Category Archives: ExpertWitness


The FTC Is Searching for Expert Witness

Expert witnesses are in short supply at the Federal Trade Commission after Carl Shapiro, an economist who teaches at the University of California – Berkeley, declined to participate in the FTC’s antitrust suit against Facebook.

Facebook Litigation

In December 2020, the FTC sued Facebook for engaging in anticompetitive practices. The FTC alleged that Facebook has maintained a monopoly position in the social networking industry by acquiring competitors, including Instagram and WhatsApp. The FTC also contended that Facebook imposed anticompetitive conditions on software developers.

Facebook has acquired a number of smaller companies that play varying roles in the social media industry, including Kustomer (customer service chatbots), Snaptu (smartphone apps), Beluga (messaging apps), (facial recognition), and Onavo (mobile analytics). The acquisitions have typically been folded into Facebook. Beluga’s messaging app, for example, became Facebook Messenger.

The FTC alleged that Facebook’s “course of conduct harms competition, leaves consumers with few choices for personal social networking, and deprives advertisers of the benefits of competition.” The FTC wanted Facebook to sell Instagram and WhatsApp, to stop imposing anticompetitive conditions on software developers, and to seek prior approval from the FTC before acquiring new companies.

The case has not gone well for the FTC. In late June, the judge dismissed the FTC’s complaint after finding that the FTC did not allege sufficient facts to demonstrate that Facebook was actually a monopoly. The court also dismissed a companion suit by state attorneys general because the states waited too long to file it. 

The court gave the FTC an opportunity to amend its complaint to allege more facts that would demonstrate a violation of antitrust laws. The FTC requested an extension of time to prepare and file its amended complaint, apparently in response to its loss of Shapiro’s services.

Missing Expert

The FTC may be able to draft an amended complaint without expert assistance, but the agency has traditionally relied upon economists to make a case against alleged monopolists. It hired Shapiro in 2019, paying his economic consulting firm more than $5 million.

Politico reports that the FTC paid Shapiro almost twice as much as it paid for other expert services during the past two years “at a time the agency has told Congress it is strapped for cash.” That might not be surprising. With a value of more than $1 trillion, Facebook can afford to fund an aggressive antitrust defense. The FTC will need to spend some money if it has any hope of proving its case.

Shapiro did not respond to Politico’s inquiries about the reasons for his departure. Politico notes that Shapiro has criticized new FTC Chair Lina Khan’s “aggressive approach to antitrust enforcement.” The social value of breaking up large companies is controversial, with many economists arguing that businesses should not be punished for their success. An economic system that depends on competition, after all, should recognize that the best competitors may drive less innovative competitors out of the marketplace. 

On the other hand, tactics that intentionally stifle competition, such as buying direct competitors and shutting them down to maintain market dominance, are harmful to consumers. A disagreement about where to draw the line in antitrust enforcement may narrow the field of economists who are willing to act as expert witnesses for the FTC.

Paying for Experts

The FTC confirmed Shapiro’s departure and its need for a new expert:

“The FTC does not comment on internal deliberations over any particular expert engagement,” spokesperson Lindsay Kryzak told POLITICO. “But the agency routinely reviews its expert support needs, including to ensure that the agency is making the best use of limited public funds while carrying out its law enforcement obligations.”

A 2019 audit found that the FTC pays about $750 per hour for experts. The audit recommended that the FTC use its in-house economists as experts in most cases. However, a former staffer told Politico that the FTC doesn’t have the computing power or infrastructure to take on the massive data analysis required in large antitrust cases.

Politico determined that the FTC spent $21.3 million for expert witness services during the fiscal year that ended on September 30, 2020. In the current fiscal year, the FTC has spent $25 million. The amounts paid vary between a few thousand dollars and several million, depending on the work required. The $5.7 million that the FTC paid to Shapiro’s firm is nearly twice the amount the FTC paid for expert witness services in any other case.

Outside experts told Politico that the largest expenditure of funds usually occurs later in the case, when experts are required to write reports. The FTC typically pays $1 million to $2 million for expert reports in complex cases. The Facebook litigation, however, is far from typical. One expert explained that the Facebook case involves “mind bogglingly large quantities of data.”

The new expert may be able to use the data that Shapiro already furnished to the FTC. To defend his or her opinions in court, however, the expert will need to conduct a fresh analysis of that date. That will likely require significant funding.

As a former FTC staffer explained to POLITICO, politicians and the public have complained that tech firms like Facebook are “too big,” although their reasons for making those complaints sometimes have little to do with economics. The staffer laments that the same people complain that the FTC spends too much money on expert witnesses. Noting that critics can’t have it both ways, the former staffer argued that Congress needs to give the FTC adequate resources if it wants the agency to tackle economic behemoths like Facebook.

Gavel and Stethoscope on Reflective Table

Georgia Court Reinstates Malpractice Verdict Despite Expert’s Equivocal Testimony About a Nationwide Standard of Care

Connie Lockhart was treated in a hospital emergency room in Cherokee County, Georgia. An emergency room physician, Dr. Glenn Bloom, mistakenly placed a catheter in her femoral artery rather than a femoral vein. The accumulation of medications administered through the catheter destroyed the tissue in her leg, resulting in its amputation.

Lockhart sued Dr. Bloom for medical negligence. Lockhart relied on the expert testimony of Dr. Eric Gluck to establish a breach of the standard of care for inserting a femoral catheter. Dr. Gluck had been board certified in critical care medicine for 27 years and had extensive experience placing central venous catheters in the femoral region.

Dr. Gluck is not an emergency room physician. He testified that he runs the ICU at the Chicago hospital where he is employed. He also testified that he is chair of a critical care committee that sets hospital policy for critical care departments, including the emergency department. He had personal, recent experience placing femoral catheters in an ICU but not in an emergency room.

Dr. Gluck testified that emergency room physicians, critical care physicians, and general practice physicians all follow the same standard of care for placing a femoral catheter. The standard of care requires the physician to identify the correct vein in which to insert the catheter and to follow an accepted procedure for its insertion. After it is inserted, the standard of care requires the physician to use one of four methods to confirm that it was inserted in the correct location.

Dr. Bloom acknowledged that he mistakenly inserted the catheter into the femoral artery but contended that he had no need to confirm its placement in the correct location because he did not suspect that it was placed incorrectly. The standard presumably requires doctors to double-check their work precisely because they might not suspect that they erred. Dr. Gluck expressed the opinion that Dr. Bloom breached the standard of care by failing to confirm the catheter’s placement in its intended location.

On cross-examination, Dr. Gluck admitted that he did not know whether emergency physicians are taught to verify the placement of a catheter. He knew that physicians in the Chicago hospital where he worked were required to verify the catheter’s placement, but he did not know whether that was a nationwide standard. On redirect, Dr. Gluck testified that he was confident that confirming the placement of catheters is a standard that applies regardless of geographical location. 

Directed Verdict

After the presentation of evidence concluded, Dr. Bloom moved for a directed verdict on the ground that Dr. Gluck was not qualified to articulate the standard of care that applies to Georgia emergency room physicians who place femoral catheters. The trial court concluded that Dr. Gluck’s testimony was “equivocal” as to whether a nationwide standard of care existed. The court concluded that Dr. Gluck was not able to testify about the specific standard of care that applies to emergency room physicians in Georgia, a state in which he never practiced medicine.

