Chester Nugent died from a combination of sepsis, sacral decubitus, and malnutrition. Sepsis is a condition caused by the body’s response to an infection. In Nugent’s case, the infection was caused by a bedsore. Sacral decubitus refers to an ulcer, including a bedsore, near the spine in the lower back.

Three days after undergoing hip surgery, Nugent was transferred to Highland Pines, a nursing home in Texas. Nugent had developed a bedsore during his hospital stay. He remained in Highland Pines for about three weeks. His bedsore worsened and he was transferred to a hospital in a state of septic shock. Nugent died a few weeks after the transfer.

Nugent’s estate sued a number of healthcare providers, including Highland Pines. His lawsuit alleged that Highland Pines was negligent in failing to treat the bedsore and that its negligence caused Nugent’s death.

Texas law required Nugent’s estate to serve the report of an expert witness as a condition of bringing the lawsuit. The trial court dismissed the lawsuit after determining that the expert did not have the qualifications that Texas law required. The Texas Court of Appeals reversed the dismissal.

Texas Law

In a malpractice case, Texas requires an expert to prepare a report that identifies the proper standard of care and to explain how a failure to meet that standard caused harm to the patient. The expert’s report must demonstrate that the expert meets the qualifications imposed by Texas law, including an active practice treating patients in facilities that are “substantially similar” to the defendant’s.

In general, any physician can provide an expert opinion about causation. To render an opinion about whether the defendant provided the appropriate standard of care, however, Texas law requires the expert to be practicing in a field that involves the same type of care or treatment as that delivered by the defendant. “Practicing” includes serving as a consulting healthcare provider and being licensed, certified, or registered in the same field as the defendant healthcare provider.

In addition, the expert must be qualified by training or experience to offer an opinion as to the appropriate standard of care and must have knowledge of that standard. An expert report must demonstrate that the expert’s “knowledge, skill, experience, training, or education” relates to “the specific issue before the court.” That requirement should suffice to assure that an expert’s opinion will assist the jury, regardless of whether the expert is currently providing the same kind of care or treatment as the defendant.

Many states, at the urging of the medical industry and insurance lobbyists, have adopted laws that impose unnecessary limits upon the “qualifications” an expert witness must have. The goal of those laws is to protect healthcare providers and their insurers from liability by making it more difficult for injury victims to find expert witnesses who will be deemed “qualified” to testify in support of their claims. Insurance lobbyists know that injury victims struggle to find a doctor who currently practices in the same specialty and who is willing to testify against another doctor.

Qualifications of Estate’s Expert Witness

The estate offered the expert report of Dr. Jeffrey Stone. Dr. Stone is board certified in wound management. He has specialized in that field for 23 years and has treated hundreds of patients for chronic, non-healing wounds. A large percentage of his patients suffer from decubitus ulcers.

Dr. Stone’s report explains that he has “extensive experience of providing wound care in the nursing home/acute and long-term rehabilitation facilities that are competitors of and substantially similar to Highland Pines.” He has written orders for the care and treatment of patients suffering from decubitus ulcers and has supervised the execution of those orders by nurses. He has served as the medical director for wound care at several nursing homes and has lectured “nursing staff on prevention of wounds and interventions that they would do to improve patient outcomes.”

Trial Court Ruling

While there is no doubt that Dr. Stone was eminently qualified to determine the standard of care for the treatment of bedsores, Highland Pines complained that he did not demonstrate his “specialized knowledge of the protocols, policies, or procedures of a nursing home.” The trial court agreed. The trial court also determined that Dr. Stone’s report did not demonstrate that he was “actively practicing in a nursing home.”

The trial court’s dismissal of the estate’s malpractice claim served the goal of protecting the pocketbooks of an allegedly negligent nursing home at the expense of a victim whose death was, in Dr. Stone’s opinion, caused by malpractice. Protection of pocketbooks is the unspoken intent of Texas law, but the trial court’s application of the law in this case demonstrates the potential injustice of disregarding an expert’s actual qualifications to render expert opinions.

Appellate Decision

The Court of Appeals noted that the estate’s claim was not based on Highland Pines’ “protocols, policies, or procedures.” Rather, the estate’s claim was that Highland Pines failed to follow the appropriate standard of care when it neglected to treat Nugent’s bedsore.

