Category Archives: Expert Opinions

Psychology Expert Witness Testifies in Alabama Child Sex Abuse Case

Defense attorneys for an Alabama man convicted of sexually abusing a child younger than 6 have presented a psychology expert witness during the sentencing hearing in an effort to avoid a conviction for life without parole.  With hopes of persuading the judge to place the convicted defendant to a program for sex offenders rather than prison, the expert argued the man’s personal history and mental state warranted a more lenient sentence.

Alabama Man Convicted of Child Sex Abuse

Emanuel Yarbrough, 34, was convicted in August for first-degree sodomy and first-degree sexual abuse for sex acts he perpetrated on a 5-year-old-girl.  A former missionary, Yarbrough argued throughout his defense that he did not clearly remember the act or recognize that he was having sex with a child.  Yarbrough argued that he did not engage in the sexual activity in the Alabama County where he was ultimately convicted, and told jurors that he couldn’t differentiate between the young girl and his wife. Yarbrough went on to state that the girl did not tempt him, and was confused during the times that he allegedly committed the acts.

Prosecutor Jayme Amberson wasted no time in pointing out inconsistencies in Yarbrough’s account, and reiterating to the jury that several witnesses – including the victim – testified that the sex acts happened frequently and in the county where Yarbrough stood trial.  Jurors needed just 25 minutes to return with a guilty verdict, setting up a sentencing hearing where Yarbrough’s attorneys turned to a psychology expert witness in an attempt at earning their client leniency.  Alabama law requires any defendant convicted of sexual abuse with a child under 6 to be sentenced to life without parole, but Yarbrough’s defense team is hoping that an expert analysis of his psychological state of mind will convince the judge that a sex offender program is the more appropriate punishment.

Convicted Sex Offender Turns to Psychology Expert Witness

During the sentencing hearing for Emanuel Yarbrough, his attorneys called forensic psychologist Frankie Preston to testify on the findings of a psychological survey he conducted on the defendant while he was in jail.  According to Preston, the tests he administered Yarbrough are designed to determine his degree of mental stability at the time of his crime.  During his expert testimony, Preston told the court, “Mr. Yarbrough endorsed experiencing symptoms that were indicative of five of those psychiatrically coined diagnoses — major depressive disorder, post-traumatic stress disorder, obsessive compulsive disorder, generalized anxiety disorder, and somatization disorder.”

Preston went on to testify that the mental disorders Yarbrough suffered had their origins from his family history of abuse which featured similar crimes committed by his father and brother.  Further, in Preston’s expert opinion, Yarbrough likely exhibited the symptoms prior to his incarceration during the time when he committed his sexual crimes.  Tests also showed that Yarbrough was sexually attracted to adult females and older teenage girls, which is not considered abnormal according to Preston.

During cross examination, Preston suggested that Yarbrough may be eligible to complete a program that he runs for sex offenders which provides treatment before releasing them back into society.

Judge to Mull Prison or Sex Offender Treatment in Alabama Child Sex Abuse Case

Although the mandatory penalty for committing  sex offense against a child younger than 6 in Alabama is life in prison without possibility of parole, Emanuel Yarbrough’s attorneys have argued that the punishment is unconstitutionally harsh, and that their client is better suited for a treatment program operated by their forensic psychology expert witness.  During questioning about the programing, the expert Frankie Preston admitted that some offenders have re-offended afterwards, but that he and his staff engage in regular follow-ups to minimize post-treatment sex crimes.

The judge will weigh the nature of Yarbrough’s crimes against the psychological factors discussed by the defense expert witness to make a final sentencing decision in the coming days.

Boston Nanny Freed After Expert Witness Report Disputes Cause of Infant’s Death

An Irish woman in Boston who was accused of causing the death of a child under her care earned relief last week when prosecutors dropped all charges against her due to medical expert witness reports that cast doubt on the infant’s cause of death.  Although the child’s death was initially ruled a homicide by medical examiners, expert witness analysis cast sufficient doubt into the cause of death determination that the defendant was released from custody and cleared of wrongdoing.