The court ruled that Dr. Gluck’s testimony did not establish a standard of care and that Lockhart therefore failed to prove a breach of that standard. The court thus directed a verdict in favor of Dr. Bloom despite the obvious harm he caused to his patient.

Nationwide Standard of Care

Courts define a standard of care as the care, skill, and treatment that, under the circumstances, is recognized as appropriate by reasonably prudent healthcare providers who practice in the same or a similar field of medicine. During much of the nation’s legal history, plaintiffs in medical malpractice cases were required to prove the standard of care that applied in the community where the treatment was provided. Courts were concerned that doctors in rural communities should not be held to the same standards as big city doctors because they had no opportunity to learn of “modern” practice trends that were implemented in remote urban locations.

The “locality rule” began to change as communication and transportation barriers disappeared. Many courts allowed expert testimony about the standard of care in similar communities within a region when physicians had the opportunity to gain experience and keep abreast of medical developments by visiting those communities.

By the late twentieth century, it was clear to most courts that doctors everywhere have the same opportunity, and thus the same responsibility, to educate themselves about best medical practices. Medical journals are available nationwide. Travel to continuing education programs in larger communities was no longer burdensome. With the advent of the internet, webinars bring continuing education programs to physicians in remote parts of the country.

Most courts now agree that it isn’t unfair to expect all physicians within a specialty to be familiar with standards that are widely regarded as necessary to protect patients from harm. For the most part, courts accept that nationwide standards of care, rather than local standards that vary from community to community, are necessary to assure that patients receive care that is consistent with medical advances known to average physicians in the United States who practice in a particular specialty.

Some jurisdictions cling to the “locality” or “similar community” rule. Those jurisdictions seem more interested in protecting physicians from liability for their failure to learn about current standards of care than in protecting patients from negligent care.

Appellate Analysis

The Georgia Supreme Court agreed that Dr. Gluck’s testimony was inconsistent. During his direct and redirect testimony, Dr. Gluck described a nationwide standard of care that applies to all physicians who place femoral catheters. On cross-examination, he admitted that he does not know if that standard of care is taught in all emergency room residency programs. He explained that his knowledge was based on his own experience in establishing a hospital-wide standard of care in Chicago.

Proving the existence of a nationwide standard doesn’t necessarily require proof that every medical school in the nation teaches that standard. No single expert is familiar with the teaching practices in every medical school. By virtue of their own experience attending conferences and meeting with other physicians who practice in a specialty, experts are often capable of forming an opinion that a nationwide standard of care has emerged.

Dr. Gluck’s testimony nevertheless created some uncertainty as to whether he was describing a national standard or a standard that applied only in the Chicago hospital where he worked. However, the supreme court noted that Dr. Gluck’s testimony was admitted into evidence without objection. Dr. Bloom did not make a Daubert challenge to Dr. Gluck’s qualifications or to the facts and methodology that informed his opinion. Instead, Dr. Bloom laid in the weeds and first raised his objection in a motion for a directed verdict after Dr. Gluck’s opinion was already in evidence.

In Georgia, a directed verdict should be granted only if there is no evidence that would support a verdict in the party’s favor. Dr. Gluck testified that a nationwide standard of care existed. If he contradicted that testimony, it was up to the jury to decide which of Dr. Gluck’s contradictory statements to believe. When the trial court decided that Dr. Gluck’s testimony was “equivocal,” the court was commenting upon the expert’s credibility, not upon the existence of evidence that would support the verdict. 

The credibility of an expert witness is always for the jury to decide. The trial court erred by disregarding expert testimony that supported the verdict. The supreme court accordingly reversed the judgment.

Lessons Learned

Lawyers can learn two lessons from the Lockhart decision. First, when an expert witness needs to establish a standard of care, lawyers should prepare the witness to explain why the expert believes that the standard has been adopted nationwide. Reference to medical textbooks, journal articles, or seminars with a nationwide audience may support the belief that a nationwide standard of care exists.

Second, lawyers who want to challenge an expert’s opinion should not wait until the evidence is closed to bring that challenge. Making a Daubert motion before trial or objecting during the trial may result in exclusion of the evidence. While lawyers, as a tactical matter, might not want to alert opposing counsel to deficient testimony while counsel may still be able to correct it, laying in the weeds may allow a jury to base a verdict on testimony that could have been excluded if a timely objection had been made.

Defense Expert’s Opinion About Life Expectancy Was Properly Excluded in Washington Wrongful Death Case

Doy Coogan operated an excavation business. During his lifetime, he repaired several cars, as well as industrial equipment that the business used. To make the car and equipment repairs, Coogan purchased brakes, clutches, and other asbestos-containing parts from local NAPA stores.

Coogan was diagnosed with mesothelioma, a disease that has only known cause: asbestos exposure. The cancer metastasized and Coogan’s condition deteriorated. After enduring severe pain as his organs progressively shut down, he died at the age of 67.

Coogan’s estate and his wife sued NAPA for wrongful death. The lawsuit was based on evidence that NAPA auto parts were the only source of Coogan’s asbestos exposure. After a 12-week trial, the jury found in favor of Coogan’s estate and awarded $81.5 million in damages. The verdict included $20 million for Coogan’s wife to compensate her for loss of consortium. The trial court denied a motion to overturn that verdict. 

The Washington Court of Appeals remanded the case for a new trial on damages. The court ruled that NAPA should have been allowed to introduce expert testimony regarding Coogan’s life expectancy if he had not been exposed to asbestos. It also concluded that the verdict was excessive because it “shocked the conscience.” 

The Washington Supreme Court ruled that the state Constitution places greater weight on the jury’s role in awarding damages than the court of appeals recognized. The supreme court concluded that the verdict was not unjust simply because it was substantial. In the absence of “some malign influence or egregious impropriety” that might have affected the jury’s verdict, the court of appeals had no basis for concluding that the verdict was the product of passion or prejudice. In Washington, the size of the verdict alone is not cause for substituting the court’s view of appropriate damages for the jury’s opinion.

Expert Testimony Regarding Life Expectancy

The court of appeals also concluded that the trial court erred by excluding the testimony proffered by one of NAPA’s expert witnesses. The appellate court’s remand for a new trial was based on the exclusion of that expert testimony.

The damages claim, including the loss of consortium claim, was premised on actuarial tables showing that a 67-year-old man has an average life expectancy of 15 years.  NAPA wanted to introduce the expert testimony of Dr. Gary Schuster that Coogan had a shorter life expectancy. Dr. Schuster is a specialist in internal medicine.

Dr. Schuster would have testified that Coogan had advanced cirrhosis of the liver due to a history of heavy alcohol use. In Dr. Schuster’s opinion, Coogan’s life expectancy was only 5 years.

The trial court excluded Dr. Schuster’s proposed testimony, finding it to be of “minimal probative value.” The court of appeals concluded that even if the probative value of Dr. Schuster’s opinion was minimal, it was admissible because it was probative of a central issue in the case: Coogan’s life expectancy.

