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Habeas Hints: Expert Testimony in Habeas Cases

by Kent Russell

This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on habeas corpus under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice in federal courts throughout the U.S.

How To Get It and Use It

An expert witness declaration can be immensely valuable on habeas corpus to support a claim that trial counsel was ineffective in failing to use an expert witness for the defense. Granted, it’s difficult for a prisoner, indigent and confined within prison walls, to obtain expert testimony to support a pro se habeas corpus petition. Nevertheless, it’s possible to do so, especially if the prisoner follows these “Habeas Hints”:

1. Determine whether your case is one in which the defense lawyer’s failure to call an expert amounted to “deficient performance” and was “prejudicial”.

The trial lawyer is charged with the responsibility of deciding whether and how to use an expert witness for the defense. When trial counsel fails to call an expert on an important issue, that can support a claim of ineffective assistance of counsel (“IAC”) on habeas corpus, pursuant to the following analysis:

It is well-established that all IAC claims have two components, both of which must be satisfied: The first is “deficient performance”, which, in the context of expert witnesses, means that the lawyer’s failure to obtain and use an expert at trial was a mistake that no reasonable lawyer would have made. The second requirement is “prejudice”, which requires a declaration on habeas corpus as to what a particular expert would have testified to if he or she had been used at trial, and a showing that the proffered expert testimony was sufficiently important that its absence was reasonably likely to have made a difference in the outcome of the trial.

To establish deficient performance, the habeas petitioner must demonstrate that trial counsel’s failure to call a particular expert was not motivated by reasonable “tactical” (strategic) considerations. Hence, there is no IAC where: (a) a lawyer contacts one or more potential experts, but decides, after communicating with these potential candidates, that none of them could have successfully undermined the State’s expert; or (b) where an expert could have given favorable testimony, but that would have opened the door to cross-examination that might have been harmful to the defense. Similarly, a trial lawyer is allowed extremely wide latitude in deciding which expert to use; hence, habeas claims that the trial lawyer should have chosen a “better” expert are almost always doomed to fail.

Nevertheless, the 6th Amendment requirement to provide “effective assistance of counsel” requires a trial lawyer to conduct a reasonable investigation before deciding whether or not to use an expert. So, where a lawyer decides not to use an expert without doing any investigation into whether expert testimony might have been beneficial to the defense, that can amount to deficient performance. And, where the prosecution calls an expert on a particular issue and the defense does not, this strongly suggests that the subject matter about which the State’s expert testified was something that was important to the case, and defense counsel’s failure to call an expert of his own to rebut the State’s expert can be shown to be prejudicial.

Thus, consider consulting an expert to support an IAC claim where: (a) the prosecution called an expert on a specific issue that was central to the case and the defense did not call any expert on that issue; (b) the record does not contain or suggest any tactical reasons defense counsel may have had for not calling a defense expert to rebut the prosecution’s expert testimony.

2. You will need at least some money to retain an expert, so try and set up a relatively modest “expert witness fund”.

Let’s face it: In the real world, experts only work after they’ve been paid in advance -- a basic principle which applies whether the person seeking the expert’s assistance is a lawyer or a prisoner acting as his or her own lawyer. Therefore, a prisoner who thinks that he or she can find a qualified expert to support a habeas corpus petition without paying anything is not going to get to first base. Sadly, this means that prisoners with no prospects for financial help from the outside won’t be able to find or obtain an expert to support their pro se petitions, simply because they are indigent. On the other hand, a fair number of prisoners have access to some financial support from family members who might be willing to contribute to an “expert witness fund” -- especially if persuaded by the prisoner that such a contribution could legitimately support a claim that counsel’s failure to use an expert at trial amounted to IAC which caused the prisoner to be wrongfully convicted.

Thus, prisoners fortunate enough to have some financial support on the outside should take the time to conscientiously prepare a thoughtful letter, concisely explaining in a couple of pages why an expert witness should have been called at trial, how expert testimony on habeas corpus could support an IAC claim, and asking for a modest contribution to an “expert witness fund” to be used to support such a claim on habeas corpus.

Moreover, the amount of money required may be less than you think. What one needs from an expert to support a habeas corpus petition is not the kind of full-blown, exhaustive opinion that would actually be needed at an evidentiary hearing -- which, if allowed, will require the court to appoint counsel and pay for reasonable expert witness fees. Rather, all that’s absolutely necessary for a pro se petitioner filing a habeas petition is an expert opinion of 2-5 pages in length, which covers the major points and is persuasive enough to convince the court that trial counsel’s failure to call such an expert could well have made a difference in the outcome of the trial. In my experience, such an opinion can be obtained for as little as $2,000.

3. Find and retain a qualified expert.

Your primary goal in finding an expert is locating one who has qualifications sufficient to support the opinion you are seeking. An important guide to what you are looking for is the qualifications of the prosecution’s expert. For example, if the State called a gang expert, you need to find yourself a gang expert. And, the more specific the qualifications, the better. So, for example, if the gang in your case was a Riverside street gang, look for an expert with experience in dealing with Riverside gangs, not just gangs from L.A. at large or some other locality.