Irish Nanny Jailed for Causing Death of Infant

Aisling Brady McCarthy, now 37, was arrested in January, 2013 for allegedly causing the death of a one-year-old Rehma Sabir who was under her care.  McCarthy, an Irish national living in the US, was the girl’s nanny when the child died of apparent head injuries shortly after her 1st birthday.  According to prosecutors, the girl suffered from hemorrhaging and swelling of the brain and had evidence of multiple bone fractures.  Police also found blood stained baby wipes, blankets, and pillows in the child’s bedroom during the course of their investigation.

McCarthy was jailed immediately after her arrest, and has spent the past two years behind bars awaiting trial for murder.  Shortly after the investigation into Sabir’s death, a Massachusetts medical examiner examined the evidence and ruled the child was a victim of homicide.  According to the examiner, Sabir showed signs of shaken baby syndrome – which pointed police and prosecutors to her nanny.  McCarthy was arrested and formally charged with murder despite her insistence of innocence.

During the past two years, attorneys for McCarthy have worked to gather expert witness analysis of Sabir’s death in an effort to convince prosecutors that the infant suffered from severe medical complications that suggest the cause of death was accidental rather than intentional. 

Prosecutors Drop Case against Boston Nanny after Reviewing Expert Witness Reports

After more than two years of investigation, the office of the Massachusetts medical examiner was provided with expert witness reports submitted by medical experts who reviewed Sabir’s death and cast doubt on the conclusion that the child died by the defendant’s actions.  According to the expert witness report, Rehma Sabir had a history of bruising and was prone to easy bleeding when exposed even to relatively minor trauma.  The expert medical report submitted to prosecutors and the state examiner suggested the child may have had an undiagnosed disorder which caused her death.

After reviewing the expert reports, the medical examiner words were included in the prosecutors statement to the press, “Given these uncertainties, I am no longer convinced that the subdural hemorrhage in this case could only have been caused by abusive/inflicted head trauma, and I can no longer rule the manner of death as a homicide … I believe that enough evidence has been presented to raise the possibility that the bleeding could have been related to an accidental injury in a child with a bleeding risk or possibly could have even been a result of an undefined natural disease.”

Given the medical examiner’s change of opinion on Rehma Sabir’s death, state prosecutors dropped all charges against Aisling McCarthy.

 

New Hampshire Prep School Case Features DNA Expert Witnesses

The high profile rape trial of a former prep school student ended without a rape conviction despite DNA evidence presented last week by forensic expert witnesses called by prosecutors to connect the defendant to his alleged crime.  While jurors were unwilling to convict the defendant of rape, they found the DNA to be enough to issue a guilty verdict in the lesser charge of having consensual sex with a minor.

Prosecution Presents Evidence in Prep School Rape Case

Prosecutors in New Hampshire rested their case against Owen Labrie, a graduate of the state’s elite prep school St. Paul’s who was accused of raping a 15-year-old female classmate prior to his graduation.  During the prosecution’s case, Concord Police Detective Julie Curtin, who investigated the case, took the stand to tell the jury that Labrie had admitted to consensual touching and kissing, and told police that he had prepared for intercourse by putting on a condom.  However, Labrie denied he had sex with, or raped, the alleged victim.

Several witnesses present at the scene of the alleged assault testified for the prosecution, but the most compelling evidence of Labrie’s involvement with the teenager came from a forensic expert witness who connected the defendant’s DNA to the victim’s underwear.

DNA Expert Witnesses Connect Defendant to Alleged Victim

In wrapping up its case against Labrie, the prosecution called two criminalists from the New Hampshire State Police Laboratory to serve as forensic expert witnesses.  Kevin G. McMahon testified first and told jurors that in his expert opinion, DNA testing found on the alleged victim’s underwear suggested a “strong indication of semen” that was connected to the defendant.  McMahon’s expert testimony was supported by criminalist Kate Swango who performed tests on the girl’s underwear.

According to Swango, her testing demonstrated that Labrie’s DNA was present on the underwear “to a reasonable degree of scientific certainty.”  The prosecution expert witnesses combined to argue that Labrie’s DNA sample, which was likely semen, was present on the young girl’s undergarments.  According to prosecutors this evidence, combined with the girl’s testimony that she did not consent to the sexual encounter, demonstrated a case for rape.

