FORENSIC TOXICOLOGY - Bio Medical Forensics

of Criminal Procedure was likewise adopted in 1946. During the
intervening years the Rules have been further modified, amended, and
expanded.
The term “discovery” encompasses the methods by which a party or
a potential party to a lawsuit or prosecution obtains and preserves
information regarding the action.
The Federal Rules of Civil and Criminal Procedure specify in
considerable detail the means by which discovery may be used by
plaintiffs, prosecutors, and defendants to compel the production of such
data, witnesses, and documents as are needed at trial. It will also be
emphasized that, while most states have adopted part or most of the Federal
Rules, due diligence is essential in determining what deviation from the
Federal Rules exists in a given jurisdiction, if the litigation is going to be
heard in a state court.
Discovery in Civil matters is controlled by the Federal Rules of Civil
Procedure, Rules 26 through 32. Discovery in criminal matters, greatly
restricted by the constitutional protection against self-incrimination on the
part of the defendant, is controlled by the Federal Rules of Criminal
Procedure Rules 15 through 17 and Rule 26.2. Those instances where
certain Federal Rules of Evidence are closely linked to the procedural rules
will also be covered.
In civil matters, the duty to disclosure is essentially equal between the
parties. This presentation will closely examine FRCP Rule 26 in particular
and how it relates to the retention of experts. It will provide clear
distinction between the consulting expert and the testifying expert in their
obligation to disclose information.
Federal Rules, Discovery, Scientific Documents
K35 Discovery Issues: Deposing
the Forensic Toxicologist
Harry L. Miles, JD*, Green, Miles, Lipton, & Fitz-Gibbon, LLP,
77 Pleasant Street, PO Box 210, Northampton, MA 01096
After attending this presentation, attendees will learn how to help the
attorneys who engage them prepare them for written discovery requests,
depositions and how to respond to discovery requests and questions so that
the truth prevails. The presentation will aid the forensic community by
helping the American justice system find the truth in contested criminal and
civil matters. The presentation will focus upon the obligations of the
experts and the attorneys to zealously represent their clients’ interests
without violating their ethical obligations.
This presentation will impact the forensic community and/or
humanity by demonstrating the practical preparation needs and potential
pitfalls discovery may impose upon a toxicologist.
State and Federal rules of civil and criminal procedure impose
discovery obligations on each party. Experts may have trouble reconciling
their professional ethics with discovery practices under the rules of
procedure. The presentation will discuss the practical needs of attorneys for
expert opinions and the ways in which experts can provide those opinions
in good conscience. In addition, the presentation will inform the attendees
of the tricks, traps and pitfalls they may encounter when they respond to
written discovery requests or testify at depositions. The manner in which
deposition testimony may be used against an expert who testifies at trial
will be demonstrated.
Discovery, Experts, Ethics
* Presenting Author
K36 The Role of the Forensic Expert
in the Discovery Deposition:
Communication is Key
David M. Benjamin, PhD*, 77 Florence Street, Suite 107, Chestnut Hill,
MA 02467
The goals of this presentation are to review rules of evidence and
procedure essential to quashing abusive discovery requests, develop the
ability to actively listen to questions, recognize unclear questions, and
practice asking for clarification.
This presentation will impact the forensic community and/or
humanity by empowering forensic experts with information about how to
prepare for a deposition, and providing instruction on the importance of
listening to every word in a question before answering.
The “Discovery” phase of litigation is designed for each party to
inquire about various positions of the other side and request production of
important documents. After documents have been exchanged, experts may
be asked to prepare a report memorializing their findings and opinions. The
parties exchange expert reports and in jurisdictions where expert
depositions are allowed, each party may elect to take the deposition of one
or more of the opposing experts. A deposition is sworn testimony outside
the presence of a judge and jury. Any fact witness or expert who has been
disclosed (designated to be called as a witness at trial) may be asked to
submit to a deposition. If you are to be deposed, you will probably receive
a subpoena duces tecum asking you to bring certain documents to your
deposition. Responding to the subpoena requires collaboration between the
deponent and the attorney who retained him/her in order to determine the
propriety of the requested documents.
Testifying as an expert in toxicology, or preparing your client for
his/her deposition involves not only a thorough review of the facts of the
case, but the ability to report one’s findings in an oral question and answer
format. To be an effective witness, the deponent (individual being deposed)
must be able to wade his/her way through the confrontational mine field of
rhetoric and subterfuge that pervades much “lawyer-talk,” learn to
recognize, and respond to trick questions. While experts have spent
decades becoming proficient in their areas of specialty, attorneys have spent
years learning how to phrase questions designed to elicit admissions and
concessions, or to make you look foolish or unqualified.
This presentation is designed to teach you to develop “Active
Listening” skills you can use to recognize improper or poorly framed
questions, and to empower you with insights into the deposition process
that will permit you to avoid providing an even worse response to a poorly
phrased question. The seminar will begin with a review of the roles an
expert can play in the legal system and continue with a brief review of the
rules of evidence and civil procedure which control discovery requests,
subpoenas, and provide for limiting and quashing abusive discovery
requests.
The workshop will proceed to examine the objectives of a deposition
and what types of questions to anticipate. Examples of good and bad
deposition testimony and a review of an excellent deposition instruction
provided by one attorney to a deponent will be presented.
Responding to Subpoenas, Preparing for Your Deposition,
Developing Active Listening Skills
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