A company relied on an expert witness to convince the Occupational Safety and Health Administration (OSHA) that its workplace could not have been made safer than it was at the time of an accident that killed an employee. The expert based his opinion on an understanding of the facts that was not supported by the evidence.

The decision rendered by the Department of Labor affirmed the rejection of the expert’s testimony. The decision serves as a reminder that experts should gain personal knowledge of the facts whenever they can.

Employee’s Death

CSA Equipment is a stevedoring company that loads and unloads cargo from ships. Certain CSA employees at the Port of Mobile in Alabama are tasked with checking large steel coils after they are unloaded from a vessel.

At the time of the accident, forklift operators delivered the coils to one of the warehouse entrances. A CSA employee verified the condition of each coil and determined where it should be stored in the warehouse. The employee then wrote location numbers on the coils so a forklift operator who worked inside the warehouse would know where to take them.

Forklift operators drive in reverse when moving the coils because the coils block their forward view. Their view to the rear is obstructed by the forklift’s counterweight. The forklift emits a beep when operating in reverse and employees who check cargo are instructed to listen for the beep and to get out of the way of oncoming forklifts.

An earlier procedure had employees standing near a yellow safety post as they checked the cargo. They then signaled forklift operators to move in after they completed the checking. The evidence persuaded OSHA that CSA abandoned that procedure, despite objections that its new procedure was less safe, to appease a customer who wanted cargo moved into the warehouse more quickly.

A forklift struck and killed a CSA employee who was checking coils inside the warehouse. After the accident, CSA had its employees check coils immediately after they were unloaded by crane from the vessel. After the crane unloaded four coils, the crane moved away and the employees checked the coils. Then the employees moved away and signaled for a forklift operator to move the coils to the warehouse.

OSHA Proceedings

An OSHA investigation determined that CSA violated a federal law that imposes a duty on employers to maintain a workplace that is “free from recognized hazards.” The hazard that OSHA identified involved CSA’s failure to designate paths for forklift travel that provided the forklift operator with a clear view, exposing employees to the risk of harm while they were checking materials into the warehouse. The citation identified three ways that CSA could avoid the hazard it created.

CSA contested the citation. According to CSA, no paths can be designated for forklift operation because the warehouse configuration changes constantly. The Administrative Law Judge (ALJ) who heard the case agreed with OSHA that one abatement procedure — setting up a “safe area” where employees could check materials into the warehouse without being exposed to unexpected forklift traffic — was feasible and had, in fact, been implemented after the accident.

OSHA appealed the ALJ’s finding, arguing that the proposed abatement procedure created hazards of its own. OSHA remanded the case and directed the ALJ to make specific findings regarding that defense.

CSA Expert Witness

There was no dispute that, at the time of the employee’s death, CSA recognized that forklifts created a hazard to its employees. The only question was whether a feasible and effective means existed to reduce the hazard.

CSA relied on the expert testimony of Eustis John Faulk. In her first decision, the ALJ found Faulk’s testimony to be unreliable because she regarded his opinion that “you couldn’t conduct cargo handling operations unless you had people on the ground and you had machines in the immediate area” to be in conflict with evidence that CSA had “in fact” separated the employees from the forklifts at the dock under its post-accident checking procedure.

OSHA instructed the ALJ to reconsider whether Faulk’s testimony nevertheless established that the proposed abatement procedure continued to place employees at risk. The judge reviewed the testimony again, describing it as “speculative, hyperbolical, and not grounded in the facts established by the undisputed testimony of the eyewitness who actually observed and experienced the pre-accident and post-accident operations at issue.”

The ALJ faulted the expert for failing to inspect the work site before rendering his opinion. The ALJ rejected the expert’s “idealized” explanation of how coils were unloaded and moved inside the warehouse because he assumed that coils were unloaded, checked, and moved away from the checking area one at a time, when witnesses testified that coils frequently “backed up,” creating a hazardous environment for employee who checked the coils.

The ALJ also faulted the expert for testifying that the new system posed its own hazards because workers who check the coils stand under the cranes as the coils are unloaded. Witnesses who actually worked at the site testified that workers wait until the coils are unloaded and the crane moves away before approaching them.

The ALJ concluded that the expert “manifested a stubborn refusal to acknowledge the actual pre-accident and post-accident operations as established by eyewitnesses.” It is not clear where the expert got his information, but he did not get it from personal observation. The ALJ credited the testimony of witnesses who actually viewed the worksites before and after the accident, rather than the testimony of an expert who apparently never saw the worksite that he described.

The ALJ again found that creating a safe work area for checking coils was a feasible and effective means of reducing the risk of workplace accidents. CSA again appealed, but OSHA affirmed that decision. This time, OSHA agreed that “Faulk ignored contradictory testimony from the three eyewitnesses, all of whom had personally observed the coil-checking procedures.” OSHA therefore rejected the claim that the ALJ had no basis for discrediting Faulk’s expert testimony.

Lesson Learned

Experts must apply their expertise to real-world facts. Sometimes they have no choice but to rely on facts supplied to them by the party that hires them. When facts are in dispute, experts can base an opinion on one view of facts while acknowledging that they are not deciding which view of the facts is true. Resolving disputes of fact is the task of judges and juries, not expert witnesses.

Experts should nevertheless be wary of relying on facts that have no support in the evidence. Faulk could not have known about working conditions at the accident site on the day of the accident, but his reliance on an “idealized” view of the facts was suspect in the absence of any dispute that coils “backed up” as they were brought to the warehouse.

More troubling is Faulk’s failure to assess the risks associated with the post-accident procedure that CSA implemented. Whenever possible, an expert should gain personal knowledge of the facts that the expert relies upon in testifying.

If Faulk had visited the worksite and seen employees standing under the crane, his expert opinion would have carried more weight. Basing an opinion on facts that do not actually exist damages an expert’s credibility, particularly when the expert could have investigated the worksite and based an opinion on his own observations, rather than making assumptions about risks that did not actually exist.

The exclusion of expert evidence likely contributed to a not guilty verdict for a driver who was accused of causing a crash with an Amtrak train. Dana Naylor, Jr. was charged with involuntary manslaughter after an Amtrak train crashed into the garbage truck he was driving.

The crash occurred near Crozet, Virginia. A co-worker in Naylor’s truck was killed and another was injured. Some Republican legislators who had chartered the train suffered minor injuries.

The prosecution obtained a grand jury indictment before the National Transportation Safety Board (NTSB) completed its investigation of the accident. The NTSB recently released a document claiming that “video from the train shows the truck driving around the gates.” That video was not introduced as evidence at Naylor’s trial. Train operators, however, testified that Naylor drove around the barriers.

