6.Dawn Hughes — Cross; Hearing on Expert-Bias Training Document (Part 2)
603 linesDAWN HUGHES: Yes.
DAWN HUGHES: Yes.
MR. BACH: We talked about how in both of those practices you listen carefully to the individual pieces of information that you are gathering over time, correct?
DAWN HUGHES: Yes.
DAWN HUGHES: Yes.
MR. BACH: And you rely on those tests because when you're doing forensic work you want to get as much information, as many data points as you can, correct?
DAWN HUGHES: Yes.
MR. BACH: In fact, when you do forensic work in a case-specific way, the last thing that you want to do is be blind to the facts, correct?
DAWN HUGHES: When I'm conducting the evaluations, sure.
DAWN HUGHES: I don't know if I want to live in them, but I certainly review everything copiously as I can.
MR. BACH: You agree that a psychologist cannot give an opinion on the psychological characteristics of an individual when that psychologist has not assessed that person, correct?
DAWN HUGHES: I mean, there is some controversy in the field about that. In our ethical codes some people we say can't diagnose, but sometimes, as a forensic psychologist, if that individual is made unavailable, we can make some conclusions based on a record review.
MR. BACH: Dr. Hughes, do you remember testifying in June 2019 across the Brooklyn Bridge in the Eastern District of New York in another matter?
DAWN HUGHES: Not particularly, but, yes, I know I testified.
DAWN HUGHES: Sure.
MR. BACH: "QUESTION: You agree that a psychologist such as yourself cannot give an opinion on the psychological characteristics of an individual when he or she has not assessed that person? "A. That's generally a fair statement." Were you asked that question and did you give that answer?
DAWN HUGHES: I don't have the transcript. I'm assuming that you have it and I did say that.
DAWN HUGHES: I think the answer is the same as what I'm telling you.
MR. BACH: I think you testified on direct examination that you participate in an organization known as the American Psychological Association, is that correct?
DAWN HUGHES: That's correct.
MR. BACH: And you would agree that the American Psychological Association states, as a matter of policy, that a psychologist should only render an opinion of an individual after an examination of the individual adequate to support the statement or conclusion, correct?
DAWN HUGHES: And what are you reading from?
MS. STEINER: Your Honor, can we confirm that is only for the parties and the witness?
MR. BACH: Dr. Hughes, any time I mention something that draws on your memory, and you don't remember it, let me know, and I'll show it to you as best as I can.
DAWN HUGHES: Yeah. I don't know what your question was.
THE COURT: Let's take the document down, and you can ask a question.
THE COURT: Let's take the document down, and then you can ask your question.
THE COURT: Now proceed.
MR. BACH: Dr. Hughes, you would agree that the American Psychological Association, which you are a part of, states that a psychologist should only render an opinion of an individual after an examination of the individual adequate to support the statement or conclusion?
DAWN HUGHES: I agree with that. There are other guidelines, but that is part of one that I agree with.
MR. BACH: In this case, let's -- we talked about your clinical practice, we talked about your forensic practice. Now let's talk about your work in this case. In this case you did not do a comprehensive forensic evaluation, correct?
DAWN HUGHES: I was not asked to do that. I was asked to give general testimony to the ladies and gentlemen of the jury.
MR. BACH: Understood. When you say general testimony, that means you did not meet a single witness, correct?
DAWN HUGHES: That's correct.
DAWN HUGHES: That's correct.
MR. BACH: This is different from your forensic practice, it's different from your clinical practice, where you listen carefully to details, correct?
DAWN HUGHES: It's a different role that I do as a forensic psychologist, yes.
MR. BACH: You know there is a court reporter here who takes down what people say during the trial every day, correct?
DAWN HUGHES: Yes.
DAWN HUGHES: I did not.
DAWN HUGHES: I did not.
DAWN HUGHES: I did not.
DAWN HUGHES: I did not.
MR. BACH: To cut to the chase, you have not gathered detailed information about the specific facts of this case, correct?
DAWN HUGHES: Because I'm not rendering any opinions about a specific individual.
MR. BACH: Let's be clear about that. Point 1, is, you have not done any work to gather detailed information about the specific facts of this case, correct?
DAWN HUGHES: Correct. That is not my role.
MR. BACH: And you have not gathered detailed information about any of the women who testified in this case, correct?
DAWN HUGHES: Correct.
DAWN HUGHES: I have seen a headline. I don't know who that is other than that.
DAWN HUGHES: I do not.
DAWN HUGHES: I do not.
DAWN HUGHES: I do not.
DAWN HUGHES: That's correct.
DAWN HUGHES: That's correct.
MR. BACH: And that's because you're just here -- let's just be clear about this. You're just here providing general background information, correct?
DAWN HUGHES: Right. It's called subject matter testimony on my area of expertise. That's correct.
MS. STEINER: Objection. Argumentative.
THE COURT: Sustained.
DAWN HUGHES: That's correct.
MR. BACH: And you understand that while you're here giving subject matter or general background evidence, that while you're doing that you understand from all of your experience that the jury's job is to consider the specific facts and the evidence in this case?
MS. STEINER: Objection.
THE COURT: Sustained.
MR. BACH: Now, I want to make sure you and I agree on terms. I called it general background testimony. But what was your preferred term?
DAWN HUGHES: General subject matter testimony.
MR. BACH: You have given more or less the same general subject matter testimony that you gave in this court, you have given it in open courts in other cases, correct?
DAWN HUGHES: Because this is my area of expertise.
DAWN HUGHES: Yes, that's correct.
MR. BACH: So in other courtrooms you have come in, you have taken the witness stand, you have talked about memory, right?
DAWN HUGHES: Yes.
DAWN HUGHES: Yes.
DAWN HUGHES: Correct.
DAWN HUGHES: Probably.
MR. BACH: And you have been hired by a number of different prosecutors' offices to do that, correct?
