Use of Technical Experts – Part 2
As trial approaches, the defense team should consider limiting, to the extent it can, expert opinions and testimony in the Government’s case. These areas are: 1) the tendency of the Government inspectors and investigators, as well as their technical people, to refer to substances as “hazardous wastes;” 2) the criminal investigators attributing “knowing” or “willful” states-of-mind to your clients as a result of their investigation and raid at the facility; and 3) the various definitions outlined in the statutes that might be construed or misconstrued by Government witnesses.
The Government witnesses (expert and lay) can and do attempt to offer opinions and conclusions of law even though they were not trained in the law, but were rather trained as criminal investigators and enforcement agents. It is highly improper, as well as prejudicial, to permit the investigators and agents to render opinions regarding matters of law, such as whether a substance qualified as “hazardous” under the regulations. To allow such testimony injects an ultimate opinion of law into the case; something that is within the sole province of the Court. To address these concerns, the file a motion in limine to keep unqualified persons from expressing opinions of law. The case just might turn on the interpretation placed upon technical and legalistic regulations promulgated under environmental statutes. Such terms as “knowingly,” “willfully,” “hazardous,” “material,” “treatment facility” and “solid waste” have specialized meanings under the law. The motion in limine is a good way to educate the Court and, if granted, limit the use of the certain words (such as “hazardous”) while testifying and rendering opinions. It may seem like a small victory at the time; however, obtaining a favorable ruling on the motion in limine may be a key ruling preventing the Government from portraying your clients as purveyors of hazardous materials without regard to the environmental hazards associated with the handling of those materials.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
WDJiii