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

Meal Break Rules

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

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

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

Rounding Rules

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

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

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

Donohue’s Claim

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

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

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

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

Expert Testimony

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

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

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

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

Supreme Court Analysis

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

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

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

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

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

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

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

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

Criminal Responsibility

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

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

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

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

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

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

Competing Views of Free Will

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

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

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

Self-Control and Criminal Justice

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

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

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

Expert Opinion in Yepez

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

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

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

Daubert Hearing

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

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

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

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

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

Daubert Analysis

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

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

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

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

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

Appellate Opinion

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

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

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

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

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

Lessons Learned

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

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

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

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

The Avalanche

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

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

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

The Criminal Case

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

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

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

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

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

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

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

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

The Death

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

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

The Trial

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

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

New Expert Testimony

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

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

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

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

Openhaven testified,

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

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

Comtech Telecommunications Corp. is an American company that makes satellite ground stations. It had planned to merge with an Israeli company, Gilat Satellite Networks Ltd., that makes in-flight entertainment systems.

Comtech called off the merger after the pandemic caused a sharp loss in Gilat’s revenues. Gilat took issue with Comtech’s claim that the merger agreement allowed it to back out of the deal because Gilat had suffered a “material adverse effect.” Gilat sued Comtech in the Delaware Court of Chancery to enforce the contract.

The case settled on the eve of trial. Before the settlement, however, the parties argued about whether expert reports should be admitted into evidence or excluded as inadmissible hearsay. The court decided to admit the reports of testifying experts as substantive evidence.

Chancery Court

Chancery Courts are generally limited to awarding equitable relief to parties. Most states give judges the authority to preside in common law cases involving damages and in cases that seek equitable remedies, such as injunctive relief.

Chancery Courts are no longer common in the United States. The Delaware Court of Chancery traces its lineage to 1792 and has its roots in the High Court of Chancery of Great Britain.

Since jury trials are unavailable in Chancery Court, judges may be inclined to receive expert reports without worrying that a jury might be tainted by inadmissible content. The presiding judge in the Comtech case observed that “parties typically agree to admit the reports of testifying experts in Chancery as a means to streamline (and focus) the trial presentations.” Noting that expert reports are helpful to the Chancery Court, the judge encouraged that practice. Still, since the parties to the Comtech case did not agree, the court needed to decide whether, under Delaware law, an expert report is inadmissible hearsay.

Hearsay Rule and Expert Reports

Hearsay is almost universally defined as a statement not made by a testifying witness during a trial that is offered into evidence to prove the truth of the statement. An expert report is prepared before trial and is therefore not a statement made during trial testimony. Lawyers who seek admission of reports offer them to prove the truth of facts and opinions asserted in the report.

Expert reports therefore fit the definition of hearsay. It is, in fact, common for courts to rule (as a New Jersey court recently decided) that expert reports are hearsay and not admissible. The Chancery Court noted that Delaware’s Superior Court (the court that hears most civil disputes in Delaware) takes the position that expert reports are hearsay.

Not all hearsay is inadmissible. Every state has adopted, either by rules of evidence or judicial opinions, a variety of exceptions to the hearsay rule. In addition, certain out-of-court statements are excluded from the definition of hearsay. Prior statements made by a testifying witness are typically excluded, but only when they are offered against the party that called the witness.

Experts can testify about the same facts and opinions that are contained within the report, even if the report itself is inadmissible. The expert’s testimony (assuming it meets other criteria of admissibility) is evidence, but the prevailing view is that expert reports are “merely discovery materials” that are not themselves evidence.

Admissibility of Expert Reports in Chancery

Chancery Court, while subject to the same rules of evidence as other courts, is a different animal. The Chancery judge in the Comtech case decided that expert reports should be admissible and that opposing parties should be free to cross-examine experts about information and opinions stated in their reports even if the experts don’t testify about those facts and opinions on direct examination.

