Thursday, September 24, 2015

Suppressing the Truth

I know there are at least a few attorneys here, so perhaps you can help me understand this.

I understand why truthful evidence is sometimes suppressed in court proceedings.   

  • Anything that is obtained through a violation of the Fourth Amendment should be suppressed to discourage future violations.   
  • The absence of the witness for cross examination could make the evidence unfair.   
  • Something that is more prejudicial than it is relevant could be counterproductive. 

But this example I don’t get.  When I serve as an expert witness on a trial, the attorney who hires me submits an expert designation to the court that lists the issues I will be testifying about, the scientific principles involved, and the evidence that I am using to apply the science.  This is an important step because it allows the other side to prepare to rebut my testimony, either through cross examination or with an expert of their own.

In a case I am working on currently, the expert designation listed several issues.  For one in particular, it noted the scientific principles and the evidence I considered as usual.  Then last week, I had my deposition in the case.  During the examination, the opposing attorney asked me about that issue. He interrogated me about the scientific principle.  He asked several follow up questions that probed the science and tried to poke some holes into it.  Exactly what I expected him to do.  Then he went on to the next one.

At the end, the attorney who brought me into the case had a very brief reexamination. He asked me if my investigation regarding the issue I described above considered the evidence that was listed on my expert designation.  It was already listed there, but I had not listed that evidence verbally during my deposition. It was not part of the question that I was asked.  And he wanted to make sure it was in the record so that it couldn’t be excluded at trial.

The other attorney objected that he was leading me.  In general, leading is inappropriate because the lawyer should not be giving so much as a hint as to what he would like the answer to a question to be.  But in this case, that seems out of place.  The only reason for the objection was clearly to try to suppress an opinion that I had clearly developed on my own and had already entered into the record in my designation.  The issue and the science had been discussed in my deposition, just not the evidence I used as input.

What possible reason is there to suppress the opinion? This is crock.

Am I totally off base here? I know that the attorney’s job is to be an advocate so using this tactic makes sense. But does the objection have any chance of holding up? That is the problem I see. It would be a travesty.  And the case just settled, so I will never find out how the judge would have ruled.