How to Cross A Government Expert Witness
A Battle of the Experts
Federal white-collar criminal cases, when properly tried, boil down to one thing - a battle of the experts. The Government scours the country looking for a highly credentialed expert who is willing to testify and the defense scours the country looking for a expert who disagrees. Failure to call an expert witness is akin to bringing knife to a gun fight. Unfortunately, federal jails are filled with defendants whose attorney could not find an expert or worse - didn’t take the time to get one.
To make matters worse, many federal defendants are convicted on the basis of pseudo science introduced by an expert who is willing to testify to a standard or a scientific methodology that is either not shared by the general community or is not properly applied to the facts of the case. Expert testimony is particularly damaging to a defendant’s case and it is made even more damaging when the defendant fails to bring an equally qualified expert witness to combat the Government’s proposed expert testimony. The tide of a federal criminal trial can change dramatically when a government expert witness is properly cross examined and when the defense calls an un-impeached expert. In this section, we will discuss dismantling the government’s expert witness and in the next we will discuss how to prepare an expert to provide the second jab to a 1 - 2 punch that delivers an acquittal.
Steps to Successfully challenging a Government Expert
Determine the source of the “standard” applied by the expert
Seek disqualification using a Daubert motion
Obtain transcripts of the Government’s prior expert testimony
Obtain every source relied on by the expert to support their methodology
Lock the expert into their “standard” on cross-examination
Show errors in the application of the “standard”
Offer differing standards through reliable sources
Challenge the factual application of the standard
The Expert Report
Government expert witnesses are required by Rule 16 of the Federal Rules of Criminal procedure to produce an “expert report” specifically describing their credentials, the standards applied, and their opinions. Rule 16 specifically states:
“At the defendant’s request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-cheif at trial…The summary provided under this subparagraph must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications."
The timing of this disclosure is often an open question because no federal criminal rule specifically sets the timing of disclosure of the report. Most courts rule that the expert report must be disclosed in a reasonable period of time to permit the defendant to challenge the Government’s expert through a Daubert motion (discussed below) and to obtain a defense expert. Obtaining and reviewing this report and challenging its sufficiency is the first place to start in challenging a government expert witness.
According to Rule 16, the expert report must contain a complete statement of every opinion to be expressed by the expert, as well as the basis for each opinion and the data, facts, or information the expert took into account in rendering the opinion. An expert is also required to provide a summary of the expert witnesses qualifications but this is usually done by attaching the expert’s curriculum vitae to the report. Where the expert witness fails to comply with Rule 16 and Rules 702 and 703 in the report, a challenge should be made under Daubert.
The Daubert Standard
Under the Daubert standard, the trial judge is required to serve as the “gatekeeper” who determines if a Government’s expert is deemed reputable and relevant to the facts of the case. The test was first created by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals (1993). The test requires the court to make two primary findings:
(1) Whether the expert’s testimony is based on scientifically valid reasoning, and
(2) Whether the reasoning has been properly applied to he facts at issue.
In order to determine if the testimony is based on scientifically valid reasoning the court will look at:
(1) Whether the theory or technique in question can be and has been tested,
(2) Whether it has been subjected to peer review and publication.
(3) Its known or potential error rate.
(4) the existence and maintenance of standards controlling its operation.
(5) Whether it has attracted widespread acceptance within a relevant scientific community.
These criteria are used by civil and criminal judges to prevent unreliable or “junk science” from entering the courtroom and the burden is on the side offering the testimony. Failure to comply with the Daubert standard can result in the Court excluding the expert’s testimony.
A Daubert challenge is done through a Daubert motion filed with the trial court and seeks to exclude an expert’s testimony on the basis that it is not reliable or relevant under Federal Rule 702 and it is the first step in discrediting the expert’s opinions.
Click here for a sample Daubert Motion
The Daubert Hearing
Some judges permit a Daubert hearing, some do not. At a Daubert hearing, the Government is required to produce their expert so that the court can determine if the expert’s opinions comply with the Daubert standard described above. Successfully obtaining a Daubert hearing permits early cross-examination of the Government’s expert witness in order to test the standard outside the presence of the jury and before the opinion is accepted as reliable. A Daubert hearing is not always a good idea though, if you have enough information to dismantle the expert its better to do so in front of the jury - shooting your shot too early can allow the expert and the Government to pivot prior to trial and refine the expert testimony. So even if a Daubert hearing is granted its best to not use every avenue of cross-examination available at the Daubert hearing - save some for trial.
At the hearing, the Government goes first and puts their expert on the stand to lay a foundation for their experience and credentials and to lay a foundation for the methodology employed in reaching the opinions expressed in the report. The federal criminal defense lawyer then has an opportunity to cross examine the expert and challenge (1) the expert’s experience, (2) the foundation of the expert’s opinion, and (3) the application of the opinion to the specific facts of the case. After the hearing the judge will render an opinion.
The “Success” of Daubert Challenges
Unfortunately, a criminal defendant launching a Daubert challenge is swimming upstream. Where civil defendants prevail in their Daubert challenges most of the time criminal defendants almost always lose their challenges to government proffers of expert testimony. However, when the prosecutor challenges a criminal defendant’s expert evidence, the evidence is almost always kept out of the trial. In the first seven years after Daubert was decided there were 67 reported federal appellate decisions reviewing defense challenges to prosecution experts. The Government prevailed in all but 6 of the challenges and even among the 6, only 1 resulted in the reversal of a conviction. By contrast, in the 54 cases in which the defense appealed a trial court ruling to exclude the defendant’s expert, the defendant lost in 44 cases. In 7 of the remaining 10, the case was remanded for a Daubert hearing.
