Brazilian prisoners riding toward freedom

Photos: Felipe Dana, AP

Brazilian prisons, criticized by human rights groups for their miserable conditions, are getting some good press this week over an innovative rehabilitation program that allows prisoners to pedal their way to freedom.

Prisoners in the small mountain town of Santa Rita do Sapucai, in southeastern Brazil, can shave one day off their sentences for every three days spent generating energy for the local township by pedaling stationary bikes.

Not only do the prisoners benefit, but so do local dog walkers, joggers, bicyclists, children and strolling couples: The generated power lights lamps along a riverside promenade that was heretofore abandoned after dark.

Lots of local citizens chipped in to create the program: A judge got the idea from reports of U.S. gyms using stationary bikes to generate energy, police contributed old bicycles, and engineers transformed them into stationary bikes and hooked them up to batteries donated by local businesses.

It's one of a series of new projects being implemented across Brazil to enable prisoners to improve their lives and health while working their way toward freedom, according to a story by Associated Press reporter Jenny Barchfield. With an estimated half a million people behind bars, the nation is also hoping to ease rampant prison overcrowding.

With one in 10 Brazilians over the age of 15 unable to read, literacy is a major focus of these rehabilitation efforts. A federal "Redemption through Reading" program allows prisoners in four federal penitentiaries to shave up to 48 days a year off of their sentences. In the labor-intensive program, a judge reads each prisoner's book report and decides on a sentence reduction of up to four days per book, for a maximum of 12 books per year. The prisons are offering similar time-reduction incentives for taking classes ranging from the elementary school to college level.

These types of educational programs are commonplace in Europe. Indeed, the European Prison Education Association sees prisoner education as a "moral right." They used to be widespread in U.S. prisons, too. But in 1994, with the elimination of federal funding for prisoner education, the number of higher-education programs in prison plummeted overnight from more than 350 -- serving about 40,000 prisoners -- to fewer than a dozen, despite their proven efficacy in reducing recidivism.

Let's hope that other countries struggling with overcrowded and dismal prisons will follow Brazil's lead and implement similar rehabilitation efforts that provide a sense of hope and some chance for prisoners to turn their lives around.

Sanity opinions show "poor" reliability, study finds

Independent evaluators agree only about half the time 

Did you hear the one about the JetBlue pilot who suddenly began rambling incoherently, bolted out of the cockit and ran through the aisles of the plane, screaming about Jesus and Al Quaeda? Not surprisingly, a judge this week found him not guilty by reason of insanity.

But insanity isn't always so obvious. In fact, the innovative team of Murrie, Boccaccini and Gowensmith -- which last year brought word of troublingly low reliability among forensic psychologists and psychiatrists assessing competency to stand trial -- has even worse tidings on the sanity front. 

Set once again in the Aloha State, the soon-to-be-published study examined 483 evaluation reports, addressing 165 criminal defendants, in which up to three forensic psychiatrists or psychologists offered independent opinions on a defendant's legal sanity.

Evaluators reached unanimous agreement regarding legal sanity in only 55 percent of the cases. The agreement rate was a bit higher, 61 percent, if one counted as agreement cases in which two evaluators shared the same opinion about sanity and the third declined to give an opinion (for example, because the defendant was incompetent to stand trial or did not want to consider an insanity plea). Either way, that's significantly lower than the rates of agreement that the team found in their previous study of competency evaluators in Hawaii. Among initial competency referrals, evaluators reach unanimous conclusions in 71 percent of cases.

The base rate of sanity to insanity opinions by the individual evaluators studied was about two-thirds sane to one-thirds insane.

Not surprisingly, evaluators agreed most often when a defendant had been psychiatrically hospitalized shortly before the offense, or when he or she had a psychotic disorder. They tended to disagree in cases in which alcohol and/or drugs played a role.

Opinions about sanity carry enormous consequences. If someone who was genuinely insane at the time of an offense is precluded from mounting an insanity defense, he or she may be unjustly convicted and sent to prison. On the other hand, a sane person who successfully fakes insanity can avoid criminal prosecution and be sent to a psychiatric hospital, where he or she may be disruptive, waste limited treatment resources, or have an unfair opportunity for early release back to the community.

At the same time, insanity is a slippery construct with many shades of grey. Reasonable experts may differ about whether a defendant meets the legal criteria for insanity at the time of an offense, for example by lacking the capacity to appreciate the criminality of his conduct or to conform his conduct to the law. It is unrealistic to expect perfect agreement among evaluators; the question is how much agreement or disagreement is acceptable to the courts. Collecting baseline data on reliability is a great first step toward more judicial and professional awareness of this issue.