Speculative Opinion Testimony

The Washington Supreme Court concluded that the trial court properly exercised its discretion in excluding Dr. Schuster’s testimony as “overly speculative.” Dr. Schuster based his opinion that Coogan suffered from cirrhosis (a stage 3 level of liver disease) on the fact that Coogan had ascites, or fluid buildup, around his liver and spleen. Dr. Schuster believed that ascites is indicative of cirrhosis because, in its absence, a patient is only at stage 2.

Schuster assumed that liver disease caused the fluid buildup. Coogan’s physicians, on the other hand, attributed the ascites to his mesothelioma. Dr. Schuster admitted that Coogan’s cancer was “a significant source” of the fluid buildup. He also admitted that there is no way to separate ascites caused by mesothelioma from ascites caused by liver disease. He acknowledged that whether liver disease caused zero percent or twelve percent or any specific percentage of the ascites was impossible to determine.

While Dr. Schuster opined that if Coogan’s enlarged spleen and large portal veins were indicative of cirrhosis, he admitted that those symptoms alone, in the absence of ascites, would not support a diagnosis of cirrhosis. Since he did not know the cause of the ascites, he could only speculate that the other symptoms supported a diagnosis of cirrhosis.

At Coogan’s age, a diagnosis of stage 2 liver disease would not have shorted his life expectancy. Dr. Schuster’s opinion that Coogan had only a 5-year life expectancy was dependent upon his assumption that Coogan had reached stage 3. While it is true that Coogan might have had cirrhosis, an expert opinion has little probative value when it is based on facts that might be true. It did not become more probative simply because it was rendered by an expert. Experts must base opinions on facts that are true or that the jury could reasonably believe to be true, not on speculation about facts that cannot be established.

The supreme court also concluded that the trial court was entitled to exclude Dr. Schuster’s opinion on the ground that it was more prejudicial than probative. Evidence that Coogan was a hard drinker might affect a jury’s view of Coogan for reasons that relate to his character. The evidence was only relevant to life expectancy.  To the extent that Coogan’s character was an issue in the case, it wasn’t an issue that could be proved by a doctor’s speculative testimony about the condition of his liver.

Expert Testimony Properly Excluded

The supreme court concluded that the court of appeals erred by substituting its judgment for the trial court’s reasoned decision. While the court of appeals decided that prejudice could have been avoided by barring any reference to Coogan’s alcohol consumption, the trial court’s disagreement with that assessment was not unreasonable. It is difficult to believe that some jurors, at least, would not associate cirrhosis with heavy drinking. 

In any event, it does not matter that the court of appeals would have admitted the evidence because admissibility must be decided by the trial court. The only question for the reviewing court is whether the trial court’s decision to bar the evidence was reasonable. The supreme court concluded that the decision was reasonable and that it should therefore have been affirmed.

gun and bullets

Court to Evaluate Validity of Forensic Ballistics

A Virginia court will evaluate the validity of forensic ballistic and firearm examination.

The Crime

On February 17, 2018, 74-year-old Mary Jackson and her pregnant granddaughter, 33-year-old Tiffany Byers, were found shot to death at home. The body of Byers’ husband, 45-year-old Aaron Byers, was later found in a shallow grave on a property owned by 37-year-old Paul Brock.

Justin Collins, who was Mary Jackson’s grandson and Tiffany Byers’ brother, testified that he was at the property at the time of his grandmother’s and sister’s shooting. Collins said that he heard a gunshot and did not see the shooter, but heard his sister say, “Paul, you shot me.” Collins later identified a photo of Paul Brock as a person that he recognized as previously visiting his home.

Brock was charged with three counts of capital murder, fetal homicide, tampering with physical evidence, and being a first-degree felony offender in connection with the deaths. Brock would later admit to killing Aaron Byers, but said it was done in self-defense. Brock claims that he had nothing to do with the deaths of Mary Jackson and Tiffany Byers.

The Forensic Examination

A forensic examiner took apart and examined the bullets that were used to kill Mary Jackson, Tiffany Byers, and Aaron Byers. She examined the pieces under a microscope and determined “that the lands and grooves on each individual bullet were of similar agreement, which is what they call it to determine if they were fired from the same gun … all the bullets from all the bodies came from the same weapon.”

The Commonwealth wanted to present this evidence, but Brock’s defense team objected. The court held a Daubert hearing to determine whether the evidence should be admitted.

The Daubert Hearing

Gregory Klees, an examiner with the Bureau of Alcohol Tobacco Firearms and Explosives, testified as an expert witness for the Commonwealth. Klees testified that the firearms testing was valid and that the theories and techniques of ballistics examination have been subject to review for over 100 years. When asked whether he knew of any jurisdictions that did not allow firearms examination testimony, Klees responded, “Except for some individual court cases, I don’t know of any standard or federal courts that have excluded it all together.”

Brock’s defense team called Dr. Jeff Salyards, a Principal Analyst with Compass Scientific Consulting and former Chief Scientist for the US Army Criminal Investigation Laboratory as an expert witness. Dr. Salyards noted his concern with the validity of the peer-review process used by ballistic examiners. Dr. Salyards testified that until recently, the firearms examination field did not use blind review studies. Dr. Salyards also stated that the average industry error rate of less than 2 percent could be attributable to the way that studies surrounding the forensic science had been set up.

At the conclusion of the hearing, Whitley County Circuit Court Judge Dan Ballou ordered both sides to submit briefs on their arguments. The case is scheduled for one additional status hearing prior to Brock’s jury trial, which is scheduled to begin on September 8, 2021. 


Opioid Manufacturers Challenge Addiction Expert’s Testimony

The attorneys for the manufacturers of opioids have challenged the credibility of an addiction expert who testified that their client’s misleading marketing materials helped to cause the opioid epidemic that has plagued thousands of families in Long Island since the late 1990s.

The Case

The lawsuit at issue was filed in New York State Supreme Court. It alleges that drug manufacturers and distributors created a public nuisance by misleading physicians and patients with marketing that minimized the dangers and addiction risks of opioids.

State and county officials have stated that they hope to hold the drug manufacturers and distributors responsible for the death and suffering caused by the opioid epidemic and to recover hundreds of millions of dollars for treatment, recovery, and prevention.

The drug manufacturers and distributors have denied responsibility. They claim that they followed all regulations and are being blamed for the actions of health regulators who encouraged opioid use and the doctors who overprescribed them.

The case is before Supreme Court Justice Jerry Garguilo — In re Opioid Litigation— New York Supreme Court, Suffolk County, No. 400000-2017. It will be the first case of its kind to go before jurors in the United States. This case puts the entire opioid supply chain on trial. In similar cases, only a small number of the companies that were actually sued were taken to court. Most parties reached settlements in those cases before the trials began. Hundreds of witnesses are expected to be called over the course of the trial.

Expert Witness Dr. Anna Lembke

The state and the counties retained Dr. Anna Lembke to testify as an addiction expert. Dr. Lembke is a professor of psychiatry at Stanford University and a physician who treats patients who are struggling with substance abuse.

Dr. Lembke testified that the drug manufacturers and distributors’ marketing materials helped to fuel the opioid epidemic. She stated that defendants Teva Pharmaceuticals, Endo Pharmaceuticals, and Allegan Finance, used misleading promotional materials to convince health care providers that their opioid medications were safe.


