Category Archives: ExpertWitness

Court Balks at Funding Expert for Defendant in Manslaughter Trial

An expert on drunkenness may be called as a witness in a Buffalo, New York manslaughter trial. The proposed expert would be basing his testimony on the science of neurology rather than personal experience. The question is whether the court will agree to fund the expert.

The manslaughter charge

Paul Flynn is charged in Niagra County Court with causing the death of Clyde Mullen. According to one witness, Flynn and Mullen were arguing over a can of beer when Flynn grabbed Mullen by the neck and threw him down a short flight of porch stairs. A different witness said that Flynn shoved Mullen and that Mullen then fell down the steps.

Mullen remained in intensive care for several days before he died. Flynn has denied choking Mullen and said that he never intended to hurt him.

The police originally arrested Flynn for assault. Flynn was charged with second degree murder after Mullen died, but the grand jury refused to indict Flynn for that offense. The grand jury instead indicted him on a charge of first-degree manslaughter.

Flynn’s trial is scheduled to begin in September.

The intoxication issue

When police questioned Flynn, he did not appear to be under the influence of alcohol. A test of Mullen’s blood revealed a blood alcohol concentration of 0.31, a level that would be close to lethal for someone who had not developed a strong tolerance of alcohol.

Flynn’s lawyer, Brian Hutchison, wants to hire a neurologist to testify about how high levels of alcohol “affect a person physically and psychologically.” Hutchison told the court that the impact of Mullen’s intoxication upon his behavior was a material issue in the case. His proposed expert, Dr. Francis Gengo, is a professor at the University at Buffalo.

Funding the expert

In some jurisdictions, whether an expert would be allowed to testify about the impact of alcohol on an alleged victim might be questionable. Some judges might conclude that the association between intoxication and behavior is common knowledge and that an expert would not be able to provide the jury with helpful information.

At least according to news coverage to date, the issue of the proposed expert testimony in Flynn’s case is not whether the testimony would be admissible but whether the court is willing to pay for it. Hutchison is court-appointed, presumably because Flynn is indigent. If he plans to hire an expert, he must obtain the court’s approval to pay for the expert.

Defendants who have the resources to hire their own experts have a significant advantage over defendants who must rely upon a public defender’s office or appointed counsel. A wealthy defendant can hire the best expert that he or she can afford. An indigent defendant must cope with limited state budgets and judges or administrators who are reluctant to spend taxpayer’s money to assure that indigent defendants benefit from the same expert testimony that more affluent defendants would have.

Most courts have agreed that the right of indigent defendants to hire necessary experts is assured by the Due Process Clause (which guarantees the right to a fair trial), the Equal Protection Clause (which guarantees that poverty should not deprive a defendant of a fair trial), or the Compulsory Process Clause (which guarantees the right to call witnesses who can provide exculpatory testimony). Yet the contours and limits of that right are often unclear.

When is a proposed expert too expensive?

Just as the right to be represented by a lawyer does not guarantee the right to be represented by the best or most expensive lawyer, the right to call expert witnesses does not assure that indigent defendants will receive funding for the best or most expensive experts. Although Flynn faces a potential 25 year prison sentence, the judge balked at paying for the services of Dr. Gengo.

The judge told Hutchison that New York law limits payment of expert witness fees to $1,000 unless there are “extraordinary circumstances.” While news reports do not say how much money Hutchison was seeking, they do quote the judge as complaining that Gengo “seems very expensive.” The judge is also quoted as asking “Why do you need the most expensive guy out there?” The judge reportedly told Hutchison to “see if he can hire someone who’s good enough for under $1,000” and, if not, to get started with Gengo for $1,000 and ask for more money later.

A thousand dollars seems like a paltry sum when a quarter century of a defendant’s life is at stake. Unfortunately, when state legislators set funding limits for experts, they rarely adjust them for inflation as the years go by. Whether Hutchison will be able to find a less expensive expert who is “good enough” for $1,000 or whether he will persuade the court that “extraordinary circumstances” justify spending more money remains to be seen.

Use of Force Experts to Dual in Federal Civil Rights Trial of Alabama Police Officer

An Alabama police officer accused of using excessive force to subdue an unarmed elderly man will call a police training expert witness to defend himself in a federal civil rights trial.  According to court documents submitted this week, the police officer’s defense team will counter prosecution experts with a certified police trainer who will offer expert testimony supporting the officer’s actions given the circumstances.

