Author Archives: T.C. Kelly

About T.C. Kelly

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

Court Allows Securities Expert to Testify Over Daubert Objections

Court Allows Securities Expert to Testify Over Daubert Objections

To meet the Daubert standard of admissible expert testimony, the expert must be qualified and the expert’s opinion must be based on reliable data. When should the judge, acting as a gatekeeper to shield the jury from speculative or unfounded testimony, exclude the expert’s opinion? Conversely, when should the judge trust the jury to decide whether an expert is qualified and whether the expert’s opinion is reliable?

Those questions go to the heart of the many conflicting interpretations of the Daubert standard. A district court judge in the Southern District of New York recently applied the Second Circuit’s liberal standard of expert witness admissibility in deciding that a securities expert should be permitted to testify as an expert, despite his limited experience with the kind of securities that were at issue in the case and despite arguable flaws in his analysis.

Facts of the Case

The Securities and Exchange Commission (SEC) sued Revelation Capital Management and its CEO, who was also its founder and sole shareholder. The SEC accused Revelation of violating a rule that prohibits short selling, and then purchasing, certain securities. The rule applies to a “firm commitment offering.”

Revelation based its defense on the premise that the securities, offered by a Canadian fund, involved a “best efforts offering” rather than a “firm commitment offering.” The difference between the two securities underwritings has to do with whether the selling agent guarantees the sale of all offered shares to the issuer or merely promises to use its best efforts to sell them.

Since the difference between “firm commitment” and “best efforts” underwritings will be obscure to the average juror, the SEC wanted to rely on an expert witness to fortify its position. The SEC notified Revelation that it intended to call Guy Erb to testify about the meaning of “firm commitment” as that term is understood in the securities industry, and to express the opinion that the Canadian securities involved a firm commitment offering, not a best efforts offering.

Revelation notified the SEC that (in addition to its securities expert) it intended to call Dennis Dumas as an expert witness. Revelation, a Bermudian company, wanted Dumas to testify about the factors that companies outside the United States consider when they determine whether a foreign securities transaction will be subject to American law. Dumas’ expert report expressed the opinion that the Canadian offering was not consistent with offerings that fall within the jurisdiction of American law.

Each party moved to exclude the other party’s expert witness. The court decided that the SEC’s expert should be allowed to testify but barred the testimony of Revelation’s expert.

Expert Testimony Regarding Applicability of SEC Rules

The district court easily decided that Dumas’ testimony was not relevant. Dumas proposed to testify that market participants such as Revelation would not have understood that the transaction was subject to SEC rules. The court concluded that whether the SEC’s rules applied was a legal issue for the court to decide, not a factual issue for the jury to resolve. Revelation’s understanding (or misunderstanding) of the rules was not relevant to the legal issue and did not provide a defense for the jury to consider. Since Dumas’ proposed testimony was not relevant to any issue of fact, the court excluded his testimony.

Challenge to Qualifications of SEC’s Expert

A more difficult question involved Revelation’s contention that Erb was not qualified to testify as an expert. Revelation contended that Erb was unqualified because he had experience with only a handful of securities underwritings, all of which were firm commitments. According to Revelation, Erb’s lack of experience with best efforts underwritings, and his minimal experience in general, made him an unqualified to testify.

Applying the Daubert standard of admissibility, the court asked whether Erb had “superior knowledge” that was relevant to the subject matter of his testimony. The court relied on Second Circuit precedent, which it characterized as having a “liberal thrust” and a “general approach of relaxing the traditional barriers to opinion testimony.” Notably, that approach is at odds with the view that Daubert and Rule 702 of the Federal Rules of Evidence are meant to restrict the admissibility of expert evidence.

The court was not disturbed that Erb’s experience was not “directly on point.” The court noted that expertise in a “closely related field” can substitute for experience in a pertinent specialized area. Erb had a quarter century of experience in international finance and a dozen years of experience working in the securities industry. He has handled international securities underwritings, including firm commitment offerings. The fact that he has not directly handled best efforts underwritings did not disqualify him from opining about the securities industry’s understanding of the difference between the two. To the extent that Erb’s qualifications can be challenged, the court decided that the challenge should be made during cross-examination, giving the jury a chance to evaluate how Erb’s experience affects the credibility of his opinions.

Challenge to Reliability of Expert Opinion

Revelation also based its Daubert challenge on the alleged unreliability of Erb’s opinions. Revelation contended that Erb failed to consider sufficient facts and data to justify his opinion. In support of that contention, Revelation pointed to documents and witness statements that allegedly contradicted Erb’s expert opinion.

Again turning to Second Circuit precedent, the district court noted that “not every flaw in an expert opinion warrants exclusion of the testimony.” An opinion is unreliable only when the data is inadequate to support the expert’s conclusion or when the expert’s reasoning or methodology is incapable of producing a reliable result. The existence of data that might contradict the expert’s opinion goes to the weight the jury should give the opinion, not to its admissibility.

The court noted that Erb identified the difference between firm commitment and best efforts offerings by referring to standard reference materials in the securities industry. Erb then examined how the Canadian securities were offered for sale and compared those practices to the practices that he had observed in his own experience. He pointed to specific facts and documents that supported his opinion.

Revelation pointed to a number of arguable errors and flaws in Erb’s opinion. While Erb arguably failed to address clauses in the offering documents that might undermine his opinion, the court decided that the failure goes to the weight that his opinion should be given, not to its admissibility. And while Erb’s report may have cited an inapplicable regulation and may have failed to analyze certain disclosure rules, those flaws in his analysis were not so substantial that they completely undermined the basis for his opinion. Other experts (including Revelation’s) might differ with Erb’s opinion and might rely on other evidence as the basis for their differing opinions, but the fact that an expert opinion might be challenged by another expert does not render it inadmissible.

The court noted that the concept of reliability is “fluid,” which might be a nice way of saying that some courts will find an expert’s opinion to be reliable and therefore admissible while other courts will exclude the same opinion as unreliable. The line between a flawed opinion that is admissible and a flawed opinion that the jury should not hear is not easily drawn.

