Category Archives: ExpertWitness

Expert Witnesses Do Not Always Need a College Degree

Many experts have advanced degrees in specialized fields, but other experts gained their knowledge through experience. Rule 702 of the Federal Rules of Evidence permits expert testimony that will help the jury if the expert is qualified “by knowledge, skill, experience, training, or education.” Most states follow a similar rule.

Experience in the kitchen was enough to qualify a cookie expert to testify in a case from Hawaii that an attorney recently discussed in The Ukiah Daily Journal. The case involved a lawsuit that Big Island Candies, Inc. brought against The Cookie Corner, alleging that The Cookie Corner improperly copied its cookie design. In its defense, The Cooker Corner presented sworn statements from a number of cookie experts, including Wally Amos, better known to cookie lovers as Famous Amos.

The Cookie Design Dispute

According to the court decision, Big Island marketed “a rectangular macadamia-nut shortbread cookie with ‘bull-nose’ (i.e., rounded) corners that is diagonally dipped in chocolate.” The court expressed no opinion whether the cookie is as delicious as it sounds.

Big Island did not accuse The Cookie Corner of copying the cookie’s recipe, but of stealing the cookie’s design. According to Big Island, covering only half the cookie in chocolate along a diagonal line that ran from corner to corner, along with its rectangular shape and bull-nose corners, gave the cookie a distinctive appearance that it was entitled to protect. The Cookie Corner’s version of the cookie was nearly identical, except that its cookie was slightly larger.

The case turned on whether the cookie’s design was inherently distinctive and therefore protectable by intellectual property laws. If Big Island’s cookie was a generic design, The Cookie Corner had as much right to use it as Big Island and Big Island was not entitled to claim that its design had been copied.

A generic design is one that relies upon basic product features that are common to most similar products. The size and shape of cookies, for example, are usually basic design features because most cookies share similar sizes and are made in one of a few common shapes. A design is deemed generic when it is so common that consumers do not identify it with a particular manufacturer. A distinctive design, on the other hand, is not only unique but is intended to make consumers associate the design with a particular brand.

Expert Cookie Opinions

To apply these rules to chocolate-covered macadamia nut shortbread cookies, the court turned to the expert evidence that Big Island and The Cookie Corner supplied. Big Island offered expert survey evidence from researchers who showed the cookie to consumers and asked if they knew who made the cookie. Roughly a quarter of the consumers associated the cookie with Big Island, but that evidence did not persuade the court that consumers thought the cookie design’s primary significance was its ability to help them distinguish Big Island cookies from other brands. Besides, consumers could see the name “Big Island Candies” on the cookie wrapper, which likely helped them identify the manufacturer more than the cookies’ design.

Big Island also offered expert evidence from a seller of cookie-making machines who testified that he “could not recall” seeing other brands of shortbread cookies that were half-covered with chocolate on a diagonal. Since that failure of recollection did not refute the testimony provided by The Cookie Corner’s experts, the court held that it did not establish the distinctiveness of the Big Island design.

The Cookie Corner, on the other hand, offered the opinions of several experts “with extensive training and experience in the baking and cookie industries.” Those experts (including Wally Amos) offered opinions that the size, shape, and diagonal chocolate coating of Big Island’s cookie were widespread design features that are commonly used in the cookie industry. The court ruled in favor of The Cookie Corner because its expert evidence was essentially unrefuted.

Cookie Expert Qualifications

Big Island argued that The Cookie Corner’s experts were not qualified to provide expert evidence because they did not have adequate credentials. In particular, Big Island asked the court to discount Wally Amos’ opinion because he “did not graduate from high school and because he does not have a degree in a culinary field.”

The court noted that Rule 702 does not require experts to have formal degrees. Expertise can be acquired by on-the-job experience. Wally Amos founded the Famous Amos Cookie Company, has traveled extensively to meet with cookie makers and bakers, and has acquainted himself with hundreds of cookie recipes. The court had no trouble accepting Amos as a cookie expert based on his extensive experience in the cookie industry.

Medical Expert Witnesses Duel in Child Abuse Murder Trial

Expert witnesses in child injury and abuse disagreed with each other on the stand this week as both prosecutors and defense lawyers relied on medical experts in the murder trial of a Madison, Wisconsin man accused of killing his girlfriend’s 5-year-old son.  During the course of this week’s testimony, expert witnesses dueled on the nature of the child’s injuries and the cause of his tragic death.

Wisconsin Man Charged with Killing 5-year-old

Dakota Black, 25, has been charged with first degree reckless homicide in the death of 5-year-old Brayden Turnbill who died from severe brain injury.  According to prosecutors Black was responsible for watching Turnbill, his girlfriend’s son, when the child came home from school, during which time he fatally abused the boy.  Turnbill was found unconscious by his mother when she returned from work, and was unresponsive to efforts to revive him.  He died in the hospital three days later.

