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October 01, 2023 Mental Health

Mining the Opposing Expert’s Writings When Preparing for Cross-Examination

Eric Y. Drogin

This column’s initial entry contemplated what limitations may exist when there is “little or nothing new to say” concerning certain medicolegal issues. Sometimes, however, counsel is more than happy to dwell on the past—particularly when reviewing prior writings by an opposing expert. Let’s examine how a prosecutor might consult with a reputable forensic mental health professional when the time comes to lead a search party down Memory Lane.

Prosecutor: I need to talk to you about a particularly bad report.

Doctor: Is that because the judge won’t give you enough money for me to write a good one for you? Or are you talking about one that I already wrote?

Prosecutor: Neither. Your reports are always good.

Doctor: My well-honed clinical skills are telling me that I’m about to be asked for a favor.

Prosecutor: Au contraire! I’m so awash with funding in this case that the only favor you’d be granting me is your willingness to be bumped up into a higher tax bracket.

Doctor: To say “I’m listening” would be putting it mildly. How much will I … well, how can I help you?

Prosecutor: Do you know a Dr. Blake Schultz?

Doctor: Dr. Schultz was my professor for “Introduction to Forensic Mental Health Evaluations.”

Prosecutor: Would that prevent you from serving as my trial consultant on how to prepare a cross-examination of this particular expert witness?

Doctor: Are you kidding? Dr. Schultz gave me a C-minus in that class, so deal me in. Why do you think the report is so bad?

Prosecutor: Because it’s so good.

Doctor: See? The apple doesn’t fall far from the tree.

Prosecutor: Then what explains the C-minus?

Doctor: Some people just don’t test well. Especially when they didn’t read the book that was assigned for the class.

Prosecutor: But you always do such a thorough job of reviewing records.

Doctor: You could say I learned the hard way.

Prosecutor: Are you in front of your computer?

Doctor: I’m awake, so the answer is “yes.”

Prosecutor: Then let me just type in your address … good. Here comes a copy of that report.

Doctor: Here it is! Let’s see. Hmm … right … well … yes. Pretty bad.

Prosecutor: As in …

Doctor:…as in very, very good. This one could go in one of Dr. Shultz’s books.

Prosecutor: At least now you could afford it.

Doctor: I wouldn’t really have a choice. A few of them are considered foundational texts that we’re all supposed to have.

Prosecutor: Well, what am I supposed to do now? If Dr. Schultz is that much of an authority and the report is that good, am I just wasting everyone’s time by mounting a serious challenge?

Doctor: You could always harp on how much money this expert is making. I’m sure someone in Dr. Schultz’s position is expensive.

Prosecutor: Yes, but remember that in this case you are too … and I don’t expect to get anywhere challenging my opponent on strictly scientific issues. Why did Dr. Schultz have to write so many books, anyway?

Doctor: Maybe this is the question you can have Dr. Schultz asking once the hearing is over.

Prosecutor: How so?

Doctor: Do you have any other examples of this expert’s reports?

Prosecutor: Absolutely! I had other prosecutors send me copies as soon as I got this one.

Doctor: Are they all the same?

Prosecutor: I wish. I’ve got a series of questions that have worked fairly well for me over the years, when I show that a doctor tends to use the same tired old template and just substitutes one defendant’s name for another.

Doctor: That would be good, but the opposite can be good too when an expert has written instructional books on the subject. Let’s have a look at what tests were used in this case.

Prosecutor: The Wechsler Adult Intelligence Scale, the Test of Memory Malingering, the Wide Range Achievement Test, and the Peabody Picture Vocabulary Test.

Doctor: Right. No personality testing?

Prosecutor: That didn’t faze me. A lot of defense experts don’t use, like, the Minnesota Multiphasic Personality Inventory because it has a lot of questions in it that they don’t like to address on the stand.

Doctor: Fine, but according to Dr. Schultz, on page 33 of the latest edition of Criminal Forensic Assessment: A Comprehensive Guide, “personality testing is a critically important source of information in these evaluations.”

Prosecutor: Now you’re talking! If these tests are so important, then why weren’t they used in this case?

Doctor: Maybe there is a reason. For example, based on these results, one could argue that the defendant didn’t have the requisite reading level, although it’s a close call.

Prosecutor: What if the expert points this out?

Doctor: That’s fine, but it doesn’t change the fact that personality testing is described as “a critically important source of information.” Even if there was a good reason for not conducting it, Dr. Schultz would ultimately have to admit that the database for this report is lacking.

Prosecutor: So, I can say, “Doctor, I see that on page 33 of your book you said such and such, but now you don’t have the very substantiation upon which you hope to rely.”

Doctor: That’s where you might ultimately find yourselves, but I don’t know that you need to hand your adversary a copy of the map when the journey is just beginning. There’s no reason to assume that Dr. Schultz remembers writing this particular passage at all.

Prosecutor: Really? It’s risky business to assume that I know experts’ books better than the experts themselves.

Doctor: The latest edition of this particular book came out six years ago. I’m looking on Amazon now and I’m seeing that Dr. Schultz has at least three other books on this topic.

Prosecutor: Interesting. What if they contradict each other in any way, on this topic or any other?

Doctor: You’ll want to know. Getting back to the personality testing notion, you can point out that none was performed, and then ask if there are any “learned treatises” that call for it. If Dr. Schultz recalls writing the passage in question, there’s your jumping-off point … and think how much fun it would be if in the alternative the witness doesn’t remember writing it!

Prosecutor: If that happens—with a report, for example—I always enjoy handing them a copy of the work in question and asking them to find it themselves.

Doctor: Precisely, and this isn’t the only use for these books as props. I’ve written a couple myself, and there are few things as uncomfortable and distracting as sitting on the witness stand during direct examination and watching opposing counsel is excitedly underlining passages and moving post-it notes around in reaction to my answers.

Prosecutor: I’m clicking “add to cart” as we speak ...

Our readers were also promised a “balanced approach,” so here goes: Defense counsel is well-advised to inquire of one’s own experts what they may have written on a given topic and how stated positions may have evolved over time.

Please feel encouraged to contact Dr. Drogin with any questions about expert witness publications, or with any suggestions for future topics.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Eric Y. Drogin

Harvard Medical School

Eric Y. Drogin is a board-certified forensic psychologist and attorney on the faculty of the Harvard Medical School, where he serves as the Affiliated Lead of Psycholegal Studies for the Psychiatry, Law, and Society Program at Brigham and Women’s Hospital and participates in the Program in Psychiatry and the Law at the Massachusetts Mental Health Center and the Forensic Psychiatry Service at Beth Israel Deaconess Medical Center.