The Most Common Questions asked
about Expert Witness Testimony
Elaine M. Pagliaro
A relatively small but critical part of the forensic expert’s responsibilities involves testifying about the scientific basis of analyses, findings, and conclusions in court or during deposition. Credible experts
must prepare thoroughly, demonstrating a command of the scientific
knowledge associated with their areas of expertise. In addition, they
must have a thorough understanding of the procedures of the court
and the evidence admissibility standard in their jurisdiction. All experts must be open in their dealings with attorneys, willing to discuss
their findings and conclusions within the bounds of the trial practice
for the type of case in which they are serving as experts. While the
“rules” may vary under civil and criminal law and whether the expert
appears for the state or defendant in a criminal case, that expert must show no bias in action or explanation, but demonstrate scientific objectivity during his entire involvement in a case. Credibility involves
the expert’s ability to communicate with the trier of fact; better communication skills ensure the “
audience” does not get lost in what the expert is trying to say or how the expert is saying it. Demeanor also
communicates something to the jury, so the credible expert will be professional in appearance and speak
confidently without being haughty.
During a recent webinar offered by Forensic Magazine, I had the opportunity to discuss in greater detail
some of those factors that I believe make for a credible expert witness. Among the many questions received
during this webinar and in expert witness classes and consultations, several issues repeatedly arise. These
questions reflect a desire of experts from all disciplines to provide useful, scientifically accurate information
to the trier of fact. I would like to examine the five most common questions about testimony and being an
expert witness that I have received in recent years.
Question 1: What do I do if the attorney who has called me to testify refuses to meet with me before I testify?
Meeting with the attorney, especially the attorney who is calling you to testify, is essential to your job as
an expert witness. Only the attorney can explain her overview of the case to you and what she sees as the
value of your testimony. The attorney should outline the questions she will ask in the sequence that she
will ask them. This gives you an opportunity to make sure that the attorney knows what you are going to
say and how it will impact her case. A good attorney will always find time to talk to her witnesses, even
if for a short period of time. When attorneys don’t meet with you it may be because they feel uncomfortable with the subject matter or believe you know much better what to say. However, how smoothly your
testimony goes may be totally dependent on the approach and questions the attorney asks. You cannot be
properly prepared for your testimony if the attorney does not review her strategy and your information or
conclusions prior to your taking the stand. If you receive a subpoena or phone call that your testimony is
required, immediately request to speak with the attorney. Set up a time when you can meet prior to your
testimony. If the attorney says that she is too busy or surrounded by materials and items that require more
immediate attention, offer to meet at the day and time most convenient for the attorney. Explain the
benefits to you and why you need the meeting. As much as possible, also stress the benefits to the attorney.
While you may only get a few minutes to provide an overview, this is better than no meeting at all. Eventually, the benefits of those meetings will be seen in the more organized flow of information to the jury.
A pre-trial meeting provides experts with some understanding of how the case will proceed while they
are testifying. In many cases the opposing attorney may also contact you. This is a good thing. If you are
working for the state in a criminal case, you should welcome a meeting with the defense attorney. The at-