Expert Questions

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Wednesday, February 27th, 2019
Expert Questions

1. What’s the difference between a consulting expert and a testifying expert?

Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006) is the leading case on the distinction between consulting and testifying experts. The difference is major, and it matters. Everyone should read Pope.

The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. A consulting expert is not designated as a defense expert witness under Article 39.14 of the Texas Code of Criminal Procedure. Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006). Information regarding a consulting expert is subject to the attorney-client privilege and work product privilege. Id. If you designate a consulting expert as an expert under Article 39.14, the expert’s identify and qualifications are not protected by the work product privilege, and the State may comment on your failure to call this witness to testify at trial. Id.

“If a party might call an expert whom he has consulted as a witness at trial and the opposing side has requested designation of any potential experts, the party must designate that person as a testifying expert. A party who has designated a person as a potential testifying expert must be willing to divulge his name, address, telephone number, resume, and the subject matter on which he will testify.” Pope v. State, supra.

2. What if my court-appointed client doesn’t have any money to hire an expert, and we need one?

Ask the court for money. Do not be timid to ask for the money necessary to defend the case. Always make the requests ex parte and sealed and always included in the record. See Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). The State cannot get a copy of your ex parte sealed request for expert assistance nor can the State be at any hearing for requested assistance. Also, there is no canned request for expert assistance. Each request should be appropriately tailored to the specific facts of the case.

The authority for requesting necessary expert (investigative and/or mental health) assistance comes directly from the Code of Criminal Procedure, case law, the State Bar Guidelines, and the American Bar Association Guidelines for representation.

Article 26.05 and 26.052 of the Code of Criminal Procedure. Article 26.05(d) provides that in non-capital cases counsel

shall be reimbursed for reasonable and necessary expenses, including expenses for investigation and for mental health and other experts. Expenses incurred with prior court approval shall be reimbursed in the same manner provided for capital cases by Article 26.052(f) and (g), and expenses incurred without prior court approval shall be reimbursed in the manner provided for capital cases by Article 26.052(h).”

Article 26.052(f) indicates that

[a]ppointed counsel may file with the trial court a pretrial ex parte confidential request for advance payment of expenses to investigate potential defenses. The request for expenses must state:

(1) The type of investigation to be conducted;
(2) Specific facts that suggest the investigation will result in admissible evidence; and
(3) An itemized list of anticipated expenses for each in­ves­tigation.”

Article 26.052(h) states that

“[t]he court shall grant the request for advance payment of expense in whole or in part if the request is reasonable. If the court denies in whole or in part the request for expenses, the court shall:

(1) State the reasons for the denial in writing;
(2) Attach the denial to the confidential request; and
(3) Submit the request and denial as a sealed exhibit to the record.

Article 26.052(h) provides that

[c]ounsel may incur expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred.”

Thus, the Code makes clear that it is permissible to hire experts without first obtaining court approval. It is arguably better to obtain prior court approval, though, for a few reasons. For starters, you will have an order in advance for payment. Also, if a correct, credible showing is made that the expert is necessary and the Court denies the request, there is already potential error built in the case.

Additionally, case law is well-established and clear that the trial court must provide sufficient funding for necessary defense expert assistance. The defense expert must “play a partisan role in the defense, providing defense counsel with the ‘tools’ to challenge the State’s case.” Taylor v. State, 939 S.W.2d 148 (Tex. Crim. App. 1996) (citing DeFreece v. State, 848 S.W.2d 150 (1993)). “In this context, due process, at a minimum, requires expert aid in an evaluation of a defendant’s case in an effort to present it in the best possible light to the jury.” Id.

The seminal case for expert assistance, of course, is Ake v. Oklahoma, 470 U.S. 68 (1985), which held that indigent defendants in criminal cases have a due process right to state-provided expert assistance when an ex parte showing is made to the trial judge. Ake involved a psychiatric expert. However, according to the Court of Criminal Appeals, Ake also applies to non-psychiatric experts. Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. 1995). If an indigent defendant establishes a substantial need for an expert, without which the fundamental fairness of the trial will be called into question, Ake requires the appointment of an expert, regardless of the field of expertise. Id.

