Category Archives: Expert Opinions

Election Experts Testify in Virginia Voter ID Case

District Court Erred by Dismissing Expert Opinions as Conjectural

Camille Sedar parked her car on the ground level of a parking garage at Reston Town Center, where she planned to have lunch with friends. Reston Town Center is a mixed-use development in Reston, Virginia.

Patrons who park in the garage must climb up a short flight of stairs before crossing a brick-paved landing and climbing down another short flight of stairs that leads to a sidewalk. As Sedar was crossing the landing, she tripped and fell.

Sedar has no memory of the fall. Friends who were following her did not see her trip, but they testified that her direction of travel took her over some loose bricks just before reaching the top of the stairs. Her friends took pictures and videos of the loose bricks.

Sedar landed face down on the sidewalk. She suffered a concussion, lost consciousness, fractured her elbow, and had cuts on her face and lip. An ambulance transported her to an emergency room for treatment.

After she was discharged from the hospital, Sedar examined the flat-soled shoes she had been wearing. She saw a scuff mark on the toe that was not present before she fell. She concluded that the scuff mark was caused by contact with the loose bricks.

Expert Evidence

Sedar hired a structural engineer to reconstruct the accident. The expert formed an opinion based on witness testimony, photographs of the scene, and the scuff mark on Sedar’s shoe.

The expert opined that deteriorating caulk on the landing caused bricks to become loose and unstable. He concluded that the landing was “structurally unsound and a hazard that violated applicable building and maintenance codes.” In his opinion, the hazardous condition was the most likely cause of Sedar’s fall down the stairway.

Summary Judgment

Sedar sued the property owner and the property manager. They removed the case to federal court, a forum that is often less friendly to plaintiffs than state court.

The defendants moved for summary judgment. They argued that no evidence proved that the property was in an unsafe condition. They argued in the alternative that if the property was unsafe, no evidence proved that they knew or should have known of the unsafe condition. Finally, they argued that Sedar could not prove that the allegedly unsafe condition caused her injury, given her loss of memory.

Remarkably, the district court judge granted summary judgment against Sedar. The court held that Sedar failed to prove that the property was dangerous or that the property owner or manager had notice of the unsafe condition. Notwithstanding the expert evidence, the court found that Sedar could only “speculate” about the cause of her fall.

Sedar appealed. The Court of Appeals for the Fourth Circuit sensibly reversed the district court’s judgment.

Dangerous Condition and Notice

The appellate court made short work of the first two issues. Whether the property was dangerous was a jury issue. Witnesses testified that the bricks were loose. Photographs showed that the loose bricks created a lip that constituted a tripping hazard. The expert engineer opined that the property condition shown in the photographs was dangerous. Since the evidence was sufficient to allow a jury to find that the condition was dangerous, the judge should not have taken that issue from the jury.

To prove that the property owner knew of the hazard, Sedar relied on a security guard’s testimony that he had “almost tripped on the stairwell a thousand times” because of “the way that it transitions from the garage to the stairs.” The appellate court held that the testimony referred to the layout of the brick landing and not to loose bricks. The court therefore agreed with the district court that there was no evidence that the property owner knew of the hazardous condition that caused Sedar’s fall.

On the other hand, the appellate court noted that Sedar’s expert testified that the deteriorating caulk joint adjacent to the loose brick would have been visible for some time. In the expert’s opinion, the condition that caused the brick to loosen did not happen overnight but resulted from a failure to maintain the property. In the expert’s view, the property owner should have spotted the hazardous condition during routine inspection and maintenance of its property.

The district court characterized the expert testimony as “conclusory allegations.” In fact, the expert based his opinions on specific facts drawn from photographs of the property. He formed an opinion by applying his knowledge of property deterioration to those facts. The expert testimony would therefore allow a jury to conclude that Reston Town Center had constructive notice of the property defect. The district court erred by concluding otherwise.


Sedar was required to prove that the defective property condition caused her injury. Because she had no memory of tripping on the loose brick, and because no witness observed the reason for her fall, Reston Town Center argued that she could not prove causation.

While Sedar had no direct evidence of causation, the appellate court was satisfied that she presented circumstantial evidence. Witnesses testified that her path of travel took her across the defective portion of the landing. Photographic evidence of bloodstains were consistent with her following that path. In addition, the scuff at the tip of her shoe was consistent with her shoe getting caught in the lip created by the loose brick.

Sedar’s expert confirmed that a loose brick was the most likely cause of her fall, given the witness statements and contemporaneous photographs showing the property condition. The district court again disregarded that evidence as “conjectural.” The appellate court noted that inferences drawn from facts are not conjectural when the inferences are reasonable.

Reston Town Center argued that the circumstantial evidence was inconsistent. The appellate court recognized that juries, not judges, sift through inconsistent evidence to determine the truth. Since evidence, including expert testimony, supported the reasonable inference that Sedar tripped on a loose brick, it was up to the jury to decide whether that was the most likely reason for her fall.


District Court’s Grant of Preliminary Injunction Reversed Because Court Took Expert Opinion Out of Context

An online car-sharing service called Turo allows car owners to rent out their cars to others. The company, based in San Francisco, advertises that its customers can skip the line at car rental services by asking the owner to deliver the car to an airport or hotel.

The City of Los Angeles views Turo as a car rental service. It believes that Turo should pay the same fee that Hertz, Avis, and other car rental companies pay to conduct business at the Los Angeles International Airport (LAX). It asked Turo to enter into an agreement to operate an airport concession, as do off-airport rental companies that arriving passengers typically access through shuttle services.

