Category Archives: ExpertWitness

Former Federal Judge Limited in Testimony as Expert Witness

False Confession Expert Testifies in Brooklyn Murder Trial

A New York man charged in the kidnapping and murder of a Brooklyn real estate magnate has called on a psychology expert witness to testify that he falsely confessed to the crime.  The high profile case provides another example of how behavioral science expert testimony is being worked into the legal system, and the outcome could influence the use of false confession research by courts in the future.

Brooklyn Murder Suspect Confesses to Role in Kidnapping

Brooklyn native Kendel Felix was arrested for his alleged involvement in the January 2nd, 2014 kidnapping and murder of real estate mogul Menachem Stark.  Stark was taken from the front of his office during a snowstorm, and his partially burned body was later recovered in a dumpster on Long Island.  Three months after the murder, police arrested Felix and three other co-defendants in connection with the crime, but only Kendel has been charged with murder.  Felix has been singled out in part because of a taped confession he provided to police officers in which he admitted to taking part in the crime by driving and helping to buy gasoline used to burn Stark’s body.

Felix claimed that he did not plan the crime, but his confession has nonetheless become the center piece of the trial against him.  If convicted, Kendel faces 50 years to life in prison, and his attorneys have attempted to attack the confession evidence with a pre-trial hearing featuring false confession expert testimony.  Attorneys for Felix reached out to a psychology expert witness with experience in false confession research to testify that the defendant was vulnerable to police persuasion which may elicit admission to a crime he did not commit.

False Confession Expert Testifies in New York Murder Trial

According to expert testimony from Dr. Marc Janoson during a pre-trial hearing in front of Brooklyn Supreme Court Justice Neil Firetog, Kendel Felix may have falsely confessed to the kidnapping and murder.  Dr. Janoson has a PhD in psychology, and is an experienced false confession expert witness with years of research on the subject.  Dr. Janoson has been called to testify in several criminal trials, and told Judge Firetog that Felix has “vulnerabilities that the literature has associated with false confessions.”

Dr. Janoson conducted several one on one interviews with Felix after the defendant’s arrest, and testified that in his expert opinion Kendel suffered from a low IQ of 87 and memory loss which made him more likely to falsely confess.  Dr. Janoson also talked about the police investigation, during which officers told Felix that his parents could be deported if he didn’t confess and that he would never see his three children again.  The police also dissuaded the defendant from talking to a lawyer.  When talking about the methods the police used while questioning Felix, Dr. Janoson told the court “I would also add that if the reports he gave me on his interrogation were correct, there was a great deal of coercion.”

Dr. Janoson cited research on false confessions which demonstrates that low intellect individuals subject to heightened police pressure are at an increased risk to admit to a crime that they did not commit.  During his expert testimony, Janoson explained the existing research on false confessions and highlighted the attributes of Felix’s case which align with false confession literature.  Prosecutors responded by calling a counter-expert to dispute Janoson’s claims.

Prosecution Calls Psychology Expert Witness to Dispute False Confession Testimony

In response to Dr. Janoson’s false confession expert testimony, prosecutors called psychologist Kathy Yates to dispute the defense’s claim that Felix was vulnerable to police coercion.  According to Yates, the defendant had the intellectual capacity to understand his rights to speak with a lawyer, and faked his memory loss in an effort to avoid a long prison conviction.  During her testimony, Yates looked to Felix and directly contradicted Janoson’s testimony by saying, “I apologize for my colleague yesterday for saying you were brain damaged and below intellect.”

The success of Felix’s false confession expert witness remains to be determined, but the case represents an interesting use of experts in criminal trials.  False confession expert witnesses have grown in popularity as research into the phenomenon expands, but even renowned experts have experienced difficulty convincing judges and juries that a suspect can admit to a crime he did not commit.  Despite the uphill battle false confession experts face, psychologists in the field may be called upon by defense attorneys who seek to challenge evidence which is historically a strength for prosecutors.

White pills

Jury Acquits Based on Expert Testimony About Accutane Defense

A jury in Morris County, New Jersey found a defendant not guilty of eight sexual assault charges after an expert witness attributed the alleged victim’s accusations to her use of Accutane. According to the expert, the acne medication causes psychosis, false memories, and delusional thinking.

Facts of the Case

“John Smith” (we’ve redacted the accused’s name) was accused of having multiple incidents of sexual contact with the complaining witness between 2000 and 2006. The complaining witness was under the age of 13 during those years.

“Smith”, a long-time coach involved in youth sports activities, was president of the Rockaway Townships’ recreational football league. He denied having any sexual contact with the complaining witness. No witnesses corroborated her accusations.

The Accutane Defense

In a “he said/she said” case, the prosecution usually argues that the complaining witness has no reason to make up a story. It is therefore critical for defendants to explain why they are being falsely accused.

