BASICS FOR EXPERT WITNESSING – 101

1. BASICS FOR EXPERT WITNESSING – 101 Deborah D. Tucker, MPA IDEAS Conference 2011 New Mexico Coalition Against Domestic Violence September 27, 2011

2. Introductions Experiences in: • Working with victims of domestic and/or sexual violence • Court proceedings • Public speaking or education of professionals • Ride-alongs with law enforcement • What else could help prepare a witness? National Center on Domestic and Sexual Violence

3. Expert Witness • Definition • An Expert is someone who has knowledge beyond the ken of the jury and the general public. • An Expert’s knowledge can inform the judge and/or jury on a particular issue that the general public might not fully understand but that is relevant to the case. National Center on Domestic and Sexual Violence

4. Expert Witness • Purpose • Translate the experiences of battered women into what is understandable and reasonable to the Trier(s) of Fact, so they will understand concepts that those of us working in the field understand. • Help show how experiencing IPV shaped a battered woman’s actions. • Convey concept of “reasonable person” rather than “reasonable man”. • Explain the criterion of IPV, and how it had bearing on actions. National Center on Domestic and Sexual Violence

5. Kinds of Expert Witnesses • Scientific • This Expert, usually in research field, may be required to pass a Daubert challenge that the opinion • Based on Knowledge, Experience and / or Training • Most advocates, and those with direct experience, will qualify as an Expert under this category. • Generic. An Expert testifies / explains IPV in general terms. • Specific. An Expert testifies about generalities and specifics about the particular case because s/he has knowledge and possible contact in the case. • Fact • This Expert is called because s/he has definite knowledge about the particular case. National Center on Domestic and Sexual Violence

6. Expert Witness • Task • Although an attorney (representing a particular client or the government) might contact you, consider all the facts and evidence and render your opinion based on all the information. Depending on your opinion, the contacting party may decide either to use or not to use you. • Training • Training is having been involved in intervention and prevention work for 37 years, delivering services and examining practices of many professionals. National Center on Domestic and Sexual Violence

7. Types of Cases • Criminal • Prosecution or Defense • Federal or State • Trial or Sentencing • Family • Custody • Visitation • Possibility of Parental Abduction • Concept of “Friendly Parent,” Parental Alienation Syndrome • Property National Center on Domestic and Sexual Violence

8. Types of Cases • Civil • Provision for children • Long term care • Damages • Hearings • Governmental • Parole • Disability • Immigration • Asylum • Fraudulent marriage • Licensing Boards • Other National Center on Domestic and Sexual Violence

9. – The New Yorker, April 26, 2010 National Center on Domestic and Sexual Violence

10. What an Expert Might Testify About: • Nature and Dynamics • Recanting • Why a woman would stay • Battered Woman and Batterer as Parents • Sequelae of Child Witnessing • Lethality / Dangerousness • Jacqueline Campbell http://www.dangerassessment.org/WebApplication1/ • Barbara Hart http://www.mincava.umn.edu/documents/hart/hart.html • Others? National Center on Domestic and Sexual Violence

11. Outcomes • Attorneys often see as win vs. lose. • Experts seen as positive if victims believe they have been heard and someone understood. A sentence is not the end of the world. • Usually, experts do not win a case and do not harm it. • Most battered women take a plea or get convicted. • Experts in books. • Most cases do not go to trial. National Center on Domestic and Sexual Violence

12. Work of an Expert Witness • Establishing Credentials • Educating the Jury • For Each Case You May Need to Establish… • Forensic Report Writing • Mentoring Attorneys • Arranging Support National Center on Domestic and Sexual Violence

13. Resource National Clearinghouse for the Defense of Battered Women – they provide customized technical assistance to battered women charged with crimes and to members of their defense teams (defense attorneys, advocates, expert witnesses and others). 215-351-0010 and 800-903-0111, ext. 3 www.ncdbw.org National Center on Domestic and Sexual Violence

14. Tips for Testifying • Attire • Water • Pad and writing instrument • Friendly face • Know names • Card for reporter • Familiarity with the courtroom and procedures • Demeanor • Experience • Admit / Deny National Center on Domestic and Sexual Violence

15. General Agency Considerations • Is it consistent with the mission of the agency to bolster the credibility of a victim by providing Expert Witnesses? • Can the agency commit to serving victims by providing fact or Expert Witnesses in court? • Is this a part of community education? • Resource considerations (time, financial and availability of qualified and trained personnel) • Cultural competence National Center on Domestic and Sexual Violence

16. Agency vs. Individual Professional Considerations • Similarities and differences in development of protocols • Agency guidelines for staff • Professional acting in individual capacity National Center on Domestic and Sexual Violence

17. Overall Agency Considerations • Fees? • If, and when do you charge? • Who charges — agency or individual expert? • How much? • Are there community resources to call upon to serve as experts? • University/college, human service professionals • Former agency staff • State coalition staff • Others National Center on Domestic and Sexual Violence

18. Protocol Considerations • Deciding about cases / case-by-case review • Base on facts — is the case meritorious? • Where do you get the facts (interview, attorney, other documentation, etc.)? • Not gathering facts when testifying as Expert Witness • Is the case in the purview of your expertise? • Is the court asking for a written report? • Time and training to prepare • Implications for testimony National Center on Domestic and Sexual Violence

19. Protocol Considerations • Those who used shelter/services only or all victims? • Implications for victim served by the agency • Implications for victims not served by the agency • Circumstances for saying no to a case? • Batterers? National Center on Domestic and Sexual Violence

20. Protocol Considerations • Using consultation • Mentorship, supervision, etc. • Are other professionals working on the case? • Collaboration vs. independence • Pros and cons of psychological assessments National Center on Domestic and Sexual Violence

21. Developing an Agency Policy • Gather information • Needs of battered women • How to best help • Balancing all issues • Staff discussion • Ethical considerations • Pros and cons • Ensure policy is congruent with Agency’s mission National Center on Domestic and Sexual Violence

22. Recommendations • As issues not covered in the policy surface, be sure to address them. • Include in the policy how the resolution process will unfold. • Regularly review the policy, perhaps annually for needed updates, preferably with a Board member to assist. • Consider bringing in advisors from the community to discuss the experiences over the last year. National Center on Domestic and Sexual Violence

23. Input from the Group • Thoughts on the State Coalition’s role • More??? • PRACTICE!! National Center on Domestic and Sexual Violence

24. 5th Establishing Expertise as an Ethical Expert Witness – Experts and Lawyers Collaborating to Help Victims, 2013? 2011a huge success, learned and will do more in next one! National Center on Domestic and Sexual Violence

25. Comments? Debby Tucker, dtucker@ncdsv.org OR Toby Myers, tobymyers@yahoo.com National Center on Domestic and Sexual Violence