Category Archives: ExpertWitness

3D Evidence Enters the Courtroom

The latest tool for expert witnesses who want to explain a crime or accident scene to a jury is the 3D laser scanner. A 3D scanner creates a three dimensional image of the area it scans. Used indoors, it can capture all the contents of a room, from floor to ceiling. Used outdoors, the scanner will record everything within a specified distance.

Commonly used as a tool in industrial design and engineering, medical imaging, and the entertainment industry, lawyers and expert witnesses are beginning to appreciate the value of virtual reality as a litigation tool. As law enforcement agencies and experts make greater use of 3D laser scanners, 3D evidence will play an increasingly dynamic role in the courtroom.

Expert Evidence in 3D

Photographs of accidents and crime scenes have value, but they rarely have the same impact on juries as a three dimensional representation. Virtual scans allow jurors to visualize the scene in more detail than two-dimensional photographs permit. Unlike photographs, a scan’s perspective can be changed to give the jury a ground level or “bird’s eye” view of the scene. A three dimensional representation even allows an expert to take a jury on an animated “fly through” of a crime or accident scene.

Forensic experts also appreciate the wealth of data they can glean from 3D images. An accident reconstruction expert, for example, often works from measurements and photographs taken by accident investigators. Particularly when the investigators are untrained, the photographs and measurements may not give a reconstruction expert a complete set of data. A 3D scan, on the other hand, allows the expert to make precise measurements of distances between objects that are depicted within the scan. The clarity of 3D imaging also helps experts determine where an impact occurred by showing gouges in the pavement and other markings that might not be apparent from two-dimensional photographs.

Fortunately, 3D scans are becoming available to experts when they analyze crime and accident scenes. More and more law enforcement agencies are investing in 3D laser scanners to document the scenes of serious accidents and crimes. That trend is likely to continue as 3D laser scanners become more affordable.

Daubert Considerations

In their book, The Crime Scene: A Visual Guide, Marilyn T. Miller and Peter Massey point out that evidence gathered by means of a 3D laser scanner has survived several Daubert challenges. The Daubert standard governs the admissibility of evidence in federal court and in most state courts.

That 3D scan evidence is routinely admitted should not be surprising. In many cases, the evidence is not challenged. A 3D scan is essentially a virtual reality photograph. Just as courts admit photographs into evidence if a witness establishes that the photograph accurately represented the scene, a 3D scan should be admitted under the same standard. Assuming that the expert’s opinions pass the Daubert test, the use of a 3D scan to illustrate the expert’s reasoning is likely to be helpful to the jury, and should rarely be objectionable.

3D Printers

Experts often use demonstrative evidence to help the jury understand their testimony. An orthopedic surgeon who points to the bones on a plastic skeleton while testifying is a classic example.

If 3D scans are a modern version of traditional photographs, exhibits created by 3D printers are the modern form of demonstrative evidence. A plastic skeleton can be helpful, but an exact replica of a patient’s damaged knee joint gives juries a much better sense of a plaintiff’s injury.

A 3D printer builds a model (in some cases, an exact duplicate) of an object from a digital file made with a 3D scanner. How closely the model will approximate the original depends upon the quality of the printer and the materials used to “print” the model. Typical models are made from thermoplastics, but more expensive printers can use ceramics and metals to build models that are virtually interchangeable with the copied object.

Using 3D printers to build scale models of rooms, buildings, and crashed vehicles generally results in a more accurate model than one that is constructed by hand. In addition, manufacturing an elaborate model with a 3D printer is usually quicker than making traditional models.

Only the expert’s imagination limits the potential uses that can be made of 3D scanners and printers. As the devices become more affordable, lawyers and experts alike should keep their benefits in mind when they think about how to present expert evidence to a jury.

Conviction Reversed Because Defense Expert Not Allowed to Testify

In a decision released on January 20, 2016, the Arizona Supreme Court decided that a trial judge erred by refusing to allow a criminal defendant to call an expert in experimental design as a defense witness in a murder trial. That ruling allowed the testimony of the state’s firearms expert to go unchallenged.

The Evidence Against Romero

A man in Tucson died from two gunshot wounds in 2000. There were no witnesses to the shooting. Witnesses did see men leaving the scene in a pickup truck after hearing gunshots, but they could not agree upon the number of men or the make of the truck. Spent .40-caliber shell casings were found at the scene.

A month later, the police stopped Joseph Javier Romero for reasons that were unrelated to the shooting. They found a .40-caliber magazine in his possession. They also discovered a .40-caliber Glock handgun with a missing magazine along the route that Romero had traveled. The police drew the inference that Romero had jettisoned the gun, although they did not see that happen.

Seven years later, a cold case unit inspected a cellphone that was found next to the victim’s body. The phone’s owner told the police that “Joe,” his drug dealer, had borrowed his pickup truck in 2000. A firearms examiner conducted a ballistics test and concluded that the shells found at the scene had been fired from the Glock that the police associated with Romero. Romero was charged with first degree murder. A hung jury resulted in a second trial.

Rulings on Expert Testimony

Before Romero’s second trial started, the defense moved to exclude the testimony of the State’s firearms expert. The State, in turn, moved to exclude the testimony of Romero’s expert. The motions were based on Arizona’s version of the Daubert rule, which requires expert testimony to be based on a reliable methodology.

The trial court reviewed the proposed testimony of both experts. Romero’s expert did not address whether the State’s expert correctly analyzed the markings on the shell casings. Rather, he testified that no analysis of such markings is capable of yielding a reliable result, given the limitations of the experimental methods used by firearms examiners.