As for locating an expert once you know what field of expertise you need, the best source, apart from potential experts your family or friends may already know, is the Internet. If your family has qualified contacts, use them. If not, and if you don’t have Internet access at the prison, have one of your relatives or a trusted friend use “Google” to search for an expert with the required qualifications. It’s best to get a few names and then contact each one to see who will work best for you. And, because you will be seeking a written opinion to provide to the court rather than live testimony at this point, it’s OK to use experts from out of state, so long as they have experience with the specific issue at hand.

Once you have your short list of potential experts, you’ll first have to make sure that the expert is willing to work for the relatively limited amount of money you’ve collected in your expert witness fund. For example, assuming you’ve set aside the $2,000 I’ve recommended, write to your candidates explaining that this is all the money that your family can raise, but that this amount will be promptly delivered to them as soon as they have agreed to take on the assignment. Then, explain to the expert as concisely as possible what you are looking for in the way of a forensic opinion, and ask the expert to get back to you regarding whether he or she believes they can be of assistance. Also ask for a resume, which is known in the trade as a “C.V.” (which stands for “curriculum vitae”).

When you have reviewed the communications back from the various candidates, decide which one you think is most qualified and most amenable to working with you. Then, notify your family whom you have chosen, and ask them to send a check in the required amount to the expert, along with a short note indicating that you will be following up with materials pertinent to the case.

4. Prepare and send an “expert witness packet” to your chosen expert.

No expert can render a forensic opinion without knowledge of the relevant facts on which the opinion is to be based. At the same time, the petitioner is paying dearly for the expert’s time, and it’s a waste of precious resources to “dump” a haphazard collection of hundreds of pages on the expert’s desk and ask the expert to determine the facts from that. Rather, it’s extremely important to sift through all the documentation in the file yourself so as to provide as concise an “expert witness packet” as you possibly can. Nevertheless, keep in mind that an expert opinion needs to be based on a balanced review of all the relevant facts, so you can’t just provide the expert with the documents that are “favorable” to your claim.

Thus, and striving for both conciseness and objectivity, I recommend that you include the following in your expert witness packet:

(a) A cover letter to the expert of no more than 5 typewritten pages, summarizing what you are looking for in the way of an expert opinion. For example, where the prosecution called an expert and the defense didn’t, explain what you consider to be the basic flaws in the conclusions drawn by the prosecution’s expert, and suggest ways in which your own expert could have undermined those conclusions. After you’ve done that, provide a paragraph which invites the expert to contact you with any questions they may have, and which asks the expert to provide you with a draft of an “expert witness report” that includes: (1) a list of the materials reviewed and/or relied upon; (2) the opinions and conclusions reached; and (3) the basis for those conclusions. Finally, in order to deflect any suggestion that you are trying to “tell” the expert what to say, wrap up your letter with a concluding paragraph inviting the expert to do his own independent research, and stating that you are “seeking the expert’s honest opinion, whether or not that supports your case”.

(b) The Court of Appeal opinion from the direct appeal.

(c) Copies of the “Statement of Facts” portions of each side’s briefs from the direct appeal.

(d) A copy of all the testimony given by the prosecution’s expert. Also, if you have or can get them, provide copies of the most important documents that the State’s expert relied upon.

(d) Transcripts of the final arguments by both parties.

(e) Any other documents that you have obtained, which potentially support your criticism of the State’s expert.

5. After you obtain and review the expert’s draft report, write back to the expert suggesting potential additions or corrections to improve the draft, and request a “final report” in declaration form.

Although some experts will refuse to revise their draft report, most will be willing to consider potential changes to improve it, and there’s no harm in trying to make an initial report better. Therefore, it’s OK to make suggested additions and/or changes to the draft report, especially ones that strengthen the factual basis for the conclusions in the report or which state those conclusions in a more forceful and persuasive manner.

Whether you make suggested changes or not, ask the expert to prepare a final report which concludes with the following sentence, which transforms the report into the form of a declaration. “I declare under penalty of perjury and pursuant to the laws of [your state] that the foregoing is true and correct, to the best of my knowledge, experience, and training. Executed at [city, state] on [date] by [name and signature].”

Ask the expert to sign and send you the final report. Upon receipt, make copies and keep the original in a safe place. When you submit your habeas petition, provide a copy of the final report as an “Exhibit” in support of your Petition. In the body of your petition, summarize the expert’s qualifications, set forth the expert’s opinions and conclusions at length, and explain as best you can how the expert witness declaration you have submitted establishes both the deficient performance and prejudice prongs of your IAC claim.

Kent A. Russell specializes in habeas corpus and is the author of the California Habeas Handbook, which thoroughly explains state and federal habeas corpus under AEDPA. The 5th Edition, completely revised in September of 2006 and recently updated in 2010, can be purchased for $49.99, which includes priority mail postage. Only prisoners who are paying for the book with a state-issued check or one from their prison account are eligible for the special prisoner discount price of $39.99, which must be claimed at the time of purchase. An order form can be obtained from Kent’s website (, or simply send a check or money order to: Kent Russell, “Cal. Habeas Handbook”, 2299 Sutter Street, San Francisco, CA 94115.

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