Author Archives: T.C. Kelly

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

Court room trial

Expert Testimony Excluded Because It Was Based on Unauthenticated Fax Logs

Experts often base opinions upon data contained in documents. Sometimes the accuracy of that data seems self-evident. A log of fax transmissions printed out by a fax machine may seem like reliable data, but a recent decision from the Court of Appeals for the Sixth Circuit held that the data in the log needed to be authenticated. Since it was not, the expert’s opinion was inadmissible.

The Sixth Circuit decision reminds lawyers that they cannot assume the accuracy of data in documents that an expert uses to form an opinion. Rather, the lawyer may need to authenticate the documents with testimony from someone who has personal knowledge of the accuracy of the information contained in the document.

TCPA Lawsuit

Brian Lyngass is a dentist in Michigan. Twice in March 2016, he received an unsolicited fax on his office fax machine. Both faxes advertised a toothbrush. The company that manufactures the toothbrush, Curaden AG, is a Swiss corporation. It distributes and promotes its products in the United States through Curaden USA, a subsidiary that is incorporated in Ohio.

Curaden USA began an advertising campaign that included sending unsolicited faxes to dentists like Lyngass. The advertisements included Curaden USA’s contact information, including a fax number, phone number, email address, website, and social media accounts.

Lyngass began a class action lawsuit against Curaden USA and Curaden AG on behalf of dentists who received faxes from Curaden USA. The Telephone Consumer Protection Act (TCPA) allows individuals who receive unsolicited faxes to sue for actual damages or $500 in statutory damages. A judge may award attorneys’ fees to a prevailing plaintiff. 

The TCPA lends itself to class action lawsuits. Recipients of unsolicited faxes are all victims of an identical TCPA violation. Since statutory damages for each violation are small, victims have little incentive to sue individually. A class action allows all victims to band together to bring a lawsuit for significant damages.

Curaden AG argued that it took no action in the United States and did not approve Curaden USA’s unlawful fax distribution scheme. The appellate court concluded that the district court had jurisdiction over Curaden AG because it established Curaden USA in the United States and had the right to approve marketing plans and entered into distribution agreements with its worldwide distributors. The more important ruling from the standpoint of an expert witness blog concerned Lyngass’ reliance on expert testimony to support class certification and an award of damages.

Class Certification

Before a lawsuit can proceed as a class action, the district court must certify that the plaintiffs have satisfied the standards for class action litigation. The court was satisfied that the class of dentists who received Curaden faxes should be certified. On appeal, Curaden argued that the district court improperly relied on inadmissible evidence to support its certification decision.

The companies argued that class certification was inappropriate because the evidence before the court did not establish that all of the class members received unlawful faxes. If some dentists in the class received the fax but others did not, the plaintiffs would need to prove which members of the class were entitled to collect damages, rather than relying on classwide evidence to prove that they were all entitled to damages.

The plaintiffs relied on “summary-report logs that purportedly listed each successful recipient of the two fax advertisements by fax number.” The logs were printed by the fax machines that transmitted the ads. The plaintiffs argued that the summary-report logs would establish that each class member received an unlawful fax. Curaden argued that logs were inadmissible because the plaintiffs did not authenticate them. In other words, the plaintiffs offered no evidence that the logs actually identified the class members who received unlawful faxes.

Courts have been divided in deciding whether they may rely on inadmissible evidence when certifying a class. The Sixth Circuit joined the Eighth and Ninth Circuits in holding that evidence need not be admissible at the certification stage if it is reliable and may become admissible at trial. When documents are probably authentic, they are reliable. Since the plaintiffs advised the court that they would be able to authenticate them after further discovery, the judge was entitled to rely upon them.

The court limited its decision to inadmissible but reliable nonexpert evidence. The court made it a point to avoid deciding whether expert testimony must be reliable to support class certification.

Expert Testimony

After certifying the class and denying summary judgment to Curaden, the district court held a trial. The court excluded from evidence both the summary-report logs and the opinions of the plaintiffs’ expert witness, Lee Howard. However, the court determined that the Curaden companies violated the TCPA. The court then established a claims administration procedure that required individual dentists who wanted a share of the damages to file an affidavit stating that they received a Curaden fax and did not give Curaden permission to send it.

On appeal, the plaintiffs argued that the logs were admissible. The appellate court agreed with the district court that the plaintiffs offered no witness to “attest as to how the logs at issue were created or to personally vouch for their accuracy.” Perhaps a fax machine expert or an employee of the company that manufactured the machine could have vouched for the accuracy of the summary-log reports, thus overcoming the court’s doubtful concerns that a fax machine might malfunction or produce inconsistent results.

The court excluded Howard’s expert opinion about the number of successful fax transmissions because it was premised on the inadmissible summary-log reports. Howard also relied upon “an affidavit from the president of WestFax that was filed in another case and thus did not address the specific data at issue in the present case.” The court concluded that Howard’s opinions did not satisfy Daubert because they were not based on “known facts” but on speculation that the fax machine created an accurate record of the faxes that it transmitted.

Lessons Learned

The Lyngass decision teaches that expert opinions based on documents may be rejected as unreliable if the documents are not authenticated. Authenticating documents is not always easy. Employees of the company Curaden hired to send the faxes may have been unwilling to testify that they knew the summary-log reports were accurate. Perhaps someone with expert knowledge of the particular make and model of fax machine at issue would need to supply that information. Perhaps an expert would need to examine the machine to determine that was functioning properly. It is difficult to know what evidence would satisfy the court of the reality that fax machines nearly always print accurate logs of the faxes they transmit.

Given the absence of any reason to suspect that the fax machine produces an inaccurate record of the faxes it transmitted, making lawyers jump through hoops to prove their accuracy seems silly. Still, lawyers should keep in mind that if they want an expert to offer opinions that are based on documents, a court will probably require them to prove that the data in the documents is accurate.


California Limits Hearsay Testimony that Gang Experts May Give

Courts often apply rules of evidence that permit an expert witness to base opinions on facts that are not within the expert’s personal knowledge — that is, facts the expert did not acquire through personal experience or observation — if the facts are “of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” The rule allows experts to testify about hearsay that would otherwise be inadmissible.

Does the rule allow experts to testify about any fact that the expert relies upon, simply by claiming that experts in the field routinely rely upon facts of that type? Too many courts answer “yes” to that question. The California Supreme Court recently explained how limitations to the rule affect the testimony that a “gang expert” may give in a criminal prosecution.

Gang Crimes in California

California law makes it a crime to be an “active participant” in a criminal street gang. The law also enhances penalties for felonies that are committed as a “criminal gang activity.”

To convict a defendant of participating in a street gang or to obtain enhanced penalties for a felony charge, the prosecutor must prove beyond a reasonable doubt that the defendant actively participated in a criminal gang with the knowledge that the gang’s members engage or have engaged in a pattern of criminal gang activity. The prosecutor must also prove that the defendant assisted or promoted the gang’s commission of a felony.

California law defines a “criminal street gang” as a group of three or more people if the group: (1) is identified by a common name or symbol, (2) commits specified crimes as a primary activity, and (3) whose members engage or have engaged in a pattern of engaging in criminal gang activity. A “pattern of criminal gang activity” means to commit two or more specified crimes at separate times within three years of each other. Courts refer to those earlier crimes as “predicate offenses.”

Facts of the Case

Two men were sitting on the tailgate of a truck at a carwash in Arvin. Shots were fired in the direction of the two men. A bullet struck the leg of one man. An officer in a nearby patrol car saw another pickup truck driving slowly past the carwash. The officer saw flashes from the pickup truck that coincided with the sound of shots fired.