DAWN HUGHES: Correct.
DAWN HUGHES: Correct.
DAWN HUGHES: That's correct.
MR. BACH: You have done it in state cases brought by state ADAs in a number of domestic violence cases, correct?
DAWN HUGHES: That's correct.
MR. BACH: You have given this same subject matter or general background testimony even though in all of those cases none of them involved the same people, correct?
DAWN HUGHES: Correct.
DAWN HUGHES: Correct.
DAWN HUGHES: I think it's key to the jury understanding the issues that they are trying to understand.
DAWN HUGHES: Yes.
MR. BACH: Because you have given this general testimony a number of times now -- over how many years have you been giving this same general testimony?
DAWN HUGHES: I don't know if I'm giving the same general testimony, but I was first qualified in 1999 in Kings County.
DAWN HUGHES: Correct.
MR. BACH: And you're talking about lessons that you have learned from your own experience, correct?
DAWN HUGHES: Correct.
MR. BACH: By the way, that experience, the experience that you have in your own private practice, that's confidential, correct?
DAWN HUGHES: About the individual patients, of course.
DAWN HUGHES: No, I have not.
MR. BACH: So you haven't shared information about the dates of your experience with the prosecutors, right?
DAWN HUGHES: Of my patients?
DAWN HUGHES: No.
DAWN HUGHES: Of course not.
DAWN HUGHES: No.
MR. BACH: When you say that something -- you know something from your experience, there is no way that I can do any kind of forensic crosscheck or any kind of data point to see whether what you're saying -- someone might interpret what your patients have said to you in slightly different ways, correct?
DAWN HUGHES: Possibly.
MR. BACH: And given this summary of the literature a number of times, there is no fact, there is no individual piece of data from this case that I could present to you that would lead you to say, oh, you know what, all the literature is different than I thought, right?
DAWN HUGHES: Correct.
MR. BACH: I mean, I could sit here and throw facts at you all day, but you are just here to say what your understanding of the literature is, correct?
DAWN HUGHES: And the totality of my knowledge, education, training, and experience as well.
MR. BACH: Right. I could tell you about Cassie, I could tell you about the evidence in this case and you'd say, well, I know my experience, correct?
DAWN HUGHES: I don't understand that question.
MR. BACH: What I'm trying -- I may be already there, but you're here to talk about what you say is your experience and what you say the literature can be distilled as saying, but you are not here to say what any particular witness' state of mind is, correct?
DAWN HUGHES: That's correct.
MR. BACH: By the way, you talked about coping and you said there was informal coping and formal coping, correct?
DAWN HUGHES: Strategies, yes.
DAWN HUGHES: Yes.
DAWN HUGHES: Yes.
MR. BACH: And you talked about -- I think in response to the prosecutor's questions you distinguished between formal coping mechanisms and informal coping mechanisms, right?
DAWN HUGHES: Yes.
MR. BACH: And when you talked about formal mechanisms, you talked about going to the police or the authorities, correct?
DAWN HUGHES: As one, yes.
MR. BACH: And when you talked about informal coping mechanisms, you talked about going to family and friends, right?
DAWN HUGHES: Yes.
DAWN HUGHES: Correct.
MS. STEINER: Objection.
THE COURT: It's overruled.
DAWN HUGHES: Can you read back the question?
DAWN HUGHES: Correct.
DAWN HUGHES: I would say they go to civil lawyers to right a wrong.
MR. BACH: But some people go to civil lawyers because they want to make a little money based on a claim?
MS. STEINER: Objection.
THE COURT: Let's move on.
MR. BACH: When you do your forensic work, the work that you do in the -- when you do a comprehensive forensic evaluation, that's often in the context of a civil case brought by a civil plaintiff's lawyer, correct?
DAWN HUGHES: I do both civil and criminal work.
MR. BACH: In the civil context you do forensic work where there are money damages at stake, right?
DAWN HUGHES: Correct.
MR. BACH: And that's where you engage in testing to look for the possibility of malingering, right?
DAWN HUGHES: Yes.
MR. BACH: That's where you approach the person you're interviewing with a healthy skepticism, correct?
DAWN HUGHES: Yes.
DAWN HUGHES: Yes.
DAWN HUGHES: Yes.
MR. BACH: And you were explaining why people may have hazy memories, why they might recall things in fragments over a period of time, right?
DAWN HUGHES: I don't know if I said they recall things in fragments over the time, but their memory can be fragmented.
MR. BACH: Let me ask you this hypothetical. Let's say that there is time one. Time one, someone has a hazy memory. They recall a few things. They do the best they can at that time, but they recall a few things. Then time two, after they have hired a civil plaintiff's lawyer, and they have made a claim for money damages, they now recall details that they didn't recall before.
MS. STEINER: Objection.
THE COURT: Hold on for one second. I am going to sustain the objection. You can try to rephrase and ask the question a different way.
DAWN HUGHES: Yes.
MR. BACH: There might be all kinds of reasons why people happen to have new memories after consulting a lawyer, correct?
MS. STEINER: Objection.
THE COURT: That's sustained.
DAWN HUGHES: Yes.
MR. BACH: And you said the neurobiology of stress can explain why people's memories might change over time, correct?
DAWN HUGHES: I don't think I said they may change over time. They certainly can be recalled over time based on context and cues. So you can have different time periods where those contexts and cues evoke a memory.
DAWN HUGHES: They do.
MR. BACH: And a memory issue, a lapse of memory, a forgotten detail, that can be the result of prevarication, correct?
DAWN HUGHES: Prevarication did you say?
DAWN HUGHES: As a result of lying?
DAWN HUGHES: I guess anything is possible.
THE COURT: We are seeing it up here. Let's take it down.
MR. BACH: You understand that there are times when people's memory issues can be related to prevarication, correct?
DAWN HUGHES: Yes.