In this case, again applying a liberal view of admissibility, the court decided that Erb had sufficient grounds for his opinion to remove it from the realm of conjecture, and that he did not deliberately twist facts or manipulate data. That was enough to persuade the court that the jury should make the final conclusion as to its reliability.

Blood sample for heavy metals test

Court Excludes Expert Opinion that Lead Paint Caused Neurological Deficits

The New Hampshire Supreme Court recently affirmed a decision to exclude from evidence an expert’s opinion that exposure to lead paint caused neurological deficits in Somali children. The decision illustrates the difficulty that experts face when they apply a recognized methodology to a unique fact situation.

Facts of the Case

A group of children in New Hampshire who are Somali Bantu refugees sued the owners of apartment buildings in which they lived during 2005-06. They alleged that the apartments are contaminated by lead paint. They seek damages for adverse health conditions caused by lead poisoning that they attribute to living in the contaminated apartments.

It is apparently undisputed that the children have elevated levels of lead in their blood. To prove that they suffer from injuries caused by lead poisoning, the attorneys for the children intended to rely upon the testimony of Peter Isquith, a psychologist. After evaluating the 20 children, Isquith opined that 17 suffer from neurological deficits that were probably caused by lead exposure.

The defendants filed a motion to exclude Isquith’s expert opinion. After holding a six-day evidentiary hearing, the trial court granted that motion on the ground that Isquith’s opinions were not based on reliable principles and methods in light of the facts of the case. The plaintiffs were allowed to appeal that ruling before the case proceeded to trial. The New Hampshire Supreme Court issued its decision issued on August 23, 2016.

Expert Opinion Admissibility in New Hampshire

New Hampshire has adopted a Daubert standard for the admissibility of expert testimony. A New Hampshire statute allows a court to admit expert evidence only if the court finds that:

  • the testimony is based upon sufficient facts or data;
  • the testimony is the product of reliable principles and methods; and
  • the witness has applied the principles and methods reliably to the facts of the case.

The New Hampshire Supreme Court has interpreted the statute to mean that there must be “good grounds” to believe the expert’s opinion is reliable before it will be submitted for a jury’s consideration.

The Expert’s Methodology

Isquith relied on two tests to help him decide whether the children suffered from neurological deficits. The first was the Reynolds Intellectual Assessment Scales (RAIS), an intelligence test that is considered appropriate for ages 3 to 94. The second was the Developmental Neuropsychological Assessment, Second Edition (NEPSY-II), which is specifically designed for children.

Both tests have been standardized, meaning that raw scores on the tests have been obtained from large populations. That permits the development of standardized scores that reflect the subject’s test result as compared to others who took the test. For example, if a particular score indicates that the subject scored in the 25th percentile, 75 percent of test-takers have achieved a better score.

The problem for Isquith was that the tests have been standardized with American populations. The groups that took the tests for standardization purposes did not include recent immigrants. Individuals who spoke English as a second language were expressly excluded from the standardization groups. That raised the question whether the tests were valid when applied to Somali Bantu refugees who were not native speakers of English.

Isquith attempted to compensate for the standardization problem by interpreting the test results cautiously. He tried to err on the side of finding no neurological deficit by looking for patterns of poor scores on all of the subtests (including nonverbal subtests) and by relying only on test scores that were well below the norm. He did not, however, compare the test results to a control group of Somali refugees who had not been exposed to lead paint.

The Trial Court’s Ruling

The trial court concluded that Isquith did not employ a reliable methodology because he used tests that had not been validated with regard to a Somali population, or any population that speaks English as a second language. The tests have a known error rate for an English-speaking population, but they have no known error rate for other populations. The court was concerned that poor test results might reflect the fact that the test-takers did not speak English as a native language, rather than reflecting cognitive difficulties.

If Isquith had administered the tests to a large group of healthy Somali refugees and used those results for a baseline comparison, he might have been able to produce valid results. While Isquith testified that he considered a Somali test subject to exhibit neurological difficulties if the subject scored below a certain cutoff level (identified sometimes as 10{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} and other times as 15{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}), he had no way of knowing whether significant numbers of healthy Somali refugees of similar age and circumstances would have scored above that cutoff level. His approach may have been “cautious” but, in the court’s judgment, it still amounted to “well-educated guesswork.”

The court also expressed concern that Isquith failed to account for other risk factors that may have depressed the test-takers’ scores. Their lack of preventative healthcare before arriving in the United States, their exposure to war, their low socioeconomic status, and other factors may explain their poor test scores. Since Isquith could not rule out those possibilities, the court decided that his methodology was unreliable.

Decision on Appeal

On appeal, the attorneys for the refugees argued that the trial court erred by imposing a stricter standard than whether Isquith had “good grounds” for his opinion. They contended that Isquith employed sound principles that were consistent with cross-cultural assessments made by clinical practitioners and school psychologists. The plaintiffs’ attorneys therefore asked the state supreme court to rule that the trial court exceeded its “gatekeeper” function and invaded the province of the jury by deciding that Isquith’s opinions were not well founded.

As is common when an appellate court reviews a decision concerning the admissibility of evidence, the New Hampshire Supreme Court applied a deferential standard of review. Evidentiary decisions are usually affirmed if the trial court applied the correct legal standard in a reasonable way, even if a different trial judge might have decided the admissibility issue differently.

In the absence of studies or other evidence that validated the results of tests administered to a population of Somali refugees, the supreme court decided that it was reasonable for the trial judge to conclude that Isquith lacked a scientific basis for concluding that the tested refugees suffered from neurological deficits. It was also reasonable to conclude that his opinions were not merely questionable, but were so unreliable that they should not be presented to the jury.

The case illustrates the difficulty that experts face when they apply a well-established methodology to a unique fact situation. It may not have been feasible for Isquith to conduct a validation study of the two tests on a healthy population of recent Somali refugees, but the court’s decision suggests that only evidence of that nature will prove that the plaintiffs suffered from neurological deficits due to lead poisoning. That is an unfortunate result for the children if they are lead poisoning victims, because the court’s decision will prevent them from being compensated for their devastating injuries.