Furthermore, on January 28, 2011, the Texas State Bar Board of Directors adopted the “Performance Guidelines for Non-Capital Criminal Defense Representation” (hereinafter “Guidelines”). Performance Guidelines for Non-Capital Criminal Defense Representation, available at https://www.texasbar.com/AM/Template.cfm?Section=Texas_Bar_Journal&Templ.... “The guidelines were drafted by the State Bar Committee on Legal Service to the Poor in Criminal Matters to encourage defense attorneys to perform to a high standard of representation and to promote professionalism in the representation of citizens accused of crime.” Blackburn, J., and Marsh, A., The New Performance Guidelines in Criminal Cases: A Step Forward for Texas Criminal Justice, 74 Texas Bar Journal 7 (July 2011). “They represent an effort to ‘hold the line’ for criminal defense practitioners against a host of financial and political pressures.” Id. According to Guideline 4.1, B.9

Counsel should consider whether expert or investigative assistance, including consultation and testimony, is necessary or appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to:

a.  The preparation of the defense;
b.  Adequate understanding of the prosecution’s case;
c.  Rebut the prosecution’s case or provide evidence to establish an available defense;
d. Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and
e.  Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.

Additionally, Guideline 7.1, C.3 provides the following:

Counsel should complete investigation, discovery, and research in advance of trial, such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of: Obtaining funds and arranging for defense experts to consult or testify on evidentiary issues that are potentially helpful (e.g., testing of physical evidence, opinion testimony, etc.).

3. What if I run out of money from the court for my expert?

We have all been in situations like this—where, for example, we ask for $2,500 for expert assistance, and the court authorizes $500 in funds. Ask for more money. Ask even after you’ve been told no or given insufficient funds. Keep asking. Do another ex parte, sealed motion. Do not use your same motion from before. Make this a second request. (Then when you get another $500 and use it, make a third request, and so on.) Outline for the court that the previously allocated funds have been depleted, how they were depleted, that more work needs to be done, that you have no expertise in the field, what that specific work entails, and more money is necessary to perform the additional work.

Hinton v. Alabama, 134 S.Ct. 1081 (2014), is an ineffective assistance of counsel case based on the lawyer’s failure to obtain sufficient funding for a qualified expert who was necessary to rebut the State’s case.

Hinton was a death penalty case. The physical evidence consisted solely of a revolver and six bullets. The State’s case turned on whether its expert witnesses could convince the jury that the six recovered bullets had indeed been fired from the Hinton revolver. Id. at 1084. Recognizing that Hinton’s defense called for an effective rebuttal of the State’s expert witnesses, Hinton’s attorney filed a motion for funding to hire an expert witness of his own. In response, the trial judge granted $1,000 with this statement:

“I don’t know as to what my limitations are as for how much I can grant, but I can grant up to $500.00 in each case [that is, for each of the two murder charges, which were tried together] as far as I know right now and I’m granting up to $500.00 in each of these two cases for this. So if you need additional experts I would go ahead and file on a separate form and I’ll have to see if I can grant additional experts, but I am granting up to $500.00, which is the statutory maximum as far as I know on this, and if it’s necessary that we go beyond that then I may check to see if we can, but this one’s granted.” ___ So.2d ___, ___, 2006 WL 1125605, *59 (Ala.Crim.App., Apr. 28, 2006) (Cobb, J., dissenting) (quoting Tr. 10).

Hinton’s attorney did not take the judge up on his invitation to file a request for more funding. Id.

With the limited funding provided by the court, Hinton’s lawyer found a woefully underqualified expert who testified at trial. The USSC ultimately held that “[t]he trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.” Id. at 1088.

4. What if I am retained and we need an expert but my client doesn’t have any more money?

The Court of Criminal Appeals answered this very question in Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005), a child death case. Quite simply, as retained counsel, you may not put off investigating medical issues or put off consulting with necessary experts until your client pays you money for experts. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005). In Briggs, the Court of Criminal Appeals spelled out three options if your client cannot afford experts:

(1)  Subpoena to testify at trial the experts who treated your client, introduce at trial the records through these experts, and have these experts provide their expert opinions;
(2)  Withdraw from the case after proving to the judge your client’s indigence; or
(3)  Remain on the case and take a reduced fee but request an investigator and experts from the trial judge for a now-indigent client pursuant to Ake. Id. at 468.