The officer chased the truck and eventually arrested its two occupants. Jose Luis Valencia was driving and Edgar Isidro Garcia was in the passenger seat. The officer saw Garcia throw something from the vehicle. A cylinder from a revolver was later found in the vicinity where Garcia threw the object.

The two men were charged with a variety of crimes, including attempted murder and committing a drive-by shooting. They were both charged with active street gang participation. The prosecution also sought street gang sentencing enhancements for the other felonies.

Expert Witness

To prove that the defendants belonged to a gang that had engaged in a pattern of criminal gang activity, the prosecution relied on the testimony of Arvin Police Officer Ryan Calderon as a gang expert. Calderon claimed expertise because he had “personally investigated about 200 crimes involving the Arvina 23 gang.”

Calderon testified about monikers, graffiti, tattoos, colors, and territory that he associated with the Arvina 13 gang. In Calderon’s opinion, Valencia and Garcia were members of the Arvina 13. Calderon based that opinion on their tattoos and police contacts.

Calderon testified that the shooting in which Valencia and Garcia engaged benefitted Arvina 13 by “creating community fear and gang notoriety.” Calderon identified three predicate offenses committed by alleged Arvina 13 gang members: assaults in 2008 and 2010 and an attempted robbery in 2013.

Calderon had no personal knowledge of the predicate offenses. He did not investigate those crimes. Rather, he learned about them “from conversations with other officers and a review of police reports.”

Admissibility of Gang Expert Testimony

Most courts allow gang experts to testify, despite the doubtful admissibility of their testimony. Police officers are trained to enforce the law, not to make sociological determinations. They often cherry-pick their facts and support their opinions with no identifiable methodology, much less one that is clearly reliable.

Despite the dubious nature of gang expert testimony in general, the California Supreme Court reviewed the convictions of Valencia and Garcia to address a narrow question. The defendants argued on appeal that Calderon was not entitled to base his opinion on facts about which he had no personal knowledge.

To prove that members of the gang to which the defendant belonged committed at least two predicate offenses within the statutory timeframe, prosecutors must generally present evidence “of who committed the crime and when they did so, as well as evidence of their gang membership and the nature of the crimes.”

The prosecution argued that Calderon was entitled to rely upon hearsay to form opinions if other experts in the field would generally do so. The prosecution contended that the hearsay testimony was admissible because it was not offered to prove that what the officer was told was true, but to establish the basis for the officer’s opinions. Of course, if the facts are not true, they have no value and no expert should consider them.

Hearsay and Expert Testimony

The rule that allows experts to testify about facts that are generally known to people who share a field of expertise — facts acquired in school or professional training and by reviewing research conducted by other experts — recognizes the impracticality of requiring experts to have personal knowledge of all the facts upon which they rely. Scientists rely upon the conclusions of experiments without performing those experiments themselves. It simply isn’t possible for experts to acquire all the facts from personal experience that they glean from reading journal articles or by listening to other experts speak at professional seminars.

California courts thus draw a distinction between general facts that are part of the expert’s base of knowledge and facts that are specific to the case in which the expert testifies. Case-specific facts must be established by witnesses who have personal knowledge of those facts. In criminal cases, allowing an expert to give hearsay testimony about case-specific facts might violate the defendant’s right to confront the witness who supplied those facts, because that witness is not subject to cross-examination.

Experts can rely on case-specific hearsay if a witness with personal knowledge testifies that the facts are true. Experts can be asked to assume the existence of those facts and to express opinions that are based on those assumed facts. Those hypothetical questions are only proper, however, if a witness with personal knowledge has testified about the existence of the assumed facts.

Some courts do allow experts to testify about case-specific facts if they recite the mantra that experts in their field reasonably rely upon such facts to form opinions. Those courts often instruct juries that the hearsay facts should not be taken as true. 

The California Supreme Court recognized the incongruity of an instruction that asks a jury not to accept as true the facts that an expert relies upon in forming an opinion. “When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth.” Since the jury will certainly regard the hearsay facts as evidence of the defendant’s guilt, those facts must be established by independent evidence.

Expert Testimony About Predicate Offenses

The state supreme court noted that it can be challenging to draw “the line of demarcation between background and case-specific information”. The court met the challenge rather easily. The court suggested that “information about gangs, like their territory, symbols, and operations” is admissible background information if the information is “generally accepted as true by experts in the field.” Whether two or more police officers who compare notes about their conclusions can create data that is “generally accepted as true by experts in the field” is a question the court did not address.

The court rejected reasoning from intermediate appellate decisions that distinguished “historical facts” about a gang’s conduct from “specific facts relating to the events and participants involved in the case being tried.” The gang statute requires those “historical facts” to be established as case-specific evidence. The specific crimes committed by specific members of a specific gang are not background facts that are “generally accepted” by other gang experts. They are facts known only to officers who investigated the specific crimes that are alleged as predicate offenses. Telling another officer about the results of a specific investigation of a crime does not make the investigation’s results “generally accepted” by all experts in gang behavior.

The supreme court recognized that prosecutors use “gang experts” to place evidence before the jury that the prosecutors cannot prove independently. The court put an end to that abusive practice by requiring evidence of predicate offenses to be established by the independent testimony of a witness with personal knowledge before the expert can rely on the existence of predicate offenses when the expert offers opinions.

Lessons Learned

The California Supreme Court’s decision draws a sensible line between background facts that may be part of an expert’s testimony, even if it is hearsay, and background facts that an expert can only testify about in response to a hypothetical question after the facts have been established by other witnesses. While the court’s decision may be compelled by the Confrontation Clause in some criminal cases, the reasoning is equally applicable to civil cases. Other state courts that struggle to understand when an expert can testify about otherwise inadmissible hearsay would benefit from reliance on the Valencia decision.

Judge in courtroom

Mississippi Affirms Conviction Based on Groundless Expert Testimony

Curtis Valentine, while driving at a high speed, failed to maintain control of his vehicle on a sharp curve. Valentine’s vehicle left the road and crashed into a tree. His front-seat passenger died.

Police officers who investigated the crash reported that Valentine was “acting crazy,” “irate, walking around,” and “constantly yelling.” Connie Dolan, an officer of the sheriff’s department who was described as an accident reconstruction expert, observed no skid marks. She smelled the odor of marijuana in the vehicle.

Dolan requested a warrant to obtain a sample of Valentine’s blood. After his blood was drawn at a hospital, Valentine was told that his passenger had died. Valentine “went ballistic” and shoved Dolan.

A few days later, Dolan interviewed Valentine in his home. Valentine said that he smoked marijuana the night before and the morning of the crash. He also said that he had taken Xanax that was prescribed to his mother. He admitted that he had taken his eyes off the road.

Prosecution’s Expert Testimony

A toxicologist at the Mississippi Crime Lab. Alyssa Bailey, testified that Valentine’s blood had tested positive for THC, Topamax (an anti-seizure medication), and Xanax. Bailey claimed that Valentine was under the influence of all three drugs.

Bailey testified that Xanax and Topamax are central nervous system depressants that can impair reaction times. She testified that those drugs can also affect judgment, motor function, and coordination. She also testified that THC can impair reaction time. She concluded that Valentine had smoked marijuana “fairly recently.”

Defense Expert Testimony

Dr. James O’Donnell, an expert in pharmacology, testified for the defense. Dr. O’Donnell testified that the trace amount of THC in Valentine’s blood was insufficient to have any clinical effect.

