Category Archives: Expert Opinions

D.C. Court of Appeals Adopts Daubert

The court that first adopted the Frye standard of expert witness admissibility has formally jettisoned that standard in favor of the Daubert standard. The D.C. Court of Appeals has now joined the federal courts and the majority of states in accepting Daubert as the standard under which the admissibility of expert testimony should be evaluated.

Evidence in the D.C. Court System

The District of Columbia Court of Appeals, like the District itself, is an oddity in American law. The District falls under federal jurisdiction but in most respects it operates as a state. An elected D.C. Council has the power to pass laws, but the laws are subject to the approval of Congress. The District’s trial courts, although operated by the federal government, are separate from the federal courts that decide federal cases. Trial court decisions in the District are appealed to the D.C. Court of Appeals, which describes itself as “the equivalent of a state supreme court.”

The District has not codified its own rules of evidence. Courts in the District are not bound by the Federal Rules of Evidence, although they often turn to the federal rules for guidance. In many instances, the D.C. Court of Appeals has adopted the federal rule, although sometimes in modified form to retain elements of common law rules it has historically followed.

The Competing Standards of Frye and Daubert

The Frye standard for the admission of expert testimony asks whether the expert’s opinion was based on principles that had been generally accepted within the relevant scientific community. The Frye standard was created by the D.C. Court of Appeals in Frye v. United States, a case it decided in 1923. Most states adopted the Frye standard in the years that followed.

State court reliance on the Frye standard changed dramatically after the United State Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals. The Daubert decision interpreted Rule 702 of the Federal Rules of Evidence to require a broader test for expert evidence admissibility than Frye imposed. Under Daubert, judges ask whether the expert’s opinion is based on sufficient facts or data, whether the proposed evidence is based on a reliable methodology, and whether the expert has reliably applied the methodology to the facts.

Unlike the Frye standard, the Daubert standard does not require expert opinions to be based on theories that have gained widespread acceptance, provided that the expert applied a reasonable methodology in a reasonable way to facts that are sufficient to allow the expert to form an opinion. In that sense, Daubert broadened the universe of admissible expert evidence, although many of its proponents praise it for narrowing the range of “junk science” and other unreliable expert evidence that can be admitted in a trial.

Motorola v. Murray

All of the judges on the D.C. Court of Appeals participated in the court’s decision in Motorola v. Murray. The case involved a claim that long-term exposure to cell-phone radiation causes brain tumors. After weeks of pretrial hearings, the trial judge decided that most of the testimony offered by the plaintiffs’ experts would be admissible under the existing Frye standard, but most would be inadmissible under a Daubert standard.

According to the trial judge, the different results were attributable to court decisions that limited the Frye inquiry to whether an expert’s methodology was generally accepted and thus presumptively reliable. Unlike Daubert, the Frye standard did not allow courts to ask whether the expert applied the methodology in a reliable way. Under Frye, that question was for the jury to decide.

D.C. Abandons Frye Standard

In Motorola, the D.C. Court of Appeals recognized that the Daubert standard “in some respects relaxed traditional barriers to opinion testimony.” Opinions that are based on the reliable application of a reliable methodology to sufficient data are admissible even if the methodology has not been generally accepted. At the same time, the Daubert standard, unlike Frye, examines the expert’s application of the methodology. Under both Daubert and Frye, whether the expert’s conclusions are correct is for the jury to decide — but only if the judge allows the expert to testify.

The court recognized that Frye has been criticized for being “antiquated and out-of-step with modern science.” At the same time, the court noted that Daubert has been faulted “for producing inconsistent results, for making unqualified judges evaluate the work of scientists, and for invading the province of the jury.”

The court decided to adopt Daubert in both civil and criminal cases because it believed that Daubert, despite its flaws, will lead to “better decision-making by juries and trial judges alike.” Noting that the transition from Frye to Daubert will be difficult and that decisions in individual cases will probably be inconsistent, the court expressed confidence that trial courts would be guided by decisions of other jurisdictions that have adopted the widely-used Daubert standard. Finding definitive guidance might be challenging, however, given that appellate courts often disagree about the proper scope of a judge’s gatekeeping role under Daubert.

The court also cautioned that Daubert requires “a delicate touch” if judges are to avoid substituting their own judgment for conclusions that a jury should draw. The judge’s role as a gatekeeper is meant to prevent unsound evidence from reaching the jury. It is not meant to be a replacement for the adversary system of justice. The court noted that reliable applications of reliable methodologies can produce conflicting opinions, and emphasized that judges must take care not to evaluate the expert opinion itself. Only a jury can decide whether an opinion is credible.

Concurring Opinion Cites Doubtful Forensic Evidence

Judge Easterly’s notable concurring opinion urged judges applying Daubert to give special scrutiny to the opinions of forensic experts, even if the judges have grown used to admitting expert forensic opinions routinely under Frye. Judge Easterly called attention to expert methodologies that have been justly criticized as causing wrongful convictions. In particular, Judge Easterly called on trial court judges to pay special attention to the PCAST report and its recommendations for applying Daubert to dubious scientific methodologies that contribute to unreliable criminal convictions.

