Author Archives: Colin Holloway, Attorney at Law

About Colin Holloway, Attorney at Law

LinkedIn Colin Holloway is an attorney operating in the Washington DC area. He is a graduate of Carnegie Mellon University and Emory University School of law, and has practice experience in criminal defense, personal injury litigation, mediation, and employment law.

Convicted Boston Marathon Bomber Turns to Neuroscience Expert Witness in Sentencing Trial

As the sentencing trial for convicted Boston Marathon bomber Dzhokhar Tsarnaev continues, defense attorneys for Tsarnaev called respected neuroscience expert witness in an effort to avoid a death penalty judgment.  Consistent with the defense’s position during the early part of the trial, the expert has been called to provide testimony that minimizes Dzhokhar’s role in planning and executing the attacks.

Prosecutors Point to Unrepentant Behavior

As the sentencing phase of Dzhokhar Tsarnaev’s trial began, prosecutors attempted to paint the defendant as an unrepentant and willing participant in the Boston Marathon bombing attack.  Tsarnaev was convicted last month on all criminal charges levied against him, including charges of terrorism and conspiracy to deploy weapons of mass destruction against the public.  Prosecutors have alleged throughout the trial that Tsarnaev was equally responsible for the planning and execution of the attacks along with his brother, Tamerlan.

Beyond the evidence used to convict Tsarnaev of the crime, prosecutors have used his recent behavior to show that he remains defiant and without remorse for his actions.  Dzhokhar is responsible for writing a series of notes that prosecutors argue demonstrate his willingness to engage in acts of Islamic terrorism, and was recently photographed flipping a jail cell camera off in anger.  Prosecutors have pointed to the defendant’s activities before, during, and after his trial as signs that he was not unwillingly convinced to take part in the attack by his brother, but instead was an accomplice and equal partner to the crime.

Defense attorneys for Tsarnaev have countered prosecutors by building upon the strategy they employed during trial and calling a neuroscience expert witness to testify that the defendant’s brain was too immature during the planning and execution of the attacks to make him sufficiently culpable as to warrant the death penalty.

Tsarnaev’s Brain Development at Issue in Sentencing

Dr. Jay Giedd, chief of brain imaging at the Child Psychiatry Branch of the National Institute of Mental Health took the stand last week to testify that Dzhokhar’s brain was not fully developed at the time of the attacks.  According to Dr. Giedd, Dzhokhar, who was 19 at the time of the bombing, did not have a fully developed prefrontal cortex, which is the area of the brain responsible for planning, impulse control, and judgment.  Neuroscience research indicates that the prefrontal cortex is not fully developed until the late twenties, and as a result, the defendant’s capacity to control aggression or excitement was weak leaving him vulnerable to suggestive influence.

Dr. Giedd told jurors that teens with underdeveloped prefrontal cortex are unable to adequately process risk vs benefit analysis, and are more likely to accept actions that favor short term rewards with little consideration of long term consequences.  Although Dr. Giedd conceded on cross-examination that some brains develop faster than others, and Dzhokhar had the capacity to comprehend the consequences of his actions, his testimony supported the defense’s case that the defendant was developmentally immature and vulnerable to his brother’s influence.

Use of Brain Development Expert Witnesses Growing

The immature brain strategy employed by using Dr. Giedd as a neuroscience expert witness is not uncommon as defense attorneys across the country have incorporated brain development into serious offense trials.  Advances in neuroscience provide opportunity for neuro expert witnesses to inform jurors about potential brain development issues or defects that can influence judgment, decision-making, and ultimately behavior.  As in the Dzhokhar Tsarnaev case, neuro expert testimony is not always used to exonerate the defendant, but is deployed in an effort to reduce sentencing.

In this case, Tsarnaev’s legal team turned to Dr. Giedd’s expert testimony to lend scientific credence to the point they have hammered home since the high-profile trial began: Dzhokhar committed the crimes of which he was accused, but he lacked the necessary desire and intent to plan and execute a terrorist attack without the influence of his older brother.  Considering Dzhokhar’s brain development and the influence his older brother had over him, defense attorneys have argued that life in prison is the more appropriate sentence rather than death.

Review finds Widespread Flaws in FBI Forensic Expert Witness Testimony

The Federal Bureau of Investigation (FBI) and the Justice Department (DOJ) admitted to decades of flawed forensic expert witness testimony, potentially affecting 1,500 convictions administered between the 1970’s and 2000. The massive post-conviction review of the FBI’s hair and fiber laboratory began in July, 2012 was designed to test the accuracy of forensic expert analysis at trial, and the early results show a disturbing trend of FBI examiners overstating forensic conclusions to the benefit of federal prosecutors.