Unlike traditional car rental businesses, Turo does not have a counter in the airport or a shuttle service that transports arriving passengers to a nearby rental facility. Turo argues that it is not a rental company. It views itself as a technology company that provides an app to connect rental customers to private owners.

Lacking a physical presence at LAX, Turo maintains that it is not subject to the regulations that require rental companies doing business at LAX to enter into a concession agreement. Turo sued the city in federal court seeking a declaration that the city cannot enforce its regulations against Turo.

The city counterclaimed and asked the judge to enter an injunction to prevent Turo from delivering cars to LAX while the lawsuit was pending. Turo responded with expert testimony to establish that its car deliveries were not causing any harm to LAX.

Notwithstanding the expert testimony, the district court judge entered an injunction against Turo. On appeal, the Ninth Circuit faulted the judge for cherry-picking the expert opinions.

Preliminary Injunction Standard

A preliminary injunction is a court order that typically prohibits a party from engaging in specified conduct until a lawsuit has been decided. To obtain a preliminary injunction in federal court, a party must prove that (1) the party seeking the injunction will probably win the lawsuit, (2) the party seeking the injunction will be irreparably damaged if the injunction is not granted, (3) granting the injunction is more fair to the party seeking it than it is unfair to the party opposing it, and (4) the injunction would serve the public interest.

The city asked for an injunction against Turo to prevent Turo from allowing car owners to deliver cars to LAX while the lawsuit was pending. The key issue was whether LAX was being irreparably harmed by the delivery of cars on airport premises.

The judge found that traffic in LAX is congested, a finding that comes as no surprise to anyone who has ever driven into LAX. The judge also found that congestion worsened after the city began a construction project to modernize the airport. That project reduced the number of available traffic lanes within the central terminal area.

To reduce congestion, the city requires arriving passengers at LAX to take a shuttle to a remote area to access ground transportation, including taxis, ride-sharing services, and rental cars. The city argued that Turo deliveries interfere with its efforts to reduce congestion.

Evidence Supporting Injunction

The district court decided that the city would probably prevail in its claim that Turo was trespassing by conducting unauthorized business at LAX. It was also satisfied that Turo’s continuing conduct of business was causing irreparable harm to the city by contributing to traffic congestion.

The court noted the conclusory nature of the city’s assertion that Turo vehicle deliveries aggravate traffic congestion. Turo’s expert witnesses pointed out that, on average, only 127 vehicles are handed off daily at LAX. The court used that expert opinion against Turo, finding that Turo’s “own declarations demonstrate that their operations are in fact specifically impacted traffic flow at LAX — at least to some degree.” Since an award of damages cannot lessen traffic flow, the court concluded that the vehicle deliveries constituted an irreparable harm.

Appellate Analysis

Notably, Turo’s experts provided the only factual foundation for the district court’s finding of irreparable harm. The city’s claim that Turo had an impact on traffic flow amounted to little more than conjecture.

The Court of Appeals for the Ninth Circuit faulted the district court for taking the expert opinions out of context. While the experts pointed out that 127 cars are delivered to LAX daily, the experts compared those deliveries to the volume of daily traffic at LAX. Other transportation companies, including Uber and Lyft, taxis, and limousine services, made more than 30,000 daily pickups and deliveries at LAX. Counting private drivers who pass through LAX, often to drop off or pick up passengers, about 100,000 vehicles pass through the central terminal every day.

Turo’s experts expressed the opinion that Turo’s contribution to traffic congestion was “unnoticeable” in the overall volume of terminal traffic. Those expert opinions were unrefuted. The district court’s cherry-picking of the opinions ignored the opinions as a whole, and those opinions did not establish that LAX would be irreparably harmed if Turo’s operations were not enjoined. The court of appeals therefore reversed the preliminary injunction.


Scales, law books

Legislative Committee Passes Bill to End Bad Convictions from Faulty Expert Testimony

A bill to end wrongful convictions due to faulty expert witness testimony has passed the California Senate Public Safety Committee.

SB 243

California Senate Bill 243 is a criminal justice reform bill that was authored by Senator Scott Wiener, a Democrat from San Francisco, and introduced on January 21, 2021. The bill proposes to add Section 806 to the Evidence Code and amend Section 1473 of the Penal Code. It relates to trial testimony.

Wiener has stated that the bill will “help exonerate innocent people across California, by strengthening the grounds for those wrongfully convicted based on faulty expert testimony to seek ‘post-conviction relief.’”

According to Wiener, currently

courts have discretion over which expert testimony is admissible. Studies show that courts accept most forensic science and expert testimony without sufficient scrutiny, leaving significant room for imprecision and human error. This error leads to the high rate of wrongful convictions. Expert testimony that fails to rely on sound logic should not be considered expert testimony at all.

SB 243 amends the standards for evaluating expert testimony and forensics in courts both in the pre- and post- conviction phases. SB 243 updates the definition of false testimony to include opinions that are based upon “flawed scientific research or outdated technology that is now unreliable or moot, and opinions about which a reasonable scientific dispute has emerged regarding its validity.”

Wiener stated,

Faulty ‘expert’ witness testimony is one of the main reasons innocent people are sent to prison for crimes they did not commit. That is an unacceptable miscarriage of justice. Even one innocent person in prison is too many. SB 243 will ensure that when expert witness testimony is given, the science behind it is reliable. This is an important criminal justice reform measure that will help many innocent people.

