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.

Expert Silenced for Giving Truthful Testimony

Sexual predator laws hold defendants convicted of sex crimes in detention after they have served their sentences. The laws are premised on the popular belief that sexual predators have an uncontrollable compulsion to commit sex crimes, and that an indefinite civil commitment time is an appropriate means of protecting society from the crimes they might commit in the future.

State legislatures avoid double jeopardy concerns by claiming that sexual predators are not receiving more punishment after they finish their sentences. The laws generally require that defendants who are labeled as sexual predators must receive treatment, although whether any treatment can defeat an actual compulsion to commit sex crimes is a hotly debated topic.

Whether or not they receive treatment, individuals who are labeled as sexual predators are confined to institutions that in many respects are indistinguishable from prisons. The deprivation of freedom has a punishing impact even if punishment is not the law’s stated purpose.

Sexual predator laws typically allow a confined individual to petition the court for release, based on evidence that the need for confinement no longer exists. After all, if the laws are justified by the rationale that offenders have a mental disorder for which they need treatment, individuals who respond to treatment and are no longer a likely threat should be released from confinement.

The government typically resists release by calling experts who testify that the risk persists. Offenders respond with experts who testify that there is little reason to believe the offender will commit a new sex crime.

But do the experts have the data they need to form reliable opinions? As a recent article in Reason explains, the State of California took extraordinary steps to suppress a study that would have helped expert witnesses make better judgments about the risk to society that follows the release of an offender who has been defined as a sexual predator.

Sexual Predator Laws

Before an individual can be deprived of freedom, perhaps for the rest of that person’s life, sexual predator laws require two conditions to exist. First, the alleged predator must have been convicted of a sex crime. Each state defines the specific offenses and the number of convictions that are required before sexual predator proceedings can be commenced.

Second, a court must determine that the person poses a high risk to society. While the definition of a sexual predator who should be civilly committed varies from state to state, it generally has two components: (1) the alleged predator suffers from a mental abnormality or personality disorder that seriously impairs the ability to control sexually violent behavior, and (2) because of that disorder, the alleged predator will probably engage in acts of sexual violence if not confined.

Expert witnesses play a key role in sexual predator proceedings. Psychologists with experience evaluating sexual predators make predictions about the risk of future violence. In a typical case, experts testify for the government and for the alleged predator. A judge or jury then decides whether the government has met its burden of proving that the alleged predator must be confined for the safety of society.

Like too many laws, sexual predator legislation is based on fear, not on a neutral assessment of data. While offenders who commit other crimes are released after serving a sentence, public sentiment (or at least the sentiment of people whose voices are heard by legislatures) favors continuing the confinement of sex offenders on the unsupported theory that sex offenders are more likely than other criminals to commit new offenses after they are released. In fact, the data shows that most convicted sex offenders are never charged with another sex offense after they are released from prison.

Expert’s Study Undermines Premise of Sexual Predator Laws

Arguably, empirical data concerning sex offender recidivism does not capture the subset of offenders who are selected for additional confinement as sexual predators. Jesus Padilla decided to answer that question by gathering data that addressed the relevant population.

Jesus Padilla was a psychologist employed at Atascadero State Hospital in California. Padilla tracked individuals who had been confined as sexual predators and who were released without treatment after the State dropped the ball in pursuing recommitment (a process that California required at the time). Since the legal system identified those individuals as sexual predators but failed to give them treatment, Padilla expected that they would have a high rate of recidivism.

Padilla was surprised to find that five years after their release, only 6.5% of the offenders had been arrested for a new sex offense. That recidivism rate is remarkably low, considering that 49% of offenders convicted of other crimes are rearrested for a similar offense within 5 years of release.

Padilla’s Expert Testimony

In 2006, an individual confined as a sexual predator in California petitioned for release. His lawyer learned of Padilla’s study. The lawyer subpoenaed Padilla to testify as an expert witness.

The state objected that Padilla’s publicly funded research was confidential, a silly claim that the judge rejected. To protect the privacy of individuals who were studied, the judge limited Padilla to giving a summary of his findings.

Padilla’s research called into question the rationale for sexual predator confinements. Because he is honest, however, Padilla gave honest testimony about his research results. It turned out that honest expert testimony did not sit well with the State of California.

Expert Silenced for Telling the Truth

Like the prison industry, the sexual predator industry is a substantial employer. California spends more than $300 million a year on its sexual predator program. State employees depend on courts filling institutions with sexual predators so that they will continue to draw state paychecks. Perhaps it isn’t surprising that, with their jobs on the line, employees of the department responsible for confining sexual predators resisted Padilla’s conclusions.

It is surprising, however, that California chose to silence Padilla rather than criticizing his study or funding larger studies to determine whether his results could be replicated. According to a law review article that examined Padilla’s research, Padilla’s study was “halted in midcourse” after he testified. Reason explains that Padilla’s “records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work.” His boss accused him of illegally accessing conviction data, a bogus charge that was dismissed after an independent investigation concluded that it was groundless. Padilla’s efforts to restart the research were consistently rejected.

The law professors who investigated Padilla’s case made a Freedom of Information Act request for the research data. The state claimed an inability to verify that Padilla had ever conducted a study. The law professors then confronted the state with documents proving that the study had been approved and funded. At that point, the state was forced to turn over the data. However, when Padilla inspected the data, he discovered that someone had tampered with the Excel files by carving up spreadsheets and rendering them useless. He also discovered that the data was incomplete.

Censoring an expert and suppressing an expert’s research because the expert’s findings are unwelcome is a shameful response to honest research. As Reason notes, authorities in California apparently prefer to adhere to their “unexamined assumptions” rather than considering evidence that might contradict the foundations of their work.

The law professors concluded that after Padilla testified, the state “may have realized the study had to be stopped because it threatened the legitimacy of the entire [sexual predator] program.” Nothing could be more antithetical to the honest research and expert analysis upon which the legal system depends than suppressing knowledge that undermines the basis for depriving individuals of their freedom.


Georgia Supreme Court Prohibits Automatic Exclusion of Expert Testimony as Sanction for Violating Scheduling Order

The failure to disclose an expert witness or to provide an expert report within the time limit set by a scheduling order is a recurring issue. Some courts enforce deadlines rigidly. Others are more flexible.

Overruling several lower court precedents, the Georgia Supreme Court made clear that the late disclosure of an expert should not automatically result in exclusion of the expert’s testimony. Rather, a trial judge should make a ruling that is fair to both parties, given the circumstances of the case.

Smith’s Discovery Disclosures

David Smith II was a highly ranked collegiate high jumper before he fractured his hip in a car accident. Smith sued the other driver, Donggue Lee, for negligence. Lee admitted fault.

Smith’s complaint requested damages for medical expenses and pain and suffering. The complaint did not specifically ask for an award of lost future earnings, but it did include a boilerplate request for such further relief as is just and proper.

An interrogatory asked Smith to identify expert witnesses. He answered that he had not made a decision about experts and would supplement his answers pursuant to the rules of civil procedure.

