Avoiding the One-Eyed Expert and Handling the Others

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Saturday, November 5th, 2016
Avoiding the One-Eyed Expert and Handling the Others

In the early 1990s, when I was a law student, I worked on an appeal from the re-sentencing trial of a Travis County capital murder case, that of David Lee Powell. That case had previously gone to the United States Supreme Court twice, before being reversed, as the Texas and federal courts grappled with questions of the admissibility of psychiatric predictions of “future dangerousness” in death penalty cases.1 Some of the predictions of violence in Powell’s case had been made by Austin psychiatrist Dr. Richard Coons. Coons testified at Powell’s 1991 re-sentencing, just as he had done at Powell’s original 1978 trial, that Powell would commit criminal acts of violence in the future.

Reading the record of both trials, I was repeatedly struck by the fact that Coons seemed to have no real basis for his opinions other than, well, his own opinion. It also dawned on me that even though I personally thought that Coons’ opinion was ridiculous, given Powell’s many years of exemplary behavior on death row, I had absolutely no idea how one could effectively challenge such questionable expert testimony. That awareness of my own ignorance sparked my long-standing interest in issues concerning the integrity and admissibility of expert testimony. Alas, it was only many years later—and after Powell’s execution—that I finally succeeded in making an effective challenge to Dr. Coons’ testimony—in Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010). Coble was represented on appeal by Walter M. Reaves Jr., but I contributed the appellate briefing on the specific issue of whether Dr. Coons’ testimony had been properly admitted under Tex. R. Evid. 702. The Court of Criminal Appeals agreed, finding that no scientific basis had been demonstrated to support Dr. Coons’ predictions of future dangerousness.2

Judging by the number of queries about hiring, funding, and challenging experts that are posted on the TCDLA listserve, it seems that the current generation of new attorneys are emerging from law school, as I did, with little training in how to challenge the State’s experts—or how to hire and use their own. I hope this lightning tour of some of the relevant areas and rules will help new colleagues to gain traction in this area faster than I did, as well as being useful to more seasoned members:

I. Selecting Your Expert and Investigating Their Expert

Choosing the right expert is something that will depend on the facts of each individual case. There is no single way to find an expert. It takes diligence, effort, and persistence often times. You can find an expert by reading relevant cases, asking for recommendations from the TCDLA listserve and colleagues, and researching the scientific literature using Google Scholar. Bear in mind that your expert must be able to address the “very matter” raised in the case in question, since the burden will be on you to prove that they are qualified under Tex. R. Evid. 104(a). See Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). Do enough background reading, and question your potential expert(s), to be certain that you are hiring someone with precisely the right expertise—a psychologist is not much good to you if you need a pharmacologist, for example.

If you are not familiar with the process of hiring and using experts, be warned that it is a slow process. Finding the right person, obtaining the funds with which to hire them, briefing them, allowing them to do their work, and consulting with them and preparing them to testify always takes far longer than seems reasonable. If you think your case calls for expert input, you are well-advised to start the process early in the life of the case.

Be sure to investigate your own experts as well as the State’s potential experts. Some experts have top-flight credentials and unimpeachable private lives. Some don’t. Google them, check their listings on professional licensing authority websites for disciplinary problems, consider running the same record checks on them that you would for the state’s lay witnesses. Ask them if they have ever not been permitted to give expert testimony. Ask about prior courtroom experience, and for the names of the attorneys involved. Then ask those attorneys for transcripts. Question your potential experts about any facts you uncover that give you pause. If they have published journal articles, look at those articles and run them through your “common-sense-o-meter.” Ask them what they are generally cross-examined about. While some experts are doing truly cutting-edge work in their field, others are simply oddballs. Even if an expert swears that their unique theory will help your client, consider whether really marginal scientific evidence will even be admissible.

Consider whether an expert who aggressively markets him or herself as an expert is someone you actually want to use. One such character has popped up from time to time on different lists, promoting himself as a “medical-legal consultant.” A little “googling” shows him to have a record of drug convictions, licensure problems, allegations of domestic violence, and other “baggage” in his background. See In re. Application of Elliot B. Oppenheim, 159 P.3d 245 (N.M. 2007).

