Episode 31: The Judge Rules on Expert Testimony

“Hear ye! Hear ye! All rise,” Deputy Martínez intoned yet again as all in the courtroom stood. “The Fifth District Court in and for our great Commonwealth, the Honorable Jordan Connor presiding. God save this state and this honorable court. The case of the State versus Michael Philip Andrews. All those with business before this court draw near; you will be heard.”

The judge walked into the courtroom and took his seat behind the bench. “This court will come to order.” He banged his gavel. “Are any of the jury in the courtroom?”

“No, your honor,” the deputy replied. “The jury is sequestered.

“Good.” The judge opened his folder and drew out some papers. “I have reviewed the respective motions from the state and from the defense. Professor Travis, I’ll let you summarize your position for the court.”

“Yes, your honor.” Senator Travis rose. “The matter before the court is straightforward. The defense withdrew our objection to the testimony of President Buchmann on the understanding that expert testimony would be allowed, without objection, by both sides. The state as well as the court had the opportunity at that time to raise any exceptions or objections to the defense proposal. Since no objections were raised, the agreement, reached in open court, to allow expert testimony, should be upheld by this court.

“In any event, over a week ago, the defense put the state on notice that Dr. Sophia Lachman would serve as an expert witness. The state failed to raise any objection in a timely manner and cannot now do so, out of order. Further, having allowed the state’s expert witness to testify in front of the jury, the court cannot deny the defense the same privilege.”

“Profesora?” The judge pointed his gavel to the prosecution as Senator Travis sat down.

“If it please the court,” Senator Castillo began, “local procedure requires that stipulations be in writing to be effective. This court has generously extended to the defense the privilege of appearing before this court, but that privilege carries with it the responsibility to abide by our rules – rules that your honor ought to enforce. The silence of the court and the prosecution cannot be interpreted as affirmative consent to allow whatever witnesses the defense chooses to call to testify before the jury.”

Senator Castillo shook her head at her opponent’s apparent inability to grasp her legal reasoning. “The defense also attempts to draw some kind of bizarre equivalence between President Buchmann and Dr. Lachman. President Buchmann served as an advisor to the state legislature’s Standing Committee on Education, and they assisted them in the drafting of the GAIA Act. They testified from their personal involvement, sharing their personal knowledge of the activities which gave rise to this case. Dr. Lachman has no such prior involvement in the facts of the case. She will merely offer expert opinion and analysis.

“There is no equivalence except in the defense counsel’s fevered imagination.

“Further, the state only recently became aware of the problematic nature of Dr. Lachman’s radical transphobic advocacy and her promotion of so-called ‘de-transitioning therapies’ that internationally recognized experts have condemned as violations of human rights. The state raised our objections to Dr. Lachman in a timely fashion as soon as we realized the depths to which the defense would stoop to propagandize and harangue the…”

“Objection!” Senator Travis rose to his feet. “Argumentative.”

“Sustained,” the judge ruled.

“In any event,” Senator Castillo concluded, “your honor should not compromise the dignity of this court by allowing the testimony of this purported expert witness.”

“Professor?” The judge gestured to the defense.

“Your honor,” Senator Travis began, “where I come from, a man’s word is his bond, and an agreement reached in open court to waive or modify particular points of process so as to streamline procedure and save the court’s valuable time are not only usual and customary, but also enforced. The record clearly shows that the defense waived our objection to President Buchmann’s testimony before the jury on condition that the defense’s expert testimony be allowed as well.

“President Buchmann testified NOT as to the facts and circumstances surrounding what Dr. Andrews taught, but rather offered her expert analysis on topics ranging from gender affirmation, medical interventions, the supposed relativity of truth, and – as became evident in her testimony – the inability of those who profess to be ‘women’s studies’ scholars to define the term ‘woman.’ She testified as an expert…”

“Objection!” Senator Castillo interrupted. “Counsel for the defense is mispronouning the witness!”

“Sustained,” the judge declared. “Professor, you will use the witness’s declared pronouns in my court.”

Senator Travis continued, “President Buchmann testified as an expert witness and should be considered as such.”

