Category Archives: ExpertWitness

Experts Play Critical Role in Shaken Baby Cases

A New York father has been acquitted of charges stemming from the tragic death of his 4-month old son, whose suspicious death led prosecutors to believe that Adrian Thomas had caused his child’s death by violently shaking him. As has become common in trials following suspicious death of infants, the Thomas verdict was heavily influenced by expert witnesses whose testimony assisted jurors in understanding the circumstances of the case.

Adrian Thomas Acquitted of Second Degree Murder Charges

Adrian Thomas received attention from police and prosecutors after his 4-month old son, Matthew, was found dead in September of 2008. After a 2009 guilty verdict that was dismissed on appeal due to an improperly obtained confession, prosecutors in Troy, NY again brought Mr. Thomas to trial, this time relying on testimony by medical experts to prove that Matthew’s death was caused by traumatic brain injury suffered as a result of being shaken. In response, Thomas’ attorneys argued that a bacterial infection in Matthew’s blood was the cause of his death, clearing their client of wrongdoing.

After both sides presented a number of medical expert witnesses to offer opinion on the cause of Matthew’s death, jurors determined that there was insufficient evidence to conclude that Mr. Thomas shook his son and cause his fatal injuries.

Prosecution Experts Argue Injuries Point to Shaken Baby Syndrome

New York prosecutors called medical examiner Michael Sikirica as an expert witness to testify that Matthew Thomas suffered from traumatic brain injury commonly seen in shaken baby syndrome. Dr. Sikirica noted that a subdural hematoma like the one Matthew experienced are most often caused by head injuries. Sikirica went on to testify that such injuries can be caused by rapid change in velocity that moves the brain back and forth, often indicating the infant is the victim of shaken baby syndrome.

Prosecutors argued that Dr. Sikirica, who performed Matthew’s autopsy, told the most important part of the story because he identified a cause of the child’s death. Arguing in closing that Dr. Sikirica’s testimony was “consistent with blunt force trauma,” prosecutor Christa Book pointed to her medical expert witness as a critical voice in the trial. To reinforce Dr. Sikirica, Ms. Book called on Dr. Carole Jenny to provide expert testimony after reviewing medical records. Dr. Jenny agreed with the medical examiner’s opinion, and testified to jurors that Matthew died of head trauma.

Defense Medical Expert Claims Bacterial Infection Led to Death

Defense attorney Stephen Coffey countered the prosecution’s argument by attempting to show that Matthew died after going into septic shock due to a bacterial infection in his brain. Dr. Jerome Klein, a medical expert from Boston University, was called to analyze Matthew’s injuries and provide opinion on his death. Dr. Klein acknowledged the possibility of head trauma, but pointed out that a brain infection could have caused the same symptoms and death. Dr. Klein’s testimony was designed to present a viable alternative theory of Matthew’s death, and he did so by explaining that the injuries the child suffered were not necessarily the result of shaken baby syndrome.

The Adrian Thomas case is yet another example of the questions debated by medical expert witnesses who are faced with a mysterious infant death that displays signs of head trauma. As blogged about here, shaken baby syndrome can result in hotly contested medical expert testimony, and in this particular case jurors were unconvinced that Matthew Thomas’ injuries were clearly caused by blunt force trauma. Prosecutors and defense attorneys faced with a shaken baby case need to be aware of the different types of expert witness testimony available, and employ a full array of medical experts to provide useful analysis to jurors.

Education Expert “Misunderstood” in Landmark California Teacher Tenure Case

Earlier this month, a California judge made national headlines by striking the state’s teacher tenure laws on the grounds that the legislation violates students’ rights to equal protection guaranteed by California’s Constitution. As attorneys and scholars debate the soundness of Judge Rolf Treu’s legal conclusions, his factual foundation was shaken this week when a key expert witness claimed the Court misinterpreted statements he made during deposition – giving opponents further reason to believe the ruling will not survive the inevitable appeal process.

Teacher Tenure Ruling Relies on Expert Witness Testimony

Finding that tenure laws keep ineffective teachers on the job, thus depriving poor and minority students of quality education, a basic breakdown of the point-by-point reasoning in Judge Treu’s teacher tenure opinion is as follows:

  1. Quality education demands quality teachers;
  2. Laws of teacher tenure prevent dismissals – leaving bad teachers;
  3. Because laws produce bad teachers – particularly amongst poor and minority populations – they are subject to strict scrutiny;
  4. Tenure laws fail strict scrutiny because there is no compelling reason for a state to protect bad teachers.

