Category Archives: ExpertWitness

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Florida Attorneys Resist Change in Expert Witness Admissibility Rules

Attorneys in Florida recently submitted a recommendation to the state Supreme Court requesting the judiciary refuse a legislative directive to increase scrutiny on expert witnesses.  The recommendation and accompanying report submitted by the Florida Bar association highlights an ongoing debate about the proper standard for evaluating and admitting expert testimony in court.

Florida’s Expert Testimony Standard

In 2013 the Florida legislature passed a law which required the Florida judiciary to adopt the same legal standard for admitting expert testimony as the federal court system uses.  The standard, known as the Daubert test, requires judges to conduct a thorough evaluation of proposed expert witness testimony across three parts: whether the expert’s work is based on sufficient facts or data, is the product of reliable principles and methods, and has applied the principles and methods reliably to the facts of the case.  Under the Daubert standard courts are required to assess an expert’s qualifications, the work a proposed witness did to prepare testimony, and the standards used by specialists in the expert’s field of study.

Florida legislators responded to assertive lobbying efforts led by business groups and medical organizations by adopting the Daubert standard for expert testimony in state courts, setting off a debate between the law’s proponents and plaintiff attorneys of the Florida Bar Association.  According to arguments from plaintiff attorneys, a more restrictive approach to admitting expert witness testimony only benefits large businesses or deep-pocketed defendants who use the standard as a way to stymie legitimate lawsuits.

Florida Attorneys Resists New Expert Witness Standard

Members of the Florida Bar Association have resisted change to the Daubert standard since the state legislature adopted the new test in 2013 by arguing it prevents low-income citizens from being able to pursue legitimate legal claims.  Attorneys caution the Daubert standard enables wealthy defendants use procedural rules on expert admissibility to delay and make expensive lawsuits to the point where plaintiffs may be discouraged to continue.  Opponents to the Daubert test argue wealthy defendants can rely on a select few experts who routinely testify on the same issue across several lawsuits while plaintiffs without the same resources would be unable to find or afford experts the courts would admit.

The Daubert standard reduces the number of available experts by imposing more rigorous standards of admissibility, and with a smaller pool of experts to choose from it becomes difficult for every lawsuit to have a qualifying expert to offer support.  Attorneys who oppose the Daubert standard argue Florida should retain its old test for expert witness admissibility known as the Frey test.  The Frye test offers a much simpler requirement to determine expert qualifications: whether the proposed expert testimony is based on techniques and theories which are generally accepted as reliable in the relevant scientific community.  Unlike the Daubert standard which requires judges to evaluate expert testimony, the Frye test simply asks judges to ascertain whether the scientific community has conducted an evaluation.

Proponents of the Daubert standard argue the Frye test too frequently allow “junk science” to be used in court by experts who can find any scientific publication to submit their work, and maintain that using a more rigorous standard for expert analysis preserves the integrity of the legal system and prevents frivolous lawsuits.

Florida Bar Association Asks State Supreme Court to Reject Daubert Standard

After several months of debate over the Daubert and Frye standards, the Florida Bar’s Board of Governors voted 33 – 9 to formally recommend the state Supreme Court not adopt the Daubert standard in direct opposition of the legislative directive.  Despite the Daubert’s use in the federal court system, and most states, Florida attorneys expressed a desire to maintain the less restrictive Frye standard of expert witness evaluation.  The state Supreme Court has the authority under Florida’s constitution to adopt rules for the judiciary, and, as such, as the ultimate say in whether or not the Daubert standard is used.

With the petition recently submitted to Florida’s Supreme Court there is unlikely to be any action on the issue for several months, but Florida’s internal debate on the appropriate legal standard for admissibility of expert witnesses provides an interesting challenge to a long-accepted method for assessing expert reliability.

Dueling Experts Contribute to Mistrial in Case Against Baltimore Officer who Arrested Freddie Gray

A Baltimore area judge has declared a mistrial against the first police officer to face prosecution for the death of Freddie Gray after jurors could not reach a verdict after more than 16 hours of deliberations.  While many factors can contribute to juror deadlock, the emotionally charged case featured several conflicting expert witness statements, none of which was convincing enough to sway the entire jury towards conviction.

First Officer Trial in Freddie Gray Case Ends with Mistrial

Baltimore police officer William G. Porter was the first of six officers charged with the death of Freddie Gray, a suspect who died in police custody in April of this year.  Freddie Gray, who suffered a fatal neck injury while shackled in a Baltimore PD van, earned the national spotlight when protests over his death turned to riots by angry citizens of predominantly black Baltimore neighborhoods who expressed frustration about law enforcement brutality against African American citizens.  Porter, who is also black, denied racially motivated treatment of Gray and maintained that he and his fellow officers were unaware of the seriousness of the 25-year-old injuries at the time of his death.

During the trial, prosecutors called medical expert witnesses in an effort to convince jurors that Officer Porter – along with his colleagues – acted inappropriately by failing to properly secure Gray in the back of the police van, and, more importantly, failing to call for medical help when the victim’s injuries became apparent.  Attorneys for William Porter called counter-experts in police training and medical fields to dispute the prosecution’s position and argue the defendant was not responsible for the tragic accident which took Gray’s life.

Prosecution in Freddie Gray Case Calls Expert Witnesses

During the prosecution’s case against Baltimore officer William Porter attorneys for the state argued the six police officials had an opportunity to prevent Freddie Gray’s death by taking better precautions and by responding to Gray’s injuries in a timely manner, but failed on both accounts.  Neither side contests the fact that the van Gray was placed in upon his arrest made a total of 6 stops before officers requested medical attention Gray’s injuries, but what is contested is where along those 6 stops the victim suffered the fatal injury.  Prosecutors argue Gray suffered the injury early in the trip – sometime after the second stop – which would give police officers ample time to respond to his injuries.