Melissa Dague O’Connell, Staff Attorney and Policy Liaison for the Northern California Innocence Project, has said, “The Committee’s vote to move SB 243 forward recognizes how important it is for our criminal courts to stay lockstep with the advancements in and scrutiny of forensics and expert testimony to not just prevent wrongful convictions, but to intervene and restore justice when a wrongful conviction occurs.”

SB 243 is sponsored by the California Innocence Coalition, which includes the Northern California Innocence Project, Loyola Project for the Innocent, and the California Innocence Project. The bill was passed by the Senate Public Safety Committee in a unanimous vote. The voting members were Senators Bradford, Kamlager, Ochoa Bogh, Skinner, and Wiener. The bill will now move on to the Senate Appropriations Committee.

Other Reform Bills

SB 243 is part of a larger group of California Innocence Coalition reform bills. Another bill is SB 923, which was also authored by Senator Wiener. SB 923 ensures that law enforcement must use evidence-based procedures when obtaining eyewitness identification. Before this bill was signed into law in 2018, California had no statewide standards or best practice for eyewitness identification.

Idaho Justice Legal System Concept

Idaho Court Affirms Role as Gatekeeper of Expert Testimony

An Idaho federal district court has affirmed its role as the gatekeeper of expert witness testimony, by granting in part and denying in part a defendant’s motion to exclude expert witness testimony.

The Incident

Maria Elosu and Robert Brace owned a vacation cabin in McCall, Idaho. The cabin was part of a homeowners’ association called Middlefork Ranch, Incorporated (MFR). The cabin had a wrap-around deck with a propane-fired refrigerator on the north side.

On the day before the incident, Brace stained the deck using an oil-based stain. That night, Elosu smoked cigarettes on the deck. The next morning, Brace and Elosu used rags to clean up the excess oil from the deck. An MFR employee changed the propane on the refrigerator and relit the pilot light.

At 4pm, a fire started in or around the cabin when no one was home. A group of contractors discovered the fire and testified that the fire was isolated to the east side of the cabin when they first arrived. One witness testified that there were no flames around the propane-fired refrigerator. The fire destroyed the cabin and its contents.

The Lawsuit

Brace and Elosu sued MFR for negligently starting the fire. They claimed that the employee knew of the hazard when he lit the refrigerator pilot light on the oil-stained deck. Brace and Elosu hired a fire investigator, Michael Koster, and a mechanical engineer, Richard Mumper, to support their claims. Koster inspected the scene ten months after the fire. Mumper conducted lab tests. Both experts opined that the fire started on the north deck when the pilot light from the refrigerator ignited excess oil vapors.

MFR filed a motion to exclude Koster’s testimony as speculative and not supported by evidence. The court agreed. It found that Koster failed to meet the standards set by Daubert and Federal Rule of Evidence 702 because his conclusion was speculation or contrary to or unsupported by evidence. The court noted that Kosted admitted that there was no concrete physical or testimonial evidence to support his theory that the fire started on the north side of the deck.

MFR also filed a motion to exclude Mumper’s opinion because he is not a certified fire investigator. Brace and Elosu hired Mumper to examine the remnants of the appliances, including the propane refrigerator. Mumper conducted lab tests and examined the evidence. He concluded that there was no mechanical malfunction and opined that the pilot light started the fire.

While Mumper was not a certified fire investigator, the court noted that he worked for a firm that specializes in forensic fire investigations, so he might be qualified to offer opinions about the origins of the fire. However, the court ruled that Mumper could not testify about the origins of the fire in this case because his opinions lacked a proper foundation. Here, Mumper’s role was limited to investigating whether any of the appliances malfunctioned. He did not independently look into any other possible causes.

Police Brutality

Expert Witnesses in the Derek Chauvin Trial

Derek Chauvin is on trial in Minnesota for second degree felony murder, third degree murder, and second-degree manslaughter. The charges arise out of George Floyd’s death under circumstances that sparked nationwide protests regarding the use of force against unarmed suspects. Cellphone and bodycam videos establish that Chauvin knelt on Floyd’s neck and that Floyd repeatedly told Chauvin, “I can’t breathe.”

None of the crimes require proof that Chauvin intended to cause Floyd’s death. Second degree murder requires proof that Chauvin caused Floyd’s death, without intending to do so, while Chauvin was committing a felony — in this case, third degree assault. Third degree murder requires proof that Chauvin acted with a depraved state of mind and that his conduct was imminently dangerous to Floyd. That standard is essentially one of reckless behavior coupled with not caring about the harm the behavior might cause. Third degree manslaughter requires proof that Chauvin’s negligent actions caused Floyd’s death.

Each crime requires proof that Chauvin’s actions were a substantial cause of Floyd’s death. Chauvin’s actions need not have been the only cause of death. Chauvin can be held responsible for Floyd’s death if Floyd would not have died in the absence of Chauvin’s conduct. Expert witnesses for the prosecution and Chauvin will debate whether kneeling on Floyd’s neck contributed to his death.

Forensic Pathologists

The official autopsy report by the Hennepin County Medical Examiner’s Office concluded that Floyd died from cardiopulmonary arrest — in simple terms, his heart stopped beating effectively. The autopsy determined that neck compression while restraining Floyd in handcuffs was a cause of the cardiopulmonary arrest. The medical examiner classified the death as a homicide.

Defense experts are likely to focus on other potential causes of death, including Floyd’s hypertensive heart disease and his ingestion of fentanyl and methamphetamine. Experts might opine that excited delirium caused by drug abuse was the cause of Floyd’s death, although “excited delirium syndrome” is controversial and the mechanism of death is not well understood.

