After the Webinar: Preparing for Trial – What Witnesses and Experts Need to Know. Q&A with Jake Kamins

Webinar presenter Jake Kamins answered a number of your questions after his presentation, Preparing for Trial: What Witnesses and Experts Need to Know. Here are just a few of his responses.

Audience Question: I know the context of today’s presentation was primarily for the animal welfare and animal cruelty community but, could the basic concepts of how to be a good witness or how to be a good expert witness could be applied to just about any kind of case?

Jake Kamins: That’s absolutely true. I come at it from a perspective of trying to bring folks from animal welfare and animal control and animal services in to understand these precepts. But, I think if you are somebody who’s not typically involved in the criminal justice system, pretty much everything that I said applies to you as well. The only exception I’d say is if you’ve got a civil matter brewing, talk to your attorney about what they want you to do. The difference is you may have different ways of engaging with/practicing the testimony that you’re going to give. For that purpose it’s different, but anybody in a criminal trial, absolutely you can follow these concepts.

Audience Question: So, when you said just kind of piggybacking on what you just said, should we be expecting the prosecutor to follow up with us and schedule a time to go over the testimony to practice all that kind of thing? Or, yeah, prosecutors are busy people too, should we wait for them, or should we be contacting the prosecutors?

Jake Kamins: I would say that you should be contacting them. I would say especially in larger jurisdictions, places with a higher population, a Prosecutor is not going to have time to go through and call each and every witness on each and every case. When I was working in the Multnomah County District Attorney’s Office here in Portland on the misdemeanor docket, we very often wouldn’t even meet our witnesses until the morning of trial when they rolled into the courthouse. And that was just a sort of a feature of the system. I think if you have concerns about testifying, if you’re nervous, if you have any questions about what it is you’re going to be asked to do, you should talk to the prosecutor in advance. It might be that you have to play some phone tag. It might be that you have to adjust your schedule to meet with theirs, but it’s definitely worth it, especially if you’re concerned about how it’s going to go.

JCH: You had talked that when you pose a question as the prosecutor, that you’re standing over by the jury and those witnesses, more or less answering your question, but they’re talking also to the jury at that time. When the defense attorney poses a question to you during testimony, should you be looking at the defense attorney, or should you look at the jury?

Jake Kamins: Yeah, that’s an interesting question, I think, is the best practice would probably be to do it the same. You don’t want to seem like you’re being confrontational with the defense attorney or treating them any differently. If you’re answering questions very deliberately from the prosecutor to the jury, and then all of a sudden, the defense attorneys asking you questions, and you’re answering those to the defense attorney, it might look a little weird. Leading questions are kind of hard. It’s hard to direct your attention to another person just to say, “Yes” or “No.” But, to the degree that you’re explaining something, or talking something through, I think it is a good practice to talk to the fact finder. There’s a jury instruction that says, “Lawyer’s questions are not evidence.” On the other hand, what comes out of your mouth while you’re on the witness stand is evidence. So, that’s why it’s important to direct that information to the fact finder.

Audience Question: Jake, do you have a sense of how many prosecutors are out there who specialize in animal cruelty cases? I know in thinking about this question, I know there’s a special prosecutor. I think, in Georgia, there’s of course, the Special Assistant and the Virginia Attorney General’s office. But are there others like you in the US, as well?

Jake Kamins: I think what I would say is that there is just that handful that do it full time. There are definitely bigger prosecutor’s offices, I know the Los Angeles County has a unit that deals with all their animal cruelty. But those folks very typically also have a caseload of other cases. Here in Portland, we have a really, really seasoned prosecutor who handles all the cases for Multnomah County, Nicole Harris, but she also has vehicular manslaughter cases and gang shooting cases. So, it’s not her sole focus, but she does have it as part of her portfolio, so to speak.

Audience Question: So then when an animal welfare agency has a situation, are they contacting you directly, or do they go through their local prosecutor? And then that prosecutor contacts you, how does that work?

Jake Kamins: It depends on the county. I only work in Oregon. There are a lot of counties where I’ve established something of a residency in terms of, they bring most or almost all of their animal cases to me. Or I am “on-call” for their animal cruelty investigators if something happens. If you are in Oregon, and you’re not sure where you fall in that spectrum, contact me and I will tell you! I’m happy for the work, but I don’t want to step on any prosecutor’s toes. Obviously, I only act at the discretion of the local prosecutors, there are counties where it works both ways.

Audience Question: How is being an expert established in the court? Do we bring our training records? Do we bring our resume or CV? What do we bring?

Jake Kamins: One thing, is: Try not to bring anything that you haven’t already provided to the prosecutor’s office. I mean, it’s fine to do. But be ready for that question of, “Why haven’t I seen this before today?” Definitely a good idea for people who think they might be qualified as an expert witness to provide the prosecution with their updated CV that talks about their training and experience. That could qualify them to be an “expert witness.” As to the question of how an expert is qualified, it really depends on the judge. A lot of judges will be very lenient about it. They will understand that your average veterinarian or veterinary technician has gone through X amount of training and classes to learn about veterinary science and has done the work. But some judges might be a little bit more stringent on it. Certainly, defense attorneys will have something to say about it if somebody starts testifying as an expert without, to their view, qualifying themselves as an expert. The best answer to your question, I think, is to be prepared to answer questions about your training and experience with specifics. If you are, then I think your road to being determined to be an expert and being able to answer those expert witness questions will be fairly easy.