MR. BACH: That's a fancy way of saying there are circumstances in which people may shade the truth, correct?
DAWN HUGHES: Correct.
DAWN HUGHES: Correct.
DAWN HUGHES: Yes.
MR. BACH: Now, you testified on direct that you have been retained many times as an expert, correct?
DAWN HUGHES: Yes.
DAWN HUGHES: Correct.
MR. BACH: So much so that you've become comfortable training other experts to testify in court, correct?
DAWN HUGHES: I don't know if I train experts to testify in court, but we certainly train mental health professionals and lawyers and judges about the intersection between trauma and the courtroom.
DAWN HUGHES: I think I did one training years ago on battered women for the clearing house on how to do that, but most of the time the trainings are how to conduct comprehensive forensic assessments.
MR. BACH: But you have given people tips on how to prepare and present -- prepare for and present themselves in a courtroom setting, right?
DAWN HUGHES: Yes. Those were tips for battered women advocates who don't have that level of training and sometimes have to come into court.
MR. BACH: And you gave tips on how to answer questions both on direct examination and on cross-examination, correct?
DAWN HUGHES: I don't remember the presentation, but probably.
MR. BACH: I think what you're referring to, just to be clear, is a webinar you gave in May 2015 entitled expert witness testimony in cases involving domestic violence, correct?
DAWN HUGHES: And who was that by?
DAWN HUGHES: For the National Clearing House for the Defense of Battered Women.
DAWN HUGHES: Yeah.
MR. BACH: Ten years ago you were training other experts how to give testimony in domestic violence cases, correct?
DAWN HUGHES: Correct.
MS. STEINER: Your Honor, I haven't seen this exhibit.
THE COURT: Do you have a copy for the government?
THE COURT: Let's have a brief sidebar.
(Continued on next page)
(At sidebar)
THE COURT: How are you using this document?
MR. BACH: She just mentioned it. I'm using it to show her bias to the orientation. I'm not going to spend that much time with it, but I am going to go through some things to show that she has a certain approach and agenda in these types of cases and that she is essentially not just a clinical psychologist, a forensic psychologist that she testified, but she has become a professional expert.
THE COURT: I understand the relevance, but you can't put it in front of her and try to get it into evidence unless there is a basis for doing so. That's what I am asking. What is the basis --
MR. BACH: The basis is bias, and it goes to the orientation and bias of a witness. It's her background. There are other pieces that I want to bring out. For instance, it talks about coping in here, which is something that she has testified to substantively, so I want to talk to her about coping. I am not going to go over every page or spend a lot of time on it, but I think it's relevant for the jury to see. She is not coming here just as a professional psychologist who is learned in the discipline, but she is coming here as someone who has honed herself to be an expert and that --
THE COURT: I understand the relevance, believe me. I understand why you're doing this. But if you're going to attempt to impeach the witness with statements from this document, then you would go through the steps for doing that. If there is a basis, then you could seek admission as a prior inconsistent statement. However, you have got to go through those steps.
MR. BACH: I am not offering it as a prior inconsistent statement, at least not yet. I'm offering it as impeachment in a different sense, that it shows bias. It's not that she has made a statement that's false that I'm impeaching. It's a bias to show her orientation. So, respectfully, I don't think that kind of evidentiary foundation is necessary for the admissibility of this.
THE COURT: Ms. Steiner.
MS. STEINER: Your Honor, I think the Court has a deadline for exhibits that we are seeking to have admitted for both parties for a reason. We have never reviewed this before. I have no idea what's in it or whether it is relevant. I would ask that the Court and the government have the ability to review the document. The government doesn't object, like your Honor is suggesting, to having him question the witness and pursue a line of impeachment potentially about bias. But introducing the document without us even having reviewed it, I have no doubt, just the things that you are describing --
MR. BACH: If you want a couple of minutes, it's on her resumé that you provided to us. It's a presentation in her resumé that's right on point in this case. There is nothing -- it won't take you very long to review this. I don't mind.
THE COURT: I'm happy to take a recess. I guess you would agree that there isn't an issue in terms of the Court's order from the weekend because this is a document that's being used for impeachment purposes. Is that fair?
MS. STEINER: If it is only used for impeachment purposes.
THE COURT: Mr. Bach has said that. You are not using it for any kind of affirmative purpose. It's purely for impeachment.
MS. COMEY: If I may, your Honor, I have had a chance to look through this. My concern is, I think if your Honor actually reviews it, you will see that the face of the document, as far as I can tell, shows no indications of bias along the lines that counsel just articulated. I think it would be helpful for your Honor to take a look because, in reading through this quickly, I don't see any indications of bias.
MR. BACH: I'll lay a foundation, but the bias IS that you presented her as someone who has come into the courtroom as a professor at Cornell Weill, as someone who has clinical practice, as someone who has a forensic practice. I don't think that's a complete portrayal of the kind of background and energy and motivation that she has here. I think this puts the way that you characterize her in a different light that is bias and motive, and everything bias is always relevant.
MS. COMEY: If I may respond. I think that Ms. Steiner also elicited how many times she has testified, what kinds of cases she has testified in, and how many times she has been qualified as an expert. I'll note that Ms. Steiner, I think, rushed through that part of her direct examination because we had a sidebar during which we were told to move on past the qualifications aspect. Part of this is that her direct was short-circuited. We did not mean to suggest that there was any sort of bias here or to create a setup.
THE COURT: I am going to ask the jury to take a brief recess, and then we can address this.
MS. STEINER: Thank you, your Honor.
(Continued on next page)
(In open court)
THE COURT: Members of the jury, we have a matter that we need to address, and it may take a few minutes. Rather than you sitting here with that white noise going, which I'm sure is really annoying, I'm going to allow you to retire to the jury room for a few minutes and then we'll bring you back. All rise.
