Category Archives: ExpertWitness

Priest Deemed Expert in Coded Language Used by Church to Refer to Clergy Sexual Misconduct

Filing suit anonymously, John Doe 122 sued Chaminade College Preparatory and the Marianist Province of the United States for clergy abuse. The key issue in the case was whether the school knew that a counselor had abused other students and disregarded that knowledge when it failed to protect Doe from abuse.

Doe offered the testimony of an expert witness who inferred the school’s knowledge from documents in the counselor’s personnel file that made coded references to the counselor’s misconduct. The trial judge concluded that the expert testimony was inadmissible and granted summary judgment in the school’s favor. On appeal, the Missouri Supreme Court held that the trial court erred by excluding the expert testimony.

Facts of the Case

Doe alleged that he was sexually abused by his counselor, Brother John Woulfe, during his senior year at Chaminade. Doe alleged that he put the abuse behind him and didn’t think about it again until he received a letter from Chaminade, almost forty years after his graduation.

The letter advised Doe that allegations of sexual abuse had been made against Woulfe. Doe alleged that the letter brought back memories of his own abuse. Three years later, Doe sued Chaminade on several theories, including alternative counts of negligent and intentional failure to supervise Woulfe.

The trial court held that the negligent supervision claim was barred by Missouri precedent. A decision of the Missouri Supreme Court held that religious organizations have a First Amendment right to hire and retain clergy without government interference. In the court’s view, holding a religious organization liable for making negligent decisions to retain employees would violate the First Amendment.

For similar reasons, the court held that religious organizations cannot be held accountable for negligent supervision of its employees. The court drew the nonobvious conclusion that inquiring into what a church “should have known” about its employee’s conduct would “require inquiry into religious doctrine.” The court therefore held that the well-recognized claim of negligent supervision, while applying to all other employers, cannot be applied to religious organizations because doing so would create an “excessive entanglement” of church and state.

Courts in most states disagree with Missouri’s analysis of the First Amendment. Missouri precedent nevertheless foreclosed Doe’s claim for negligent supervision However, Missouri precedent allows abuse victims to sue for an intentional failure to supervise when a religious employer knows that an employee is engaged in acts of abuse and fails to take action to prevent the abuse from reoccurring.

Documents Addressing Woulfe’s Employment Issues

Doe had no direct evidence that the school or the Marianist Province knew Woulfe was abusing students in 1971, when he allegedly abused Doe. Since the school removed Woulfe in 1977 because of sexual abuse allegations, the school clearly had that knowledge six years later. The question was whether the school knew that Woulfe posed a risk to children in 1971 and disregarded that known risk.

To prove his claim of intentional failure to supervise, Doe relied on a 1968 letter that Brother Gray wrote to Woulfe in 1968. Referring to Woulfe’s departure from St. Boniface, the letter stated that “the actual grace left by this unusual situation may be one which helps you to confront and overcome the problem, which if left untended, would eventually become a serious one for religious life.”

The letter does not describe the “unusual situation” or the potentially serious “problem” to which it refers. A 1970 letter from Gray to Woulfe notifies Woulfe that he would be retained at the school despite the Provincial Council’s “considerable misgivings and reservations.” The letter does not explain the Council’s “misgivings and reservations.”

Expert Testimony

Father Doyle was proffered as an expert witness to decode the meaning of the unexplained words and phrases. Father Doyle spent more than 30 years investigating the problem of sexual abuse within the church. He has reviewed the personnel files of thousands of priests. Based on that experience, he has developed an understanding of how the church encodes specific information about sexual abuse in personnel documents.

Based on his experience, Father Doyle was qualified to determine “what will (and will not) appear in personnel records when a priest has committed acts of sexual abuse and, if reference to such conduct is made, the form such references will take.” He is therefore an expert in how the church encodes information about a priest’s sexual abuse in personnel documents.

In Father Doyle’s experience, personnel documents address most performance issues directly. When a priest has a problem with alcohol, consensual relationships with adult women, or the failure to perform his duties, personnel materials address those issues directly.

Father Doyle noted that the church uses indirect language when a priest has engaged in improper relationships with minors. In his 30 years of experience, including his review of hundreds of personnel files of priests who were accused of engaging in sexual abuse of minors, Father Doyle never saw an explicit reference to sexual abuse. Instead, the files routinely use “coded or euphemistic language” to discuss the priest’s misconduct.

Father Doyle identified references in Woulfe’s file to the “unusual situation” and to his untended “problem” as coded references to his sexual abuse of minors. In Father Doyle’s experience, the church routinely uses language of that nature to describe sexual misconduct with minors.

Father Doyle also concluded that the provincial considered removing Woulfe from the school in 1970 because of sexual abuse allegations. Its reference to retaining him “with considerable misgivings and reservations” fueled Father Doyle’s opinion that the school knew about Woulfe’s history of sexual abuse and chose to retain him.

Father Doyle also concluded that the personnel file’s failure to refer to sexual abuse before 1971 was consistent with a similar failure to refer to sexual abuse when Woulfe was removed from the school in 1977. The priest who made the decision to remove Woulfe testified in a deposition that the removal was based on sexual abuse. The school’s failure to document that reason in Woulfe’s personnel file is consistent with its failure to document its awareness of earlier instances of sexual abuse in plain language.

Court Decision

Father Doyle forthrightly acknowledged the possibility that he was wrong. He did not claim to have “metaphysical certainty” about the meaning of the terms he decoded. But he rested his opinion on the church’s decades-long practice of using similar euphemistic language to avoid making a direct reference to sexual abuse of minors.

The supreme court concluded that Father Doyle’s opinion was admissible evidence. Courts routinely admit the expert opinions of police officers who testify about the “coded language” used by drug dealers. Father Doyle’s expert opinion is no different.