Experts Testify in “Bizarre” Art Authentication Trial

Experts Testify in “Bizarre” Art Authentication Trial

Expert witnesses played a key role in an art authentication trial that one art world publication branded as ridiculous and bizarre. The controversy involved a desert landscape that was allegedly painted by Peter Doig. The artist, known for his figurative paintings and his “revolutionary” approach to landscapes, denied that he painted the desert landscape.

Robert Fletcher’s Claim

Robert Fletcher was working as a corrections officer at Thunder Bay Correctional Centre in Ontario during the mid-1970s. He claims that he watched Doig paint the landscape and purchased it from Doig for $100 in 1975, while Doig was serving a sentence for possession of LSD.

The Scottish-born artist lived in Toronto during his teen years, when he worked as a laborer for a gas and oil drilling company. He moved to London in 1979 to attend art school. Doig has been living in Trinidad since 2002.

Doig admits that he occasionally used LSD in his youth but he denies having been imprisoned in Thunder Bay. He also denies painting the desert landscape. Doig’s art dealer contends that Doig did not start painting on canvas until 1979.

Doig’s defense team argued that the disputed landscape was painted by Peter E. Doige, now deceased, an amateur painter who (according to his half-sister) served time in Thunder Bay. That claim is given credence by the fact that the painting is signed “Pete Doige.” Why Doig would add an “e” at the end of his name, and why he would deny painting the landscape if he actually did so, are questions for which Fletcher had no satisfactory answer.

Fletcher’s Lawsuit

The painting is worth millions of dollars if it was painted by Doig rather than Doige. Since the painting’s value depends on its authenticity, Fletcher sued Doig for interfering with its sale by disclaiming creation of the painting. He also asked for a judicial declaration that the painting is authentic.

Fletcher was joined in the suit by Chicago art dealer Peter Bartlow, who is trying to sell the painting on Fletcher’s behalf. He says that Doig “wrecked their plans” to sell the painting for millions of dollars.

Bartlow called Doig a “sociopath” and said that Doig “can’t draw.” That may seem like an odd statement from someone who is trying to sell a painting for millions of dollars that he attributes to Doig, but Bartlow insists that Doig traces his works from projections. Doig denies that allegation.

Expert Testimony

Bartlow testified as an expert in art authentication. He had a financial interest in the outcome of the trial — he will earn a 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} commission if he sells the painting — but the court decided before the trial that Bartlow was qualified to testify as an authentication expert. The judge noted that all experts get paid and that Bartlow’s potential commission went to his credibility, not to the admissibility of his testimony.

Bartlow testified that he identified “small elements in the disputed painting that can be found in Doig’s verified work, such as the line of a skier’s right arm in a 1994 oil on canvas, Chopper,” which Bartlow claims is “nearly identical to the ridge of a rock formation in the disputed painting.” During cross-examination, Doig’s attorney ridiculed “the Bartlow method” of authentication.

Art historian Richard Schiff, testifying as an expert for the defense, characterized Bartlow’s methods as “entirely unreliable” and suggested (quite sensibly) that expert witnesses should not have a financial stake in verdicts when they testify. After examining other paintings by Doige, Schiff expressed the “firm opinion” that Doige, not Doig, painted the desert landscape, based on the “uniformity of the surface, consistent planar recession, and consistent illumination.”

Art historian Victor Wiener appraised the disputed painting. He testified that it is worth $50,000 to $100,000 if it was painted by Doige and $6 million to $8 million if it was painted by Doig.

The Verdict

The case was heard by a federal judge sitting without a jury. Judge Gary Feinerman decided that Doig “absolutely did not paint the disputed work.” The judge’s remarks seem to suggest that he found Doig’s testimony to be credible and concluded that all of the evidence made an overwhelming case that Doig did not paint the landscape.

Fletcher said he accepted the verdict and still had “personal affection for the painting no matter who made it.” The painting’s notoriety as a result of the trial almost certainly assures that Fletcher will make a tidy profit if he sells it, although he won’t reap the millions for which he and Bartlow had hoped.

Courtroom

How Not to Be an Expert Witness

Michael West is a textbook example of the kind of expert witness most lawyers avoid. The controversial bite mark expert is, in the words of Randy Balko, “brash, prickly, and prone to fits of braggadocio on the witness stand,” as well as “belligerent, profane, and combative.” Those are not qualities that endear a witness to the jury.

As ExpertPages pointed out last year, West has acknowledged that bite mark analysis is, by its nature, unreliable. Yet Balko reports that West, while disclaiming bite mark analysis in general, still defends his own work.

Expert Witness Credibility

Balko reports that West claimed to have invented new techniques of bite mark analysis “that he and only he could perform.” That claim should have cast doubt on his credibility, since the ability of one scientist to replicate the results obtained by another scientist is a hallmark of credible scientific research. Yet prosecutors continued to present West’s work to jurors as the gold standard in bite mark analysis.

Credible expert witnesses generally specialize in a limited number of related fields. Experts who claim to have a specialized understanding of several unrelated areas of science risk being viewed as experts in the art of getting hired to testify as often as possible, rather than experts in a particular field.

West broke that rule by testifying as “an expert witness in a variety of forensic specialties, including a few he claimed to have invented.” According to Balko, West testified as an expert in trace metals, wound patterns, gunshot residue, gunshot reconstruction, blood spatter, tool marks, fingernail scratches, and liquid splash patterns. He also claimed to be an expert in video enhancement and crime scene investigation.

Credible experts are typically members in good standing of relevant professional organizations. West was investigated by three professional organizations and either resigned, or was expelled, from each of them. He attributed those investigations to a conspiracy to destroy the science of bite mark analysis.

Asked about two wrongful convictions of innocent defendants that were based at least in part on his testimony, West refused to acknowledge that the defendants were innocent. Despite the fact that DNA evidence and a confession by the real killer exonerated the defendants, West continued to insist that his bite mark analysis proved the guilt of the defendants. Both were released from prison after the State of Mississippi agreed that they were innocent.

Credible experts admit when they are wrong. They are not afraid to address potential weaknesses in their conclusions. They take note of new developments in science that might invalidate their positions. Experts who refuse to acknowledge the possibility of error and who defend positions that are no longer defensible impair their value to lawyers as expert witnesses.