Another interrogatory asked Smith to itemize all of his special damages, including lost wages. Smith provided the medical expenses he had available, stated that he had not received final billings for all of his treatment, and promised to supplement his answers pursuant to the rules of civil procedure. The answer made no reference to past or future wage loss.

The last relevant interrogatory asked for information about lost earnings. Smith answered that he was not claiming lost earnings.

In response to a request for production of documents concerning loss of wages or future earning capacity, however, Smith answered that he was not claiming a loss of past or present earnings but might present evidence of lost earning capacity. He stated that he would supplement his response when that evidence was available.

Four years after the accident, Smith was able to compete in the Olympics. A year later, he had surgery to remove a bone chip from his hip joint that he regarded as accident related.

Two months after that surgery, Smith supplemented his discovery responses to state that he intended to call damages witnesses, including a treating physician and his agent. He stated that in the absence of a stipulation, he would also call an economist to testify about reduction to present value of future lost earnings.

Scheduling Order Issues

The trial court then entered a scheduling order setting a deadline for disclosing experts. Before the deadline passed, Smith supplemented his discovery responses again to indicate that he had been losing earnings, and would continue to do so, in the form of endorsement fees, corporate sponsorship fees, appearance fees, and similar compensation regarding his career as a professional high jumper. He also identified a newly retained agent who would testify as an expert witness.

The defense responded by identifying a rebuttal expert. Smith moved to exclude the expert because he was not identified within the time required by the scheduling order. The trial court granted the motion.

The court expressed sympathy for defense counsel’s claim that prior to the last day for disclosing experts, Lee had no notice that Smith intended to call his new agent as an expert or to make a claim for lost endorsement fees and similar future earnings. However, the court was apparently frustrated that the case had been on the docket for so long and did not want to make any rulings that would further delay the trial.

At trial, Smith emphasized in closing arguments that the defense presented no expert testimony to counter the agent’s calculation of lost earnings. The jury returned a general verdict of $2 million in Smith’s favor.

Lee appealed. The Georgia Court of Appeals affirmed the judgment. The Georgia Supreme Court agreed to review the trial court’s exclusion of testimony by Lee’s rebuttal expert.

Automatic Exclusion of Expert Testimony

The Supreme Court considered two principles of Georgia law that are in tension. First, trial courts have broad discretion to manage their cases and to set deadlines in scheduling orders. Since compliance with those orders is “of paramount importance” to effective case management, judges must be given broad discretion to enforce them.

Second, the exclusion of a witness is a “harsh sanction” that should not be used to punish noncompliance with a scheduling order if a lesser sanction will suffice. Only sanctions that “vindicate the court’s authority” should be imposed.

To reconcile those competing principles, trial courts must exercise their discretion in a reasonable way. The state supreme court decided that trial judges cannot automatically default to the exclusion of an expert witness based solely on a late disclosure, because the automatic imposition of a sanction is not an exercise of discretion. Courts must instead weigh the facts and make a ruling that is fair to both parties.

In this case, the court acknowledged that Lee didn’t create the problem but excluded his rebuttal expert solely because he missed a disclosure deadline that he arguably had no opportunity to meet. The court abdicated its duty to exercise discretion by excluding the expert as an automatic sanction for a belated disclosure. The state supreme court thus reversed the court of appeals’ opinion and overruled a string of court of lower court opinions that affirmed the automatic exclusion of a witness based solely on a violation of a scheduling order.

Factors Courts Must Consider When Sanctioning a Scheduling Order Violation

Going forward, the Georgia Supreme Court requires trial courts to consider four factors when deciding whether the late disclosure of an expert witness should be sanctioned by exclusion of the witness:

  • the party’s explanation for the failure to make a timely disclosure
  • the importance of the testimony
  • the prejudice to the opposing party if the witness is allowed to testify
  • whether a less harsh sanction would be sufficient to ameliorate any prejudice and vindicate the court’s authority

Granting a continuance of trial or amending the scheduling order to permit discovery regarding the witness are examples of remedies that are less harsh than exclusion of the witness. Whether to select one of those remedies will depend on how the court weighs and balances the other factors.

Discretion should be exercised in the first instance by the trial judge, not by the appellate court. The Georgia Supreme Court therefore remanded the case to the trial judge with the direction to allow the parties to present evidence and arguments relevant to the identified factors. It will be up to the trial judge to decide whether Lee’s expert should be allowed to testify in a new trial, or whether no new trial is necessary because the court would have excluded the witness after conducting the appropriate analysis.



Are You Thinking About Becoming an Expert Witness?

In this time of economic uncertainty, a part-time gig as an expert witness might provide helpful supplementary income. Almost anyone who has knowledge or training in a specialized field that exceeds the knowledge of most people has the potential to be an expert witness. At the same time, some people are more suited for the role of expert witness than others.

Individuals with degrees in engineering, accounting, psychology, and a variety of scientific disciplines regularly appear as expert witnesses. They explain or refute the economic and emotional losses claimed by plaintiffs. They analyze the likelihood that a defendant’s conduct did or didn’t harm a plaintiff. Medical experts testify about the nature and degree of injuries or disabilities.

In intellectual property cases, experts explain how a new invention or song is similar to or different from a patented invention or a copyrighted song. Experts in real estate valuation offer opinions about the value of real property. Experts in all kinds of personal property, from classic cars to comic book collections, offer opinions about the value of property that has been lost or damaged.

In criminal cases, expert witnesses who are employed by the government offer forensic or “criminalistics” testimony. The criminal defense bar employs experts to refute that testimony, often by pointing out the uncertain foundations upon which it is built.

Would You Be a Good Expert?

Not every field of expertise requires a degree. An auto mechanic who has serviced cars for many years might be well qualified to explain that a brake failure was the likely cause of an accident. An experienced roofer is well positioned to explain the cause of a leaky roof in a newly purchased home.

On the other hand, people often consider themselves to be experts despite having little more knowledge in a field than the average person. When experts in a field typically have specialized training, a court is unlikely to regard an expert as qualified in that field unless the expert can prove that he or she has the same training or experience that other members of the field commonly possess. Things do not go well for purported experts who try to fool a court by falsifying their credentials.

While specialized knowledge is essential, an expert witness must also be able to express that knowledge, both in writing and in testimony. In federal cases and in many state courts, a retained expert must prepare a written report. A witness who cannot prepare a report that states and supports opinions in clear language will have difficulty finding work.

Expert witnesses are often called upon to testify in depositions. Since most cases settle, they less frequently testify in court, but experts are sometimes called upon to give trial testimony. People who are nervous about speaking in front of a small group of people might not be good trial witnesses. People who are short-tempered or impatient will not respond well to cross-examination. Good expert witnesses have the ability to think on their feet, to answer complex questions in language that juries can understand, and to earn the respect of lawyers, judges, and juries by giving honest answers to difficult questions.

Expert Witnesses Are Not Hired Guns

Advocacy organizations that complain about “judicial hellholes” have tried to undermine the credibility of retained experts. To make it harder for plaintiffs to prevail in lawsuits against insurance companies and corporations, they have tried to spread the message that experts are “hired guns” who will say anything in exchange for a paycheck.