Post-Conviction Review Challenges FBI Expert Witnesses

Review of FBI hair and fiber expert testimony began in earnest in 2012 after the Washington Post uncovered evidence suggesting that DOJ and FBI officials were aware for years that flawed forensic analysis contributed to thousands of prosecutions dating back to the 1970s.  Although the FBI’s standards for hair and fiber analysis changed in the early 2000’s, information began leaking that analysts at the Bureau were noticing alarming numbers of false positives in DNA identification based on hair and fiber forensic analysis, leading the DOJ to partner with the Innocence Project and National Association of Criminal Defense Lawyers (NACDL) to conduct a public and transparent review of FBI forensic expert testimony.

The review narrowed its target cases to 2,500 which featured expert analysis of hair and fiber DNA evidence used by prosecutors to convict defendants, and 95{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the 268 reviewed so far indicate errors in FBI forensic expert testimony.  The NACDL, Innocence Project, FBI and DOJ have also announced that results of 350 more testimonies and 900 lab reports are complete and may be released within the coming weeks.

Flawed FBI Expert Testimony Aids Federal Prosecutors

An alarming theme across the flawed expert witness testimony is the tendency of FBI forensic experts to overstate the certainty of DNA matches to link defendants to a particular crime scene.  Further, FBI experts would support testimony with misleading or incomplete statistical evidence that further strengthened the connection between defendants and the crime scene.  Another issue uncovered by the review is the lack of accepted scientific agreement on how hair and fiber analysis should be conducted, and how strong the evidence is as a DNA analysis tool.

Although many legal and political experts are crediting the FBI for its willingness to undertake such a massive review of its forensic expert practices, the disturbing results of the analysis are likely to send a lasting ripple through the federal criminal justice system that could result in thousands of appeals of conviction filed in the coming years.

Results of FBI Expert Witness Review Leave DOJ with Uncertain Future

Response to the negative review of FBI forensic expert witness has been appropriately critical of the investigators in the Bureau and federal prosecutors who made use of the testimony during trial.  Leaders of the Innocence Project and the NACDL have denounced the FBI’s hair and fiber lab work as a “disaster,” and have called for action going forward that to not only correct the injustice, but prevent the use of flawed DNA testimony in the future.  The sentiment is joined by a number of US Senators who have called the results “appalling and chilling in their indictment of the criminal justice system,” and demanded a “root-cause analysis” to hold the responsible parties accountable.

Beyond the critical response to the review of flawed FBI expert testimony, the logistical concerns facing the DOJ and the federal criminal judiciary are potentially overwhelming.  Without question, defendants in each case that has identifiable flaws in DNA expert witness testimony will file an appeal.  With much of this testimony offered in cases involving serious criminal charges, some of them involving the death penalty, the convicted defendants are highly motivated to seek reversals of convictions based on faulty expert testimony.  While not every case will warrant an appeal, the federal criminal justice system faces an uphill battle in the coming months and years as the full fallout of the FBI expert testimony scandal comes to light.

Medical Experts Debate ALS Caused Mental Illness in Murder Trial

The murder trial of a former sheriff deputy in Dane County, Wisconsin featured testimony from two medical experts this week who debated whether the defendant’s claim that he suffers from a mental illness due to his ALS diagnosis is legitimate.  Andrew Steele, 40, has pled guilty to the murder of his wife and sister-in-law, but argues that his ALS, a terminal muscular disease known as Lou Gherig’s disease, affected his mental state at the time of the killings.  Expert witnesses representing both sides testified to the validity of the defendant’s position.

Wisconsin Sheriff Deputy Pleads Guilty to Murder

On August 22nd, 2014 Andrew Steele killed his wife Ashlee Steele, 39, and his sister-in-law Kacee Tollefsbol, 38, in his Wisconsin home. Steele, who resigned his position as a sheriff’s deputy after being diagnosed with ALS, initially denied his involvement but later pled guilty and conceded that he had killed his wife and sister-in-law due to a mental defect associated with his terminal illness.  As jurors consider whether Steele will spend the rest of his life in prison or in a facility run by Wisconsin’s Department of Health Services, they were shown images of the crime scene that indicated Steele attacked the women and strangled them with zip ties affixed around their neck.  Tollefsbol was also the victim of a gunshot wound, and both women were handcuffed after an apparent struggle that carried on throughout the house.

Police investigators found a note on Steele’s phone suggesting that the three had a suicide pact, and the defendant has stated that his ALS diagnosis impaired his ability to recognize his behavior was wrong or illegal.

Defense Expert Witness Testifies ALS Diagnosis Could Create Mental Illness

First to testify on the impact of Steele’s ALS diagnosis on his mental state was Dr. Doug Tucker, a medical expert hired by Steele’s defense team to support his claim that ALS influenced his state of mind.  According to Dr. Tucker, Steele suffered from a serious mental disease caused by his terminal illness.  Dr. Tucker testified that Steele’s cognitive ability to control his behavior was so strongly impaired by his ALS that he was unable to act in accordance with the law.

