Category Archives: Expert Opinions

Newborn Baby

Mississippi Supreme Court to Review Shaken Baby Case

The Mississippi Supreme court has agreed to review the case of a man whose murder conviction was overturned last year. The court will decide whether to reinstate the conviction, order a new trial, or drop the charges entirely.

The Crime

In January 2008, Joshua Clark was left in charge of his infant daughter Kylie and three other children. When Kylie’s mother returned home, she found Kylie limp in the recliner and Clark playing video games.

Kylie was taken to the hospital, where doctors found numerous injuries to her brain. Clark was charged with capital murder in connection with the death of his daughter.

Circuit Court Trial

At trial, the state argued that Clark had gotten angry with his daughter and violently shook her. Clark’s defense argued that he was not known to be violent and that Kylie’s injuries were more consistent with a short fall to the ground from the couch or chair.

The state retained Dr. Karen Lakin to testify as an expert witness. Dr. Lakin testified that “in her opinion, the child had been violently shaken, causing a fatal brain injury.”

Clark was convicted of second degree murder and sentenced to 40 years in prison.

Court of Appeals

Clark appealed his conviction. One of his defense team’s arguments was that the circuit court erred by admitting Dr. Lakin’s testimony.

In October 2019, the Mississippi Court of Appeals reversed Clark’s conviction. In a split decision, the appellate court ruled that Dr. Lakin had not provided supporting materials for her findings. The court remanded Clark’s case back to the circuit court for a new trial.

Mississippi Supreme Court

Clark appealed his case to the Mississippi Supreme court. Clark’s attorney, Jim Waide, argues that Shaken Baby Syndrome has been disproven by new medical science. Without the shaken baby syndrome argument, Waide claims, the state has no case. Waide argues that Clark should be released from prison to await a new trial or that all charges against him should be dropped.

In his petition, Waide wrote, “The only issue worthy of review by (the supreme court) is whether the state should be allowed to have a second trial to produce scientific evidence which it failed to produce at the first trial.”

The state also appealed the Court of Appeals’ decision. The state has argued that the Court of Appeals was wrong to throw out the expert witness testimony about Shaken Baby Syndrome. It has asked the Supreme Court to reinstate Clark’s conviction.

Arguing for the state, Mississippi Special Assistant Attorney General Scott Stuart claims that if the Court of Appeals’ ruling is allowed to stand, it will cause new problems and “set new higher standards for expert testimony.”

The Mississippi Supreme Court has not yet announced the time frame for its review.

Clark is likely to remain in state prison until the Mississippi Supreme Court makes its final ruling. Waide had argued that Clark should be released pending the Mississippi Supreme Court’s decision. Circuit Court Judge Kelly Mims disagreed with Waide. Judge Mims stated that since the case is still being appealed, Clark is still technically a convicted murderer and should remain in prison.

Clark has been in jail or prison for 12 years at this point.

 

Lab Analysts May Be Required to Testify in Person in Criminal Trials

Deposing Experts in the Age of COVID-19

Taking discovery from experts was fairly routine before the coronavirus pandemic. Under the federal rules in civil cases, an expert would write a report, the report would be disclosed to the opposing party, and that party would typically take the expert’s deposition. State rules generally track those procedures.

After the pandemic, taking a deposition is a more complicated issue. Social distancing is difficult in a conference room where the expert, at least two lawyers, a court reporter and/or a videographer all gather. Experts and lawyers may be reluctant to sit across from each other at a conference table. They might also have reservations about handing documents back and forth.

Wearing a mask muffles questions and answers and makes it difficult for a court reporter to produce an accurate transcript. Since depositions are typically recorded on video, the mask also interferes with the viewer’s opportunity to gain nonverbal cues about the expert’s credibility by watching the expert’s facial expressions.

Remote Depositions

Rule 30(b) of the Federal Rules of Civil Procedure allows parties to stipulate, or the court to order, “that a deposition be taken by telephone or other remote means.” In the past, parties sometimes refused to stipulate to remote depositions because they wanted to drive up the opposing party’s cost of litigation.

The importance of social distancing during a pandemic, and the likelihood that precautions will be the “new normal” for an extended time, will likely make it easier to persuade federal judges to grant Rule 30(b) motions permitting remote depositions. Objecting to remote depositions during a pandemic is unlikely to curry favor with a judge who is truly neutral.

Platforms like Zoom and WebX allow people at multiple locations to participate in a meeting. Those platforms lend themselves to remote depositions. The court reporting service might suggest a different platform that offers helpful features, such as exhibit display and the ability to read real-time transcription.

Most companies that provide court reporters and videographers have experience with remote depositions. It makes sense to select a reporter shortly after the deposition is scheduled and to listen to the reporter’s suggestions to make the expert’s deposition proceed smoothly.

It is usually preferable for the court reporter to be in the same location as the expert witness. Errors caused by internet lags and equipment glitches are less likely when the reporter is present to hear the witness testify.

Practical Concerns

Taking or offering a remote deposition raises practical concerns that lawyers for both parties need to address. First, the party taking the deposition should assure that the reporter or videographer is “an officer authorized to administer oaths” as Rule 28(a) requires, unless the parties stipulate otherwise. A reporter or videographer who is also a notary will typically satisfy the requirement that the deposition be taken before an officer, although it may be possible to stipulate that a notary at a remote location administer the expert’s oath.

Second, it makes sense to mark and circulate exhibits ahead of the deposition. The expert report will likely be an exhibit that everyone will have in advance, but marking exhibits on the fly and then showing them to a witness — a common practice during in-person depositions — is problematic when the witness is asked to view an exhibit on a screen.