After investigating the incident and talking to the medical examiner, prosecutors formally charged Black alleging that he abused the child so severely that Turnbill suffered fatal brain injuries.  In order to support their contention that Turnbill’s injuries were caused by physical abuse by Black instead of an accidental fall as the defendant claimed, prosecutors called a variety of medical expert witnesses who alleged the boy’s injuries were the result of child abuse.

Prosecution Expert Witnesses Testify to Signs of Child Abuse

Early in the Dakota Black homicide trial, prosecutors called to the stand medical examiner Kristin Roman who was responsible for examining Brayden’s body after his death.  According to Dr. Roman, the contusions suffered by the child were not suggestive of an accidental fall, but instead were consistent with signs of child abuse.  Dr. Roman told jurors that Brayden Turnbill died of blunt force trauma that was not accidentally caused.

The next medical expert witness to testify for the prosecution was Dr. Barbara Knox of the American Family Children’s Hospital Child Protection Program who testified that Brayden was likely unconscious at the time of his injuries and did not have a period of awareness between the time his head trauma occurred and his injury.  Dr. Knox, who was present for surgery that attempted to save Brayden’s life, told jurors that the nature of his injuries suggested the brain damage occurred immediately after he suffered a physical blow to the head.  The timing of Brayden’s injuries is critical because defense attorneys for Black allege that the boy could have suffered the trauma at any time – including the period before Black had sole responsibility for watching him.  In response to questioning about the possibility that Brayden’s injuries could have happened before a traumatic event, Dr. Knox held firm and reiterated that in her expert medical opinion the nature of the boy’s injuries precluded a lucid interval between the blunt force and his brain damage.

Finally, prosecutors called to the stand Dr. Wilbur Smith, a pediatric radiologist who is an expert in blunt force trauma.  Dr. Smith, who has testified as an expert witness in over 100 child abuse trials across the country, told jurors, “This was a very major injury, so it would have taken a lot of force to cause this injury.”  Going further, Dr. Smith said that it was highly unlikely that the force required to cause Brayden’s injuries was accidental because it was so severe.

After the prosecution closed its expert witness heavy case, defense attorneys for Dakota Black mounted a response with an expert witness to counter the assertion that Braydon’s injuries were definitely caused by child abuse.

Defense Uses Expert Witness to Counter Claims of Child Abuse

Defense attorneys for Dakota Black began their case by calling Dr. John Plunkett to the stand to counter prosecution experts who told jurors it was highly unlikely that Brayden Turnbill’s injuries were accidental.   Dr. Plunkett, an experienced expert witness in the field of forensic pathology who has testified in more than 150 trials, told jurors that Brayden could have died from an accidental fall and questioned the validity of the prosecution experts’ conclusions.

Dr. Plunkett directly contradicted testimony from Dr. Knox and told jurors that it was possible Brayden experienced a lucid interval between the trauma that caused his injury and the severe brain damage that he suffered.  Under Plunkett’s theory, Brayden could have been injured at any time – even the time before Black had sole responsibility for the boy’s care.  Dr. Plunkett further testified that the boy could have had a latent injury in his brain that was aggravated by significantly less force than other expert witnesses said was required for Braydon’s fatal injury.  Although Dr. Plunkett did not hypothesize about a cause of death, he told jurors that it was reasonable to doubt conclusions that Braydon Turnbill died of intentionally caused blunt force trauma.

Expert Witness Will Be Allowed to Explain Alleged Victim’s Recantation

Expert witnesses are commonly called by both the prosecution and defense to testify concerning accusations that a defendant sexually assaulted a child. Defense experts usually explain why children are susceptible to influence that may cause them to believe that false accusations of sexual assault are actually true. Prosecution witnesses include medical experts who testify that certain injuries are consistent with sexual abuse, as well as experts in child psychology who explain why children delay reporting incidents of sexual abuse.

A federal prosecutor in a Pennsylvania trial wants to have an expert explain why children might make truthful accusations of abuse and later recant them. The defense unsuccessfully objected that the expert, who has never interviewed the alleged victims, should not be allowed to testify.

Allegations in the Maurizio prosecution

Although sex offenses are typically state crimes rather than federal offenses, Rev. Joseph Maurizio, a former priest at Our Lady Queen of Angels Parish in Central City, Pennsylvania, has been charged with eight federal crimes concerning the alleged abuse of children in Central America. The crimes include traveling to a foreign country to engage in illicit sexual contact with a minor, possession of child pornography, and transporting money out of the country for an illegal purpose.