The problem is this, Federal Judges in federal criminal cases often believe that when an expert testifies the crucible of the courtroom cross-examination would expose at trial the flaws in the government’s expert and the trial judge need not exclude the expert merely because the testimony is unreliable. The fact remains, many Daubert challenges are decided by a simple ruling of the court that the challenge goes to the “weight” of the testimony and not its “admissibility”. Unfortunately, this opinion is exactly what the Supreme Court sought to prevent by adopting the rigorous requirements of Daubert. Federal Judges must act as the “gatekeeper” of the testimony and determine if the expert’s testimony meets this rigorous standard before the expert takes the witness stand.
In any event, most Government experts will take the stand and will testify but a Daubert challenge should still be levied in order to highlight the issue for the court, permit appellate review, and permit a first crack at the Government’s expert before the jury hears the testimony.
Cross Examining the Government’s Expert
Every cross examination of a government expert is different and there is no one-size fits all approach to defeating a government expert. Because they will be the most skilled witnesses in the courtroom and likely have the most experience testifying of any of the witnesses examined, they tend to be slippery and filet an inexperienced defense counsel who dare to ask an open ended question and not control the expert. This is why a lengthly cross examination by an untrained attorney of a Government expert will almost always result in damage to the Defendant’s case. Experts must be controlled and control occurs through well informed tight leading questions leaving no room for the expert wiggle and equivocate.
The cross examination, with some exception, generally follows the following format:
Show gaps in the expert’s experience
Portray the expert as a hired gun
Lock the expert into their standard
Show gaps in application of the standard
Show lack of general acceptance of the standard
Successfully cross-examining an expert witness requires more preparation than any other witness in the court room because when discussing matters of expert testimony the cross-examiner is entering the space and knowledge of the expert. The cross-examiner has the difficult task of both keeping the cross-examination simple enough for the jury to understand while still cutting holes in the expert’s story. The cross-examiner must be a careful student of the science employed and spend a lot of time understanding the scientific methodology the expert is employing, the standards surrounding the methodology, and its application to the facts of the case. This is why talented criminal defense attorneys often become students of science in their particular area of expertise.
After counsel understands, to a granular level, the science employed the attorney must then understand exactly what reliable methodologies are employed and determine if the expert has followed their communities standards for applying the science. Once this is thoroughly understood the cross-examiner will begin to see where the expert failed to properly employ the standard or missed steps in the analysis.
And in my experience - government experts always miss steps in the analysis creating fertile ground for cross examination.
Dr. King and his “Universal Precautions”
Last summer I had the pleasure of dismantling Dr. Timothy King, a purported expert in federal criminal opioid cases. Dr. King was a hired gun for the government and made 90% of his income roaming around the country taking the witness stand in federal criminal cases against doctors alleged to have “overprescribed” opioid pain medication. Because of this, his methodology had become quite predictable. He would review a targeted set of medical records provided to him by the government, add them to a fancy little chart he called his “bible” which he believed would objectively determine that a physician was engaged in drug trafficking simply because the physician failed to document a sufficient medical need for the opioid pain medication. He even sought to obtain a United States Patent for his method of “objectively” determining criminality - fortunately the patent was not approved - likely because his methods amounted to mere junk science. Dr. King used a few articles published in medical journals that described “best practices” for pain management physicians to create this “standard”. One of them was titled “universal precautions”. And by applying these articles and the requirements in them to the conduct of the physician in question he would determine that the physician was not adhering to the “standard of care” for a prescribing physician.
Dr. King had done this many times before, including in the Ohio case of a physician who was convicted at trial where his attorney failed to obtain a counter expert. I was hired to appeal this case and challenged Dr. King’s testimony before the Sixth Circuit Court of Appeals and it is currently pending.
I wasn’t about to let him do this again and so I methodically prepared to cross examine Dr. King and challenge each and every opinion he offered on the stand.
I started with a deep dive into Dr. King’s prior testimony and was able to learn that he was no longer practicing medicine and was earning nearly all of his income acting as a hired gun for the government. I also learned that he attempted to patent his expert methodology by filing a patent with the U.S. Patent Office. This would obviously be a fruitful area of cross examination because juries are less likely to believe those testifying for their own pecuniary gain. In addition, I pulled every article cited in his report and cross referenced the information in the articles with his findings. I was able to determine that in many areas of his testimony he was either conflating the standards applied in his beloved articles or failing to follow their guidance. Many of the articles when fully read and understood actually contradicted his opinions in his report. Then I looked at his analysis and determined that in his review of important medical records in the case he made vital errors in interpretation and utterly failed to review certain records.
Prepared with hundreds of documents, transcripts of his prior testimony, his report, and a list of errors in interpretation, I set out to cross examine him after he skillfully laid out his opinions to the jury. I started by showing his bias. That he only testified for the government in such cases and that he was paid a handsome sum of money to be there that day. Then I moved on to locking him in to the standard he applied in his articles by showing each one of them and forcing him to testify that he applied those resources to his review of the case. After locking him in, I was able to show the jury that he didn’t follow his own standard by showing passages of articles that completely disagreed with his theory of the case. I then set out to challenge his actual opinions by showing portions of the medical records introduced into evidence that indicated my client actually satisfied the rigorous standard he employed.
The cross examination took an entire day. And by the end of it the jury didn’t believe a word he said which resulted in an acquittal for every drug charge that Dr. King testified about.
Examples of Successful Expert Cross-Examinations
Explaining how this is done is best done by example. Follow the links below to access several successful cross examinations of Government experts in opioid prescribing cases.
Cross Examination of Dr. Stephen Thomas - Acquittal in Opioid Distribution Case and Healthcare Fraud
Cross Examination of Dr. Carl Christensen - Acquittal in Opioid Distribution Case