The appropriate standard of care did not depend upon the adequacy of the nursing home’s “protocols, policies, or procedures.” In fact, the standard of care does not depend on whether the patient is treated in a nursing home, a clinic, a hospital, or a private residence. The care of pressure ulcers requires relief from pressure, regardless of the patient’s physical location.

The appellate court also decided that Texas law did not require Dr. Stone to be actively practicing in a nursing home. Since he “is actively practicing healthcare in a field of practice that involves the same type of care or treatment as that delivered by Highland Pines,” he is qualified by Texas law to testify as an expert in the standard of care for bedsores.

The Court of Appeals reversed the trial court’s dismissal. The estate is therefore entitled to move forward with Dr. Stone as its expert witness.

A medical examiner, a toxicologist, and multiple law enforcement officers have testified in the murder trial of Michael Isaac Russ.

The Killing

On December 22, 2017, Larry Wayne Campbell, 27, of Denton, North Carolina, was shot and killed in a parking lot outside of a barbecue restaurant.  According to the Randolph County Sheriff’s Offices, Campbell had been shot by an unknown person and died of his wounds at the scene. The shooter was seen driving away in a black Toyota truck.

Michael Isaac Russ was later apprehended as a suspect in a traffic stop.  Russ had a criminal record dating back to 2007 that includes traffic violations, assault, and carrying a concealed gun. Russ was later charged with Campbell’s murder and held at the Randolph County Jail without bail.

Theory of the Case

According to prosecutor King Dozier, Campbell and his friend were riding on their motorcycles to lunch when they rode past Russ’ home. Russ, who was on his way to a Hell’s Angels meeting, started tailgating the two men. He followed them to the parking lot of BBQ Joe’s, where words were exchanged. According to witnesses, Russ then shot Larry Campbell seven times.

However, Russ’ defense team argued that Russ was actually defending himself when he fatally shot Campbell. In his opening statement, defense attorney Thomas Manning explained that Russ was simply a motorcycle lover who was curious to see and meet the riders. He told the jury, “Mr. Russ fires in self-defense because he’s looking down the barrel of a loaded gun.”

Medical Examiner Testimony

The prosecution called Dr. Kimberly Janssen of the North Carolina Office of the Chief Medical Examiner to testify at trial. The court accepted Dr. Janssen as an expert in forensic pathology.  Dr. Janssen was the medical examiner who performed the autopsy on Campbell’s body after he was fatally shot.

Janssen testified that after she autopsied Campbell’s body, she concluded that he had been healthy prior to his death and the cause of his death was “multiple gunshot wounds and homicide.”

Defense attorney Manning questioned Janssen about the trajectory the bullet took through Campbell’s hand. He said that the trajectory would have been most likely if Campbell had been holding his hand at an angle at which he was holding or aiming a firearm. Janssen did not disagree with Manning about the angle.

Sheriff’s Office Testimony

Captain Steven Nunn of the Randolph County Sheriff’s Office testified that he interviewed Roy Pruitt, Campbell’s close friend and an eyewitness to the shooting. Nunn also downloaded information from Russ’ iPhone and computers. Nunn said that Russ’ iPhone had been wiped clean of all data. However, he was able to extract information from two of Russ’ three computers.

Forensic Toxicologist Testimony

Dr. Ruth Winecker, a retired chief toxicologist for the North Carolina Office of the Chief Medical Examiner, tested the Campbell’s blood in 2017. Winecker, who is an expert in forensic toxicology, performed multiple different toxicology tests on the blood. Winecker explained that the test she runs ″look for drugs and poisons.”  The only substance found in Campbell’s blood was caffeine.

What happens when a party retains an expert witness who has worked for the opposing party in the past? Does the expert have a conflict of interest that precludes the expert from testifying against the former employer? The answer depends on the circumstances, as a fraud prosecution in Utah illustrates.

Fraud Allegations

Wendell and Allen Jacobson operated a business known as Management Solutions, Inc. in Fountain Green, Utah. In 2011, the Securities and Exchange Commission (SEC) alleged in a civil proceeding that the father and son had engaged in a $220 million Ponzi scheme.

The Jacobsons allegedly offered investors, many of whom were drawn from the Jacobsons’ contacts in the Mormon community, the opportunity to invest in limited liability companies that owned apartment buildings in eight states. The Jacobsons represented that the companies purchased low-occupancy buildings, renovated them, and resold the buildings for a profit.

