6.Expert-Testimony Instruction — Disputed Sentence Removed
30 linesMR. DEROHANNESIAN: I have nothing else. Thank you.
MR. LESKO: One moment, Your Honor.
THE COURT: Sure.
MR. LESKO: We have nothing further, Your Honor.
THE COURT: All right. The witness may stand down. You are excused.
DAWN HUGHES: Thank you, Your Honor.
THE COURT: You're welcome.
(Witness is excused.)
THE COURT: All right. At this time we will take our lunch break until two o'clock. All rise for the jury.
(Jury exits the courtroom.)
THE COURT: All right. Please be seated.
We were discussing an instruction about expert testimony and the defense wanted to make a point outside the hearing of the witness. So what was that point?
MR. DEROHANNESIAN: One of the statements that Mr. Lesko made was that the instruction should cover offender behavior. This witness was never offered, qualified, nor was she accepted by the Court to testify about offender behavior. So I don't believe that that should be part of any instruction. I just don't think that's what she was presented for.
The other part of what he indicated that she was offered as a witness was for coercive relationships. That was not what the notice was submitted for. It was to the best that it can be divined it was sexual assault victims and coercive relationships was a much broader category and I don't believe that's what was submitted to the Court. I don't believe that's what the Court allowed. So that's why I would object to those two areas being part of it and I don't think her testimony should be considered for that.
I do not object to -- you know, if you want to eliminate that sentence that they feel is not appropriate, that's okay also.
MR. LESKO: Your Honor, we didn't limit -- Dr. Hughes was not accepted as an expert in a limited fashion just to focus on victims. She was an expert on interpersonal violence, interpersonal involve two people: A victim and perpetrator, as well as traumatic stress.
I also noticed that in our notice, I believe it is item No. 6, that opinion involves a, quote, dynamic between the victim and the perpetrator, including whether the victim and the perpetrator are in intimate or work relationships characterized by abuse, coercion and/or dependence. So I think this dynamic was specifically referenced in our notice.
THE COURT: So as to second paragraph, how would you want that second paragraph to be revised, if at all?
MR. LESKO: Well, I would just say -- I would suggest, off the top of my head, it is offered for you to consider in evaluating the behavior of victims and perpetrators in the context of coercive relationships or dynamics. We may just want to leave it there as opposed to being specific about sexual assault.
THE COURT: In evaluating the behavior of victims and perpetrators, and then what?
MR. LESKO: Evaluating behavior of victims and perpetrators in the context of coercive relationships, and then continue on before, during, or after. I don't like the alleged commission of the crime language.
MR. DEROHANNESIAN: Again, we don't feel this witness, who has no experience with offenders, was ever qualified in that area and it gets into profiling testimony if it's going to be considered that and there's a wide body of law that doesn't permit to say because someone engaged in certain behaviors they are an offender. That's exactly the problem with the grooming testimony that was rejected and she really didn't talk about -- her experience was based on victim behaviors and that's the clear import of the notice. I don't think the notice is great, but it certainly didn't say it's going to talk about the phrase coercive relationships.
MR. LESKO: Your Honor, it would be misleading to just talk about victims without perpetrators, particularly since we have just heard testimony and Dr. Hughes discussed perpetrator conduct repeatedly. And she did not offer any specific opinions regarding the defendant's conduct in this case, or she did not offer a profile and opine that somehow the defendant's conduct fit some sort of profile.
THE COURT: Well, I'm not sure that we ought to go into it at all. We can just leave that whole second sentence out. The expert testimony is not offered as proof that the crime charged occurred. You should evaluate the expert testimony just as you would the testimony of any other witness.
MR. LESKO: We're fine with that, Your Honor.
THE COURT: Without going into any details.
The jury knows the designation of the witness' expertise and to the extent that it would be helpful to the jury, you can argue about it on closing as to whether it has of any value at all.
MR. DEROHANNESIAN: As we indicated, we are fine if you take out that sentence if that's the solution.
THE COURT: Well, I think that is my solution.
MR. LESKO: Thank you, Judge.
THE COURT: Anything else?
MS. PENZA: Your Honor, I would like a few minutes before Nicole, so whether you would like to do it now or before the lunch.
THE COURT: Do we need a sidebar on this?
MS. PENZA: Yes, please.
THE COURT: Let's have a sidebar.