Expert Witness Demeanor

Balko quotes extensively from testimony that West gave in a deposition. The case involved a man who was convicted of murder, in part on the strength of West’s bite mark testimony. New DNA evidence revealed that the convicted defendant was almost certainly not the murderer.

West was consistently arrogant and combative during the deposition. He insisted that he stood by his previous testimony, although he claimed he did not recall the testimony and refused to review it. He referred to the attorney who was questioning him as a sociopath and said the attorney would need “five years of improvement” before he would rise to the level of “jerk.” He also described the attorney in profane terms.

West complained that the defense attorney was picking on him. He complained that he wasn’t being paid for his deposition testimony. He testified that his involvement in the case ended years earlier, that he was not responsible for the jury verdict, and that he did not care if they put the defendant to death.

West referred to other experts in bite mark analysis as idiots and fools, among other contemptuous descriptions. Disparaging other members of a profession by making personal attacks only serves to make an expert look weak and small-minded.

Effective experts are cordial, humble, and sensitive to the impact that their testimony might have on parties to litigation. Through their testimony, they reveal that they are servants of the truth, not advocates for any party who is willing to pay for their time. Expert witnesses can learn from Michael West by viewing him as an example of an expert who did everything wrong.

Fingerprint Experts Question Fingerprint Science

Fingerprint Experts Question Fingerprint Science

Experts are often called upon to testify that a criminal defendant’s fingerprints match a fingerprint found at the crime scene. Combined with other evidence of a defendant’s guilt, a fingerprint can be convincing proof of criminal responsibility. But when a case hinges entirely upon the unexplained presence of a defendant’s fingerprint, guilt may depend on the presumption that no other person could have left that print.

The uniqueness of fingerprints is increasingly being called into question. Scholars disagree as to whether forensic fingerprint identification has been scientifically validated. As a practical matter, the only way to be certain that fingerprints are unique would be to compare the fingerprints of every person who has ever lived. That obviously can’t be done.

Even if fingerprints really are unique, the fallible nature of fingerprint identification is illustrated by the wrongful conviction of Stephen Cowens. After Cowens spent more than six years in prison, Boston police and prosecutors admitted they were mistaken when they said that fingerprints found at a murder scene “unquestionably” belonged to Cowens. Several other wrongful convictions have hinged on the testimony of fingerprint experts who made incorrect identifications.

The highly publicized arrest of Brandon Mayfield for terrorism was based on the FBI’s mistaken identification of a fingerprint. According to the FBI, it used “standard protocols and methodologies,” including verification by outside experts, to link the suspect’s print to Mayfield. The FBI eventually conceded its error, explaining that it relied on a digital image of the suspect’s print that was of “substandard quality” and that there were a “remarkable number of points of similarity” between Mayfield’s prints and the suspect print.

Questionable Identification Techniques

Forensic experts might be mistaken when making a fingerprint identification for a number of reasons. Fingerprints within families tend to be very similar. As people age, skin elasticity changes, which alters fingerprint impressions. Some skin conditions also affect fingerprints. Even two prints left by the same finger are never identical. Skin stretches. The angle at which the finger touches a surface, and the pressure exerted, will affect the fingerprint impression.

Prints recovered from a crime scene may be smudged or distorted. Sometimes only a partial print can be recovered, making identification problematic. Too often, the fingerprint analyst knows that the police suspect the guilt of a particular person, and that knowledge may instill an unconscious bias that blind testing (a key component of the scientific method) would remove.

Fingerprint examiners compare “points of similarity” between a fingerprint recovered from a crime scene (a “latent print”) and a suspect’s fingerprint. When the fingerprints are clearly dissimilar, the suspect should be excluded as the source of the print. When there are enough “points of similarity,” they typically testify that the suspect is the source of the latent print. In some cases, experts testify that the suspect is the only person in the universe who could have left the latent fingerprint.

Professor Simon Cole persuasively argues that the boundary between sufficient and insufficient “points of similarity” to make a definitive match has never been scientifically established. In an influential article, Cole examines 22 cases in which reputable fingerprint experts reached a “consensus judgment” that a latent print identification, relied upon as proof of guilt in a criminal case, was incorrect. In some of those cases, the defense used its own fingerprint expert to challenge the conclusion drawn by the prosecution’s expert. Some of the defendants were acquitted or their cases were dismissed, while others were wrongly convicted. In several cases, the prosecution’s expert testified that 12 to 14 points of similarity proved that the latent fingerprint belonged to the defendant.

Cole suggests that the 22 cases are “the tip of the iceberg.” He also suggests that the prevailing Daubert standard of expert evidence admissibility fails to act as a shield against unreliable fingerprint analysis because courts are insufficiently skeptical of claims that fingerprint identification is infallible.

How Should Fingerprint Experts Testify?

For many years, fingerprint experts testified that fingerprint identification is infallible. That view was supported by the FBI’s publication, The Science of Fingerprints: Classification and Uses. While fingerprint identification may be reliable in most cases, it is now clear that it is not infallible.

Simon Cole points out that experts have repeatedly testified that the “error rate” in fingerprint identification is zero. As the cases of Mayfield and Cowen (among others) demonstrate, that testimony is untrue. Cole also points out that fingerprint analysts have been encouraged to testify that the methodological error rate is zero while the practitioner error rate is unknowable but negligible. In other words, if identification methods are followed precisely, the error rate is zero, but there is no way to know how often analysts fail to follow the methodology.

Since the methodology does not exist in a vacuum but is always applied by a practitioner, Cole argues that any attempt to draw a distinction between the two error rates is specious. He suggests that ethical fingerprint analysts should never testify about a methodological error rate of zero, because that testimony is both meaningless and misleading.

In any event, many experts now agree that the “zero error rate” claim is not scientifically supportable. Since there is no way to be certain that every person has a unique set of fingerprints, even a perfect match, determined by state-of-the-art techniques, cannot be said with certainty to be error-free. In any event, the “zero error rate” claim is misleading because it invites the jury to believe in the mythical perfection of fingerprint science while deflecting attention from all the real-world factors that result in misidentifications.