DNA Expert Witnesses Fail to Secure Rape Conviction

Defense attorneys for Labrie took both of the prosecution expert witnesses to task for concluding that the DNA found on the underpants was, in fact, semen and not some other liquid such as saliva or sweat.  Under testimony Swango, after consulting her and McMahon’s notes, admitted that the expert witnesses had not determined the exact source of the defendant’s DNA.  Calling the expert testimony into question, attorneys for Labrie argued to the jury that the young man had engaged in some consensual sexual activity, but had not had intercourse with the girl or acted against her stated will.

After all the evidence was presented, jurors issued a compromise verdict that declined to find Labrie guilty of rape, but did determine that he did engage in sexual activity with a girl who was below the age of consent.  Given the result of the trial, it appears that the jurors placed more emphasis on the uncertainty of the situation as told by the victim and defendant than on the forensic evidence discussed by the prosecution’s expert witnesses.

False Confession Expert Witness Denied in Virginia Murder Trial

A Virginia judge has recently denied a request for a false confession expert witness by a woman on trial for murder who alleges she was coerced by police into admitting to the crime.  While the refusal to admit a false confession expert is not unusual given the judiciary’s reluctance to embrace social psychology experts, the case is noteworthy in that it represents the continued efforts by attorneys to embrace experts who explain behavior in legal situations.

Virginia Women Confesses to Murder Charges

Janice Burney Widenor, 52, of Greensboro, NC was arrested in July of this year on charges that she murdered 70-year-old James Austin and entombed his remains inside the walls of a house the two shared in Virginia at the time of the murder.  According to prosecutors, Widenor murdered Austin and concealed his body in 2011, leaving it hiding until it was discovered earlier this year.  After her arrest, Widenor progressed through a number of stories about Austin during her interrogation; first telling officers the man had left several years ago, then saying that he died of natural causes and she hid the body to avoid prosecution for aiding a fugitive, to finally agreeing to tell officers that she smuggled Austin with a pillow to ease suffering he experienced from an illness.

After her confession was signed, Virginia prosecutors used it as the foundation of a first degree murder case against Widenor.  Because Austin’s body was concealed in concrete for several years prior to its discovery, forensic evidence that would otherwise explain the cause of death or connect Austin’s killer to the crime has eroded to the point where there is little physical evidence tying Widenor to the crime.  With the confession the centerpiece of Widenor’s murder trial, her attorneys have sought to attack police interrogation tactics in an effort to diminish the value of the state’s primary evidence.

Virginia Defendant Seeks False Confession Expert Witness

In an effort to reduce the impact of her confession to the killing of James Austin, Janice Widenor’s attorneys requested that they be permitted to present testimony from an expert witness that indicated the circumstances of the confession cast doubt over its authenticity.  According to Widenor’s attorneys the police used what is known as a “Reid Technique” which wears down a suspect via lengthy interrogation sessions that are designed to elicit confessions.  Widenor was interrogated for a total of 10 hours over the course of two days before finally capitulating to the police officer’s suggestion that she killed Austin with a pillow and hid his body in concrete.

Widenor’s attorneys requested that an expert witness be allowed who would tell the court that when an interrogation lasts longer than two hours fatigue and feelings of helplessness cause suspects to say things that are unreliable simply to get out from a stressful situation.  According to false confession experts like the one Widenor sought to present, aggressive and lengthy police interrogations can steer suspects towards a desired confession even if they did not commit the crime.  Widenor’s attorneys submitted a motion requesting they be allowed to present this information to the jury so the confession evidence could be viewed in a more appropriate light.

Judge Denies Request for False Confession Expert Witness

Widenor’s attorneys were forced to issue the request because she is considered an indigent defendant who does not have the money to pay for her defense.  Indigent defendants are permitted expert witnesses at the state’s expense only if the trial judge determines that the expert is absolutely necessary to adequately mount a defense against the charges.  The judge in Widenor’s case heard arguments from both sides on the issue of a false confession expert witness and rejected the defense’s motion saying that there did not appear to be a “particular need” for one.