Deconstructing State’s experts’ resumes can be enlightening. In In the Matter of West Virginia State Police Crime Lab, 438 S.E.2d 501 (W.Va. 1993), “expert” serologist Fred Zain, who later worked in Texas, had claimed to have a minor in chemistry that was not reflected on his academic transcript, and had only 10 hours of chemistry courses in which he received a grade of “C” or above. Similarly, when I was preparing to cross-examine Dr. Coons in a capital case, Public Information Act requests revealed that although Dr. Coons claimed in his C.V. to have provided “consultation” services for various state agencies such as the Medical Board, those agencies could provide no documents to support most of those assertions. Also, look carefully at any professional organizations of which the expert claims to be a member—do they actually even exist? Can anyone buy their way in?

There have been cases where the experts have not even been experts. In a Harris County capital murder case, a witness falsely claimed to be a psychologist—Ex parte Matthews, 933 S.W.2d 134 (Tex. Crim. App. 1996)—but subsequently turned out only to have a degree in music.3 In Drake v. Portuondo, 553 F.3d 230 (2nd Cir. 2009), the prosecution “psychologist” had hugely exaggerated his qualifications and previous experience, and testified concerning a fictional syndrome of sexual dysfunction, dubbed “picquerism,” in which the perpetrator realizes sexual satisfaction from penetrating a victim by sniper activity or by stab or bite wounds. In that case, the prosecution’s belated notice to the defense prevented counsel from investigating evidence that turned out to be nonsense. Id. at 245.

When selecting a forensic expert, beware of hiring someone whose testimony will not be admissible because of Tex. Code Crim. Proc. Art. 38.35, which governs the admissibility of evidence of forensic analysis of evidence—meaning “a medical, chemical, toxicologic, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action.” The term includes an examination or test requested by a “law enforcement agency, prosecutor, criminal suspect or defendant, or court,” but there are some exceptions, including latent print examinations, tests of a specimen of breath, digital evidence, presumptive tests performed as part of community supervision or parole, or an “expert examination or test conducted principally for the purpose of scientific research, medical practice, civil or administrative litigation, or other purpose unrelated to determining the connection of physical evidence to a criminal action.”

The testing or analysis covered by Art. 38.35 is only admissible if it is performed by a crime laboratory which, at the time of the analysis, was accredited by the Texas Forensic Science Com­mission or was eligible for accreditation and subsequently became accredited. Considering the sweep of Art. 38.35, there is remarkably little case law concerning its use, although in one gratifying case—at least from the defense point of view—a revocation of community supervision was reversed because the defendant’s urine sample had been tested by an unaccredited lab. Hargett v. State, 472 S.W.3d 931 (Tex. App.—Texarkana 2015, no pet. h.).

A further consideration when hiring an expert is licensure. Out-of-state experts are not automatically licensed to perform their professional function in-state. For each licensed profession, it is necessary to check what the requirements are for the out-of-state individual to get a temporary Texas license, if required by law. The rules governing each profession may differ: In preparing for a recent case, I was informed that the Texas Board of Examiners of Psychologists requires a temporary Texas li­cense if an out-of-state expert is testifying, whereas the Texas Medical Board apparently only requires a psychiatrist to have a temporary license for the actual examination of the patient, but not for testifying. Bear in mind that practicing a profession without a license can be a criminal offense. Tedious and time-consuming as it is to sort out such details, it’s better than handing the State a great impeachment tool.

II. Paying Your Expert

An attorney who fails to know the relevant law concerning the hiring and use of experts is likely to render ineffective assistance of counsel. With luck, few of us will manage as spectacular a failure as the attorney in Hinton v. Alabama, 134 S. Ct. 1081 (2014), who neglected to read the up-to-date Alabama fund­ing statute and operated under the mistaken belief that he could pay an expert no more than $1,000. The attorney hired a firearms expert who had graduated more than half a century previously—in civil engineering—and had to be helped by the state’s expert in operating a microscope at the state laboratory. That may have been unsurprising given the following fact that came out on cross-examination:

Prosecutor: Mr. [Expert], do you have some problem with your vision?
Expert: Why, yes.
Prosecutor: How many eyes do you have?
Expert: One.

Counsel was held to have been ineffective and the case was reversed. Hinton was subsequently released, after three decades on death row, when the prosecution dropped all charges against him. Abby Phillip, “Alabama inmate free after three decades on death row. How the case against him unraveled,” Washington Post, April 3, 2015.

