Category Archives: Expert Opinions

California DA Raises Questions with Choice of Police Shooting Expert Witness

A District Attorney in Sonoma County, California has come under fire recently for declining to file charges against a police officer who fatally shot a toy-gun carrying 13-year-old last October.  At particular issue is the DA’s choice to consult psychology expert witness William Lewinski, an authority on “reaction times and shooting dynamics” who consults with police officers and frequently testifies on their behalf in police shooting trials.

Police Officer Fatally Shoots Teenager

The tragic origins of the case occurred last October when Sonoma County Detective Erick Gelhaus fired seven shots into Andy Lopez, a teenager carrying a plastic AK-47 with the distinctive orange cap removed.  Believing the weapon was real, Gelhaus shot the 13-year-old Lopez after the boy started to run towards him ignoring instruction to drop the gun.  District Attorney Jill Ravitch was called on to review the Lopez shooting in order to determine if Detective Gelhaus would face any criminal charges, and reached out to Mr. Lewinski for his expert testimony on the subject of police shooting.

Police Shooting Expert Witness finds No Wrongdoing

District Attorney Ravich reached out to Mr. Lewinski because his experience developing and researching the field of police shooting psychology would help her make the decision about whether or not to press charges in the shooting death of Andy Lopez by Detective Erick Gelhaus.  Lewinski’s research incorporates behavioral science principals to situations in which police officers are place in a potentially life threatening situation in order to explain why officers fire their weapons in an effort to help prosecutors or jurors determine whether or not the shooting was justified, or if it was negligent or criminal.

After reviewing witness statements, interviewing Officer Gelhaus, and examining the case files, Mr. Lewinsky produced a 14-page expert witness report that found Gelhaus’ explanation of the shooting “supportable to a high degree of scientific certainty.”  Noting that Gelhaus had good reason to believe his life was in danger when Lopez ran at him with what reasonably appeared to be a real gun, Mr. Lewinksy wrote, “From a behavioral science perspective and an action / reaction paradigm, Gelhaus couldn’t wait until the gun was pointed at him, but had to fire, and keep firing, until the perceived threat was removed.”  Mr. Lewinsky’s expert report remains a significant factor in DA Ravich’s decision to not file criminal charges against Officer Gelhaus.

Police Shooting Expert has History Siding with Officers

Critics of Ravich’s decision to not file charges point to the selection of Mr. Lewinsky as an expert witness likely to side with Officer Gelhaus.  Mr. Lewinsky has earned a reputation as being a police psychology expert witness who consistently supports the actions of officers in police shooting situations.  In 2010, Lewinsky was called as an expert witness in the shooting trial of police officer Johannes Mehserle after he shot unarmed train passenger Oscar Grant on an Oakland transit platform.  Informing the jury that “in-attentional blindness” and “muscle memory” can cause a police officer under stress to mistake his gun for his Taser – carried on the opposite hip – and mistake a potential suspect as being armed and dangerous, Lewinsky’s testimony explaining Mehserle’s actions were key in having charges reduced from murder to involuntary manslaughter.

Throughout his career, Mr. Lewinsky has offered similar testimony in a large number of police officer shooting cases, frequently telling judges and jurors that police are justified in opening fire as soon as they perceive a potential threat, which can occur before a gun is pointed at them.  Lewinsky’s ‘shoot-first doctrine’ is, he claims, the result of years of research and is held in high regard by “top experts in the legal, academic, and criminal justice communities worldwide.”  His research on police reaction times and perception of violent resistance has been called upon in several criminal and civil trials, and his prominent expert witness status makes him a fixture in the psychology of police shooting.  District Attorney Jill Ravich certainly knew of Mr. Lewinsky’s history as an expert witness when selecting him, however, critics of her choice have yet to offer reliable expert testimony countering Lewinsky’s report.

Detroit Pays $500,000 in Financial Expert Fees for Bankruptcy Filing

Detroit has added more than $500,000 in expert witness fees to its growing short term debt accrued as a result of the city’s bankruptcy filing. Massachusetts financial advisor Marti Kopacz will receive payment of $514,736.71 for work performed in April and May that resulted in a financial expert witness report that assesses the feasibility of Detroit’s bankruptcy plan. Detroit will present its bankruptcy plan to US Bankruptcy Judge Steven Rhodes in a trial this summer in an effort to have the restructuring strategy approved.

