Monday, March 21, 2005

Expert Testimony

I find this type of expert testimony to be, well, interesting.... I paraphrase:
Q. The complainant has given inconsistent accounts.
A. Many complainants who are telling the truth do that.

Q. The complainant repeatedly denied the abuse.
A. Many complainants who are telling the truth do that.

Q. The complainant's time frame for the alleged offenses is impossible.
A. That often happens with young complainants who are telling the truth.


Q. Aren't inconsistent accounts, repeated denials, and an implausible timeframe also consistent with fabrication?
A. I'm not competent to say - I haven't studied false accusations.
I'm not sure what to make of that type of testimony. Does the expert mean to say that not one case of fabrication has been referred to him during his entire 1,000+ evaluations? That he is so overcome by the fact that false denials and confusion can occur in legitimate cases, he refuses to acknowledge basic common sense that they also happen in cases of false accusation? Does he fear that if he acknowledges the obvious that he will do something he finds unacceptable, such as making himself less knowledgeable than a demigod, or putting the prosecution's case at risk?


  1. . . . but just think where you could take him as you continued your cross examination:

    Have you studied "accusations" at all?

    What is the term of art for a "studier of accusations"?

    Do you have a degree in "accusation-ology" or would it be a degree in "true accusation-ology?"

    You stated that you haven't studied "false" accusations, have you studied "true accusations?"

    How did you determine in advance which was which?

    Oh, so you mean you only studied the cases that you had decided, before you studied them, were "true" cases?

    How do you know the people who did the deciding for you were right and why aren't they here testifying instead of you? (Okay, so that would get a sustained objection.)

    How many times have you testified as an expert witness?

    How many times have you testified as an expert witness for the defense?

    How much experience do you have treating children?

    In your expert opinion is it possible for children to lie, to be mistaken, to begin to believe the things their parents tell them whether they are true or not?

    Oh, I'm sorry, you don't feel like you have a basis to comment on that, but you did have enough of a background to feel comfortable answering similar question for the prosecution, didn't you?

    How much of your annual income is made testifying as an expert witness in cases involving allegations of child sex abuse?

    . . . and just to be clear you've always testified for the . . .

    Etc. etc. etc

  2. Absolutely. The use of expert testimony to turn common sense upside-down is bad enough (and I'm speaking here in general terms), but where an expert protests no knowledge of false accusations because most of the cases he reviews involve situations where charges have been filed... well, on top of the narrow evasion of the rule against testifying to the ultimate issue ("the complainaint's conduct is consistent with truth" as opposed to "the complainant is telling the truth"), the witness comes darn close to vouching for the police and prosecuting authorities ("I've never encountered a false accusation, because charges have already been filed", as opposed to, "the police and prosecutor never charge anybody unless the charges are true.")


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