Responding to Improper and Abusive Impeachment EffortsRalph Underwager, Ph.D. and Hollida Wakefield, M.A.*Every expert who testifies must deal with the impeachment efforts of the opposing attorney. Although the standard may be "hard blows but fair," often the attacks are personal, defamatory and unfair. Case law and ethical standards for attorneys relating to impeachment are reviewed, along with the research relating to effective expert testimony. The concept of an impartial, objective expert is critically examined; recognizing the reality that experts are in the adversarial system and are functioning as honest advocates is probably the best course for the expert witness. Strategies and tactics for responding to improper impeachment attempts are presented. Cross-examination of an expert witness is a procedure with one person, the expert, sitting in a witness box and another person, a lawyer, asking questions. This process is set within an adversarial system that is intended to produce truth and justice by examining opposing positions when there is a dispute about facticity. As such, it is a variant of the ancient custom of trial by combat. If two people made contrary claims, they fought it out. Truth belonged to the person who was still alive and on his feet at the end of the trial. Battleaxes, stilettos, or dueling pistols are no longer used, but anybody who has been an expert in the witness box knows that blood is still splashing about and collecting in puddles on the floor. The purest, most direct form of combat still permitted takes place during the cross-examination of expert witnesses. The courtrooms of America are the battleground where "Rambo litigation" flourishes. Lawyers and judges know that deception, nastiness, intimidation, rudeness, and abandonment of any concept of fairness are now the rule and not the exception (1). For prosecutors, the single most powerful figures in the justice system, the absence of any meaningful professional discipline for misconduct makes trickery and chicanery effective. It works, and cases are won, which is the only measurement that counts (2). In the I 980s, the recognition that law is a business providing services for a fee led to the assumption that being a business means all ethical bets are off (3). For expert witnesses, this has meant the development of a formal and informal network of attorneys who exchange information about experts in order to impeach them. The formal network is the prosecutors who use tax money to attack and attempt to destroy experts willing to testify in a defense case. The informal network is trial lawyers who advertise in attorneys' journals and magazines for negative information about experts. Inevitably this process leads to personal attacks and efforts to vilify experts. There are some procedural rules and limits to the battlefield and the tactics that can be used. There are also supposed to be some rules to assure the combat is fair and therefore a true struggle of strengths that cannot be won by chicanery, knavery, or trickery. There is a third person, the judge, who is supposed to be in charge and see to it that the rules of fairness are followed. But, again, anybody who has been an expert in the witness box understands that what counts is the appearance of fairness, not the reality. The tragedy is that so many judges simply do not care enough to do anything about it. The emphasis is on getting cases closed and processing the docket, not justice (1). Many judges are former prosecutors and are prosecution oriented. They are biased against defendants and actively do everything they can to assist the prosecution (4). We are concerned with the ability of the person in the box, the expert, to be as ready for the combat as possible and to have the best possible shot at fairness and shedding the least amount of blood. We think this begins with the cognitive behaviors and strengths of the expert. Before beginning any test of strength, it is essential to know what strengths are available. If there are not enough to have a reasonable chance to succeed, it is best to walk away and not enter the arena. It is likely to be an unpleasant, unrewarding, and stressful experience. STRENGTHS For the clinical psychologist, the first and greatest strength is the Boulder model of scientist first and practitioner second. In the mental health professions, the psychologist is the only one with a claim to be a scientist and for whom scientific training, knowledge, and the ethical responsibilities of a scientist are normative. Psychiatrists and social workers are not trained as scientists and the practice of psychiatry and social w6rk are not scientific disciplines (5, 6). Unfortunately, the practice of psychology by clinicians is divorced from the science of psychology and the credible scientific research in psychology has little or no impact on practitioners (7-9). Dawes (10) described the result of this separation:
In the justice system, reliance upon expert opinion is based on the assumption that there is a real expertise so that an expert has knowledge that can assist the finder-of-fact in reaching the most accurate decision possible. If that expertise does not exist, there will be a large amount of incompetent and error-ridden opinion offered to the courts under the mantle of objective science. It may be that the most appropriate and helpful expert opinion is to show that there is no trustworthy evidence on either side (11). If asked whether or not there is general agreement in the scientific community, an expert may in good conscience answer yes, there is consensus, but it is wrong. Of course, the psychologist never has all the information that could be helpful. It is not possible to say to a patient, a judge, or a defendant that they have to wait until we get a research grant and find out more about it. Decisions are made. Opinions are formed and expressed. We use the best and most rigorous scientific work we can. There is no need to be abashed or ashamed about this. But to persist in approaches, techniques, or opinions in the face of clear negative evidence against their validity or efficacy is not only intellectual folly, it is unethical and may well therefore constitute negligence and malpractice (12). At the same time, it is necessary to assert what can be offered as solidly supported by scientific knowledge. There is no value in attempting to maintain some sort of apparent objectivity, saying on the one hand but on the other, when there is data demonstrating a given direction. As Ceci (13) observes:
The practice of law includes a heavy emphasis upon examination of prior cases, comparison of analysis and decisions, and distinguishing between the reasoning in this or that case as it applies to the facts of the instant case. The search for relevant precedents, lining up authorities, and arguing for a position is the major pursuit of attorneys and judges. This most naturally leads to the assumption that science proceeds in the same way. Therefore, when the legal practitioner evaluates scientific information, the natural habit is to look for cases, studies, experiments, or opinions that support a desired decision and to expect that there will be some opposing cases, studies, experiments, or opinions. Then the conflict will be argued out on the basis of whose authorities appear the most weighty or can be most persuasively presented to the finder of fact. This assumption, uncritically accepted and imposed upon scientific data, leads to the very frequent question addressed to scientific experts, "Well, doctor, aren't there studies that disagree with you?" Judges may exclude expert testimony by saying they do not want a battle of the experts, it is controversial in the scientific community, and the juries already know all of that stuff anyway. The assumption is that science proceeds like a baseball game score. Most scientists understand that knowledge is incremental so that we are always building knowledge on what has gone before that has gotten pretty well settled as accurate. This means we do not rely upon single case studies, anecdotes, personal experience, or elaborate theories built on little or no empirical quantified data. Practical applications of the science of psychology are derived from tested and replicated scientific investigations using scientific methods. Today that means the psychologist must be aware of meta analysis and effect size. Review articles that are in the nature of the older, subjective piling up of studies are not acceptable. Studies that report only statistical significance and rejection of the null hypothesis must be viewed as weak (14-16). The use of effect size permits greater confidence in the quality of a given research report and should be understood by psychologists (17). Every psychologist needs a balderdash detector and must exercise critical acumen (18). The scientific method and the scientific approach has succeeded in markedly changing our world, mostly for the better. Science has gained wide public respect and credibility. Unfortunately, however, it is the very success of this approach that has led to the development of a climate in which pseudoscience and poor science flourish. Because psychology is seen as "scientific," anything goes, so buy my weight loss through hypnosis tapes, learn Chinese while you sleep, and one easy lesson and you will have a photographic memory. Scientific psychology proceeds through the application of systematic observation so that through the observation some concepts are supported and others are rejected. Science grows cumulatively by having the systematic observations publicly verified. Findings are presented so that others can replicate them, criticize, extend, or reject them. Ideas that survive this process are understood to be usable. However, it must also be understood that in the process a single result that falsifies a concept must be given more credence than many that may support it (19). It is not simply a