Category Archives: ExpertWitness

Expert Witnesses Testify During Erin Andrews Stalker Video Trial

Former ESPN employee and current Fox Sports reporter Erin Andrews called expert witnesses to the stand this week in her $75 million stalker video trial. The lawsuit filed against her convicted stalker and the Nashville hotel where she was staying alleges the violation of her privacy caused her severe emotional distress and damaged her professional image as a sports reporter.

Erin Andrews Files $75 Million Lawsuit over Stalker Filmed Video

In 2009 Michael Barrett followed then ESPN personality Erin Andrews to her Nashville Mariott hotel, requested a room right next to hers, and filmed the sports media personality through her hotel door peephole. The footage showed a naked Andrews standing in front of a mirror and walking around her room. After filming the video, Barret distributed his footage online, exposing Andrews’s private moment to the entire internet public. In 2010, Barrett was found guilty of stalking and served 2 years in prison.

Erin Andrews, who has since moved from ESPN to Fox Sports, has alleged the stalking incident caused her severe emotional trauma and has influenced her professional reputation as well. She has suffered from depression and sleeplessness, and claims to hear taunts from male fans when she works the sidelines of professional sporting events. Late last year, Andrews finalized a $75 million lawsuit against Barrett and the Nashville Mariott hotel alleging the incident could have been prevented had hotel officials taken the opportunity to either prevent Barrett from accessing her hotel room or notifying her of his presence.

IT Expert Witness Testifies in Erin Andrews Stalker Trial

In order to demonstrate the effect Barrett’s peephole video had on her, Erin Andrews called two expert witnesses to the stand during her lawsuit against the Nashville Mariott and her stalker. First, Andrews called Dr. Bernard Jansen, and IT expert witness, to explain to jurors how pervasive and widespread distribution of the elicit video was during the period immediately after its release on the internet. According to Dr. Jansen, the peephole footage has been viewed by more than 16 million people since its release to the internet in 2009.

Further, Dr. Jansen told the court that during the month of July, 2009 the phrase “Erin Andrews” was the most commonly searched term, and someone watched the footage every 1.5 minutes. Jansen concluded by telling jurors that his estimates were likely conservative because they only accounted for unique searchers, and the actual figures were higher because it is likely that many of those 16 million unique searches were viewed by multiple people.

Therapist Expert Witness Testifies on Behalf of Erin Andrews

Erin Andrews also called to the stand a therapist expert witness who worked directly with the sports personality in the wake of the video’s release. Loren Comstock, who is a licensed social worker and Executive Leadership Coach who has consulted with the Sigma Group for 17 years, took the stand as an expert therapist and career consultant to explain the effect the video had on Andrews’s mental composition. According to Comstock, Andrews was humiliated and distressed, and in a state of severe anxiety due to the widespread distribution of the peephole video.

Comstock told jurors that Andrews “could not get through the day peacefully,” and that she was publically humiliated as a result of the video’s release. Comstock further explained that she diagnosed Andrews with adjustment disorder and noticed some symptoms of PTSD which she said can be “very debilitating” for a person – particularly one with a highly public career and lifestyle. Andrews herself took the stand to drive home the emotional impact of the video’s release, and during her tearful testimony she explained how she suffered from the symptoms which her therapist expert witness had introduced to jurors earlier in the trial.

Erin Andrews’s $75 million lawsuit trial continues this week as the Nashville Mariott argues the stalker Michael Barrett is solely to blame for the intrusive video and its widespread distribution.

Takata Airbag Inflators: A Case Study of Design Process & Risk Management Expertise for Products Liability Litigation

Takata airbag inflators have been identified as the cause of at least eleven deaths and countless injuries in recent years. While all products come with risks, it appears that Takata knew about the potential for injury and death as early as 2004 and made decisions to bury this information without proactively reacting to it.

Takata has now dug a hole so deep that it is being fined and sued, it is losing customers (big customers like Honda, Mitsubishi and Toyota), and its stock is at its lowest point in years. As part of its recent response to the situation, Takata commissioned a panel led by Samuel Skinner, the former transportation secretary under President George H.W. Bush to focus on reviewing the design, testing, and quality of materials. The panel was not asked to pass judgment on the design of the airbag inflators, but on the process of reacting to accidents, risk assessment and mitigation; and on how Takata makes decisions that not only minimize cost, but minimize risk to customers and the public.

Most products liability cases revolve around domain experts providing testimony on the product itself: Was it defectively designed? Did it include adequate safety devices and warnings? Did users follow the warnings? And did the designers foresee all its uses and misuses? What Takata has done with this panel (and Toyota before it, when addressing sticking accelerator pedals) is to go a level deeper. It addressed the processes used within the organization to design quality into products, make decisions when addressing risks, and react to potential product flaws. This shift from the product itself to the product design and risk mitigation processes may portend a fundamental shift in managing products liability. It emphasizes looking at the practices within an organization or even an entire industry’s culture.

The focus is increasingly on answering the questions: During product design or re-design did the manufacturer:

Follow design best practices during the initial development or need for product change? Takata appears to have a weak quality control system and a poor process for reacting to potential product defects.
Analyze and mitigate risks in a professional manner? Takata concluded as early as 2004 that the risk was low enough and less important than the product cost. Clearly the decision was not to mitigate the risks and it has come back to haunt them.
React to incidents/accidents during test and use in a responsible manner? At least Takata tested the airbags in 2004 when they first heard about the problem (see more on this in the paragraph below). Unfortunately it chose a poor response to what was found and buried the results of the testing. Many companies ignore or file accident and incident reports without adequate testing and response.
Make decisions that not only minimize cost, but minimize risk to customers, operators and the public? It appears that cost was the driving factor in Takata’s decision making, not risk reduction.

