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The murder trial of Wilson Santiago could cause Ohio to reconsider its controversial rule forbidding defendants from seeing all of the state’s evidence against them. Santiago is accused in the 2006 shooting death of Cleveland Detective Jonathan “A.J.” Schroeder. Defense lawyers want the police reports in order for sanity/trial competency expert witnesses to evaluate Santiago’s sanity and psychological competence to stand trial.

The prosecution argues that case law and the state’s court-procedure rules explicitly state that a defendant isn’t entitled to police reports but Common Pleas Judge Janet Burnside declared “Fundamental fairness compels the disclosure. The obvious means to protect a capital defendant in his trial is to provide copies of the police reports and witness statements to defense counsel so that they can be as prepared as their possible expert witnesses and can discern for themselves what exculpatory information is contained in those police reports,” she asserted, according to Cleveland.com.

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In Defense Medical Expert: Turning the Defense Advocate Into the Plaintiff’s Witness, R. Rex Paris advises on the cross-examination of a defense doctor. Paris writes that often the defense medical expert witness creates a “mountain of rubbish” which mesmerizes the jury. Because jurors do not have the benefit of court experience, they often become confused about the severity and/or cause of the client’s injuries.

The simplest way to handle this problem is by subpoenaing the defense doctor and calling them as an adverse witness. Any designated expert whose deposition was taken can be called as a witness by any party. (You have to pay them but it is worth it.)… It is essential that the defense doctor be discredited before the jury becomes convinced of their infallibility. In order to diffuse the defense doctor’s testimony, we must first recognize that we are afraid of the expert. We know that if the jury believes the defense expert, the best we can hope for is a lower verdict.

More to follow…
Excerpted from Consumer Attorneys of California, October 2007

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South Dakota Attorney General Larry Long has hired the firm of Stinson Morrison Hecker LLP to defend the state in a lawsuit over the school-aid formula. Long described the case as countering education and schools expert witnesses from the parents and schools challenging the adequacy of the state-aid formula. “There are these pods of experts who go around the country assisting people who bring lawsuits in these matters,” Long said. “This firm has experience in dealing with those experts and defending states in these kinds of cases.” ArgusLeader.com also reports:

Long said the firm was brought to the case because of its experience in handling similar lawsuits in other states. The firm will help examine and cross-examine expert witnesses in the case, he said. Most recently, the firm worked with state officials in Missouri in a school-funding case, and the state won that case, Long said.

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Ex-drill instructor Sgt. Jerrod Glass is standing trial in military court for allegedly hitting, slapping, and abusing dozens of recruits. Expert witness Gunnery Sgt. Rogerio De Leon, one of the depot’s most experienced drill instructors, testified that even “incentive training” has strict guidelines. The military expert witness said recruits in the first weeks of training can be ordered to do push-ups as incentive training for only three minutes at a time, followed by a 30-second break. The prosecution argued that Glass treated Marine canines better than soldiers. LA Times.com also writes:

Gunnery Sgt. James Cobb, who was kennel master at the Marine Corps Recruit Depot here when Glass was assistant kennel master, testified as a dogs expert witness that Glass followed one of the cardinal rules of dog-handling: Never hit a dog…’Are you trying to argue that he treated his dogs better than his recruits?’ (defense attorney) Meeks asked in an angry tone. ‘Yes,’ said Capt. Christian Pappas, the prosecutor.

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In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on planning ahead when drafing confidentiality / protective orders.

Confidentality / protective orders take many forms. In their most extreme, but not uncommon, incarnation, CPOs must be signed by every individual working on the team (expert and support staff alike) and must be sent to the other side for approval. Such an arrangement has several drawbacks. First, it requires you to disclose your experts (testifying and consulting) and support team long before expert reports are due. In addition, it creates delay and coordination costs that are often burdensome and can slow the process at critical times (e.g. when auditing must be completed quickly and requires additional “fresh eyes”, to review statistical programs and exhibits). A convenient way to proceed is to have the CPOs require signatures from one representative per entity, rather than every member of the team, though this approach must be balanced aganist the value of knowing the size of the opposing group.