Importantly, the Court of Criminal Appeals further recognized this:

If any reasonable attorney appointed to represent an indigent defendant would be expected to investigate and request expert assistance to determine a deceased infant’s cause of death, a privately retained attorney should be held to no lower standard. As the Supreme Court has explained, “The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. . . . [W]e see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.” Id. at 468–469 (internal citations omitted).

5. What do I need to give my expert?

Communication with your expert is key. Prior to obtaining funding or paying for expert assistance, you will have already talked preliminarily with your expert. Begin to set expectations at that time.

Once the expert is officially hired or appointed, he or she becomes part of the defense team. Send an engagement letter to your expert so that the expert will know what is expected. Also, in the engagement letter, make sure the expert knows that he or she is part of the defense team, and that all information the expert receives is privileged and confidential. Finally, let the expert know that he or she is being retained (at least initially) as a consulting expert. As a practice point, wait until the expert has done all the necessary work in the case before designating the expert as a testifying expert.

Make certain your expert has as much information as possible to form a credible and reliable opinion. The expert needs to know the worst fact of the case. Providing the expert with a copy of the discovery that is provided to you by the State is a must. The expert must have a working knowledge of the facts of the case. Obviously, the type of expert dictates what information is necessary. For instance, a false confession expert needs to have reviewed in detail every statement the accused has made whether that be in writing or recorded. You do not want to put your expert, your client, or yourself in the position where your expert learns about crucial information for the first time on cross-examination.

6. Do I have to provide notice to the State that I have an expert?

Yes, if notice is requested by the State or ordered by the trial court. If neither of those conditions precedent are met, then we are not obligated to provide such notice—and should not do so. However, we should always request notification of experts in our Article 39.14 requests regardless of whether we think the State may have an expert. Be sure to request copies of the expert’s report, curriculum vitae, underlying facts or data relied upon, bench notes, diagrams, etc. Subpoena a copy of the expert’s entire file. It is often different than what the State may have provided.

Article 39.14(b) of the Texas Code of Criminal Procedure states: “On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of evidence. Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. On motion of a party and on notice to the other parties, the court may order an earlier time at which one or more of the other parties must make the disclosure to the requesting party.”

7. Do I need to have my expert make a report?

Not necessarily. There is no requirement for a written report. In some cases, it is better to have a report and others it is not. There is no right or wrong answer for this question. It just depends on the facts of the case.

The key to answering this question in your specific case is communication with your expert. Find out what the expert would include in the report before you request a report. Ask your expert—after he/she has reviewed everything, met with client, etc.—what the worst thing is about the case. We have to know the answer to the “worst” question so that we can address it at trial or plan a way around it, if possible. Also, that will normally dictate whether you want a written report or not.

8. Can I talk to the State’s expert?

Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct discusses “Communication with One Represented by Counsel” and states as follows: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large” (emphasis added). The medical examiner and State crime lab scientist also fall under the umbrella of having an obligation to the public at large so may be contacted. However, if the State’s expert doesn’t fall within this umbrella, then be sure to get permission to speak to the expert ahead of time.

Talk to the State’s expert every time. There is no reason not to talk to the State’s expert. Remember it’s a time to gather information and share information but only if it is necessary or helpful. Take someone with you when you talk to the State’s expert. Never talk to the State’s expert alone. You will be surprised what you learn and how accessible they are most of the time. Remember, real scientists are advocates for the science not the side.

9. Should I request a hearing on the State’s expert prior to the expert’s testimony?

Yes. Rule 705(b) of the Texas Rules of Evidence provides that “[b]efore an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may—or in a criminal case must—be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing.” With exceptionally limited circumstances, we should be requesting hearings on every expert every time. Those limited circumstances are case, witness, and strategy dependent. The hearing is conducted to test the admissibility of the expert’s opinion, obtain discovery, ensure you have copies of everything the expert has used to form the opinion, to get a record of what the expert has to say, and gain knowledge about fruitful grounds for cross-examination.