While attorneys might still try to surprise an expert with a “gotcha” exhibit, the effective use of document discovery prior to an expert’s deposition should limit the likelihood that an expert will be asked about an exhibit the expert has not seen in advance. Marking exhibits and circulating them by email or through a shared link will make a remote deposition proceed more smoothly. Depositions conclude more quickly when the expert witness is familiar with the exhibits and can consult a hard copy rather than squinting at a screen.

 

Drug Dog Expert Helps Defendant Establish that Car Search Was Unreasonable

ExpertPages recently reported an appellate decision in Florida that upheld the admission of expert testimony given by cadaver dog handlers. The handlers testified that when their dogs “alerted” after sniffing parts of a car, they were telling the handler that they smelled the remains of a body.

The human ability to interpret a dog’s thoughts is suspect, at best. When a dog brings us her leash, we assume she wants to go for a walk, but maybe she just enjoys carrying her leash. The Florida cadaver dog handlers assume that their dogs are alerting because they smell bodily remains, but one of them admitted that his dog once alerted when he smelled shrimp.

The point is that nobody can be certain what a dog intends to communicate because nobody can read a dog’s mind. Dogs react to verbal cues from their owners and have an intense desire to make their owners happy. Perhaps they react in ways that they hope will please their owners, even if the reaction is unrelated to their training.

The Florida decision paid lip service to Daubert but its analysis of the reliability of dog handler testimony was cursory. While not applying Daubert, a federal court in Utah recently made a more thorough analysis of the science underlying a dog’s expert testimony, as filtered through human handlers.

Traffic Stop

Desmond Travis Jordan was suspected of involvement in drug crimes. A police detective with less than five years of law enforcement experience began conducting surveillance of Jordan’s residence.

Detective Allen alerted a K9 handler to be ready in case Jordan left his home. Having prejudged Jordan’s likely guilt, Allen was planning to have a drug dog sniff Jordan’s vehicle to provide probable cause for a search.

Allen saw a vehicle leaving Jordan’s home. Allen didn’t know who was driving, but he immediately contacted Officer Moore, the K9 handler, to advise him that he should be ready to respond to a traffic stop.

Two minutes later, Allen stopped the vehicle, allegedly for speeding. Allen then contacted Moore and asked him to come to the scene with his drug dog.

Dog Sniff and Vehicle Search

Moore arrived with Tank, the drug dog. A video showed that Moore walked Tank around Jordan’s car three times. Tank did not seem particularly interested in the car. He displayed greater interest in sniffing the sidewalk and watching traffic pass.

Apparently unhappy with Tank’s response, Moore tapped on the doors and the trunk several times. Even then, Tank showed little interest. He did sniff the car, however, which Moore interpreted as an “alert.” Tank did not give the final response he was trained to give upon detecting the odor of drugs — he did not sit — but Moore testified that as Tank’s trainer, he knew what Tank was trying to say.

Armed with Moore’s opinion that Tank had detected the odor of drugs, Allen searched Jordan’s vehicle. Allen found an empty marijuana pipe and a firearm. Jordan was charged with a federal crime related to his possession of the firearm.

Drug Dog Training

Tank, the drug dog, immigrated from Slovakia in March 2018. Tank suffers from a degenerative hip disease, an unfortunate condition for a dog that is trained to give alerts by sitting.

Moore began training Tank through the Utah POST program in April 2018. Training included the detection of various drugs by scent. Tank was certified as a drug dog in July 2018.

Handlers must be trained as well as the dogs. The POST system tells handlers to disregard normal dog reactions to interesting smells, including focused sniffing and excitement. These are normal behaviors of all dogs and offer no evidence that the dog smelled an odor it was trained to detect.

Tank was trained to sit or lay down when it detected the highest concentration of a drug odor. The training manual claims that the dog’s trained response is objective evidence of the presence of a target odor. The manual does not explain how to distinguish between “I am laying down because I smell heroin” and “I am laying down because I am tired.”

Moore continued training Tank after Tank was certified. However, 27 of the 28 training sessions involved locations where drugs were present. Only one session involved a session where no drugs were present. The sessions may therefore have trained Tank to expect the odor of drugs and to respond accordingly.

In addition, on all but one occasion, Moore was aware that drugs were present. That knowledge created the risk that he would continue to have Tank sniff until Tank alerted. In other words, Tank was trained to alert because Moore wanted him to alert. Whether Tank actually smelled drugs is something that only Tank knows.

Dog Sniff Expert

Jordan moved to suppress the results of an illegal search. Allen needed probable cause to search Jordan’s car. Jordan contended that Moore’s testimony did not establish that his car probably contained illegal drugs.

Jordan called Mary Calbk as an expert witness. Calbk is a POST K9 Evaluator in Nevada and a POST instructor in California.

Calbk explained the concept of “handler bias.” Since dogs are highly motivated to make their owners happy, handlers can easily trigger a false response when handlers expect to find drugs. Even the best trained dogs can react to subtle visual cues and give a response because they believe the handler will be pleased by a response.

The best way to avoid handler bias is double-blind training, in which the handler does not know whether a particular location contains drugs. The dog’s response is judged by a third person, not the handler, who also does not know whether drugs are present. Tank never had double-blind training.

Of course, training makes little difference in a case like Jordan’s, where both Allen and Moore clearly expected Jordan’s car to contain drugs and where Tank never gave the trained response. Calbk testified that the video showed Tank engaging in ordinary dog behavior. In her expert opinion, nothing in that behavior suggested that Tank smelled drugs.

