Jane Laut is charged with killing her husband, Dave Laut, a 1984 winner of an Olympic bronze medal in shot-putting. Prosecutors allege that Laut shot her husband at their Oxnard, California home on Aug. 27, 2009.
At least at this stage, Laut’s likely defense appears to be that she suffered from battered women’s syndrome, a post-traumatic stress disorder, at the time of the shooting. The defense has engaged the services of Gail Pincus, an expert on battered women’s syndrome, and Kay Emerick, a clinical psychologist, who may testify as expert witnesses during her trial.
A defense based on battered women’s syndrome is typically used to explain why victims use force that, under ordinary circumstances, would be considered excessive to defend themselves from an attack. It can also be used to explain why the use of deadly force when a victim is not facing imminent danger can be a delayed response to violence that the victim faced in the past.
Since the defense experts based their opinions at least in part on interviews with Laut, the court granted the prosecution’s motion to allow its own expert, forensic psychologist Kris Mohandie, to interview Laut. The court required the prosecution’s expert to record the interview and prohibited him from asking Laut about events that occurred on the night of the killing. The court did allow Mohandie to ask Laut about her state of mind when the shooting occurred.
Defense Allegation of Improper Influence
The defense alleged that Senior Deputy District Attorney Rameen Minoui (or an investigator from his office) improperly influenced Mohandie by speaking to him prior to his interview with Laut. The defense relied on telephone records showing that Mohandie talked to Minoui for 47 minutes before Mohandie contacted Laut. Minoui responded that it is “no surprise that a party who hires an expert is going to communicate with that expert.”
At a motion hearing, Mohandie testified that after he met with Laut, he wanted to ask her some additional questions. Since he was going out of town, he called Minoui to ask whether he could contact Laut by telephone to ask those questions.
Asked whether Minoui told Mohandie what questions he should ask, Mohandie answered “Absolutely not.” The defense contends that Mohandie asked about issues he could only have learned about from Minoui. The judge did not allow Laut’s lawyer to ask Mohandie how he arrived at the follow-up questions he posed to Laut.
On the basis of the evidence presented at the hearing, the judge ruled that he would not limit the testimony that Mohandie would be allowed to give. The case is scheduled for trial early next year.
What “Influence” of Expert Testimony is Improper?
Laut’s lawyer faced an uphill battle. As a general rule, it is not improper for a lawyer who hires an expert to talk to the expert. Lawyers need to understand the expert’s opinions and generally need to prepare them to testify. On the other hand, it is improper for a lawyer to tell an expert witness what the witness should say. The line between preparing testimony and influencing testimony is not always easily drawn.
The rules of ethics require a lawyer to walk a line between two distinct duties. The first is the duty to provide competent representation. That rule requires a diligent investigation of the facts, including the basis for any opinions an expert witness has formed. Competent representation also demands preparation for trial. That includes preparing witnesses to testify.
The second duty prohibits lawyers from offering evidence that they know to be false. Lawyers cannot elicit evidence that they know to be untrue and cannot assist witnesses in giving false testimony. A comment to the Model Rules of Professional Conduct suggests that “improperly coaching witnesses” is forbidden. But what coaching is improper?
Witness preparation generally includes telling the witness what questions the witness will be asked in court and listening to the responses the witness plans to give. The lawyer can ask a witness to think about rephrasing an answer if the answer that the witness gives is confusing, incomplete, or inaccurate. The lawyer can even suggest alternate wording for the witness to consider, provided that the wording does not change the meaning that the witness intends.
Courts have held that lawyers “must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” Influencing testimony is clearly improper if the lawyer coaches the witness to give an answer that is untrue or misleading. Suggesting that the expert testify about opinions the expert does not actually hold would be improper.
Provided that lawyers do not try to change the intended meaning of the answers an expert witness proposes to give, it is proper to influence testimony by encouraging an expert to explain concepts in simpler language, to give shorter or more direct answers, and to avoid jargon. Meeting with an expert to learn how the expert plans to form an opinion, and meeting again to discuss the opinions that the expert will give in court, is simply part of the lawyer’s duty to provide competent representation.