Father Maurizio allegedly had illicit contact with minors over a ten year period during his visits to orphanages in several Central American countries. The indictment focuses on a six year period during which Father Maurizio visited an orphanage in Honduras. Alleged victims reportedly told Homeland Security agents that Father Maurizio had sexual contact with minors, offered them money or candy for sexual favors, and attempted to take nude photographs of them. Father Maurizio was relieved of his duties in September 2014, after federal agents seized computers and electronic storage devices from his parish home and chapel.

The Child Sexual Abuse Accommodation Syndrome controversy

The prosecution proposes to call a clinical psychologist, Veronique Valliere, as an expert witness. Although federal procedural rules require the nature of proposed expert testimony to be disclosed in advance of trial, there is some dispute as to exactly what Valliere will say if she testifies.

According to the defense, Valliere is expected to testify about the Child Sexual Abuse Accommodation Syndrome (CSAAS). That controversial syndrome, developed to account for the behaviors of sexually abused children, purports to explain why abuse victims delay reporting or fail to report incidents of sexual abuse and why they retract truthful accusations.

Critics of CSAAS argue that the syndrome is meaningless because it suggests that reporting, failing to report, and denying sexual abuse are all evidence of sexual abuse. Critics suggest that CSAAS ignores the possibility that a child delayed reporting abuse, denied abuse, or recanted a past allegation of abuse because the abuse never happened. Advocates of CSAAS, on the other hand, argue that the syndrome provides a scientifically valid explanation of the behaviors of child sexual assault victims.

Court decisions concerning the admissibility of CSAAS have been mixed. Whether they apply the Frye or the Daubert standard for the admissibility of expert testimony, most courts have guardedly permitted experts to base testimony about the reaction of children to sexual abuse on CSAAS research, at least when the defense relies upon delayed reporting or recantation to attack the accuser’s credibility. Courts generally conclude that the testimony is helpful since most jurors do not have firsthand experience upon which to base judgments about how children react to sexual abuse.

At the same time, courts generally hold that experts cannot themselves assess the credibility of alleged abuse victims, since that assessment can only be made by a jury. Some courts instruct jurors that testimony about CSAAS is being admitted solely to show that a victim’s recantations are not necessarily inconsistent with having been molested, not as proof that the recantation is truthful.

A minority of courts have concluded that CSAAS is not generally accepted by the scientific community and that CSAAS is therefore inadmissible, or that that testimony based on CSAAS creates an unacceptable risk that jurors will view the expert testimony as evidence that abuse actually occurred. As the Iowa Court of Appeals noted, there is “a very thin line” between an admissible expert opinion that helps a jury evaluate a child’s testimony and an inadmissible expert opinion that the jury will take as substantive proof of a defendant’s guilt.

The prosecution’s response

The prosecution in Father Maurizio’s case wants Valliere to testify in its case-and-chief, not as a rebuttal witness to rehabilitate any child witnesses who recant. The defense argued that the prosecution’s tactic amounts to using CSAAS evidence as proof of the defendant’s guilt.

The prosecution denies that Valliere will testify about CSAAS. The defense suggested that Valliere will rely on CSAAS even if she does not identify the syndrome by name. The defense also argued that Valliere has never interviewed the children and that no studies have validated CSAAS in children from Honduras, who may (for cultural reasons) respond to sexual abuse in ways that differ from American children.

The court denied a defense motion to exclude Valliere’s expert testimony. Father Maurizio’s trial is scheduled to begin in September. It is expected to last three weeks. The defense may decide to call its own expert to counter Valliere’s testimony.

Psychology Expert Witnesses Testify in Colorado Murder Sentencing Trial

A Colorado man convicted of murdering five people outside of a bar avoided the death penalty when jurors found sufficient mitigating factors to believe he deserved jail time instead of execution.  In part, the jury was influenced by psychology expert witnesses presented by the defense during the sentencing phase who testified that the defendant’s history of childhood abuse warped his worldview and decision-making.

Colorado Man Convicted of Murder for Stabbing Death of Five People

In mid-August a Colorado jury found Dexter Lewis guilty for murdering 5 people outside of a Denver bar in 2012.  Lewis was convicted of stabbing his victims multiple times during what prosecutors called an act of rage and savagery.  Lewis allegedly went to the bar with intent to rob it, but instead acted violently against the bar’s owner and four patrons before lighting the building on fire with their bodies inside.    Throughout the trial, prosecutors showed grisly pictures of the scene to paint Lewis as a vicious and remorseless killer which convinced jurors that he was guilty of the crimes committed.