The judge admitted that his decision was “detached from the rules of evidence.” The court rejected the idea, advanced in an earlier Chancery decision, that expert reports are not hearsay when the expert is subject to cross-examination about the report’s contents. The earlier decision concluded that the expert “essentially made the challenged statements [in his report] while testifying,” a bit of sophistry that defies reason. As the judge in the Comtech case noted, a report that is written at an expert’s desk is not magically teleported from the desk to the courtroom simply because the expert testifies.

Anxious, however, to gain the time-saving advantage of admitting the report, the judge relied on the residual hearsay exception to justify its admission. The residual hearsay exception arguably allows all kinds of out-of-court statements into evidence if a judge regards them as “trustworthy.”

The residual hearsay exception has been criticized as swallowing the hearsay rule. The exception is difficult to apply to expert reports because they may or may not be trustworthy, and their trustworthiness can’t be determined until the expert testifies and is cross-examined. Admitting the report before that cross-examination occurs seems to stand the exception on its head.

In the end, the judge decided that no party in the Comtech case would be hurt if he considered the reports and admitted them because he expected them to be useful. In cases tried to other courts, parties might generally expect expert reports to be treated as a discovery tool and not as admissible evidence to prove a party’s claim.

Last year, ExpertPages called attention to the difference that expert witnesses might have made in the prosecution of Rosa Jimenez. Prosecutors in Travis County, Texas claimed that Jimenez caused the death of a child by stuffing paper towels down his throat.

No witness saw Jimenez place paper towels in the child’s mouth, but medical experts testified that no child would be capable of swallowing a wad of paper towels. The experts cited no studies and conducted no experiments to support their opinions.

An ER doctor testified that the child’s gag reflex would have pushed the wad out of Bryan’s mouth if it had not been forced down his throat. A forensic pathologist testified that Bryan’s throat was too narrow to ingest the paper towels. The other two experts simply testified that the towels could not have become lodged in the child’s throat accidentally.

As it now concedes, the prosecution’s case rested entirely on the testimony of its medical experts. The Travis County Conviction Integrity Unit of the District Attorney’s Office now admits that its prosecutors “presented  no  evidence  of  motive,  prior  mistreatment,  substance  abuse,  or  any  other  evidence  to  support  its  theory that [Jimenez] perpetrated an unprecedented attack on a young boy  in  her  care.”

Jimenez’s defense attorney was not given the funding it needed to present highly qualified experts. The defense managed to call a medical examiner who opined that the choking could have been accidental, but the expert had no pediatric training and did not belong to any forensic science organizations.

The one-sided presentation of expert testimony convinced the jury of Jimenez’s guilt. A judge sentenced her to 99 years in prison. Until recently, her efforts at overturning her conviction were consistently rebuffed.

State Concedes New Expert Evidence Is Persuasive

With the help of the Innocence Project, Jimenez marshaled new expert testimony to refute the opinions of the prosecution experts. Her attorneys gathered affidavits from four leading pediatric otolaryngologists: Dr. Michael J. Rutter, Dr. Douglas Sidell, Dr. Ron Mitchell, and Dr. Karen B. Zur. All of the experts specialize in pediatric airways, including the removal of foreign bodies from a child’s airway. They all agreed that a child can accidentally swallow the quantity of paper towels found in the child’s throat.

In addition, the doctors all agreed that it is very unlikely that one person, acting alone, would be able to stuff paper towels down a child’s throat. One of the doctors noted that he can’t even place a tongue depressor in a struggling child’s mouth without the assistance of another adult.

In addition, a prosecution expert, Dr. Elizabeth Peacock, admitted that her testimony was mistaken. She no longer believes that the child’s death could not have been accidental. After reviewing the information provided by the defense experts, she conceded that their knowledge of pediatric airways is superior to her own.

While the Conviction Integrity Unit, perhaps as a face-saving measure, suggested that the medical understanding of pediatric airways has evolved since Jimenez’s 2005 trial, qualified experts could likely have offered the same opinion at Jimenez’s trial if she had received the expert witness funding she needed. They could at least have testified to the absence of scientific support for the opinion that it would be “impossible” for a child to swallow paper towels accidentally.

