Attacking Independent Medical Examination Expert Witnesses Part 3

In Voir Dire Of Scientific Opinion At Trial: Attacking The Expert Witness, Before He’s Declared An Expert, attorney Anthony Colleluori writes on what he calls “the lack of attack on prosecution experts” in criminal trials that involve IME expert witnesses and police personnel.

B. What kind of expert do we need? Consultants v. Testimonial experts.

This may seem like an easy question. If it is a Murder case, then you need a coroner right? Maybe if there is a gun shot we need an expert in gun shot residue or if drugs then toxicology. Well, that is only partially correct. First thing I want is a consultant. I am looking for a person who has run not just scientific investigations but also taken them apart. I also want a person who knows something about the other guy’s experts. Why not let him testify?

Because as Safir points out in his article, the notes I get from him, and the notes I take, are NOT subject to discovery under either Rosario or in Federal court Jenks. These documents and notes are part of the Attorney’s work product. Hence I can use my consultant to inform me, and help prep my testimonial expert! (A caveat: If your testimonial expert uses materials from your consultant, those materials he relies on are discoverable.)

I usually look for a consultant with a knowledge of the field, a good track record at trial, and someone who the prosecution knows well, and who knows them just as well. Why? Because he or she will have inside dirt I can toss at the other side’s expert.

In a recent trial, I learned that one of the medical experts was not a member of any forensic expert society and was not board certified. Another so called expert was only a provisional member of the Society that oversaw his area of expertise. I was able to use both of these pieces of information to attack the experts. I demolished the first guy on summation and kept the second from even being allowed to give an opinion. I doubt I would have gotten that information from some nationally known expert who knows his stuff about the science but not about the labs with which I am dealing.

Excerpted from Long Island (Criminal) Trial Law.