The lab reports contained no measurement of the other two drugs, making it impossible to say that they had an effect on Valentine. Based on the reports and on his observations of Valentine on body cam recordings, O’Donnell expressed the opinion that Valentine was not under the influence of any drug.

Sufficiency of Evidence

A jury found Valentine guilty of “aggravated DUI causing death.” In Mississippi, driving under the influence means driving while the ability to control a vehicle is lessened due to a state of intoxication.

On appeal, Valentine argued that the prosecution presented no evidence that he was under the influence. The state supreme court disagreed and affirmed the conviction.

Valentine maintained that the accident occurred because he was speeding. Mississippi precedent establishes that speeding is not evidence of being under the influence of an intoxicant.

The state supreme court noted that Valentine wasn’t just speeding but was driving at 70 to 90 mph when he approached a curve that was controlled by a 20-mph speed limit. The court seemed to think that “speeding really fast” is evidence of intoxication even if a lesser speeding offense is not. No expert testimony suggested that driving at any particular speed is a sign of intoxication.

The accident reconstruction expert testified that Valentine should have seen the curve and the speed limit sign. Drivers are frequently involved in accidents that they should have avoided. That fact does not establish their intoxication.

The accident reconstruction expert also testified that Valentine was having a “rage episode” at the scene and later when he was in the hospital. Accident reconstruction is based on principles of engineering, not psychology. Someone who was just involved in an accident and whose lover had just died might well respond to tragedy with rage. Hysterical behavior after a crash is not evidence of intoxication before a crash. The reconstruction expert’s testimony falls fall short of proof of intoxication.

Toxicologist’s Unsupported Testimony

The court was satisfied that intoxication was established by the toxicologist’s testimony. Yet the toxicologist had no scientific basis for her opinion. No studies establish a level of THC in blood that is consistent with intoxication. In fact, the National Institute of Justice recently reported that “there is little evidence correlating a specific THC level with impaired driving.”

Xanax can certainly affect driving skills, but the defense expert testified that the lab results did not establish the amount of Xanax that was present in Valentine’s blood. That testimony was apparently uncontradicted. The scientific evidence established only that Valentine used drugs at some point. It did not establish that he was under the influence of those drugs when he was driving.

As the dissent noted, Bailey did not testify about the amount of Xanax that is needed to have an impact on a driver’s ability to drive safely. Nor did she testify that the amount of Xanax in Valentine’s blood was sufficient to impair the ability to control a vehicle. Rather, she gave conclusory but unsupported testimony that Valentine was under the influence. The dissent concluded that Bailey’s testimony did not satisfy Mississippi’s legal standard for DUI “because Bailey could not and did not say whether the drugs had lessened Valentine’s normal ability for clarity and control.”

Proposed Jury Instruction

Bailey should never have been allowed to testify that Valentine was “under the influence” because she had no scientific data to form that expert opinion. In fact, she testified that, in her expert opinion, having any intoxicating substance in a driver’s blood means that the driver is under the influence of that substance.

Bailey’s testimony was outrageous. There is no scientific basis for the view that having a measurable amount of a drug in a driver’s blood causes a driver to be under the influence of that drug. It is for that reason that some states have enacted laws making it unlawful to operate a vehicle with any detectable amount of an unlawful drug in the driver’s blood. Those laws save the prosecution the trouble of proving that the drug made any difference in the driver’s ability to drive safely. Mississippi has no such law.

To counter Bailey’s testimony, the defense asked the court to instruct the jury that that the mere consumption of a drug is insufficient to prove that a criminal defendant was driving “under the influence” of an intoxicant. The trial judge instead gave the standard instruction that the state was required to the state to prove that the defendant was “driving in a state of intoxication that lessens a person’s normal ability for clarity and control.”

Since “under the influence” means a lessening of the normal ability to control a vehicle, Bailey’s testimony allowed the jury to conclude that the mere consumption of drugs lessens the ability to control a vehicle. The standard instruction did nothing to counter the prejudicial impact of Bailey’s blatantly false testimony.

As the dissent noted, “Valentine’s proposed jury instruction was an accurate statement of the applicable Mississippi law and was needed not only to inform the jury of all the elements of the offense but also to provide the jury a correct statement of Mississippi law on the element of driving under the influence, which had been stated incorrectly by the State’s toxicology witness.” In its eagerness to uphold a conviction, the majority was unmoved by the dissent’s reasoned analysis.

Lessons Learned

It isn’t clear whether Valentine’s lawyer moved to exclude the toxicologist’s testimony on the ground that it failed to satisfy the Daubert standard. It seems likely that the testimony blindsided the lawyer at trial. 

Valentine’s lawyer objected to the toxicologist’s unfounded testimony when it was offered on the ground that it misstated the law. He offered his own expert’s testimony to counter the notion that unmeasured quantities of drugs prove impairment of the ability to control a vehicle. He also proffered a jury instruction that would have corrected the toxicologist’s misstatement of the law. Valentine was nevertheless convicted and his conviction was inexplicably upheld on appeal. 

Mississippi purports to follow the Daubert standard. Bailey’s testimony was unsupported by a reasonable scientific methodology because no scientific literature establishes that the presence of any amount of Xanax or TCH in a person’s drug affects the ability to control a vehicle. Bailey appears to have given that testimony to help the prosecution obtain a conviction, not because the testimony is grounded in science. Sadly, some court decisions all but ignore the Daubert standard in criminal cases and allow experts to favor the prosecution with slanted testimony. The Mississippi Supreme Court’s decision is an unfortunate example of such a case.


New Hampshire Supreme Court Relies on Language Expert to Strike Down Voter Suppression Law

One of the nation’s many ongoing political debates involves the regulation of voting. Some people argue that voting, as the essence of democracy, should be as easy as possible. Others argue that voting rules should minimize the possibility of fraud, even if the rules make it more difficult to vote.

Laws that make it difficult to vote are often challenged in court. A recent case in New Hampshire illustrates how expert witnesses help courts understand the impact of laws that might burden the right to cast a ballot.

New Hampshire Law

A New Hampshire town election in 2020 sparked claims of voter fraud. An audit determined that some ballots had been folded in a way that caused a counting machine to count too many or too few votes for a candidate whose name was in line with the fold. The audit found no evidence of voter fraud.

Alleged concerns about voter fraud in New Hampshire predated the 2020 election. In 2017, the New Hampshire legislature changed its voting laws to remedy a nonexistent problem. A key change affected voter registration.

Under previous law, voters who registered could present proof that they lived in the voter district or could sign an affidavit affirming that their stated identity, age, citizenship, and place of domicile (place of residence) were all true. The new law required anyone who registered more than 30 days before an election to present proof that they were domiciled in the voting district where they registered. The affidavit that was formerly used was not regarded as proof.

Voters who registered within 30 days of an election were given a choice. If they had “documentary evidence” of their intent to be domiciled at their registered address, they could check a box stating that they would submit that evidence within ten days after voting. If they failed to do so, “official mail” would be sent to their registered address to confirm their domicile. A voter who failed to meet the 10-day deadline was also subject to civil or criminal penalties.

If the registering voter had no “documentary evidence” establishing an intent to be domiciled at their registered address, the voter could check a different box. “Official mail” would then be sent to their registered address to confirm the voter’s domicile.