The truth is that most expert witnesses give honest opinions, whether they have been hired by a plaintiff or a defendant. They analyze the facts and arrive at conclusions that are supported by the evidence. While they are conscious of the goals a client hopes to achieve, they do not bend the truth to help a client win a case.

Experts who are “hired guns” in the sense that they offer unsupported or irrational opinions quickly lose credibility in the legal community. They become vulnerable to cross-examination. They risk having a judge reject their reports and bar their testimony because they offer opinions that no jury could regard as reasonable.

While expert witnesses can and should earn income by providing services to lawyers and their clients, the best motivation to become an expert witness is a desire to help jurors understand the facts of a case. Honest and ethical experts can enjoy a long and fruitful career as expert witnesses.

a doctor and a child

Where Are the Dauberts Today?

The Supreme Court’s Daubert decision revolutionized the law governing the admissibility of expert witnesses. The decision imposes a duty on trial judges to decide whether expert testimony is sufficiently reliable to be admitted as evidence in court. While there remains widespread disagreement about whether Daubert is meant to open or close the door to expert testimony, the decision’s influence on American law is undeniable.

A majority of states have adopted some version of the Daubert analysis, although states often put their own spin on the role that judges should play when the assess expert witness testimony. One scholar has applauded the Daubert “revolution” for bringing “scientific enlightenment to the law.” Another has questioned whether judges are any better than juries at evaluating expert evidence. In short, opinions about Daubert are all over the map.

The Daubert Decision

The Daubert decision was the culmination of a lawsuit commenced by Joyce and Bill Daubert. Among other deformities, their newborn son was missing three fingers and a bone in his forearm. Doctors told her that she was probably exposed to something that caused her developing embryo to deform, but they could not identify the specific cause.

About ten years later, Joyce read a newspaper article about a little girl with symptoms that were similar to her son’s. The girl’s parents were suing Merrell Dow, alleging that the birth defects were caused by Bendecin. The company marketed the anti-nausea medication as a remedy for morning sickness.

In 1983, the parents of the little girl won a $750,000 verdict against Merrell Dow. Their lawyer called a reproductive epidemiologist and a pediatrician as expert witnesses. About two weeks later, Merrell Dow pulled Bendecin from the market.

The Dauberts brought their own lawsuit against Merrell Dow. They assembled a team of expert witnesses. By that time, pharmaceutical and insurance companies had launched a public relations campaign against “junk science.” The campaign disparaged juries as being too “sympathetic” to injury victims (as if human empathy is an evil trait) and contended that experts chosen by plaintiffs (but not drug companies) were “hired guns” who slanted their unscientific opinions to favor the parties who hired them.

Merrell Dow moved to dismiss the case without a trial, based on an epidemiological study that found no “reproducible or consistent association of birth defects with Bendectin exposure.” The Dauberts challenged that study. They relied on eight experts, including experts in reproductive epidemiology, developmental biology, toxicology, biostatistics, and pharmacology. The experts reanalyzed the epidemiological data and concluded that the study advanced by Merrell Dow did not rule out the possibility that Bendectin caused birth defects.

The trial judge sided with Merrell Dow. On appeal, the Ninth Circuit applied the Frye test for expert witness admissibility. The court concluded that the methods relied upon by the Dauberts’ experts were not a “generally accepted” means of proving causation and thus could not be admitted as evidence.

The Dauberts took their case to the Supreme Court. The Court rejected the Frye test. The question, the Court said, should be whether expert testimony is reliable, not whether it is based on a methodology that is generally accepted by other scientists. While acceptance is one factor that helps a judge assess reliability, making it the only factor prevents juries from hearing reliable evidence simply because it is new or novel.

The Supreme Court reversed the Ninth Circuit’s decision. It rejected the Frye standard and crafted an admissibility test that is now known as the Daubert standard. The New York Times reported that the Court raised the bar for admitting expert testimony. The Washington Post reported that the Court lowered the bar. That controversy has continued to this day.

The Aftermath of Daubert

The Ninth Circuit applied the new standard and again rejected the Dauberts’ experts. This time, the court concluded that epidemiological evidence did not prove that Bendectin exposure would double a child’s risk of being born with birth defects. If the risk is not doubled, the court decided, it was impossible to say that birth defects were probably caused by Bendectin.

Putting aside the wisdom of the decision, the Ninth Circuit’s reasoning has been widely adopted. Judges have used it to reject expert testimony in a variety of contexts that involve potentially dangerous exposures, from chemical products and pollutants to radiation from power lines and cellphones.

The Ninth Circuit judge who wrote the decision rejecting the Dauberts’ claim later became an advocate for applying the Daubert standard in a way that benefits not just corporations accused of wrongdoing, but defendants who are accused of committing crimes. The judge noted that government crime lab employees too often view their jobs as helping prosecutors, not as seeking the truth.

The legal system has been slow to reject the testimony of crime lab analysts who were allowed for decades to base opinions on anecdotal evidence rather than rigorous methodologies. While change does not come easily, courts are beginning to recognize that dubious testimony about bite marks, hair comparisons, blood spatter, and other branches of forensic science cannot be considered as proof of guilt.

What Happened to the Dauberts?

Where did the Daubert decision leave the Dauberts? Joyce feels that justice was not done because she never had her day before a jury. In the absence of any better explanation for her son’s birth defect, she still blames Dow Merrell. She might be right, but the Ninth Circuit’s questionable belief that doubling a relative risk is essential to proof of causation has become widely accepted by federal judges.

On the other hand, Joyce’s son — who is now 46 and working in the field of information technology — appreciates that a case bearing his name is being used to reduce the risk of innocent defendants being convicted on the strength of junk science. While disagreement about the application of Daubert in civil cases continues to spark controversy, there is a growing recognition of its importance as a shield against overzealous prosecutors who disguise biased opinions as “expertise” in their effort to convict accused defendants.


How Do Jurors Evaluate Expert Opinions?

A study co-authored by professors of psychology and law at the University of New South Wales examined the factors that jurors are likely to consider when they decide whether an expert’s opinion is persuasive. The goal was to determine how jurors “differentiate witnesses who offer genuinely expert opinions from those who do not.”

The study was motivated in part by the consistent use of questionable forensic expert evidence to prove guilt in criminal cases. In Australia as in the United States, innocent defendants are convicted when prosecutors bolster weak cases with expert opinions that are founded on unreliable science — or no science at all.

Understanding how juries might evaluate expert evidence should help lawyers as they select experts and prepare them to testify. An understanding of jury psychology may also help lawyers cross-examine experts to expose testimonial weaknesses that are most likely to matter to jurors. Experts can also benefit from the study by shaping their reports and testimony in ways that are the most persuasive to jurors.


After examining existing scholarship in the areas of persuasion generally and jury decision-making specifically, the authors proposed “eight broad attributes that are logically relevant to the merit-based assessment of an expert opinion.” They termed those attributes the “Expert Persuasion Expectancy (ExPEx) Framework.”

