Author Archives: Kimberly DelMonico

About Kimberly DelMonico

Kimberly DelMonico is a licensed attorney in New York and Nevada. She received her law degree from William S. Boyd School of Law at University of Nevada, Las Vegas and her undergraduate degree from New York University, where she studied psychology and broadcast journalism.

Court room

Experts Overstating Forensic Results A Leading Cause of Wrongful Convictions

The National Registry of Exonerations recently released its report on Exonerations in 2018. Importantly, it found that official misconduct and misleading forensic evidence were the leading causes of wrongful convictions.

2018 Statistics on Wrongful Convictions

There were 151 exonerations that occurred in the United States in 2018. The exonerations were for the following crimes:

  • 66 murders
  • 2 manslaughters
  • 17 sex crimes – 7 of those involved children
  • 16 other violent crimes including arson, robbery, and attempted murder
  • 47 non-violent offenses including drug crimes, fraud, theft, and traffic offenses

These men and women who were exonerated spent more than 1,600 combined years in prison.

Causes of Wrongful Convictions

In these exonerations, offcial misconduct took place in 107 of these cases. Mistaken eyewitness identification occurred in 31 cases. False confessions were given in 19 cases. Perjury or false accusations occurred in 111 cases.

Almost one-third of these wrongful conviction cases involved a police corruption scheme in Chicago where a police officer framed individuals on drug charges.

In a New York Times report, reporter Heather Murphy examined the misleading forensic evidence that led to many wrongful convictions and how experts often exaggerated statistical claims to bolster their unscientific opinions.

Murphy noted that once an expert has been qualified to testify in a courtroom, there are often few limits on what they can and cannot say. According to Simon Cole, the director of the registry and a professor of Criminology, Law and Society at UC-Irvine, “An expert can say whatever they want.” This includes inventing odds like “one in a million” or “1 in 129,600.”

“A lot of the problem with forensic testimony is that the diagnosticity is overstated,” said Barbara O’Brien, a professor at the Michigan State University College of Law and author of the report. A hair sample at the crime scene that resembles a suspect’s hair “gets dressed up with this scientific certainty that isn’t justified,” she said.

Additionally, some forensic techniques that have been used to wrongly convict individuals have later been found to be invalid. In 2013, the FBI reported that testimony asserting that microscopic hair comparison could produce a match between two hairs was scientifically invalid. In 2018, an appeals judge declared that “scientific knowledge underlying the field of bite mark comparisons has evolved in a way that contradicts evidence” that was formerly used to convict a defendant.

Professional Exonerators

Luckily, there are professional organizations that exist for the sole purpose of exonerating those who have been wrongly convicted. Conviction Integrity Units and Innocence Organizations were responsible for 99 of the 151 exonerations that occurred in 2018.

Conviction Integrity Units are divisions of prosecutor’s offices that work to prevent, identify, and correct false convictions. In 2018, there were 44 Conviction Integrity Units in the United States, which is almost three times the number that existed just five years earlier but still a small fraction of the number of prosecutor’s offices that seek convictions in the United States. Conviction Integrity Units were responsible for 58 exonerations in 2018.

Innocence Organizations are non-governmental organizations that are dedicated to the exoneration of wrongly convicted defendants. In 2018, Innocence Organizations represented defendants in 86 exonerations.

Courtroom

Parties to Settle Matter of Expert Sanctions for Refusal to be Videotaped

A prominent New Jersey construction expert witness has reached a settlement that will vacate the court order that would have required him to pay over $22,000 for his refusal to be videotaped during a deposition. 

The Refusal to Be Videotaped

Michael Panish was retained as a critical liability expert by the Ruehl family after Mrs. Ruehl’s family claimed that she had been struck by a sliding door, which caused her to fall and eventually die. The Ruehl family hired Panish as an expert in multiple construction and building disciplines; specifically as an expert in the field of automated sliding glass door technology. Panish had indicated that he had served as an expert witness in over 1,000 past cases.

During discovery, the defendant wanted to take a videotaped deposition of Panish. Panish refused, citing a clause in his expert witness contract. The court ordered Panish to comply with the request.