Detroit Pays for Financial Expert Witness

Marti Kopacz, manager of Boston’s Phoenix Management Services, has a background in public-sector turnarounds and was appointed by Judge Rhodes as the court’s expert witness. Judge Rhodes hired Kopacz to give him the information he needs to understand the “issues of municipal finance and viability” that will come into play while he oversees Detroit’s bankruptcy restructuring. Kopacz’s primary responsibility is to present an expert witness report analyzing the city’s plan for addressing its $18 billion in debt in order to determine whether or not the strategy is feasible, and she may also be called upon to testify during the bankruptcy proceedings.

Last week, Judge Rhodes ordered the city to pay the over $500,000 in fees that Kopacz and her firm have accrued in two months of work. Kopacz’s financial management team have reviewed financial documents, interviewed current and former city officials, consulted with judges and other financial professionals, and compiled the report requested by Judge Rhodes at the time he appointed Kopacz as his expert witness. How Judge Rhodes will use Kopacz’s report and potential testimony remains to be seen, but her work will undoubtedly influence the outcome of Detroit’s bankruptcy trial as the judge has indicated he will rely heavily on her expert analysis to understand municipal finance.

Judge Rhode’s use of Kopacz and her financial management team comes as no surprise – courts often rely on the reports of independent expert witnesses to evaluate strategic and financial planning before approving a course of action. Given that a city of Detroit’s size has never filed for bankruptcy protection, it is expected that the presiding judge would need to tap a top-dollar expert witness to assist him through relatively uncharted territory. Detroit, which is responsible for the administrative and court costs of its bankruptcy filing, has little say in the matter and must pay Kopacz’s expert fees as part of its bankruptcy proceedings.

Detroit’s Bankruptcy Costs Rise

The expert witness fees owed Kopacz and her financial team are added to the over $36 million in costs Detroit has accrued as part of its bankruptcy filing. The bulk of the fees have been paid to its legal restructuring firm, Jones Day, which has billed over $17 million in fees and expenses accrued while creating the city’s bankruptcy plan. Fifteen other consulting firms and bankruptcy professionals filled out the remaining balance, and now Kopacz’s expert report adds another 1/2 million to the total.

Although the fees associated with Detroit’s bankruptcy are substantial, the law firm appointed by Judge Rhodes to track the costs has found every dollar spent to be justified. The Fee Examiners at Chicago-based bankruptcy law firm Shaw Fishman Glantz & Towbin wrote, “Due to the magnitude and complexity of the Case, the novelty of the legal issues, the extremely tight time frames imposed by the Court and the strong differences in opinion between the various parties about what to do and how to do it, it was (and continues to be) inevitable that the costs associated with the services provided by the various Professionals were going to be significant.” Finding that the unprecedented nature of Detroit’s bankruptcy has created a unique situation, Judge Rhodes seems to be taking all the necessary steps to ensure the process is properly managed, regardless of the costs. Marti Kopacz’s financial expert witness report is simply the latest in a growing use of financial, legal, and bankruptcy professionals who have been tapped to assist the bankruptcy court in approving Detroit’s massive restructuring strategy.

Florida Judge Advocates for Increased Use of Eyewitness Experts in Criminal System

A Florida Supreme Court Justice issued a strong argument for the use of eyewitness testimony expert witnesses in the state’s criminal system – supporting the growing field of social and behavioral science that has called to question the accuracy of eyewitness identification. Justice Barbara Pariente issued her comments imploring the use of eyewitness experts as a concurring opinion in the court’s recent decision to reject the appeal of a Death Row inmate, opening the door for supporters of the issue to push for expanded use of behavioral science studies in Florida courtrooms.

Florida Supreme Court Justice Calls for Eyewitness Expert Witnesses

Justice Pariente saw the opportunity to make her opinion on the use of behavioral science experts known when Charles Peterson filed an appeal to his Death Row conviction on the grounds that his trial lawyer’s failure to use an eyewitness identification expert constituted ineffective assistance of counsel. Although Pariente joined the unanimous ruling dismissing Mr. Peterson’s appeal, she, joined by Justice Peggy Quince, wrote a strong concurring opinion that championed the use of such experts in future trials. Her 8-page opinion noted that the outcome of Peterson’s appeal should not lead courts to conclude that the use of eyewitness identification experts is inadmissible, but instead encouraged judges to welcome such testimony to help juries decide on the reliability of eyewitness identifications.