After the verdict was announced, jurors prepared to pass judgment in the second phase of the trial which would determine an appropriate sentence.  In an effort to reinforce the extreme nature of the crime, prosecutors again highlighted the visual evidence taken from the scene as they argued Lewis deserved to be put to death.  Defense attorneys for Lewis countered by telling jurors about the defendant’s history of suffering abuse at the hands of his mother and step-father in the gang influenced environment where he grew up.  Lewis’s attorneys called two psychology expert witnesses to use his challenged background as a mitigating factor that would help him avoid execution.

Psychology Expert Witness Testifies about Effect of Childhood Abuse

During the sentencing phase for the Dexter Lewis murder trial, prosecutors attempted to convince jurors that the brutality of the defendant’s actions was severe enough to warrant the death penalty.  Defense attorneys for Lewis countered that the abuse the defendant suffered during his childhood effected his brain development and altered the way he perceived the nature of his actions.  Prosecutors objected to the use of psychology expert witnesses by arguing it was up to the jury to identify mitigating factors, but both of Lewis’s experts took the stand during his sentencing phase.

First to testify for Lewis was Dr. Bruce Perry, a psychiatrist who is an expert on the effects of childhood trauma on development.  During his testimony, Dr. Perry spoke about how abuse, particularly abuse by a parent, alters the way children develop and can explain why they would grow into violent adults.  Perry, who founded the Child Trauma Academy in Houston, Texas, told jurors that abuse during the period when children form relationships that help dictate how they view the world leaves executive function of the brain impaired.  Dr. Perry concluded his expert testimony by telling jurors that impaired development can cause children to grow up without impulse control or the ability to regulate emotions in stressful situations.

Although Dr. Perry did not work with Lewis personally, his testimony showed jurors that people who suffer the abuse and neglect that Lewis suffered could become violent due to lack of brain development.  To directly connect Lewis’s condition with Perry’s testimony, defense attorneys wrapped up their case by calling a clinical psychologist who analyzed the defendant’s mental state.

Clinical Psychologist Expert Witness Takes Stand for Dexter Lewis

Mark Cunningham, a clinical psychology expert witness, took the stand last as defense attorneys for Dexter Lewis argued the defendant did not deserve the death penalty.  Cunningham echoed the expert testimony from Dr. Perry by pointing to the long term effects that regular abuse has on children, and showed jurors that the sustained and severe abuse that Lewis suffered throughout his childhood impaired his ability to make reasonable decisions and control violent impulses.  Although Cunningham was not permitted to testify about the content of his interviews with the defendant, he told jurors that Lewis’s history of physical and emotional abuse would have a severe impact on the developmental process.

Ultimately the jury agreed that Dexter Lewis deserved leniency to avoid the death penalty, assuring that the defendant will instead spend the rest of his life in prison.  Use of psychology expert witnesses during a capital murder sentencing phase has become more commonplace, and attorneys for Dexter Lewis demonstrated that helping jurors understand the negative effects of childhood trauma can convince a jury to opt for life in prison instead of execution.

Psychology Expert Witness Testifies in Alabama Child Sex Abuse Case

Defense attorneys for an Alabama man convicted of sexually abusing a child younger than 6 have presented a psychology expert witness during the sentencing hearing in an effort to avoid a conviction for life without parole.  With hopes of persuading the judge to place the convicted defendant to a program for sex offenders rather than prison, the expert argued the man’s personal history and mental state warranted a more lenient sentence.

Alabama Man Convicted of Child Sex Abuse

Emanuel Yarbrough, 34, was convicted in August for first-degree sodomy and first-degree sexual abuse for sex acts he perpetrated on a 5-year-old-girl.  A former missionary, Yarbrough argued throughout his defense that he did not clearly remember the act or recognize that he was having sex with a child.  Yarbrough argued that he did not engage in the sexual activity in the Alabama County where he was ultimately convicted, and told jurors that he couldn’t differentiate between the young girl and his wife. Yarbrough went on to state that the girl did not tempt him, and was confused during the times that he allegedly committed the acts.

Prosecutor Jayme Amberson wasted no time in pointing out inconsistencies in Yarbrough’s account, and reiterating to the jury that several witnesses – including the victim – testified that the sex acts happened frequently and in the county where Yarbrough stood trial.  Jurors needed just 25 minutes to return with a guilty verdict, setting up a sentencing hearing where Yarbrough’s attorneys turned to a psychology expert witness in an attempt at earning their client leniency.  Alabama law requires any defendant convicted of sexual abuse with a child under 6 to be sentenced to life without parole, but Yarbrough’s defense team is hoping that an expert analysis of his psychological state of mind will convince the judge that a sex offender program is the more appropriate punishment.