The trial court determined that the State’s expert based his conclusion on a reliable methodology and therefore permitted the expert to testify. The court excluded the testimony of the defense expert after concluding that the expert was not qualified to testify as a firearms expert and that submitting his testimony to the jury would invite the jury to second-guess the judge’s pretrial finding that the methodology used by the State’s expert was reliable.

Romero’s Retrial and Appeal

During Romero’s second trial, the State’s expert testified that the marks made on casings found at the scene of the shooting “matched very well” marks made by the gun that the police associated with Romero. The jury acquitted Romero of first degree murder but convicted him of second degree murder.

On appeal, Romero argued that his right to present a defense was violated by the judge’s exclusion of his expert’s testimony. The Arizona Supreme Court agreed.

The trial court and a lower appellate court decided that the defense expert was not qualified to testify, despite his review of applicable scientific literature, because he had never testified as a firearms expert before, had never conducted his own research on firearms identification, and had never tried to identify firearms based on the toolmarks found on expended shells. The state supreme court rejected that argument, noting that the witness’ expertise was not in firearms identification but in experimental design.

The court noted that the defense was not required to offer testimony from the same kind of expert that the state used. Rather, it was entitled to offer expert evidence that would help the jury decide the case. The defense expert would have helped the jury understand that the scientific methodology used by firearms experts differs in significant ways from methodologies that are routinely adopted by other scientists. Unlike other scientists, firearms experts do not follow standardized protocols that permit independent verification by other examiners. In addition, firearms identification relies on subjective assessments rather than an objective assessment based on a comparison of test subjects to control subjects.

The defense expert would have testified that the methodology used by firearms experts falls short of the scientific standards for experimental design, and that those flawed design standards undercut the reliability of the results the experts reach. That testimony would have helped the jury evaluate the evidence offered by the State’s firearms expert. The testimony was therefore admissible under Daubert’s “helpfulness” standard.

The defense expert had a Ph.D. in experimental psychology from Stanford and taught experimental design at Yale and other universities. He makes a profession of analyzing scientific methods. His careful study of the experimental methods used by firearms experts qualified him to render expert opinions about the validity of those methods.

Since the expert was qualified to give opinions that would have assisted the jury in evaluating the state’s evidence, the supreme court concluded that he should have been allowed to testify. The trial judge misunderstood his role when he ruled that the defense expert should not be allowed to undermine his determination that the State’s expert’s methodology was reliable. The judge’s assessment permits the jury to hear an expert’s testimony, but it does not require the jury to believe the expert. Evaluating expert testimony, once it has been admitted into evidence, is the function of the jury, not the judge.

Rap Lyric Experts Help Lawyers in Criminal and Civil Cases

Rap lyrics are often condemned as vulgar, misogynistic, and violent. In some cases, they might be, but Professor Charis Kubrin, an expert witness who studies perceptions of rap and hip hop in society, believes that rap is unfairly stereotyped as dangerous or threatening by prosecutors and other government officials who use rap lyrics as evidence against their creators.

Professor Kubrin argues that rap, like other music, is a form of artistic expression. Unlike other art forms, however, society is less likely to grant rap artists a poetic license to express themselves in figurative terms. Rap lyrics are taken literally and rappers are judged accordingly. Professor Kubrin contends that courts do not treat any other form of artistic expression in the same way.

Rap On Trial

In her research, Prof. Kubrin has identified a disturbing trend to introduce rap music lyrics as evidence of a defendant’s guilt. As an example, she cites the prosecution of Torrence Hatch (“Lil Boosie”) for first-degree murder. Prosecutors had no physical evidence to support their claim that Hatch hired a friend to kill a Louisiana resident. Their case was based on a statement that the friend recanted at Hatch’s trial. To support their shaky charge, prosecutors introduced lyrics from a number of Hatch’s songs, including “187,” which referred to people “who tried to play me … they dead now.”

The prosecutor’s tactics were justly criticized as putting rap on trial rather than Hatch. The jury apparently agreed. It acquitted Hatch after just an hour of deliberations.

Other high-profile rappers, including Snoop Dogg, have had their rap lyrics used against them in criminal trials. Snoop Dog was acquitted, but lyrics appear to have influenced juries in several cases involving amateur rappers. Prosecutors encourage juries to view rap lyrics as a confession when, in fact, they may be an artistic commentary on violence in society.

The Role Of Rap Experts

Expert witnesses are common in intellectual property cases affecting the music industry, particularly those that address sampling. Expert testimony is playing an increasing role, however, in other cases involving the use of rap lyrics as substantive evidence.

Professor Kubrin first testified as an expert in a case involving an aspiring rapper who was charged with attempting to make terrorist threats. The prosecution was based on a piece of paper found in a car that appeared to solicit PayPal donations in order to avoid “a murderous rampage similar to the Virginia Tech shooting.” The document’s author denied that the words were anything other than notes for rap lyrics, an explanation supported by notes on the other side of the paper, including “let them booty cheeks hop.”

Kubrin testified that violence and misogyny translate into sales and respect in the rap business. Boastful fabrication of violent acts is therefore commonplace in the industry. Despite her efforts to convince the jury that the defendant’s words were notes for a rap song and not a terrorist threat, the defendant was convicted.

Kubrin, at least, was given the chance to testify. Judges have sometimes been reluctant to admit the testimony of expert witnesses in criminal prosecutions that are based on rap lyrics. Ronnell Wilson, an amateur rapper, was sentenced to death after a federal jury found him guilty of murdering two undercover police detectives. Prosecutors introduced evidence of rap lyrics scrawled on a sheet of paper in which Wilson referred to leaving “.45 slugs in da back of yo head.”