Registering voters who stated that they had “documentary evidence” of their intent to be domiciled at their registered address were given a separate form that described the kinds of evidence that the state deemed acceptable. That evidence included proof of purchase of residential property within the district, proof that a lease was executed within the district more than 30 days before the election, proof of residency at a college dorm, proof that the voter’s dependent minor child was enrolled in a public school within the district, or a New Hampshire driver’s license or ID showing an address within the district.

Challenge to Voter Registration Law

The state Democratic party and the League of Woman Voters sued the Secretary of State, alleging that the new law violated the New Hampshire Constitution by unreasonably burdening the right to vote. The trial judge entered a preliminary injunction against the law on the ground that threatening to jail voters for failing to deliver paperwork to a county office within ten days after an election would deter people from voting.

The court noted the absence of any evidence that voters were unlawfully registering and voting in New Hampshire districts. Since there was no compelling need for a law that would suppress voting, the judge determined that it was probably unconstitutional. 

The injunction prevented the law from taking effect prior to state elections in 2018. However, the Supreme Court vacated the injunction to avoid confusion, since it was entered shortly before the election was to occur. It nevertheless maintained an injunction against enforcement of the provision that allowed voters to be punished for failing to submit evidence of their domicile within 10 days after the election.

The trial court then heard evidence to decide whether a permanent injunction should be entered. The trial focused on the complex and confusing language used in the various forms that were provided to voters who wanted to register within 30 days of an election.

Plain Language Expert 

The challengers to the election law called Deborah S. Bosley as an expert witness. Bosley is a professor emeritus of technical communication at UNC Charlotte, a former board member of the Center for Plain Language, and the owner of The Plain Language Group. Her expertise is in helping organizations create written information that is easy to use and understand.

Bosley knew from its title that New Hampshire’s new “Verifiable Action of Domicile” document wouldn’t be easy to read. She reviewed that document and the new six-page voter registration form. She conducted a readability analysis and tested the documents’ usability in the age group 18-29, which has the lowest voter turnout in New Hampshire. She compared the documents to Federal Election Commission standards and to standards followed by experts in the field of plain language. 

Bosley concluded that the voter registration form is “written at a readability level equivalent to the Harvard Law Review.” Bosley testified that the Verifiable Action of Domicile is “written at the level of a first-year graduate student and that both forms would be very difficult for the average adult to read and understand.”

The State called no expert witness to challenge Bosley’s testimony. Based on her uncontested opinions, the trial court determined that the language in both forms was “needlessly complex, both in length and in diction.”

Other Expert Witnesses

The League of Women Voters also called Muer Yang as an expert witness. The League identified Yang as a leading expert on voter line management and optimization, a subset of the field of mathematics known as queuing theory. Yang testified that the new law would lengthen voter registration lines and increase the time it would take voters to register.

Michael Herron, a professor of government at Dartmouth, testified as an expert in the statistical analysis of election administration. Herron analyzed the new law using the “calculus of voting” theory, which examines the impact of the costs and benefits of voting on the decision to vote. Herron testified that the costs imposed by the new law would have a disproportionate impact on certain voters, including college students, highly mobile voters, and the homeless. He concluded that, over time, fewer people would participate in New Hampshire elections as a result of the new law.

Trial Court Decision

The trial court credited the expert testimony in finding that New Hampshire’s new voter registration law was unconstitutional. The court agreed with Bosley that the language of the new documents was confusing and needlessly complex. The court agreed with Yang that the new law would increase the time it takes to register.

Based on that testimony, the court identified voter confusion and longer lines as costs associated with the new law. Those costs, as well as fear of being jailed if the required information could not be provided promptly after the election, burdened the right to vote. The court agreed with Herron that certain voters would be discouraged from voting because of the new law.

Evidence of how the new law affected the 2018 election confirmed the experts’ conclusions. The court found that some registrants filled out the registration form incorrectly by checking both boxes. Other registrants left the polling place because they did not believe they could register without producing immediate evidence of their address. Some election officials turned away registrants who did not produce required documents despite their willingness to do so after the election. Several college students testified that they did not register because they believed they would be unable to prove their residence within the district.

The court also noted that honest voters who were eligible to vote would be subjected to criminal prosecution if they failed to produce required documents within ten days after the election. The court concluded that subjecting honest, eligible voters to the risk of criminal prosecution because they did not gather documents and bring them to a municipal clerk within a short window was an unreasonable burden on the right to vote. 

The trial court found that unrebutted expert testimony, “supported by testimony from a multitude of witnesses and the State’s own data, suggests that the complicated and confusing nature of the forms will increase average registration times and result in longer lines at polls,” which, “together with navigating the forms and the penalties, may outweigh the benefit of voting for some individuals.” The trial court concluded that the new law, “if fully implemented, will suppress voter turnout.” It therefore invalidated the law.

State Supreme Court Decision

The New Hampshire Supreme Court affirmed the trial court’s decision. The supreme court rejected the state’s argument that the trial court based its ruling on anecdotal evidence. The supreme court accepted the trial court’s findings that its decision was “supported by the persuasive and credible expert testimony offered by Plaintiffs, for which the State had no effective rebuttal.”

In the end, expert testimony carried the day for the election law challengers. The state’s failure to call its own experts to challenge any of the expert opinions offered by the plaintiffs amounted to a concession that those opinions were correct. The supreme court affirmed the trial court’s decision because expert testimony firmly established that New Hampshire’s new law would unreasonably burden the right to vote and would suppress voter turnout with no demonstrable improvement of election integrity.

gun and bullets

California Court Limits Admissible Testimony of Ballistics Expert

Tuala Auimatagi is accused of committing two murders in August 2019. The first charge involves a drive-by shooting in West Sacramento. The second shooting took place a week later in Richmond, California. Both victims were shot with a rifle.

No eyewitness identified Auimatagi as the shooter in West Sacramento. The only eyewitness to the Richmond shooting was the victim’s girlfriend. She told a police detective that Auimatagi broke into her home to retrieve a handgun that she had given to the victim. The victim’s girlfriend claimed she saw Auimatagi shoot the victim. However, the girlfriend died before the case went to court, leaving the prosecution with no eyewitness.

The prosecution was able to use the girlfriend’s hearsay statement at a preliminary hearing. Based on that statement, the court found that there was probable cause to charge Auimatagi with the Richmond homicide.

Forensic Expert’s Opinion

Images from street cameras established that Auimatagi was in a black BMW on nearby roads in West Sacramento on the day of the first shooting. The prosecution relied on the expert testimony of Alex Taflya to link Auimatagi to that shooting.

Taflya is a forensic expert employed by the Yolo County Sheriff’s Office. He compared the bullets that killed both victims. Tayfla testified that the two bullets shared markings that suggested they were fired from the same firearm. However, Tayfla could not evaluate the firearm and therefore could not be certain that the bullets were fired from the same gun.

Tayfla testified that, assuming the similar markings were not made by characteristics that are common to the same make and model of firearm, they were fired by the same gun. In the court’s view, Taflya’s testimony was sufficient to establish probable cause to support the prosecution’s charging decision. Whether that testimony would be admissible at trial was a separate question.

Subclass Markings

Fans of the CSI series might believe that ballistics is a rigorous science. A critique of firearms identification prepared by a committee of the National Research Council (NRC) in fact been described ballistics as “part science and part art form.”

Markings are made on bullets as they travel through the barrel of a gun. Some of those markings (known as class characteristics) might be made by thousands of firearms of a particular model and manufacturer. Other markings (known as individual characteristics) are made by particular guns and may be unique to an individual gun.