In this case, the defense was built on the accuser’s use of Accutane. Accutane is a prescription acne medication that reduces the body’s production of sebum, an oily substance that contributes to acne by clogging pores.

After a controversial expedited review, the FDA approved Accutane in 1982 for treatment of severe recalcitrant cystic acne. Long after it became clear that Accutane can cause severe birth defects when used by pregnant women, the FDA initiated a program to monitor and limit its use.

A subsequent body of evidence linked the use of Accutane to depression and suicide. Doctors were advised to discontinue Accutane in patients who experienced “mood changes.”

In 2000 and 2002, a congressional committee held hearings regarding the safety of Accutane. James O’Donnell, an associate professor of pharmacology, was one of the experts who testified at those hearings. O’Donnell pointed to studies that raised serious questions about the link between Accutane and toxic psychosis, schizophrenia, and depression, as well as a condition that causes the brain to swell.

Roche, the drug company that manufactures Accutane, denies that it causes psychiatric problems. The company nevertheless added “psychosis” to its product warning as a possible side effect. Roche stopped manufacturing Accutane in 2009 but the generic version, isotretinoin, remains on the market.

A 2012 review of medical studies noted that increased attention has been given to the potential psychiatric side effects of Accutane in recent years. The review found that a number of cases have been reported that appear to link Accutane with psychosis. The review concluded that patients who have an underlying psychiatric disorder, especially bipolar disorder, are particularly likely to experience exacerbated psychiatric symptoms when they use Accutane.

Expert Testimony in “Smith’s” Trial

Criminal defendants have used the Accutane defense in an effort to excuse their own behavior. In that context, the defense has met with little success. In the most publicized example, a jury deliberated only 45 minutes before rejecting John Mullarkey’s diminished capacity defense to a homicide charge. Mullarkey stabbed his girlfriend 16 times. Experts for both the prosecution and the defense debated whether Accutane played a role in his violent conduct.

While juries rarely accept “the drug made me do it” as a defense to criminal responsibility, they tend to be more receptive to arguments that a drug affected the ability of a witness to provide credible testimony. James O’Donnell, the pharmacologist who testified before Congress, was called as an expert witness in the “Smith” trial to cast doubt on the alleged victim’s accusations.

O’Donnell testified that Accutane can cause individuals to experience “a distorted version of reality.” That testimony gave the jury a reason to understand why the complaining witness might invent a series of sexual encounters that never happened. “Smith’s” defense attorney attributed the jury’s decision to find “Smith” not guilty on all counts to O’Donnell’s “persuasive” expert testimony.

Plaintiff Earns New Medical Malpractice Trial Due to Expert Witness Testimony

A Pittsburgh woman who lost a malpractice lawsuit has been granted a new trial because a lower court erred by restricting medical expert testimony that would have bolstered her case.  According to a Pennsylvania Superior Court, the plaintiff had a right to present the full testimony of a medical diagnosis expert witness who was called to help her explain why a Pittsburgh area hospital was negligent in responding to her symptoms.

Pittsburgh Woman Files Medical Malpractice Suit for Failure to Diagnose Breast Cancer

In 2009, Maria Heddleston gave birth to a child at the University of Pittsburgh Medical Center, and, as part of her care, received a breast-feeding consultation which included instructions about how to operate a breast pump machine.  During the consultation and training, Heddleston complained of severe breast pain when she pumped, but this was not investigated by the attending nurses or physicians at the facility.  Maria was diagnosed with breast cancer in 2010, and she sued the Obstetrical and Gynecological Associates of Pittsburgh Inc. and other individual defendants for failing to run diagnostic tests which would have given her an earlier cancer diagnosis.

During trial, Heddleston claimed that by delaying the diagnosis almost a full year, her risk of death increased. After a civil trial in Pittsburgh, a jury returned a verdict 10 – 2 in favor of the defendants, finding that the Heddlestons had failed to prove medical malpractice.  On appeal, the plaintiffs argued that the trail court made an error when the judge disallowed expert witness testimony which would have affirmed the Heddleston’s argument that a diagnostic test run in 2009 would’ve caught the breast cancer early.

Judge Grants New Trial with Instructions to Include Expert Witness

During the initial trial, the plaintiffs called Dr. Barry Singer as a medical expert witness, and as part of his testimony was asked if diagnostic testing in 2009 would have caught Maria Heddleston’s cancerous tumor.  Before Dr. Singer could answer, defense counsel objected, arguing that the expert testimony should have been restricted to facts about the standard of care expected by gynecologists and not the doctor’s opinion about the results of a hypothetical diagnostic test.  The trial judge agreed, and the defense successfully argued during closing arguments that the plaintiffs could not prove a 2009 diagnostic test would’ve caught the cancer.