I am currently an expert witness in an on-going series of cases where a specific product is involved in accidents and deaths at a rate higher than Takata’s airbag inflators. In these cases (spread across multiple manufacturers of similar products), the manufacturers don’t even collect good data on product use and accidents, they haven’t done adequate testing, and they have made decisions to not seriously address the problem. They have even leveraged a standards committee to not address the issue. All of this is catching up with the manufacturers as the theme of the cases against them are maturing from being product, user training, and warning label focused; to being centered on the process the manufacturers follow when addressing risk.

So, what does this mean to liability litigation? Say a person is injured or killed when using a product. Further, say this happens repeatedly. The plaintiffs must show that the company knew about these incidents and did not react professionally, consistent with best practice to them. The defense must show that the manufacturer had not only had a process in place to design a safe product initially, considering all foreseeable uses and misuses for it; but that it had processes for considering in-use accidents and incidents. These processes include how it captures accident information, how it tests to understand what happened, and how it makes decisions about what to do in light of what it learned.

In Takata’s case, it appears from what has been published in the popular press, they:

Had poor quality control during production.
Made poor product change decisions that caused the potential failures. (They moved to a cheaper, more unstable propellant in 2001.)
Did not use best practice risk assessment methods when faced with growing evidence about a problem.
Made poor risk mitigation decisions after testing in 2004.

These “process” oriented topics require expertise, not about how to design airbags or propellants, but about the best practices to manage product risk, development and change. Design process and risk management expertise is new to the expert witness industry. It not only requires knowledge of best practices, but the ability to communicate them to judges and juries.

Dr. David Ullman is the author of “The Mechanical Design Process” a text whose 5th edition was just released by McGraw Hill. It is a compendium of product design best practices. In support of this edition he has written over fifteen case studies examining best design practices across many diverse product domains. Details on his background are at www.davidullman.com.

Lab Analysts May Be Crossed Examined

Does a criminal defendant have a constitutional right to cross-examine experts who prepare reports that other prosecution experts rely upon as evidence in a criminal trial? That question has been presented to the Wisconsin Supreme Court for resolution.

Rozerick Mattox was charged with reckless homicide for supplying heroin to a drug user who allegedly died from a heroin overdose. During Mattox’s trial, a medical examiner who conducted an autopsy gave expert testimony about the alleged victim’s cause of death. Basing her opinion in part on a toxicology report prepared by an out-of-state laboratory analyst, the medical examiner concluded that the alleged victim died from a heroin overdose.

Experts typically rely upon reports or analyses that are prepared by other experts. The lab analyst who prepared the toxicology report did not testify at Mattox’s trial. The issue with which Wisconsin’s appellate courts are struggling with is whether Mattox was deprived of his constitutional right to confront an expert witness when that witness prepared a report but did not testify (and thus could not be cross-examined) during the trial.

Medical Examiner’s Testimony

Dr. Zelda Okia performed the autopsy on the deceased drug user. She testified that certain physical findings, including a pulmonary embolism, cerebral edema (swelling of the brain), and the elevated weight of the lungs, were consistent with a drug overdose. Those symptoms could have been produced by an overdose of drugs other than heroin. She also saw more than a dozen needle marks on the deceased’s arm.

Dr. Okia also testified that she collected various fluid samples and sent them to St. Louis University for a toxicology analysis. Dr. Okia told the jury that the county medical examiner’s office had used St. Louis University for many years because its laboratory was accredited and was run by a board certified toxicologist. She testified that she was satisfied with toxicology reports that the laboratory had prepared in the past.

The toxicology report indicated that a fatal level of morphine was present in the fluids. Heroin, among other opiates, metabolizes into morphine. The toxicology report also identified the presence of a metabolite that is specific to heroin. Dr. Okia concluded from the report that heroin, rather than some other opiate, caused the drug user’s death.

Hearsay and Expert Reports

Mattox was charged with murder on the theory that he supplied heroin to the deceased drug user. If the death was caused by the drug user’s ingestion of some other opiate that the drug user obtained from a different source, Mattox would have been entitled to an acquittal. The issue of whether heroin, as opposed to another opiate, caused the drug user’s death was therefore critical to Mattox’s conviction.

Mattox’s attorney objected that the toxicology report was hearsay. Applying a common hearsay exception, the trial judge ruled that the report was admissible because it contained “facts or data” that was “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject” of the expert’s testimony. The judge also ruled that the toxicology report was not offered to prove that Mattox delivered heroin to the deceased but was received only for the limited purpose of explaining how the medical examiner formed her opinion.

The trial court’s reasoning is problematic. It is true that the toxicology report was not offered to prove that Mattox supplied heroin to the deceased drug user. It seems evident, however, that the report was offered to prove that the drug user died of a heroin overdose. In the absence of the toxicology report, Dr. Okia had no basis for determining whether heroin, as opposed to some other opiate, caused the drug user’s death. Since proving that heroin caused the drug user’s death was critical to the charge that Mattox committed reckless homicide, the toxicology report was not used for a “limited purpose” but as substantive evidence of Mattox’s guilt.