In a middle range between class characteristics and individual characteristics are subclass characteristics. The NRC notes that subclass characteristics are caused by the gun’s manufacturing process. They may be present in only a small subset of guns that were manufactured in the same place and at the same time, but they are not uniquely caused by a particular gun. Two different guns can produce identical subclass characteristics.

The Limits of Firearms Identification Evidence

The NRC review makes clear that it is impossible to be certain that two bullets were fired from the same gun without examining every gun that could have fired the bullets. The fact that two bullets share similar markings does not rule out the possibility that they were fired from two guns that happen to cause similar markings. The President’s Council of Advisors on Science and Technology (PCAST) agreed that ballistics evidence, like much other evidence involving forensic standards, is too subjective to produce consistently reliable results.

In addition, to know whether markings are individual characteristics or subclass characteristics, it is necessary to know the manufacturer and model of the gun from which the bullet was fired. Firearms examiners can generally rule out the possibility that two bullets were fired from the same gun when their markings are different. Concluding that two bullets were fired from the same gun is much more difficult. It is usually impossible to draw that conclusion with any certainty if the examiner does not have the gun from which the bullets were fired.

Expert Opinion Limited

As Auimatagi’s case approached trial, his lawyers filed a motion to exclude Talfya’s opinions on the ground that they were not reliable. The trial judge decided that Talfya would be allowed to testify, but that his testimony will be limited.

The judge decided that Talfya can testify that he saw similar markings on the bullets recovered in the two shooting. The judge allowed Talfya to describe how guns leave markings on bullets. Talfya will also be allowed to testify about the characteristics of the markings he saw on each bullet.

Talfya will not be allowed to testify, as he did in the preliminary hearing, that the bullets came from the same gun “assuming” that the similarities were not characteristics produced by all guns within the same subclass. The judge recognized that Talfya’s assumption was “not supported by the facts or the science and misstates the level of scientific certainty of his findings and is therefore misleading.”

If he is asked on direct or cross-examination, Talfya will also be allowed “to testify that he cannot exclude or eliminate the bullets as coming from different guns.” He “will not be permitted to describe any greater level of scientific certainty than the bullets may or may not have come from the same gun.” Since Talfya doesn’t know whether the bullets came from the same gun, he shouldn’t be permitted to hint that they probably did.

Lessons Learned

The defense relied on two expert witnesses, Dean David Faigman and Nicholas Scurich. Faigman was a Senior Advisor to the PCAST Report, “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods.”

The Auimatagi prosecution underscores the importance of consulting with a defense expert whenever the prosecution relies on a forensic expert. Expert witnesses can provide vital testimony at trial to counter the prosecution expert’s opinions.

As importantly, defense experts can support a challenge to the admissibility of a prosecution expert’s testimony. Given the tendency of prosecution experts to overreach, employing a defense expert early in the case can assure that juries never hear harmful opinions that amount to improper speculation.

Improper Testimony by Expert Witness Did Not Require New Trial in Florida Negligence Case

Beverly Bowers sued Andrew Tillman for negligence. Tillman was driving a truck in Florida that collided with Bowers’ vehicle. Bowers contended that Tillman’s negligence caused painful injuries to her neck and back, including migraine headaches. The defense argued that those symptoms were caused by a preexisting condition.

At her initial trial, the lawyers for both sides engaged in gladiatorial behavior. They were rude to each other, sometimes in the presence of the jury. After five days of trial, the trial judge had enough and granted a mistrial.

The unprofessional conduct continued in the second trial. At the end of the trial, the jury awarded Bowers $58,248 for her past medical expenses and $27,300 in lost wages. The jury determined that her injuries were not permanent and awarded her nothing for future medical care or loss of earning capacity. Remarkably, the jury made no award for pain and suffering.

Bowers moved the trial court for a new trial. She based her motion in part on improper comments made by an expert witness for the defense. The judge denied the motion and Bowers appealed.

Defense Expert’s Comments

Dr. Robert Kowalski testified as an expert for the defense. Prior to trial, Bowers asked the court to exclude any testimony referring to matters outside the record. The court granted that motion. In particular, the court precluded any reference to the content of medical records that Dr. Kowalski had not seen.

The defense had complained that Bowers did not produce her chiropractic records. The court ruled that the defense could not speculate that the records would “show x, y, or z about the Plaintiff” or to argue “we just don’t know because the Plaintiff did not give them to us.”

Notwithstanding that order, Dr. Kowalski testified on direct examination that he believed certain records of Bowers’ chiropractic treatment would support his opinion that her injuries were caused by a preexisting condition. The records were not in evidence and Dr. Kowalski’s suspicions about their content were therefore unsupported.

Dr. Kowalski’s testimony was a blatant violation of the order limiting his testimony. Whether Dr. Kowalski was aware of that order was unclear to the appellate court, but ignorance is no defense. The insurance defense lawyer had a duty to instruct Dr. Kowalski to follow the court’s order. Whether the fault lay with the lawyer or the expert witness has no bearing on whether the improper testimony deprived Bowers of a fair trial.

Bowers objected to the testimony. The court sustained the objection and instructed the jury to disregard the comments. The court denied a motion for a mistrial.

Hidden Medical Record

Bowers originally claimed that certain abdominal symptoms were caused by the accident. She withdrew that claim well before trial. The court entered an order prohibiting reference to her abdominal issues.

Tillman’s attorney assembled a 140-page exhibit that purported to include medical and billing records related to Bower’s injury claims. In the middle of that exhibit, the attorney buried a single page from a urology record that related to the abdominal treatment. Bowers’ attorney did not notice that the page was included in the lengthy exhibit.

During his closing argument, the defense attorney placed the urology record on a screen for the jury to view. The attorney directed the jury’s attention to a urologist’s comment that Bowers’ attorney had referred Bowers to a chiropractor. After Bowers objected, the defense lawyer continued to display the exhibit to the jury until the court ordered him to shut off the display.

No other evidence at trial suggested that Bowers saw a chiropractor at the suggestion of her attorney. The court determined that defense counsel deliberately smuggled an improper exhibit into the compilation of medical records so that he could present otherwise inadmissible evidence to the jury during his closing argument. The court ordered the urology record to be removed from the exhibit, ordered defense counsel not to comment upon it further, and instructed the jury to disregard it.

Appellate Decision

As the appellate court recognized, Dr. Kowalski’s testimony about the presumed content of the chiropractic records bolstered his opinion about a preexisting condition. It was clearly improper to violate an order that was entered to protect Bowers from improper speculation about the content of records that Dr. Kowalski had never seen.

The improper testimony was compounded by defense counsel’s reference to a urology record that he buried in the middle of a compilation of medical records. The appellate court condemned counsel’s “gotcha” tactic and observed that lawyers, as officers of the court, have a special duty “to avoid conduct that undermines the integrity of the adjudicative process.” Defense counsel fell well short of fulfilling that duty.

In her motion for a new trial, Bowers argued that the trial court should take notice of other cases in which defense counsel had engaged in improper trial tactics that prompted a new trial. The trial judge decided that the bar association, rather than the court, should determine whether counsel had engaged in a pattern of misconduct. The appellate court held that the trial court did not err by basing its decision on the case before it rather than other cases in which defense counsel participated.

The ultimate question before the appellate court was whether the expert’s improper testimony, combined with the improper closing argument, deprived Bowers of a fair trial. The jury’s failure to award her any compensation for pain and suffering is strong evidence that the jury believed Bowers was unworthy of compensation. The improper expert testimony and closing argument would be a reasonable explanation of the jury’s conclusion.