matter of counting noses, as the U. S. Supreme Court decision, Daubert v. Merrell Dow (20) also recognizes. The decision sets forth the primary criterion for what is scientific as falsifiability and replication (21). THEORY VERISIMILITUDE The ethical code and the guidelines for forensic psychology emphasize the requirement of the scientific basis for statements, opinions, reports, and testimony by psychologists. This means that psychologists must be aware of the heterogeneous nature of the science of psychology and understand there are some theories and data that are of high and clear validity and others that are not (11). It is necessary to make distinctions and to be able to tell what can be asserted with reasonable confidence and what must be limited, qualified, or even denied when there is evidence of a falsification of a concept or theory. To make an effort at such discriminations it is necessary to understand the current state of the philosophy of science and the discussion of corroboration and verisimilitude (15, 16, 22, 23). Subjective judgments are not sufficient, for the human mind is not very good at processing large amounts of stochastic information. There are currently some 175 studies showing that conventional, impressionistic, in-the-head method of summing up data is less accurate than using actuarial, statistical procedures even as simple as assigning weights. NOT BY EXPERIENCE Can we base an opinion or testimony on experience? After all, we all learn from experience and we look for experienced mechanics, teachers, political leaders, even lovers. Benjamin Franklin is often quoted as saying "Experience is the best teacher." He really did not say that. What he actually said was that "Experience is a dear (expensive) teacher and fools will learn from no other" (24). Remember, physicians had several hundred years of experience in curing people of all manner of illnesses by draining blood out of them. They could make the cut in the vein very precisely and measure the amount of blood reliably and stop the bleeding when they felt they had enough of the poison drawn out. They had the wrong theory and they killed people, but they did it with lots of experience. The research evidence is clear and unavoidable. There is no relationship between years of clinical experience and competence as a psychologist (25-28). Professional training does not increase effectiveness of psychologists (7, 29). The only way experience contributes to effectiveness as a therapist is through learning and using the methods that are shown to make a difference. To base opinions on personal experience alone, no matter how subjectively confident, is unethical (26). HONEST BUT NOT IMPARTIAL The U.S. Supreme Court has clearly endorsed advocacy and adversarial roles for the mental health expert in the courtroom in Ake v. Oklahoma (30-32). The psychologist can be an advocate and fully involved in the adversarial process yet still be honest and not be a "hired gun" (33). This requires that there be no deception either by omission or commission. It does not mean that the psychologist must say everything that can be said. It is not possible to go beyond the questions addressed without getting objections of one sort or another. It means that there is no assertion of untested hypotheses or unreplicated research. There is no assertion of clinical truth as opposed to scientific empirical information. Exaggerated assertions of confidence should be avoided. An example is a psychologist, claiming to be an ABPP diplomate, who declared on the witness stand he was absolutely 100 percent certain that a man was guilty of a crime based only on his clinical interview with the man during which the man adamantly denied guilt. Idiosyncratic techniques with no basis in scientific psychology must also be avoided. A psychologist testified that a husband was a batterer and rapist on the basis of giving the wife the MMPI and then having her repeat it as if it were 12 years earlier, and accepting that profile and the differences between the two as valid indicators of the veracity of the wife and the guilt of the husband. Needless to say, there are absolutely no data supporting such a use of an MMPI. Recognizing the reality that experts are in the adversarial system and are functioning as honest advocates has several benefits. It reduces the pressure to express greater confidence than is warranted by the empirical data. It rationalizes the offensive war of the experts. It reduces pressure for an expert to make pronouncements about the ultimate issue and increases the likelihood that the trier of fact will reach its own conclusion rather than rubber stamp experts (34). Saks (35) analyzed litigation against experts, research reports, self-report surveys of experts, and complaints to professional forensic associations. He reports three major problems: 1) problems of competency, 2) individual misbehavior, and 3) problems of practicing science in an adversarial system. All of these