When the Ruehl family’s attorneys, Bordas & Bordas, told Panish about the order, he said, “I don’t care about you or her [the decedent Plaintiff, Shirley Ruehl] or some asshole judge.” He also scheduled a deposition with the defendants and charged them for attending, but did not show up for it. He claimed to have been stricken with laryngitis. 

The Sanctions

The defendants requested that the court sanction Panish for his conduct. The court awarded $22,270.30 in sanctions. Panish fought back and appealed his case to the U.S. Court of Appeals for the Third Circuit.

Expert Witness’s Defense

Panish said that he told the Bordas firm at least 18 times that he would not agree to be videotaped. Panish’s attorneys said, “Mr. Panish does not permit videotaped depositions of himself, except under very limited circumstances, to protect his professional reputation and image. … Mr. Panish does not permit his picture to be taken for professional purposes and does not even use his picture on his website.”

“It is unconscionable that the Bordas law firm allowed the issue to fester until March 2017 when the firm could have, and should have, secured a substitute liability expert early in the case or seek permission from the Court to extend discovery to do so,” Panish’s lawyers wrote.

Panish’s attorneys argued that he was not subpoenaed by the defendants to testify at deposition and noted that the Bordas law firm withheld defendant’s notice to take Panish’s deposition for three weeks before providing him with the notice. They wrote, “It is reasonable to infer under the circumstances that the Bordas law firm wanted to avoid confronting the reality of the fact that it had known for three years that Mr. Panish would not permit his deposition to be videotaped.”

Panish’s attorneys also noted that “neither Plaintiff nor Defendant moved for an order compelling Mr. Panish to testify at deposition. Even if either party had done so, it is respectfully submitted that this Court could not compel Mr. Panish’s deposition as his engagement with the Bordas law firm set forth the terms and conditions of his retention.”

The parties have since filed a joint motion to settle the matter as long as the court orders of sanctions were vacated. Additional terms were not disclosed.

Gun with ammunition

Multiple Expert Witnesses Testify in Russ Murder Trial

A medical examiner, a toxicologist, and multiple law enforcement officers have testified in the murder trial of Michael Isaac Russ.

The Killing

On December 22, 2017, Larry Wayne Campbell, 27, of Denton, North Carolina, was shot and killed in a parking lot outside of a barbecue restaurant.  According to the Randolph County Sheriff’s Offices, Campbell had been shot by an unknown person and died of his wounds at the scene. The shooter was seen driving away in a black Toyota truck.

Michael Isaac Russ was later apprehended as a suspect in a traffic stop.  Russ had a criminal record dating back to 2007 that includes traffic violations, assault, and carrying a concealed gun. Russ was later charged with Campbell’s murder and held at the Randolph County Jail without bail.

Theory of the Case

According to prosecutor King Dozier, Campbell and his friend were riding on their motorcycles to lunch when they rode past Russ’ home. Russ, who was on his way to a Hell’s Angels meeting, started tailgating the two men. He followed them to the parking lot of BBQ Joe’s, where words were exchanged. According to witnesses, Russ then shot Larry Campbell seven times.

However, Russ’ defense team argued that Russ was actually defending himself when he fatally shot Campbell. In his opening statement, defense attorney Thomas Manning explained that Russ was simply a motorcycle lover who was curious to see and meet the riders. He told the jury, “Mr. Russ fires in self-defense because he’s looking down the barrel of a loaded gun.”

Medical Examiner Testimony

The prosecution called Dr. Kimberly Janssen of the North Carolina Office of the Chief Medical Examiner to testify at trial. The court accepted Dr. Janssen as an expert in forensic pathology.  Dr. Janssen was the medical examiner who performed the autopsy on Campbell’s body after he was fatally shot.

Janssen testified that after she autopsied Campbell’s body, she concluded that he had been healthy prior to his death and the cause of his death was “multiple gunshot wounds and homicide.”

Defense attorney Manning questioned Janssen about the trajectory the bullet took through Campbell’s hand. He said that the trajectory would have been most likely if Campbell had been holding his hand at an angle at which he was holding or aiming a firearm. Janssen did not disagree with Manning about the angle.