The appellate court, however, decided that the trial judge was in the best position to decide whether the improper conduct probably had an impact on the jury. That’s true, but it is likely true that the trial judge didn’t want to preside over another contentious trial involving the same lawyers. The appellate court did not evaluate the trial court’s reasoning. It also failed to offer any alternative explanation for the jury’s failure to award damages for pain and suffering after awarding substantial compensation for medical expenses and lost wages. Whether the appellate court reached the correct result is difficult to determine when the appellate court defers to a decision that it fails to analyze.

Lessons Learned

A lawyer might be tempted to learn from the Bowers decision that introducing inadmissible testimony through an expert witness is the path to victory. A better lesson to learn is that lawyers jeopardize their reputations by engaging in sharp practices.

It isn’t clear whether the expert knew about the order limiting his testimony. It therefore isn’t clear whether the expert knowingly did anything wrong. It is nevertheless a lawyer’s duty to acquaint a testifying expert with limitations that a court has imposed on the expert’s testimony. A lawyer’s failure to do so places a favorable verdict at risk. While the improper expert testimony did not lead to a new trial in Bowers’ case, lawyers should never assume that eliciting improper testimony from an expert witness will have no consequences.


Is It Ethical for a Medical Examiner to Testify for the Defense?

Medical examiners are employed by state and local governments to determine a cause of death. Television shows tend to portray medical examiners as forensic detectives. While medical examiners often find information that helps investigators solve crimes, mission is simply to determine why someone died.

In routine cases, the cause of death is not a mystery. Most states require an autopsy to be performed when the cause of death is suspicious or unknown. Medical examiners often perform autopsies when a death probably resulted from homicide, suicide, an accident, or an occupational hazard. In those cases, a medical examiner typically dissects and examines the body and review results of lab tests to determine why a person died. Sometimes the medical examiner will need to sort through multiple causes to determine whether any of them would have been sufficient to cause death in the absence of the others.

In some cases, the cause of death is disputed. Those disputes may arise in criminal cases or in wrongful death lawsuits. When a medical examiner draws conclusions from medical evidence that is open to interpretation, a party may retain a pathologist as an expert witness to offer alternative explanations for a death. It is then up to a jury to decide whether to accept the medical examiner’s opinion.

The Importance of a Second Opinion

While medical examiners are usually reliable witnesses, no witness is infallible. In homicide prosecutions, defense attorneys often submit autopsy reports to independent pathologists to determine whether the medical examiner’s opinion is open to doubt.

Writing for MedPage Today, Dr. Judy Melinek relates the story of a forensic pathologist who was asked by the family of a man who died in police custody to perform a second autopsy. The pathologist noted that the man’s neck had not been fully dissected. When she opened the neck, she found a bag of drugs that was blocking the back of the man’s throat. The pathologist who performed the first autopsy missed a likely cause of death.

The privately retained pathologist told Dr. Melinek that she was accused of planting the drugs. Since autopsies are usually performed in the presence of photographers and lab assistants, planting evidence would typically be a difficult task. Nor was there any reason to believe that the private pathologist had any incentive to do so.

According to Dr. Melinek, however, attacks upon the integrity of privately retained experts are common. One pathologist, for example, discovered a broken hyoid bone that the first autopsy missed. A fractured hyoid bone is rare and is typically caused by strangulation. The pathologist who found the fracture was accused of breaking the bone himself. He was eventually exonerated, but only after years of fighting the false accusation. The accusation has followed the pathologist, making lawyers reluctant to hire him as an expert witness.

The Ethics of Testifying

Medical examiners work for the government. They don’t work for prosecutors. Their job is to advance the truth, not to advance a prosecution. Unfortunately, as Dr. Melnick points out, “there is a subset of prosecutors who believe, and will not be dissuaded, that the investigative work done by a medical examiner always ought to align with the goals of law enforcement. Some forensic pathologists feel the same way.” Those pathologists serve a law enforcement agenda when discovering the truth should be their only agenda.

Dr. Melnick reports that some medical examiners refuse to speak to defense attorneys. A medical examiner should have nothing to hide. Refusing to discuss findings with a defense attorney sends the message that the medical examiner is an advocate for the prosecution rather than an advocate for the truth.

Doctors who are employed by the government sometimes disparage forensic pathologists who are hired by defense attorneys. In fact, an expert who is called to testify by a defense lawyer is bound by the same ethical obligations that should govern the testimony of a medical examiner. The primary obligation is honesty. When a cause of death is a matter of probability and other causes remain possibilities, an honest witness should readily admit that fact.

When Dr. Melnick worked as a pathologist for a medical examiner’s office, she did some consulting work in civil and criminal cases, including work for prosecutors in other counties. Her employer told her that her testimony created a conflict of interest. In fact, there is no conflict in testifying for “the other side” because the truth does not take sides. As Dr. Melnick puts it, “We are neither defense witnesses nor prosecution experts. We are witnesses for the voiceless. We speak for the dead.”

Government employers that restrict the work of pathologists are interfering with a justice system that depends on the honest testimony of expert witnesses. Government employees who launch “whisper campaigns” to destroy the reputations of pathologists who give honest testimony for other parties place their own reputations, and the reputations of honest colleagues, at risk. Nobody trusts an expert who makes groundless attacks upon other experts simply because they follow the evidence to the truth that it reveals.

side view of empty hospital bed

Expert Testimony Supported Claim Against Hospital for Negligent Credentialing

The Iowa Supreme Court recently reversed a lower court decision that dismissed a lawsuit against a hospital for negligently credentialing a surgeon. The Supreme Court agreed that an expert’s opinion that the hospital was negligent was admissible and that the opinion entitled the patient to a jury trial in his negligence claim against the hospital.

Facts of the Case

Dr. David Segal performed surgery on Roxanne Rieder’s neck and lower back at Mercy Medical Center in 2015. In the days following the surgery, Rieder experienced severe pain in her lower back, radiating into her left leg. She told Dr. Segal that she felt tingling and numbness in her leg and that she could not lift it off the bed.

Dr. Segal performed a second surgery of Rieder’s lower back to decompress nerve roots. Three days later, Rieder was discharged. She continued to experience pain in her neck, both arms, and both legs, as well as numbness and related symptoms.

On the day of her discharge, the Iowa Board of Medicine filed charges accusing Dr. Segal of “professional incompetency” concerning his treatment of several other patients. At some point prior to the surgery he performed on Rieder, Dr. Segal informed Mercy Medical Center than he was being investigated by the Board of Medicine. Mercy did not suspend his credentials while the investigation was pending.

Expert Opinion on Standard of Care

Rieder sued Dr. Segal and several other entities, including Mercy. Rieder settled with all of the defendants except Mercy. Mercy contended that it had no duty to take action against Dr. Segal until the Board of Medicine revoked his license.

Rieder contended that Mercy was negligent in continuing to credential Dr. Segal after learning that he was under investigation. In support of that position, Rieder offered the expert opinion of Dr. Charles Pietrafesa. Dr. Pietrafesa opined that the applicable standard of care required Mercy “to take swift and immediate action to limit, restrict, or suspend Dr. Segal’s privileges with respect to care of any patients at Mercy at that time.”

