Category Archives: ExpertWitness

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Terrorism Expert Testifies in Trial of Minnesota Men Accused of Joining ISIS

A terrorism expert witness took the stand this week in the trial of three Minnesota men accused of joining ISIS and plotting to commit violent acts abroad.  The high profile trial highlights recent efforts by state and federal government officials to fight growing concerns over radicalization of young men who are exposed to recruitment videos by terror groups such as ISIS.

Minnesota Men Charged with Plotting to Join ISIS

In 2014 the U.S. Attorney’s Office in Minnesota began investigating activities of a group of Muslim Somali men residing in Minneapolis – St. Paul due to suspicion of conspiracy to join terrorist groups.  With the cooperation of a friend of the defendants who secretly recorded conversations, the FBI was able to identify nine possible suspects connected to a plot to fly to the Middle East and join with the terrorist network, ISIS.  The group of men allegedly met at parks and Somali shopping centers to discuss leaving the country, and were arrested after some of them drove to San Diego in an effort to obtain fake passports and leave the country.

As a result of a joint counter-terrorism effort between the FBI and local police, a total of nine suspects were detained and charged with plotting to join with and aid ISIS’s terror activities in the Middle East.  The arrests shocked the Somali community in the Twin Cities, with critics accusing the government of unfair scrutiny of Somali Americans living in Minnesota which led to unjust accusations of conspiracy to commit terrorism. Despite concerns about the nature of the investigation, six of the men have pled guilty to lesser charges.

The remaining three defendants have maintained their innocence, setting the stage for a trial which will help shape the US Government’s ongoing strategy to investigate and prosecute alleged terrorist conspirators who are exposed to radical ISIS recruitment videos.

National Terrorism Experts Testifies in Minnesota Trial

The three suspects who chose not to plead guilty – Guled Omar, 21; Abdirahman Daud, 22; and Moahmed Farah, 22 – claim that watching ISIS recruitment videos and discussing the organization with their friends does not mean they became radicalized.  In order to support their case against the defendants, prosecutors called Charles Lister, a senior fellow at the Middle East Institute in Washington, D.C., to explain the Syrian conflict and the ISIS terrorist group to jurors in an effort to help them put the defendant’s actions in context.  Lister is a terrorism expert with years of experience studying terrorism recruitment efforts such as the ones ISIS has engaged in, and was tapped by the prosecution in order to show jurors that actions like the defendants’ are indicative of terrorist radicalization.

Lister spent the early part of his terrorism expert testimony explaining the Syrian conflict and Arab Spring to jurors, and how these violent disputes gave opportunity for groups like ISIS to bolster recruitment and expand their terrorist network.  After a short break, Lister continued his testimony by focusing on the extreme levels of violence and brutality which ISIS uses to advance its ideological mission of world domination.  During his testimony, Lister explained the core tenets of ISIS, discussed the organization’s aggressive recruitment strategy, and identified symbols of the organization.  Importantly, Lister also pointed out that because ISIS has been designated a terrorist organization, it is illegal to have any relationship or contact of any kind with the network.

Lister’s three hour testimony with prosecutors concluded with the terrorism expert explaining the types of actions people who join ISIS engage in, and the allure the organization has on young Islamic men in the United States.  After he was finished with the prosecutors, defense attorneys spent the afternoon questioning him on cross examination.

Attorneys for Accused Minnesota Terrorists Question Prosecution Expert

Attorneys for the defendants took turns questioning the prosecution’s terrorism expert after the state was finished speaking with him.  The thrust of the defense seemed to be twofold: first to highlight how the complex situation is in Syria blurs the lines between good and bad; and second to question whether actions like the defendants’ really suggest conspiracy to join terrorist activities.  Defense attorneys had Lister explain that not every group in Syria which opposes the existing government is a terrorist network, suggesting that the defendants were not necessarily plotting to join a terrorist group just because they were planning to go to Syria.

Defense attorneys also questioned Lister about whether or not exposure to ISIS recruitment videos and materials meant radicalization.  Lister admitted that not everyone who watches ISIS propaganda is a terrorist before court adjourned for the day. The trial of the Minnesota men linked to a plot to leave America and join ISIS in Syria is expected to continue for several weeks as prosecutors attempt to prove that the defendants were part of a growing radicalization movement which warrants state and federal investigation.

DNA Experts Exonerate Wrongfully Convicted Indiana Man After 25-Years in Prison

A report by a DNA expert witness was key in clearing an innocent man wrongfully convicted of a 1989 rape allegation.  Late last month the former inmate greeted his family as a free man after spending nearly 25 years in prison for a crime he did not convict when DNA expert witness evidence finally exonerated him.

Indiana Man Freed From Prison with DNA Expert Evidence

In 1991 Darryl Pinkins, now 63 years old, was convicted of a brutal sexual assault on a woman for allegedly being part of a trio of men who bumped their car into the victim’s, pulled her inside their vehicle, and raped her for several hours.  During the trial and investigation Pinkins was identified by the victim as her assailant, and he was convicted despite his repeated claims that he was in bed with his wife on the night of the attack.  During the nearly 25 years Pinkins spent behind bars he maintained his innocence before being finally vindicated by DNA.