The court also rejected the argument that Father Doyle’s opinion invaded the province of the jury. Father Doyle expressed no opinion as to whether Woulfe sexually abused Doe. He simply explained the meaning of terms that would allow the jury to infer the school’s knowledge of Woulfe’s sexual abuse of students prior to and during the time when Woulf was a student.

Since a jury could believe Father Doyle’s testimony and could conclude from that testimony that the school knew about Woulfe’s sexual abuse of children before he allegedly abused Doe, the jury could find that the school ignored a known danger to students by disregarding its duty to supervise Woulfe. The trial court erred by excluding Father Doyle’s expert opinion and by basing summary judgment on the absence of evidence that the school knew about Woulfe’s sexual abuse of students.

Virginia court gavel

Virginia Court Considers Whether Expert Disclosures Were Timely

A group of Virginia taxpayers brought a legal action challenging the tax assessments of their property by the County of Northampton and the Town of Cape Charles. The taxpayers relied on expert witnesses to prove that the assessors overvalued their property.

The trial court excluded the expert opinions on the ground that the taxpayers failed to disclose them before a deadline established by a scheduling order. The court then granted summary judgment to the government defendants. Noting that the government defendants were well aware of the identity and opinions of one expert, the Virginia Supreme Court reversed the judgment.

Disclosure of Jason Restein

In 2015, the government entities served an interrogatory that asked for the identification of expert witnesses. The taxpayers identified Jason Restein and disclosed his expert report. A plaintiff signed the interrogatory answers under oath, but the taxpayers’ lawyer failed to sign them.

The interrogatory answers were combined in a single document with a response to a request for production of documents. The lawyer signed that response. The lawyer also signed a certificate of service at the end of the document.

In 2018, the court scheduled the case for trial on April 6, 2019. The scheduling order required expert witnesses and their opinions to be disclosed 90 days before trial.

In March 2019, after a government lawyer notified the taxpayers’ lawyer that he hadn’t signed the interrogatory answers, the taxpayers’ lawyer signed them. The government then moved to exclude Reston as an expert witness because he had not been disclosed 90 days before trial.

The trial court ruled that the interrogatory answers did not constitute an effective disclosure of Restein until they were signed by the attorney. Since the attorney did not sign them within 90 days of the scheduled trial, the court granted the government’s motion to exclude Restein as a witness.

Disclosure of Steven Noble

The government served a supplemental interrogatory in December 2018 asking the taxpayers whether their intended experts had changed. The taxpayers responded by disclosing Steven Noble as an expert.

The response promised to elaborate on the disclosure by January 19, 2019. However, no additional response was provided until March 18, 2019, when the taxpayers provided Noble’s report.

The government moved to exclude Noble’s report because it was not disclosed within 90 days of the trial. The court granted that motion.

Appellate Decision

In the absence of testimony from Restein or Noble, the taxpayers could not offer an expert opinion of the fair market value of their property. The court therefore dismissed their lawsuit. The taxpayers appealed.

A Virginia rule of civil procedure allows a trial judge to exclude evidence as a sanction for disobeying a scheduling order. The court had little difficulty affirming the decision to exclude Noble’s testimony. While the disclosure of Noble’s identity was timely, the disclosure of his opinions was not. The taxpayers’ lawyer consented to the scheduling order before the court entered it and therefore had ample notice of the deadline.

The appellate court rejected the argument that the government could have obtained Noble’s opinions by taking his deposition. The court held that litigants must obey scheduling orders even if their opponents could obtain the same information in a different way.

The appellate court took a different view of the order excluding Restein’s testimony. The government received Restein’s report four years prior to the scheduled trial.

The court was unimpressed with the government’s argument that the disclosure of Restein’s identity was untimely because the taxpayers’ lawyer did not sign the interrogatory answers. Virginia procedural rules require that a discovery document contain the lawyer’s signature and address. The lawyer complied with that rule by signing the portion of the response that disclosed documents.

The lawyer’s failure to add a second signature to an unnecessary signature line following the interrogatory answers did not negate the fact that his signature appeared on the document. Since the rule does not require multiple signatures, the interrogatory answers were timely. Nor was it even arguable that the government was prejudiced, given that it received Restein’s report four years before the trial.

The trial court abused its discretion by excluding Restein’s testimony. It therefore abused its discretion by dismissing the case for lack of expert testimony. The appellate court therefore reversed the trial court’s judgment.

Lesson Learned

Courts take their orders seriously. While the trial court had no legal basis to exclude Restein’s testimony, the failure to make a timely disclosure of Noble’s opinions resulted in Noble’s exclusion. Lawyers run a huge risk when they fail to comply strictly with expert disclosure deadlines.

Human brain

Alaska Doctor Cleared of Malpractice Due to Insufficient Expert Testimony

An Alaska couple has lost their medical malpractice case against a doctor that they claimed caused the wife’s seizure for failure to support the claim with sufficient expert witness testimony.

The Incident

On February 6, 2016, William Beistline brought his wife Marcie to the Fairbanks Memorial Hospital emergency room.  She was seen by Dr. Bruce Footit, a board-certified internal medicine physician.  Marcie had been acting strangely and dealing with confusion, lethargy, and unsteadiness in the days prior to her visit.  She was also suffering from nausea, vomiting and diarrhea.

Marcie had been receiving “very unorthodox” and “fairly nontraditional” treatments for Lyme disease and insomnia. Marcie’s treatment providers had implanted a port in her chest so that she could self-administer “vitamin bags.” These providers had not given her any follow-up care for her port. Marcie was also taking Ambien, benzodiazepines, muscle relaxants, and other herbal remedies. Marcie’s medical history appeared to include depression, “potential psychiatric disease,” and chronic insomnia.

Dr. Footit was unable to determine what was in the vitamin bags or the dosage or frequency of Marcie’s medications. Dr. Footit believed that Marcie was possibly experiencing hyponatremia, or abnormally low amounts of sodium in the blood, and delirium due to her excessive medication use.  He also determined that Marcie’s change in mental status was likely due to sepsis or bacteremia from her port.

