Top Federal Criminal Lawyer Michael Leonard continues discussion on examining expert witnesses in Federal criminal jury trials. We addressed the use of pre-trial motions in response to the government’s disclosure of expert witnesses in Federal criminal jury trials in a prior post. We now take a brief look at considerations for federal criminal defense counsel in preparing to voir dire and/or cross-examine the government’s expert witnesses at trial. First, attempt to obtain all – or at lest some – of the trial transcripts from the trials in which the government’s expert has previously testified. We have had some success in filing motions seeking the production of the portions of such trial transcripts containing the expert’s prior testimony – to the extent that the transcripts have already been written (transcribed), or are already in the possession of the government. We have not had success in getting Orders requiring the government to transcribe and obtain such transcripts – but where the transcripts already exist, it is usually a straightforward sell to the Court that such transcripts can and should be readily produced and that there is no burden associated with the request. Even if the government or the Courts does not make the production of such transcripts easy, defense counsel – with a bit of legwork – can obtain such transcripts directly from the court reporters These transcripts are significant for several reasons. As an initial matter, government expert witnesses tend to testify on a regular basis and say the same thing, again and again. Accordingly, there is probably no better primer for what the expert will testify to in your case than his/her prior testimony. Moreover, these experts, within those transcripts, are subject to a wide variety of cross-examinations that focus on or emphasize certain aspects of the expert’s testimony. So, defense counsel can sometimes find insight, and specifics questions, in those prior cross-examinations. Of course, it should go without saying, that those prior cross-examinations can provide impeachment fodder in your own case. Second, the writings of the expert can likewise be important by providing a roadmap to their likely testimony in your case, by providing the basis for admissions that can be obtained from the expert in your own case, and for use in impeachment. Such writings are not always readily available because they may appear in academic journals or they may have been created for seminars, conferences, or trainings. However, clearly all such materials should be in the possession or readily available to the expert. Defense counsel should make an informal request to the prosecution for their prompt production and, if that fails, a motion seeking to compel production should be filed. Third, another source of pre-trial cross-examination material that should be considered and pursued is the writings of other experts/peers in that expert’s field. The jury might find compelling that another expert who is considered a credible, respected, or leading source in that expert’s same field or discipline disagrees with the expert at issue in your case in some material respect, or espouses a position that is consistent with a material point or position that you are attempting to establish in your own case. In the next blog post, we will briefly discuss and address additional pre-trial preparation considerations for defense counsel in getting ready for voir dire or cross-examination of the government’s expert witnesses. In sum, it is always important for a defendant-client to select and retain as defense counsel a lawyer who has extensive experience in cross-examining expert witnesses at trial. Leonard Trial Lawyers has decades of that type of experience.
Michael Leonard
Leonard Trial Lawyers
October 18, 2023