Mike Silverman, the fingerprint expert who introduced an automated fingerprint detection system to London’s Metropolitan Police, thinks experts have a duty to make juries aware of the problems with fingerprint analysis. Silverman worries that jurors are influenced by shows like CSI. According to Silverman, the certainty that television viewers see on CSI “simply doesn’t exist” in the real world.

If a fingerprint expert determines that a latent print matches a suspect, it may be unlikely that the fingerprint belongs to anyone else. Silverman is careful to note that winning the lottery is also unlikely, but it happens. To assure that a defendant receives a fair trial, the fallibility of fingerprint identification is something that fingerprint experts should be willing to acknowledge.

Admitting the possibility of error (even if the possibility seems remote) does not detract from an expert’s credibility. Rather, it enhances credibility. Nobody’s perfect. Juries understand that, and juries are more likely to trust experts who acknowledge their own potential fallibility. A recognition that experts are advocates for the truth, not for a particular party, always makes an expert a better witness.

Court room trial

Mistrial Declared After Expert Admits to Falsifying Report

An expert’s alleged misconduct resulted in a mistrial for Caleb Loving, who was charged with a number of felony offenses after he set fire to his apartment in Evansville, Indiana and then carried a bag of explosives into a McDonald’s restaurant. Loving’s mental health is an issue in his trial.

The expert, Albert Fink, was a court appointed psychologist who evaluated Loving and determined that he was competent to stand trial. Fink was expected to testify during Loving’s criminal trial before the mistrial declaration brought the trial to a halt.

Competency to Stand Trial

Criminal defendants have a constitutional right to participate in criminal proceedings in a meaningful way. To do so, they must be mentally competent to understand the charges and proceedings and to assist their counsel. If a question is raised about a defendant’s ability to do so, the court must decide whether the defendant is competent to stand trial.

When a defendant’s lack of competence is attributable to a mental health condition that is treatable, a trial may be delayed until the defendant’s condition improves. After a course of medication, a court may decide that the defendant has regained the ability to perceive reality or to understand the charges, potential defenses, and witness testimony. At that point, the defendant is declared competent and the trial proceeds.

Judges typically appoint psychologists to evaluate the defendant and to prepare a report concerning the defendant’s competency. The psychologist bases that report on interviews with the defendant, a review of the defendant’s medical records, and (in appropriate cases) upon interviews with the defendant’s family members and other significant sources of information.

Indiana law requires the appointment of two experts to evaluate competency. Both experts in Loving’s case agreed that he was competent, but it took the second expert a month to prepare his report, while Fink’s was prepared in just two weeks. The other expert testified during Loving’s trial that he interviewed Loving before writing the report. It appears that the prosecutor expected Fink to give similar testimony.

Falsified Report

Fink was involved in a traffic accident while the Loving trial was underway. He told a state trooper who investigated the accident that he deliberately drove his car into a tree so that he would not need to testify. He said he was worried that the accuracy of his report would be questioned if he was forced to testify.

Fink admitted that he falsified his report. He also conceded that he falsified court documents in several other Vanderburgh County cases in the last several years. How many of the seventy reports that Fink wrote were affected is not yet known.

Fink has been charged with obstruction of justice for providing false information to the court. Prosecutors have not revealed the precise nature of the false information that Fink provided, but it appears that when Fink wrote reports in other cases, he simply invented the contents of the report without interviewing the defendant.

As a result of the mistrial motion, the jury in Loving’s case was discharged. Loving will be brought to trial again at some point in the future. The question of his competency to stand trial may be raised again, and the court may need to appoint another expert to evaluate Loving’s condition before a new trial date can be set.

Fink’s Past and Future

Fink is one of only a few forensic psychologists in Indiana. He has testified in hundreds of other cases across the state. To the extent that criminal convictions may have been based at least in part on Fink’s expert testimony, it is likely that those cases will be scrutinized to determine whether Fink provided false testimony that might have had an impact on the verdict. If so, the defendants in those cases will probably be entitled to a new trial.

Fink is 83 years old and has been licensed to practice psychology in Indiana since 1973. This is not his first brush with controversy. Fink surrendered his license in Kentucky in 1993 to resolve charges that he had been negligent or incompetent and that he had divulged confidential information.

The Indiana State Psychiatry Board decided not to discipline Fink as a result of his decision to surrender his Kentucky license, noting that no finding of wrongdoing had been made. The Board also declined to take action concerning allegations that Fink was involved in bid rigging concerning his application to direct mental health services for the Indiana State Penal Farm prison. Fink was absolved of criminal wrongdoing, but his contract as a state prison psychologist was rescinded.

Whatever ultimately happens in Fink’s case, the importance of honest behavior as an expert witness can never be overstated. Every expert’s first duty is to the truth. Fink apparently lost sight of that fundamental rule. The result may be years of turmoil as investigators review the hundreds of cases in which he played a role.

New York US State Law Legal System Concept

Expert Witnesses Differ About Allegedly False Confession in Stark Murder

False confessions to crimes occur with surprising regularity. Expert witnesses, including psychologists and others with similar training, are often called upon to explain to a jury or judge why someone would confess to a crime that he or she did not commit.

A man who is charged with murder in Brooklyn used an expert witness to challenge the reliability of the incriminating statements he made to the police. The prosecution countered with its own expert.

False Confessions and Expert Witnesses

One of the most notorious convictions based on a false confession occurred in 1995, when Daniel Taylor gave the police a signed statement admitting that he committed a double murder in Chicago. He confessed despite the fact that he was in police custody when the murder occurred. Decades later, powerful evidence of his innocence persuaded a court to vacate his conviction. After initially claiming that records showing Taylor’s incarceration were wrong, prosecutors were forced to drop the murder charges.

Taylor confessed because he was coerced by the police. Frightened suspects are particularly likely to make a false confession if the police claim that they will receive the death penalty or other serious punishment if they do not admit their guilt. Other threats (such as the claim that social workers will take away a parent’s children if the parent does not confess to a crime) are equally effective means of inducing innocent people to agree that they are guilty.

An article in Time points out that false confessions are not “a strange anomaly.” In fact, The Innocence Project reports that one in four wrongful convictions involve a false confession or an untrue admission.

