Untitled

Suggestions and Techniques for
Testifying in Court
Robert Geffner, Ph.D. ABN, ABPP
Viola Vaughan-Eden, Ph.D., LCSW
Stacie LeBlanc, J.D., M.Ed.
Richard Ducote, J.D.
Becki Kondkar, J.D.
Hon. Judge Molaison
TheForensicProfessional
HavethePrerequisiteTraining
KnowtheResearchLiterature
ForensicWorkisHalfScience,HalfArt
Resume/CVmustbeCurrent&SupportsWhat
YouSayYouCanDo
TheDevilisintheDetails
PutintheTimefortheReviewofMaterials
DontMakeComplexIssuesSimplistic,But
ExplaininSimpleTerms
2
Becoming an Expert Witness in

Forensic Cases
Types of Witnesses
PERCIPIENT (Lay) WITNESS
Can only offer factual observations
Cannot draw conclusions or form
opinions
EXPERT WITNESS
Forms an opinion
Based on
Evaluation of the Facts
Relevant Research
Obtain specialized education/training pertinent

to forensic practice
Stay current in your area(s) of expertise
Dont venture beyond limits of your knowledge
Be familiar with legal arena
Be familiar with statutes/case law relevant to
your area of expertise in the relevant
jurisdiction
Follow ethical procedures and forensic
guidelines in your specialty areas
R Geffner, V. Vaughan-Eden, R. Ducote, S. LeBlanc, & B. Kondkar - Do not reproduce without written permission
Criminal Standard vs. Best

Interests/Protection Standard
Forensic Appointment or Consulting
Who is your Client?

The Court
Expert for one side
Rebuttal witness
Hidden consultant
Scope of the Evaluation
What are the questions to be answered?
Who will be seen or evaluated?
Access to records and confidentiality guidelines
Collateral contacts
Appointment by Court
Hired by
Attorney
Client
Innocent until
proven guilty
Preservation of
defendants rights.
Beyond a
reasonable doubt
Proper Prior Planning

Prevents Poor
Performance and Best
Assists the Trier of Fact
Tracy 2007
Not guilt or
innocence;
insurance of safety
Preservation of
childs right to
safety and best
interests
a preponderance
of the evidence
Be Prepared
Be Proactive
Be Professional
16
17
PREPARE
Know the immediate question or questions
before the court
Know why you were summoned & if you are
the appropriate person to testify
Thoroughly review case material
Know the current research literature as it
relates to the case
Regularly attend trainings & continuing
education specific to your specialty
18
REVIEW
Dont rely on your memory; Answers to questions in
court need to be precise to the best of your ability.
You can lose credibility when you misstate simple
things or fumble through papers to find answers
Thoroughly review all records because it will likely be
used against you if you dont
Review reports and letters word by word; be able
articulate your reasoning for writing your report,
using certain words or phrases and for referencing
certain material
20
Be able to articulate in detail the protocol you used
Ask yourself & the lawyer who

summoned you
What do they think I know
that could help their case?
Do I really know or have that
information?
What is the question before
the court?
19
Know the timeline of your involvement in case

and how that might impact your opinion about
the issues before the court
Be able to explain your relevance to the case
and what you contributed that no one else may
have
Be able to explain what you relied on, such as
psychological testing, assessment by other
professionals, reports by law enforcement, prior
court transcripts, interviews of other
informants, and so forth
21
SIMPLE THINGS
ARE OFTEN OVERLOOKED
RESEARCH
Know how many times you met with the

client and the dates
Know who was present for the appointment
If a child, explain why you met with the
child, where, and who brought them
Know how many other professionals met
with the client and how their conclusions are
similar to or different from yours
22
Knowledge of the rules of evidence

and applicable case law is not enough
to succeed with the challenging
litigation of cases of interpersonal
violence. you must possess a
thorough grounding in the pertinent
medical and psychological
literatures.
Know the leading authorities in your topic and

what their articles and research findings might add to
the trier of facts understanding the case
Join recognized and respected professional
organizations
Establish a peer supervision or mentoring group
Know the current professional literature such as
peer-reviewed journal articles and books published
by reputable sources so you can easily cite
Attend national conferences & trainings to stay
23
current in your area of expertise
Know the myths associated with your area of

expertise!!!
Know what the research literature
contradicts these myths or says about each
of the common issues
Be able to accurately recite the literature
Myers, 2005, p xxxiii