On appeal, Judge Mary Jane Bowes disagreed with the trial court, and held that Dr. Singer’s expert testimony regarding the outcome of a 2009 diagnostic test would speak to gynecological standard of care.  According to Judge Bowes, Dr. Singer’s testimony that a 2009 diagnostic test on Maria Heddleston would’ve identified early stages of breast cancer suggest a failed duty to live up to the standard of care required by treating gynecologists who offer breast feeding consultations.   Dr. Singer did not state during his testimony that such tests are required or even standard, but his information regarding the result of a test would, according to Bowes, give jurors the opportunity to better evaluate the level of medical care Heddleston should have received.

Pittsburgh Woman gets Second Chance at a Medical Malpractice Trial with Expert

Judge Bowes concluded that the Heddlestons deserved a new trial because of the trial judge’s failure to allow the plaintiff’s medical expert witness to theorize on the results of a 2009 cancer diagnostic test which was not conducted.  This ruling demonstrates the fine line that medical malpractice experts walk between a permissible explanation about standard of care practices which medical professionals are expected to follow and impermissible testimony which opines about whether or not that standard has been met.

Medical expert witnesses like Dr. Singer in this case are typically allowed to discuss the standard of care, and then give their expert opinion on the medical care a plaintiff actually received.  It is up to the jury to compare the expected standard of care with the actual care a patient received in order to issue a verdict.  In this case, the appellate judge determined that a medical expert’s opinion the result of an diagnostic test which was not run did not translate to his opinion on the quality of the care the plaintiff received, and was therefore permissible expert testimony.

Expert Witnesses Testify in New York Vehicular Murder Trial

A variety of expert witnesses were called by prosecutors last week in the trial of a Florida man accused of intentionally striking a New York State Trooper with his car.  Experts in vehicle collisions and blood splatter took the stand as prosecutors look to show the jury that the incident was not negligent, but a willful criminal act targeting a police officer engaged in a traffic stop.

Florida Man on Trial for Fatally Striking New York State Trooper

Almont Upton, 62, of Melrose, Florida struck, and killed, NYS Trooper Christopher Skinner with his car in May of 2014.  Officer Skinner was conducting a traffic stop on a New York highway when Upton hit him, leading to his arrest and first-degree murder charge.  Prosecutors dropped several other charges, including assault and reckless driving, in order to focus 100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the case on earning a murder conviction, and not confuse jurors with other available charge options.

Upton’s defense team has proposed that the defendant could not have intentionally murdered Trooper Skinner due to a mental disease or defect which impaired his decision making at the time.  Although the defense has not expanded on its defense yet, prosecutors attempted to counter the argument that Upton did not act intentionally by calling expert witnesses to explain how the nature of the collision with Trooper Skinner suggested malice and intent necessary for a murder conviction.

Expert Witnesses Testify in Almond Upton Murder Trial

Last week, prosecutors called New York State Police Collision Reconstruction Expert Travis Webster to take the stand and explain the evidence found at the scene of the collision. Webster, a state investigator who focuses on accident reconstruction, evaluated the evidence and provided testimony which supported the prosecution’s theory that Upton acted intentionally.  According to Webster, Upton was traveling at 93 miles per hour when he hit Trooper Skinner, and had his accelerator pedal “100 percent to the floor.”  Further, Webster’s accident reconstruction expert analysis revealed that the defendant never activated his brakes, which suggests Upton did not demonstrate any effort to avoid hitting Skinner with his pick-up truck.  Finally, Webster concluded that there was nothing wrong with Upton’s truck which would have prevented him from steering out of the way or applying the brakes.

New York State Police Sr. Investigator Steve Anderson was also called to the stand as a blood stain analysis expert witness.  Investigator Anderson walked the jury through the blood stains on the hood and windshield of Upton’s truck which was caused by a direct strike on Trooper Skinner.  Anderson also pointed out blood stains on the tailgate of the vehicle, supporting the prosecution’s contention that Upton struck Skinner at a high rate of speed with intent to hit and kill him.  Anderson concluded his expert testimony by explaining that he oversaw the autopsy of Trooper Skinner and collected his clothing from the scene in order to obtain evidence for trial.

Upton’s attorneys did not aggressively question the prosecution’s expert witnesses, choosing instead to dispute the motivation and mental state of the defendant rather than the circumstances of the fatal incident.

Prosecution Presents Case for Murder while Upton Defense Prepares Insanity Plea

After presenting its accident reconstruction and blood splatter expert witnesses, prosecutors argued that Almond Upton’s actions demonstrated “precision driving” and sufficiently reached the level of intent necessary to earn a first-degree murder conviction.  Prosecutors argued that the testimony from their accident reconstruction expert shows Upton aimed to kill Trooper Skinner with his car while the officer was distracted and vulnerable before he later sideswiped two other vehicles as he attempted to make his high speed escape.