Jimenez Released

Texas Judge Karen Sage agreed that Jimenez is innocent. She ordered Jimenez released on bond pending further proceedings in the case. Jimenez was released just in time to attend her daughter’s wedding.

The Innocence Project reports that U.S. Immigration and Customs Enforcement officers had told Jimenez that “we’re taking you to Mexico and doing an expedited deportation.” Perhaps realizing that taking an innocent person into custody after her release by a federal judge would not reflect well on an agency that has been directed to take a more compassionate approach to immigration enforcement, USCIS changed its mind and decided not to hold Jimenez in custody. Her freedom, at least for the moment, has been made possible by diligent defense lawyers who found the expert witnesses that Jimenez needed.

When experts merely state the obvious without grounding their testimony in known facts, their testimony is typically excluded as being unhelpful to the jury. At a preliminary hearing in a criminal prosecution, however, decisions are made by a judge rather than a jury. Judges tend to be more lax about admitting expert testimony when they act as the decisionmaker.

It may nevertheless be worth questioning the value of an arson investigator’s expert opinion that a dumpster fire was probably started by a lighter or matches. Flames start most dumpster fires, but in the absence of evidence connecting a flame to a defendant, the expert opinion tells the judge nothing that the judge doesn’t already know.

Arson Prosecution

Efren Uribe is homeless. He was charged with arson in Sacramento County, California. Prosecutors allege that he used a lighter to start a fire in a dumpster and that he did so intentionally.

The dumpster is one that Uribe visits regularly in a search for food. He was seen entering the dumpster and then climbing out of it on the day of the fire. A convenience store employee had seen Uribe search the dumpster for food on multiple occasions during the previous two or three years.

There is no dispute that a fire began in the dumpster a few minutes after Uribe climbed out of it. No video captured the cause of the fire. No eyewitness saw anyone start the fire. The prosecution therefore relied on expert testimony to make a case against Uribe at his preliminary hearing.

Expert Testimony

The arson investigator, Brandon Lynch, works for the Sacramento Fire Department. His job is to investigate the origin of fires. He has done so on dozens of occasions. The court allowed him to testify as an expert witness.

Lynch testified that the dumpster fire originated from an “open flame device … such as a lighter or potentially matches.” The fact that flames start fires is obvious and uncontroversial. Electrical fires don’t occur in dumpsters. Nor was the dumpster struck by lightning.

Yet fires do not need to be started by lighters or matches. As Lynch admitted on cross-examination, someone could have tossed a cigarette into the dumpster, igniting its contents. A heated Sterno can or some other hot object tossed into the dumpster might also have started the fire.

In short, the arson investigator had no evidence as to how the fire started. His opinion that it was probably started by a flame is one that the judge could just as easily have formed without the benefit of expert testimony.

The prosecutor apparently believed that Lynch’s testimony was significant because Uribe had three lighters in his possession when the police arrested him. Yet Lynch’s testimony that the fire was caused by “a lighter or potentially matches,” while carefully phrased to make it seem that a lighter was the more likely source of the flame, added little to the prosecution’s case.

Uribe might have used a lighter to start the fire while he was inside the dumpster, but nobody saw him do so. Lynch admitted that he could think of no reason why Uribe would want to set the dumpster on fire. An expert opinion that “lighters can start fires” says nothing about whether this fire was started by a lighter, much less by one of Uribe’s lighters.

Hearing Outcome

A preliminary hearing is held to determine whether the prosecution has sufficient evidence to allow the case to proceed to trial. Prosecutors face a low standard of proof at a preliminary hearing. The judge who presides does not evaluate the credibility of witnesses. If the evidence that a jury could believe to be true makes it probable that the defendant committed a crime, the case will proceed to trial.

In light of that low standard, the judge allowed the case to proceed to trial. Whether the arson investigator would be permitted to render the same unhelpful expert opinions at trial is unclear. Given the gaps in the testimony provided by its expert witness, however, the prosecution may decide that it lacks the evidence it needs to meet the trial standard of proof beyond a reasonable doubt. Uribe’s prosecution is a reminder that expert opinions cannot salvage a weak case when the opinions are grounded on speculation rather than evidence.