Convicted Sex Offender Turns to Psychology Expert Witness

During the sentencing hearing for Emanuel Yarbrough, his attorneys called forensic psychologist Frankie Preston to testify on the findings of a psychological survey he conducted on the defendant while he was in jail.  According to Preston, the tests he administered Yarbrough are designed to determine his degree of mental stability at the time of his crime.  During his expert testimony, Preston told the court, “Mr. Yarbrough endorsed experiencing symptoms that were indicative of five of those psychiatrically coined diagnoses — major depressive disorder, post-traumatic stress disorder, obsessive compulsive disorder, generalized anxiety disorder, and somatization disorder.”

Preston went on to testify that the mental disorders Yarbrough suffered had their origins from his family history of abuse which featured similar crimes committed by his father and brother.  Further, in Preston’s expert opinion, Yarbrough likely exhibited the symptoms prior to his incarceration during the time when he committed his sexual crimes.  Tests also showed that Yarbrough was sexually attracted to adult females and older teenage girls, which is not considered abnormal according to Preston.

During cross examination, Preston suggested that Yarbrough may be eligible to complete a program that he runs for sex offenders which provides treatment before releasing them back into society.

Judge to Mull Prison or Sex Offender Treatment in Alabama Child Sex Abuse Case

Although the mandatory penalty for committing  sex offense against a child younger than 6 in Alabama is life in prison without possibility of parole, Emanuel Yarbrough’s attorneys have argued that the punishment is unconstitutionally harsh, and that their client is better suited for a treatment program operated by their forensic psychology expert witness.  During questioning about the programing, the expert Frankie Preston admitted that some offenders have re-offended afterwards, but that he and his staff engage in regular follow-ups to minimize post-treatment sex crimes.

The judge will weigh the nature of Yarbrough’s crimes against the psychological factors discussed by the defense expert witness to make a final sentencing decision in the coming days.

Boston Nanny Freed After Expert Witness Report Disputes Cause of Infant’s Death

An Irish woman in Boston who was accused of causing the death of a child under her care earned relief last week when prosecutors dropped all charges against her due to medical expert witness reports that cast doubt on the infant’s cause of death.  Although the child’s death was initially ruled a homicide by medical examiners, expert witness analysis cast sufficient doubt into the cause of death determination that the defendant was released from custody and cleared of wrongdoing.

Irish Nanny Jailed for Causing Death of Infant

Aisling Brady McCarthy, now 37, was arrested in January, 2013 for allegedly causing the death of a one-year-old Rehma Sabir who was under her care.  McCarthy, an Irish national living in the US, was the girl’s nanny when the child died of apparent head injuries shortly after her 1st birthday.  According to prosecutors, the girl suffered from hemorrhaging and swelling of the brain and had evidence of multiple bone fractures.  Police also found blood stained baby wipes, blankets, and pillows in the child’s bedroom during the course of their investigation.

McCarthy was jailed immediately after her arrest, and has spent the past two years behind bars awaiting trial for murder.  Shortly after the investigation into Sabir’s death, a Massachusetts medical examiner examined the evidence and ruled the child was a victim of homicide.  According to the examiner, Sabir showed signs of shaken baby syndrome – which pointed police and prosecutors to her nanny.  McCarthy was arrested and formally charged with murder despite her insistence of innocence.

During the past two years, attorneys for McCarthy have worked to gather expert witness analysis of Sabir’s death in an effort to convince prosecutors that the infant suffered from severe medical complications that suggest the cause of death was accidental rather than intentional. 

Prosecutors Drop Case against Boston Nanny after Reviewing Expert Witness Reports

After more than two years of investigation, the office of the Massachusetts medical examiner was provided with expert witness reports submitted by medical experts who reviewed Sabir’s death and cast doubt on the conclusion that the child died by the defendant’s actions.  According to the expert witness report, Rehma Sabir had a history of bruising and was prone to easy bleeding when exposed even to relatively minor trauma.  The expert medical report submitted to prosecutors and the state examiner suggested the child may have had an undiagnosed disorder which caused her death.

After reviewing the expert reports, the medical examiner words were included in the prosecutors statement to the press, “Given these uncertainties, I am no longer convinced that the subdural hemorrhage in this case could only have been caused by abusive/inflicted head trauma, and I can no longer rule the manner of death as a homicide … I believe that enough evidence has been presented to raise the possibility that the bleeding could have been related to an accidental injury in a child with a bleeding risk or possibly could have even been a result of an undefined natural disease.”

Given the medical examiner’s change of opinion on Rehma Sabir’s death, state prosecutors dropped all charges against Aisling McCarthy.