Defense attorneys representing Almond Upton will take their turn as the trial continues this week, and will undoubtedly call a mental health expert witness who will testify to the defendant’s mental state at the time of the accident.  The legal standard for insanity typically requires a defendant prove he did not understand or appreciate the consequences of his actions while committing the crime, and the evidence from the state’s accident reconstruction and blood splatter experts which suggests Upton acted with malice makes the defense strategy a longshot, regardless of future expert testimony supporting mental defect.

Ohio wooden Mallet

Experts Play Key Role in Ohio Murder Trial Involving One of Six Missing Women

It took a jury just three hours to convict Jason McCrary of the murder of Timberly Claytor. Claytor was one the six women who went missing over a year-long period of time in Chillicothe, Ohio. The story of the six women was the subject of a true crime documentary on Investigation Discovery, titled “The Vanishing Women.”

McCrary’s Defense

McCrary had taken the stand and testified in his own defense, telling the jury that Ernest “Dolla Bill” Moore III was Claytor’s killer. McCrary testified that he had met Claytor at a gas station and they agreed that he would pay her money for sex. McCrary said that Claytor asked him to drive her to a parking lot where Moore walked out of a home and asked for a ride in exchange for drugs. McCrary said that, while he was driving, Moore and Claytor got in a fight, which eventually resulted in Moore shooting Claytor.

McCrary’s trial lasted five days. Much of that time was spent with expert witnesses for both prosecution and defense.

Expert Testimony During the Trial

Defense called Detective Robert Moledor of the Cellular Analysis Survey Team to testify about cellphone towers and communications. Moledor testified about the cell phone records of two separate numbers: one with a 614 area code and one with a 740 area code. Moledor detailed the several calls coming and going from the phones on the date of Claytor’s murder and testified that the geography of the land could have interfered with the signal of the calls, causing them to be routed to a tower in a different area from where the phone was actually used.

Matthew White, firearms examiner for the Ohio Bureau of Criminal Investigation examined the three bullets that were found in the investigation. He testified that all three of the bullets were .380 caliber, but he was unable to determine if they were all fired from the same weapon.

Todd Fortner, a BCI special agent, provided the details of the scene where Claytor’s body was found. Fortner testified about the bullet holes and blood evidence that was found on the car and that some of the blood appeared as though someone had attempted to wipe it away.

Dr. Bryan Casto, forensic pathologist for the Montgomery County Coroner’s Office, testified that Claytor had suffered three gunshot wounds to the left side of her head and a wound to her left hand. He was unable to determine the order of the shots, but noted that they occurred in close succession and were each potentially lethal. Casto also testified that the shots were fired within 1 to 2 inches of Claytor’s face.

Hallie Garofalo, a DNA forensic scientist with the BCI, testified that McCrary’s DNA was in the sperm sample that was found on Claytor’s body. Garofalo also testified that the shoes that were thought to be worn by McCrary contained samples of Claytor’s DNA.

McCrary will be sentenced by Judge Michael Ater of the Court of Common Pleas on August 12.

Doctor examining a pregnant woman

Certified Nurse Midwife Allowed to Give Expert Testimony Against Registered Nurse in 14 Million Dollar Case

A medical malpractice case that resulted in one of the highest malpractice verdicts in the history of Georgia has settled for an undisclosed amount. The case was about to proceed to a second appeal after the initial appeal was resolved in favor of the woman who brought the lawsuit. The issue on appeal was whether a certified nurse midwife should have been precluded from testifying as an expert about the standard of professional care that is expected of registered nurses.

Facts of the Case

Melissa Dempsey gave birth to Kailey Watson at a Gwinnett Medical Center hospital in Gwinnett County, Georgia. Kailey suffers from permanent physical and mental disabilities. Her mother sued the hospital, alleging that Kailey suffered from fetal distress and oxygen deprivation during her birth, resulting in a traumatic brain injury. Dempsey contended that registered nurses (RNs) who were attending the delivery misread or misinterpreted data from a fetal monitor and otherwise failed to detect and address the problem.

Dempsey supported her case with testimony from two expert witnesses. One was an obstetrician. The other was a certified nurse midwife (CNM). After hearing the evidence, the jury ruled in Dempsey’s favor, returning a verdict of nearly $14 million.

Gwinnett filed a motion for a new trial, contending that the CNM was not qualified to testify as an expert. Georgia law permits an expert to testify about the standard of care that a prudent health care practitioner is expected to follow, provided that the expert is a member of “the same profession.” The trial judge agreed with Gwinnett that the CNM was not a member of “the same profession” as the RNs and should not have been allowed to testify. The court therefore granted a new trial. Dempsey appealed.

Court of Appeals’ Decision

The Georgia Court of Appeals decided that the CNM was qualified to testify about the standard of care that an RN should follow. She began her career as an RN and she supervised RNs as part of a labor and delivery team. She testified that the standard of care involved in reading and interpreting fetal monitoring strips is the same for RNs and CNMs.