Wilson’s defense attorney wanted to call an expert to testify that rap lyrics often describe violent and antisocial acts, that those lyrics are typically based on imagination and fantasy without being rooted in actual events, and that the imagery in Wilson’s lyrics was commonplace in rap music. The trial judge ruled that the expert testimony was inadmissible because Wilson’s untimely notice of the expert testimony failed to describe “the bases and reasons for those opinions,” as required by Rule 16 of the Federal Rules of Evidence. The court also suggested that the testimony would not have assisted the jury, which (according to the judge) did not need expert testimony to understand that not all rap lyrics are based on actual events.

Rap And Free Speech

Professor Kubrin has also used her credentials as an expert to help lawyers prepare amicus (friend of the court) briefs in civil cases. For example, when a student was suspended from high school in Mississippi for writing “a profanity-filled rap that decried two coaches accused of sexual misconduct,” Prof. Kubrin’s expertise assisted lawyers who are asking the Supreme Court to rule that the school district violated the student’s right to free expression. The amicus brief was founded on Prof. Kubrin’s argument that the school district “punished a young man for his art — and, more disturbing, for the musical genre by which he chose to express himself.”

As Prof. Kubrin points out, Johnny Cash didn’t shoot a man in Reno just to watch him die, and Bob Marley didn’t actually shoot the sheriff. Artistic license to refer to fictional violence in country music, reggae, or rock does not seem to extend to rap music. To address that double standard, expert witnesses are increasingly being called upon to educate juries and courts about the stereotypes associated with rap music and the social concerns that motivate artistic expression by rap artists.

Expert Opinion Supports Challenge to Panama City’s Spring Break Ordinances

Spring break is a tradition fueled by sunshine, alcohol, and — on occasion — rowdy behavior. Panama City recently passed ordinances that, according to their proponents, are meant to “tone down” disturbing behavior during spring break.

Some of the city’s nightclub owners are challenging those ordinances in federal court, claiming that they are motivated by racial bias. The nightclubs have enlisted an expert witness to decode the explanations that city officials have offered in support of the new laws.

Panama City Ordinances

Publicity about bad behavior during spring break prompted a response from Panama City officials that nightclub owners and related businesses do not welcome. The incidents that motivated the response include an allegation of sexual assault on a crowded beach, the non-fatal shootings of seven people at a house party, an altercation after a concert involving Mississippi State’s quarterback, and increasing numbers of arrests for firearms possession.

To address spring break crime, city officials passed ordinances that prohibit drinking on the beach and in commercial parking lots and that ban the sale of alcohol after 2:00 a.m. The ordinances are in effect only during the month of March.

The most controversial ordinance places restrictions on “special events,” including concerts. The ordinance requires city approval of special events and restricts the number of people who can attend them.

Business Owners File Lawsuit

Some Panama City businesses, including nightclubs, contend that the new ordinances will hurt their businesses. They filed a lawsuit seeking compensation for their losses.

Among other legal challenges to the ordinances, the businesses allege that the ordinances are racially motivated. According to their federal court complaint, the ordinances coincide with an increase in African-Americans who visit Panama City during spring break. The complaint states that “officials have suggested that spring break is now rife with ‘predators’ and other ‘interlopers’,” language that allegedly refers to African-Americans.

Perhaps the strongest evidence of racial bias is the claim that city officials told club owners to stop hosting hip-hop events because they attracted too many black attendees. In apparent response to those allegations, the city recently amended the “special events” ordinance to prohibit the city manager “from denying any permit based upon the identity of any speaker or entertainer or the viewpoint, content, or type of speech or expression to be displayed so long as such speech or expression is lawful.” In other words, the city cannot give less favorable treatment to hip-hop events than to other music events based on the content of the performance.

Expert Opinion

To support its claim of racial bias, the businesses bringing the lawsuit plan to present the expert testimony of Moneque Walker-Pickett, an associate professor of criminal justice at St. Leo University. Walker-Pickett based her preliminary report on a review of minutes from city council meetings at which the ordinances were discussed, and on the extensive coverage of Panama City’s “spring break problem” by Fox News. The businesses argue that Fox News’ coverage depicted African-Americans in an unfavorable light and that the coverage influenced the passage of the ordinances.

According to Walker-Pickett, the council used “color-blind” or racially neutral language to mask conscious and subconscious racial bias. Walker-Pickett opined that the council’s frequent references to “undesirables” and “unintended guests” were code words for African-American visitors. She also cites:

Televised references by local police to the “hundred milers,” a coded reference to members of ethnic groups living within a hundred miles of Panama City, who (according to the police) travel to Panama City to “prey upon” the spring break visitors.
Screenshots from Fox News and other media sources that overwhelmingly depict African-Americans while commentators are discussing criminal activity in Panama City during spring break.
Council members’ repeated reference to media coverage and other adverse publicity during discussions of the proposed ordinances.
Council members’ use of other code words, including “thugs,” “ghetto,” “trashy,” and “bad element” as substitutes for “African-Americans.”
The use of code words like “good kids,” “fine kids,” “responsible,” and “college kids” to refer to white students who traveled to Panama City for spring break.

Based on her review of the evidence, Walker-Pickett concluded that racial bias played a role in the implementation of Panama City’s spring break ordinance.

The report was filed in opposition to a motion to strike claims from the complaint concerning racial bias. It has not yet been subjected to a Daubert challenge, which will doubtless be forthcoming if the racial bias claims survive the pending motion.

California Suspect in Deputy Shooting Declared Competent to Stand Trial after Expert Testimony

Mental competency expert witnesses assisting prosecutors in California have convinced a judge that a defendant accused of murdering two Sacramento sheriff deputies is legally competent to stand trial. After a series of hearings last fall which featured disputes among expert witnesses who argued over mental competency, the long awaited murder trial of two law enforcement officers will proceed later this year.

