Tips for Becoming an Effective Expert Witness

As an expert witness, you have multiple duties. Not only are you presented with the task of proving yourself as a viable resource, but you’re also subject to the challenges of the courtroom. If you haven’t set foot in a courtroom as an expert witness, you might not fully be aware of the degree to which lawyers use expert witnesses to prove their point.

Much like a professional in the tech industry, you may find that you have difficulty explaining your work to others. Expert testimony might be no different. Being considered an expert in our field can take years, if not decades, but it is your experience that can make you invaluable. With your experience, however, you’ll also develop the language that can make it difficult for others, even in a courtroom, to understand. Fortunately, we’ve put together this list of tips design to help you become the best expert witness you can possibly be.

Make a connection with the judge and jury

Lawyers call upon expert witnesses to support or verify their viewpoint in a given case. To be an effective expert witness, you’re going to want to develop a connection or mutual understanding with the judge and jury. What makes this challenging, however, is the jury itself. Because a jury consists of everyday folk, it will be important to walk the line between proving your expertise and speaking in a way that helps them understand you. To to this, keep in mind other talks that you give. For example, if you’re someone who makes presentations on a regular basis, you are probably aware of the fact that your audience contains a mix of people from all kinds of backgrounds. In that audience, there are ranges of educations, backgrounds, levels of understanding, and more. A jury is no different. A jury will not have the same amount of knowledge that you have on the subject, so it will be difficult for them to comprehend your level of understanding. In other words, whatever strategies you use to find a balance in your presentation, translate that into the courtroom and you’ll do just fine.

Keep it simple

Before stepping into the courtroom, you’ll need to examine the kind of language you plan on using. Take the time to remove the acronyms, jargon, and highfalutin vocabulary from your talk. You’re not going to get your point across effectively if you’re so far above the jury’s heads that they begin to tune you out. If you find that certain elements cannot be removed from your presentation, be sure to explain them the first time you mention them. Keep in mind that you may have to give a refresher if you’re called upon more than once.

Another way of looking at this is that you can’t speak to a jury like you would speak to a colleague. On the other hand, creating a simpler presentation doesn’t mean you need to “dumb it down” in order for everyone else to understand you. You’ll be doing the jury no favors if you appear condescending, so focus on coming from the right place. Remember, the idea is to ensure that everyone can understand you and has a clear picture as to how your information relates to the case.

Why We Need Higher Qualification Standards for Expert Witnesses

Over the years, courts have changed their standards for what makes a witness “an expert” in their subject of study, and the debate is still ongoing. Though there is still some wiggle room as to whether or not an individual is qualified to provide expert testimony on a topic, there are many common standards. So what then gave the self-named “cult specialist” and “deprogrammer” Rick Ross the opportunity to qualify as an expert in 2016 for a New York murder investigation? Some folks in the legal system are still scratching their heads about it.

About the case

Nineteen-year-old Lucas Leonard died in October 2015 from injuries he sustained during an hours-long “counseling” session at the Word of Life Christian Church in New Hartford, New York. Leonard was originally from Chadwicks, NY and both he and his brother were repeatedly beaten by their fellow parishioners during the “session.” His brother survived with severe injuries. Allegedly the “counseling session” in question was spurned by Leonard having expressed interest in leaving the church.

Police had arrested and charged the nine people involved in the assault, one being the church’s pastor Tiffanie Irwin. Irwin later plead guilty to third-degree manslaughter and felony second-degree assault for the beating of Christopher, Leonard’s younger brother.

Expert witness Rick Ross

Rick Ross, not to be confused with the rapper or cocaine kingpin, Ross was a controversial figure in the case. He claims to have intervened in 500 deprogrammings around the world. Though it was never discovered that he offered testimony in New York, Ross claims to have provided testimony in both federal court and state courts. In theory, the prosecutor’s office should have verified Ross’ website before bringing him on as an expert, though it was later determined they didn’t. As a result, the poor light shone on the legal system, not on Ross.

As a self-proclaimed destructive cult expert, Ross provided testimony for the case that Irwin’s attorney filed a motion to excluded. The timing of the motion was appropriate, but it raises the question of expert witness standards.

Expert witnesses are often called upon for trial because of their well of knowledge on a given subject. They also bring with them a history of their work, having written and published many entries on the subject as well as articles in peer-reviewed journals. At the time, Ross had none of these qualifications that deemed him an expert. So what are the long-term implications? Getting convictions is more difficult when people don’t trust the system. Whenever a prosecutor takes advantage of or “games” the system, this will become more difficult. Courts need to have a solid set of standards that make a witness an “expert” in their field. Until then, there is a vast gray area that can be exploited and may result in guilty criminals going free.

In the case of Lucas Leonard, all nine of the convicted pled out. The prosecution used Ross to try to force longer prison sentences in a plea deal. They did this by using his testimony to drum up fears of a cult situation. In the end, perhaps this method spared the state of New York a lot of prosecution cost, and maybe guilty people received the sentence they deserved for doing something completely horrible, but that doesn’t make the tactic entirely ethical.

Three Ways to Properly Cross-Examine An Expert Witness

No matter how much face time you’ve had in a courtroom, cross-examining an expert witness can be a little intimidating. Because of their specialized pool of knowledge, you as the cross-examiner may feel like you’ve stepped into a college classroom but you’re the one telling the professor how to teach.

If the cross-examining of your expert witness is not thoroughly planned out, the subject matter can easily wander too far left or right and before you know it your expert witness has taken their testimony into an irrelevant space or topic. The truth of the matter is that it’s really not a level playing field. The good news is that once you accept that, it’s easier to prepare your expert witness for the courtroom.

Below are three tips that are by no means comprehensive, but they will help you better prepare for your expert witness’ cross-examination.

Research and prepare. Assuming you start the entire process by researching the expert’s qualifications, their standing within the community, and accolades in their own field, there are further preparations to be made. One of the most important things you should do is to search for any prior testimony they’ve provided. You should look for any former cases where they’ve provided conflicting testimony. Additionally, you should identify and read any prior publications they’ve written. In order to keep themselves marketable, expert witnesses often keep their own websites where they post a number of articles - these are fair game for cross-examination. You’d be surprised what kind of fuel you’ll find in their prior publications for the credibility fire.

Use the deposition to box them in. As a cross-examiner, you know that trial framework is set up long before the trial takes place. Take the opportunity to use the deposition to box them into their opinion. The American Bar Association has stated that it is absolutely critical to do so. This process includes asking the expert witness his or her exact opinions that he/she intends to give during the trial. The expert should also provide the basis for those opinions, which will help you if new or unintentional information is provided in the courtroom. Be sure to take the time at the end to ask the expert if there are any other opinions they intend to share during the trial. This will allow the cross-examiner the chance to exploit changes or nuanced opinions that pop up. Once the deposition is complete, study and master it so you know how to highlight any differences between the testimony from the deposition and that which is provided at the trial.

Ask yes or no questions. As you’re well aware, expert witnesses are very intelligent. They’re sought after for their expertise, which makes them much more informed on the subject than the attorney with few exceptions. Though asking yes or no questions seems like an obvious or dull method, allowing much room for expansion during a cross-examination can result in the expert proving his/her expertise and therefore credibility on the topic.

How to Be an Informed Expert Witness

Keeping up-to-date in a world of ever-changing technology can be challenging. As an expert witness, your job is to stay on top of the latest and greatest in your field. Instead of trying to manually keep track of updates, the latest news, and litigation cases, you can stay on top of industry trends by following some simple guidelines. Social media, though it can be an interesting

place to say the least, can be quite helpful to you. Social media pages and Google are already implementing strategies for getting the latest information, so why not put them to good use? Below are some of the top methods for staying in the know without taking time away from your work.

Become a Twitter master

In addition to promoting brands and political opinions, Twitter can actually be quite helpful. In fact, Twitter is where most reporters update their cases and news stories. Most often this is done in real time. If you’re on the lookout for the latest information in your field of expertise, be sure to search for keywords that apply to your profession as well as words that will help you become a better expert witness. Look for hashtags such as #crime, #expertwitness, or #forensics, just to name a few. You’ll be able to see what other expert witnesses are saying as well as industry leaders. Be sure to follow the heavy hitters too such as Huff Post, CNN, and New York Times. They will provide you with the latest headlines and top industry news. The best part is that you won’t even have to bat an eyelash to do it. And if you’re concerned that you’ll get a feed overload, consider downloading a partner app such as TweetDeck to manage your feed.

Be a blogoholic

One of the best things about blogs is that the subject possibilities are endless. They also make great networking strategies too. If you’re new to the whole blog scene, consider expanding your network and reach out to someone in an adjacent industry. Ask that person to help you stay up-to-date with the information you need to know in order to become an effective expert witness.

Subscribe to newsletters

If you find yourself reading a given blog on a regular basis, consider a more direct approach for staying up-to-date. Newsletters are an excellent strategy for getting the word out. The best part is that they will prevent you from having to stop by the page every day.

When you subscribe to a good newsletter, you’ll begin to receive insights regarding the latest trends. Great newsletters will feature tips, insights, and trends. We know what you’re thinking, “What am I going to do with all these emails?”

Fortunately, you have the option of opening a separate email account, which will reduce the amount of wasted space since newsletter emails can clog up your email account very quickly.

Job of Expert Witness is not Easy to Endure

The role of expert witnesses in courts is to offer opinions and testimonies based on their knowledge of a certain trial subject. It is common for certain trials to require expert testimonies and opinions to bring out or expound on facts. As such, only people possessing pertinent experience and training are allowed to act as expert witnesses. Mostly, court experts are doctorate holders or high credentialed medical experts. However, this is a conception that is demystified by the wide nature of court cases. There are cases that doctors or doctorate holders will not have adequate knowledge about and can only be handled by experts who may not have had such high education levels.

For instance, in the movie My Cousin Vinnie, an experienced and highly knowledgeable car mechanic qualifies to be a court expert in automotive cases. The mechanic may not hold a doctorate but is well-informed and knowledgeable about vehicles. But, the fact that one has to be highly knowledgeable denotes what to expect at the court during proceedings. You have to deal with experts, experienced attorneys’, frustrated lawyers who want to win the case at all cost and above all, tough judges who value their time and only listen to what and who they consider relevant.