Sheriff’s Office Testimony

Captain Steven Nunn of the Randolph County Sheriff’s Office testified that he interviewed Roy Pruitt, Campbell’s close friend and an eyewitness to the shooting. Nunn also downloaded information from Russ’ iPhone and computers. Nunn said that Russ’ iPhone had been wiped clean of all data. However, he was able to extract information from two of Russ’ three computers.

Forensic Toxicologist Testimony

Dr. Ruth Winecker, a retired chief toxicologist for the North Carolina Office of the Chief Medical Examiner, tested the Campbell’s blood in 2017. Winecker, who is an expert in forensic toxicology, performed multiple different toxicology tests on the blood. Winecker explained that the test she runs ″look for drugs and poisons.”  The only substance found in Campbell’s blood was caffeine.

Wooden mallet

Oxygen TV Investigation Finds Evidence of Sexual Assault

An investigation conducted in preparation for an Oxygen TV special revealed that there was evidence of sexual assault in a death that had been previously ruled a suicide.

The Death

On July 13, 2011, authorities found the body of 32-year-old Rebecca Zahau naked and tied with rope at the Spreckels Mansion, where she lived with her boyfriend, multi-millionaire pharmaceutical CEO Jonah Shacknai. Her hands and feet were tied with red polypropylene rope, which was tied to a bed frame in her bedroom.

Her boyfriend’s brother, Adam, claimed to have found Zahau hanging from the second-story balcony. He told authorities that he had cut her down and gave her CPR.

According to the sheriff’s report, Adam Shacknai was the only other person on the property when Zahau died. Authorities concluded that Zahau had committed suicide. They believed that she was upset after her boyfriend’s 6-year-old son fell to his death while in her care.

Civil Wrongful Death Suit

Zahau’s family never accepted that she committed suicide.  In 2013, they hired attorney Keith Greer to look into Zahau’s death further.

Zahau’s family sued Adam Shacknai for her wrongful death. A civil jury found that Shacknai was responsible for Zahau’s death. Shacknai’s insurer settled the case for $600,000. Shacknai maintains that the settlement happened without his knowledge or involvement.

The Civil Investigation

A team that worked on a TV special for the Oxygen Network, Death At The Mansion: Rebecca Zahau, looked over the evidence that Greer collected. This team included old case investigator Paul Holes, former prosecutor Loni Coombs, and crime journalist Billy Jensen.

Holes told the producers of the show that the lack of severe damage to Zahau’s neck was a “red flag.” He said, “For me, the biggest thing in my mind that I really want to dig into further is the amount of damage to her neck. …  If this was this true long-drop execution hanging, I would expect a lot more trauma, if not near-decapitation — broken neck, internal decapitation or full decapitation, after this victim had dropped nine to 10 feet.”

Holes told the show’s team that he believed that Zahau was killed and that her killer lowered her body from the balcony.  He said, “Just know that she did not take full force of a nine-foot fall … nine-foot drop, as hanging goes, is considered a long drop — devastating injury to the neck. But, she has minor damage to cartilage in the neck; no injury to the vertebrae anywhere on her neck.”

Holes also noted that Zahau’s hyoid bone and larynx, or voice box, were fractured. Holes said that a hyoid fracture is often “used as a diagnostic for manual strangulation.” 

Forensic pathologist Dr. Rebecca Hsu agreed. She explained that the hyoid is high up in the neck, protected behind the glandular structure and neck muscles.  “It’s not an easy thing to break with ligature. … It’s much easier to break if you have a manual strangulation, where fingers are going in and up.”  She continued, “I can tell you — I have seen quite a few hangings, and I don’t see fractures.”

Additionally, investigators believe that Zahau had been sexually assaulted. Forensic specialist Lisa DeMeo testified at the civil trial that Zahau’s menstrual blood was found on all four sides of a knife handle that was found at the scene of the crime. Greer argued that the only way that the blood could have gotten on the knife handle was if she was sexually assaulted. DiMeo also opined that the mark of blood on Rebecca’s inner thigh was a transfer stain from a sexual assault with a knife handle.

Law enforcement agencies reviewed the case following the civil trial. At a news conference following the review, Rich Williams of the San Diego sheriff’s department homicide unit announced that no evidence of sexual assault was found in either autopsy.