24
25
Now identify the research

literature for your area of
expertise and cite the
authorities who refute the
myths you identified
How well are you able to

discuss them in court?
26
How Keep Abreast of Field: Journals

and Books Read
(e.g., Journal of Child Sexual Abuse; Journal of
Interpersonal Violence; Child Abuse & Neglect; Journal of
Child & Adolescent Trauma; Child Maltreatment; Sexual
Abuse: A Professional Journal; Journal of Family Violence;
Violence & Victims; Journal of Offender Rehabilitation;
Violence Against Women; Journal of Aggression,
Maltreatment, & Trauma; Journal of Child Custody; Journal
of Forensic Psychology; Victims and Offenders).
Expert Witnesses, Evaluators,or Consultants Must Have

Specific Expertise and Training in Child Abuse, DV, etc., Not
Just Mental Health or Social Service, and not just on-the-job
experience.
27
EVALUATION OF
CREDENTIALS: VITA
In Family Violence and Child Abuse
Cases, an Unqualified Therapist or
Expert Witness Can Do More Harm
Than Good, and Dangerous Situations,
Including Re-Victimization, Can
Occur.
Robert Geffner, Ph.D. - Rev. 9/08
SUBPOENAS
ATTORNEYS
Witness Subpoena - In the US we are often served

with papers and ordered to come to court. Failure to
do so could result in a fine or detention.
Subpoena Duces Tecum or A Subpoena Records
means that you must turn over all of your notes
regarding a client to the court and the lawyers. It is
often viewed as a violation of client privacy but once
ordered to release the records you must. Client
confidentiality is very limited because you are
required to fully and truthfully answer all questions.
Dont wait for them to call you because it

may not be a priority
Clarify your role with the client, dont
assume the client properly explained it
Clarify expectations of your testimony
beforehand so you are not embarrassed or
wasting time in court when asked
something you arent qualified to speak on
Reconfirm date and time
30
CONSULTATION
PROACTIVE
Consult with other professionals to

know how they view the client
31
Do Everything Necessary to be
Prepared
Get Permission (Releases of
Information) to Speak with all Involved
Contact Attorneys
Contact Collateral Sources
Guardians ad litem (Lawyer for the Child)

Social Workers
Law Enforcement
Teachers
Therapists
Medical Doctors
32
33
Organizing Files For Testifying
Organizing Files For Testifying
Reviewing Records
Noting or Highlighting Important Documents
Organizing in Binders - Tabs
Highlighting Key Issues, Statements, etc.
Obtain Raw Data and Verify Interpretation
Summarize Information
What Records Still Needed
Questions, Inconsistencies in Reports or
Records
Preparing for Court
Reviewing Records
Noting or Highlighting Important Documents
Organizing in Binders - Tabs
Highlighting Key Issues, Statements, etc.
Obtain Raw Data and Verify Interpretation
Summarize Information
What Records Still Needed
Questions, Inconsistencies in Reports or
36
Records
Admissibility of Expert Witness

Testimony
Know your report and file

Know the literature
Know pertinent laws and statutes
Be able to articulate:
your reasons for your opinions or
recommendations
The scientific or clinical literature on which it
is based
Differences between your opinion and others
Frye v. United States

People v. Kelly
Daubert v. Merrell Dow Pharmaceuticals
General Electric Co. v. Joiner
Kumho Tire Co. v. Carmichael
37
Kelly/Frye
Admissibility of expert witness testimony based on

new scientific techniques
3-Prong Test of General Acceptability
Establish reliability of the method used, usually
by expert testimony
Witness must be properly qualified as an expert to
offer testimony, and
must demonstrate that the correct scientific
procedures were used in the particular case.
EXPERT WITNESSES Daubert Ruling
Expertise
Scientific Evidence - Reliable
Relevance
41
Daubert/Joiner/Kumho
Theories and techniques used by scientific
expert tested?
Subjected to peer review and publication?
Techniques employed have a known error
rate?
Are they subject to standards governing their
application?
Theories and techniques used have widespread
acceptance?
Daubert/Joiner/Kumho
Trial judges act as gatekeepers/ determine if
expert evidence has both a reliable foundation
and is relevant to the task at hand.
Testimony must be founded on scientific
knowledge
Grounded in the methods and procedures of
science
Testimony must assist the judge and jury
Testimony must be sufficiently tied to the facts
of the case to aid in the resolution of an issue
in dispute.
43
What Does the Court Expect?