Hawaii is an outlier that makes it an ideal site for naturalistic studies such as this: When the question of sanity is raised, the court solicits three concurrent and wholly independent evaluations, each with a written evaluation report.

Hawaii also provides better compensation than many mainland U.S. jurisdictions, perhaps making for a higher-quality end product. The researchers told me that an initial evaluation -- typically covering the issues of competency, sanity and dangerousness -- pays $1,000. That's not great, considering that an expert may need to invest 30 or 40 hours in a complex case. But by way of comparison, here in the San Francisco Bay Area where I am, most counties pay only $300 to $500 per evaluation. The essentially pro bono compensation encourages newbies and hacks, while discouraging highly trained, experienced and thorough forensic experts. Local judges don't seem concerned about reliability and error rates, often appointing only a single evaluator as if alienists are just interchangeable warm bodies with appropriate initials after their names.

As in their competency study, the team also examined how judges handle disagreements among evaluators. In nine out of ten cases, judges went with the majority opinion of the experts. But when judges broke with the majority, it was usually to find a defendant legally sane. "This pattern seemed generally consistent with the courts' conservative approach toward insanity cases, and the tendency for insanity pleas to fail," the authors note.

The researchers said that this is the first study to examine independent evaluations of legal sanity in routine U.S. practice. As such, the levels of agreement among forensic evaluators were "surprisingly poor," and far poorer than the field tends to assume.

[I]n light of our findings, courts should consider carefully the rationale underlying an evaluator's final opinion. Because sanity is a legal (rather than clinical) decision, courts must base their decisions on the data, observations, and clearly articulated inferences that an evaluator provides, rather than simply the evaluator's final opinion…. [T]olerating poor reliability among forensic evaluators is also costly, in that it might undermine goals of equitable justice, undermine confidence in the mental health field, and increase costs associated with inappropriate placements in hospitals, jails, or prisons.

The article, “How Reliable Are Forensic Evaluations of Legal Sanity?” is forthcoming from Law and Human Behavior. Correspondence may be addressed to W. Neil Gowensmith.

Groundbreaking research: One out of every 10 rape convictions wrong?

As a young man, Michael Jones pleaded guilty to back-to-back attempted molestations of two girl strangers. However, he adamantly maintained his innocence while in prison and on parole. He said his lawyer had coerced him into pleading guilty by threatening him with life in prison if he went to trial. Michael was one of a handful of Black people in a rural white community; both of the little girls were white. He was identified when police brought him to the station and showed him to the girls. There was no lineup procedure with foils; he was the only choice the girls were given. On the basis of his two convictions, government evaluators diagnosed Michael with pedophilia and recommended civil commitment.

As a teenager, Paul Smith tried to molest a younger boy. He was arrested at the scene and confessed. He disputed only one point in the victim’s statement: that he had threatened the younger boy with a gun. Police searched his home and found no gun. Pre-conviction polygraph testing indicated he was being truthful when he denied having a gun. Over the ensuing years, however, clinicians in sex offender treatment programs hammered at him to admit that he had used a gun. Government evaluators said Paul’s “denial” and “minimization” of his gun use influenced their recommendation for civil commitment.

In cases such as these, I am consistently struck by the naïveté of clinicians and forensic evaluators alike, who accept police reports and especially victim accounts as the gospel truth. From my former career as a criminal investigator, I can attest to the fact that even impartial observers with no conscious motivation to distort are never 100 percent accurate in describing events they have witnessed. As Daniel Schachter so clearly articulates in Seven Sins of Memory, distortion is the nature of the human animal. It is even more likely to occur in situations involving high levels of stress, fear and emotionality.

So I was happy to see that the issue of false convictions for sex offenses is getting some much-needed and long-overdue attention. Or, let me qualify that: Happy about the empirical research, but less than thrilled with a theoretical article on the psychological dynamics underlying false accusations. Let me take those up one at a time.

Dredging old cases for DNA matches

The most methodologically rigorous study to date, released in June, suggests that somewhere between 8 and 18 percent of men convicted of sexual assault may be innocent. The federally funded research project randomly sampled convictions in Virginia between 1973 and 1987, before DNA testing was widely available, and compared preserved physical evidence with the DNA profiles of convicted men.

