By Criminal Defense Lawyer Jeremy Rosenthal
Expert witnesses are an important part of trial advocacy.
What is an Expert Witness?
A person with specialized knowledge of a particular is allowed to testify provided they comport with other rules surrounding reliability in both Texas and Federal Courts.
Judges have a detailed legal framework they must follow to determine if a particular expert may testify in a particular case.
Experts can testify in applied scientists such as DNA or blood analysis, areas such as computer forensics, cell phone tower triangulation, and in soft sciences such as therapy or domestic violence, and even in areas such as accounting, plumbing, or as in the movie “My Cousin Vinny,” — independent rear suspension cars made in the 1960’s.
Do I Really Need an Expert Witness?
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The defense can establish their own trial theory either through their own witnesses and experts or through the prosecution’s witnesses and experts. Prosecution witnesses and experts are predictably uncooperative with us and some of their experts will easily admit to shortcomings in the state’s case and others won’t. There is no substitute for the clarity and power a good expert witness can provide on your side.
There are risks to proffering an expert witness in your defense. A good expert witness should be loyal to their discipline – not necessarily to you winning your case. This helps them be credible. But this also means your expert may have to admit to facts which can hurt your case when the prosecutor asks… and sometimes those could be facts and analysis the prosecutor was never aware of in the first place.
Ultimately the complexity of certain issues often dictates. Trial is teaching the jury a theory. That can be hard with a state’s expert who sees it as their job to make sure you lose. A good expert witness on your own side is often necessary.
Why is an Expert Witness Paid?
I don’t work for free and neither do you. I haven’t met anyone who does.
The fact a defense expert witness is paid and how much are typically good fodder for prosecutors on cross examination. If you think about the fact they’re paid – it’s actually a good thing. That is because testifying is their livelihood and for that reason they wouldn’t jeopardize it by saying crazy or quack science when a court reporter allows everyone in the State to know how they testify.
The Court Can Pay For Your Expert
The Court can pay for someone’s expert witness in certain instances — even if the lawyer is retained privately. The expert must be willing to accept the court’s payments which are typically lower than on the private market and the Court will underwrite and evaluate Defendant’s financial status.
Ask your lawyer about Court assistance for experts if money is tight.
*Jeremy Rosenthal is board certified in criminal law by the Texas Board of Legal Specialization. He is designated as a Texas Super Lawyer by the Texas Board of Legal Specialization.