Sacramento Man Accused of Murdering Sheriff Deputies

Luis Bracamontes stands trial for the murder of Sacramento-area sheriff deputies Danny Oliver and Michael David Davis, Jr. during a criminal rampage in October, 2014. Deputies Oliver and Davis, Jr. were murdered after responding to a call about a suspicious vehicle which turned into a deadly shootout with a male and female suspect who used an AR-15-type assault rifle to kill the two law enforcement officers and injure another deputy and a civilian before being arrested. After the incident, police identified Luis Bracamontes, a man who had twice been deported to Mexico, as the shooter and filed murder charges against him.

Before Bracamontes could face trial for murder, his attorneys demanded a competency review to determine if the defendant was legally competent to understand the charges against him and participate in his defense. Questions about Bracamontes’s mental competency intensified during a hearing in February of 2015 when he blurted out, “I did kill those cops. You can execute me whenever you’re ready” without being prompted.

Competency Hearing for Man Accused of Murdering Sacramento Sheriff Deputies

Throughout November and December of last year, Luis Bracamontes faced a mental competency hearing featuring mental health experts who debated the defendant’s mental state in front County Superior Court Judge Steve White. Attorneys for Bracamontes called psychiatry expert witnesses to inform the court that the defendant did not properly understand the nature of the consequences of his actions. Psychiatry expert witnesses who interviewed the defendant while in jail argued he did not fit the legal definition of mental competency because Bracamontes believed he was close to God that he will be saved from death because lethal injection drugs will transform into vitamins instead of killing him.

Prosecutors countered with expert witnesses who acknowledged the defendant suffered from a mental illness, but argued he understood what is going on and can participate in his own defense. The legal standard for mental competency does not depend strictly on whether or not a defendant is mentally ill, but instead focuses on if a person accused of a crime can comprehend the criminal justice process and the consequences that a conviction brings. If a defendant has a diagnosed mental illness but can still follow the legal process and understand the charges against him then a judge can determine that the mental disorder does not preclude prosecution.

In the case of Luis Bracamontes, expert witnesses for the prosecution explained to the court that the defendant’s mental illness was not so severe as to inhibit his understanding of the murder trial proceedings, and argued he was competent to face the charges.

California Man Charged with Killing Sheriff Deputies Declared Competent to Stand Trial

After hearing the expert witness testimony about Luis Bracamontes, Judge White determined the defendant was mentally competent to face murder charges for the 2014 slaying of two sheriff deputies. Although experts for the defense painted the picture of a man who embraced execution because he felt close to God, the prosecution expert witnesses – who focused on the legal standard of mental competency rather than a mental illness diagnosis – ultimately convinced Judge White to proceed with the trial as planned. After the competency ruling, Bracamontes’s murder trial is scheduled to begin in March of this year, and the defendant faces the death penalty if convicted.

Utah Supreme Court Upholds Lower Court Decision to Disallow Testimony of Eyewitness Identification Expert

At the end of 2015, the Utah Supreme Court reversed a decision the Utah Court of Appeals that granted a new trial to a defendant who was not permitted to call an eyewitness identification expert at his trial. The decision, based on a conclusion that the trial judge did not abuse its discretion in disallowing the expert testimony, reaffirms the Utah Supreme Court’s recognition that eyewitness identification experts are, at least in some cases, an essential safeguard of a defendant’s right to a fair trial. The decision also stands as a reminder that lawyers who want to call expert witnesses must be prepared to explain why the expert’s testimony is important.

Eyewitness Identification Experts

Juries often consider eyewitness testimony to be the strongest evidence in a criminal trial. While jurors have faith in eyewitness identifications of people who are charged with a crime, studies have established that eyewitnesses are often wrong when they identify a suspect. A 1996 review of 28 wrongful convictions in which the defendant was exonerated by DNA evidence revealed that each conviction was supported by one or more false identifications of an innocent defendant. The Innocence Project reports that mistaken identifications play a role in more than 70{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of all convictions that are later overturned as a result of DNA evidence.

Research confirms that eyewitness identifications are tainted by:

Suggestive lineups or photo arrays in which police subtly encourage a witness to identify a particular suspect.

The likelihood that a witness will misidentify a suspect after seeing that suspect’s picture in a photo array or newspaper.

The difficulty of focusing on the details of a criminal’s appearance and imprinting a memory under stressful conditions that usually exist while the crime is occurring, particularly when a weapon is present.

The malleability of memory — that is, the fact that what we “remember” changes as we receive new information, so that memories we believe to be reliable have in fact been altered.

The absence of a strong correlation between a witness’ certainty that a memory is accurate and the actual accuracy of that memory.

The difficulty that eyewitnesses have when they attempt to identify a suspect of a different race.

Conditions that impair the ability to make a careful observation, including poor lighting, distance, and the brevity of time during which the criminal is in view.

A comprehensive review of these and other factors by the National Academy of Sciences points to the important role that psychologists and neuroscientists play in explaining perception and memory to juries when a prosecution is founded on an eyewitness identification. Expert testimony conveys research findings to juries that explain why “common sense” understandings of memory and perception are often mistaken.

Studies of jury decision-making establish that eyewitness identification experts have a beneficial impact on jury deliberations. Research also confirms that cautionary jury instructions, advising a jury of potential pitfalls of eyewitness identifications, have no significant impact on a jury’s evaluation of eyewitness testimony.