Dr. Footit ordered a hold on Marcie’s medications, a toxicology screen, IV fluid resuscitation, and the removal of her port. Two days after her port was removed, Marcie suffered a tonic-clonic seizure. She was transferred to the intensive care unit and discharged three days later.

Superior Court

In 2018, the Beistlines filed a lawsuit against Dr. Footit and the hospital. They claimed that Marcie’s seizure was the result of Dr. Footit’s decision to cut off all of her medications, which breached the standard of care.

Dr. Footit and the hospital filed a motion for summary judgment. They supported their motion with the expert affidavit of Dr. Thomas McIlraith, a licensed and board-certified internal medicine physician. Dr. McIlraith noted that Dr. Footit did not have access to Marcie’s medical records and that Marcie was delirious. He testified that the standard of care required that potential causes of the delirium be treated and that Dr. Footit did this by correcting the hyponatremia and treating the sepsis from the implanted port. He also testified that Dr. Footit acted competently, met the standard of care, and acted as a reasonable and prudent internist by withdrawing the unknown medications.

The Beistlines opposed the summary judgment motion and filed an affidavit from pharmacist Dr. Gregory Holmquist. Dr. Holmquist assumed that Dr. Footit had discontinued Marcie’s benzodiazepine drugs and Ambien and testified that there are strict protocols for how to remove patients from these drugs and that a failure to follow the protocols could contribute to seizure.

The superior court determined that Dr. Holmquist was not qualified as an expert under AS 09.20.185(a), which requires a witness to be “certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue.” The court ruled, “A doctor of pharmacy’s expert testimony is insufficient to rebut the testimony of a board-certified internist about the standard of care required of a board-certified internist practicing internal medicine.”

The superior court granted summary judgment for Dr. Footit and the hospital.

Alaska Supreme Court

The Beistlines appealed. The Alaska Supreme Court agreed with the superior court that a pharmacist who was not board-certified in the same field of practice as Dr. Footit would not qualify to give expert testimony about the standard of care required of a board-certified internist practicing internal medicine.

The court pointed out, “Dr. Holmquist thus concedes that he does not know whether the withdrawal protocols he describes, known to a pharmacy expert, are also ‘general knowledge to a board-certified internal medicine physician,’ although he believes that they ‘should be.’ And nothing in his affidavit indicates that he has a basis in training or experience for knowing the answer to that question or for knowing the circumstances under which an internist would consider it necessary to consult ‘the hospital’s pharmaceutical department.’”

The Alaska Supreme Court affirmed the judgment of the superior court.

New Trial Ordered After Judge Impermissibly Questions Expert Witness

The American jury trial system is adversarial. The plaintiff presents evidence to prove entitlement to legal relief. The defense challenges that evidence and has the option to present evidence of its own to persuade the jury that relief should not be awarded.

Between the two adversaries sits a neutral judge. The role of the judge, as Chief Justice Roberts put it in his confirmation hearing, is to call balls and strikes. In fact, Supreme Court Justices do not play the role of umpire — they determine the law — but Chief Justice Roberts aptly described the role of a trial judge.

Assuming that the law is settled, the trial judge’s only task is to assure that the parties receive a fair trial. The judge should not take sides in the dispute. Taking sides is the job of the adversaries and their attorneys.

Judges must usually allow the parties to present their evidence as they see fit, within the bounds of the law. Judges decide whether questions that the lawyers ask witnesses are proper, but judges do not themselves question witnesses. Deciding whether questions are proper results in the “balls and strikes” rulings that Chief Justice Roberts described.

On occasion, judges ask questions to clarify answers, but they must maintain their neutrality while doing so. Judges cross the line between neutrality and advocacy when they take over the questioning of a witness. The Idaho Supreme Court recently decided whether a trial judge’s questioning of an expert witness crossed that line.

Facts of the Case

Damian Secol died from T-cell lymphoblastic lymphoma, a rare form of cancer. Several months before his death, Damian visited a primary care physician, Dr. Austin Gillette, at Fall River Family Medicine. Damian complained of persistent coughing and a feeling that his throat was closing when he lay down.

Damian visited the same clinic five more times over a period of about six weeks. Each time he was examined by either Dr. Gillette or Dr. Kelly Dustin. Neither physician ordered a chest x-ray.

Damian’s wife Cassie accompanied Damian on one of his visits. She asked Dr. Dustin to perform a chest x-ray. Dr. Dustin told her the x-ray was unnecessary because Damien was suffering from an allergy or asthma.

Damian’s symptoms steadily worsened. After his last visit with the clinic, he drove some distance to another clinic and asked for a second opinion. He was promptly given a chest x-ray and a CT scan, which revealed a large mass in his chest. A biopsy confirmed that Damien had acquired a fast-growing form of cancer. The first stage of Damian’s treatment by an oncologist was successful, but his condition deteriorated during the second stage, leading to his death.

Trial Evidence

On behalf of herself and her four children, Cassie sued Fall River Family Medicine and Drs. Gillette and Dustin for medical negligence. She contended that the doctors breached the appropriate standard of care by not ordering a chest x-ray, resulting in a delayed cancer diagnosis and Damian’s premature death.

The clinic designated two expert witnesses to testify about standard of care. Cassie asked the court to limit the clinic to a single standard of care expert. The judge granted that motion. After the judge was appointed to a higher court, the case was reassigned to Judge Jon Shindurling. The clinic asked Judge Shindurling to reconsider the ruling that limited it to a single standard of care expert. While a change of judge is not usually an adequate ground to reconsider a ruling, Judge Shindurling granted the clinic’s request.

The clinic also disclosed Dr. Jeffrey Hancock, Damian’s treating oncologist, as a non-retained expert witness. The clinic wanted to ask Dr. Hancock whether his prognosis would have been different if Damian had been diagnosed six weeks earlier. The clinic contended that the delayed diagnosis, even if caused by their doctors’ negligence, did not cause any harm because Damian would have died on the same day even if the cancer had been diagnosed six weeks earlier.