Court’s Decision

Tenth Circuit precedent has been quite forgiving about drug dog “alerts,” even going so far as to say a drug dog need not necessarily give a “final indication.” One might wonder what the point is of training dogs to give a final indication if their handlers are free to ignore that training and substitute their own opinions of what was in the dog’s mind for the objective evidence they are trained to gather.

Judge Waddoups wisely recognized that precedent did not address cases in which a dog’s behavior — sniffing a car after its handler has rapped on the car — is not even slightly unusual. Every dog sniffs. Drug dogs are trained to sniff. When a trained drug dog sniffs but does not alert in any way, there is not the slightest bit of evidence that the dog smelled the odor of a drug.

While courts typically rely on a training certification to prove a dog’s reliability, Utah’s certification apparently follows no recognizable standard. Without double-blind (or even single-blind) training, it is impossible to know whether the dog has been taught to react to the odor of drugs rather than visual cues.

The court understood that Allen and Moore were putting on a show by bringing Tank to the scene. They intended to search the car and were looking for an excuse to do it. Moore’s testimony that he interpreted Tank as alerting to the odor of drugs was, in the court’s view, not credible. Accordingly, the court suppressed evidence obtained in the search.

The court’s holding protects the Fourth Amendment rights of individuals to be free from unlawful searches: “Allowing a K9’s alert to support a finding of probable cause to search a vehicle on the unverifiable, subjective interpretation of the handler would seriously erode long protected Constitutional rights.” The Fourth Amendment “becomes meaningless if the dog’s communication of its detection of drugs is so subjective that it is nothing more certain than a reflection of the handler’s hunch that drugs must be there.”

Lessons Learned

Allen and Moore tried to circumvent the Fourth Amendment. Jordan’s defense lawyer wisely engaged the services of an expert witness to demonstrate that the officers had no probable cause to search Jordan’s car. Whenever humans claim they know exactly what a dog intends to communicate, an expert witness can provide invaluable testimony to assure that the human witnesses do not get away with implausible claims about their ability to read a dog’s mind.

 

Tennessee Prohibits Reliance on an Involuntary Expert to Establish Standard of Care

Brenda Pringle had an operation to remove pelvic cysts. Her recovery did not go well. Additional surgeries were required before she could return to work.

Pringle made a complaint against her surgeon, Dr. Christy South, to the Kentucky Board of Medical Licensure. The Board contracted with Dr. Elvis Donaldson to review the complaint. He apparently made a determination that Dr. South did not follow an appropriate standard of care.

Pringle then sued Dr. South for medical malpractice. Pringle disclosed her expert witnesses. All but one were treating physicians. None of the treating physicians offered an opinion that Dr. South breached the applicable standard of care.

Pringle identified Dr. Donaldson as an expert witness but did not retain him to testify. Dr. South subpoenaed Dr. Donaldson to testify in a discovery deposition. The Board moved to quash the subpoena, arguing that its contracted doctors should not be required to repeat the opinions they give to the Board in unrelated court proceedings.

The trial court granted the motion to quash long after the deadline for disclosing experts had passed. Dr. South then moved for summary judgment, arguing that in the absence of expert testimony, Pringle could not prove that Dr. South breached the standard of care.

The trial court agreed and granted judgment in Dr. South’s favor. Pringle appealed.

Appellate Analysis

The Kentucky Court of Appeals affirmed the trial court’s decision. Kentucky follows the general rule that the standard of care in all but the most obvious cases of medical malpractice must be proved by the testimony of an expert. Summary judgment was therefore appropriate unless the trial court erred by refusing to allow Dr. Donaldson’s compelled testimony.

Pringle argued that she was entitled to present Dr. Donaldson’s investigation, findings, and conclusions as memorialized in a report that Dr. Donaldson prepared for the Board. While acknowledging that no Tennessee precedent existed, the Court of Appeals relied on an unpublished decision for the proposition that relevant fact testimony can be compelled by issuing a subpoena, but relevant expert testimony “is not the property of litigants.”

In some contexts, that rule has obvious merit. Expert witnesses should be entitled to pick and choose the persons for whom they work. The leading expert in a field might be deluged with subpoenas to compel testimony if he or she could be forced to give expert opinions.

In addition, unlike fact witnesses, expert witnesses are entitled to be paid for their time. Retained experts can bill for their time and have a contractual right to be paid. An expert who is forced to provide an opinion without being retained might end up testifying for free.

This issue is most likely to arise when the plaintiff visits a physician who opines that the treating physician committed malpractice but is unwilling to say so in court. That happens regularly, given the reluctance of physicians to testify against each other. Forcing that physician to testify as an involuntary expert is not something that most courts are prepared to do.

Accordingly, the appellate court created a blanket rule that a party to a medical malpractice action cannot compel involuntary expert evidence from a physician. Parties must instead retain their own expert witnesses.

Lessons Learned

One might think that a report prepared by a medical expert retained by a state agency for a public purpose would be admissible evidence if it either identified malpractice or exonerated the investigated doctor. Unlike retained experts, who are often disparaged as “hired guns,” Dr. Donaldson was a neutral expert. He formed his opinions at the request of the public, not for an interested party. His opinions might therefore be seen as public property, unlike the opinions of privately retained experts that are, in the view of the court, the property of the party who retains them.

Once an expert’s report prepared for a state agency becomes a public record, there are good reasons to believe a party should be entitled to compel the expert’s testimony. The physician has already chosen to express an expert opinion and has, in fact, done so. The expert has been paid for that work. While the expert would certainly be entitled to additional compensation for testifying in a deposition or in court, the policy considerations that weigh against forcing an involuntary expert to testify have less merit when applied to experts who were voluntarily retained to provide opinions to a public agency. Depriving litigants of valuable evidence that is already a matter of public record does not seem to promote justice.