After poring through more than half a million cases, researchers found 422 sexual assault cases in which DNA evidence was preserved. In 8 percent (33) of those cases, the DNA evidence was exculpatory and supported exoneration. Because many of the DNA comparisons were inconclusive, this amounted to 18 percent of the cases in which it was possible to make a definitive determination one way or the other based on DNA analysis. (The data and the analyses are complex and not without flaws, so I recommend reading the study itself before relying on these numbers.) Noted the researchers:

"Even our most conservative estimate suggests that 8 percent (or more) of sexual assault convictions in a 15-year period may have been wrongful. That means hundreds, if not more than a thousand, convicted offenders may have been wrongfully convicted. That also means hundreds (if not more) victims have not received the just result, as previously believed. Therefore, whether the true rate of potential wrongful conviction is 8 percent or 15 percent in sexual assaults in Virginia between 1973 and 1987 is not as important as the finding that these results require a strong and coordinated policy response."

Bennett Barbour. Photo credit: 

Joe Mahoney, Times-Dispatch

Unfortunately, the researchers ran out of money before they could do more exhaustive analyses of the cases in which innocence was suggested. In the project’s wake, the government is battling with false confession activists who want access to the data, reports the Richmond (Virginia) Times-Dispatch. Police and prosecutors want to restrict access; exoneration activists argue that people have a right to know when their DNA does not match that collected in the crime for which they were convicted.

The project has led to the exoneration of at least four men. Putting a face to them is Bennett S. Barbour, who served a prison sentence for a 1978 rape. He had moved and did not receive the 2010 letter notifying him that the DNA specimen cleared him and matched a convicted rapist instead. A volunteer lawyer finally tracked him down and broke the good news by phone 18 months later.

Research into wrongful convictions has pinpointed several leading causes. These include:

Top sources of wrongful convictions. The Innocence Project

• False witness testimony (including mistaken identification and lying codefendants) 
• Faulty forensic evidence (especially comparisons of hair and bite marks) 
• False confessions 
• Police being influenced by prior knowledge of a suspect 
• Brief jury deliberations 

These problems are compounded by racial bias both in the criminal justice system and in society more broadly. African American men make up far more than their share of those who were convicted and later exonerated based on DNA evidence.

False accusations: A role for psychology?

Flat-out false accusations of rape -- like that depicted in To Kill A Mockingbird -- are rarely the cause of exonerations. But they do occur. Now, a prominent forensic psychology professor and his student propose 11 pathways to false allegations, and suggest that psychology could play a role in helping to sort reliable from unreliable reports. Write Jessica Engle and William O'Donohue in the Journal of Forensic Psychology Practice:

"[W]e suggest that some psychological disorders may increase the likelihood of believing a sexual assault occurred when it did not. Additionally, some psychological disorders may be related to an increase in motivation to fabricate an allegation of sexual assault in an effort to achieve what may be believed are the positive consequences of a false report…. [P]sychological evaluations may inform forensic evaluators of psychological processes by which a person may either intentionally or unintentionally file a false allegation of sexual assault."

The motivational and information processing pathways they propose lean heavily on psychiatric disorders -- including antisocial personality disorder, borderline personality disorder, histrionic personality disorder, psychotic disorders and intellectual disability -- as causes of false allegations. For example, here’s how they suggest that a histrionic personality style could lead to a false allegation:

"[A] person who is histrionic may, after a co-worker complements her clothing and accidentally bumps into her during the day, construe these actions as intentional communications of sexual interest. This misperception can lead her to feel that if the individual had touched her chest while bumping into her, it was an intentional action of unwanted assault. Thus, a pathway to false allegations of sexual assault may be through individuals with a diagnosis of histrionic personality disorder who for reasons of attention and misinterpretation may knowingly or unknowingly make a false allegation of sexual assault."

Okay, I’m not saying that people don’t lie, or make mistakes. Other research suggests that anywhere from 2 to 10 percent of all sexual assault reports may be false. But some of the examples provided in this article stretch credulity, and reek of sexism. I don’t know too many women, histrionic or not, who don't know the difference between an innocent compliment and a sexual assault.

A classification system based largely on pathologizing women runs the risk of reifying the mythology of so-called “rape myths,” in which only “good,” virtuous women can be raped. It seems especially problematic to disbelieve women with psychiatric problems when -- as the authors acknowledge -- they are the ones most likely to be sexually victimized.