Whether or not the toxicology report was admissible as an exception to Wisconsin’s hearsay rule, the larger question is whether the author of the report should have been required to testify so that the opinions expressed in the report could have been subjected to cross-examination. The answer to that question is governed by United States Supreme Court cases that address the Confrontation Clause.

Confrontation of Expert Witnesses

The United States Constitution guarantees criminal defendants the right to face-to-face confrontation of witnesses who make testimonial statements. A statement is testimonial if it is given with the expectation or understanding that it might be used as evidence in court.

The toxicologist at St. Louis University who prepared the laboratory analysis was certainly aware that it might be used as evidence in a criminal trial. Two Supreme Court cases establish that a lab report is testimonial and is therefore inadmissible as evidence to establish an element of a crime unless the analyst who prepared the report testifies and is subject to cross-examination.

The medical examiner in Mattox’s case relied upon evidence other than the lab report to conclude that Mattox died from a drug overdose. Mattox’s conviction, however, depended on evidence that Mattox died from using the heroin that Mattox supplied, rather than some other opiate that someone else may have supplied. The critical evidence in support of that element of the offense was supplied by the lab report, not by the medical examiner’s independent observations. The lab report therefore seems to fit the definition of testimonial evidence.

The Wisconsin Court of Appeals noted a conflict in its own precedent regarding the admissibility of lab reports when the expert who prepared the report did not testify. The court’s prior cases seemed to draw a distinction between an expert who relied entirely upon a lab report to establish cause of death and an expert who considered a lab report as one piece of evidence to support a conclusion as to cause of death. Whether that distinction is consistent with United States Supreme Court precedent is unclear.

Bringing Lab Analysts to Court

The Wisconsin Court of Appeals wants to punt Mattox’s case to the Wisconsin Supreme Court, which is better situated to resolve the conflict in Wisconsin precedent. If the court agrees to review the case, it will need to decide whether laboratory analysts must provide expert testimony in person in cases like Mattox’s. If so, the cost of criminal trials will increase, since prosecutors may need to bring out-of-state analysts to court to testify as experts.

That increased cost may be a small price to pay to preserve the constitutional right to cross-examine testimonial witnesses. Since there have been cases across the country in which lab analysts have turned out to be unqualified to render objective expert opinions, it cannot be said that cross-examining a lab analyst is necessarily a meaningless exercise. Whether the Wisconsin Supreme Court will accept the case and, if so, how it will rule, may not be known for several months.

Court Dismisses Expert Witness Lawsuit Against Professional Association

Expert witnesses typically belong to professional associations. Their memberships may enhance their credibility when they testify in court. Many of those organizations have established rules that members must follow if they wish to remain in good standing with the association. Some groups have developed rules that govern members who testify as experts.

A case arising in Texas demonstrates the risks associated with disobeying rules that address expert testimony. A recent decision of the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of an expert’s lawsuit against a professional organization that censured the expert for violating a rule governing the conduct of expert witnesses.

Facts Pertaining to the Case

Dr. Jay Barrash regularly testifies as an expert witness in the field of neurosurgery. Hired as an expert witness in a medical malpractice case, Dr. Barrash testified in a deposition that the defendant surgeon had incorrectly placed a bone graft during a patient’s surgery and failed to treat a post-operative infection.

After settling the case, the defendant surgeon filed a complaint with the American Association of Neurological Surgeons (AANS). The complaint alleged that Dr. Barrash violated the AANS Rulesfor Expert Opinion Services by failing to provide impartial testimony, failing to review all pertinent medical information, and failing to allow for differing medical opinions. The complaint also alleged that Dr. Barrash was unqualified to testify and that he charged excessive fees to provide expert witness services.

After holding a hearing, an AANS committee agreed that Dr. Barrash was entitled to criticize the defendant surgeon’s post-operative care. The committee apparently rejected the surgeon’s complaints about Dr. Barrash’s qualifications and fees.

The committee ruled, however, that Dr. Barrash did not review all pertinent medical records before testifying because he failed to examine an available X-ray. The committee also concluded that Dr. Barrash failed to provide unbiased testimony. The committee recommended that Dr. Barrash be suspended from AANS membership for six months. After Dr. Barrash appealed, the AANS Board of Directors downgraded the suspension to a censure. The censure decision was upheld by the membership at large.

There is always a risk that members of a professional organization will be resentful when one of its members testifies against another of its members. Whether that happened here is unclear, but it is clear that Dr. Barrash was unhappy with the association’s disposition of his case.

Dr. Barrash resigned from AANS and sued the association in federal court, alleging (among other claims) that he was denied due process because he was not given adequate notice of the charges. The district court agreed that Dr. Barrash was not given notice of how he allegedly failed to give unbiased testimony. The district court ordered the expungement of that allegation from the censure.

The district court upheld the AANS’ resolution of the charge that Dr. Barrash failed to consult pertinent medical records before testifying. It also rejected Dr. Barrash’s claim that the AANS failed to follow its bylaws and therefore breached its contract with him. Dr. Barrash appealed.

The Decision on Appeal

Dr. Barrash based his lawsuit on claims that arise under Texas law. The court of appeals noted that Texas courts give a great amount of deference to the internal operations of voluntary organizations like the AANS. Notwithstanding that deference, Texas law does require voluntary organizations to provide due process when the organization takes an adverse action against a member.

