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  • Brian Concannon

Do I Need An Expert Witness?

Updated: May 1, 2020

The decision to hire an expert witness is often a difficult one, because for many clients it imposes a heavy burden on limited financial resources. In many cases I see, an expert can be decisive, but in some cases an expert could be unnecessary. I will add some thoughts on making this decision from my experience as an expert. I will focus on what I know- country condition expertise- and leave discussion of medical, psychological and other expertise to people who know those areas.

I will start by recommending a blog post by Jeffrey S. Chase, a former private lawyer and immigration judge, The Importance of Expert Witnesses, as well as a webinar, Working With Country Condition Expert Witnesses to Support Asylum Claims from the Vera Institute for Justice and Center for Gender and Refugee Studies.

A good first step in deciding whether an expert is worth the cost to your client is asking the expert to "make a case" that he or she can be helpful. Reading a few paragraphs of facts is usually enough for an expert to determine whether they have the ability to make your case more compelling. If they can articulate to you how they can be helpful, they can likely articulate it to the judge. Most experts I know will do at least a quick review of a case at no charge.

One factor to consider when making the decision to engage an expert is the fact-finder's familiarity with Haiti's unique context. I have seen many cases where judges and lawyers for DHS and even asylum applicants make assumptions based on their knowledge of analogous situations in Central America, with which they are more familiar. This can be dangerous- gangs in Haiti are organized differently than gangs in Honduras, political parties are organized differently, social groups are constructed differently, etc. So a factual situation in Haiti can pose very different risks than the same factual situation in El Salvador. Effectively explaining how Haiti's reality is different can sometimes make all the difference for an asylum applicant.

A related factor is the complexity of the claim. In some cases, there is less need for an explanation of the context, such as a well-documented attack on a known dissident by a prominent government supporter. But it gets harder for an attack on a low-level activist's sibling by unknown assailants on a motorcycle at night, especially if the sibling is too fearful to go to the police or seek medical treatment. The latter case is probably more common, but is harder to document, and requires an explanation of historical political persecution in Haiti, the police force's limitations, and the political context at the time of the attack.

About twenty years ago the Newark Asylum Office invited me to spend an afternoon discussing Haiti's political parties with the Office's hearing officers. Over the previous few years, there had been extensive reshuffling of political parties. Many parties that had been allies in previous elections were now fierce opponents, fierce enough for their supporters to persecute their former allies. The hearing officers were struggling to make sense of claims they were seeing that seemed inconsistent with their existing knowledge of Haiti. I wasn't on PowerPoint yet, so I tried to trace the dozens of parties that had come, gone or switched sides on a hand-drawn chart.

The chart quickly turned into an unintelligible mess, that was of limited use to anyone trying to evaluate a specific claim. The asylum officers kindly noted that I had at least communicated that Haiti was really complicated, and helped them understand that their assumptions about political parties might be outdated. In the two decades since, Haiti's political parties have reshuffled several times more. As a result, the political affiliation of the perpetrator or victim can mean one thing if the incident took place in 2002, something completely different in 2012, and something again very different last year.

I would not try to comprehensively chart out Haiti's political parties over the last 30 years, but I have found that a person familiar with the details of this fluid context can usually explain a particular case in a way that gives lawyers and judges confidence that they understand it.

A related factor is the applicant's credibility. I have worked on Haiti issues for 24 years, and continue to encounter situations that initially seem hard-to-believe but later become well-documented. In my expert work, I regularly read declarations that I would have placed in the hard-to-believe category had I not investigated a similar contemporaneous case in my human rights work. In these cases, an expert explaining to a judge that a victim's account may seem outlandish but is consistent with other known incidents can bolster the details of the account, but also the broader perception of the applicant's credibility.

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