In late April, Pinkins was freed from prison and informed that prosecutors would not pursue his case further, meaning his quarter century ordeal is over.  Pinkins was greeted by his 24-year-old son, family, friends, and members of the Innocence Project – the legal aid organization which dedicates its efforts to using DNA to overturn wrongful convictions.  Pinkins has lost his teeth, suffers from diabetes, and developed thyroid disease during his lengthy prison stay, but expressed confidence that this day was meant to be because he knew that he was an innocent man.

The DNA evidence used to earn Pinkins’ release is new technology which is being used by prosecutors and police across the country to identify defendants as guilty parties, and this case is the first to take advantage of the software as a tool for exonerating wrongfully imprisoned individuals.

Darryl Pinkins Exonerated with True Allele DNA Expert Software

For the past 15 years members of the Indiana and Idaho Innocence Projects have worked together to obtain sufficient DNA evidence to free Darryl Pinkins, and a new DNA expert witness software finally provided the opportunity.  True Allele, which faces stiff legal challenges over its source code, is an increasingly popular tool which has refined forensic DNA science by improving the ability to parse out a single person’s DNA from potentially incomplete or mixed samples.  True Allele has gained traction in several eastern states by police and prosecutors who believe the software is uniquely qualified in providing accurate DNA matches which connect suspects to crimes in a way no other DNA analysis tool can.

Up until the Darryl Pinkins case, True Allele has not been used to exonerate wrongfully convicted defendants, but the lawyers and law students of the Indiana and Idaho Innocence Projects saw an opportunity to apply new DNA expert technology to their mission.  Two Innocence Projects DNA expert witnesses used the True Allele software to test the samples gathered from the 1991 crime scene, and prepared a report which informed prosecutors that Pinkins could not have been involved in the brutal sexual assault.  The experts were prepared to testify in a hearing on the matter, but after reading their DNA report, prosecutors decided to vacate Pinkins’ conviction and release him from prison immediately.

The True Allele technology was not available in 1991 when Pinkins was first convicted, but the spread of the tool has given prosecutors cause to utilize DNA expert witnesses to ensure the right defendants are prosecuted for crimes in order to avoid future wrongful convictions.

DNA Expert Preaches the Value of True Allele Software

Greg Hampikian, one of the two DNA expert witnesses hired by the Innocence Project to free Darryl Pinkins, praised the True Allele system for providing the opportunity to improve accuracy of criminal convictions.  Hampikian told reporters that he felt the tool should be used to review all DNA cases in which there were complex samples or inconclusive results by saying, “This technology holds the key not just to answering complex DNA problems, but the literal key to freedom for men like Daryl Pinkins.”  DNA experts like Hampikian believe the use of True Allele has the potential to affect convictions throughout the United States by providing defendants convicted without reliable DNA evidence the opportunity to challenge the legitimacy of their trials.

As True Allele becomes more common of a tool for police and prosecutors, it is not surprising that groups like the Innocence Project will take the opportunity to use the software as a tool to exonerate wrongfully convicted defendants.  While its wide-spread application will take time, the development of True Allele as a tool for exoneration is a foreseeable next step in DNA expert technology.

Mallet and Florida Flag

Medical Expert Not Required to Practice in Same Specialty as Defendant Physician

The Florida 4th District Court of Appeal held in Weiss, et al vs. Pratt, (4D08-2179 and 4D10-593) that a testifying medical expert witness did not have to practice in precisely the same field as the treating physician in a medical malpractice action to allow testimony as an expert. The Court’s opinion interpreted a portion of Florida law that may provide some immunity for volunteer medical care. The Court suggested that the legislature may want to review the statute to clarify the immunity issue, but did not specifically address that issue in the opinion. It did, however, rely upon the existing language of the Florida statute in its analysis.

Factual Background

A high school football player was hurt in a football game. An orthopedic surgeon who had previously worked in an emergency room and had some training in pediatric orthopedics and sports medicine volunteered as the team physician.

When the injury occurred, the team physician examined the player, asked questions about what happened and what the player felt and saw (a flash of light). He did not recall asking the player about any period of unconsciousness or paralysis, but did not think that there was a spinal cord injury. After that, the doctor helped the player walk from the field. Paramedics arrived, put the player on a backboard and took him to a hospital. The doctor also went to the hospital, ordered tests and based on them and his clinical experience ruled out a spinal cord injury or a hematoma. He diagnosed a neck strain, a right shoulder contusion and prescribed pain medication.

A few days later, the player went back to the physician’s office but was seen by another doctor. By then, he could not lift his arm, flex his elbow and had lost significant strength in the arm. An MRI disclosed an epidural hematoma on the right side of his spinal cord and a contusion near C-5. At some point after that, the team doctor acknowledged that he should have put the player on a backboard on the field, rather than having him walk off of the field. The player sued the team doctor, the emergency room doctor and the hospital.