Attorneys from the drug companies attempted to discredit Dr. Lembke. Under cross-examination from Teva Pharmaceuticals attorney Harvey Bartle, Dr. Lembke admitted that she had been paid hundreds of thousands of dollars to appear as an expert witness for plaintiffs who have been suing opioid makers in recent years. 

Bartle played a video of Dr. Lembke at a 2015 Stanford panel on opioids. During this panel, Dr. Lembke also stated that opioid prescriptions surged in the 1980s because of a “groundswell” among doctors who feared that they were not doing enough to alleviate pain. Dr. Lembke also stated that this increase in opioid prescriptions “came from a really good place” and “really needed to happen.” Dr. Lembke responded that Bartle had mischaracterized her testimony.

Under cross-examination from Jim Heirschlein, attorney for Endo Pharmaceuticals, Dr. Lembke admitted that she did not know how many physicians in Nassau and Suffolk Counties or New York State had been influenced by pharmaceutical marketing messages or how many prescriptions had been written in the states since the 1990s, when the opioid epidemic began.


Improper Testimony of Human Trafficking Expert Deemed Not Prejudicial in Utah

The phrase “human trafficking” conjures images of buying or kidnapping children or young women from impoverished countries and selling them as slaves in developed countries. Those images do not necessarily produce an accurate understanding of “human trafficking” as governments have chosen to define it. While trafficking in the sense of buying and selling humans is prevalent in some parts of the world, it is uncommon for victims from other countries to be trafficked into the United States.

A more common use of the term “human trafficking” in American law is presented in a recent appellate decision in Utah. The case involved a fairly routine charge against an adult who managed and directed the prostitution of a minor. Since that is not what “human trafficking” brings to mind, the prosecution called an expert witness to explain why the crime fit within Utah’s definition of human trafficking.

Facts of the Case

The 22-year-old daughter of Joseph Moore met a 16-year-old girl identified in the appellate decision as “Mindy.” Moore’s daughter told Mindy that they could each make $200 to $300 each time they teamed up for a sexual encounter with men they would meet through a website. Mindy agreed because she wanted money to support her drug habit.

Moore’s daughter introduced Mindy to Moore, who offered to help them provide services to men. He signed papers so that Mindy could obtain a piercing. He helped Mindy and his daughter create online profiles, drove them to their appointments, and remained in the car to provide security. In exchange, he received about 40{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of their earnings.

Although Moore offered to be a “partner” with his daughter and Mindy, at some point Mindy felt that he was acting more like “the boss” than a partner. Moore decided which appointments they would accept and which they would not.

After a few months, authorities became aware of the enterprise. Moore was arrested and charged with one count of human trafficking of a child, one count of aggravated exploitation of a child prostitute, and one count of exploiting prostitution.

Expert Testimony

The prosecution called an expert witness “to educate the jury on human trafficking” and to dispel some “common misconceptions” about the subject. The appellate opinion notes only that the witness is a professor. The professor’s field of study is not identified.

The professor testified that human trafficking occurs when a person “recruits, obtains, harbors, transports . . . or entices” others through force or fraud “for the purpose of their sex or labor.” She further testified that children who engage “in sexual economies,” including prostitution and pornography, are considered “sex trafficked” because children “cannot consent to their own abuse.”

The professor testified that human trafficking “is not just an international phenomenon” and that it occurs in Utah and throughout the United States. She testified that a victim does not have to be kidnapped to be trafficked but can “be trafficked out of their own home” and even by a parent. She testified that those who are trafficked are not always “locked up in basements” or “hidden from sight,” and that while some will report the trafficking almost immediately, others may stay in “abusive conditions” for years and even decades. She stated that a trafficker “might break a person’s will to leave” by debilitating or “literally” exhausting that person.

The professor testified about recruitment methods and the different ways sex trafficking is advertised. She also testified that trafficking is a lucrative business because a trafficker can “sell a person over and over again.” She claimed that child trafficking is especially lucrative in part because of the “huge demand” for young girls known as “cherry girls” who “just had their first period.”

Throughout her testimony, the professor characterized people who have been trafficked as “survivors” and occasionally as “victims.” She acknowledged that she knew nothing about Mindy or the facts of the case. She pointed to no evidence that Mindy was a “cherry girl.” She offered no conclusion as to whether Moore had trafficked Mindy or whether Mindy was a “survivor” of human trafficking.

In essence, the professor gave the jury her own opinion about the meaning of the term “human trafficking.” The obvious question is whether an expert’s personal definition of a legal term used to define a crime is relevant to anything in a criminal trial.

Trial Court Ruling Regarding Testimony

Remarkably, Moore’s lawyer did not object to the expert testimony. After the professor testified, the trial court observed that the professor “essentially provide[d] a lecture to the jury on human trafficking,” and that some of her testimony, including the “comments about children being virgins,” were disconnected from the actual facts. 

The trial judge asked the lawyers to submit briefs regarding the admissibility of the expert’s testimony. The prosecution responded with a brief. The defense lawyer filed nothing. 

The judge ultimately instructed the jury that “Some portions of the expert testimony may not apply to the evidence you heard. You may choose not to consider any portions of the expert testimony about human trafficking that are not applicable to the evidence presented.” 

The jury found Moore guilty. He appealed, arguing that his lawyer’s failure to challenge the expert’s testimony amounted to a failure to render effective assistance of counsel to Moore.

Appellate Analysis

The appellate court made no ruling regarding the admissibility of the expert’s testimony. It is difficult to believe that any judge would regard the testimony as relevant to the charge. The prosecution introduced evidence that Moore told Mindy’s sister that he needed “to find some girls to pimp out.” Moore was prosecuted because he played the role of a pimp. No expert testimony was needed to assess his guilt of that offense.

The prosecution’s assertion that an expert was needed to dispel misconceptions about “human trafficking” did not make the testimony any more relevant. The prosecution’s decision to charge an offense that Utah calls “human trafficking” should not open the door to expert testimony about what “human trafficking” means. 

In Moore’s case, “human trafficking” means what the Utah legislature says it means. The jury instructions advised the jury of the law’s meaning. It was not proper for an expert to explain whether conduct does or does not constitute human trafficking as Utah law defines the term. The only expert in the law is the judge, and the only people who are entitled to apply the law to the facts in evidence are the jurors. 

The appeal arose in the context of a motion for a new trial based on ineffective assistance of counsel. Moore’s lawyer should have objected to the expert’s inadmissible testimony. The appellate court did not decide whether Moore’s performance was deficient. Had it done so, the inescapable conclusion is that a lawyer fails to render the competent assistance to which a client is entitled when he neglects to object to expert testimony that is obviously irrelevant.

For the purpose of its analysis, the appellate court assumed that the lawyer’s performance was deficient and asked whether Moore was prejudiced by the inadmissible expert testimony. The only honest answer to that question is “we don’t know” because the appellate court was not present during the jury’s deliberations. There is no way to determine how much weight, if any, the jury placed on the expert’s testimony. The prosecution presumably thought the expert testimony was important to its case since it called the expert as a witness. Just how important it was to the jury is impossible to say.

The appellate court concluded that there was ample evidence of Moore’s guilt and that he would have been convicted even if the expert had not testified. That might be true. Courts are often willing to tolerate unfair criminal trials if they believe the evidence of guilt was strong. 