According to the SEC, the companies were actually losing money. The SEC contended that the Jacobsons used the investments to pay their own expenses while paying returns to early investors from the investment capital they received from new investors. The Jacobsons settled the case, although the proceeding against Management Solutions continued.

In 2013, a federal judge ruled that Management Solutions did not engage in a Ponzi scheme, although its individual transactions included “many Ponzi characteristics.” Rather than pursuing the business for operating an overarching illegal scheme, the judge said that fraud would have to be proved as to each individual transaction.

In 2015, the Utah Attorney General’s Office charged the Jacobsons with multiple counts of securities fraud under state law. The criminal charge alleged that the Jacobsons made false statements and failed to disclose important facts to prospective investors.

Gil Miller’s Relationship with the Jacobsons

While the SEC was conducting its 2011 investigation but before it filed a complaint in court, Management Solutions hired Gil Miller’s accounting firm to provide consulting services. Miller is a forensic accounting expert.

At some point after the SEC filed its lawsuit, the federal court appointed Miller to act as a receiver for the Jacobsons’ business. A receiver essentially takes over the business and assures that the business owners do not dispose of income and assets that could be used to pay creditors.

Court documents noted that Miller was the premier expert in receivership in Utah. When he was appointed as receiver, Miller’s firm terminated its consulting relationship with Management Solutions.

Miller continued acting as a receiver after the SEC complaint was settled. His duties included liquidating companies that were used as part of the alleged fraudulent scheme and using proceeds from the sale of assets to repay investors.

Allegations of Conflict

When criminal charges were filed, Utah prosecutors wanted to use Miller as an expert witness. The Jacobsons objected that Miller had a conflict of interest since his accounting firm had been employed as a consultant for the Jacobsons regarding the SEC investigation.

The Jacobsons’ attorneys argued that Miller’s firm had access to confidential information, including legal theories and strategies developed by the Jacobsons’ defense team. Legal strategies are usually privileged information that a party is entitled to keep secret.

Miller denied that he had a conflict because his accounting firm had been hired by Management Solutions, not by the Jacobsons. The fraud charges were filed against the Jacobsons personally, not against Management Solutions.

Miller’s attorney complained that the defense was making it appear that Miller had “switched sides.” He contended that Miller’s involvement in the case as a receiver involved different subject matter than the consulting services his firm provided to Management Services.

The trial judge agreed that Miller had a confidential relationship with Management Solutions and therefore could not disclose information he acquired during that relationship. The judge also disqualified Miller from testifying as an expert witness, but agreed that he could testify as a fact witness about facts that he did not learn in confidence as a result of his work for Management Services.

Motion to Dismiss

In response to the judge’s ruling that Miller could not testify as an expert, the defense filed a motion to disqualify the Attorney General’s office on the ground that it learned confidential information about the Jacobsons from Miller. The defense wanted the court to build a wall between the prosecutors and any prosecutors who replaced them so that the new prosecution team would not learn of any confidential facts upon which the prosecution was based.

Two more years drifted by before the court decided the motion. Noting the lack of evidence that Miller disclosed any confidential facts to the Attorney General’s office, the court denied the request to remove the prosecutors.

Undaunted by that ruling, the defense recently filed a motion to dismiss the prosecution, claiming it was tainted by the prosecution’s decision to hire Miller as an expert witness. Given the trial court’s earlier refusal to recuse the prosecutors, the motion seems unlikely to succeed. In light of the snail’s pace at which the case is proceeding, however, it might serve to further delay the trial.

Katrina Williams purchased an LG lithium battery from Vape Easy, which purchased it from Madvapes. After the battery exploded in her pocket, Williams sued LG, Mad Vapes, and Vape Easy in a New York (Queens County) court for her injuries. The defendants filed summary judgment motions seeking their dismissal from the lawsuit. LG supported its motion with the testimony of an expert witness.

Facts of the Case

Williams purchased the battery for use in her vape unit. She carried the battery in her pocket because she intended to recharge it.

The president of Vape Easy contended that he sold the battery in its original packaging, as he received it from Madvapes. Each package contains two batteries.

Madvapes purchased the batteries from an LG battery distributor. Each box it purchased contained 25 packages. Madvapes took the packages out of the box, affixed a barcode to each package, and returned the packages to their box before shipping them to customers.