The legal community and the behavioral psychology community have become increasingly entangled in recent years with attorneys looking to psychologists to act as expert witnesses in false confessions, eyewitness testimony, and other fields that inform how legal actors behave when confronted with police investigations.  Although Janice Widenor was not successful in demonstrating the need for a false confession expert witness in her case, the increased efforts to incorporate behavioral science expert testimony into criminal cases will create future opportunities for these experts to speak about their research during trial.

 

 

What Makes a Medical Examiner a Credible Expert Witness?

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

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

Qualities that make a medical examiner’s testimony credible

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

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

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

Qualities that make a medical examiner’s testimony doubtful

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

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

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

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

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

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

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

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

Police Tactics Expert Witness Testifies in Trial of North Carolina Officer who Killed Unarmed Suspect

A North Carolina police officer accused of excessive force in the shooting death of an unarmed black suspect in September of 2013 called an expert witness in police tactics to bolster his defense before closing arguments.  The defense expert was called to counter testimony from prosecution expert witnesses who explained that the officer used unreasonable force when he deployed his firearm.  The jury will deliberate this week to determine if the officer is guilty.

Prosecutors in North Carolina Police Shooting Argue Excessive Force

On September 14th, 2013 Jonathan Ferrell, a black resident of North Carolina, crashed his car on a dark patch of road in eastern Charlotte.  Ferrell walked to a nearby house to ask for aid, but the homeowner called 911 to report a possible burglary.  Police responded to the scene minute later, and without approaching or verbally addressing Ferrell one officer fired a Taser shot at him.  After the Taser shot missed, Officer Randall Kerrick opened fire with his pistol hitting Ferrell 10 times and killing him.

Kerrick was subsequently suspended from the police force, arrested, and charged with using excessive force to cause Ferrell’s death.  Prosecutors have argued throughout the trial that Kerrick had no reason to resort to lethal force in addressing the potential suspect, and that his use of a firearm was unnecessary and criminally excessive.  As part of the prosecution’s case, police captain Mike Campagna testified as an expert in the department’s use of force training and procedures by telling jurors that Kerrick should have turned to non-lethal force in an effort to subdue the suspect.

Prosecutors largely ignored the racial component of the trial (Kerrick is white while Ferrell was black), instead focusing on the fundamental principles of police use of force in situations like the one Kerrick faced.  Arguing that the officer inappropriately resorted to using his gun, state attorneys told jurors in closing arguments that lethal force was uncalled for and excessive to the point where Kerrick deserved a conviction.

Defense Attorneys for NC Police Officer Call Use of Force Expert Witness

Throughout the trial, Kerrick’s attorneys have argued that the officer was justified in using deadly force because he had reason to feel threatened by Ferrell.  Showing jurors the dented front door of the house that Ferrell had pounded on and pointing out that the suspect, who was a former football player and physically intimidating, had been intoxicated at the time of the incident, Kerrick’s lawyers painted a scene where Ferrell was threatening and approaching the officers with apparent intent to harm them.  The defense argued that Kerrick’s belief that he needed to use deadly force was reasonable given the circumstances the officer found himself in.

To bolster justification for Kerrick’s actions, defense attorneys called Dave Cloutier who is a police training expert witness with knowledge of proper police use of force procedure.  According to Cloutier, Kerrick’s decision to deploy deadly force to subdue Ferrell was consistent with the department’s training.  Cloutier has been an instructor to North Carolina police, and pointed out during his testimony that the evidence suggested Ferrell was running towards the officers at the time of the shooting.  According to Cloutier’s expert opinion, a suspect running at an officer with apparent intent to injure him would justify use of deadly force.

Police scientist Eve Rossi was called as a DNA expert witness to conclude the defense’s case by testifying that Ferrell’s DNA was found on Kerrick’s gun and Kerrick’s DNA was found under Ferrell’s fingernails.  Taking the testimony of its lead expert witnesses together, defense attorneys argue that the physical evidence supports Kerrick’s position that Ferrell was approaching him with possible intent to take his weapon which justified use of deadly force by the officer.  The testimony of these two expert witnesses for the defense is likely to play a significant role in the jury’s verdict that will be announced later this week.  If convicted, Kerrick faces up to 11 years in prison for the shooting.

