Cross-Examination: Experts

In January 2003, law enforcement agents executed an anticipatory search warrant after a controlled delivery of marijuana and cocaine to TP. While agents attempted to execute the warrant, TP fired his gun through the window, striking an ATF agent in the face. TP would claim he believed it was “a green-eyed Mexican” coming to rob him again.

At trial, the defense called a former DEA agent as an expert to criticize the search warrant execution and opine that it was reasonable for TP to believe he was being robbed.

The cross-examination was important.

Cross-examining experts is its own cross-X niche. But don’t be afraid of it. Just like other kinds of cross-x, go through your preparation/decision matrix.

Did it hurt me? If no, don’t cross. If yes, set simple realistic goals and get out once they are accomplished. Same as any other cross.

There are extra wrinkles to experts, though. Often, you can find a preview of their testimony and how they handle questions in court by finding transcripts where they testified in other cases.

Read what they wrote, review their credentials, educate yourself. Are they really experts in THIS area?

Interview them about how they reached their conclusions in this case.

Find out how much they are getting paid by the other side.

Learn whether their prior testifying experience is “imbalanced” – i.e., do they always testify for the defense/plaintiff?

Here’s how I handled the expert in that case:

I got him to admit he had formed his opinion WITHOUT:

1.      Interviewing the agents, CI, or even TP himself. He only reviewed TP’s written statement.
2.      Reviewing the surveillance tapes.

I got him to admit he did NOT KNOW the following facts:

1.      Porch light was on
2.      All agents had gear prominently displaying their agency
3.      There was a pre-raid briefing
4.      There was an ops plan
5.      There were multiple attempts to breach the door
6.      There were multiple attempts by agents to loudly identify themselves
7.      The nature of the entry was vastly different than when TP had been robbed
8.      TP expressed concern about police showing up on a recording earlier that day
9.      TP shot at officers even after making eye contact after they threw badges in the door
10.  He had to be told 3x to put his gun down

Then I turned him into my own witness:

I had him confirm that based on his training/experience as a DEA agent in the past, he DID KNOW the following:

1.      Drug traffickers use guns to:

Protect drugs

Protect $

Protect selves

Intimidate

2.      Drug dealers’ use of firearms for protection is because they can’t call police if they are robbed

3.      TP’s use of guns in this case was consistent with common use made by drug dealers

His answers to those questions helped support elements of several offenses I had to prove.

Highly successful expert cross-examination