According to Madvapes, the battery was recommended for the vape unit by the distributor. According to LG, the battery is intended for use in power tools. The chief technical officer of Madvapes was aware of other instances of battery “malfunctions,” which is presumably an euphemism for explosions. Some of that awareness stemmed from other lawsuits.

The court refused to dismiss Madvapes from the lawsuit. The court decided that a jury should decide whether Madvapes knew or should have known that the batteries were unsuitable for use in a vape unit and whether it should have warned consumers about the dangers associated with the battery.

LG’s Expert Evidence

LG asked to be dismissed because its battery was intended for use in power tools, not for personal use. Since power tools are often employed for personal use, the distinction is difficult to fathom.

More importantly, the team leader of LG’s quality department admitted that no warnings about the unsuitability of the batteries for “personal use” (whatever that might mean) were printed on the boxes containing the packaged batteries, on the packages, or on the batteries themselves.

LG relied on the testimony of an expert witness in support of its summary judgment motion. The expert concluded that the battery exploded because the positive and negative terminals were bridged. LG thus claimed that the battery was not defective, but that Williams handled it improperly.

Trial Court’s Decision

The trial judge decided that LG’s defense will need to be evaluated by a jury. The expert did not address the likelihood that the battery would explode while carried in a consumer’s pocket. Nor did the expert explain why a consumer who purchases the battery for a power tool would carry it differently than a consumer who purchases the battery for a vape unit.

It is not usual to place a battery in a pocket while carrying it to a recharging device. Pockets might be expected to contain coins or other metal objects that could bridge the battery terminals, creating the risk of an explosion.

A jury could reasonably find that LG should have foreseen that a consumer would carry the battery in a pocket, regardless of the reason for which the battery was purchased. A jury could also reasonably find that printing a warning on the battery or its packaging would protect consumers who are unaware of the danger of bridging the battery’s terminals.

Accordingly, the judge decided that Williams was entitled to present her case to a jury. LG will also be entitled to present its expert testimony in an effort to persuade the jury that it was not liable for failing to warn consumers that its batteries might explode if the terminals are bridged.

The Connecticut Supreme Court has vacated the murder convictions of two men who were convicted of murder and have spent decades in prison. The court’s decision was based on its determination that the testimony of an expert witness was incorrect. 

The Crime

On December 2, 1985, Everett Carr, a 65-year-old man from New Milford, Connecticut, was stabbed approximately 27 times and found lying in a pool of blood in his home. Authorities arrested then-teenagers Ralph Birth and Shawn Henning, who had stolen a vehicle nearby, for the murder.  

The Expert Testimony

At trial, renowned Connecticut-based forensic scientist Dr. Henry Lee told the jury that he had performed tests on two towels and that “a smear of blood was” found on one of them from Carr’s upstairs bathroom. 

At the time of the trial, Dr. Lee was the Connecticut State Police’s forensic laboratory director. He is now a high-profile criminologist who has worked on cases all over the world.

Prosecutors at trial argued that Dr. Lee’s testimony about the bloody towel meant that the two teenagers went to the bathroom to clean themselves up after the murder. This testimony about the bloody towel was used to explain why no blood was found on either of the two men or the car that they stole.

In 1989, Shawn Henning and Ralph Birch were convicted in the stabbing death of Everett Carr. Both teens were sentenced to life in prison by two separate juries.

The Connecticut Supreme Court’s Ruling

Decades later, the convicted murderers filed petitions for habeas corpus, arguing the “bloody towel” that Dr. Lee testified about was never tested for blood. When the towel was finally tested, it proved negative for blood.

In a 7-0 ruling, the Connecticut Supreme Court vacated the convictions of Henning and Birch.

The court’s decision was written by Justice Richard Palmer. Palmer wrote, “The state also adduced testimony from Lee … to explain how it was possible that the petitioner [Birch] and Henning could have stabbed the victims so many times without getting any blood on their clothing and without transferring any blood to the Buick. Lee explained that, although the victim fought with his assailants, all of the blood splatter in the hallway was uninterrupted, meaning that no individual or object was between the victim and the walls or floor to interrupt the blood splatter. According to Lee, this could explain why the assailants were not covered in the victim’s blood.”

The Aftermath

Birch, who was sentenced to 55 years in prison, is still imprisoned awaiting the state’s decision on whether to retry him. Henning, who was sentenced to 50 years in prison, has been out of parole since July 2018.