 

An Expert’s Take on Counterfeit Coins

The concept of money has been used for many thousands of years. In ancient China, shells were accepted as currency. Some 5,000 years ago, Mesopotamians had a rudimentary banking system where people could “deposit” grains, livestock and personal valuables, for both safe keeping and trade.

The first coins, as we know them today, first appeared about 600 B.C. in Lydia, a kingdom in ancient Greece and now part of modern day Turkey. They featured the stylized head of a lion and were made of electrum, a natural alloy of gold and silver. This led to expanding trade networks with relative ease.

The inauguration of coins had an important impact on society. Within a few decades, the countries and city-states in the Mediterranean, mostly adopted the Lydian experience. Now, coins were made of either gold or silver. In short order, Athens, Aegina, Corinth and Persia developed their own uniquely designed coins. Often designs reflected religious, cultural values, heroes and animals that were important to the local culture. Eventually, especially in Europe, standardization of weights and measures of different monetary systems, were now formalized.

There is a standard joke concerning coins. The day after coins were invented, counterfeiting began. Why work for a living? Just duplicate what governments were doing and get rich quickly. When counterfeiters were caught, sovereign governments treated them very harshly. There are known instances where the hands of counterfeiters were cut off – clearly a warning to others who might be considering that line of work.

Black Sea Counterfeit Coins

The threat of counterfeit ancient coins on a large scale is an on-going concern to both dealers and collectors. A disproportionate number have been found at the Black Sea. In late 2003 and early 2004, a hoard was supposedly unearthed in the modern day nation of Bulgaria.  There were approximately 300 coins. They were offered to a very reliable dealer of unquestionable integrity. He then purchased them from one of the major U.S. coin companies. What must be emphasized repeatedly is that every dealer that was involved in the dispersal of this hoard has the highest standards of ethics and professionalism in the profession. Yet, all were deceived.

Initially, because of the variety of dies, the metal quality and surfaces, no one had any doubts that this hoard was real. The hoard was recently dug up out of the soil. This led to the conclusion there was no doubt about the “realism” of these coins. Once the surface dirt was removed, there was no doubt to the authenticity. However, in a few days, phone calls from Europe indicated that there were questions regarding the authenticity of the hoard. With the accumulation of information, the conclusion became crystal clear. Everyone involved with these coins were victims of a very clever, deceptive counterfeiting scheme.

Another example of a Black Sea hoard occurred in the early part of the 21st century. These fake coins were produced by casting. The initial process was followed by an additional electro galvanic silver plating for further surface shaping. When completed, an artificial patina was applied. It was very easy to be mislead if you looked at these fake coins without using a magnifying glass at least seven time magnification. The weight and appearance of these fakes were fairly exact copies of the genuine ones.

GREECE

In my family, a cousin decided to sell her aunt’s forty eight (48) “Ancient Greek” coins and I was tasked with the job. Over a three-month period, several different ancient coin specialists analyzed and examined the coins and in every case, deemed all forty-eight coins counterfeit. As the specialists explained, these modern fakes were made in local garages. The coins were put into polluted water for several months to give them an “aged” look. After removal, the coins were dried and sold to gullible tourists. My cousin was devastated when she learned that her aunt and uncle spent a considerable sum for modern fakes.

AMERICAN COUNTERFEIT GOLD COINS

In the October 10, 2010 edition of Coin World, there was a lengthy article concerning fake American gold coins. Here is what was disclosed: “Counterfeits are known for every regular issue United States gold coin from dollar through $20 double eagle.” The article further points out that the fakes have become more sophisticated. To this day, the major threat is the fabrication of American gold coins in China. Unfortunately, some have been sold on ebay.

CHINA FAKES

In the last few years, China has been producing a substantial number of fake American coins. In its January 2009 edition Coin World, had a comprehensive article about the enormity of this situation. “How deceptive are the Chinese made counterfeit coins entering the U.S. market via ebay?”

This is an on-going problem; producing American fake coins is legal in China as well as a sore point between the two countries. Not only are fake coins being produced in China, but also fake coin holders (known as “slabs”) and fake certification labels matching information found on proper labels.