The defense contended that Naylor’s garbage truck was already on the track before the barriers came down. A defense witness who lives near the crossing testified that “safety arms at the crossing have malfunctioned in the past, and they don’t seem to activate with enough time when high-speed passenger trains are coming through.”

The NTSB and the waste disposal company that employed Naylor tried to recreate the accident by driving a similar garbage truck around the barriers. They discovered that it was impossible to drive the truck around the barriers after they were already down.

If the barriers were not functioning properly, fault for the accident may rest with the train company, which has a duty to maintain the barriers. The final NTSB report has not been released, so whether the NTSB drew any conclusions about the operation of the barriers is unclear.

If the barriers began to descend after the truck was already entering the tracks, that malfunction might explain why the video would show Naylor apparently “driving around the gates.” He may have been maneuvering to avoid having his truck hit by a descending barrier.

DUI Evidence

Naylor had also been charged with a crime known colloquially as “DUI maiming.” The prosecution’s theory was that Naylor was under the influence of THC, the active ingredient in marijuana. A small amount of marijuana was found in a lunch pail inside the truck.

The DUI maiming charge required evidence that Naylor was under the influence of THC. Shortly after the accident, the police obtained a warrant to take a blood sample from Naylor. The warrant was supported by an officer’s doubtful claim that Naylor “smelled like beer.” Subsequent testing of Naylor’s blood showed no presence of alcohol, suggesting that the police obtained the warrant under false pretenses in a routine fishing expedition for evidence of a crime.

The blood test did show the presence of THC, prompting the prosecutor to allege that Naylor was driving under the influence of THC, the active ingredient in marijuana. The prosecution hoped to rely on the testimony of Dr. Jayne Thatcher, a forensic toxicology expert, to prove its case.

Expert Testimony Excluded

Dr. Thatcher’s testimony was offered to prove that Naylor was under the influence of THC. Her testimony would also have been relevant to the manslaughter charge if she could establish that Naylor placed lives at risk while driving under the influence.

Naylor’s defense lawyers moved to exclude the testimony. Testifying outside the presence of the jury, Dr. Thatcher conceded that the presence of THC in blood does not establish that a driver was under the influence of marijuana. “You cannot say whether or not a person was impaired based on toxicology,” Dr. Thayer testified.

Thatcher nevertheless relied on a study that purported to show that “71 percent of participants with 2.5 to 5 nanograms per milliliter of THC in their blood samples were found to be impaired when fulfilling three different performance tests.” Studies in controlled environments, however, have little relevance to real-world driving. When a study compared driving by someone who smoked a controlled amount of marijuana to someone who smoked a placebo, smoking marijuana had no significant effect on vehicle handling, driving in traffic, traffic observation, or turning.

Even taken at face value, the study that Dr. Thatcher relied upon would demonstrate that almost 30{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of marijuana users with a high concentration of THC in their blood were not under the influence of marijuana. The study offered no way to establish whether a particular test subject was or was not impaired without conducting other tests.

Dr. Thatcher’s admirable honesty about the limits of science should be a model for all testifying experts. The court granted the defense motion to exclude her testimony because she forthrightly acknowledged that she could not say whether Naylor was or was not impaired by marijuana when he was driving. The prosecution was forced to dismiss the DUI charge and the jury found Naylor not guilty of manslaughter based on the ambiguous admissible evidence.

As is common in other states, the maximum sentence for a drug crime in South Carolina is tied to the quantity of drugs involved in the crime. For most drugs, quantity is measured by weight. Possessing ten pounds of marijuana is classified as a serious drug trafficking crime in South Carolina, while the penalties for possession of fewer than ten pounds are less severe.

While it might seem that the weight of a drug would be an uncontroversial fact, drug quantities are often subject to dispute. For example, marijuana weighs more at the moment it is harvested than it weighs after the plants and their buds lose water in the process of drying. Apart from questions about whether police officers have their thumbs on the scale when weighing marijuana, weight is something that can change over time.

Daniel Herrera was charged with possessing (and because of the quantity, “trafficking in”) 10 pounds, 2.78 ounces of marijuana. Had he been charged with possessing three fewer ounces, he would have been tried for a less serious crime.

South Carolina classifies drug trafficking as a violent crime, whether or not the crime involves violence. Defendants convicted of violent crimes in South Carolina must serve a larger percentage of their sentence than other offenders before they are eligible for parole.

Herrera denied that he knowingly possessed any marijuana at all. He also challenged the admissibility of the testimony about the weight of the marijuana that was given by the state’s expert witness, a police officer. The trial court allowed the testimony and Herrera was convicted. He renewed his challenge to the expert testimony on appeal.

The South Carolina Court of Appeals affirmed the conviction without giving serious attention to Herrera’s challenge to the expert testimony. The South Carolina Supreme Court accepted review of the court of appeals’ decision and reversed the conviction.

Expert Testimony

Herrera picked up a package at the post office containing six bags of suspected marijuana. The police arrested Herrera and charged him with drug trafficking. Herrera claimed he did not know that marijuana was in the package, a claim the jury rejected.

In most drug cases, prosecutors prove that the defendant possessed an illicit drug by calling a crime lab analyst who has a background in chemistry. The lab analyst will testify that one or more tests were conducted to confirm the identity of the suspected drug.

The Scientific Working Group for the Analysis of Seized Drug (SWGASD) recommends that the analysist conduct at least two tests, one of which should meet the “gold standard” for testing (such as infrared spectroscopy). When the best tests are not available, the SWGASD recommends conducting three independent tests, two of which should be in the “second best” category of drug identification tests.

According to the National Academy of Sciences, marijuana is usually identified by two of the “second best” tests — thin-layer chromatography and low-powered microscopic identification, as well as a presumptive color test. The presumptive color test is often used as a field test to support probable cause for an arrest, but the color test returns too many false positives to be reliable proof of drug identity.

While the SWGASD standards permit marijuana to be identified by its morphological characteristics, its standards require both microscopic or macroscopic examination of the suspected drug. When visual (including microscopic) examination is used to identify marijuana, SWGASD recommends that the identification be made by a botanist.

To prove that the package seized from Herrera contained marijuana and that the marijuana weighed more than ten pounds, the prosecutor relied on the testimony of Detective Jared Hunnicutt. Hunnicutt is not a botanist. The trial court decided that Hunnicutt was qualified to testify, despite having no scientific training, based on his training and experience.

Hunicutt’s training consisted of attending a single course in drug identification sponsored by a law enforcement group. His experience consisted of arresting people for suspected marijuana crimes.

Admissibility of Hunnicutt’s Expert Testimony

Remarkably, the supreme court decided that Hunnicutt’s qualifications as an “expert” presented a “close question.” The trial judge expressed discomfort in ruling that Hunnicutt had the qualifications of an expert, but ultimately acceded to the prosecutor’s questionable contention that police officers have more knowledge about the appearance of marijuana than jurors.