Photo Credit: Meade and Prettyman Courthouse, by AgnosticPreachersKid, CC BY-SA 3.0.

Washington Conviction Reversed Due to Improper Impeachment of Expert

Concluding that the improper cross-examination of an expert witness probably contributed to Jimi James Hamilton’s conviction, the Washington Court of Appeals granted Hamilton a new trial. The conviction was Hamilton’s “third strike” under Washington law and therefore resulted in a life sentence.

Expert’s Testimony

Hamilton was charged with assaulting a corrections officer. His defense was based on the claim that he suffered from a mental disease or defect that diminished his capacity to form an intent to commit the crime. In support of that defense, Hamilton called Dr. Stuart Grassian as an expert witness.

Grassian’s testimony covered two issues. First, Grassian testified about the effect that solitary confinement has on prisoners, particularly when it is prolonged or repeated. In that regard, Grassian testified about the inadequate mental health services that are provided to prisoners in the Washington prison system.

Second, Grassian testified about mental illnesses from which Hamilton was suffering at the time he assaulted the prison guard. In particular, he opined that Hamilton suffered from a bipolar disorder with episodic periods of psychosis. He also testified about the impact those illnesses have on the decision-making process. Finally, he expressed the opinion that Hamilton was in a dissociative state at the time of the assault and lacked the capacity to form an intent to injure the guard.

Grassian formed his opinions about Hamilton’s mental health by interviewing Hamilton and his family members. Grassian also reviewed certain medical records, but he testified that the records were not well maintained and were not always coherent. He noted that certain opinions expressed in the records had no basis or were inadequately explained.

Cross-Examination of Expert

The prosecutor asked Grassian whether he relied on Hamilton’s medical records in forming his opinions. Grassian testified that he considered the records but did not rely upon them.

The prosecutor then used the records to impeach Grassian’s testimony. Over the objection of Hamilton’s attorney, the prosecutor repeatedly pointed to a medical opinion in the records that contradicted Grassian’s opinion, asked Grassian to read it aloud, asked Grassian to identify the professional who rendered that opinion, and asked Grassian to respond to it. The prosecutor also asked Grassian if he was more qualified than the professionals who rendered those opinions.

At least three of the professionals who prepared medical records expressed the opinion that Hamilton was faking a mental illness. Another expressed the opinion that he did not suffer from a bipolar disorder. Grassian testified that the opinions suggesting that Hamilton was faking a mental illness were not supported by facts that justified that opinion. Grassian also observed that some of the opinions were expressed several years before the assault for which Hamilton was on trial and might not reflect Hamilton’s current condition.

The defense objected that the prosecution was relying on hearsay statements made by medical experts who were not testifying, but the trial court ruled that the prosecutor was entitled to impeach Grassian with those statements. In the end, the jury rejected the diminished capacity defense and convicted Hamilton. He appealed.

Court of Appeals’ Decision

The Washington Court of Appeals reversed Hamilton’s conviction. The Court agreed with the defense that the medical records were inadmissible hearsay. The prosecutor’s use of the records to impeach Grassian’s opinions did not render those opinions admissible.

The Court of Appeals observed that the prosecution’s cross-examination tactics elicited the expert opinions stated in the medical records without calling the medical experts as witnesses. The Court noted that the medical records were never admitted into evidence and therefore could not be used as substantive evidence of Hamilton’s mental health.

The Court agreed with the prosecution that an expert witness may be impeached with information that the professional relied upon in forming an opinion, but held that Grassian could not be impeached with Hamilton’s medical records because Grassian did not rely upon them.

At trial, the prosecutor argued that Grassian should have relied upon the records. The Court of Appeals noted that the opinions only had value to Grassian if they were accurate. That meant that the prosecution wanted the jury to accept the truth of the opinions in the medical records. But statements made outside of court that are offered for their truth are hearsay, and the prosecution cited no exception to the hearsay rule that applied to expert opinions expressed in medical records when the records were not admitted as evidence. If the prosecutor wanted to impeach Grassian with medical opinions that Grassian did not rely upon, the prosecution was required to call its own expert.

Apparently realizing that the medical records were hearsay if the opinions in the records were represented as being true, the prosecution contended on appeal that the opinions in the records were not meant to be taken as true. The Court of Appeals concluded that untrue medical opinions have no value and are therefore not relevant. Either way, any opinions in the medical records were inadmissible.

Lessons Learned

Washington law, like the law of most states, allows an expert to be cross-examined about the basis of his or her opinion. And like the law of most states, Washington allows hearsay into evidence for the limited purpose of establishing the basis for an expert’s opinion.

The Hamilton decision should remind lawyers who use expert witnesses that they need to know exactly what facts an expert relied upon. Documents might be used against the expert at trial if the expert relied upon them, even if those documents would otherwise be hearsay. On the other hand, if the expert did not rely upon the documents, the lawyer will usually be entitled to object to cross-examination of the expert based on those documents because the documents themselves are hearsay.