Clopten Decision

Prior to 2009, appellate court decisions in Utah discouraged trial judges from admitting expert witness testimony. The decisions created a presumption that, in most cases, jurors were capable of evaluating eyewitness identifications without the assistance of an expert. Expert testimony was seen as invading the jury’s province as the sole evaluator of witness credibility. The Utah Supreme Court repeatedly held that an instruction regarding the evaluation of eyewitness testimony was adequate to guide the jury, and that expert testimony would be superfluous and confusing.

The Utah Supreme Court jettisoned that presumption in 2009 when it decided State v. Clopten. The Clopten decision acknowledged that jurors rarely understand the limitations in human perception and memory that are critical to the accuracy of an eyewitness identification. The court determined that cross-examination and cautionary jury instructions are inadequate substitutes for expert testimony as tools for conveying the reasons that an eyewitness identification might be mistaken. The court decided that expert testimony is the best method for educating the jury about the vagaries of eyewitness identification. Accordingly, the court followed a growing trend by ruling that trial courts should admit expert testimony whenever it might help the jury evaluate the reliability of an eyewitness identification.

Guard Decision

In a case decided on December 31, 2015, the Utah Supreme Court revisited the issue of expert testimony in eyewitness identification cases. In that case, a stranger tried to kidnap a 9-year-old girl at knifepoint. The girl kicked and punched her assailant, freeing herself from his grasp. She then ran home.

When the police interviewed her, the girl described a man with curly hair and a beard, but said she did not see his face. She was able to describe some of his clothing, including his shoes and a distinctive t-shirt and cap. The next day, a police detective showed her six photographs, and she identified the photograph of Jimmy Guard with certainty. Further investigation found two neighborhood residents who, after looking at Guard’s photograph, said they saw a man who looked like Guard in the area of the assault on the day that it occurred. Another child, who was a block away when the assault occurred, confirmed the victim’s general description of the assailant.

The police arrested Guard two days later. They searched his home but could not locate the cap, t-shirt, or shoes that the victim described. Guard described stores he had been in at the time of the assault. The police waited a week before they interviewed the store employees, none of whom recalled Guard. Guard also told the police that he visited a library in addition to the stores. Unclear photographs from a surveillance camera at a library may have depicted Guard’s image.

Guard’s attorneys wanted to call an expert witness to testify about the problems with attention, perception, and memory that influence eyewitness identifications. The trial court refused to allow the expert testimony. After Guard was convicted and while his appeal was pending, the Utah Supreme Court decided Clopten.

The Utah Court of Appeals decided that Clopten should apply retroactively to Guard’s case. It made that decision notwithstanding a Utah Supreme Court decision that declined to apply a newly announced rule of criminal procedure to cases that are pending on appeal when the new rule represents a “clean break” from past decisions. Since Guard’s case went to trial at about the same time as Clopten’s, the Court of Appeals thought it would be fundamentally unfair to deny Guard the protection of the new rule.

Abandoning the “clean break” rule, the Utah Supreme Court agreed that the Clopten decision should apply to Guard’s case. The court nevertheless ruled that the trial judge was entitled to disallow the expert’s testimony. The court held that Guard failed to establish that the proposed testimony was reliable. Following Utah’s version of the Daubert test, the Utah Supreme Court concluded that Guard failed to make a pretrial showing of the eyewitness identification factors that the expert deemed relevant or how those factors could have influenced the identifications in Guard’s case. Responding to the trial court’s confusion, Guard’s counsel had offered to provide a written summary of the expert’s proposed testimony before trial, but failed to do so. Under those circumstances, the supreme court concluded that the trial court did not abuse its discretion in disallowing the expert testimony.

The Guard decision should not be viewed as an abandonment of the Clopten ruling, which the Utah Supreme Court expressly reaffirmed. Instead, Guard illustrates the importance of making a strong pretrial showing of the relevant testimony that an eyewitness identification expert will offer. Guard’s attorney probably could have made that showing and might have rendered ineffective assistance of counsel by failing to do so. In the end, Guard is the unfortunate victim of poor advocacy rather than poor rules governing the admission of expert testimony.

Sixth Circuit Upholds Admission of Shaky Expert Testimony Regarding Lost Profits

Lost profits are almost always a difficult element of damages to prove. Expert testimony is essential, but courts that employ the Daubert test will not admit an expert’s opinion about lost profits unless it is based on a reliable methodology. A recent decision from the United States Court of Appeals for the Sixth Circuit, however, illustrates that even “shaky” testimony might be admissible in a trial judge’s discretion.

Wayne State’s Relationship with CDG

Wayne State University had a long business relationship with Contract Design Group (CDG), a company that sells and installs floor coverings. Wayne State’s 2008 contract with CDG required CDG to bill on a time and materials basis and to pay Michigan’s prevailing wage to its employees. Wayne State severed its relationship with CDG after it became concerned that CDG was not in compliance with Michigan’s prevailing wage law. It also withheld contract payments, arguing that CDG had breached its contract by failing to provide evidence that its employees were paid the prevailing wage.

Notwithstanding the terms of the blanket contract (which included no specifications for any particular project), a facilities manager at Wayne State typically accepted lump sum estimates for assigned projects. The practice of entering into lump sum contracts began before, and continued after, Wayne State entered into time and materials contracts with vendors. Pursuant to CDG’s agreement with the manager, Wayne State paid CDG lump sums for specific projects without demanding that CDG adhere to the blanket time and materials contract. The manager who entered into those lump sum agreements was later fired.

Representatives of Wayne State and CDG met several times after Wayne State alleged that CDG was not withholding FICA from payments it made to its subcontractors. At Wayne State’s request, CDG submitted wage records purporting to demonstrate its compliance with Michigan’s prevailing wage law. Wayne State alleged that those records were falsified.