Like many other appellate courts, the supreme court decided the question of the officer’s qualifications in favor of the prosecution with scant attention to the foundation for Hunnicutt’s alleged expertise. Courts too often defer to a police officer’s claim that “I know marijuana when I see it” without considering SWGASD standards or National Academy of Sciences recommendations for drug identification testimony — standards that legitimate experts would understand and follow.

The court drew a line, however, when it considered Hunnicutt’s testimony about the weight of the marijuana. The prosecutor promised the trial judge that Hunnicutt would testify as an expert only as to drug identification, then broke that promise by asking Hunnicutt if he “tested” and “analyzed” the marijuana.

The judge sustained defense objections but apparently grew weary as the prosecutor continued to ask improper questions. The judge eventually allowed Hunnicutt to testify that he weighed the marijuana at the police department and that the marijuana weighed more than ten pounds.

Expert Standards for Weighing Drugs

Given the importance of weight to the charged crime, the supreme court concluded that the trial judge erred by allowing Hunnicutt to testify about the weight of the marijuana. Hunnicutt did not calibrate the scales he used to weigh the marijuana and had no personal knowledge of when or whether the department’s evidence technician had done so. A real expert would have used precise measuring instruments that had been recently calibrated to assure that the measurement of weight was accurate.

In addition, Hunnicutt weighed the drugs while they were inside the bags that held them. Packaging materials are not drugs and, with rare exceptions, the weight of packaging materials cannot be considered when measuring drug quantity.

Hunnicutt purported to account for the weight of the six baggies holding the drugs by weighing a different baggie that he found at the police department and multiplying that weight by six. It is fair to say that the supreme court was appalled by Hunnicutt’s “expert” methodology. The weight of a baggie that was “similar” in appearance to the bags that held the marijuana had no relevance to the actual weight of the marijuana minus the packages that held it.

Police officers are notoriously sloppy expert witnesses. Their unsound methodologies reflect their inherent bias in favor of the shared goals of police and prosecutors. Why the prosecution did not use a crime lab analyst or an independent expert to weigh the drugs is unclear, but its decision to rely on Hunnicutt to prove its case resulted in the reversal of Herrera’s conviction.

Experts testify about a wide range of subjects, but experts in telling jokes rarely take the witness stand. A writer suing Conan O’Brien was hoping to call Elayne Boosler as an expert witness to help him prove that O’Brien stole jokes that the writer had authored. The jury will likely hear testimony from some funny people, but a judge recently disallowed the request to call Boosler, as well as a more traditional expert — a statistician — as witnesses in the trial.

Conan O’Brien Lawsuit

The lawsuit was filed by Robert “Alex” Kaseberg, a freelance comedy writer who has sold jokes to Jay Leno and other comedians. He also tells jokes on his blog and Twitter.

According to Kaseberg, some of those jokes ended up in O’Brien’s monologues. The jokes referenced in the lawsuit concerned the Washington Monument, Tom Brady, Caitlyn Jenner, and the target of every traveler’s furious joking, Delta Airlines.

The Delta joke was excluded from the lawsuit after O’Brien produced email evidence proving that his joke was created hours before it appeared on Kaseberg’s blog. Kaseberg added a fifth joke to the lawsuit but the court eventually excluded the joke because it was insufficiently similar to the one O’Brien told.

The lawsuit claims that O’Brien infringed Kaseberg’s copyright interest in the jokes by telling them without attribution and without compensating Kaseberg. In addition to O’Brien, defendants include network owner Time Warner and cable station TBS, which broadcasts the “Conan” show.

O’Brien asked the court to throw out the lawsuit, but the similarity between jokes that O’Brien told and jokes that Kaseberg blogged or tweeted is sufficiently strong to raise the inference that the jokes were stolen. O’Brien’s defense is that he (or his writing team) created the jokes independently, without knowledge of Kaseberg’s creations.

Expert Evidence

Kaseberg proffered the testimony of two expert witnesses. Rule 702 of the Federal Rules of Evidence and the Daubert decision impose limits on a party’s right to rely on expert testimony while recognizing the need to prove facts with witnesses who have specialized knowledge that jurors will usually lack.

Does joke telling require specialized knowledge? Nearly everyone tells jokes, although some joke tellers are obviously better than others. Comedians give more thought to what makes a joke funny than most people, so their insights might be include the kind of specialized knowledge that would qualify them as joke experts.

The trial will not address whether the jokes at issue are funny; the issue is whether they were stolen. Whether expert evidence would be helpful to the jury in deciding that issue was the question before the court.

Statistical Evidence

Kaseberg wanted to present the testimony of David Barsky, a statistician who analyzed the “pattern” of jokes created by Kaseberg that appeared in Conan monologues to determine “whether this pattern suggested that this might be a chance occurrence.” O’Brien challenged Kaseberg’s methodology, arguing that he adopted Kaseberg’s definition of O’Brien jokes that are “similar” to his own without conducting an independent analysis of similarity.

One might argue that no expertise is required to know whether one joke is similar to another. Under those circumstances, agreeing with Kaseberg is not necessarily the same as deferring to Kaseberg.

The judge, however, adopted a skeptical stance toward “statistics created in anticipation of litigation.” The judge echoed other courts that have criticized statistical models that are prepared with litigation in mind.

It seems a bit silly to fault Kaseberg for not preparing a statistical model to analyze jokes before he was hired to do so. Why would he (or any other statistician) engage in an apparently random statistical exercise until there was a reason to do so? The fact that an expert did not devise a model for analyzing statistics until the expert was hired to do so should usually be seen as a credibility issue that a jury should consider.

The reliability of the statistical model and the data to which it was applied is a more troubling question. The court faulted the expert for making assumptions about the number of jokes that Kaseberg told each day, given that O’Brien’s expert came up with a different number. Kaseberg’s expert also based his opinion on the existence of five similar jokes while the court determined that only three similar jokes remain at issue in the case.

Errors in assumptions that drove the statistical model would affect the reliability of the analysis, but the expert did not correct those errors. However, whether they actually were errors or simply differences of opinion might be seen as an issue for the jury, not the judge, to resolve.

The largest problem with the statistician’s opinion, and the problem that doomed it, was its failure to address a meaningful issue. The statistician’s opinion about the odds of overlapping jokes occurring was not tethered to the issue the jury needed to resolve.

Two joke writers who make jokes about current events have some likelihood of telling similar jokes about the same newsworthy events. The statistician’s model could not evaluate whether two similar jokes were or were not created independently. Since independent creation is the key issue in a copyright infringement lawsuit, the statistician’s opinion about a “pattern” of similar jokes would do little to enlighten the jury. The court excluded the opinion for that reason.