So, an expert’s job begins with laying a strong foundation that will support all opinions. The opinions must, however, be based on facts, and you must portray a certain degree of certainty that your views are reliable. As such, an expert never testifies to possibilities, speculates or conjectures. A lot of hard work and case analysis is required during the preparation phase. The expert must go through all case points and come up with opinions or facts that are in line with the case twists. Unfortunately, the jury may choose not to use the testimony presented by an expert in full or partially. The jury conducts their research and based on their findings they may choose to discard an expert’s opinion.

An expert court session begins with the expert reciting their training and education background relevant to the case in trial. They must state their honors, experience in the particular sector, professional associations and awards if any. The recitation is followed by a review of case evidence through hypothetical questions that prompt an expert to assume or visualize facts. In most cases, the assumed facts are disputed, and opposing counsel gets an opportunity to challenge the expert’s opinion. This makes the job hard because you have to assume/ visualize a situation before answering the hypothetical questions and later a person/ counsel will try to prove your opinions wrong by presenting reasons why your assumption is irrelevant to the case.

Also, knowing that your opinion about something could change a person’s life is not easy. You may give an honest opinion but end up changing a person’s life negatively which is not something any rational human being would wish for. All factors constant, testifying in a court of law is never easy. You can make permanent enemies or end up ruining your career because of a simple mistake like giving a professionally right opinion that may be termed wronged by the public.

How Experts Can Remain Calm in Court

Unless an expert witness has handled numerous court cases, it is hard for them to remain calm in the midst of a tough and unwavering cross-examination by an attorney determined to prove their theory/ opinions false. It takes more than literacy to retain composure and respond rationally. Actually, the few experts who try to remain rational give rhetoric answers in a bid to avoid confrontations. They try to retain a low level of agitation despite having little to no control over the court system that sometimes may seem to be against you.

Almost all lawyers have cross-examined experts and experienced at the game. So, they know how to intimidate and confuse you until you compromise your ability to offer the right expert opinion. However, your counsel has a duty to protect you if the cross-examining lawyer acts inappropriately. But that is never enough to keep you calm. So, how can an expert witness remain calm in a court of law?

Remained focused on the task at hand

Being hired as an expert witness means that you are a guru in your area of specialization. As such, you are expected to prove your point and enlighten the court regarding the issue at hand. Your job is not arguing or trying to outsmart the opposing counsel; you simply state facts and truths before offering the expert opinion. Your duty is to explain complex issues that you best understand to a court that is ready to know more. So, focus on the jury and make sure that you are familiar with court procedures. Your counsel should take you through what to expect as you prepare for the hearing together. But, do not be in a hurry to give your opinion; take your time and make sure that the jury understands your approach to the issue.

Accept fear and control how you respond

If you feel afraid, embrace the fear to avoid panicking. If it is your first time testifying as an expert, you may feel tense and afraid of the questions. To fight the fear, view the situation as an opportunity to be the hero by explaining an issue too complex that a court of law needs an expert to decipher. Also, understand that the jury needs your explanation to arrive at a conclusion or make a ruling. Even as the opposing counsel throws questions at you, view that as yet another opportunity to deepen the jury’s knowledge of the situation.

Practice

An expert witness is required to work with their counsel to plan a favorable defense strategy. Working together also means helping each other understand the situation better. As the expert, you should help the attorney understand your area of expertise. The attorney should also help you understand court proceedings and how the questions will be directed to you. You should practice a court session with your counsel to get you prepared.

Conclusion

Being on the witness stand is not easy because your opinion counts and you are hired to protect one side. So, a simple mistake can lead to failure and probably breach of your contract. But, with the right practice and dedication, you can overcome the fear. Just ensure that you get orientation from your attorney.

The 6 Phases of Denial

Denial is a defense mechanism that protects against the experience of pain or panic. Denial is used to define the situations in which people fail or refuse to admit obvious truths or occurrences. It is a functional way of protecting a person’s ego from situations it cannot deal with rationally. The truth is that everyone goes through denial at some point in life and while it prevents immediate pain or disappointment, it takes up a lot of energy. It can entail flat out rejection of an existing situation, admitting that a situation occurred, but its effects are not as important or accepting a situation and denying responsibility.

Denial does not only affect individuals and their personal issues but also organizational managers and the institutions they run. Managers have a responsibility to ensure that a business or their organizations run smoothly and the employees are safe, comfortable and motivated. But there comes a time when unavoidable tides hit or threaten to hit the business. Though managers may be aware of the impending business catastrophe, they may be in denial because they may not know how to prepare or deal with it.

6 phases of denial

Denial can be very expensive for any company. Denying that a catastrophe will occur and affect your employees negatively is wrong and expensive. Employees have become overly empowered; they know their rights and are ready to fight back when disrespected or feel unsafe at work. In a case where an employee gets hurts because the management was in denial, a company is sued for ignorance and failure to meet the recommended working conditions. This where denial gets expensive for the company. Apart from having to spend on a lawsuit, the company must hire an expert witness to counter employees’ claims that the company ignored impending danger because the top managers were in denial. Here is how it all begins;

It won’t happen to us

This is a phrase top managers will use when a situation strikes their competitors. They will be quick to dismiss the situation and its impact on the competitor instead of learning from the situation and getting ready to deal with it if strikes. For instance, a fumigation company is sued by an employee who developed a breathing complication for not wearing a protective mask that the company was supposed to provide. Instead of ensuring that your company ensures that employees are safe, you deny by saying “it won’t happen to us.”

It won’t happen here

This phrase would be common among organizational heads when reassuring employees that what happened with another company or a neighboring business will not affect the company.

It won’t happen now

In this scenario, company executives have recognized that a calamity will strike. However, they still deny that they have no control over when it strikes. They stick with “it won’t happen now, ” yet it is happening to other industry players.

If it does happen, it won’t be so bad

Company executives accept that a calamity can strike, but they still underestimate the damages it can cause. They ignore the importance of preparing for the outcome.

If it is bad, our insurance will cover it

This is a common phrase among top companies. They will be in denial that a situation will be bad enough to warrant adequate preparation. So, they try to find solace in their insurance covers which may not have covered the effects of an impending dangerous situation.

Why weren’t we prepared for this?

The disaster strikes and causes losses to the company. So, executives accept that the situation has fatal effects but will not accept they failed. The realization that the situation could have been prevented leaves executives in denial that they failed to protect the businesses’ interests.

Bottom line

The six phases of denial clearly highlight how organizations ignore impending dangerous situations and end up in court. They hire expert witnesses who analyze their misfortune and convince the court that indeed, the misfortune could not have been prevented.

Communicating With Your Expert Witness

In most cases, expert witness opinions and testimonies make or break a case. That is why people do in-depth research and vetting before choosing the expert to work with. Winning a case is always the epitome of attending long court sessions, hiring attorneys and expert witnesses. As such, you want a qualified expert witness who is also easy to work with and relate with your counsel. He/she must be willing to work with your attorney, communicate and draft an engagement letter throughout the trial.

How to ensure a good expert and attorney working relationship

Have a retainer agreement

An engagement letter or retainer agreement sets the foundation for a solid and smooth attorney-expert working relationship. The retainer agreement should clearly state the working terms and should be in easy to read provisions. Its aim is reminding both parties of their contractual obligations and mitigating any surprises that may arise when the trial is in progress. Define the services to be offered by both parties. Define whether the expert will testify during the trial or at a deposition or their duty is to act simply as a consultant. Note the materials that will be used during the trial and the kind of preparation you expect from each party.

Discuss potential conflicts and prior disqualifications

If the expert you choose had been disqualified from continuing with their testimony in a court of law, it is important to discuss the disqualification to ensure that the same does not happen with your case. Most experts are disqualified due to substantive testimony where their science or opinion is relatively new and hard to prove. If that was the case, make it clear that they should use the specific expertise in your case. However, an expert may also be disqualified due to conflict of interest. For instance, if the expert had been hired as an expert by the opposing party, the opposing party has the right to file for a disqualification.

Provide all necessary materials

The expert needs to analyze all the case details. As such, he/she should be provided with all relevant case materials. Also, they should have a timeline where they work with the attorney to design a workable defense. Ensure that you provide the expert will all the materials and information they ask for and give them enough time to go through the documents, conduct experiments and analyze scientific evidence where applicable.

Be mindful of written communications

According to rule 26 of the Federal Rules of Civil Procedure, an expert witness is required to provide the opposing side with a copy of the testimony they intend to present to the court. The report should contain all the opinions the expert witness will present, their basis and reasons for bringing up the opinions. The rule also mandates disclosure of data, facts, and exhibits that the expert intends to use. So, the expert and your attorney should work together especially when disclosing such information that may change your case if disclosed unprofessionally.

Set rules for testimony

Preparation is key if you want to have a strong defense team. As such do not overlook the need for cross and direct examinations. The attorney and expert should have a direct examination where the attorney asks the expert questions based on the testimony he/she presents. The questions should prepare the expert on how to respond to the opposing counsel.

Bottom line

Just like all strong working relationships, healthy and regular communication between your attorney and your expert witness is important. They must work together to deliver a winning defense strategy.

What Jurors Do not Know About Defense Medical Experts

Workplace injury cases that mainly happen due to negligence often require a medical expert to testify. A plaintiff relies on what the doctors say or testifies in court to get justice. It is obvious that once injured; you will run to your personal doctor who will examine and note the nature and extent of injuries you sustain. Your doctor will have your best interest at heart he/she will testify to the best of their knowledge to protect you and ensure that you get the right compensation. However, every defendant will have their doctors who must also examine you; the plaintiff and testify in a court of law. The defendant’s doctor will present their opinion about the plaintiff’s nature and severity of injuries. So, it becomes a plaintiff’s doctor’s version versus the defendant’s doctor’s version.

It is no secret that employers and companies use the same doctors as medical expert witnesses. A few doctors who are known to protect the interests of a company that pays well are hired by other industry players. Since their duty is to protect their big pay, they rarely agree with the plaintiff’s doctors regarding the extent of the injuries. Serious injuries will warrant higher monetary compensation. As such, they will relegate the extent of the injuries to protect their clients from losing a lot of money.

To the juror, the defending medical experts are on equal footing with a plaintiff’s treating physician. The plaintiff’s counsel will do their best to prove that the defendant’s medical experts are paid a yearly fee for to appear in court and for their time. However, defending medical experts always have a way of convincing the juror. They will bring their professional and ethical side by questioning why they should risk their career by sticking out for a single company. Though the juror will fall for this.