Currently, Florida courts rely on a 31-year-old standard for eyewitness experts which rejects their use, arguing, “a jury is fully capable of assessing a witness’ ability to perceive and remember…without the aid of expert testimony.” Justice Pariente disagreed, pointing out that advances in social science have identified a number of factors that can result in misidentification and misremembering by eyewitnesses, and jurors are unable to tell when a witness is mistaken. Pariente wrote, “As the burgeoning body of scientific research indicates and courts across the country increasingly recognize, expert witness testimony on the reliability of eyewitness identifications can be a “powerful tool in helping the criminal justice system achieve its goal of convicting the guilty while acquitting the innocent.”

Justice Pariente Not Alone in Legal Community

As she noted in her opinion, Justice Pariente is not alone in welcoming the use of eyewitness expert testimony to help judges and juries analyze eyewitness identification. As blogged about here, Pennsylvania recently welcomed the use of eyewitness experts, joining courts in New Jersey, Utah, Oregon, and Connecticut. Justice Pariente pointed to Connecticut’s stance on the matter, suggesting that Florida “adopt the rationale of the Supreme Court of Connecticut … and conclude that this Court’s precedent, which suggests that factors affecting eyewitness testimony are within the common experience of jurors, is ‘out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror.’”

Justice Pariente also pointed to work on the issue submitted by the Innocence Project, a nationwide organization that seeks to combat wrongful convictions in part by informing jurors about the common errors that plague eyewitness identification. Pariente noted research by the Innocence Project which found that 75{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of wrongful convictions later exonerated by DNA were the result of eyewitness misidentification – evidence that not only are eyewitnesses frequently unreliable, but that jurors are not able to identify when misidentification has occurred.

Although Justice Pariente’s analysis represents a progressive use of eyewitness experts that is supported by a growing number of behavioral science studies, the legal community has not widely embraced the change. Judges across the country still believe in the ability of jurors and attorneys to ferret out unreliable testimony, and are hesitant to open the courtroom doors to social science experts like those who offer analysis of eyewitness accounts. Because Justice Pariente’s argument was unrelated to the outcome of the case in which she wrote it, Florida judges are not compelled to welcome eyewitness expert testimony, however, Pariente’s words are encouraging to advocates of behavioral science experts and may prove significant should the Florida Supreme Court have the opportunity to set a new standard in the near future.

ADHD Expert Witness Testimony Rejected in Criminal Case Alleging Fraud

Last month, US District Court Judge W. Louis Sands rejected testimony from a neuropsychology expert witness in the criminal trial of Stewart Parnell, accused of defrauding customers of his now defunct Peanut Corporation of America (PCA) by selling them peanut products filled with harmful contaminants. Throughout 2008 and 2009, PCA distributed peanut products that led to a widespread outbreak of Salmonella that sickened 700 people and killed 9. Parnell, responsible for PCA quality control, hired Dr. Joseph Conley, Jr. to testify that his Attention Deficit Hyperactivity Disorder (ADHD) made it impossible for him to comprehend the problems leading up to the contamination – a unique, but ultimately unsuccessful approach.

Defendant Hires ADHD Expert Witness

Parnell is charged with fraud for knowingly selling peanuts with harmful microbiological content, and shipping a product that did not meet customer’s specifications. Central to the government’s case against him are several email correspondences between Parnell and other members of PCA which indicate that he was aware of the potential contamination and distributed the peanut products regardless. If the government can connect the contents of his emails to knowledge about the Salmonella contaminant, Parnell could be found guilty of intentionally defrauding customers by knowing the risks associated with distributing the tainted peanuts and withholding safety information.

In his defense, Parnell called upon Dr. Conley to testify that his ADHD prevented him from formulating the knowledge necessary to defraud because it left him incapable of understanding or appreciating the nature of the communications regarding the peanut contamination. Dr. Conley’s expert findings report that Parnell suffers from being restless, distracted, and inattentive – depriving him of the neurocognitive capacity to function in the role of quality control manager. According to Conley, “Mr. Parnell was and remains cognitively incapable of fielding, delineating, organizing, and integrating the daily plethora of phone calls and E-mails required in managing three companies.”

Dr. Conley explained that his expert witness testimony was not designed to defeat intent, but rather to demonstrate that Parnell did not, and could not, acquire the knowledge assigned to him in the indictment. Arguing that his ADHD made Parnell unlikely to create a scheme to defraud customers because he could not read or understand the necessary emails, Dr. Conley’s testimony represents a unique approach to the use of medical expert witnesses at criminal trials.