The ExPEx Framework suggests that jurors consider these factors when they evaluate expert evidence:

  • Foundation for opinions — whether the field of study upon which the expert relies is sufficiently valid to support the expert’s conclusions
  • Field expertise — whether the expert has sufficient training and experience in the field of study to merit trust in the expert’s opinions
  • Specialty of expert — whether the expert’s training and experience in the field addresses the specific specialty that forms the basis for the expert’s opinions
  • Ability of expert — whether the expert states opinions accurately and reliably
  • Opinion expression — whether the expert’s opinions are stated clearly and with necessary qualifications
  • Support — whether the expert supports opinions with evidence
  • Consistency — whether the expert is consistent with other experts in the field
  • Trustworthiness — whether the expert is personally reliable as a source

The study did not examine actual jurors who consider the testimony of actual witnesses in actual trials. Rather, the authors provided different study participants with different versions of an expert report: a control version plus versions that weakened or strengthened one of the attributes identified above.

In one experiment, the control report was strong as to every attribute. Each of the remaining eight reports weakened a single attribute but made no change to the rest of the report. In a second experiment, the control report was weak while each of the other reports strengthened a single attribute.

In each experiment, roughly fifty participants reviewed the control report, another fifty reviewed a report with a weakened or strengthened attribute, another fifty reviewed a report with a different weakened or strengthened attribute, and so on. About 450 people participated in each experiment.

The reports concerned gait analysis, which purportedly allowed the expert to identify a person on a video recording by the way the person walked. The expert in the strong report was a podiatrist. The expert in the weak report was a hand surgeon. Other attributes were manipulated in similar ways.

Test subjects were asked questions to measure the persuasiveness of the various reports. The questions asked participants to rate “the credibility of the witness, the value of their evidence, and the weight they would give to the opinion” on sliding scales of 1 to 100.

The three ratings were closely correlated to each other. The authors thus combined them into a single “persuasiveness” rating.

Study Results

In the first experiment, the participants regarded the control report as highly persuasive. Weakening the Support attribute made no difference in perception of the report’s strength. Weakening the other attributes had some impact on perceptions of persuasiveness, but perceptions of persuasiveness were significantly affected only by four attributes: Ability, Trustworthiness, Consistency, and Opinion.

In the second experiment, the participants regarded the control report as unconvincing. Strengthening the attributes for Ability or Consistency significantly improved perceptions of persuasiveness. Strengthening one of the other attributes of the weak report had no significant impact on how participants viewed the report.

Perhaps unsurprisingly, the study suggests that jurors are most likely to be persuaded when an expert in the relevant field who is trained and unbiased provides an empirically supported, confident opinion derived from methods that have been endorsed by other experts in the field.

Conversely, jurors are less likely to be persuaded when they consider an empirically unsupported, doubtful, contentious opinion from a novice “hired gun” who is testifying outside his or her field of expertise.

According to the authors, a “strong expert opinion was significantly undermined by a high likelihood of error, disagreement among experts, and questionable integrity. Conversely, a weak expert opinion was significantly improved by a low likelihood of error and agreement among the experts.”


Perhaps the most surprising finding is that participants were not particularly concerned with whether an expert supported an opinion with evidence. Instead, “Ability, Consistency and Trustworthiness may be particularly influential attributes.”

Judges in a Daubert regime, of course, focus largely upon the Support attribute. Admissibility depends upon whether the evidence upon which the expert relies is supported by sufficient facts and a reliable methodology.

The study suggests that trial outcomes will be best when the evidence assures jurors that an expert is honest (Trustworthiness), that the expert is stating opinions accurately (Ability), and that the expert’s opinions are consistent with those of other experts in the field (Consistency). Witness preparation that focuses on those attributes might persuade a jury to believe an expert’s opinions.

The authors also acknowledge that decision-making is a subtle art, and that the interplay of the defined attributes might not always be obvious. For example, Confidence and Trustworthiness are both important, but other studies suggest that an expert can enhance Trustworthiness by acknowledging reasons to doubt the expert’s opinion. Since Trustworthiness is a more important attribute than Confidence, acknowledging weaknesses in an opinion might actually strengthen its persuasive value.


Disabled man, wheelchair

Life Care Planner Does Not Need Medical Credentials to Testify About Future Healthcare Needs

A jury awarded more than $2.2 million against a negligent rehabilitation facility in Boise, Idaho. The jury found that nursing negligence resulted in the amputation of an elderly woman’s leg. A physician and a life care planner were among the expert witnesses who testified for the plaintiff. The Idaho Supreme Court rejected challenges to the admission of their expert testimony and affirmed the judgment in the plaintiff’s favor.

Facts of the Case

Leila Brauner was 76 years old when she decided to have a total knee arthroplasty. The procedure replaces damaged bone and cartilage with an artificial knee joint. Brauner hoped that the knee replacement would enable her to continue living an independent life.

The procedure was performed in Boise by Dr. Richard Moore, an orthopedic surgeon. Brauner was then transferred to Aspen Transitional Rehab.

About two weeks after the surgery, Dr. Moore noted that Brauner’s knee was swollen. Brauner complained of numbness in her foot. Dr. Moore had an x-ray taken of Brauner’s right leg. He failed to diagnose a fracture in her femur. Dr. Brauner recommended placing ice on the knee and sent her back to the rehab facility.

Blauner’s pain increased. About two weeks after the x-ray, Brauner began to experience confusion during the middle of the night. A nurse noted that her right foot had curled inward and that her pulse rate had increased significantly. Bruising was visible on her leg. Brauner complained that she was in extreme pain and asked the nurses to shoot her.

Brauner’s nursing expert testified that the nurses should have recognized that Brauner’s symptoms demanded immediate medical attention. The nurses at Aspen failed to call a doctor.

About two hours later, Brauner’s leg was cold to the touch, her skin was pale, and no pulse could be detected in her foot or ankle bone. Brauner demanded that she receive emergency care. She was transferred to a hospital, where doctors determined that her fractured femur had severed the femoral artery. A surgeon amputated the leg at the thigh.

Expert Witness Disclosure

Brauner sued Dr. Moore and Aspen for medical malpractice. The trial judge set deadlines for expert witness disclosure.

Brauner settled her claim against Dr. Moore. She disclosed Dr. Moore as one of her expert witnesses. Three days later, she amended the disclosure to specify that he would testify about the steps he would have taken if he had been informed of Brauner’s condition when nurses first noticed her inward-curling foot and other symptoms.

Brauner also disclosed her intent to call Michelle Nielson Cook to testify about future damages. Cook is a certified life care planner.

Cook prepared a life care plan detailing the future expenses that Brauner would need to incur to cope with her amputated leg. She revised that plan after reviewing it with Brauner’s treating physician. The revised version was disclosed as her expert report.

After her report was disclosed, Cook shared it with the surgeon who performed Brauner’s amputation. He confirmed Cook’s findings.