Psychologists who have studied the problem of false confessions identify a number of characteristics (including adolescence, mental disability or illness, and certain personality traits) that make some suspects vulnerable to suggestion during a police interrogation. They also identify interrogation tactics (including lengthy interrogations, threats, and lies about evidence of the suspect’s guilt) that contribute to false confessions.

Expert witnesses have become instrumental in explaining to juries why a confession should be rejected as unreliable. While judges at one time tended to rule that such expert testimony was unhelpful because the possibility of a false confession was “common knowledge,” the prevalence of wrongful convictions combined with studies that confirm the reasons for false confessions have increasingly persuaded judges to allow defense experts to testify.

Kendal Felix’s Confession

Kendal Felix is charged with the January 2014 murder of wealthy Brooklyn real estate magnate Menachem Stark. Felix is accused of kidnapping Stark, strangling him, and setting his dead body on fire. Stark’s body was found in a Long Island dumpster.

According to the police, Stark, who was reputed to be a slumlord, had a long list of enemies who might have wanted to see him dead. Felix apparently became a suspect after the police found a video that showed Felix driving a van in Great Neck. The police said it was clear that he was not sure where to go.

Felix was arrested three months after Stark’s murder. The New York Post reported that Felix “spilled his guts” when he was questioned by the police. Felix allegedly told the police that “Erskine” told him that someone named Max owed him money and offered to give Felix a cut if Felix would help him force Stark to pay the debt.

Felix said that he helped Erskine grab Stark and wrestle him into a van. Felix then drove the van as Erskine taped up Stark. They picked up Erskine’s brother, identified only as Kendall, and later picked up another man, identified only as Irvine. Felix heard Irvine say “The dude is dead.” Irvine then left the van.

According to Felix’s statement, Felix and Kendall drove Stark to Long Island, where Kendall decided to dump Stark’s body into a dumpster. They then set the body on fire.

At the time, Felix was a construction worker who had done some work for Stark but never met him. Felix said Erskine was his “boss.” He also said that the crime was cooked up by his cousin. The police acknowledge that Felix was “not the mastermind” behind the plan to rob Stark. They have not identified a motive for the crime, although Felix’s alleged confession would suggest that the death was the unintended result of a botched robbery. Any death caused in the commission of a felony can be charged as a murder under New York law.

Only Felix has been charged with Stark’s murder. The police say they do not have sufficient evidence to charge the other accomplices, although they once told the Daily News that they had identified the “main player” in a plot to rob Stark. Why Felix’s confession, assuming it is reliable, does not constitute “sufficient evidence” is unclear.

Expert Witnesses

The defense has asked the judge to exclude the confession from evidence on the ground that it was coerced. A confession that was not made voluntarily cannot be used as evidence in a criminal trial.

The defense supported its motion with the testimony of Marc Janoson, who holds a PhD in psychology. Janoson has testified as an expert in false confessions in more than a dozen other cases. Janoson based his opinions on psychological testing of Felix and on interviews with Felix and his mother.

Janoson testified that Felix told him that he falsely confessed because the police told him they would deport his parents and he would never see his children again unless he admitted guilt. According to Felix, they also told him that he would not need a lawyer because he was not under arrest. The police deny making those statements. The confession appears on videotape, although anything the police said to Janoson before the taping started is not recorded.

Janoson concluded that Felix was coerced. Janoson explained that Felix is particularly vulnerable to coercion. He testified that Felix showed signs of neurological impairment following a 2010 motorcycle accident and has an IQ of 87, placing him in the bottom fifth of the population.

Testifying as an expert witness for the prosecution, forensic psychologist Kathy Yates disagreed. She viewed Felix’s ability to hold a job at Riker’s Island and to pursue a food handling certificate as proof that he had the psychological capacity to knowingly waive his right to remain silent and to confess.

Based on her own interviews with Felix, Yates said that Felix has a careful thinking style and was likely faking memory loss after his motorcycle accident. Yates also attacked the quality of Janoson’s psychological training, criticized him for believing what Felix told him when his statements could not be verified, and asserted that Janoson did not ask enough questions.

Previewing the Trial

If the judge decides that the confession is admissible, expect the experts to clash again if the case goes to trial. The defense will likely use Janoson in an effort to persuade the jury that Felix’s confession is unworthy of belief. Yates will likely offer the opposite opinion.

Some testimony at the pretrial hearing, however, probably will not make it to the jury. For example, Yates testified that Felix is a “calculated liar” who minimized his role in the offense for personal gain. A judge is likely to conclude that it is improper for an expert to testify that a witness is lying or is a liar by nature, since credibility determinations are generally reserved for the jury, not for other witnesses.

Minnesota Considers Switch to Daubert Standard

Minnesota Considers Switch to Daubert Standard

The movement to require judges to follow the Daubert standard when they decide whether to admit expert testimony in a trial has met with success in a majority of states. The next state to make the change may be Minnesota. An advisory committee is considering whether the Minnesota Supreme Court should replace the state’s version of the Frye standard with the Daubert test. Whether the proposal will gain traction is unclear.

The Politics of Daubert

The push for the Daubert standard is often political. Insurance companies and businesses that manufacture or sell products usually believe that the Daubert standard favors defendants in civil suits. For that reason, they lobby state legislatures to adopt Daubert, a standard that is widely seen as giving judges greater authority to evaluate and reject unreliable expert testimony.

On the other hand, plaintiffs’ lawyers usually oppose the adoption of Daubert on the ground that it favors the interests of businesses over those of victims. Missouri’s governor recently vetoed the state’s legislative adoption of Daubert because (in his view) the standard hurts injury victims by increasing the cost of litigation.

In some states, the legislature’s decision to enact a Daubert rule does not assure that courts will embrace the rule. For example, the Florida legislature enacted a Daubert standard, but the Florida Supreme Court may decide that the authority to change the state’s rules of evidence is vested in the state judiciary, not the legislature. The court will soon decide whether to accept or reject the legislature’s Daubert rule.

Unlike Missouri and Florida, the impetus to change the rule in Minnesota is coming from a rules committee, not from state lawmakers. Minnesota’s rules of evidence are generally fashioned by the state’s supreme court. The court has noted that is has “primary responsibility under the separation of powers doctrine” to create rules of evidence, while recognizing an obligation to follow “reasonable” rules of evidence enacted by the state legislature.