Carrie objected that Dr. Hancock should be limited to testifying about his diagnosis and treatment of Damian. Since he was not a retained expert, Carrie argued that he should testify as a treating physician and should not provide expert opinions about the impact of a delayed diagnosis. Judge Shindurling overruled those objections.

Judicial Questioning

After Dr. Hancock testified and was cross-examined, Judge Shindurling engaged in an extensive cross-examination of his own. Among other questions, the judge asked:

  • Whether it was likely that Dr. Gillette should have diagnosed cancer during his first visit with Damian.
  • What the primary care physician faces after seeing symptoms which “ultimately, in hindsight,” were symptoms of cancer.
  • At what point a patient who is being treated for symptoms similar to Damian’s would come to see an oncologist. Dr. Hancock testified that he would usually see the patient after a couple of months of treatment, when a physician has seen a mass in a chest x-ray.
  • Whether sending a patient to an oncologist “a couple of months” after first seeing the patient for such symptoms means that the treating physician acted inappropriately. Dr. Hancock responded, “never.”

The judge said that he wanted to hear about the six-week period between the first consultation and the chest x-ray because “the testimony hasn’t focused on that.” While the court characterized the questions as “clarifying,” the questions went beyond the evidence presented by the defense and actively solicited expert opinions that the defense did not solicit.

Clarissa moved for a mistrial because the judge departed from his role as a neutral umpire and became an advocate for the defense. Unsurprisingly, the judge denied that motion and the jury returned a verdict in favor of the clinic and its doctors. Clarissa appealed.

Appellate Analysis

While Idaho’s procedural rules allow judges to question witnesses, the state supreme court noted that “exercise of this authority is fraught with the risk that the jury will be influenced in their deliberations by their perception of the court’s opinion of an issue.” A judge’s extensive questioning of a witness signals the judge’s belief that the witness has given important testimony.

A jury may attach greater weight to the testimony of a witness who has been questioned by the judge or may attach lesser weight if the judge’s questions suggest skepticism about that testimony. Judicial questioning should therefore be limited to clarifying a confusing answer.

Judge Shindurling went well beyond the permissible bounds of questioning. As the supreme court noted, the judge elicited inadmissible testimony. As he acknowledged in his deposition, Dr. Hancock was not qualified to testify about the standard of care that applies to primary care physicians. The clinic did not ask him to do so. Yet the judge asked what Dr. Gillette should have done and expressly asked whether Dr. Gillette acted inappropriately. The questions could only be answered with inadmissible standard of care testimony.

The judge’s comment explaining why he wanted to ask questions was also prejudicial. The judge said he had “some thoughts that haven’t been answered” and that it had only “been suggested, or at least implied” that Fall River should have diagnosed Damian’s disease earlier.

The first comment suggests that the judge wasn’t satisfied with the evidence presented by Clarissa. As the supreme court explained, the judge’s “statement that the evidence that had been presented merely implied or suggested certain facts called into question the weight of the expert testimony offered by the Secols during trial.”

The jury likely understood the judge’s comments to mean that the judge didn’t think the expert evidence presented by Clarissa was sufficient to prove malpractice. The judge thus improperly placed his thumb on the scale to favor the clinic.

Finally, after Dr. Hancock testified that it is never inappropriate for a treating physician to fail to order a chest x-ray for a period of several weeks as a patient’s health declines, the judge commented: “Thank you. That’s the questions I had. I think that we needed to focus on that point of view.” The jury could easily have perceived that comment as an endorsement of Dr. Hancock’s expert opinions.

Since Judge Shindurling’s comments and questions unmistakably signaled his opinion that the malpractice claim had no merit, the judge deprived Clarissa of a fair trial. The supreme court therefore reversed the judgment against her and ordered a new trial.

Unfortunately, not all trial judges confine themselves to calling balls and strikes. When a judge abandons neutrality and takes one party’s side, presenting expert testimony becomes a futile endeavor. Fortunately, the Idaho Supreme Court ordered the case reassigned to a different judge so that Clarissa will have a chance to present her case to a jury that will not be influenced by judicial bias.


Policeman standing with crossed arms

Colorado Supreme Court Allows Police Officers to Testify About Body Language Without Expert Designation

The Colorado Supreme Court has ruled that police officers may testify about how they interpret body language without first being designated as expert witnesses.

The Non-Verbal Response

A fifteen-year-old student was sent to the school counselor after a teacher expressed concern that the student appeared ill.  During his meeting with the counselor, the student explained that he had attended a concert the night before with his thirty-five-year-old stepsister, Justine Murphy, and that he had used methamphetamine with her before the concert.

The student was admitted to a local hospital for evaluation and recovery. The school resource officer, Deputy Mark Johnson, interviewed the student while his father was present. During the interview, Deputy Johnson asked the student where he got the methamphetamine and if he had gotten it from his stepsister. Deputy Johnson later testified that instead of responding, the student’s body language changed, instead of looking directly at him, he looked down and away. The deputy took the student’s nonverbal response to mean that he didn’t want to answer because the answer was yes, so he asked a follow-up question, “Did she just give it to you or did she sell it to you?” The student responded that “She sold it to me.”

Murphy was charged with distributing a controlled substance and contributing to the delinquency of a minor.

Expert Designation Issue

Prior to trial, defense counsel objected to Deputy Johnson testifying about the inference he had drawn from the student’s non-verbal response. Defense counsel argued that the deputy should have been first qualified as an expert witness.

The trial court overruled the objection, finding that Deputy Johnson’s testimony constituted lay opinion testimony because he had observed the student’s body language and had a rational basis for forming an opinion about the body language.  A jury found Murphy guilty of distributing methamphetamine and contributing to the delinquency of a minor.