Bloody knife

Connecticut Supreme Court Vacates Conviction While Expert Defends Work

The Connecticut Supreme Court has vacated the murder convictions of two men who were convicted of murder and have spent decades in prison. The court’s decision was based on its determination that the testimony of an expert witness was incorrect. 

The Crime

On December 2, 1985, Everett Carr, a 65-year-old man from New Milford, Connecticut, was stabbed approximately 27 times and found lying in a pool of blood in his home. Authorities arrested then-teenagers Ralph Birth and Shawn Henning, who had stolen a vehicle nearby, for the murder.  

The Expert Testimony

At trial, renowned Connecticut-based forensic scientist Dr. Henry Lee told the jury that he had performed tests on two towels and that “a smear of blood was” found on one of them from Carr’s upstairs bathroom. 

At the time of the trial, Dr. Lee was the Connecticut State Police’s forensic laboratory director. He is now a high-profile criminologist who has worked on cases all over the world.

Prosecutors at trial argued that Dr. Lee’s testimony about the bloody towel meant that the two teenagers went to the bathroom to clean themselves up after the murder. This testimony about the bloody towel was used to explain why no blood was found on either of the two men or the car that they stole.

In 1989, Shawn Henning and Ralph Birch were convicted in the stabbing death of Everett Carr. Both teens were sentenced to life in prison by two separate juries.

The Connecticut Supreme Court’s Ruling

Decades later, the convicted murderers filed petitions for habeas corpus, arguing the “bloody towel” that Dr. Lee testified about was never tested for blood. When the towel was finally tested, it proved negative for blood.

In a 7-0 ruling, the Connecticut Supreme Court vacated the convictions of Henning and Birch.

The court’s decision was written by Justice Richard Palmer. Palmer wrote, “The state also adduced testimony from Lee … to explain how it was possible that the petitioner [Birch] and Henning could have stabbed the victims so many times without getting any blood on their clothing and without transferring any blood to the Buick. Lee explained that, although the victim fought with his assailants, all of the blood splatter in the hallway was uninterrupted, meaning that no individual or object was between the victim and the walls or floor to interrupt the blood splatter. According to Lee, this could explain why the assailants were not covered in the victim’s blood.”

The Aftermath

Birch, who was sentenced to 55 years in prison, is still imprisoned awaiting the state’s decision on whether to retry him. Henning, who was sentenced to 50 years in prison, has been out of parole since July 2018.

Dr. Lee’s Reaction

Dr. Lee has defended his conclusions. He told the Connecticut Law Tribune, “Somehow, I’ve become the casualty for this legal problem. The towel was tested. It was a light smear of blood. I spent two days on the scene and did numerous tests.”

Court room

Prosecution Challenges Psychologist Testimony in Rape Case

The prosecution in a Santa Cruz, California rape case is challenging the credibility of a proposed defense expert on sexual consent.

The Crime

Christian Daniel Rodriguez, 29, of Watsonville, California is accused of raping and restraining a woman on September 11, 2015. Rodriguez is charged with five felonies: two charges of rape by force or fear involving an impaired victim and a victim who is falsely imprisoned; two charges of forced sodomy; and false imprisonment. Rodriguez has denied all charges.

The Trial

Rodriguez was tried for the first time in January 2017, but the jury was unable to reach a unanimous verdict. The vote was deadlocked 11 to 1. Rodriguez was scheduled for a retrial. The retrial was postponed four times during 2018. Rodriguez’ second trial finally began on January 30, 2019. He has been held in Santa Cruz County Jail since December 4, 2015 with a bail that was set at $100,000.

Rodriguez’ current trial is being held in front of Santa Cruz County Superior Court Judge Stephen Siegel. Multiple witnesses have testified, DNA evidence has been filed, and a transcript was read from previous testimony by the woman who has alleged that she was raped. There was also a transcript from the prior case where a witness confirms that someone was held down and raped.

Rodriguez has nine prior criminal cases that have been tried in Santa Cruz County Superior Court. In 2010, he was convicted of having sex with a minor more than three years younger than him and soliciting or encouraging a minor in connection with the sales or transport of a controlled substance.

Expert Witness Controversy

Public defender Alyssa Thompson is representing Rodriguez. Thompson proposed to add Dr. Deborah Davis as an expert witness to testify on Rodriguez’ behalf.

