinquency deposition hearing in Juvenile Court. Warnings When testifying, social workers should heed the following warnings: 1. Beware of lawyers offering you a theory (different from yours) of the case and a framework to approach various perspectives. This may involve an impeachment tool particularly, if tape or video-recorded. 2. Lawyers will often ask for a pretrial discovery disposition. Be ready and thorough in civil cases. 3. The opposing attorney may interview family members to get data to impeach you. 4. Beware of any attorneys that ask you ahead of time what your prejudices and predisposition are. 5. The opposing attorney will have your resume and biographical data. Do not exaggerate. 6. The opposing attorney will not acknowledge you as expert on anything. Be ready to counter-fight with experience. Watch out for your own inconsistencies. 7. Beware of operating outside of your agency scope (violating statutes) but always interview important people. 8. If you have evaluated the parties earlier, recall these events accurately. Carefully check your notes and records since the trial may be years later. Your recollections will be challenged, so be sure. 9. Do not testify on the basis of any psychological
tests or techniques such as drawings or dolls. The dolls have been
determined to be a psychological test by the American Psychological
Association. Since social workers cannot do psychological testing, such
testimony makes you vulnerable to impeachment. Alleged Child Victim Interview Your investigation should include a good description of the allegation environment. You may want to videotape the environment if this provides useful information. The allegation environment describes the child's setting, factors from her past, and where the allegation was made. Was the child's verbal expression in age-appropriate terms? If not, describe. Know developmental theory for all ages. Information about the child's knowledge of body parts, any sex education (formal and informal) or exposure to prevention programs, and television and VCR habits should be obtained. A checklist of important information includes: 1. Can the child distinguish between right and wrong? 2. Can the child understand why truth is important now? 3. Can the child provide details, in age appropriate words, of the offense(s) Who? What? When? Where? and How? 4. Is the child fantasy-prone or suggestible? 5. At what age did the child first hear of child abuse? Source? Is there a longstanding suspicion (in the child) of affection? 6. At what age was the child told her body is her own? 7. Where and when did the child learn language of sexual abuse or learn the role of victim. Analyze all video- and audiotapes of interviews with
the child. Some states require all contacts by law, social service or
mental health agencies be videotaped. See Wong (1987) and Wakefield and
Underwager (1988) for a discussion of common mistakes made in such
interviews. Expert Witness Roles as Consultant Only (Before Trial) Attorneys often retain experts to consult with them on the case before the trial. This happens whether or not the expert is also retained to testify in the trial. Some attorneys retain different experts for consultation and for testifying. Some of the ways by which an expert can be helpful in consulting with an attorney are: 1. Identify additional facts needed to confirm your preliminary view of the case. 2. Provide a bibliography of books from most basic to most difficult and articles that the lawyer should read. If you can furnish these, fine, if not, tell him where can they be located easily. 3. Suggest experts for other roles as trial experts. For example, you may have knowledge of a good pediatrician in a case where there is questionable medical evidence, or a psychologist who can testify about the child sexual abuse accommodation syndrome or the evidence concerning the anatomical dolls. 4. Review information on the case and suggest, particularly after discovery of the opposing side's argument, additional needs such as more documents or information needed. 5. Scout the opposing side's expert (as to degrees, experience, etc.) and report the information to your lawyer. Acquire tapes of all interviews or treatment. Determine what wasn't recorded. 6. Suggest to your attorney areas for cross-examining the opposing side's expert at deposition and/or at trial. 7. Suggest areas of inquiry that opposing side is likely to explore when cross examining your expert. (Prepare and rehearse for likely questions.) 8. Suggest helpful motions for pretrial hearings, such as a motion for an adverse medical examination, in which the attorney for the defendant is allowed to have his expert evaluate the alleged victim. 9. Help with jury selection. Suggest questions to ask