Judge Rejects ADHD Defense

In response to Dr. Conley’s ADHD testimony, the prosecution called Dr. David J. Schretlen to point out flaws in both his methodology and conclusions regarding the effect of Parnell’s alleged disorder. Dr. Schretlen testified that Parnell’s condition did not render him incapable of understanding emails because his responses to work communications demonstrated that he was able to comprehend the significance of the correspondence. Further, Parnell was not diagnosed with ADHD as a child, even though it is mostly commonly diagnosed in childhood, which called into question Dr. Conley’s research methods and diagnosis.

Citing a number of factors, including Dr. Schretlen’s expert analysis, Judge Sands rejected the use of Dr. Conley and his ADHD expert witness testimony. Pointing out that a defendant must “show a valid scientific connection” between testimony and the facts at issue in order have an expert witness admitted, Judge Sands found that Parnell had failed to forge the link between his alleged ADHD and the inability to understand the information regarding the contaminated peanuts. In Judge Sands’ opinion, Dr. Conley’s expert witness testimony designed to establish diminished capacity was not relevant because the case alleged Parnell formed a complex scheme to defraud customers, not that he had made errors in processing information contained in emails.

The case has gained attention for Parnell’s uncommon use of expert witness testimony to attempt an ADHD defense. Although ultimately unsuccessful because it was not relevant, the use of Dr. Conley to attempt a diminished capacity argument due to the neurocognitive deficiencies caused by ADHD is an interesting approach and one worth noting.

Mental Health Experts Key in Legal Bid to Remove Donald Sterling as Clippers Co-Owner

A trial to enforce the sale of the NBA’s Los Angeles Clippers may turn on expert witness reports regarding the mental health of recently disgraced owner, Donald Sterling. Following racist and disparaging comments made by Sterling, the league banned him from any basketball related activities before issuing an order for him to sell the team. With Sterling’s refusal to agree to a $2 billion sale of the Clippers negotiated by his estranged wife, who has an ownership stake in the franchise, a California court will determine if Sterling’s mental health justifies his removal as a trustee.

Expert Witnesses Key to Determining Sterling’s Mental Health

Shelley Sterling negotiated a $2 billion deal selling the Clippers to Microsoft mogul Steve Balmer within weeks of the NBA’s decision to force Sterling out of the league. Shelley, by virtue of California’s law on marital property, has an ownership stake in the franchise, but cannot finalize the agreement without Donald Sterling’s consent. With Mr. Sterling refusing to sign the deal, Shelley has taken the matter to court by asking a judge to declare Donald mentally unfit to act as a team trustee.

Central to the legal battle regarding the sale of the Clippers are reports from three different medical expert witnesses who found that the 80-year-old Sterling has shown symptoms of Alzheimer’s disease and dementia. Shelly Sterling hired doctors to conduct an analysis of her husband’s mental health because a clause in the trust both spouses signed in December allows for one to remove the other if two board-certified doctors offer a written report indicating mental incapacitation. Claiming that the $2 billion sale is in the best interests of all parties, Shelly is taking action to remove her husband in order to close the deal without requiring his involvement.

Donald Sterling Seeks Mental Health Expert Witness

Despite the expert medical reports diagnosing him with early signs of Alzheimer’s and dementia, Sterling maintains that he is of sound mind. He has promised to defend himself in the lawsuit for control over the Clippers, and recently requested the Court delay the hearing until he can present testimony from his own medical expert witness who is prepared to contradict reports regarding his mental condition. Sterling has hired Dr. Jeffrey Cummings, a neurologist from the Cleveland Clinic, to conduct a preliminary assessment and offer testimony that he is mentally sound and capable of running his franchise and estate.

Whether or not Donald Sterling’s expert witness will matter is still unclear as Judge Michael Levanas has already indicated that the case seems pretty clear. With two medical expert reports certifying Sterling’s incapacity to make decisions regarding the trust he and Shelly co-own, the language of the trust agreement may clearly control matters regardless of what Sterling offers in his defense. Sterling’s attorneys responded to Judge Levanas by arguing that the parties unintentionally omitted a provision in the trust that permitted reinstatement if a certificate of mental capacity is submitted – making the use of Dr. Cummings’ expert testimony critical.