The strength and validity of the legal conclusions supporting points 3 and 4 are left for scholars and higher courts to debate, but the factual meat of Judge Treu’s opinion that makes his conclusion possible rests in point 2: the assertion that teacher tenure laws produce bad teachers by protecting them from dismissal. In support of his position, Judge Treu cited testimony from Dr. David Berliner, an education expert witness who testified that “1 to 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of teachers in California are grossly ineffective.”

Finding that the percentages quoted by Dr. Berliner represented a startlingly high number of ineffective teachers, Judge Treu concluded that tenure laws have created a low quality educational environment that has a “negative impact on a significant number of California students,” making the tenure protection illegal under the state’s constitutional guarantee of equal treatment across all racial and ethnic groups.

Education Expert Witness Claims He Was Misunderstood

In the wake of the controversial teacher tenure ruling, Dr. Berliner publicly provided opponents the opportunity to undercut the factual foundation on which Judge Treu based his legal conclusions by claiming his estimates of “grossly ineffective” teachers were misunderstood by the court. As an expert witness, Dr. Berliner was questioned during a deposition about ways his “value-added model” of teacher effectiveness could identify bad teachers. When pressed by lawyers about whether or not 1 – 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of educators had strong negative effect in the classroom – and were thus “grossly ineffective” – Dr. Berliner responded in the affirmative.

After realizing that Judge Treu relied on his conclusion that 1 – 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of California teachers could be classified as grossly ineffective, Dr. Berliner clarified that he “never said that,” and that he was misquoted as an expert witness. Claiming that he estimated the figure when pressed by attorneys, Dr. Berliner stated that he has never met a grossly ineffective teacher, and his expert opinion about the overall quality of California’s educators was misrepresented in the landmark decision.

Misunderstood Expert Witness Testimony May Affect Outcome

A spokesperson for Students Matter, the organization that filed the lawsuit claiming teacher tenure laws were unconstitutional, was undeterred by Dr. Berliner’s claims that his expert opinion was misunderstood, saying that “nothing in the opinion hinges on that number.”  Although the legal basis for Judge Treu’s opinion can stand independently of Dr. Berliner’s testimony, and is undoubtedly the aspect of the decision that will receive the brunt of the criticism and scrutiny on appeal, downplaying the effect of an expert witness countering his testimony can be dangerous for the plaintiffs.

Judge Treu supported his position that teacher tenure laws produce grossly ineffective educators with Dr. Berliner’s expert testimony, so even if an appeals court agrees with his legal conclusion that such laws can unconstitutionally deprive students of quality education – an outcome which is far from assured – an expert witness recanting testimony can cast doubt on the judge’s factual conclusion and influence the future of the litigation. Whether or not an appeals court places significant stock in Dr. Berliner’s efforts to clarify his testimony, the embarrassing circumstance of a misquoted expert serves as a reminder to judges and attorneys that it is critically important to properly understand exactly what expert witnesses say during trial.

 

 

Remote Expert Testimony Via Skype Embraced in Australia

An Australian court has embraced the age of digital communications by allowing expert witness testimony to be delivered via Skype or other teleconferencing applications. Called remote witness evidence, the experimental practice has been utilized in select criminal courts over the past 12-months. Feedback on the procedure seems positive, particularly from expert witnesses who do not have to travel, but remote witness testimony is a long way from becoming widely accepted – particularly in the US.

Remote Expert Witness Testimony Useful in Australian Criminal Trials

Initiated to end the hours spent by police officers and other expert witnesses waiting at the courthouse, the driving force behind Australia’s experiment with remote testimony is efficiency in the legal system. Deputy Police Commissioner Catherine Burn touted the advantages of remote testimony by saying that time spent as a witness was “something that police have had a real frustration with for decades” before teleconferencing provided a solution. Prosecutors must notify the court that expert witnesses or police intend to present testimony remotely, and if the judge determines that the evidence is too contentious, the witness must still report to court in person.

In addition to trimming the time spent by expert witnesses, allowing remote testimony has two other notable advantages:

  • Cost: Paying an expert witness to travel to a courthouse for testimony can get expensive – particularly if the expert is not local. Hiring an expert witness can be expensive, and costs such as flights, rented cars, meals, and hotel rooms can easily make the use of some experts too pricey for a number of criminal defendants.
  • Expanded Access: With concerns over travel costs effectively eliminated, clients in a remote testimony environment have expanded access to a variety of experts. Over the course of Australia’s experiment with remote testimony, some cases featured testimony by experts in other parts of the country and even as far away as England.  With remote testimony in place, clients can rely on expert witnesses from virtually anywhere – providing the internet connection allows for easy teleconferencing.

Australian courts making use of remote testimony reported little to no problems with connectivity or communication quality, meaning introducing expert witness testimony via teleconference was not significantly different than doing so in person.