Moore did call defense witnesses and offered evidence to attack the credibility of his accuser. How the jury would have assessed the competing evidence in the absence of an expert who explained her understanding of human trafficking, rather than the crime defined by Utah law, is impossible to determine. We know that Moore didn’t receive a fair trial. Whether he would have been convicted in a fair trial is at best an educated guess.

Lesson Learned

A criminal defense lawyer’s duty is to assure that a defendant receives a fair trial. Every time the prosecution announces an intent to call an expert witness, the defense should consider whether the expert’s testimony is admissible. When grounds exist for a motion to exclude the testimony, the lawyer should file a motion to exclude the testimony and a supporting brief. Winning the motion might not affect the trial’s outcome, but it will help the defendant receive the fair trial that the Constitution promises.

Court room trial

Expert Testimony Excluded Because It Was Based on Unauthenticated Fax Logs

Experts often base opinions upon data contained in documents. Sometimes the accuracy of that data seems self-evident. A log of fax transmissions printed out by a fax machine may seem like reliable data, but a recent decision from the Court of Appeals for the Sixth Circuit held that the data in the log needed to be authenticated. Since it was not, the expert’s opinion was inadmissible.

The Sixth Circuit decision reminds lawyers that they cannot assume the accuracy of data in documents that an expert relies upon to form an opinion. Rather, the lawyer may need to authenticate the documents with testimony from someone who has personal knowledge of the accuracy of the information contained in the document.

TCPA Lawsuit

Brian Lyngass is a dentist in Michigan. Twice in March 2016, he received an unsolicited fax on his office fax machine. Both faxes advertised a toothbrush. The company that manufactures the toothbrush, Curaden AG, is a Swiss corporation. It distributes and promotes its products in the United States through Curaden USA, a subsidiary that is incorporated in Ohio.

Curaden USA began an advertising campaign that included sending unsolicited faxes to dentists like Lyngass. The advertisements included Curaden USA’s contact information, including a fax number, phone number, email address, website, and social media accounts.

Lyngass began a class action lawsuit against Curaden USA and Curaden AG on behalf of dentists who received faxes from Curaden USA. The Telephone Consumer Protection Act (TCPA) allows individuals who receive unsolicited faxes to sue for actual damages or $500 in statutory damages. A judge may award attorneys’ fees to a prevailing plaintiff. 

The TCPA lends itself to class action lawsuits. Recipients of unsolicited faxes are all victims of an identical TCPA violation. Since statutory damages for each violation are small, victims have little incentive to sue individually. A class action allows all victims to band together to bring a lawsuit for significant damages.

Curaden AG argued that it took no action in the United States and did not approve Curaden USA’s unlawful fax distribution scheme. The appellate court concluded that the district court had jurisdiction over Curaden AG because it established Curaden USA in the United States and had the right to approve marketing plans and entered into distribution agreements with its worldwide distributors. The more important ruling from the standpoint of an expert witness blog concerned Lyngass’ reliance on expert testimony to support class certification and an award of damages.

Class Certification

Before a lawsuit can proceed as a class action, the district court must certify that the plaintiffs have satisfied the standards for class action litigation. The court was satisfied that the class of dentists who received Curaden faxes should be certified. On appeal, Curaden argued that the district court improperly relied on inadmissible evidence to support its certification decision.

The companies argued that class certification was inappropriate because the evidence before the court did not establish that all of the class members received unlawful faxes. If some dentists in the class received the fax but others did not, the plaintiffs would need to prove which members of the class were entitled to collect damages, rather than relying on classwide evidence to prove that they were all entitled to damages.

The plaintiffs relied on “summary-report logs that purportedly listed each successful recipient of the two fax advertisements by fax number.” The logs were printed by the fax machines that transmitted the ads. The plaintiffs argued that the summary-report logs would establish that each class member received an unlawful fax. Curaden argued that logs were inadmissible because the plaintiffs did not authenticate them. In other words, the plaintiffs offered no evidence that the logs actually identified the class members who received unlawful faxes.

Courts have been divided in deciding whether they may rely on inadmissible evidence when certifying a class. The Sixth Circuit joined the Eighth and Ninth Circuits in holding that evidence need not be admissible at the certification stage if it is reliable and may become admissible at trial. When documents are probably authentic, they are reliable. Since the plaintiffs advised the court that they would be able to authenticate them after further discovery, the judge was entitled to consider them.

The court limited its decision to inadmissible but reliable nonexpert evidence. The court made it a point to avoid deciding whether expert testimony must be reliable to support class certification.

Expert Testimony

After certifying the class and denying summary judgment to Curaden, the district court held a trial. The court excluded from evidence both the summary-report logs and the opinions of the plaintiffs’ expert witness, Lee Howard. However, the court determined that the Curaden companies violated the TCPA. The court then established a claims administration procedure that required individual dentists who wanted a share of the damages to file an affidavit stating that they received a Curaden fax and did not give Curaden permission to send it.

On appeal, the plaintiffs argued that the logs were admissible. The appellate court agreed with the district court that the plaintiffs offered no witness to “attest as to how the logs at issue were created or to personally vouch for their accuracy.” Perhaps a fax machine expert or an employee of the company that manufactured the machine could have vouched for the accuracy of the summary-log reports, thus overcoming the court’s doubtful concerns that a fax machine might malfunction or produce inconsistent results.

The court excluded Howard’s expert opinion about the number of successful fax transmissions because it was premised on the inadmissible summary-log reports. Howard also relied upon “an affidavit from the president of WestFax that was filed in another case and thus did not address the specific data at issue in the present case.” The court concluded that Howard’s opinions did not satisfy Daubert because they were not based on “known facts” but on speculation that the fax machine created an accurate record of the faxes that it transmitted.

Lessons Learned

The Lyngass decision teaches that expert opinions based on documents may be rejected as unreliable if the documents are not authenticated. Authenticating documents is not always easy. Employees of the company Curaden hired to send the faxes may have been unwilling to testify that they knew the summary-log reports were accurate. Perhaps someone with expert knowledge of the particular make and model of fax machine at issue would need to supply that information. Perhaps an expert would need to examine the machine to determine that was functioning properly. It is difficult to know what evidence would satisfy the court of the reality that fax machines nearly always print accurate logs of the faxes they transmit.

Given the absence of any reason to suspect that the fax machine produces an inaccurate record of the faxes it transmitted, making lawyers jump through hoops to prove their accuracy seems silly. Still, lawyers should keep in mind that if they want an expert to offer opinions that are based on documents, a court will probably require them to prove that the data in the documents is accurate, even if accuracy seems obvious.


California Limits Hearsay Testimony that Gang Experts May Give

Courts often apply rules of evidence that permit an expert witness to base opinions on facts that are not within the expert’s personal knowledge — that is, facts the expert did not acquire through personal experience or observation — if the facts are “of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” The rule allows experts to testify about hearsay that would otherwise be inadmissible.

Does the rule allow experts to testify about any fact that the expert relies upon, simply by claiming that experts in the field routinely rely upon facts of that type? Too many courts answer “yes” to that question. The California Supreme Court recently explained how limitations to the rule affect the testimony that a “gang expert” may give in a criminal prosecution.