The jurors fail to understand that if the defending medical experts decided to side with the plaintiff’s doctor, the attorney might not hire them again to conduct defense examinations. This would mean the loss of income for the doctors. It is as simple as, if a defending doctor loses one case, they lose a company and other companies will no longer trust the doctor’s capability at defending their interests in court.

Though insurance companies will pay good money to protect their name and wealth, it is important for medical expert witnesses to remain ethical during their sessions. This also applies to plaintiff doctors who exaggerate the extent of injuries with the aim of getting more money from the plaintiff. At the end of the day, someone will be suing because they were neglected at work and it is only fair if justice is served. Alternatively, courts should consider appointing their unbiased medical defense experts to examine plaintiffs and offer their opinion to the juror. This would make work easier for the juror because they would have to side with the doctor whose statement matches that of their unbiased medical expert.

ExpertWitness.com does not guarantee or endorse this article.

Can expert witnesses be sued

Expert witnesses have become important in courts of law, and their professional or expertise opinion is helpful at solving complicated cases. Due to their knowledge and experience on certain technical and scientific matters, the court will prioritize their testimonies. This reliance on an expert’s opinion to solve cases can cause trouble if the expert provides misleading or false statement. Can the attorney who loses a case due to an expert’s unprofessionalism sue?

Witness impunity

Traditionally all experts witnesses in the United States were considered immune from suits for any reliable testimony they offer a court or law. This means that even if the expert made a mistake or provided false information, he/she cannot be sued. As a matter of fact, even when a witnesses’ opinion is made maliciously and knowingly, the court states that the affected attorney cannot recover the damages. So, expert witnesses are protected by the law. A fact that promotes expert witness impunity.

But on the other hand, if it was possible for attorneys to sue experts who make false or offer misleading information, would there be any expert willing to testify in a court of law? But they are experts in their fields meaning that they are smart people. So, there is a chance that they would distort testimonies where they suspect that their statements would leave them vulnerable to liability. So, some complainants would never get justice.

Expert witness protection was further supported by the Supreme Court in 1983 when it ruled that fact witnesses, especially in criminal proceedings, are immune from suits for any declarations and information they offer in court.

Changes with time

In the recent past, most jurisdictions have come to the realization that expert witness immunity is real and some attorneys lose credibility due to experts who malpractice or breach contracts. As such, states like Massachusetts, Pennsylvania, Louisiana, California, Connecticut, and Missouri have permitted attorneys to sue expert witnesses who fail to honor their contracts to the end or malpractice. New Jersey and Vermont ruled that court-appointed expert witnesses are liable if they neglect their performance or fail to act professionally.

These states worked under the rationale that, experts do not need to be protected by the law to offer correct information. It also means that courts are not that desperate to get the truth from experts that they must hold them harmless for the deliberate malpractices, negligence, and misleading information. The courts also conduct their investigations and do not solely rely on the opinions offered by experts to make a verdict.

Additionally, Michigan and Tennessee have also ruled in favor of upholding expert witness impunity. Michigan allows attorneys to sue experts for damages they incur because of relying on an expert's mistaken opinions. This means that expert witnesses must be careful with the information they provide. Though they must uphold the truth, intentionally offering false information and malpractice can lead them to trouble.

In conclusion, expert witnesses were once protected by the law but time is changing this fact. As the states change the immunity clauses slowly, experts should learn how to offer correct and factual information.

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The Ultimate Guide to the Federal Rules of Evidence and Expert Witnesses

In the United States, admissibility of evidence used in federal and state courts is governed by a body known as the Federal Rules of Evidence. This piece will discuss Article VII of the Federal Rules of Evidence that covers admissibility of expert witnesses and six other rules. As such, it is important for attorneys’ hoping to introduce or exclude expert testimony during a trial to analyze and comprehend the Article VII.

Rules under Article VII

Rule 701: opinion testimony by lay witnesses

The first rule defines what expert testimony is not; lay witness testimony is not expert witness testimony. The rule states that if a trial witness does not testify as an expert, their opinion testimony ought to be;

- Logically based on the testifier’s perception; requires first-hand observation.

- Helpful by clearly demystifying a fact from an issue and in clearly explaining the witnesses’ testimony. Calls for a meaningful lay witness opinion.

- Not based on technical, scientific or any form of specialized knowledge that falls under rule 702. Contrasts subsection a, and b.

Under this rule, the courts will analyze lay opinions by determining whether the presented testimony correlates with a witness’ observation, experience or daily reasoning.

Rule 702: expert witness testimony

This rule guides the court in determining the permissibility of the presented expert testimony. The rule considers expert opinion acceptable if;

- The technical, scientific or specialized information presented by an expert will assist the trier to understand facts arising from the evidence. 

- The testimony is based on sufficient data and case facts.

- The testimony is based on reliable methods and principles.

- The expert has applied the methods and principles before reliably.

Rule 702 seeks to establish the reliability and relevance of expert opinions and testimonies.

Rule 703: expert opinion testimony base

This rule sets the base from which experts present their opinions and allows them to base opinions from court acceptable information. As such, the opinion should be based on date or facts that the expert has personally observed or made to understand. Expert opinion can be based on admissible evidence as long as it is reasonable and can be relied on. Also, the opinions are only presented to the jury if it is classified as helpful in resolving a case.

Rule 704: ultimate issue opinions

Rule 704 gives an expert power to testify as to ultimate fact issues. But, experts at criminal cases cannot testify whether a defendant was not in the right mental state when committing the offense. As such, expert opinion cannot be conclusive or prevent the jury from conducting further analysis.

Rule 705: disclosing expert opinion facts and data

Rue 705 defines how an expert should disclose their opinions and testimonies. It allows an expert to present their opinion without stating the underlying data and facts as evidence. It broadened common laws by allowing experts to use information that would have otherwise been classified as inadmissible during a trial and could not have been disclosed to the jury.

Rule 706: expert witnesses appointed by the court

It allows courts to choose experts to work on different cases. They are referred to as court-appointed experts who must advise all parties without favor. This rule ensures that the court has access to expert guidance in cases where both parties did not hire an expert.

Conclusion

Article VII lays the foundation on how courts use expert opinions and evidence rules. The article highlights the importance and the role of expert witness in solving complex cases. 

Expert Witnesses: The Difference Between Medical and Forensic

When you think of the phrase “expert witness” chances are you think of someone with medical expertise. While it is true that medical experts are among the most common types of witnesses, you may not necessarily know what they do.

Medical expert witnesses typically testify for malpractice trials and cases where a violent crime took place. Most often medical experts are doctors but they can also be nurses, physician’s assistants, or other medical professionals.

Quite often, the witness will be the medical examiner who evaluated the body during the investigation. They are typically brought in to discuss the cause and manner of death. Whether the client is a plaintiff or a defendant, the testimony of an expert witness may be beneficial.

An experienced and qualified medical expert will be able to examine the facts and materials of the case, including medical records, and provide unbiased testimony. Medical witnesses often prepare written statements, create models, or prepare other visual aids that will assist them in explaining their theories. They can also prepare written reports to present before the court and judge.

Medical experts often rely on their years of personal experience to provide testimony. They may also use their years of academic study and publications they produced over the years. Often times, in order to be considered qualified, medical experts publish works in peer-review journals, so they may turn to some of those works to prove their theory.

When calling upon a medical expert, it’s important to look for someone who can explain the scientific and technical language as well as the specialized jargon so that someone outside the field can understand the key issues of the case.

Forensic medical experts

The term “forensic” means any type of science that can be applied to the law. If you put the two together, forensic experts aren’t all that different from medical experts. Forensic expert witnesses can include chemists, anthropologists, blood spatter analysts, ballistic experts, biologists, psychologists, computer science experts, and criminal behavior experts.

Typically law enforcement agencies have a dedicated team of forensic scientists who analyze evidence and provide testimony in court. When called upon for a trial, forensic scientists have the task of explaining particular pieces of evidence and information that would support the side that called upon them.

Forensic experts are often set apart from other experts because they often, if not always, refer to the direct evidence of the case. A medical expert may provide testimony that concerns a general concern, question, or concept that’s significant to the case on trial, but would not touch on the actual evidence of the current case.

Just like a medical expert, forensic experts must provide honest, unbiased testimony, thus they act as advocates for the evidence itself. If a forensic expert is asked by an attorney to support a theory or opinion that cannot be supported by the evidence itself, then the forensic expert should not testify in that particular trial.

Using the Daubert Test to Determine an Expert Witness’s Credibility

Though calling upon an expert witness isn’t a guaranteed slam dunk, it can make a huge difference in the outcome of the verdict, especially when you have a qualified one on your side. Before asking an expert witness to provide testimony, be sure to do your research. The standards for expert witness qualifications vary greatly, and more often than not, the determining factor is the judge’s opinion of the witness.

Judges take into consideration a witness’ experience, education, and prior testimony. Whatever the judge thinks is “qualified enough” certainly varies from person to person. So how do you determine if the person you’re considering using as a witness is qualified enough for the job? Be sure the judge applies the Daubert test when examining your expert witness.

With the Daubert standard or test, the judge needs to determine how likely it is that the expert’s methods are reliable and that they relate to the case. To do this, the judge must determine of the expert’s findings are based on proper “scientific methodology.” Fortunately, with the Daubert test, there are many ways a judge can determine what makes up a sound methodology.

When using the Daubert test, the judge will look at whether or not the witness’s conclusions are based on a theory that uses empirical testing. This means that the witness must have used direct and indirect observation during their experience or study. It is important to note that empirical evidence can be analyzed either quantitatively or qualitatively. If the expert witness in question has very abstract findings, he or she may be a tough sell to the judge.

The judge will also attempt to determine if the witness’s theory is refutable or falsifiable in any way. This part of the test is based on the scientific method itself. If the expert’s testimony is not based on testable findings and methods, then their testimony won’t make it to trial.

The third step is for the judge to determine if the witness’s theory has been subjected to peer evaluation and review. In most cases, the judge will be looking for the theory in a published academic journal that’s peer-reviewed. The judge will also need to consider the method or theory’s potential error rate, as well as the existence and maintenance of certain standards and controls. In other words, if it is unclear whether or not your expert witness maintained the standards of their field during their studies, the judge may deem them as being unfit for court.

In addition to the other checks and balances a judge must apply when using the Daubert test, the judge will also take a look at how widely accepted the theory or method is in the most appropriate scientific community. After all, if your witness’s peers can’t accept the witness’s work, then how can we?