United States Unlikely to Welcome Remote Expert Witness Testimony

The concept of remote witness testimony is not uncontemplated by American jurisprudence.  The Supreme Court spoke directly to the issue in 2004’s Crawford v Washington, and directly rejected widespread use of remote testimony as being in violation of the Confrontation Clause of the Constitution. The Confrontation Clause gives every criminal defendant the right to physically confront, in court, any witness – including an expert witness – who offers evidence during trial. The Crawford opinion echoed the Court’s decision to reject a 2002 amendment to the Federal Rules of Evidence that would have allowed remote witness testimony based on concerns over the Confrontation Clause. The Supreme Court, setting the tone for the American legal system, has declined the opportunity to allow widespread use of remote expert witnesses, and it is unlikely the thinking will change dramatically despite technological advances that have made teleconferencing more affordable and reliable since the Court last weighed in.

Although the issue of remote testimony seems stagnant in the United States, it is not necessarily dead. Courts already allow limited use of teleconference testimony, typically reserved for situations in which the witness is intimidated by the defendant and unable to confront him in court – none of which would apply to use of experts. As technology improves teleconferencing – an innovation clearly not considered by the Constitution – Courts may begin to recognize that defendants are still able to confront a witness who testifies remotely. Legal scholars continue to keep the issue fresh (see articles here, here, and here), and it is possible, even likely, that a younger generation of judges who are more familiar with technology will be willing to open the door for remote testimony across the U.S.

Pennsylvania Supreme Court Rejects Use of False Confessions Expert Witness

Criminology research indicates that approximately 1/3 of people accused of crimes issue a false confession – a troubling statistic considering how valuable confessions are in criminal trials. Behavioral scientists have conducted years of research into the matter, and recently the Pennsylvania Supreme Court was called upon to decide on whether a social scientist expert witness could offer testimony regarding false confessions during a criminal trial. Unconvinced by social science research, the Court rejected behavioral expert testimony regarding false confessions, contradicting a similar opinion it issued the same day.

Pennsylvania Court Rejects False Confession Expert

In Commonwealth v Alicea, a divided Pennsylvania Supreme Court reversed a lower court decision that allowed a nationally renowned behavioral science expert to testify about false confessions during a criminal trial. Murder trial defendant Jose Alicea, accused of a 2005 killing, confessed to the crime after five hours of intense police interrogation. Lawyers for Mr. Alicea, whose IQ of 64 is well below the traditional threshold for intellectual disability, argued that expert testimony regarding the tendency for certain defendants to falsely incriminate themselves was critical to jurors’ analysis of their client’s confession.

Writing for the majority, Judge Seamus McCaffery was unconvinced that jurors needed a behavioral science expert witness to evaluate the legitimacy of confessions. Wishing to avoid a battle of experts arguing social science generalities, the court wrote, “Ultimately, we believe that the matter of whether a confession is false is best left to the jury’s common sense and life experience.” Cleary, Judge McCaffery and the rest of the 4 – 2 majority were unconvinced that the value of behavioral science research outweighed the potentially overwhelming use of social science experts during criminal trials – leaving dissenting judges with a strong counterargument.

Dissent Argues Value of Behavioral Science Expert Witnesses

Dissenting members of Pennsylvania’s high court took issue with the majority’s approach to social science research. Writing for the minority opinion, Judge Thomas Saylor criticized the majority’s “blanket exclusion of social science research based upon unanalyzed assumptions about juror capabilities, even as these assumptions are challenged by demonstrations of wrongful convictions and developing behavioral science.”

Judge Saylor’s argument is echoed by defense attorney organizations and social scientists who seek acceptance by the judiciary of established behavioral science research. It also represents a position the Pennsylvania Supreme Court was willing to accept in a related case – leaving the overall place for behavioral science expert witnesses in Pennsylvania criminal trials somewhat unclear.

Alicea Decision Contradicts Earlier Ruling on Use of Behavioral Science Experts

The Court’s decision in Alicea is somewhat puzzling considering that earlier in the day it accepted the use of behavioral science in Commonwealth v Walker – blogged about here. In Walker, the Pennsylvania Supreme Court accepted testimony by a behavioral science expert witness who explained to jurors the inaccuracies common across eyewitness testimony. Like Walker, the defendant in Alicea relied on expert testimony based on advances in social science to explain general patterns of human behavior that could influence a criminal investigation and trial, however, Pennsylvania’s Court was unwilling to broadly welcome behavioral science by accepting it in both cases.