Alabama Officer Charged with Excessive Use of Force

In February of this year, 57-year-old Sureshbhai Patel was taking a walk around the neighborhood where his son lived when he was approached by officers responding to a call about a potentially suspicious person.  Patel, who is an Indian national visiting his son’s family, does not speak or understand English and had a miscommunication with the officers who approached him.  Although accounts differ about the interaction, footage from the police cruiser dashboard camera shows Madison Police Officer Eric Parker slamming Mr. Patel to the ground and violently subduing him before placing him in custody.

According to the Patel family, Mr. Patel tried to explain to the officers that he did not speak English, and provide them with his son’s address so they would be able to identify him.  When Officer Parker attempted to frisk Mr. Patel, he was unsure of what was happening and attempted to walk away.  Officer Parker then forcibly placed Mr. Patel on the ground, and the resulting injuries left the 57-year-old partially paralyzed and confined to a hospital bed.

Officer Parker was dismissed from the Madison PD, and Alabama Governor Robert Bentley issued an apology to the Patels and the government of India for injuries suffered as a result of the police encounter.  Following the incident, the United States Department of Justice filed federal civil rights charges against Parker for his aggressive takedown of Mr. Patel, and prosecutors announced plans to call a police expert witness to explain that Parker’s actions were excessive and unwarranted.

Prosecution of Former Alabama Police Officer will Feature Use of Force Expert Witness

Documents filed by prosecutors have identified Parker’s former boss, Madison PD Police Chief Larry Muncey, as an expert witness in police training and use of force in the upcoming federal civil rights trial. According to the prosecution, Muncey will review the video recordings of the incident involving Parker and Mr. Patel and explain that the officer exhibited use of excessive and unnecessary force in subduing the elderly man.  Prosecutors also informed the court that, Muncey “will also opine, based on his training and expertise, that (Parker’s) actions were inconsistent with department policy and that (his) use of force in this instance did not adhere to prevailing police standards and training.”

Muncey’s expert testimony on police training and use of force will help jurors understand the standards of the Madison PD in order to determine whether or not Parker deviated from his duty and violated Mr. Patel’s civil rights.  Parker has pleaded not guilty to the civil rights charges, and announced his intention to call a contradictory expert witness who is a certified trainer in police use of force tactics to help explain the officer’s actions.

Former Cop Charged with Excessive Force to Call Defense Expert Witness

In response to the allegations that he was not justified in using force against the 57-year-old Mr. Patel, former officer Eric Parker has submitted his own use of force expert witness.  Court documents submitted during pre-trial preparation indicate that Parker’s defense team will call Johnny Lee Smith of Triad Martial Arts Inc. to testify that Parker did not show intent to injure and was engaged in a standard police tactic given the circumstances of his interaction with Mr. Patel.  Triad Martial Arts institute is a Certified Specialized Instructor by the Alabama Peace Officers’ Standards and Training Commission, and Smith himself has conducted training courses on police use of force.

According to documents submitted by Parker’s defense team, “Mr. Smith’s testimony is expected to opine that Officer Parker’s stop of Mr. Patel was justified; that reasonable suspicion existed for Officer Parker to conduct a ‘Terry Frisk’ of Mr. Patel; that Officer Parker was justified in using force against Mr. Patel; the amount of force used by Officer Parker was justified under the totality of the circumstances and complied with current law and department policy; and that it does not appear that Officer Parker intentionally tried to hurt Mr. Patel.”

Attorneys for Mr. Patel have denounced the use of Smith as an expert, saying they expect his testimony to be dismissed by the federal judge before trial.  Parker has appealed his dismissal from the Madison PD, and will defend his actions during his federal civil rights trial that is scheduled to begin in September of this year.

Jesse Matthew Sexual Assault Trial Ends with Alford Plea After DNA Expert Testimony

The high profile sexual assault trial of alleged serial predator Jesse Matthew Jr came to a surprising end this week when the defendant withdrew his defense and was subsequently convicted by a Virginia judge.  In the face of expert witness testimony linking his DNA to the scene of the attack, Matthew elected to give up on his case, leading to a conviction that could result in consecutive life sentences.

Jesse Matthew Jr. Linked Forensically to Sexual Assaults and Murders

On a late evening in September of 2005, a 26-year-old woman studying in America from overseas was walking home in the dark when she was attacked from behind by an unknown stranger and dragged into a dark grassy area.  Once off the path, he began sexually assaulting her, threatening to kill her if she screamed before suddenly running away, possibly due to approaching headlights that temporarily illuminated the area where the attack took place.

For nearly a decade the case remained unsolved without any leads on the identity of the attacker, but the situation changed late last year when investigators in Fairfax, VA met with Matthew while looking into the 2014 disappearance and death of University of Virginia student, Hannah Graham.  According to police and prosecutors, Matthew Jr. left traces of DNA on Graham’s body that matched the 2005 victim.  Matthew has also been linked forensically to the body of a murdered Virginia Tech student, Morgan Harrington.