Elayne Boosler

Kaseberg wanted to call comedienne Elayne Boosler as an expert in the similarity of the jokes told by Kaseberg and those told by O’Brien. In particular, she would have testified that the jokes are objectively the same because they share the same premise and punchline.

While the court agreed that Boosler is an expert at telling jokes, her ability to determine that one joke is similar to another is no greater than a typical juror’s. Comparing the content of two jokes is something an average person can do as capably as a professional joke teller.

A conclusion that requires no expert analysis is unhelpful to juries. Boosler’s opinion would have amounted to telling the jury what decision to reach. Since that is not the proper function of expert witnesses, the court disallowed Boosler’s testimony.

Chantal Thoss was convicted of felonious assault in an Ohio court. The only evidence supporting her conviction came from an expert witness. Because the expert overstepped the boundaries of acceptable expert testimony, the Ohio Court of Appeals reversed the conviction.

Trial Evidence

A police officer was dispatched to a home in response to a call concerning an injured baby. Thoss was babysitting in the home. She was distraught. She told the officer that she placed the baby on a couch and left to get a diaper. She heard a thud and the baby screamed. When she returned, she discovered the baby on the floor. He was on his back and his leg was raised and propped against the couch.

Thoss told the officer that the baby’s head snapped back and hit her shoulder when she lifted him. Later, his head began to bobble. He stopped moving and became silent. Thoss called 911 and gave the same information to the dispatcher. The officer had no reason to suspect foul play.

Paramedics soon arrived and took the baby to a hospital for treatment. The treating physician spoke to Thoss and the mother, noting that both were distressed and concerned about the baby’s condition. He saw nothing to suggest the baby had been abused.

A police detective questioned Thoss later in the evening. She provided the same information, albeit in more detail, since the detective asked her more questions than the responding officer.

The detective asked Thoss if she shook the baby and Thoss denied abusing the baby in any way. The officer was aggressive in his questioning but Thoss steadfastly denied that she had shaken the baby. She expressed her fear that she may have harmed the baby inadvertently by picking him up quickly, causing the baby’s head to snap back.

The baby was not yet rolling over or sitting up, but could kick and scoot himself in circles on the floor by using his legs. The detective wondered how the baby fell from the couch if the baby could not roll over. Thoss hypothesized that the baby slid off the leather couch while he was kicking.

The baby was flown to Mercy Hospital in Toledo to treat his intracranial bleeding. He began to have seizures the next day. At the time of trial, two years later, the child was still taking seizure medication. Nerve damage also made it difficult for the child to speak.

The baby was six months old when Thoss called 911. The baby’s mother had been disregarding instructions to bring the baby in for wellness checks after the baby was about one month old.

The detective learned from Dr. Randall Schlievert, Director of Mercy Hospital’s Child Abuse Program, that the child had prior brain bleeds. While that evidence could be indicative of earlier child abuse, the detective conducted no investigation to determine whether other individuals could have been abusing the baby.

Prosecution Expert

Dr. Schlievert testified as a prosecution witness. He described the many symptoms that doctors once identified as evidence of “shaken baby syndrome.” He testified that caregivers usually shake babies because they are frustrated that the baby is crying. He acknowledged that he had no evidence that the baby had been crying. Dr. Schlievert nevertheless attributed the baby’s injury to Thoss having shaken the baby.

Based on a 1993 study of children who fell from cribs or hospital beds, Dr. Schlivert opined that a fall from the couch would not have caused a brain injury. Dr. Schlivert identified another brain injury that was one to several weeks old, but ruled it out as a cause of the baby’s brain damage because the baby exhibited no signs of brain damage until Thoss called 911.

Dr. Schlievert concluded that the baby’s retinal hemorrhages were consistent with shaken baby syndrome, although he admitted that he did not know when the hemorrhages occurred. He acknowledged that they might have occurred a month before Thoss called 911.

Dr. Schlievert acknowledged that whether a prior brain injury makes a baby more susceptible to a new brain injury is a question that divides physicians. Based on the absence of studies that would contradict his opinion, he thought it was unlikely that serious symptoms would develop from a minor injury even if the minor injury aggravated a preexisting injury.

Defense Expert

Dr. Marcus DeGraw, a child abuse pediatrician, testified for the defense. He agreed that the baby suffered from two distinct injuries. He concluded that the second injury occurred on the date the 911 call was made and that the first injury occurred about two weeks earlier.

Dr. DeGraw testified that as a brain injury heals, the pocket of blood between the brain and the skull causes weakness that makes the brain more susceptible to further injury. A modest impact that would not injure a healthy brain can cause severe injury to a brain that has been weakened by an earlier injury.

Dr. DeGraw testified that falling from a couch could have caused sufficient trauma to injure the baby’s brain, given the preexisting brain injury. Dr. DeGraw testified that Dr. Schlievert’s opinion gave insufficient weight to the first brain injury.

Significantly, Dr. DeGraw faulted Dr. Schlievert for overstepping the bounds of an expert witness by acting as a prosecution advocate. Dr. Schlievert knew nothing about the cause of the first injury, which was never investigated, but blamed Thoss for injuring the baby. Dr. Schlievert was not present when the injury occurred and had no way to know what Thoss did or did not do.

Appellate Court’s Review of Evidence

Appellate courts almost always defer to a jury’s assessment of competing expert testimony in a criminal prosecution. In Ohio, however, appellate courts have the power to sit as a “thirteenth juror” and to set aside verdicts and order a new trial when the finding of guilt beyond a reasonable doubt is against the manifest weight of the evidence. Although appellate courts rarely substitute their judgment for that of the jury, this was an appropriate case in which to do so.

The prosecution’s case rested entirely on the expert testimony of Dr. Schlievert. Thoss made no damaging admissions and no witness observed whether the baby was shaken or fell from the couch. Nothing in the evidence suggested that Thoss was the kind of caregiver who would respond to crying by shaking a baby. In fact, nothing in the evidence suggested that the baby was crying or that Thoss had any reason to shake the baby.

Dr. Schlievert’s opinion that a short fall from a couch would not cause brain damage was based on studies that failed to address babies who had prior traumatic brain injuries. The studies failed to provide adequate data to support Dr. Schlievert’s opinion, given uncontradicted evidence that the baby suffered from earlier brain trauma.

Dr. Shlievert acknowledged, and Dr. DeGraw confirmed, that it was impossible to determine the onset date of the baby’s retinal hemorrhage. The presence of a retinal hemorrhage therefore had no relevance to the allegation that Thoss shook the baby.