(Continued on next page)
(Jury not present)
THE COURT: Dr. Hughes, I'm going to ask you to step out and we'll call you back in a few minutes.
(Witness not present)
THE COURT: Give me one moment.
(Pause)
THE COURT: So first issue, Ms. Shapiro, is this the document that was emailed to the Court yesterday?
MS. SHAPIRO: Yes.
THE COURT: Yesterday, Ms. Shapiro sent an email on an ex parte basis to the Court requesting advice about whether to disclose certain information, and this was the document. The Court promptly responded that the Court is not permitted to give either side advice about the rules, and the Court referred the defense to its order from this weekend and the discussions last week. So that was just to make sure that everyone's on the same page here. Now, I'm reviewing this document. What should I look at here?
MS. COMEY: Your Honor, from the government's perspective, this just shows neutral bullet points about what any witness, especially any expert witness might think about when preparing to testify. We don't see that it shows this witness has an agenda, a bias, has a favor, favors one side or the other, one party or the other. So we don't see any basis to believe that this document would be admissible to prove bias.
THE COURT: So the government doesn't object to the form of this document. It's just on a Rule 403 basis, the government doesn't believe that -- well, you've made the objection. Mr. Bach, can you just walk me through how you're getting this in.
MR. BACH: They view this as a neutral document and not presented as a 403 argument in terms of any prejudice. If they view it as a neutral document, great. What this is is a document in which she's received -- an organization that's received funding from the Department of Justice Office on Violence Against Women. She testified a moment ago that this was a presentation for battered women advocates. She had testified previously that what she does is provides training for legal professionals and experts. She's now described it as for battered women advocates. Those are people who advocate for a perspective. And she also answered my questions by saying initially that she doesn't do this kind of work, that she doesn't prepare people to appear in court.
So without going into the details of my cross, I think I'm going to spend less than five minutes on this to let people know that she's in the business, contrary to her testimony on direct, not simply of providing clinical services, not simply providing forensic evaluations, but that she's really someone who participates in a different professional world and in a different professional category, which she has over the last number of years become someone who makes most of her money as a professional witness. And she's got kind of a cottage industry in this kind of general testimony. And I think this is very relevant to our defense, it puts in perspective who she is. With experts, it's very dangerous because they come in with an aura of authority about them based on the discipline. She testified at length about her training in New Haven, her Ph.D.s, and suggesting that her knowledge comes from the world of academia, the world of psychological textbooks, from her own experience, but there's a perspective that forms her testimony that the defense is entitled -- the defense is obviously entitled to present a defense, but --
THE COURT: Ms. Comey, if I'm understanding you correctly, you have no issue with Mr. Bach asking questions about this document.
MS. COMEY: 100 percent, your Honor. Everything that Mr. Bach just said is, depending how the questions are formed, totally appropriate cross-examination. The issue is presenting this document to the jury has very minimal probative value because, among other reasons, it's a neutral document on its face, it doesn't show bias, and it has an extreme risk of confusing the issues. This would be a very confusing document to put in front of the jury and it would lead us down a sideshow where, on redirect, we would feel obligated to go through it and have her explain essentially this training that she gave so the jury's not confused about what's in this document. It's a sideshow that's not necessary for Mr. Bach to make the points that he wants to. And if Dr. Hughes doesn't remember any of the details of the presentation that Mr. Bach wants to ask about, he can certainly pull a page up to refresh her recollection so that she knows what he's talking about. The point is this should not be shown to the jury.
MR. BACH: Judge, the rules for admissibility are broad, and the ability of a defendant to present a defense should not be curtailed.
THE COURT: Right. But you think Ms. Comey's point is anything you need to get, you could get through testimony about the fact that a training was given. The document itself, now that I'm reviewing it, doesn't say really anything about anything. I mean, it provides information about how to go to court, meaning minding your personal appearance, conduct in the courthouse, time management, personal safety. In general terms, it talks about demeanor, listening to questions, nature of expert testimony, not a conversation, know your audience, et cetera. It doesn't have anything in here about being biased or not giving truthful testimony, anything of that kind. I'm reviewing the whole document. But I think that you've asked Dr. Hughes if she had provided any trainings of this nature, and she indicated she had given a training to advocates. And so I think it's fair and I think Ms.
Comey agrees that she can be shown the document to refresh her recollection, that she in fact gave a training to expert witnesses, and you can ask questions along those lines. I'm not seeing a basis under Rule 403, as I now understand the objection, for this to go into evidence, which is a separate issue. So I'm going to sustain the objection to the admission of the document. However, you can ask questions about it, you can refresh the witness's recollection using the document, and if the witness denies any of the statements that are in this document, can you potentially introduce the document at that point or at least the portion of the document that contains the inconsistent statement. Now, Ms. Comey, you had mentioned something about the qualification process and that, in your view, that it had been short-circuited, which certainly was not the Court's intent.
Just to make sure we're on the same page, the objection and the reason why the Court had asked the defense whether there was an objection to qualification is that in the process of providing her credentials, Dr. Hughes began to provide her substantive opinions in the case, and that is perhaps inadvertent, perhaps Dr. Hughes did not heed her own advice not to have a conversation on the stand, which came up from time to time. That was the reason for the objection, because instead of just outlining her qualifications, she began to provide her substantive opinions, some of which the defense viewed was outside of the bounds of the Court's prior ruling. That was the issue.
MS. COMEY: Thank you, your Honor.
THE COURT: I will permit, however, on redirect examination if there is a missing component that would go to the Rule 702 objection that was raised after the direct examination and you feel like there's a gap that you need to fill, then can you do that and Mr. Bach can address it on recross so we have a full record when the Court considers that application.
MS. COMEY: Thank you so much, your Honor. And I apologize for misunderstanding the sidebar earlier.
THE COURT: That's what happens when things come up in the heat of the moment.
