Читать книгу False Allegations Of Child Sexual Abuse - Edward Nichols - Страница 9

[8] The expert able to explain complicated concepts with simple language will prevail over the expert with an impressive pedigree and a complicated manner.

Unlike many other types of cases, the key to effective expert testimony is the expert's ability to "educate" the court. In most cases experts are called to render "opinions" in very complicated matters. For example, in a medical negligence case a neurosurgeon is called to explain a particular part of a surgical procedure and to render an opinion as to "generally accepted practice". No one in the courtroom possesses the technical background, or often the interest, to understand the intricacies of the surgeon's testimony.

Not surprisingly, the seventy-year-old professor of neurosurgery from the Ivy League University Medical Center is "more believable" than the thirty-five-year-old surgeon who is now a forensic expert because he lost his license to practice medicine last year.

In the area of the sexual abuse of children, the believability of an "expert" is based on entirely different criteria. First of all, the trier of fact usually has experience with: children, sexuality, sexual urges, and liars. By contrast, experience in neurosurgery belongs to a small club. Second, the source of "expertise" in the area of child sexual abuse is different than the sources of other expertise. By way of illustration, if you were looking for an expert to testify as to a medical matter, you would expect to find such witnesses working in a hospital. Better yet, you might find an expert who trains physicians. If your case involved an allegation of "pilot error", you might expect to find expert witnesses employed as pilots by commercial airlines, or better yet, an instructor of airline pilots.

By extension, the average person believes that the "experts" in the field of child sexual abuse are to be found in child protection agencies. After all, they work in the area every day! The reality is startling. In most jurisdictions these public agencies are exempt from educational requirements and licensing provisions. (How else could you fill these low paying positions?) Formal college education, if any, is often in unrelated fields. It is a sad reality that protective caseworkers, with rare exception, are the poorest trained staff in the child abuse industry.

Over the last twenty years this reality has reached the public's eyes despite vigorous campaigns to keep the public blinded by the "child abuse hysteria". In response to the public's outcry to these realities, these agencies have begun to hire credentialed employees who may hold graduate degrees. They often have little contact with actual agency operations, but regularly find their way into court. Another method in current usage is to "refer" each allegedly abused child to a "validator", i.e., an expert whose full-time private practice consists of "validating" every case referred. (Calling an impartial evaluator a "validator" is the equivalent of calling a judge a "convictor").

Though the public may feel otherwise, the least knowledgeable practitioners have the greatest impact on the court. That is why your expert must be able to "educate" the court as to the nature of his expertise (experience and training) and lead the court, step by step, to understand his conclusions. He must be able to explain the research in simple, relevant terms. He must lead the court to form their own conclusion, which, not surprisingly, is the same as his.

[9] When cross-examining an adverse expert, the only safe question to ask is one that your expert will answer to the benefit of your client.

Attempting to predict the response of the protective caseworker, her supervisor, or the agency "validator" is a waste of time. There is no one body of knowledge that you can reasonably expect them to draw from. There is no "standard of practice" that you can expect them to adhere to.

If before a judge in a domestic court, it's a safe bet that the judge "likes" the worker. Agencies regularly transfer workers who have alienated judges. If before a jury on a criminal matter, the worker's responses may be so "spacey" or convoluted that the jury will probably think the testimony is over their heads. The art is in "opening doors" through cross-examination that are later closed by your expert's testimony.

Thus, the best possible response from the adverse expert witness is: "I don't know," or "I didn't ask," etc. Since these witnesses are notorious for creating facts and theories on the spot, your questions need to be very specific and well planned. A question like, "Did you know my client was in the military?" might bring the response: "Oh yes, I understand that's where he first began having homosexual relationships". (You might follow this up to find out that this remark was made on the basis of unreliable hearsay, her response however, did not help you.) A better approach might be: "Did you examine page three of my client's military record and note in your report that he received a Silver Star while in the military?"

The same holds true for any questions regarding motivation or theory. For example, a question such as, "Isn't it true that many children who are sexually abused exhibit guilt and shame and have low self-esteem, while your report states that little Mary is an 'outgoing, spontaneous child with good self-esteem'?" may result in, "Oh, yes, this is of course more evidence that Mary is on the road to recovery by virtue of the fact that she has been allowed to speak of the incest and confront her child molesting father!" This scores few points. A more useful approach would be: (Referring to the report) Q. "Isn't it true in the second paragraph on page three you wrote, 'This is an outgoing, spontaneous child with good self-esteem'?" A. "Yes." (Approaching witness with a report in hand) Q. "Do you know who David Finkelhor is?" A. "I think he's a researcher, I've heard the name." Q. "Do you know where he works?" A. "No." Q. "How about Angela Browne?" A. "I don't know who she is." Q. "Would it surprise you to learn that Drs. Finkelhor and Browne work for the Family Violence Research Program at the University of New Hampshire?" A. "I don't know where they work." Q. "Do you have a clue as to what they said about the likelihood of an 'outgoing, spontaneous child with good self-esteem' actually being the victim of sexual abuse?" A. "No, I don't." Stop while you're ahead!