problems might be somewhat ameliorated by a clear understanding of the role of honest participant in an adversarial system. EXPERTS AND JURIES The impact of expert witness testimony on jury decision making is not well known or understood. There is a growing frequency of using expert witness testimony, but it has come about in the relative absence of solid data. Nevertheless, there is some indication of what may be important variables to consider. Brekke, Enko, Clavet and Seelau (36) report on a sample of 686 registered voters who were shown a videotaped reenactment of a rape trial which manipulated type of presentation, adversarial versus court-appointed objective expert, and balanced and one-sided. Deliberating jurors showed more attentiveness and reception to adversarial experts over nonadversarial. The objective, court- appointed expert was not remembered as well. Cutler, Dexter and Penrod (37) found that expert testimony on eyewitness identification was useful and affected jurors' decisions. "Expert testimony on eyewitness memory appears to be a useful safeguard against false convictions resulting from mistaken identification" (p.223). Also, they found no indication of jurors becoming more skeptical. Some studies suggest that jurors ignore or misunderstand testimony about base rates and probability. Kovera et al. (38) report jurors are less affected by probabilistic data than by case history information. There was no discernible impact of strong or weak cross-examination on the credibility of the expert. Faigman and Baglioni (39) examined the impact of an expert giving statistical information using Bayes theorem and found that it was generally ignored. Thompson and Schumann (40) report that information on base rates and probability is underutilized and misunderstood. Some jurors fall victim to the prosecutor's fallacy (inappropriate weight given to matching evidence) while others exhibit the defense attorney's fallacy (no weight given to associative evidence). Williams, Bourgeois and Croyle (41) demonstrate that revealing negative information about oneself before the adversary does reduces the impact of the negative evidence. There are contradictory findings about the effect of detail. Bell and Loftus (42, 43) suggest more detail leads to higher credibility. However, Pickel (44) does not find that amount of detail affected jurors' perceptions, but rather credibility of a witness was affected by the credibility of a second witness. Gabora, Spanos and Joab (45) report that, in a presentation of a sexual abuse trial to mock jurors, expert testimony specific to the case and expressing the opinion that the defendant had abused the complaining witness increased conviction rate. However, expert testimony introduced to counteract prevailing misconceptions about sexual abuse had a corrective effect on jurors' perceptions but it did not change the guilty decisions. CASE LAW ON EXPERT WITNESS ATTACKS We have been told repeatedly that an informal dictum learned in law school is that if you have the law on your side, you go with the law. If you have the facts on your side, you go with the facts. If you do not have either the facts or the law on your side, you go after the person. This is where the personal and often unfair efforts to impeach expert witnesses appear to start. There is a large body of case law dealing with impeachment attacks on experts. Unfortunately, in some instances courts have held that although the attacks are unfair, false, malicious, and improper, they are nevertheless "harmless error" that did not affect the verdict reached. The most frequent attack made on an expert is that of being a "hired gun" who testifies in whatever way the payee wants. The first time a psychologist testifies, the charge of being a paid whore or hired gun is likely to be made as it was for the first author in 1965 in the very first trial in which he testified as an expert. It is now standard procedure for adversaries to call into question the motivations of any expert. The Supreme Court of Michigan in Michigan v. Tyson (46) ruled that a "prosecutor's statements ... to the effect that the defendant's psychiatric expert had testified only because he was paid to do so, was misconduct so prejudicial that it denied defendant a fair trial" (p. 745) ..."was not cured ... and therefore [we] reverse defendant's conviction" (p. 746). A Michigan appellate court in Shemman v. American Steamship Company (47) ruled that "improper innuendoes" about expert witnesses constitute a "studied purpose to prejudice the jury and divert the jurors' attention from the merits of the case" (p. 857). "Witnesses should not be subjected to personal attacks and unsubstantiated insinuations. Each party is entitled to present its case on the merits, free from remarks of opposing counsel which may prejudice the jury and divert its attention from the real issues" (p.858). The court then ruled that the "cumulative effect of the improper arguments and innuendoes ... was