Category Archives: Expert Opinions

Choosing the Right Expert Means Asking the Right Questions

Court Requires Disclosure of Memorandum Discussing Expert’s Methodology

In most cases, a retained expert must prepare a report that states the expert’s opinions, as well as the facts and reasoning that supports those opinions. Yet expert reports do not appear out of the blue. Experts may labor over the report for weeks, treating them as works in progress that evolve over time.

The finished draft of an expert report must be disclosed, as well as certain underlying data. A continuing issue in the law is whether other documents, including prior drafts and communications with an attorney about the report, must also be disclosed. A federal magistrate recently ruled that a memorandum about methodology that an expert wrote for his own use and shared with an attorney is subject to disclosure.

The Work Product Doctrine and Expert Reports

Law students who struggle to stay awake during dry lectures about civil procedure will eventually encounter the work product doctrine. While simple on its face, the work product doctrine compounds the confusion surrounding the obligation to comply with discovery requests.

Under the federal rules, parties may not discover materials that were prepared by or for an attorney in preparation for litigation. However, the rule must be read in light of other discovery rules, including the obligation to disclose reports prepared by experts who will testify at trial. Those reports are plainly prepared for attorneys to assist in litigation, but the reports were both mandated and made discoverable by a 1993 amendment to Rule 26.

The 1993 amendment also allowed discovery of “data or other information” upon which the expert relied in forming opinions. Courts issued confusing and contradictory rulings about whether communications between an attorney and an expert were discoverable as “other information.” Many courts also required disclosure of preliminary drafts of the report in addition to the final report.

Lawyers responded by instructing experts not to produce drafts prior to the final report, for fear that the drafts would include statements that contradict statements made in the final report. Since reports typically evolve over time as experts refine their thinking or incorporate new data, experts expressed frustration that lawyers did not understand how they work.

The rules committee eventually concluded that disclosure of attorney interactions with experts inhibited “collaborative interaction” with experts because attorneys feared disclosure of “their most sensitive and confidential case analyses.” Experts also complained that limiting their communications with the attorneys who hired them impaired their ability to perform high quality work.

Rule 26 was modified in 2010 to address those concerns. The amended rule requires disclosure of “facts or data considered by the witness” in forming expert opinions and “assumptions” that the attorney who retained the expert communicated to the expert if the expert relied upon those assumptions. The changes were meant to exclude disclosure of communications with lawyers that provided theories of the case or the lawyer’s mental impressions. The new rule also provided that the work product privilege protects prior drafts of an expert report from disclosure.

Expert’s Memorandum in Hernandez Lawsuit

Angel Hernandez, a Major League umpire, sued the Commissioner of Baseball for national origin discrimination. Hernandez complained that, despite his seniority, he was not promoted to crew chief and was never selected to umpire the World Series.

Hernandez identified Gregory Baxter as an expert witness and disclosed Baxter’s expert report. The Commissioner took Baxter’s deposition.

When asked if he had reviewed any documents in preparation for the deposition, Baxter testified that he had reviewed a memorandum that he wrote to himself but did not include in the expert report. Baxter testified that the memorandum described his methodology for deciding whether comments about Hernandez were positive or negative and for determining whether statements made in Hernandez’s year-end review were supported by Umpire Evaluation Reports.

Baxter prepared the memorandum weeks after he finished the expert report. He testified that he wrote it because he expected to be deposed about his methodology. He also testified that Hernandez’ attorney did not ask him to prepare the memorandum.

Baxter based the memorandum on notes that he made to himself while preparing the report. He destroyed those notes after he finished the memorandum.

At some point, Baxter gave the Memorandum a title, referring to it as a “supplement” to the “expert report methodology.” He sent the memorandum to Hernandez’ attorney with the subject line “Proposed Supplement to Baxter’s Expert Report.”

The Commissioner moved to compel production of the memorandum. Hernandez resisted on the ground that the memorandum was work product and not discoverable.

Magistrate’s Decision

The memorandum was not an earlier draft of the expert report because it was created after the expert report was finished. Hernandez argued that it was nevertheless a draft of a new or supplemental report.

The magistrate decided that the work product privilege applies to drafts of expert reports that are “required” by Rule 26. No supplemental report was required in this case, so the privilege did not apply to the memorandum. In addition, since no part of the memorandum was actually included in the required report, the memorandum cannot be regarded as a draft of the report that was submitted.