To relay with some accuracy your opinion of
the situation
To share your expertise with the court
To offer facts based on observation,
interviews, & assessment
To collaborate with other professionals on
the case and to integrate findings
To make recommendations about how the
person or case should be handled
The expert witness must not

only educate the jurors, but
convince them that he or she
should be trusted.
Stern, 1997, p. 25
46
47
Testifying in Court
Cops vs Mental Health Professionals

Use an economy of
words
Give direction
Just the facts
maam
Put observations and
facts in reports, not
opinions
Preparation
Review
File
Meet with attorney
Be clear about questions you are
being asked, the scope of your
testimony and your role
Strengths and weaknesses of the case
Visual Aides
Use a lot of words

Dont give advice
Consider many more
issues than just facts
Opinion is often
Sought
49
Testifying
Testifying
Confer with attorney who brought you in

Dont talk to opposing attorney unless
advised to by your sides attorney
Mental health professionals are not used to
being attacked
Dont become defensive
Opposing attorney will often try to confuse
and misinterpret. Ask for repeat or
clarification and if misinterpreted, say so
Testimony
Respond to opposing attorney with as few

words as possible. Dont volunteer
information
Unless testimony is scientific, dont draw
conclusions. When appropriate, is
consistent with e.g.
Be neutral and consistent with testimony
even if it seems to hurt your side. Dont
be a hired gun.
Where to sit, stand, etc
Its
OK to say I dont know or

Its outside my area of expertise.
As often as possible, use
understandable language, not
jargon. Explain terms which may
not be understood. E.g. PTSD
54
10
JUDGE
Testifying in Court
WITNESS
What to Wear
Have copies of your Vitae
Bring all of your records
Be familiar with the courtroom (physical layout)
(Watch comments and contact with parties or
attorneys during recesses, breaks, etc.,
especially with a jury)
Where file and records can be placed
Bathroom (i.e., want to be comfortable)
Water
56
CROSS-EXAM
J
U
R
Y
VOIR DIRE
ATTORNEY
OPENING
CLOSING
Testimony
Speak to attorney questioning you
Debate looking at the judge and/or jury
Give clear, concise answers
Dont read written materials unless asked may
refer
Credibility enhanced if perceived as likeable,
honest, professional, objective, and
confident.
Dont be pressured into responding if you need
time to think or to review
Separate compound questions
Watch Yes/No answers when asked
57
When testifying
Know what your credentials are (keep track)
Use language a lay person can understand
(buttocks case)
Draw the sting/fall on your sword: the myth of
the perfect interview (power rangers case)
Dont go out on limb (can children lie?)
The water trick
Just answer the question yes or no
The phrase of course not
58
11
Testifying On the Stand

Remember Your role is to educate the trier of
fact (judge or jury different techniques)
Dont exaggerate/be overly dramatic
Dont over qualify your opinion
Dont become angry/antagonistic, defensive, or
flustered keep same tone for direct and cross
Ask for complex questions to be
repeated/rephrased or simplified
Remain polite and respectful
Use humor cautiously
ON THE STAND
Be Professional, dont become defensive

Have an updated copy of your resume or
curriculum vitae or qualifications and be able to
recite it
Answer only the question asked, even if you have
additional information, you must wait to be asked
If you dont understand a question, ask for
clarification
Let the attorney finish asking the question before
you begin to answer
If the other lawyer objects, wait for the judge to
make the decision if you are allowed to answer. 61
Testifying (Contd)
Use lay terms, not technical jargon if possible

define terms if used
Educate - dont advocate (keep reminding self of this!)
Dont interrupt
let attorney finish asking the question before you
answer
make sure you understand question
Pause before answering
Give attorney time to object
Clarify question and then answer
When shown documents and asked to identify them, or
read a quote, review carefully (even your own)
PROFESSIONAL
Demeanor
Calm, Sincere, and Courteous Tone
Attire
Appropriate and Businesslike
Credible
Honest, Humble, and Understandable Language
Punctual
Arrive at least 30 minutes early, Patience
Ethical
Truthful, Objective, and Knowledgeable
62
12
Always ask to see documents, things are often