Dr. Davis is a professor at University of Nevada who specializes in psychology and law. Specifically, Dr. Davis focuses on the areas of: witness memory, false confessions, issues of sexual consent, rules of evidence, and jury research. Prior to her tenure at University of Nevada, Dr. Davis served as an assistant professor of psychology at Georgia State University and Southern Illinois University and as a post-doctoral research associate at Ohio State University, where she received her Ph.D. She also currently serves on the Faculty of the National Judicial College.

Attorney Thompson submitted a PowerPoint presentation that described the topics of Dr. Davis’ testimony. Prosecution took issue with the contents of the presentation.

Assistant District Attorney Steven Moore filed a motion that disputed the credibility of Dr. Davis on the issue of sexual consent. He wrote, “The use of statistical charts to prove consent or a defendant’s mental state is not admissible . . . . If it were, the people would call rape experts to show that only two percent to eight percent of women falsely report rape. I would then argue that just based on the report alone, our case is proved to be 92 percent to 98 percent accurate.”

Human brain

Expert Testifies SC Man Charged with Killing 5 Children Has Brain Defects

A brain expert has testified that the Lexington, South Carolina man who is charged with killing his five children has suffered from long-term brain injuries.

The Crime

In 2014, 37-year-old Timothy Jones, Jr. killed his five children. According to prosecutors, Jones killed his son Nahtahn, 6, after the boy broke an electrical outlet in their mobile home on August 28, 2014. Jones then strangled his 8-year-old daughter Merah and his 7-year-old son Elias with his hands. Jones then wrapped a belt around the necks of his 2-year-old son Gabriel and 1-year-old daughter Abigail and ended their lives.

Jones reportedly stuffed all of the bodies in garbage bags, loaded their remains into his Cadillac Escalade SUV and drove them through four different states. He finally dumped his children’s bodies in a deserted part of Camden, Alabama.

On September 6, 2014, Jones was arrested at a police checkpoint in Smith County, Mississippi after an officer detected what he described as “the smell of death” along with blood, maggots, and synthetic marijuana.

Under police questioning, Jones admitted to killing his children, but said that he did so as preemptive self-defense. Jones stated that he was worried that they would “chop him up and feed him to the dogs.”

Jones was charged with five counts of murder in connection with his children’s deaths. He faces the death penalty if convicted.

Murder Trial

Jones’ defense team has conceded that Jones killed his children, but he has pleaded not guilty by reason of insanity. In their opening statements, Jones’ lawyers claimed that he suffers from undiagnosed schizophrenia. Jones’ defense team brought in a brain expert to testify in his defense.

Dr. Travis Snyder is a neuro-radiologist from Las Vegas. He testified via prerecorded testimony about his examination of an MRI scan that was taken of Jones’ brain in April 2018. Dr. Snyder testified that he found evidence of “serious traumatic brain injury” in the left frontal lobe of Jones’ brain. He categorized this injury as a decompressed skull fracture. This testimony aligns with earlier defense statements that Jones was involved in a bad car accident as a teenager.

Dr. Snyder testified that people with injuries such as Jones’ may experience such symptoms as lower IQs and trouble focusing. However, not everyone has the same side effects. With regards to Jones’ MRI scan, Dr. Snyder testified that “You can have injuries to the corpus callosum, in a traumatic brain injury, but it could potentially relate to schizophrenia or schizoid-effective type disorders, it’s a positive correlation . . . it’s very difficult to [diagnose] schizophrenia from an MRI. I want to be clear to the jury, to diagnose schizophrenia from an MRI is very difficult.” Dr. Snyder testified that the scan indicated a likelihood of a schizophrenia diagnosis.”

However, Dr. Snyder also testified that current scientific research does not indicate that traumatic brain injuries cause schizophrenia. He said, “I don’t think it’s accepted medical fact that a traumatic brain injury causes schizophrenia, there may be some research that talks about it but schizophrenia does not have [a] known cause, it’s multi-factorial.”

Update

Notwithstanding Dr. Snyder’s testimony, the jury found Jones guilty. He has been sentenced to death.

DOJ Seeks to Limit Expert Testimony in CVS-Aetna Merger Case

CVS and the U.S. Department of Justice are seeking to block or limit the testimony of the American Medical Association’s proposed witnesses in the CVS-Aetna merger review.