The court also noted that the work product privilege is designed to protect an attorney’s mental impressions, conclusions, opinions, or legal theories, not those of the expert. Since Hernandez’ counsel did not ask Baxter to prepare the memorandum, it did not qualify as attorney work product.

The court rejected the argument that the memorandum was a privileged communication between expert and attorney. While Baxter’s affidavit stated that the memorandum was prepared in anticipation of discussing methodology with Hernandez’s attorney, it was not created as a communication to an attorney.

The fact that Baxter sent the memorandum to an attorney did not “change its character at inception.” To hold otherwise would result in any document becoming privileged merely because the document was sent to an attorney.

Lessons Learned

The court emphasized that an expert’s “notes to himself do not qualify for protection” as work product. Notes are not drafts of a report unless they are intended for later inclusion in the report. Nor are notes made by an expert for the expert’s own purposes protected as communications to an attorney even if they are eventually sent to an attorney.

Experts should be cautioned that if they prepare notes for their own purposes, other than as drafts of portions of an expert report, those notes are likely discoverable. Experts should therefore be careful about preparing notes that they would not want a party in the case to review.

 

Kentucky

Court Excludes Expert Report in Antitrust Case

The State of Kentucky sued Marathon Petroleum and related parties for violating antitrust laws. Kentucky claimed that Marathon’s anticompetitive practices caused consumers to be overcharged.

Marathon asked the court to exclude the testimony of Kentucky’s expert economist. The court granted that motion and, since Kentucky could not prevail without the expert’s testimony, dismissed the case.

Antitrust Arguments

Marathon owns the largest refineries in the Midwest and the only refinery in Kentucky. It is also the largest supplier of gasoline in Northern Kentucky.

Kentucky argued that Marathon monopolized the wholesale market for Summer RFG, a kind of gasoline that some Kentucky retailers are required to sell during the summer months. A necessary ingredient of RFG is a petroleum product abbreviated as RBOB. Wholesalers purchase RBOB and add ethanol and other products to create RFG. They then sell the RFG from their terminals to retailers.

Kentucky argued that Marathon controls the influx of RBOB and thus monopolizes the downstream market for RFG. Kentucky alleged that Marathon used its market share dominance to manipulate the wholesale and retail price of gasoline. That price, according to Kentucky, was higher than the prices that prevail in competitive markets. Kentucky also alleged that Marathon uses anticompetitive supply agreements (known as exchange agreements) to maintain its market dominance.

Expert Testimony in Antitrust Cases

When a plaintiff alleges that a defendant has restrained trade or engaged in monopolistic pricing within a market, the plaintiff’s first task is to define that market.

The plaintiff must define a product market and a geographic market. The product market analysis asks whether there are readily available interchangeable substitute goods that consumers could purchase to serve their needs. A substitute is interchangeable if an increase in price for one product would cause an increase in demand for the substitute product.

A geographic market is the area in which sellers compete against each other to make sales to the same consumers. In simple terms, it is the market area in which the allegedly anticompetitive seller operates.

The relevant market is a fact question that must generally be determined by a jury. A judge’s disagreement with the plaintiff about the relevant market should not lead to a dismissal of the case unless no reasonable juror could agree with the plaintiff’s definition.

Courts usually require the relevant market to be proved by an expert opinion based on sound principles of economics. While a judge cannot dismiss a case simply because the judge disagrees with the expert’s view of the facts, a judge can exclude the expert’s testimony if the judge finds that the testimony is not based on a reliable methodology.

Kentucky relied on a single expert witness, Dr. Michael Sattinger. Marathon did not challenge Sattinger’s qualifications to render an expert opinion. Rather, it challenged the methodology he used to determine the relevant market, to determine the existence of an antitrust injury, and to calculate damages.

Relevant Market

Sattinger defined the relevant geographic market as the Kentucky terminals where RBOB is blended with other products and sold to retailers as RFG. The court decided that Sattinger failed to base that definition on a reliable methodology.

Economists usually use a “hypothetical monopolist” or “small but significant and non-transitory increase in price” (SSNIP) test to determine the relevant market. That test asks whether consumers would leave a market for competing goods if a supplier were to impose a 5{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} price increase for at least one year. If consumers would not leave the market, the market is worth monopolizing. The smallest market from which consumers would not exit is the relevant market.

Courts have generally agreed that the SSNIP test is a reasonable methodology for defining a relevant market. Sattinger acknowledged that the SSNIP test is widely used but chose not to use it. The court noted that economists are not required to use the SSNIP test to define a relevant market, but are required to use some other reasonable methodology. The court faulted Sattinger for failing to explain why he limited the relevant market to terminals in Kentucky.