taken out of context to trick you into giving an
answer the lawyer needs or to confuse you so you
give inaccurate information or get discredited
Dont exaggerate your knowledge, only talk about
what you know for sure
Dont underestimate attorneys, their job is to win
their case. Court isnt only about the truth but
putting on evidence in a manner to win. Often that
means they are allowed to manipulate information
Dont take notes on the stand unless you plan to
turn them over for all to see
Look at the Judge and/or Jury when

speaking and make sure you are using
language they understand. This is
especially important in the system of
lay judges who may need you to
educate them about the topic so they
can make an informed decision
63
64
Direct Examination
Be Honest Before and

During Your Testimony
About What You Know
and What You are
Qualified to Talk About
65
Attorney who asked you to testify

will qualify you as an expert
does direct examination
does re-direct after cross examination
objects during cross examination
prepares you for his/her questions ahead of time
knows what you are going to say
knows strengths and weaknesses of case, hopefully
may not be well versed in the professional issues 66
13
Voire Dire to Qualify as Expert

Qualifying you as an expert in specific areas
Done by the attorney who called you as a
witness
Outside the presence of a jury
Establishes extent and limits of qualifications
Professional background
Practical experience
Courtroom experience
Prior qualifications as expert
Any limitations by court on what you can say?
Direct Examination (Contd)
present as knowledgeable, fair, competent

establish good rapport with the court/jury
getting off the stand at times
using visual aides, slides, posters
get the pertinent/supporting facts before the
court
do not oversell and qualify opinions as needed
do damage control on re-direct if necessary
67
Direct Examination (Contd)
68
Attorney Examination of
Witness
Types of Questions
direct/simple (where did you currently work?)
leading (usually seeking yes/no answer)
providing information and asking for your
comment/opinion
open ended (what is your standard protocol
when conducting a custody evaluation?)
broad-based (what are the accepted standards of
practice in questioning young children about
69
abuse)
ATTACKER of/OBJECTOR to
OPINION
cross examination (after direct)
re-cross
objects during direct examination
70
14
Cross: The Defense Speaks
Cross: Be Alert For The Traps

Discuss
Cross-examination
is an opportunity
for the lawyer to testify through the
witness
Jurors pay more attention on cross
They want to get words for closing
Theyre better at it than we are
They Call Them Sharks for A

Reason
likely areas for cross with

prosecutor or attorney who called you
What role do you play in case - are you
the target or a potential ally?
The best cross-examinations are subtle
- the punch wont be telegraphed
Whats the defense theory and how
can it be countered?
Prepare your responses in advance
When testifying
Know what your credentials are (keep track)
Use language a lay person can understand
(buttocks case)
Draw the sting/fall on your sword: the myth
of the perfect interview (power rangers case)
Dont go out on limb (can children lie?)
The water trick
Just answer the question yes or no
The phrase of course not
IF THERES BLOOD TO BE
FOUND - THE DEFENSE
ATTORNEY WILL SENSE IT
15
Opposing Attorney Cross Exam

Highlight your lack of training or expertise
With certain tests/types of populations
Limited experience in this type of case
Money questions
Time not testimony
Highlight what was not included or reviewed
Challenge
your facts
your opinions
you
Cross Examination (contd)
Attack your competency

Discredit your testimony due to
procedural errors
getting a fact wrong
misrepresentation of the research
failure to investigate an area
not following accepted standards of practice
bias
Cross Examination (contd)

Dont take it personally
Acknowledge controversial points
Acknowledge limitations
Do so in a manner that is not at the expense of
your opinion/conclusions
Change opinions if the new facts warrant it
Hypothetical questions
Comparing yourself to their experts
Dealing with ethical issues and their practice
Cross Examination (Contd)
Designed to show your fallibility