Notwithstanding the unique circumstances presented here, lawyers should be guided by the court’s blanket rule. It is unwise to rely on the expectation that an expert witness can be compelled to testify. The better practice is to retain an expert.

Whether the retained expert would be entitled to rely on the report written by the Board’s expert to inform the retained expert’s opinion is a separate question. The answer in most states will likely depend on whether physicians routinely rely on the opinions of other physicians when they form their own expert opinions.

 

Admission of Cadaver Dog Handler Testimony Affirmed Over Daubert Challenge

Apart from providing faithful companionship, dogs have a variety of useful skills that they gladly contribute to humans. But are dogs reliable expert witnesses? They might possess relevant expert knowledge, but they are handicapped by an inability to express their thoughts in human language. And since no human can read a dog’s mind, the human filter through which a dog’s knowledge must pass is inherently suspect.

The Florida Court of Appeals recently considered a murder conviction that was based almost entirely on dog handlers’ opinions that their cadaver dogs alerted on the defendant’s vehicle. Although no body was ever found, the court affirmed the admission of the expert testimony and thus affirmed the conviction.

Facts of the Case

Cid and Vilet Torrez were married. They separated in September 2011 after Torrez abused Vilet. Vilet remained in the home with their children while Cid moved to an apartment.

The home was in a gated neighborhood. Surveillance footage showed Vilet driving her car through the gate in the early morning. She had returned home after spending the night with a co-worker. The children were with Torrez.

Vilet was not seen again. Days later, Torrez called 911 to report that he had not heard from Vilet and believed her to be missing.

Police officers found Vilet’s car parked on the street. A search of the home found small blood stains at various locations. The police found no evidence that Vilet traveled or made telephone calls after the morning when she was last seen.

Suspecting that a homicide had occurred, the police summoned a cadaver dog named Jewel to the scene, along with her handler, Officer Gregory Strickland. Jewel alerted to several spots on the lawn near the front door. Strickland interpreted the alerts to mean that Jewel detected the odor of a dead body in those locations.

Five months later, having made no progress in determining Vilet’s location, the police did a “line-up” of cars in their parking lot. Torrez’ vehicle was one of the cars. Jewel sniffed each car and, according to Strickland, alerted on the trunk and back seat of Torrez’ car. Strickland interpreted the alert to mean that Jewel detected the scent of a dead body.

The local police then asked for the assistance of Palm Beach Sheriff’s Detective Juliana Martinez and her dog Piper, who was also trained as a cadaver dog. Martinez had Piper sniff Torrez’ vehicle and interpreted Piper’s response as an alert to the odor of human remains in the trunk and back seat.

Vilet’s body has never been found. On the strength of human interpretations of “alerts” given by two dogs, Florida charged Torrez with murder. A jury convicted him. Torrez appealed, challenging the expert testimony given by the dogs’ handlers.

Challenge to Dog Handling Expert

Most people are familiar with the story of the horse that could do arithmetic. When asked “What is two plus three?” the horse would stamp its hoof five times. It was eventually determined that the horse could only perform the trick when its owner was present. The horse was reacting to visual cues from its owner, not to any understanding of numbers.

During the car “line-up,” Strickland claims not to have known which vehicle belonged to Torrez. Whether Jewel was able to see other officers in the parking lot who did know which vehicle belonged to Torrez is unclear. Perhaps both dogs alerted to Torrez’ car because they were responding to visual cues rather than scents.

Prior to trial, Torrez challenged the admissibility of the expert testimony that Strickland and Martinez proposed to give. Strickland testified that Jewel had hundreds of hours of training in the detection of human remains. She was certified as a cadaver dog by a police association that certifies police dogs. Strickland testified that he was only aware of one instance in which Jewel alerted in the absence of human remains. On that occasion, she apparently detected the odor of a bucket of shrimp.

Martinez and Piper’s trainer testified about the training and certifications that Piper received. They agreed that Piper is a reliable cadaver dog. Martinez explained that when Piper isolates the source of the odor of human remains, she “snaps her head, sometimes closes her mouth, sniffs certain areas, slows down and then sits as a final response.”

Kenneth Furton, a professor of chemistry, testified about the scent molecules that cadaver dogs are trained to detect. He contended that scent molecules can linger for “a very long period,” particularly in an enclosed area. He opined that Piper and Jewel, in combination with their handlers, were reliable teams because of their certifications.

Furton did not believe that the absence of a body in Torrez’ back seat or trunk invalidated the alerts. He speculated that the dogs may have alerted to bodily fluids that leaked into materials and were undetectable by other means, or they may have alerted to residual odors that remained after the body was removed. Furton admitted that dogs, like humans, can make mistakes.

The trial court applied Florida’s newly established Daubert standard. It determined that the dogs were trained and accurate in detecting human remains and that their handlers were qualified to interpret the dogs’ alerts. Vilet’s disappearance was circumstantial evidence of her death that, in the court’s view, corroborated the handlers’ conclusions that her body had been transported in Torres’ car.

Appellate Analysis

The Florida Court of Appeals noted that the United States Supreme Court has approved determinations of probable cause based on alerts given by properly trained drug dogs. But probable cause to search for evidence is not itself evidence. The question on appeal is whether a handler’s expert interpretation of a dog’s alerts is sufficient to satisfy the Daubert standard for the admissibility of expert evidence in a trial.

The court nevertheless concluded that the opinions of the cadaver dogs’ handlers satisfied the Daubert standard. The court held that the reliability of dog sniff evidence can be based on the handler’s experience with the dog. The court must be satisfied that the handler is “qualified to work with the dog and to interpret its responses.” But since no handler can read a dog’s mind, it is difficult to imagine any circumstances that qualify a handler to “interpret” a dog’s actions reliably.