Gang Crimes in California

California law makes it a crime to be an “active participant” in a criminal street gang. The law also enhances penalties for felonies that are committed as a “criminal gang activity.”

To convict a defendant of participating in a street gang or to obtain enhanced penalties for a felony charge, the prosecutor must prove beyond a reasonable doubt that the defendant actively participated in a criminal gang with the knowledge that the gang’s members engage or have engaged in a pattern of criminal gang activity. The prosecutor must also prove that the defendant assisted or promoted the gang’s commission of a felony.

California law defines a “criminal street gang” as a group of three or more people if the group: (1) is identified by a common name or symbol, (2) commits specified crimes as a primary activity, and (3) whose members engage or have engaged in a pattern of engaging in criminal gang activity. A “pattern of criminal gang activity” means to commit two or more specified crimes at separate times within three years of each other. Courts refer to those earlier crimes as “predicate offenses.”

Facts of the Case

Two men were sitting on the tailgate of a truck at a carwash in Arvin. Shots were fired in the direction of the two men. A bullet struck the leg of one man. An officer in a nearby patrol car saw another pickup truck driving slowly past the carwash. The officer saw flashes from the pickup truck that coincided with the sound of shots fired.

The officer chased the truck and eventually arrested its two occupants. Jose Luis Valencia was driving and Edgar Isidro Garcia was in the passenger seat. The officer saw Garcia throw something from the vehicle. A cylinder from a revolver was later found in the vicinity where Garcia threw the object.

The two men were charged with a variety of crimes, including attempted murder and committing a drive-by shooting. They were both charged with active street gang participation. The prosecution also sought street gang sentencing enhancements for the other felonies.

Expert Witness

To prove that the defendants belonged to a gang that had engaged in a pattern of criminal gang activity, the prosecution relied on the testimony of Arvin Police Officer Ryan Calderon as a gang expert. Calderon claimed expertise because he had “personally investigated about 200 crimes involving the Arvina 23 gang.”

Calderon testified about monikers, graffiti, tattoos, colors, and territory that he associated with the Arvina 13 gang. In Calderon’s opinion, Valencia and Garcia were members of the Arvina 13. Calderon based that opinion on their tattoos and police contacts.

Calderon testified that the shooting in which Valencia and Garcia engaged benefitted Arvina 13 by “creating community fear and gang notoriety.” Calderon identified three predicate offenses committed by alleged Arvina 13 gang members: assaults in 2008 and 2010 and an attempted robbery in 2013.

Calderon had no personal knowledge of the predicate offenses. He did not investigate those crimes. Rather, he learned about them “from conversations with other officers and a review of police reports.”

Admissibility of Gang Expert Testimony

Most courts allow gang experts to testify, despite the doubtful admissibility of their testimony. Police officers are trained to enforce the law, not to make sociological determinations. They often cherry-pick their facts and support their opinions with no identifiable methodology, much less one that is clearly reliable.

Despite the dubious nature of gang expert testimony in general, the California Supreme Court reviewed the convictions of Valencia and Garcia to address a narrow question. The defendants argued on appeal that Calderon was not entitled to base his opinion on facts about which he had no personal knowledge.

To prove that members of the gang to which the defendant belonged committed at least two predicate offenses within the statutory timeframe, prosecutors must generally present evidence “of who committed the crime and when they did so, as well as evidence of their gang membership and the nature of the crimes.”

The prosecution argued that Calderon was entitled to rely upon hearsay to form opinions if other experts in the field would generally do so. The prosecution contended that the hearsay testimony was admissible because it was not offered to prove that what the officer was told was true, but to establish the basis for the officer’s opinions. Of course, if the facts are not true, they have no value and no expert should consider them.

Hearsay and Expert Testimony

The rule that allows experts to testify about facts that are generally known to people who share a field of expertise — facts acquired in school or professional training and by reviewing research conducted by other experts — recognizes the impracticality of requiring experts to have personal knowledge of all the facts upon which they rely. Scientists rely upon the conclusions of experiments without performing those experiments themselves. It simply isn’t possible for experts to acquire all the facts from personal experience that they glean from reading journal articles or by listening to other experts speak at professional seminars.

California courts thus draw a distinction between general facts that are part of the expert’s base of knowledge and facts that are specific to the case in which the expert testifies. Case-specific facts must be established by witnesses who have personal knowledge of those facts. In criminal cases, allowing an expert to give hearsay testimony about case-specific facts might violate the defendant’s right to confront the witness who supplied those facts, because that witness is not subject to cross-examination.

Experts can rely on case-specific hearsay if a witness with personal knowledge testifies that the facts are true. Experts can be asked to assume the existence of those facts and to express opinions that are based on those assumed facts. Those hypothetical questions are only proper, however, if a witness with personal knowledge has testified about the existence of the assumed facts.

Some courts do allow experts to testify about case-specific facts if they recite the mantra that experts in their field reasonably rely upon such facts to form opinions. Those courts often instruct juries that the hearsay facts should not be taken as true. 

The California Supreme Court recognized the incongruity of an instruction that asks a jury not to accept as true the facts that an expert relies upon in forming an opinion. “When an expert relies on hearsay to provide case-specific facts, considers the statements as true, and relates them to the jury as a reliable basis for the expert’s opinion, it cannot logically be asserted that the hearsay content is not offered for its truth.” Since the jury will certainly regard the hearsay facts as evidence of the defendant’s guilt, those facts must be established by independent evidence.

Expert Testimony About Predicate Offenses

The state supreme court noted that it can be challenging to draw “the line of demarcation between background and case-specific information”. The court met the challenge rather easily. The court suggested that “information about gangs, like their territory, symbols, and operations” is admissible background information if the information is “generally accepted as true by experts in the field.” Whether two or more police officers who compare notes about their conclusions can create data that is “generally accepted as true by experts in the field” is a question the court did not address.

The court rejected reasoning from intermediate appellate decisions that distinguished “historical facts” about a gang’s conduct from “specific facts relating to the events and participants involved in the case being tried.” The gang statute requires those “historical facts” to be established as case-specific evidence. The specific crimes committed by specific members of a specific gang are not background facts that are “generally accepted” by other gang experts. They are facts known only to officers who investigated the specific crimes that are alleged as predicate offenses. Telling another officer about the results of a specific investigation of a crime does not make the investigation’s results “generally accepted” by all experts in gang behavior.

The supreme court recognized that prosecutors use “gang experts” to place evidence before the jury that the prosecutors cannot prove independently. The court put an end to that abusive practice by requiring evidence of predicate offenses to be established by the independent testimony of a witness with personal knowledge before the expert can rely on the existence of predicate offenses when the expert offers opinions.

Lessons Learned

The California Supreme Court’s decision draws a sensible line between background facts that may be part of an expert’s testimony, even if it is hearsay, and background facts that an expert can only testify about in response to a hypothetical question after the facts have been established by other witnesses. While the court’s decision may be compelled by the Confrontation Clause in some criminal cases, the reasoning is equally applicable to civil cases. Other state courts that struggle to understand when an expert can testify about otherwise inadmissible hearsay would benefit from reliance on the Valencia decision.