Defense experts may also call attention to the absence of evidence of strangulation. A pathologist who isn’t connected to the case has explained that compression of the neck can prevent oxygen from reaching the brain by blocking the airway. Neck compression caused by kneeling would not leave the same ligature marks caused by strangling someone with a rope or wire. That pathologist suggests that Floyd’s underlying health conditions were not the cause of his death. Floyd was, after all, living with those conditions before he encountered Chauvin.

The prosecution has identified five forensic pathologists who may testify for the state. Three of those witnesses are employed by Hennepin County. The defense will apparently rely on the testimony of Dr. David Fowler, a Baltimore pathologist who has testified for both the prosecution and defense in multiple homicide prosecutions.

Defense Experts

In addition to Dr. Fowler, the defense has identified a forensic toxicologist, a forensic psychiatrist, and a doctor of emergency medicine as medical experts. The defense has also identified Barry Brodd as a use of force expert.

Brodd’s resume indicates that Brodd is a former police officer who has served as an expert witness in use of force litigation since 1995. Use of force experts generally testify about the policies and practices that determine when an officer’s use of force is justified, including the degree of force that officers are allowed to use under different circumstances.

Whether Brodd will be allowed to testify that it was reasonable for Chauvin to kneel on Floyd’s neck for nine minutes is unclear. Experts are often allowed to explain whether an officer’s conduct is objectively reasonable. However, some courts have held that only a jury can determine whether an officer’s use of force was reasonable in light of the facts that the jury accepts as true. Those courts view an expert’s opinion about whether the officer’s use of force was justified as intruding on the jury’s function.

Forensic Psychologist Excluded

The prosecution intended to call forensic psychiatrist Dr. Sarah Vinson as an expert witness. The prosecution wanted Dr. Vinson to explain how people in Floyd’s position react to traumatic events. In particular, she would have testified that “Floyd’s behavior as officers attempted to put him into the squad car was consistent with any reasonable person’s anxiety or panic during a traumatic event.” The testimony was meant to foreclose or counter the argument that Floyd was resisting arrest.

Worried that Dr. Vinson’s testimony might open the door to evidence of Floyd’s similar emotional reaction to an arrest in 2019, the court ruled Dr. Vinson’s testimony inadmissible. The court also excluded most evidence regarding Floyd’s behavior during that arrest.


California Law Legal System Concept

California Supreme Court Rejects Expert Testimony in “Meal Break Rounding” Case

In Donohue v. AMN Services, LLC, the California Supreme Court considered how California’s meal break requirement intersects with rules that permit employers to base wages on “rounded” time. As is common in class action wage claims, both the employee and the employer relied on expert opinions to establish their claims and defenses.

Meal Break Rules

California requires employers to give their employees an unpaid 30-minute meal break if an employee works a shift that is longer than 5 hours and another if the employee’s shift lasts longer than 10 hours. The meal break must be provided within the first five hours of an 8-hour shift. A penalty is assessed if the employer violates the meal break rules.

Federal law does not require employers to give meal breaks to employees, but it does define when meal breaks count as “hours worked” for purposes of minimum wage and overtime. A meal break can only be unpaid if the employee is relieved of all job duties. When an employee is required to sit at her desk and answer the phone while eating lunch, the employee is working and must be paid for the meal break.

If the break is relatively short (so that it might be classified as a “snack break” or “bathroom break” rather than a “meal break”), the employee must be paid for the break. A ten-minute break, for example, isn’t a meal break.

Rounding Rules

Rounding rules generally allow employees to calculate wage payments by rounding the hours an employee worked. For example, if a timecard shows that the employee worked eight hours and two minutes, the employer can round the time down to eight hours.

Federal rules require employers to choose reasonable increments for rounding. For example, they can’t round to the nearest half hour. Thus, employers cannot avoid paying overtime when an employee works for eight hours and twelve minutes during each day in a five-day workweek by basing pay on five eight-hour days.

Employers also need to follow a neutral rounding policy rather than a policy that favors the employer. In simple terms, employers can’t round down unless they also round up in an equivalent way. For example, an employer can round to the nearest quarter hour by rounding 8 hours and 6 minutes down to 8 hours, but only if it also rounds 8 hours and 9 minutes up to 8 hours and 15 minutes.

Donohue’s Claim

Donohue worked as a nurse recruiter for AMN. Company policy entitled her to a full 30-minute meal break. Donohue kept track of her work hours by using a program called Team Time on her desktop computer. She “punched in” when she began her shift and “punched out” when she ended her shift. She “punched out” when she began her lunch period and “punched in” when she returned to work.

Team Time automatically rounded time to the nearest ten minutes. If Donohue punched out at 11:02 a.m. and punched in at 11:25 a.m., Team Time recorded her meal break as lasting from 11:00 a.m. to 11:30 a.m. Consequently, her 23-minute meal break would be rounded to a 30-minute break.

In an apparent response to California law, Team Time added a dropdown menu to its program. When Team Time recorded a meal break of less than 30 minutes, it asked the employee if the employee had been given the choice to take a 30-minute break and was “voluntarily” taking less time. If the employee clicked a statement to affirm that the short meal period was voluntary, the program recorded a full 30-minute break, and the employee was denied any overtime that might result from recording the actual work time.

The dropdown menu only appeared if the rounded time showed less than a 30-minute break. In the example above, the employee would not see the dropdown menu because her 23 minutes of work time was rounded to 30 minutes of work time.