The senator looked down at his legal pad. “Finally, Dr. Lachman is a board-certified psychiatrist who has successfully treated and counseled hundreds of patients in a distinguished career of more than two decades. The state was put on notice that Dr. Lachman was on the witness list over a week ago. This objection is out of order, and you should summarily reject it.”

Senator Travis dropped his pad on the defense table.

“Your honor,” he addressed the judge directly, “The evidence Dr. Lachman will present is offered not only for the jury, but also for the purpose of making a record for an appellate court if the defendant should appeal, in order that the defendant may have the benefit of this evidence. The defense respectfully requests that you deny the state’s motion, and allow the defense to have the same privilege and benefit of presenting expert testimony before the jury that you extended to the prosecution.”

The judge nodded. “Well, of course, this evidence is going in the record so that in the event the case goes up to the appellate court, they may see the character and nature of the evidence that was excluded, if it is excluded from the jury, so I am inclined to let the defense get the full testimony of this witness in the record before ruling upon its admissibility.

“We object,” Senator Castillo rose to her feet.

“Overruled,” the judge insisted.

“We take exception to…”

“Noted,” the judge cut her off.

“Of course,” Judge Connor continued, “I reserve the right to put some limitations on the testimony, particularly if I conclude that this evidence is not admissible.”

“Your honor,” Senator Castillo addressed the judge, “we prefer to proceed in the regular order. The jury was dismissed yesterday for the purpose of asking these questions…”

“Yes…” the judge interrupted.

“…and in order that the court might ascertain if this testimony, in the mind of the court, was admissible. Now, your honor, must we spend the morning here…”

“No,” Judge Connor replied, “not the morning, I think.”

“…in determining whether or not the evidence is admissible?” Senator Castillo continued. “All this is supposed to do is to get before the court just what the evidence is and then, your honor will pass upon it. If your honor holds it admissible, the jury will be brought back, and this expert will proceed to testify.”

“No,” Senator Travis cut off his opponent. “We reached an agreement in open court that expert witnesses could testify without objection. The state’s expert witness testified, and now it’s time for the state to honor their side of the agreement and allow the defense expert to testify.”

“No supposed verbal agreement is binding,” Senator Castillo pointed out, “and if even if it were, that agreement was withdrawn.”

“I was a party to that agreement,” Senator Travis countered, “and I never withdrew from it.”

“Silence is not consent,” Senator Castillo replied piously, “and if you don’t understand that…”

The judge rapped his gavel. “I won't stand for any discussion between you two addressing yourselves to each other. You must address yourselves to the court. Now be seated. Both of you.”

Judge Connor took a deep breath. “There was a mix-up here yesterday by some kind of an agreement or suggestion that the defense was withdrawing its objection to President Buchmann’s testimony with the understanding that the state would not object to the testimony of the defense expert witness. I have reviewed yesterday’s transcript, and I understand how both sides could have walked away with their respective interpretations of the exchange. The court regrets its silence might have been interpreted as assent.”

The judge picked up his decision. “The court rules that President Buchmann offered testimony as an expert witness…”

“We object!” Senator Castillo sprung to her feet.

“Overruled,” the judge immediately replied, “and your exception is noted,” he added, cutting off Senator Castillo.

“The court further rules that there was no binding agreement to accept expert witnesses.”

“We object!” Senator Travis rose.

“Also overruled,” the judge insisted, “and I’ll take YOUR exception for granted.”

Judge Connor cleared his throat. “Now, I’m going to allow the defense to present Dr. Lachman’s testimony...”

“We object!” Senator Castillo announced.

“Overruled and exception noted,” the judge didn’t deign to look up from his brief. He continued, “…without the jury present, whereupon I will consider the evidence with an open mind and decide whether to allow the testimony before the jury.”

“For the record, your honor, the defense objects,” Senator Travis added.

“Overruled and exception noted.” The judge looked up from his papers. “Now, is the defense ready to present your witness?”

“Yes, your honor,” Senator Travis confirmed.

“Profesora?” the judge asked.

“We’re ready, your honor,” she confirmed.

“Go ahead, Professor.”