Criminal Justice Section
Criminal Justice Magazine
Volume 18 Number 4
Experts: No Place Like Home
Richard A. Ginkowski
Richard A. Ginkowski is a state prosecutor in Kenosha, Wisconsin, and a past-chair and current member of the editorial board of Criminal Justice magazine. If you have practice-related tips you’d like to share, contact the author at firstname.lastname@example.org.
Reality check: The “awesome power and resources of the state” touted by many defense attorneys are usually an illusion.
More often than not, prosecutors struggle with increasing caseloads, stagnant budgets, and more demands for services in an environment attuned to seeing cases solved and prosecuted on television within 60 minutes, minus commercials. Trial preparation in these difficult times strains budgets and challenges creativity.
When the opposition drops the eleventh-hour bombshell that it’s lined up an expert witness who may blow your case out of the water, it’s usually a mad scramble to find expert assistance. Knowing how to find help quickly and inexpensively could mean the difference in the outcome of your case.
A frequently overlooked option is to investigate resources that may–literally—be found in your own neighborhood.
When I was a rural prosecutor, I learned that the local pediatrician also was a pediatric resident at an urban hospital. I also discovered that several of his colleagues who worked in nearby satellite clinics had similar experience. All of them considered it their professional responsibility to testify.
When we had alcohol-related cases that involved the local emergency room, most ER physicians were more than willing to offer their professional opinions as to sobriety—or lack thereof. (What better evidence than one of the local doctors telling a jury that the defendant was “significantly inebriated”?)
During a jury trial, a defendant claimed he was beaten and injured by the arresting officers. The primary rebuttal witness was a jail booking clerk who did a medical interview of the defendant following his arrest, during which the defendant neither claimed nor displayed injuries. That booking clerk happened to be a moonlighting nurse who brought to court a “mug shot” she had taken of the defendant that showed no injuries.
In my very first jury trial 22 years ago—a drunk-driving case—the defense counsel’s assault on the Breathalyzer was pummeled in rebuttal by the instrument’s operator—a deputy sheriff who looked older than Moses, but, unbeknownst to either attorney, for many years had been the maintenance technician for all Breathalyzers in the region.
How do you find these experts?
The deputy sheriff and booking clerk were mostly good luck. Barring this, many colleges and universities have an “experts directory” listing faculty and staff by areas of expertise. This information is often furnished to the news media, so it shouldn’t be too difficult to find through the school’s public affairs office. Sometimes it may even be posted on the school’s Web site. If you can’t locate this type of list, call the department chair. If one of these folks can’t be of assistance, chances are they’ll be able to give you appropriate referrals.
Also, it never hurts to ask—and to listen. During your everyday dealings with professionals in your community, talk to them. Get to know them. Find out where they went to school, what they studied, what are their hobbies and employment backgrounds. What you learn in these one-on-one conversations may surprise you (such as the accountant who was also a musician and guitar collector and able to offer an opinion as to the value of a stolen Gibson guitar). The expert you need might be around the corner.
Law enforcement officers are overlooked resources. Increasing racial and ethnic diversity and better training now means officers often can help assess your case. It’s not uncommon now that some officers are certified accident reconstructionists—and may have been qualified as such in prior court cases. I’ve seen officers whose prior or part-time jobs run the gamut from tree surgeon to mortician. Again, ask around.
In this high-tech age, the nearest available computer geek might turn out to be a high school student. It’s not unprecedented for law enforcement officers to tap onetime hackers for help in certain cases, and there’s no reason why attorneys can’t as well.
What if an expert isn’t readily available—or feasible?
Get familiar with the libraries at the nearby university or medical school. Brush up on your research skills. You may find the information you need in textbooks or journals that, depending on the circumstances, could be admitted as “learned treatises.” Or perhaps this information simply could assist you in your cross-examination of an opponent’s witness. (I once transformed a defense eyewitness identification and memory expert into a prosecution witness using cross-examination questions I formulated after rereading my undergraduate psychology texts.)
These days, learning how to find information on the Internet is essential. Search engines such as Yahoo!, Google, and Findlaw are good places to start. ( See www.yahoo.com; www.google.com; www.findlaw.com.)
Occasionally, weather conditions—such as whether pavement was dry or icy or whether it was light or dark outside—will play a role in your case. You can order climate data online from www.ncdc.noaa.gov for a very modest fee (usually less than $10 including certification). I’ve used this resource with great success.
Internet research may also lead you to similar cases and the attorneys who handled them. (IMHO—computer talk for “in my humble opinion”—a law firm today without Internet access treads the fine line of malpractice.)
This cost-saving solution comes with one caveat: Make sure you thoroughly research your expert’s credentials and track record. I know of one “expert” who marketed heavily to defense attorneys in my region and was later found to have left a state job under “curious” circumstances. Now these lawyers have boxes of trial transcripts of their “expert’s” conflicting testimony.