Excerpted from the ABA Expert Witness Alert, Summer/Fall 2007

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Jamaican expert witness Fitzmore Coates testified Thursday at the inquest into the death of ex-Pakistan cricket coach Bob Woolmer. Woolmer, 58, was found unconscious in his Kingston hotel room on March 18 and Coates, acting chief forensic officer at the Government Forensic Science Laboratory, said tests showed traces of the potentially deadly pesticide cypermethrin. The toxicology expert witness said 3.4 milligrams per millilitre of the deadly pesticide was found in Woolmer’s stomach. “The final calculation of cypermethrin in the stomach content which I analyzed would be significant. It could cause vomiting, diarrhea, nausea and death,” Coates. He also found cypermethrin in samples of blood and urine taken from Woolmer and the substance was also seen in a straw-coloured liquid taken from Woolmer’s room at the Jamaica Pegasus Hotel. AFP.com also reports:

Last month, the government’s pathology expert witness Dr. Ere Sheshiah, who performed the post-mortem in Woolmer’s body, told the court the cause of death was “asphyxia, associated with cypermethrin poisoning.”

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On Wednesday the US Court of Appeals 4th District ruled against a West Virginia coal company with a yearly capacity of one million tons in Sewell Coal Company v. Gerald Triplett, 2007 U.S. App. LEXIS 25921. Triplett had been awarded black lung benefits in 2006 by the Benefits Review Board of the Department of Labor. Sewell argued that Triplett had an 18-pack year smoking history and that pneumoconiosis substantially contributed to his disability.

The Board had found pulmonary medicine expert witness Dr. Ramussen’s testimony persuasive in the case. Rasmussen reviewed Triplett’s x-rays, pulmonary function studies, arterial blood gas studies, medical records, and earlier expert witnesses’ reports. He concluded that Triplett’s pulmonary impairment is severe, disabling, and attributable to coal mine dust exposure. Dr. Rasmussen also noted that coal mine dust exposure can produce chronic obstructive lung disease including bronchitis and emphysema. Thus, he explained that it was completely impossible to exclude coal mine dust exposure as a major contributing factor to Triplett’s disability.

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Eight marine science expert witnesses were called to testify before the Congressional Subcommittee hearing at UC Santa Barbara on Saturday. The expert witnesses spoke before the Subcommittee on Fisheries, Wildlife, and Oceans at a field hearing that was the first of several the subcommittee expects to hold in various parts of the nation before introducing a bill to re-authorize the National Marine Sanctuary Program (NMSP). SantaBarbaraIndependent.com also wrote:

Witnesses told the subcommittee that the NMSP’s mission needed to be clearly defined as resource management primarily, and that the sanctuaries need more money for research and monitoring. They said that sanctuary managers needed the authority to more easily declare portions of the sanctuaries off-limits to fishing, in order to replenish diminishing species and the ecosystems of which they are part. They all agreed…that the Bush administration’s de facto moratorium on declaring new sanctuaries, by withholding money, needs to be lifted.

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In Utilizing Experts In An Expert Way, Kelli Hinson and Tesa Hinkley describe the crucial role expert witnesses have at trial and give advice on how best to use them. In this excerpt, Hinson and Hinkley give tips on how to agree with opposing parties on what is discoverable.

Judicial rulings on discoverability remain in flux. Given the uncertainty of this environment, agreement with the opposing parties on document discoverability will result in clearer testimony and reduced costs as the process is streamlined. For example, you might agree not to produce draft reports and to limit discovery to material ‘relied upon’ rather than merely ‘considered’ by the testifying expert. In the absence of such argreement, careful document management including emails and voice mails (which are now often digital files similar to emails) will avoid confusion as well as lengthy and expensive e-discovery.

Excerpted from the ABA Expert Witness Alert, Summer/Fall 2007

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In All Things Jury: Jury research as standard practice? R. Robert Samples discusses due diligence and preparation as the the most important responsibility that counsel owes to his or her client. Samples writes:

Law firms don’t hesitate to bring in an expert witness if they believe their testimony is crucial to winning the case. The hiring of expert witnesses is routine and accepted, and it is understood that the cost will be passed along to the client. If counsel is asked if failure to contract with a qualified expert witness could result in legal malpractice, the answer would be a resounding “Absolutely!” However, law firms and their clients may not be as accepting of the need for jury or trial research (nor the cost associated with conducting the research)…

Obviously, the services of jury/trial consultants are not essential in all cases. But as the complexity of the case, and exposure to damages increases, the need for trial research becomes more pronounced. In these cases, the types of trial research services that jury consultants provide becomes part of the counsel’s due diligence to ensure adequate representation of his/her client.

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