During his trial for the 2005 sexual assault, forensic experts connected the DNA discovered in subsequent investigations to the victim, causing Matthew to enter an Alford plea and drop his defense case.  An Alford plea means the defendant does not admit guilt, but concedes that the prosecutors have enough evidence to convict him and gives up on his defense strategy. As a result of the plea, Judge David Schell found sufficient evidence to convict Matthew of attempted capital murder, abduction with intent to defile, and sexual assault.

Forensic Expert Witnesses Link DNA from Assault to Jesse Matthew

The prosecution began its case with testimony from witnesses to the scene of the attack and the victim herself, however, were unable to get a positive visual ID on Matthew.  In order to connect the defendant to the crime, prosecutors relied on testimony from an expert witness who was able to identify DNA under the victim’s fingernails as a likely match to Matthew’s DNA collected during investigation into his alleged subsequent assaults.  According to Dr. Elizabeth Ballard, a forensic scientist who is an expert in DNA analysis, the chance of the DNA collected from the victim not belonging to Matthew is less than one in 7.2 billion.

In an effort to argue against the DNA evidence discussed by the prosecution’s expert witness, the defense pointed out that the presence of Matthew’s DNA under the victim’s fingernail was not sufficient to tie him to the crime.  Pointing out that the DNA could have been transferred to the victim inadvertently by contact with a common surface, defense attorneys attempted to argue for reasonable doubt in the fact of strong expert testimony that forensically linked Matthew to the attack.  Before defense attorneys could mount a more stringent defense, however, Matthew voluntarily withdrew his case and entered the Alford plea.  Under the terms of the plea, Matthew could face up to 3 consecutive life sentences without possibility of parole.

Jesse Matthew Faces Capital Murder Charges in College Student Murder

The resolution of the 2005 sexual assault case against Matthew does not conclude his legal case.  Prosecutors have already charged him with capital murder for the assault and killing of Hannah Graham in 2014.  Although prosecutors in the Graham case cannot use Matthew’s conviction against him during trial, if he is found guilty for the murder of Graham the State can use the sexual assault case to demonstrate likelihood of future dangerousness – an element necessary to earning the death penalty in Virginia.

Details of the Graham case have not been revealed because a trial date has not been set, but DNA expert testimony will definitely play an important role in that prosecution as well because Matthew has been linked forensically to the Hannah’s remains.  Matthew has not yet been charged for the fatal assault on Morgan Harrington, which is the third attack that he his DNA has been linked to by forensic expert investigators.  Matthews will be sentenced under the terms of his Alford plea later this month.

Optometrist Called as Visual Perception Expert Witness in Fatal Accident Lawsuit

A federal judge in Pennsylvania has approved the use of an optometrist called as an expert witness in a negligence case that arose from a fatal motor vehicle accident, but has expressly limited the extent to which she is able to speak about the case.  Citing the Federal Rules of Evidence, the judge warned attorneys not to allow the optometrist to speak beyond her field of expertise or make factual conclusions about the scene of the accident.

Optometrist to Testify as Expert Witness in Car Accident Lawsuit

In the early morning hours of September 4th, 2012, Zachary Edwards was driving a vehicle owned by his employer, R.J. Skelding of Allentown, PA, when he struck and killed Li Zhen, a Chinese national visiting America.  Zhen was a pedestrian walking along Pennsylvania State Route 8009 when Edwards’s vehicle made contact with her.  Her estate, represented by Philadelphia attorney Bruce Dolfman, filed a lawsuit against R.J. Skelding and Edwards seeking an undisclosed amount, alleging Edwards’s negligence behind the wheel caused Zhen’s death.

The defendants submitted Dr. Ellie Frances, an optometrist, as an expert witness in visual and human factors that influenced Edwards’s ability to see Zhen at the time the accident occurred.  According to Dr. Francis’s proposed testimony, a number of visual and environmental factors present at the time of the accident combined to negatively influence Edwards’s visibility, which may have prevented him from seeing Zhen in the pre-dawn light when the collision took place.

Plaintiffs Dispute use of Optometrist as Expert Witness

Mr. Dolfman protested the use of Frances as an expert witness, arguing that reconstructing the scene of an accident was beyond her area of expertise.  According to Dolfman, the testimony from the defendant’s optometrist would unfairly prejudice the jury by confusing them about the nature of Frances’s expertise. The plaintiff expressed concern that jurors could easily assume Frances had expert knowledge of reconstructing situations like the one Edwards found himself in, which would inflate the value of her expert opinion.