Finally, the judge will use the Daubert method to determine the error rate of your witness’s work. If your expert witness conducted years of study that will assist your case, be sure garnered them accurate results and not ones riddled with errors. The judge will be quick to throw out a witness whose body of work has a high error rate.

Three Different Types of Expert Witnesses

To aid their argument, either side in a court case can call upon an expert witness. Experts often provide testimony that supports one side’s theory or the evidence itself. Expert witnesses are called upon to relay their specialized knowledge often attained by years of study and experience. Typically, expert witnesses publish their studies in peer-reviewed journals, which adds to their credibility.

Thanks to popular crime shows and real high-profile cases, most people are familiar with medical and forensic experts. There are three other kinds of expert witnesses that can provide excellent testimony in the courtroom. They are accounting, securities, and vocational experts.

Accounting experts

Accounting experts are often called upon to provide testimony in cases of white collar crime and fraud. If the current case involves complex financial litigation, an accounting expert can be used to shed light on the intricacies of the financial situation. These experts can explain everything from a company balance sheet to the value of a specific property to the judge and jury.

Much like other experts, accounting expert witnesses can specialize in specific areas. They can carry certifications, various professional backgrounds, and many specializations. While having an accounting expert that falls into a certain niche seems beneficial, it can also make selecting the right one for trial a little complicated. However, once the attorney has done his or her research, the right expert may greatly increase the chances of victory sometimes even before the case reaches the trial stage.

Securities experts

Those who are experts in securities have skills and knowledge similar to accounting experts. Securities experts are often called upon to explain the financial complexities of a case that doesn’t involve a criminal context. They often speak to the financial situations of the banking industry. For instance, a securities expert could potentially testify that an investment company failed to adequately serve its customers because it didn’t conduct the required research before initiating an investment.

Securities experts may also testify in cases that involve the shareholders of a popular commercial bank that was supposedly not in regulatory compliance. In a case like this, a securities expert could shed light on whether or not the bank followed the normal procedure or if it put its shareholders at risk. Again, this type of testimony must be given in an unbiased way.

Vocational Experts

In some cases, when a person has been denied social security disability benefits and makes an appeal, a vocational expert may be called. It is common for the Social Security Administration to deny benefits to a disabled individual if they believe the individual is capable of working even though they have a disability.

Vocational experts are called upon to offer their opinion about whether or not the appellant is truly able to work. When doing so, the vocational expert will take into consideration the person’s mental and physical capabilities, the transferrable skills he or she obtained from past positions, as well as the state of the job market, specifically in fields in which the appellant is qualified to work.

Most of the time lawyers who are representing disabled individuals treat vocational experts with suspicion. This level of suspicion is due to the fact that vocational experts are not required to have specific qualifications or training to fulfill the duties of their position. Vocational experts are supposed to have expert knowledge about working conditions, the physical and mental demands of jobs, transferability of skills, and the number of jobs on hand.

Another important fact to note is that vocational experts are technically independent contractors. In theory, they are to be impartial and unbiased like other expert witnesses, but the fact remains that they are hired by the Social Security Administration, therefore their objectivity is often criticized much like forensic experts.

Expungement of Misdemeanor and Felony Charges

As investigators and those who work for the law, today our topic is something that’s a big part of what we do: expungement. Expungement is the legal process in which a first-time offender can seek to seal or destroy their criminal record. The term is used for this process because the word “expunge” literally means to remove something completely or to erase something. However, legal expungement is far from the total removal of the criminal record as such records may pop up during background checks.

Individuals who have been on the wrong side of the law often want to know if their record can be expunged as well as what a background check may reveal once the record has been expunged. On the flip side, employers are concerned about what kind of information can be expunged and what tidbits they may be able to get their hands on even after the expungement has taken place.

It can be difficult to say what information may be left behind or accessed even after an expungement occurs because expungement laws change from state to state. Typically, in order to receive an expungement, one must serve the required sentence and then wait for a specific period of time, which usually exceeds one year. Once this is complete, you can file a petition for expungement, if you qualify.

What exactly can be expunged?

At this point, you’re probably wondering if a misdemeanor or a felony can be expunged from a person’s record. The twist is that it actually doesn’t matter if the crime was classified as a misdemeanor or a felony. Certain misdemeanors can be expunged as well as some felonies. In most states, crimes that cannot be expunged are those that are violent such as aggravated assault and murder. Other violent crimes that can’t be expunged are sexual battery, rape, the corruption of a minor, and other offenses of a sexual nature. Cases in which the victim was 18 years or younger do not qualify for expungement. Serious charges involving weapons are likely to be ineligible as well.

What information can still be seen after an expungement has been completed?

It’s important to note that an expungement is not the complete removal of an individual’s criminal record. Though the record is sealed after an expungement, it’s not usually destroyed, therefore it can still be used against you. For instance, if you end up on trial for a different crime, and your criminal history becomes relevant, the court could potentially have your record added as evidence in the case.

Another thing to keep in mind is that even if you avoid causing trouble with the law, you could still have trouble landing certain jobs. Certain organizations may also prohibit you from obtaining professional licensure as well. If you elect to apply for government-sensitive jobs, be aware that they will likely take a look at your sealed record.

If you have questions about whether your arrest or conviction record is eligible for expungement, be sure to contact an expungement attorney. Because expungement can be a complicated process, you should have someone working for you who knows how to navigate the gray areas. If you’re an employer or renter and you want to know whether your staff member or tenant has had their record expunged, you’ll need to seek the services of an investigator.

Techniques and Equipment for Quality Private Investigator Surveillance

If you’re unfamiliar with private investigator equipment or you’re just dipping your toes, private investigator surveillance equipment is basically the same as the equipment used by police. You will notice a few key differences, however. The first is that as a newer or part-time private investigator, you’re probably on a budget and won’t be able or want to shell out a bunch of cash for fancy cameras like the pros have. If you’re a beginner, you can get by with a basic camera if you can’t get your hands on anything else to work with.

A basic camera is perfect if you’re just starting out because you’ll likely be taking beginner-level cases. Chances are you’ll be starting out with marital infidelity investigations where advanced technology isn’t a requirement. When investigating whether or not your client’s husband or wife is seeing another, pictures will typically do the trick, so there’s no need for an informant to wear a wire or something of that nature.

Another reason you won’t have to compete technology-wise is that it’s likely you’re investigating people who aren’t a threat. Police investigators are often searching for dangerous criminals who have become accustomed to looking out for the cops. If your client’s spouse is good at covering their tracks, they’ll most likely still be easier to follow and less of a threat, if a threat at all than a hardened criminal. In other words, there’s no need to worry about getting the top-of-the-line right from the beginning.

Alternatively, a large detective agency may have a larger budget than the city police department. At this type of agency, you may find the best and newest gear with cameras and microphones that are small and lenses that zoom in further that the standard models.

Helpful Surveillance Techniques You Can Adopt

Much like the technology they have in common, private investigator surveillance techniques are similar to the ones used by law enforcement. In most cases, private investigators have some type of law enforcement experience under their belts, so they may, in fact, be using the exact same skills they learned while on the force.

You will discover that there are some key differences, however, between private investigator techniques and those used by the professionals. For instance, private investigators are not police officers, therefore they cannot secure search warrants. Neither can they install a surveillance device on the target’s computer or tap their phone with a wire. These key differences aside, here are some great tips that both cops and surveillance private investigators use:

• Check vehicles for dew in the morning. If your target’s vehicle doesn’t have dew on top, but the nearby vehicles do, it’s likely the car was moved overnight.
• Counting the number of electric meters are on the side of a building will likely tell you how many families live in a residence.
• You can stay right behind the vehicle you’re taking when traffic is dense. If traffic is slower, be sure to keep one car in between you.

Be sure to take detailed notes, no matter how tedious it seems. Times, dates, locations license numbers, details about conversations, and anything that seems important may show up again later. It will also be important to know these things when you’re writing your report for your client later. If you end up being called into court, your report may assist you there as well.

Expert Witnesses: The Difference Between Medical and Forensic

When you think of the phrase “expert witness” chances are you think of someone with medical expertise. While it is true that medical experts are among the most common types of witnesses, you may not necessarily know what they do.

Medical expert witnesses typically testify for malpractice trials and cases where a violent crime took place. Most often medical experts are doctors but they can also be nurses, physician’s assistants, or other medical professionals.

Quite often, the witness will be the medical examiner who evaluated the body during the investigation. They are typically brought in to discuss the cause and manner of death. Whether the client is a plaintiff or a defendant, the testimony of an expert witness may be beneficial.

An experienced and qualified medical expert will be able to examine the facts and materials of the case, including medical records, and provide unbiased testimony. Medical witnesses often prepare written statements, create models, or prepare other visual aids that will assist them in explaining their theories. They can also prepare written reports to present before the court and judge.

Medical experts often rely on their years of personal experience to provide testimony. They may also use their years of academic study and publications they produced over the years. Often times, in order to be considered qualified, medical experts publish works in peer-review journals, so they may turn to some of those works to prove their theory.

When calling upon a medical expert, it’s important to look for someone who can explain the scientific and technical language as well as the specialized jargon so that someone outside the field can understand the key issues of the case.

Forensic medical experts

The term “forensic” means any type of science that can be applied to the law. If you put the two together, forensic experts aren’t all that different from medical experts. Forensic expert witnesses can include chemists, anthropologists, blood spatter analysts, ballistic experts, biologists, psychologists, computer science experts, and criminal behavior experts.

Typically law enforcement agencies have a dedicated team of forensic scientists who analyze evidence and provide testimony in court. When called upon for a trial, forensic scientists have the task of explaining particular pieces of evidence and information that would support the side that called upon them.

Forensic experts are often set apart from other experts because they often, if not always, refer to the direct evidence of the case. A medical expert may provide testimony that concerns a general concern, question, or concept that’s significant to the case on trial, but would not touch on the actual evidence of the current case.

Just like a medical expert, forensic experts must provide honest, unbiased testimony, thus they act as advocates for the evidence itself. If a forensic expert is asked by an attorney to support a theory or opinion that cannot be supported by the evidence itself, then the forensic expert should not testify in that particular trial.