The most fundamental due process rights are the right to be informed of the accusation and the right to be heard in response. The AANS gave Dr. Barrash a copy of the letter in which the surgeon accused him of testifying without reviewing intraoperative X-rays that allegedly showed proper bone graft placement. The X-rays were available for Dr. Barrash’s inspection at the hearing and Dr. Barrash did not ask to see them in advance. The court of appeals concluded that the AANS gave Dr. Barrash adequate notice of the charge and did not violate his due process rights with regard to that charge.

Dr. Barrash also argued that he did not review the X-rays because they were not pertinent to his testimony. The court of appeals declined to review that claim, which would have required it to substitute its own judgment for the professional conclusions drawn by a committee of neurologists who were better situated to decide the question.

Finally, Dr. Barrash contended that the AANS failed to follow the procedural requirements of its own bylaws during his disciplinary proceeding. He argued that the bylaws constituted the terms of a contract with its members and that AANS therefore breached its contract. The court of appeals concluded that Texas law does not provide a contract remedy for a voluntary organization’s failure to abide by its bylaws. While voluntary organizations must provide basic due process, bylaw provisions that exceed that basic duty are not enforceable in a breach of contract action under Texas law.

In the end, Dr. Barrash learned that courts (at least in Texas) provide limited recourse when a professional organization has disciplined a member. Since professional discipline can often be used against an expert witness during cross-examination, experts should always take care to understand and to follow any rules for expert testimony that have been created by the professional associations to which they belong.

Texas Commission Votes to Exclude Bite Mark Experts from Criminal Trials

Acting on reports from forensic expert witnesses, the Texas Forensic Science Commission has formally recommended the state’s criminal justice system suspend use of bite mark evidence due to its unreliability. Questions about the integrity of bite mark evidence have gained increased traction over the last 6 years, leading to the recommendation by Texas officials to formally suspend the use of dental experts during criminal trials.

Dental Experts Question Bite Mark Evidence

Over the course of the past decade research by Mary and Peter Bush at the State University of New York at Buffalo suggests that no two bite marks from the same set of teeth are the same. The Bush research used a mechanical clamp with teeth attached in an effort to duplicate bite marks, but two bites did not result in identical patterns – even in perfect simulation conditions. If bite marks leave patterns like the Bush research suggests, using bites to connect a defendant to a crime is flawed because unlike DNA evidence or fingerprints – which are unique and connected to an individual – bite marks do not leave consistent impressions and are accordingly a flawed method of identification.

Forensic odontologists have used bite mark testimony in criminal trials since the 1970’s – Ted Bundy was famously convicted in part to bite mark expert witnesses – but the Bush team is just one of many research groups who have questioned the validity of bite mark evidence in recent years. Research on the flaws associated with bite mark identification and the inconsistencies across bite mark expert testimony was compiled by the American Board of Forensic Odontology.

Bite Mark Expert Testimony Targeted by Innocence Project

According to the report by the Board of Forensic Odontology several dentists and other purported bite mark evidence experts could not even identify if a series of marks were made by teeth, much less connect to marks made by the same person. While some experts were able to identify bite marks, the 38 dentists polled could only unanimously agree on 4 out of 100 attempts at making bite mark identification. The discrepancies noticed by the Board of Forensic Odontology and the research by Peter and Mary Bush have been used by the Innocence Project – a national organization which seeks to exonerate wrongly convicted defendants – to argue convictions based on bite mark evidence should be overturned.

The Bush team has testified on behalf of the Innocence Project for the past several years, and the increased scrutiny against bite mark expert testimony has opened the door for several appeals. According to the Associate Press, 24 men who were convicted of serious crimes such as murder or rape using bite mark expert testimony have been exonerated and freed based on the use or more sophisticated DNA evidence. With a growing number of dentists, legal professionals, and forensic scientists turning against bite mark evidence and calling it unreliable, it is not surprising that the Texas Forensic Science Commission would recommend this evidence be suspended from use in criminal trials.

Texas Suspends Use of Bite Mark Expert Testimony

In the face of harsh criticism about the scientific integrity of bite mark evidence and the reliability of bite mark expert witnesses, some proponents of the practice maintain that it is a viable tool for identification. Defenders of bite mark expert testimony argue that the evidence has reliably bene used to earn convictions for several decades, and maintain that a fully trained bite mark expert can use the indention left by teeth to identify a potential suspect in a crime.

Despite the defense of bite mark expert testimony, the wealth of scientific evidence against the practice encouraged the Texas Forensic Science Commission to formally recommend the use of bite mark evidence be excluded in criminal trials. While the recommendation does not guarantee that the use of bite mark expert testimony will be suspended, the committee’s decision will likely influence judges throughout the state who are confronted by bite mark testimony.

As a growing body of research criticizes the use of bite mark expert testimony, the recommendation against its continued use in Texas may be the sign of a growing trend. The use of rigorous scientific study has raised the stakes for experts in a variety of fields, and the Texas decision indicates bite mark evidence is feeling the effects of increased scrutiny.

Expert Witness Testifies During Post-Conviction Hearing of Serial’s Adnan Syed

The post-conviction hearing for Adnan Syed, whose case was made famous by the 2014 legal podcast Serial, featured intense testimony from an expert witness who argued the murder conviction should be invalidated due to insufficient defense counsel. The hearing, which is expected to conclude later this week, will determine the fate of Syed who is currently serving a life sentence.