Trial and Appellate Theories

The trial court allowed expert testimony for the Plaintiff by an emergency room physician about treatment rendered on the football field. The jury found that the emergency room doctor and the hospital did nothing wrong. However, the jury did find against the team doctor and awarded a total of $750,000 as past and future damages.

The basis of the volunteer doctor’s appeal was that the Plaintiff’s expert should not have been allowed to give an expert opinion because he was neither an orthopedic surgeon nor a volunteer team physician and therefore, not “a similar heath care provider.” He also argued that the [Florida] immunity statute for volunteer doctors prevents an expert from another specialty from testifying.

Court’s Reasoning

The 4th DCA held that the team doctor was “similarly licensed” as the expert witness and therefore, the expert testimony was permissible. The court held that the “similarly licensed” reference related only to the introductory paragraph of the statute to include medical practice, osteopathic medicine, chiropractic medicine, podiatric medicine, and dentistry. Therefore, since the team doctor and the expert witness were both medical doctors, the expert testimony was allowable.

Former Federal Judge Limited in Testimony as Expert Witness

Vanderbilt Football Player Convicted of Rape Despite Defense Expert Testimony

Last week jurors in the high profile rape trial of a former Vanderbilt football player returned a guilty verdict against a defendant who claimed he was too intoxicated to engage in the type of malicious criminal behavior required for aggravated rape charges.  Despite testimony from a defense expert witness which bolstered his claim, Cory Batey was convicted of aggravated rape and 6 lessor charges for his role in a 2013 incident involving a 21-year-old woman.

Former Vanderbilt Football Players Charged with Rape

Cory Batey was the first of two former Vanderbilt football players to face a retrial for charges stemming from the 2013 incident when he allegedly raped an unconscious 21-year-old woman in a university dorm room after a night of drinking.  Batey and former teammate Brandon Vandenburg were convicted in January of 2015 of aggravated rape, attempted aggravated rape, and aggravated sexual battery, but were granted a new trial only two months later when evidence emerged that one of the jurors was a victim of sexual assault.  Judge Monte Watkins granted the mistrial due to a potential conflict of interest, forcing Tennessee prosecutors to prepare for a second trial which began in March of 2016.

Trials for Vandenburg and two other former Vanderbilt players who have yet to face any trial, Brandon Banks and Jaborian McKenzie, will begin later this month now that prosecutors have finished retrying Batey for his alleged role in the incident.  During the prosecution’s case, jurors were shown pictures of cell phones belonging to Batey, Vandenburg, and Banks which depict graphic images of the players apparently squatting over the unconscious victim and touching her genital area while making lude gestures towards the camera.

Since the early part of the investigation, Batey claimed that he was intoxicated throughout the incident and could not remember assaulting the victim.  In order to bolster his claim that Batey did not act with the intent necessary to commit aggravated rape, defense attorneys called an expert witness to tell jurors that the defendant’s intoxication significantly affected his mental state at the time.

Defense Expert Explains Intoxication Level in Vanderbilt Rape Case

Jonathan Lipman, an alcohol expert, took the stand during Batey’s defense in order to explain to jurors the effect a night of drinking had on the defendant.  According to Lipamn, the defendant was so drunk on the night of the rape that his blood alcohol content was likely between 2 and 5 times the legal driving limit in Tennessee.  Lipman punctuated his expert testimony by telling the jury that Batey would have been able to function, but would likely have done “silly things, jackass things” that he was not going to remember the next day.

Prosecutors in the case took Lipman to task for the methods he used to arrive at his expert opinion, and aggressively questioned him during cross examination.  Deputy District Attorney General Tom Thurman started his cross examination by forcing Lipman to admit that his entire expert testimony was based on data he had collected from Batey’s own recollection of the evening.  Lipman conceded that there was no hard evidence of the amount of alcohol the defendant consumed, and Thurman pointed out that Batey’s own testimony about the number of drinks he had changed during the investigation, and included an admission from the defendant that he had stopped drinking at least an hour before the sexual assault.

Lipman responded to the questioning that even if Batey was not as drunk as he initially estimated, the defendant still would have been blackout drunk and impressionable to suggestion by others.  Lipman conceded that his expert witness testimony was only as good as the data he received, but maintained his statement that the defendant was severely intoxicated.

Jury Convicts Cory Batey in Vanderbilt Rape Trial

Despite expert testimony about the effect of alcohol on his decision making, jurors again convicted former Vanderbilt football player Cory Batey for aggravated rape in his retrial.  Batey received a small break because the secondary charges he was convicted of are less serious than the ones he was convicted of following the 2015 trial, but he is facing serious prison time which will be determined during his sentencing trial on May 20th.

The remaining defendants will face trial later this month, and their defense teams have not announced plans to call Lipman or any other expert witness to testify about their mental state or intoxication level at the time of the rape.