While it is difficult to reconcile the two outcomes from Pennsylvania’s Supreme Court, the combination of Walker and Alicea are useful case studies of the integration of behavioral science expert witnesses into the legal system. Although it is clear by the dissent in Walker and the majority opinion in Alicea that some judges are unwilling to buy into the conclusions advanced by social science research, the partial acceptance in Walker is an encouraging step for behavioral science proponents. The expanding use of expert witnesses with behavioral science expertise will force more state courts to consider similar issues, and, while Pennsylvania may not offer a model of consistency, the Walker and Alicea decisions highlight the types of arguments judges will consider in future cases.

Federal Fourth Circuit Forces Experts to Separate Opinions from Fact During Testimony

Expert witnesses are often used by attorneys to analyze facts and circumstances of a case and offer opinions to help jurors better understand the relevant issues. Federal evidentiary rules, which reflect the widely accepted Daubert standard, permit expert opinion testimony providing it is reliable and supported by scientific knowledge. Recently, the Fourth Circuit Court of Appeals issued a ruling that reminds attorneys that an expert’s opinion must also be clearly distinguishable from fact.

Government Witness Improperly Mixed Fact with Expert Opinion

In United States v Garcia, the Federal Fourth Circuit Court of Appeals reversed the criminal conviction of an alleged drug dealer due to improper testimony from an FBI expert witness. During trial, the prosecution relied on an FBI special agent to testify both as a factual witness, based on her work during the criminal investigation, and an expert witness, based on her years of experience decoding drug related conversations. In dismissing the conviction, the Fourth Circuit held “there were inadequate safeguards to protect the jury from conflating [the agent’s] testimony as an expert and fact witness,” reminding attorneys that there must be a clear line between fact and opinion testimony.

In its decision, the Fourth Circuit determined that the Government’s expert witness “moved back and forth between expert and fact testimony with no distinction,” which allowed the prosecution to submit evidence under the guise of expert opinion. For example, the agent testified that the phrase “one hundred forty five point” referred to 145 grams of heroin – a fact she gleaned from the investigation that was presented to the jury as an expert decoding of a drug related conversation. By mixing facts and expert opinion testimony, the prosecution was able to insert evidence into the trial without going through the proper channels.

Improper Connection Drawn Between Facts and Conclusions

The Fourth Circuit also took issue with the prosecution’s drug investigation expert witness for drawing the connection between facts and conclusions – essentially giving the Government’s case additional credence by tying her expert opinion to it. During trial, it is up to the prosecutor to establish facts that are sufficient to convict, and, although experts may opine on the meaning of facts, it is inappropriate for an expert witness to make the prosecution’s argument by connecting evidence to the underlying argument. The Fourth Circuit determined that such testimony falls outside of the evidentiary rule which “contemplates that an expert’s opinion testimony will be ‘helpful to the jury,’ not merely helpful to the prosecutor as transmutations of simple fact testimony.”

Finally, the Government’s FBI expert witness failed to lay an adequate foundation for either her factual or her expert opinion testimony. Under Daubert standards that have been codified by the federal rules of evidence, expert witnesses must demonstrate their testimony is based on reliable, scientific knowledge. This requires attorneys to ask questions during testimony that give the expert the opportunity to support her opinion with reliable methodology or theory. By failing to do this, the prosecution further blurred the lines between fact and expert opinion, and further allowed the FBI expert’s testimony to make the Government’s argument rather than help the jury understand the facts.

Garcia’s Guide for Expert Opinion Testimony

The Garcia opinion clarified that attorneys must be careful when presenting expert opinion testimony. Expert witnesses are permitted to offer their opinion in order to assist the jury in understanding the facts, but an expert cannot be used to tell the party’s story. Expert opinion testimony offers insight into complex issues that jurors may not be able to properly comprehend, but it is up to attorneys to integrate the facts of the case with the expert’s opinion in order to make a convincing argument. As the Fourth Circuit demonstrated in United States v Garcia, judges will hold parties accountable for properly separating expert opinion from fact by dismissing expert testimony that crosses the line between assisting the jury and making the attorney’s argument.

Arizona Supreme Court Allows “Cold” Expert Witness Testimony

The Arizona Supreme Court issued a landmark ruling last week, changing the way criminal trials in the state can make use of expert witness testimony. Rejecting an appeal of a lengthy prison sentence, the Court admitted testimony of a “cold” expert witness – meaning an expert who has not interacted with the victims.