during the (voir-dire) selection process on jury members so that the
attorney can set the stage for presenting his evidence properly. Conclusions The social worker who agrees to serve as an expert
witness can provide an important service both to the justice system and
to the social work profession. It is important to be prepared and know
what to expect and to work carefully with the retaining attorney. The
guidelines presented will help this occur. Appendix A - Retainer Agreement (Example) -
Web Page | .rtf file ReferencesBarth, R., & Sullivan, R. (1985). Collecting competent evidence in behalf of children. Social Work, 30, 130-136. Brodsky, S. (1988). Fear of litigation in mental health professionals. Criminal Justice and Behavior, 15(4), 492-500. Chase, G. (1983). Visitation phobia. Conciliation Courts Review, 21(1), 81-86. Expert witnesses: Booming business for the specialists. (1987, July 5). New York Times, pp.1, 12-13. Giller, H., & Morris, M. (1982). Independent social workers and the courts: Advise, resist and defend. Journal of Social Welfare Law, 29-41. Gothard, S. (1989). Power in the court: The social worker as an expert witness. Social Work, 34(1), 65-67. Hagan, J. (1983). Case law and social welfare. Journal of Sociology and Social Work, 10(3), 408423. Kingson, J. (1988, Nov. 6). The professor who makes a case. New York Times, (Educational Supplement), 41, pp. 34-47. Maypoll, 5(1984). Social workers as magistrates and J. P.'s. Journal of Sociology and Social Work, 11(3), 639-653. McGuire, C., & Norton, A. (1988). Perfect Victim ( Melton, 0. (1986). Litigation in the interests of children - does anybody win?, Law and Human Behavior, 10(4), 337-353. Perr, I. (1988). Claims of psychiatry injury after alleged false arrest. Journal of Forensic Sciences, 33(1), 21-34. Segaloff, R. (1986). The care and protection battleground: When lawyers and social workers collide. Boston Bar Journal, March-April, 37-40. Smoyak, S. (1985). Prosecutors or defenders: With whom should the clinician
align? In A. Carmi, & D. Schneider. Nursing Law and Ethics ( Spakes, P. (1987). Social workers and the courts. Journal of Social Work Education, 29-39. VOCAL of Ohio. (1988). Defending the erroneous charges of child abuse: A manual for survival: Toledo, OH. Wakefield, H., & Underwager, R. (1988). Accusations of Child Sexual
Abuse ( Wong, D. (1987). False allegations of child abuse. Pediatric
Nursing, 13(5), 329-333. Readings For Social Workers Berman, A. (1986). The expert at trial: Personality persuades. Family Advocate, 9(1), 11-12. Bonk, S., & Poythress, N. (1982). The elements of persuasion in expert testimony, Journal of Psychiatry and Law, 173-204. Bonnie, R., & Slobogin, C. (1980). The role of the mental health professionals in the criminal process. Virginia Law Review, 66(3), 427-522. Giller, H., & Morris, A. (1982). Independent social workers and the court. Journal of Social Welfare Law, 29-41. Gothard, S. (1989). The social worker as an expert witness. Social Work, 34(1), 65-67. Kennedy, R. (1980). California Expert Witness Guide ( Poynter, D. (1987). The Expert Witness Handbook, Tips and Techniques for the
Litigation Consultant ( Note: The expert as educator (1987). Vanderbilt Law Review, 35, 741-768. Sales, B. (1977). The mental health professional on the witness stand: A
survival guide. In Psychology in the Legal Process ( Skovron, S., & Scott, J. (1987). Social scientists as expert witnesses:
Their use and abuse. In P. Anderson, & L. Winfree (Eds.), Expert
Witnesses ( Smith, S., & Moyer, R. (1987). Law, behavior, and mental health. In The
Mental Health Professional in the Legal System ( Weiner, I., & Hess, A. (1987). Handbook of Forensic Psychology ( Winfree, L. (1987). All that glitters is not necessarily gold: Negative consequences of expert witnessing in criminal justice. In P.
Anderson & L. Winfree (Eds.), Expert Witnesses ( Zisken, J. (1988). Coping with Psychological Testimony ( 710 Pac Reporter 2d at 793, State (OR) v Tuchor and State Juvenile
Department of Lane County (1985). Special Readings on Child Sexual Abuse American Prosecutors Research Institute. (1987). Investigation and prosecution of child abuse. National Center for the Prosecution of Child Abuse. Alexandria, VA 22314. Marusco, B. (1982). The Prosecution and Defense of Sex Crime (chapter 9). New York: Bender. Wakefield, H., & Underwager, R. (1988). Accusations of Child Sexual
Abuse (
|
[Back to Volume 1, Number 2] [Other Articles by this Author]