To Change or Not to Change?

Until 1980, Minnesota relied on the Frye test of admissibility. The court admitted expert testimony if it was based on a scientific technique that was generally accepted in the relevant scientific community. Minnesota modified that test in 1980 by adding the requirement that expert testimony, to be admissible, must have a scientifically reliable foundation. Minnesota’s modified test has come to be known as the Frye-Mack standard.

The Minnesota Supreme Court’s Advisory Committee on the Rules of Evidence is studying a proposal to replace the Frye-Mack standard with the Daubert standard. The committee’s chair commented that the committee has “a general sense that there is dissatisfaction with Frye-Mack among Minnesota judges and lawyers.” At the same time, the chair made clear that he was speaking for himself, not for the committee.

Dissatisfaction with Frye-Mack is probably strongest among lawyers who represent the business community, just as dissatisfaction with Daubert tends to be strongest among lawyers who represent plaintiffs. In a large majority of cases, the standard makes no difference, since most expert testimony is likely to be admitted under either standard. In cases where expert evidence is more controversial, however, the more restrictive Daubert standard usually favors defendants over plaintiffs, since plaintiffs must often rely on expert testimony to meet their burden of proof.

Given that dynamic, it isn’t surprising to read in Minnesota Lawyer that “most in the plaintiffs’ bar wants the Minnesota courts to stick with Frye-Mack, while the defense bar would welcome a switch to Daubert.” Whether judges are also divided is unknown, but retired Minnesota Supreme Court Justice Paul Anderson told Minnesota Lawyer that Frye-Mack is a workable standard that is supported by a consistent and well-established body of precedent. Judges may support the Frye-Mack standard simply because they are familiar with it.

On the other hand, Justice Anderson observed, the Daubert standard has been the subject of varied interpretations in state and federal courts. Some courts emphasize that Daubert liberalized the admissibility of expert testimony, while Daubert’s detractors insist that the standard encourages judges to usurp the role of jurors in deciding whether expert opinions have merit. Justice Anderson asks “Why should we force our attorneys to read the entrails of multiple, conflicting opinions from across the country to try to figure out a new standard?”

What Will Minnesota Do?

Whether the advisory committee will recommend a change is far from a foregone conclusion. The committee expects to solicit public comment in the coming months. As the issue makes its way onto the radar of Minnesota’s litigators, the committee will need to sift through a variety of conflicting opinions.

Regardless of the advisory committee’s recommendation, the Minnesota Supreme Court might not be inclined to change the current rule. The court unanimously rejected Daubert (and reaffirmed Frye-Mack) in a 2000 decision that questioned whether judges are any more capable than juries of resolving disagreements among experts about the reliability of an expert’s methodology. The court also observed that federal courts have failed to apply Daubert uniformly and that its adoption in Minnesota would upset a settled rule that produces consistent results. Even if the advisory committee recommends adopting Daubert, the court might decide that no changes have occurred since 2000 that would warrant a significant revision of Minnesota law.

Wooden Mallet and flag Of New Jersey

Treating Physician Not Required to Prepare Expert Report in New Jersey

The rules of evidence in most jurisdictions require a party who wants to call an expert witness to notify the other party of the expert’s name. The rules may also require advance disclosure of the expert’s qualifications, opinions, prior testimony, and publications. In many jurisdictions, the expert must state his or her opinions in a written report that is disclosed to adverse parties prior to trial.

Jurisdictions that require an expert to prepare a report often make an exception for treating physicians who will only be asked to testify about their diagnosis and the treatment they rendered to a patient. In those cases, medical records serve as an adequate substitute for a report. In addition, treating physicians are different from retained experts, who usually expect to write a report. Treating physicians are busy with their patients and often balk at being asked to prepare a report that merely reiterates information contained in medical records.

New Jersey’s discovery rules permit a party to ask an opposing party to produce a report prepared by that party’s expert. The report must include a complete statement of the expert’s opinions and the basis for those opinions, including the facts and data upon which the expert relied. The rules make no explicit exception for treating physicians.

The New Jersey Supreme Court was recently asked whether a plaintiff who sued for disability discrimination was required to produce an expert report when she relied on the testimony of her treating physician to establish that she had a disability. The trial court excluded the treating physician’s testimony because no report had been prepared for pretrial disclosure. The supreme court concluded that the treating physician’s proposed testimony about his patient’s disability did not trigger the obligation to write a report.

Facts of the Case

Patricia Delvecchio was employed by the Township of Bridgewater as a police dispatcher. Dispatchers generally work three shifts on a rotating basis.

Delvecchio suffered from inflammatory bowel syndrome (IBS), a condition that worsened when she worked the midnight shift. Delvecchio notified the Township that she suffered from IBS and asked for an accommodation of her condition by assigning her to morning or afternoon shifts. She supported that request with notes from her gastroenterologist. The notes stated that Delvecchio’s IBS symptoms were under control when she worked regular daytime hours, but were exacerbated by assignments to the midnight shift.

After one year of assigning Delvecchio to the afternoon shift, the Township decided it was too burdensome to other dispatchers to relieve Delvecchio of all midnight shift assignments. The other dispatchers, however, cooperated in allowing Delvecchio to work daytime shifts. After additional intervention by Delvecchio’s gastroenterologist, the Township told Delvecchio that it would assign her to afternoon shifts when they were available, but insisted that she work occasional midnight shifts. It did so despite the gastroenterologist’s insistence that it was medically necessary for Delvecchio to avoid the midnight shift.

After Delvecchio repeatedly declined assignments to the midnight shift, the Township asked her to resign. When she refused, the Township made her a records clerk and reduced her pay. It later terminated her employment, citing excessive absenteeism.

Delvecchio’s Lawsuit

Delvecchio sued the Township, alleging that it violated New Jersey’s Law Against Discrimination by repeatedly assigning her to the midnight shift. Delveccio contended that IBS constitutes a disability under New Jersey law and that the Township had a duty to accommodate that condition by changing her work schedule.