The DOJ’s New Scrutiny of Vertical Mergers

In December, CVS Health, the nation’s largest pharmacy chain, agreed to purchase Aetna, the third largest health insurance company for $69 billion. This deal represents a vertical merger, where two companies who work in similar industries want to combine.

Until recently, vertical mergers did not raise concern for regulators. However, the Department of Justice’s Antitrust Division recently filed a lawsuit against AT&T after it agreed to acquire Time Warner. The AT&T-Time Warner deal went through, but it caused uncertainty about what factors the Federal Trade Commission and the DOJ will use to evaluate similar cases.

CVS and Aetna Merger

The CVS and Aetna merger agreement came about ten months after Aetna terminated its agreement to buy its competitor, Humana, for $37 billion. A federal judge had ruled that Aetna’s purchase of Humana would violate antitrust laws.

Here, the Department of Justice challenged the CVS and Aetna deal on the grounds that the merger would harm competition in the Medicare Part D market in some locations in the United States. To settle the DOJ’s antitrust concerns, CVS and Aetna sold Aetna’s Medicare Part D business to WellCare Health Plans. Following the sale, the deal was closed in November.

Tunney Hearing

Under the Tunney Act, courts have the power to review DOJ decisions. Here, federal District Court Judge Richard Leon ordered a Tunney hearing to review the parties’ consent decree. Essentially, Judge Leon is tasked with reviewing the CVS-Aetna merger. Judge Leon’s role is to examine the settlement agreement between the DOJ, CVS, and Aetna and determine whether it is in the public’s best interest.

Judge Leon has previously voiced his skepticism of the deal that CVS and Aetna struck with the DOJ. He said that the settlement only addresses “about one-tenth of 1%” of the issues with the merger.

Proposed Expert Witnesses

Judge Leon released a list of witnesses that consisted of representatives of groups that had filed amici curiae briefs against the deal, including the American Medical Association and the American Antitrust Institute.

CVS and the DOJ objected to the American Medical Association’s proposed economics and health experts, Richard Scheffler and Neeraj Sood, and antitrust legal expert, Tim Greaney. The government also objected to other witnesses proposed by the AIDS Healthcare Foundation, Consumer Action, and U.S. PIRG.

Attorneys for CVS and the Department of Justice filed motions arguing against allowing the amici curiae witnesses to testify because the testimony is likely to be outside of the bounds of the limited review of the Tunney hearing.

CVS argued that the amici curiae “have made clear they intend to use these Tunney Act proceedings as a platform to present theories of purported harm to competition that the government has not alleged — theories the government in fact rejected after a lengthy and thorough review.”

Rapper Drake

Expert Witness Files Small Claims Case Against Drake

An expert witness has filed a small claims case against Drake, claiming that the rapper failed to pay his expert witness fees.

The Original Lawsuit

Drake, the Canadian rapper, singer, songwriter, actor, and producer, was involved in a legal dispute with the production company, Hebrew Hustle. 

On April 16, 2014, Hebrew Hustle and the Estate of James Oscar Smith sued Drake and Cash Money Records, claiming that Drake had infringed upon one of their songs. Hebrew Hustle claimed that Drake willfully infringed their song by using an unapproved sample of the late Jimmy Smith’s 1982 song “Jimmy Smith Rap” on his “Pound Cake/Paris Morton Music 2.”

Drake filed a countersuit. In his suit, Drake claimed that Hebrew Hustle and its founder, Stephen Hacker, had improperly used Drake’s name and likeness to promote his business by implying that he had worked with Drake. The claimed implication was in a line of text on the Hebrew Hustle website. The line at issue, which has since been deleted, read, “[Hacker] played a heavy hand with his clients in the creation of hit songs for the likes of Eminem, Jay-Z, Kanye West, Lil Wayne, Drake, Nicki Minaj, and others.”

Drake argued that Hacker and Hebrew Hustle had engaged in false endorsement and violated his right of publicity. He also claimed mental distress, claiming that the name of the company “perpetuates stereotypes regarding persons of Jewish heritage, such as [Drake].”