Serial Podcast Leads to Post-Conviction Hearing

In 2000 Adnan Syed was convicted for the 1999 murder of Hae Min Lee, his ex-girlfriend and high school classmate. From the moment of his arrest Syed has maintained his innocence, and has spent the time since his conviction seeking a new trial by claiming his defense attorney provided constitutionally inadequate representation. Syed has been in prison for more than 16 years, but finally earned a post-conviction hearing to review his case in part due to the overwhelming popularity of a NPR podcast which reviewed the facts of the case and Adnan’s prosecution.

In 2014 journalist Sarah Koenig produced and hosted a podcast on NPR called Serial which discussed the investigation into Lee’s murder and Adnan’s involvement. Throughout the course of Serial’s first season Koenig pointed to a number of procedural question marks in Adnan’s prosecution and defense, the most glaring of which was his attorney’s failure to properly question a number of potential alibi witnesses who placed Adnan in a different location from Lee at the time of her murder.

Three weeks after the conclusion of Serial’s expose on Adnan’s murder trial, the Maryland Court of Special Appeals allowed him to appeal his conviction on the grounds his attorney, Christina Gutierrez, who died in 2004, was ineffective in her efforts to defend him.

Adnan Syed Defense Team Calls Legal Expert Witness

A criminal defense expert witness called by Adnan’s attorneys took the stand to tell the court that Gutierrez’s failure to pursue alibi witnesses was a crucial mistake which satisfies the legal standard for constitutionally insufficient counsel. According to David Irwin, an attorney who consults as an expert witness for criminal defense, Gutierrez was made aware of potential alibi witnesses by Adnan shortly after his arrest, but she didn’t seriously inquire about their alibi testimony or call any to the stand during Syed’s criminal trial.

Irwin called Gutierrez’s failure a “game changer” which “made an incredible difference in the outcome of the case” and told the Court of Special Appeals that Adnan’s insufficient counsel satisfied the Strickland Test, named after the Supreme Court case Strickland v Washington. The Strickland Test, which is used to determine whether defense counsel was constitutionally deficient, requires a defendant to first show his counsel fell below an objective standard of reasonable quality and second that had the defense attorney performed adequately the outcome of the trial would have been different.

During his expert testimony Irwin said that Gutierrez’s counsel fell below the standard for care expected of defense attorneys and the result of Adnan’s trial would likely have been different because alibi witnesses are, according to Irwin, the second-best evidence a defendant can present at trial. Irwin concluded that there were no tactical reasons for Gutierrez to not call alibi witnesses, which suggests her decision to not follow up on those witnesses constituted a failure.

Alibi Witness Testifies at Adnan’s Appeals Trial

To bolster testimony by its expert witness, Adnan Syed’s defense team called a key alibi witness to the stand during his post-conviction hearing. Asia McClain, a classmate of Adnan’s, testified during the hearing that she remembered seeing the defendant at the library at the time he was allegedly killing Lee in a Best Buy parking lot. McClain also told the court that Gutierrez knew about her statement but did not call her to the stand, lending credibility to Irwin’s claim that Adnan was not adequately represented during his initial trial.

Adnan’s post-conviction hearing, which also featured expert testimony from prosecutors which argued cell phone information linking Adnan to the murder scene was valid, is expected to wrap up this week after several days of dramatic testimony.

Pennsylvania Judge Denies Access to Source Code Behind DNA Expert Witness Software

Last year we covered a Pennsylvania legal dispute over DNA testing software used by forensic expert witnesses in criminal trials. Earlier this week the case took another turn when a Pennsylvania judge blocked defense lawyers from accessing the source code for the software, rejecting arguments that the Sixth Amendment mandated the DNA expert witnesses turn over the details of their methodology.

Defense Attorneys Challenge DNA Expert Witness Software

In Pennsylvania and across the country forensic DNA expert witnesses have increasingly relied on a software program which, according to its creators, is able to improve the accuracy of DNA testing significantly. The program, called TrueAllele, can provide police investigators and prosecutors with a positive match using DNA found at a crime scene by comparing it to large databases of stored genetic material. Experts analyze genetic material using the TrueAllele program in order to single out individuals who are linked to the crime, and it has been used in sexual assault, homicide, and property destruction criminal trials.

Pennsylvania and several other states have widely adopted expert witness use of TrueAllele with several police departments and trial courts fully integrating the program. The program has gained favor because of its ability to parse out individual DNA from multiple sources, which is a feature most crime labs are unable to accommodate. TrueAllele’s DNA analysis is more thorough than competing tools, giving investigators better opportunity to single out suspects. Despite the software’s growing acceptance in the legal system, defense attorneys in Pennsylvania have resisted its continued use because they are unable to gain access to TrueAllele’s source code.

Defense Attorneys Petition to Access TrueAllele’s Source Code

Defense attorneys for Michael Robinson, a man charged with shooting and killing two men in Allegheny, PA, argued that the hidden source code behind TrueAllele denied their client the opportunity to adequately confront all of the evidence against him. Robinson’s attorneys, like others before them, argued that the mysterious software program may provide DNA results which police and prosecutors find useful, but its reliability and accuracy cannot be adequately tested without other experts fully analyzing the code which the program uses to parse out genetic material.