Former Federal Judge Limited in Testimony as Expert Witness

Former Federal Judge Limited in Testimony as Expert Witness

A former Federal Court Judge in Madison, Illinois was limited in the scope of the expert testimony that he could offer at trial. A Court held that some of his opinions invaded the province of the presiding judge.

Factual Background

The underlying case involved a fatal accident that occurred in 2005 when a vehicle carrying 6 people ran off a road and rolled over; one person was killed and others were injured. The Estate of the deceased sued two highway contractors that were under contract with the Illinois Department of Transportation. Significantly, the contractors had formed a joint venture with each other to carry out the project.

The gist of the underlying case was that the contractors failed to post adequate barriers and to properly warn oncoming traffic of hazardous conditions. The defendants counterclaimed, alleging that the deceased drove too fast, drove while fatigued, and drove on the shoulder of the road, all of which were claimed to have proximately caused or contributed to the collision, death and injuries.

Insurance Disclosure Led to Pre-Trial Settlement

Before trial, the parties settled the negligence suit for $1 Million under a demand for policy limits, but before the discovery cut-off date. The settlement was based, in part, on a representation by defense counsel for the joint venture, Richard Green, that the $1 Million policy was the total amount of available liability coverage. The policy limits were tendered because the magnitude of the injuries and the risk of a verdict for the Plaintiff(s) could have resulted in excess exposure on the Defendants had policy limits not been tendered. After the settlement had been reached, the negligence lawsuit was dismissed with prejudice.

Revelation of Additional Insurance Prompts Second Suit

Later, it was determined that the contractors had individual liability insurance policies in addition to coverage for the joint venture. Therefore, the Estate filed a new lawsuit. It claimed that the negligence suit would not have been settled had the Plaintiffs known of the additional liability coverage.

Former Federal Judge Renders an Opinion as a Defense Expert in Second Suit

Former Judge Patrick Murphy stated that the defense counsel in the negligence suit had no reason to believe that there was insurance in addition to that on the joint venture.

But he went further, and that’s where problems arose. He stated that while he had no opinion on whether or not there really was additional coverage, it was the duty of the Plaintiffs’ lawyer to determine if there was. He stated that the lawyer could have propounded detailed interrogatories and used other methods of discovery. Mr. Murphy also stated that under Rule 26 of the Federal Rules of Civil Procedure, defense counsel had no duty to investigate whether there was other coverage. He stated that it was “gross negligence” by the Estate’s attorney not to have done so.

Court Held That the Scope of the Expert’s Opinion Was Overly Broad

The Court in the coverage case granted a motion to strike Judge Murphy’s testimony about Rule 26. It held that whether or not there was compliance with Rule 26 was strictly within the province of the court. The Court also held that Mr. Murphy’s testimony about whether or not plaintiffs’ counsel was negligent in the underlying case were impermissible legal conclusions.

Source: Madison Record

(Photo Credit: “Expert Witness” by NY and Picserver is licensed under CC BY-SA 3.0.)

Expert Witness typography

Expert’s Credibility Challenged in Brock Turner Trial

Maintaining an appearance of objectivity is essential if an expert witness wants to be effective. When an expert appears to be an advocate for a party, the jury is less likely to regard the expert’s testimony as credible.

An expert who testified about the potential effect of alcohol on an alleged sexual assault victim learned that lesson during her cross-examination. According to media reports, the expert’s credibility was attacked because the expert’s emails to the defense attorney suggested a lack of objectivity.

Brock Turner Trial

Brock Turner was a varsity swimmer at Stanford and a potential Olympic contender prior to his arrest. He was charged with sexually assaulting an intoxicated, unconscious woman behind a fraternity house in January 2015. The alleged victim, a 23-year-old woman, did not attend Stanford but was on campus to attend a party at the fraternity.

A student who was biking to the party at about 1:00 a.m. testified that he saw Turner on top of a woman who was laying on the ground and not moving. The student testified that he confronted Turner and that Turner tried to run away. The student and his friend held Turner until the police arrived.

The police determined that the woman was unresponsive. The woman’s dress was hiked up and her underwear was found on the ground next to her.

A paramedic who responded to the scene testified that the woman was unconscious. However, she vomited before entering the ambulance and was able to clear the vomit from her throat without assistance.

The woman was taken to a hospital, where she regained consciousness after about three hours. Her blood alcohol content was estimated to be 0.24{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} at the time of the alleged assault. Turner’s was 0.17{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}.

Turner was charged with three felonies: assault with intent to commit rape of an intoxicated or unconscious person, sexual penetration of an intoxicated person, and sexual penetration of an unconscious person. Turner, who was a 19-year-old freshman, withdrew from Stanford following his arrest.

Turner told the police that he had sexual contact with the woman but did not have intercourse with her. At trial, Turner testified that he “dry humped” the woman and penetrated her with his finger, but again denied that he had intercourse with her. He said he never removed his pants.

Since nonconsensual penetration with a finger would be sufficient to establish a sexual assault under California law, the question for the jury is whether the woman was either unconscious or too intoxicated to consent to Turner’s actions. Turner testified that the woman was awake and that she gave verbal consent to the sexual activity.

