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.

Gold Scales of Justice on wood table

Florida Continues to Debate Standard for Expert Testimony

Until the state legislature decided it was time for a change, Florida followed the Frye standard for the admissibility of expert testimony. The state legislature adopted a rule governing expert evidence that parallels Rule 702 of the Federal Rules of Evidence. Widely known as the Daubert standard, that rule arguably raises the bar for the admission of expert evidence.

ExpertPages analyzed a Florida appellate opinion in 2014 that provided the state’s first in-depth discussion of how Florida trial courts are to apply the new rule. That case rejected proposed medical testimony because the expert’s opinion was not based on scientific research. The expert would have testified that a stressful employment environment caused the premature birth of the plaintiff’s baby.

About 35 states have either adopted the Daubert standard (sometimes with slight modifications) or have interpreted their existing evidentiary rules as being consistent with Daubert. The Daubert standard is widely endorsed by the business community, which regards it as a check against expert opinions that are based on “junk science” or that are unsupported by scientific research or a reliable methodology. Critics of Daubert suggest that the standard is designed to make it more difficult for plaintiffs to recover damages from businesses and insurance companies for injuries that were caused by a defendant’s negligence.

Florida Debates Daubert

The Florida Bar is considering a proposed recommendation that the Florida Supreme Court abandon the Daubert standard and return to the Frye standard. A committee of the Florida Bar that considers procedural rules and codes (including the state’s evidence code) narrowly favored the rejection of Daubert. The Bar’s Board of Governors tabled the vote at a meeting on October 16, 2015, but placed the issue on the agenda of a meeting in December.

The separation of powers doctrine arguably gives the state Supreme Court the final say over rules of evidence governing expert testimony, regardless of the state legislature’s attempt to impose the Daubert standard on the state’s judicial system. Even if the Board of Governors decides to make the recommendation, it is not clear whether the Florida Supreme Court would give the Bar’s recommendation greater weight than the legislature’s attempt to amend the evidence code.

A lawyer from the state’s largest personal injury firm argues that “Daubert only benefits rich, powerful people, and corporations or insurance companies.” Plaintiffs’ lawyers argue that Daubert increases the cost of litigation by requiring judges to hold extensive hearings before ruling on the admissibility of expert testimony. Not surprisingly, the Orlando Sentinel reports that opposition to the proposed recommendation “is coming from business groups and defense counsel.” They argue that Daubert is an essential safeguard that protects litigants from verdicts that are based on unreliable expert testimony.

Does the Standard Matter?

For all the effort that lawyers make to convince courts to adopt standards that might favor the clients they represent, it seems likely that the standard makes little difference in most cases. In the Florida case that rejected expert testimony attributing a premature birth to a stressful work environment, the trial court applied the Frye standard in rejecting the proposed expert testimony. The appellate court applied the Daubert standard and arrived at the same result.

Some have argued that the Frye standard, which admits expert evidence only if it is based on principles that are generally accepted in the scientific community, is actually more restrictive than the Daubert standard. The Daubert decision condemns Frye’s “generally accepted” standard as being too rigid. By focusing on the reliability of the expert’s methodology rather than its general acceptance, the Daubert decision may have opened the door to the admission of evidence that would have been excluded under the Frye standard.

Daubert and Supreme Court cases that followed in its wake gave trial judges substantial discretion to admit or exclude expert testimony. Most expert testimony (a DNA analysis, for example) is relatively uncontroversial and will be admitted routinely. In toxic tort and product liability cases where expert testimony is more often challenged, whether the judge will admit borderline evidence often hinges upon how the judge views expert testimony in general. Some judges are skeptical of expert testimony while other judges trust juries to decide whether experts are worthy of belief.

Florida’s struggle with the choice between Daubert and Frye may therefore be much ado about nothing. A study by Professors Cheng and Yoon concluded that basing admissibility on the Daubert standard or the Frye standard “does not make any practical difference.” Judges who are inclined to let juries evaluate expert evidence will admit expert testimony using either standard while judges who are suspicious of expert testimony are more likely to exclude it, regardless of the standard that governs their decision.

government assistance for indigent defendants

Expert Medical Examiner Accused of Being Gun for Hire

Can a medical examiner who is employed by the state serve as an expert witness for private parties? Assuming the state imposes no barrier to outside consulting, the question is whether testifying for private parties might create a conflict of interest.

The potential peril of acting as an expert witness for private litigants is illustrated by a special report in the Atlanta Journal Constitution that criticizes Dr. Kris Sperry, the chief medical examiner for the Georgia Bureau of Investigation. The AJC investigation accuses Sperry of acting as a “hired gun” who tailors his testimony to suit the needs of the lawyers who pay him.

Since 2003, Sperry has worked on more than 500 cases as a paid forensic consultant, all while being employed fulltime by the State of Georgia. The AJC investigation suggested that Sperry’s outside consulting, which doubles the $184,000 salary he earns from the State of Georgia, undermines his credibility as a witness for the state.