TrueAllele has not been in circulation for very long, and defense attorneys claim that without verification by independent experts there are too many unanswered questions about its accuracy to trust. DNA evidence, which is heavily used in criminal trials, was the center of a scandal last May when the FBI admitted to providing inaccurate expert witness testimony at hundreds of trials due to faulty tools of analysis, and defense attorneys have shown a hesitancy to accept forensic analysis technology at face value.

TureAllele’s creator, computer scientist Mark Perlin, has consistently resisted sharing his source code by arguing it would be economically disadvantageous for his company to do so. Currently Mr. Perlin’s company Cybergenetics is the only one using the software, and he does not want to disclose trade secrets as part of a criminal trial.

Pennsylvania Judge Protects DNA Software Source Code

In response to requests by attorneys for Michael Robinson who requested the TrueAllele source code be revealed as part of their cross-examination of prosecutor DNA expert witnesses, Judge Jill E. Rangos said the defense did not sufficiently demonstrate the need for the source code. According to Judge Rangos, requiring Cybergenetics to disclose the source code has “the potential to cause great harm” because of it is a highly valuable trade secret which no other company is able to duplicate at this time. Further, Judge Rangos said that revealing the source code is not “the lynchpin to undermining the Commonwealth’s case” against Robinson, and therefore the defense does not have sufficient reason to put Mr. Perlin’s business at risk by exposing his code.

Robinson’s defense team publically disagreed with the ruling, maintaining that defendants have a 6^th Amendment right to adequately confront witnesses, and in this case that means challenging the foundation of the technology used by expert witnesses who provide DNA testimony. Perlin maintains that experts do not even use the source code, but simply rely on the technology to produce a result after they input data and attorneys can safely test the extent of the expert’s knowledge and methodology without access to the underlying code of the software.

Judge Rangos’s ruling echoes the result from a handful of other criminal courts across Pennsylvania and other states, so for now DNA expert witnesses can safely use TrueAllele without Cybergenetics revealing the protected source code.

Art Experts Gather for Fraud Trial in Manhattan

Art experts from around the world are gathering in a federal courtroom in Manhattan to testify in a case alleging that a prominent New York gallery fraudulently sold forged art. The lawsuit involves a painting of black and red rectangles, attributed to Mark Rothko, that was actually painted by a Chinese immigrant in Queens. The gallery, Knoedler & Company, sold the painting in 2004 to Domenico and Eleanore De Sole for $8.3 million. The gallery closed its doors after it was flooded with lawsuits and is now in the hands of a holding company.

The De Soles are seeking $25 million in damages. A key issue in the trial is whether the gallery or its director, Ann Freedman, were aware that the Rothko was a fake when Knoedler sold it to the De Soles.

Allegations of Fraud

Over the course of 15 years, Knoedler sold about 30 forged paintings that were attributed to abstract artists, including Pollock, de Kooning, and Rothko. Collectors paid about $63 million for the combined works. The forgeries were supplied to Knoedler by Glafira Rosales, a Long Island art dealer who claimed she acquired them from art collections in Zurich and Mexico City.

Rosales was convicted of several fraud charges in 2013. The forger, who fled to China, told an interviewer that he was not paid significant sums for the works and did not know that they were being resold as originals.

During the first week of trial, Domenico De Soles testified that he based his decision to purchase the Rothko on the gallery’s reputation for honesty and made no significant effort of his own to authenticate the painting. He said he also received a letter from Freedman stating that the Rothko had been viewed by eleven individuals “with special expertise on the work of Mark Rothko,” including art historian Irving Sandler and Rothko’s son. The De Soles took the letter as verification of the painting’s authenticity, while Freedman’s lawyer made the point that the letter said “viewed” rather than “authenticated.” The jury might think that Freedman’s lawyer is splitting hairs if it regards the letter as implying that none of the art experts who viewed the painting had doubts about its origin.

The De Soles allege that Freedman and the Knoedler gallery knew the painting was forged, or deliberately disregarded evidence that the painting was not authentic. According to the De Soles, Freedman should have realized the Rothko was a forgery when she was able to purchase an $8.3 million painting from Rosales for $950,000.

Freedman argues that she purchased art from Rosales for her own collection, including a $280,000 Pollock, without realizing that she was buying forgeries. The De Soles’ lawyer contends that Freedman purchased the forged works for herself as a promotional device and to bolster her credibility with customers.

The lawsuit will hinge on proof that Freedman knew, or at least suspected, that the Rothko was a fake. If she concealed such knowledge or suspicions from the De Soles, the jury would have a basis for concluding that she acted fraudulently.

Expert Testimony

Among the experts called in the first week of trial, Dana Cranmer, the former conservator for the Rothko Foundation, testified that he was unaware that Freedman used his name in the letter that was sent to the De Soles. He was uncertain whether he ever saw the painting that was sold to the De Soles, although he recalled looking at a Rothko in Freedman’s office for five or ten seconds. He testified that he did not authenticate it because “that’s not what conservators do.” His expertise is in preserving paintings rather than authenticating them.

Rothko’s son also testified that he did not know Freedman included his name in her letter. He denied that he has ever authenticated any of his father’s paintings. Another person named in the letter, Rothko expert David Anfam, said he had only seen transparencies of the painting, not the original. He also denied authenticating the painting. Anfam admitted, however, that he placed another Rothko forgery in an exhibition, believing it to be authentic.