Mercy took Dr. Pietrafesa’s deposition. Dr. Pietrafesa explained that Mercy breached the standard of care by failing to conduct its own investigation into Dr. Segal’s competency after learning that he was being investigated by the Board of Medicine. Dr. Peitrafesa also testified that, had it conducted an investigation, Mercy would have discovered facts that would compel a reasonable hospital administrator to suspend Dr. Segal’s privileges immediately.

Dr. Pietrafesa identified additional facts that, in his opinion, triggered a duty to suspend Dr. Segal’s surgical privileges. Dr. Segal had been sued for malpractice seven times and had been sent to the Center for Personalized Education for Physicians due to concerns about his competency. Mercy also received a subpoena for records of surgical complication rates that should have alerted it to issues requiring further investigation.

The trial court concluded that Mercy Hospital did not have sufficient information to create a duty to suspend Dr. Segal’s surgical privileges. Because it did not know the basis of the Board’s investigation, it would not have known that he posed a serious risk to his patients.

The court also ruled that evidence of earlier malpractice claims was inadmissible under Iowa law. The court decided that Dr. Pietrafesa’s opinion was inadmissible because it relied on the prior lawsuits.

Negligent Credentialing

Most states recognize that a hospital can be liable for negligent credentialing. Iowa’s courts have ducked the issue in the past. The Iowa Supreme Court ducked it again in Rieder’s case. Since Mercy did not claim that negligent credentialing is not a viable tort claim in Iowa, the Supreme Court assumed for the purpose of this case only that liability exists for negligent credentialing.

The Supreme Court rejected Mercy’s argument that it had no duty to investigate Dr. Segal. A hospital always has a duty to exercise reasonable care for its patients. The question is not whether it had a duty but whether it breached that duty by failing to conduct an investigation.

The dispositive question was whether Dr. Pietrafesa’s expert testimony was sufficient to establish that Mercy was negligent. The Supreme Court agreed with the trial court that evidence of prior malpractice lawsuits is not relevant proof that a doctor was negligent in some other case. But Dr. Pietrafesa did not rely on the lawsuits as proof that Dr. Segal was negligent. He testified that a reasonable hospital administrator, confronted with those lawsuits, would be negligent not to investigate the competency of a doctor who had been sued so many times. The Supreme Court agreed that the lawsuits were relevant to Mercy’s credentialing decision.

Whether the lawsuits themselves were admissible evidence did not determine whether Dr. Pietrafesa was entitled to rely on them in forming an expert opinion. Experts are entitled to rely on the kind of facts that are reasonably relied upon by other experts in a field, whether or not those facts are admissible evidence. Precedent from other states satisfied the Court that experts would reasonably rely upon the existence of malpractice lawsuits when they decide whether a hospital was negligent in credentialing a surgeon.

Finally, the Supreme Court decided that Dr. Pietrafesa’s expert opinion was sufficient to create a dispute of fact that entitled Rieder to a trial. Dr. Pietrafesa testified that the combination of facts known to the hospital, including the fact of the Board of Medicine’s investigation, the Board’s subpoena for medical records concerning complication rates from Dr. Segal’s surgeries, and multiple malpractice lawsuits filed over a span of years, would have alerted a reasonable hospital to the need to investigate Dr. Segal’s competency. Since the hospital did not do so, Dr. Pietrafesa’s expert testimony would allow a jury to find that the hospital was negligent in credentialing Dr. Segal.



When Must a Summary Witness Testify as an Expert?

Federal courts may allow a summary witness to explain how documents and testimony fit together. The Court of Appeals for the Fifth Circuit recently rejected the argument that a summary witness needed to testify as an expert to explain the government’s case.

Facts of the Case

Carl Nicholson is a certified public accountant. He was charged with eleven tax crimes, including filing false tax returns for himself and assisting clients in the preparation of false tax returns. A jury found Nicholson guilty on all counts. A judge sentenced him to five years in prison.

Nicholson was a partner in an accounting firm. Pursuant to firm policy, Nicholson was entitled to use his personal credit card for business expenses and to request reimbursement from the firm. Nicholson was reimbursed for charges to his American Express (“Amex”) account that were incurred for personal reasons, including family travel.

Nicholson did not report the improper reimbursements as income on his personal tax returns. Some of the criminal charges related to his failure to disclose taxable income.

Nicholson’s partners bought out his interest in the firm in 2015. To calculate the amount of profit Nicholson earned from that sale, Nicholson claimed to have paid $150,000 for his interest in the company and an additional $300,000 that he paid overtime on the firm’s behalf. The firm’s managing partner testified that the additional payments of $300,000 were never made. Although the managing partner recalled that Nicholson made an initial investment of $150,000, financial statements showed that he actually paid $100,000. Nicholson was thus accused of inflating his investment in the firm by $350,000 to reduce the amount of taxable profit he made when he sold that interest.

Summary Witness

The government relied in part on testimony given by IRS Agent Bradley Luker. Through Luker, the government introduced summary charts of Nicholson’s tax returns. The charts also summarized Nicholson’s Amex reimbursement requests.

The Federal Rules of Evidence allow summaries to be introduced into evidence “to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court.” However, the summaries may not introduce evidence that the jury has not already heard.

All of the information in Luker’s charts was taken from earlier testimony and documents that had been received into evidence, including tax returns and bank statements. The jury was instructed that “summary charts and witnesses are no better than the underlying testimony and the documents upon which they are based and are not themselves independent evidence.”

In the Fifth Circuit, at least, a summary witness is entitled to “sort through the evidence” to show how the documents that were introduced into evidence “related to each other and to the charges in the indictment.” However, summary evidence may not be used to “fill in holes” in the party’s case by assuming the existence of facts that have not been independently established.

Was Lurker an Expert Witness?

Nicholson argued that Lurker should not have been allowed “to state his conclusions about whether Nicholson’s income tax returns were ‘false’ and what the ‘correct’ amounts should have been.” Lurker was not an accountant and did not testify as an expert. Nicholson argued that only an expert should be allowed to state opinions about tax matters.

The court of appeals concluded that Lurker was merely summarizing other testimony and therefore did not testify as an expert. Since the court did not quote Lurker’s testimony, it is difficult to evaluate whether he offered his own opinion about how income should have been reported.

Nicholson also contended that Lurker’s testimony was not summative but was in conflict with other testimony. Lurker testified that a $66,000 payment from one of Nicholson’s clients was not for accounting services. The client testified that he was billed for accounting services and, while he disputed whether the money was owed, he paid the bill. Since the client had an agreement with Nicholson’s firm that he would not be charged for accounting services, there was evidence to support the conclusion that the $66,000 was not for accounting services. The court found no conflict in the testimony despite evidence that the client told Nicholson to record the funds as a payment for accounting services.

Nicholson also complained that Lurker contradicted the managing partner, who testified that he recalled Nicholson making an initial investment of $150,000 in the firm. The court of appeals noted that Lurker did not characterize the managing partner’s testimony as false but did testify about the $100,000 investment shown on financial statements. Since those statements were in evidence, there was no conflict between Lurker’s testimony and facts in evidence.

Finally, the managing partner testified that he did not authorize reimbursement of funds for family vacations and other expenses for which Nicholson charged the firm. The managing partner did testify that whether some of those expenses were legitimate might be a matter of opinion, but in his opinion they were not. Lurker testified that he based his chart of improper expense reimbursements on the managing partner’s testimony.

The court of appeals rejected the claim that Lurker essentially testified as an expert who agreed with the manager’s opinion as to the legitimacy of the expense reimbursements. The court also rejected the argument that Lurker improperly bolstered the managing partner’s testimony. It was up to the jury to decide whether to believe that Nicholson improperly reimbursed himself for nonexistent business expenses and failed to claim those reimbursements as income.