Sperry’s Critics

In 2013, Sperry testified as an expert witness for federal prosecutors who accused a former police officer of committing murder by shooting a victim with a sniper rifle. The victim’s body was burned beyond recognition and no bullet was ever found. Without examining the body, Sperry confidently asserted that the victim was shot in the back by a high-powered rifle. Sperry was paid $5,000 for that testimony.

Sperry based his opinion on his review of an X-ray. Although Sperry claimed that “any competent forensic pathologist” would agree with his opinion, four pathologists condemned his opinion as the product of supposition rather than forensic science.

The medical examiner in New Orleans concluded that the X-ray showed metal fragments from the car. According to that expert, no other explanation could account for the missing bullet, which would not have been destroyed by the fire.

Dr. Steven Karch, an Oakland pathologist, said that Sperry was relying on “junk science” to support his opinion. Dr. Jerry Spencer, the former chief medical examiner for the Armed Forces Institute of Pathology, agreed that no credible medical examiner would base a conclusion that a victim was shot by a high-velocity rifle on an X-ray.

The most prominent of Sperry’s critics in the New Orleans case was Dr. Vincent DiMaio, the medical examiner in San Antonio, Texas. DiMaio is the author of several leading forensic science treatises, including one on gunshot wounds. MiMaio not only disagreed with Sperry’s interpretation of the X-ray, he testified that Spencer’s testimony about entrance and exit wounds and the bullet’s supposed path through the body was insupportable without examining the body.

Credibility and Controversy

Not all of Sperry’s detractors focus on his alleged willingness to tailor testimony to the needs of the lawyers who hire him. An Atlanta television station criticized Sperry a few years ago for contradicting the medical examiners in other states when he testified privately. That criticism was probably unjustified, since Sperry exposed testimony that was arguably slanted to favor the examiners’ employer. That’s exactly what an expert should do, making it all the more ironic that Sperry now seems to be slanting his own testimony to favor the people who hire him.

Prosecutors have been accused of intimidating state medical examiners who act as expert witnesses for criminal defendants. Some prosecutors apparently feel that medical examiners should always be on the side of the prosecution, when in fact they should be on the side of the truth. Science is a process of discovering the truth, even if the truth contradicts a prosecutor’s theory of how a crime was committed.

There is nothing inherently wrong with a state medical examiner doing private consulting for a private party. Testifying for the prosecution, the defense, and civil litigants may help medical examiners retain their independence. On the other hand, there is something very wrong with a medical examiner who departs from objective scientific findings by slanting testimony to favor the party that pays the examiner, particularly when that testimony has no foundation in science.

Double Billing

Sperry testified 13 times for the State of Georgia between 2010 and 2014. During that same period, he testified 42 times for private parties.

Sperry told his boss that he puts in his 40 hour weeks for Georgia and works for private clients during his free time, including his leave time. He also told his boss that he doesn’t recall much about his private work and shreds his files after he is done testifying.

Motion for New Trial Based on Art Valuation Experts

Luke Brugnara made the mistake of representing himself in a federal criminal trial. Brugnara was convicted of mail fraud, wire fraud, and a number of lesser charges.

A lawyer would probably have hired an expert to testify for Brugnara during his trial. Expert testimony might have persuaded the jury that Brugnara was the victim of fraud rather than the perpetrator.

Brugnara’s Trial

The fraud charges were based on Brugnara’s agreement to pay millions of dollars to a New York art dealer for paintings, drawings, sketches, and sculptures by Willem de Kooning, Edgar Degas, George Luks, Joan Miró, and Pablo Picasso. The art was shipped to Brugnara in April 2014 but, according to the government, Brugnara refused to pay and refused to return the art.

An FBI search found four crates containing most of the art in Brugnara’s garage. A fifth crate, containing a Degas sculpture, was never recovered.

Brugnara, a former real estate investor and casino owner, consistently proclaimed his innocence. He represented himself in federal district court in San Francisco during a three week trial that was described as chaotic. Despite frequent outbursts that might have turned the jury against him, Brugnara managed to win acquittals on two charges of wire fraud and two charges of making false statements.

Brugnara has not yet been sentenced. With the help of counsel, he is seeking a new trial. His lawyers argue that new evidence if the form of expert testimony establishes Brugnara’s innocence.

Expert Testimony

Brugnara apparently based his defense on the argument that he did not pay the $11 million that he promised the art dealer because the art he received was “fake” and “worthless.” Unfortunately, his defense was based on his own rants rather than expert testimony. He also undermined that defense by making the arguably inconsistent claim that the dealer gave him the art as a gift.

Lawyers filed a motion for a new trial on the ground that expert testimony supports Brugnara’s view that the art dealer tried to swindle him. Brugnara’s expert testified that, viewed collectively, the art objects were worth $895,000, not the $11 million that Brugnara agreed to pay. The government’s expert agreed that much of the art the dealer sold to Brugnarra had no commercial value.