Matters of mental incapacity are delicate, and competing expert witnesses are not uncommon – particularly when billions of dollars are at stake. As the Donald Sterling situation continues to escalate into increasingly contentious waters, how Judge Levanas uses the medical expert witness reports at his disposal will be critical in the decision to remove Sterling’s control of the Clippers and allow the $2 billion sale to proceed despite his objections.

Experts Analyze Traffic Stops and Citations in Federal Lawsuit Against North Carolina Sheriff

A federal anti-discrimination lawsuit filed by the US Justice Department against a North Carolina sheriff has been held up due to a dispute over expert witness testimony.  Alamance County Sheriff, Terry Johnson, has been sued by the DOJ following accusations that he and his department engaged in discrimination against Latinos, and expert witnesses have been retained by both sides to offer statistical analysis of traffic stops and citations among the Latino population. After reviewing two drastically different expert witness reports, Judge Thomas Schroeder delayed the proceedings to better analyze the information presented.

DOJ Expert Witness Finds Evidence of Discrimination

The Justice Department submitted the research of John Lamberth, an expert police consultant, who conducted field analysis of police traffic stops in Alamance County to determine if the sheriff’s office was issuing citations to a disproportionately high number of Hispanics. Lamberth, who operates his own consulting company which provides services to police departments, local governments, and civil rights groups, focused his study on traffic stops on three major roadways between 2008 and 2013.

Lamberth’s expert testimony informed the court that 37{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of all individuals stopped by the Alamance County Sheriff’s Office were Latino – a troubling statistic considering the fact that Latinos only make up 8.7{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the driving population in the county. Attorneys for the Department of Justice point to Lamberth’s study as “strong evidence of intent” by Sheriff Johnson and his office of carrying out institutionalized discrimination against the county’s Latino population. Attorneys retained by Sheriff Johnson countered Lamberth’s study with a statistics expert witness who argued the methodology and results were flawed and misleading.

Expert Witness Criticizes DOJ Finding of Discrimination

Countering Mr. Lamberth’s research, attorneys for Sheriff Johnson called David Banks, a professor of statistics at Duke University. Banks, sitting as a statistics expert witness, evaluated data from the Alamance County Sheriff’s Office, the U.S. Census Bureau, and the North Carolina state government to reach his conclusion that Lamberth’s study did not accurately reflect the frequency of which Latinos were pulled over.

Professor Banks argued that Lamberth’s study was flawed because it focused only on citations issued and not the total number of stops, and also included citations from outside the Alamance jurisdiction. Banks pointed out that the flaws in Lamberth’s analysis suggested that there is no statistical evidence that Sherriff Johnson or his staff engaged in discriminatory behavior. After analyzing the conflicting expert witness reports, Judge Schroeder delayed the start of the trial in order to give him time to analyze the evidence and rule on a handful of motions filed by each side.

Conflicting expert witnesses are nothing unusual, but this case is interesting in that both sides make use of statistical experts to analyze potentially discriminatory behavior, demonstrating yet another type of expert testimony attorneys seek out. Statistical analysis can be useful to judges and juries who are asked to identify trends in behavior, and expert researchers are called upon to conduct investigations and parse through data to make statistics useful during trial. As the DOJ accusation of discrimination against Sherriff Johnson plays out, the use of statistical expert testimony will have a significant impact on the outcome.

Experts Play Critical Role in Shaken Baby Cases

A New York father has been acquitted of charges stemming from the tragic death of his 4-month old son, whose suspicious death led prosecutors to believe that Adrian Thomas had caused his child’s death by violently shaking him. As has become common in trials following suspicious death of infants, the Thomas verdict was heavily influenced by expert witnesses whose testimony assisted jurors in understanding the circumstances of the case.

Adrian Thomas Acquitted of Second Degree Murder Charges

Adrian Thomas received attention from police and prosecutors after his 4-month old son, Matthew, was found dead in September of 2008. After a 2009 guilty verdict that was dismissed on appeal due to an improperly obtained confession, prosecutors in Troy, NY again brought Mr. Thomas to trial, this time relying on testimony by medical experts to prove that Matthew’s death was caused by traumatic brain injury suffered as a result of being shaken. In response, Thomas’ attorneys argued that a bacterial infection in Matthew’s blood was the cause of his death, clearing their client of wrongdoing.

After both sides presented a number of medical expert witnesses to offer opinion on the cause of Matthew’s death, jurors determined that there was insufficient evidence to conclude that Mr. Thomas shook his son and cause his fatal injuries.