Dr. Tucker’s expert testimony spoke directly to the key elements of a legal defense in favor of hospitalization over imprisonment by informing jurors that Steele’s condition eliminated the requisite mental state required to commit an act of murder under the law.  If Steele’s neurocognitive processing was so distorted that he could not tell right from wrong, then jurors will be permitted to consider sentencing him to institutionalization rather than incarceration.

Prosecution Expert Witness Rejects ALS Mental Illness

In response to Dr. Tucker’s expert witness testimony, prosecutors called a medical expert of their own to analyze Mr. Steele’s mental state at the time of the murder.  Dr. Paul Barkhaus, director of the amyotrophic lateral sclerosis program at the Medical College of Wisconsin in Milwaukee, analyzed Steele’s medical records and testified that had there been any indication that he suffered from a neurocognitive disorder as a result of his ALS then he would have been referred to a neuropsychologist for further evaluation.

Although Dr. Barkhaus declined to speak directly to Dr. Tucker’s testimony because the prosecution expert is not a neuropsychologist, he testified that Steele’s ability to drive a car in traffic and interact with his family indicated that his mental state was not so deteriorated that he could not follow the law.  According to Dr. Barkhaus’s testimony Steele would have likely displayed other violent tendencies if his ALS effected his cognitive processes, indicating to jurors that the defendant’s argument was not medically plausible.

The case is expected to continue through the week before jurors determine the former sheriff deputy’s fate.

Federal Court Dismisses Expert Witness for Providing Legal Testimony

Earlier this month, a federal court in Texas dismissed proposed insurance expert witness testimony for focusing too strongly on legal issues rather than factual disputes.  During a claim dispute, the insurer submitted an attorney familiar with insurance issues as an expert witness to explain the process of reviewing claims and interpreting policy documents, however the judge refused the expert because he was acting as an advocate rather than a source of knowledge.

Insurance Company Offers Attorney as Expert Witness

The dispute arose in 2012 when Atrium Medical Center was sued by a former patient claiming that he now faces a terminal illness because his primary physician allowed his condition to worsen by failing to advise him of the results of a CT scan performed in the hospital.  After being served with the lawsuit, Atrium notified its insurer Homeland Insurance Company (HIC) and filed a claim to have the insurance company provide a defense pursuant to Atrium’s policy.  Upon reviewing the claim, HIC denied coverage because the claim was not made against Atrium during the HIC policy period and was excluded by the Policy’ prior knowledge provision against claims that the insured knew about before the policy was in effect.

In response, Atrium filed a lawsuit against HIC alleging the insurer violated its duty of good faith and fair dealing by rejecting the hospital’s claim.  According to Atrium, HIC rejected the claim in bad faith by not conducting a reasonable review of the situation before issuing a denial of coverage.  HIC responded that it conducted and adequate and reasonable analysis of the claim as to meet industry standards of coverage on claims requesting legal defense.  In an effort to support its position, HIC called an attorney as an insurance coverage expert witness to tell the court that the insurer met its duty of good faith and fair dealing by conducting a sufficient investigation into Atrium’s claim.

Report from Insurance Attorney Expert Witness Contested

HIC submitted Michael Huddleston, an attorney with more than 30 years experience in insurance law, as an expert witness.  According to Huddleston’s report, HIC had a reasonable explanation for denying coverage under the “controlling legal concepts applicable under Texas law.”  Huddleston supported this claim by reviewing the relevant legal standard of bad faith claim denial under Texas law, and explaining that HIC did not take any steps that are outside of accepted common practice among insurance carriers which deny coverage based on the prior knowledge exception.  Huddleston’s expert witness report was written to help jurors understand the standard of “reasonableness” under Texas insurance law, and support the defendant’s position that it did not act in bad faith when denying Atrium’s claim.

Atrium argued that Huddleston’s expert report violated the Federal Rules of Evidence because it offered impermissible conclusions of law.  Under evidentiary law, an expert witness is not permitted to usurp the responsibility of judges by explaining the relevant law to jurors. These rules are in place to avoid situations where jurors rely on the conclusions of a legal expert rather than properly analyze all the facts and come to their own conclusions.  Arguing that Huddleston’s expert witness report violated the Federal Rules by giving jurors legal conclusions, Atrium requested the court prevent him from taking the stand during trial.

Federal Court Rejects Expert Witness on Legal Interpretation

Although the court acknowledged that attorneys are not barred from acting as expert witnesses, and may, in fact, testify to some matters that blend issues of fact and law, the judge found that HIC’s expert went too far in his analysis of the legal issues key to the case.  The court pointed out that Huddleston frequently cited legal cases throughout his report, and approached the issue from a purely legal background and way of thinking.  Huddleston, who has no experience working in the insurance industry, wrote the report from the perspective of an attorney and, naturally, his expert opinion focused on how Texas law applies to the dispute.  When Huddleston mentioned the factual issues, he did so only to frame them in light of the legal standard establishing when it is reasonable to reject an insurance claim.