To support their case prosecutors called Dr. Carol Allan, the medical examiner who performed Gray’s autopsy, as a forensic expert witness.  Dr. Allan told jurors that her expert analysis of the case concluded Gray was injured sometime between the 2nd and the 4th stop of the van, and believes that the police acted with criminal negligence by failing to recognize the severity of the situation after the 4th stop.  According to Dr. Allan had Gray received prompt medical attention after the 4th stop then he may not have died in the police van, suggesting Porter and his fellow officers failed in their opportunity to request timely medical attention.

Dr. Allan’s testimony was buttressed by Illinois neurosurgeon and medical expert witness Dr. Morris Marc Soriano who told the court that immediate medical attention could have saved Freddie Gray’s life.  A final medical expert for prosecutors was paramedic Angelique Herbert who responded to the scene after Porter and his fellow officers finally called for medical attention.  According to Herbert, by the time she arrived at the scene Freddie Gray was already beyond saving.  Defense attorneys responded to the testimony by prosecution experts with police tactic and forensic expert witnesses who told the court there was nothing Officer Porter could have, or should have, done differently during Gray’s arrest and detention.

Defense Attorneys in Freddie Gray Officer Trial Use Expert Testimony

Early in the defense’s case, attorneys for William Porter called Timothy Longo, a police chief in Charlottesville, Virginia with more than 35-years of experience as an officer, as a police tactics expert witness.  According to Longo, Officer Porter exercised reasonable discretion and good judgment considering the circumstances by detaining a resistant suspect and by informing the van’s driver of the need for medical attention at an appropriate time.  Longo addressed allegations that Porter should have buckled Gray in by saying the arresting officers are required to use circumstance and discretion when faced with orders issued by Baltimore PD requiring detainees be buckled because those rules “don’t create a higher standard in criminal or civil proceedings.  They’re clearly administrative in purpose.”

Longo also told jurors that Officer Porter could have gotten on the radio sooner to request medical attention, but ultimately was acting under the authority of his fellow officer Caesar Goodson who was driving the van and in charge of the operation.  Defense attorneys also called neurosurgeon Dr. Matthew Ammerman as a medical expert witness to tell jurors there is nothing Porter could have done had he called for medical attention right away.  According to Dr. Ammerman’s forensic testimony, Gray’s neck injury was catastrophic and immediately paralyzed his ability to breathe, speak, and move.  Dr. Ammerman said this injury must have occurred after the fourth stop because Gray could still communicate at that time.

Jurors were unable to reach a verdict against Officer Porter after more than 16 hours of deliberations.  The State has an opportunity to retry the officer, but has not announced a decision at this time.  All of the other officers, including Caesar Goodson, will face criminal prosecution in the near future for their role.

Expert Testimony Improperly Excluded in Securities Fraud Trial

A federal jury in Connecticut convicted Jesse Litvak of multiple crimes, including securities fraud, making false statements to the United States government, and defrauding the government. A recent decision of the U.S. Court of Appeals for the Second Circuit concluded that Litvak should receive a new trial on the securities fraud counts because the District Court improperly limited the expert testimony that Litvak wanted to present.

Litvak’s Trial

Litvak was a securities broker and trader at an investment banking firm. The government charged Litvak with multiple counts of securities fraud and of making false statements to government officials, as well as a single count of fraud against the United States. The accusations arose from transactions in Residential Mortgage-Backed Securities (RMBS). Typical RMBS are collections of mortgages that have been purchased from lenders and packaged together. Shares of the packages are then sold to investment funds and other investors.

Litvak was accused of making false statements to investment managers about the price his firm paid to acquire certain RMBS, the price he had negotiated to sell them, and his firm’s role in the transactions. The indictment alleged that Litvak made the misrepresentations in order to earn secret profits on the transactions. The jury convicted Litvak of nine counts of securities fraud, four counts of making false statements to the government, and one count of defrauding the government.

Materiality of Litvak’s False Statements

The false statements that Litvak made to investors were included in reports that were filed with the Treasury Department. The government relied on those reports as proof that Litvak made false statements to the government and that he defrauded the government.

All of those crimes depended on proof that the statements were material, meaning they were the kind of statements that could influence a decision made by a person who relied upon them. The Court of Appeals concluded that the investors, not the Treasury Department, relied upon Litvak’s statements when making investment decisions. Since the Treasury Department made no decisions that could have been influenced by Litvak’s false statements, the Court of Appeals reversed his convictions for making false statements to the government and for defrauding the government.

The Court of Appeals arrived at a different conclusion with regard to the securities fraud counts. The court concluded that the jury was entitled to find that Litvak’s misrepresentations to the investment managers were material to their decisions to purchase the RMBS. While Litvak was not entitled to a reversal of his securities fraud convictions on the ground that they were unsupported by evidence, the Court of Appeals next asked whether Litvak was denied a fair trial when the District Court excluded his expert testimony.

Expert Testimony Regarding Materiality

Litvak wanted to call Ram Willner as an expert witness. In addition to serving as a professor of finance, Willner gained extensive experience in the purchase and sale of RMBS during his employment with various investment firms.

