Responding to Improper and Abusive Impeachment Efforts
Ralph 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
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
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).
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).
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.
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.
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
described the result of this separation:
The major thrust of APA [American Psychological
Association] policy has been to convince the American public that its
practicing members have a special expertise and power that simply
doesn't exist ... And the willingness of psychologists, without facing
APA sanctions, to hypothesize in court settings child abuse in the
absence of physical evidence but on the basis of interviews, unvalidated
tests, and tests that have been shown to be invalid is appalling.
one thing to push for professional status and income based on true
expertise. Doing so in the absence of evidence for such expertise
the face of evidence that it does not exist is socially fraudulent (p.
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
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:
It is not a tribute to one's scientific integrity to
walk down the middle of the road if the data are more to one side.
hope to show, the data are somewhat off center (p.18).
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
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).
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
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
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.
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.
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
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).
(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
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).
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
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
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"
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.
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"'
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.
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.
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
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.
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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.
Correspondence should be addressed to Ralph Underwager,
Institute for Psychological Therapies
, 5263 130th Street East
, Northfield, MN 55057-4880
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.