Finding that his expert witness report read more like a legal brief than an analysis of the facts, the federal court in Texas dismissed Huddleston as an expert witness in the case because he improperly offered legal conclusions.  The case reminds attorneys that expert witnesses are not permitted to provide legal conclusions during their testimony, and provides an example of when legal conclusions by an expert go beyond what is permissible under the Federal Rules of Evidence.

Lighting and Audio Experts Testify in Trial of Cleveland Police Officer Accused of Manslaughter

The trial of a former Cleveland police officer charged with voluntary manslaughter for the shooting deaths of two people featured testimony from a number of expert witnesses this week.  Michael Brelo, 31, has been accused by prosecutors of manslaughter due to a 2012 incident in which he and 12 of his fellow officers fired 137 shots into a 1979 Chevrolet Malibu, killing occupants Timothy Russell and Malissa Williams, both of whom were unarmed.

Brelo has been charged with manslaughter for firing 49 of those rounds into Russell’s vehicle, some of which were fired from the hood of the car after Brelo allegedly jumped on it for a better vantage point. Brelo and his fellow officers have maintained in their recollection of the events that they felt they were in danger and reacted appropriately considering the circumstances.  To bolster their case, prosecutors called to the stand experts in lighting and audio to reconstruct the incident, demonstrate that Brelo and the other officers should have been able to better assess the low-risk nature of the situation, and support the argument that the officers acted improperly and criminally.

Lighting Expert Witness Testifies in Trial of Cleveland Police Officer

Earlier this week, James Benya of Benya Burnett Consultancy took the stand as a lighting expert witness to help reconstruct the scene of the shooting and support the prosecution’s argument that it should have been apparent to the officers that Russell and Williams did not pose a threat to their safety.  Benya is an engineer with more than 40 years of lighting experience called to testify about the lighting behind Heritage Middle School on the evening in question.  Benya considered the street lighting, time of day, placement of the vehicles, and weather conditions in his testimony to the court.

While on the stand, Benya noted that the cloud cover prohibited the moon from providing any source of light, but emphasized visibility was still possible due to the better-than-average lighting conditions of the middle school parking lot where the shooting took place.  Benya also noted that Russell’s light blue Malibu was parked between two street lights when officers opened fire.  Benya also supplemented his expert testimony with a recreation of the scene using pictures taken at the same time of night as the shooting under similar weather conditions.  Benya’s recreation included not only the static source of light provided by the street lamps, but also the dynamic illumination provided by lights on police vehicles.

On the strength of Benya’s testimony, prosecutors submitted the images from his recreation into evidence in an effort to show the court that it is possible to see into a parked vehicle in conditions identical to the ones faced by officers on the night of the shooting.

Prosecutors in Cleveland Police Trial Turn to Audio Expert Witness

Shortly after Benya’s stepped down from the stand, prosecutors called Robert C. Maher, head of the electrical and computer engineering department at Montana State University, to the stand as an audio expert witness.  Maher was asked to listen to a recording of the incident taken by the Bratenahl Police Department radio from the dashboard camera of one of the police cars.  Maher analyzed the video in 2014, and told the court that 15 of the final 18 shots came in rapid succession and were fired from the same gun.  The interval and sound of the shots supported this conclusion, and the court heard the audio as part of Maher’s expert testimony.

According to prosecutors, the 15 shots were fired from Brelo’s weapon as he stood on the hood of the car and fired in at Russell and Williams.  Brelo’s defense attorneys challenged Maher about the ambient noise that could impact a sound analysis – such as police sirens, distance, and other gun shots – but Maher maintained that the shots had come from the same gun despite factors that could influence his ability to make that determination.

Maher’s testimony was bolstered by identical findings by two other audio expert witnesses: Bruce Koenig, an expert in audio and visual forensics who worked for the FBI for 24 years, and Steven Beck, an audio expert.  Both Koenig and Beck testified that 15 of the final 18 shots were fired from the same gun, a conclusion they supported by pointing to the sound and succession of the shots.  Prosecutors will continue the case next week.

Boston Marathon Bomber Defense Team Calls Four Expert Witnesses

Defense attorneys for Dzhokhar Tsarnaev rested their case this week after building a case with the testimony of four expert witnesses.  The Tsarnaev defense argues that the young man was not the lead conspirator of the 2013 Boston Marathon Bombings, but instead was manipulated by his older brother into participating in the attack.  With the defense resting, the case will go to jury for a verdict on guilt and a determination on whether or not Tsarnaev is eligible to receive the death penalty if convicted.