Other experts who are likely to contribute important testimony during the course of the trial include art appraisers and forensic accountants. James Martin, a paint analysis expert who initially determined that the Rothko and other paintings that Rosales sold to Knoedler were fakes, is expected to explain how the forgeries could have been detected.

Freedman initially maintained that Martin’s scientific analysis was faulty but dropped that assertion after the forger was identified. Freedman now bases her defense on the claim that she relied on experts who authenticated the forged Rothko before she purchased it. The testimony of those experts will be central to her claim that she was duped.

Robert Wittman, founder of the FBI Art Crime Team before beginning a career in private art security, is also expected to testify as an expert on Freedman’s behalf. The extent to which he will be allowed to express opinions about the relative responsibilities of the De Soles and Freedman to research the painting’s origin remains a point of contention.

Shining a Light

Expert testimony serves to educate the jury, but broader audiences are often interested in what experts have to say. According to artnet News, the “parade of experts and insiders expected to take the stand in the coming weeks” will likely “shine a light into the often murky and secretive practices surrounding high-stakes art sales.”

In addition to opening a window to the art world, the trial may answer questions about the ability of art experts to authenticate paintings. If, as Freedman claims, experts told her that the Rothko was real, art buyers need to be concerned that customary art authentication procedures may be inadequate to protect their investments.

Expert Opinion Excluded from Evidence in Lipitor Case

A number of individuals have filed federal lawsuits alleging that their use of the cholesterol-lowering drug Lipitor caused them to develop Type 2 diabetes. The lawsuits have been consolidated in a federal district court in South Carolina.

When large numbers of cases are consolidated in one court under federal rules governing multidistrict litigation, a single case is chosen for trial. That case, known as the “bellwether,” is chosen because it is representative of the other cases awaiting trial. The outcome of the bellwether case may encourage settlement of the remaining cases. It also helps the other litigants assess the risks and costs of taking their cases to trial.

Products liability cases against drug manufacturers necessarily hinge on expert testimony. The judge presiding in the multidistrict Lipitor litigation recently concluded that one of the expert witnesses designated by the plaintiffs in the bellwether case would not be allowed to testify that Lipitor causes Type 2 diabetes.

The Hempstead Case

Juanita Hempstead’s case was chosen as the bellwether. Hempstead was given a prescription for Lipitor in March 1998. She started taking it in June 1999 but did not take it consistently until July 2000. Her lipid levels (including her level of total cholesterol) were higher than normal before she began regular use of Lipitor. Her blood glucose level was normal when it was tested in 1999.

In 2002, Hempstead’s lipid levels were normal. Her glucose level, however, was abnormal. It was in a range that is classified as pre-diabetic. In 2003, Hempstead stopped taking Lipitor for three weeks because she was experiencing abdominal pain. At the end of the three weeks, her lipid and glucose levels were higher than they were in 2002. She resumed use of Lipitor and, three months later, her lipid levels returned to normal.

In February 2004, Hempstead was hospitalized for colitis. Her glucose reading at that time was in the diabetic range. Three months later, her glucose level was substantially higher and she was diagnosed with new-onset diabetes. Hempstead’s weight apparently increased steadily between 1998 and 2004.

Causation

Hempstead was required to prove both general and specific causation. To prove general causation, she needed evidence to establish that Lipitor is capable of causing diabetes. To prove specific causation, she needed evidence that Lipitor actually caused her diabetes.

The district court took note of cases that require no proof of specific causation if studies of general causation establish that taking a drug at least doubles the risk of sustaining the injury for which the plaintiff is suing. Those cases hold that if most people who take a drug experience the harm that the plaintiff experienced, no additional proof of causation is necessary, at least if the plaintiff’s characteristics and use of the drug were similar to those of the subjects who participated in the study that established the risk.

Studies cited by Hempstead’s experts established that taking Lipitor increases the risk of developing diabetes by a factor of 1.6. Since that is less than a doubling of risk, Hempstead was required to prove that Lipitor actually caused her diabetes. She relied on Dr. Elizabeth Murphy to prove specific causation.

Daubert Analysis

The court based its decision on Rule 702 of the Federal Rules of Evidence, as interpreted by the Daubert decision. That rule requires the trial judge to assure that an expert’s testimony will be both relevant and reliable. The reliability of scientific opinions is measured by whether the expert reasonably applied reliable principles and methods to sufficient facts or data.

The court noted that in its role as gatekeeper, it must not substitute its own view of expert opinions for the view that a jury could reasonably take. At the same time, the court has an obligation to protect the integrity of the jury’s decision by assuring that expert evidence, which has the potential “to be both powerful and quite misleading,” is based on a reliable methodology.

Dr. Murphy is a Professor of Clinical Medicine and the Chief of the Division of Endocrinology at San Francisco General Hospital. She has an M.D. from Harvard and a Ph.D. in biochemistry from Oxford. Her credentials to testify as an expert were clear, so the question was whether her opinion that Hempstead’s diabetes was caused by Lipitor was rooted in a reliable methodology.

The court characterized Dr. Murphy’s opinion as being based on (1) the fact that Lipitor increases the risk of diabetes (general causation) and (2) the fact Hempstead developed diabetes after taking Lipitor. Dr. Murphy’s deposition testimony disclosed no fact other than the temporal relationship between using Lipitor and the onset of diabetes that supported her opinion of a causal relationship between the two.