The rule that the Court of Appeals relied upon is simple and clear: “Cross-examination that attempts to impeach by slipping in unrelied on opinions and conclusions without calling the experts to testify is improper.” Excluding medical opinions that are hearsay forces the other side to call its own expert, providing an opportunity to cross-examine that expert about the validity of his or her opinion.

Experts Give Opposing Testimony in Eureka Wrongful Death Case

The surviving relatives of Tommy McClain filed a wrongful death lawsuit against the City of Eureka, California. They alleged that an officer of the Eureka Police Department used unreasonable force against McClain and that the officer’s negligence resulted in McClain’s death.

Both sides relied on expert witnesses. Their conflicting testimony might explain a jury verdict that accepted one of the family’s claims while rejecting another.

McClain’s Confrontation with the Police

McClain’s parents sued Eureka after a police officer shot their 22-year-old son in September 2014. The officer fired seven shots, striking McClain in the forehead, chest, and buttocks. The officer said he shot McClain while McClain was reaching “with both hands” for a gun in his waistband. The weapon turned out to be an unloaded pellet gun.

McClain, his cousin, and two women returned home after celebrating his cousin’s birthday. They had been drinking. Unfortunately for McClain, police were staking out the side of the duplex adjacent to his residence. They believed that a criminal suspect was hiding in that unit.

The police watched as McClain confronted a man who parked nearby. The confrontation may have been related to a series of break-ins that had occurred in the neighborhood. After the man walked away, the officers became concerned that McClain might vandalize the vehicle. Not wanting to reveal their presence and thus jeopardize their surveillance, they asked a police car to cruise by, hoping that would dissuade McClain from behaving rashly.

The officers testified that McClain glared at the police car and “racked the slide” on his gun. Sergeant Brian Stephens then left his surveillance post, drew his gun, and “began yelling commands at McClain.” One of those commands was to lift his hands in the air, which he did.

Confusing Commands

McClain said “I didn’t do anything” and “You can’t search me.” The sergeant then told McClain to “get down” or “get down here.” The officer who had been in the car also began to yell commands.

McClain began to walk toward the sergeant. As he started to lower his hands, the sergeant ordered him to raise his hands again. McClain complied. When he lowered his hands again, the police officer who had been in the car shot him.

The evidence suggested there was considerable confusion about what McClain was being asked to do. On a videotape of the shooting, Stephens can be heard saying “Get down here right now.” Later he can be heard saying “Get down.” If McClain believed he was being told to “get down” — a common command on television shows about law enforcement — lowering his hands to place them on the ground would have been a natural response.

The officers testified that McClain did not appear to be lowering himself to the ground. Stephens testified that if he had wanted McClain on the ground, he would have ordered McClain to get on his knees and then to lie on his stomach. McClain, of course, had no reason to know about Stephens’ customary procedures.

Stephens testified he told McClain, “Don’t touch that gun or you’ll be shot.” Stephens could not explain why that statement does not appear on a video recording of the shooting.

Two officers who were hiding behind a fence did not leave their surveillance post. One of those officers testified that he witnessed the shooting. All three officers who were watching McClain testified that he reached for his gun. None of them claimed that he actually touched the gun. Another witness testified that McClain had his hands in plain sight at all times and never reached for the gun.

Expert Testimony

Roger Clark, a retired lieutenant for the Los Angeles County Sheriff’s Department, testified as an expert witness for the McClain family. Clark said he supervised a special team for five years that made 2,500 arrests and never had to fire a shot.

Clark told the jury that officers placed themselves at risk by failing to take cover before challenging McClain. If they had concealed themselves behind a car, they would have given themselves more time to assess the situation before deciding whether McClain was or was not complying with their commands.

In addition, Clark criticized the police for giving an ambiguous command (“Get down here right now”) and failing to clarify its meaning. Clark suggested that “Stay where you are. Don’t move. Keep your hands up” would have been consistent with standard police practices. According to Clark, police should never expect a suspect to walk with raised hands, but should take control of the situation by telling the suspect not to move at all.

Clark also said that McClain demonstrated his willingness to comply by walking toward the officers. When he lowered, raised, and lowered his hands, the officers should have understood that he was confused by their commands.

Alexander Jason, a crime-reconstruction expert, testified for the defense. He noted that one bullet went through McClain’s arm before it entered his chest, suggesting that McClain’s arm was down, not raised, at the time the shot was fired.

Don Cameron, an expert who trains police officers, also testified for the defense. He told the jury that it would not have been appropriate to wait after McClain began to lower his arms, because it only takes a second to draw a gun “and get a shot off.”

Cameron also testified that it was appropriate to continue shooting McClain while he was on the ground because the officers did not know whether he was dead. Until he was dead, there was still a chance that he might draw the gun.

Verdict

The jury returned a split verdict. Perhaps swayed by Cameron’s expert testimony, the jury decided that the police did not deliberately use excessive force when they shot McClain. At the same time, returning a verdict that was consistent with Clark’s expert testimony, the jury found that the officer who shot McClain was negligent.

The jury also found that McClain was equally negligent. Under California law, the $300,000 verdict is reduced by half to account for McClain’s contributory negligence.

