Trending Topics

6 principles of expert witness work in corrections

A successful expert witness can significantly influence the outcome of legal decisions which can save money, reputations and shape correctional practices in the future


Photo Wikipedia

By Eugene Atherton and Andjela Jrisic

Officer John Smith sat in the back of the courtroom, a lone defendant in a use of force civil lawsuit related to his employment at the local prison.

A single parent raising two children, a negative outcome would ruin his financial and professional life. When called upon, he testified that, unknown to the plaintiff’s attorney, the method of characterizing use of force in corrections had changed, and the old method no longer applied.

The jury was out a short period of time before deciding in favor of the officer.

The following are principles of performing as an expert that are important to helping the public understand the correctional environment very often saving reputations and millions of dollars of public funds.

Persuasiveness: Having a reputation as a “hired gun” on behalf of inmates and prison reform people, or as a staunch defender of corrections professionals tends to blur the quality of your decision. It’s something courts do not view favorably. Expert witness service must be backed by a philosophy. We suggest being clear that your service is for sale, but not your opinion.

Essentially, experts are being paid for their credibility. Ethical behavior is crucial for economic success. Remaining objective and not easily influenced by your client or a particular way of thinking is important in terms of how the legal system views your service. This is particularly important when it comes to being persuasive without abandoning your duty to tell the “whole” truth, especially including the parts you may not find convenient.

Client trust-building: Make very careful decisions prior to contracting for service. Under most conditions an introductory conversation with an attorney will give you enough information. Under most conditions, at that point the expert should be able to tell the potential client whether, or not, your opinion is likely to support their case. Never commit to the case until you have completed this assessment and discussion.

Information management: For many cases served by the expert witness in corrections there can be large volumes of material to survey in an organized manner. As an expert, you need to develop a system to review the material, to note which portions that may be important to the issues and then to fold relevant information into the body of your written opinion.

An essential aid is the process of charting information to show links and relationships among critical events and issues, and place them on a time driven continuum in order to understand, analyze and recognize. Ideally, you can integrate the case in one document by describing what happened and the claims of the plaintiff, identifying your position as an expert, highlight relevant data, and bring it into alignment with your position.

Pattern recognition: In all legal correctional legal cases there are a series of events with related personalities and facts that serve as the basis of the lawsuit. They can be very complex. As an expert, it’s critical to be able to recognize patterns, which non-experts cannot see as part of a larger configuration.

You need to be able understand what you see and relate to your extensive history in corrections. The ability to recognize patterns does not occur instantly. Pattern recognition saves time and is critical to quality service as an expert.

Expertise in the details of the case: Do your homework seriously. Your efforts should be obvious to the opposition. As you disclose your opinion to the opposition in your written report or through testimony, part of assessing your performance will be in how familiar you are with the information.

Testifying skills and credibility: Expert witnesses are not necessarily experts at being witnesses. Fundamental testifying skills include always telling the truth, careful listening, pausing and taking a breath before answering, only answering the question asked, avoiding slang and jargon and understanding that it’s OK to say “no” or “I do not know” rather than guessing on the witness stand.

Good non-verbal behavior of witnesses includes maintaining a good posture, looking at the jury when testifying, not looking to the attorney for answers and using moderate mannerisms and gestures. Researchers found that witnesses employing powerful speech (for example, the absence of excessive politeness, and absence of hedges such as “kind of” or hesitation words such as “well” and “um”) are perceived as more competent, convincing and trustworthy.

A successful expert witness can significantly influence the outcome of legal decisions which can save money, reputations and shape correctional practices in the future. Success performance tends to incorporate many of the principles listed in this article. There is no greater satisfaction than upon a successful legal outcome than when the attorneys credit your testimony and written opinion as basis for that success.

Key sources:

Brodsky, S.L. (1999). The Expert Expert Witness: More maxims and Guidelines for Testifying in Court. Washington, DC. American Psychological Association.

Boccaccini, M.T. (2002). What do we really know about witness preparation? Behavioral Sciences and the Law, 20, 161-168

Andjela Jurisic is an accomplished professional with over 19 years of progressive experience gained in conflict-affected regions all over the world performing a variety of roles on behalf of the NATO, the UN, the Supreme Headquarters Allied Powers Europe (SHAPE), and in programs funded by the US State Department. In her 19 years of experience in the field nearly all her assignments have addressed terrorist organizations. She holds a masters degree in Terrorism and Diplomatic Studies from St. Andrews University in Scotland. She is currently undertaking research on the management of terrorist inmates in the correctional environment.

Gene Atherton is currently in his 40th year of service in the criminal justice field. He served 27 years for the Colorado Department of Corrections. After promoting thru the ranks, he became Director of Prisons for the Western Region in Colorado until retirement in 2004. For the last fifteen years Mr. Atherton has served as a technical assistance consultant and trainer for the National Institute of Corrections on a variety of topics related to corrections. He has served as an author of numerous ACA publications. He has served as mentor to Afghan Corrections Leadership and as a subject matter expert to the United States Embassy in Afghanistan. He has provided evidence in Federal Court as an expert witness on a variety of correctional issues, including conditions of confinement, use of force, unlawful discrimination, and management of high risk offenders. He is currently serving as an expert for the United States Department of Justice in the application of the CRIPA act to the Alabama Department of Corrections. Finally, Mr. Atherton currently serves as a member of several committees for the American Correctional Association, and as an ACA standards compliance auditor for the nation of Mexico.