Even if the art was worth less than 10 percent of the amount Brugnarra agreed to pay, he might still have defrauded the dealer by refusing to return the art. The judge reasoned that Brugnara was not entitled to defraud the art dealer just because the art dealer tried to defraud Brugnara.

On the other hand, the jury might have resolved the charges in Brugnara’s favor if he had called an expert witness during his trial. The jury might have concluded that Brugnara’s refusal to pay $11 million for art that was worth less than $1 million was based on a desire to avoid being cheated rather than an intent to defraud.

While the judge has not yet ruled on the motion, the judge did point out that Brugnara claimed during his trial that the art was worthless. Brugnara had the opportunity to cross-examine the art dealer concerning its value but added to his woes by choosing to ask no questions. The judge suggested that Brugnara might need to live with the consequences of that decision.

Authenticity Versus Value

The government and defense experts both testified that their expertise lies in valuing art, not in authenticating it. Yet both experts expressed reservations about the genuineness of the art they inspected.

The government expert testified that the paintings by de Kooning were stylistically inconsistent with his authenticated work and that they appeared to have one signature painted over another. The defense expert testified that he had examined many paintings by de Kooning and that the artist’s signature on genuine works differed from the signature on the works that Brugnara purchased. At the same time, he testified that there is a market for art forgeries and that “suspect” de Koonings might have some commercial value.

The judge, who apparently engages in rants of his own, expressed reservations about the value of expert testimony. He told the defense expert: “All experts do is speculate” and “You’re an expert; all you’re doing is speculating anyway.” That attitude, more common among jaded judges than juries, explains why so many litigants opt for jury trials rather than allowing a judge to decide the case.

Valuing a Missing Sculpture

The value of the Degas sculpture is particularly difficult for the experts to assess, given that the sculpture was not recovered. The government claims that a similar bronze cast from the same foundry recently sold in a Hong Kong auction for $1.8 million. The defense expert testified that established auction houses like Sotheby’s and Christies refuse to sell bronzes from that foundry and questioned whether the Hong Kong buyers had an informed sense of the object’s true worth.

The defense expert was troubled that the auction house refused to disclose the auction catalog that would have established the auctioned sculpture’s value and history. The judge responded: “You’re putting this beyond the reach of any ordinary mortal to put a value on it. You’re discounting based on not knowing.”

The Value of Expert Testimony

Given the judge’s acerbic comments, it seems unlikely he will give Brugnara a new trial. It also seems doubtful that Brugnara can prove the expert evidence is “newly discovered” (the standard he must meet to win a new trial) since expert evidence was available to Brugnara and he chose not to pursue it. On the other hand, whether a conviction should be based on outright lies about value is a question that may need to be resolved on appeal.

The immediate lesson to learn from Brugnara’s case is that attempting to call an expert witness in order to win a new trial is an uphill climb. Expert witnesses should be consulted as soon as a litigant realizes that an expert opinion might influence the outcome of a trial.

Soil Scientists Testify in Botanical Gardens Controversy

A Connecticut judge was recently asked to decide whether a restraining order should be entered to halt work on a project that allegedly violated environmental laws. Expert testimony by soil scientists was the focus of a two day hearing in New London Superior Court.

The Chelsea Gardens Controversy

A nonprofit foundation plans to create an 80-acre nature preserve and butterfly pavilion on land in Mohegan Park that it leased from the City of Norwich. The controversial Chelsea Botanical Gardens project has inspired protest from city residents who fear that pristine wilderness will be lost to structures that include a visitor’s center and an international gardening school. Supporters of the project argue that it will attract hundreds of thousands of visitors each year, providing an economic benefit to Norwich.

Clearcutting began on six acres within the park in April. Officials of Chelsea Gardens Foundation claimed the deforestation “is necessary to give future investors an idea of the project’s layout as they seek private contributions.”

Norwalk resident Chuck Evans Jr. disagrees. He filed a lawsuit against Chelsea Gardens Foundation alleging that the clearcutting is a public nuisance. Evans contends that the Foundation has violated local and state environmental regulations. The lawsuit seeks an injunction that would prohibit the project from moving forward.

As part of his lawsuit, Evans asked for a temporary restraining order. Granting the order would force the Foundation to stop working on the project until a final decision is made on Evans’ request for a permanent injunction.

Expert Testimony at the Restraining Order Hearing

Evans relied on the expert opinion of Stamford-based soil scientist Steven Danzer. During more than four hours of testimony, Danzer explained his belief that the clearcutting was environmentally harmful to the park’s wetlands because the Foundation had no plan to prevent soil erosion. According to Danzer, storm water runoff will increase due to the lack of ground cover. Danzer also testified that the clearcutting did not fall within the scope of state and local permits issued to the Foundation and that the Foundation failed to obtain a required storm water management permit.

