Last time we discussed a variety of reasons you might need to rely on evidence that isn’t on the record in an objection argument, and how to deal with that. The final situation where this need arises is simultaneously narrow, complicated, and extremely common. I’d go as far as saying it happens at least once every college Mock Trial season. Every Mock Trial expert witness is designed such that their conclusions have some good points and some bad points: there is always evidence undermining the experts’ conclusions. There are also always standards governing the admission of expert testimony- Rule 702 and, in college cases, usually a few pieces of case law. So a cross-examiner can object to “Lack of Foundation” when an expert begins to give their conclusions. The problem with that is, most of the time the objection won’t succeed based purely on the evidence given in direct examination. Sometimes opposing counsel will forget to have the witness provide answers to all of the necessary foundational questions, but often that simple procedure is executed perfectly. What the crosser really wants is to draw all the evidence undermining the expert that will come out in cross to the presiding judge’s attention in direct, before the expert’s conclusions are entered. Notice what a difficult position this is to be in. If the directing attorney and witness have done their jobs properly, the witness has just answered every necessary foundational question- there shouldn’t be any signs of weakness yet. What the crossing attorney has to do is convince the judge that answers they can’t control to questions they haven’t even begun to ask yet will so radically undermine that foundation that the witness’s answer shouldn’t even be heard. That’s a difficult task, which is not to say it should be abandoned. The effect of this effort, if successful, is powerful: the entire direct is effectively negated.
You have basically three options for bringing the necessary evidence to the judge’s attention. First, you can treat it as if it’s the same as the situation discussed above when you want to draw on evidence your side hasn’t entered onto the record yet. Simply tell the judge, “Your Honor, on cross-examination evidence will be provided that...” and explain how the evidence provided on cross undermines the foundation laid on direct examination. Second, you can ask “May I make an offer of proof?” and then do the same thing you did in option one. Or third, you could ask permission to voir dire the witness. That essentially means you’re requesting permission to interrupt the direct examination in order to briefly cross-examine the witness. Option Two is not the right choice, in my opinion. Asking to make an offer of proof when you are not the one conducting the current examination is an unusual step, to put it mildly- the judge’s instinct is going to be to say “no.” Ideally we’d like to bypass that instinct. The choice between Option One and Option Two is going to be a matter of the particular witness and a reading of the judge’s preferences. Option One has the advantage of looking the most normal: it closely mimics the perfectly acceptable practice of describing evidence your side will be putting in. The downside is that it will rapidly become apparent that you’re essentially testifying. Remember how an offer of proof is a promise that the witness will testify in a particular way, and that the judge evaluates the credibility of that promise? You’re essentially doing the same thing in Option One. The more detailed and controversial the evidence you’re describing, the less credible the promise, and the less ideal Option One is. Option Three reverses the situation. Requesting a voir dire is abnormal in the extreme. “Voir dire” is an ambiguous term in the legal world, and it is more commonly used to refer to the process of questioning prospective jurors. When you request a voir dire, the judge is likely to either not know what you mean or think that you’re asking for something that isn’t possible or relevant in the current situation. If you can get past that significant hurdle, this is a solid option: you can put in all of the evidence you want in the traditional format of the cross-examination and have a complete set of ammunition for fighting out the Lack of Foundation objection you’re building towards. But a voir dire is like an impeachment in that it is dramatic: you’re building high expectations for what it is you’ll be doing. If you don’t have any major knockout points to cross the witness over, if you’re just doing the standard Mock Trial cross nit-picking, you’re better off avoiding a voir dire.
If you do decide to go for a voir dire, you begin with something like this:
You: “Objection, Your Honor, Lack of Foundation. May I be heard?” [judge nods]. “Rule 702 requires that expert witness testimony... [cite the part of Rule 702 that’s most relevant for this situation]. At this time, I request permission to voir dire the witness. If allowed to do so, evidence will be provided that shows that this witness’s testimony does not meet those criteria.”
Note that you immediately requested permission to speak more rather than allowing opposing counsel the first response. If opposing counsel has done their job properly, it will appear that all the foundation has been laid: the presumption is against your objection. You should fight that as soon as possible by making it clear where you’re going.
There is one final concern with all three of these approaches: if you succeed, you’re also likely destroying your own cross. Most of the time you’re crossing an expert witness over their conclusions, after all. If you keep those conclusions off the record... what have you left yourself to talk about? Consider carefully what you’re going to do on cross examination if you succeed before you attempt to block the witness’s conclusions.
Next time, we’ll discuss how to respond to any of those three approaches as the directing attorney of an expert witness.
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