Judge Allows Optometrist Expert Witness Testimony

U.S. Magistrate Judge Timothy R. Rice in the U.S. District Court for the Eastern District of Pennsylvania agreed to allow Dr. Frances to offer her visual and perception testimony, but cautioned defendants from asking her to opine on the sequence of events that led to the accident.  Rice found that the defendants’ expert witness had satisfied the standards of the Federal Rules of Evidence, which require an expert demonstrate she has scientific or specialized knowledge and has built her testimony on sufficient data that has been analyzed and collected using sound methodology.

Rice wrote, “Dr. Francis has outlined an acceptable methodology for her conclusions. She reviewed the lighting conditions, weather conditions, medical records, police reports, expert reports, and Edwards’ deposition testimony. She then applied those factors to the physiological process of perception and gave her opinion as to how quickly objects could be perceived under the reported conditions.”  Taken together with her background in visual perception, Rice determined that Dr. Frances could assist the jurors by explaining how the defendant and the victim perceived each other at the time of the accident.  Judge Rice pointed out that jurors may not be able to intuitively understand what each party was able to see when the collision occurred, and Dr. Frances’s expertise could shed light on the situation.

Optometrist Expert Testimony Limited at Trial

While Judge Rice welcomed Dr. Frances’s expert testimony on visual perception and reaction time given the environmental factors, weather conditions, lighting, and other contributors to the collision, he strictly forbade her from testifying about anything that could confuse jurors.  Specifically, Judge Rice told defendants that Dr. Frances could not testify about Edwards’ eye disorder or reconstruct the accident in front of the jury.  Dr. Frances is not a medical expert or an accident reconstruction expert, and, as such, will not be able to provide an opinion on either aspect of the collision.

Teaching Expert Witnesses to Testify

One of the greatest challenges that expert witnesses face is explaining technical concepts in simple language that lay jurors can understand. Experts who are used to discussing their work with professional colleagues assume a basic level of familiarity with the language of science that lay jurors lack. Frustrated lawyers who ask experts to “explain that in simpler language” are matched by frustrated experts who do not believe that simple language can convey complex ideas.

Understanding that experts have important information that the public needs to understand, the National Science Foundation recently awarded a $540,000 grant to the Expert Witness Training Academy, a project of William Mitchell College of Law in St. Paul, Minnesota. The funding to date has been used to train climate and atmospheric scientists. About two dozen scientists participate in the training each year.

Allowing experts to become comfortable with the difference between lecturing in a collegial atmosphere and testifying in an adversarial proceeding is one of the program’s goals. Even when speaking to the general public, however, the confrontational nature of climate change and its impact on public policy underlines the importance of teaching climate scientists how to communicate effectively. The Academy stresses that it does not teach scientists to be an advocate for any particular position, but focuses on helping scientists justify their findings and conclusions by making science comprehensible to their lay audiences.

How experts develop communication skills

In addition to helping experts communicate with the public, the Academy provides workshops and other training to help experts learn to communicate effectively in adversarial settings, including trials and legislative hearings. The training allows scientists to participate in simulated trials, depositions, arbitration proceedings, legislative hearings, and media interviews. Scientists learn to use technologies such as power-point presentations to break their reasoning into digestible portions that lay people can more easily absorb.

One fictitious scenario involved a cloud-seeding operation designed to end a drought that resulted in a flood, causing extensive property damage and killing several people. Half the scientists were assigned to work with lawyers representing flood victims while the other half worked with defense lawyers representing a state agency that authorized the cloud-seeding and the company that conducted it. At the end of a mock trial, the scientists sat in on jury deliberations to learn how their testimony was viewed by the lay individuals who listened to it.

Learning opportunities for expert witnesses

This summer will be the third program that the Academy has undertaken to train climate and atmospheric scientists. The Academy hopes to expand its program in the future to train scientists to communicate about fracking, public health, and other controversial fields that would benefit from reasoned explanation in comprehensible language. The NSF grant will allow the program to continue and to expand during the next three years.

Private training for expert witnesses is available from a variety of organizations, such as The American Institute for Expert Witness Training. Learning to communicate complicated ideas to an unschooled audience is a worthwhile pursuit for experts, whether through formal training or by working closely with attorneys who help them testify effectively.

Estranged Heirs use Expert Witness in Billionaire Sports Owner Mental Competency Trial

A Louisiana judge will decide the future of both of New Orleans’ professional sports franchises and billions of dollars of inheritance money in the mental competency trial of 87-year-old billionaire owner, Tom Benson.  Although the court will hear testimony about Benson’s competency from a variety of sources, the testimony of a geriatric psychiatry expert witness dominated the courtroom last week, and will be crucial to the trial’s final outcome.