so highly prejudicial that we conclude defendant was denied a fair trial" (p. 859). When jurists recognize the serious impact of such implications on the effort to do justice, it cannot be that the claim these are mere opinions has merit or can be sustained. The New York State Human Rights Appeal board in Taormina v. Goodman (48) held, "For example, at one point counsel stated that one of defendant's experts was known in the community as 'here come Howie' and implied that he would offer any testimony which might be desired for a price ... We believe, that standing alone, the cumulative effect of these improper remarks would require a new trial" (p.352). In State v. Rosier (49), although the Supreme Court of North Carolina did not hold it to be prejudicial error, it did observe that an implication that an expert witness was paid "... did not imply that he would not testify truthfully" (p.359). Therefore, the remarks by the prosecutor were not prejudicial enough to warrant reversal. The Supreme Court of New Jersey in State v. Rose (50) reversed the death penalty because of the improprieties of the prosecutor during the opening and closing remarks in the sentencing phase. The remarks included implications that the expert was told by defense counsel how to testify. The Illinois appellate court in State v. Coulter (51) held that when the state attacks the honesty of defendant's expert witness, an attorney cannot insinuate that a witness is untruthful simply because he is paid by the opposing party. In Hunter v. Sukkar (52) the Illinois appellate court observed, "Illinois courts have taken a dim view of counsel impugning the integrity of physicians testifying as expert witnesses ... a parallel was suggested between the television character in 'Have Gun Will Travel' and the doctor who has 'medical testimony will travel.' ... These remarks ... were clearly improper. Counsel went beyond merely noting compensation and its implications as to his credibility, to suggesting that he was a professional witness ... and was a hired gun" (p. 777-778). The Supreme Court of Nevada in Sipsas v. State (53) went a bit further in determining that a prosecutor's remarks, even though defense counsel did not object, were "so prejudicial as to require court intervention sua sponte to protect the defendant's right to a fair trial (p.231 ) ... Notwithstanding the rules of professional conduct prescribed under Supreme Court Rule 188(4), the prosecutor expressed the following vituperative remarks during closing argument: 'Now that brings us to to [sic] Dr. Jindrich. The Hired Gun from Hot Tub Country. Have stethoscope, will travel ... I think Dr. Jindrich is a living example of Lincoln's law. You can fool all of the people enough of the time"' (p.234). The conviction for first degree murder and child abuse was reversed and a new trial required. The New York appellate court in Berkowitz et al. v. Marriott Corporation (54) mandated a new trial in an action for damages for personal injuries because of plaintiff's counsel's remarks "... in [an] unfair and highly prejudicial attack upon credibility and competence of defendants' expert witnesses ... were repeatedly depicted as 'hired guns' who were brought into litigation to 'fluff up the case"' (p. 511). The New York appellate court in Clark v. New York City Transit Authority (55) held that in attacking the testimony of the expert, trial counsel acted improperly as an unsworn witness when he said that the testimony of the witness was "'false, absolutely false, and misleading' ... It is error for trial counsel to bolster his case on summation by repeated accusations that witnesses on the other side are liars ... It is error for trial counsel to accuse medical experts, without supporting evidence, of being willing to testify for a fee ... 'is nothing but a paid expert who will say anything whatsoever without regard to what is right, without regard to what is truthful"' (p.222). The New York appellate court in People v. Rodriguez (56) censured the prosecutor for repeatedly resorting to ridicule and sarcasm in order to impeach the credibility of the defense's psychiatric expert witness. "Do you always diagnose people as crazy based on this type of guesswork, Doctor? ... Doctor, is it a symptom of some form of psychosis when a man can't answer a straightforward yes or no question? ... Let's hear it, Doctor. Run through your routine." The Florida Supreme Court in Nowitzke v. State (57) ruled that "It is improper to impeach an expert witness by eliciting from another witness what he thinks of that expert ... A trial should not be turned into a debate on irrelevant and immaterial issues such as the reputation of one expert witness as determined or judged by the personal opinion of another expert witness for the other side ... The introduction of Dr. Szasz' opinion was clearly erroneous. It also violated Nowitzke's constitutional right to confront witnesses" [Szasz was not a witness and was absent] (p.1352). The