This whole line of questioning is designed to "open the door" since you know that your expert will answer these questions for the court. Good cross-examination of these experts involves arousing the curiosity of your audience and making way for your "educator"!

[10] The "reasoned and seasoned" expert will be more persuasive than the "hired gun" of any extreme.

After a decade of participating in and observing civil and criminal cases involving allegations of the sexual abuse of children, I am convinced that both juries and judges know a "hired gun" when they see one. It is my considered opinion that only the attorney who hires the "hired gun" is substantially persuaded by him.

The hallmark of the "hired gun" is his extreme position: "Children never lie and there is a pedophile under every rock!" vs. "Children can never be trusted to tell the truth and most allegations of false abuse are created by demented feminists!"

Judges and juries know that children mostly tell the truth but sometimes lie; that young children often do not know the difference between reality and fantasy; that incest is as old as history but our society today may be a bit hyper-vigilant; and that no pedigreed "expert" is going to suspend their common sense.

The "reasoned and seasoned" expert will persuade by virtue of the manner and content of his presentation, he will be, above all, an "educator": He will not attempt to demonstrate that he speaks directly to God; but rather, he will demonstrate that he is intimately familiar with leading researchers and their current work. He will not present a background that demonstrates that he is out to rid the world "evil accusers" and their "lying little brats"; but rather, he is presented as one who has worked with incest victims, incest perpetrators and those who have suffered as a result of false allegations. And perhaps most importantly, (whether testifying as to his evaluation or answering hypothetical questions) he will not pronounce his conclusions as the most learned sage to grace Podunk, Montana in years; but rather, he will artfully lead the court to his conclusions without necessarily stating them directly.

It has been my experience that many "hired gun" experts are very impressed with themselves and this permeates their testimony. While it is indeed very flattering to be considered an "expert" at anything, and while the fees paid to experts may also be equally flattering; it is my belief that the effective "reasoned and seasoned" expert better serves his client by conveying an attitude of humility (only if it's sincere). Similarly, if an expert believes that he has been hired to help the court to perform a difficult job, he is more likely to convey a positive, friendly demeanor to the court. While experts need to prepare their testimony very carefully with their client-attorney, one never knows what might be the strategy under cross-examination. Here attitude counts for a lot.

I remember well a case in a southern jurisdiction of West Virginia. It was a criminal case and I was called by the defense to testify to a series of hypothetical questions which, according to many accounts, resulted in the defendant's acquittal. The prosecutor began his cross-examination by going over each and every entry on my curriculum vitae, which had been previously presented during the qualification process. His presentation was sarcastic and nasty: "And so you say you graduated Queens College and not only majored in psychology but also majored in sociology, now that's what you say, isn't it Mr. Nichols?" etc., etc. He continued this for about ten minutes building to a crescendo. And then he dropped the bombshell (in his mind): "Frankly, Mr. Nichols, this is what you are telling the court, but frankly, you simply don't look old enough to have done all these things?" My reply?: "Well thank you sir, it is very kind of you to say that." The judge and jury broke out into laughter, the prosecutor was visibly flustered, and my belief in the importance of attitude was confirmed.

While on the subject of "hired guns", there is a perception that if you pay an expert enough he will say anything you want to hear. The extremist view of many experts confirms this suspicion, and I suspect, there are some who engage in this unethical practice. To my knowledge, I have never provided testimony that I believed was assisting a child abuser. My standard engagement agreement provides that I may withdraw from any case wherein this becomes my opinion. This is a rather standard procedure among forensic experts in this area.

What is more common, however, is for the "hired gun" to engage in very creative "spin artistry" wherein he more resembles an "advocate" than a reporter of fact and opinion based upon his training and experience. Judges and juries know what "advocates" are by virtue of listening to attorneys. The expert who is hired to engage in this practice is a poor investment.

The "reasoned and seasoned" expert will put to the court, in simple language, the research and state-of-the-art "practice wisdom". He will be appreciated and believed.