Working with Prosecution Experts in Federal Counterfeiting Trials

Working with Prosecution Experts in Federal Counterfeiting Trials

When defending a client against federal counterfeiting charges, one of the key challenges is preparing for and cross-examining the prosecution’s expert witnesses. Prosecution experts can provide compelling testimony on the technical aspects of counterfeiting, making the defendant’s job of refuting the charges much harder. However, with thorough preparation and strategic cross-examination, defense attorneys can minimize the impact of prosecution experts and create reasonable doubt. This article provides tips and strategies for working with prosecution experts in federal counterfeiting trials.

Understanding the Prosecution’s Case

The first step is gaining a deep understanding of the prosecution’s case and theory. Carefully review the expert reports and any testing documentation to understand the methodology and conclusions. Identify potential weaknesses or flaws in the analysis. Consult with your own independent experts to fully grasp the technical issues and determine if the prosecution’s experts followed proper protocols. Understanding the case will enable you to develop more effective cross-examination questions.

Researching the Expert’s Background

Conduct extensive research on the expert’s background, qualifications, past testimony, professional history, and potential biases. Look for inconsistencies, mistakes, professional disciplinary issues, or facts that could impact their credibility. Ask prosecutors for the expert’s CV, publications, speeches, professional memberships, and other relevant background information. The more you know about the witness, the better prepared you will be for cross-examination.

Filing Daubert Motions

Consider filing Daubert motions or other motions in limine to exclude unreliable expert testimony. Daubert challenges focus on whether the expert used reliable principles and methods. Identify any methodological flaws, reliance on questionable data, failure to account for alternative explanations, lack of testing, and other admissibility issues. Consult with your own experts to help formulate strong Daubert challenges. Getting junk science excluded can undermine the prosecution’s entire case.

Deposing the Expert Pre-Trial

Take the expert’s deposition prior to trial to probe their opinions in-depth. Depositions allow more flexibility than trial cross-examinations. Use the deposition to lock-in the expert’s methodology, data relied upon, assumptions made, and conclusions. Get them on-the-record explaining their analysis. You can use any inconsistencies later to impeach their credibility at trial. Also use the deposition to learn their communication style and look for ways they may come across as less credible to a jury.

Hiring Rebuttal Experts

Retain qualified rebuttal experts to critically evaluate the prosecution expert’s work and testify for the defense at trial. Your experts can highlight flaws in the prosecution’s testing, data, assumptions, methodology, and conclusions. Effective rebuttal experts explain technical issues in plain English and discredit the prosecution expert’s opinions. They should prepare visual aids and demonstrations to help the jury understand complex concepts. The right expert can neutralize or severely damage the prosecution’s case.

Preparing Rigorous Cross-Examination

Meticulously plan and prepare your cross-examination of the prosecution’s experts. Outline areas for cross-examination and draft questions that are short, leading, and highlight flaws in the expert’s methods or conclusions. Use your own expert to help formulate questions aimed at discrediting the witness. Practice the cross-examination so there are no surprises at trial. Your goal is exposing bias, mistakes, exaggerations, assumptions, and lack of qualifications to the jury.

Educating the Jury

Jurors typically lack technical knowledge about counterfeiting techniques, forensic analysis, etc. Use direct and cross-examination of experts to educate the jury on complex scientific issues in plain English. Simplified analogies, visual aids, and demonstrations help make technical concepts understandable. Your rebuttal experts should “teach” the jury how to interpret the evidence and why the prosecution’s conclusions are flawed or doubtful.

Attacking the Expert’s Bias

Many prosecution experts have an inherent bias based on their extensive work with law enforcement. Question witnesses about compensation received, percentage of work for prosecutors vs. defense, relationships with agents or prosecutors, and other facts showing bias. Bias provides a strong motive to validate the prosecution’s theory. Emphasize how the expert’s livelihood depends on keeping law enforcement happy with their testimony.

