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  • Article: Expert Testimony In Immigration Hearings Live And Telephonic Testimony By Dr. Mark S. Silver

    Expert Testimony In Immigration Hearings Live And Telephonic Testimony


    Telephonic testimony has become accepted practice in many courtrooms and jurisdictions due to both convenience and cost-effectiveness. This paper will explore several advantages of live testimony versus telephonic testimony for the mitigation or forensic clinical expert. Although the examples provided concern immigration hearings, the issues may be applicable to other courtroom settings.

    Reasons to Attend a Hearing
    There are three basic reasons an expert is asked to attend the individual hearing at immigration court.

    1. The lawyer makes the request. This may occur because the lawyer feels that the Immigration Judge needs direct persuasive evidence, the client has difficulty expressing himself, expert testimony can be useful to supplement primary testimony, or there are nuanced mental health, family, or hardship issues that require clarification.

    2. The client makes the request. This may occur because the client feels overly anxious and he believes that the expert’s presence will help him or his family to remain better focused. Some clients wish the expert to attend simply as an “insurance policy” given the gravity of the legal proceeding.

    3. The government and / or judge make the request. Although highly unusual there have been instances where the government and / or judge have specifically requested my presence in court to clarify an issue.

    Pre-Hearing Conference
    If present on the day of the individual hearing the forensic expert has the opportunity to converse with the client and his or her family to ensure that the information the client and the family provided for the evaluation remains current. For example, clients who suffer from mental health disorders, but experience a precipitous decline or improvement in mental health functioning can benefit from speaking with the forensic expert in the courtroom for a short time before the immigration hearing. This is particularly true when the respondent has experienced trauma, as the slow process of recovery can be quite uneven.

    Case Example. A client petitioned for asylum based on his ethnic affiliation and his subsequent detention and torture before escaping to the United States. The client was initially interviewed after residing in the United States for about 18 months and the freedom and safety that the client enjoyed resulted in the improvement of his mental health and the abatement of the Posttraumatic Stress Disorder symptoms from which he suffered after he escaped from prison. Nonetheless, the client’s symptoms resurfaced after a visit to a neighborhood where he saw persons from the ethnic group who participated in his torture in his country of origin. The client became acutely anxious and experienced flashbacks of the torture he endured. At the immigration hearing, I had an opportunity to speak to the client for about an hour before his testimony and he related this incident to me providing a more complete picture of his overall mental health and the lingering effects of his traumatic experience in his country of origin.

    Humanizing the Client
    Forensic experts tend to see many of the same issues case after case. However, the mitigation expert must individualize the client’s personal life history through a sympathetic narrative that contextualizes the client’s past, present, and future hardships. Having the opportunity to meet with the client and his or her family for a short time before the hearing will help refresh the forensic expert’s memory so as to make the testimony more personal and less general. This is particularly true when many months elapse between the time the forensic expert evaluates the client and the forensic expert is needed to testify.

    Testimonial Focus
    The forensic expert who testifies in person can direct his focus toward any person(s) in the courtroom. For the most part, the expert will focus his attention toward the Immigration Judge; however, for emphasis and clarity the expert may also wish to focus his attention toward the government lawyer or the respondent.
    The opportunity to have a face-to-face conversation with the Immigration Judge, which permits a more intimate and congenial atmosphere, may permit the forensic expert to make a point in a way that may be compromised in the absence of the face-to-face contact. In contrast, the forensic expert who testifies telephonically directs his testimony to no one in particular, but rather to the courtroom as a whole. As anyone who has spent time in a courtroom is aware, a judge’s attention may stray—as may the attention of counsel. The forensic expert who testifies telephonically would not be aware of this and would have no way to gauge the extent to which the judge is paying attention to the testimony.
    Moreover, the forensic expert who provides telephonic testimony cannot know the mood of the courtroom or the Immigration Judge’s frame of mind. Consequently, in the absence of nonverbal cues it can be difficult for the forensic expert to gauge to what degree he should continue to testify about a certain matter or when to end a point. In contrast, at live immigration hearings it is readily evident when an Immigration Judge loses focus or dons a skeptical facial expression. At such times, it is possible for the forensic expert to re-phrase the point and permit an opportunity for clarity that would probably not have been available through telephonic testimony.

    The Uncertainty Factor
    Courtroom proceedings are inherently unpredictable. The predilections of the Immigration Judge and a host of other factors create an environment that does not provide much room for certainty of outcome. The immediate availability of the expert in the courtroom can provide the lawyer with an added element of reassurance, particularly if there is serious mental health and family issues involved, which may require clarification whether this is immediately before the hearing, during the hearing, or when a short recess is available.
    It is important to remember that the expert who testifies telephonically is not available for consultation prior to testimony. The lawyer is unable to leave the courtroom to call the forensic expert and discuss an issue, as there is no second chair for the lawyer in Immigration Court.

    Poor Phone Reception
    Telephonic testimony may be accompanied by various annoying interferences on the phone line, including call-waiting beeps, poor reception, static, or shuffling of papers in the courtroom—all of which make it difficult for the forensic expert to concentrate and hear what is being said in the courtroom. Moreover, the phone may be far from the lawyer’s chair and this may make careful listening quite difficult. At times, the lawyer might be asked to speak louder, more clearly, or to repeat questions to be properly understood. This adds to everyone’s annoyance and might leave the judge with the impression that the forensic expert is not fully familiar with the case.
    These distractions can be a major problem for everyone and may compromise the integrity of the forensic expert’s testimony, and, more importantly, the ability of the judge to focus his or her complete attention on what the expert is trying to relate to the court.