In many states, the CNM’s professional experience would obviously qualify her to testify as an expert in the standard of care that applies to an RN. Georgia law, however, permits expert opinions about standards of care in malpractice lawsuits to be expressed only by an expert who has actual knowledge or experience in the relevant area, either by active practice or by teaching during at least three of the last five years, and is a member of the same profession as the defendant. (The statute carves out an exception for physicians, who are allowed to express an opinion as to the standard of care that non-physicians in the medical profession must follow.)

The question was therefore whether a CNM is a member of the “same profession” as an RN. In earlier cases, the court held that a pharmacist could not testify against a doctor and that a neither a nurse nor a chiropractor could testify against a physical therapist because they are not members of the same profession. But chiropractors and physical therapists are regulated by different licensing authorities under Georgia law, while Georgia requires a CNM to be licensed as an RN. It was therefore easy for a majority of the court to conclude that a CNM is an RN with advanced training, and therefore a member of the same profession as RNs. More surprising is that three dissenting judges, noting that the statute lists RNs and CNMs separately, concluded that RNs and CNMs belong to different professions, even if the CNM is also licensed as an RN.

Settlement After Remand

Since the trial court granted a new trial based on an incorrect understanding of the law, the court of appeals reversed the order for a new trial. The court did not address the hospital’s argument that the CNM was not qualified by “actual knowledge and experience” to testify against the RNs in the case. Because the trial court did not address that aspect of the hospital’s motion, the court of appeals remanded the case to the trial court to decide the issue.

After the case returned to the trial court, the judge rejected the hospital’s argument that the CNM did not have the necessary knowledge or experience required of an expert witness. The hospital appealed again, but (perhaps bowing to the inevitable) settled the case for an undisclosed sum before the appeal was decided.

Implications of the Decision

In the absence of legislation, courts typically permit any expert to testify about an applicable standard of care who is qualified to do so. General standards of expert testimony admissibility do not depend on a witness’ licensing status or job title.

In some states, legislatures have modified the general rule when expert evidence is required to establish the relevant standard of care in a medical malpractice lawsuit. Georgia is one of 32 states that have adopted statutes setting minimum qualifications for expert witnesses in medical malpractice cases. The statutes have often been enacted as part of a “tort reform” package that also requires lawyers to file an expert’s affidavit certifying that the case has merit.

Whether the legislative limitation on expert testimony is beneficial is far from clear. From the standpoint of lawyers who defend malpractice cases, the statutes prevent unqualified experts from rendering opinions about the standards of care that apply to healthcare providers. From the standpoint of lawyers who represent malpractice victims, the statutes prevent qualified experts from testifying while making it more difficult to find experts, given the fact that members of the same profession are often shunned if they testify against each other.

The Georgia case highlights the importance, at least in most states, of finding expert witnesses in the same profession as the party who is alleged to be negligent in medical malpractice cases. It also illustrates the difficult burdens that legislatures have placed on lawyers as they attempt to determine the “profession” to which an expert belongs. Lawyers searching for experts in malpractice cases need to understand the relevant evidentiary rule (and judicial interpretations of the rule) in the state where the lawsuit will be filed.

Riding the bike in the city

Bicycling Expert’s Testimony Ruled Admissible in Negligence Case Against City

The Washington Court of Appeals recently considered whether an expert in bicycling would be allowed to testify in a lawsuit alleging that a municipality caused her bicycle accident by failing to maintain a city street in a safe condition. The trial judge excluded the expert’s proposed testimony and dismissed the case without a trial. The Court of Appeals reversed, concluding that the expert was qualified to testify about the impact of road conditions on safe bicycling.

Facts of the Case

Pamela O’Neill was thrown from her bicycle while riding home from work. The accident occurred on Sidney Street in Port Orchard, Washington.

O’Neill was an experienced and skilled bicyclist who often took a new route between her place of employment and her home. This was her first time riding on Sidney Street. She saw a sign warning of a steep incline and noticed that the road was becoming uneven. She therefore rode with caution as she proceeded downhill.

While crossing an intersection, O’Neill’s bicycle unexpectedly changed direction as her handlebars were jerked to the right. O’Neill was thrown to the ground. Pictures of the accident site showed that the road was made from concrete slabs. The pictures showed gaps of up to 4 inches between the slabs and height differentials of up to 1 inch.

In a deposition, the city engineer testified that the City had no records of repairs performed at the intersection. It was obvious, however, that asphalt had been used at some point in an attempt to repair road damage. The engineer did not know when that last happened, and testified that maintenance crews sometimes repair minor road damage without making a record of the repair. The engineer also testified that seasonal changes in temperatures cause the concrete slabs to rise and fall.

O’Neill suffered serious injuries in the fall. She sued the City, alleging that the damaged road caused her accident. The City contended that bicyclists assume the risk of falling and denied any responsibility for the accident. Before trial, the court dismissed the lawsuit, concluding that O’Neill had no evidence that the City knew of any dangerous road condition or that it breached any duty to keep the road safe for ordinary travel. The court also concluded that the City had no special duty to make roads safe for bicycle riders.