Counterfeit US coins was also the subject of an August 28, 2009, the COIN DEALER newsletter page one article. It explained how American 19th century coins were reported by Chicago area dealer. The article concluded: “There is no single greater threat to the long term health of the hobby than an influx of counterfeit US coins entering into the marketplace.” Today’s technology can make counterfeiting lucrative.

COUNTERFEIT EUROS

Counterfeit coins are not only for coins made in yesteryear, but those minted today as well. Within the last year, the Independent carried the following headline: “Discovery of largest ever stash of fake Euro coins sparks fears the British two pound coin could be next”.  The article stated that the discovery of 500,000 Euros worth of fake Euro coins from China sparked concern that the British two pound coin could be also forged in China as well. One of the main concerns is that these fake coins are likely to be accepted in vending machines.

CONCLUSION

Caveat Emptor, Buyer Beware. Counterfeiting is a continuous and costly problem. Not only have coins been illegally reproduced, so has currency, furniture, sports cards, just to name a few.

Experts Battle in Tennessee Lethal Injection Case

Lawyers representing 33 death row inmates in Tennessee are turning to expert witnesses to argue that lethal injection is an unconstitutional method of execution due to the risk of severe pain and lingering death created by the state’s drug cocktail.  Attorneys for the state called counter experts to refute the plaintiff’s claim, causing the high-profile trial over the use of lethal injection in Tennessee to turn into a battle of the experts whose testimony will prove critical to the outcome of the case.

Tennessee Death Row Inmates Use Experts to Challenge Lethal Injection

There have been several challenges to the lethal injection system over the past few years in which inmates allege the process is unconstitutionally cruel because of the pain suffered during execution.  While the Tennessee inmates challenging the state’s execution process similarly cite the high risk of suffering as a reason to ban lethal injection, they are also claiming that the drug cocktail creates a risk of lingering death.  According to the lawsuit, Tennessee’s lethal injection drug mixture risks an overdose of sedatives which can put the inmates into a death-like coma for hours before killing them.

According to two expert witnesses testifying on behalf of the plaintiffs, the negative consequences of the coma-like lingering death that inmates suffer can become severe if the condemned is either resuscitated or spontaneously re-awakes.  During the trial, a resuscitation expert witness testified to the court that it is possible to revive an inmate who has been administered the lethal drug cocktail, sometimes ½ hour or more after it had taken effect.  Another expert witness for the plaintiffs who specializes in anesthesiology testified that it is possible that the inmate spontaneously recover despite being given a lethal dose of the drug cocktail Tennessee uses.

While a recent Supreme Court decision ruled that a lethal injection cocktail does not need to avoid causing inmates pain, the plaintiffs’ efforts to use expert witnesses that caution about the possibility of post-injection revival is a unique challenge to Tennessee’s execution process.  Attorneys for the state reached to expert witnesses to refute that position, setting up dueling expert opinions, particularly on the idea of spontaneous recovery.

Tennessee Attorneys Call Expert Witness to Defend Lethal Injection Process

In response to experts for death row inmates warning of the risk of revival post-lethal injection, attorneys for Tennessee called an expert witness to testify about the relatively pain-free and final death provided by the state’s lethal injection drugs.  According to Dr. Feng Li, a medical examiner called as an expert witness, the drug cocktail used by Tennessee contains a sufficiently high dose of the sedative pentobarbital to render the inmate unconscious within seconds.  Dr. Li went on to testify that once the inmate was unconscious he or she would not feel any pain and not revive later because the dosage of the drug would be sufficient to cause death within minutes of its administration.

Dr. Li’s expert testimony directly contradicted the opinions of the plaintiff’s experts, leaving the Tennessee Court with the task of weighing evidence provided by both sets of experts in order to determine whether the risks alleged by the plaintiffs are credible enough to prevent the state from carrying out further executions under its current process.  Executions in Tennessee have been on hold for more than five years as the state’s courts and legislature have debated solutions to the rising unavailability of traditional lethal injection drugs.