On cross-examination, Danzer admitted that he did not inspect the wetlands before the clearcutting began and therefore could not perform a before-and-after comparison. He also acknowledged that he took no photographs to support his opinions.

The Foundation countered with the testimony of Norwich-based soil scientist Robert Russo. He testified that he prepared an ecological inventory of the site in 2000 and drafted a wetlands report in 2012.

Based on recent visits to the site, Russo contended that the clearcutting did not have an adverse effect upon wetlands. He testified that the porous soil remained capable of absorbing rainwater. Russo said he saw no significant difference between vegetation and habitat in the wetlands before and after the clearcutting.

Restraining Order Denied

The court denied the request for a temporary restraining order. That does not end the controversy, as the court could still grant an injunction after hearing more evidence during a trial. On the other hand, it will probably take strong evidence to persuade the judge to stop the project after his initial ruling permitted the Foundation to move forward.

The Chelsea Gardens Foundation waited less than a day after defeating the restraining order application before launching a campaign to raise the funds it requires to move the project into its next phase. Fundraising should be easier now that legal challenges to the development seem less likely to prevail.

New Funding for Experts in Sexual Assault Prosecutions

Many sexual assault crimes cannot be solved, and prosecutions cannot be commenced, without the help of experts. Some experts who testify as government witnesses in sexual assault cases work in state or municipal crime laboratories. Others work in private labs that provide services under contract with a state or municipal agency. One critical role that experts play is the analysis of evidence the police have gathered in a “rape kit.”

Sexual assault prosecutions around the country have stalled, and crimes have gone unsolved, because states and municipalities have not made funds available for experts to analyze the contents of rape kits. An editorialist recently observed that Kentucky is one of several states that suffers from “an inadequate state crime lab, a backlog of untested rape kits and a lack of money for prosecutors to pay for expert witnesses.”

Untested Rape Kits

A “rape kit” is a collection of evidence that is taken from the body of a sexual assault victim. It can include fingernail scrapings as well as swabs that gather semen, blood and other fluids from the victim’s body and clothing.

Ideally, the swabs are tested promptly and a DNA profile of the perpetrator is prepared. The profile can confirm or rule out the involvement of an identified suspect or, if the assailant is unknown to the victim, can be entered into a DNA database in search of a match.

Law enforcement agencies around the nation gathered hundreds of thousands of rape kits since the 1980s that they left untested. State and local crime labs that do not do their own DNA testing lacked funding to send the samples to private labs. Government agencies pay private labs as much as $1,000 per DNA test. In the midst of financial woes, many states and municipalities have made testing of rape evidence a low priority and have not been able to afford to pay private lab analysts to testify in court.

New Funding for Expert

In an attempt to resolve the problem of untested evidence, the U.S. Department of Justice and the Manhattan District Attorney’s Office are making $79 million in grant money available to 40 cities. The funds are earmarked for the testing of rape kit evidence. Manhattan’s contribution is being paid from civil forfeiture proceeds collected in prosecutions of international banks.

The new funds are expected to enable experts to test about 70,000 rape kits. To assure that the funds are not misapplied, agencies will need to pay for the testing in advance. If they demonstrate that the money was spent appropriately, they will receive reimbursement from the grant.

The project includes an agreement with two private labs to reduce the cost of DNA testing. Law enforcement agencies that are eligible for the grant may be able to obtain testing for $675.

Prosecutors will also be able to use grant money to pay expert witnesses to testify. The budgetary savings that the grant money makes possible may also free up resources that can be used to pay lab analysts to testify in court.

Grant recipients include the City of Memphis, California’s Contra Costa County, and the Arkansas State Crime Lab. The funds are eventually expected to reach 43 government agencies.

Expert Witnesses Do Not Always Need a College Degree

Many experts have advanced degrees in specialized fields, but other experts gained their knowledge through experience. Rule 702 of the Federal Rules of Evidence permits expert testimony that will help the jury if the expert is qualified “by knowledge, skill, experience, training, or education.” Most states follow a similar rule.

Experience in the kitchen was enough to qualify a cookie expert to testify in a case from Hawaii that an attorney recently discussed in The Ukiah Daily Journal. The case involved a lawsuit that Big Island Candies, Inc. brought against The Cookie Corner, alleging that The Cookie Corner improperly copied its cookie design. In its defense, The Cooker Corner presented sworn statements from a number of cookie experts, including Wally Amos, better known to cookie lovers as Famous Amos.

The Cookie Design Dispute

According to the court decision, Big Island marketed “a rectangular macadamia-nut shortbread cookie with ‘bull-nose’ (i.e., rounded) corners that is diagonally dipped in chocolate.” The court expressed no opinion whether the cookie is as delicious as it sounds.