Arizona Admits Cold Expert Witness Testimony

Martin Salazar-Mercado appealed his conviction of multiple counts of child abuse to the Arizona Supreme Court due to the prosecution’s use of an expert witness who knew nothing about the particular victims involved in the case. At trial, the state presented testimony of a forensic interviewer who discussed a condition known as Child Sexual Abuse Accommodation Syndrome in order to explain the behavior of Salazar-Mercado’s victims. Many of the child victims delayed reporting the abuse, had trouble recalling the timing of events, and even changed stories during the course of investigation – symptoms common among young victims of sexual abuse. Salazar-Mercado’s attorney objected to use of the expert witness because she had not interviewed any of the children or connected personally with the case.

In a unanimous decision, the Court rejected Salazar-Mercado’s appeal and set a lasting standard for the use of experts in Arizona criminal trials. Holding that the state’s forensic interviewer expert testimony was admissible, the Court found that, “Expert testimony about general behavior patterns of child sexual abuse victims may help the jury understand the evidence.” In this case, the state’s expert helped the jury understand reasons for the delayed and inconsistent reporting. In its conclusion, the court was careful to limit cold expert witness testimony to “general principles of social or behavioral science,” and reminded judges that cold testimony must still satisfy legal standards for admissibility.

Understanding Cold Expert Witness Testimony

Expert witness testimony is often used to analyze facts of the case and explain how professional or scientific knowledge applies directly to the particular issues jurors must decide. Experts are called upon to conduct investigations, write reports, and offer pointed testimony that help judges or jurors answer questions about the facts of the case. Traditionally, experts who have not interacted with the particulars of the case have not been used to speak to victim behavior, however the continued advances in social and behavioral science have made the use of cold expert witnesses possible.

A cold expert witness is so termed because she has not connected personally to the facts of the case, but instead is called upon to offer testimony on general principals – often relating to behavior. Courts make use of cold experts in order to understand why the parties involved behaved in a particular manner, but their testimony is limited in scope. In the Salazar-Mercado appeal, the Arizona Supreme Court properly restricted cold expert testimony by forbidding one to testify about “the accuracy, reliability or credibility of a particular witness,” because an expert who has not personally investigated the facts cannot comment on specific issues. As with any expert, a cold expert witness speaking to social or behavioral science must be able to show her testimony is supported by reliable and scientific knowledge before being admitted at trial.

Florida’s Third Circuit Issues First In-Depth Treatment of Daubert

A recent decision from Florida’s Third District Court of Appeal provided an in-depth discussion on the differences between the old Frye standard of expert witness admissibility and the currently used Daubert test. In Perez v Bell South, the Court considered expert witness testimony in a personal injury claim, and clarified for future litigants how the Daubert requirements differed from the state’s previous Frye test. Although the decision applies only to Florida, analyzing the case is useful to attorneys who need to be aware how Daubert expert witness admissibility rules compare to the older standard.

Perez v Bell South Emphasizes Use of Daubert

Maria Perez filed a personal injury claim on behalf of her developmentally disabled son, Osmany, against her former employer for negligently creating a stressful work environment that resulted Osmany being born 20 weeks early. Ms. Perez alleged that Bell South caused her such significant difficulty that she suffered a placental abruption, which led to Osmany’s premature birth and subsequent developmental deficits. As part of her case, Maria called upon the medical expert testimony of Dr. Isidro Cardella, a board-certified obstetrician and gynecologist. Dr. Cardella testified that, in his opinion, Bell South’s refusal to allow Ms. Perez frequent bathroom breaks or limit her working hours to 40 created such stress on her body that she suffered the placental abruption.

The trial court dismissed Dr. Cardella’s expert testimony and Ms. Perez’s case because it was based solely on his opinion as a medical expert. Applying the Frye test, the trial judge determined that an opinion not supported by medical evidence or research is inadmissible.  Ms. Perez appealed, arguing that “pure opinion” testimony does not fall within the guidelines of Frye. On appeal, Florida’s Third District Court correctly made the dispute over Dr. Cardella’s testimony moot by analyzing under the state’s newly adopted Daubert standard – clarifying for attorneys, and judges, how expert witness testimony, including opinion, is to be evaluated in the future.

Daubert Test v Frye Test

Created by the 1993 Supreme Court decision in Daubert v Merrell Dow Pharmaceuticals, the Daubert standard sets forth an evidentiary rule that determines whether or not expert witnesses are permitted to testify at trial. Over the last two decades, all federal jurisdictions and over half of the states have implemented the Daubert test, however, a number of states, including California and Illinois, have yet to make the switch. Relevant to the Perez case, Florida’s legislature enacted a law that made the Daubert standard the official state rule as of July 2013.