During her deposition, Cook acknowledged that she made notes on the first draft of the report when she spoke to Brauner’s treating physician and used those notes to help her prepare the revised report. Brauner refused to produce the draft report with the notes because earlier drafts of an expert report are not discoverable in Idaho. During the deposition, Cook testified extensively about the information she received from the treating physician.

Shortly before trial, Cook prepared an amended report. The primary revisions included a reduction in medical damages to conform to a court ruling, a mention of her discussion with the surgeon who performed the amputation, and an itemization of the medical information that she relied upon in preparing the report. The medical information was all contained in medical records that had previously been disclosed.

The amended report was provided to Aspen the day before trial began. Aspen moved to exclude it on the ground that it was untimely and for lack of foundation. The court admitted the report over objection.

Challenges to Life Care Planner’s Prediction of Future Medical Needs

On appeal, Aspen argued that Cook was not qualified to testify about the medical necessity for future health care expenses that resulted from the amputation. The appellate court noted that decisions in some states have required medical necessity to be proved by a medical expert, while other courts have permitted life care experts to base their testimony on their own expertise in reviewing medical records, coupled with confirmation of medical necessity by a physician.

The Idaho Supreme Court followed the latter rule. The court noted that experts can generally rely upon facts to form an opinion if facts of a similar nature are reasonably relied upon by experts in the same field. That rule suggests that life care planning experts can rely on medical records and the opinions of physicians to form an opinion, since that is information that life care planners reasonably rely upon to form opinions.

Since Cook followed a reasonable methodology and considered reliable facts in reaching her opinion, the opinion was admissible under Idaho law.

Challenge to Scheduling Order Violation

Aspen objected to Cook’s amendment of her report on the eve of trial. The trial court noted that experts have a duty under Idaho law to supplement their reports if their opinions change.

The amendment was necessary because the trial judge ruled that medical expenses should be based on the amount that would actually be paid, not on the amount that would be billed. The appellate court noted that the judge’s ruling was wrong, but given that ruling, Cook had a duty to amend her report to reflect the calculation that the court required.

While the supreme court expressed concern that Cook waited so long to amend the report, it concluded that the trial court did not abuse its discretion when it decided not to strike the amended report. Since the report revised downward the estimate of future healthcare costs, the amendment did not prejudice Aspen. In fact, the appellate court was puzzled that Aspen was challenging an amendment that worked to its benefit.

Failure to Disclose Expert’s Notes

When Cook spoke to Brauner’s physicians about the initial draft of her expert report, she made notes in the margins of that report. Brauner’s refusal to produce the notes triggered a dispute as to whether the notes were part of the draft and thus not discoverable under Idaho law, or whether they were discoverable regardless of the document on which they were written.

Brauner assured the court that Cook’s testimony about the notes during her deposition was complete, even though she did not read the notes into the record. The supreme court concluded that the trial judge should not have accepted that representation, but should have reviewed the notes to determine whether they were a discoverable compilation of information for possible use in the case, or notes which were created with the expectation that they would be used in the final report. Facts in the former category are discoverable while facts in the latter category are not.

The district court’s failure to engage in the required analysis was nevertheless harmless. The only notation that could arguably have changed Aspen’s cross-examination was an “oblique reference” to the possibility of living at home. However, uncontradicted evidence established that Brauner’s attempt to live independently after her amputation was unsuccessful. Since production of the notes would not have affected the trial, the court’s error did not require the judgment to be reversed.

Dr. Moore’s Expert Testimony

Dr. Moore was designated as an expert, but not as a retained expert. Accordingly, Idaho law did not require him to prepare an expert report. Brauner satisfied Idaho law by providing a statement about the subject matter of Dr. Moore’s anticipated testimony.

Brauner made a timely disclose of Dr. Moore on the last day permitted by the scheduling order, as modified by agreement of the parties. On the next business day, Brauner amended the disclosure to add that Dr. Moore would testify about measures he would have taken if Aspen had immediately informed him of Brauner’s symptoms.

The trial court excused the belated amendment because it did not prejudice Aspen. The Idaho Supreme Court sensibly decided that being one day late in a disclosure that comes months before trial could not have affected Aspen’s ability to defend the case. While some courts take a more rigid view of deadlines, the Idaho approach recognizes that justice is served when parties are allowed to present important evidence and that strict adherence to deadlines should not stand in the way of doing justice.


Only an Expert Can Testify that a Patented Invention Was Obvious

One defense to a patent infringement lawsuit is that the patent should not have been granted because the patented invention is based on an obvious modification of existing ideas. The issue in HVLPO2, LLC v. Oxygen Frog, LLC was whether a lay witness could testify about the obviousness of an invention. The Court of Appeals for the Federal Circuit ruled that expert testimony is often required to establish obviousness.

Facts of the Case

The two patents at issue involved a device that manages the flow of oxygen gas mixtures to torches used by glass artists. There was no question that Oxygen Frog infringed the two patents. The only question at trial was whether the device used a method for controlling the flow of oxygen that would have been obvious to a person with ordinary skill in the field in light of existing ideas and technology.

To establish that the technology underlying the patents was a matter of public knowledge before the patents were issued, Oxygen Frog pointed to a blog post on a glass blowing internet forum that described an oxygen system. That system was similar to the patented device, but it involved a single circuit while the patented device used two circuits, one to provide power to oxygen generators and the second to provide power to an air compressor.

Oxygen Frog also pointed to a video that was posted online by Tyler Piedbes, a glass blowing artist. Oxygen Frog deposed Piedbes and played most of the deposition for the jury. Oxygen Frog did not offer Piedbes as an expert witness.

Piedbes was asked whether he thought adding a second circuit to the oxygen system described online was an obvious modification. HVLPO2 objected that Piedbes was not offering admissible lay testimony because his opinion about obviousness could only be provided by an expert witness. The trial judge overruled the objection and Piedbes answered “yes.”

The court instructed the jury that Piedbes could offer an opinion as to whether the modification “would occur to him from his perspective” and whether the modification was obvious. The court also instructed the jury that it was to make its own determination of obviousness.

The jury decided the obviousness question in favor of Oxygen Frog. HVLPO2 appealed. It contended on appeal that Piedbes’ testimony was inadmissible because he did not testify as an expert.

Appellate Opinion

Obviousness is not analyzed from the perspective of an ordinary person. Rather, the question is whether the patented invention modified an existing invention or technology in a way that would have been obvious to a person of ordinary skill in the relevant field (“a person of skill in the art,” in the language of patent law).

The Court of Appeals noted that it “is often helpful to have a technical expert explain, for example, the scope of the prior art or motivations for combining various components.” That explanation cannot typically be provided by a lay witness, because explanations of facts that are beyond the knowledge of ordinary jurors can only be made by expert witnesses. A person who is not an expert in the relevant “art” cannot usually assist the jury’s determination of obviousness.

Priebes might have been an expert, but he did not testify as an expert. He was not disclosed as an expert witness and did not prepare an expert report. The appellate court rejected the argument that Priebes was entitled to provide lay testimony about obvious modifications of oxygen system that had been described online. That testimony was “the province of qualified experts, not lay witnesses.”