Big Island did not accuse The Cookie Corner of copying the cookie’s recipe, but of stealing the cookie’s design. According to Big Island, covering only half the cookie in chocolate along a diagonal line that ran from corner to corner, along with its rectangular shape and bull-nose corners, gave the cookie a distinctive appearance that it was entitled to protect. The Cookie Corner’s version of the cookie was nearly identical, except that its cookie was slightly larger.

The case turned on whether the cookie’s design was inherently distinctive and therefore protectable by intellectual property laws. If Big Island’s cookie was a generic design, The Cookie Corner had as much right to use it as Big Island and Big Island was not entitled to claim that its design had been copied.

A generic design is one that relies upon basic product features that are common to most similar products. The size and shape of cookies, for example, are usually basic design features because most cookies share similar sizes and are made in one of a few common shapes. A design is deemed generic when it is so common that consumers do not identify it with a particular manufacturer. A distinctive design, on the other hand, is not only unique but is intended to make consumers associate the design with a particular brand.

Expert Cookie Opinions

To apply these rules to chocolate-covered macadamia nut shortbread cookies, the court turned to the expert evidence that Big Island and The Cookie Corner supplied. Big Island offered expert survey evidence from researchers who showed the cookie to consumers and asked if they knew who made the cookie. Roughly a quarter of the consumers associated the cookie with Big Island, but that evidence did not persuade the court that consumers thought the cookie design’s primary significance was its ability to help them distinguish Big Island cookies from other brands. Besides, consumers could see the name “Big Island Candies” on the cookie wrapper, which likely helped them identify the manufacturer more than the cookies’ design.

Big Island also offered expert evidence from a seller of cookie-making machines who testified that he “could not recall” seeing other brands of shortbread cookies that were half-covered with chocolate on a diagonal. Since that failure of recollection did not refute the testimony provided by The Cookie Corner’s experts, the court held that it did not establish the distinctiveness of the Big Island design.

The Cookie Corner, on the other hand, offered the opinions of several experts “with extensive training and experience in the baking and cookie industries.” Those experts (including Wally Amos) offered opinions that the size, shape, and diagonal chocolate coating of Big Island’s cookie were widespread design features that are commonly used in the cookie industry. The court ruled in favor of The Cookie Corner because its expert evidence was essentially unrefuted.

Cookie Expert Qualifications

Big Island argued that The Cookie Corner’s experts were not qualified to provide expert evidence because they did not have adequate credentials. In particular, Big Island asked the court to discount Wally Amos’ opinion because he “did not graduate from high school and because he does not have a degree in a culinary field.”

The court noted that Rule 702 does not require experts to have formal degrees. Expertise can be acquired by on-the-job experience. Wally Amos founded the Famous Amos Cookie Company, has traveled extensively to meet with cookie makers and bakers, and has acquainted himself with hundreds of cookie recipes. The court had no trouble accepting Amos as a cookie expert based on his extensive experience in the cookie industry.

Expert Witness Will Be Allowed to Explain Alleged Victim’s Recantation

Expert witnesses are commonly called by both the prosecution and defense to testify concerning accusations that a defendant sexually assaulted a child. Defense experts usually explain why children are susceptible to influence that may cause them to believe that false accusations of sexual assault are actually true. Prosecution witnesses include medical experts who testify that certain injuries are consistent with sexual abuse, as well as experts in child psychology who explain why children delay reporting incidents of sexual abuse.

A federal prosecutor in a Pennsylvania trial wants to have an expert explain why children might make truthful accusations of abuse and later recant them. The defense unsuccessfully objected that the expert, who has never interviewed the alleged victims, should not be allowed to testify.

Allegations in the Maurizio prosecution

Although sex offenses are typically state crimes rather than federal offenses, Rev. Joseph Maurizio, a former priest at Our Lady Queen of Angels Parish in Central City, Pennsylvania, has been charged with eight federal crimes concerning the alleged abuse of children in Central America. The crimes include traveling to a foreign country to engage in illicit sexual contact with a minor, possession of child pornography, and transporting money out of the country for an illegal purpose.

Father Maurizio allegedly had illicit contact with minors over a ten year period during his visits to orphanages in several Central American countries. The indictment focuses on a six year period during which Father Maurizio visited an orphanage in Honduras. Alleged victims reportedly told Homeland Security agents that Father Maurizio had sexual contact with minors, offered them money or candy for sexual favors, and attempted to take nude photographs of them. Father Maurizio was relieved of his duties in September 2014, after federal agents seized computers and electronic storage devices from his parish home and chapel.

The Child Sexual Abuse Accommodation Syndrome controversy

The prosecution proposes to call a clinical psychologist, Veronique Valliere, as an expert witness. Although federal procedural rules require the nature of proposed expert testimony to be disclosed in advance of trial, there is some dispute as to exactly what Valliere will say if she testifies.

According to the defense, Valliere is expected to testify about the Child Sexual Abuse Accommodation Syndrome (CSAAS). That controversial syndrome, developed to account for the behaviors of sexually abused children, purports to explain why abuse victims delay reporting or fail to report incidents of sexual abuse and why they retract truthful accusations.