CDG denied falsifying any records. Some of the information upon which Wayne State relied apparently came from individuals who hoped to benefit if contracts with CDG were diverted to their own business. When Wayne State began debarment proceedings that would disqualify CDG from being awarded future contracts, Wayne State refused to disclose the evidence upon which it relied in deciding that CDG had falsified its certified payrolls.

Wayne State reluctantly held a debarment hearing after making clear that it did not intend to change its debarment decision. Debarment proceedings continued even after Michigan’s Wage & Hour Division declined to accept jurisdiction over a complaint that CDG violated the prevailing wage law. The Wage & Hour Division concluded that the complaint concerned subcontractors to whom the law did not apply.

CDG’s Lawsuit

CDG sued Wayne State in federal district court on a variety of theories, including breach of contract, intentional interference with business relations, violation of CDG’s right to due process, and defamation. At trial, the jury determined that Wayne State failed to pay CDG’s account for services rendered, breached its contract with CDG, and violated CDG’s right to due process. Wayne State was required to pay CDG’s attorney’s fees on the federal due process claim. The court entered a total judgment against Wayne State for about $1.3 million.

On appeal, the Court of Appeals for the Sixth Circuit determined that the jury awarded duplicate amounts on payments that were owed to CDG for the services it rendered, and remanded the case with instructions to reduce the award by eliminating the duplicated damages. The other significant issue raised on appeal concerned Wayne State’s argument that the trial court improperly admitted expert testimony on its claim for lost profits.

Expert Testimony

CDG claimed damages for lost profits as the result of Wayne State’s cancellation of its contract. It employed Ted Funke to prepare a report and to testify about the profits that CDG lost as a result of Wayne State’s actions.

Federal courts are often skeptical about lost profit claims. They take care to exclude expert testimony about lost profits when that testimony is “overly speculative,” particularly when the testimony depends upon predictions of future demand for a new product or service.

The federal Daubert standard for expert opinion admissibility considers whether an expert’s opinion is based on a valid methodology. Courts are more likely to admit expert opinions about lost profits when they are grounded in historical trends and typical industry profit margins. Methodologies that ignore factors that might cause a business to fail or to suffer reduced profits tend to fail the Daubert test, as do opinions that make questionable comparisons (such as comparing the anticipated profit margin of a startup business to profit margins earned by industry leaders).

Wayne State made a pretrial Daubert objection to Funke’s prediction of lost profits. Its challenge contended that Funke was unqualified, that his opinions were not based on adequate data or a reliable methodology, and that he did not reliably apply the methodology to the facts. The trial judge decided that CDG made a preliminary showing of reliability and that Wayne’s State’s challenge went to the weight of Funke’s testimony rather than its admissibility.

Funke calculated CDG’s lost profits by examining CDG’s historical monthly sales to Wayne State over a period of 18 months prior to its debarment. He multiplied the monthly average by 41 to estimate lost income for 41 months after debarment.

A key question on appeal was whether Funke should have been allowed to testify about the loss of gross profits rather than net profits. The Court of Appeals agreed that basing a lost profit calculation on gross rather than net profits is usually inappropriate. Funke testified, however, that there was no net profit on the lost jobs and that gross profit was the correct measure of the loss. That testimony was challenged on cross-examination and by Wayne State’s own expert. The trial judge acknowledged that Funke’s testimony was “shaky,” but decided that the testimony presented a factual dispute that the jury was capable of resolving.

On appeal, Wayne State argued that Funke relied upon financial information provided by CDG that was not independently verified, that Funke did not take a potential economic downturn into account, and that he had no basis for assuming that CDG would continue to win contracts for 41 months. While acknowledging that Funke’s calculation was “not a model of precision” and that the admissibility of Funke’s testimony presented a “close call,” the Court of Appeals noted that Funke based his opinions on historical data, that he limited his projection of lost profits to a reasonable time period, and that he explained his reasons for believing that gross rather than net profit was the correct measure of loss. Funke’s analysis might have been imperfect but it generally followed a reliable methodology. The jury had the opportunity to consider the countervailing testimony of Wayne State’s expert and was entitled to decide how much weight it should give to the opinions rendered by each expert. Under the circumstances, the Court of Appeals decided that the trial court did not abuse its discretion by allowing the jury to consider Funke’s opinions.

Pennsylvania Law Allows Victim Psychology Expert Witnesses to Testify in Child Abuse Trials

A November court case in Pennsylvania has affirmed and set into effect a 2012 state law which will allow testimony from psychology expert witnesses who are able to explain why child victims of sexual assault delay reporting alleged crimes for months or even years after incident. The law, which is a direct response to the Jerry Sandusky abuse case, will give jurors the opportunity to hear experts explain delays which are often key points of emphasis for defense attorneys in child abuse criminal cases.

Pennsylvania Law allows Child Psychology Experts to Testify

In the wake of the high profile child sexual assault trial of former Penn State University assistant football coach Jerry Sandusky – during which multiple expert witnesses about child sex abuse were denied the opportunity to testify during the prosecution – Pennsylvania legislators drafted and passed a law which specifically permitted experts in child sexual violence to testify during criminal trial. The law was designed to educate jurors about victim psychology which may explain delays in crime reporting or inconsistent testimony that laypeople on a jury would be unlikely to understand. Child psychology expert witnesses would not be allowed to tell jurors that victim behavior suggests guilt or innocence, but would serve to context in which to interpret the facts presented at trial.