Attorneys for Dzhokhar Tsarnaev Point to Older Brother

Throughout the trial of accused marathon bomber Dzhokhar Tsarnaev, the defense team has conceded his involvement in the commission of the attack that killed 3 people and wounded more than 260 during the 2013 Boston Marathon.  However, defense attorneys argue that Tsarnaev is not guilty of the more than 30 charges against him because he was coerced by his older brother into committing the crime.  Tamerlan Tsarnaev, 6-years Dzhokhar’s senior, has been the focus of the defense team for allegedly planning the crime and encouraging Dzhokhar to join by instilling anti-American and terrorist sentiments in him prior to the act.  Tamerlan was killed in a shootout with police while the brothers were on the run form police after the attack.

In order to bolster its defense, Dzhokhar’s legal team called four expert witnesses to reconstruct the details of the attack planning process that demonstrate Tamerlan largely acted alone before soliciting his younger brother’s help to carry out the act.

Boston Marathon Bomber Defense Calls Four Expert Witnesses

With the prosecution resting its case after calling 92 witnesses, including several expert witnesses, over the course of 15 days, Tsarnaev’s defense team presented a relatively short and succinct two-day case last week by calling only 4 expert witnesses to the stand. Each of the four following defense experts was called to shift blame away from the defendant and towards his older brother who allegedly planned and organized the attack:

  • Computer forensic expert witness Mark Spencer took the stand to testify about the Internet searches on bomb making made by the Tsarnaev brothers leading up to the attack. According to Spencer, the significant majority of Internet searches seeking information about the construction of homemade bombs were made from Tamerlan’s personal computer, not Dzhokhar’s.  Additionally, Spencer testified that Tamerlan’s Internet search history consisted of jihadist literature, including al-Qaeda’s English-language magainze, Inspire.  Dzhokhar’s computer, on the other hand, had only two references to jihad in its search history prior to the attacks.
  • FBI field photographer Michelle Gamble testified as an expert witness on the items recovered from Tamerlan’s apartment during the subsequent investigation of the attack. According to Gamble, all of the evidence of bomb-making and jihadist literature were found in Tamerlan’s possession, not Dzhokhar’s.
  • Gerry Grant, a cell phone analyst expert witness, took the stand to tell jurors that on two occasions when Tamerlan purchased the materials necessary to make the bombs, Dzhokhar’s phone was in a different location. In each case, Dzhokhar’s phone was used in southern Massachusetts while Tamerlan purchased items north of Boston and in New Hampshire.
  • Finally, defense lawyers for Dzhokhar called FBI fingerprint expert Elena Graff to explain to jurors that the defendant’s fingerprints were not on any of the materials used in the attack. Instead, the bomb-making materials and gun-cleaning equipment recovered from the Tsarnaev home only had Tamerlan’s fingerprints.  Further, Graff testified that all of the items recovered from the blast site in Boston had Tamerlan’s fingerprints and not Dzhokhar’s.

Taken together, the four expert witnesses were used to leave jurors with the impression that Tamerlan and not Dzhokhar planned the 2013 Boston Marathon bombing.  The defendant, who did not take the stand, has been portrayed as a participant but not mastermind in what is likely an effort to avoid the death penalty for his role in the attack.  Both sides reiterated their position in closing arguments early this week, leaving jurors to deliberate Dzhokhar’s fate over the coming days.

New Jersey Appellate Court Bans Expert Witness Bootstrapping

A New Jersey court has banned the practice of expert witnesses improperly testifying about the opinion of other experts during trial.  Known as bootstrapping, personal injury lawyers use it to take advantage of expert witnesses’ knowledge of opinions of other experts who are not present at trial, effectively getting in evidence that was not approved prior to the start of trial.  Last week, the New Jersey Appellate Division made an effort to stop bootstrapping by forbidding attorneys from asking experts about other witnesses not on the stand.

Plaintiff Attempts to Bootstrap Medical Expert in New Jersey Car Accident Lawsuit

The ruling against bootstrapping comes from the New Jersey case of James v Ruiz in which William James attempted to collect significant financial damages against Rolinda Ruiz who backed into his vehicle at a toll booth station and allegedly caused a permanent neck injury.  In an effort to highlight the extent of the injuries he suffered, Mr. James called as an expert witness Dr. Stephen Zabinski, a certified orthopedic surgeon, to testify about the extent of the plaintiff’s injuries.  Dr. Zabinski was called to testify about an apparent bulge in James’ neck revealed in a CT scan performed and reported on by Dr. Amerigo Falciani, a radiologist who was not called to testify during the trial.

After asking Dr. Zabinski to point out the disk bulge on the CT scan, James’ attorney asked the expert whether or not his observation was consistent with the report filed by Dr. Falciani.  Defense attorneys objected, and asked the trial judge to omit any mention of an expert witness who would not take the stand during trial.  When a defense expert, Dr. John Cristini, disagreed with Dr. Zabinski’s opinion, James’ attorney again attempted to reference the Falciani report, and was again stopped by the judge who told the lawyer, “You’re not going to back door the radiologist’s opinion into this case. He’s not here to testify.”