The Potential Benefits of Using an Expert Witness

No matter the details of your current case, there’s no denying that there are many benefits to calling on an expert witness. In fact, an expert witness’ opinion may even make or break a case. The testimony expert witnesses provide can oftentimes be the final puzzle piece the jury needed to be convinced of your client’s innocence. 

A ballistics expert can shed light on the details of the shooting the occurred in your court case. A medical expert can be the deciding factor in a medical malpractice case, for instance.  

Either the defense or the prosecution can bring an expert witness to trial as long as he or she has testimony relevant to the case. Throughout the years, many scientists, academics, forensic experts, and doctors, have provided expert witness services - some of them making careers out of these services. 

In reality, we live in a world where the side that hires the most qualified, experienced, and knowledgeable expert witness can often win the trial, thus making expert witness services a profitable industry. Though the realm of education has undergone and continues to experience changes, our society still places a higher value on someone with a higher education. A doctor with an MD from Harvard will charge more for expert witness services, but will most likely be more convincing than a doctor with an MD from a State College University. The bottom line: though some expert witness fees can cost you as much as five figures or more, they’re worth calling upon for your high profile case.

Now, the important thing to remember is that calling upon an expert witness doesn’t guarantee you the outcome you desire; they’re not a hole-in-one. Expert witnesses are required to follow their own professional code of ethics. They must also obey the court rules and attorneys’ professional ethics. In other words, if your goal is to prove your point to the courtroom jury, then you’ll want to choose an expert witness that will come to the conclusion you’re looking for.

Typically, an expert witness is used to make an impartial point; they’re goal is to use scientific information to come to an impartial evaluation of the facts of the case. Once the expert witness has done this, he or she will come to an unbiased conclusion. It is important to note that if the expert witness’ conclusion doesn’t dovetail with the lawyer’s line of argument, the lawyer can then seek another expert opinion. Expert witnesses are often called upon when a controversial issue takes part in a case. When this happens, then it’s not very difficult to find experts with alternating opinions.

In conclusion, though calling an expert witness can get expensive quickly, especially when working with one that’s provided testimony several times before, it can be worth it in the end. Their knowledge and ability to use scientific information to come to an unbiased opinion in front of a jury makes them highly valuable assets.

Disclaimer: Expert Witness does not guarantee or promise any desired legal results based on the content of this article.

The Difference Between a Fact Witness and an Expert Witness

Defining an expert witness without understanding the definition of a fact witness can be difficult. In order to fully comprehend the definition of an expert witness, you’ll need to have at least a minimal understanding of the legal realm. If you’re unfamiliar with either one, expert witnesses and fact witnesses are the only two kinds of witnesses that can testify in court. 

To be a fact witness, one must have heard, seen, or experienced something directly relevant to the case. As with many cases, a fact witness can be the victim of the crime, someone who saw the getaway vehicle leaving the scene, or someone who overheard the shots fired. It’s important to note that the witness must have been there and seen or heard firsthand what they’re recounting in their testimony.

A good rule of thumb is that a fact witness’s testimony cannot be based on their opinion. A fact witness is called upon to do just that - recount the facts. 

On the other hand, expert witnesses are the only exception to the firsthand rule. An expert witness can testify in court about something with which they have no direct involvement. Additionally, an expert witness can testify to their own opinion using scientific findings and facts. An example of this would be a chemist who can testify that the white powder found on the suspect’s clothing was indeed cocaine. The witness can testify to such a fact even though he or she knows nothing about the crime.

The type of expert witnesses varies widely. Witnesses can be experts on common medical and forensic topics in whatever field they choose, and in just about any field that an attorney argues as “scientific.” 

One thing you’ll find when searching for expert witnesses on a given topic is that the requirements vary and are an area of legal debate. Many expert witnesses are specialists in psychology, medicine, economics, and other fields. More often than not, they have a variety of credentials that mark their accomplishments and education in their field of expertise. An example of this would be calling upon a forensic psychologist that provides testimony regarding the mental abilities of an individual who has committed a crime. An expert witness may also be brought to court to help the judge make a fair ruling. In this case, the expert witness may help the judge understand any technical subjects or specialized topics.

In some instances, expert witnesses are allowed some leeway in testimony, whereas the testimony of a fact witness will be carefully examined and scrutinized by the court to prove its effectiveness.

It’s also possible that some witnesses may provide testimony that straddles the gray area of both fact and expert witness. Some examples include clinical practitioners, doctors, and forensic psychologists. Due to the nature of their fields, these witnesses may be questioned about what they did and what the subject did, just like a fact witness. Then these witnesses may be asked to state their opinion like an expert witness. 

Disclaimer: Expert Witness does not guarantee or promise any desired legal results based on the content of this article.

How Calling Upon a Treating Physician is Different than Other Expert Witnesses

In most jurisdictions, the rules of evidence dictate that a party who wants to call an expert witness must give the other party advanced notice as well as the expert’s name. In some situations, the rules may also require the disclosure of the expert’s opinions, qualifications, publications, and prior testimony in advance. More often than not, the expert must state his or her opinions in a written report that is shared with the opposing party or parties prior to trial.
 
When it comes to treating physicians, however, most jurisdictions make exceptions. Typically, treating physicians are only asked to testify regarding their diagnosis and the treatment they provided to a patient. In these types of cases, medical records are considered an adequate substitute for a written report. 
 
Additionally, treating physicians are deemed different than other experts. Treating physicians are busy maintaining their practice and treating patients, so asking them to write a report is viewed as a waste of time, especially considering the reports would reiterate the information contained in medical records.
 
In New Jersey, discovery rules still permit a party to require the opposing party’s expert produce a written report. According to the requirements, the report must include a full statement regarding the expert’s opinions and the foundation for those opinions. The report must also include the facts and data that the expert relied upon. The rules currently make no exception for treating physicians.
 
Recently, the New Jersey Supreme Court was faced with a case which required them to ask whether a plaintiff who was suing for disability discrimination was required to produce a report when she relied on her treating physician’s testimony. The trial court excluded the physician’s testimony on the grounds that no report had been prepared and given as part of the pretrial process. The supreme court, however, determined that the treating physician’s testimony did not trigger the need to produce a written report.

The Delvecchio Case

Patricia Delvecchio worked for the Township of Bridgewater as a police dispatcher. In the Township of Bridgewater, dispatchers typically worked three shifts on a rotating basis. Delvecchio suffered from inflammatory bowel syndrome (IBS), which worsened whenever she worked the midnight shift. 
 
Delvecchio told the Township that she suffered from IBS and formally asked for accommodations regarding her condition. She asked to be reassigned to the morning or afternoon shift. She supplemented her request with notes from her gastroenterologist. The notes explained that her symptoms were manageable during the day, but were not during her midnight shifts.
 
At first, the Township made the adjustments but decided it was too burdensome to keep her on the afternoon shift after one year. The other dispatchers, though, were happy to make these accommodations. The Township ended up reassigning her to afternoon shifts when those shifts were available and moved her back to occasional midnight shifts despite further intervention from her gastroenterologist.
 
Delvecchio repeatedly declined midnight shift assignments. In response, the Township asked her to resign. When she refused to resign from her position, the Township forced her into a records clerk position and cut her pay. Later, the Township terminated her, citing excessive absenteeism as its reason.

Delvecchio’s Lawsuit

Delvecchio filed a lawsuit against the Township, claiming that it violated New Jersey’s Law Against Discrimination by repeatedly moving her to the midnight shift. She supported her claim by stating that IBS is considered a disability under New Jersey law and that the Township had a duty to accommodate her disability into her work schedule.
 
In an effort to fulfill New Jersey’s discovery rules, Delvecchio informed the courts and the other party that her treating physician would testify that she had been diagnosed with IBS and that he wrote notes to the Township mentioned previously.
 
During the trial, the judge ruled that New Jersey law doesn’t allow a treating physician to testify regarding a plaintiff’s diagnosis unless that physician has been deemed an expert witness. Furthermore, the judge allowed Delvecchio’s gastroenterologist to testify that he had been treating her for IBS, but the judge did not allow the doctor to explain IBS or its symptoms to the jury.
 
Because the jury never heard testimony in support of the claim that Delvecchio was, in fact, disabled, they found the evidence to be in favor of the Township. Delvecchio appealed as a result.

The Supreme Court’s Decision Regarding the Case

In conclusion, the supreme court ruled that the trial court should have allowed Delvecchio’s gastroenterologist testify about her IBS, the impact of IBS on her daily life, and the recommendations he gave her to alleviate her symptoms. Since Delvecchio’s attorney did ask the doctor general or global questions beyond the scope of his actions as her treating physician, she was not required to designate him as an expert. As a result, the court accordingly granted Delvecchio a new trial. 

Disclaimer: Expert Witness does not guarantee or promise any desired legal results based on the content of this article.

How Video Evidence Impacts the Courtroom

                               
 
In today’s technologically advanced world, it’s no surprise that video evidence can play a key role in the courtroom. Recently, in Minnesota and Louisiana cases, video evidence was used to piece together the details of two shootings. The shootings involved white officers and black residents, making them high-profile cases. 
 
Footage taken by civilians was used in the courtroom because it had captured both Philandro Castile’s and Alton Sterling’s final moments before their untimely deaths, thus creating widespread outrage.
 
The use of video evidence in Castile and Sterling’s cases begs the question, what makes video evidence so powerful? One main reason is that video is visually compelling. It’s one thing to share an oral statement or a written document in court, but another thing entirely to trigger an emotional response with a video. 
 
In most cases, video evidence may work in favor of the defendant. Another reason video can be powerful is because it provides the jury with more information. It can supplement any written and oral statements, thus helping the jury make a decision regarding the verdict. In the remainder of this article, you’ll find explanations regarding the main types of video evidence as well as the requirements and recommendations that should be met in order for video evidence to be labeled admissible in court.
 
Types of Video Evidence that Can Be Used
 
Because there are various types of video evidence, we believe it to be helpful to highlight some of the most common and notable examples. These include:
 
Body Cameras – In recent years, the number of police officers wearing body cameras has increased nationwide. It is notable that there was a bill in April of 2016 that called for the expansion of police officer body cameras in Colorado, but it failed in the state Senate.
 
While the argument that body cameras are beneficial when it comes to holding police officers more accountable for their daily actions, the Baton Rouge shooting of Alton Sterling revealed a flaw in such technology. The problem being that during the altercation with Sterling, the body cameras worn by two police officers became dislodged. 
 
