Note: To protect privacy, pseudonyms have been given to the participants and first expert witness in this case and dates have been omitted. As all legal appeals have not yet been exhausted, the test battery and specific results are not reported.
The reality of taking the witness stand in a felony murder trial was a far cry from what I—the daughter of a respected trial lawyer and a "Law and Order" fan—expected. Serving as an expert witness has stretched and tested me as a dually certified audiologist and speech-language pathologist. I learned a lot about what may be required from an expert witness and wish to pass on my experience and lessons learned.
I was the second expert witness called in a case, after the prosecutor successfully impeached the first expert witness, claiming she lacked specialized knowledge of central auditory processing disorders (CAPD). His tactic was a different use of impeachment, which is a legal term that usually means a witness has not told the truth or has been inconsistent. Because of my background in CAPD, the state of Colorado hired me to testify about the ability of the suspect, David Doe, to have willfully colluded in a murder in which his uncle fired the fatal gunshots. The defense wanted to prove that Doe had an auditory/linguistic processing disorder that precluded him from participating or colluding in the murder of Paul Smith.
This Denver case began when Doe, then 18, argued with 20-year-old Smith about alleged previous violence Smith committed against Doe's family member. Doe and his girlfriend then left the scene in a car driven by the girlfriend. The car radio was reportedly set at a volume loud enough to vibrate the interior, and the windows were cracked open an inch or two because of smoke in the car.
Doe reported that Smith pursued him, pulling out a handgun and making a shooting motion (no handgun was ever found). When both vehicles reached the highway, Doe called his 35-year-old uncle, Joseph Bell, and described the harassment he perceived. Doe's girlfriend exited the highway and drove to her parents' home. Bell drove to Smith's location and fired into his vehicle. After finding Smith dead at the scene, police arrested Bell and charged him with felony murder. He was found guilty in the first degree and sentenced to life imprisonment without possibility of parole.
The police also arrested Doe and charged him with "chain conspiracy to commit murder." He was indicted as a co-conspirator and held without bail for more than two years while the defense and the prosecution prepared for trial.
After watching tapes of interviews, an officer questioned Doe's ability to give accurate directions to his uncle: the car was traveling at high speed, noise was coming in through the windows, cell phone reception was poor, and all involved were upset. An expert recommended a review of Doe's health and educational history, as well as an evaluation of his cognitive, linguistic, and auditory processing abilities.
The defense sought to establish answers to the following questions. Could Doe have:
- clearly communicated the exact location, situation, and events to the perpetrator during the 11-minute phone conversation preceding the murder?
- accurately processed Bell's intent in conversation, given the noise level from the radio and wind?
- utilized his auditory/linguistic processing abilities successfully in colluding in the crime of murder?
The state hired June Jones, a professor and certified SLP, to review Doe's history, perform an evaluation, and confer with defense counsel regarding the events leading up to the crime.
Doe had a medically documented seizure disorder for which he was at one time treated with the drug Depakote. He dropped out of public school in eighth grade with poor attendance, poor grades, and a history of learning struggles. Doe reported to teachers that he had difficulty staying focused in class and paying attention when in noisy situations.
Jones administered a comprehensive test battery. She found that Doe demonstrated a mild peripheral bilateral hearing loss and poor auditory processing in background noise. He had difficulty with language comprehension when speech delivered was of poor quality (rapid, mumbled) or in a poor acoustic environment. His receptive and expressive language were within normal limits, but he struggled to process language with a high degree of verbal detail, demonstrating reduced recall when a paragraph included factual or detailed demands.
Jones rendered her expert opinion that the suspect lacked adequate auditory/linguistic processing abilities necessary to commit the crime of collusion to commit felony murder. She also suggested that her findings would greatly affect the suspect's confession statements, which were given during interrogation and subsequent interviews that were conducted in noise with fast, linguistically complex circumstances.
After Jones' opinion, including the evaluation results, was delivered to both the defense and prosecuting attorneys, as required by law, the prosecutor filed a motion to impeach her testimony as an expert witness. The prosecutor claimed that since Jones was not a licensed audiologist and did not specialize in diagnosis and treatment of auditory processing disorders (APD), her expert testimony should not be allowed.