Critics of CSAAS argue that the syndrome is meaningless because it suggests that reporting, failing to report, and denying sexual abuse are all evidence of sexual abuse. Critics suggest that CSAAS ignores the possibility that a child delayed reporting abuse, denied abuse, or recanted a past allegation of abuse because the abuse never happened. Advocates of CSAAS, on the other hand, argue that the syndrome provides a scientifically valid explanation of the behaviors of child sexual assault victims.

Court decisions concerning the admissibility of CSAAS have been mixed. Whether they apply the Frye or the Daubert standard for the admissibility of expert testimony, most courts have guardedly permitted experts to base testimony about the reaction of children to sexual abuse on CSAAS research, at least when the defense relies upon delayed reporting or recantation to attack the accuser’s credibility. Courts generally conclude that the testimony is helpful since most jurors do not have firsthand experience upon which to base judgments about how children react to sexual abuse.

At the same time, courts generally hold that experts cannot themselves assess the credibility of alleged abuse victims, since that assessment can only be made by a jury. Some courts instruct jurors that testimony about CSAAS is being admitted solely to show that a victim’s recantations are not necessarily inconsistent with having been molested, not as proof that the recantation is truthful.

A minority of courts have concluded that CSAAS is not generally accepted by the scientific community and that CSAAS is therefore inadmissible, or that that testimony based on CSAAS creates an unacceptable risk that jurors will view the expert testimony as evidence that abuse actually occurred. As the Iowa Court of Appeals noted, there is “a very thin line” between an admissible expert opinion that helps a jury evaluate a child’s testimony and an inadmissible expert opinion that the jury will take as substantive proof of a defendant’s guilt.

The prosecution’s response

The prosecution in Father Maurizio’s case wants Valliere to testify in its case-and-chief, not as a rebuttal witness to rehabilitate any child witnesses who recant. The defense argued that the prosecution’s tactic amounts to using CSAAS evidence as proof of the defendant’s guilt.

The prosecution denies that Valliere will testify about CSAAS. The defense suggested that Valliere will rely on CSAAS even if she does not identify the syndrome by name. The defense also argued that Valliere has never interviewed the children and that no studies have validated CSAAS in children from Honduras, who may (for cultural reasons) respond to sexual abuse in ways that differ from American children.

The court denied a defense motion to exclude Valliere’s expert testimony. Father Maurizio’s trial is scheduled to begin in September. It is expected to last three weeks. The defense may decide to call its own expert to counter Valliere’s testimony.

Wisconsin Court Applies Relaxed Standard to Medical Expert Evidence

To recover damages in a medical malpractice lawsuit, Wisconsin law requires the injured party to prove that the physician accused of negligence failed to provide the same standard of care that would have been provided by reasonably prudent physicians who practice in the same field of medicine and in the same locality. Expert testimony is nearly always required to establish both the prevailing standard of care and the negligent failure to meet that standard.

But does the medical expert need to rely on medical literature and other scientific data when he or she expresses an opinion about the prevailing standard of care? The Wisconsin Court of Appeals recently decided that the state’s version of the Daubert test allows medical experts to base their opinions on their own experience rather than published studies.

The malpractice case

The lawsuit alleged that a baby suffered nerve damage during its birth, causing a permanent disability in the baby’s left arm. The lawsuit was filed against the obstetrician who provided prenatal care to the mother. The obstetrician also delivered the baby.

Evidence at trial established that the baby’s shoulder became stuck (a condition known as shoulder dystocia) after the baby’s head emerged. After the baby was born, he was diagnosed with an injury that inhibits the growth and use of his left arm. The baby’s family attributed that injury to the obstetrician’s use of excessive traction to dislodge the shoulder during the baby’s delivery.

The plaintiff’s expert witness testified that the obstetrician erred in three ways. First, the obstetrician estimated the baby’s likely weight at birth by tracking the mother’s weight gain during her pregnancy. The expert testified that the obstetrician should have performed an ultrasound to estimate a more accurate birth weight. Knowing the baby’s actual birth weight (one pound and four ounces more than the obstetrician’s estimate) would have alerted the obstetrician to the heightened risk of shoulder dystocia.

Second, the expert testified that the obstetrician should have followed up an abnormal one-hour glucose test with a three-hour test to determine whether the mother had gestational diabetes. That condition can result in an elevated birth weight which again increases the risk of shoulder dystocia.

Finally, the expert testified that the obstetrician should not have performed a vacuum-assisted birth, given the mother’s weight and the baby’s birth weight. The expert opined that vacuum-assisted births are the largest risk factor for shoulder dystocia.

The jury concluded that the obstetrician was negligent. It awarded damages of almost $900,000.