Expert Testimony

Donohue argued that rounding time spent in meal periods deprived her of overtime wages required by California law. She brought her claim as a class action on behalf of all nurse recruiters who were employed during the relevant time period.

Donohue supported her claim with the declaration of a statistics professor. The professor examined AMN’s payroll records and determined the overtime wages that class members would have received if their short meal periods had not been rounded up to 30 minutes. The professor concluded that employees were denied overtime wages for 40,110 lunches in which they took a break for less than 30 minutes.

California law also entitles employees to an additional hour of pay if a full meal period is not provided within the first five hours of a shift. The professor concluded that class members suffered 6,651 delayed lunches. He determined that lost wages from overtime plus the penalty for lost and delayed lunches totaled about $802,000.

AMN countered with a declaration from its own expert witness, a statistician who was also a labor economist. The expert opined that employees are paid for their full time because AMN sometimes rounds up and sometimes rounds down. Employees might therefore be paid for minutes they didn’t work in some weeks and not paid for minutes they worked in other weeks. The expert determined that the rounding of meal periods evens out over time, so employees do not lose pay in the long run.

Supreme Court Analysis

The trial court granted summary judgment to AMN. The court noted that employers are generally permitted to round time shown on time records for a workday if they do so in a way that does not consistently favor the employer. The court saw no reason why that rule shouldn’t apply to meal periods. The court also accepted the opinion of AMN’s expert that the rounding policy fairly compensates employees over time.

The California Supreme Court reversed the summary judgment. It concluded that AMN’s expert did not prove that AMN complied with the law. The expert analysis assumed that rounding rules applicable to time worked in a workday are also applicable to meal breaks.

Rounding rules governing a workday are generally focused on assuring that employers do not cheat their employees out of overtime compensation. The California Supreme Court viewed California’s meal break rule as serving a broader purpose. California law protects an employee’s right to take a full 30-minute break. That right is in addition to the right to be paid for hours actually worked.

Requiring employers to provide a 30-minute break protects the health of employees. Denying breaks increases an employee’s stress and fatigue, making workplace accidents more likely. Cutting a break short also diminishes the employee’s opportunity to eat a full meal or finish errands during a break period.

The court decided that a law guaranteeing a break of “not less than 30 minutes” per workday was inconsistent with rounding break time down to less than 30 minutes. Treating a 24-minute break as if it were a 30-minute break cheats the employee out of the benefits of a full break even if the rounding rules do not necessarily cheat the employee out of compensation over the course of a full week. Rounding thus excuses employers from their obligation to provide full 30-minute breaks.

In the court’s view, “rounding is inappropriate in the meal period context.” When employees are working for a few minutes during their 30-minute meal break, they are entitled to be compensated for those few minutes, including the penalty that California imposes on employers who do not give employees the full 30-minute break.

Since AMN’s expert based his opinion on an incorrect view of the law, the trial court erred by basing summary judgment on the expert’s declaration. The court remanded the case so that each party could file new summary judgment motions based on the supreme court’s new interpretation of California law.


New Mexico Justice

New Mexico Court Rules that Experts May Not Testify About a Defendant’s Intent

The New Mexico Supreme Court recently weighed in on an issue that will continue to be raised as scientists gain new knowledge about the impact of genetics on self-control. In State v. Yepez, the court held that a particular genome associated with violent behavior in victims of an abusive childhood cannot be the subject of expert testimony about a defendant’s intent to commit a violent crime.

Criminal Responsibility

An ongoing controversy in criminal law hinges on science and philosophy as much as precedent. When should individuals be held responsible for their misconduct?

Traditionally, convictions of serious crimes require proof that the accused offender intended to commit the crime. If the accused caused an accidental result and did not behave recklessly, the accused should not usually face serious punishment.

When it is clear that the offender caused harm that was not accidental, courts generally recognize only a state’s version of the “insanity” defense as negating intent. “Insanity” is an antiquated term that mental health experts have largely abandoned. While states formulate the defense in different ways, one version of the defense places the burden on the offender to prove that a mental disease or defect prevented the offender from conforming his or her conduct to the law.

Another version requires the offender to prove that, because of a mental disease or defect, he or she was incapable of appreciating the difference between lawful and unlawful conduct (or more fundamentally, the moral difference between “right and wrong”). Jurisdictions that have adopted that version of the defense do not allow experts to opine that an offender was incapable of controlling his actions, because lack of volitional control is not relevant to the defense.

The “insanity defense” has long been criticized as being divorced from medical science. Psychiatrists and other expert witnesses have difficulty applying a legal standard that is at odds with a medical understanding of mental health and volitional control.

Tradition has governed, in part because members of society tend to express outrage that an offender has “gotten away with” a crime when the offender is found not guilty due to a mental disease. The defense is rarely used and even more rarely successful. A few states have abolished it; in others, it is severely limited. But questions remain about the morality of holding people accountable for behavior that they cannot control.

Competing Views of Free Will

An ongoing debate in science and philosophy involves the degree to which individuals have any control over their actions at all. The debate between free will and determinism “is among philosophy’s oldest controversies.”

Some neuroscientists argue that free will may be an illusion. They suggest that we engage in an action, that our brain perceives the action, and that our brain convinces us that we willed the action to occur.

The notion that choice is not a matter of volition divides neuroscientists. Scientific studies approach the question indirectly and their results are open to interpretation.