Dr. Lee’s Reaction

Dr. Lee has defended his conclusions. He told the Connecticut Law Tribune, “Somehow, I’ve become the casualty for this legal problem. The towel was tested. It was a light smear of blood. I spent two days on the scene and did numerous tests.”

When the Social Security Administration (SSA) denies an application for Social Security Disability Insurance (SSDI) benefits, the applicant is entitled to a hearing. One of the issues that an administrative judge will decide is whether jobs are available for a person with the applicant’s disability, in light of the applicant’s education, work experience, and other characteristics.

Administrative judges often rely on expert testimony about the availability of work in the economy. In Biestek v. Berryhill, the expert based her opinion on private market-survey data. The applicant asked to review that data but the expert refused to provide it.

The judge relied on the expert’s opinion despite the expert’s refusal to provide the underlying data to the applicant. The United States Supreme Court was asked to decide whether an expert’s opinion can support a denial of SSDI benefits when the expert relies upon data that she keeps secret.

Facts of the Case

Michael Biestek was a carpenter and construction worker. A combination of degenerative disc disease, Hepatitis C, and depression prevented him from working in his occupation. He applied for SSDI benefits.

The question at Biestek’s SSDI hearing was whether he was capable of transitioning to less physically demanding work. The judge needed to determine what kind of work Biestek could do and whether those jobs existed in significant numbers.

The judge used the services of Erin O’Callaghan, a vocational expert who was under contract with the SSA. Like many vocational experts, she also worked in the private sector helping people with disabilities find employment.

O’Callaghan opined that Biestek could work as a bench assembler or sorter. She testified that there are 240,000 bench assembler jobs and 120,000 sorter jobs in the national economy.

Biestek’s lawyer asked O’Callaghan about the source of those numbers. She replied that they came from her own labor market surveys. (She also relied on government sources, but those sources do not provide the specific detail about which she testified.)

Biestek’s lawyer asked O’Callaghan to produce those surveys. She refused, claiming that they contained confidential information because they were in her client files. The lawyer suggested that O’Callaghan produce the surveys after removing the clients’ names. She again refused. The judge stepped in and ruled that she was not required to produce the information.

Judge’s Ruling Appealed

The judge awarded Biestek benefits that would start after four years, when his advancing age would make it difficult for him to find employment. Biestek appealed, arguing that there was no reliable evidence that any work existed in the economy that he would be qualified to perform during the four-year period during which benefits were denied. He argued that O’Callaghan’s opinion should not be considered because it was based on data that Biestek was not allowed to review or challenge.

The District Court and the Sixth Circuit ruled against Biestek. Since the Sixth Circuit’s ruling conflicted with a decision from the Seventh Circuit, the Supreme Court agreed to resolve the conflict.

Supreme Court Decision

The SSA rules allow vocational experts to rely on publicly available sources of data and on information they privately acquire from employers or that they develop from their own experience. In a federal lawsuit, data upon which experts rely is usually discoverable, and courts deciding Daubert motions must determine whether the data is sufficient to support the expert’s opinion.

The Supreme Court decided that administrative proceedings are different. Administrative rules require decisions to be based on “substantial evidence,” although court decisions tend to regard that phrase as meaning “any evidence at all.” As the Supreme Court noted, “substantial” in this context means “more than a mere scintilla.”

Biestek did not ask the Court to adopt a procedural rule requiring production of a vocational expert’s underlying data. As the Court noted, that rule exists in court procedures that apply to federal lawsuits but no comparable rule requires production of an expert’s data in SSA proceedings. Nor did the Court seem inclined to adopt such a rule, even if it had been asked to do so.

The Court declined to rule that a vocational expert’s opinion in an SSA hearing will never constitute “substantial evidence” of available employment if the expert refuses to disclose the data upon which the opinion is based. The Court concluded that a qualified expert who answers questions credibly, who uses a widely accepted methodology, and whose testimony is not contradicted by other evidence may be deemed to have provided “substantial evidence” upon which an SSA judge may rely. It is up to the judge in each case to decide whether the evidence is substantial, even if the expert refuses to produce underlying data upon which it is based.