Expert Testimony

O’Neill presented the court with an affidavit from James Couch, a certified bicycle technician and a United States Cycling Federation cycling coach. After describing the hazardous condition at the intersection, O’Neill provided the following expert opinions:

  • The height difference between the concrete slabs was sufficient to cause even the most experienced cyclist to lose control.
  • While potholes are relatively easy for cyclists to see, differences in height between slabs in a roadway are very difficult for cyclists to see.
  • Road defects that run in the direction of the cyclist’s travel are particularly hazardous and height differences need not be great to cause a bicycle accident.
  • The road defects at the accident site created a significant hazard to bicyclists.
  • Once a bicycle wheel makes contact with the defect, even the most experienced rider would be challenged to keep control of the bicycle.
  • The defects were present in a part of the road where experienced cyclists would normally ride.
  • The City’s prior attempts to repair the road demonstrated that the City was aware, or should have been aware, of the defective condition.
  • There was no evidence at the accident site or in the City’s records that the City made a comprehensive effort to repair the defect.

The trial court determined that Couch was an expert in bicycle racing and maintenance, but could not testify as an expert in road design or defects, bicycle accident reconstruction, or human perception of road hazards. The court struck Couch’s testimony as beyond his field of expertise. It then entered summary judgment against O’Neill, finding that she assumed the risk of falling by riding a bicycle and that she had no evidence to rebut the City’s assertion that it had no notice of the road’s defective condition.

Appellate Court’s Opinion

The State of Washington follows the Frye standard in determining the admissibility of expert testimony. In this case (as is true in most cases), the court’s ruling would have been the same even if Washington followed the Daubert standard. The question before the court was not the reliability of the expert’s methodology but whether the expert was qualified to render the opinions he proposed to give. Under either standard, experts may not testify outside the areas of their expertise.

The appellate court divided Couch’s proposed testimony into three parts. Some of the testimony related to Couch’s personal observations of the road conditions. The court held that those observations amounted to testimony about facts rather than expert opinion testimony. Since road conditions were relevant to the lawsuit, the trial court erred by excluding that part of Couch’s testimony.

The second category of testimony involved Couch’s opinions about a cyclist’s ability to see a roadway defect and the impact of such defects on the ability to maintain control of a bicycle. Given Couch’s experience and training, the court easily decided that Couch was qualified to render those opinions as an expert in bicycle riding. The trial court therefore erred by excluding that testimony.

Finally, Couch proposed to testify about repairs on the roadway and whether the City had notice of the road’s defective condition. Since Couch had no expertise in those areas, the court of appeals held that the trial court properly excluded that testimony.

Outcome of the Case

The court decided that Washington law requires a municipality to maintain its roads in a safe condition for all travelers, including bicyclists, not just motorists. While it does not need to maintain roads in perfect condition, it must maintain safe roads for all ordinary road users.

Washington law also requires a municipality to have notice of a dangerous condition and an opportunity to correct it before the municipality will be held liable for injuries caused by the condition. While O’Neill had no proof that the City had actual knowledge of the road defect, the court determined that the City may have had constructive notice that the road was defective. Constructive notice exists when a municipality should have been aware of the problem if it had exercised reasonable care in maintaining its roads.

Photographs showed weeds growing in the gaps between the cement slabs, suggesting that the gaps had been present for some time. The city engineer testified that the slabs rise and fall each season as the weather changes. The City should therefore have known of the likelihood that the road would need repair at some point but it produced no records showing when the road was last inspected. A jury could find from those facts that the City ignored a defective condition that had existed for a substantial time and that the City therefore had constructive notice of its existence.

Finally, the court held that bicycle riders assume the ordinary risks that are inherent in cycling, but do not assume the enhanced risks that are caused by another’s negligence. Couch’s admissible testimony established that the hazardous road condition was not one that an experienced rider could easily detect or avoid. That evidence would allow a jury to conclude that the City’s failure to maintain the road in a safe condition created an enhanced risk that bicycle riders do not assume when they decide to ride on a city street. Accordingly, the court decided that O’Neill is entitled to have a jury consider whether her evidence, including Couch’s expert testimony, establishes that the City is responsible for her injuries.

Fire Investigation Expert Witness Report Leads to New Trial for Chicago Man

A Chicago man convicted of setting a fire which killed two people in 1993 will receive a long awaited retrial due to evidence from fire science expert witnesses.  Prosecutors in the case have relented to repeated requests from the defense and agreed to a retrial after reviewing an expert report detailing modern advances in fire science technology which call the initial conviction into question.