MS. COMEY: Thank you, Judge.
THE COURT: Let's have Dr. Hughes back and then we'll have our jury back.
(Witness present)
(Continued on next page)
(Jury present)
THE COURT: Mr. Bach, you may proceed.
MR. BACH: Dr. Hughes, before the break, we were talking about a presentation you gave in 2015 to advocates for battered women, correct?
DAWN HUGHES: Correct.
DAWN HUGHES: I didn't make it available. I believe the organization made it available.
MR. BACH: And that was an organization that was funded by the U.S. Department of Justice, correct?
DAWN HUGHES: I believe they received a grant from the Violence Against Women Act.
MR. BACH: And you gave this presentation, and it was called Expert Witness Testimony in Cases Involving Domestic Violence, correct?
DAWN HUGHES: Yes.
MR. BACH: So you were giving an audience some pointers on expert appearances and expert witness testimony in cases involving domestic violence, correct?
DAWN HUGHES: Correct.
MR. BACH: And you were essentially training advocates for battered women to do what you do, correct?
DAWN HUGHES: Not to do what I do, but they don't have the resources available that I do across the country, but to have certain skills and strategies that when they have to go into court, how that might be helpful to them.
DAWN HUGHES: Not on this particular presentation, no.
MR. BACH: You weren't telling them how to analyze whether a person had been battered or not or had a trauma bond or not, right?
DAWN HUGHES: Correct.
DAWN HUGHES: I don't know if that was the only thing that the presentation talked about. I haven't seen it in a long time. But certainly how you present in court and how you can convey certain information to a judge or jury.
DAWN HUGHES: I haven't seen it in a long time, so I don't recall.
MR. BACH: Let me see if I can summarize them for you and see if this refreshes your recollection.
MS. STEINER: Objection.
THE COURT: Grounds.
MS. STEINER: Improper refreshing, your Honor. He can put up the document if he wants to refresh the witness.
THE COURT: That's overruled. You may proceed, Mr. Bach.
MR. BACH: There were four parts. Part one, advance preparation for testimony. Part two, preparing for court. Part 3, conduct on the stand, the process.
THE COURT: Let's stop there and you can ask the witness if her memory is at all refreshed.
DAWN HUGHES: I mean, not really. I'd like to see it. I trust you, but I did a lot of presentations, so I can't say I recall those four parts.
MS. STEINER: Your Honor, can I approach the witness and provide the hard copy?
THE COURT: You may.
MS. STEINER: Thank you.
DAWN HUGHES: Yes, I'm ready. Thank you.
DAWN HUGHES: Yes.
DAWN HUGHES: Yes.
DAWN HUGHES: Correct.
MR. BACH: And advice on how to answer questions that a defense attorney might ask on cross, correct?
DAWN HUGHES: Defense attorney or the prosecutor?
DAWN HUGHES: Yes.
DAWN HUGHES: Correct.
MR. BACH: On page -- I don't know what page number this is. I think it's 500.6, there's a slide about preparing for court, correct?
DAWN HUGHES: I don't have numbers on mine, so --
DAWN HUGHES: Yup, I have it.
DAWN HUGHES: Yes.
MR. BACH: You're helping the experts develop coping strategies for dealing with their nerves and their personal needs before they go to court, right?
DAWN HUGHES: Yes.
MR. BACH: And that reminds us that coping is just a broad term again for things that people do, correct?
DAWN HUGHES: It's a psychological term for how people can deal with, you know, different types of situations, some more extreme than others.
DAWN HUGHES: Yes.
DAWN HUGHES: Yes.
DAWN HUGHES: Yes.
MR. BACH: And you're telling them -- there's a page called conduct on the stand, about dealing with objections when they come up in court, right?
DAWN HUGHES: Yes.
MR. BACH: And dealing with questions about, would this change your mind or would that change your mind, correct?
DAWN HUGHES: Yes.
MR. BACH: And you and Ms. Dutton are talking to an audience of battered women advocates to tell them how they can advocate in a courtroom based on your tips and advice, correct?
DAWN HUGHES: Yes. And it would be Dr. Dutton, but yes.
MR. BACH: Dr. Dutton. I'm sorry. And one piece of advice you have, this is on the page entitled Conduct on the Stand — The Process is know your audience, correct?
DAWN HUGHES: Yes.
DAWN HUGHES: And sometimes it's a judge. Sometimes it's a bench trial.
MR. BACH: You prepared a Power Point, you and Dr. Dutton prepared a Power Point for this presentation, correct?
DAWN HUGHES: Yes.
MR. BACH: And the presentation itself consisted of advice and recommendations that you and she gave to the battered women advocates over a period of about 90 minutes, correct?
DAWN HUGHES: I don't recall how long it was, but if you tell me, I agree with that.
MR. BACH: You told us you have a clinical practice, you do forensic work, but today most of your income comes from working on court-related matters as an expert, correct?
DAWN HUGHES: Today meaning Wednesday?
DAWN HUGHES: No, that's not correct.
DAWN HUGHES: That's not correct.
DAWN HUGHES: Maybe about 60 percent comes from the courtroom work and 40 percent from the other work.
DAWN HUGHES: I don't know how you qualified most. More or less.
DAWN HUGHES: That's correct.
DAWN HUGHES: It's been that rate for a couple years, I believe.
MR. BACH: And you've done that work for the federal prosecutors here and in Brooklyn for lower rates, correct?
DAWN HUGHES: I don't remember.
MR. BACH: In other words, your services aren't in enough demand that you can raise your rate, right?
DAWN HUGHES: I raise my rate commensurate with what other experts at my level of expertise are getting.
MR. BACH: At this time in your career, when approximately 60 percent of your income comes from court-related expert work, you're no longer riding and publishing scholarly articles in the field of psychology, correct?
DAWN HUGHES: And I wasn't doing that for most of my career. I'm a clinician, I'm a practitioner, that wasn't my role.