It’s All Up to the SSA Judge

The Court noted that an SSA judge might decide not to credit an expert’s testimony if the expert “has no good reason to keep the data private and her testimony lacks other markers of reliability.” If the judge accepts the testimony despite the expert’s refusal to provide underlying data, reviewing courts must decide case-by-case whether the expert’s testimony created “more than a mere scintilla” of evidence. Given the low bar, the reviewing court will nearly always agree that the judge’s decision is based on substantial evidence.

The Court acknowledged that “the testimony would be even better—more reliable and probative—if she had produced supporting data; that would be a best practice for the SSA and its experts.” In fact, the SSA’s Vocational Expert Handbook instructs vocational experts to have their supporting data available if the judge asks to see it, but it does not require the judge to do so.

A judge who questions an expert’s credibility might therefore reject the testimony of an expert who refuses to produce the data. Since judges pick the expert, however, it is unlikely that a judge will question the expert’s credibility. Thus, when a judge lets the expert keep her underlying data secret, an SSDI applicant will often be out of luck.

Dissenting Opinions

The majority opinion did not decide whether substantial evidence supported the denial of Biestek’s benefits. The majority explained that it was not asked to decide that question.

Justice Gorsuch, joined by Justice Ginsburg, thought that the questions were inseparable. Justice Sotomayor wrote a separate dissenting opinion that agreed with most of Justice Gorsuch’s reasoning.

While Justice Gorsuch agreed with the majority that an expert’s opinion might constitute substantial evidence in some cases, even if underlying data is not produced, he based his analysis upon precedent that deems an expert’s “conclusory” opinion to be incapable of meeting the substantial evidence standard.

Courts generally agree that experts must do more than provide a “bottom line” opinion. They must support those opinions with sufficient data and reasoning. An expert who claims to have supporting data but refuses to produce it offers little more than a conclusory, bottom-line opinion.

Justice Gorsuch thought O’Callaghan’s opinion, supported only by her secret data, was conclusory. He concluded that “an agency expert’s bottom-line conclusion, supported only by a claim of readily available evidence that she refuses to produce on request, fails to satisfy the government’s statutory burden of producing substantial evidence of available other work.”

Underlying Justice Gorsuch’s approach is the understanding that SSA denies most claims for disability benefits. The SSA has the burden of proving that substantial jobs are available. When an SSA judge hires a vocational expert and then excuses the expert from producing data that justifies her opinion, the SSA judge puts a thumb on the scale by making it impossible for the disabled applicant to challenge the expert’s opinion. That approach reduces the number of claims the SSA must pay, but it isn’t fair to the disabled applicant.

The bottom line is that, in most cases, experts should not rely on data that they are unwilling to produce. In Social Security cases, and perhaps in some other administrative cases, experts may be able to shield their data, but it will be up to the administrative judge to decide whether the expert’s opinion should carry any weight when the opinion amounts to a “bottom line” conclusion that is unsupported by any data that the expert is willing to reveal.

The New Hampshire Supreme Court recently drew a line between expert and lay testimony given by a Child Protective Services (CPS) worker. The line is one that courts have had trouble defining. Courts are not always clear about information concerning child behavior that most jurors will possess and that need not be the subject of expert testimony, and the kind of esoteric information that can only be provided by an expert witness. Nor are courts always consistent in defining the testimony that experts can give when they discuss the “typical” behaviors of child abuse victims.

The issue arose in the context of a of a prosecution for multiple counts of sexual assault. After the defendant was convicted, his postconviction attorney argued that his trial attorney was ineffective when she failed to object to the CPS worker’s testimony. The CPS worker was not called as an expert witness.

Criminal defense attorneys have a duty to provide effective representation to their clients. That duty is part of the constitutional right to counsel, which guarantees not just representation by a warm body, but effective representation by a lawyer whose performance is objectively reasonable as measured by what competent attorneys would be expected to do. The court decided that an effective attorney would have objected to the testimony and therefore granted the defendant a new trial.

Facts of the Case

The alleged victim testified that she was sexually assaulted by her stepfather when she was five or six. She described a series of incidents that progressed from sexual touching to penetration. The same child had allegedly been sexually abused by a different man at some earlier point.

The child testified that she had her eyes closed during some of the incidents with her stepfather and could not see what her stepfather was doing. The jury found her stepfather, Jason Wilbur, guilty of two counts of sexual assault and not guilty of two others.

In a postconviction motion, Wilbur asserted that his attorney’s representation was ineffective. The trial court denied the motion. On appeal, the New Hampshire Supreme Court agreed that Wilbur’s attorney was ineffective.