While the government did not directly challenge Willner’s qualifications as an expert, the trial court questioned whether he could give expert testimony when his opinions were not based on a scientific methodology. In a footnote, the Court of Appeals noted that the Federal Rules of Evidence permit a wide variety of expert testimony, not just opinions based on science. Expertise can be gained from experience and specialized training and, in appropriate cases, can be based on personal knowledge that is not gained from traditional scientific methods. If it is helpful to the jury, testimony about industry practices is admissible when it is based on specialized knowledge.

Litvak proposed to have Willner testify about the process investment managers use to value RMBS. In Willner’s view, the price that a seller paid for RMBS is not relevant to the buyer’s determination of their value, and therefore cannot be material to a decision to buy or not to buy them. In essence, Willner would have testified that assertions sellers make about their acquisition costs are never reliable and everybody knows that, so investment managers do not rely upon them when they value the security.

The Court of Appeals concluded that Willner’s opinion that Litvak’s misrepresentations were not material may have been inadmissible because it addressed the ultimate legal conclusion that only the jury could make. However, Willner proposed to testify not just about whether Litvak’s misrepresentations were material to the investors’ decisions to buy shares from his firm, but about the unlikelihood that statements of that nature would be material to a reasonable investor.

The Court of Appeals decided that Willner’s proposed testimony concerning the way that investment managers make decisions to buy RMBS at particular prices (including their disregard of a seller’s claimed acquisition costs when they make those decisions) was relevant to the jury’s assessment of the materiality of Litvak’s misrepresentations. The proposed expert testimony undermined the testimony of the investment managers who claimed that Litvak’s representations about his firm’s purchase price influenced their decisions to pay the agreed-upon price for the RMBS shares they purchased from Litvak’s firm. Had the jury heard Willner’s testimony, it could have decided that Litvak’s misrepresentations were not likely to have influenced the investment managers and were therefore not material.

The Court of Appeals held that excluding Willner’s testimony unfairly deprived Litvak of an opportunity to defend against the securities fraud charges. The Court of Appeals therefore reversed those convictions and granted Litvak a new trial.

Expert Testimony Regarding Agency

Litvak also proposed to call a second expert witness, an attorney who had substantial experience working as a compliance officer in the securities industry. The attorney would have testified that brokers in Litvak’s position do not work as agents for investors who buy shares in RMBS. Rather, they act on their own behalf in an arm’s-length relationship with investors.

At least one of the investment managers called by the government testified that he viewed Litvak to be acting as an agent rather than a principal. In light of that testimony, the jury might have concluded that the investment manager placed great reliance on Litvak’s statements (and that the statements were therefore material to the transaction) because they were coming from the investment manager’s agent. If the jury had heard an expert explain that Litvak was not, in fact, an agent for the investment manager, the jury would have been less likely to conclude that Litvak’s false statements were material to the investment manager’s purchasing decisions. Consequently, if the government takes Litvak to trial again, the District Court must permit expert testimony that Litvak was not acting as an agent for the investors.

Tom Brady Relies on Experts to Challenge “Deflategate” Suspension

Experts are weighing in on “Deflategate,” the name the media have bestowed upon the allegedly conspiratorial events that resulted in Tom Brady’s four game suspension from the NFL. The initial investigation of underinflated footballs relied heavily on expert opinions. Brady also relied on an expert when he appealed his suspension to NFL Commissioner Roger Goodell.

A federal court lifted the suspension for reasons that were largely unrelated to the expert testimony. That ruling is now on appeal.

Deflategate Investigation

The New England Patriots battled against the Indianapolis Colts for the right to advance to the 2015 Superbowl. According to an investigative report “concerning footballs used during the AFC championship game,” the Colts questioned the inflation levels of the footballs the Patriots were using during the first half of the game. An NFL rule requires footballs to be inflated to a pressure within the range of 12.5 to 13.5 psi during league games.

At halftime, the officiating crew tested the balls that had been used by both the Patriots and the Colts. The officials found that all of the Patriots’ footballs were underinflated. The footballs supplied by the Colts were within the accepted range, at least according to one of the two pressure gauges that were used to test them.

The report concluded that a locker room attendant and an assistant equipment manager employed by the Patriots participated in a scheme to deliberately circumvent the NFL rules by releasing air from the footballs after they were examined by the officiating crew. The report also concluded that Brady was “generally aware” of their inappropriate activities.

Experts Analyze Football Inflation

The investigative report relied in part upon the input of experts, including Dr. Daniel Marlowe, a professor of physics at Princeton, who coordinated testing and analysis provided by an engineering firm. The experts determined that a reduction of air pressure in a football between the start of the game and halftime is a natural result of footballs moving from warm locker rooms to chilly playing fields. The experts nevertheless determined that the drop in air pressure within the Patriots’ footballs was greater than the laws of physics could explain without the intervention of someone releasing air from the balls. The experts also concluded that a deliberate release of air was the only credible explanation for the greater reduction of air pressure in the footballs used by the Patriots than those used by the Colts.

The experts examined and ruled out a number of alternative explanations for the pressure drop, including natural leakage, the repeated insertion of inflation needles, defects in the gauges the officials used to measure pressure, the relative humidity in the rooms where the balls were stored, and rough handling of footballs during the game. In particular, the experts discounted the explanation offered by Patriots’ Coach Bill Belichick, who claimed during a press conference that the vigorous rubbing of footballs in preparation for the game accounted for their loss of pressure.

The investigation was based on interviews and a variety of evidence, including text messages between the locker room attendant and the assistant equipment manager discussing Brady’s displeasure with the degree to which footballs are inflated. The locker room manager called himself “the deflator” in one of the texts while other texts refer to an inflation needle that the assistant equipment manager said he would provide to the locker room manager. A video showing the locker room manager carrying a bag of footballs into a bathroom before he carried them onto the field was particularly decisive evidence. The expert evidence nevertheless contributed substantially to the investigative results by ruling out innocent explanations for the discovery that the footballs used by the Patriots were underinflated during the first half of the championship game.