MR. BACH: But early in your career, I like to call it the 20th century, but back in the 19s, you actually wrote some articles about combat veterans and how children experience trauma, you wrote some articles in academic books and peer-reviewed articles, correct?
DAWN HUGHES: Right. And that was during graduate school when that's what you're supposed to do and that's what you do.
DAWN HUGHES: Correct. I'm a clinician and practitioner, that's correct.
MR. BACH: And you've talked about the literature and the data, but in the last 25 years, you haven't really been a contributor to that literature and that data, correct?
DAWN HUGHES: I've been contributor to the professional organizations and the training, but not in published papers, that's correct.
MR. BACH: And you said you teach at -- is it Weill? Right. That's not a full-time faculty position, right?
DAWN HUGHES: No. Like I said, that's a voluntary faculty position.
DAWN HUGHES: That's correct.
MR. BACH: And you're not expected or required to do any writing or research as part of that job, correct?
DAWN HUGHES: That's correct.
MR. BACH: And the Cornell website describes you not as ordinary faculty, but as a volunteer faculty member, correct?
DAWN HUGHES: It's called a voluntary faculty member.
DAWN HUGHES: I haven't seen the handbook, but I assume that's true.
DAWN HUGHES: I do not.
DAWN HUGHES: The this being?
MR. BACH: Good point. Let me rephrase the question. You've been a psychologist since about 1998, correct?
DAWN HUGHES: Correct.
MR. BACH: And you've been doing court-related work to a different degree, but you've been doing court-related work since 1998, correct?
DAWN HUGHES: Correct.
MR. BACH: And you've been retained hundreds of times as an expert in relation to court-related work, correct?
DAWN HUGHES: Correct.
MR. BACH: Now, over all of those years and all of those retentions as an expert, isn't it a fact that you have never come into court, taken the witness stand, and testified in the defense of a man accused of a sex crime?
DAWN HUGHES: That's correct. I don't evaluate offenders.
THE COURT: You may.
(Pause)
MR. BACH: Ms. Hughes, before testifying in this case, you had a number of meetings with the prosecutors, correct?
DAWN HUGHES: That's correct.
MR. BACH: And a number of those meetings were devoted to preparing your testimony in this case, correct?
DAWN HUGHES: That's correct.
DAWN HUGHES: Correct.
DAWN HUGHES: I don't have my log, I don't know, but that sounds about right.
DAWN HUGHES: Correct.
DAWN HUGHES: Correct.
DAWN HUGHES: Correct.
DAWN HUGHES: That's correct.
MR. BACH: And you had all of these meetings, even though you didn't learn the specific facts of this case, correct?
DAWN HUGHES: Correct.
MR. BACH: And even though you're providing general testimony that you provided in a number of other cases before, correct?
DAWN HUGHES: Correct.
MR. BACH: So during these six meetings, did the prosecutors tell you -- they wouldn't tell you particular facts; is that what you're saying?
DAWN HUGHES: I don't understand your question.
MR. BACH: Let me ask you this, some of the meetings you had with the prosecutors in this case were after the defense delivered its opening statement, correct?
DAWN HUGHES: I believe so. The trial had already begun.
MR. BACH: So some of the meetings you had were after the defense had disclosed its theory of the case in its opening statement, correct?
DAWN HUGHES: Correct.
MR. BACH: And some of the meetings you had were after certain key witnesses had been put on the stand and asked questions by both sides, correct?
DAWN HUGHES: I believe so.
DAWN HUGHES: Correct.
MR. BACH: During the meetings, is it your testimony that they didn't tell you the themes of the defense opening statement?
DAWN HUGHES: They did not talk to me about the specifics of this case.
MR. BACH: They didn't talk to you about specifics, but let me try and understand what that means. Did they tell you there are particular issues they think you should cover?
DAWN HUGHES: No.
MS. STEINER: Your Honor, may we have a sidebar.
THE COURT: You may.
(At the sidebar)
THE COURT: Now, there hasn't been an objection, Mr. Bach, but as you know, anytime an expert witness testifies, they of course have had many, many, many discussions with that party to know what they're supposed to testify about. Usually, people don't ask questions about meetings with the party as to whether they were given any direction as to their testimony, and I'd have to look up whether this applies in the criminal context, but isn't it the case that usually questioning about witness preparation is being a fault and a reason to suspect the credibility of a witness is usually out of bounds?
MR. BACH: It's different in the criminal context. I think you'll see that certain bounds were crossed here.
THE COURT: By who?
MR. BACH: By the other side. I hope I didn't cross any bounds. I will confess if I did. But people are very careful about these things. As you no doubt know, there are things such as consulting experts, testifying experts. People are very careful about how they draw the lines, in criminal cases especially. Preparation is fair game when someone's not in the privilege. She's not in the privilege.
THE COURT: It's not a privilege issue.
MR. BACH: I'm not going to get into details, but I do think it's fair for me, based on the foundation that I've laid, to say, my goodness, you say you're just providing general testimony. Why not? What's going on here? That's fair.
THE COURT: You certainly addressed that, but let me hear from Ms. Steiner.
MS. STEINER: Your Honor, the government believes that, based on this line of questioning, defense has opened the door as to why the government needed to meet with this witness on so many occasions. In large part, it was because the government was very concerned about cueing her testimony towards the Court's limited order, which, as your Honor knows, very cut down on substance of her expert testimony and was different from how she's testified previously, and the government was working to ensure to the best of its ability that this witness was going to be able to answer questions in that manner.
THE COURT: And that's fair, Mr. Bach. You don't have an issue with that, handled in the right way?
MR. BACH: No. I will say, I don't doubt what we're hearing, but the 3500 materials seems to suggest that those meetings were about a number of topics. They did share the Court's rulings, but you could, have on the phone, handled.