Tennessee legislators have debated changing the three drug cocktail to a single drug, and reinstating the electric chair as a back-up method of execution, but so far no final decision has been made.  Tennessee joins a number of states that have been confronted with procedural challenges to lethal injection as pharmaceutical companies withhold the necessary drugs.  Utah and Oklahoma have responded by reinstating alternative methods of execution – firing squad and gas chamber, respectively – and should the Tennessee Court rule in favor of the plaintiffs in this case lawmakers would be forced to consider similar measures or abandon the death penalty altogether.

Proposed Expert Testimony Rejected in Child Pornography Case

The United States Court of Appeals for the First Circuit affirmed a defendant’s conviction of possessing child pornography after rejecting his argument that the District Court should have allowed his expert witness to testify. The decision, United States v. Gerald J. Silva, essentially holds that the jurors were just as capable as the expert of recognizing pornography when they saw it.

Facts of the Case

After shutting down a website that was distributing child pornography, Canadian authorities seized the website owner’s business records and provided them to the United States Postal Inspection Service. Gerald Silva’s name and address appeared in those records. After his home was searched, Silva was charged with and convicted of six counts of receiving child pornography and one count of possessing child pornography.

Silva was one of 348 customers of the website to be charged with a crime. They included “six law enforcement officials, nine religious leaders, 40 school teachers, three foster parents, 32 children volunteers and nine health professionals.”

Ironically, Silva worked as a Rhode Island state probation officer assigned to supervise sex offenders. Silva claimed that he ordered videos from the website for professional reasons.

Meaning of Child Pornography

Federal law defines child pornography as including any visual depiction of a minor engaging in sexually explicit conduct. A federal statute defines “sexually explicit conduct” to include the “lascivious exhibition of the genitals or pubic area of any person.”

The requirement of a “lascivious exhibition” is important. It protects parents from prosecution who take photographs of their children taking a bath or playing in the nude. The word “lascivious” generally has the same meaning as the word “lewd,” but neither term is self-defining.

Federal courts generally agree that a “lascivious exhibition” of genitals occurs when the genitals are the focal point of an image. A video of a child touching his or her genitals, a photograph that shows a close-up view of genitalia, or the image of a child in a sexually suggestive pose will generally be regarded as lascivious. On the other hand, a more distant photograph of a nude child whose legs are pressed together and who is swinging on a swing set probably will not be considered lascivious.

The Proposed Expert Testimony

Some images fall into a gray area between pornographic nudity and permissible nudity. In particular, whether a pose is innocent or sexually suggestive is often a matter of opinion. Silva’s attorney hoped to exploit that gray area by using an expert witness to bolster the contention that certain images were not pornographic.

Silva’s lawyer proposed to call John Leo, a retired Professor of English at the University of Rhode Island, as an expert in film and video. Professor Leo would have testified that the settings for the videos were not sexually suggestive. Leo would also have testified that the children’s poses and conduct were not sexually suggestive.

The Legal Test

Federal courts follow Rule 702 of the Federal Rules of Evidence in deciding whether expert testimony should be admitted in a federal trial. Rule 702 allows a court to admit expert testimony if the testimony:

  • would help the jury understand the evidence or decide a fact that is important to the verdict;
  • is based on sufficient facts or data;
  • is the product of reliable principles and methods; and
  • is based on a reliable application of those principles and methods to the facts of the case.

The first question was at issue here: whether Professor Leo’s opinion would have helped the jury understand whether the videos constituted child pornography.

The Decision

The court of appeals held that Professor Leo was in no better position than the jurors to form an opinion about the videos. He did not purport to have an opinion of the videos’ artistic merit or of the reason a buyer would want to watch the videos. He did not suggest that he knew why the producer of the videos created them.

According to the court of appeals, the jurors were just as capable as Professor Leo of watching the videos and deciding whether the conduct and poses that they depicted were sexually suggestive. For that reason, Professor Leo’s opinion was not deemed helpful to the jury and his testimony was disallowed.

Given the language of the court of appeals’ opinion, a different result might have been reached if Silva had called an art historian or a filmmaker who could testify that the videos had artistic merit and that they fit within an artistic tradition that was unrelated to pornography. Testimony that the focus of the work as a whole is artistic rather than sexually titillating might satisfy Rule 702. Of course, whether any expert exists who would have formed that opinion after viewing the videos that Mr. Silva possessed is another question.

