Iowa Supreme Court Limits Prosecutors' Cross-Examination of Experts
Litigators often want to ask the opposition's experts whether they have frequently testified on one particular side of an issue, as a way of suggesting that the experts are biased, or as a way of implying that the experts make their living from marketing reliably friendly opinions to litigants in need. Such cross-examination is widely assumed to be fair game.
Not necessarily, it transpires, if you're an Iowa prosecutor. The Iowa Supreme Court has ordered a new trial for a babysitter convicted of murdering a child under her care, based in part on prosecutorial cross-examination along these very lines. The prosecution's theory was that the babysitter had caused blunt head trauma to the child. The defendant's expert opined that that the child's head trauma had occurred much earlier. On cross, the county attorney's questioning attempted to connect the expert's opinion to a presentation the expert had given "in front of all the defense lawyers here in the State of Iowa." The prosecutor also asked: "You are routinely hired by the defense in cases where children are allegedly victims of child abuse and you testify on behalf of the perpetrator; isn’t that true?" The prosecutor went on to imply that the expert had testified on 46 occasions on behalf of persons charged with killing children.
The Iowa Supreme Court's opinion condemns such prosecutorial questioning as an "improper effort to demean the witness," citing the ABA Standards for Criminal Justice, which provide: "The interrogation of all witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily." Now what about civil trials? See State v. Werts, No. 173/01-1813 (Iowa Sup. Ct. Feb. 25, 2004).
Not necessarily, it transpires, if you're an Iowa prosecutor. The Iowa Supreme Court has ordered a new trial for a babysitter convicted of murdering a child under her care, based in part on prosecutorial cross-examination along these very lines. The prosecution's theory was that the babysitter had caused blunt head trauma to the child. The defendant's expert opined that that the child's head trauma had occurred much earlier. On cross, the county attorney's questioning attempted to connect the expert's opinion to a presentation the expert had given "in front of all the defense lawyers here in the State of Iowa." The prosecutor also asked: "You are routinely hired by the defense in cases where children are allegedly victims of child abuse and you testify on behalf of the perpetrator; isn’t that true?" The prosecutor went on to imply that the expert had testified on 46 occasions on behalf of persons charged with killing children.
The Iowa Supreme Court's opinion condemns such prosecutorial questioning as an "improper effort to demean the witness," citing the ABA Standards for Criminal Justice, which provide: "The interrogation of all witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily." Now what about civil trials? See State v. Werts, No. 173/01-1813 (Iowa Sup. Ct. Feb. 25, 2004).
<< Home