Prosecution Experts Argue Injuries Point to Shaken Baby Syndrome

New York prosecutors called medical examiner Michael Sikirica as an expert witness to testify that Matthew Thomas suffered from traumatic brain injury commonly seen in shaken baby syndrome. Dr. Sikirica noted that a subdural hematoma like the one Matthew experienced are most often caused by head injuries. Sikirica went on to testify that such injuries can be caused by rapid change in velocity that moves the brain back and forth, often indicating the infant is the victim of shaken baby syndrome.

Prosecutors argued that Dr. Sikirica, who performed Matthew’s autopsy, told the most important part of the story because he identified a cause of the child’s death. Arguing in closing that Dr. Sikirica’s testimony was “consistent with blunt force trauma,” prosecutor Christa Book pointed to her medical expert witness as a critical voice in the trial. To reinforce Dr. Sikirica, Ms. Book called on Dr. Carole Jenny to provide expert testimony after reviewing medical records. Dr. Jenny agreed with the medical examiner’s opinion, and testified to jurors that Matthew died of head trauma.

Defense Medical Expert Claims Bacterial Infection Led to Death

Defense attorney Stephen Coffey countered the prosecution’s argument by attempting to show that Matthew died after going into septic shock due to a bacterial infection in his brain. Dr. Jerome Klein, a medical expert from Boston University, was called to analyze Matthew’s injuries and provide opinion on his death. Dr. Klein acknowledged the possibility of head trauma, but pointed out that a brain infection could have caused the same symptoms and death. Dr. Klein’s testimony was designed to present a viable alternative theory of Matthew’s death, and he did so by explaining that the injuries the child suffered were not necessarily the result of shaken baby syndrome.

The Adrian Thomas case is yet another example of the questions debated by medical expert witnesses who are faced with a mysterious infant death that displays signs of head trauma. As blogged about here, shaken baby syndrome can result in hotly contested medical expert testimony, and in this particular case jurors were unconvinced that Matthew Thomas’ injuries were clearly caused by blunt force trauma. Prosecutors and defense attorneys faced with a shaken baby case need to be aware of the different types of expert witness testimony available, and employ a full array of medical experts to provide useful analysis to jurors.

Education Expert “Misunderstood” in Landmark California Teacher Tenure Case

Earlier this month, a California judge made national headlines by striking the state’s teacher tenure laws on the grounds that the legislation violates students’ rights to equal protection guaranteed by California’s Constitution. As attorneys and scholars debate the soundness of Judge Rolf Treu’s legal conclusions, his factual foundation was shaken this week when a key expert witness claimed the Court misinterpreted statements he made during deposition – giving opponents further reason to believe the ruling will not survive the inevitable appeal process.

Teacher Tenure Ruling Relies on Expert Witness Testimony

Finding that tenure laws keep ineffective teachers on the job, thus depriving poor and minority students of quality education, a basic breakdown of the point-by-point reasoning in Judge Treu’s teacher tenure opinion is as follows:

  1. Quality education demands quality teachers;
  2. Laws of teacher tenure prevent dismissals – leaving bad teachers;
  3. Because laws produce bad teachers – particularly amongst poor and minority populations – they are subject to strict scrutiny;
  4. Tenure laws fail strict scrutiny because there is no compelling reason for a state to protect bad teachers.

The strength and validity of the legal conclusions supporting points 3 and 4 are left for scholars and higher courts to debate, but the factual meat of Judge Treu’s opinion that makes his conclusion possible rests in point 2: the assertion that teacher tenure laws produce bad teachers by protecting them from dismissal. In support of his position, Judge Treu cited testimony from Dr. David Berliner, an education expert witness who testified that “1 to 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of teachers in California are grossly ineffective.”

Finding that the percentages quoted by Dr. Berliner represented a startlingly high number of ineffective teachers, Judge Treu concluded that tenure laws have created a low quality educational environment that has a “negative impact on a significant number of California students,” making the tenure protection illegal under the state’s constitutional guarantee of equal treatment across all racial and ethnic groups.

Education Expert Witness Claims He Was Misunderstood

In the wake of the controversial teacher tenure ruling, Dr. Berliner publicly provided opponents the opportunity to undercut the factual foundation on which Judge Treu based his legal conclusions by claiming his estimates of “grossly ineffective” teachers were misunderstood by the court. As an expert witness, Dr. Berliner was questioned during a deposition about ways his “value-added model” of teacher effectiveness could identify bad teachers. When pressed by lawyers about whether or not 1 – 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of educators had strong negative effect in the classroom – and were thus “grossly ineffective” – Dr. Berliner responded in the affirmative.