Fortunately, the law concern funding for experts and investigators in a criminal case is not complicated. An indigent client is entitled to necessary expert assistance under Ake v. Oklahoma, 470 U.S. 68 (1985)(failure to provide indigent petitioner with psy­chiatric assistance to prepare his insanity defense and to assist in sentencing was a violation of due process). It is worth quot­ing the language of Ake to all judges every time, since Ake restates the “elementary principle” that every criminal defendant, indigent or otherwise, must have “a fair opportunity to present his defense.” Ake, 470 U.S. at 76. The Court spoke in terms of the “basic tools of an adequate defense” and the “raw materials integral to the building of an effective defense” in concluding that a defense expert may be such an element. The Court also emphasized that the accuracy of the jury’s determination, a substantial interest common to both parties, may be “dramatically enhanced” with the appointment of an expert. 470 U.S. at 83.

The right to assistance is not limited to mental health experts, but extends to any type of expert. Rey v. State, 897 S.W.2d 333, 338–39 (Tex. Crim. App. 1995). Rey reversed a capital murder conviction where the trial court had denied a defense request for a pathologist expert, holding that “the necessity for the appointment under Ake will depend upon whether the defendant has made a sufficient threshold showing of need for the expertise of [the specific type of expert] in that particular case.” Id. at 339. It is therefore necessary to ensure that your motion states what type of expert you are seeking to engage, how they will be useful in challenging the State’s case or putting forward a defense or mitigation evidence, and why their evidence will be important in the context of the case.

If you have time and are working with a cooperative expert, it can be very helpful to obtain an affidavit from the expert stating his/her background and qualifications, initial understanding of the case, and explaining what he/she would do, if hired. At a minimum, obtain an up-to-date copy of the expert’s C.V. and attach it to your motion, along with any other relevant materials such as police reports or medical records that help demonstrate why an expert is needed. If it is reasonably expected that the state will rely on expert testimony or opinions, then state as much in your motion for funding. Remind the judge that you are a lawyer, not a doctor, psychologist, pathologist, etc. As such, we, as lawyers, are not required to possess the expertise of any other profession and cannot be expected to do so. Upon an adequate showing of need, you are entitled to the assistance of your own defense expert, and should not be required to rely on the work of a “neutral” expert, let alone the State’s expert’s work. De Freece v. State, 848 S.W.2d 150 (Tex. Crim. App. 1993)(appellant was entitled to appointment of his own psychiatrist in order to assist in preparing and presenting insanity defense).

Even if you have been retained by your client—or their family members—it is possible to obtain funding for a necessary expert if the client has insufficient funds remaining to pay for a necessary expert. In fact, counsel may render ineffective assistance if they fail to move for expert assistance in such circumstances. See Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)(reversing conviction where counsel had made economic decision, unsupported by strategic purpose, not to investigate or seek expert assistance, and failed to move for funding).

Expert and investigator funding requests are governed by Tex. Code Crim. Proc. Art. 26.05(d):

A counsel in a noncapital case, other than an attorney with a public defender’s office, appointed to represent a defendant under this code 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 Articles 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).

Tex. Code Crim. Proc. Art. 26.052 (f)–(h) reads:

(f) Appointed 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.4

(g) The court shall grant the request for advance payment of expenses 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.

(h) Counsel 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 law provides that your application for funding is confidential. Both your requests, and the trial court’s responses, should therefore be made ex parte under seal. This provides a rare opportunity—which must of course be within the boundaries of what is ethical—to give the trial court a sympathetic preview of your client’s case without the State having input or distracting the judge.

III. What They Don’t Teach You at Law School: Filing under Seal

Documents filed under seal in the court record are not available to the general public or your opposing counsel. No Texas statute or court rule that I have ever discovered explains the mechanics of filing under seal, and judging by some of the appellate records I have seen, many court clerks and trial attorneys do not grasp how to do it:

1) Make sure that every motion or proposed order that you file under seal bears language to the effect of: “Ex Parte Motion [Or Order] to Be Filed and Kept under Seal and Disclosed Only to the Trial Court and Counsel for Defendant. Disclosure to the Public or to the State of Texas is Prohibited.”
2) If filing under seal in a jurisdiction that still accepts pa-­ per filing, provide your motion and proposed order to the clerk, and make sure that you get a file stamped copy of what you file so that you have a full record of your own requests—not all clerks understand the process, and I have more than once had a case where ex parte filings were not recorded on the docket sheet, in accordance with Tex. Code Crim. Proc. Art. 33.07.
3) It is wise to write a cover letter to the clerk and file it in the public record indicating that you are filing something under seal that should be provided to your judge and no one else.
4) It is also a wise practice to provide the clerk with large envelopes to use when placing the sealed document in the case file, with a cover sheet securely taped to the front indicating the style of the case, the court, and that the contents are a document filed under seal (using the language above). I provide two envelopes—one for the Motion and one for the Order—and hole punch the tops to go into the court file, so that the clerk can file the doc­u­ments under seal with minimal effort.
5) In an electronic filing jurisdiction, check with the rele­vant clerk about the local procedure—the State’s electronic filing system does not seem to be set up to accommodate ex parte/sealed pleadings or orders. The usual methodology seems to be to “e-file” a cover sheet to in­di­cate that the filing is being made, and then to email the relevant documents to the clerk, or send them by U.S. mail or Fedex.5

IV. Working with Your Expert

When working with an expert, it is good practice to send them a detailed retainer letter, covering the following:

1) The purpose for which they have been hired, and what exactly their role is intended to be;6
2) The agreed/authorized fee, and what it does and does not cover (I had to admire the nerve of the expert who claimed that a public defender office I was working for should be liable for paying the taxes on his fee . . . !);
3) Make it clear that the expert must inform you if they appear likely to run over the agreed fee amount, and that you are not automatically agreeing to pay excess fees;
4) Explain if the expert is expected to testify or not, or whether you will need to move for additional hours of funding to cover that function;
5) Give clear deadlines for their work—e.g., date by which you need a report or when testimony is expected to be needed;
6) Even if the expert is experienced, explain the scope of the attorney-client privilege, and remind them that they are bound by it—i.e., no discussion of the case outside the defense team, or in locations which are not private, and no provision of documents to another expert, or anyone else, except with prior approval from the defense;
7) Explain, and list in an index, what materials you are pro­viding to them, and ask them not to destroy those materials, ever, without checking with the client’s legal representatives at that time. The purpose of the index—which should be supplemented if you provide additional materials—is to make sure that questions on cross-ex­am­ination about what materials were provided can be answered clearly and correctly, as well as to ensure you have a clear picture of what the expert has received;7 and
8) Explain whether you want a written report to be prepared. Even if you think you do, ask the expert to discuss their findings before they are committed to paper.

One of the most common things I have heard from experts—and which comes up time and again in ineffective assistance cases—is the failure of counsel to provide the expert with sufficient information to enable them to really do the best they can for the client. For example, if asking an expert to work on a case involving mental health issues, the expert cannot be expected to form a complete picture and make an accurate diagnosis without copious background material such as medical records and input from people who have known the client for a long time and can give accurate information about him/her, even if s/he cannot her/himself. Do not assume that an expert will ask you for additional material: They may similarly assume that you know what they need and have provided whatever you can.

Even if the subject matter that the expert has been hired to review seems esoteric, and one is tempted to just hand over to the expert and abdicate responsibility, it’s essential to acquire some familiarity with what the expert is doing in order to be able to make informed decisions. That need was demonstrated in Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007), where trial counsel retained an arson expert late in the case and simply deferred to his conclusion, which agreed with the State’s experts without ques­tion. In reversing Richey’s conviction, which had kept him on death row for 21 years, because of counsel’s mishandling of the scientific evidence, the Court said:

[I]t is inconceivable that a reasonably competent attorney would have failed to know what his expert was doing to test the State arson conclusion, would have failed to work with the expert to understand the basics of the science involved, at least for purposes of cross-examining the State’s experts, and would have failed to inquire about why his expert agreed with the State. A lawyer cannot be deemed effective where he hires an expert consultant and then either willfully or negligently keeps himself in the dark about what that expert is doing, and what the basis for the expert’s opinion is. . . . The point is not that [counsel] had a duty to shop around for another expert who would refute the conclusions of [the defense expert] and the State’s experts. The point is that [counsel] had a duty to know enough to make a reasoned determination about whether he should abandon a possible defense based on his expert’s opinion. . .