The dog must also be “proved successful and reliable” and be “sufficiently trained.” There must also be evidence that corroborates the dog’s opinion as interpreted by its trainer. Finding an actual body would presumably be corroborative, but “corroborative evidence need not be evidence which, standing alone, links the defendant to the crime.” That holding is unfortunate for Torrez, given that there was precious little evidence linking him to the crime beyond the handlers’ opinions that their dogs were smelling evidence that a body had been in Torrez’ car and trunk almost five months earlier.

Remarkably, the appellate court held that “courts need not consider the science underlying testimony relating to cadaver dog evidence.” In civil cases, Daubert hearings are almost entirely devoted to the underlying science that supports an expert’s opinion. Why should a lesser standard be applied in a criminal case, where the evidence may lead to a deprivation of liberty?

The court held that it is common knowledge that dogs can distinguish different kinds of odors. But it isn’t common knowledge that dogs can distinguish the scent of a decaying body several months after the body could have been present in the location that the dog sniffed.

This case cries out for scientific evidence, but the court pointed to no peer-reviewed studies suggesting that scent molecules can be detected by a cadaver dog almost five months after the cadaver was no longer present. Nor did the court point to peer-reviewed studies suggesting that the scent molecules associated with cadavers can be reliably distinguished from the scent molecules associated with shrimp or other substances.

Finally, the court held that challenges “to an expert’s measurements, methods and determinations do not render inadmissible an expert opinion based on them but goes to the weight of the evidence, raising factual questions to be determined by the jury.” The court cited only pre-Daubert criminal cases for that proposition. After Daubert, expert opinions have been routinely excluded in civil cases because an expert’s methods were unreasonable and because an expert’s determinations were not founded on the application of a reasonable methodology to adequate facts.

The appellate court said that it was applying Florida’s new Daubert standard to dog sniff evidence, but its opinion rests entirely on pre-Daubert understandings of whether expert evidence is admissible. The unfortunate result for Torrez is that his conviction was affirmed based largely on the opinions of police officers about what their dogs might have smelled in his car.

 

Florida Computer Expert Arrested for Lying About Credentials Under Oath

Florida Supreme Court Throws Out Circumstantial Evidence Standard

The Florida Supreme Court has upheld the conviction of a man for the murder of his estranged wife. In doing so, the court threw out a legal standard about circumstantial evidence in criminal appeals.

Murder of Nicole Elise Bush

In 2011, deputies from the Jacksonville Sheriff’s office went to the home of 35-year-old Nicole Elise Bush for a welfare check. The deputies found Nicole, shot six times, stabbed, and beaten with an aluminum bat. She died later at a Jacksonville hospital. Her children were at school at the time of the attack.

Following an investigation, the Sheriff’s Office obtained a warrant for the arrest of Nicole’s estranged husband, Sean Alonzo Bush. The gun and the weapon that were used to attack Nicole were never found. However, investigators developed circumstantial evidence against Bush, including a life insurance policy that named him as a beneficiary. Sean Alonzo Bush with charged with the murder of his estranged wife.

Trial of Sean Alonzo Bush

Following a jury trial, Sean Alonzo Bush was convicted of first degree murder, felony murder, and burglary of a dwelling with an assault and while armed with a firearm. The jury unanimously recommended a death sentence. Circuit Court Judge Howard Maltz followed the jury’s recommendation and sentenced Bush to death.

Appeal to the Florida Supreme Court

Bush appealed his conviction to the Florida Supreme Court. The court upheld Bush’s conviction. The court pointed to the fact that Bush was in financial trouble, he was aware that he was the beneficiary of Nicole’s $815,240 life insurance policy, and that he submitted a claim for the policy proceeds a few weeks after the murder. The court wrote, “Because a rational trier of fact could, and did, find from this evidence that Bush committed the first-degree murder of Nicole under both premeditated and felony murder theories, Bush is not entitled to relief.”

The court also took the opportunity to abandon the “special appellate standard” for circumstantial evidence that had previously been the law in Florida.

The court explained that Florida had previously used a different standard to evaluate wholly circumstantial evidence on appeal than it used in a case with some direct evidence: “Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” The court noted that this standard was confusing and also in conflict with the standard that has been adopted by all federal courts and the majority of state courts after the United States Supreme Court had called the standard into question in 1954.

The court stated that, moving forward, Florida appellate courts should use a standard like the one used in cases with some direct evidence, “whether the state presented competent, substantial evidence to support the verdict.”

The per curiam opinion was joined by Chief Justice Canady, and Justices Polston, Lawson, and Muniz. Justice Labarga concurred in part and descended in part, writing separately to note disagreement with the majority’s decision to abandon its circumstantial evidence standard of review.

 

Fake

Expert’s Demonstrative Exhibit Held Inadmissible Because It Was Based on Speculation Rather Than Science

Douglas Shaneyfelt was driving at night on a state highway in Ohio. Robert Byram was backing his tractor-trailer into his driveway. Byram’s vehicle was blocking both lanes of traffic when Shaneyfelt began braking. His pickup truck slammed into the side of Byram’s vehicle.

Byram contended that he was not negligent because he checked the road for oncoming traffic and saw none before he began to back into his driveway. Byram broke no law. Whether it is prudent for a trucker to back into a driveway from a highway at night was a question for the jury. The jury found in favor of Byram.

Shaneyfelt moved for a new trial, contending that he was prejudiced by the computer-simulated images that Byram’s expert witness used as demonstrative evidence. The trial court agreed and granted the motion for a new trial. The Ohio Court of Appeals held that the exhibit was inadmissible but reversed the order for a new trial after finding that the exhibit was not prejudicial.