The court noted that neither the treating physician nor the first investigating officer suspected abuse, that the detective’s aggressive questioning failed to uncover evidence of abuse, and that Thoss’ prompt decision to call 911 and to go to the hospital was inconsistent with an intent to harm the baby. It was only Dr. Schlievert’s opinion that triggered a criminal prosecution, and that opinion was contradicted by an equally qualified expert who explained why the evidence made it impossible to assess blame.

While juries usually resolve conflicts in expert testimony, Dr. Schlievert’s opinion alone was simply not sufficient to overcome reasonable doubt provided of Thoss’ innocence. While the court was unwilling to stay that the prosecution failed to prove guilt beyond a reasonable doubt, the court decided that the conviction was against the manifest weight of the evidence. The court therefore reversed the conviction and granted Thoss a new trial.

Lesson Learned

The appellate court expressed dismay that after Dr. Schlievert expressed the opinion that the baby had been shaken, all investigation stopped. Ignoring the weak factual basis for Dr. Schlievert’s opinion, the police and prosecution immediately decided that Thoss was guilty and did not examine important questions, including the source of the earlier brain injury. A full investigation may have exonerated Thoss.

As Dr. DeGraw explained, the job of a medical expert is to interpret injuries, to explain how they might or could not have occurred, and to place them within a time frame. Doctors are not criminal investigators, regardless of how they are portrayed on television. The doctor’s job is not to blame a particular person for causing an injury. Dr. DeGraw and the appellate court appropriately faulted Dr. Schlievert for identifying Thoss as the person who caused by baby’s injuries.

Experts who serve the prosecution play a vital role in the criminal justice system. The reversal of Thoss’ convictions stands as a reminder that experts must also serve justice. When Dr. Schlievert went beyond his legitimate role as an expert witness, he encouraged a jury to ignore other evidence and to convict a suspect who was likely innocent. Identifying suspected child abuse is important, but fixating on the guilt of one suspect without examining evidence that is inconsistent with that fixation renders an expert an advocate for the prosecution rather than a neutral source of expert information.

In Shadrick v. Grana, the Supreme Court of Alabama contributed to a growing body of decisions that interpret state law to limit the admissibility of expert testimony in medical malpractice cases. Many of those laws, including Alabama’s, require a standard-of-care witness to practice in the same field as the allegedly negligent doctor.

The laws are championed by insurance and medical industry lobbyists who have a clear interest in protecting doctors from liability for the negligent conduct. The laws require a judge to ignore an expert’s actual qualifications and impose artificial barriers that make it more difficult for injury victims to find expert witnesses.

Facts of the Case

William Shadrick was treated in an emergency room for chest pain. An ER physician diagnosed a heart attack, then consulted by telephone with a cardiologist and an internist. The internist, Dr. Wilfreda Grana, admitted Shadrick to the hospital.

Dr. Grana thought that Shadrick did not have the kind of heart attack that requires immediate invasive care. However, Dr. Grana allegedly concluded that Shadrick was in cardiogenic shock and needed an emergency heart catheterization, a procedure that Dr. Grana was not qualified to perform.

Dr. Grana telephoned the cardiologist. Dr. Grana claimed he asked the cardiologist to see Shadrick before Dr. Grana went home for the evening.

The cardiologist denied that Dr. Grana told him that he should see Shadrick that evening, that Shadrick was in cardiogenic shock, or that Shadrick needed a heart catheterization. The cardiologist testified that Dr. Grana’s assessment suggested that Shadrick was suffering from pneumonia and sepsis, neither of which required intervention by a cardiologist.

The cardiologist did not see Shadrick that day. When Dr. Grana saw Shadrick the next morning, Shadrick’s condition had worsened. In the early afternoon, Shadrick was transferred to intensive care and the cardiologist was summoned to the hospital. Before the cardiologist arrived, however, Shadrick went into cardiac arrest. The cardiologist eventually performed a heart catheterization but Shadrick suffered brain death before further surgery could be undertaken.

The heart catheterization revealed heart blockages. If the catheterization had been performed earlier, the blockages could have been detected and bypassed, likely saving Shadrick’s life.

Shadrick’s estate sued the cardiologist and Dr. Grana. The cardiologist settled. Dr. Grana moved for summary judgment.

Expert Dispute

Shadrick’s estate relied on the testimony of Dr. James Bower, a board-certified cardiologist, to establish the standard of care that should have been followed by Dr. Grana and by the cardiologist who failed to assess Shadrick. Since the cardiologist settled, Dr. Bower’s testimony was relevant only to Dr. Grana.

Alabama law requires an expert opinion concerning the standard of care a physician should follow to be provided by a “similarly situated” physician. When the defendant physician is a specialist, the expert must be board-certified in the same specialty and must have practiced that specialty within the last year. Dr. Grana was a board-certified internist and therefore met Alabama’s definition of a specialist.

The trial court agreed with Dr. Grana that Dr. Bower was not an internist and therefore was not a “similarly situated” physician. The court therefore struck Dr. Bower’s testimony. In the absence of any other expert standard-of-care testimony, the court granted summary judgment in favor of Dr. Grana. Shadrick’s estate appealed.

Appellate Opinion

As an initial matter, the court considered whether an expert opinion was necessary or whether the breach of the standard of care was too obvious to require expert support. The court noted the absence of any dispute that Dr. Grana gave the cardiologist substantial diagnostic information, including the results of an echocardiogram that suggested Shadrick’s heart was not pumping adequately.

Whether the standard of care also required Dr. Grana to express an opinion that Shadrick was in cardiogenic shock and needed an emergency heart catheterization, or to ask the cardiologist to see Shadrick that day, were not questions a jury could decide without hearing expert testimony. Accordingly, the appellate court asked whether Dr. Bower was qualified to give that testimony.

The appellate court agreed with the trial court that Dr. Bower could not testify about the standard of care that applied to Dr. Grana because Dr. Bower was not a board-certified internist. Whether Dr. Bower was aware of the appropriate standard of care an internist should follow when treating a patient who had a heart attack was not relevant to the court’s cookie-cutter analysis. The actual ability of an expert witness to provide relevant and useful information to an Alabama jury is supplanted by the artificial requirement that the expert must be board-certified in the same specialty.

Given the trend of state legislatures to shield physicians from the consequences of malpractice, it is often necessary for lawyers to hire multiple experts when they bring medical malpractice claims against multiple physicians. Lawyers must do so even if a single expert is perfectly capable of articulating the standard of care that applies to each defendant doctor. That necessity drives up the cost of bringing malpractice lawsuits and discourages lawyers from bringing them, which is exactly the result that lobbyist-friendly state legislatures hoped to achieve by enacting laws that limit expert testimony in malpractice litigation.

Amari Broughton-Fleming suffered a brachial plexus injury during birth. The brachial plexus is a bundle of nerves that travel from the neck through the shoulder and branch into the arm. Brachial plexus injuries are sometimes caused during childbirth when a baby’s neck is stretched while pulling the baby through the birth canal.