Audience Question: Jake, you talked about referring to our reports while were testifying. Can we also refer to any personal notes that we might have made in our notebooks or anything like that?

Jake Kamins: It depends. If you have written personal notes and they are related to this case, you should not think of them as personal notes. Those are case notes and they must be disclosed in advance of the trial in one form or another. It would be a very bad situation if you had notes on the stand, even if it’s in your handwriting, even if it’s something that you thought to yourself and just jotted down so you’d remember later, and the defense attorney hasn’t gotten a copy of that prior to trial. One way you can do this is to incorporate all of your hand-written notes into your final typed report. The other option is to turn over your written notes to the prosecutor so that they can then turn those over to the defense attorney. And then you can use those to refresh your memory. I would say, if you have something on the stand that nobody’s seen, that’s when it crosses into a problem. And so, even when you’re preparing for trial, if you’re rereading your reports, you know, a highlighter is fine, because a highlighter doesn’t change the character of the report that you’re reading. It doesn’t add anything to it. But if you’re scribbling notes like, “Oh yeah and also remember to mention this,” and it’s not otherwise included in your report, that’s when you’re going to get in trouble. But if you are reviewing your reports and you find something like that, just turn it over after you’ve written it. That’s the easiest way to do it and then you can scribble away.

Audience Question: Should we refer to the animal as the victim or the dog, or should we refer to it by its name Fluffy?

Jake Kamins: That’s a great question. It will depend on your jurisdiction if you’re even allowed to refer to an animal as a victim. We had a case pretty recently here in Oregon, where there were victims of a sex abuse defendant, although the crimes that he committed against them happened too long ago for the statute of limitations. But those people were allowed to testify at trial about their experiences in a case dealing with a different victim. And then a detective got up on the stand and referred to the uncharged victims as “victims.” This ended up being a whole thing and the case was overturned because of those references to “victims.” Now, I would check with your prosecutor’s office, as always. Generally, what they’re going to want in the court is you to refer to things with generic terms. So, if you have a dog and you don’t know its name, it’s, “The dog.” If you have a dog and you know what breed it is, it’s, “The German Shepherd.” If you have a dog and you do establish its name through the questioning, then use that name. The other thing that I’ll mention with this is to train yourself to call the defendant, “Mr.” or “Mrs.” whatever it is. Judges do not like it when you call defendants by their first name or just their last name. They’ll want to hear that honorific in there.

Audience Question: So, if the defense attorney is trying to pin this down to only yes or no kinds of answers. And I really can’t answer the question as yes or no, what do I do?

Jake Kamins: Well, then that’s the truthful answer. “I can’t answer that,” in that way. “I can’t respond to it.” Now, one thing you don’t want to do is get into a back and forth where the judge is getting frustrated with you. I think you can start off with that answer, and then you can qualify it. And if you have a halfway competent prosecutor, they will see your struggles there as a sign for them to ask a question on redirect: “When you answered this question from the defense attorney, you seem to have some trouble giving a simple yes or no answer. Explain a little bit more about that to me.” That’s the open-ended way of getting around that question.

Audience Question: Jake, should I come in uniform if I’m a sworn officer or should I come in a suit, or does it depend?

Jake Kamins: This is going to be a question for your agency. If they don’t already, they should establish some kind of rule about that in your agency. After that, if your agency really says, “It’s up to you, we don’t care,” the prosecutor may have a preference or policy. Generally, I like to see officers wearing uniforms unless they’re a detective. It just conveys that they’re there in their official capacity, working on behalf of the people and animals of the jurisdiction.

Audience Question: If a person is convicted of animal cruelty or abuse and is court-ordered to forever be prohibited from possessing an animal, but they are in violation of that set order later. What steps should we be taking to bring this to the attention of the court? So, is it as simple as the animal welfare agency getting involved in writing the ticket? What should we be doing?

Jake Kamins: Yeah, it really depends on what the order is based on. If this is a situation where a person has been ordered as a probation condition not to possess animals, that information should go to a supervisory authority, like a probation officer, or to the court itself. If they’ve violated a law that they are not allowed to possess animals, it would be a new investigation with potentially a new arrest and a whole new criminal process. I will use this opportunity to note that here in Oregon, which is one of the strongest states for animal cruelty laws, we have a maximum statutory animal possession ban of 15 years. There’s no such thing as a person in Oregon being legally prohibited from possession of animals for life, as a result of an animal cruelty conviction. It’s not something that the courts can do. So, be sure to be careful and check your court system to see what the actual prohibition is, to check and make sure that they tick all the boxes, and then, if they’re violating the law, it’s time for a new criminal prosecution.