Self-Control and Criminal Justice

Free will is the foundation for the criminal justice system. Criminal law assumes an individual’s ability to control his or her behavior. Criminal punishment (at least for serious crimes) is based on a volitional choice to disobey the law. If, in fact, offenders have no choice, punishment is based on a false premise.

There is room for middle ground in the debate between free will and determinism. It is possible that people generally have free will, but that some people, under some circumstances, are unable to exercise it. If, through no fault of your own, you are incapable of controlling your actions, whether you have free will is academic.

When intent is an element that must be proved to obtain a conviction, one might expect defense lawyers to call expert witnesses to prove that their client was incapable of choosing to break the law because the client was powerless to control his or her behavior. Courts have historically shut the door to that argument, in part because they do not want to undermine the rationale for criminal punishment. Apart from the insanity defense or its cousin, diminished capacity, the claim that “I couldn’t control my actions” is usually unavailable as a defense to criminal culpability, even if it happens to be true.

Expert Opinion in Yepez

Anthony Yepez killed George Ortiz during an argument, then set fire to Ortiz’s body. Yepez was charged with murder and tampering with evidence, among other crimes.

Yepez sought to admit evidence that he had “experienced maltreatment in childhood.” Yepez also wanted to admit expert evidence that he has “a genotype that confers low levels of monoamine oxidase A (MAOA) activity.” MAOA is an enzyme that affects the metabolism of neurotransmitters in the brain. According to Yepez’s experts, low levels of MAOA activity, combined with childhood maltreatment, produce maladaptive or violent behavior.

Yepez essentially hoped to defend the case with evidence that he was “born violent” and could not overcome traits that were part of his genetic makeup. He argued that the testimony was relevant because the condition caused him to kill without forming an intent to kill. He identified a neuropsychologist, James S. Walker, and a geneticist, David A. Lightfoot, as expert witnesses.

Daubert Hearing

The prosecution argued that the proposed testimony was not relevant. It also argued that the expert opinions were insufficiently reliable to be admissible under New Mexico’s version of the Daubert test.

Walker testified at the Daubert hearing, as did two psychologists. All three experts based their opinions on research demonstrating “a relationship between childhood maltreatment combined with low MAOA activity and predisposition to antisocial aggressive behavior.” The research included a study of Brunner Syndrome (a condition that associates complete deficiency of MAOA with aggressive behavior) and a study by Avshalom Caspi and his colleagues in 2002.

The Caspi study attempted “to determine why some children who are maltreated grow up to develop antisocial behavior, whereas others do not.” The study found that MAOA moderates the effects of maltreatment. Maltreated children who have a genotype conferring high levels of MAOA are less likely to become antisocial than children with a genotype that confers low levels of MAOA.

Many studies have replicated the Caspi study’s findings but some have not. A meta-analysis of peer-reviewed studies found a “moderately reliable” interaction between certain environmental risk factors (including abuse during childhood) and levels of MAOA.

Based on Lightfoot’s testing, Walker testified that Yepez’s genotype produces extremely low levels of MAOA, although he could not be sure whether Yepez suffered from Brunner Syndrome. Walker also testified that Yepez’s “history of childhood abuse and … this low MAOA activity gene made him exceptionally predisposed to committing violent behavior.”

Daubert Analysis

Rather confusingly, the trial judge first said “the Daubert factors are met,” then questioned the reliability of the defense evidence. The court said: “I’m really kind of iffy on whether — whether we’ve satisfied — whether it’s a scientific technique that’s reliable enough to prove what it [purports] to prove.” The court also noted that the defense relied on a thirty-year longitudinal study that the court deemed “inconclusive.” The judge observed that there is still “work to be done.”

The trial court ultimately excluded the expert testimony because Lightfoot’s testing could not determine a precise level of MAOA that Yepez’s genotype produced. The judge then faulted the defense for not calling Lightfoot as a witness at the Daubert hearing.

The defense moved for reconsideration, pointing out that New Mexico law allowed its experts to base their opinions on Lightfoot’s report without having Lightfoot testify. Those experts interpreted the facts cited in Lightfoot’s report as consistent with a genotype that produces very low levels of MAOA. The defense also provided an affidavit from Lightfoot that confirmed that interpretation.

The judge accepted the new information but shifted his reasoning. The judge decided that a propensity to behave violently is insufficient to establish New Mexico’s insanity defense — a defense that Yepez did not raise. The judge then decided that people with a propensity to violence can still form an intent to kill and that propensities do not, by themselves, negate intent.

Finally, the judge concluded that studies of low levels of MAOA combined with childhood maltreatment document “increased outcomes of aggressive and antisocial behavior — not impulsive behavior or impulsive violence as such.” The judge thus engaged in hair splitting to distinguish aggressive behavior from impulsively violent behavior, notwithstanding that impulsively violent behavior is by definition aggressive.

Appellate Opinion

The New Mexico Supreme Court agreed that “since Yepez has a low-activity MAOA genotype, not a no-activity MAOA genotype, Walker’s testimony that Yepez is predisposed to impulsive violence was not based on reliable scientific knowledge.” The court agreed that the studies “identified outcomes of antisocial behavior, generally” rather than violence, specifically.

The court was apparently unimpressed by a study finding that low MAOA activity and childhood maltreatment “predict[ed] outcomes … of … both violent and non-violent antisocial behaviors.” The study authors noted that “the low-activity MAOA genotype heightens maltreatment-dependent risk for a range of conduct problems and not aggression or criminal violence specifically,” but that observation means that violence and aggression are not the only outcomes of low levels of MAOA. Both courts were stretching the evidence to conclude that low levels of MAOA do not cause violence.