More broadly, it is improper for clinicians to wade into the waters of truth-telling or lie detection. We weren’t there, and we don’t know what happened. It's problematic enough when we use character traits to predict the future. Stating that people (read: women) with this or that disorder are more likely to be lying or distorting reality opens the door for yet more improper use of psychiatric diagnosis in court.

Rather, as suggested by the Virginia data, we need to be skeptical at all times, and to keep our minds open to competing hypotheses based not on psychiatric stereotyping, but on the individual case facts. Maybe an assault happened, maybe it didn’t. Maybe the witnesses have their facts straight, maybe they don’t. Maybe the person who was convicted is the real culprit, and maybe he isn’t.

It’s clear that false convictions and false allegations are two separate beasts. And if that’s not complicated enough, there are true cases that are falsely recanted! For example, in a recent Welsh case, “Sarah” was repeatedly raped and forced into prostitution by her husband. When she recanted her report, she was convicted for perverting justice.

So, did Michael Jones (top of post) try to molest the two little girls? Maybe. Maybe not. The point is that we will never know for sure, and we should embrace -- rather than avoid -- that uncertainty. Present the competing scenarios, and analyze the case both ways, so that the trier of fact has all of the information.

The complexities in understanding sexual assault patterns are mind-boggling, and can make your head spin. False convictions, false accusations, false retractions. And then there's the other end of the spectrum: A vast proportion of sexual assaults – probably somewhere between 85 and 95 percent – are still going unreported altogether. And when victims do come forward, prosecution is rare, and convictions even rarer.

It's one gigantic mess, all around.

The U.S. Department of justice Study is: Post-Conviction DNA Testing and Wrongful Conviction by John Roman, Kelly Walsh, Pamela Lachman and Jennifer Yahner.

Mute mystery man baffled jail psychologists

 Deemed incompetent to stand trial after month of silence

How do you provide treatment to someone who won't talk, when you know absolutely nothing about him -- not even his name? That was the problem facing clinical staff at the San Mateo County Jail this month.

"John Doe" was arrested May 30 for shoplifting two frozen pizzas and several candy bars from a local supermarket. But it was no ordinary theft: Store personnel described him as semi-catatonic, making no effort whatsoever to conceal what he was doing, private investigator Rich Fischer told me today. Perhaps because of his odd behavior, supermarket employees didn't even call the police until Mr. Doe's third attempt to make off with the food.

When police responded, the disheveled man placidly declined to communicate. And he has remained mute ever since, not speaking a single word to anyone for an entire month.

He had no identification, and his fingerprints didn't show up in any databases. No missing persons reports could be found.

He seemed to understand simple commands, both in English and Tagalog. (About one out of five residents of the local community of Daly City are Filipino.) But he wouldn't sustain eye contact or write. In the sole clinical breakthrough, when a nurse asked him if he was "happy or sad," he drew a picture of a happy face. Consistent with his sketch, he seemed perfectly content with his situation, according to an article in today’s San Francisco Chronicle about the mystery..

Knowing nothing about him, jail mental health personnel concentrated on ruling out medical causes for his muteness, such as a stroke or a brain hemorrhage. No medical causes were found, and no clinical interventions were successful.

He was not in any immediate danger, as he was able to understand enough to take care of his basic needs in jail. But he did not seem to be in a position to rationally assist his attorney with his criminal case, so he was found incompetent to stand trial and transferred to a local hospital for further treatment.

Meanwhile, the private defender's office (the local version of a public defender's office) retained investigator Rich Fischer to solve the mystery.

In addition to plastering the local community with fliers, Fischer contacted the news media, which ran an article with a photo. Finally, just today, he got a lucky break when someone who knew the mystery man alerted the family, who contacted Fischer and identified him from a photo. As it turns out, the family had filed a missing persons report in San Francisco, but it had fallen through the cracks.

Maguire Jail, Redwood City

Although Mr. Doe has now been identified, some mystery remains as to his clinical condition. The 44-year-old Filipino native, who holds advanced degrees in computer science and electric engineering, began withdrawing about a year ago, Fischer said. He continued to deteriorate until he finally disappeared from his San Francisco apartment about a month ago.

So, in the end, it was old-fashioned gumshoe work as opposed to psychological detection that cracked the case. In the absence of any collateral information there is only so far that psychology can go in cases of psychogenic muteness.

"I’ve got a reputation for being able to find people when I have a name," a satisfied Fischer told me. "But this was the opposite situation. It was a little unusual."