Murphy appealed and the court of appeals reversed, ruling that Deputy Johnson’s testimony was improper lay testimony “because it provided more than an opinion or inference rationally based on his perception.” Instead, the court concluded that Johnson’s testimony was based upon his training and experience. It could just as easily be said that Johnson’s testimony was improper because it was speculative.

The state appealed to the Colorado Supreme Court. The Colorado Supreme Court granted certiorari. The court clarified that lay witnesses are generally confined to stating facts, as opposed to providing opinions, inferences, or conclusions. Lay witnesses may provide opinion testimony where it is “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’[s] testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”  In contrast, expert opinion testimony is “scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue” and requires an expert’s “knowledge, skill, experience, training, or education” to provide the requisite foundation for that specialized knowledge.

The court determined that the trial court properly admitted Deputy Johnson’s opinion as lay testimony. It concluded that any lay person could have come to the same conclusions as the officer. The court wrote, “Anyone who has interacted with children, for example, could infer that a child who looks away or avoids eye contact when confronted about their misbehavior (‘Did you take the cookie?’ ‘Did you hit your brother?’) may be tacitly acknowledging that misbehavior.”

Of course, the same body language may signal that the child feels intimidated by the officer and doesn’t want to interact further for that reason. The officer is not a mind-reader. It should be up to the jury, not the officer, to draw inferences based on the officer’s testimony about what the officer saw.

By reversing the Colorado Court of Appeals ruling, the state supreme court reinstated Murphy’s conviction and eight-year prison sentence.

Bloody knife

Prosecutor’s Improper Disparagement of Defense Expert Deemed Harmless

Thomas Lee Johnson was convicted of first-degree murder. Weeks after a woman was stabbed to death in her home, Johnson told his ex-wife that he had rented a car, driven to the woman’s home, carried a stun gun into the residence, and confronted the woman. Johnson told his former wife that the woman armed herself with a knife and told him to leave. Johnson’s story became confusing at that point, but he said that he panicked in response to the woman’s reaction. He then disposed of the knife and left the state.

Johnson relied on expert witnesses during his trial. On appeal, he argued that the prosecution’s cross-examination of his expert witnesses, and the prosecution’s comment upon the experts during closing argument, was improper. The Colorado Court of Appeals agreed but affirmed the conviction.

Cross-Examination of Clinical Psychologist

Gwen Mitchell, a clinical psychologist, testified about the human response to stress and trauma, including the concept of “fight, flight, or freeze.” She explained that people do not always make a rational evaluation of threatening situations. A mistaken assessment of a threat may lead to the excessive use of force in response to the threat.

Mitchell also testified that after a traumatic event, individuals may suffer from an impairment of memory or may be unwilling to discuss the event. They may also experience dissociative behavior.

On cross-examination, the prosecutor asked Mitchell:

  • if “rational people . . .decapitate women on their apartment floors”;
  • if taking such actions as leaving the state, obtaining false identification, behaving evasively, and hiding the truth from police and family is consistent with an attempt to avoid responsibility;
  • if certain behavior is consistent with “narcissism from the DSM-5 grandiosity”;
  • if the abandonment of parental rights can cause stress and be a sign of narcissism or sociopathy; and
  • if a sexual assault could be the result of stress and if the possibility of a “rape charge” could create further stress.

The defense objected that the questions were irrelevant, inflammatory, or improper. However, the defense used the expert testimony to argue that Johnson’s actions were the result of a primitive response to the perception of a threat. The court of appeals concluded that the prosecutor’s questions were relevant because they were designed to cast doubt on Mitchell’s opinions in favor of the alternative theory that Johnson engaged in premeditated conduct. The prosecution’s hypothetical questions were based on evidence that the jury heard so they were not improper.

The prosecutor certainly walked the line between permissible and impermissible questioning. The court characterized the questioning as “aggressive.” Asking an expert whether rational people “decapitate women on their apartment floors” seems to cross the line from aggressive to inflammatory. With little analysis, the court nevertheless concluded that the questioning did not deprive Johnson of a fair trial.

Cross-Examination of Criminal Investigation Expert

The defense called Joseph Arseneau as an expert in criminal investigations. Arseneau worked for several years as a law enforcement officer before beginning a career that involves litigation support and expert testimony.

The appellate opinion provides little information about Arseneau’s direct testimony. On cross-examination, the prosecutor asked if the evidence that Arseneau reviewed would be “consistent with a sadistic and demeaning sexual cutting” and if it would be “also consistent with [a] brutal, depraved, cold-blooded hacking of a woman.”

The appellate court decided that the questions were not unfairly prejudicial because they explored a theory of the crime as an alternative to Arseneau’s theory. The question, however, was not whether exploring alternative theories was proper, but whether it was prejudicial to do so by using inflammatory language that was likely to stir the passions of the jurors. The court skirted that issue.

Closing Argument

Discussing Arseneau’s expert testimony during its closing argument, the prosecutor:

  • told the jury “that guy is a fraud”;
  • characterized Arseneau’s testimony as the “speculative musings of an overreaching, I suppose, ex-police officer with bare minimal experience, who I submit to you tried to sell himself to us as something . . . he is not”; and
  • argued that “with his bogus web page, [Arseneau was] holding himself out as Colorado P.O.S.T. Certified, with misleading puffery and false swagger, essentially saying anything he can and co-opting the work of others. He reads a book, and he wants to come here and pretend like he’s the author of the book.”

The outrageous nature of the attack on Arseneau was of only slight concern to the appellate court. The court concluded that Arseneau’s nine years of law enforcement experience could fairly be characterized as “minimal” since he was a patrol officer, not a crime scene investigator. Yet expertise can be acquired through study, not just experience, and gaining expertise through study does not make an expert “something . . . he is not.”