Judge in courtroom

Mississippi Affirms Conviction Based on Groundless Expert Testimony

Curtis Valentine, while driving at a high speed, failed to maintain control of his vehicle on a sharp curve. Valentine’s vehicle left the road and crashed into a tree. His front-seat passenger died.

Police officers who investigated the crash reported that Valentine was “acting crazy,” “irate, walking around,” and “constantly yelling.” Connie Dolan, an officer of the sheriff’s department who was described as an accident reconstruction expert, observed no skid marks. She smelled the odor of marijuana in the vehicle.

Dolan requested a warrant to obtain a sample of Valentine’s blood. After his blood was drawn at a hospital, Valentine was told that his passenger had died. Valentine “went ballistic” and shoved Dolan.

A few days later, Dolan interviewed Valentine in his home. Valentine said that he smoked marijuana the night before and the morning of the crash. He also said that he had taken Xanax that was prescribed to his mother. He admitted that he had taken his eyes off the road.

Prosecution’s Expert Testimony

A toxicologist at the Mississippi Crime Lab. Alyssa Bailey, testified that Valentine’s blood had tested positive for THC, Topamax (an anti-seizure medication), and Xanax. Bailey claimed that Valentine was under the influence of all three drugs.

Bailey testified that Xanax and Topamax are central nervous system depressants that can impair reaction times. She testified that those drugs can also affect judgment, motor function, and coordination. She also testified that THC can impair reaction time. She concluded that Valentine had smoked marijuana “fairly recently.”

Defense Expert Testimony

Dr. James O’Donnell, an expert in pharmacology, testified for the defense. Dr. O’Donnell testified that the trace amount of THC in Valentine’s blood was insufficient to have any clinical effect.

The lab reports contained no measurement of the other two drugs, making it impossible to say that they had an effect on Valentine. Based on the reports and on his observations of Valentine on body cam recordings, O’Donnell expressed the opinion that Valentine was not under the influence of any drug.

Sufficiency of Evidence

A jury found Valentine guilty of “aggravated DUI causing death.” In Mississippi, driving under the influence means driving while the ability to control a vehicle is lessened due to a state of intoxication.

On appeal, Valentine argued that the prosecution presented no evidence that he was under the influence. The state supreme court disagreed and affirmed the conviction.

Valentine maintained that the accident occurred because he was speeding. Mississippi precedent establishes that speeding is not evidence of being under the influence of an intoxicant.

The state supreme court noted that Valentine wasn’t just speeding but was driving at 70 to 90 mph when he approached a curve that was controlled by a 20-mph speed limit. The court seemed to think that “speeding really fast” is evidence of intoxication even if a lesser speeding offense is not. No expert testimony suggested that driving at any particular speed is a sign of intoxication.

The accident reconstruction expert testified that Valentine should have seen the curve and the speed limit sign. Drivers are frequently involved in accidents that they should have avoided. That fact does not establish their intoxication.

The accident reconstruction expert also testified that Valentine was having a “rage episode” at the scene and later when he was in the hospital. Accident reconstruction is based on principles of engineering, not psychology. Someone who was just involved in an accident and whose lover had just died might well respond to tragedy with rage. Hysterical behavior after a crash is not evidence of intoxication before a crash. The reconstruction expert’s testimony falls fall short of proof of intoxication.

Toxicologist’s Unsupported Testimony

The court was satisfied that intoxication was established by the toxicologist’s testimony. Yet the toxicologist had no scientific basis for her opinion. No studies establish a level of THC in blood that is consistent with intoxication. In fact, the National Institute of Justice recently reported that “there is little evidence correlating a specific THC level with impaired driving.”

Xanax can certainly affect driving skills, but the defense expert testified that the lab results did not establish the amount of Xanax that was present in Valentine’s blood. That testimony was apparently uncontradicted. The scientific evidence established only that Valentine used drugs at some point. It did not establish that he was under the influence of those drugs when he was driving.

As the dissent noted, Bailey did not testify about the amount of Xanax that is needed to have an impact on a driver’s ability to drive safely. Nor did she testify that the amount of Xanax in Valentine’s blood was sufficient to impair the ability to control a vehicle. Rather, she gave conclusory but unsupported testimony that Valentine was under the influence. The dissent concluded that Bailey’s testimony did not satisfy Mississippi’s legal standard for DUI “because Bailey could not and did not say whether the drugs had lessened Valentine’s normal ability for clarity and control.”

Proposed Jury Instruction

Bailey should never have been allowed to testify that Valentine was “under the influence” because she had no scientific data to form that expert opinion. In fact, she testified that, in her expert opinion, having any intoxicating substance in a driver’s blood means that the driver is under the influence of that substance.

Bailey’s testimony was outrageous. There is no scientific basis for the view that having a measurable amount of a drug in a driver’s blood causes a driver to be under the influence of that drug. It is for that reason that some states have enacted laws making it unlawful to operate a vehicle with any detectable amount of an unlawful drug in the driver’s blood. Those laws save the prosecution the trouble of proving that the drug made any difference in the driver’s ability to drive safely. Mississippi has no such law.

To counter Bailey’s testimony, the defense asked the court to instruct the jury that that the mere consumption of a drug is insufficient to prove that a criminal defendant was driving “under the influence” of an intoxicant. The trial judge instead gave the standard instruction that the state was required to the state to prove that the defendant was “driving in a state of intoxication that lessens a person’s normal ability for clarity and control.”

Since “under the influence” means a lessening of the normal ability to control a vehicle, Bailey’s testimony allowed the jury to conclude that the mere consumption of drugs lessens the ability to control a vehicle. The standard instruction did nothing to counter the prejudicial impact of Bailey’s blatantly false testimony.

As the dissent noted, “Valentine’s proposed jury instruction was an accurate statement of the applicable Mississippi law and was needed not only to inform the jury of all the elements of the offense but also to provide the jury a correct statement of Mississippi law on the element of driving under the influence, which had been stated incorrectly by the State’s toxicology witness.” In its eagerness to uphold a conviction, the majority was unmoved by the dissent’s reasoned analysis.

Lessons Learned

It isn’t clear whether Valentine’s lawyer moved to exclude the toxicologist’s testimony on the ground that it failed to satisfy the Daubert standard. It seems likely that the testimony blindsided the lawyer at trial. 

Valentine’s lawyer objected to the toxicologist’s unfounded testimony when it was offered on the ground that it misstated the law. He offered his own expert’s testimony to counter the notion that unmeasured quantities of drugs prove impairment of the ability to control a vehicle. He also proffered a jury instruction that would have corrected the toxicologist’s misstatement of the law. Valentine was nevertheless convicted and his conviction was inexplicably upheld on appeal. 

Mississippi purports to follow the Daubert standard. Bailey’s testimony was unsupported by a reasonable scientific methodology because no scientific literature establishes that the presence of any amount of Xanax or TCH in a person’s drug affects the ability to control a vehicle. Bailey appears to have given that testimony to help the prosecution obtain a conviction, not because the testimony is grounded in science. Sadly, some court decisions all but ignore the Daubert standard in criminal cases and allow experts to favor the prosecution with slanted testimony. The Mississippi Supreme Court’s decision is an unfortunate example of such a case.


