In criminal trials, expert witnesses provide scientific, medical, or other opinions based on the available evidence. For example, the defense might retain a forensic pathologist to review state autopsy findings and formulate an alternative - and credible - theory for cause of death.
In the case of Nathaniel Abraham, defense attorneys used a forensic psychiatrist to prove that Abraham (only 11 at the time of his crime) could not have appreciated the consequences of his actions:
Defense psychiatrist Gerald Shiener ... testified that children — particularly Abraham — are not small adults and cannot fully appreciate the consequences of their actions and unanticipated results. In other words, Shiener said, Abraham could not have intended to shoot Greene because, as the boy said in his statement to police, he was shooting at trees and did not realize that others could still be hit with a bullet. Shiener maintained that 11-year-olds like Abraham cannot form the intent for an adult crime because they because they cannot plan for the future the way adults can. (Robinson, Court TV)
This makes sense. It is difficult to imagine any child mature enough to consider all possible consequences.
On the other hand, specific evidence from the Abraham case seemed to indicate the opposite. The prosecution presented a tough cross-examination:
... prosecutor Lisa Halushka confronted Shiener with a state psychiatrist's report on Abraham. According to this expert, Abraham said his family had told him not to play with guns because someone could get hurt. However, Abraham allegedly told this psychiatrist, he didn't listen to his relatives because he didn't want to.
Halushka also pointed out to Shiener that Abraham indicated in his police statement that he ran away after firing the gun and hid it, suggesting that he knew he had done something wrong and was attempting a cover-up. (Robinson, Court TV)
Shiener countered that any child would attempt to stay out of trouble. According to him, it is inherently childish to run away and hide the gun. Avoiding punishment is not the same thing as understanding consequences.
And so the case went. Everything turned on subtle, psychological distinctions, the line between childhood and adulthood, the question of whether children can - or do - ever think like adults. It was a kind of poetry - a refusal to accept facts at face value, a blurring of lines, a constant re-interpretation (and recontextualization) of evidence.
I love the way facts can be twisted and turned just by asking different questions or focusing on different details. As Henry David Thoreau wrote, It is not what you look at that matters, it's what you see.
The expert witness in creative nonfiction is different in at least one important sense. She is not present and usually does not speak in her own voice (except for direct quotations). There is no opposing legal team to cross-examine the witnesses we choose. No questioning. Or is there? The next post will discuss research and the poetic imagination - how a dialogic, adversarial process, combined with expert testimony, can create richly nuanced texts. I will wrestle with questions such as how do we know when to use research? and how can we cross-examine our witnesses?
References:
Robinson, B. Psychiatrist's analysis of 13-year-old murder defendant challenged. CourtTV Online. Retrieved April 11, 2004, from http://www.courttv.com/archive/trials/abraham/110599_am_ctv.html.