The issue came up again when James’ attorney attempted to reference Zabinski’s confirmation of the Falciani report during closing arguments.  Again, Ruiz’s attorney objected and again the judge agreed, this time telling jurors to disregard, “whatever a radiologist might have determined,” before adding, “The radiologist did not testify here. We are talking about the testimony of Dr. Zabinski and the testimony of Dr. Cristini.”  The jury returned a unanimous verdict in favor of the defendant Rolinda Ruiz having found no evidence of a permanent injury caused to Mr. James by the accident.  On appeal James’ lawyer alleged that the trial judge had improperly restricted his expert’s testimony by forbidding all mention of the radiologist’s report.

New Jersey Appellate Court Prohibits Expert Witness Bootstrapping

Judge Jack Sabatino, writing for the majority of New Jersey’s Appellate Division Court, affirmed the trial court’s decision to prohibit the type of expert witness bootstrapping testimony that would have admitted discussion of the non-testifying radiologist’s report.  According to Judge Sabatino, lawyers in New Jersey would no longer be allowed to ask an expert witness called in a civil trial whether or not findings on consistent with a non-testifying expert, “where the manifest purpose of those questions is to have the jury consider for their truth the absent expert’s hearsay opinions about complex and disputed matters.”  Judge Sabatino also disallowed expert witness bootstrapping when the purpose was to impeach credibility by one expert by referencing the work of another.

Judge Sabatino defended the argument by pointing out that having one witness testify about the position of another witness is impermissible hearsay, but courts have allowed the practice for experts as a means of validating testimony.  Although it had become commonplace, Judge Sabatino put a stop to the practice of bootstrapping by disallowing any effort to circumvent hearsay rules, even when attorneys are attempting to reinforce expert testimony by demonstrating consistency with other experts in the field.  Finding that allowing expert testimony “through the proverbial ‘back door’” via bootstrapping was in violation of New Jersey’s rules of evidence, the state appellate division instituted a prohibition on the practice that will largely effect plaintiff attorneys in personal injury cases who frequently employ the tactic.

Delaware Court Rejects Use of a Corporation as an Expert Witness

In late February, the Delaware Chancery Court was forced to consider whether or not a corporation could serve as an expert witness in a dispute over the valuation of a business.  Although corporations can be considered a legal person under other areas of legal doctrine, the Delaware court decided against extending personhood to corporations for the purpose of expert witness testimony.

Corporation Submits Expert Witness Report

In In re Dole Food Co, Inc. Stockholder Litigation the Delaware Chancery Court was asked to settle a dispute that arose over a valuation of stock between Dole and its controlling shareholder, David Murdock.  As part of the stock analysis, Dole was to submit a valuation of its business assets, but did not do so to Murdock’s satisfaction.  In response, Murdock hired Stifel, Nicolaus & Company Incorporated to conduct an independent review of Dole’s value and submit an expert witness report to aid the court in its decision.

The expert witness report submitted by Stifel was jointly signed by Stifel executives Seth Ferguson and Michael Securro, two ranking officers in the company.  Although Mr. Ferguson claimed primary responsibility for the contents of the report submitted by his company, he maintained that he was not hired as an expert witness to testify during trial and that Stifel was the official expert of record represented by the report.  Both Murdock and Ferguson argued Stifel was the expert hired to provide a value assessment of Dole’s assets for purpose of the trial, and the actual humans connected to the report were only connected as agents of Stifel, Nicolaus & Company.

Classifying a corporation as a person is not unheard of in the legal community.  Corporations have been considered “people” under campaign finance laws by the Supreme Court, and other arenas of law and economics similarly consider corporations to be treated as a person because of their ability to contribute to, and influence, legal and economic markets.  Classifying corporations as people allows the law to regulate and exercise authority over them without the necessity of separate rules.  Given the existing legal precedent for treating a corporation as a person, it is not surprising that a party make the attempt to extend the classification to expert witnesses, however, the Delaware Chancery Court declined the invitation and rejected Stifel as a viable expert in Murdock’s shareholder case against Dole.

Delaware Court Rules Corporations Cannot be Expert Witnesses

The Delaware Court acknowledged that corporations are often treated as “people” for legal and economic persons, but made an important distinction in the case of expert witnesses because all witnesses are required to testify from personal knowledge.  Further, any witness, including experts, must be able to take an oath or make affirmation to testify truthfully, have memory refreshed if need be, and either hear, or be sequestered from, the testimony of other witnesses.  Emphasizing this point, the Court wrote, “Lacking a voice, a corporation cannot testify.  Lacking ears, it cannot hear.  Lacking a mind, it cannot have personal knowledge or a memory to be refreshed.  Lacking a conscience, it cannot take an oath or provide an affirmation.”  Given this “incorporeal nature” of corporations, they cannot on its own do any of the things that witnesses are required to do.