Chicago Man Challenges Arson Conviction

Adam Gray has been serving a life sentence without parole since his 1996 conviction for setting a fire in 1993 which killed two people in an apartment building.  Gray, who was 14 at the time of the fire, was angry with his girlfriend and allegedly set the fire in a building where she and her parents resided.  Although the girlfriend and her family were able to escape, an elderly brother and sister who lived above the family died as a result of the fire.  In addition to a confession, which Gray now claims was coerced, prosecutors relied on the testimony from fire science expert witnesses to earn a conviction and life sentence.

During Gray’s initial trial, fire investigators testified that they found charring and burn patterns consistent with a hot fire which was set intentionally and spread with an accelerant.  Police investigators found a milk jug behind the burned building which contained what appeared to be the accelerant used to fan the fire, and a gas station clerk connected Gray to a purchase of fuel shortly before the fire was set.  In the years since the conviction, attorneys working for Gray have identified advances in fire science investigation techniques which raise questions about the validity of the conclusions by police and the testimony by fire expert witnesses.

Modern Fire Science Expert Witnesses Challenge Arson Conviction

When Gray recanted his confession after his conviction and life sentence, his new legal team set to work challenging the physical evidence which prosecutors used to argue the fire had been set intentionally.  According to his defense team, advances in fire investigation techniques suggest that the fire was not an arson at all, and what the police believed to be an accelerant was not present at the scene.  Fire expert witnesses John Lentini and Gerald Hurst produced fire investigation expert witness reports which challenged the initial findings of the investigation and prosecution of Gray.

According to Hurst, fire investigators who examined the remains in 1993 were too quick to conclude that the charring and burn patterns were evidence of an arson.  In an expert witness report to prosecutors, Hurst claimed that the fire investigators at the time did not have cause to rule out a conclusion that the fire started and spread accidentally.  Lentini contributed his expert evaluation of the fire by saying that the substance found in the milk jug – which police concluded was the accelerant Gray used to spread the fire – was not actually present at the scene.  Lentini told prosecutors that the substance in the milk jug, and the substance found on the wood of the building, were not only different, but neither were effective accelerants which could have been used to spread the fire.

Gray’s defense team presented the new fire expert witness evidence to prosecutors over a year ago, however, they were met with resistance.  After initial refusals to retry the case based on the new fire science evidence, Chicago prosecutors have finally relented.

Chicago Man to Receive New Arson Trial

After a year of refusals, prosecutors in Chicago have determined that the evidence presented by modern fire expert witnesses is sufficient to grant Adam Gray a new trial for arson and murder.  While the joint motion by prosecutors and defense attorneys for a new trial still needs approval from a local judge, the agreement by the district attorney to retry the case likely means Gray will have another day in court in the coming months.

Although the change of heart likely has a lot to do with the upcoming arrival of a newly elected DA who unseated the incumbent in a recent election, the prosecution’s willingness to retry a case with new expert witness testimony is an encouraging sign for other Chicago area defendants seeking to have convictions overturned based on advances in modern science.

a judge's chair

Serial’s Adnan Syed Granted New Trial Due to Questions of Expert Witness Reliability

The subject of the first season of the popular legal podcast Serial has been granted a new trial in large part due to questions about the reliability of the prosecution’s cell phone expert witness used to convict him.  An appellate court vacated the murder conviction of Adnan Syed citing the failure of his attorney to challenge the prosecution’s cell tower expert witness over some flawed logic, giving Syed an opportunity to pursue a re-trial with a different lawyer.  Prosecutors have promised to appeal the ruling, but should it stand then they will need to prepare for a second murder trial.

Serial’s Adnan Syed Granted a New Trial

Late last month, Judge Martin P Welch of the Baltimore City Circuit Court granted a motion by Adnan Syed requesting a re-trial for the 1999 murder of his former girlfriend Hae Min Lee.  Syed, now 35, was 17-year-old when he was convicted in 2000 for Lee’s murder, and has spent the last 16 years serving a life sentence in Maryland.  In 2014, the podcast Serial introduced Syed’s case to the nation, and opened up the opportunity for attorneys to question the legitimacy of the evidence used to convict the defendant, particularly testimony from a cell phone tower expert witness called by prosecutors.

During post-conviction hearings in February of this year, Syed’s attorneys presented new evidence of an alibi witness and raised questions about the validity of the prosecution’s cell phone expert.  According to Syed’s current counsel, his lawyer during the initial trial was “grossly negligent” by failing to pursue all the possible evidence which could help her client, including a counter expert who could have raised doubts about the prosecution’s case.  Defense attorneys representing Syed called the ruling an important victory, but cautioned the process is far from over as the Baltimore District Attorney still has the opportunity to appeal Judge Welch’s ruling before having to re-try Syed for Lee’s murder.