THE COURT: So Mr. Bach can continue with his line. I take you don't have an objection to his questioning, you just wanted to make sure that once it's turned over to you, that you can explain the context without running afoul of any rules, and Mr. Bach has said that you can in fact do that.
MS. COMEY: I just want to make clear we didn't want to start this line of questioning without flagging it for everyone that we think this opens the door to the fact that she is not being permitted to testify about many topics she's testified in the past, and that she was instructed to not use certain terms in the literature and that she was instructed to to not discuss certain topics because that is why --
THE COURT: I think that's going to open the door in a different way, but I think you can say that based on rulings by the Court and legal issues in this case, there needed to be significant discussion to make sure that the testimony fell within those bounds.
MS. COMEY: Thank you, your Honor. That is the way we want to respond this line of cross, so thank you.
MS. SHAPIRO: Your Honor, there's sometimes a standard, very short instruction that can be given that basically says the fact that a witness met with lawyers to prepare for the testimony is neither here nor there, and it's standard instruction.
THE COURT: Neither side requested it. If someone does --
MS. SHAPIRO: I'm just saying -- all right. That's fine.
MS. COMEY: I think we would but --
MS. STEINER: Thank you, your Honor.
(In open court)
THE COURT: Mr. Bach, you may proceed.
MR. BACH: Did they suggest, without getting into specific facts, topics that they wanted to cover with you?
DAWN HUGHES: I mean, as you know, Mr. Bach, our disclosure was submitted way before the trial even started. So the general topic areas were already outlined and discussed. It was really, with utmost respect to the government lawyers, me educating them on what would be appropriate for me to say to educate this jury.
MR. BACH: So you knowing nothing about the facts of this case, having spent no time working on it, needed six to eight meetings to educate these lawyers about what they should hear from you?
DAWN HUGHES: Well, to educate how you're going to present that information in a way that it makes it digestible and meaningful.
MR. BACH: Were you giving them a training seminar on how to present expert testimony in domestic violence cases?
MS. STEINER: Objection. Argumentative.
MR. BACH: Now, one of the things that you did with these prosecutors was you helped them write briefs.
DAWN HUGHES: I don't think I helped them write briefs.
MS. STEINER: Your Honor, can we have a sidebar, please?
THE COURT: Very brief.
(Continued on next page)
THE COURT: (At the sidebar) I'll make it shorter than the last one.
(Continued on next page)
(At the sidebar)
MS. COMEY: Your Honor, I'm so sorry to ask for another sidebar, but I want to stop before we go down this path of introducing in front of the jury pretrial motion practice and pretrial litigation and legal issues.
THE COURT: Where are we going?
THE COURT: Just tell me where you're going. I don't understand.
MR. BACH: She sent language, proposed language for briefs. They shared drafts of briefs with her before submitting them to your Honor. There are red lines that she provided when she makes legal argument. She's working with them as part of their team to advocate in this court. I think it shows her clear bias. I think it shows the level of where she's coming from in this case. I think they crossed the line by having the expert engage in that kind of process. That's not typically happens with an expert. You don't show them a brief on a legal issue and ask them to help you write it. And I think it shows her bias. It's evidence of bias. They might not like it because it's a little unusual for an expert to be helping prosecutors write a brief.
THE COURT: I don't have this brief. I don't know what you're talking about.
MS. STEINER: If I can clarify, first of all, with the notice, we obviously showed it to Dr. Hughes so that she can confirm it for accuracy.
THE COURT: You mean the disclosure?
MS. STEINER: The disclosure.
MS. STEINER: With respect to briefing in the motion in limine practice, we would submit like the legal analysis -- actually not the legal analysis. You mean the --
THE COURT: You mean on Dr. Hughes' report?
MS. STEINER: The psychological, when we were describing the psychological arguments.
MS. SHAPIRO: To exclude Bardey, as well.
MS. STEINER: And the psychological arguments that had been made potentially by Bardey, we provided it just to understand what the statement was, and for her to confirm accuracy of any psychological arguments that we may be making. But we were not providing any factual argument or anything of that nature that was specific to the case.
THE COURT: Assuming that that's true, Dr. Bardey is the rebuttal expert for Dr. Hughes. So it would seem natural that Dr. Hughes would take a look at what the government was saying with respect to Dr. Bardey that's not coming in.
MS. STEINER: I also would note any red line was not created by Dr. Hughes. Again, it was in consultation, her giving input, the government would make its own red line. It wasn't providing --
(Crosstalk)
MR. BACH: -- documents, including emails where they say thank you for your edits. Let us show you the documents. I'm not making this up. And it's defense evidence. I'll show you the documents.
(Pause)
MR. BACH: The government provided this to us, as they should, and consistent with their obligations, with 3500 material because of statements of Dr. Hughes. These are drafts of their brief to keep out Dr. Bardey, to keep out his rebuttal testimony. I'm showing you a number of documents. You can see there are red lines here. And there are red lines throughout the brief that they're sharing with her. And then --
THE COURT: Let's me see.
MR. BACH: Then there's more. They give her a subsequent draft with further -- comes back with further red lines. I'll give this to you in a second, your Honor. But then there's email correspondence from the government thanking her for her edits and asking if she has any more. I'll find that for your Honor. But then Dr. Hughes is emailing -- this is from Dr. Hughes, an email to them about how to argue a legal point about what's after cross-examination, you know, making legal arguments for them.
THE COURT: And why, when we had the jury leave the room so that we could address the other issue, did you not raise this issue, which you must have known was going to come up. You knew this was going to come up. It was part of your cross-examination, so why didn't you raise it at that time so we don't have the jury sitting here?
MR. BACH: Forgive me. Honestly, what I'm doing was I'm trying to concentrate. I'm doing my best. But they produced this to us in 3500 because they knew this wasn't just government work product, these were her statements that she worked with them on this. They knew this was an issue.