Demonstrative Evidence

Byram called Ashley Dunn as an accident reconstruction expert. Dunn prepared three computer-simulated images to show how Byram’s truck would have appeared to Shaneyfelt at a distance of 600 feet, 400 feet, and 250 feet.

Shaneyfelt complained that the images were not produced in discovery but were only disclosed four days before trial. The trial court agreed with Shaneyfelt that the untimely production of the images violated the court’s discovery order.

The trial court nevertheless concluded that under Ohio law, discovery violations should not result in the exclusion of evidence unless the violation caused material prejudice to the opposing party. To determine whether the violation was prejudicial, the court allowed the expert to testify, subject to cross-examination.

After the trial, the court determined that the demonstrative exhibits were inadmissible because there was no evidence that they accurately represented Shaneyfelt’s view of the accident. Specifically, Dunn did not measure the brightness of the lights and reflectors on Byram’s tractor-trailer or the brightness of Shaneyfelt’s headlights. Without making that measurement, Dunn could only hazard a guess about how the scene might have appeared to Shaneyfelt.

The court reasoned that Dunn’s demonstrative evidence was “speculative and void of case-specific facts.” Because Dunn’s testimony misrepresented the exhibits as depicting an accurate view of the scene when he could not have known whether the exhibits were accurate, the testimony and related exhibits were prejudicial.

The trial court noted that Byram took a chance by producing the exhibits after the discovery deadline. The court granted a new trial and barred Byram from calling Dunn, or anyone in Dunn’s firm, as an expert witness in further proceedings. Byram appealed.

Appellate Analysis

In the absence of any measurement of headlight brightness, it was impossible to make a demonstrative exhibit that accurately displayed the scene as Shaneyfelt would have seen it. While Dunn relied on industry standards and studies to determine how bright the scene might have been, it is common knowledge that headlights do not always meet industry standards.

Bulbs tend to produce less light as they get older. Perhaps more importantly, dirty or cloudy headlight coverings reduce the brightness of headlights. No assumptions about industry standards can take the place of actual facts when preparing demonstrative evidence.

The court of appeals agreed with Shaneyfelt that the pdf exhibit he received four days before trial differed from the 40” by 30” exhibit that was displayed to the jury. The brightness of the lights in the trial exhibit had been enhanced.

Byram contended that the difference was caused by brightness settings on the printer used to print the pdf. However, the trial exhibit had a car dashboard superimposed over the simulated view that was missing from the pdf. The trial exhibit was obviously not the same exhibit disclosed to Shaneyfelt.

Regardless of the belated pretrial disclosure, the court of appeals agreed that the trial exhibit was inadmissible. Because Dunn did not measure the brightness of the lights shown on the exhibit, the representation of Shaneyfelt’s alleged view was based on speculation, not fact.

The appellate court nevertheless concluded that the improper exhibit was not prejudicial. The court found no evidence in the record that Byram’s decision to back a tractor-trailer into a driveway at night was negligent. The court noted that Shaneyfelt’s own expert agreed that Shaneyfelt’s headlines should have illuminated the truck when Shaneyfelt was 288 feet from the truck. The expert calculated stopping distances and concluded that, if Shaneyfelt had slammed on his brakes at the moment the truck became visible, he could have narrowly avoided the collision.

Lessons Learned

If the trial judge had excluded the exhibit before the jury saw it, there would be no need to guess about the verdict the jury might have returned if it had not been exposed to inadmissible evidence. That is what the judge should have done, although it is not clear that Shaneyfelt objected to the expert’s methodology (as opposed to the belated disclosure) prior to trial.

Demonstrative evidence can be a persuasive tool at trial. Images embed themselves in the minds of jurors more effectively than words. Experts may therefore provide a valuable service for lawyers when they prepare demonstrative exhibits.

But exhibits are evidence, and when they are prepared by experts, they are subject to the same rules of admissibility as other expert evidence. Demonstrative exhibits should have a basis in fact and should reflect the expert’s application of a reasonable methodology.

An exhibit that recreates an accident may be persuasive when an accident reconstruction engineer relies on physics and math to recreate an accident scene. An exhibit that is based on a guess as to how the accident scene might have appeared has no value at all. To assure that demonstrative exhibits are admissible, experts should use the same care when preparing exhibits that they use when preparing reports and formulating opinions.

 

Statue of justice

Conviction Reversed Because Expert Witness Vouched for Credibility of Accuser

Appellate courts continue to reverse convictions when prosecutors use expert witnesses to vouch for the credibility of alleged victims. Credibility is for the jury to decide and no reasonable methodology allows an expert to determine whether another witness is telling the truth.

Richard Hopkins was charged in Michigan with multiple counts of having sexual contact with two minors. Hopkins rented property to the alleged victims’ mother, who agreed that Hopkins should babysit her daughters while she was working.

In addition to describing incidents of sexual touching, the alleged victims testified that they watched a pornographic movie at Hopkins’ residence and saw pictures of intimate body parts while scrolling through photos that were stored on his computer. One of the girls said she told their mother about the sexual contact, but the mother testified that she first heard about it from social services.

The testimony of the children, if believed, would have been sufficient to support the prosecution’s case. The prosecution nevertheless tried to bolster its case by using two expert witnesses for the improper purpose of vouching for the child witnesses. The Michigan Court of Appeals reversed Hopkins’ convictions because the prosecution’s strategy deprived him of a fair trial.

Vouching Testimony Regarding Credibility of Alleged Victims

Cynthia Bridgman testified for the prosecution as “an expert in the field of child abuse and therapy.” Bridgman is a therapist who provided therapy to the two alleged victims.