The alleged victim’s sister testified that she seemed fine at 12:15 a.m., when the sister left the party she was standing and her eyes were open.

The alleged victim testified that she could not remember anything that happened after midnight. Other witnesses established that she made two telephone calls at about 12:30 a.m., but she did not remember making those calls. She also acknowledged that she had experienced four or five alcohol-related blackouts when she was still in school.

Prosecution Experts

A sexual assault nurse examiner testified that scratches on the woman’s body were consistent with “penetrating trauma.” She acknowledged, however, that she did not know what caused the scratches.

A forensic biologist who examined the woman’s underwear as well as swabs taken from her cervix and vagina found no evidence of semen. He found DNA that he attributed to the woman and to one other person in the waistband of the woman’s underwear, but he ruled out Turner as the source of the DNA.

Defense Expert

To obtain a conviction, the prosecution needs to prove that Turner’s alleged victim was either unconscious or extremely drunk and that Turner knew about that condition when he had sexual contact with her. The defense called a psychology professor to give expert testimony on the effects of alcohol, including blackouts.

The professor testified that a person who has been drinking can seem normal despite having a level of intoxication that leads to a blackout. The professor explained that an intoxicated person might be capable of making decisions, such as a decision to drive or to have sex, but incapable of storing short-term memories about those decisions.

The prosecution did not attack the scientific validity of the expert’s testimony. Instead, the prosecution attacked the expert. The prosecutor cross-examined the expert about an email she wrote to the defense attorney that “exulted in the acquittal of a Seattle man who had confessed to rape and expressed hope for a similar outcome for ‘our client’.” The prosecutor used that email to portray the expert as an advocate for the client, not as an unbiased expert.

A second email questioned whether communications between the expert and the defense should be turned over to the prosecutor because (according to the expert) doing so would be “akin to showing our entire poker hand prior to making a bet.” The disclosure of the emails was required by California law and the suggestion that they should not be disclosed created the impression that the expert was trying to create an advantage for the defendant instead of providing neutral evidence. The reference to poker also gave the prosecutor a chance to ask “Do you think this is a game?,” a potentially devastating question.

Expert Credibility

The lesson to be learned is that experts should avoid making statements that could be used to suggest a close alignment with the outcome of the case. Lawyers are advocates for clients. Effective experts are advocates for the truth. When an expert appears to cross the line by strategizing about how to win the case or by referring to the lawyer’s client (rather than the lawyer) as “my” client, the expert risks crossing a line that will harm the expert’s credibility.

(Photo Credit: “Expert Witness” by The Blue Diamond Gallery is licensed under CC BY-SA 3.0 NY)

Conviction Reversed Because Defense Expert Not Allowed to Testify

Ballistics Expert Witness Testifies in LA Grim Sleeper Trial

A LAPD police ballistics expert witness defended his research methodology in the trial of Lonnie Franklin Jr., the suspected Grim Sleeper serial killer.  The high profile murder trial continues into its fourth week with prosecutors calling expert witnesses to build their case against Franklin, who has been accused of carrying out 10 murders in the LA area.

Grim Sleeper Murder Trial Continues in LA

Lonnie Franklin Jr. was arrested in July of 2010 in Los Angeles for the alleged murder of 10 women and assault on one woman who survived the attack after DNA evidence linked him to a series of murders in the 1980’s and the early 2000’s.  Franklin, 63, has pleaded not guilty to the crimes, and prosecutors have built their case on eyewitness testimony from the surviving victim, DNA evidence from the crime scene, a photo of a victim that Franklin had, and expert witness analysis of bullet wounds which were allegedly caused by a weapon similar to the one in Franklin’s possession.

The gun allegedly used to commit one of the crimes has become a key piece of evidence against Franklin and was found inside a dresser drawer in his home following his arrest.  During a three day search of Franklin’s home police investigators found 9 guns, but the one in question has become central to the trial because it was allegedly used to kill 25-year-old Janecia Peters, who police believe to be the last of the Grim Sleeper victims.  With the weapon linked to Peters in hand, prosecutors called a forensic weapon expert witness to conduct further investigation into the caliber of gun used in a collection of other murders connected to the Grim Sleeper serial killer.

LAPD Ballistics Expert Witness Testifies in Grim Sleeper Trial

Deputy District Attorney Beth Silverman called Daniel Rubin, a LAPD criminalist expert witness, to link the same caliber gun as the one found in Lonnie Franklin Jr.’s home to a series of Grim Sleeper killings.  Rubin testified in court that Franklin’s gun killed Peters, and that the same caliber of weapon was used in seven other Grim Sleeper crimes.  According to Rubin’s expert ballistics analysis, the gun used in the other crimes left a unique signature on the bullets, and, like Franklin’s gun, was a .25-caliber semi-automatic hand gun.  Attorney Silverman used Rubin’s testimony to argue that Franklin followed a pattern of using the same type of weapon to kill his victims.