The court also noted a conflict in the underlying studies about the impact of low levels of MAOA on impulse control. Yet the experts were entitled to rely on studies suggesting that low levels of MAOA diminish impulse control, and the experts are in a better position than judges to evaluate scientific studies. The supreme court essentially cherry-picked the studies underlying the expert testimony to produce the result it wanted.

The court was on firmer ground in concluding that low levels of MAOA do not inevitably produce impulsive violence. Perhaps Yepez killed because he could not control his impulses, or perhaps he formed an intent to kill. The science at this point is incapable of distinguishing between acts caused by an impulsive predisposition and acts taken with intent.

At best, the science can tell us about behaviors that are more common in groups of people who share genomes and childhood experiences. That information doesn’t tell us whether specific individuals within the group are more likely to behave violently. But a defendant only needs to create reasonable doubt about his intent. Whether the science is sufficient to create a reasonable doubt about a defendant’s intent might be a question best left for the jury to decide.

Lessons Learned

In the end, the court decided that the “mere genetic susceptibility to a given mental condition is not relevant on the issue of deliberate intent, at least in the absence of evidence that such susceptibility is so well understood and has such strong predictive value as to be clinically validated as an indicator of the mental condition.”

As science advances, it may be possible for an expert witness to testify with certainty that a person’s genetic makeup makes it more likely than not that an individual with a particular genome and a particular set of life experiences will engage in impulsive, uncontrollable acts of violence. If that happens, will courts admit expert testimony that a defendant could not form the requisite criminal intent?

In the interest of fairness, they should. Given the judicial tendency to hold people accountable for their behavior regardless of scientific debate about free will, gaining the admissibility of expert evidence about intent will continue to be an uphill battle.

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Colorado AG Warns Requiring Experts to Testify Could Prevent Reporting

The Colorado Attorney General has warned that requiring a state agency to testify as experts in a criminal case may have an adverse effect on its ability to gather important information.

The Avalanche

On March 25, 2020, an avalanche buried a service road above the west portal of the Johnson Eisenhower Memorial Tunnels near Denver, Colorado.The avalanche deposited as much as 20 feet of debris on the road and destroyed an avalanche mitigation device.

After the avalanche, snowboarder Evan Hannibal handed over his helmet video to the Colorado Avalanche Information Center. The video shot the avalanche that triggered below his snowboard. Hannibal hoped that the video and his first-person account would help to educate other skiers and snowboarders.

The Colorado Avalanche Information Center is a program within the Colorado Department of Natural Resources that provides avalanche information and education. This agency produces weather and backcountry avalanche forecasts. The Colorado Avalanche Information Center relies upon people who cause avalanches to report information for its investigations and reports.

The Criminal Case

Summit County prosecutors used Hannibal’s video to file a criminal case against him and his backcountry partner Tyler DeWitt, seeking restitution for the avalanche mitigation device. The snowboarders face charges of reckless endangerment and restitution of $168,000.

The county filed a motion announcing that it intended to call Colorado Avalanche Information Center Director Ethan Greene to testify as its expert witness at trial.

Hannibal and DeWitt have opposed the introduction of the video evidence and the use of the avalanche center’s director as an expert, arguing that the charges against them could cause other backcountry travelers to stop sharing information with the avalanche center and its investigators.

Colorado Attorney General Phil Weiser, acting as attorney for the state’s avalanche center, agreed with Hannibal and DeWitt. Weiser’s office filed motions to quash subpoenas requiring Greene and avalanche center forecaster Jason Konisberg to testify as experts at the trial of Hannibal and DeWitt.

Weiser argued that the county’s plan to call avalanche center employees as experts “could have an unintended adverse ‘chilling’ impact on the CAIC’s ability to gather important information.”

Weiser’s motion states, “There is genuine concern by CAIC that if CAIC employees appear as an expert witness in a criminal matter it could adversely impact their ability to gather relevant information from persons involved in an avalanche. . . . The more involved CAIC is in this criminal matter, the more it looks like they are working in coordination with law enforcement, rather than in cooperation with local law enforcement, resulting in a chilling effect to the detriment of CAIC’s mission.”

Weiser also argued that requiring the state avalanche center employees to testify for two days is “unduly burdensome, unreasonable and oppressive.” He argued, “To command that Mr. Greene step away from his diverse responsibilities, during the CAIC’s busiest month of the winter season, is unreasonable and impactful to the important work of this agency generally and Mr. Greene specifically.”

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Forensic Doctor Testifies That Flawed Evidence Led to Capital Murder Conviction

A forensic doctor has testified that the science used in the capital murder conviction of Robert Leslie Roberson III was flawed.

The Death

In February 2002, two-year-old Nikki Curtis was taken to a Dallas hospital. She died of blunt force injuries to the head.

Curtis’ father, Robert Leslie Roberson III, said that she died after landing on her head during a fall from her bed. Prosecutors theorized that Roberson instead shook his daughter so hard that she slipped into a coma and then left her on her bed for hours. Roberson was charged with capital murder in connection with his daughter’s death.

The Trial

In February 2003, a twelve-person jury found Roberson guilty of murder and sentenced him to die by lethal injection.

In 2007, Roberson appealed to the Court of Criminal Appeals, but each of his 13 claims of error was rejected.

New Expert Testimony

In June 2016, the Texas Court of Criminal Appeals stayed his June 21, 2016 execution and sent the case back to trial court to consider four different claims, including the claim that “junk science” was introduced at Roberson’s original trial.