The Court went on to point out that beyond failing to satisfy the requirements of witnesses in general, corporations also fall short of the standards required of expert witnesses.  According to the rule of evidence guiding expert witness requirements, an expert must be able to perceive facts and data, and to be qualified by “knowledge, skill, experience, training, or education.”  The Court stated that corporations can have attributes or culture, they cannot gain knowledge or acquire skills.  Nor can corporations interpret data or address problems with its analysis while questioned on the stand.

The Court acknowledged that agents for a corporation, such as Mr. Ferguson for Stifel, can bind corporations and be called to testify on behalf of a corporation, the inability of a business to satisfy the human elements required of an expert witness ultimately led to the decision that Stifel could not testify.  The Court concluded by allowing Mr. Ferguson to serve as the expert witness instead of Stifel, but would not allow the corporation to be the expert in the case.

Boston Marathon Bomber Trial Features Terrorism Expert Witness

This week the high profile trial of suspected Boston Marathon bomber Dzhokhar Tsarnaev featured expert witness testimony from a counter-terrorism expert called by prosecutors.  Defense attorneys representing Tsarnaev countered the terrorism expert with a vigorous cross-examination accusing him of portraying the defendant as a terrorist in order to sensationalize the trial and prejudice jurors.  Tsarnaev faces the death penalty if convicted for his actions to bomb the 2013 Boston Marathon.

Accused Boston Marathon Bomber on Trial

Dzhokhar Tsarnaev, who is accused of conspiring with his brother to plant two pressure-cooker bombs near the finish line of the 2013 Boston Marathon, has pled not guilty to the more than 30 counts against him, including murder and conspiracy to use a weapon of mass destruction to cause death, faces the death penalty if convicted. Dzhokhar and his older brother, Tamerlan, became the prime suspects immediately after the two bombs exploded during the 2013 marathon, killing three people and wounding more than 260.  Tamerlan died from wounds sustained during a subsequent shootout with police, but Dzhokhar was apprehended after being found hiding in a boat in the Boston area.

Over the last two years, police and prosecutors have gathered evidence to accuse Dzhokhar of over 30 counts of murder, attempted murder, terrorism, and conspiracy to cause death using weapons of mass destruction.  After a lengthy jury selection process, the guilt phase of Dzhokhar’s trial is underway and expected to rest later this week.  Depending on the verdict, prosecutors will then pursue the death penalty during a separate sentencing phase of the trial using the same group of jurors.  Using an expert witness to identify Dzhokhar Tsarnaev as a terrorist will not only aid the prosecution during the guilt phase of the trial, but will also provide an argument for aggravating circumstances that warrants consideration of the death penalty.

Prosecution Expert Witness Identifies Terrorist Behavior in Marathon Bomber

Earlier this week, prosecutors in the Boston Marathon bombing trial called Matthew Levitt, a terrorism expert at the Washington DC think tank The Washington Institute.  The Washington Institute analyzes United States policy in the Middle East, and Levitt has established himself as an expert in terrorist activities and ideals.  Levitt’s primary role in the trial was to examine a note written by Tsarnaev as he hid inside a boat while hiding from authorities after the marathon bombing.  The note, which is written in pencil on the wood lining the inside of the boat, criticized US activities in Muslim countries, asked Allah to make him a “Shaheed” (martyr), and included the phrase, “We Muslims are one body, you hurt one you hurt us all.”

While taking the stand as a terrorism expert witness, Levitt told jurors that the themes in Tsarnaev’s note are common among members of the global jihadi movement and echo ideas found lectures given by Anwar al-Awlaki – an American-born member of radical Islam with links to al-Qaida who was killed by a U.S. drone strike in Yemen in 2011.  Prosecutors argue that Tsarnaev’s note makes it clear that he and his brother saw the attack as a means of retaliation against US policy in the Middle East, and Levitt’s expert testimony supported the claim that the brothers “twisted Islamic principles” in a manner consistent with organizations defined as terrorists in the US.  Levitt’s terrorism expert witness testimony supplemented evidence gathered by the FBI from Tsarnaev’s computer and home that the prosecution has used to argue the defendant is an extremist who engaged in terroristic activities.

Defense Accuses Terrorism Expert Witness of Sensationalizing Case

Defense attorneys for Dzhokhar Tsarnaev have conceded that he was involved with the marathon bombing in 2013, but have argued that he was driven by the will of his older brother Tamerlan who planned the attack.  During cross-examination of the prosecution’s terrorism expert witness, Dzhokhar’s defense team criticized Levitt for attempting to sensationalize the trial by painting their client as a radical Muslim extremist, prejudicing the jurors against him.  Accusing Levitt of an opportunist who was looking to gain notoriety by testifying in a high profile trial, Tsarnaev’s defense team pried into the terrorism expert’s claims that the defendant was a radical extremist and not simply a teenager who was heavily influenced by his brother’s ideals.