New York Case Questions Years of Shaken Baby Expert Testimony

A New York appellate court recently called years of expert witness testimony on shaken baby syndrome into question by overturning a 2001 conviction due to insufficient scientific support for evidence supporting the prosecution’s case. Shaken baby syndrome prosecutions rely on expert witness testimony due to the medical science involved in connecting the victim’s injuries with the defendant’s actions, however, recent advances in shaken baby research suggest techniques experts have used for years may not be reliable.

New York Woman Challenges Shaken Baby Conviction

Rene Bailey was convicted of causing the death of a 2 ½-year-old child at her daycare after the child suffered a serious head injury while in her home. Prosecutors charged Rene with second-degree murder, and she earned a conviction on the strength of medical expert witnesses who told jurors that the child’s injuries were the result of being shaken. Rene maintained her innocence, arguing that the young girl suffered an unfortunate fall which caused the injuries. However, shaken baby expert witnesses rebutted the defense’s claim by saying such a scenario was impossible.

Bailey was convicted of the second-degree murder charge and has been serving her sentence ever since. However, early in 2014 attorneys specializing in appealing shaken baby convictions took interest in her case. Bailey’s new attorney believed that the child had suffered from a serious fall, and argued that the shaken baby expert testimony presented fifteen years ago has since been refuted by advances in medical science research. According to Bailey’s new defense team, headed by Adele Bernhard, if the evidence available now had been presented during the 2001 trial, Rene would not have been convicted.

New York Appellate Court Overturns Shaken Baby Conviction

Adele Bernhard and the rest of Bailey’s legal team focused their appeal on challenging established forensic expert testimony with new developments in medical science which question the certainty of shaken baby expert testimony that has been used since the 1970s. According to Bernhard, alternative explanations for the type of injuries suffered by the little girl in Rene Bailey’s murder case were too easily dismissed by prosecution expert witnesses during the 2001 trial, and current experts in forensic medicine have since acknowledged that children can suffer serious brain injury by falling.

In a surprising ruling, Judge James Piampiano agreed with Bernhard and overturned Bailey’s conviction by finding, “There has been a compelling and consequential shift in mainstream medical opinion since the time of the defendant’s trial.” On appeal by prosecutors, a four-judge panel of New York’s Fourth Department Appellate Division of State Supreme Court agreed with Piampiano’s ruling. The New York appellate court found that Bailey should be freed due to new scientific findings, writing, “Had this evidence been presented at trial, the verdict would probably have been different.”

Following the appellate rulings in her favor, Rene Bailey has been released from prison, and the long term future of shaken baby syndrome prosecutions in New York is uncertain.

Prosecution of New York Shaken Baby Cases Uncertain

In the process of overturning Rene Bailey’s conviction, the New York appellate court called years of expert witness testimony on shaken baby syndrome into question. For years, medical experts have connected three specific injuries — bleeding in the retinas, bleeding in tissue surrounding the brain, and swelling of the brain — to shaken baby syndrome, mostly in cases where there is not any other available evidence. Since the 1970s, medical experts have used the combination of these three injuries to eliminate all other possible sources of injury other than shaken baby, giving prosecutors strong evidence against defendants accused of shaking infants and toddlers.

Recently, however, forensic medical experts have argued that this combination of injuries can occur due to falls, and even question whether shaking a baby is sufficient to cause fatal injury without other head trauma. In light of new medical evidence, attorneys across the country are calling years of shaken baby expert testimony into question, suggesting that prosecutors will not have as clear a path to conviction in this type of case in the future.

Senior Criminalist Angela Stroman Gave Testimony in DUI Case

Senior Criminalist Angela Stroman gave testimony about blood alcohol levels in a DUI trial against Michael Matthew Montoya in Yolo County, California.

The Crash

Michael Matthew Montoya was celebrating Davis’ Picnic Day 2015. He consumed 6 beers at the event and drove away in a black Honda that he later crashed. Montoya told Yolo County Sheriff’s Deputy Robert Harbaugh that his girlfriend had been driving, but she left the scene to get her father. Witnesses, however, said that she was not driving.

Deputy Harbaugh described Montoya as “unsteady, had bloodshot eyes and smelled of alcohol.” According to Deputy Harbaugh, when Montoya’s girlfriend arrived back at the scene, Montoya asked repeatedly to leave and made an attempt to walk over to her, pushing aside another officer who had arrived. After Montoya attempted to walk over to his girlfriend, he was handcuffed and placed in the deputy’s car.

Montoya claimed to have only consumed six beers at the event. By 3:53pm, Montoya’s blood alcohol level was 0.178 (reported in the linked press account as 1.78, a blood alcohol content that no living person could attain). Montoya was charged with a misdemeanor DUI along with enhancements for excessive blood alcohol levels.

DUI Law in California

In California, if there is no bodily injury or death caused by the DUI, the minimum sentence for a misdemeanor first conviction are fines and penalties of approximately $1,800, 48-hour jail sentence or 90-day license restriction, attendance and completion of a $500, three-month alcohol-treatment program, and loss of driving privileges for at least 30 days.

