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How an Expert Can Help You Prove Your Case

How an Expert Can Help You Prove Your Case

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How an Expert Can Help You Prove Your Case

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  1. How an Expert Can Help You Prove Your Case And Support the Complaining Witness

  2. You Can Use an Expert to Help Explain: • Delayed reporting • Self-blame • Minimization • Inconsistent or fragmented memories • Lack of resistance or “frozen fright” • Continued contact with the defendant • Lack of physical injury

  3. You Can Use an Expert to Help Explain: • Victim’s demeanor after the assault • Common psychological reactions • Victim’s behavior is “consistent with” other sexual assault victims • Recantation

  4. Important Terminology:Rape Trauma Syndrome (RTS) • Developed to describe common reactions • Refers to stages of recovery • Not a psychological diagnosis • Not in DSM-IV • Should NOT be used by experts in court • Terminology still used by courts

  5. Important Terminology:Posttraumatic Stress Disorder (PTSD) • Primary trauma-related diagnosis in DSM-IV • Includes exposure to traumatic event & certain reactions and symptoms • Symptoms last more than one month • Preferred diagnosis for expert testimony • Does not include all common symptoms

  6. Important Terminology:Posttraumatic Stress Disorder (PTSD) • Experts need to explain other symptoms • Experts need to use other diagnoses • Not all sexual assault victims get PTSD • May be caused by other trauma • Courts often confuse with RTS • Testimony admitted in many courts

  7. Important Terminology:Acute Stress Disorder (ASD) • Diagnosis for immediate aftermath of trauma • Symptoms last two to thirty days • Describes PTSD-like intrusive thoughts & avoidance symptoms • If symptoms last more than thirty days, PTSD diagnosis used

  8. Levels of Expert Testimony:Level 1 • Responds to issues raised by defendant • Explains these behaviors are not unusual • Only provides general information

  9. Levels of Expert Testimony:Level 2 • Testifies about common post-assault behaviors • Does not examine victim or discuss victim’s behavior • General testimony • Includes description of PTSD or effects of rape • Should not use RTS

  10. Levels of Expert Testimony:Level 3 • Discusses how victim’s symptoms are “consistent with” PTSD or other diagnoses • Does not examine victim • Does not imply victim is telling the truth • Should not use RTS • Common form of testimony

  11. Levels of Expert Testimony:Level 4 • Testifies that victim suffers from PTSD • Probably needs to examine victim • Does not say victim was assaulted • Acknowledges other trauma may be the cause • Anticipate defense objection re: credibility • Should not use RTS

  12. Levels of Expert Testimony:Level 5 • The Danger Zone • Testifies that victim is telling the truth or victim was raped • Probably guarantees mistrial or reversal • DO NOT allow expert to cross this line • Invades jury’s province

  13. Other Types of Expert Witnesses • Don’t always need psychologist or psychiatrist • Can use other witnesses, such as: • Police department Victim Services Unit • Rape crisis center counselor • Can sometimes use lay witness testimony about post-assault behavior

  14. Privilege Issues • Very important in these cases • Particularly when using treating therapist • Therapist-client communication is privileged • May extend to rape crisis center counselors • May be waived • Avoid using treating therapist if possible

  15. Confidentiality Issues • Defendants often seek records • Very traumatic for victims • Even in camera review is traumatic • Courts have mixed responses • Some permit discovery • Others deny request • Can be waived, so be careful

  16. Using an Expert Who Will Not be Called to Testify • To help support the victim • To help you “follow the trauma” • To prepare voir dire questions • To prepare the victim’s direct exam • To prepare the defendant’s cross exam • To prepare your cross exam of the defendant’s expert

  17. Other Issues:False Reporting • Testimony about the incidence of false reporting • Some courts have held it is impermissible • Unless specifically allowed, avoid it • If the defendant seeks to introduce, object

  18. Other Issues:Defendant “Profile” Evidence • Defense offers testimony that defendant does not fit “profile” • NO validity to concept • Reputable researchers do not accept “profile” • Some courts permit it anyway • Strenuously object!