Estranged Benson Heirs File Mental Competency Lawsuit

Benson’s daughter, Renee Benson, and her children, Rita and Ryan LeBlanc, filed a lawsuit challenging the 87-year-old’s mental competency in January then they were removed from ownership and executive positions in Benson’s two professional sports franchises: the New Orleans Saints of the NFL and the Pelicans of the NBA.  According to the plaintiffs, the elder Benson has been manipulated by his current wife and a small circle of executives, and is not competent enough to make decisions without undue influence of the people he keeps closest to him.

Benson argues that he is of sound mind, and that he disowned the plaintiffs because they have consistently mistreated his third wife, Gayle, who he married in 2004.  Although the three plaintiffs will still inherit hundreds of millions of dollars from a series of trusts Benson has established over the years, he has made every attempt to remove the three from any ownership positions and shares of his two teams in order to prevent them from inheriting interest in his businesses.

In order to demonstrate that Benson is mentally incompetent and subject to undue influence by the people he keeps close to him, Renee, Rita, and Ryan must show that he does not understand what is happening with his property, and cannot grasp the consequences of his decisions. The plaintiffs would also need to provide clear evidence that Benson is being manipulated by someone else because he is unable to make decisions on his own account.

Geriatric Psychiatry Expert Witness Takes Stand in Benson Competency Trial

Last week, the Benson heirs wrapped up their case against the patriarch’s competency by calling a geriatric psychiatry expert witness to testify.  Dr. Ted Bloch III was one of three doctors who performed a court-ordered review of Tom Benson’s psychological competency, and was chosen as an expert witness by the plaintiffs.  Dr. Bloch took the stand after six other witnesses, including Renee Benson, took the stand to speak to the 87-year-old’s declining mental and physical health. The plaintiffs elected to use a psychiatry expert to conclude their case and leave the lasting impression that Mr. Benson is not mentally competent in his old age.

Judge Kern Reese has agreed to respect the privacy of all parties involved by keeping the courtroom closed to the public and placing a gag order on all testimony that is offered during the trial, so the specifics of Dr. Bloch’s testimony are unclear.  Speaking to reporters after the session, attorney for the plaintiffs Randy Smith noted that Bloch’s lengthy expert testimony was trying, but went according to plan by saying, “We knew this wouldn’t be an easy thing emotionally. It’s really not an easy case, but testimony and the evidence is going pretty much the way we expected.”  Dr. Bloch’s geriatric psychiatry expert testimony wrapped up the plaintiffs’ case, leaving questions about how the defense would respond.

Benson Defense Team Begins Case

Lawyers for Tom Benson opened their case with testimony by calling the team president of both the Saints and Pelicans, Dennis Lauscha.  Lauscha works closely with Benson, and likely discussed how involved he is in the day-to-day operations of the businesses – reinforcing Benson’s position throughout the trial that he is not only of sound mind, but is an active participant in the ongoing management of his two marquee businesses.  The secrecy surrounding the trial has left unclear the list of other witnesses, or if Benson himself will take the stand to demonstrate his mental competency.

Two psychiatry expert witnesses who also evaluated Benson have been seen accompanying the defense legal team to and from the trial hearings, suggesting that both could take the stand as experts in defense of Mr. Benson’s mental health.  Given the high stakes, it is likely that Benson’s attorneys will rely on expert witness testimony to bolster their case, but with the gag order preventing access to the trial observers will only be able to speculate about the details when Judge Reese hands down a decision later this summer.

Expert Witness Testifies in James Holmes Mass Shooting Trial

After several weeks of hearing from witnesses and police who explained how James Holmes carried out the 2012 attack on a movie theater in Aurora, Colorado, jurors in the case were finally presented with testimony about his mental state when a prosecution expert witness took the stand to affirm that Holmes was legally sane at the time of the shooting.  Holmes is on trial for the murder of 12 people, and his mental state at the time of the attack will factor heavily into the jury’s verdict.

James Holmes on Trial for Opening Fire in Colorado Theater

In July of 2012, James Holmes entered a movie theater in Aurora, Colorado during a showing of the hit Batman movie, Dark Knight Rises, and opened fire on the unsuspecting crowd of roughly 400 people.  Holmes’ shooting resulted in the death of 12 people and injury of 70 others, and he was subsequently arrested and charged for his crimes.  After years of investigation, the Holmes mass-shooting trial began last month with the defendant facing a number of charges, including capital murder.  Holmes has pleaded not guilty by reason of insanity while prosecutors contend that he was not insane and deserves to face the death penalty for his crime.