Efforts to pass the law have been stymied by both the Pennsylvania legislature and the state court system which specifically rejected similar efforts to use psychology expert witnesses to explain victim behavior during previous trials. With a handful of charges against Sandusky unable to proceed due to questions about victim credibility giving the law’s supporters a publically sympathetic argument the bill finally garnered enough support in 2012 to become law. In 2014 the law was subject to a legal challenge by defense attorneys who claimed the legislature did not have the authority to impose evidentiary rules on the court system, particularly ones which directly countered previous state court rulings.

Child Psychology Expert Law Survives Pennsylvania Legal Challenge

During the 2013 trial of Jose Luis Olivo, on trial for sexually assaulting a young girl starting when she was 4 and continuing until she was 7, the prosecution attempted to present testimony from an expert in child victim psychology. Defense attorneys for Olivo objected to the expert testimony arguing two points: first, the legislature did not have the constitutional authority to pass laws dictating rules of evidence, and second, prior Pennsylvania case law specifically precluded such a law by disallowing victim psychology expert testimony. The trial court agreed with defense attorneys and disallowed the proposed expert witness testimony despite the new state law allowing it, setting up a series of appeals which eventually brought the case before the Pennsylvania Supreme Court.

In November of last year, Pennsylvania’s highest court released an opinion which first validated the legislature’s authority to pass laws establishing judicial rules of evidence and second considered recent advancements in social science to conclude that the specific type of expert testimony proposed by the new law was admissible during trial providing the experts do not speak about the particulars of the case facts. The majority opinion pointed out many evidentiary rules which have origins in statutory authority, suggesting that Pennsylvania lawmakers have demonstrated authority to impose evidentiary rules on the judiciary. Further, the majority found prior case law which excluded psychology was distinguishable because it featured a different type of evidence and was analyzed with a different understanding of the nature and benefit of victim psychology expert testimony.

Pennsylvania Supreme Court Dissent Highlights Opposition to Psychology Expert Witnesses

A lone dissenting judge to the majority opinion argued Pennsylvania should continue to prevent victim psychology experts from testifying in child sexual abuse cases. Citing fears that such testimony would turn trials in a battle of experts which would either serve to confuse jurors or alter the presumption of innocence and burden of proof by telling jurors how they should interpret facts, the dissenting opinion argued that jurors should be presented will all available evidence and decide witness or victim credibility.

While the dissent’s concerns are shared by many in the judiciary who have resisted expansion of behavioral science and psychology expert testimony, mounting evidence from psychological research which suggests juries are largely unable to make sophisticated assessments about behavior has begun to influence a slow shift towards permitting behavioral science testimony during criminal trials. With the new law in Pennsylvania affirmed, prosecutors will start presenting victim psychology expert testimony during trial.

Expert Witness Featured in Movie Concussion

The movie Concussion opened on Christmas Day. Concussion tells the story of Dr. Bennett Omalu’s impact on professional football. Dr. Omalu (played in the movie by Will Smith) is a forensic pathologist who is credited with discovering chronic traumatic encephalopathy (CTE), a degenerative brain disease that afflicts people who have experienced multiple concussions and other forms of repeated brain trauma. Known colloquially as “gridiron dementia,” CTE causes memory loss, aggression, depression, and other personality changes. It may also lead to premature death.

Notably, one of the movie’s first scenes depicts Dr. Omalu testifying as an expert witness in a murder trial. Board certified in neuropathology and forensic pathology, Dr. Omalu has testified in hundreds of civil and criminal cases since 2009. Much of that testimony has resulted from Dr. Omalu’s position as the Chief Medical Examiner of San Joaquin County, California.

Concussion spotlights Dr. Omalu’s successful quest to force the NFL to take concussions seriously. Due in part to his pioneering work, other expert witnesses are playing vital roles in civil cases that involve brain injuries caused by repetitive concussions.

CTE Lawsuits

Concussions occur in a variety of contexts, including falls and car accidents. The plaintiffs in all of those cases may require a neurologist or other medical expert to prove the extent of the injury.

Multiple concussions in sporting events, however, are the only known cause of CTE. In addition to football, athletes who participate in boxing, wrestling, and hockey are at risk of developing CTE. Soccer, a game played without protective headgear, is not a contact sport, but collisions frequently lead to concussions.

Experts are playing a critical role in developing the link between sports and CTE. In addition to conducting research, experts have testified or assisted in court cases that have revolutionized injury management in athletic competitions.

Five thousand former NFL players joined a lawsuit accusing the league of hiding the risks of concussion from them. A federal judge approved a settlement of that lawsuit that authorizes multimillion dollar payments to former players who are suffering from severe neurological disorders, including CTE. The total outlay by the NFL may exceed one billion dollars. The settlement will not become final, however, until appeals are resolved.

The lawsuit motivated the NFL to implement new safety measures to protect players from CTE. Starting with the 2013-14 season, the NFL agreed to have an independent neurologist on the sidelines of every game to evaluate players who may have suffered a concussion.

The family of hockey player Steve Matador recently sued the NHL on similar grounds. Matador, a former defenseman for the Chicago Blackhawks, died at the age of 35. An autopsy revealed that he suffered from an extensive case of CTE. His family alleges that “the league did not do enough to warn them of the long-term effects of repeated blows to the head or protect them from the hits.”

Matador’s lawsuit is only the latest to accuse the NHL of concealing the risk of concussions from players. A potential class action involving 60 former NHL players is pending. Depositions of expert witnesses in that case are expected to begin soon.

Expert testimony will likely be the key to Matador’s lawsuit and to the class action. The NHL’s commissioner maintains that “from a medical and science standpoint, there is no evidence yet” that playing in the NHL leads to CTE. While neurosurgeon and CTE researcher Julian Bailes agrees that much about CTE remains to be discovered, he points out that the “only known risk factor for CTE is having had multiple concussions and cranial impacts in contact sports.”