Attorney Seymour Amster, who represents Franklin, challenged Rubin on the techniques he used to form his expert opinion.  According to Amster’s line of questioning, Rubin used methods which did not qualify him to provide ballistics expert testimony during the trial.  Rubin responded by defending his methodology and informing Amster, and the court, that his methods were widely accepted in the forensic science community.  According to Rubin, his research followed the standard methods of testing ballistic evidence, and his criminalist expert testimony was backed by validated scientific processes which qualify him as an expert.

Grim Sleeper Trial Continues in LA

After the ballistics expert testimony by Daniel Rubin, the prosecution rested its case, leading to an intense confrontation between attorney Amster and Judge Kathleen Kennedy before the defense presented its case.  During a shouting match in the middle of the courtroom, Amster told the judge that he was concerned the case was going to cause him to have a stroke because of the prosecution’s tactics and judge’s rulings.

A brief recess followed, and Amster was able to calm down and give an opening statement which attacked the validity of the DNA evidence used by police investigators to arrest Franklin. As the trial continues this week, Amster will begin calling witnesses to break down the prosecution’s, and will likely include a forensic expert witness to explain his criticism of the DNA evidence.

Hulk Hogan’s Experts Testify Against Gawker

[UPDATE] Hulk Hogan’s Experts Testify Against Gawker

UPDATE: The jury in Hulk Hogan’s trial evidently found his experts to be persuasive. After only six hours of deliberation, the jury awarded Hogan $115 million in damages and an additional $25 million in punitive damages. Readers might be interested in Peter Horan’s firsthand account of what it was like to serve as an expert witness for Gawker during the Hogan trial.

As the ExpertPages blog noted in June 2015, a blogger professed to be shocked by the fees that Hulk Hogan was paying an expert witness who assisted in his invasion of privacy lawsuit against Gawker. Now that the case has finally come to trial, Hogan can decide whether his expert is worth the money.

The Hulk Hogan Trial

Terry Bollea, known professionally as Hulk Hogan, sued Gawker under Florida law for invasion of privacy. Gawker, a website that brands itself as a “one-stop guide to media and pop culture,” specializes in celebrity gossip.

The lawsuit contends that Gawker violated Hogan’s privacy rights in 2012 by posting a video made in 2006 that shows Hogan having a sexual encounter with Heather Cole, the wife of his former friend Bubba “the Love Sponge” Clem. The video was recorded without Hogan’s knowledge or consent. Hogan’s lawsuit also alleges that Gawker earned profits to which it was not entitled by exploiting his public image.

Hogan’s invasion of privacy claim is based on a Florida law that prohibits the publication of “private facts.” Gawker contends that Hogan’s frequent public references to his sex life and his confession of infidelity in his autobiography have transformed conduct that is ordinarily private into a matter of public interest. Gawker argues that the video was part of a legitimate news story in light of public discussions of the sex tape that had been ongoing for months before Gawker posted it. Gawker maintains that it had a First Amendment right to report and to comment upon information that had captured the public’s attention.

Hogan’s lawsuit tests the line between an individual’s right to privacy and the media’s right to report the news. Given Hogan’s status as a public figure who, for many years, has welcomed publicity, the First Amendment plainly protects news reports and commentary concerning the contents of the video. Less clear is whether Gawker had the right to post the video itself.

The trial judge ruled that Gawker had no First Amendment right to post the sex tape, a decision that an appellate court will likely review if Hogan prevails. In the meantime, further investigation is needed to determine whether the tape revealed “private facts” or whether Gawker reported and commented upon newsworthy facts that were already in the public realm. Gawker contends that it merely “joined a conversation” that was already ongoing, while Hogan argues that the conversation did not include a video of his sexual activity until Gawker revealed it to the world.

Hogan’s Economic Experts

Hogan rested his case at the end of the first week of trial. He relied upon two experts to establish his economic damages. Shanti Shunn, a digital marketing strategist, testified that the sex tape was viewed 4.5 million times, not counting another 99,000 views on You Tube. About 2.5 million of those views occurred on the Gawker website.

Shunn testified that the Gawker site experienced a substantial spike in views immediately after posting the video. He admitted on cross-examination that he could not say whether the page views represented unique visitors or a lesser number of visitors who viewed the video multiple times.

Jeff Anderson, a director of valuation and analytics at a consulting firm that specializes in intellectual property, also testified that Gawker experienced a significant increase in web traffic after posting the video. He estimated that Gawker’s value increased by $15 million as a result of the additional traffic. Gawker is expected to challenge Anderson’s estimate of the company’s value when it presents its defense.

Hogan’s Liability Expert

The blogger who professed surprise that an expert could charge $250 per hour ($350 per hour for trial testimony) was referring to Mike Foley, a journalism professor at the University of Florida. Hogan’s attorneys relied on Foley to establish that the sex video was not newsworthy.

Foley testified that while Hogan’s conduct could be considered newsworthy, the video is “gratuitous” and should not have been posted to the website. He also testified that Gawker violated the Society of Professional Journalists’ Code of Ethics by posting it. The Code, however, includes a disclaimer that draws a distinction between ethics and newsworthiness. The disclaimer was apparently added to the Code in an effort to prevent the Code from being used as evidence against journalists in cases like Hogan’s.