Brady’s involvement was suggested by his gift to the locker room manager of an autographed jersey and two autographed footballs during the week before the championship game. The text messages also suggest that Brady knew of the plan to deflate the footballs. The suspicious timing of telephone calls between Brady and the assistant equipment manager immediately after concerns were raised about the football inflation level also contributed to the conclusion that Brady was at least generally aware of the plan to deflate the footballs. The report did not find sufficient evidence to accuse Brady of directly participating in the deflation conspiracy.

Expert Helps Brady’s Challenge

The NFL imposed a four game suspension on Brady. Brady appealed to NFL Commissioner Roger Goodell. At the appeal hearing, Brady testified that he knew nothing about a scheme to deflate footballs. He was unable to explain, however, what happened to the cellphone that he used on the day of the championship game. He said it was “missing” when the investigators asked to inspect text messages on that phone.

The player’s union, on Brady’s behalf, called Edward Snyder, a professor of economics and Dean of the Yale School of Management, as an expert witness. Snyder challenged the findings of Marlowe’s team. Snyder testified that Marlowe failed to factor timing into his analysis of the different pressure drops. The amount of time each ball spent in a warm locker room after being carried in from a cold field would affect the ball’s pressure. The Colts’ footballs were inspected after the Patriots’ footballs, and that reason alone would account for the Colts’ balls having higher pressure, but Snyder believed that Marlowe’s team did not account for the timing differences.

Two gauges were used to measure pressure at halftime and, since they consistently showed different results, Marlowe’s team applied an adjustment to account for the difference. Snyder faulted Marlowe’s team for failing to apply that same adjustment to the gauge used to measure ball pressure before the game started. Snyder concluded that had they done so, the pressure level in eight of the Patriots’ footballs would have been at an acceptable level.

Although Snyders’ interpretation of Marlowe’s test results was challenged on cross-examination, other experts have recently criticized the methodology used by Marlowe’s team. In the end, it is likely that Goodell placed more weight on text messages and video evidence than he placed on the scientific analysis. Goodell upheld the suspension.

Brady’s Court Case

Brady successfully challenged his suspension in federal district court. The court ruled that the NFL gave Brady no notice that “general awareness” of tampering with footballs or a failure to cooperate with the ensuing investigation would result in a suspension from play. The court also noted that the NFL violated Brady’s procedural rights by denying him access to evidence prior to his appeal hearing.

The NFL appealed and Brady’s case is now before a federal court of appeals. At this point, quarrels about expert opinions are less relevant than Brady’s contention that the NFL did not treat him fairly and that it failed to follow its own rules by imposing a four game suspension, rather than a fine, for his “general awareness” of football tampering.

Medical Malpractice Trial in Maine Hinges on Expert Testimony

Whether a jury in Maine will believe that Dr. Larry Labul committed medical malpractice while caring for 84-year-old Maxine Turner will likely depend upon how they evaluate the testimony given by competing medical experts. Their differences of opinion could not be more sharply drawn.

Malpractice Allegations

A wrongful death lawsuit filed by Maxine Turner’s estate alleges that Dr. Labul committed several medical errors before discharging Ms. Turner from Franklin Memorial Hospital in Franklin, Maine. Ms. Turner died three hours after the discharge.

Ms. Turner suffered from a number of health conditions that are common to a person of her age, including congestive heart failure, diabetes, and restless leg syndrome. She was on oxygen therapy to help her with her breathing.

Ms. Turner was admitted to the emergency room after she fell out of a chair. A doctor advised her to breathe deeply several times a day to clear her lungs so that she would not contract pneumonia. He also recommended that she wear a rib belt.

Ms. Turner’s family made sure that Ms. Turner followed that advice. They also arranged for 24-hour care as the doctor advised.

Five days later, Ms. Turner’s granddaughter observed that Ms. Turner was no longer breathing as deeply as she should. She was also falling asleep continually. The granddaughter called Ms. Turner’s doctor, who suggested that Ms. Turner might have pneumonia and that her medications might need to be adjusted if they were making her too sleepy. He advised the granddaughter to take Ms. Turner to Dr. Labul for treatment.

Dr. Labul read Ms. Turner’s records, administered some tests, and decided to treat her for chronic obstructive pulmonary disease after noting a deterioration of her oxygen saturation. The granddaughter testified that she asked about pneumonia but Dr. Lubal did not answer. Dr. Labul noted that Ms. Turner was hallucinating and prescribed a psychotropic medication.

Over the next three days, Dr. Labul gradually increased Ms. Turner’s oxygen intake from 2 to 6 liters per minute. He discharged Ms. Turner from the hospital when her oxygen saturation reached an acceptable level. Ms. Turner was still hallucinating at that time. Dr. Labul recommended that Ms. Turner should enter a nursing home or an assisted living center. She was released to a skilled nursing facility, where she died within hours.

Ms. Turner’s granddaughter was told that a medical review of Ms. Turner’s death would be held within 45 days and that she would be invited to participate. She did not hear back from the hospital and her requests for information went unheeded. She eventually received a letter stating that the investigation had been completed and that the hospital was not at fault.

The lawsuit faults Dr. Labul for failing to stabilize his patient’s breathing before discharging her to a nursing care facility. It also alleges that Dr. Lubal or the hospital made medication errors and that Dr. Lubal failed to diagnose Ms. Turner’s pneumonia.

