This case involves a man who was on trial for three counts of sexual assault and one count of aggravated assault. The State had hired a sexual assault nurse examiner who had examined the victim and testified that there was some physical evidence that the victim had been sexually assaulted. The man hired a legal nurse consultant who reviewed the victim’s hospital records before trial and also reviewed a lab report containing the sexual assault nurse examiner’s findings. The legal nurse consultant intended to testify that since there was no DNA evidence or physical evidence linking the man directly to the alleged rape, no sexual assault had occurred. The legal nurse consultant stated that her opinion was based on her general nursing experience and that she had not written about, and was not aware of, any published articles supporting her theory about the case. The State challenged the legal nurse consultant’s credentials and methodology. The judge in the case excluded the legal nurse consultant’s testimony. The man was later convicted of one count of sexual assault and of aggravated sexual assault. The legal nurse consultant had participated previously in twenty-five to thirty cases, both criminal and civil. The legal nurse consultant had also testified three times previously in civil trials and once in a criminal trial involving sexual assault and DNA evidence. The man appealed his convictions on the grounds that the testimony of the legal nurse consultant had been improperly excluded.
Question(s) For Expert Witness
1. Can a legal nurse consultant be held qualified to testify about an alleged sexual assault in a criminal case?
Expert Witness Response
Generally, a legal nurse consultant can testify in a criminal trial if scientific, specialized, or technical knowledge will assist the judge in understanding the evidence or determining a fact at issue. If a legal nurse consultant has the requisite knowledge, skill, training, and education, they may generally testify in the form of an opinion or otherwise in a criminal trial. Under the rules of evidence of most states, a legal nurse consultant is deemed qualified to testify in a criminal trial if their testimony will make the existence of any fact that is of consequence to the verdict more probable or less probable than it would be without the evidence. For a legal nurse consultant to testify in a criminal trial using scientific evidence the consultant must show that (1) the scientific theory is valid; (b) that the technique applying the theory is valid; and (c) that the technique has been properly applied at trial. In this case, the testimony of the legal nurse consultant was probably excluded properly because she testified that it was her opinion that if there was no DNA evidence, there was no sexual assault committed. This testimony was probably excluded properly by the judge because the legal nurse consultant provided no proof (i.e. published articles or other professional writings) that proved that the underlying scientific theory was valid. In order for the legal nurse consultant’s testimony to have been admissible in this case, she probably would have had to submit evidence of published articles on the same theory or present evidence that the theory had been widely used among experts in the field of sexual assault.
About the author
Inna Kraner, J.D.
Inna Kraner, J.D., is currently Associate Director of Development - William S. Richardson School of Law. She worked in client development at Proskauer Rose LLP, and held various marketing positions at Skadden, Arps, Slate, Meagher & Flom LLP. She has experience litigating corporate, industrial, financial, regulatory, and controversy matters. Inna graduated with a J.D. from Boston College Law School and a B.A. from Brandeis University.
