Saturday, July 06, 2013

Trayvon autopsy testimony

I followed the Jodi Arias trial for its expert testimony on psychology and domestic violence, and now I am hooked on the George Zimmerman trial.

This is also a murder trial where the defendant admits to the killing, but claims self-defense. Beyond that, the trials are not similar at all. For this blog, I am mainly interested in the expert witnesses, as family court action also turn on expert testimony frequently.

ABC TV News reports:
The medical examiner who conducted the autopsy on Trayvon Martin's body testified today that the Florida teenager lived from one to 10 painful minutes after he was shot in the heart by George Zimmerman, and that the wound was impossible to survive.

Dr. Shiping Bao testified after Martin's mother and brother took the stand as the prosecution nears completion of its case against Zimmerman.

Bao told the court that Martin, 17, was shot in the heart and said, "There was no chance he could survive."
Bao was as goofy as the Arias experts, but in a different way. I expect a professional expert witness to be familiar with the basic mechanics of court testimony, but this guy was frustrating to everyone.

Bao frequently talked over the lawyers, making it hard for the court reporter. He did not stop talking when there was an objection. To many questions, he launched into explanations of the difference between fact and opinion. In deposition he testified that Martin could have only lived 1-3 minutes, and that the marijuana in his blood was insufficient to affect his behavior. In court, he testified that Martin could have lived 1-10 minutes, and that the marijuana would have affected behavior. Bao said that this was opinion, not fact, and anyone unwilling to change his opinions is mentally retarded. He did not remember whether he told anyone whether he changed his mind. He defended himself:
I changed my opinion. Everybody change it. I can change every hour. I don't see any problem.
English is not his first language, but this is not the sort of thing experts are supposed to say in court.

Bao did the autopsy 1.5 years ago, but denied remembering anything about it and he was relying entirely on his notes. He even denied that anyone could remember anything from two years ago.

After about an hour of testimony, the defense lawyer figured out that Bao was reading from a script. When confronted, Bao explained that he spent 100s of hours preparing for court by typing out anticipated questions and answers into a set of notes, and he was reading from his notes. That explained why his answers sometimes rambled off-topic.

What Bao misunderstood is that testimony is all about what the witness knows. The witness can use documents to refresh his memory, but those documents have to be admitted into evidence. When kept saying that he had no memory, he was literally saying that he had no testimony.

Of course cops testify all the time based on notes. But what they always say is that they are personally vouching for their testimony, as their memory is refreshed by notes. They would be careful to avoid saying that they had forgotten the incident. They would say that they had forgotten the details until memory was refreshed by notes.

Here is the proper way to handle an expert witness. If the testimony is simple enough to do without notes, then do it that way. Otherwise, ask the expert to write a report that includes the essential facts and conclusions. Then get the report admitted into evidence, and let the witness use the report as his notes. That way he will not get crossed up on ancillary facts, and everyone has unambiguous notice of his conclusions.

The expert usually likes doing a report because it protects him as well. Usually he is relying on facts that could be wrong. By stating his assumptions in writing, he avoid responsibility if you have given him slanted info. In case he gets tricked into saying something stupid in court, he can fall back on his written statement where he was more careful and precise.

This what I did in my child custody trials. I am shocked that an experienced expert in a high-profile case would misunderstand his role so badly.

I do believe that Zimmerman was charged solely to placate the masses, and that the state is scapegoating an innocent man. It reminds me why we have a jury system, as he would never get a fair shake from Florida judges or prosecutors.


Unknown said...

I don't know if you are a trial lawyer or not, but I am. The proper way to handle a failure to recollect is to first, ask the witness if there is anything that would refresh his recollection. If he answers yes, identify what that is, have it marked for Identification, show it to him and ask if it refreshes his recollection. If he says yes, the document is NOT admitted into evidence, but he can testify now that his memory has been refreshed. This is called "past recollection refreshed". If the witness says nothing would bring back his memory of the event, that nothing would refresh his recollection, then you ask him if he made notes at the time of the event that were contemporaneous with the event and accurate. If he says yes, then you mark the notes or report for identification, ask him if the document represents his contemporaneous and accurate account, and then move the document into evidence. This is called Past Recollection Recorded. In this event, the document is admitted. This does not apply, however, in criminal cases with police reports. There is a general exception that says they cannot be admitted into evidence as past recollection recorded. Finally, there is an entirely different concept that can and often should be used on cross-examination. Lawyers goof this up all the time. If you want to show that witness is lying, you don't try to refresh his recollection about prior lies, you simply confront him with the lies. Is it true that you were interviewed on such and such date? And, on that date, you said "...", which is the opposite of what you said today? Right? This is called impeachment with prior inconsistent statement.

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