Arseneau admitted during his testimony that he was not currently certified by the Peace Officer Standards and Training Board (P.O.S.T.) because P.O.S.T. only certifies current law enforcement officers. Arseneau was certified when he was still working as a law enforcement officer. The appellate court concluded that the failure to indicate on his website that his P.O.S.T. certification was no longer current] provided an evidentiary basis for the prosecutor’s comment that the website was “bogus.” The court relied on that same evidence to excuse the prosecutor’s argument that Arseneau “tried to sell himself to us as something that he is not” and engaged in “misleading puffery.”

The court was more troubled by the prosecutor’s characterization of Arseeau as ““co-opting the work of others,” and as having read a book and “want[ing] to pretend like he’s the author of the book.” The court recognized that the prosecutor had no basis for accusing Arseneau of being a plagiarist. Nor does one “co-opt the work of others” by reading a professional treatise and learning from it. The accusation that Arseneau plagiarized another person’s work was an improper personal attack upon the expert witness.

The court also agreed that the prosecutor crossed the line between fair but aggressive argument and unfair disparagement of an expert witness when he accused Arseneau of testifying “with false swagger, essentially saying anything he can.” While “misleading puffery” went to the content of Arseneau’s website, “false swagger” was a personal attack upon his character. Claiming that Arseneau would say “anything he can” was the equivalent of calling him a “hired gun,” which Colorado precedent forbids.

While the court held that the prosecutor’s personal attack on the expert was improper, the court also held that the evidence against Johnson was so strong that the misconduct could not have influenced the verdict. Characterizing the misconduct as harmless, the court affirmed the judgment.

While the court’s harmless error analysis may be correct, it does nothing to correct the prosecutor’s misconduct or to discourage prosecutors from disparaging experts in the future. Nor does the analysis assure that defendants receive fair trials. Unethical prosecutors who believe in winning at all costs have learned from decisions like Johnson that they can attack defense experts with impunity and without consequence.


Election Experts Testify in Virginia Voter ID Case

District Court Erred by Dismissing Expert Opinions as Conjectural

Camille Sedar parked her car on the ground level of a parking garage at Reston Town Center, where she planned to have lunch with friends. Reston Town Center is a mixed-use development in Reston, Virginia.

Patrons who park in the garage must climb up a short flight of stairs before crossing a brick-paved landing and climbing down another short flight of stairs that leads to a sidewalk. As Sedar was crossing the landing, she tripped and fell.

Sedar has no memory of the fall. Friends who were following her did not see her trip, but they testified that her direction of travel took her over some loose bricks just before reaching the top of the stairs. Her friends took pictures and videos of the loose bricks.

Sedar landed face down on the sidewalk. She suffered a concussion, lost consciousness, fractured her elbow, and had cuts on her face and lip. An ambulance transported her to an emergency room for treatment.

After she was discharged from the hospital, Sedar examined the flat-soled shoes she had been wearing. She saw a scuff mark on the toe that was not present before she fell. She concluded that the scuff mark was caused by contact with the loose bricks.

Expert Evidence

Sedar hired a structural engineer to reconstruct the accident. The expert formed an opinion based on witness testimony, photographs of the scene, and the scuff mark on Sedar’s shoe.

The expert opined that deteriorating caulk on the landing caused bricks to become loose and unstable. He concluded that the landing was “structurally unsound and a hazard that violated applicable building and maintenance codes.” In his opinion, the hazardous condition was the most likely cause of Sedar’s fall down the stairway.

Summary Judgment

Sedar sued the property owner and the property manager. They removed the case to federal court, a forum that is often less friendly to plaintiffs than state court.

The defendants moved for summary judgment. They argued that no evidence proved that the property was in an unsafe condition. They argued in the alternative that if the property was unsafe, no evidence proved that they knew or should have known of the unsafe condition. Finally, they argued that Sedar could not prove that the allegedly unsafe condition caused her injury, given her loss of memory.

Remarkably, the district court judge granted summary judgment against Sedar. The court held that Sedar failed to prove that the property was dangerous or that the property owner or manager had notice of the unsafe condition. Notwithstanding the expert evidence, the court found that Sedar could only “speculate” about the cause of her fall.

Sedar appealed. The Court of Appeals for the Fourth Circuit sensibly reversed the district court’s defense-friendly judgment.

Dangerous Condition and Notice

The appellate court made short work of the first two issues. Whether the property was dangerous was a jury issue. Witnesses testified that the bricks were loose. Photographs showed that the loose bricks created a lip that constituted a tripping hazard. The expert engineer opined that the property condition shown in the photographs was dangerous. Since the evidence was sufficient to allow a jury to find that the condition was dangerous, the judge should not have taken that issue from the jury.

To prove that the property owner knew of the hazard, Sedar relied on a security guard’s testimony that he had “almost tripped on the stairwell a thousand times” because of “the way that it transitions from the garage to the stairs.” The appellate court held that the testimony referred to the layout of the brick landing and not to loose bricks. The court therefore agreed with the district court that there was no evidence that the property owner knew of the hazardous condition that caused Sedar’s fall.

On the other hand, the appellate court noted that Sedar’s expert testified that the deteriorating caulk joint adjacent to the loose brick would have been visible for some time. In the expert’s opinion, the condition that caused the brick to loosen did not happen overnight but resulted from a failure to maintain the property. In the expert’s view, the property owner should have spotted the hazardous condition during routine inspection and maintenance of its property.

The district court mischaracterized the expert testimony as “conclusory allegations.” In fact, the expert based his opinions on specific facts drawn from photographs of the property. He formed an opinion by applying his knowledge of property deterioration to those facts. The expert testimony would therefore allow a jury to conclude that Reston Town Center had constructive notice of the property defect. The district court erred by concluding otherwise.


Sedar was required to prove that the defective property condition caused her injury. Because she had no memory of tripping on the loose brick, and because no witness observed the reason for her fall, Reston Town Center argued that she could not prove causation.

While Sedar had no direct evidence of causation, the appellate court was satisfied that she presented circumstantial evidence. Witnesses testified that her path of travel took her across the defective portion of the landing. Photographic evidence of bloodstains were consistent with her following that path. In addition, the scuff at the tip of her shoe was consistent with her shoe getting caught in the lip created by the loose brick.