On May 30, 2017, the United States District Court for the Southern District of New York dismissed with prejudice all the Copyright Claims that Hebrew Hustle and the Estate of James Oscar Smith had filed against Drake.

Expert Witness Testimony

Drake retained CMG Worldwide Founder & Chairman, Mark Roesler, to testify on his behalf in his lawsuit. Roesler has been described as a “dominant force in the evolving intellectual property arena.”

Drake and Hebrew Hustle eventually settled their dispute. According to the agreement, Hebrew Hustle “agreed to compensate [Drake] on confidential financial settlement terms for the False Endorsement and Right of Publicity claims and also to the entry of this consent order.” The parties also agreed that Hebrew Hustle was prohibited from ever using Drake’s name or image on their website.

The agreement provided that:  Hebrew Hustle can no longer use Drake’s name, image, and likeness. Drake’s claims were now considered dismissed with prejudice. Each party would pay their own attorney fees and legal costs. The consent order did not prohibit Hebrew Hustle from appealing their case against Drake. In any post-appeal proceedings on copyright claims, each party’s respective legal rights are fully reserved.

Small Claims Filing

This month, Roesler filed a small claims suit against Drake. The expert claims that Drake never paid him the fee that they agreed upon for his testimony that was given at the October deposition.

Roesler claims that he was deposed in October 2018 for over 8 hours. He claims that Drake agreed to pay a $5,312 for Roesler’s services, but he has not received that amount.


Photo Credit: Drake [CC BY 2.0], musicisentropy.

Domestic violence

Oklahoma Governor Signs Bill Allowing Expert Testimony in Domestic Violence Cases

Oklahoma Governor Kevin Stitt has signed into law a piece of legislation that will allow expert witnesses to testify in cases of domestic violence about the effects of violence on their victims and their children and the risks that abusers pose to the victims and children.

Oklahoma Senate Bill 958 was a bipartisan bill that was sponsored by Senator Kay Floyd [D] and Representative Kevin West [R]. The bill was intended to clarify the admissibility of certain expert testimony.

Amended Statute

The bill amends 22 O.S. 2011, Section 40.7 to read:

In an action of a court of this state, if a party offers evidence of domestic abuse, testimony of an expert witness including, but not limited to, the effects of such domestic abuse on the beliefs, behavior and perception of the person being abused shall be admissible as evidence.

The bill was passed unanimously by the House of Representatives.

Legislative Intent

The new legislation clarifies that in Oklahoma courts, if a party presents evidence of domestic violence, an expert witness may testify about the effects of violence on the abused. 

Bill co-sponsor Representative West said of the legislation, “It is not acceptable that expert testimony regarding the effects of domestic violence on children and other family members is excluded. . . . I am confident this will be a significant benefit to victims of domestic violence throughout our state, as well as a wake-up call for the abusers.”

The bill’s other sponsor, Senator Floyd, said, “Expert witnesses should be allowed to present research-based and data-driven testimony on the effects of domestic violence on children. This change is long overdue.”

Impact of Legislation

The prior version of the statute did not allow testimony that included the impact of domestic violence that was witnessed by children or allow the presentation of evidence that shows the common traits of abusers, the various types of domestic violence, generational cycles of violence or treatment options.

The updated version of the statute allows such testimony; however, it will still be subject to vigorous cross-examination. The court will remain the gatekeeper of evidence and testimony that is allowed to be presented at trial.

Rules of Evidence

In Oklahoma, the rules of civil procedure allow testimony by expert witnesses.

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise, if: 

     1. The testimony is based upon sufficient facts or data;

     2. The testimony is the product of reliable principles and methods; and

     3. The witness has applied the principles and methods reliably to the facts of the case.

12 OK Stat § 12-2702 (2014)

Oklahoma follows the Daubert test for the admissibility of expert witness testimony.  Scruggs v. Edwards, 154 P.3d 1257 (Okla. 2007). Under Daubert, the court should ask four questions to help determine the admissibility of expert testimony: “1. Can the expert’s theory or technique be, or has it been, tested; 2. Has the expert’s theory or technique been subjected to peer review and publication; 3. Is there a “known or potential rate of error … and the existence and maintenance of standards controlling the technique’s operation; and 4; Is there widespread acceptance of the theory or technique within the relevant scientific community.”