Pursuant to New Jersey’s discovery rules, Delvecchio disclosed that her treating gastroenterologist would testify that Delvecchio had been diagnosed with IBS and that he wrote notes to the Township explaining that condition and the need for a work schedule change. However, Delvecchio produced no report from the gastroenterologist.

The judge ruled that New Jersey law does not allow a treating physician to testify about a plaintiff’s diagnosis or the impact of a plaintiff’s work schedule on her condition unless the physician has been designated as an expert witness. The judge allowed the gastroenterologist to testify that he was treating Delvecchio for IBS, but would not allow the doctor to explain IBS to the jury.

The court admitted the gastroenterologist’s notes into evidence but instructed the jury that they were received as evidence that Delvecchio requested an accommodation, not as evidence that she suffered from a disability. Having heard no physician’s testimony in support of the claim that Delvecchio was disabled, the jury found in favor of the Township. Delvecchio appealed.

Supreme Court’s Decision

New Jersey’s law against disability discrimination prohibits employers from discriminating against an employee with a disability “unless the nature and extent of the disability reasonably precludes the performance of the particular employment.” A disability under New Jersey law includes an infirmity that prevents “the normal exercise of any bodily function.”

A threshold question in a disability discrimination case is whether the employee is disabled. On appeal, the Township argued that evidence of a disability must be based on “a retained expert witness,” not on testimony from a treating physician.

The Township relied upon an earlier case in which the New Jersey Supreme Court held that “expert medical evidence” is required to prove the existence of a disability unless the disability is apparent. Seizing on the word “expert,” the Township argued that Delvecchio failed to designate her treating physician as an expert and failed to produce the report that New Jersey law requires experts to prepare. The Township claimed that a treating physician who is not retained as an expert cannot testify that a patient is disabled.

The supreme court disagreed. The court relied on a line of New Jersey cases that allow treating physicians “to offer medical testimony regarding the diagnosis and treatment of their patients” as a lay witness. Those cases regard treating physicians as giving testimony about medical facts, not medical opinions.

Recognizing that the attempt to distinguish a medical fact from a medical opinion creates “an artificial distinction,” the court ruled that treating physicians may always give relevant testimony about a patient’s diagnosis and treatment, even if that testimony might be characterized as an expert opinion. If the doctor’s opinion testimony extends beyond diagnosis and treatment, however, the doctor must be designated as an expert and must furnish a report before the testimony will be admissible.

The supreme court ruled that the trial court should have allowed the gastroenterologist to testify about Delvecchio’s “IBS diagnosis, the impact of IBS on [her] everyday life, and the steps that [he] recommended to alleviate [her] symptoms.” Since there was no suggestion that Delvecchio’s attorney intended to ask the doctor “to opine on global questions beyond the scope of his role as plaintiff’s treating physician,” Delvecchio was not required to designate the gastroenterologist as an expert. The court accordingly granted Delvecchio a new trial.

White pills

Jury Acquits Based on Expert Testimony About Accutane Defense

A jury in Morris County, New Jersey found a defendant not guilty of eight sexual assault charges after an expert witness attributed the alleged victim’s accusations to her use of Accutane. According to the expert, the acne medication causes psychosis, false memories, and delusional thinking.

Facts of the Case

“John Smith” (we’ve redacted the accused’s name) was accused of having multiple incidents of sexual contact with the complaining witness between 2000 and 2006. The complaining witness was under the age of 13 during those years.

“Smith”, a long-time coach involved in youth sports activities, was president of the Rockaway Townships’ recreational football league. He denied having any sexual contact with the complaining witness. No witnesses corroborated her accusations.

The Accutane Defense

In a “he said/she said” case, the prosecution usually argues that the complaining witness has no reason to make up a story. It is therefore critical for defendants to explain why they are being falsely accused.

In this case, the defense was built on the accuser’s use of Accutane. Accutane is a prescription acne medication that reduces the body’s production of sebum, an oily substance that contributes to acne by clogging pores.

After a controversial expedited review, the FDA approved Accutane in 1982 for treatment of severe recalcitrant cystic acne. Long after it became clear that Accutane can cause severe birth defects when used by pregnant women, the FDA initiated a program to monitor and limit its use.

A subsequent body of evidence linked the use of Accutane to depression and suicide. Doctors were advised to discontinue Accutane in patients who experienced “mood changes.”

In 2000 and 2002, a congressional committee held hearings regarding the safety of Accutane. James O’Donnell, an associate professor of pharmacology, was one of the experts who testified at those hearings. O’Donnell pointed to studies that raised serious questions about the link between Accutane and toxic psychosis, schizophrenia, and depression, as well as a condition that causes the brain to swell.

Roche, the drug company that manufactures Accutane, denies that it causes psychiatric problems. The company nevertheless added “psychosis” to its product warning as a possible side effect. Roche stopped manufacturing Accutane in 2009 but the generic version, isotretinoin, remains on the market.

A 2012 review of medical studies noted that increased attention has been given to the potential psychiatric side effects of Accutane in recent years. The review found that a number of cases have been reported that appear to link Accutane with psychosis. The review concluded that patients who have an underlying psychiatric disorder, especially bipolar disorder, are particularly likely to experience exacerbated psychiatric symptoms when they use Accutane.

Expert Testimony in “Smith’s” Trial

Criminal defendants have used the Accutane defense in an effort to excuse their own behavior. In that context, the defense has met with little success. In the most publicized example, a jury deliberated only 45 minutes before rejecting John Mullarkey’s diminished capacity defense to a homicide charge. Mullarkey stabbed his girlfriend 16 times. Experts for both the prosecution and the defense debated whether Accutane played a role in his violent conduct.

While juries rarely accept “the drug made me do it” as a defense to criminal responsibility, they tend to be more receptive to arguments that a drug affected the ability of a witness to provide credible testimony. James O’Donnell, the pharmacologist who testified before Congress, was called as an expert witness in the “Smith” trial to cast doubt on the alleged victim’s accusations.

O’Donnell testified that Accutane can cause individuals to experience “a distorted version of reality.” That testimony gave the jury a reason to understand why the complaining witness might invent a series of sexual encounters that never happened. “Smith’s” defense attorney attributed the jury’s decision to find “Smith” not guilty on all counts to O’Donnell’s “persuasive” expert testimony.