Thus, one should aim for an informed dialog with the expert about the strengths and weaknesses on both sides of the case. That can include picking the expert’s brain about the state’s experts, discussion of the most effective ways to present their evidence, anticipation of difficult prosecution questions or potential for jury confusion.

It is also advisable to place your testifying experts under subpoena. That way, if they fail to show up at court for some reason, you are in a stronger position to argue that you have been diligent in trying to obtain their presence if you have to file a motion for a continuance, Tex. Code Crim. Proc. Art. 29.06. You can also argue that your client has been denied the right to compulsory process and a fair trial if the court will not issue an attachment and allow enough time for your expert to get to court.

V. Discovery

Under Tex. Code Crim. Proc. Art. 39.14 (b), if the State has made a request 30 days in advance of jury selection or the presentation of evidence in a non-jury trial, you must notify them of the name and address of any expert you intend to call. You should similarly make an early request for the state’s expert’s contact information. The notification to the other side of expert witnesses is a critical step, not only because failure to timely designate the experts called to testify may result in the exclusion of their testimony—see Osbourn v. State, 59 S.W.3d 809, 815 (Tex. App. – Austin 2001, aff’d after review on other grounds, 92 S.W.3d 531 (Tex. Crim. App. 2002)—but because “once a party designates a particular person as an expert that he may use as a witness at trial, that person is no longer a ‘consulting’ expert, he is a ‘testifying’ expert, and the opposing party, whether the State or the defendant, may seek further information from or about him for use at trial.” Pope v. State, 207 S.W.3d 352, 360 (Tex. Crim. App. 2006). The critical distinction between a “consulting” and a “testifying” expert is that a consulting expert assists the defense in developing strategies and theories, and “is protected by the work-product doctrine when that material reflects the expert’s thoughts regarding the strength and weaknesses of a defense theory.” Thus, the consulting expert’s mental impressions and opinions are not discoverable until and unless they are designated to testify, and unhelpful expert opinions can legitimately be withheld from the State.

VI. Admissibility of Expert Testimony

I’m going to leave the question of how best to present testimony from your expert, and how to cross-examine the State’s experts, for one of my trial-attorney colleagues to discuss some other time. However, before the jury gets to hear expert testimony, the trial court has to address the question of admissibility. The trial court is supposed to perform a “gatekeeper” role, and indeed must do so if requested. Daubert v. Merrell Dow Pharms., 509 U.S. 579, 596–97 (1993)(emphasizing that scientific evidence must be reliable and that trial court has responsibility to screen proposed evidence for reliability); Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996)(trial court, in gatekeeper role, can weed out “junk science”). The trial court cannot be expected to act spontaneously, however, and normally one of the parties must start the ball rolling if they are to challenge their opponent’s evidence. In addition to preparing to challenge the state’s experts, defense counsel needs to be ready to meet the state’s challenges to defense witnesses. There are four separate rules of evidence that need to be considered, covering the expert’s qualifications, the reliability of their proposed evidence, the facts and data underpinning the expert’s opinion(s), and whether the evidence is relevant.

1) Qualification

As mentioned above, the proponent of the evidence bears the burden of proving that a witness is qualified pursuant to Tex. R. Evid. 104(a): “The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.” Consider asking the court to conduct any hearing on witness qualification outside the presence of the jury, Tex. R. Evid. 104(c), and to allow enough time for that hearing, perhaps by allowing the jury to arrive at court later in the morning, by scheduling hearings on witness qualification and admissibility of evidence for earlier in the day or on day earlier than trial.

Qualifying a witness necessitates proving that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject. For example, in Vela, the defense wanted to use a sexual assault nurse examiner who, drawing on her general nursing experience, opined that no sexual assault had occurred. Her testimony was excluded, and the Court of Criminal Appeals subsequently affirmed, pointing out that the intermediate court of appeals had “made no meaningful inquiry into [the witness] qualifications in that specific area of expertise,” namely the physical indicia of rape. Id. at 133. The Court emphasized that “possessing knowledge and skill not possessed by people generally . . . does not in and of itself mean that such expertise will assist the trier of fact regarding the issue before the court.” Vela, 209 S.W.3d at 131 n. 12, quoting Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996).

So, be prepared to articulate precisely to the court, if your expert is challenged, why she or he satisfies the Rule 104(a) standard. Likewise, consider challenging a prosecution expert who appears not to have sufficiently specific knowledge to give the proposed testimony.