The maximum penalty for a first DUI conviction in California is a fine of $1,000, over $2,600 in penalties, six months in jail, a six-month license suspension (10 months if your blood alcohol level was 0.15{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} or more), having your vehicle impounded for 30 days, and being required to attach an “interlock” breath device to your vehicle that will not allow it to start if there is alcohol on your breath.

Montoya’s Trial

Montoya’s attorney, Deputy Public Defender Aram Davtyan, asked the jury to give Montoya the “presumption of innocence” and argued that his client had not been driving the car.

Montoya’s blood alcohol level was an issue at trial. In many DUI trials, attorneys question the accuracy of in-field testing processes. Angela Stroman was called as an expert witness on blood alcohol levels. Stroman is a Senior Criminalist with the United States Department of Justice.

Stroman explained how every individual is different and that many factors are taken into account when determining the stages of intoxication, “A lot depends on how much alcohol is in one drink, ounces and a person’s body weight, contents of the stomach and body chemistry…there are several factors we look at.”

Stroman explained that a blood alcohol of .04 is the first stage of intoxication and at this level, a person could drive home safely. Stroman testified that when a person’s blood alcohol level reaches .08, the majority of people will experience an impairment of vision, reflexes, judgment, and clarity. Stroman explained that sometimes a person’s blood alcohol level can rise over time because of the way that the alcohol is absorbed in the body.

Expert Witness Opines That Police Officers Violated Their Own Training in Fatal Shooting

An expert in police practices has testified that two Albuquerque officers violated their own training when they fatally shot a homeless man in 2014.

Shooting of James Boyd

On March 16, 2014, the Albuquerque Police Department was called to the Pierdra Vista area when neighbors noticed a suspicious man illegally camping in the foothills. The responding police officers found 38-year-old James Boyd, who was armed with knives and yelling angrily.

At one point, Boyd was walking down the hill and an officer set off a flash-bang grenade. The area was filled with smoke and a police dog rushed at Boyd. The officers yelled for Boyd to get on the ground and he reached into his pockets and pulled out what appeared to be two knives. Boyd was shot and killed during this standoff. Boyd was shot by stun gun, bean bag, and assault rifle rounds during the standoff. The lethal shots came from Officer Dominique Perez and Officer Keith Sandy.

Officers Perez and Sandy were charged with second-degree murder in connection with Boyd’s death. Perez was later dismissed from the Albuquerque Police Department. Sandy retired.

Attorney for Perez, Luis Robles has commented that charging these officers with murder will have a negative impact on the police department, “If you’re second-guessed every time you make a decision, and you might find yourself criminally charged, and if you second-guess yourself and you don’t take action, you might find yourself in a very dire predicament where you’re fighting for your life… I think everyone thought that by essentially going after (APD) you were going to make things better. Be careful what you ask for. If you break your police department, you will have that broken police department to protect you. And that’s a really unfortunate place to be when you need their help in a situation where you can’t help yourself.”

Trial for Murder

At the officers’ trial, special prosecutor Randi McGinn argued that the police officers created a dangerous situation during the standoff that led to the standoff. McGinn called police expert Jeffrey Noble to testify.

Noble testified that the police officers violated their training by shooting Boyd. Noble said that the officers had a plan to get Boyd to surrender. When that plan failed, the officers had the opportunity to reassess the situation and create distance between themselves and Boyd, but they failed to do so. Noble also said that the knives that Boyd had did not possess an immediate threat when he was shot.

Expert Witness Jeffrey Noble

Jeffrey Noble has 28 years of experience as a police officer, including his time serving as the Deputy Chief of Police of the Irvine Police Department. After his retirement from the Irvine Police Department, Noble served as a temporary Deputy Chief of Police for the Westminster, CA Police department where he facilitated the efforts of an independent oversight official, reviewed department policies and procedures, conducted department audits, and provided management and leadership to the department.

Noble has been retained as a police expert in over 100 cases in California, Texas, Washington, Florida, Georgia, Colorado, Oklahoma, Ohio, Kentucky, Pennsylvania, Connecticut, South Carolina, Tennessee, New York, Illinois, Arkansas, Idaho and Louisiana.

Blood Spatter Expert Witness Opines That Death Was Not a Suicide

An expert witness at the trial of a man charged with the murder of his girlfriend has opined that the death was not a suicide.

Deborah Hovestadt’s Death

Deborah Hovestadt died on July 7, 2014, in the home that she shared with her 30-year-old boyfriend, Darryl Taylor. Hovestadt was found in their home with a gunshot wound to her face and a firearm in her right hand. The weapon that was found at the scene was identified as a .44 Magnum Redhawk.

Taylor told the authorities that the two were not fighting when the gun went off and that Hovestadt did not know the gun was loaded. Taylor also said that Hovestadt had repeatedly accused him of cheating.

Taylor’s Trial

Taylor was charged with murder with a firearm specification and aggravated murder with a firearm specification. He was also charged with two separate weapons charges to which he entered a plea of no contest.