Syed Motion for New Trial Focuses on Shaky Expert Testimony

One of the central figure’s in Syed’s 2000 murder trial was a cell phone tower expert witness who the prosecution used to place the defendant at the scene of Lee’s burial.  In 2000, the state called FBI Special Agent Abraham Waranowitz to testify about how cell phone tower triangulation could identify a person’s location.  Waranowitz discussed two incoming calls to Adnan’s cell phone which arguably made it likely that he was located in an area where Lee’s body was later found at a time shortly after her death.  Waranowitz’s expert witness testimony was one of the key pieces of evidence prosecutors used to connect Syed to Lee’s death, but the expert’s reliability became a matter of interest for Adnan’s post-conviction defense team.

According to Syed’s legal team, his initial lawyer received a communication from AT&T which provided instructions on how to read and interpret cell phone activity with a notable disclaimer regarding locating phones that read, “Outgoing calls only are reliable for location status. Any incoming calls will not be reliable information for location.”  Waranowitz’s expert testimony focused only on incoming calls, which, according to the AT&T information, are not reliable for location identification, however, Syed’s trial attorney declined to press the expert on that information.  Attorneys for Syed argued that this failure to properly cross-examine an expert witness represented a grossly negligent failure by Adnan’s trial lawyer.

Appeals Judge Grants Adnan Syed a New Trial Citing Expert Testimony

Judge Welch agreed with Syed’s legal team, and found the failure to question the state’s cell phone tower expert about a notable flaw in his conclusion to be a key factor in granting the defendant a new trial.  Judge Welch pointed out the state’s expert was “directly contradicted by the disclaimer” and went on to note that “A reasonable attorney would have exposed the misleading nature of the state’s theory by cross-examining Abraham Waranowitz. The record reflects, however, that trial counsel failed to cross-examine Waranowitz about the disclaimer.”

Judge Welch’s ruling does not guarantee Syed a new trial, but with a sound legal reasoning and legitimate questions about the reliability of the expert witness who helped put the defendant in jail, Adnan’s legal team has expressed optimism that the ruling will survive appeals.  Should Adnan Syed be officially granted a new trial, his high-profile legal team will certainly present new cell phone expert witness testimony to contradict the state’s key piece of evidence which connected Syed to the scene of Lee’s burial.

Kansas US State Law Legal System Concept

Kansas Court Allows Defense Expert Witness Testimony But Limits Scope

A district court in Shawnee, Kansas has allowed a defense expert witness to testify, but limited the scope of his testimony.

Pritchard Charged with Murder

Colin Edward Pritchard, 59, was charged with the premeditated first-degree murder of his former wife, Cindy Pritchard. Cindy Pritchard was found dead in the apartment that the two shared after a 911 caller identifying himself as Colin Pritchard called for help and told the dispatcher that he had just shot Cindy in the head. The responding police officers testified that Colin stated that they had been drinking and fighting and that he couldn’t take it anymore.

Scott Kipper, the doctor who performed Cindy Pritchard’s autopsy, testified that Cindy died of a gunshot wound to the head and that the pistol was in contact with her head when it was discharged.

Is Expert Shawn Parcells Qualified to Testify?

Colin Pritchard’s defense attorney, William Rork, proposed to call Shawn Lee Parcells as an expert witness. Parcells has an undergraduate degree from Kansas State University and a masters degree from New York Chiropractic College. He is currently working on a doctorate degree in neuro, infectious disease and forensic epidemiology from Capella University. Parcells was formerly an adjunct professor at Wichita State University in forensic pathology and an assistant adjunct professor at Johnson County Community College. Parcells did note that the Wichita State University position was a pilot program with one student and ended after one year.

Parcells has previously testified as an expert witness in other Kansas courts and has participated in hundreds of autopsies.

The assistant district attorney on the case, Brett Watson, opposed allowing Parcells to testify, saying that it was unknown what Parcells would testify about. He raised concerns that Parcells would give “outlandish” testimony in front of the jury.

Watson pointed to a time when another Shawnee County district judge refused to allow Parcells to testify. In 2014, at the trial of James Arthur Qualls III, District Judge Cheryl Rios ruled that the defense had not shown Parcells to be an expert to testify about the trajectory of bullets that struck the victim’s body. Judge Rios also denied a defense motion to allow Parcells to testify about the impact of methamphetamines and alcohol on the victim’s mind.

Judge Allows Testimony But Limits Scope

Here, District Judge Mark Braun ruled that Parcells could testify as an expert witness, but gave him very strict guidelines about the scope of testimony. He issued a court order limiting Parcells to the one-paragraph summary of his proposed testimony.

Parcells testified for almost an hour. He agreed with the coroner’s earlier testimony that Cindy Pritchard had suffered a gunshot wound to the head and on the path that the bullet had traveled. Parcells opined that it was a “50-50 conclusion” whether the victim had suffered bruising to her body in the struggle before the shooting.

At several times during Parcells’ testimony, the prosecution objected, saying the testimony was outside Judge Braun’s order. Judge Braun upheld those objections. At one point, Judge Braun instructed Parcells to only answer yes-no questions with a yes or no and not to go into lengthy explanations.