Amari’s mother sued Dr. Peter Wong in a Delaware state court, alleging that he was negligent when he delivered her baby and that his negligence caused Amari’s brachial plexus injury. Amari’s mother relied on an expert witness to establish the appropriate standard of care and Dr. Wong’s breach of that standard. She relied on a second expert to establish that Dr. Wong’s negligence harmed Amari.

Dr. Wong moved to exclude the testimony of both experts, contending that the testimony failed to satisfy the Daubert standard and that it allowed the jury to presume negligence from the fact of the injury alone. The trial court rejected that motion. The case went to trial and a jury returned a verdict of $3 million in favor of Amari’s mother.

Dr. Wong appealed, challenging the admission of the experts’ testimony. The Delaware Supreme Court affirmed the verdict.

Facts of the Case

During birth, Amari’s head was lodged beneath his mother’s pubic bone, a condition known as shoulder dystocia. Amari’s mother contended that Dr. Wong used too much lateral traction to free the head during delivery, causing a permanent injury of the brachial plexus on Amari’s right side.

Dr. Wong denied that he used any lateral traction at all. He claimed that the injury was caused by the mother pushing the baby during delivery.

Amari’s family members who were present during the delivery testified that they saw Dr. Wong pulling on the baby’s head. Dr. Wong and medical staff who assisted in the delivery denied that Dr. Wong pulled on the baby’s head.

There was no dispute that Amari suffers from a permanent brachial plexus injury. Amari had two corrective surgeries, but his right arm is shorter than his left arm, impairing his ability to play sports and ride a bicycle, among other activities.

Standard of Care Testimony

Dr. Marc Engelbert testified as to Dr. Wong’s breach of the standard of care. Dr. Engelbert testified that applying excessive lateral traction breaches the standard of care for responding to the complication of shoulder dystocia. Dr. Engelbert reasoned that using excessive force during delivery was the only reasonable explanation for the brachial plexus injury.

Dr. Engelbert based his opinion on his thirty years of experience as an obstetrician and gynecologist. The supreme court noted that medical experts are entitled to rely on their own experience when forming expert opinions. Dr. Engelbert also testified that he relied on multiple medical sources to support his conclusion that only excessive force will cause a permanent brachial plexus injury.

Dr. Wong countered with a monograph published by the American Congress of Obstetricians and Gynecologists (ACOG) to support his view that a mother who pushes during labor can cause a brachial plexus injury when shoulder dystocia complicates the delivery. Dr. Engelbert rejected that alternative explanation for the injury because the monograph did not adequately explore the difference between a temporary injury, which might be caused by labor alone, and a permanent injury, which can only be caused by the use of force when delivering the baby.

The supreme court rejected the claim that Dr. Wong was asking the jury to presume negligence from the fact of the injury (a principle known as res ipsa loquitur that juries may rely upon only under limited circumstances). The court noted that Dr. Wong ruled out the only other potential cause of the injury and that Dr. Wong’s denial of using any force was contradicted by witnesses to the birth. Ruling out other potential causes for an injury not transform an expert’s opinion into an impermissible theory of res ipsa loquitur liability.

Since there was evidentiary support for Dr. Engelbert’s opinion that Dr. Wong used excessive force, including Dr. Engelbert’s own experience as confirmed by other medical sources, Dr. Engelbert’s opinion satisfied the Daubert standard. The opinion was based on sufficient facts and reasoning to allow a jury to regard it as reliable. Deciding whether to accept or reject the testimony was therefore the function of the jury, not the court.

Causation and Harm Expert

Dr. Scott Hal Kozin performed two surgeries in an unsuccessful attempt to correct the brachial plexus injury that impaired Amari’s ability to move his arm. He testified about the harm that Amari suffered and will continue to suffer because of the injury. Dr. Kozin also testified about the cause of the injury.

Dr. Kozin testified that Amari’s torn nerves were caused by the application of excessive lateral traction during birth. He based that opinion on twenty years of experience performing surgeries to correct birth injuries involving damaged nerves.

The supreme court rejected Dr. Wong’s argument that Dr. Kozin’s testimony was based on insufficient facts. Dr. Kozin observed two torn nerves during the surgery that would never regenerate or recover. In Dr. Kozin’s experience, the damage he saw could only be caused by the use of excessive lateral traction during birth. The court concluded that Dr. Kozin’s opinion was grounded in an adequate factual basis, consisting of his own observations and his medical experience with similar injuries.

Dr. Wong complained that Dr. Kozin did not address the ACOG monograph that arguably conflicted with his opinion as to causation. The supreme court noted that the admissibility of his opinion was not conditioned upon refuting potentially conflicting opinions. Dr. Wong had the opportunity to cross-examine Dr. Kozin. It was up to the jury to decide whether Dr. Kozin’s opinion was reliable in light of the ACOG monograph.

Finally, Dr. Wong complained that Dr. Kozin did not rely on any medical literature to support his opinion. The supreme court repeated that medical experts are entitled to form opinions based on their own experience. They are not required to cite supporting medical literature. Their failure to do so can be explored on cross-examination and a jury can determine whether their experience is a sufficiently reliable basis upon which to form an opinion. Since Dr. Kozin’s testimony was admissible, the trial court did not err by allowing the jury to hear it.

On the twenty-first day of trial, a jury found John Jonchuck guilty of murdering his daughter Phoebe. There was never any doubt that Jonchuck dropped his 5-year-old daughter from a bridge into Tampa Bay. A St. Petersburg police officer saw him do it.

The question for jurors was whether Jonchuck was legally responsible for his actions. The prosecution and defense relied on expert witnesses to help the jury answer that question.

Florida’s Insanity Defense

Florida statutes still use the phrase “insanity defense” to describe a claim that a defendant’s mental condition at the time a crime was committed prevented him from being legally responsible for his actions. Florida continues to follow the M’Naghten rule, which shields a defendant from legal responsibility for a crime only if the defendant did not know what he was doing or did not know that what he was doing was wrong.

To make it even more difficult for defendants to prevail, Florida requires the defendant to prove insanity by clear and convincing evidence. Until 2000, when a defendant raised the insanity defense, the burden was on the prosecution to prove that the defendant knew what he was doing and appreciated the wrongfulness of his conduct.

Few defendants are able to avoid criminal responsibility under the M’Naghten rule, particularly in states that place the burden on the defense to establish the defendant’s state of mind. Even in states that follow a different definition of insanity, it is rarely raised as a defense because juries nearly always want to hold defendants accountable when they clearly committed a crime, regardless of their mental health status.