At Taylor’s murder trial, the prosecution’s expert witness, Alexander Jason, testified that, “This was a homicide with the physical evidence the way it is.” Jason is a certified senior crime scene analyst who lists himself as a qualified expert witness in: crime scene reconstruction, force science, shooting incident reconstruction, blood spatter interpretation, forensic photography, wound ballistics and forensic animation in Federal and State Courts (Alaska, California, Colorado, Florida, Maryland, Mississippi, Missouri, New Jersey, New York, Texas, Washington, & West Virginia.) Jason claims to have about 30 years experience in the field.

Jason testified that, based upon the gunshot residue and the blood spatter, the shot that killed Hovestadt was fired from more than 3 feet away. Jason also testified that it would not have been possible for Hovestadt to have held the gun in her hand more than 16 inches away from her face; this would preclude a suicide. Jason showed photos of tests that he conducted with a .44 Magnum. He opined that it had “an extremely strong recoil.” Jason also opined that he thought that the crime scene had been altered. Prosecutors argue that Hovestadt would not have been able to hold it in one hand as she was found at the crime scene.

Assistant Prosecutor Brandon Pigg conducted Jason’s direct examination. Jason testified that the lack of gunshot residue on Taylor’s hands was not significant and that he still could have fired the gun. He said, “It’s not a tattooing of the skin, an indelible marking like some people think.”

Defense attorney Jerry Thompson questioned Jason’s qualifications and his testing methods during cross-examination. Thompson pointed to Jason’s degree in journalism and the fact that he did not use the actual gun or the bloody blanket that was covering Hovestadt when he conducted his tests.

Jason responded that he did not think there was a significant difference between the gun that .44 Magnum that he tested and the one that was found at the crime scene. He noted that the gun that he tested was slightly heavier, but the barrel was the same length and he used the same brand of ammunition in his tests.

Northern Mariana Island Judge Denies Motion to Exclude Witness in Chinese Methamphetamine Case

In District Court for the Northern Mariana Islands, Chief Judge Ramona V. Manglona has denied the motion by the U.S. government to exclude the testimony of an expert witness in the trial of one of the three Chinese nationals who was charged for the shipment of 4.9 lbs. of methamphetamine worth $850,000 in December last year.

The Motion

Judge Manglona denied the motion without prejudice, which means that the U.S. government may renew the motion later, at the appropriate time. Judge Manglona ruled that the expert in question will be a rebuttal witness, and the court has yet to determine whether the prosecution witness will be permitted to give expert testimony. Judge Manglona stated that if the prosecution witness is permitted to testify, then the court will be inclined to allow a defense rebuttal witness.

The motion was filed by Assistant U.S. Attorney Garth R. Backe. Backe said the expert witness for the defense will testify that there is an explanation for the erratic driving behavior of the co-defendants in this case, Xi Huang and Shicheng Cai, as they are drivers from China and that defendant Zhaopeng Chen did not understand what Huang was doing.

Backe argued that the defendant’s notice fails to comply with the Rule 16 of the Federal Rules of Criminal Procedure, which requires a defendant to give prosecutors a written summary of any testimony that the defendant intends to use as evidence at trial. Backe argues the defendant’s summary has not complied with the requirement to describe the witness’s opinions, the bases and reasons for those opinions and the qualifications of the witness. Backe argued that the testimony of the expert witness would be improper and can be both powerful and misleading.

The attorney for plaintiff Chen, David G. Banes, replied that the defendant provided proper notice even though the U.S. government has not yet complied fully with Rule 16 about its experts, and that there is no legal basis or authority for the U.S. government’s demand that Chen be precluded from offering any testimony on the same topic as the U.S. government’s expert witness.

Other Defendants

Chen’s co-defendants, Huang and Cai, have already pled guilty. Huang was sentenced to 188 months of imprisonment. Cai has not yet been sentenced.

Banes said per discovery materials provided by the U.S. government, Huang denied Chen’s involvement in the conspiracy when he was given a chance to talk before his sentencing. Huang was alleged to be the leader of the group. Huang’s brother, Biao Huang, committed a similar crime in 2010 and was sentenced to 135 months in prison.

Chen, Huang and Cai were indicted for conspiracy to possess with intent to distribute methamphetamine over the shipment of 4.9 lbs. of meth worth $850,000 in Dec. 2, 2015.

Customs officers conducting a routine inspection at the Port of Saipan discovered the meth hidden in three plastic bags in one of nine 5-gallon paint buckets in a 40-foot container from Guangzhou, China, which led to the arrest of the three defendants.

DNA Expert in Casey Anthony Case Found Unqualified to Testify

Richard Eikelenboom, a DNA expert described by media sources as “prominent,” was barred from testifying in a recent trial. Although Eikelenboom has testified in several high-profile cases, the court decided to exclude Eikelenboom’s expert opinions in a sexual assault trial in Denver. The prosecutor and Eikelenboom have differing perspectives as to the reason for that ruling. Unfortunately, a transcript of the court’s decision reveals that the court did not explain its reasoning in barring Eikelenboom from testifying.