2) Relevance

As with all evidence, the proponent must be able to prove that proposed expert testimony tends “to make a fact more or less probable than it would be without the evidence,” and that the fact in question is “is of consequence in determining the action.” Tex. R. Evid. 401. Very general background testimony that does not contribute to the jury’s understanding of the specific facts of the case is therefore ripe for challenge.

3) Adequate Support for the Expert’s Opinion

One of the least-appreciated gifts given to defense attorneys is Tex. R. Evid. 705. Tex. R. Evid. 705(b) gives the right to a voir dire examination directed to the “underlying facts or data” upon which the expert’s opinion is based. Rule 705(c) further provides for the exclusion of the expert’s opinion if the underlying facts or data do not provide a sufficient basis for the expert’s opinion to be admissible under Tex. R. Evid. 702.

Affording a defendant the chance to voir dire the State’s expert witnesses gives defense counsel the opportunity to determine the foundation of the expert’s opinion without fear of eliciting damaging hearsay or other inadmissible evidence in the jury’s presence. Goss v. State, 826 S.W.2d 162, 168 (Tex. Crim. App. 1992). A Rule 705(b) hearing may also supply defense counsel “with sufficient ammunition to make a timely objection to the expert’s testimony on the ground that it lacks a sufficient basis for admissibility. Because Rule 705(b) is mandatory, a trial judge’s denial of a timely and proper motion for such hearing would constitute error.” Alba v. State, 905 S.W.2d 581, 588 (Tex. Crim. App. 1995).

Thus, if mounting a serious challenge to a state expert’s testimony, consider issuing a subpoena duces tecum to the state’s expert for production of the material they are relying on as a basis for their opinion. If they are likely to rely on past training, department manuals, statistical data, and so on, ask to receive those within sufficient time for you to review them and, ideally, consult with your own expert in order to establish reasons why the material does not support the expert’s opinion.8 Then demand the hearing, which is yours as of right under the rule, but please note that this is an area where it is necessary to be prepared to “drill down” and really engage with what the expert is saying in order to be able to explain to the trial court why the expert’s opinion is not sufficiently supported. All too often, appellate records reveal expert witnesses being questioned about the facts they are relying on and simply responding with conclusory answers—e.g., “I learned about that in my post-graduate training”—without being asked to explain further about the training in question, texts relied on, countervailing theories, and so on.

Additionally, if you are preparing to call an expert witness, it is necessary to be ready to meet a challenge by the State to your witness’ facts and data. Failure to do so can result in the testimony being excluded, as well as creating the risk of allegations of ineffective assistance of counsel. See, e.g., Ex parte Ard, No. AP-75,704, 2009 Tex. Crim. App. Unpub. LEXIS 181 (Tex. Crim. App. 2009), where trial counsel in a child sexual abuse case failed to elicit sufficient information from an expert on scientific theories concerning the implantation of false memories by repetition and suggestion, and “neither questioned [the expert] in front of the jury about the research supporting his tes­timony, nor offered any exhibits into evidence, despite the fact that [the expert] had brought to trial most of the articles and studies offered into evidence at the writ hearing.”

4) Reliability

The reliability of expert testimony is governed by Tex. R. Evid. 702, which states: “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise 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.”

Discussing the requirement of “helpfulness” in Rule 702, the Court of Criminal Appeals, in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), adopted three criteria for assessing the need for reliability of scientific evidence admitted under the rule: “(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.” Kelly then set out a further non-exclusive list of factors that could affect a trial court’s determination of reliability: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the experts testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Kelly, 824 S.W.2d at 573.

Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), later modified the Kelly criteria for assessing the reliability of expert testimony in cases involving “soft” sciences such as psychology—as opposed to, e.g., physics or chemistry: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.

Given the close relationship between the subject matter of Rules 702 and 705, you should have little trouble persuading the trial court that it makes sense for you to have a hearing on the admissibility of the State’s expert testimony under both rules outside the presence of the jury, even though that hearing is mandatory only for Rule 705 inquiries.