Sedar’s expert confirmed that a loose brick was the most likely cause of her fall, given the witness statements and contemporaneous photographs showing the property condition. The district court again disregarded that evidence as “conjectural.” The appellate court noted that inferences drawn from facts are not conjectural when the inferences are reasonable.

Reston Town Center argued that the circumstantial evidence was inconsistent. The appellate court recognized that juries, not judges, sift through inconsistent evidence to determine the truth. Since evidence, including expert testimony, supported the reasonable inference that Sedar tripped on a loose brick, it was up to the jury to decide whether that was the most likely reason for her fall.


Scales, law books

Legislative Committee Passes Bill to End Bad Convictions from Faulty Expert Testimony

A bill to end wrongful convictions due to faulty expert witness testimony has passed the California Senate Public Safety Committee.

SB 243

California Senate Bill 243 is a criminal justice reform bill that was authored by Senator Scott Wiener, a Democrat from San Francisco, and introduced on January 21, 2021. The bill proposes to add Section 806 to the Evidence Code and amend Section 1473 of the Penal Code. It relates to trial testimony.

Wiener has stated that the bill will “help exonerate innocent people across California, by strengthening the grounds for those wrongfully convicted based on faulty expert testimony to seek ‘post-conviction relief.’”

According to Wiener, currently

courts have discretion over which expert testimony is admissible. Studies show that courts accept most forensic science and expert testimony without sufficient scrutiny, leaving significant room for imprecision and human error. This error leads to the high rate of wrongful convictions. Expert testimony that fails to rely on sound logic should not be considered expert testimony at all.

SB 243 amends the standards for evaluating expert testimony and forensics in courts both in the pre- and post- conviction phases. SB 243 updates the definition of false testimony to include opinions that are based upon “flawed scientific research or outdated technology that is now unreliable or moot, and opinions about which a reasonable scientific dispute has emerged regarding its validity.”

Wiener stated,

Faulty ‘expert’ witness testimony is one of the main reasons innocent people are sent to prison for crimes they did not commit. That is an unacceptable miscarriage of justice. Even one innocent person in prison is too many. SB 243 will ensure that when expert witness testimony is given, the science behind it is reliable. This is an important criminal justice reform measure that will help many innocent people.

Melissa Dague O’Connell, Staff Attorney and Policy Liaison for the Northern California Innocence Project, has said, “The Committee’s vote to move SB 243 forward recognizes how important it is for our criminal courts to stay lockstep with the advancements in and scrutiny of forensics and expert testimony to not just prevent wrongful convictions, but to intervene and restore justice when a wrongful conviction occurs.”

SB 243 is sponsored by the California Innocence Coalition, which includes the Northern California Innocence Project, Loyola Project for the Innocent, and the California Innocence Project. The bill was passed by the Senate Public Safety Committee in a unanimous vote. The voting members were Senators Bradford, Kamlager, Ochoa Bogh, Skinner, and Wiener. The bill will now move on to the Senate Appropriations Committee.

Other Reform Bills

SB 243 is part of a larger group of California Innocence Coalition reform bills. Another bill is SB 923, which was also authored by Senator Wiener. SB 923 ensures that law enforcement must use evidence-based procedures when obtaining eyewitness identification. Before this bill was signed into law in 2018, California had no statewide standards or best practice for eyewitness identification.

Idaho Justice Legal System Concept

Idaho Court Affirms Role as Gatekeeper of Expert Testimony

An Idaho federal district court has affirmed its role as the gatekeeper of expert witness testimony, by granting in part and denying in part a defendant’s motion to exclude expert witness testimony.

The Incident

Maria Elosu and Robert Brace owned a vacation cabin in McCall, Idaho. The cabin was part of a homeowners’ association called Middlefork Ranch, Incorporated (MFR). The cabin had a wrap-around deck with a propane-fired refrigerator on the north side.

On the day before the incident, Brace stained the deck using an oil-based stain. That night, Elosu smoked cigarettes on the deck. The next morning, Brace and Elosu used rags to clean up the excess oil from the deck. An MFR employee changed the propane on the refrigerator and relit the pilot light.

At 4pm, a fire started in or around the cabin when no one was home. A group of contractors discovered the fire and testified that the fire was isolated to the east side of the cabin when they first arrived. One witness testified that there were no flames around the propane-fired refrigerator. The fire destroyed the cabin and its contents.

The Lawsuit

Brace and Elosu sued MFR for negligently starting the fire. They claimed that the employee knew of the hazard when he lit the refrigerator pilot light on the oil-stained deck. Brace and Elosu hired a fire investigator, Michael Koster, and a mechanical engineer, Richard Mumper, to support their claims. Koster inspected the scene ten months after the fire. Mumper conducted lab tests. Both experts opined that the fire started on the north deck when the pilot light from the refrigerator ignited excess oil vapors.

MFR filed a motion to exclude Koster’s testimony as speculative and not supported by evidence. The court agreed. It found that Koster failed to meet the standards set by Daubert and Federal Rule of Evidence 702 because his conclusion was speculation or contrary to or unsupported by evidence. The court noted that Kosted admitted that there was no concrete physical or testimonial evidence to support his theory that the fire started on the north side of the deck.

MFR also filed a motion to exclude Mumper’s opinion because he is not a certified fire investigator. Brace and Elosu hired Mumper to examine the remnants of the appliances, including the propane refrigerator. Mumper conducted lab tests and examined the evidence. He concluded that there was no mechanical malfunction and opined that the pilot light started the fire.

While Mumper was not a certified fire investigator, the court noted that he worked for a firm that specializes in forensic fire investigations, so he might be qualified to offer opinions about the origins of the fire. However, the court ruled that Mumper could not testify about the origins of the fire in this case because his opinions lacked a proper foundation. Here, Mumper’s role was limited to investigating whether any of the appliances malfunctioned. He did not independently look into any other possible causes.