Eikelenboom’s History as an Expert Witness

Eikelenboom is perhaps best known for his work on behalf of Casey Anthony, who was acquitted of murdering her daughter Caylee in a well-publicized trial during 2008. The prosecution theorized that Casey Anthony rendered her daughter unconscious with chloroform, covered her mouth and nose with duct tape, and concealed her body in the trunk of her car for several days before disposing of it. The acquittal was widely attributed to “holes in the state’s forensic case,” including novel expert evidence that the defense condemned as “junk science.”

Eikelenboom was one of several experts who testified for the defense. Eikelenboom explained that a method could have been used in an attempt to create a DNA profile of the killer, despite the difficulty of recovering DNA from duct tape after the tape had been exposed to water for several months. The implication of Eikelenboom’s testimony was that the police and prosecutors did not do all they could have done to find or rule out the presence of Casey Anthony’s DNA on the duct tape.

Eikelenboom was also a key witness in the Tim Masters trial. Colorado police detectives clearly botched the investigation of Peggy Hettrick’s abduction and murder. The police destroyed physical evidence that might have yielded forensic clues to the killer’s identity. Instead of conducting an impartial investigation, the police focused on proving the guilt of Masters, a 15-year-old boy who saw the body but had no motive to commit the murder.

Twelve years after Hettrick’s death, Masters was convicted of her murder, largely on the basis of a psychologist’s expert opinion that Masters’ artwork was proof of his guilt. Twenty years later, Richard Eikelenboom and his wife, working from their lab in the Netherlands, were able to create a DNA profile from skin they discovered in the lining of the victim’s panties. The DNA could not have come from Masters. Combined with new evidence that had been withheld from the defense during Masters’ trial, Eikelenboom’s analysis made a convincing case of Masters’ innocence. The prosecution eventually conceded that Masters should be freed from prison.

The Court’s Ruling in the Abraha Trial

Eikelenboom’s most recent case involved a sexual assault accusation against Maicle Abraha. Eikelenboom was asked to testify as a defense expert at Abraha’s trial in Denver District Court. The prosecution objected to Eikelenboom’s qualifications. According to prosecutors, the court found that Eikelenboom committed “fundamental DNA analysis errors by not following scientific standards in the DNA field.”

A statement released by the Denver District Attorney’s Office claimed that Eikelenboom admitted during cross-examination that he “had no direct DNA extraction or analysis experience, that he operates a lab that has not been accredited, that he personally failed his basic proficiency tests in 2011 and 2012, and admitted that he was ‘self-trained’ in running DNA profiles.” A transcript of the court’s ruling, however, offers scant support for those claims.

Rejecting both the Frye and Daubert standards of expert testimony admissibility, the Colorado Supreme Court has instructed judges to focus on the reliability and relevance of proposed expert testimony. How the judge applied that standard to Eikelenboom’s testimony is unclear. The transcript reveals that the judge did not explain his determination that Eikelenboom was not qualified to testify.

Eikelenboom’s Response

Eikelenboom calls the District Attorney’s statement “completely unfounded.” He contends that prosecutors were “lying when they say I don’t do my own DNA work.”

Eikelenberg complained that the prosecutor did not let him finish his answers and that the judge was confused. Eikelenboom told the press that he has been accredited by the Dutch National Accreditation Council for years. He also said that he was just accredited by the American Society of Crime Lab Directors (ASCLD), although he received that accreditation after he testified.

Eikelenboom theorized that the Denver prosecutors wanted to discredit him in retaliation for work that exposed Tim Masters’ wrongful conviction. An attorney who used Eikelenboom’s expert opinions to overturn the wrongful conviction of David Camm notes that Eikelenboom’s testimony was more nuanced than the prosecutor’s statement reveals. The attorney suggests “that the Denver prosecutor, having obtained a favorable ruling under Colorado law, now seeks to demean Richard nationally.”

Eikelenberg’s Qualifications

Eikelenberg testified as an expert 19 times in the United States and 30 times in Holland before he was called to testify in the Denver case. Every court in which he testified determined that he was qualified to render expert opinions. He said that he has worked with DNA for 20 years.

The prosecution’s claim that Eikelenberg “had no direct DNA extraction or analysis experience” is apparently based on his testimony that he did not do extraction or analysis while he was working for the national lab in the Netherlands prior to 2005. He testified, however, that his job as a reporting officer involved examining the results prepared by lab analysts and deciding whether the results of a DNA profile “matched” the profile of a criminal suspect. He also testified that labs in Holland commonly separate the work done by analysts from the work done by reporting officers, but that reporting officers need to be qualified as analysts in order to do their jobs. Finally, he testified that he began doing his own extraction and analysis after starting his own company in 2005. None of that testimony was disputed.

Eikelenberg testified that his current lab has three DNA scientists and two more in training. He also testified that a senior scientist validates all of the lab results. Eikelenberg denied that he failed any proficiency tests and the prosecutor presented no evidence to challenge that denial. Eikelenberg testified that the lab was ISO accredited and that ASCLD accreditation was pending, but he also testified that the DNA analysis was performed in his lab in the Netherlands, which was accredited by local authorities.