 

New Hampshire Prep School Case Features DNA Expert Witnesses

The high profile rape trial of a former prep school student ended without a rape conviction despite DNA evidence presented last week by forensic expert witnesses called by prosecutors to connect the defendant to his alleged crime.  While jurors were unwilling to convict the defendant of rape, they found the DNA to be enough to issue a guilty verdict in the lesser charge of having consensual sex with a minor.

Prosecution Presents Evidence in Prep School Rape Case

Prosecutors in New Hampshire rested their case against Owen Labrie, a graduate of the state’s elite prep school St. Paul’s who was accused of raping a 15-year-old female classmate prior to his graduation.  During the prosecution’s case, Concord Police Detective Julie Curtin, who investigated the case, took the stand to tell the jury that Labrie had admitted to consensual touching and kissing, and told police that he had prepared for intercourse by putting on a condom.  However, Labrie denied he had sex with, or raped, the alleged victim.

Several witnesses present at the scene of the alleged assault testified for the prosecution, but the most compelling evidence of Labrie’s involvement with the teenager came from a forensic expert witness who connected the defendant’s DNA to the victim’s underwear.

DNA Expert Witnesses Connect Defendant to Alleged Victim

In wrapping up its case against Labrie, the prosecution called two criminalists from the New Hampshire State Police Laboratory to serve as forensic expert witnesses.  Kevin G. McMahon testified first and told jurors that in his expert opinion, DNA testing found on the alleged victim’s underwear suggested a “strong indication of semen” that was connected to the defendant.  McMahon’s expert testimony was supported by criminalist Kate Swango who performed tests on the girl’s underwear.

According to Swango, her testing demonstrated that Labrie’s DNA was present on the underwear “to a reasonable degree of scientific certainty.”  The prosecution expert witnesses combined to argue that Labrie’s DNA sample, which was likely semen, was present on the young girl’s undergarments.  According to prosecutors this evidence, combined with the girl’s testimony that she did not consent to the sexual encounter, demonstrated a case for rape.

DNA Expert Witnesses Fail to Secure Rape Conviction

Defense attorneys for Labrie took both of the prosecution expert witnesses to task for concluding that the DNA found on the underpants was, in fact, semen and not some other liquid such as saliva or sweat.  Under testimony Swango, after consulting her and McMahon’s notes, admitted that the expert witnesses had not determined the exact source of the defendant’s DNA.  Calling the expert testimony into question, attorneys for Labrie argued to the jury that the young man had engaged in some consensual sexual activity, but had not had intercourse with the girl or acted against her stated will.

After all the evidence was presented, jurors issued a compromise verdict that declined to find Labrie guilty of rape, but did determine that he did engage in sexual activity with a girl who was below the age of consent.  Given the result of the trial, it appears that the jurors placed more emphasis on the uncertainty of the situation as told by the victim and defendant than on the forensic evidence discussed by the prosecution’s expert witnesses.

False Confession Expert Witness Denied in Virginia Murder Trial

A Virginia judge has recently denied a request for a false confession expert witness by a woman on trial for murder who alleges she was coerced by police into admitting to the crime.  While the refusal to admit a false confession expert is not unusual given the judiciary’s reluctance to embrace social psychology experts, the case is noteworthy in that it represents the continued efforts by attorneys to embrace experts who explain behavior in legal situations.

Virginia Women Confesses to Murder Charges

Janice Burney Widenor, 52, of Greensboro, NC was arrested in July of this year on charges that she murdered 70-year-old James Austin and entombed his remains inside the walls of a house the two shared in Virginia at the time of the murder.  According to prosecutors, Widenor murdered Austin and concealed his body in 2011, leaving it hiding until it was discovered earlier this year.  After her arrest, Widenor progressed through a number of stories about Austin during her interrogation; first telling officers the man had left several years ago, then saying that he died of natural causes and she hid the body to avoid prosecution for aiding a fugitive, to finally agreeing to tell officers that she smuggled Austin with a pillow to ease suffering he experienced from an illness.

After her confession was signed, Virginia prosecutors used it as the foundation of a first degree murder case against Widenor.  Because Austin’s body was concealed in concrete for several years prior to its discovery, forensic evidence that would otherwise explain the cause of death or connect Austin’s killer to the crime has eroded to the point where there is little physical evidence tying Widenor to the crime.  With the confession the centerpiece of Widenor’s murder trial, her attorneys have sought to attack police interrogation tactics in an effort to diminish the value of the state’s primary evidence.