The defense, which seems primarily focused on avoiding the death penalty, attempted to neutralize, or minimize, Levitt’s terrorism expert opinion by attacking his motives for taking the stand during the trial.  While not an uncommon strategy when cross-examining expert witnesses, defense attorneys will likely need to bolster their position that Dzhokhar was simply an accomplice to his brother’s schemes with expert testimony of their own.  The trial will continue throughout the week as the defense takes center stage.

Employment Discrimination Expert Witnesses Featured in Silicon Valley Lawsuit

The high profile gender discrimination lawsuit filed by Ellen Pao against her former employer Silicon Valley investment firm Kleiner Perkins Caufield & Byers culminated this week with an expert witness hired by the plaintiff eviscerating a defense expert’s testimony that the venture capital firm did not engage in discrimination against women.  Pao’s $16 million lawsuit has gained national attention for calling to question the male-dominated culture of Silicon Valley, so it is no surprise that both sides have turned to employment discrimination expert witnesses to discuss treatment of women in a high-end venture capital firm.

Ellen Pao Files High Profile Gender Discrimination Case against Venture Capitalist Firm

Ellen Pao, who was terminated from employment by venture capital firm Kleiner Perkins Caufield & Byers in October 2012, filed a lawsuit in California alleging that the company engaged in a pattern of sexual discrimination that created a hostile work environment for women.  During the trial, which has been closely watched in Silicon Valley investment circles, Pao’s lawyers painted a misogynistic picture of Kleiner Perkins by firing off a number of allegations including male partners saying women “kill the buzz” at meetings, taking all-male ski trips and dinners with Al Gore, having sexually inappropriate conversations about porn stars and “hot” female executives while on private planes, and giving inappropriate gifts such as a book of erotic poetry given to Pao by a senior male colleague.

Pao also claims that she was the victim of inappropriate sexual advances, was passed over for promotions because of her gender, and was retaliated against by a senior partner with whom she had an affair after she called the relationship off.  Citing an instance where two men with less seniority and experience were promoted instead of her, Pao highlighted her sexual discrimination lawsuit by arguing that the male partners preferred men in management roles.

Kleiner Perkins has focused much of its defense efforts on pointing to a consistent pattern of negative performance reviews given to Pao since she joined the firm in 2005, and her conflicts with employees throughout the firm.  Attorneys for Kleiner Perkins presented evidence to the jury that Ellen Pao was not qualified to succeed at the company regardless of her gender.  Supplementing the defense’s argument was a report from an outside investigator, Stephen Hirschfeld, who argued that the firm’s employment practices showed no evidence of gender discrimination.

Defense Expert Argues Against Gender Discrimination

On the eighth day of the trial, Stephen Hirschfeld took the stand as a defense expert witness to present the results of his investigation into Pao’s allegations that Kleiner Perkins engaged in gender bias against female employees.  According to Hirschfeld, Ms. Pao is smart, but difficult to work with and was unable to substantiate her serious allegations against the company.  Hirschfeld found no evidence of all-male trips that Pao complained of, and concluded that the relationship she had with a former managing partner at the firm was consensual and without consequence on her career.  After interviewing women who worked at Kleiner Perkins, Hirschfeld called the environment “tough but fair” where women can succeed.

In regards to Pao not getting promoted, Hirschfeld presented evidence that the plaintiff’s performance had not been well reviewed throughout her career, concluding that the partners had reason to pass over her in favor of more junior members of the firm.  Pao’s attorney criticized Hirschfeld for providing an incomplete analysis of the Kleiner Perkins environment, and this week the plaintiff called her own expert witness to contradict Hirschfeld’s investigation.

Plaintiff Expert Criticizes Bias Investigation in Pao Gender Discrimination Case

Attorneys for Ellen Pao called Allison West of Employment Practices Specialists as an employment discrimination expert witness to contradict Hirschfeld’s report that Kleiner Perkins did not engage in discriminator behavior.  According to West, Hirschfeld’s analysis failed to thoroughly evaluate whether or not the men at the company were held to different standards than the women.  While Hirschfeld researched Pao’s direct claims, West argued that he failed to look at men who were in the same position as the plaintiff to determine if they had similar challenges in succeeding at the firm.  Further, West testified that Hirschfeld did not completely investigate Pao’s complaints by failing to interview all relevant witnesses or consider evidence supporting her discrimination argument.

On cross-examination, West was subject to a rigorous attack from lead attorney for Kleiner Perkins, Lynne Hermle.  Hermle pointed out that Pao’s performance reviews had very little positive feedback, while the reviews for the two men who were promoted over her had several glowing remarks, arguing that West had also conducted a bias investigation into Pao’s case.  The Pao trial, which could send significant ripples across the Silicon Valley business landscape, will wrap up this week.