Now that Mr. Doe has been identified and his family can provide collateral information about his condition, it will be up to the court-appointed experts to decide whether he is competent to stand trial, or can be restored to competency.

Somehow, I doubt he will ever face trial. After all, a couple of frozen pizzas and a few candy bars is hardly the crime of the century. Especially when the alleged culprit isn't talking.

High court ruling on juvenile sentencing: What's it mean?

Two things strike me about Monday's headline-grabbing high court rulings in Miller and Jackson, banning mandatory sentences of life without parole for juvenile killers.

Mandatory versus discretionary sentencing

First, the U.S. Supreme Court did not outlaw sentences of life without parole (LWOP) for juveniles, even though we are one of the only countries in the world to impose such punishment. The cases only take issue with mandatory LWOP sentences. In doing so, the justices are restoring a bit of the discretion traditionally afforded judges and juries to weigh mitigating factors before imposing a sentence.

Second, the court's opinions -- there’s a whopping five in all! -- reflect an escalating ideological tension over what counts as "cruel and unusual punishment" (banned by the Eighth Amendment) under the "evolving standards of a mature society."

Bryan Stevenson of the Equal Justice Initiative argued the case

For the court’s bare majority of five, evolving standards suggest that children should be treated differently from adults. Thus, the cases of Evan Miller and Kuntrell Jackson are logical extensions of previous rulings banning the death penalty for juveniles (in the case of Roper), and life without parole for juveniles convicted of non-homicide offenses (in Graham).

In this line of thinking, the majority leaned on psychological research and an amicus brief by the American Psychological Association. Luminaries in our field (including Elizabeth Cauffman, Tom Grisso, Terrie Moffitt, Jen Woolard, Larry Steinberg, John Edens, Alan Kazdin, Donald Lynum and Edward Mulvey) helped inform the court of what brain science reveals about "the hallmarks of youth," in the words of Justice Kagan: "immaturity, impetuosity, and failure to appreciate risks and consequences."

Only two justices, Stephen Breyer and Sonia Sotomayor, wanted to go further than eliminating mandatory LWOP sentences. In their concurring opinion, they stated their opinion that the Supreme Court's recent ruling in Graham prohibits imposing the penultimate punishment on minors who did not intend to kill. Here, 14-year-old Kuntrell Jackson merely went along with a group of older boys, one of whom killed a video store clerk in the course of a robbery. He did not kill, nor was there evidence he intended the death.

Society evolving toward harsher punishment

Kuntrell Jackson of Arkansas,
14 at the time of his crime

The court’s conservative dissenters, however, lambasted the majority for "march[ing] toward some vision of evolutionary culmination" favoring rehabilitation over retribution. "Unless confined, the only stopping point for the Court’s analysis would be never permitting juvenile offenders to be tried as adults." To the minority, there is no contradiction between the ever-harsher penal policies in 21st century America and the "evolving standards of a mature society." Wrote Chief Justice Roberts in his dissent:

[T]here is little doubt about the direction of society’s evolution. For most of the 20th century, American sentencing practices emphasized rehabilitation of the offender and the availability of parole. But by the 1980’s, outcry against repeat offenders, broad disaffection with the rehabilitative model, and other factors led many legislatures to reduce or eliminate the possibility of parole, imposing longer sentences in order to punish criminals and prevent them from committing more crimes. Statutes establishing life without parole sentences in particular became more common in the past quarter century. And the parties agree that most States have changed their laws relatively recently to expose teenage murderers to mandatory life without parole.

Commenting over at Slate, appellate judge Richard A. Posner cast the whole notion of "evolving standards of a maturing society" as a sick joke:

Evan Miller, also 14, an abuse victim who killed
a neighbor in a drug-induced haze

The concept of cruel and unusual punishments is based on "the evolving standards of decency that mark the progress of a maturing society." Is the United States a maturing society? Surely not in the realm of criminal law, a real disaster area -- we imprison a higher fraction of our population than any civilized nation (and than most of the uncivilized ones), many for trivial crimes involving mind-altering drugs less dangerous than alcohol or cigarettes; life sentences are imposed with abandon; prosecutorial discretion is very broad and often exercised irresponsibly; and judges' sentencing discretion, also broad, is exercised much of the time in an intellectual vacuum.