Bridgman claimed that “children’s statements are often labeled as inconsistent or not credible when, actually, they’re very credible.” She then testified that “research on credibility shows that kids rarely make up abuse allegations.”

Hopkins’ lawyer objected that Bridgman was vouching for the credibility of the accusers. The trial court permitted the testimony because it was based on studies regarding the truthfulness of children generally and not the truthfulness of the alleged victims.

The appellate court concluded that the trial court erred. The prosecution’s evidence essentially told the jury that children rarely lie about sexual abuse and that the jury should therefore believe the stories told by the alleged victims.

Research shows that adults have about a 50-50 chance of determining whether a child is lying. Studies that purport to measure how often children fabricate stories of sexual assault are inherently suspect because researchers have no way of knowing whether the stories are fabricated. The court, however, did not address the expert’s reliance on what might be “junk science” in forming her opinions, since the opinions amounted to inadmissible vouching for the credibility of the alleged victims.

Vouching Testimony Regarding Interview Techniques

Brooke Rospierski testified as an expert in forensic interviewing and disclosure of sexual abuse in children. Psychologists are sometimes called as defense experts to explain how improper interviewing techniques can induce children to say what they think the interviewer wants to hear, whether or not it is true.

In this case, however, the expert was called by the prosecution. Rospierski did not confine herself to testifying about interviewing techniques but testified that she saw no “red flags” that would cause her to believe that “either child was coached or pressured to fabricate any allegations.”

In some states, that kind of testimony would be admissible to rebut a defense expert’s testimony that the statements made by children could have been produced by improper interview techniques. In this case, since the prosecution called Rospierski before the defense presented its case, her testimony had no purpose other than to bolster the credibility of the accusers.

The court concluded that Michigan law precludes an expert from testifying that a child has not been coached by interviewers if that testimony sends a signal that the child was telling the truth. The line between commenting on interview techniques and vouching for the veracity of a child’s statement is a fine one, but the Court of Appeals decided that the expert’s testimony crossed that line.

Montana

Expert Testimony About the Value of a Statistical Life Rejected by Federal Court in Montana

The United States District Court for the District of Montana recently confronted an ongoing controversy in the measurement of wrongful death compensation. While different jurisdictions apply different standards for the compensation of wrongful death plaintiffs, a recurring question is whether damages should include the value of a statistical life. The district court decided that expert testimony regarding the damages was inadmissible.

Facts of the Case

Johnny Gibson was experiencing chest pain, heartburn, pressure between his shoulder blades, and fatigue. He was evaluated by Kimberlee Decker, a nurse practitioner at the federally funded Central Montana Community Health Center (“CMCHC”).

Decker referred Gibson for an ultrasound of his gall bladder. She did not order a heart workup, an EKG, or a stress test. Nor do the medical records suggest that she considered a heart problem as the cause of Gibson’s symptoms.

About a week later, Gibson had a heart attack. He died in surgery. The federal government, which employed Gibson, conceded her negligent deviation from the appropriate standard of care for a patient presenting with Gibson’s symptoms.

Gibson’s wife, children, and estate brought a wrongful death claim under federal law based on medical malpractice. Liability was not contested. The issues at trial involved the damages that the government should pay.

Damages Experts

Gibson’s wife testified that Gibson earned between $10,000 and $25,000 per year as a ranch worker and painter. He was often paid in cash or in-kind services (such as free lodging and hunting privileges) that was not reflected on tax returns.

The plaintiffs called Dr. Ann Adair, an Associate Professor of Economics, as an expert witness regarding damages. Gibson was about 63 years old when he died. Adair testified that Gibson would have worked another 4 years. Based on average earnings of Montana farm workers, she calculated his lost earning capacity to be about $150,000.

Sean Black, a CPA, testified as an expert for the government. He calculated lost earning capacity of about $17,000 based on Gibson’s reported earnings prior to his death.

The court accepted the testimony that Gibson’s earnings included unreported income, making Black’s calculation inaccurate. After finding Adair’s methodology to be reliable, the court accepted Adair’s estimate as the most reasonable approximation of lost earning capacity. The court also accepted Adair’s undisputed estimate that the lost value of household services that Gibson provided to his family was about $144,000.

Based on the testimony of Gibson’s cardiac surgeon and family members, the court found that Gibson experienced pain and suffering before his surgery. The court concluded that Gibson would have needed similar surgery and would have experienced similar symptoms even in the absence of medical malpractice. The court awarded only $10,000 for pain and suffering attributable to the failure to diagnose Gibson’s heart condition.

Value of a Statistical Life

The primary disagreement among the experts was whether the plaintiffs were entitled to compensation for the value of a statistical life, in addition to lost earning capacity. The value of a statistical life is not the value of a life, which is incalculable, but the value of reducing risks to life.

Adair testified that the value of a statistical life can be measured under either the revealed preference or stated preference theory. The revealed preference theory measures the extra compensation that workers require to take substantially more dangerous jobs or the amount people are willing to pay for insurance, safety gear, and safer products. The stated preference theory imputes a value from studies that ask individuals what they would do to avoid certain risks.

Adair calculated the value of a statistical life according to guidance provided by the United States Department of Transportation and by the Environmental Protection Agency. The Transportation Department methodology resulted in a value of $9.6 million while the EPA methodology resulted in a value of $7.4 million without adjusting for inflation.

The district court noted that many federal courts “have expressed skepticism” about basing wrongful death damages on the value of a statistical life. Government agencies value a statistical life for the purpose of making cost-benefit decisions about safety measures (such as pollution reduction technology) that reduce the risk of death. The court concluded that the government’s decision-making tools do not provide a reasonable or reliable measurement of damages for a wrongful death. Making a Daubert ruling, the court accordingly disregarded Dr. Adair’s testimony regarding the value of a statistical life.