Dr. Labul contends that he considered and ruled out pneumonia. No autopsy was performed to establish the cause of Ms. Turner’s death. That omission might be a difficult barrier for the estate to overcome.

Expert Testimony

Dr. Thomas Masterson testified as an expert witness for Ms. Turner’s estate. He questioned whether Ms. Turner actually suffered from chronic obstructive pulmonary disease, based on negative test results in her medical records some years earlier.

Dr. Masterson also noted that the dosage of Requip prescribed to treat Ms. Turner’s restless leg syndrome doubled after her admission to the hospital. Dr. Masterson testified that the dosage was excessive and that the medication error probably contributed to Ms. Turner’s hallucinations.

Finally, Dr. Masterson noted that Dr. Labul ordered an echocardiogram but discharged Ms. Turner before it was performed. Dr. Masterson testified that the combination of medical errors were causative factors in Ms. Turner’s death.

The defense countered with the expert testimony of Dr. Joseph Zibrak, a pulmonologist. Dr. Zibrak denied that Dr. Lubal’s treatment contributed to Ms. Turner’s death. He noted that Ms. Turner’s medical records showed that she had a history of chronic bronchitis and emphysema, and expressed the opinion that both diseases are a form of chronic obstructive pulmonary disease.

Dr. Zibrak thought it was unlikely that Ms. Turner died from untreated pneumonia, given the suddenness of her death. He also saw no connection between the death and the failure to perform the echocardiogram.

Another witness who testified on behalf of the defense, Dr. Howard Sachs, testified that Dr. Labul met and sometimes exceeded the standard of care that was appropriate for Ms. Turner’s treatment. After it considers the competing views of the plaintiff and defense experts, the jury will be asked to decide whether Dr. Labul and the hospital were responsible for Ms. Turner’s wrongful death.

Experts Testify in Heather Sims Murder Trial

Heather Sims’ murder trial has relied heavily on expert testimony. She was charged with shooting her husband to death in their home near Myrtle Beach, South Carolina. She testified that her husband, David Sims Jr., stabbed her in the stomach with a kitchen knife and cut her arm before she shot him in self-defense. David Sims died from a single gunshot wound to the chest.

The Crime Scene

David Sims’s body was found in the couple’s master bathroom. Sims was lying on his back with his arms raised above his head. A knife was laying in his hand. Crime scene analysts found no sign of a struggle in the home.

Police searched the home for David Sims’ cellphone but did not find it. The officer who conducted the search claimed she looked in every drawer but did not document those actions in the report she wrote. Heather Sims later gave the phone to the police, telling them that they missed it when they searched. The phone contained no record of calls made. The prosecution suggests that Heather Sims deleted the phone’s records to conceal incriminating evidence. Sims says she wiped the phone because she wanted to use it as her own after the police confiscated her phone.

Sims argued for immunity from prosecution under South Carolina’s Stand Your Ground law. That law prohibits the criminal prosecution of an individual who was not engaged in illegal behavior and who used deadly force against an attacker in a home or business. After a hearing, the judge decided that the murder charge should proceed to trial.

Expert Testimony Regarding DNA and Blood Patterns

Paulette Sutton, a forensic expert in blood patterns, testified for the prosecution. She said that there was no visible blood on the knife handle found in David Sims’ hand. She expressed the opinion that blood on his palm probably came from grabbing his gunshot wound. In Sutton’s view, the absence of blood on the handle proves that Sims could not have been gripping the knife after he was shot.

The defense attempted to undermine that testimony by calling DNA expert Adrienne Hefney, who testified that Heather Sim’s blood was on the blade of the knife that stabbed her, and that David Sims’ “touch DNA” was present on the handle. “Touch DNA” is DNA that is transferred to an object by touching it. He agreed that David Sims’ blood was not found on the handle. The defense argued that there was no evidence that David Sims grabbed his wound and pointed to the DNA on the knife handle as proof that David Sims had held the knife. If the knife had been planted in David Sims’ hand after he grabbed his wound, there defense argued, there would have been blood on the knife handle.

Sutton also testified that blood splatter patterns show that David Sims fell to his knees and then slumped forward. The prosecution pointed to that evidence to support the claim that Heather Sims moved the body in an attempt to construct a crime scene that supported her story. As the defense pointed out, however, Sims could have been alive and moving for several minutes after he was shot.

Expert Testimony Regarding Sims’ Wounds

Earlier in the trial, the prosecution called Dr. Werner Spitz as an expert radiologist. He testified he believed Heather Sims’ stomach wounds, as well as three cuts on her forearm, were self-inflicted because they were “superficial” in nature. The defense countered that opinion with testimony from expert radiologist Dr. Joshua Bryan Tew. Dr. Tew explained that “superficial” is a medical term that, in this case, means only that the wound “stayed superficial to the abdominal wall.”
In addition, Dr. Tew disagreed with Dr. Spitz’ opinion that the puncture wound in Heather Sims’ stomach was only 3 millimeters deep. He testified that a CT scan showed the wound was actually 35 millimeters deep, or about an inch-and-a-third.

Forensic pathologist Kimberly Collins also testified for the defense. She noted that Heather Sim’s stomach wound could have been serious since the knife blade pierced the abdominal wall. Collins disagreed that the wounds on Heather Sims’ arms were self-inflicted. She testified that the wounds were “classic” defensive wounds, the kind that victims sustain when they raise their arms to defend themselves from an attack.

The judge expressed doubts about the strength of the prosecution’s evidence, but decided that it was up to the jury to resolve conflicts in the evidence. Reaching a verdict will be challenging as the jurors weigh the conflicting expert opinions.

