The Expert Whisperer

By Clayton T. Robertson (Criminal Defense/Civil Rights Attorney)

So often our cases depend not just on eviscerating the state's case through effective cross examination, but also with an affirmative presentation of evidence. This can be done in several ways, including through your client, percipient witnesses, and character witnesses. However, in many instances, it is the creative, forceful use of expert testimony that can further demonstrate why the prosecution's case does not meet a proof beyond a reasonable doubt standard.

Depending on the case, I can think of many examples. These include forensic experts, medical experts, memory experts, identification experts, computer/digital experts, use-of-force experts, toxicology experts, etc. The list is virtually endless. One expert that I consider in every case is a former law enforcement officer (or another expert in the relevant field) who can advise me about why the investigation in a particular case was shoddy or incomplete.

There are also distinctions between "consulting experts" with whom you consult to prepare a case versus "testifying experts" who testify at trial. (And your consulting expert may turn into a testifying expert.) This does raise another reason to hire an expert, including early in a case -- particularly on highly technical cases involving computer crimes. You often need to consult with an expert to tailor your discovery requests to the prosecution so you get what you need. And your expert can also review the discovery for any gaps, omissions, errors, or possible defenses early on so you can start to develop a defense or avoid defenses that may not work (which would waste time).

Why does this all matter? Because your case could very well depend on it. For starters, your attorney needs to do their research often to even ask the right questions or hire the right expert. I often speak with experts at length before hiring them, which may also help with other cases. Of interest, some attorneys in the past are responsible for essentially creating entire fields of expertise as applied to U.S. courtrooms. A perfect example is Earl Rogers, a famous early twentieth-century criminal defense attorney who brought ballistics into the courtroom by bringing a German ballistics expert to Los Angeles to help vindicate his clients. This means a willingness to think outside the box is also important.

I also practice as a civil attorney, where experts are also vital components of any case, particularly to beat a motion for summary judgment and of course to win at trial. However, in a criminal case, where the burden on the state is so high, it is an expert that in good faith may create reasonable doubt for you.