The court also concluded that defining Kentucky terminals as the relevant market did not reflect the economic realities of the wholesale RFG market. The court thought Sattinger should have asked whether there were other places wholesalers could look to buy RBOB. The court noted that Marathon’s only local competitor had RBOB transported by barge from other states, and that Marathon itself had met its need for RBOB by transporting it to Kentucky by truck.

Since Sattinger did not define a geographic market that included all reasonably available sources of RBOB, Sattinger did not base his opinion on a reasonable methodology. According, his opinion was inadmissible.

Antitrust Injury

To demonstrate that Marathon’s anticompetitive behavior caused a harm, Sattinger compared markets for RFG in Baltimore and St. Louis to the Kentucky market. He determined that market prices were lower in those cities and attributed the price differential to Marathon’s anticompetitive behavior. He calculated the price difference over the time period covered by the lawsuit and produced a damages calculation of about $173 million.

While the court recognized that Sattinger’s “yardstick method” of damages calculation can be appropriate in antitrust cases, the method must take account of other factors (such as market size, product demand, proximity to supply sources, and cost of operations) that might have an independent impact on prices. Economists generally use a regression analysis to account for those variables, but Sattinger failed to rule out other possible explanations for price differences that were unrelated to Marathon’s anticompetitive pricing.

Kentucky also considered Marathon’s use of exchange agreements to be anticompetitive. Competing refiners use exchange agreements to trade gasoline when a competitor has an insufficient supply. Sattinger did not determine whether exchange agreements are used in Baltimore or St. Louis and therefore failed to determine whether the supposedly anticompetitive agreements had an impact on price.

The court ultimately concluded that Sattinger’s methodology did not rest on sound economic principles. Accordingly, his opinions did not satisfy Daubert and were not admissible as evidence.

Lessons Learned

Different judges view Daubert in different ways, but precedent authored by some appellate judges supported the exclusion of Sattinger’s testimony. Part of case preparation should include a thorough review of Daubert precedent in the case at hand. In this case, a review of Daubert decisions in antitrust cases might have prepared Kentucky’s lawyers for Marathon’s challenges.

Experts should be urged to complete a first draft of a report for an attorney’s review well in advance of the disclosure deadline. If Kentucky’s lawyers had identified attacks that could be made on their expert’s methodology, perhaps those perceived flaws could have been corrected before a final draft was prepared.

Experts understand their field of expertise but lawyers understand precedent. Helping experts understand how a court might respond to Daubert challenges is a key role that lawyers must play after they hire expert witnesses.

 

Lender Liability

Court Allows Expert to Testify that Advertising Was Not Misleading

The Federal Trade Commission (FTC) sued Lending Club for violating federal laws that prohibit deceptive or unfair business practices. A federal judge recently decided several motions in the case, including the FTC’s Daubert motion to exclude the testimony of Lending Club’s expert witness.

Facts of the Case

Lending Club is not itself a lender. Rather, it connects borrowers with lenders. Lending Club charges borrowers a percentage of the borrowed amount as a loan origination fee. The fee, which averages 5{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} on unsecured loans, is deducted from the loan and paid to Lending Club when the loan proceeds are advanced to the borrower.

From 2012 to 2018, Lending Club’s advertising claimed it charged “no hidden fees.” Loan applicants who met baseline criteria could apply for a loan. The Lending Club website would then display a loan offer page showing the loan amount, the number and amount of monthly payments, and the annual percentage rate (“APR”).

The loan offer page did not disclose an origination fee unless a consumer clicked a question mark beside the term “APR” (on the desktop version) or hovered over the term “APR” (on the mobile version). Borrowers were not required to perform those actions before completing the loan.

The FTC contended that Lending Club falsely claimed that loans included “no hidden fees” when, in fact, an origination fee is literally hidden in the loan offer and only becomes visible if a consumer happens to click or hover in the right place.

The origination fee was mentioned again on a terms page that included a federally required Truth in Lending Disclosure. The “amount financed” box includes the full amount of the loan for which the borrower applied, but the borrower must scroll down the page to learn that an origination fee would be deducted from the “amount requested,” resulting in a smaller “amount received.”

The final page asks the borrower to enter bank account information where the loan will be deposited. The page then says “Your [$ amount requested] loan is on the way.” The FTC contended that the statement was false, because the amount requested minus the origination fee was “on the way.”

The origination fee is more conspicuously explained on a separate “rates and fees” page. However, borrowers were not required to view that page before completing the loan.