Oxygen Frog argued that Priebes’ testimony, even if inadmissible, did not harm HVLPO2. Of course, Oxygen Frog only called Priebes as a witness because it hoped his testimony would influence the outcome. The Court of Appeals noted that the jury may have relied entirely on Priebes’ testimony when it decided the question of obviousness.

The trial court’s limiting instruction did not cure the error because it expressly allowed the jury to consider Priebes’ inadmissible opinion. In addition, HVLPO2 could not make a Daubert challenge to test the reliability of Priebes’ testimony since Priebes was not designated as an expert. Under those circumstances, the failure to designate Priebes as an expert could not be dismissed as harmless error. HVLP02 was therefore entitled to a new trial.



Testing Instruments Used by Forensic Psychologists Criticized as Junk Science

Psychologists and other mental health professionals give helpful testimony in a variety of contexts. In civil cases, they may testify about the emotional trauma experienced by an accident victim. In family law cases, psychologists determine the fitness of parents seeking child custody. In workers’ compensation cases, they provide opinions about the degree of disability caused by job-related emotional injuries.

In criminal cases, mental health experts often provide evidence that will help a sentencing court decide upon an appropriate punishment. In death penalty cases, their testimony might help a jury understand whether a defendant is likely to commit another violent crime.

While mental health experts play a vital role in the legal system, their testimony is often criticized as inexact. Proper testing of DNA can establish identity to a near certainty, but mental health experts have no comparable tools. Physicians rely on objective evidence to make a diagnosis, including CT scans and MRI results, while mental health experts are more likely to rely on subjective impressions when they identify a mental health condition.

Assessment Instruments and Subjectivity

To reduce subjectivity in forensic psychological assessments, experts have developed instruments that help them make a diagnosis. Those tools allow psychologists and other expert witnesses to base opinions on objective research findings rather than subjective impressions.

Subjective conclusions may reflect unconscious bias. They may also reflect an opinion that would not be held by a different professional conducting the same evaluation. To the extent that an assessment instrument is both valid and reliable, the instrument may help forensic experts achieve more consistent results.

Despite the advantages of using assessment tools to inform an expert opinion, a 2014 study found that a quarter of all forensic evaluations are conducted without using an assessment instrument. Experts who regularly eschew tools typically trust their professional judgment more than evidence-based assessment methods.

While using an assessment instrument may contribute to the reliability of an expert opinion, not all instruments are created equal. The criteria chosen for measurement may be based on a consensus of subjective opinion rather than an objective analysis. In addition, instruments often call for the assessor to answer subjective questions. Different psychologists administering the same test might therefore reach markedly different results.

For example, the Hare Psychopathy Checklist, a screening tool to determine whether a patient should be classified as a sociopath, asks whether the subject has “excessive glibness” or superficial charm. Two different assessors might disagree about the amount of glibness that is “excessive.” What seems to be genuine charm to one might seem superficial to another. It isn’t surprising that the tool has been harshly criticized, despite its widespread acceptance in the mental health community, as relying on criteria that are “subjective, vague, judgmental and practically unmeasurable.”

Validity of Forensic Psychology Instruments

Tess Neal, an assistant professor of psychology at Arizona State University, led a study of testing instruments commonly used to provide an objective foundation for expert opinions rendered in court. Legal scholars teamed with mental health experts to examine assessment tools commonly used by expert witnesses. The study’s findings will likely fuel Daubert challenges while providing ammunition for challenging opinions on cross-examination.

The study examined 30 assessment tools “to determine their popularity among experts and their scientific credibility.” Neal and her colleagues assessed a variety of instruments, including “aptitude tests (e.g., general cognitive and ability tests), achievement tests (e.g., tests of knowledge or skills), and personality tests.”

The study found that only about two-thirds of popular assessment tools are generally accepted as reliable in the field of psychology. It also determined that there is only a “weak link” between general acceptance of a tool’s reliability and its actual reliability.

Actual reliability was determined by whether the instruments received “favorable reviews of their psychometric and technical properties in authorities such as the Mental Measurements Yearbook.” Only about 40% of popular assessment instruments have been favorably reviewed.

Some tests, such as the Static-99 (a sex offender risk assessment tool) are generally accepted as reliable despite the absence of any professional reviews. Others, such as the Structured Inventory of Malingered Symptomology (SIMS), are generally accepted despite having largely unfavorable reviews. The assumption that an instrument is reliable seems to be detached from evidence-based research.

The authors report that psychological testing is a large and profitable business. Yet it is not always true that “psychological tests published, marketed, and sold by reputable publishers are psychometrically strong tests.”

According to the study, “some psychological assessment tools are published commercially without participating in or surviving the scientific peer-review process and/or without ever having been subjected to scientifically sound testing—core criteria the law uses for determining whether evidence is admissible.” The mental health experts who use an instrument may be unaware that it has never been peer-reviewed or validated with testing.

Failure to Challenge Assessment Instruments

The study also noted that lawyers have done a poor job of challenging the reliability of assessment evidence. Judges and lawyers tend to accept the evidence without question.

The study’s key finding is startling: “Challenges to the most scientifically suspect tools are almost nonexistent. Attorneys rarely challenge psychological expert assessment evidence, and when they do, judges often fail to exercise the scrutiny required by law.”

The study found that lawyers challenged the admissibility of only 5% of expert opinions that were based on the surveyed assessment instruments. The majority of those challenges addressed how the expert used the tool (i.e., whether the expert followed the instructions correctly) or whether the expert interpreted the results correctly.

A more fundamental challenge would address the validity of the instrument itself. Daubert requires expert opinions to be based on adequate facts and a reasonable methodology. If an assessment tool has not been determined by peer-reviewed studies to produce reliable results, opinions that are driven by the tool may be ripe for a Daubert challenge.

When validity challenges are made, they often fail. Judges base decisions on the evidence and arguments presented at a Daubert hearing, so it may be unfair to criticize judges for failing to recognize the weaknesses of assessment instruments that have not been validated.

Still, the study found that courts sometimes view test results as only one fact among many that informs the expert’s opinion. If that fact is unreliable, however, Daubert would prevent an expert from using the test result as support for an opinion. Since reliance on a testing instrument bolsters a psychologist’s subjective opinion with data that is supposedly objective, a jury might be swayed by unreliable test results, even if the jury might not be persuaded by the expert’s testimony in the absence of those results.

The study’s “bottom-line conclusion is that evidentiary challenges to psychological tools are rare and challenges to the most scientifically suspect tools are even rarer or are nonexistent.” Effective representation of a client may require lawyers to raise Daubert challenges to opinions based on psychological assessment instruments, even if the instruments are widely used.

Using Experts to Challenge Experts

When one party calls a mental health expert to testify, it is nearly always imperative for the opposing party to use its own expert to challenge that testimony. Professor Tess’ study provides a means for experts to challenge opinions that are based on the findings of popular assessment instruments.