Bloody tear of Themis

NY Attorney General Criticized for Presenting Expert Testimony to Grand Jury in Daniel Prude Death Investigation

New York Attorney General Letitia James made an unusual decision to include the testimony of a defense expert when she presented the prosecution’s case against Rochester police officers who allegedly caused the death of Daniel Prude. Despite evidence that Prude stopped breathing while being restrained by the police, a grand jury refused to indict the officers who restrained him. James now faces criticism for her choice of expert witnesses.

Death Investigation

James began an investigation of Prude’s death in July 2020. The results of her investigation are summarized in a report that she released prior to the grand jury vote.

Prude’s brother called 911 to report that Prude was suicidal, had used PCP, and had run from the brother’s home on a freezing night without putting on shoes or a coat. Prude’s brother hoped that the police would locate and help Prude.

Prude tossed a brick through a window and later told a tow truck driver that he needed help. The driver called 911 after Prude ran away. The driver reported that Prude was covered with blood. Prude removed all of his clothing while he was being recorded by a bystander.

Officers of the Rochester Police Department arrived at the scene. Officer Vaughn told Prude to get on the ground and put his hands behind his back. Prude complied and Vaughn handcuffed him. Other officers arrived. While awaiting an ambulance, Prude began to spit, so officers placed a spit sock over his head. The spit sock made Prude even more agitated.

The officers believed that Prude was trying to stand. Officers Taladay and Santiago forced him to the ground and held him there using a stabilization technique known as “segmenting.” They learned that technique in their training. The report explains that “the segmenting involved PO Vaughn holding Mr. Prude’s head to the side and applying downward pressure while PO Taladay placed a knee along Mr. Prude’s lower back / belt line.”

An ambulance arrived with a paramedic and an EMT. The report suggests that they acted with a lack of urgency. Neither the paramedic nor the EMT checked on Prude’s condition as he was being restrained. The paramedic considered using a sedative to calm Prude while the EMT brought a gurney from the ambulance.

Prude vomited, then fell silent. At some point, Vaughn noticed that Prude was no longer breathing. He rolled Prude onto his side. The EMT could not find a pulse so he asked the paramedic for assistance. The paramedic directed the EMT to begin CPR. After several minutes, Prude recovered a heartbeat, but he never recovered consciousness. Prude was removed from life support about a week later.

Autopsy Report

The county medical examiner performed an autopsy. She ruled the death a homicide. She identified the causes of death as:

  • Complications of asphyxia in the setting of physical restraint
  • Excited delirium
  • Acute phencyclidine intoxication

“Excited delirium” is a controversial diagnosis that refers to “the abrupt onset of aggression and distress, typically in the setting of illicit substance use, often culminating in sudden death.” The nonprofit Brookings Institution cautions that the diagnosis “is not recognized by the vast majority of medical professionals.”

Many experts regard excited delirium as junk science. The medical examiner who autopsied Prude noted that the condition is “quite rare.” It is almost exclusively diagnosed when a death occurs while a suspect is being restrained by the police.

The finding of more than one cause of death is not unusual. People often die for multiple reasons. If one person stabs another in the heart, heart failure will be a cause of death, but so will stabbing.

The question in Prude’s case was whether he would have died in the absence of police restraint. If not, police restraint was a cause of his death. The medical examiner concluded that neither PCP ingestion nor excited delirium would have caused Prude’s death if he had not been restrained. She therefore concluded that restraint was a cause of his death.

Retained Experts

The Attorney General’s office retained Dr. Gary Vilke to review the official autopsy results. Dr. Vilke is an emergency room physician in California who has testified in more than one hundred cases involving deaths in police custody. In each case, he was retained by the police officer who was accused of causing the death.

Dr. Vilke agreed with the medical examiner that Prude’s ingestion of PCP caused him to experience excited delirium. Vilke determined that Prude died from cardiac arrest. He described people who are in a state of excited delirium as being particularly vulnerable to heart attacks.

James has been criticized for hiring Dr. Vilke, an expert who has “a consistent track record of deflecting blame from police when people die in their custody — including with regard to excited delirium and restraint leading to asphyxia, two hotly debated concepts that loomed large in Prude’s death.” Perhaps an expert whose career suggested greater objectivity about deaths in police custody would have been a better choice.

James also hired Geoffrey Alpert, an expert in use of force. Alpert generally concluded that the officers acted within the boundaries of acceptable police practices. He concluded that placing the spit sock over Prude’s head, taking him to the ground, and performing the “segmenting” maneuver were all reasonable decisions. He did fault the officers for failing to roll Prude over after he vomited to prevent him from choking on his vomit.

Grand Jury Proceedings

James’ office presented evidence about Prude’s death to a grand jury. It asked the grand jury to indict the officers. The grand jury refused to do so.

Given the oft-repeated observation that any prosecutor can get a grand jury to indict a ham sandwich, the grand jury’s decision not to indict has raised questions about the Attorney General’s commitment to the case. While she expressed disappointment in the grand jury’s decision and concern about the rate at which black men are killed by police officers, a state Attorney General generally sides with the police — and routinely relies on police witnesses — in criminal prosecutions.

While James blamed the system for the grand jury’s decision, an attorney for the Prude family is asking why James’ office presented testimony from Dr. Vilke, an expert who routinely testifies in support of police officers. James is, after all, part of “the system.” Perhaps “the system” should not rely on an advocate of the controversial “excited delirium” theory when it seeks homicide indictments.

James might have been concerned that the defense would call a witness like Dr. Vilke at trial and wanted to test that defense before the grand jury. Yet presenting defense evidence to a grand jury is exceedingly uncommon. Prosecutors generally have no obligation to present evidence of innocence to a grand jury, although they may choose to do so in the interest of fairness. Whether it was “fair” to present controversial evidence about “excited delirium” to the grand jury is a matter of opinion.