Prior to Daubert, courts analyzed expert witness testimony under a test established in the 1923 case, Frye v United States. The Frye test simply required courts to determine if an expert witnesses testimony was based on scientific methods that are “sufficiently established” in, and generally accepted by, the scientific community to which the expert belongs. As the Perez Court pointed out, the Daubert standard, as adopted by Florida’s legislature in 2013, requires additional analysis. Ensuring that an expert’s methods are accepted and established by the greater scientific community is one of many factors that a court must consider under Daubert, as now codified in Florida’s rules of evidence.

Florida courts must consider a number of factors to ensure expert witness testimony is scientifically reliable – most notably determined by analyzing an expert’s methodology and scientific knowledge. In addition to an expert’s approach being generally accepted, courts must also consider the level of peer review it has been subjected to, the error rate that can influence his results, and the existence of professional standards that govern the operation of an expert’s investigation. The Daubert standard requires courts to look at a variety of factors, and the Perez case noted that a simple Frye evaluation of expert witness testimony is no longer sufficient in Florida.

Understanding the Daubert Standard

Reviewing Dr. Cardella’s testimony through a Daubert lens, Florida’s Third District Court of Appeal arrived at the same conclusion – his testimony was inadmissible. The pathway to the correct decision is important, however, because, as Ms. Perez’s attorneys pointed out, a Frye analysis is not sufficient to evaluate a pure opinion testimony. Using the Daubert test, which applies to any expert witness testimony, Florida courts can determine the admissibility of an expert’s analysis of facts and his opinion of the case. Under Daubert, Dr. Cardella’s testimony still fell short because he did not back his conclusions with scientifically reliable support.

Attorneys who intend to use expert witnesses must understand the proper application of the Daubert standard and be prepared to use an expert who can provide reliable, scientific knowledge to support testimony. With limited exception, the Daubert standard controls expert witness admissibility, and, as Florida’s Perez v Bell South demonstrates, Daubert is more comprehensive and thorough than the once widely-used Frye test.

The Art of Finding the Value of Rare Coins

Many people dream about owning a piece of history. One of the most popular ways to accomplish this is through the ownership of coins. Ancient coins hold a magical attraction. Did the coin from biblical Israel circulate in Solomon’s temple in Jerusalem? Then there are coins that are literally brought up from the depths of the ocean. Prior to the Civil War, the SS Central American, a side wheel steamer, sank in a hurricane in September, 1857 off the coast of the Carolinas. The ship was carrying 30,000 pounds of gold, which came from the San Francisco mint. The impact of the loss was so great, that it contributed to the panic of 1857.

In 1988, the ship was located in the depths of the Atlantic Ocean. Since the gold, now with an estimated value of somewhere between $100 – $150 million, has captured the imagination of the collecting public. These recovered coins are highly sought after by gold coin collectors.

The Role of the Appraiser

Regardless of how the discovery of that long-forgotten coin or collection came about, you will want to bring in the professional appraisers, for any number of reasons: estate taxes, equitable distribution, donations to charitable groups such as museums, or for eventual sale. Many people have trusts. With the passing of the first spouse, the trusts must be appraised to re-establish the basis of the estate. Whatever the reasons, you will want to hire an appraiser who is accredited and certified numismatic experience with the American Society of Appraisers (ASA, for short).

Factors in Valuing Rare Coins

To start a numismatic appraisal, an inventory list has to be made. There are four primary factors which determine value, that is, how much the marketplace determines what people will pay.

First is the denomination, such as a $20 gold coin. This is the face value of the coin, which never changes, for it is part of the minting process.

Second is the mint mark (if any). This means what mint the coin was made. Like the denomination, this is also part of the minting process and never changes. The location of the mint mark varies from denomination to denomination. Some are on the obverse (front), just below the date. Others are on the reverse under the eagle tail feathers, such as the Morgan dollar. Coins made at the Carson City Mint usually have greater value then coins made at other mints because so few were made.

Third is the date (year) on the coin. Like the denomination and mint mark, this is also part of the minting process and never changes.  Japanese coins do not represent the calendar year as is the custom in the western nations, but the number of years the emperor has been on the throne. Islamic coins reflect the year on the Islamic calendar.

Lastly is the grade. This is the amount of wear (physical condition) on the coin. This is the big variable in determining the value of the coin. Wear can never be reversed and the degree of wear determines the grade which is used by dealers and grading services. Coins in pristine condition and high eye appeal are generally worth more than a coin which is badly corroded or has nicks and scratches.

Like all other commodities and goods, the laws of supply and demand play an important role in determining the value of coins. For example, in 1916, the Winged Liberty Head dime was minted at three different mints. At the Philadelphia and San Francisco mints, millions were produced. However, at the Denver mint, a little more than 250,000 were minted. The Denver coins are highly sought because of the low mintage.