Questions requiring a yes-no answer when a yes or no
answer would be misleading
Questions that undermine the credibility of your
evaluation (or the data that you relied upon)
The subjective opinion approach
The hired gun approach
Distortion of your testimony
Learned treatise assault
Not a real doctor approach medical evidence
Placing you on the defensive
16
In an Effort to not Contaminate

the Case or Prejudice other
Witnesses Dont Discuss Your
Testimony Potential or
Otherwise with Anyone Except
Privately with the Attorneys
Credibility
in court hinges
on doing your job out of court
in accordance with the
best standards of practice!
APSAC Clinic - Lamb & Parker
85
DEBRIEF
Ask lawyers and others who heard you
testify to critique your performance
Review the transcript of your testimony and
consider what you could have done better
Discuss the case with colleagues and
problem solve alternative responses to the
questions
If you did not know how to answer a
question in court, practice answering it for
the future by doing some research
87
86
Factors associated with Good Case

Outcomes, Neustein & Goetting, 1999
Judges trained in sexual abuse

Competency of GALs
Sophistication of CPS methodology
Quality of court appointed experts
Protection for children viewed as goal.
17
Robert Geffner, PhD, ABPP, ABN
You must be the change you

want to see in the world.
Mahatma Gandhi
Indian political and spiritual leader (1869 - 1948)
89
Licensed Psychologist
Licensed Marriage & Family Therapist
Diplomate, Clinical Neuropsychology
Diplomate, Couple & Family Psychology
President, Family Violence & Sexual Assault Institute
President, Institute on Violence, Abuse and Trauma
Distinguished Research Professor of Psychology
Alliant International University, San Diego
Co-Chair, National Partnership to End Interpersonal Violence
President, American Academy of Couple & Family
Psychology
10065 Old Grove Rd., San Diego, CA 92131
email: bgeffner@pacbell.net
www.ivatcenters.org
www.npeiv.org
91
Institute on Violence, Abuse & Trauma

(IVAT) at Alliant International University,
San Diego
Family Violence & Sexual Assault Institute
(FVSAI)
Viola Vaughan-Eden, PhD, LCSW

www.violavaughaneden.com
National Partnership to End Interpersonal

Violence Across the Lifespan (NPEIV)
American Professional Society on the

Abuse of Children
www.apsac.org
National Organization of Forensic Social Work
www.nofsw.org
92
International Conference on Violence,

Abuse & Trauma, Including the National
Summit on Interpersonal Violence and
Abuse Across the Lifespan Sept., San
Diego, CA
18

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Suggestions and Techniques for

Becoming an Expert Witness in

Obtain specialized education/training pertinent

Criminal Standard vs. Best

Forensic Appointment or Consulting

Who is your Client?

Proper Prior Planning

Ask yourself & the lawyer who

Know the timeline of your involvement in case

Know how many times you met with the

Knowledge of the rules of evidence

Know the leading authorities in your topic and

Know the myths associated with your area of

Myers, 2005, p xxxiii

Now identify the research

How well are you able to

How Keep Abreast of Field: Journals

Expert Witnesses, Evaluators,or Consultants Must Have

Robert Geffner, Ph.D. - Rev. 9/08

Witness Subpoena - In the US we are often served

Dont wait for them to call you because it

Consult with other professionals to

Guardians ad litem (Lawyer for the Child)

Organizing Files For Testifying

Organizing Files For Testifying

Preparing for Court

Admissibility of Expert Witness

Know your report and file

Frye v. United States

Admissibility of expert witness testimony based on

EXPERT WITNESSES Daubert Ruling

What Does the Court Expect?

The expert witness must not

Cops vs Mental Health Professionals

Use a lot of words

Confer with attorney who brought you in

Respond to opposing attorney with as few

Where to sit, stand, etc

OK to say I dont know or

Testifying On the Stand

Be Professional, dont become defensive

Use lay terms, not technical jargon if possible

Always ask to see documents, things are often

Look at the Judge and/or Jury when

Be Honest Before and

Attorney who asked you to testify

Voire Dire to Qualify as Expert

Direct Examination (Contd)

present as knowledgeable, fair, competent

Direct Examination (Contd)

Cross: The Defense Speaks

Cross: Be Alert For The Traps

They Call Them Sharks for A

likely areas for cross with

Opposing Attorney Cross Exam

Cross Examination (contd)

Attack your competency

Cross Examination (contd)

Cross Examination (Contd)

Designed to show your fallibility

In an Effort to not Contaminate

Factors associated with Good Case

Judges trained in sexual abuse