Prosecutors opened their case by presenting eyewitness testimony and gruesome crime scene photos to demonstrate not only the severity of Holmes’ attack, but also the precision with which he planned the shooting and his subsequent escape.  Prosecutors allege that the defendant was fully aware of what he was doing, knew that he was engaging in serious criminal conduct, and therefore he does not satisfy the legal requirements of an insanity defense.  After presenting evidence of the scene, prosecutors collaborated their position by calling a mental health expert witness who spoke with Holmes at length in the immediate aftermath of the defendant’s incarceration to testify that he was legally sane at the time of the shooting.

Prosecution Expert Witness Testifies to James Holmes’ Sanity

Because Holmes has pleaded not guilty by reason of insanity, the jury’s opinion on his mental state at the time of the shooting will be critical to the outcome.  To validate their argument that James Holmes was legally sane at the time of the shooting, prosecutors called Dr. William Reid as a psychiatry expert witness.  Dr. Reid spent over 22 hours with Holmes over the course of 9 interviews shortly after his arrest, and took the stand last week to tell jurors that the defendant did suffer from a mental illness, but was legally sane under the definition of sanity used by criminal law.

The legal standard for insanity does not turn on mental illness, but instead evaluates whether or not the defendant had the capacity to know right from wrong, and was aware of the legal consequences of his actions. Pointing to portions of his session with Holmes, Dr. Reid told jurors that he exhibited remorse for his actions, and made statements of regret when asked about the shooting.  Although the sessions came after the shooting, Holmes demonstrated knowledge that his actions were wrong, which calls to question his claims of insanity.

While on the stand, Dr. Reid told jurors of Holmes, “My opinion is that he did not — is that, whatever he suffered from — it did not prevent him from forming the intent and knowing what he was doing and the consequences of what he was doing.”  Dr. Reid’s expert testimony went on to inform jurors that the defendant satisfied the requirements of legal sanity because Holmes was able to understand the gravity of the shooting. Reid’s expert testimony served two critical roles: first, it informed jurors that the legal definition for insanity was not satisfied, and second, it broke the connection between mental illness and legal insanity that could have otherwise caused confusion for jurors.

Holmes’ Attorneys Question Prosecution Expert Witness

Although the prosecution’s use of Dr. Reid as an expert witness may prove to be effective, the content of the testimony also raises questions that could come up should Holmes be convicted and later file an appeal.  Defense attorney Daniel King protested Reid’s testimony largely because the prosecution asked their expert witness to make a conclusion about Holmes’ mental state specifically within the confines of the legal definition of insanity.  While this line of questioning was allowed by the judge, it toes the line of permissible use of expert witnesses because Dr. Reid arguably made a factual conclusion within the standards of the law which is a job typically left up to jurors.

Forensic Psychologist Plays Critical Role in Slender Man Hearing

Every state has a juvenile justice system that handles crimes committed by children. In recent decades, however, most states have decided that some juveniles deserve to be prosecuted in adult criminal courts and to face the punishments for which adults are eligible. How the decision is made to prosecute children in juvenile or adult court varies from state to state.

Most states have a “waiver” system that allows a juvenile court judge to send children of a certain age to adult court if they are accused of committing specified offenses. The judge will consider a variety of factors, including the child’s maturity and likelihood of committing future crimes, in deciding whether to waive the child into adult court. That determination is made after taking evidence at a waiver hearing.

Some states also have a “reverse waiver” system. Children of a certain age who are accused of committing specified crimes can be charged in adult court. They then have the opportunity to present evidence to show that it would be more appropriate to handle their cases in the juvenile justice system, where the emphasis is typically on rehabilitation rather than punishment.

At either a waiver hearing or a reverse waiver hearing, expert evidence often plays a crucial role. The maturity level and other characteristics of the accused child are typically evaluated by psychologists or social workers who testify on behalf of the child or the State. The importance of that testimony is illustrated by the Slender Man case in Wisconsin.

The Slender Man case

According to the police, two 12-year-old girls in Waukesha (an affluent suburb of Milwaukee) plotted for months to kill another 12-year-old girl after a sleepover. The victim was stabbed 19 times. News stories report that the two girls meant “to pay homage to a fictional character who they believed was real after reading about him on a website devoted to horror stories.”