New Hampshire Supreme Court Relies on Language Expert to Strike Down Voter Suppression Law

One of the nation’s many ongoing political debates involves the regulation of voting. Some people argue that voting, as the essence of democracy, should be as easy as possible. Others argue that voting rules should minimize the possibility of fraud, even if the rules make it more difficult to vote.

Laws that make it difficult to vote are often challenged in court. A recent case in New Hampshire illustrates how expert witnesses help courts understand the impact of laws that might burden the right to cast a ballot.

New Hampshire Law

A New Hampshire town election in 2020 sparked claims of voter fraud. An audit determined that some ballots had been folded in a way that caused a counting machine to count too many or too few votes for a candidate whose name was in line with the fold. The audit found no evidence of voter fraud.

Alleged concerns about voter fraud in New Hampshire predated the 2020 election. In 2017, the New Hampshire legislature changed its voting laws to remedy a nonexistent problem. A key change affected voter registration.

Under previous law, voters who registered could present proof that they lived in the voter district or could sign an affidavit affirming that their stated identity, age, citizenship, and place of domicile (place of residence) were all true. The new law required anyone who registered more than 30 days before an election to present proof that they were domiciled in the voting district where they registered. The affidavit that was formerly used was not regarded as proof.

Voters who registered within 30 days of an election were given a choice. If they had “documentary evidence” of their intent to be domiciled at their registered address, they could check a box stating that they would submit that evidence within ten days after voting. If they failed to do so, “official mail” would be sent to their registered address to confirm their domicile. A voter who failed to meet the 10-day deadline was also subject to civil or criminal penalties.

If the registering voter had no “documentary evidence” establishing an intent to be domiciled at their registered address, the voter could check a different box. “Official mail” would then be sent to their registered address to confirm the voter’s domicile.

Registering voters who stated that they had “documentary evidence” of their intent to be domiciled at their registered address were given a separate form that described the kinds of evidence that the state deemed acceptable. That evidence included proof of purchase of residential property within the district, proof that a lease was executed within the district more than 30 days before the election, proof of residency at a college dorm, proof that the voter’s dependent minor child was enrolled in a public school within the district, or a New Hampshire driver’s license or ID showing an address within the district.

Challenge to Voter Registration Law

The state Democratic party and the League of Woman Voters sued the Secretary of State, alleging that the new law violated the New Hampshire Constitution by unreasonably burdening the right to vote. The trial judge entered a preliminary injunction against the law on the ground that threatening to jail voters for failing to deliver paperwork to a county office within ten days after an election would deter people from voting.

The court noted the absence of any evidence that voters were unlawfully registering and voting in New Hampshire districts. Since there was no compelling need for a law that would suppress voting, the judge determined that it was probably unconstitutional. 

The injunction prevented the law from taking effect prior to state elections in 2018. However, the Supreme Court vacated the injunction to avoid confusion, since it was entered shortly before the election was to occur. It nevertheless maintained an injunction against enforcement of the provision that allowed voters to be punished for failing to submit evidence of their domicile within 10 days after the election.

The trial court then heard evidence to decide whether a permanent injunction should be entered. The trial focused on the complex and confusing language used in the various forms that were provided to voters who wanted to register within 30 days of an election.

Plain Language Expert 

The challengers to the election law called Deborah S. Bosley as an expert witness. Bosley is a professor emeritus of technical communication at UNC Charlotte, a former board member of the Center for Plain Language, and the owner of The Plain Language Group. Her expertise is in helping organizations create written information that is easy to use and understand.

Bosley knew from its title that New Hampshire’s new “Verifiable Action of Domicile” document wouldn’t be easy to read. She reviewed that document and the new six-page voter registration form. She conducted a readability analysis and tested the documents’ usability in the age group 18-29, which has the lowest voter turnout in New Hampshire. She compared the documents to Federal Election Commission standards and to standards followed by experts in the field of plain language. 

Bosley concluded that the voter registration form is “written at a readability level equivalent to the Harvard Law Review.” Bosley testified that the Verifiable Action of Domicile is “written at the level of a first-year graduate student and that both forms would be very difficult for the average adult to read and understand.”

The State called no expert witness to challenge Bosley’s testimony. Based on her uncontested opinions, the trial court determined that the language in both forms was “needlessly complex, both in length and in diction.”

Other Expert Witnesses

The League of Women Voters also called Muer Yang as an expert witness. The League identified Yang as a leading expert on voter line management and optimization, a subset of the field of mathematics known as queuing theory. Yang testified that the new law would lengthen voter registration lines and increase the time it would take voters to register.

Michael Herron, a professor of government at Dartmouth, testified as an expert in the statistical analysis of election administration. Herron analyzed the new law using the “calculus of voting” theory, which examines the impact of the costs and benefits of voting on the decision to vote. Herron testified that the costs imposed by the new law would have a disproportionate impact on certain voters, including college students, highly mobile voters, and the homeless. He concluded that, over time, fewer people would participate in New Hampshire elections as a result of the new law.

Trial Court Decision

The trial court credited the expert testimony in finding that New Hampshire’s new voter registration law was unconstitutional. The court agreed with Bosley that the language of the new documents was confusing and needlessly complex. The court agreed with Yang that the new law would increase the time it takes to register.

Based on that testimony, the court identified voter confusion and longer lines as costs associated with the new law. Those costs, as well as fear of being jailed if the required information could not be provided promptly after the election, burdened the right to vote. The court agreed with Herron that certain voters would be discouraged from voting because of the new law.

Evidence of how the new law affected the 2018 election confirmed the experts’ conclusions. The court found that some registrants filled out the registration form incorrectly by checking both boxes. Other registrants left the polling place because they did not believe they could register without producing immediate evidence of their address. Some election officials turned away registrants who did not produce required documents despite their willingness to do so after the election. Several college students testified that they did not register because they believed they would be unable to prove their residence within the district.

The court also noted that honest voters who were eligible to vote would be subjected to criminal prosecution if they failed to produce required documents within ten days after the election. The court concluded that subjecting honest, eligible voters to the risk of criminal prosecution because they did not gather documents and bring them to a municipal clerk within a short window was an unreasonable burden on the right to vote. 

The trial court found that unrebutted expert testimony, “supported by testimony from a multitude of witnesses and the State’s own data, suggests that the complicated and confusing nature of the forms will increase average registration times and result in longer lines at polls,” which, “together with navigating the forms and the penalties, may outweigh the benefit of voting for some individuals.” The trial court concluded that the new law, “if fully implemented, will suppress voter turnout.” It therefore invalidated the law.

State Supreme Court Decision

The New Hampshire Supreme Court affirmed the trial court’s decision. The supreme court rejected the state’s argument that the trial court based its ruling on anecdotal evidence. The supreme court accepted the trial court’s findings that its decision was “supported by the persuasive and credible expert testimony offered by Plaintiffs, for which the State had no effective rebuttal.”

In the end, expert testimony carried the day for the election law challengers. The state’s failure to call its own experts to challenge any of the expert opinions offered by the plaintiffs amounted to a concession that those opinions were correct. The supreme court affirmed the trial court’s decision because expert testimony firmly established that New Hampshire’s new law would unreasonably burden the right to vote and would suppress voter turnout with no demonstrable improvement of election integrity.