As neuroscientists ask whether “free will” (the intellectual underpinning of criminal punishment) even exists, there is ample room for expert witnesses to give competing testimony about a defendant’s ability to appreciate or control wrongful behavior. Those differences of opinion were on display in the Jonchuck trial.

Defense Experts

Scot Machlus, a forensic psychologist, interviewed Jonchuck two years before the trial to determine his competency. He also reviewed Jonchuck’s extensive history of mental health treatment, including commitments to a psychiatric hospital.

Johchuck had a history of hearing auditory hallucinations, often believing that he was receiving instructions from God. Jonchuck slept with his Bible to keep evil spirits away. He believed Phoebe was possessed.

Based on that history and his own interviews, Machlus testified that he diagnosed Jonchuck with bipolar disorder with psychotic features. He also concluded that Jonchuck was unaware of the wrongfulness of his behavior and was out of touch with reality.

Forensic psychologist Randy Otto, an associate chair of the Department of Mental Health Law & Policy at the University of South Florida, also testified for the defense. He interviewed Jonchuck multiple times, administered psychological tests, and reviewed evidence of Jonchuck’s mental health history.

Otto testified that Jonchuck suffered from a schizoaffective disorder and a personality disorder. He believed that Jonchuck suffered from paranoid and grandiose delusions. He did not believe that Jonchuck was faking symptoms of those disorders.

The third defense expert was Dr. Michael Maher, a certified forensic psychiatrist. He considered the evaluation of Jonchuck to be complicated because of Jonchuck’s history of mental health treatment, his difficult family history, and the length of time he has been taking prescribed medications.

Dr. Maher expressed confidence that Jonchuck suffered from a mental illness. He diagnosed Jonchuck’s condition as schizophrenia, schizo-affective disorder, and bipolar disorder with psychotic episodes. He noted that different professionals might interpret symptoms in different ways and arrive at a different diagnosis, but he agreed with the other experts that Jonchuck had a severe mental illness, however it might be labeled.

Dr. Maher testified that when Jonchuck dropped Phoebe, Johchuck met Florida’s definition of insanity because he was not aware of the nature and consequences of his actions. Dr. Maher concluded that Jonchuck’s “basic understanding of life and death were distorted by his delusions.”

Prosecution Experts

Peter Bursten, a psychologist, was a key prosecution witness. Bursten acknowledged that Jonchuck is mentally ill, but testified that Jonchuck knew what he was doing when he dropped his daughter from the bridge and knew that it was wrong. Bursten based that opinion, in part, on Jonchuck’s statement to a police officer, while he was still holding Phoebe, that “You have no free will.” While Bursten thought the statement was proof that Jonchuck was in his right mind, it certainly sounds like the kind of utterance that a deranged mind would produce, particularly a mind that considered itself to be controlled by an outside force.

Dr. Emily Lazarou, a psychiatrist, was a more controversial expert. Dr. Lazarou testified that Jonchuck was faking his symptoms of mental illness, thus putting him at odds with Bursten. She agreed with Bursten, however, that Jonchuck knew what he was doing when he dropped Phoebe from the bridge.

Dr. Lazarou testified that Jonchuck changed the way he discussed his delusions (from “my lawyer is God” to “I am God”). According to Lazarou, delusions are fixed. (Defense experts disagreed with that proposition.) Her perception that the delusion changed convinced her that Jonchuck is not delusional at all.

Dr. Lazarou also testified that Jonchuck couldn’t have bipolar disorder because he had been prescribed stimulants to treat attention deficit/hyperactivity disorder. A defense expert challenged that assertion.

Dr. Lazarou is a “go-to” prosecution witness because she reliably testifies that defendants do not meet the state’s standard for insanity. Defense attorneys sought to exclude her testimony on the ground that she is biased, that she allows sympathy for victims to influence her testimony, and that her methodology for evaluating mental diseases or defects is unreliable.

The defense contended that Dr. Lazarou formed her opinions without conducting necessary testing. Defense attorneys argued that Dr. Lazarou admitted her unfamiliarity with professional standards governing forensic assessments. She also admitted her unfamiliarity with ethical standards governing psychiatrists.

Dr. Lazarou expressed her belief that Florida law does not sufficiently take victim impact into account and that she always keeps “the rights of victims” in mind when she conducts an evaluation. Understandably, the defense contended that her improper and unprofessional consideration of sympathy for victims (she admitted that she never feels sympathy for the accused) skews her opinions. The defense wanted the court to exclude her testimony because she is an advocate for the prosecution, not an unbiased expert.

Dr. Lazarou’s characterization of Jonchuck as “a dangerous, cold-blooded psychopath” is an example of her tendency to couch opinions in the language of an advocate rather than the neutral language of a professional. A forensic psychiatrist who reviewed Dr. Lazarou’s work on behalf of the defense concluded that she was “coercive, judgmental, and leading” in her questioning of Jonchuck.

Florida does not follow the Daubert rule, so judges generally allow an expert to give opinions if the expert is qualified to do so and the subject matter of the expert’s testimony is in a generally accepted field of science. The trial judge allowed Dr. Lazarou to testify, saying: “What you’re suggesting is that she’s a horrible psychiatrist. That’s for a jury to determine.”

Guilty Verdict

Jury deliberations are private, so we don’t know what the jury thought about Dr. Lazarou. It could have rejected her testimony entirely while basing guilt on the more credible expert testimony of Peter Bursten.

Jonchuck’s case is a textbook example of how difficult it is to prevail using an insanity defense. Jonchuck was clearly delusional. He dropped his daughter because he believed he was compelled to do so by an outside force. Three reputable experts provided convincing testimony that Jonchuck did not know he was doing anything wrong, while two prosecution experts (one of whom was controversial) disagreed. It is likely the horror of the crime that convinced the jury to reject the insanity defense and to find Jonchuck guilty.

Steven Chaney was added to the National List of Exonerations after the Texas Court of Criminal Appeals declared that he was “actually innocent” of two murders. Chaney served 31 years in prison based largely on discredited bitemark evidence.

Chaney’s conviction was initially affirmed by an appellate court that said no more than this about the bitemark evidence: “Medical testimony strongly indicated that appellant inflicted the bitemarks on the victim’s forearm.”  The decision reflects the unfortunate willingness of judges to accept forensic evidence offered by prosecutors at face value.

Years later, Chaney’s defense team relied on expert testimony to free him from his unjust conviction and sentence. The Texas Court of Criminal Appeals agreed that Chaney is innocent and vacated his conviction, giving long-delayed justice to Chaney.

Police Investigation

John and Sally Sweek were stabbed to death in 1987. Oddly, the couple who observed the Sweeks’ bodies through their apartment window called a number of people to report their discovery but waited nearly two hours to call the police.