The court of appeals nevertheless recognized that the case involved issues of accounting, business arrangements, and tax preparation that went beyond the knowledge of average jurors. Given the thin line between showing how documents relate to each other and explaining the documents, perhaps the government should have relied on an expert witness to help prove its case. Since Lurker merely summarized testimony and documents that were already in evidence, however, he did not testify as an expert. To the extent that an expert might have been in a better position to give that testimony, the court regarded any error as harmless.

Supreme Court Building in DC

Federal Advisory Committee Considers Significant Change to Rule 702

After the Supreme Court’s Daubert decision, judges may only admit expert testimony that is based on a reasonable methodology. A question that divides federal courts is whether expert opinions should be admitted if a jury could reasonably regard the expert’s methodology as reasonable even if the judge doesn’t. A federal advisory committee may soon propose a change in the rule that resolves that question in favor of judges rather than juries.

A Brief History of Rule 702

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. The first version of the rule, adopted with the other Rules of Evidence in 1973, allowed qualified witnesses to express expert opinions if their “scientific, technical, or other specialized knowledge” would “assist the trier of fact to understand the evidence or to determine a fact in issue.” The rule made the expert’s qualifications a matter of “knowledge, skill, experience, training, or education.”

The rule said nothing about the judge’s role in determining whether the expert’s opinions were reliable. When Rule 702 was adopted, federal courts followed the Frye standard of admissibility. Using that standard, courts admitted expert opinions based on scientific techniques that were, in the judge’s opinion, “generally accepted” as reliable in the relevant scientific community.

The Frye standard prevented juries from hearing opinions that were based on new or novel theories that, while reliable, were not yet generally accepted. The standard therefore kept juries from hearing reliable evidence that might help them decide the case. At the same time, the Frye standard allowed juries to hear unreliable testimony because courts had been ruling for years that the testimony was “generally accepted” as reliable. The Frye standard was particularly harmful in criminal cases. Unreliable forensic evidence, including bite mark and hair comparisons, has contributed to the widespread phenomenon of wrongful convictions.

In 1993, the Supreme Court purported to cure the deficiencies of the Frye standard by creating a new rule. The Daubert standard (named after the case in which it was adopted) expands the judge’s “gatekeeper” role in deciding whether evidence is sufficiently reliable to be admitted.

The Daubert decision held that Rule 702 was inconsistent with the Frye standard. The Court noted that the drafting history of Rule 702 did not mention Frye and concluded that “a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to opinion testimony’.”

The Daubert court jettisoned the Frye standard. To fill the void, it created a new rule that, as interpreted by some judges, is incompatible with the “liberal thrust” of Rule 702 and its goal of relaxing barriers to expert testimony.

The Daubert standard broadened the admissibility of expert opinions by making reliability, rather than general acceptance, the dominant consideration in the judge’s analysis. At the same time, the standard narrowed the admissibility of expert opinions by requiring the judge to exclude expert opinions unless they are based on a reliable methodology that the expert applied to adequate facts in a reliable way.

Rule 702 was amended in 2000 to reflect the Daubert holding. The rule was amended again in 2011 to clarify its language. The current rule states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts of the case.

Criticisms of Current Rule

The Daubert standard as embodied in the current version of Rule 702 has been criticized for its lack of clarity. Some judges view the Daubert standard as expanding the admissibility of expert testimony. Those judges typically leave it to juries to decide whether to accept or reject expert opinions that could reasonably be regarded as reliable. Other judges view their role as determining reliability according to their own strenuous standards without regard to how a jury might view the evidence.

Critics who believe judges too often allow juries to evaluate expert testimony are advocating another change in the rule. Echoing the views of the insurance defense industry, those critics claim that judges are failing to exercise their role as the “gatekeepers” of reliability.

The critics cite anecdotal evidence to create the illusion of a widespread problem. One journalist, relying on his distant memory of an expert witness who gave allegedly inconsistent testimony in two different cases, recently wrote that he “wouldn’t believe a word from an ‘expert’ witness.” The journalist did not seem to appreciate that experts base opinions on facts and that different facts in different cases lead to different opinions.

Unfortunately, the reporter’s perspective advances the strange but popular belief that expert opinions do not reflect objective reality but are simply what the expert chooses to regard as true. That belief is encouraged by political assertions that objective facts are “fake news” and by attacks upon scientific experts who warn the public about dangers (such as global warming) that politicians would prefer to ignore. Attacks on expertise have given birth to a subculture that rejects expert opinions in favor of biased opinions on the ground that an unsupported opinion is just as valid as one based on facts, experience, education, and sound reasoning.

Some critics have suggested that judges should restrict expert testimony in civil cases to prevent “runaway juries” from deciding cases based on emotions rather than facts. Since those critics rarely express concern that juries convict innocent defendants because of emotional reactions to evidence of victimization, the critics seem to be more interested in protecting businesses from the consequences of their carelessness or misconduct than in protecting the right of litigants to have disputed facts resolved by juries.

Critics who complain that judges are inadequate gatekeepers often represent or work for industries that are sued for harming the public with dangerous products or environmental hazards. Those critics tend to brand experts as unscrupulous, but only when they testify for plaintiffs. The critics argue that Daubert was meant to limit expert testimony offered by plaintiffs despite the Supreme Court’s recognition that “relaxing the traditional barriers to opinion testimony” was the very purpose of Rule 702.

Proposed Revision of Rule 702

A recent report from the Advisory Committee suggests a change in Rule 702 that the committee may ask the Supreme Court to adopt. The change results from the concern that “in many cases expert testimony is permitted because the judge thinks that a reasonable jury could find the methods are reliable.” Judges do so because they respect the jury’s role in evaluating evidence.

Judges, after all, are not scientists. There is no reason to believe that judges are any more capable than jurors of understanding and evaluating expert testimony. As a Fourth Circuit decision reminded us in 1934, “Questions of fact are questions for the jury; and they do not become questions for the court merely because their solution may require scientific knowledge or expert opinion.”

Some members of the committee, however, have concluded that only judges have the wisdom to decide whether an expert’s methods are reliable. Their argument that judges should substitute their view of an expert’s reliability for a reasonable view that a jury might take is consistent with a disturbing trend to remove cases from juries — a trend that some scholars decry as reflecting a pro-business bias. Their apparent goal is to change gatekeepers into gate closers.

The report proposes “an amendment to Rule 702 that would clarify that expert testimony should not be permitted unless the judge finds by a preponderance of the evidence that each of the prerequisites are met.” In other words, even if a jury could reasonably find that an expert’s methodology was reliable, a judge who feels otherwise can prevent the jury from making that determination. The proposal represents one more effort to chip away at the American ideal that juries, not judges, should decide cases.

As Judge Kathleen O’Malley recently wrote, the jury is a vital tool in deeply divided country that “protects all of us from overreach by the other two branches of government.” In Judge O’Malley’s view, “If two minds are better than one, nine or twelve are better still.” Judge O’Malley is confident that jurors acting collectively are just as capable as judges of evaluating expert testimony, and that it is arrogant for judges to suggest otherwise.

The advisory committee meets again in June 2021. Whether and when the committee will decide to propose a revision of Rule 702 is unclear. Equally uncertain is whether the Supreme Court would agree that it is wise to undermine expert testimony by giving judges more power to prevent juries from considering expert opinions that jurors might reasonably regard as being based on a reasonable methodology.