On the flip side, those who oppose body cameras argue that body cameras give the government more power to invade civilian privacy. This argument is strengthened by the fact that ownership of the footage caught on body cameras belongs to the police force. Because of this, the decision to release footage is based on local laws as well as being up to each police department.
 
Dashboard Cameras – While similar to body cameras, dashboard cameras are kept on the dashboards of civilian and police vehicles. Dashboard cameras can be quite helpful in multiple situations, especially when a DUI charge is involved. For example, if a civilian is pulled over by a police officer, and the civilian is subjected to the use of excessive force or an illegal search, anything caught on that camera can be used in court in that person’s favor.
 
However, much like police body cameras, dashboard cameras have their own set of flaws. Since dashboard cameras are the property of law enforcement, police aren’t required to release any footage to the public. In the case of the shooting of Alton Sterling, the involved police officers did have dashboard cameras, but law enforcement has not released any dashboard footage that was captured.
 
Surveillance Cameras – Public and private property surveillance cameras can be critical in cases of burglary, theft, and violent crimes. In Alton Sterling’s case, which occurred outside of a convenience store, surveillance footage was captured but seized by the police before anyone else gained access. 
 
Cell Phone and Other Footage – Thanks to smartphone technology, any passerby can become a witness and a cameraman by using their cell phone or similar device. Cell phone footage has definitely played an important role in telling the stories of both Philandro Castile and Alton Sterling, however. The fact is that without the footage taken by innocent bystanders, the public would likely have less information regarding the incidents.
 
Shortly after a police offer shot Philandro Castile during a routine traffic stop, Castile’s girlfriend Diamond Reynolds, began streaming the aftermath on Facebook Live from the car.
 
In Reynolds’ video, she verbalizes the series of events as she films Castile, who at the time, was slumped over in the driver’s seat and bleeding as the police offer points a gun through the window. 
 
During the Alton Sterling shooting, similar footage was captured, which helped establish a timeline of events. At this time, police video and surveillance has still not been released to the public, but two witness videos have received mass media coverage, which fueled protests and heated discussions about racism throughout the United States.
 
 
The Must-Haves of Video in the Courtroom
 
Fortunately, as video has become more popular, the U.S. courts have established their own list of criteria that must be met in order for video evidence to be considered admissible. The video evidence criteria are as follows:
 
·      It must be authentic.
·      It must be relevant.
·      It must not be hearsay or must be admissible under an exception to the hearsay rule.
·      If there is an original copy of the video available, any copies or facsimiles will be held inadmissible in court.
·      The probative value of the video must outweigh any prejudicial effect.
·      In addition, the video must be properly stored by law enforcement in order to prevent tampering or damage.
 
In conclusion, there really is no one catchall best type of video evidence to be used in court. It is important for any video captured by body, surveillance, cell phone, or dashboard cameras to paint an accurate and well-rounded picture of the situation in order to ensure impartiality.
 
Disclaimer: Expert Witness does not guarantee or promise any desired legal results based on the content of this article.

Touch DNA Convictions May Be Found Unreliable

Modern crime drama enthusiasts will tell you that the gold standard of evidence is DNA. Crime drama fans will also tell you that unless a criminal covered from head to toe in protective clothing while wearing gloves, there is a good chance that the criminal left behind traces of DNA at the crime scene. 
 
In reality, crime scene investigators are given the idea that every contact can leave behind a trace of DNA. This principle is attributed to Edmond Locard. According to Locard, the transfer of merely a few skin cells can be enough to provide investigators with a type of DNA called “touch DNA.” Much like traditional DNA evidence, touch DNA can then be matched to a known suspect or to someone else who appears in the DNA database. For example, touching something such as a door handle may leave a trace that can be used to identify the suspected culprit.
 
When using touch DNA to discover the truth regarding a crime, investigators typically conclude that finding DNA from someone who then denies being at the scene of the crime is proof of their guilt. According to new studies, however, it’s possible that a person’s DNA can be transferred to a crime scene even if that person has never been there. When this happens, an innocent person may be found guilty.
 
In a 2016 article, Scientific American issues a warning that prosecutors, police, and juries may be making a mistake when they trust that the presence of DNA is undeniable proof. The article details the arrest of a homeless man who was charged with the murder of a Silicon Valley multimillionaire. The man’s arrest was based only on the discovery of his DNA at the crime scene. The man tried to tell police that he had never been there and couldn’t explain how his DNA go there, the police and prosecutors had to assume he was the guilty party.
 
Fortunately, the homeless man’s defense team soon found solid evidence of his innocence. The homeless man could not have been the murderer because he had been hospitalized shortly before the murder took place. His defense team found that he was actually nearly comatose during his hospital stay and had been under constant medical supervision when the crime occurred.
 
Upon further investigation, his defense team discovered that the paramedics who treated him ended up responding to the crime scene hours later. In reality, the paramedics came in contact with the homeless man, and then unknowingly transferred his DNA to the crime scene. The fact remains, however, that if the homeless man had not had proof of his whereabouts during the time of the crime, he would have received a wrongful conviction.

Forensic Science Should be More Careful

Interestingly enough, the notion that DNA evidence is fragile comes at a time when other forensic sciences are facing intense scrutiny. Courts are slowly becoming critical of forensic scientists who tend to present doubtful evidence while pretending that it’s based on irrefutable science.
 
For example, when using microscopic examination, crime lab analysists often testify that a hair found at a crime scene belongs to the defendant, but upon further examination, the physical characteristics of their hair may only support the idea the hair is similar to the defendant’s hair. 
 
In 2013, the FBI admitted that the scientific testimony that was used to convict thousands of individuals was scientifically invalid. While DNA testimony remains more valid than hair or bite mark analysis, expert witnesses who testify about DNA still need to take precaution. 
 
The presence of trace DNA is strictly circumstantial evidence. Even in the absence of corroborating evidence, trace DNA should not bee seen as proof of guilt. 
 
*Disclaimer: Expert Witness does not guarantee or promise any desired legal results based on the content of this article.

How to Be An Expert Witness

In 2001, an expert witness named Michael West caused quite a stir during his testimony for a Mississippi murder case. As a forensic dentist, West established a reputation in his community for his bite mark and teeth analysis work. Throughout his experiences as an expert witness, West has been criticized for various reasons, some of which include being an “expert” in too many areas, being combative during the trial, and failing to review original testimony. 

While every expert witness is different, West’s behavior has called to mind several ways expert witness should behave. Below are some strategies to increase your credibility as an expert witness and ideas for enriching your professional experiences in the courtroom.

1.    You should specialize in a limited number of fields

 
Let’s face it, we can’t all be experts in everything. Whether your area of expertise is DNA, splash patterns, or mental health matters, you should focus on the topics within your niche.

West, for example, was put under a microscope for claiming to be an expert on various topics, some of which had nothing in common with his dental profession. In addition to claiming to be an expert witness in bite mark and teeth analysis, West also claimed to be an expert in gunshot residue, liquid splash patterns, gunshot reconstruction, wound patterns, trace metals, tool marks, blood spatter, and fingernail scratches.

While it’s possible for witnesses to have multiple hobbies and areas of study, being an expert in a wide range of areas takes a little bit away from your credibility. Specializing in gunshot residue and gunshot reconstruction for over 20 years makes your word a bit more valuable than someone who has become an “expert” in over 10 years.

2.    Testify only on subjects where you have high levels of expertise

Though this seems obvious, it’s important for an expert witness to testify in only areas that he or she has high levels of expertise. If you have been closely studying auto injuries but just started branching out into wound patterns, it’s probably best to you stick to your main topic of expertise, until you’ve gained enough knowledge on wound patterns.

3.    Be a member of relevant professional organizations

Though this piece of advice seems like it wouldn’t boost your credibility very much, being a member of professional organizations that are relevant to your area of expertise makes a difference.

If you’re a dentist who identifies as an expert witness, it would behoove you to be a member of the American Dental Association as well as The Academy of General Dentistry. Though most dentists are already members of such organizations, for example, it would be best to join if you plan on delivering expert testimony in the future.

4.    Admit when you are wrong

Owning up to our mistakes can be one of the toughest lessons to learn, especially when you have to do it in a courtroom. Though it may seem like a failure, admitting when you were wrong about something you said lets the parties involved know you’re being honest. There’s nothing worse than continuing to run with false facts or testimony because you were afraid to admit you got something wrong. 

The fact is, you’re under oath. If you realize that you gave inaccurate or false testimony, you’re much better off to admit it than to leave it be. 

5.    Don’t be combative when providing testimony

One of the worst things West did during his deposition was act combatively and arrogant. In the 2001 Mississippi murder case, West claimed that he stood by his previous testimony from 1992. The problem is that he claimed he didn’t remember what his testimony was and he declined to review it again. West then went after the attorney, stating that the attorney required “five years of improvement” before even making it to the level of “jerk.”

Though depositions and in-court testimony can be a bit nerve-wracking, it’s important to never lose your cool, no matter what role you play during the trial. As an expert witness, your testimony can be the difference between life and death in some states, so letting your ego and emotions into play can result in negative consequences for those involved.

6.    Be sensitive to the impact your testimony might have

Lastly, while it can be easy to detach from the real-world application of your testimony, it’s important that you remember just how much your testimony affects both parties in a case. Your expert witness testimony has the power to sway the verdict, in some cases; therefore you should always be cognizant of the weight your words carry.

Disclaimer: Expert Witness does not guarantee or promise any desired legal results based on the content of this article.

Making a Difference: How Eyewitness Experts Are Turning the Tides in Illinois

Traditionally, American courts have failed to recognize the importance of eyewitness testimony, especially in the event that a criminal charge hinges on such an account. Up until the last few years, judges have typically ruled that juries understand the possibility that eyewitnesses are less reliable and that experts add very little to the juror’s case knowledge. 
 
The fact remains that mistaken eyewitness accounts are the number one cause of wrongful convictions. These wrongful convictions are slowly being brought to light as DNA testing continues, however, the courts are still learning just how little jurors tend to realize how easily eyewitnesses can make an incorrect identification. 
 
Recent studies have been published in an effort to explain why eyewitnesses get it wrong. As a result, courts have been forced into recognizing that a defendant who wants to call an eyewitness identification expert will most likely receive an unfair trial if the expert doesn’t testify.

Things are changing in Illinois

Fortunately, one Midwestern state is paving the way in eyewitness expert identification. In January of 2016, Illinois opened the door to testimony by eyewitness identification experts. 
 