Expert Witnesses Debate Lord of the Rings Character Gollum in Turkish Criminal Trial

The Washington Post reports on a trial for a doctor in Turkey which provides an interesting use of expert witnesses by asking five experts to discuss the nature of the character Gollum.  The case arose when the defendant shared an internet meme comparing the Turkish president to the creature, potentially committing the crime of insulting the head of state.

Turkish Doctor Compares President to Gollum

Dr Bilgin Çiftçi of the Aegean province of Aydin in Turkey was arrested earlier this year for the crime of insulting a public official when he shared a meme on Facebook which compares Turkey’s president to the J.R.R. Tolkien created character Gollum.  Gollum has been portrayed in Lord of the Rings and Hobbit movies as a computer-generated creature with wispy hair, sharp and rotting teeth, large ears, and a pale skinny body shape – an image very few associate with attractive or handsome.  The creature’s mannerisms are barbaric, childlike, and uncivilized, Gollum has been widely considered by many to be an antagonist to the main characters of Tolkien’s story having pursued both Bilbo and Frodo Baggins as they held possession of the One Ring which he desired.  Although Gollum had moments of character conflict which resulted in helpful behavior towards Frodo, many of his actions seem to be driven by a single-minded and evil plan to obtain the Ring for himself, often at the expense of the lives of those who were charged with destroying it.

Given the commonly held negative view of Gollum – particularly in terms of physical appearance and mannerisms – Turkish officials responded to the Facebook post by arresting Dr. Çiftçi and accusing him of insulting the president with a meme which showed three pictures of Turkish President Recep Tayyip Erdogan side by side with three pictures of Gollum and text pointing out the similarities.  In response to the accusation, Çiftçi has argued comparing the Turkish president to the creature Gollum is not an insult because Gollum can be viewed as a good guy or even a hero by many fans of the Lord of the Rings series.  To evaluate the quality of this defense the court will rely on testimony from five expert witnesses who will discuss the full implications of a comparison to Gollum.

Expert Witnesses Debate Gollum Comparison

According to Çiftçi he was not insulting President Erdogan when he compared him to Gollum because the character’s position as a villain is questionable.  Çiftçi pointed out that Gollum was most commonly allied with the protagonists in the story as a guide, and even was the one who caused the ring’s destruction – even though he did so inadvertently by biting off Frodo’s finger before falling to his death in the fires of Mount Doom with the ring in hand.  Çiftçi’s attorney asked for the chief judge presiding over the case to provide an analysis of Tolkien’s complex character, and the judge, who admitted he was not familiar with the Lord of the Rings lore, responded by calling for a panel of expert witnesses to evaluate Gollum’s nature.

The panel of experts who will evaluate what is being called “the pride of Gollum” will consist of two academics, two behavioral scientists, and one cinema production expert.  These experts will review all writings and film adaptations associated with J.R.R. Tolkien’s Gollum character and issue an opinion to the Turkish court which will be used to determine whether or not Çiftçi’s Facebook post will be considered an insult punishable by jail time.

High Stakes in Gollum Expert Witness Analysis

Gollum’s character died in 1955’s Return of the King, and Tolkien followed in 1973, so the outcome of Turkey’s Gollum expert analysis will not matter to those whose character is under question.  However, for Dr. Çiftçi the analysis will be critically important.  If the Gollum expert witness panel determines the comparison was insulting the doctor faces up to two years in a Turkish prison.  Although prosecution for comparing a president to a fictional character is a strange concept here in the US, the Erdogan administration has developed a notorious reputation for aggressively pursuing citizens who insult him with 105 indictments for the crime of insulting the head of state since August of 2014.

Commenting on use of expert witnesses outside of the American legal system is not common, but this case – while humorous to some respect – highlights the necessary variety of expert opinions in trials across the globe.

Accident Reconstruction Experts Testify in Wrongful Death Trial

Accident reconstruction experts who testified in a wrongful death trial provided differing opinions about responsibility for a 2012 traffic accident that claimed the life of an 84-year-old man in Anniston, Alabama. A lawsuit filed by William Curry’s estate claimed that a speeding police officer negligently caused the crash. Attorneys for the city argued that the accident was Curry’s fault.

Trial testimony unfolded over 5 days in Calhoun County Circuit Court. A few fundamental facts were uncontested. Officer Thomas Anthony Gassaway, who subsequently left the employment of the City of Anniston, observed a car driving at 62 mph on a street that had a 35 mph speed limit. Gassaway pursued the speeding car.

As Gassaway traveled through an intersection, he collided with Curry’s car. Curry died 78 days after the collision.

Disputed Facts

Most of the critical facts concerning the cause of the accident were disputed. A key issue was whether Gassaway activated his lights and siren. An Alabama law requires police officers to use their flashing lights and sirens when they exceed the speed limit while pursuing a suspect. Gassaway claimed he flipped the switch that activated the lights and that an airbag struck him as soon as he did so.

Gassaway’s testimony seemed to find support in photographs of the accident scene showing the switch for the lights and siren in the “on” position. However, none of the witnesses to the accident saw the squad car’s lights or heard its siren.

Roy Bennett, Anniston Police Department’s lead traffic homicide investigator in 2012, took the pictures. He testified that he did not touch the switch after the accident and said he had “no reason to believe” that anyone else did so.

Video from the squad car’s dash camera might have shed light on the facts surrounding the accident, but no video was available. Gassaway testified that he was “informed that during the accident, the sudden loss of power corrupted the video.” The conveniently erased video, combined with evidence that the squad car’s lights and siren did not activate even though the switch was in the “on” position, may have caused the jury to doubt the credibility of the city’s accident investigation.