The court did not explain why Dr. Adair’s methodology was unreliable. It seemed to decide as a policy matter that the value of a statistical life cannot be awarded as damages in a wrongful death case. Curiously, it did so without considering whether controlling law — in this case, Montana state law — would permit an award of damages for the value of a statistical life. Other federal courts might reach a different decision about the reasonableness of an expert’s opinion concerning the value of a statistical life, depending on state court precedent regarding wrongful death damages.

 

Ohio wooden Mallet

Expert Opinions in Ohio Prosecutions Should Be Excluded If Not Disclosed in Report

Ronald Boasten was convicted of murdering his ex-wife, Brandi. They married after Brandi became pregnant and soon divorced after she had an affair. The couple reconciled and had another child together but did not remarry.

Several years after they reconciled, Ronald suspected that Brandi was having another affair. After Ronald placed spyware on Brandi’s mobile phone, Brandi moved out of their home. She returned every day, however, to spend time with their children.

Ronald continued to monitor Brandi’s texts with the spyware he installed on her phone. After reading a series of suggestive texts, Ronald borrowed a gun from a friend. Ronald said he wanted to take care of a problem but did not mention Brandi.

The day after Ronald borrowed the gun, a hunter found Brandi’s SUV parked in a field with its engine running. The police discovered Brandi’s body in the SUV’s cargo area. A forensic pathologist determined that she had been strangled.

None of Ronald’s DNA was found on the body or in the SUV. A hair from Brandi’s head was found on a buckle on one of Ronald’s gloves. However, since Ronald and Brandi had been together for years, the hair was far from conclusive evidence of Ronald’s guilt.

Autopsy Report

A forensic pathologist autopsied Brandi’s body. She determined a time of death based on stomach contents. While the pathologist prepared a report that described the autopsy and offered an opinion as to the cause of death, the autopsy report included no opinion regarding the time of death.

The pathologist placed the buckle on Ronald’s glove against an abrasion on Brandi’s face and determined that the abrasion was “consistent with” the buckle and Velcro on Ronald’s glove. The autopsy report said nothing about the purported “consistency” between the glove buckle and the mark on Brandi’s face.

The pathologist mentioned her opinion about the glove buckle during a meeting with Brandi’s lawyer 19 days before trial. During the meeting, she also offered an opinion about the time of death. Brandi’s lawyer told the prosecutor that the autopsy report should be supplemented with this undisclosed information. The prosecutor declined to do so.

Failure to Disclose Expert Opinion Prior to Trial

Rule 16(K) of the Ohio Rules of Criminal Procedure requires an expert witness for either side in a criminal prosecution to “prepare a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion.” The report must be disclosed no later than 21 days before trial. Failure to make the required disclosure “shall preclude the expert’s testimony at trial.”

The prosecution clearly violated discovery rules by failing to disclose two important expert opinions in a written report 21 days before the trial: time of death and alleged consistency between an abrasion and the buckle on Ronald’s glove. Ronald’s lawyer moved to exclude those opinions because that is the remedy for nondisclosure that Rule 16(K) requires.

The trial judge nevertheless admitted the opinions because defense counsel had the autopsy report that omitted those opinions a year before the trial and “chose” to meet with the pathologist 19 days before trial. Neither of those facts speak to the prosecution’s failure to follow the rule.

The court of appeals affirmed that ruling because courts are given “broad discretion” to make evidentiary rulings. However, courts have no discretion to make legally incorrect rulings. The Ohio Supreme Court therefore accepted review to determine whether a failure to disclose expert opinions 21 days before trial should result in exclusion of those opinions.

Appellate Analysis

Rule 16(K) allows the court to modify the 21-day deadline for good cause if the modification is not prejudicial. If the prosecution had asked the trial court in advance of trial to permit the late filing of a supplemental report, it might have cured the problem. Instead, prosecutors arrogantly refused to produce a supplemental report and did not ask for the deadline to be modified. Why prosecutors should be rewarded for flouting discovery rules is unclear.

The state supreme court noted a split in lower court decisions about whether Rule 16(K) means what it says. The text of the rule is written in absolute terms. The rule gives courts discretion to amend the disclosure deadline for good cause, but it grants no discretion to admit exert opinions that have never been disclosed in a written report. The supreme court concluded that “if a court rule is unambiguous, it is to be applied as written.”

Lessons Learned

The trial court erred by admitting the expert opinions that were not included in the written autopsy report. Having made the correct decision, the supreme court then upheld the conviction, ruling that the error was harmless because the defense lawyer knew about the expert’s opinions before trial and was able to cross-examine the expert about them.

The holding essentially nullifies Rule 16(K). The harmless error analysis does not depend on whether the defense cross-examined the expert, but on whether the trial outcome might have been different if the improperly admitted evidence had been excluded. Given the circumstantial nature of the evidence linking Ronald to the crime, it is difficult to conclude that evidence purporting to match Ronald’s glove to the wound on Brandi’s face did not influence the verdict.

Perhaps the defense should have anticipated that the trial judge would ignore Rule 16(K) and should have hired an expert to explain why the mark on Brandi’s face could have been caused by any number of objects. For the same reason that bite mark evidence is unreliable, an eyeballed opinion that Ronald’s glove buckle was consistent with the abrasion is not based on sound science. The lesson to learn is that defense lawyers should always be prepared to call an expert to challenge a prosecution expert, particularly when the prosecution is relying on doubtful expert opinions.