Expert Witnesses Testify in Lawsuit against North Carolina Voting Law

A high-profile voter rights lawsuit in Winston-Salem, North Carolina featured several plaintiff expert witnesses who have testified about the effect state voting laws have on African American, Hispanic, and other minority communities.  Recent laws passed by the North Carolina legislature have been challenged by plaintiffs who allege they were designed to discourage minority voters from casting their votes leading to an important federal trial that could impact similar laws across the country.  In an effort to demonstrate the negative impact that the voting laws have on minority communities, plaintiffs have summoned an array of expert witnesses to testify.

Minority Communities Challenge North Carolina Voting Laws

In 2013 North Carolina Governor Pat McCrory (R) signed legislation that reduced early voting days, put a stop to same-day voter registration, ended out-of-precinct voting, and ceased a program that allowed for preregistration by 16 and 17-year-old students.  According to the law’s supporters, the measure was designed to save money by cutting administrative costs and give voters confidence that the process was secure from voter corruption or fraud.  The law also mirrors similar measures taken by other states which do not have early voting or out-of-precinct ballots, and its supporters have repeatedly denied accusations that it was racially motivated with aims of reducing minority voter activity.

Minority advocacy groups such as the NAACP disagree, however, and argue that North Carolina’s history of racism and suppression of minorities suggests the motivation to pass the voting legislation was more sinister than advertised.  Attorneys for the Department of Justice, who has taken the lead in the Civil Rights lawsuit challenging North Carolina’s voting laws, argue that the laws were intentionally designed to discourage minority voting.  Legislatures, the DOJ argues, knew full well that the citizens who relied on many of the now-cut programs were black or Hispanic at the time the law was passed, and purposefully steered the state’s voting regulations to suppress minority votes.

The North Carolina voting law was passed shortly after the Supreme Court eliminated provisions of the Voting Rights Act of 1965 which required certain southern states, including North Carolina, to submit any voting legislation to federal reviewers for approval.  Plaintiffs allege that the state took advantage of the relaxed requirements for voting legislation oversight, and instituted an intentionally discriminatory set of regulations.  To support this argument, plaintiffs spent the early days of the Civil Rights lawsuit to call several expert witnesses who testified about the effects of such voting laws and the influence of North Carolina’s history of racial discrimination.

Expert Witnesses Testify in North Carolina Voting Law Case

The plaintiffs relied heavily on expert witnesses with academic backgrounds who specialize in researching the effect social and economic conditions of minority groups like African Americans and Hispanics have on voting practices.  The long list of experts includes prominent researchers such as:

  • Morgan Kousser from Cal Tech is an expert in Southern politics and voting who closely examined the text of North Carolina’s voting bill, its legislative history, and statistics about minority voting practices. According to Dr. Kousser, the voting practices eliminated by North Carolina were primarily used by minority voters, and legislatures were made aware of this fact before passing the bill.  While Dr. Kousser could not point to a single legislator who demonstrated discriminatory intent, he noted that the state officials were well aware of the impact the law could have on minority communities.
  • Lynne Vernon-Feagans who is an expert witness researching poverty at the University of North Carolina Chapel Hill testified that poor African Americans would struggle to access voting stations and comply with other provisions of the North Carolina law because of the impact of poverty. Dr. Vernon-Feagans is not a voting expert witness, but was able to explain to the court that the logistics of voting under the new law would significantly hinder African American voters.
  • Barry Burden is an expert witness from the University of Wisconsin who specializes in political science research and he took the stand to explain that the costs of the law would be felt more heavily by black and Latino voters, suggesting that it would disproportionately discourage those minorities from voting.

In addition to these expert witnesses, the plaintiffs called political science and voting experts who attempted to explain to federal Judge Thomas Schroeder that North Carolina’s voting law will disproportionately impact minority citizens, and the legislators who passed it were aware of the law’s effect.  Judge Schroeder is presiding over the trial without a jury, and will make his decision after both sides finish presenting their argument.