CPS Worker’s Testimony

The CPS worker closed her testimony with four statements:

“[The child] was sexually reactive, and she acted out on other children when she had an opportunity.” An unadorned description of a child’s behavior is testimony about facts, not expert testimony. Characterizing the child’s behavior as “sexually reactive,” however, went beyond descriptive testimony by interpreting the child’s behavior.

“She had a really hard time mentally just dealing with this.” If the CPS worker was simply repeating hearsay from the child, she made that statement without testifying as an expert. However, it appears that she based the statement on her observations of the child, and concluded that the behavior she observed was the result of trauma produced by sexual abuse. If she was describing the child’s mental state, she was testifying as an expert.

“It had been going on for so long that she started to identify with the perpetrators, with the people who she alleged abused her.” That statement was an explanation of the child’s behavior as opposed to fact testimony about how the child behaved.

“And those [behaviors] are typical of children that have been abused.” The final statement is one that called on the CPS worker to compare the alleged victim with actual abuse victims as opposed to testifying about facts that she observed.

Drawing the Line Between Expert and Lay Testimony

While courts have struggled to draw lines when social workers testify, they typically apply the rule that experts testify about matters that are beyond the knowledge of ordinary jurors. Some aspects of child behavior are commonly understood by lay jurors (children cry when they are sad) while other aspects of child behavior are not. For example, courts commonly allow experts to testify that child victims of sexual assault often delay reporting the crime because courts assume that lay jurors are unfamiliar with behaviors of children who have been assaulted.

The trend in courts that are protective of the constitutional right to a fair trial is to recognize that how children customarily react to sexual abuse must be the subject of expert testimony. Most parents do not abuse their children and do not know whether abused children do or don’t become “sexually reactive” or begin to “identify with their perpetrators.” Even experts disagree about how children who are actually abused will react to the abuse. Jurors rarely have a basis in their own experience for deciding whether a child’s behavior is or is not typical of an abused child’s behavior.

The CPS worker gave testimony that only an expert should have given. Perhaps she was an expert, but she did not testify as one. The trial court and the New Hampshire Supreme Court both noted that the testimony improperly crossed into the realm of expert testimony.

Comment on Child’s Veracity

The appellate court’s focus, however, was on the CPS worker’s attribution of the child’s behavior to assaults “that had been going on for so long.” The CPS worker witnessed no assault and had no personal knowledge of whether the child had been assaulted. Her testimony that the assaults had occurred signaled her belief that the child was telling the truth. It also signaled her belief that the child’s “reactive” behavior stemmed not from the earlier incident of sexual abuse, but from Wilbur’s repeated sexual assaults over time.

Social workers are not lie detectors, and it is generally improper for a lay witness to comment upon the veracity of another witness. Whether the social worker believed the child was not relevant evidence. The question was whether the jurors believed the child. Their evaluation of the child’s testimony may have been tainted by their understanding that the CPS worker thought the child was being truthful.

Although the CPS worker did not testify as an expert, the prosecutor told the jury during closing arguments that the worker was “specially trained to do this.” The jury likely viewed that statement as a representation that the CPS worker was trained to know when children are telling the truth about sexual assaults.

While courts are not uniform in their condemnation of social worker testimony that vouches for the credibility of children, the trend is to recognize that even expert witnesses should not be allowed to imply that a child is telling the truth by testifying that the child’s behavior is common to the behavior of sexual assault victims. It is one thing to offer evidence about why children might delay reporting, give inconsistent versions of events, or recant accusations when that testimony is offered to rebut a claim that the alleged victim is lying. It is another thing to claim the ability to discern from a child’s behavior that a child was sexually assaulted. New Hampshire joined with other courts in holding that even an expert witness may not give testimony that implies the expert’s belief that the defendant is guilty.

The lesson for defense attorneys to learn is that social workers in child sexual assault cases often cross a line by testifying as experts. Attorneys need to be vigilant to object to that testimony when the witness has not been proffered as an expert.

Even when the prosecution calls an expert witness to testify, defense attorneys should object to any testimony that suggests the expert’s belief in the defendant’s guilt, including claims that the child behaved in a way that the expert presumes an abuse victim might behave. Defense attorneys should also consider retaining their own experts to counter testimony given by expert witnesses called by the prosecution.