Curry’s Expert

In addition to eyewitnesses, lawyers for the Curry estate relied on the expert testimony of Georgia State Patrol Sgt. Tommy Sturdivan, who operates an accident reconstruction business. Sturdivan used digital technology to recreate the accident scene. He gathered data from modules in each vehicle that recorded the speeds at which they were traveling.

Sturdivan testified that Curry would have had ample time to cross the intersection if Gassaway had been driving at the speed limit. According to Sturdivan, it would not have been necessary for Curry to yield to Gassaway if Gassaway had been traveling at 35 mph.

Data from the module in the squad car revealed that Gassaway was driving at 61 mph, slowing to about 50 mph as he approached the intersection. The lawyers for Curry’s estate argued that Curry had no way to know that Gassaway was traveling so fast since Gassaway neglected to activate his lights and siren when he began to chase the speeder.

Sturdivan testified that an officer’s lights and siren are meant to protect the public by providing a warning that an officer is traveling above the speed limit. Sturdivan also testified that Gassaway was exceeding the speed limit for at least 6 seconds before he entered the intersection. According to Sturdivan, that have Gassaway ample time to warn cross-traffic by activating his lights and siren.

Sturdivan questioned whether a power loss during the crash would have wiped the digital recording made by the dash cam computer. He testified that camera data is written to a hard drive and then transferred to removable storage after the lights are turned off. Even if the removable disk was blank, the data should still have been on the hard drive. When he asked to inspect the hard drive, however, he discovered that all of the recording equipment had been removed from the car. The city apparently failed to preserve that evidence for use in the trial.

City’s Expert

Testifying as a reconstruction expert for the city, Pam Stirling told the jury that Curry caused the accident. Based on her review of the information in the module attached to Curry’s car, Stirling concluded that Curry “gunned it” (accelerated quickly) as he tried to cross the intersection. She inferred from that data that Curry saw Gassaway coming and tried to beat him across the intersection. She testified that Curry should instead have yielded to Gassaway.

Stirling acknowledged that Gassaway’s high rate of speed contributed to the severity of the crash, but she denied that it caused the crash. She also expressed the opinion that any violation of the state law requiring Gassaway to activate his lights and siren was not relevant to the accident.

The Verdict

Even if Curry’s negligent conduct contributed to the accident, the jury was instructed that it could overlook that negligence if Gassaway engaged in wanton behavior. The attorneys for Curry’s estate argued that Gassaway’s failure to comply with state law by activating his lights and siren before speeding constituted wanton behavior.

The city relied heavily on its expert in arguing that Gassaway was in the process of activating his lights and siren and that the accident would not have occurred if Curry had not tried to beat Gassaway across the intersection. The jury evidently found the testimony of the estate’s expert to be more persuasive. It returned a verdict in favor of Curry’s estate for $500,000.

Technology Used by DNA Expert Witnesses Faces Scrutiny from Defense Attorneys

Law-enforcement and defense attorneys in Pennsylvania have engaged in a legal battle over technology used by DNA expert witnesses to narrow down suspects and identify criminal defendants.  Use of a computer program which unravels DNA inter-mixed at crime scenes has been disputed by defense lawyers who do not have access to its programming source code.

DNA Experts in Pennsylvania use High Tech Program

Over the last few years technology has emerged which allows law-enforcement officials to parse through mixed DNA samples taken from crime scenes in order to positively identify a single suspect.  TrueAllele, developed by the Pittsburgh-based company Cybergenetics, is able to infer a genetic profile from DNA and match it with large databases in order to provide police and prosecutors with positive matches.  According to the TrueAllele website, the technology reduces the chances of misidentification, operates without bias against certain suspects, and meets all legal and scientific guidelines for reliability.

The software is billed as a DNA identification tool for use by police investigating sexual assault, homicide, property crimes, and mass disasters.  In each case the TrueAllele software is able to single out “major and minor contributors” to the incident with the goal of assisting law-enforcement in identifying, arresting, and prosecuting parties responsible for criminal activity.  TrueAllele has been widely used in at least six states across the country including New York and Pennsylvania, but recently defense attorneys have pushed back against the software because expert witnesses who use it are unable to provide details about how the program works.

TrueAllele DNA Identification Software Challenged by Defense Attorneys

Defense attorneys who have been involved in cases where TrueAllele was used to connect defendants to a crime argue that secrecy surrounding the software combined with its impact on jurors violates suspect’s constitutional right to be considered innocent until proven guilty.  Citing a phenomenon known as the “CSI effect” concerned defense attorneys point out jurors not only expect scientific evidence, but place heavy reliance on it when making final verdict decisions.  The impact of DNA expert witnesses using TrueAllele on trials is significant, and with the software’s creators refusing to provide defense attorneys with the source code some attorneys questioning the legitimacy of the program’s use in criminal cases.

According to TrueAllele creator Mark Perlin, the program’s source code is a protected trade secret, but defense attorneys should be satisfied with its validity because of the software’s repeated use in trials to both identify guilty subjects and exculpate innocent ones.  Additionally TrueAllele has survived intense peer-review scrutiny by top DNA and computer program experts who attest to the software’s ability at accurately identifying DNA matches when crime scenes contain samples which make identifying one individual difficult.

Defense attorneys are not convinced, however, and argue the risk of miscodes or inaccuracies in TrueAllele’s source code can result in false convictions of innocent defendants.  Without access to the underlying code in a program DNA expert witnesses are citing to positively make matches that jurors will heavily rely on in their verdict decision, defendants arguably are not given a fair opportunity to challenge the evidence presented against them.