Holding Experts Accountable

If experts exaggerate, misstate facts, or bend the truth, hold them accountable on cross-examination. Point out contradictions using past testimony, writings, or other evidence. Confront them with authoritative literature refuting their assertions. Experts who are evasive, argumentative, or slippery can lose credibility with the jury. Maintain control and don’t allow them to sidestep your questions.

Highlighting Lack of Actual Experience

Some prosecution experts have impressive credentials but little actual field experience. For example, a Ph.D. chemist may have published on detecting counterfeit pharmaceuticals but never actually tested seized drugs outside the lab. Highlight the difference between theoretical knowledge and practical experience. Evidence handled sloppily or tested by inexperienced analysts can create reasonable doubt.

Emphasizing Lack of Specialization

Generalist experts are more vulnerable to attack than those with niche expertise related to the facts of your case. For example, a forensic document examiner specializing in signatures may be less qualified to testify about printed currency markings. Intensively prepare to expose gaps in the expert’s specific knowledge needed to support the prosecution’s factual claims.

Attacking Unreliable Methodology

Experts sometimes employ unreliable or unproven methodologies. For example, toolmark analysis, fingerprint comparison, and even arson investigation have come under fire for lacking scientific rigor. Retain your own experts to refute junk science claims or attack flawed testing methods. Juries give less weight to expert opinions derived from questionable techniques.

Introducing Exculpatory Expert Testimony

Your own expert witnesses can provide exculpatory testimony supporting reasonable doubt about your client’s guilt. For example, a digital forensics expert may testify that malware was responsible for counterfeit software found on the defendant’s computer. A chemist could testify that trace contaminants on seized bills don’t match the defendant’s workspace. Expert testimony doesn’t have to prove innocence, just sow reasonable doubt.

Raising Alternate Theories

Develop reasonable alternate theories through expert testimony to counter the prosecution’s version of events. For example, a questioned documents examiner might testify that a forged signature matches someone other than your client. Or an ink chemist could show the defendant’s printer wasn’t used to produce counterfeit currency. Jurors are less likely to convict if presented with plausible competing scenarios.

Preparing Visual Aids

Work with experts to create easy-to-understand visual aids, animations, models, and demonstrations to illustrate key points and simplify complex information. For example, an animation showing malware infecting a computer could raise doubt about intent and knowledge. Effective visuals bring dry technical testimony to life and make it more impactful.

Attacking Overstated Conclusions

Experts sometimes overreach by claiming more certainty than the facts support. For example, stating a “match” exists between ink samples without quantifying the probability involved. Get them to acknowledge limiting assumptions and concessions on cross-examination. Experts who overstate conclusions often lose credibility when pressed.

Objecting Strategically

Make timely objections to inadmissible expert testimony, but be selective. Too many objections annoy the jury and highlight problematic information. Focus on excluding testimony based on unreliable methodology, lack of factual foundation, or outside the scope of expertise. Avoid objections that seem like obstruction or give the witness a chance to re-emphasize damaging facts.

Handling Difficult Experts

Some experts are polished witnesses skilled at deflecting attacks in court. Avoid getting drawn into arguments you can’t win. Instead, focus on eliciting concessions and admissions rather than trying to out-debate them. Difficult experts often get frustrated when confined to yes/no answers on cross. Their evasiveness and combativeness can backfire with the jury.

Closing Argument

Summarize the key weaknesses in the prosecution experts’ testimony during closing argument. Remind jurors of contradictions, assumptions, errors, methodological flaws, and important admissions or concessions you elicited. Closing argument is your opportunity to connect the dots and explain why the jury should have reasonable doubt based on how you undermined the experts on cross-examination.

Preparing for federal counterfeiting cases requires in-depth focus on the prosecution’s expert witnesses. Mastering the technical issues and conducting rigorous cross-examination gives defense attorneys the best opportunity to rebut these witnesses and achieve successful trial outcomes for their clients.

References

Here are the references used in this article:

• Daubert Standard – Cornell Law School
• Sample Direct Examination of Handwriting Expert – US Department of Justice
• Strategies for Cross-Examining Handwriting Expert – US Department of Justice
• Strategies for Rebutting Handwriting Expert – US Department of Justice