The court faulted Dr. Murphy for failing to rule out other risk factors that might have caused the onset of Hempstead’s diabetes, including her weight gain and a corresponding increase in her body mass index (BMI). Hempstead’s family history, age, and struggle with hypertension were also factors that could have caused her diabetes. The court concluded that Dr. Murphy’s opinion was unreliable because she did not determine whether Hempstead would have developed diabetes without taking Lipitor and did not compare the magnitude of the risk of diabetes onset associated with taking Lipitor to the magnitude of the risk that existed if Hempstead had not taken Lipitor.

Court Excludes Expert Opinion

It may be that the public interest would best be served by holding drug companies accountable for increasing a patient’s risk of contracting a disease, even when it cannot be established that the patient fell within the significant percentage of drug recipients whose disease was caused by the drug rather than the percentage who would have contracted the disease anyway. That, however, is not the law that governed the District Court’s decision.

Because Dr. Murphy’s testimony did not move beyond general causation to establish a specific link between Hempstead’s use of Lipitor and her development of diabetes, the district court barred Dr. Murphy’s testimony on the ground that her opinion about specific causation had no scientific basis. Whether Hempstead’s case will be able to move forward, and how the ruling will affect other Lipitor cases, are issues that will likely be decided in the coming weeks.

False Confession Expert Testifies in New Mexico Murder Trial

A false confession expert witness has testified in the trial of a New Mexico man who stands accused of murdering his girlfriend in 2013. The testimony represents the growing relationship between American courts and psychology experts used to explain human behavior during criminal trials, suggesting the once substantial gap between the two fields is shrinking with advances in behavioral science research.

Confession Expert Testifies in Murder Trial

New Mexico resident Cody Soto has been accused of murdering his 29-year-old ex-girlfriend Brandy Robinson in 2013 by stabbing her multiple times. The first-degree murder charge against Soto has been aided largely by a confession he provided to detectives during the criminal investigation following Brandy’s death, and prosecutors rested their case against the man earlier this week. Defense attorneys representing Soto have maintained the Not Guilty plea entered by their client, and attempted to downplay the weight of his confession by calling a psychology professor as an interrogation expert witness who will tell jurors why and how false confessions happen during police investigations.

Dr. Deborah Davis, a psychology professor at the University of Nevada in Reno who has become a confession and interrogation expert, took the stand as an expert witness for the defense in order to explain to jurors what circumstances create a false confession. According to Dr. Davis a suspect may be pushed towards a false confession when they are overwhelmed by an interrogation and “will do anything to get out of there,” or they believe they are going to lose at trial anyway and a confession is their best chance at a favorable legal outcome. In either case the suspect is distraught, confused, unsure of the legal system, and pressured to engaging in behavior that most jurors believe is impossible: confess to a crime he or she did not commit.

Dr. Davis pointed out to jurors that the Innocence Project, which is an organization committed to exonerating wrongfully convicted suspects by presenting DNA evidence, has calculated that one out of every four wrongfully convicted defendants has falsely confessed to a crime – many of them to serious crimes such as murder or rape.

Confession Expert Explains Police Interrogation Tactics

Police tactics are central to eliciting confessions, and Dr. Davis spent a significant portion of her testimony explaining to jurors how the popular Reid Technique used by most law enforcement detectives can result in a false confession. When instituting the Reid Technique, police officers are trained to demonstrate unwavering confidence that they know the defendant is guilty and that they have enough other evidence for prosecutors to earn a conviction in court. Detectives are allowed to mislead suspects about the strength of their other evidence, and frequently do so.

Dr. Davis when on to explain that detectives use confinement and isolation during interrogations to break down suspects, and will also frequently try to identify with them and express understanding about why the suspect committed the crime by downplaying the seriousness of their actions. The goal of the Reid Technique is to gradually elicit small admissions before earning a full-blown confession over the course of time and constant pressure. Dr. Davis pointed out that the Reid Technique is a highly effective tool, so much so that it can result in false confessions – particularly when defendants are mentally ill or intellectually deficient.

Dr. Davis concluded her testimony by identifying circumstances which can result in a false confession such as a longer-than-usual interrogation, a tired or hungry suspect, and the general discomfort of the session. Dr. Davis was not permitted to talk about Soto’s interrogation specifically, but jurors watched the confession video and attorneys for the defense will likely point out false confession indicators during closing arguments.

False Confession Expert a Sign of Behavioral Science and Law

The use of false confession expert witnesses like Dr. Davis is a growing practice in the American legal system, but is not without controversy. Attorneys and judges have voiced concerns over trials becoming “battles of experts” who can either confuse a jury with highly technical or scientific testimony, or improperly influence jurors by telling them how they should interpret the facts of a particular case. The case of false confession expert witnesses further muddies the intersection of law and psychology because no one really knows how frequent or problematic false confessions are. Even though 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of wrongfully convicted offenders who are later exonerated by DNA evidence falsely confessed to committing a crime, it is probably unreasonable to assume the percentage of confessions which are false is that high.

Despite the concerns over increased use of experts and uncertainty about the need for psychology expert witnesses, cases which feature experts like Dr. Davis are becoming more frequent. As behavioral science slowly integrates its research and findings into American jurisprudence, jurors are more frequently exposed to psychology expert witnesses who testify about human judgment and decision-making in order to assist the men and women of the jury appropriately weigh and analyze the facts presented during trial.

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