DNA Expert Witness Software Faces Legal Challenge

Defense attorneys for a man accused of murder in Pennsylvania have challenged the admissibility of TrueAllele evidence presented by a DNA expert witness by arguing the validity and methodology of the measure cannot be verified without access to the underlying source code.  Suspicion surrounding TrueAllele is driven by an announcement by the FBI in May that work done by forensic expert witnesses working for the agency on thousands of cases may be inaccurate due to faulty DNA identification software.  With the integrity of thousands of convictions at risk due to errors in DNA matching, defense attorneys are understandably suspicious of a software program with source code they cannot independently verify.

Despite the arguments against the use of DNA experts using TrueAllele, the software has been accepted in a number of criminal trials as reliable and scientifically valid evidence for expert witnesses to use when explaining forensic analysis to jurors.  TrueAllele has a short history, but its gaining acceptance indicates the software has been vetted more thoroughly than the programs which created errors for FBI expert witnesses.  Whether or not defense attorneys gain access to the source code, the use of TrueAllele by DNA expert witnesses seems likely to expand as trials increasingly rely on forensic analysis for reliable evidence.

Facebook Killer Trial in Florida Features Expert Witness Testimony

The trial of the “Facebook killer” in Miami, Florida has turned to expert witnesses on both sides who will argue over questions about forensic evidence and the defendant’s mental state at the time of the crime.  The case, which gained national attention due to a graphic Facebook image posted by the killer, will likely turn on the ability of attorneys on both sides to use expert testimony effectively during the trial.

Facebook Murder Trial Underway in Miami

In 2013 Derek Medina was arrested for fatally shooting his wife after he posted a graphic photo of her dead body on his Facebook webpage.  Prosecutors allege Medina murdered 27-year-old Jennifer Alfonso by shooting her eight times during an argument between the couple before he uploaded the picture onto Facebook.  According to witnesses who knew the couple, Medina and Alfonso had a contentious on-again-off-again relationship which featured a marriage, a divorce, and a re-marriage before the fatal argument took place two years ago.

Medina has not denied killing his wife, but responded to the allegations by claiming he acted in self-defense on the night of the murder.  Attorneys for Medina told jurors during opening arguments Alfonso abused drugs, battered her husband, and engaged in Satan worship which caused the defendant to fear for his life.  According to Medina, who was an undefeated 200-pound amateur boxer, his wife had been attacking him at the time of the shooting which caused him to react aggressively in fear for his life.

Both sides have submitted expert witness testimony to present during the course of Medina’s trial which will analyze forensic evidence at the crime scene and Medina’s state of mind in order to present jurors with a complete analysis of the facts surrounding Jennifer Alfonso’s death.

Forensic Expert Witnesses Take Stand in Facebook Killer Trial

After showing jurors graphic photos to introduce them to the scene inside the home Medina and Alfonso shared, prosecutors told jurors the victim never attacked the defendant and was not killed justifiably in self-defense.  To bolster their argument, the prosecution called a crime scene investigator expert witness who was first to respond to the scene of the crime and gather evidence of the murder.  The forensic expert told the court that evidence from the crime scene was consistent with the prosecution’s theory Jennifer Alfonso was attempting to cower away from Medina at the time she was killed and not attacking him as the defendant claimed.

To reinforce the argument, prosecutors called Miami-Dade Crime Scene Detective Anabella Pasqua as a crime scene expert witness.  On the stand, Det. Pasqua told the court, “My conclusion was that the source of the bloodshed was stationary and the source of the bloodshed was also lower than the area where the blood spatter was located.”  Detective Pasqua’s conclusions are also consistent with the prosecution’s theory that the victim was cowering down in a corner of the kitchen in a stationary position while the defendant shot her eight times.

Defense attorney Saam Zangeneh vigorously questioned both of the prosecution’s expert witnesses on crime scene analysis by pointing out flaws in their investigation techniques, including the failure to analyze blood splatter on a kitchen rug which could support the defendant’s claim that the victim had been the initial aggressor.  With the prosecution wrapping up its case early this week, defense attorneys for Medina will open their case with an expert witness in battered spouse syndrome.

Battered Spouse Syndrome Expert Witness to Testify in Facebook Murder Case

Before the second day of Derek Medina’s murder trial Judge Yvonne Colodny announced she would reverse an earlier decision and grant the defense’s request for an expert witness on battered spouse syndrome to testify.  Judge Colodny had initially denied the request for a battered spouse expert witness because she was concerned the expert would make conclusions about the facts of the case, but after reconsidering the motion she told defense attorneys they will be permitted to call their expert under strict conditions.

According to Judge Colodny the defense expert will be permitted to explain to jurors the nature of battered spouse syndrome, but will not be allowed to discuss the facts of Medina’s crime.  The battered spouse expert witness will only be able to testify in hypothetical terms which will allow jurors to better understand the conditions which allegedly satisfy battered spouse syndrome without having their opinion swayed by an expert’s conclusion about whether or not Medina legally acted in self-defense when he shot his wife.

The defense will present its case later this week when the prosecution has rested.  Prosecutors spent several days presenting testimony from police investigators who visited the scene and spoke with Medina after the crime before showing jurors surveillance footage which suggested Alfonso was not aggressive at the time of the shooting.  Defense attorneys have not announced if Medina will testify, but will use experts in an effort to show jurors the victim was not stationary during the argument and the defendant’s state of mind was impacted by years of abuse to make him believe he was defending himself.