Testimony by Proxy: The Use of Expert Testimony to Provide Defendant Testimony without Cross-Examination

Abstract

Much has been written about forensic psychiatry experts skewing their opinions and their testimony to suit the attorneys who retain them. In this article the author discusses a less common but even more problematic use of experts by attorneys: using them to present their clients' or victims' testimony in court without their having to undergo cross-examination. Courts have disagreed over the admissibility of such testimony; a number have permitted victim testimony by proxy (particularly in the case of child victims of sexual abuse, to protect them from retraumatization). Fewer have allowed criminal defendants' testimony to be presented through experts. The legal issue is whether the medical records exception to the hearsay rule in the federal and state rules of evidence permits the testimony; those courts that have barred such testimony have held that the purpose of the testimony was not to explain diagnosis or legal conclusions, but simply to avoid cross-examination. Cases illustrating this issue are discussed. Much of the discussion involves Colorado cases because, according to a computer search of the relevant case law, the issue has been litigated there more often than in other states.