Webinar presenters Michelle Welch and Amy Taylor answered a number of your questions after their presentation, Witness Preparation: How to Effectively Prepare Your Experts and Witnesses to Win Your Cases. Here are just a few of their responses.
Audience Question: So the first one is ironic, especially considering Amy what you just said about how much you like testifying in court. Hannah asks: So far, all of my cases have been pled out. They’ve gone through pre-trial diversion resulting in a conviction without me being subpoenaed. So how do I gain court experience to help become an expert, especially if I’m never given a chance to be in court?
Amy Taylor: That is an interesting question. So, you know, I used to get upset when there was a plea because I wanted to go to court and I wanted to have the battle. I realized over time that you know, you do take a risk every time you go to court. So if we’re getting the conviction and, I will tell you that especially with Michelle she gets together with the group and said what are we comfortable with if there is a plea and tries to make sure that everybody has a voice in it. And I think that is important. But also when you working with others, like maybe not as the lead investigator, you might not be going to court. But are you going to court with another person in your office that you work with or have you taken classes that you can maybe assist the next jurisdiction through mutual aid with something that you have some sort of expertise or experience in that they might not. For example, we were talking about Bluestar, Luminol dogfighting case and other cases we have some jurisdictions that don’t have that. And so we would bring in somebody from another jurisdiction for that. Maybe you have something to offer other jurisdictions around you through that mutual aid that can help you get in support.
Michelle Welch: The other thing is I would go and watch for it and watch people who are testifying as experts that you want like a meaty time(?). I don’t know what kind of expert you are or what your experience is. You know watching other meaty cases like a murder case, a rape case. Those are going to have some pretty highly-powered, highly-educated specialized trained experts like a medical examiner or a forensic nurse, a detective who specializes in rape cases, you know. So you want to go see how other people are testifying so that’s what I would do short of, you know, one of your cases going. But in your particular instance, they need to ask you how many cases have you been involved with. How many cases have you served as an expert in the field for that sort of thing?
Audience Question: When preparing for cross-examination. Do you need to prepare with someone that is also the case or will any trade attorney or investigator do? Basically, can you can you prepare for cross-examination by working with someone who’s maybe not so familiar with the case?
Michelle Welch: Prosecutors are busy and sometimes they don’t prep people. I often will say, “I will prep you”, and give you the lay of the land. Give me the report and I will prep you. If you’re a seasoned animal cruelty or animal abuse prosecutor you could do that for someone who is just getting up and running as an expert. However being sure that you know, you’re not stepping on anybody else’s toes. You could get another officer or you know a fellow investigator to kind of prep you within your department and look at what the defensive might be or what the cross-examination questions might be for your case.
Amy Taylor: I used to prep with my partner when we were in the field and you know out on patrol for cases and we would ask each other questions about the cases to see if we can recall without our notes as we were on patrol and it did help us when we got support knowing our case. You want to make sure that, you know your case very well, even if you do end up in a situation where you haven’t been prepped, you need to know your case. Well, so even if it happened a year ago, you need to make sure that you’ve reviewed it. That your notes are there. I make sure that I write reports, that I have all my photographs that I have everything and it’s all organized. So that I’m more comfortable with the information. If I’m not comfortable with the information, I probably shouldn’t be talking about this information.
Michelle Welch: The only other thing I might suggest is I teach at those two different law schools in Virginia, and I often will have a mock trial as part of their grade. And so I basically every time I get a new state vet or a new vet and hasn’t had a lot of courtroom experience. I get them to come and be the vet in the mock trial because you know, it gives them experience on how to testify and what the questions might be and it’s low risk.
Aaron (host): And so going back to that first question that we had that might be an opportunity for people to gain experience before actually testifying.
Audience Question: How do you respond if after replying to the “Wouldn’t it be possible…” question, the attorney says, “I understand you did a good job, but still couldn’t it be possible that you missed something?”
Michelle Welch: I think you stand your ground and say I did a thorough job. I assume you might know where they’re going with it, right? Because the reciprocal Discovery or because of what the defense attorney myself to the prosecutor some hoping they’re not going to catch you like totally off guard about that sort of thing. But I think you have to stand your ground about it. Because in the end if you didn’t miss anything they can’t keep harping on it because it’s not relevant at that point. Now, I have a case coming up in a little worried that he’s going to try to nullify the jury. Nullification of the jury is bringing up something that is emotional, that has no bearing on the case. For instance, saying that somehow the officer lies, you know. Hopefully in pre-trial motions, you would have already dispensed with any of those in a motion to suppress hearing. But you can’t just bring out stuff that just isn’t true or is only meant to nullify the jury. I had a defense attorney one bring out the fact that he the defendant was a firefighter and that he saved a little girl. Well, that’s pure jury nullification. You’re trying to appeal to their sympathy so that they will not listen to the evidence of animal cruelty right in front of them.
Audience Question: Given the costs involved when and how do you decide whether or not you use an external expert witness in a case?
Michelle Welch: Here’s the thing. You got to be really careful with this do not let your cape go down in flames because you can’t you feel like you can’t afford an external expert and for those of you that are on this call because you’re interested in animal abuse cases, ALDF has a program to help prosecutors that they will try to give you a grant for external expert. I once had them help me pay for a horse victim that was starved to death and euthanized because it is, you know, because of that starvation. She drove cross-country from Texas. So what I would say is you need to care about your case and you need to put forward the best case you can and do not let expenses dictate what happens in your case. There’s always a way to get what you want and let me just say this or to get the witness that you want, right? The other thing I would suggest if you are in your government operators for prosecutors and particular obviously is to look to asset forfeiture. Because asset forfeiture if you have drug asset forfeiture monies that have come back to your Commonwealth’s Attorney’s Office or to your Sheriff you can use drug asset forfeiture for witnesses or cases to pay for expenses. So, think of that as another resource to get you there. And remember ultimately if you need an expert you can make the locality pay for it. Now, then you know the judge might give you a hard time. I had a case where I didn’t object to them having an expert and he was the judge me really mad about it. And I told, “Judge, I have an expert.” He goes, “Who’s paying for your expert?” I say, “I got a grant for my expert”. So, it’s not charging anything to locality. So, in looking at what you want to do don’t skimp just because you feel like you don’t have the resource. There’s always a way.
Amy Taylor: And I’ll so I’ll add that. There are some very good people in this world that are experts in things that don’t always need to be paid and so don’t assume that you have to pay all of them. There are a lot of people there for the greater good.
Audience Question: Sometimes, in a courtroom setting women expert witnesses are not treated with the same degree of respect as men regardless of the level of expertise. How do you recommend that that expert refutes or shows command when a defense attorney is clearly being sexist or disrespectful.
Michelle Welch: But let me tell you what I did when I saw I had a case where the defense attorney kept every time I objected, he would tell me to be quiet. And every time he did that I said, “Rules of evidence, judge, rules of evidence.” So what I was saying, you need to be commanding you need to not let that bother you and you need to stand up as the expert and because have like a command presence. Don’t allow it to get under your skin and to be firm about your opinion.
Amy Taylor: You got yourself there, you became an expert, so stand up for it. That’s what I’d say.
Michelle Welch: The fourth time he called me to be quiet when I was making an evidentiary objection, I finally said to the judge, “You really need to admonish him, judge, this is unacceptable.”
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