Virginia Defendant Seeks False Confession Expert Witness

In an effort to reduce the impact of her confession to the killing of James Austin, Janice Widenor’s attorneys requested that they be permitted to present testimony from an expert witness that indicated the circumstances of the confession cast doubt over its authenticity.  According to Widenor’s attorneys the police used what is known as a “Reid Technique” which wears down a suspect via lengthy interrogation sessions that are designed to elicit confessions.  Widenor was interrogated for a total of 10 hours over the course of two days before finally capitulating to the police officer’s suggestion that she killed Austin with a pillow and hid his body in concrete.

Widenor’s attorneys requested that an expert witness be allowed who would tell the court that when an interrogation lasts longer than two hours fatigue and feelings of helplessness cause suspects to say things that are unreliable simply to get out from a stressful situation.  According to false confession experts like the one Widenor sought to present, aggressive and lengthy police interrogations can steer suspects towards a desired confession even if they did not commit the crime.  Widenor’s attorneys submitted a motion requesting they be allowed to present this information to the jury so the confession evidence could be viewed in a more appropriate light.

Judge Denies Request for False Confession Expert Witness

Widenor’s attorneys were forced to issue the request because she is considered an indigent defendant who does not have the money to pay for her defense.  Indigent defendants are permitted expert witnesses at the state’s expense only if the trial judge determines that the expert is absolutely necessary to adequately mount a defense against the charges.  The judge in Widenor’s case heard arguments from both sides on the issue of a false confession expert witness and rejected the defense’s motion saying that there did not appear to be a “particular need” for one.

The legal community and the behavioral psychology community have become increasingly entangled in recent years with attorneys looking to psychologists to act as expert witnesses in false confessions, eyewitness testimony, and other fields that inform how legal actors behave when confronted with police investigations.  Although Janice Widenor was not successful in demonstrating the need for a false confession expert witness in her case, the increased efforts to incorporate behavioral science expert testimony into criminal cases will create future opportunities for these experts to speak about their research during trial.

 

 

Wisconsin Court Applies Relaxed Standard to Medical Expert Evidence

To recover damages in a medical malpractice lawsuit, Wisconsin law requires the injured party to prove that the physician accused of negligence failed to provide the same standard of care that would have been provided by reasonably prudent physicians who practice in the same field of medicine and in the same locality. Expert testimony is nearly always required to establish both the prevailing standard of care and the negligent failure to meet that standard.

But does the medical expert need to rely on medical literature and other scientific data when he or she expresses an opinion about the prevailing standard of care? The Wisconsin Court of Appeals recently decided that the state’s version of the Daubert test allows medical experts to base their opinions on their own experience rather than published studies.

The malpractice case

The lawsuit alleged that a baby suffered nerve damage during its birth, causing a permanent disability in the baby’s left arm. The lawsuit was filed against the obstetrician who provided prenatal care to the mother. The obstetrician also delivered the baby.

Evidence at trial established that the baby’s shoulder became stuck (a condition known as shoulder dystocia) after the baby’s head emerged. After the baby was born, he was diagnosed with an injury that inhibits the growth and use of his left arm. The baby’s family attributed that injury to the obstetrician’s use of excessive traction to dislodge the shoulder during the baby’s delivery.

The plaintiff’s expert witness testified that the obstetrician erred in three ways. First, the obstetrician estimated the baby’s likely weight at birth by tracking the mother’s weight gain during her pregnancy. The expert testified that the obstetrician should have performed an ultrasound to estimate a more accurate birth weight. Knowing the baby’s actual birth weight (one pound and four ounces more than the obstetrician’s estimate) would have alerted the obstetrician to the heightened risk of shoulder dystocia.

Second, the expert testified that the obstetrician should have followed up an abnormal one-hour glucose test with a three-hour test to determine whether the mother had gestational diabetes. That condition can result in an elevated birth weight which again increases the risk of shoulder dystocia.

Finally, the expert testified that the obstetrician should not have performed a vacuum-assisted birth, given the mother’s weight and the baby’s birth weight. The expert opined that vacuum-assisted births are the largest risk factor for shoulder dystocia.

The jury concluded that the obstetrician was negligent. It awarded damages of almost $900,000.

Medical opinions compared to other expert evidence

Wisconsin has adopted a version of the familiar Daubert test, which permits the testimony of a qualified expert if it will be helpful to the jury, if the testimony is the product of reliable principles and methods, and if the witness has applied the principles and methods reliably to the facts of the case. The question in Siefert v. Balink was whether the expert based his testimony on reliable principles rather than personal preferences about the medical procedures an obstetrician should follow.

The defense founded its objection to the expert’s testimony on the expert’s failure to ground his opinions in medical literature. The Wisconsin Court of Appeals rejected that argument. The court relied on federal cases that recognize a distinction between medical evidence and other kinds of scientific evidence. The kinds of double-blind experiments that underlie statistical proof in other fields of science are often unavailable to medical experts given ethical prohibitions against experimentation on humans.