Gawker’s attorney attacked Foley on two fronts during cross-examination. First, Foley conceded that publishers make difficult judgments about newsworthiness every day, and that what seems newsworthy (or, for that matter, offensive) to one person might be viewed in a different light by others. The cross-examination explored the newsworthiness of a variety of sex-related stories, from Magic Johnson’s HIV to the 1991 Vanity Fair cover that featured the photograph of a nude (and pregnant) Demi Moore.

The second line of attack focused on Foley’s credentials. Gawker’s attorney pointed out that Foley has not been a reporter for 43 years and hasn’t worked in a newsroom for 24 years. The cross-examination was designed to establish that Foley is out of touch with modern journalism, particularly internet journalism, which did not exist when Foley was a reporter. Whether the jury will believe that an academic cannot keep abreast of journalistic developments without practicing journalism remains to be seen.

Was Foley worth the fee that so shocked the blogger? Reviews are mixed. CNN reported that “Foley appeared flustered,” paused for long periods before answering questions, and struggled with his answers. The Hollywood Reporter suggested that “blistering” questions exposed the “faultiness” of Foley’s judgments. But media outlets may have reason to root for the media during their trial coverage. Hogan’s attorney said he was pleased with the testimony, but he can hardly be expected to say otherwise. In the end, the jury’s opinion will be the only one that matters.

(Photo Credit: “Hulk Hogan” by Mike Kalasnik is licensed under CC BY-SA 2.0.)

Election Experts Testify in Virginia Voter ID Case

Election Experts Testify in Virginia Voter ID Case

Laws requiring voters to show photo identification before their votes can be cast or counted are both politically and legally controversial. Last year, the United States Supreme Court declined to consider a challenge to a Wisconsin law that requires voters to produce a photo ID before they are allowed to vote. The Supreme Court’s inaction left in place a sharply divided federal appeals court decision that rejected a challenge to Wisconsin’s law. A few months later, a different federal appeals court ruled that Texas may not enforce portions of its voter ID law.

A lawsuit challenging Virginia’s voter ID law is underway. The plaintiffs, which include the Democratic party, are relying on expert testimony to support their challenge to the law. The defendants are countering with experts of their own.

The Voter ID Controversy

Proponents of voter ID laws argue that they are needed to combat voter fraud. Opponents of voter ID laws argue that voter suppression is the true motivation underlying the demand that voters produce a photo ID. They claim that voter fraud is a red herring and that disenfranchising voters who are poor, young, or disadvantaged — the groups who are least likely to have a valid photo ID — is the hidden purpose that the laws actually serve. That claim was recently endorsed by a conservative federal judge who has been persuaded by the evidence that photo ID laws have nothing to do with voter fraud and everything to do with politics.

As of January 2016, 36 states have adopted laws that require voters to show some kind of identification at the polls. Not all of those states, however, require a photo ID. The laws in 3 of the 36 states have been struck down by courts.

Election Experts Testify in Virginia

The plaintiffs in the Virginia suit contend that the voter ID law is intended to reduce the number of minority voters. Proponents had argued that the law is needed to curb voter fraud by impersonation, but a state senator testified that the law’s proponents could not point to a single case in which a Virginia voter had been arrested or convicted for impersonating another voter.

An expert testifying on behalf of the parties who are challenging Virginia’s voter ID law told the court that fear of voter fraud is not a rational justification for the law. The expert, Lorraine C. Minnite, is a professor of political science at Rutgers who has studied election fraud and vote suppression.

Minnite testified that the kind of fraud photo ID laws are meant to curtail is so rare that the number of legitimate voters who will be disqualified from casting ballots for lack of acceptable identification far exceeds the number of fraudulent voters who will be prevented from voting. Minnite conceded that voter fraud occurs, but contended that one voter impersonating another — the kind of voter fraud that photo ID laws target — almost never happens.

The defendants, state agencies and officials charged with administering elections in Virginia, countered with the testimony of two experts. Karen L. Owen, an assistant professor of public administration at Reinhardt University in Georgia, suggested that legitimate public policy concerns, rather than voter suppression, may have influenced Virginia’s legislators to enact the voter ID law. Even if voter impersonation is not a serious concern, she said, legislators may have been responding to the public perception that voter fraud is a problem, and enacted the law to increase voter confidence in the integrity of election outcomes.

Daniel J. Palazzolo, a professor of political science at the University of Richmond, agreed that the legislature may have enacted the voter ID law in response to public perceptions. He also suggested that legislators may have been influenced by activist groups that lobbied in favor of the law. Palazzolo testified that he could not rule out prejudice against minority voters as a motivating factor, but contended that there was insufficient evidence to prove that legislators passed the law because they wanted to suppress minority votes.