In an appeal regarding Eduardo Lerma’s murder conviction case, the court agreed that Lerma was denied a fair trial when the judge refused to allow his expert witness to testify. 
 
In Lerma’s case, eyewitness identification testimony was crucial because it was the only evidence against him. During the trial, the eyewitness said that she had been standing on the darkened steps of a home near midnight when she spotted a man in a black hooded sweatshirt draw a gun and then shoot the victim. She recounted that the victim then fell on top of the witness, who heard the victim say, “Lucky shot me.” “Lucky” was a neighborhood nickname for Eduardo. 
 
In this case, the eyewitness had never actually met Eduardo and instead had only spotted him across the street on occasion. Whether her trial or her prior grand jury testimony is to be believed, the fact remains that she had only seen the defendant on his porch once or twice. She had never spoken to Eduardo and had not seen him in six months to a year before the shooting occurred. 

The expert testimony that was proposed

 
In response to the eyewitness testimony, the defendant wanted to call in a psychologist as an expert witness for the purpose of testifying about several facts that most jurors wouldn’t understand. Such facts included: 
 
1.    An eyewitness’ confidence in her identification doesn’t mean she’s accurate.
2.    The stress of witnessing a violent crime, the presence of a gun, witnessing the crime at night, and the passage of time all impact an eyewitness’ ability to make an accurate identification. 
3.    Cross-race identifications are less reliable than same-race ones.
4.    Eyewitness identifications are influenced by the suggestion of the situation.
 
During this testimony, the expert acknowledged that identifications are more reliable when the eyewitness actually knows the person she is identifying. For this reason, the trial judge threw out the expert’s testimony, arguing that it was unhelpful to the jury. The judge also claimed that identification experts were simply “the latest trend” and therefore irrelevant. In the end, the defense asked the judge to reconsider, placing the opinion of another psychologist on the table, but the judge refused to permit any expert testimony.
 
In the end, the Illinois Supreme Court ruled that the expert’s testimony should have been admitted in Eduardo’s defense. The court recognized that in the 25 years that had gone by since it last ruled on the admissibility of expert eyewitness testimony, a growing body of relevant research had grown. The court determined that a dramatic shift in the legal landscape had occurred during this time, and as a result, eyewitness expert testimony does have its place in court. Today, the Eduardo Lerma decision continues to have an impact. In fact, in 2016, Marco Lopez was acquitted of murdering a father and son because an expert witness explained in court that eyewitness identification couldn’t be trusted. The Chicago Tribune has since listed a number of cases that resulted in wrongful convictions due to eyewitness testimony. What makes the Lerma case so impactful is the fact that it genuinely opened a door for eyewitness testimony to be examined with a fine-tooth comb. It also shed light on the fact that eyewitness testimony can be unreliable, which can be the difference between a conviction and a release.
 
Disclaimer: Expert Witness does not guarantee or promise any desired legal results based on the content of this article.

Federal Rules of Evidence - Article XI – Miscellaneous Rules

Rule 1101 – Applicability of the Rules

(a) To Courts and Judges. These rules apply to proceedings before:

United States district courts;
United States bankruptcy and magistrate judges;
United States courts of appeals;
the United States Court of Federal Claims; and
the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.
(b) To Cases and Proceedings. These rules apply in:

civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;
criminal cases and proceedings; and
contempt proceedings, except those in which the court may act summarily.
(c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.

(d) Exceptions. These rules — except for those on privilege — do not apply to the following:

(1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;

(2) grand-jury proceedings; and

(3) miscellaneous proceedings such as:

extradition or rendition;
issuing an arrest warrant, criminal summons, or search warrant;
a preliminary examination in a criminal case;
sentencing;
granting or revoking probation or supervised release; and
considering whether to release on bail or otherwise.
(e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules.
 

Rule 1102 – Amendments

These rules may be amended as provided in 28 U.S.C. § 2072.

Rule 1103 – Title

These rules may be cited as the Federal Rules of Evidence.

Federal Rules of Evidence - ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule 1001 – Definitions That Apply to This Article

In this article:

(a) A “writing” consists of letters, words, numbers, or their equivalent set down in any form.

(b) A “recording” consists of letters, words, numbers, or their equivalent recorded in any manner.

(c) A “photograph” means a photographic image or its equivalent stored in any form.

(d) An “original” of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout — or other output readable by sight — if it accurately reflects the information. An “original” of a photograph includes the negative or a print from it.

(e) A “duplicate” means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

Rule 1002 – Requirement of the Original

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

Rule 1003 – Admissibility of Duplicates

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

Rule 1004 – Admissibility of Other Evidence of Content

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;

(b) an original cannot be obtained by any available judicial process;

(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or

(d) the writing, recording, or photograph is not closely related to a controlling issue.

Rule 1005 – Copies of Public Records to Prove Content

The proponent may use a copy to prove the content of an official record — or of a document that was recorded or filed in a public office as authorized by law — if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

Rule 1006 – Summaries to Prove Content

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Rule 1007 – Testimony or Statement of a Party to Prove Content

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.

Rule 1008 – Functions of the Court and Jury

Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines — in accordance with Rule 104(b) — any issue about whether:

(a) an asserted writing, recording, or photograph ever existed;

(b) another one produced at the trial or hearing is the original; or

(c) other evidence of content accurately reflects the content.

Federal Rules of Evidence - ARTICLE IX. AUTHENTICATION AND IDENTIFICATION - Sections 902-903

Rule 902 – Evidence That Is Self-Authenticating

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

(A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

(B) a signature purporting to be an execution or attestation.

(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified. A document that bears no seal if:

(A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

(B) another public officer who has a seal and official duties within that same entity certifies under seal — or its equivalent — that the signer has the official capacity and that the signature is genuine.

(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:

(A) order that it be treated as presumptively authentic without final certification; or

(B) allow it to be evidenced by an attested summary with or without final certification.

(4) Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:

(A) the custodian or another person authorized to make the certification; or

(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.

(5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.

(6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.

(7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

(8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.

(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

(10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.

(11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

(12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification, rather than complying with a federal statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

Rule 903 – Subscribing Witness

A subscribing witness’s testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.

Flood Survival: How to prepare, respond, and recover from a flood.

Experience is sometimes an unforgiving instructor. At Lawsonline™, we learned about devastation caused by flood waters firsthand when Cedar Rapids, IA was hit by a massive flood June 13, 2008. Lawsonline™ is parented by enlighten technologies, inc.™, which includes many other businesses such as LAWCHEK® and LEGALCONFERENCE™. Our headquarters in downtown Cedar Rapids was inundated with water after the Cedar River crested at 31.1 feet (19.1 feet over flood stage) to overtake 1,300 blocks of the city.* The first floor was completely lost and when the water reached 4 feet on the upper level, it was destroyed, as well. After a slow road to recovery, and upon reflection, we've written an article about what to do if a flood hits your home or business. We hope our readers never have to use the practical advice in this article.

Before the Flood
It is not always possible to know when a flood will happen. It may be caused by an inundation of rain fall. Cities in Iowa were affected in this way when the Cedar and Iowa Rivers swelled with over 10 inches of rain in only one week.** This can then be compounded when man-made structures give way. This was seen in New Orleans when 50 levees broke during Hurricane Katrina.* So what can you do to protect your business or home before a flood happens?

• Find out about the land your structure is on. Does it sit on a flood plain? What is the threat level? Geologists or your county planning department will list these areas by the probability of a flood. For instance, Cedar Rapids has areas designated as 100 or 500 year flood plains. The flood in June was a 500 year flood.
  FEMA Offers flood maps detailing current flood risk. Simply type in your address and you can look at it online. You also have the option to buy a map, but as long as you are looking online, the service is free. http://msc.fema.gov/
• Now that you know where your home or business stands, what kind of insurance is available? Talk to your insurance agent first. If you want to now more about insurance options, especially in higher risk areas, also check out the National Flood Insurance Program at www.floodsmart.gov/floodsmart/.
• Whether a household or a business, you should have an evacuation plan in place. Let family members and employees know what evacuation route to take if water is rising swiftly and an evacuation is ordered. For households you should include a place for everyone to meet whether it is a local shelter or a relative’s/friend’s house. Also, families should have an out of state contact that everyone may call to locate each other in case they are separated.
• Create an emergency kit to be ready at any time. Depending on the needs (home or business) some items to consider are:
  • Clean water (enough for at least 3 days for every person and animal – generally 5 gallons per person)
  • Nonperishable food for 3 days (don’t forget a can opener!)
  • Suitcase with an extra pair of clothes and extra blankets or sleeping bags
  • Baby Kit - Baby food, diapers and other supplies
  • Pet food, leashes, vaccination info for your pet – you may have to leave your pet at a local pet shelter if you are evacuated as emergency shelters do not allow pets
  • First Aid Kit – try to include some extra prescription medications (not expired!) or details about any prescriptions so you can refill them if lost in the flood
  • Personal Hygiene Kit – sanitary wipes or gel, soap, toothpaste, feminine supplies, deodorant, etc.
  • Flashlights, radio or small TV, and batteries – you may also consider crank flashlights and radios
  • Some items to have on hand particular to a flood threat: insect repellent, rubber boots and gloves, and thick shoes
• Back up your documents! If you are evacuated due to a flood there are certain documents you will need for claims and getting back on your feet. Keep a copy of these documents with your emergency kit, at a safe location other than your home or both. At the very least these documents should include: insurance information, social security number, and medical records including any active prescriptions. It would also be a good idea to make a list of emergency contact information including family and friends as well as local and state numbers you may need.
• Prepare your business or home to resist flood damage. Suggestions include: install sump pumps with a back-up source of power, install backflow valves or plugs to prevent sewage entering the home, and make sure any fuel or propane tanks are securely and properly installed.

During the Flood

• Once a flood watch or warning is given call local authorities and let them know of anyone who may have special needs and cannot leave the flood area easily. It is extremely helpful for authorities to know who needs help evacuating if an evacuation becomes necessary. Ideally, have a friend or family member who will try to get this person out first if it is still safe to do so. This way there is less chance of separation.
• Get your emergency kit and keep it at hand in case of an evacuation. If you have some prep time before, fill up the gas tank to make sure you can go at a moments notice. If an evacuation is ordered there may be heavy traffic and you may need to go some distance to a shelter.
• Secure any items outside that might become hazards in water such as garbage cans, lawn furniture, grills, etc.
• If an evacuation is imminent: turn off the power and gas.
• If an evacuation is ordered, evacuate immediately. Use the route the authorities have given and make certain not to drive through flooded roads.
• If you are not ordered to evacuate, stay home and listen to any future announcements. Unless helping a family member or friend for a specific purpose, stay off the roads and out of the way of emergency crews. Going to watch is not helpful and can be potentially very dangerous.