    Body Language
    The forensic expert who provides telephonic testimony can only respond to direct questions and will miss out on nonverbal cues from the judge, lawyers, and respondent in the courtroom. It is impossible for the forensic expert on the phone-line to know if a break in questioning is due to the judge’s skepticism about the testimony, an attorney who is taking a few minutes to search his file, or some other extraneous matter. This can be somewhat disorienting and may jeopardize the forensic expert’s cogency.
    The body language of persons in the courtroom, including subtle gestures such as raised eyebrows (which may indicate skepticism) or grimaces or frowns (which may indicate annoyance), can assist the forensic expert to deduce when a point may need to be repeated in a different form or emphasized in a different context.
    The forensic expert’s body language, hand gestures, facial expressions, and general demeanor can translate or impose various meta-communicative meanings to the judge and lawyers and relay empathy, expertise, or deference.

    Often immigration clients who are referred for a forensic evaluation have few financial resources, and their lawyers wish to minimize their client’s expenses. The lawyer might believe that telephonic testimony will reduce the client’s costs, as the expert will not be required to devote three or four hours to a live appearance thereby decreasing the expenses. However, the difference between live and telephonic testimony may not be that great and the rewards to the client are potentially significant when considering the impact of live testimony and the gravity of the issues at hand.

    The advent of telephonic testimony has brought many benefits to courtroom proceedings but it can also result in jeopardizing a client’s case. The lawyer can consider the lower cost of telephonic testimony in the case but should weigh it against the many benefits of live testimony to decide what would work best for the client. The third option is stipulations.

    This section will explore the role of the stipulation agreement of experts in Immigration Court.

    A stipulation is an agreement between opposing counsel to submit documentary evidence without the need for examining the probative value or relevance of the evidence either in pre-trial motions or during formal litigation.

    Everyone’s Happy
    The immigration lawyer who proffers the expert’s report for stipulation does so eagerly because it permits a host of material to be accepted without refutation at the individual hearing while wholly preserving the material for appellate review if necessary. The government attorney may be happy to save time and hopes that the documentary material is perceived as less valuable if accepted in this format, especially if the Immigration Judge has to review many other documents. The judge is also happy because large caseloads means a tight schedule and time saved through stipulations is often preferred.

    Pitfalls of Stipulating to the Forensic Report
    1. In immigration court when opposing counsel stipulate to an expert’s written report the report is not read into the trial transcript. As such, it is difficult for the lawyer to determine the degree to which the judge understands, internalizes, or accepts the content of the report. By its nature, mitigation reports are both factually and clinically oriented and supported by a host of details. If the lawyer cannot determine what components of the report the judge found compelling and what parts of the report the judge found unpersuasive it is difficult for the lawyer to know what to review or stress at the immigration hearing.

    2. The judge may determine that a stipulated report negates the need for testimony from the mitigation expert. While mitigation reports should be complete and accurate experts can always clarify or augment a forensic report and expand on those issues that are nuanced or technical. This is particularly true of non-factual issues, such as emotional and psychological hardship matters.

    3. Stipulations alone omit the opportunity for the expert to humanize the respondent’s case and the expert can sympathetically reinforce this both through his tone of voice and body language. The personal testimony of facts infused with emotional content acutely affects the listener.

    Three Factors to Consider Before Calling An Expert to Testify
    The lawyer will judge if a stipulation is sufficient making the expert’s presence in court unnecessary based on three central considerations:

    1. The lawyer must consider the factual strength of the client’s case. A case that involves two female USC children who have medical issues and whose parents emigrated from a country where female genital mutilation occurs is clearly strong. In contrast, cases where there are no children, for example, will be much more difficult to support and the expert’s presence should be considered.

    2. Judges are human and have predilections and biases. While some judges appear to openly consider all relevant material other judges seem to have their minds made up from the outset. The latter judges must have their presumptions challenged through open discourse with the mitigation expert.

    3. The applicable legal standard in the case, such as “exceptional and extremely unusual hardship,” will have an important influence. This standard is probably the highest legal standard in jurisprudence and can be quite difficult to overcome, such that the testimony of the mitigation expert may be necessary.

    Case Example. I was asked to testify in an immigration case in which the judge made it clear that the respondent’s case could not overcome the legal standard of exceptional and extremely unusual hardship. The judge also suggested that there was no point in continuing with witnesses or evidence. When the respondent’s lawyer indicated that she wanted the mitigation expert to testify about extreme hardships for the children the judge took her copy of the report and, flipping through it, said that the report did not mention hardship issues and focused almost exclusively on the respondent’s personal history. The judge had neglected to read the second half of the report that focused exclusively on the respondent’s children and hardship issues to the family—the main reason that the report was prepared. When I took the stand the judge inquired about hardship issues for about an hour and it appeared that much of what I was explaining was indeed new to her and somewhat persuasive.

    Stipulations have several advantages and shortfalls. The lawyer should be aware when to advocate for stipulations and when the expert should be available for testimony—either live or telephonically.

    About The Author

    Dr. Mark S. Silver is a New York Licensed Clinical Social Worker who has a combined Specialist Bachelor of Arts degree in History and Political Science from the University of Toronto and a Master of Arts degree in Political Science from the University of Western Ontario. He also has completedd a Master of Social Work at the University of Toronto, a post-graduate Certificate Program in Family Therapy at Smith College and a Doctor of Psychology at the Southern California University for Professional Studies. In addition, he holds a Juris Doctor fromt he City University of New York, Queens College and is admitted to practice law in New York. For the past decade, Mark has worked as a consultant for law firms throughout the United States, conducting psychosocial evaluations and writing formal reports in forensic and mitigation immigration and criminal cases.

    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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