Withdrawing an Expert Witness: Civil vs. Criminal Cases

When an Expert Just Isn’t Right for Your Case

When hiring an expert witness for litigation, it is important to remember that although you can buy an expert’s time and expertise, you cannot buy their opinion. Any expert worth their salt will not compromise their reputation or principles for the sake of achieving their attorney client’s desired result. If you engage expert services over the course of your career, it is inevitable that at some point the expert you hire will have an opinion that does not advance your case. Your expert’s opinion may produce inconclusive findings or even directly contradict your client’s position. In these instances, you may decide not to call your expert to the stand.

There are also a number of personality-related reasons why you may decide a particular expert may not do well on the stand. For example, you may find the expert witness doesn’t listen to your questions. They may have a habit of talking over you. Perhaps they have an irritating tick.

There are also some completely innocuous reasons you may choose not to call an expert. The timing of your case may conflict with an expert’s other commitments. You may not be able to comply with the expert’s fee schedule. The expert may even find another case more interesting, and abandon you.

Consequences of Withdrawing an Expert Witness

Regardless of the reason for not calling an expert, the question presents itself, “Can the other side contact the witness, find out why they aren’t being called, and perhaps even call the witness themselves?” The answer is generally, no. However, it largely depends on whether the case is criminal or civil.

Criminal Cases – Experts for the Defense

In criminal cases, Federal Rule of Criminal Procedure 16, and most state Criminal Rules of Procedure require the defense to provide a written summary of expert witness testimony under Rule 16 (b)(1)(C). If the defense later decides not to call the expert witness, the Sixth Amendment may protect the defendant from the government using the expert witness to vouch for the accuracy of the state’s expert witness conclusions. The Sixth Amendment guarantees, in part, the defendant’s right to obtain witnesses in their favor. Attorneys must be allowed to pursue defenses, including exploring defenses with expert witnesses.

In South Carolina, the courts have held if the prosecution is permitted to compel a non-testifying defense expert to testify for the government, the following issues may present themselves:

Defense counsel may fear an unfavorable result and therefore not investigate; Defense is at a disadvantage if the prosecution can pilfer defense experts, as defense counsel will then have to cross examine their own experts.

Consequently, the South Carolina Supreme Court adopted a rule in State v. Jones, 681 S.E.2d 580 (2009) similar to the Federal Rule in civil cases, that the state must prove a substantial need for the defendant’s non-testifying expert and the inability to compel a defense expert to testify for the state would constitute an undue hardship.”

However, some jurisdictions have allowed disclosure of defense hired expert witnesses, and allowed the jury to infer the logical reason the defense failed to call the expert at trial. For example, in People v. Bolden, 29 Cal4th, 515 (2002), the defendant’s conviction was upheld where the state laboratory witness testified the defense had hired an expert to observe the laboratory’s blood testing of a particular item of relevance. The prosecution pointed out the defense failed to call that expert at the trial. The court held the jury was properly allowed to consider this evidence.

Criminal Cases – Experts for the Prosecution

Similar to the defense, the government has a duty to disclose written summaries of expert witness testimony, under Federal Rule of Criminal Procedure 16 ()(1)(G). Prosecutors additionally are bound by Brady v. Maryland, 373 U.S.83, 87 (1963). Brady requires prosecutors to disclose “evidence favorable to an accused. . . where the evidence is material either to guilt or to punishment. . .” Consequently, where a prosecutor decides not to call an expert, based on their findings inconsistent with the government’s case, the witness and their findings must be disclosed. In such a case, the defense may be allowed to call the witness.

Civil Cases – Experts for Both Sides

In civil cases, both sides are bound by the same set of rules. Federal Rule of Civil Procedure 26 (b) (4) (B) protects the draft reports of expert witnesses. Rule 26 (b) (4) (C) protects communications between the attorneys and the experts, with a few narrow exceptions. Finally, Rule 26 (b) (4) (D) states that experts retained but not expected to be called as witnesses at trial are not subject to interrogatories or deposition, except under certain circumstances, including “on showing exceptional circumstances under which it is impracticable for the party to obtain facts or opinions on the same subject by other means.” Fed.R.C.P. 26 (b) (4) (D) (ii).

When You Decide Not to Call an Expert

There are many reasons why attorneys decide not to call an expert. In civil cases, this decision is unlikely to result in the other side being able to call the witness, except in rare circumstances.

In criminal cases, the situation is a bit less clear. Surely, a prosecutor who encounters an expert with an opinion inconsistent with their theory must disclose this to the defense under Brady and its progeny. Although rare, failure to disclose exculpatory evidence can result in a criminal conviction and jail time. Further, a prosecutor in a criminal matter can lose their license by failing to disclose an expert opinion or attempting to conceal an expert opinion favorable to the defense.

When the defense decides to withdraw a testifying witness, it appears most jurisdictions do not allow the government to call them as a witness. The defense may, however, be able to reference the existence of a defense witness in some jurisdictions.