Texas Rules of Evidence 104, 401, 402, and 702 provide the basic conditions precedent for expert testimony. See Vela v. State, 209 S.W.3d 128 (Tex. Crim. App. 2006). Rule 104 requires that “[t]he court must decide any preliminary question about whether a witness is qualified . . .” and that “[t]he court must conduct any hearing on a preliminary question so that the jury cannot hear it if . . . just so requires.” Rules 401 and 402 render testimony admissible only if it “tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 702 permits expert testimony only “if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Accordingly, expert testimony that would only serve to confuse the issue or evidence for the trier of fact should not be admitted. The expert should be able to clearly explain the scientific, technical, or other specialized knowledge in a manner that lay, non-experts, i.e. the jury or the judge, can understand, and it must in some way be relevant to the case.

According to the Court of Criminal Appeals, “[t]hese rules require a trial judge to make three separate inquiries all of which must be satisfied before admitting expert testimony: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case.” Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006); see also Malone v. State, 163 S.W.3d 785 (Tex. App.—Texarkana 2005, pet. ref’d), and TRE 702. “These conditions are commonly referred to as (1) qualification, (2) reliability, and (3) relevance.” Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Escamilla v. State, 334 S.W.3d 263 (Tex. App.—San Antonio 2010, pet. ref’d).

It is worthwhile to remind the trial court consistently of its gatekeeping function—and that it shouldn’t operate as a rubber stamp. It is common knowledge that junk science is a leading cause of wrongful convictions. After all, “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under [FRE] 403 of the present rules exercises more control over experts than over lay witnesses.” Daubert, 509 U.S. 579, 592–93.; see also Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994).

10. Do I need to have my expert testify at trial?

Not necessarily. Just because you have an expert and have even designated an expert doesn’t mean you have to call the expert. Sometimes you know going in that your expert will need to testify. Other times, it’s not so clear, and you must gauge whether it’s worth it—a judgment call. As with every witness, there are points to be gained and points to lose. It’s always a question of whether the net will be positive. However, be sure to prepare your expert for the possibility that he/she may not actually testify depending on the ebb and flow of trial.

As a practice point, though, don’t promise or mention your expert in jury selection or in opening. On the other hand, if you promise expert testimony in opening be sure to deliver in order to maintain credibility with the jury. Also, always be on guard for any argument or question(s) that may (attempt to) shift the burden or proof or undermine the presumption of innocence, as such seems to be the default argument from the State when defense has an expert. Prepare the jury for any such attempt by the State in jury selection. Be sure to educate the jury on the presumption of innocence, get everyone on “team innocent,” and indoctrinate them to the “take a knee” philosophy. Then, to bring it full circle, when it is time to rest confidently say, “Your honor, based on the law and the state of evidence we rest.”

11. Can an expert comment on truthfulness?

The short answer is no. This is a hard issue to determine or recognize in the middle of trial at times. If you think you should object, object. You can usually assume in a child abuse case that the State may have the expert do exactly that, though. Therefore, it is advisable to litigate this issue pretrial through a motion in limine. Remember, though, to object during trial because motions in limine do not preserve anything for appeal.

In Salinas v. State, 166 S.W.3d 368 (Tex. App.—Fort Worth 2005, pet. ref’d), a pediatrician testified she diagnosed sexual abuse based solely upon the history provided by the child complainant. The appellant claimed that such evidence was improperly admitted expert testimony that directly commented on the credibility of the complainant. The appellate court held that because there was no physical evidence of digital penetration, the doctor’s “testimony could only be seen as an attempt to directly bolster the credibility of the complainant and a direct comment on the complainant’s truthfulness.” “The trial court abused its discretion in admitting the pediatrician’s testimony that she had diagnosed sexual abuse based on the child’s medical history.”

Pediatricians have been recognized as expert witnesses in sexual abuse cases provided they do not testify that such children are truthful. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993).