After realizing that Judge Treu relied on his conclusion that 1 – 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of California teachers could be classified as grossly ineffective, Dr. Berliner clarified that he “never said that,” and that he was misquoted as an expert witness. Claiming that he estimated the figure when pressed by attorneys, Dr. Berliner stated that he has never met a grossly ineffective teacher, and his expert opinion about the overall quality of California’s educators was misrepresented in the landmark decision.

Misunderstood Expert Witness Testimony May Affect Outcome

A spokesperson for Students Matter, the organization that filed the lawsuit claiming teacher tenure laws were unconstitutional, was undeterred by Dr. Berliner’s claims that his expert opinion was misunderstood, saying that “nothing in the opinion hinges on that number.”  Although the legal basis for Judge Treu’s opinion can stand independently of Dr. Berliner’s testimony, and is undoubtedly the aspect of the decision that will receive the brunt of the criticism and scrutiny on appeal, downplaying the effect of an expert witness countering his testimony can be dangerous for the plaintiffs.

Judge Treu supported his position that teacher tenure laws produce grossly ineffective educators with Dr. Berliner’s expert testimony, so even if an appeals court agrees with his legal conclusion that such laws can unconstitutionally deprive students of quality education – an outcome which is far from assured – an expert witness recanting testimony can cast doubt on the judge’s factual conclusion and influence the future of the litigation. Whether or not an appeals court places significant stock in Dr. Berliner’s efforts to clarify his testimony, the embarrassing circumstance of a misquoted expert serves as a reminder to judges and attorneys that it is critically important to properly understand exactly what expert witnesses say during trial.

 

 

Pennsylvania Supreme Court Rejects Use of False Confessions Expert Witness

Criminology research indicates that approximately 1/3 of people accused of crimes issue a false confession – a troubling statistic considering how valuable confessions are in criminal trials. Behavioral scientists have conducted years of research into the matter, and recently the Pennsylvania Supreme Court was called upon to decide on whether a social scientist expert witness could offer testimony regarding false confessions during a criminal trial. Unconvinced by social science research, the Court rejected behavioral expert testimony regarding false confessions, contradicting a similar opinion it issued the same day.

Pennsylvania Court Rejects False Confession Expert

In Commonwealth v Alicea, a divided Pennsylvania Supreme Court reversed a lower court decision that allowed a nationally renowned behavioral science expert to testify about false confessions during a criminal trial. Murder trial defendant Jose Alicea, accused of a 2005 killing, confessed to the crime after five hours of intense police interrogation. Lawyers for Mr. Alicea, whose IQ of 64 is well below the traditional threshold for intellectual disability, argued that expert testimony regarding the tendency for certain defendants to falsely incriminate themselves was critical to jurors’ analysis of their client’s confession.

Writing for the majority, Judge Seamus McCaffery was unconvinced that jurors needed a behavioral science expert witness to evaluate the legitimacy of confessions. Wishing to avoid a battle of experts arguing social science generalities, the court wrote, “Ultimately, we believe that the matter of whether a confession is false is best left to the jury’s common sense and life experience.” Cleary, Judge McCaffery and the rest of the 4 – 2 majority were unconvinced that the value of behavioral science research outweighed the potentially overwhelming use of social science experts during criminal trials – leaving dissenting judges with a strong counterargument.

Dissent Argues Value of Behavioral Science Expert Witnesses

Dissenting members of Pennsylvania’s high court took issue with the majority’s approach to social science research. Writing for the minority opinion, Judge Thomas Saylor criticized the majority’s “blanket exclusion of social science research based upon unanalyzed assumptions about juror capabilities, even as these assumptions are challenged by demonstrations of wrongful convictions and developing behavioral science.”

Judge Saylor’s argument is echoed by defense attorney organizations and social scientists who seek acceptance by the judiciary of established behavioral science research. It also represents a position the Pennsylvania Supreme Court was willing to accept in a related case – leaving the overall place for behavioral science expert witnesses in Pennsylvania criminal trials somewhat unclear.