An evidentiary hearing initially began in August 2018 but was continued after a district clerk found 15-year-old evidence, including lost CAT scans. The hearing was delayed to give the prosecutors and defense teams time to review the evidence and develop expert witnesses.

Roberson’s legal team retained Dr. Janice Ophaven, a forensic pathologist with expertise in pediatric deaths. Dr. Ophaveen has been practicing since 1971. Judge Deborah Evans certified Dr. Ophaven as an expert in pediatric forensic pathology.

Ophaven explained that Curtis had “died because her brain died from cranial pressure that created a lack of oxygen and blood to the brain.” She testified that homicide could not be concluded from a post mortem exam, but said that it was “[h]ard for pathologists to be objective because they rely on law enforcement and, in some cases, law enforcement gives them information to get a confession.”

Openhaven testified,

Science does not tell us what happened to Nikki. . . . At the time of trial in 2003 it was believed a short fall could not create death, that is no longer the science. Shaken baby does not apply to children of Nikki’s age. Blunt force trauma absolutely can cause the type of injury Nikki had. In this case lack of oxygen to brain cells caused fluid to exit out of the cells and that fluid continued to build and created a sequence of events that caused her death. At the time of trial, the science was that blood in the eyes was a sign of shaken baby. It is no longer the science.

This is just another in the series of cases where experts are questioning the legitimacy of shaken baby convictions. For more ExpertPages coverage on this issue, see “Rising Trend of Experts Questioning Legitimacy of Shaken Baby Convictions” and “Woman Allowed to Present Expert Testimony to Overturn Shaken Baby Conviction.”

Expert Witness Allowed to Testify in Lawsuit for Infringement of “King Cake Baby” Copyright

Jonathan Bertuccelli and Studio 3 designed King Cake Baby, the “terrifying” and “creepy” mascot of the New Orleans Pelicans. Bertucelli and Studio 3 sued Universal City Studios in the Eastern District of Louisiana for infringing its copyright when it featured a “mask of a cartoonish baby face in the 2017 feature film Happy Death Day and its sequel, Happy Death Day 2U.”

The King Cake Baby creators proposed to support their case with the testimony of two expert witnesses: James T. Berger and Edward R. Griffor. Berger analyzed the perceptions of individuals who viewed side-by-side comparisons of King Cake Baby and the Happy Death Day mask. Griffor used artificial intelligence facial algorithms to predict perceptions of similarity between the two baby faces.

Universal moved to exclude the testimony on several grounds. Universal argued that the experts are not qualified to testify about copyright infringement issues, that whether the two images are “substantially similar” is not a proper subject of expert testimony, and that the experts did not correctly apply the “substantial similarity” test as it has been developed in the Fifth Circuit. The district court denied the motion.

Substantial Similarity

Any work of art is based on the artist’s experience, including the artist’s exposure to other works of art. Artists are often influenced by the art they have experienced, but they create original art by expressing themselves in a new way. That expression identifies the difference between copying art and creating something new.

Since ideas cannot be copyrighted, the fact that two artists create similar works that have their genesis in the same idea does not necessarily give rise to a copyright infringement claim. Only the expression of an idea, not the idea itself, can be copyrighted.

Copying a copyrighted work of art violates the law. Creating something new that is inspired or influenced by an existing work of art does not violate copyright law. The huge gray area between copying an existing work and being inspired by an existing work gives birth to most copyright lawsuits. To what degree must a copyrighted work be changed to avoid a copyright infringement? In other words, how much copying is too much?

The “substantial similarity” test is meant to answer that question. It does not do so with precision, but it does offer guidance. Unfortunately, different courts define the test in different ways. In the Fifth Circuit, which includes Louisiana, the test asks whether an “ordinary observer” would conclude that the artist copied so much of a copyrighted work that the artist took something that belonged to the artist who holds the copyright.

Whether an expert may testify about how an “ordinary observer” would view two works of art is the subject of some controversy. Courts that have adopted the “ordinary observer” test generally allow expert testimony if it will help the jury decide whether an infringement occurred, but only if the expert analyzes copyrightable expressions of an idea rather than the idea itself.

Expert Qualifications

Berger is a principal in a firm that provides marketing services to businesses. He has “extensive experience with intellectual property surveys with respect to similarity between brands and trademarks.” His experience includes “the evaluation of intellectual property perception in the public.” Berger has published extensively in the fields of intellectual property and marketing, communications, and trademark surveys. The court determined that he is qualified to testify about perceptions of similarity between copyrighted images.

Giffor holds a position with the National Institute of Standards and Technology. He has a doctorate in mathematics. Giffor has “experience with algorithmic reasoning for artificial intelligence-enabled driving systems, including facial recognition technology and is considered an expert in the field of facial target recognition.” The court decided that he is qualified as an expert in facial recognition.

Reasonable Methodology

Giffor conducted an “artificial intelligence assisted facial recognition analysis of the King Cake Baby and Happy Death Day mask.” The court concluded that “the use of mathematics and target facial recognition algorithms comparing the two works” could provide reliable evidence of whether “human perception would view the works as substantially similar.”

The court’s discussion of reliability is cursory. It gave no attention at all to whether Berger’s survey methodology was reasonable. Of more significance, perhaps, is the court’s observation that potential deficiencies in the expert’s analysis are best explored on cross-examination. The judge was apparently satisfied that a jury could reasonably find the expert opinions to be reasonable. Since the opinions met that threshold, it was up to the jury, not the judge, to decide whether the opinions are persuasive.