By Katherine Mayer, M.A., CLI, CCDI
After working on countless mitigation cases throughout my career, I’ve noticed a common practice that can create both strategic and financial risks for criminal defense teams: having expert witnesses handle record collection. While it may seem efficient to have your neuropsychologist, psychiatrist, or other expert gather these materials directly, this approach can unintentionally compromise your defense strategy, increase costs, and limit your expert’s value to the case. A more strategic division of responsibilities can protect your case, safeguard your expert’s testimony, and better use your resources.
The Strategic Risk
One of the most important reasons to separate record collection from your testifying experts’ work is strategy. When the same person who will testify also gathers all of your client’s records, they are exposed to every detail—helpful or not—about your client’s history. This includes information that may have no bearing on their ultimate opinions but could be damaging to your defense if disclosed.
If the prosecution questions them about these details at trial, they must answer truthfully. This risks expanding the scope of their testimony into areas you would prefer to keep out of court. By assigning record collection to a non‑testifying member of your defense team, you limit your expert’s exposure to unnecessary information and help preserve the strategic integrity of their testimony.
The Financial Cost
Testifying experts such as neuropsychologists or psychiatrists often bill between $300 and $500 per hour. Record collection in a complex case can take 20 to 40 hours – often more. Paying expert rates for administrative work quickly inflates costs without adding strategic value.
Record collection specialists—often mitigation specialists or investigators—charge far less and work more efficiently due to their experience navigating bureaucratic systems. For example, if a testifying expert spends 30 hours at $400 per hour, you’ve spent $12,000. A skilled records specialist could complete the same work for $3,000 to $4,500, leaving thousands of dollars available for deeper expert analysis, additional investigative work, or other case needs.
The Process Complexity
Collecting records is rarely simple. Medical facilities, schools, social services agencies, and correctional institutions have unique procedures, forms, and timelines. A dedicated records specialist understands these differences, manages the follow‑up process, and ensures requests are complete and compliant.
This is not a question of whether a testifying expert is capable—it’s about whether this is the most effective use of their time. Their highest value to your defense comes from reviewing and analyzing the records, not navigating the administrative hurdles to obtain them.
Court Admissibility Considerations
Even when records are obtained, they must be admissible if needed in court. This may require business records affidavits, proper chain of custody documentation, and compliance with jurisdiction‑specific evidentiary rules. While many testifying experts may be aware of these requirements, record specialists routinely incorporate admissibility into their collection process from the start.
Having admissible, well‑organized records in place before your expert begins review helps prevent delays and avoids procedural missteps later in the case.
A Better Division of Labor
The most effective defense teams keep these roles separate: qualified, non‑testifying members of the team collect, organize, and authenticate the records, and testifying experts then review what they need to form opinions and prepare testimony. This approach keeps testimony focused, protects your strategy, reduces costs, and ensures complete, admissible records are available when needed.
Conclusion
Your testifying experts are most valuable when they are doing what they do best—analyzing information, forming professional opinions, and delivering persuasive testimony. By entrusting record collection to trained, non‑testifying team members, you protect your strategy, control costs, and improve efficiency. This simple but important shift in case management can make a meaningful difference in the strength and outcome of your defense.
Katherine Mayer founded Mayer Consulting, a firm with extensive experience in fact investigation, mitigation, and jury services. Since 2012, her firm has worked alongside attorneys to ensure comprehensive record collection, meticulous investigation, and case development strategies.