Posner, a senior lecturer at the University of Chicago Law School, also took issue with using "brain science" to draw a hard line between juveniles and other defendants:

I am struck by the court's reference to "brain science." The court has learned from brain science that teenagers are immature! But we knew that. The problem with using it as a basis for distinguishing between murderers of different ages is that many adult murderers have problems with their brains, too. Why is it not cruel and unusual to sentence them to life in prison? A categorical distinction between a 17-year-old and an 18-year-old seems arbitrary, and in any event a reflection of feelings about children (if teenagers can be called children) rather than of the teachings of brain science. If the court had said -- what I imagine the justices in the majority feel, that emotion dictated the outcome -- that a sentence of life imprisonment (with no parole of course) imposed on a 14-year-old is extremely distasteful, it would have the considerable virtue of candor.

Getting down to the brass tacks 

So, what does this ruling mean in practice, and how will it play out?

As it now stands, 29 of the 38 U.S. states that allow sentences of life without parole for juveniles have provisions for such sentences to be mandatory. All told, about 2,000 of the 2,500 people serving LWOP sentences for crimes committed as minors were sentenced under laws mandating that punishment.

It is not clear how many of these convicts will be eligible for relief. Legal pundits are already debating the retroactive applications of Miller and Jackson. (See HERE and HERE.)

Most likely, as a lawyer colleague predicted, some prisoners in states with vigorous advocacy offices may benefit, while those in other states will continue to languish.

For more background, see my post at my Psychology Today Witness blog on the Lives of Juvenile Lifers report: "No other country condemns children to life behind bars" (click HERE).

Bow ties: The simple solution to expert witness credibility

If you are a lawyer anxious over how your expert witness will perform on the witness stand, you can always instruct the expert to don a bow tie: It's just the ticket for that "nerdy nod of credibility."

That's just one of the scintillating nuggets of advice for turning a ho-hum expert into a "great" witness in the latest issue of The Jury Expert, a publication of the American Society of Trial Consultants. Other advice from Doug Carner of Forensic Protection includes instructing the expert to be confident and relaxed and not to be "the hero."

Reading the column made me thankful that the attorneys I work with have more common sense than to focus on the superficial. I would be less than thrilled to have an attorney client making wardrobe recommendations (bow tie or not) or ordering me to just relax.

I don't mean to sound cynical about trial consultants. I'm sure there is a valid place for them in helping prepare witnesses -- especially novitiates -- for trial. But in my opinion, substance is far more important than style. And that's very hard to teach in a simple advice column. So attorneys are better off choosing the right expert in the first place than scrambling to prepare their witness via last-minute wardrobe tips.

Critically, a good expert witness must have legitimate expertise in the topic at hand. Without legitimate expertise, it is hard to be calm and confident. He or she should also be thorough, taking the time to research the issues and understand the specific case facts. And, above all, the witness should convey honesty and humility.

An attorney who has to tell the witness not to play "the hero" has already made a big mistake. That narcissistic expert should have been avoided in the first place. As a colleague once remarked, it helps us to remain humble if we remember that we are just one piece of evidence, like a maggot on a dead body.

Fortunately, The Jury Expert editors had the good sense to solicit rebuttals from other trial consultants, who took issue with Carner's column.

Forensic psychologist Stanley Brodsky, a widely published authority on trial consultation, called Carner's wardrobe advice "demeaning." Experts don't need to be told to dress up for court. And although one or two exceptions come to mind, most of us won't feel more comfortable in a bow tie.

Brodsky also objected to Carner's advice that experts should just "stick to the facts." What distinguishes expert testimony from the testimony of lay or fact witnesses, he pointed out, is that experts are supposed to present not just facts but -- that's right -- expert opinions.

In another rebuttal, trial consultant Elaine Lewis said Carner only stated the obvious, without giving any real insights on how to achieve better results. "For example, we are told an expert 'should remain relaxed' but there is no suggestion on how to accomplish this," she noted.

Ellen Finlay, who brings the perspective of a former trial attorney to her trial consultant practice, said much of what looks like poor witness preparation stems from inadequate law school training in how to craft a compelling direct examination. A well-crafted direct examination provides a road map for jurors and witnesses and is the single most effective way to "communicate your story to both the jury and your own witnesses," she coaches.

If I was in the business of advising attorneys on preparing expert witnesses for trial, I would tell them not to scrimp on time. The biggest mistake I see attorneys making is to throw their cases together at the last minute. Attorneys need to fully explain to their experts their theory of the case, their voir dire and direct examination approach, and what to anticipate from cross-examination.

If the expert is left hanging in the wind, the case will suffer, bow tie or not.