In addition, nearly all Lending Club customers elect to pay their loans through an automatic bank account withdrawal each month. The FTC alleged that Lending Club had a habit of “mistakenly” taking too much money or continuing to take withdrawals after the borrower canceled the automatic withdrawal feature. The FTC alleged that consumers had contacted their banks to force Lending Club to reimburse $3.8 million. Apart from that inconvenience, if consumers failed to notice that they were overcharged, Lending Club might have simply pocketed their money.

Expert Testimony

A key dispute in the case involved the number of consumers who proceeded with the loan process because they didn’t know they would need to repay a loan origination fee that would be deducted from their loan proceeds. Lending Club argued that a more conspicuous disclosure of the origination fee would not have reduced the number of borrowers who decided to continue the application process.

Lending Club supported that claim with the expert report of Dr. Yoram Wind. Wind conducted an experiment with prospective borrowers. He showed the actual Lending Club website to a test group. He removed the “no hidden fees” statement from the website he showed to the control group.

Wind then surveyed successful applicants in each group, asking whether they received the amount of money they expected to receive. About 89{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the test group and about 94{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the control group indicated that they received the amount of money that they expected to receive.

Wind shared the results with the FTC, which indicated that Lending Club had changed its website during the years covered by the complaint and that the experiment did not take those changes into account. Wind then designed a new experiment with three test groups.

The first test group saw a “no hidden fees” offer page that omitted the origination fee disclosure that Lending Club added to a footer in June 2017. The second test group saw a “no hidden fees” offer page and the origination fee footer that appeared from June 2017 to May 2018. The third test group saw the page that was displayed to the second test group but without a “no hidden fees” statement. The court thought the evidence was inconsistent as to whether the third group saw a footer disclosing the origination fee.

In response to an FTC objection, Wind also modified the survey invitation to state that borrowers’ responses would not affect their relationship with Lending Club or their credit score.

In the new version of the study, Wind concluded that the percentage of control group applicants who misunderstood the amount they would receive was virtually identical to the first study, while the percentage of applicants in each test group who misunderstood was very similar to the test group results in the first study.

Wind also found that about 19{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of participants in all test groups and the control group accepted the loan. Wind concluded that the similar results proved that the “no hidden fees” claim had no impact on the decision to complete the loan process.

Daubert Ruling

The FTC contended that Wind’s methodology was unreliable because he asked the wrong question. In the FTC’s view, asking whether borrowers received the money they expected did not address Lending Club’s misleading advertising. The real question, according to the FTC, was whether borrowers were aware of the origination fee by the time they completed the loan.

The court decided that the principles Wind used to design his survey, including assuring an adequate sample size and random assignment to test or control groups, were scientifically valid. In addition, one of the test groups saw the “No Hidden Fees” advertisement described in the complaint, so the test results were relevant.

The question that Wind asked — whether applicants received the loan payout they expected — provided insight into whether applicants were aware of the origination fee. Whether that was the best question to ask could be explored on cross-examination. Surveys do not need to be perfect to be admissible. In that regard, the court provided a more forgiving interpretation of Daubert than the interpretation used by judges who insist that only a perfect methodology can be reliable.

The court also regarded the FTC’s remaining challenges as bearing on the weight that the evidence should receive rather than its admissibility. Whether the question that Wind asked was improperly leading, whether he should not have disclosed that Lending Club was sponsoring the survey, whether he should have screened out applicants who learned of the origination fee from other sources, and whether Wind waited too long to survey applicants were not questions that exposed a blatant bias in the test results, as the FTC claimed.

Lessons Learned

Whether an arguable deficiency in a research methodology goes to admissibility or weight is a question that different courts, confronted with the same facts, will answer in different ways. Sometimes the same judge will answer the question in different ways in different cases, depending on which party the judge favors. Unless the methodology is obviously error-free or egregiously flawed, decisions about admissibility depend more on the judge’s philosophy than on any clear rule of law.

The judge in this case may have been influenced by the fact that she will be the ultimate factfinder. The trial will be to the court, not to a jury. Caselaw allows judges to be less vigilant about their “gatekeeping” role in bench trials because judges are assumed to be less likely than juries to be influenced by expert evidence that might be less than rigorous. Whether or not that assumption has merit, it is worth remembering that judges are less likely to grant Daubert motions when no jury will hear the evidence, if only because admitting the evidence and discounting it after a trial provides a shield against appellate reversal.