Such claims raise other important points for SLPs and audiologists:
- Who makes the diagnosis of APD and what constitutes a sufficient test battery for APD?
- What form will the battery's reliability, sensitivity, and specificity follow?
- What shall the expert's scope of practice be and, given legal standards, what is the admissibility of the various protocols?
Certainly many of these questions will be debated much differently in court than in medical, educational, clinical, and health-related settings. Legally, the expert witness needs a status of unimpeachability and must use tests to assure that the individual isn't malingering (feigning an illness or disorder). The Stenger test for audiology is one example that may be used.
After questioning Jones, the judge ruled in favor of the prosecutor and impeached her as an expert witness. The defense counsel filed a request for a delay of trial date, while the prosecutor filed a motion to proceed. The court ruled in favor of the defense, granting time for a second expert witness.
A Second Opinion
Jones and the defense counsel contacted me. I reviewed the background information and Jones' report, and then evaluated Doe. The court prohibited me from viewing a video of the confession statement.
Due to the circumstances of this evaluation and the impending consequences of findings, I administered a thorough and exhaustive battery. This evaluation called for the use of informal measures, including measures of comprehension and communication given listening and verbal responses reported while talking on a cell phone. The situations presented included comparison of comprehension for messages:
- when voices were male/female, or had foreign accent/familiar accent
- with significant background noise versus limited background noise
- in which the speaker maintained a rapid rate versus average rate of speech
- that vary in frequency and intensity
- considering the cultural, figurative and literal linguistic content of the message
I provided the defense and prosecution with the test results and my conclusions. Doe demonstrated poor auditory processing ability in backgrounds of meaningful and non-meaningful speech. His ability to "fast-process" auditory information was poor, as were his abilities to reason and problem-solve with language. He had normal peripheral hearing bilaterally across all frequencies. Finally, Doe did not malinger, but exerted effort consistent with predictable profiles.
I found that Doe demonstrated poor auditory processing and therefore lacked the adequate auditory processing abilities necessary to commit the crime of collusion to commit felony murder.
In the Witness Box
During the two-day trial, the prosecution attempted to impeach me as an expert witness for many reasons, including the argument that I could not be an "expert" in auditory processing because I had never given testimony in a felony murder case as an audiologist.
If not for the seriousness of the circumstances, I would have found that attempt to impeach my testimony amusing. I do not know of an audiologist who has testified in a felony murder trial—therefore, there might be no "experts."
The defense asked questions for which I had been well-prepared. As testimony proceeded, I drew on a large white tablet near the jury to help explain important reasoning paths that led to conclusions. The tablet also was helpful for drawing and labeling the auditory system for jurors. I drew and labeled 19 large representations during the course of this two-day trial. Each of these was marked and entered into the record court as a court exhibit.
Delivering testimony in response to the prosecution's cross-examination proceeded with an intensity that is difficult to describe. I had been prepared for the prosecutor's brusque manner and intimidating style: he was known for being loud and consistently interrupting testimony. However, in the formality of the courtroom my preparation felt inadequate.
Drawing on decades of experience, I tried to finish sentences and ideas, repeat the question aloud, and answer questions with information from reviews of the literature. Most of all, I tried to respond without displaying the emotions he tried to elicit: fear, anger, embarrassment, irritation, and confusion. His questions did not proceed logically, but flew from point to point as he crossed the courtroom dramatically to pull down a map or wave papers in front of me. I was unprepared for his disrespect and rather distorted conclusions.
I was prepared, however, for his questions about other experts' research in the field, the soundness of my test battery, the profile of a malingering patient, and my ability to derive findings and firmly deliver my conclusions.
The verdict was delivered the second day of the trial. The suspect was found guilty of colluding to commit felony murder in the first degree and was sentenced to life in prison.
This case brought forth many interesting issues concerning the roles and relationships of SLPs and audiologists in legal venues. We are experienced in various settings but perhaps unprepared for the intense and often adversarial challenges presented in a courtroom. This deficit challenges us as professionals to operate not only as health care providers and educational professionals, but also to consider legal implications during the diagnostic and rehabilitation process.
Thus, a more critical view of how our diagnoses—or lack thereof—may affect the patient or defendant in a trial setting may help us change or merely "reorganize" our knowledge so that it may be communicated clearly and succinctly in a courtroom.