Crime scene investigators found shoeprints, boot prints, and multiple bloody fingerprints. They also found Chaney’s fingerprint on a wall near the kitchen, but there was no blood on that print. Investigators also found an apparent bitemark on John’s arm.

Investigators quickly learned that the Sweeks were drug dealers. Juan Gonzalez, the Sweeks’ supplier, was identified as a person of interest. The police ruled out Gonzalez without investigating his alleged connection with the “Mexican Mafia” and without determining whether his cowboy boots could have caused the boot prints at the crime scene.

The police were provided with a drug ledger that allegedly showed the names of people who owed money to the Sweeks. Chaney’s name was in that ledger, along with several other people, including members of the Sweeks’ family.

A caller who wanted to remain anonymous told the police that Chaney purchased cocaine from the Sweeks several times a week. The caller, later identified as Curtis Hilton, suggested that Chaney might have been responsible for the murder since he suddenly had money after the Sweeks died.

Police investigators eventually learned that Hilton owed Chaney money, but that motivation to frame Chaney apparently played no role in their assessment of the information he provided. They developed no evidence to corroborate the claim that Chaney had money after the murder.

After receiving that call, the police became laser-focused on proving Chaney’s guilt rather than following all the evidence and investigating other suspects. Police officers who decide to prove that their theory is correct rather than keeping an open mind are often responsible for wrongful convictions.

Chaney’s Trials

Hilton gave conflicting testimony before and during Chaney’s first trial. The court ultimately declared a mistrial because the prosecution had failed to disclose Hilton’s prior statements to the defense. The court concluded that the police had withheld those statements from the prosecution, a finding that should make no difference since the prosecution has a duty to obtain all exculpatory evidence in the possession of police officers.

The prosecution immediately recharged Chaney, although with only one of the two murders. Hilton again testified, and again told a different story about his interactions with Chaney.

Testimony suggested that some of the shoeprints at the crime scene “might have” been left by Chaney because the prints were made by tennis shoes and Chaney, like most people, owned tennis shoes. A forensic serologist who tested Chaney’s shoes found an “unknown substance” that “might have been” blood. The serologist admitted that the test she used can return false positives and that, if the substance was blood, she could not say that it was human blood.

The prosecution offered evidence of Chaney’s partial thumbprint on a wall, which was about three feet above the floor. The prosecutor speculated that Chaney left the print when he bent over the dead bodies. The defense noted that Chaney had been in the apartment several times and may have left the print while bending over to pet the Sweeks’ dog. The defense also argued that the prosecution failed to identify multiple bloody fingerprints that were likely left by the killer.

The investigating detective testified that he interviewed Chaney, that Chaney asked him at the beginning of the interview whether the detective wanted to talk about the murder, and that Chaney said without being prompted that he had an alibi. Since the murder was highly publicized and Chaney had purchased cocaine from the Sweeks on several occasions, it is not surprising that Chaney would assume that the police wanted to ask him about the murder. Chaney did, in fact, call a number of witnesses who accounted for his whereabouts throughout the day of the murder.

Bitemark Evidence

The prosecution bolstered its remarkably weak case with evidence of the bitemark on the victim’s arm. A forensic odontologist, Dr. James Hales, testified that the bite mark was a “perfect match” with Chaney’s teeth, that there were no inconsistencies, and that the odds of any other person leaving the bitemark were one in a million. He also testified that the bitemark was made at the time of the murder. All of those opinions were utter nonsense, but the evidence was damning because it placed Chaney at the scene when the victims were murdered.

A second forensic odontologist, Dr. Homer Campbell, testified that the bitemark actually consisted of four separate bites, and that Chaney was the one who bit the victim. In its closing arguments, the prosecution emphasized that the testimony of Drs. Hales and Campbell provided the strongest evidence of Chaney’s guilt.

Habeas Proceedings

Decades after his conviction was affirmed on appeal, Chaney sought habeas corpus, a procedure that can be used to challenge the validity of convictions that have been finalized. His petition was based in part on a 2013 Texas law that allows convicted defendants to challenge convictions based on an intervening change in scientific understanding of the evidence that the prosecution relied upon in support of a conviction.

The habeas court recognized several important changes in the science of bitemarks, including:

• Forensic odontologists no longer believe it is acceptable to conclude that a bite “matches” a suspect’s teeth when the number of people who might have caused the bite is unknown.
• Forensic odontologists no longer use the word “biter” to describe a suspect.
• The expert opinions that Chaney made the bitemarks would not be offered by a well-trained forensic odontologist today.

The habeas court based those findings on unrefuted expert testimony and on guidelines published by the American Board of Forensic Odontology. The Board became more professional in its approach to science after bitemark evidence was sharply criticized by the President’s Council of Advisors on Science and Technology and by a National Academy of Sciences report.

Apart from the difficulty of making a precise measurement of bitemarks, given that skin can expand or contract in the area of a bite, unscrupulous prosecution “experts” sometimes stretched or squeezed skin until the bite took a form that they could identify as a match. Even ethical experts at the time of Chaney’s conviction failed to acknowledge that their methods were unsupported by peer-reviewed research.

Bitemark evidence is so unreliable that the Texas Forensic Science Commission voted in 2013 to recommend that its use in Texas criminal prosecutions be suspended. The opinion of the Texas Court of Criminal Appeals in Chaney’s case summarizes the current state of bitemark science and explains how studies have demonstrated its unreliability.

Many forensic experts who testified in the past subsequently revised their opinions about the reliability of bitemark comparisons they made. To his credit, Dr. Hales acknowledged that his opinions were probably wrong and that the bitemark could have occurred two or three days before the victim’s death. And to its credit, the State conceded that its bitemark evidence proved nothing.

During its closing argument in Chaney’s trial, the prosecutor admitted that he would not have pursued an indictment against Chaney in the absence of bitemark evidence. The Court of Criminal Appeals had no difficulty deciding that Chaney would not have been found guilty in the absence of the unfounded bitemark testimony.

The court also agreed that Hales’ testimony that only “one in a million” individuals could have produced the bitemark on the victim’s arm was false and misleading. Hales admitted that he simply made up that testimony. Since the Constitution prohibits using a lie to convict a defendant, that admission also required Chaney’s conviction to be set aside.

Chaney Released from Prison

The Court of Criminal Appeals’ decision explores other flaws in Chaney’s conviction, including a pattern on the part of his prosecutor of concealing evidence that pointed to his innocence. In addition, DNA testing excluded Chaney as the source of the skin found under the female victim’s fingernails and of the DNA in all other testable evidence found at the crime scene.

The State’s recent investigation identified two suspects belonging to a drug cartel who probably committed the murder. Given all of the evidence, the Court of Criminal Appeals determined that Chaney is actually innocent of the murder. The court ordered his release from prison. Since he has been found innocent, he cannot be retried.