THE COURT: All right.
MS. STEINER: As I stated earlier, your Honor, Dr. Hughes did not input these edits and send it back to us. We would have a conversation with her over the phone and she would provide inputs and to confirm accuracy. We wanted to make sure we went through that process. Then the government would input red line edits. In fact, we would produce to the defense, because we believe that, at least a portion of that, we erred on the side of caution, if any portion of that could have been part of her statement, we produced the red line.
MS. SHAPIRO: Your Honor, regardless --
THE COURT: Hold on. We've got to have one person.
MS. SHAPIRO: Sorry.
MR. BACH: Look at this. This is summary of a meeting with Dr. Hughes. View draft of MIL, motion in limine, and made edits in the attached. That's what she did in the meeting and the call with Dr. Hughes. You can share documents on the screen, you can talk through the text. Everyone knows how to do that. She's reporting she reviewed the draft brief with Dr. Hughes and made edits.
MS. STEINER: Your Honor, I want to clarify, we would send over the redacted version of any brief so, again, it would not have any of the facts of the case --
THE COURT: What's the nature of the objection to Mr. Bach asking questions about this? His point is this was produced as 3500 material because these were statements of Dr. Hughes.
MS. STEINER: Right.
THE COURT: And so why isn't Mr. Bach permitted to ask questions along those lines?
MS. COMEY: So --
MS. SHAPIRO: I think the judge said only one of us can talk, so I think the same rule should apply to the prosecutors, with all due respect.
THE COURT: Fair. Ms. Steiner.
MS. STEINER: I mean, I think they can ask some amount of questions to do review, did the government provide documents that you confirmed for accuracy, however they want to pose it. They can't get into any of the government's legal briefing in the case.
THE COURT: That's true. They can't put up as 3500 material, they wouldn't be permitted to put that up. How are you going to get that into evidence?
THE COURT: Ms. Steiner said you could do that.
THE COURT: He's not going to put anything up on the screen, he's not going to show anything to the jury.
MS. STEINER: We understand any substantive legal dispute is not something that can come in. That, the government would object to being asked about in front of the jury.
THE COURT: Hold on. Hold on. You have no objection. As a general matter, the question that is, Dr. Hughes, did you consult with the government on certain filings that they made in this case, no objection to that?
MS. STEINER: No objection.
THE COURT: Then you can ask that question, and that gets you where you need to go. I'm not permitting testimony and review of various briefs in this case, especially when the briefing that we're talking about, and correct me if I'm wrong, has to do with the issue that came up about the admissibility of both Dr. Hughes' testimony and, in response, Dr. Bardey's testimony. It would be natural in reviewing Dr. Bardey's testimony to have your own expert, who is the person being responded to, review what was being filed to make sure that nothing was being missed concerning Dr. Bardey's testimony. I don't think that goes to bias in any way, shape, or form, but you don't have an objection to the general point about there having been some consultation with Dr. Hughes. So that's what we're going to do and let's proceed. Anything further?
MR. BACH: I do think I have to orient this is after her disclosure was made, so there's no confusion.
THE COURT: Of course. There's no objection to that. They just don't want you putting this stuff up and making a sideshow out of it, and I agree with that.
(Continued on next page)
(In open court)
THE COURT: Members of the jury, I was wrong about this one being shorter than the last one. I apologize. We're going to get some music actually put in as opposed to the white noise next time. Mr. Bach you may proceed.
MR. BACH: Dr. Hughes, I want to focus your attention on the time period before trial after your name was disclosed as the government's expert, and after the substance of your testimony was disclosed. Okay?
DAWN HUGHES: Okay.
MR. BACH: I want to focus on the time period after that. After that and before the trial began, the government shared with you certain draft submissions that it wanted to make to the Court for your input, correct?
DAWN HUGHES: That directly related to me and my testimony.
DAWN HUGHES: Correct.
DAWN HUGHES: I was only focusing on the aspects that related to me and the substance of my testimony.
THE COURT: If you'd like to refresh the witness's recollection, then you can put documents in front of the witness.
DAWN HUGHES: Yes, it is.
THE COURT: You're not referring her attention to anything. You want her to take a second and read this?
THE COURT: Dr. Hughes, take a second, read what's on the page, and let us know when you're done.
(Pause)
DAWN HUGHES: Yes, I see.
THE COURT: Let's take it down. Mr. Bach.
MR. BACH: Does that refresh your recollection that the advice and help you were giving to the government in connection with this submission was not just about your testimony?
DAWN HUGHES: Well, there was about Dr. Bardey who was going to rebut my testimony, so I was giving the information about my testimony for that purpose.
MR. BACH: And from time to time you would email the prosecutors to suggest language for their briefs?
DAWN HUGHES: Probably.
DAWN HUGHES: I don't think I was advocating for their side. I was advocating for the science that was being, I believe, misconstrued.
DAWN HUGHES: Correct.
MR. BACH: When you gave advice on a submission to the Court, you weren't getting paid by the National Foundation of Science, right?
DAWN HUGHES: I'm not, did you say?
DAWN HUGHES: Correct.
DAWN HUGHES: Correct.
MR. BACH: You were getting paid by the same Department of Justice that pays these prosecutors, correct?
DAWN HUGHES: Correct.
DAWN HUGHES: That were relevant to this testimony, correct.
DAWN HUGHES: Correct.
MR. BACH: And then you met with them again after the trial began, correct? And you're doing all this work on these submissions that they're submitting to the Court knowing that you would be a witness in this case, correct?
DAWN HUGHES: Correct.
MR. BACH: Dr. Hughes, you're here as, I think this is in your own words, a blind expert, correct?
DAWN HUGHES: Correct.
DAWN HUGHES: Correct.
THE COURT: Ms. Steiner.
MS. STEINER: Thank you, your Honor.