oft-quoted dictum "He may prosecute with earnestness and vigor — indeed, he should do so. But while he [the lawyer) may strike hard blows, he is not at liberty to strike foul ones" (58) expresses simply what should be the standard for dealing with expert witnesses. Anyone who willingly and voluntarily goes into the adversarial world of the courtroom can accept "hard blows but fair" and deal with it. That is not the problem. It is the foul blows that cannot be canceled or overcome. It is the untruthfulness that is spread about through gossip and through workshops and seminars and writing that cannot be countered or responded to in any effective manner that will have the effect of depriving defendants and litigants of adequate expert scientific assistance and thus deny them a fair trial. There should not be any greater latitude allowed outside the courtroom than in it. If falsehood and defamation are spread about outside the courtroom, it will find its way inside at some point. PREVENTIVE STEPS Experts are generally well aware of the nature of the impeachment attempts. We know, for example, that the National Center for the Prosecution of Child Abuse routinely provides materials to prosecutors and others about us. We know what is in the materials and what is likely to be used in attempts to discredit our testimony. We therefore have prepared a packet of information for the attorneys who retain us. We give the attorney the materials that are likely to be used in cross-examination along with suggestions as to how best to handle the questions. For example, in some 10 or 12 (out of some 250) cases, for a variety of reasons, the judge has not allowed us to testify. The opposing attorney routinely presents these cases as the basis for suggesting that we not be allowed to testify in the current case. When the attorney who retained us is aware of what is likely to happen, it is easier to respond to the attack. Judges and juries can be inoculated against information that is potentially damaging. This technique has been referred to as "stealing thunder" by Williams, Bourgeois, and Croyle (41). Stealing thunder is defined as revealing negative information about oneself before it is brought out by the opposing attorney. Mock jury studies by Williams et al. indicate that stealing thunder significantly reduces the impact of the negative information. For example, a psychologist who was censured by the Board of Psychology following a complaint by the "losing" parent in a custody dispute always carefully informs the attorney of the complaint and the specific circumstances surrounding it. He is then asked about it during direct examination, which defuses the information and removes the negative impact. Even if an expert has led a squeaky clean life, if he or she testifies frequently, files and materials will be accumulated and shared. Misleading information will be presented and writings taken out of context in the impeachment attempts. For example, at the request of conference organizers in the Netherlands, we posted on an e-mail network their brochure describing their upcoming conference. In the brochure was a statement that was critical of the child protection system. A few weeks later, in a trial in Maine, the assistant attorney general read this sentence and falsely represented it as being our statement and our opinion. Even with this preparation, not everything can be anticipated. Experts may be asked "yes" or "no" questions and not allowed to expand or explain, leaving a negative and false impression with judges and juries. Therefore, it is important to make certain the attorney who retains you understands the importance of giving full opportunity on redirect for explanations regarding impeachment material. As a preventive step we also suggest the development of a Motion in Limine to exclude use of the kinds of attacks often made on experts. The attorney retaining an expert can develop a specific motion based on the individual case and the experience of the expert in past trials and the impeachment material which is circulated among attorneys. REFERENCES
ABOUT THE AUTHORS Ralph Underwager, Ph.D. and Hollida Wakefield, M.A. are licensed psychologists at the Institute for Psychological Therapies in Northfield, Minnesota. They provide treatment to victims, families and perpetrators of child sexual abuse and have consulted or testified in cases of alleged sexual abuse in thirty-six states and several foreign countries. They have presented workshops and seminars on the topic and are the authors of Accusations of Child Sexual Abuse, published by C.C. Thomas in 1988, The Real World of Child Interrogations, published by C.C. Thomas in 1990, and Return of the Furies: An Investigation into Recovered Memory Therapy, published by Open Court in 1994. Copyright 1996 American Journal of Forensic Psychology, Volume 14, Issue 3. The Journal is a publication of the American College of Forensic Psychology, P.O. Box 5'870, Balboa Island, California 92662. |