In addition, medicine is an uncertain science that addresses complex human organisms. It does not lend itself to the same level of certainty as physical sciences. Rather, it calls upon physicians to make sound judgments based on experience in addition to training.

Admissibility of the expert’s opinion

The expert based his opinion about known and generally accepted factors that determined the standard of care (birth weight, maternal obesity, and glucose testing) on his professional experience. The expert was not required to rely upon medical literature or on laboratory experiments in addition to his own experience as a basis for that opinion. The trial court noted that the Daubert standard is intended to shield the jury from “junk science” and determined that the expert’s training and experience assured that his opinions were not the product of junk science.

The court of appeals accepted the trial court’s reasoning. Although one part of the expert’s opinion was contradicted by medical literature that supported the obstetrician’s decision to regard the one-hour glucose test as normal, the expert was assessing the glucose test in light of the mother’s obesity and his own experience. It was up to the jury to weigh competing evidence and decide whether to believe the expert. The fact that an expert’s opinion can be impeached does not mean that the opinion is based on an unreliable methodology or that the methodology is not reliably applied to the facts of the case. Debatable evidence that is supported by experience should be assessed by the jury, not excluded from evidence.

What Makes a Medical Examiner a Credible Expert Witness?

Medical examiners often serve as expert witnesses in criminal trials, grand jury hearings, coroner’s inquests, and other legal proceedings. Many testify on behalf of the governmental body that employs them, but pathologists and retired medical examiners are also asked to serve as expert witnesses for private parties.

Any case in which cause of death, time of death, or the circumstances surrounding death must be established can give rise to the need for expert testimony. Two recent news stories about medical examiners shed light on how juries assess their credibility.

Qualities that make a medical examiner’s testimony credible

Dr. Donald Reay retired as the medical examiner in King County, Washington in 1999. His exemplary performance in the job was recently recognized by the National Association of Medical Examiners. The organization is honoring Dr. Reay with the Milton Helpern Laureate Award, “the nation’s most prestigious award for medical examiners.”

According to King County Superior Court Judge William Downing, Dr. Reay “embodied all of the attributes of the ideal expert witness.” Judge Downing identified those qualities as intellectual curiosity, scientific objectivity, and unshakable honesty. Dr. Reay was also praised for his vast knowledge and for his ability to communicate that knowledge by speaking to juries as a “regular guy.”

Unlike expert witnesses who “become advocates and lose their credibility,” Judge Downing said that juries trusted Dr. Reay because he never lost his objectivity. That opinion is consistent with Dr. Reay’s view of his role as an expert. Instead of viewing himself a witness for the prosecution or the defense, he testified as “a witness for the dead.”

Qualities that make a medical examiner’s testimony doubtful

Radley Balko has written a number of columns for The Washington Post that are critical of Mississippi medical examiner Steven Hayne. As an expert witness employed by the state, Hayne became controversial due to his perceived willingness to slant his testimony to favor the prosecution.

A number of convictions based on Hayne’s testimony have been overturned on appeal — including one that nearly resulted in an execution — based on doubts about the validity of Hayne’s expert testimony. Court decisions make clear that Hayne, unlike Dr. Reay, adopted the role of an advocate rather than an expert whose opinions were based solely on an objective analysis of the facts.

The Mississippi Department of Public Safety became so frustrated with Hayne (who at one point performed a remarkable 1,800 autopsies a year) that it took action to prevent him from doing autopsies. That action effectively barred him from testifying as an expert for the State of Mississippi, despite efforts of the state’s Attorney General to keep him employed.

As Randy Balko reports, once Hayne could no longer testify for the prosecution, he became a defense expert. His controversial past, however, has affected his credibility in that role.

In a recent case, Hayne contradicted the prosecution’s medical experts, who testified that an alleged murder victim died from a blow to the head. Hayne testified that the alleged victim died from a drug overdose after combining anti-depressants with alcohol.

During cross-examination, the prosecutor pointed out that a number of convictions had been reversed based on Hayne’s improper testimony. Hayne’s willingness to testify outside the area of his expertise provided additional fodder for the prosecutor on cross-examination.

Of course, there is no little irony in the spectacle of prosecutors attacking the expert they once relied upon to help them secure murder convictions. As Balko remarks, the State of Mississippi is “arguing that Hayne both is and isn’t qualified and credible to testify as an expert witness — depending on whether he’s testifying for or against the prosecution.”

Medical examiners who testify as expert witnesses should follow the path of Donald Reay, not that of Steven Hayne. A credible medical examiner is one who is an advocate for the truth, not an advocate for the party who is paying for the expert testimony.