The girls allegedly told the police that they were trying to impress Slender Man, an “urban legend” they discovered on the Creepypasta website. Their plan was to kill their friend and then hike to Slender Man’s mansion, which they believed to be in northern Wisconsin. One of the girls expressed fear that Slender Man would kill her and her family if she did not carry out the plot. The girls told the police that Slender Man watches them and that he has the ability to read minds and to teleport.

The stabbing victim, a middle school classmate of the two girls, survived the assault. Prosecutors charged the two girls in adult court with the crime of attempted first degree murder. If they are sentenced as adults, each girl could face a maximum of 65 years in prison. If the children are sentenced in juvenile court, Wisconsin law would not allow them to be held in a confined setting beyond the age of 18.

Expert testimony in the reverse waiver hearing

Children as young as 10 can be charged as adults in Wisconsin. It then becomes their burden to convince a judge that their case should be transferred to juvenile court. A reverse waiver hearing for one of the two girls in the Slender Man case began this week.

The girl’s defense attorney relied heavily on the testimony of a forensic psychologist. After evaluating the girl, the defense expert testified that she was suffering from a delusional disorder at the time of the stabbing but does not presently suffer from the kind of personality disorder that creates a strong risk of future anti-social behavior. The psychologist described the girl as struggling with her parents’ divorce and with problems gaining peer acceptance after moving to middle school.

In addition to testifying about adolescent brain development, the expert opined that the girl’s desire for friendship made her particularly susceptible to her friend’s influence. The testimony was offered to establish that the girl’s dependent personality of more characteristic of a child than an adult, making her an appropriate candidate for juvenile court.

The expert also testified that the girl is likely to succeed if given a chance to participate in therapeutic programs that are offered to offenders who are housed in Wisconsin’s secure detention facility for juvenile girls. His evaluation determined that the girl is remorseful and motivated to change her life. That testimony was offered to establish that the girl is a good candidate for rehabilitation, which is the goal of Wisconsin’s juvenile justice system.

Ruling deferred

Prosecutors presented no expert evidence of their own. The judge assigned to the case announced that he would defer ruling until after the reverse waiver hearing of the other girl, which is scheduled to occur next month. Expert testimony is likely to play a critical role in that hearing, as well.

Smithsonian Forensic Expert Witness Testifies in Trial of Parents Accused of Causing Infant’s Death

A forensic anthropologist working for the Smithsonian Institution National Museum of Natural History took the stand as a bone expert witness in the murder trial of a Virginia couple accused of killing their seven-month old son and burying his remains in their backyard.  Prosecutors hope to use the disturbing testimony about the condition of the infant’s remains to put the parents behind bars for life as punishment for their extreme child neglect.

Virginia Couple Charged with Death of Infant Son

In 2011, police investigators responding to an alleged burglary found a severely neglected 6-year-old girl in a trailer belonging to Brian and Shannon Gore of Gloucester County, Virginia.  The girl was found naked, emaciated, covered in her own feces, and trapped inside an upside-down crib that served as a makeshift cage.  The trapped child was the Gore’s daughter, and both parents are currently serving 30-year jail sentences after pleading guilty in 2013 to aggravated malicious wounding and child abuse. While building a case against the Gores for the abuse and neglect of their daughter, investigators also found the remains of an infant buried underneath the shed outside of the couple’s home.

A medical examiner in Richmond determined that the baby was a boy at least 7 months old who had been born to the Gores in 2007 and dead by March of 2008.  The medical examiner could not make a determination about cause of death, so prosecutors sent the remains to the Smithsonian team for a complete analysis.  After receiving the autopsy results, prosecutors charged the Gores for killing the child by neglecting him, and called the lead researcher from the Smithsonian as a forensic expert witness to explain how the infant died.

Forensic Expert Witness Points to Evidence of Child Neglect

Dr. Douglas Owsley of the Smithsonian Institution took the stand in the Gore’s murder trial to speak for the seven-month infant who never had a chance at life because of the extreme neglect of his parents.  Dr. Owsley examined the remains of the infant, and testified that it was his opinion that the baby suffered from extreme malnutrition because he was not getting enough to eat.  Although Owsley did not offer a cause of death, his expert testimony suggested that the brittleness of the child’s bones pointed to malnutrition and neglect.

Owsley told jurors that the baby’s bones were thin, fragile, and showing signs of osteoporosis because the body had been forced to rob the skeleton of the nutrients necessary to support the infant’s vital organs.  Owsley could not rule out an illness causing the death, but said that the extreme tooth decay and lack of a birth defect pointed towards malnutrition.  Further, expert forensic analysis by the Smithsonian team revealed that the boy’s skull was flat in the back, which indicated the child had spent extensive time lying on his back without being cared for.  Owsley also testified that the skull had a small fracture because the bone was eroding due to lack of nutrients from food.