Michael Saks, a professor of law with ASU’s Sandra Day O’Connor College of Law, stresses the importance of challenging the credibility of psychological evidence. Challenging biases that are inherent in assessment instruments is an important means of assuring that juries do not place undue weight on opinions that are only loosely grounded in science.

Professor Saks hopes that the study will encourage expert witnesses to be skeptical of their own testing instruments. Professor Neal agrees that psychologists need to be more introspective by challenging their own assumptions about the validity of their tools. At the very least, experts should be prepared to acknowledge the limitations of their findings and to admit that psychological opinion evidence can never be entirely free of subjectivity.


Ethical Issues in the Legal System

Improper Expert Testimony About CSAAS Results in New Trial for NJ Defendant

Prosecutors who charge defendants with sex offenses involving minors sometimes base their prosecutions solely on the alleged victim’s testimony. Fearing that a jury will doubt that testimony, prosecutors often bolster their cases with expert witnesses.

In some cases, expert testimony is uncontroversial. A physician who examines a child and discovers wounds that were likely caused by sexual contact may contribute valuable testimony to the prosecution’s case. Defense experts who highlight other potential causes of the wounds also provide important evidence for the jury’s consideration.

Psychologists are frequently asked to explain why a minor might delay reporting a sexual assault. Delayed disclosure might be evidence of fabrication, but peer-reviewed literature suggests that children might delay disclosure of sexual victimization for a variety of reasons. Courts routinely permit qualified experts to explain those reasons in cases where an alleged victim did not immediately report the sexual contact.

More problematic is testimony about how a minor might react to a sexual assault. While the testimony might be admissible if it’s supported by evidence beyond the expert’s anecdotal observations, an expert must take care not to vouch for the victim’s story. In other words, a neutral expert should not say or imply that a complaining witness must be telling the truth about an alleged sexual assault because she behaved in the way the expert would expect a sexual assault victim to behave.

Responses to sexual assaults, like responses to other stressors, vary widely. When experts attempt to testify that delayed reporting or specific behaviors are evidence of a sexual assault, they cross a line that comes dangerously close to vouching for the child’s story. Juries understand such testimony to mean that the expert believes the child. But experts are not lie detectors, and whether the expert believes the child is not relevant evidence. Whether the jury believes the child is the ultimate question.

Child Sexual Assault Accommodation Syndrome

A recent case in New Jersey addressed an expert’s testimony about Child Sexual Assault Accommodation Syndrome (CSAAS). The syndrome is the controversial brainchild of Roland Summit, who theorized that sexually abused children behave in certain ways that include making a delayed disclosure of a sexual assault, followed by a retraction of the disclosure.

Some prosecutors misused CSAAS as a diagnostic tool. Whenever children behaved in a certain way (such as demonstrations of “secretiveness” and “helplessness”), prosecutors argued that their behavior corroborated their sexual assault accusations. Unfortunately, since abuse victims (like children who have not been abused) behave in a variety of ways, almost any behavior can be portrayed as corroborative evidence of abuse. Prosecutors also used CSAAS to argue that any subsequent retraction of an accusation was false because abuse victims can be expected to retract their accusations.

Even Summit admitted that CSAAS is not a diagnostic tool. He cautioned against misuse of his theory as evidence that a child’s accusation is truthful. Unfortunately, his statements fell on deaf prosecutorial ears.

A 2008 study noted that the CSAAS “theory has had a tremendous impact on the field of [child sexual assault] forensic evaluations, despite its dearth of empirical support.” While that study found support for the finding that some assault victims delay reporting, it found very little evidence that victims are likely to recant accurate reports of sexual assaults.

New Jersey v. Librado

Aurelio Librado lived with his partner, their three children, her two children by a different relationship, and his brother’s family. Two or three dozen people came to Librado’s home for a party that celebrated his nephew’s first communion. The nephew’s godmother attended the party with her 15-year-old daughter, L.A.

L.A. testified that Librado forced her to leave the party, brought her to the basement, touched her breasts, and made unsuccessful attempts to have vaginal and anal intercourse with her.  When he let her go, she went to the bathroom and found semen on a tissue she used to clean herself.

One of Librado’s stepsons saw L.A. crying. When he asked her why, she said “your stepfather sexually violated me.” The stepson did not believe L.A. and did not repeat the accusation to anyone until the police questioned him a year later. L.A. testified that she did not tell her mother what happened because she was embarrassed and did not want Librado’s children to grow up without a father.

In the following months, L.A.’s mother noted changes in L.A.’s personality. She eventually began to cut herself. When her mother threatened to make her see a psychiatrist, L.A. stated that she had been sexually violated. She refused to discuss details or to identify her assailant.

L.A.’s parents contacted the police, who noted L.A.’s acts of self-harm and had her hospitalized. L.A. persisted in refusing to identify the person who sexually assaulted her. A month later, L.A. told her godmother where and when the assault had occurred. A month after that, L.A. identified Librado during an interview by a child interviewer specialist employed by the prosecutor’s office.

Dr. Brett A. Biller testified about delayed disclosure and CSAAS. Several witnesses testified about L.A.’s attendance at the party, her post-party behavior, and her hearsay accusations. Librado’s stepson testified about the statement that L.A. made to him at the party. A jury convicted Librado of several sex offenses.

Expert Testimony Regarding Delayed Disclosure

Under New Jersey law, an expert may testify about the reasons children delay disclosing a sexual assault if that testimony would assist the jury. New Jersey courts have concluded that the testimony only assists the jury if the alleged victim cannot provide a rational explanation for delaying disclosure.

In this case, L.A. explained that she did not disclose the assault because she was embarrassed and did not want to harm Librado’s family. That explanation was easy for a jury to understand. Explaining why other children in other circumstances might delay disclosure provided no additional assistance to the jury. Accordingly, expert testimony as to delayed disclosure should not have been admitted.

Expert Testimony Regarding CSAAS

Dr. Biller testified that CSAAS was designed by “advocates for children,” a claim that only renders the syndrome more suspect. Unbiased experts are not advocates for any person or class of persons. They are advocates for the truth. The jury, however, was likely impressed by the suggestion that people who are trying to protect children came up with a way to do so.

Dr. Biller also testified that “CSAAS helps to explain how children’s behavior might lead someone to believe they were not victims, when in fact they were.“ Dr. Biller explained in great detail and depth the various behaviors that might mislead an adult into thinking no abuse occurred.

Apart from being ungrounded in actual science, none of that testimony had the slightest relevance to the case. J.A. never claimed she was not a victim. She simply didn’t want to talk about it. Nor did she engage in any behaviors (apart from silence) that might have misled adults into thinking that no abuse occurred. Rather, her personality changes and self-harming behaviors cried out for an explanation.

New Jersey has previously ruled CSAAS testimony inadmissible except when necessary to explain delayed disclosure. Since it was not necessary for that purpose in this case, the jury should never have heard from Dr. Biller. And since Dr. Biller’s testimony (as well as inadmissible hearsay) may have affected the verdict, Librado’s conviction was reversed and the case was remanded for a new trial.