After all the trial testimony was completed, the presiding judge asked the parties to file written arguments. The last of those arguments is due in court in early April. Whether the judge’s decision will be influenced by the expert testimony presented on behalf of either party will not be known until the judge issues a decision.

Neuroscientific Evidence in the Courtroom

Neuroscientific Evidence in the Courtroom

The increasing importance of neuroscientists as expert witnesses in death penalty hearings and other court proceedings is highlighted in a recent article in The Atlantic. The article calls attention to a Duke University study of more than 1,600 court decisions that addressed neuroscientific evidence between 2005 and 2012.

According to the Duke study, neuroscientists and related experts testify in about 5 percent of all murder trials and in 1 to 4 percent of all other felony trials. The experts are commonly used to provide mitigating evidence in an attempt to lesson a criminal defendant’s punishment, but neurobiological experts also testify regarding a defendant’s competency to stand trial or to plead guilty, as well as a defendant’s ability to give a voluntary confession when questioned by the police. Less frequently, they testify in support of insanity defenses and defenses based on a defendant’s inability to form the mental status (such as intentional conduct) required to commit the charged crime.

Neurobiology and the Law

The authors of the Duke study grouped neuroscience and behavioral genetics together under the umbrella of neurobiological evidence. The fields of neuroscience and behavioral genetics are increasingly linked as researchers discover that neither a purely genetic nor a purely neuroscientific approach are adequate to explain the biological components of human behavior. In fact, understanding the “pathways between gene, brain, and behavior” may require an interdisciplinary approach that “requires expertise in genetics, neuroscience, psychology, and psychiatry.”

Criminal defense lawyers are turning to neurobiological evidence to explain a client’s criminal behavior. One example links a gene known as MAOA (Monoamine Oxidase A) with antisocial behavior. The gist of the defense is that a criminal defendant should not be held responsible for behavior that results from biology rather than choice. Experts assist lawyers in presenting that defense through MAOA genotyping and neuroimaging.

The use of neurobiology in criminal defense has sparked debate among experts and non-experts alike. If people are truly not responsible for criminal behavior, why should they be punished for their conduct? Neurobiology arguably undermines the retributive foundation for the criminal justice system.

At the same time, prosecutors have used neurobiology to argue that the safety of society requires that criminals who have a genetic or neurologic propensity to behave violently should receive longer sentences. They have contended that the need to protect society trumps the question of personal responsibility for lawless behavior.

Debating Free Will

The debate about the role that neuroscience should play in criminal law falls within a larger scholarly debate about whether free will actually exists. Many neuroscientists conclude from experimental data that the subjective sense of free will is an illusion. They argue that behavior is determined by physical and biological laws, not by individual choice. If that is true, the deterrent value of criminal punishments may be nonexistent.

Scientific evidence notwithstanding, those conclusions are unpopular with a large majority of people who prefer to believe that they make rational or moral decisions about how to behave. The deterministic approach of neuroscience arguably undermines not only criminal law, but moral codes and a good bit of philosophy since the age of Aristotle. If people should not be held responsible for behavior that is not the product of free will, doesn’t that give bad people (or even good people) an excuse to misbehave?

The Future of Expert Testimony

While the authors of the Duke study found that attempts to introduce neurobiological testimony in criminal trials have been relatively unsuccessful, the study also found that attempts to introduce expert neurobiological evidence have been “more successful than most scholars believe.” At least with regard to some claims that criminal defendants raise, “testimony by an expert on the matter may serve as powerful evidence that impacts the outcome of the case for the defendant.”

While neurobiological evidence is used in the sentencing phase of capital cases, it is more often introduced to mitigate punishment in serious felonies that do not involve the death penalty. Since sentencing hearings take place after guilt has been determined, the rules of evidence governing the admission of expert testimony are often more relaxed than those that govern evidence during the guilt phase of a trial.

More controversial is whether to allow expert neurobiological testimony in an effort to persuade a jury that a defendant did not commit the charged offense. When, for example, a crime requires proof that a defendant acted intentionally, a neurobiologist might conclude that the defendant was incapable of forming the specific criminal intent that the law requires. To the extent that experts are allowed to render such opinions, juries commonly reject them.

Still, expert testimony from neuroscientists can make a difference. The Duke study, which defined neurobiological evidence broadly to include not just brain scan results and biomarker examinations but also the results of neuropsychological testing, found that the evidence makes a difference in 20 to 30 percent of cases in which it is admitted.

Measuring the impact of neuroscientific evidence is nevertheless difficult. A jury that acquits a defendant or decides not to impose the death penalty may have done so even in the absence of the expert evidence. Appellate courts have reversed convictions and remanded for new hearings or trials because neuroscientific evidence was improperly excluded (or because the defense attorney failed to present it), but the result after the new trial or hearing may turn out to be the same.

Given the gaps in knowledge about the connection between the brain, genetics, and criminal behavior, not all neuroscientists agree that expert neurobiological evidence should play a role in the courtroom. Notwithstanding that controversy, as scientific analysis becomes increasingly sophisticated, experts in neuroscience are likely to play a larger role as witnesses in criminal trials.