Rape crisis counselors have been recognized as expert witnesses in sexual abuse cases provided they do not testify that the child is telling the truth. Black v. State, 634 S.W.2d 356 (Tex. App.—Dallas 1982, no pet.); Miller v. State, 757 S.W.2d 880 (Tex. App.—Dallas 1988, pet. ref’d).

12. How do I know what to ask my expert?

Communication with your expert is key. You must talk to your expert long before he or she testifies. Know what information you need to get out of your expert. Make sure your expert can adequately and clearly explain the scientific—whether hard or soft science—issues to you. Ask your expert questions. If you do not understand what the expert is telling you, there is no way the jury will understand what the expert is saying.

In Ex parte Ard, No. AP-75,704 (Tex. Crim. App. 2009) (per curiam) (not designated for publication), an aggravated sexual assault of a child case, the Court of Criminal Appeals held that trial counsel’s performance was deficient in that counsel failed to adequately prepare and present expert testimony concerning memory implantation.

The applicant’s defensive theory at trial was that the complainant’s accusations were a result of suggestion and coaching, which tainted the complainant’s memory. Trial counsel even had an expert witness—psychologist—testify. However, the Court of Criminal Appeals noted:

Though Dr. Michael Gottlieb, an expert on the subject, was ready and able to explain how false memory may be implanted by repetitious suggestion, trial counsel failed to adequately elicit testimony from the doctor that the theory is the subject of many treatises and is widely accepted by the scientific community, to explain how and why it can occur, and to enumerate those facts which, in his opinion, made the testimony of the alleged victim in the case suspect and unreliable. This failure on the attorney’s part fell below any objective standard of reasonableness, and there is a reasonable probability that, but for it, the result of the trial would have been different. This court finds that the inadequate presentation of such evidence, crucial to Applicant’s defense, was, under the standard of Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel. Considering the deficiencies in the presentation of Dr. Gottlieb’s testimony, based on a comparison of his trial testimony and his writ hearing testimony, it is the opinion of this court that there can be no confidence in the outcome of the trial. Id.

… 

Dr. Gottlieb’s trial testimony before the jury differed markedly from his writ-hearing testimony, not only in scope but in substance as well. In general, Dr. Gottlieb’s writ testimony was far more comprehensive than his trial testimony. The differences between the two cannot be attributed to counsel’s trial strategy. Id.

The moral of the case then is communication with your expert such that allows you to elicit necessary defensive expert testimony. Clearly, the opinion indicates that Dr. Gottlieb provided testimony at trial and at the habeas hearing on the same subject. Remember, the witness can only answer the questions that are asked. It is not enough to just have an expert witness. Be prepared to fully use the expert witness to the greatest extent possible.

13. Can an expert testify about diminished capacity due to mental illness or disease?

No. There is no diminished capacity defense in Texas. “The Texas Legislature has not enacted any affirmative defenses, other than insanity, based on mental disease, defect, or abnormality. Thus, they do not exist in Texas.” Ruffin v. State, 270 S.W.3d 586, 594 (Tex. Crim. App. 2008).

However, “such expert evidence might be relevant, reliable, and admissible to rebut proof of the defendant’s mens rea.Id. at 595. The leading case on this topic is Ruffin v. State, 270 S.W.3d 586. Be sure to read, study, and have this case on hand for any trial in which your client has a mental illness, disease, or defect that is just shy of insanity. In Ruffin, the Court of Criminal Appeals “repeat[ed] and reaffirm[ed] our holding in Jackson that ‘relevant evidence may be presented which the jury may consider to negate the mens rea element. And this evidence may sometimes include evidence of a defendant’s history of mental illness.’” Id. at 596.

As a cautionary tale, the State will typically try to keep expert testimony about mental illness out if it falls short of insanity. This is obviously because the nature of this evidence tends to mitigate and be beneficial to the defense. Again, this is where it is key to have an open line of communication with your expert. Knowing there is no diminished capacity defense in Texas and that the State will inevitably try to limit the expert’s testimony, just means that you and your expert have to game-plan and prepare proper questions in advance.