Attorneys for the Gores argue that Owsley’s expert testimony is biased against the couple, and based on the treatment of the daughter who was found malnourished and in a cage in the couple’s home.  The defense argued that the couple cared for the child, held the body for days after his death, and even fashioned him a coffin to be buried in.  Arguing that Owsley relied on questionable evidence, the Gore’s lawyer attempted to discredit his expert opinion and convince jurors that there is insufficient evidence to connect the couple to neglect and child abuse.

Philadelphia Lawyer Held Accountable for Expert’s Violation of Court Order

The importance of good communication between an expert witness and the attorney who hires the expert is illustrated by a sanction of nearly $1 million dollars that a judge in Philadelphia imposed upon an attorney after an expert violated a court order. The controversial ruling has unsettled Philadelphia lawyers who say they should not be held accountable for mistakes made by their expert witnesses.

The Expert’s Violation of the Court’s Order

Insurance defense lawyer Nancy Raynor represented a doctor in a lawsuit alleging that the doctor’s malpractice contributed to a patient’s death. X-rays taken in response to the patient’s complaints of chest pains and shortness of breath revealed a potentially cancerous nodule on the patient’s lung. The patient was not warned about the nodule. Twenty months later, the patient was diagnosed with lung cancer. He died six months after receiving that diagnosis.

Lawyers for the patient’s family obtained an order from the trial judge barring any reference to the patient’s history of smoking. The judge agreed that the question at trial was whether the healthcare providers were negligent in failing to diagnose and disclose a potentially cancerous condition, regardless of how the cancer might have originated.

At trial, Raynor called a physician as an expert witness for the defense. During the physician’s testimony, Raynor asked whether the deceased patient “had any cardiac risk factors.” The physician answered that the patient was hypertensive and a smoker.

The jury ruled in favor of the patient’s family but returned a verdict of $190,000, an amount that barely covered the expense of the plaintiffs’ expert witnesses. The judge then granted a motion for a new trial, citing the prejudicial nature of the defense expert’s testimony and the violation of the court’s order. The judge ordered Raynor to pay $170,000 in costs incurred by the patient’s family in bringing the case to trial. The judge also ordered Raynor to pay more than $775,000 in legal fees to the two firms that represented the plaintiffs.

At a second trial, the patient’s family obtained a verdict of $1.9 million. That fact did not appease the trial judge, who rejected Raynor’s motion to reconsider his ruling. An appellate court is now considering the appropriateness of the sanction.

The Duty to Communicate with Witnesses

When the court enters an order that prohibits witnesses from giving certain testimony or mentioning specified facts, lawyers have a duty to caution their witnesses about the order. As Raynor’s case makes clear, lawyers should take pains to emphasize the importance of tailoring expert witness testimony to comply with the court’s order.

Raynor told the court that she advised the expert of the court’s order and argued that she should not be held responsible for the expert’s mistake. When questioned at the sanctions hearing, the expert testified that he “could not recall” whether he had been told not to mention the patient’s smoking habits but conceded that he “possibly” was told not to do so. Raynor called two witnesses to support her testimony that she warned all her trial witnesses about the court’s order. The judge rejected that testimony in imposing sanctions.

After a midlevel appellate court sent the case back to the trial judge for a new sanctions hearing, Raynor called a third witness who confirmed hearing her caution her witnesses not to testify about the patient’s smoking habit. The judge said that the witness’ testimony was not credible, in part because it was inconsistent with testimony given by Raynor’s other witnesses. The judge accused Raynor of deliberately violating the order to influence the outcome of the trial.

Concerns Raised About the Judge’s Ruling

Philadelphia lawyers have expressed concern about the judge’s ruling. If it is upheld on appeal, Raynor says she will be forced to close her practice and might lose her home. Lawyers worry that the case sets a precedent for imposing huge sanctions upon attorneys when their expert witnesses inadvertently violate court orders.

Dividing blame between the expert and the lawyer is at the heart of the judge’s sanction order. However that issue is ultimately resolved on appeal, the case sends a message to lawyers and to expert witnesses about the importance of communication. When a judge enters an order that limits or otherwise affects the testimony to be given by an expert, lawyers must take care to ensure that the expert is advised of the order and understands its meaning and importance.

Lawyers who want to minimize the risk that they will be held accountable for an expert’s violation of a court order might want to give the expert written notice of the order. A letter instructing the expert not to give prohibited testimony, reinforced with an oral warning immediately before the expert testifies, could save both the lawyer and the expert from the embarrassment (and financial trauma) that follows the violation of a court order.