Student Athletes

While concussions sustained by professional athletes have fueled research by experts like Dr. Omalu, student athletes who have sustained repeated concussions have also been found to suffer from CTE. A recent study suggests that CTE may afflict a significant percentage of amateur athletes who play contact sports.

Medical and statistical experts who assisted in crafting the settlement of a class action concussion lawsuit against the NCAA concluded that college athletes who play contact sports have about the same risk level as NFL players to have symptoms related to CTE. The settlement includes $70 million for medical monitoring while permitting injured athletes to bring individual claims for compensation for concussion-related injuries.

Lawsuits by students often focus on coaches and training staff who clear a player to return to the field after violent contact without adequately screening the player to determine whether a concussion occurred. Players who sustain a second concussion after returning to play are at substantially greater risk of developing permanent brain damage.

Lawsuits have also claimed that schools fail to provide needed treatment that would prevent brain injuries. A school district in Iowa paid a million-dollar settlement to a permanently disabled football player whose complained of headaches to a school nurse after being tackled. The student continued to practice and play despite his complaints. He eventually fell into a coma.

In all of these lawsuits, expert witnesses play a vital role. In addition to providing testimony about the likely cause of an athlete’s brain injury, experts testify about the adequacy of a school’s protocol for evaluating athletes and returning them to play after they may have experienced a concussion. The failure to develop or to follow protocols is often the kind of negligence that leads to concussion-related lawsuits against educational institutions.

Prosecutor Accused of Improperly Influencing Expert Witness

Jane Laut is charged with killing her husband, Dave Laut, a 1984 winner of an Olympic bronze medal in shot-putting. Prosecutors allege that Laut shot her husband at their Oxnard, California home on Aug. 27, 2009.

At least at this stage, Laut’s likely defense appears to be that she suffered from battered women’s syndrome, a post-traumatic stress disorder, at the time of the shooting. The defense has engaged the services of Gail Pincus, an expert on battered women’s syndrome, and Kay Emerick, a clinical psychologist, who may testify as expert witnesses during her trial.

A defense based on battered women’s syndrome is typically used to explain why victims use force that, under ordinary circumstances, would be considered excessive to defend themselves from an attack. It can also be used to explain why the use of deadly force when a victim is not facing imminent danger can be a delayed response to violence that the victim faced in the past.

Since the defense experts based their opinions at least in part on interviews with Laut, the court granted the prosecution’s motion to allow its own expert, forensic psychologist Kris Mohandie, to interview Laut. The court required the prosecution’s expert to record the interview and prohibited him from asking Laut about events that occurred on the night of the killing. The court did allow Mohandie to ask Laut about her state of mind when the shooting occurred.

Defense Allegation of Improper Influence

The defense alleged that Senior Deputy District Attorney Rameen Minoui (or an investigator from his office) improperly influenced Mohandie by speaking to him prior to his interview with Laut. The defense relied on telephone records showing that Mohandie talked to Minoui for 47 minutes before Mohandie contacted Laut. Minoui responded that it is “no surprise that a party who hires an expert is going to communicate with that expert.”

At a motion hearing, Mohandie testified that after he met with Laut, he wanted to ask her some additional questions. Since he was going out of town, he called Minoui to ask whether he could contact Laut by telephone to ask those questions.

Asked whether Minoui told Mohandie what questions he should ask, Mohandie answered “Absolutely not.” The defense contends that Mohandie asked about issues he could only have learned about from Minoui. The judge did not allow Laut’s lawyer to ask Mohandie how he arrived at the follow-up questions he posed to Laut.

On the basis of the evidence presented at the hearing, the judge ruled that he would not limit the testimony that Mohandie would be allowed to give. The case is scheduled for trial early next year.

What “Influence” of Expert Testimony is Improper?

Laut’s lawyer faced an uphill battle. As a general rule, it is not improper for a lawyer who hires an expert to talk to the expert. Lawyers need to understand the expert’s opinions and generally need to prepare them to testify. On the other hand, it is improper for a lawyer to tell an expert witness what the witness should say. The line between preparing testimony and influencing testimony is not always easily drawn.

The rules of ethics require a lawyer to walk a line between two distinct duties. The first is the duty to provide competent representation. That rule requires a diligent investigation of the facts, including the basis for any opinions an expert witness has formed. Competent representation also demands preparation for trial. That includes preparing witnesses to testify.

The second duty prohibits lawyers from offering evidence that they know to be false. Lawyers cannot elicit evidence that they know to be untrue and cannot assist witnesses in giving false testimony. A comment to the Model Rules of Professional Conduct suggests that “improperly coaching witnesses” is forbidden. But what coaching is improper?

Witness preparation generally includes telling the witness what questions the witness will be asked in court and listening to the responses the witness plans to give. The lawyer can ask a witness to think about rephrasing an answer if the answer that the witness gives is confusing, incomplete, or inaccurate. The lawyer can even suggest alternate wording for the witness to consider, provided that the wording does not change the meaning that the witness intends.

Courts have held that lawyers “must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” Influencing testimony is clearly improper if the lawyer coaches the witness to give an answer that is untrue or misleading. Suggesting that the expert testify about opinions the expert does not actually hold would be improper.

Provided that lawyers do not try to change the intended meaning of the answers an expert witness proposes to give, it is proper to influence testimony by encouraging an expert to explain concepts in simpler language, to give shorter or more direct answers, and to avoid jargon. Meeting with an expert to learn how the expert plans to form an opinion, and meeting again to discuss the opinions that the expert will give in court, is simply part of the lawyer’s duty to provide competent representation.

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