Alicea Decision Contradicts Earlier Ruling on Use of Behavioral Science Experts

The Court’s decision in Alicea is somewhat puzzling considering that earlier in the day it accepted the use of behavioral science in Commonwealth v Walker – blogged about here. In Walker, the Pennsylvania Supreme Court accepted testimony by a behavioral science expert witness who explained to jurors the inaccuracies common across eyewitness testimony. Like Walker, the defendant in Alicea relied on expert testimony based on advances in social science to explain general patterns of human behavior that could influence a criminal investigation and trial, however, Pennsylvania’s Court was unwilling to broadly welcome behavioral science by accepting it in both cases.

While it is difficult to reconcile the two outcomes from Pennsylvania’s Supreme Court, the combination of Walker and Alicea are useful case studies of the integration of behavioral science expert witnesses into the legal system. Although it is clear by the dissent in Walker and the majority opinion in Alicea that some judges are unwilling to buy into the conclusions advanced by social science research, the partial acceptance in Walker is an encouraging step for behavioral science proponents. The expanding use of expert witnesses with behavioral science expertise will force more state courts to consider similar issues, and, while Pennsylvania may not offer a model of consistency, the Walker and Alicea decisions highlight the types of arguments judges will consider in future cases.

Federal Fourth Circuit Forces Experts to Separate Opinions from Fact During Testimony

Expert witnesses are often used by attorneys to analyze facts and circumstances of a case and offer opinions to help jurors better understand the relevant issues. Federal evidentiary rules, which reflect the widely accepted Daubert standard, permit expert opinion testimony providing it is reliable and supported by scientific knowledge. Recently, the Fourth Circuit Court of Appeals issued a ruling that reminds attorneys that an expert’s opinion must also be clearly distinguishable from fact.

Government Witness Improperly Mixed Fact with Expert Opinion

In United States v Garcia, the Federal Fourth Circuit Court of Appeals reversed the criminal conviction of an alleged drug dealer due to improper testimony from an FBI expert witness. During trial, the prosecution relied on an FBI special agent to testify both as a factual witness, based on her work during the criminal investigation, and an expert witness, based on her years of experience decoding drug related conversations. In dismissing the conviction, the Fourth Circuit held “there were inadequate safeguards to protect the jury from conflating [the agent’s] testimony as an expert and fact witness,” reminding attorneys that there must be a clear line between fact and opinion testimony.

In its decision, the Fourth Circuit determined that the Government’s expert witness “moved back and forth between expert and fact testimony with no distinction,” which allowed the prosecution to submit evidence under the guise of expert opinion. For example, the agent testified that the phrase “one hundred forty five point” referred to 145 grams of heroin – a fact she gleaned from the investigation that was presented to the jury as an expert decoding of a drug related conversation. By mixing facts and expert opinion testimony, the prosecution was able to insert evidence into the trial without going through the proper channels.

Improper Connection Drawn Between Facts and Conclusions

The Fourth Circuit also took issue with the prosecution’s drug investigation expert witness for drawing the connection between facts and conclusions – essentially giving the Government’s case additional credence by tying her expert opinion to it. During trial, it is up to the prosecutor to establish facts that are sufficient to convict, and, although experts may opine on the meaning of facts, it is inappropriate for an expert witness to make the prosecution’s argument by connecting evidence to the underlying argument. The Fourth Circuit determined that such testimony falls outside of the evidentiary rule which “contemplates that an expert’s opinion testimony will be ‘helpful to the jury,’ not merely helpful to the prosecutor as transmutations of simple fact testimony.”

Finally, the Government’s FBI expert witness failed to lay an adequate foundation for either her factual or her expert opinion testimony. Under Daubert standards that have been codified by the federal rules of evidence, expert witnesses must demonstrate their testimony is based on reliable, scientific knowledge. This requires attorneys to ask questions during testimony that give the expert the opportunity to support her opinion with reliable methodology or theory. By failing to do this, the prosecution further blurred the lines between fact and expert opinion, and further allowed the FBI expert’s testimony to make the Government’s argument rather than help the jury understand the facts.

Garcia’s Guide for Expert Opinion Testimony

The Garcia opinion clarified that attorneys must be careful when presenting expert opinion testimony. Expert witnesses are permitted to offer their opinion in order to assist the jury in understanding the facts, but an expert cannot be used to tell the party’s story. Expert opinion testimony offers insight into complex issues that jurors may not be able to properly comprehend, but it is up to attorneys to integrate the facts of the case with the expert’s opinion in order to make a convincing argument. As the Fourth Circuit demonstrated in United States v Garcia, judges will hold parties accountable for properly separating expert opinion from fact by dismissing expert testimony that crosses the line between assisting the jury and making the attorney’s argument.