Counterfeit coins

Numismatic appraisers have to constantly be aware of counterfeit coins. This is especially true of coins made in the ancient world, such as Greek, Roman and Islamic. An estimated one-third of coins from the ancient world are counterfeit. Only a specialist in these coins can tell the difference from legitimate minted coins from its counterfeits. To help determine the validity of the coins, some coins have to be sent to a grading service, which authenticates the coins, then determines the grade. Grading services are independent third party companies that verify if the coin was made by a government mint or produced by counterfeiters.

Coins Minted with Errors

Occasionally, the mint produces coins which have errors. So-called error coins are legal to own. A typical example of an error coin includes die rotation. A die rotation happens when the die accidentally slips and turns, but is not caught by mint officials. The obverse and the reverse designs are normally opposed by 180 degrees. If a die rotates, and the reverse is other than 180 degrees, you have an error coin. Not surprisingly, many coins that contain mistakes actually have considerable value since mistakes do not happen often. Many people specialize in collecting error coins and are willing to pay a premium.

Disposing the Coins 

In today’s world, many heirs chose not to keep the property their parents or grandparents had for decades, opting instead to sell the items and take the cash. This can be accomplished several ways: (1) selling rare coins at auction; (2) working with a coin broker (not a local coin dealer) who has a world-wide business; (3) selling the coins to a private party, or (4) selling to another heir who would rather have the highly valued coins as a form of investment or for their beauty, similar to a piece of art. Frequently, the trust often specifies that property be distributed by equitable distribution. What is important to remember is that federal law allows the trustees and heirs of estates up to nine months to start the appraisal process. Regardless when the appraisal is performed, the values that must be present in the appraisal report reflect the values at the date of death, not the date the items were reviewed.

Accident Reconstruction Expert Testimony Rejected by Oklahoma Court of Appeals

An interesting expert witness case out of Oklahoma this past week, as the state’s Court of Appeals dismissed expert testimony regarding the cause of an accident that injured a 12-year-old boy who was struck by a car while walking in the street. On an appealed decision, Oklahoma’s second highest court rejected two accident reconstruction expert witnesses for taking their testimony beyond the facts, and speaking directly to the key determination of negligence.

Defense Accident Reconstruction Witnesses

The incident in Moore v Blackwell occurred in September of 2007 when 12-year-old Jerrit Moore was walking alongside an interstate service road in Norman, Oklahoma. The boys were walking at night without reflective clothing or lights of any kind, and decided to cross the street in order to walk with traffic. As they crossed, the defendant, Robert Blackwell, was driving along the road. Blackwell swerved to avoid the boys, who were in the middle of crossing, and clipped Jerrit, causing him injury. Jerrit’s father filed a negligence claim seeking $10,000 in damages for Jerrit’s injuries.

As part of his defense, Blackwell called the investigating police officer, Michael Thomson, and an accident reconstruction expert, Terry Harrison. Thomson testified that his investigation concluded that Jerrit, who was in the middle of the road, was more at fault than Blackwell. Officer Thomson did not issue a citation to Blackwell for the accident because, in his opinion, the driver had not acted inappropriately considering the circumstances.

Accident reconstruction expert Harrison reaffirmed Officer Thomson’s investigation by testifying that he found no negligence on the part of Blackwell. According to Harrison’s expert analysis of the accident, Blackwell was driving within the speed limit, recognized a danger in the road, and reacted appropriately considering the circumstances. Although striking Jerrit was unfortunate, accident experts Thomson and Harrison testified that, in their opinion, Blackwell was not negligent in striking the young man.

Oklahoma Court Rules Accident Reconstruction Expert Testimony Inadmissible

At trial, Moore unsuccessfully attempted to have both experts prevented from testifying before a jury ruled in favor of Blackwell due to lack of negligence. On appeal, the Oklahoma Court of Appeals agreed with Moore and sent the case back to trial without the specific testimony offered by Thomson and Harrison. Finding that the experts spoke to the ultimate issue in the case – negligence and the cause of the accident – the Oklahoma court found that both experts had failed to provide the type of testimony that was permissible for expert witnesses.

Judge Jane Wiseman wrote, “The ultimate opinions of these two witnesses that Blackwell was fault-free and that Jerrit Moore’s negligence caused the collision are not opinions requiring special skill or knowledge, nor do such opinions constitute technical matters requiring special skill to interpret the evidence and reach a conclusion.” Neither expert offered an analysis of the facts that required their particular expertise, but instead spoke only to which party’s negligence caused the accident. According to the Court, Oklahoma law requires experts to limit their testimony to opinions of the facts and not speak to issues of negligence or fault.