 

Juries May Not Base Guilty Verdicts on Unreasonable Disregard of Expert Testimony

The Indiana Supreme Court began its opinion in Payne v. State with the observation that the “criminal legal system rests on the assumption that humans are rational agents of free will with the ability to exercise conscious choice in their everyday actions.” Whether that assumption is accurate is hotly debated by philosophers and neuroscientists. There is much about the mind and the concept of self that we do not understand, but judges are comforted by long-held assumptions that, if abandoned, would undermine the foundations of criminal punishment.

Putting aside the debate about free will, it is commonly understood that some people, at least, are compelled by irrational beliefs to behave unlawfully. Those people are sometimes said to be insane, although many states have abandoned that term.

The criminal justice system is premised on the belief that serious punishment should be reserved for people who choose to commit a crime despite their knowledge that it is wrong to do so. Modern legal thought generally shields defendants from criminal punishment when, at the time they engage in unlawful conduct, they are suffering from a mental disease or defect that deprives them of the ability to control their actions or to understand that their actions are wrong.

The tests for legal responsibility (or “insanity” in those states that still use the term) vary from state to state. In Indiana, an accused is not legally responsible for conduct that would otherwise be criminal “if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.”

Expert Testimony and Proof of Responsibility

Mental illness is typically proved by expert testimony. When a defense is based on the accused’s mental disease or defect, both the prosecution and the defense typically call an expert witness to opine whether the accused meets the relevant legal standard.

In some cases, however, mental illness and its impact on the defendant’s perception of reality is so obvious that all the experts agree that the legal standard is met. Those cases often result in a civil commitment based on the need to protect society from a dangerous person.

In Payne v. State, all the experts agreed that Payne was unable to appreciate the wrongfulness of his conduct, but the prosecution nevertheless took the case to trial and obtained a conviction. The question before the Indiana Supreme Court was whether jurors are free to disregard the unanimous view of expert witnesses when they decide whether a defendant is responsible for a criminal act.

Facts of the Case

Jesse Payne was arrested for burning down two covered bridges in 2002 and 2005 and for attempting to burn a third bridge. A judge determined that Payne was incompetent to stand trial, presumably because his mental illness rendered him incapable of understanding the proceedings or assisting in his defense. In 2016, the court decided that Payne had regained competence and the prosecution resumed.

Payne defended the charge on the ground that, when the crimes occurred, he was incapable of appreciating the wrongfulness of his conduct. Indiana persists in referring to that defense as an “insanity defense.”

Pursuant to Indiana law, the court appointed three neutral experts — two psychiatrists and a psychologist — to evaluate Payne and to determine his mental status at the time the alleged crimes were committed. All three experts agreed that Payne “suffered from paranoid schizophrenia and delusional disorder, rendering him unable to distinguish right from wrong” in 2002 and 2005.

Notwithstanding the unanimous opinions of the experts, and not satisfied with the fact that Payne had lost his freedom for eleven years before being declared competent to stand trial, the prosecution took Payne to trial. The prosecution argued that Payne’s demeanor proved that he knew he was doing something wrong. The jury evidently agreed with that argument and found Payne guilty. The Indiana Court of Appeals concluded that the jury was entitled to give the demeanor evidence greater weight than the unanimous expert opinions and affirmed his conviction.

Indiana Precedent

Appellate courts rarely second-guess a jury verdict. It is the jury’s function, not the court’s, to weigh the evidence. Juries are entitled to disbelieve witnesses, including expert witnesses.

But juries must still base their decisions on evidence, not on a sense of outrage that a crime might go unpunished if they vote to acquit a defendant who does not have the ability to understand the difference between right and wrong. The unwillingness of juries to let bad acts go unpunished makes the “insanity defense” a defense of last resort. Yet there are times when the evidence compels a finding that the defendant was not legally responsible for his actions, even if the jury chooses not to believe the obvious.

The supreme court noted that flaws in an expert’s opinion about the defendant’s mental status, combined with evidence of a defendant’s demeanor at the time the crime was committed, might reasonably permit the jury to find a defendant guilty. The primary Indiana precedent involved a defendant who had carefully planned a crime for weeks and then took steps to conceal evidence of the crime to avoid apprehension. Those facts, the court thought, could convince a jury that the defendant understood that it was wrong to commit the crime, given inconsistencies in the experts’ opinions.

Of course, failing to understand that conduct is wrong is not inconsistent with making a plan to engage in that conduct. A person might be driven by schizophrenia and paranoia to plan a crime without appreciating that the criminal conduct is morally wrong.