Conviction Reversed Because Bloodstain Expert Failed to Follow the Methodology He Defined as Reliable

In a case that achieved notoriety after CBS featured it on 48 Hours, the wife and father of a murder victim have been granted a new trial. The North Carolina Court of Appeals recognized that bloodstain evidence upon which the prosecution relied was insufficient to meet the state’s Daubert standard of admissibility.

The appellate court’s analysis is laudably thorough. Courts tend to be more careful about protecting the right to a fair trial in cases that have attracted the media’s attention. The decision makes clear that prosecution experts cannot ignore professional standards for rendering an opinion.

Facts of the Case

While living in Ireland, Jason Corbett hired Molly Martens to work as an au pair for his two children after his wife died. They began a romantic relationship and moved to North Carolina, where they married.

In 2015, Molly’s parents, Tom and Shannon, traveled from Tennessee to visit Jason and Molly. Tom is a retired FBI agent. On the first night of their visit, Tom woke up when he heard a scream. He grabbed a baseball bat and ran to Jason and Molly’s room, where he saw Jason choking Molly. When Jason saw Tom, Jason removed his hands from Molly’s neck and used his arm to place her in a chokehold.

Tom repeatedly told Jason to “let her go.” Jason replied, “I’m going to kill her.” Tom hit Jason with the bat repeatedly as Jason dragged Molly into a bathroom, back into the bedroom, and into the hallway. After Molly broke free, Jason and Tom struggled. Jason obtained possession of the bat after throwing Tom to the floor. As they renewed their struggle, Molly hit Jason with a brick paver.

Tom regained control of the bat. Fearing that Jason would attack again, Tom hit Jason with the bat until he was on the floor. He then called 911. Molly and Tom administered CPR to Jason until paramedics arrived. The paramedics determined that Jason had a hole in the back of his skull. Jason died from blunt force head trauma.

Jason and Molly’s two children told social workers that Jason had a history of abusing Molly. Because the children moved to Ireland before trial, the jury never heard their statements about Jason’s history of domestic violence.

Expert Evidence

Stuart James testified for the prosecution as an expert in bloodstain pattern analysis. In particular, he discussed stains on the bottom of Tom’s boxer shorts and the bottom of Molly’s pajama pants. James claimed the ability to discern that those stains were “impact spatters” of blood that came from Jason’s head when it was near the floor.

Proving that Jason’s head was near the floor was critical to the criminal charge. If Jason was struck while he was standing, the strikes were consistent with mutual combat and self-defense, not with a claim that Tom and Molly kept hitting Jason while he was down.

Prior to James’ testimony, a forensic scientist employed by the state crime lab testified about blood tests that the crime lab conducted on various items of evidence. He acknowledged that the stains about which James testified were never given a “presumptive” test to confirm the presence of blood. Not only did the crime lab fail to identify the stains as Corbett’s blood, it failed to identify the stains as blood at all.

James conceded on cross-examination that he didn’t really know whether the “blood spatter” he analyzed was actually blood. He also admitted that he did not know how Tom was wearing the boxer shorts. In particular, he did not know “whether the cuff was flipped up or down” or how the shorts laid on his body.

The defense challenged the reliability of James’ testimony. The defense pointed to a book that James had authored concerning blood spatter analysis, in which he stated that the presence of blood should be established to a scientific certainty as a predicate to rendering an admissible opinion.

The trial judge disposed of the Daubert challenge by asking James whether his testimony was based on reliable scientific principles. James said yes and that was good enough for the judge.

Jury Verdict

The jury convicted Molly and Tom of second-degree murder. North Carolina defines that crime as the unlawful killing of a human being with malice but without premeditation. Killing in self-defense is not unlawful, but the jury rejected the defense argument that Tom and Molly acted in self-defense.

Malice, under North Carolina law, refers to an intent to kill or to reckless conduct that is inherently dangerous and that exhibits an utter lack of regard for human life.

Appellate Analysis

North Carolina requires the trial judge to decide whether an expert is qualified to render an opinion and whether the opinion is both relevant and reliable. In 2016, the North Carolina Supreme Court concluded that the state’s rules of evidence require the reliability determination to be made in a manner that is consistent with the Daubert decision. Under that standard, expert opinions are reliable when they are based on sufficient facts, when they are the product of reliable principles and methods, and when those methods have been applied to the facts in a reliable way.

The defense did not challenge the reliability of blood spatter analysis in general, although such a challenge would have been well supported. A Pro Publica investigation found that courts have blindly accepted the testimony of self-proclaimed experts in blood spatter evidence despite the absence of any clear proof that the testimony is grounded in a reliable application of scientific principles.

The defense focused its challenge more narrowly on James’ assumption that the stains he analyzed were in fact Jason’s blood. James’ treatise on bloodstain analysis purports to define the standard governing the methodology for analyzing bloodstains. The treatise states that a visual identification of a substance as blood is inadequate. An analysis of a bloodstain should begin by confirming that the stain was caused by blood.

James did not follow the “proper scientific approach” that he identified in his own book. Failing to follow the methodology that James deemed essential to producing a reliable result undercut the reliability of his expert opinion.

James also testified that the “best practice” is to view a photograph of the person wearing the bloodstained clothing. A bloodstain analysis is affected by how the clothing fits the frame of the person wearing it. James saw no photograph of Tom wearing boxer shorts. He was therefore unable to determine the position of Tom’s body relative to Jason’s at the time of the alleged blood transfer.

The only photograph he saw of Molly wearing the pajama pants did not show how the pants fit. In that photograph, the pants seemed to be dragging on the floor. If Molly’s hems were touching the floor, it is difficult to understand how the blood could have come from Jason, given James’ opinion that blows to Jason’s head caused his blood to fly upward.

In the absence of testing confirming that the stains were actually caused by blood, James’ opinions were not based on sufficient facts or data. And since James did not follow the methodology he described in his treatise, he did not base his opinions on a reliable methodology. Given those circumstances, the court of appeals determined that James’ testimony should not have been admitted.

The testimony was important to the prosecution’s case. James did not claim that other blood stains on other articles of clothing were caused while Jason’s head was near the floor. The only testimony that allegedly supported the conclusion that Tom hit Jason while he was down involved the stains that were never tested and that might not have been blood, much less Jason’s blood.

Lesson Learned

In the end, James’ opinions were supported by speculation more than science. Speculation is not relevant evidence and it does not assist the jury in understanding the facts. Since improper speculation may have influenced the jury’s verdict — a verdict that seems to have been based entirely on James’ testimony, given that all the other evidence was consistent with self-defense — the court of appeals granted Tom and Molly a new trial.

If the case is retried, it might benefit the defense to call an expert witness who can explain why opinions about blood spatter are inherently unreliable. The large number of circumstances affecting the path that blood travels make it impossible to determine that path with certainty. A defense expert might explain how blood could have fallen from a higher point and landed on Tom’s boxer shorts. Whenever the prosecution calls an expert witness, it is helpful for the defense to call its own expert.