By Captain Kirk Greiner.
As an expert witness and a member of the bar, I had the unique experience of being selected as a juror, and eventually the jury foreman, in a homicide trial of first impression. The case involved a defendant who had furnished heroin to a person who then died primarily because of his injection of the furnished drug.
I have previously written an article, View from the Bench, reflecting on the views of a federal judge who had advocated that a witness not look at the jury in answering questions because it appears unnatural. I want to address the judge’s comment.
There were several deputy sheriffs who testified. They all behaved similarly with regard to their presentation. They looked at the attorney asking the question, then turned to the jury and answered it. I have to agree with the judge that when the answer was merely a yes or no, turning to the jury to utter the one word certainly did look artificial and I recommend against it.
There were two professional witnesses, the local coroner for the prosecution, a person of at least 60 years of age, and a pathologist for the defense, also in his 60’s. The two were markedly different. The local coroner spoke with hesitancy and wandered off the subject. He was not very impressive.
The defendant’s expert was impressive – very. He sat erect, spoke in a baritone voice which could be easily heard throughout the court room, had his hands folded on the table in front of him and occasionally motioned with one hand to emphasize a point. When answering a question, if the answer was more than a word or two, he would slowly and naturally turn to face the jury as he progressed with the answer. As an expert witness myself, I could admire his presentation. He also addressed each lawyer by name.
The jurors were impressed by the second expert, and unimpressed by the first. However, it was my observation that the jurors were not as influenced by the good expert because of his presentation as I would have thought they would be. They saw beyond the presentation to the underlying facts and opinions.
The presentation by the attorneys was also commented upon by the jurors. There were no microphones in the courtroom and the defense attorney sat the farthest from us. While questioning witnesses, he sat at the table and had the habit of putting his elbow on the table and covering his mouth with one hand. The jury missed some of his questions and his effectiveness was impaired.
A lost comment by the "juror" – the jury was bored by the repeated questions and prolonged examination of witnesses. In this instance the subject matter was within the general understanding of the jury. Prolonging an examination was not productive. Keep the questions and answers short and to the point.
In another trial, State of Alaska v Hazelwood (of Exxon Valdez fame), after the trial was finished, the jurors were interviewed and the attorneys were surprised to learn that an expert who they had thought did not have a very good presentation was in fact the expert who the jurors felt was the most creditable.
In summary, expert witnesses should sit erect, turn to the jury in presenting longer answers when you can do this naturally, maintain eye contact, speak clearly, and don’t prolong the answers. Keep it simple and short.
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