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How an Expert Can Help You Prove Your Case

How an Expert Can Help You Prove Your Case. And Support the Complaining Witness. You Can Use an Expert to Help Explain:. Delayed reporting Self-blame Minimization Inconsistent or fragmented memories Lack of resistance or “frozen fright” Continued contact with the defendant

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How an Expert Can Help You Prove Your Case

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  1. How an Expert Can Help You Prove Your Case And Support the Complaining Witness

  2. You Can Use an Expert to Help Explain: • Delayed reporting • Self-blame • Minimization • Inconsistent or fragmented memories • Lack of resistance or “frozen fright” • Continued contact with the defendant • Lack of physical injury

  3. You Can Use an Expert to Help Explain: • Victim’s demeanor after the assault • Common psychological reactions • Victim’s behavior is “consistent with” other sexual assault victims • Recantation

  4. Important Terminology:Rape Trauma Syndrome (RTS) • Developed to describe common reactions • Refers to stages of recovery • Not a psychological diagnosis • Not in DSM-IV • Should NOT be used by experts in court • Terminology still used by courts

  5. Important Terminology:Posttraumatic Stress Disorder (PTSD) • Primary trauma-related diagnosis in DSM-IV • Includes exposure to traumatic event & certain reactions and symptoms • Symptoms last more than one month • Preferred diagnosis for expert testimony • Does not include all common symptoms

  6. Important Terminology:Posttraumatic Stress Disorder (PTSD) • Experts need to explain other symptoms • Experts need to use other diagnoses • Not all sexual assault victims get PTSD • May be caused by other trauma • Courts often confuse with RTS • Testimony admitted in many courts

  7. Important Terminology:Acute Stress Disorder (ASD) • Diagnosis for immediate aftermath of trauma • Symptoms last two to thirty days • Describes PTSD-like intrusive thoughts & avoidance symptoms • If symptoms last more than thirty days, PTSD diagnosis used

  8. Levels of Expert Testimony:Level 1 • Responds to issues raised by defendant • Explains these behaviors are not unusual • Only provides general information

  9. Levels of Expert Testimony:Level 2 • Testifies about common post-assault behaviors • Does not examine victim or discuss victim’s behavior • General testimony • Includes description of PTSD or effects of rape • Should not use RTS

  10. Levels of Expert Testimony:Level 3 • Discusses how victim’s symptoms are “consistent with” PTSD or other diagnoses • Does not examine victim • Does not imply victim is telling the truth • Should not use RTS • Common form of testimony

  11. Levels of Expert Testimony:Level 4 • Testifies that victim suffers from PTSD • Probably needs to examine victim • Does not say victim was assaulted • Acknowledges other trauma may be the cause • Anticipate defense objection re: credibility • Should not use RTS

  12. Levels of Expert Testimony:Level 5 • The Danger Zone • Testifies that victim is telling the truth or victim was raped • Probably guarantees mistrial or reversal • DO NOT allow expert to cross this line • Invades jury’s province

  13. Other Types of Expert Witnesses • Don’t always need psychologist or psychiatrist • Can use other witnesses, such as: • Police department Victim Services Unit • Rape crisis center counselor • Can sometimes use lay witness testimony about post-assault behavior

  14. Privilege Issues • Very important in these cases • Particularly when using treating therapist • Therapist-client communication is privileged • May extend to rape crisis center counselors • May be waived • Avoid using treating therapist if possible

  15. Confidentiality Issues • Defendants often seek records • Very traumatic for victims • Even in camera review is traumatic • Courts have mixed responses • Some permit discovery • Others deny request • Can be waived, so be careful

  16. Using an Expert Who Will Not be Called to Testify • To help support the victim • To help you “follow the trauma” • To prepare voir dire questions • To prepare the victim’s direct exam • To prepare the defendant’s cross exam • To prepare your cross exam of the defendant’s expert

  17. Other Issues:False Reporting • Testimony about the incidence of false reporting • Some courts have held it is impermissible • Unless specifically allowed, avoid it • If the defendant seeks to introduce, object

  18. Other Issues:Defendant “Profile” Evidence • Defense offers testimony that defendant does not fit “profile” • NO validity to concept • Reputable researchers do not accept “profile” • Some courts permit it anyway • Strenuously object!

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