When preparing to litigate the admissibility of expert testimony, decide which of the two approaches—Kelly or Nenno—applies in your case, and examine which of the three relevant criteria need to be attacked (if you are dealing with a State expert) or proved. An overly broad challenge that fails to home in on specific areas is unlikely to succeed. See, e.g., Coble v. State, 330 S.W.3d 253, 274, 279 (Tex. Crim. App. 2010)(only third prong of Nenno inquiry, whether Dr. Richard Coons’ methodology properly relied upon the accepted principles of forensic psychiatry, was at issue, and Court concluded “the prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coon’s methodology for predicting future dangerousness”); compare Brewer v. State, No. AP 76,378; 2011 Tex. Crim. App. Unpub. LEXIS 888 *24 (Tex. Crim. App. 2011)(broad-based attack on all psychiatric and psychological testimony on future dangerousness did not preserve a contention that a particular methodology was unreliable).

If you can come up with some additional factor, beyond those articulated in Kelly, for the court to consider in deciding admissibility, you should feel free to do so. If your judge is reluctant to allow a challenge, or to rule evidence to be inadmissible because the expert is a “regular” in that court, bear in mind that as Coble confirmed, id. at 275 n. 56, expert testimony cannot be “grandfathered” in simply because courts have admitted testimony by the same witness in the past. See also Hernandez v. State, 116 S.W.3d 26, 30 (Tex. Crim. App. 2003).

Coble confirmed that it is the proponent of the evidence in question who has the burden of establishing its admissibility in every case, id. at 275–76, citing Hernandez v. State, 116 S.W.3d 26, 30 (Tex. Crim. App. 2003), and that burden is only satisfied by clear and convincing evidence that the testimony is sufficiently relevant and reliable to assist the jury. Id. at 279; Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Remind the court of this heightened evidentiary standard, which should be used to exclude marginal expert testimony.

Don’t forget that the State can challenge the admissibility of your expert’s testimony, and that you and your expert need to be prepared to meet such a challenge. Get any experts that you are proposing to call to review the criteria they are likely to have to meet, and have them explain in detail and to your satisfaction how their testimony fulfills each of those criteria.

Finally, after conducting a Rule 702 or Rule 705 hearing, do not forget to make a full objection to the State’s expert’s reliability and testimony. Even if you filed a motion in order to obtain the hearing, and explained why the hearing was sought, error still needs to be preserved for appellate purposes. Brewer v. State, No. AP 76,378; 2011 Tex. Crim. App. Unpub. LEXIS 888 *24 (Tex. Crim. App. 2011); Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008).

Notes

1. Powell v. Texas, 492 U.S. 680 (1989); Powell v. Texas, 487 U.S. 1230 (1988).

2. To my knowledge, since the 2010 Coble opinion, Dr. Coons has never been called to testify in a capital case, and is now in retirement. He had testified in over 40 capital murder cases, and at least 14 of those defendants have been executed.

3. See also Edward Lazarus, Closed Chambers, Times Books 1998, pp. 49–73, for an account of the same case. It turned out that the “psychologist” only had a degree in music.

4. You may wish to include the fact that a trial court’s improper denial of funding for experts is a structural error which cannot be evaluated for harm and therefore requires reversal on appeal. Rey, 897 S.W.2d at 245.

5. The funding provisions in federal court are somewhat similar to those in state court. For those unfamiliar with the process in federal court, the Criminal Justice Act (CJA) Guidelines are invaluable, see http://www.uscourts.gov/rules-policies/judiciary-policies/criminal-justi... (last accessed September 5, 2016), and the local CJA representative can also provide guidance. In federal court, 18 U.S.C.§ 3599 covers fees for expert and investigators for capital cases, and 18 U.S.C. § 3006(A) controls such matters in non-capital cases. And, as with state court, every federal court seems to have a slightly different regimen for filing sealed or ex parte documents using the PACER/ECF system, the details of which should be checked in advance.

6. Unless you are 100% sure that they are familiar with the law, send the expert a copy of any statute or relevant cases governing the relevant legal standards that their testimony is designed to meet—their testimony must, after all, be relevant to a question that the finder of fact has to answer.

7. I find it convenient to keep an “identical twin” of the file of material provided to the expert.

8. It should also be kept in mind that Crawford v. Washington, 541 U.S. 36, 68 (2004), forbids the State from introducing testimonial hearsay at trial unless the declarant testifies or the Confrontation Clause of the Sixth Amendment is otherwise sufficiently honored. Crawford therefore allows challenges to be made to expert testimony which relies on the substance of a non-testifying witnesses’ testimonial statements. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).