Medical opinions compared to other expert evidence

Wisconsin has adopted a version of the familiar Daubert test, which permits the testimony of a qualified expert if it will be helpful to the jury, if the testimony is the product of reliable principles and methods, and if the witness has applied the principles and methods reliably to the facts of the case. The question in Siefert v. Balink was whether the expert based his testimony on reliable principles rather than personal preferences about the medical procedures an obstetrician should follow.

The defense founded its objection to the expert’s testimony on the expert’s failure to ground his opinions in medical literature. The Wisconsin Court of Appeals rejected that argument. The court relied on federal cases that recognize a distinction between medical evidence and other kinds of scientific evidence. The kinds of double-blind experiments that underlie statistical proof in other fields of science are often unavailable to medical experts given ethical prohibitions against experimentation on humans.

In addition, medicine is an uncertain science that addresses complex human organisms. It does not lend itself to the same level of certainty as physical sciences. Rather, it calls upon physicians to make sound judgments based on experience in addition to training.

Admissibility of the expert’s opinion

The expert based his opinion about known and generally accepted factors that determined the standard of care (birth weight, maternal obesity, and glucose testing) on his professional experience. The expert was not required to rely upon medical literature or on laboratory experiments in addition to his own experience as a basis for that opinion. The trial court noted that the Daubert standard is intended to shield the jury from “junk science” and determined that the expert’s training and experience assured that his opinions were not the product of junk science.

The court of appeals accepted the trial court’s reasoning. Although one part of the expert’s opinion was contradicted by medical literature that supported the obstetrician’s decision to regard the one-hour glucose test as normal, the expert was assessing the glucose test in light of the mother’s obesity and his own experience. It was up to the jury to weigh competing evidence and decide whether to believe the expert. The fact that an expert’s opinion can be impeached does not mean that the opinion is based on an unreliable methodology or that the methodology is not reliably applied to the facts of the case. Debatable evidence that is supported by experience should be assessed by the jury, not excluded from evidence.

What Makes a Medical Examiner a Credible Expert Witness?

Medical examiners often serve as expert witnesses in criminal trials, grand jury hearings, coroner’s inquests, and other legal proceedings. Many testify on behalf of the governmental body that employs them, but pathologists and retired medical examiners are also asked to serve as expert witnesses for private parties.

Any case in which cause of death, time of death, or the circumstances surrounding death must be established can give rise to the need for expert testimony. Two recent news stories about medical examiners shed light on how juries assess their credibility.

Qualities that make a medical examiner’s testimony credible

Dr. Donald Reay retired as the medical examiner in King County, Washington in 1999. His exemplary performance in the job was recently recognized by the National Association of Medical Examiners. The organization is honoring Dr. Reay with the Milton Helpern Laureate Award, “the nation’s most prestigious award for medical examiners.”

According to King County Superior Court Judge William Downing, Dr. Reay “embodied all of the attributes of the ideal expert witness.” Judge Downing identified those qualities as intellectual curiosity, scientific objectivity, and unshakable honesty. Dr. Reay was also praised for his vast knowledge and for his ability to communicate that knowledge by speaking to juries as a “regular guy.”

Unlike expert witnesses who “become advocates and lose their credibility,” Judge Downing said that juries trusted Dr. Reay because he never lost his objectivity. That opinion is consistent with Dr. Reay’s view of his role as an expert. Instead of viewing himself a witness for the prosecution or the defense, he testified as “a witness for the dead.”

Qualities that make a medical examiner’s testimony doubtful

Radley Balko has written a number of columns for The Washington Post that are critical of Mississippi medical examiner Steven Hayne. As an expert witness employed by the state, Hayne became controversial due to his perceived willingness to slant his testimony to favor the prosecution.

A number of convictions based on Hayne’s testimony have been overturned on appeal — including one that nearly resulted in an execution — based on doubts about the validity of Hayne’s expert testimony. Court decisions make clear that Hayne, unlike Dr. Reay, adopted the role of an advocate rather than an expert whose opinions were based solely on an objective analysis of the facts.

The Mississippi Department of Public Safety became so frustrated with Hayne (who at one point performed a remarkable 1,800 autopsies a year) that it took action to prevent him from doing autopsies. That action effectively barred him from testifying as an expert for the State of Mississippi, despite efforts of the state’s Attorney General to keep him employed.

As Randy Balko reports, once Hayne could no longer testify for the prosecution, he became a defense expert. His controversial past, however, has affected his credibility in that role.

In a recent case, Hayne contradicted the prosecution’s medical experts, who testified that an alleged murder victim died from a blow to the head. Hayne testified that the alleged victim died from a drug overdose after combining anti-depressants with alcohol.

During cross-examination, the prosecutor pointed out that a number of convictions had been reversed based on Hayne’s improper testimony. Hayne’s willingness to testify outside the area of his expertise provided additional fodder for the prosecutor on cross-examination.