Concealing evidence might be seen as proof that the defendant knew the conduct could lead to punishment, but a desire to avoid consequences is not the same as appreciating that conduct is morally wrong. “Demeanor evidence” may therefore be an ambiguous ground upon which to base a rejection of uncontradicted expert testimony.

Expert Opinions and Demeanor Evidence in Payne’s Case

Regardless of the merit of Indiana precedent, the supreme court deemed it to be inapplicable. The court recognized that experts are “central to a determination of insanity.” The experts agreed that Payne’s history of paranoid schizophrenia and delusional disorder was longstanding and well documented. There was no evidence that Payne had been faking the condition before, during, or after he committed the acts of arson.

When expert opinions are in conflict or when there is reason to discount them, juries are free to choose among conflicting opinions or to reject them all. While “conflicting diagnoses, inadequate document review, deficient psychiatric evaluations” and similar flaws in the expert opinions might allow a jury to disregard those opinions, none of those flaws were present in Payne’s case. Nothing in the expert testimony gave the jury any factual basis for concluding that Payne did not meet the Indiana definition of insanity.

Nor did the prosecution’s reliance on “demeanor evidence” justify a verdict that disregarded the unanimous expert opinions. Dr. Jeffrey Huttinger explained that Payne’s demeanor, though “superficially normal to a casual observer,” was consistent with schizophrenia when his actions were “driven by some type of delusion.”

The prosecution relied on evidence that Payne set the fires late at night, a choice made — in the prosecution’s view — to avoid detection. The prosecution also argued that Payne lied when he told the police that fuel in his car was for camping and that he used convenience store receipts in an attempt to establish a false alibi. The prosecution suggested that the jury could view its evidence as establishing a consciousness of guilt.

The supreme court recognized that the jury was required to consider the totality of the evidence. The prosecution’s demeanor evidence was ambiguous. People who are paranoid and delusional might well operate in secrecy and tell lies. In fact, that conduct might be a product of their mental illness.

In the supreme court’s view, the prosecution’s demeanor evidence did not outweigh the unanimous opinion of three mental health experts that Payne was incapable of appreciating the wrongfulness of his conduct. Given the weight to which the expert opinions were entitled, the probative value of the prosecution’s demeanor evidence “effectively dissolves.” The court therefore concluded that “not guilty by reason of insanity” was the only verdict a reasonable jury could return.

The supreme court observed that its judgment is not a “get out of jail free” card. Indiana law requires a civil commitment proceeding to follow an acquittal on the ground of insanity. If Payne still suffers from a mental illness which makes him a danger to society — and he might not, given the prosecution’s argument that treatment restored his competence to stand trial — he will be subject to civil commitment until he no longer poses a danger.

Lessons Learned

The culture wars that divide America include a battle over expert opinions. Some people reject all expert opinions, whether they pertain to global warming or the dangers of coronavirus, as “elitist.” Those people believe that expert opinions are entitled to no greater deference than the opinions of people who have no expertise at all. That battle, coupled with the insurance industry’s relentless effort to portray all experts as “hired guns,” has tended to make juries less open to the opinions of experts who are more knowledgeable than lay jurors.

Judges routinely take cases away from civil juries because they believe that no reasonable jury could disbelieve the evidence presented by defense experts. The willingness to disregard the judgment of jurors in civil cases, where only money is at stake, should equally protect defendants in criminal cases, where freedom is at stake. When jurors refuse to believe unassailable expert opinions about a defendant’s mental health, it is the judiciary’s duty to set aside the jury’s unreasonable verdict and to acquit the defendant.

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.” One might hope that high standards would be demanded for opinions that are based on the discredited notion of Shaken Baby Syndrome.

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 a possibly 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 will 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 and good witness preparation 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 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. No physical evidence supported that interpretation.

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 not detected 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 purported to apply 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 adequacy of 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, or that they can reliably explain what they smelled to a human.

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 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 shoddy 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.

 

Seal of State of Florida and Gavel

Florida Supreme Court Throws Out Circumstantial Evidence Standard

The current version of the Florida Supreme Court is no respecter of precedent. The Court recently 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. In the absence of any better suspect, 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 he submitted a claim for the policy proceeds a few weeks after the murder. All of those facts are entirely consistent with innocence. The court nevertheless 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.” One might think that evidence should be more that speculative to prove guilt beyond a reasonable doubt, but the absence of evidence that Bush actually committed the murder did not appear to trouble the conservative majority.

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.