After the Flood

• First you will want to contact your insurance company. Even if you are not covered for a flood, you will need to contact your agent. This is why it is important to keep documentation with your emergency kit. You need to know your company, agent (if applicable) and your policy number. In the case of evacuation, make certain to specify the address and phone of where you can be reached now. This may also be a friend or relative who can act as a point of contact if you are not immediately near a dedicated phone. They will set up an appointment to meet with you and discuss your losses. If they do not get back in a few days be persistent and call again, just keep in mind they may be overwhelmed with claims.
• Work with authorities about your return. Although this part can be extremely frustrating, in the case of major floods they will want to assess the safety of your return before you may enter any neighborhood or structure. Choose representatives, as in the case of Cedar Rapids the first look at the property was restricted to 1-3 people depending on location. The authorities may have also set up a grade system for the status of your structure. In Cedar Rapids there were green, yellow and red signs letting owners know whether a structure was safe to enter, enter only with caution or too dangerous and deemed a total loss.
• Once it has been deemed safe by the authorities for you to return, start the process of sorting your property. Do not throw out all items as you will need your insurance agent to see these. However, if the items are considered too toxic to keep around, get pictures and samples of the items before disposing of them. Make sure to take all precautions necessary before entering a flood damaged building! Click here for more details.
• Take many pictures of the inside and outside of your structure before cleanup. Photograph any standing water, items that have to be disposed of immediately and general survey pictures of each room. Also, take pictures of the items that will have to torn out such as the walls, floors, etc.
• Make a list of all damaged and lost items. This will help when you work with your insurance agent to process your claim. With your agent you will make a Proof of Loss. This statement is your testimony to the damages suffered. It should be filed within 60 days unless circumstances have allotted more time. Once this is filed with your insurance company your claim will be processed, however, it may take some time if the area was hit especially hard.

Flood Damage and Cleanup

After the Flood: Home and Family Recovery – Working with FEMA

• FEMA stands for the Federal Emergency Management Agency. As they state on their website they define their type of disaster assistance as “money or direct assistance to individuals, families and businesses in an area whose property has been damaged or destroyed and whose losses are not covered by insurance. It is meant to help you with critical expenses that cannot be covered in other ways. This assistance is not intended to restore your damaged property to its condition before the disaster.” In essence they are there to help those who could not or did not get flood insurance.
• Items FEMA will cover are: temporary housing in the instance of evacuation or unlivable conditions, repair for what the insurance company will not cover (this is just until the home is safe, not necessarily with the same materials as before), and permanent housing construction. This last is only available to those who cannot get flood insurance at all due to location.
• FEMA can help with recovery costs that are not directly related to the home. These additional expenses can only be claimed if you live in a disaster area as designated by the President, you have already filed with your insurance company and find you are not covered, and you have serious needs directly related to the disaster. Some of these costs listed on the FEMA website include:
  • Disaster-related medical and dental costs.
  • Disaster-related funeral and burial cost.
  • Clothing; household items (room furnishings, appliances); tools (specialized or protective clothing and equipment) required for your job; necessary educational materials (computers, school books, supplies).
  • Fuels for primary heat source (heating oil, gas).
  • Clean-up items (wet/dry vacuum, dehumidifier).
  • Disaster damaged vehicle.
  • Moving and storage expenses related to the disaster (moving and storing property to avoid additional disaster damage while disaster-related repairs are being made to the home).
  • Other necessary expenses or serious needs as determined by FEMA.
  • Other expenses that are authorized by law. www.fema.gov
• You can reach FEMA by calling 1-800-621-FEMA (3362) or TTY 1-800-462-7585
• When making any claim, you should have the following at hand: your social security number, current and damaged address, current phone contact, insurance information, household annual income, routing number to your bank to receive funds, and a detailed description of the losses.
• You may be referred by FEMA to SBA which offers low-interest disaster loans. “Homeowners may borrow up to $200,000 for disaster related home repairs. Homeowners and renters may borrow up to $40,000 to replace disaster-damaged personal property including vehicles.” However, you can not receive duplicated aid already received from FEMA.
• To find currently approved disaster areas you can go online: www.fema.gov

After the Flood: Business Recovery – Working with SBA

• SBA stands for the Small Business Administration which has a specific branch for disasters the Office of Disaster Assistance (ODA) that offers federal low-interest, long term loans for “homeowners, renters and non-farm businesses.” An Economic Injury Disaster Loan (EIDL) is available to small businesses specifically geared towards helping with day to day expenses so a business may continue to operate.
• SBA can release disaster loans if one or more of the following conditions are met: Presidential Disaster Declaration, Agency Physical Disaster Declaration (based on a minimum amount lost), Governor Certification Declaration, Secretary of Agriculture Declaration, Secretary of Commerce Declaration, or Military Reservist Economic Injury Disaster Loan (for businesses that lose key personnel who are called to active duty).
• For Physical Disaster Loans which help replace an uninsured or under-insured property, an inspection team from SBA’s ODA will review the site and claims.
• Applicants do have to show some reasonable ability to pay back the loans. However, since they are low-interest and can be as long as 30 years, they are easier to qualify for than standard loans.
• Especially with real estate, the SBA’s ODA will continue contact with the borrower to make certain construction is on schedule and funds are being used appropriately.
• You can reach SBA by calling 1-800-659-2955 8am-9pm EDT. Or e-mail them at disastercustomerservice@sba.gov.

Additional pointers on page two of this article: Cleaning Up after a Flood & Battling Mold after a Flood

Some Ways to Help Our Neighbors

Aidmatrix Network - Iowa
www.aidmatrixnetwork.org
The Safeguard Iowa Partnership and the Iowa Disaster Human Resource Council have partnered to provide the Aidmatrix Network, an easy way to make monetary and product donations to the nonprofit organizations that are assisting in the response and recovery efforts following recent disaster events in Iowa.

Cedar Rapids Czech & Slovak Museum
www.ncsml.org/About-Us/2008-Flood
The National Czech & Slovak Museum & Library was devastated by the Flood of 2008. Five museum-owned buildings in Czech Village were affected, bringing total flood damage to an estimated $11 million. 75% of our collection was safe from the flood and most of the remaining items are in the process of conservation. It will take several more years to complete the process of conservation, cataloging and inventory the collection.

Cedar Rapids Public Library
www.crlibrary.org/downtown-library/
Library 3.0, the campaign to build a new Cedar Rapids Public Library (CRPL), is all coming together to help prepare young minds—for the future. Why is the campaign called Library 3.0? Because this will be the third and most forward-thinking version of a main library in downtown Cedar Rapids (Library 1.0 would have been the Carnegie Library, which opened in 1905. Library 2.0 would have been the last library, which opened in 1985 and was destroyed in the flood of 2008).

Corridor Recovery
www.corridorrecovery.org
Corridor Recovery is a not-for-profit partnership between government, civic, business and faith-based organizations, created to respond to the Flood of 2008. As the flood waters peaked, Corridor Recovery quickly became the primary resource for materials and information for Linn County and Cedar Rapids. We provide resources for local governments and agencies to distribute flood-recovery information to the public in a critical time of need, and to coordinate volunteer efforts in the clean-up and recovery process.

Iowa Commission on Volunteer Service
http://volunteer.united-e-way.org/icovs/volunteer/
If you are interested in helping in a particular area of the state, please use this section of our Web site to get in touch with local officials, who are collecting a list of where and when volunteers are most needed.

University of Iowa Foundation
www.uifoundation.org
For those wishing to support the University as it struggles to recover from flood-related damage not covered by insurance or other resources, we encourage contributions to the UI Flood Relief Fund.

Return to Legal Topics
Table of Contents

More Information
FEMA and the American Red Cross have made a pamphlet entitled Repairing Your Flooded Home which is available as a PDF. A great resource, page 55 has a very useful emergency contact list as well.

Click here for Repairing Your Flooded Home by FEMA and the American Red Cross (PDF)

Additional pointers on page two of this article: Cleaning Up after a Flood & Battling Mold after a Flood

Sources for this article which include even more detailed information:

Center for Disease Control
CDC.gov (www.cdc.gov) is your online source for credible health information and is the official Web site of the Centers for Disease Control and Prevention (CDC). CDC is committed to achieving true improvements in people’s health. CDC applies research and findings to improve people’s daily lives and responds to health emergencies—something that distinguishes CDC from its peer agencies. Working with states and other partners, CDC provides a system of health surveillance to monitor and prevent disease outbreaks (including bioterrorism), implement disease prevention strategies, and maintain national health statistics. CDC also guards against international disease transmission, with personnel stationed in more than 25 foreign countries

FEMA – Federal Emergency Management Agency
www.fema.gov
FEMA has more than 2,600 full time employees. They work at FEMA headquarters in Washington D.C., at regional and area offices across the country, the Mount Weather Emergency Operations Center, and the National Emergency Training Center in Emmitsburg, Maryland. FEMA also has nearly 4,000 standby disaster assistance employees who are available for deployment after disasters. Often FEMA works in partnership with other organizations that are part of the nation's emergency management system. These partners include state and local emergency management agencies, 27 federal agencies and the American Red Cross.

National Flood Insurance Program
www.floodsmart.gov
Congress established the National Flood Insurance Program (NFIP) to address both the need for flood insurance and the need to lessen the devastating consequences of flooding. The goals of the program are twofold: to protect communities from potential flood damage through floodplain management, and to provide people with flood insurance.

SBA – Small Business Administration
www.sba.gov
The U.S. Small Business Administration (SBA) was created in 1953 as an independent agency of the federal government to aid, counsel, assist and protect the interests of small business concerns, to preserve free competitive enterprise and to maintain and strengthen the overall economy of our nation. We recognize that small business is critical to our economic recovery and strength, to building America's future, and to helping the United States compete in today's global marketplace.

*Specifics taken from the following articles: http://www.usatoday.com http://www.nytimes.com http://en.wikipedia.org **Weather data: http://ia.water.usgs.gov