As a way of suggesting bias or financial benefit from such testimony, trial attorneys often ask the opposition’s experts whether they have frequently testified on one particular side of an issue. Although such cross-examination is widely assumed to be fair, the Iowa Supreme Court just handed down this interesting decision in ordering a new trial for a babysitter convicted of murdering a child under her care based in part on prosecutorial cross-examination along these very lines. The prosecution’s theory was that the babysitter had caused blunt head trauma to the child, but the babysitter’s expert testified that that the child’s head trauma had occurred much earlier than when the prosecution asserted that it had happened. On cross, the prosecution questioning attempted to connect the defense expert’s opinion to a presentation the expert had given “in front of all the defense lawyers here in the State of Iowa,” and also asked the following question: “You are routinely hired by the defense in cases where children are allegedly victims of child abuse and you testify on behalf of the perpetrator; isn?t that true?” The prosecutor also implied in other questions that the defense expert had testified on 46 occasions on behalf of persons charged with killing children.
The Iowa Supreme Court’s opinion condemns such prosecutorial questioning as an “improper effort to demean the witness,” citing the ABA Standards for Criminal Justice, which provide: “The interrogation of all witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily.” Although this decision involves a criminal case, it should nevertheless provide pause for attorneys in civil cases who attempt to impeach an opponent’s expert through derisive and suggestive questioning.