Of course, there is no little irony in the spectacle of prosecutors attacking the expert they once relied upon to help them secure murder convictions. As Balko remarks, the State of Mississippi is “arguing that Hayne both is and isn’t qualified and credible to testify as an expert witness — depending on whether he’s testifying for or against the prosecution.”

Medical examiners who testify as expert witnesses should follow the path of Donald Reay, not that of Steven Hayne. A credible medical examiner is one who is an advocate for the truth, not an advocate for the party who is paying for the expert testimony.

A “Force Science” Expert Explains Why Police Shoot Unarmed Suspects

When police officers shoot an unarmed suspect, they often face state or federal charges for homicide or for violating civil rights by the use of excessive force. They are also exposed to civil liability in state or federal lawsuits. In all of those situations, the officers turn to expert witnesses to explain their actions to juries.

The New York Times recently explained how a psychologist can help police officers obtain favorable verdicts in civil and criminal trials. The article profiles William J. Lewinsky, a former psychology professor who has provided expert assistance in two hundred police shooting cases in the last ten years. The Times calls Lewinsky “one of the most influential voices” in the psychology of police shootings. Critics ask whether his testimony is based on valid research or “junk science.”

An Advocate for Police Officers

According to the Times, Lewinsky’s testimony consistently justifies police shootings, even when the officer’s version of the shooting is contradicted by video evidence, physical evidence of how the shooting occurred, and witness testimony. Even when the shooting victim was unarmed or shot in the back, Lewinsky’s testimony exonerates the officer.

Lewinsky’s company, the Force Science Institute, trains officers that it is reasonable to shoot suspects who engage in ambiguous conduct that could be perceived as threatening. That training is based on Lewinsky’s controversial research, which concludes that officers who wait to see a weapon before shooting a suspect are putting their lives at risk.

For example, a Portland trial in which Lewinsky testified involved a police officer who stopped a driver for a red light violation. The driver put his hand in his pocket. The officer told the driver to take his hand out of the pocket and then shot the driver when the driver started to obey that command. The driver was unarmed. Lewinsky testified that the officer behaved appropriately.

Lewinsky’s advice to police officers opposes the modern trend to develop clear use-of-force guidelines that require officers to follow a “continuum” that allows the use of deadly force only as a last resort. A typical continuum approach instructs police officers to begin interactions with verbal commands. When those commands are resisted, officers are permitted to use appropriate physical force (perhaps including chemical sprays), escalating to nonlethal incapacitating force (such as a Taser) when resistance becomes aggressive. Officers are typically trained to assess threats before they respond and to use deadly force only to overcome a deadly threat.

Force Science vs. Junk Science

Lewinsky bases his opinions on the study of “force science,” a field he largely invented. His maverick approach is consistent with his educational background. He designed his own doctorate in a field he calls “police psychology.” The police psychology doctorate, awarded by an alternative university, is not available elsewhere.

Lewinsky defines force science as “the research and application of unbiased scientific principles and processes to determine the true nature of human behavior in high stress and deadly force encounters.” The gist of his research is that suspects can pull and fire guns very quickly. His conclusion is that officers can only protect themselves by shooting when they suspect a gun is about to be pulled, even if they have not actually seen one.

Critics suggest that Lewinsky’s theory puts the lives of police officers (who are paid to take risks) ahead of the lives of innocent victims who have done nothing to endanger the officers. An editor of The American Journal of Psychology calls Lewinsky’s research “pseudoscience” while the Justice Department says that Lewinsky’s findings are unreliable. Yet, as Lewinsky points out, the Justice Department also paid him $55,000 to testify on behalf of a federal drug agent who killed an unarmed 18-year-old.

Lewinsky’s credentials stress that he has spoken at “peer reviewed” conferences and mention that his research is published in law enforcement journals, but Lewinsky does not specifically claim to have published peer-reviewed research. He has been criticized for relying on research findings that have not been reviewed by other scientists, for failing to conduct research using control groups, and for drawing conclusions that his data does not substantiate.

Lewinsky has also been criticized for basing testimony on his own assumptions about why police officers acted as they did, and for giving testimony that fails to account for the possibility that officers who describe a shooting are lying to protect themselves. None of that seems to matter to juries, which tend to side with the police officer when Lewinsky testifies.

Effective Testimony

According to the Times, Lewinsky is a popular expert — despite the $1,000 per hour he charges to testify — because he has the qualities that lawyers hope to find in an expert witness: he sticks to his guns, he is not easily rattled during aggressive cross-examination, he is “affable and confident,” he gains the trust of jurors by citing research findings, and he establishes a rapport with juries by sprinkling sports metaphors into his testimony. Shooting an unarmed person, he tells juries, is like swinging at a bad pitch.

Jurors in many jurisdictions are predisposed to view police officers as heroic and to view their self-protective actions as justified. Influenced by television shows and movies that portray police work as more dangerous than it really is, jurors are inclined to side with police officers when they use deadly force. As the Times points out, Lewinsky gives them a reason to do so.