Nothing in the transcript remotely supports the prosecutor’s claim that Eikelenberg made “fundamental DNA analysis errors.” The prosecutor’s complaint that Eikelenberg was “self-trained” is a stretch (Eikelenberg testified that he was trained in Holland’s national lab), but given his years of experience in the field, the level of his training should go to the weight a jury would give to his opinion, not to the admissibility of that opinion.

Eikelenberg’s Future as an Expert Witness

It is odd that the testimony of an expert who was deemed to be qualified in a number of other cases was excluded in the Denver trial. Unfortunately, the reason for the judge’s ruling is far from clear. The exclusion of Eikelenberg’s expert testimony without explanation might furnish Abraha (whose trial ended in a conviction) with grounds for appeal.

The judge’s ruling in the Denver case may be an aberration, or it may give prosecutors a roadmap for excluding Eikelenboom from testifying as an expert in future cases. No suggestion has been made that Eikelenboom’s testimony in past cases was unreliable, and in some of those cases, the prosecution conceded that his opinions established that an innocent defendant had been convicted. It seems likely, therefore, that Eikelenboom will be allowed to testify as an expert in future cases, but only if attorneys take care to make a clear record of his qualifications to testify as an expert witness.

High Profile Forensic Expert Witness Rejected due to Questionable Qualifications

A DNA expert witness who has testified on behalf of defendants in several high profile trials was dismissed from a Colorado courtroom for being unqualified. The expert’s dismissal could result in attorneys being less likely to use him, however, he argues the judge’s decision to denounce his qualifications was made in error and his expert testimony is scientifically validated.

High Profile Expert Witness Dismissed from Colorado Trial

Richard Eikelenboom is a forensic scientist who has testified as a DNA expert witness in several high profile trials across the country, most notably on behalf of Casey Anthony who was acquitted by a Florida jury in 2011 on all charges stemming from her 3-year-old daughter’s death. Eikelenboom took the stand in the Casey Anthony trial as a DNA expert, and told jurors that there was not sufficient forensic evidence to connect Anthony to her daughter’s death. His DNA expert testimony contributed in part to her acquittal, and Eikelenboom has been called as a forensic expert for several years in trials across the country.

Last week, Eikelenboom’s reputation and position as a DNA expert witness suffered a significant blow when a Denver judge discredited his qualifications to testify about forensic evidence in court. During testimony in a 2013 sexual assault case, the judge presiding over the trial found that Eikelenboom had committed serious errors in his DNA analysis by failing to follow proper scientific standards set by other professionals in the field. According to prosecutors in the case, Eikelenboom admitted on the stand that he did not have experience directly extracting or analyzing DNA, that his lab is not properly accredited, and that he himself failed proficiency tests in 2011 and 2012.

After hearing about flaws in Eikelenboom’s analysis and proficiency level, the Denver judge rejected his testimony by finding he was unqualified to take the stand. Since being dismissed as an unqualified expert, Eikelenboom has attempted to dispute the judge’s conclusion and offer assurances that his forensic expert testimony is built on sound principles and methods.

Debunked Expert Witness Defends Qualifications

Speaking to the media after being dismissed from testifying as a forensic expert witness, Richard Eikelenboom attempted to address the accusations that he does not produce reliable DNA analysis. Calling the claims that his methodology is fundamentally flawed “completely unfounded,” Eikelenboom told reporters that the prosecutors manipulated his responses in order to paint an inaccurate portrayal. According to Eikelenboom, the trial judge did not completely understand his work or his qualifications, and therefore made the decision to reject his testimony without all of the relevant facts.

Eikelenboom also pointed out that his lab has received accreditation from two separate professional organizations, including the American Society of Crime Lab Directors (ASCLD). Additionally, some of the disputed DNA testing which prosecutors used as proof that he was not qualified was conducted decades ago, and Eikelenboom maintains that he has received the proper training and education to act as a forensic science expert witness. He also told the press that his professional name and reputation has been slandered, and announced intentions to contact a lawyer.

Forensic Expert’s Dismissal Could Limit Future Opportunities

Prior to last week’s challenge to his professional reputation, Eikelenboom testified in several criminal trials, several of which resulted in defendants being acquitted of fairly serious charges. In addition to Casey Anthony, the forensic expert was called by former Indiana State Trooper David Camm who was acquitted of killing his wife and children, and helped overturn a murder conviction of Tim Masters, a Colorado man who spent more than 20 years in prison before DNA analysis conducted by Eikelenboom’s lab was used to exonerate him. While none of the past work can be impacted by last week’s decision, Eikelenboom’s future as an expert witness may be in jeopardy.

Forensic science expert witnesses are widely used in criminal trials across the country, and competition for the opportunity to testify as an expert can be significant. Experts rely on their professional reputation in order to market their skill set, and Eikelenboom’s recent dismissal will likely impact his opportunities going forward. Attorneys will be hesitant to hire an expert whose qualifications have been questioned, even if the expert has testified successfully in high profile cases.

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