Dissent Supports Use of Accident Reconstruction Experts

The difference between testifying to negligence, and offering expert accident reconstruction opinion seems difficult to comprehend, and dissenting members of the Oklahoma Court of Appeals voiced a strong argument against the decision. Judge John Fischer claimed that the majority had misinterpreted the law, and under the Daubert standard, which has been adopted in Oklahoma, both of Blackwell’s experts offered reliable and scientifically sound testimony that interpreted the facts and allowed jurors to make the necessary decision regarding negligence.

Accident reconstruction experts walk a fine line between diagraming an accident and offering their opinion on which party is negligent. Attorneys in car accident negligence cases must be acutely aware of the relevant state law, and ensure that their accident reconstruction experts carefully word testimony to explain the cause of an accident without offering conclusions that experts are not permitted to make. In Moore v Blackwell, the defendant’s attorneys allowed his experts to drift away from offering technical analysis and instead speak directly to the ultimate question of negligence – violating Oklahoma’s standards for expert witness admissibility.

Pennsylvania Supreme Court Allows Expert Testimony on Eyewitness Identification

Pennsylvania’s Supreme Court made a significant ruling on expert witnesses this week when it determined that juries may hear experts testify to the reliability of eyewitness identification.  Social scientists have dedicated years of study that casts doubt on the ability of eyewitnesses to accurately recall events – meaning that juries may be making decisions based on incorrect accounts. Many state jurisdictions and federal courts already allow expert witnesses to inform jurors about the unreliability of eyewitnesses, making Pennsylvania the latest in a long list of courts to take this step.

Eyewitness Testimony is Questionably Reliable

Study of the human brain has revealed that we have difficulty accurately recalling information, and often fill in the memory gaps with embellishment or fiction to produce a false account of what occurred. Much of this is subconscious, meaning that eyewitnesses may believe they are telling the truth, but, regardless of intent, scientists suggest that many eyewitness reports are tainted by untruths that could significantly alter a juror’s perception of what occurred. From misidentification of a defendant, to inaccurate recollection of events, experts on eyewitness testimony have identified a number of concerning legal consequences of the human brain’s inability to accurately recall information.

Complicating the inaccuracies that plague eyewitness testimony is the value that jurors place on that type of evidence. Jurors find eyewitnesses to be strongly convincing, which means that trials are heavily influenced by information that is potentially unreliable given the source. Further study has demonstrated that jurors are not able to tell when an eyewitness is lying, so there are few safeguards in place to prevent reliance on inaccurate testimony. Although the effect of an eyewitness expert testifying to the unreliability of personal recollections at trial is unknown, many legal jurisdictions have recognized the importance of having an expert inform the jury of the scientific community’s investigation into eyewitness accounts.

Pennsylvania’s Eyewitness Identification Expert Ruling

Pennsylvania’s Supreme Court considered the case of Benjamin Walker, a man convicted of a 2005 robbery of two college students in Philadelphia. Walker, who is serving 35 years in prison, was convicted because the victims identified him during their testimony. Walker and his attorneys brought the challenge in an attempt to allow him to present a psychology expert witness who would explain to jurors that eyewitness identifications are potentially unreliable.

The four-justice majority in the case agreed with Walker’s argument, and determined that Pennsylvania jurors will now be allowed to hear expert testimony on the reliability of eyewitness identification. Writing for the majority, Justice Debra Todd stated, “Twenty years of advances in scientific study have strongly suggested that eyewitnesses are apt to erroneously identify a person as a perpetrator of a crime when certain factors are present.” Finding that the statistical evidence suggesting the inaccuracy of eyewitness testimony is “substantial,” Justice Todd supported the use of expert testimony to inform jurors of concerns of eyewitness identification.

Eyewitness Expert Testimony Ruling Not Unanimous

Two judges on Pennsylvania’s Supreme Court dissented from the majority, writing that a better approach would be to allow the judge to inform jurors about the potential issues with eyewitness identification during juror instruction. Arguing that allowing expert witnesses to testify about eyewitness identification would open the door to allow experts to confuse jurors with testimony questioning all aspects of eyewitness accounts. Chief Justice Ronald Castille went on to defend jurors’ ability to understand the problems with eyewitness identification, saying that social science experts are not needed to inform juries about “matters affecting human perception and recall.”

Despite the dissent, which seems to ignore convincing study on the value of social science experts on eyewitness testimony, many criminal defense attorneys consider the Pennsylvania decision to be a step in the right direction. Defense attorney organizations argue that allowing eyewitness experts to testify about recall problems will help reduce wrongful convictions, and Pennsylvania’s decision to join other jurisdictions in allowing social science expert witnesses to contribute testimony is a positive outcome for the integrity of criminal prosecutions.