Category Archives: General

Florida Judge Advocates for Increased Use of Eyewitness Experts in Criminal System

A Florida Supreme Court Justice issued a strong argument for the use of eyewitness testimony expert witnesses in the state’s criminal system – supporting the growing field of social and behavioral science that has called to question the accuracy of eyewitness identification. Justice Barbara Pariente issued her comments imploring the use of eyewitness experts as a concurring opinion in the court’s recent decision to reject the appeal of a Death Row inmate, opening the door for supporters of the issue to push for expanded use of behavioral science studies in Florida courtrooms.

Florida Supreme Court Justice Calls for Eyewitness Expert Witnesses

Justice Pariente saw the opportunity to make her opinion on the use of behavioral science experts known when Charles Peterson filed an appeal to his Death Row conviction on the grounds that his trial lawyer’s failure to use an eyewitness identification expert constituted ineffective assistance of counsel. Although Pariente joined the unanimous ruling dismissing Mr. Peterson’s appeal, she, joined by Justice Peggy Quince, wrote a strong concurring opinion that championed the use of such experts in future trials. Her 8-page opinion noted that the outcome of Peterson’s appeal should not lead courts to conclude that the use of eyewitness identification experts is inadmissible, but instead encouraged judges to welcome such testimony to help juries decide on the reliability of eyewitness identifications.

Currently, Florida courts rely on a 31-year-old standard for eyewitness experts which rejects their use, arguing, “a jury is fully capable of assessing a witness’ ability to perceive and remember…without the aid of expert testimony.” Justice Pariente disagreed, pointing out that advances in social science have identified a number of factors that can result in misidentification and misremembering by eyewitnesses, and jurors are unable to tell when a witness is mistaken. Pariente wrote, “As the burgeoning body of scientific research indicates and courts across the country increasingly recognize, expert witness testimony on the reliability of eyewitness identifications can be a “powerful tool in helping the criminal justice system achieve its goal of convicting the guilty while acquitting the innocent.”

Justice Pariente Not Alone in Legal Community

As she noted in her opinion, Justice Pariente is not alone in welcoming the use of eyewitness expert testimony to help judges and juries analyze eyewitness identification. As blogged about here, Pennsylvania recently welcomed the use of eyewitness experts, joining courts in New Jersey, Utah, Oregon, and Connecticut. Justice Pariente pointed to Connecticut’s stance on the matter, suggesting that Florida “adopt the rationale of the Supreme Court of Connecticut … and conclude that this Court’s precedent, which suggests that factors affecting eyewitness testimony are within the common experience of jurors, is ‘out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror.’”

Justice Pariente also pointed to work on the issue submitted by the Innocence Project, a nationwide organization that seeks to combat wrongful convictions in part by informing jurors about the common errors that plague eyewitness identification. Pariente noted research by the Innocence Project which found that 75{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of wrongful convictions later exonerated by DNA were the result of eyewitness misidentification – evidence that not only are eyewitnesses frequently unreliable, but that jurors are not able to identify when misidentification has occurred.

Although Justice Pariente’s analysis represents a progressive use of eyewitness experts that is supported by a growing number of behavioral science studies, the legal community has not widely embraced the change. Judges across the country still believe in the ability of jurors and attorneys to ferret out unreliable testimony, and are hesitant to open the courtroom doors to social science experts like those who offer analysis of eyewitness accounts. Because Justice Pariente’s argument was unrelated to the outcome of the case in which she wrote it, Florida judges are not compelled to welcome eyewitness expert testimony, however, Pariente’s words are encouraging to advocates of behavioral science experts and may prove significant should the Florida Supreme Court have the opportunity to set a new standard in the near future.

Pennsylvania Supreme Court: Is Social Science “Common Sense” or a Tool to Correct Juror Misconceptions?

The Pennsylvania Supreme Court recently issued two decisions regarding the use of social science experts in criminal cases. As noted by University of Pittsburgh law professor David Harris, however, the opinions appear to “come from two different worlds.” In one, Commonwealth v. Walker, the Court held that expert testimony regarding memory and human perception could be used to educate jurors on the potential fallibility of eyewitness identifications, holding that such evidence may assist the jury in weighing the evidence presented at trial. In the other, Commonwealth v. Alicia, the Court held that an expert was not permitted to explain the psychological factors that could result in a false confession. Unlike in Walker, the Alicia Court did not provide any discussion of the underlying scientific research. Rather, a divided Court simply held that the proposed expert testimony would infringe on the “jury’s role as arbiter of credibility.”

The Court’s divergent approach to social science in these cases raises important questions about the current and future role of social science in the courtroom.

The Limits of Eyewitness Identification

In Commonwealth v. Walker, the Court reversed its longstanding position on the use of expert testimony regarding the reliability of eyewitness identifications, holding that such evidence is no longer per se impermissible in Pennsylvania. In doing so, the Court followed the “unmistakable trend” in recent cases across the country and joined 44 other states and the District of Columbia in permitting expert testimony on this issue. Specifically, the Court was convinced that “advances in scientific study have strongly suggested” that eyewitnesses identifications may be inaccurate, particularly when the crime involves a weapon and the perpetrator is of a different race. In the Court’s view, effective cross-examination and closing arguments may be insufficient to inform the jury of these risks.

Writing for the majority, Justice Todd explained that trial courts should have the discretion to permit an expert to “educate” the jury about the psychological factors that may impact eyewitness identifications. In so holding, the Court dismissed the Commonwealth’s argument that such testimony would invade the jury’s role as fact-finder. The Court noted that experts would only be permitted to address general psychological principles, not the credibility of a particular witness or the accuracy of any particular identification. In the majority’s view, such testimony would improve juror decision-making by opening their eyes to the potential fallibility of human memory and perception in high stress situations.

Chief Justice Castille and Justice Eakin issued dissenting opinions, with Chief Justice Castille also joining in Justice Eakin’s dissent. Chief Justice Castille criticized the majority for blindly following the trend in decisions of other states, without independently evaluating any psychological research. In refusing to “sign on to the Majority’s enshrinement of this contested social research in these circumstances,” Chief Justice Castille expressed skepticism about the social science underlying eyewitness identification and questioned whether expert testimony on memory and perception would actually assist jurors. He went on to say that “I understand the attraction of the lemmings to the sea approach, but I also try to keep in mind the cliff awaiting[.]” He also questioned whether the benefits of expert testimony, as opposed to the traditional approach of exploring flaws in eyewitness identification through effective cross-examination, “will justify the price-tag” of competing experts.

“The Phenomenon of False Confessions”

In Commonwealth v. Alicia, the majority took a more skeptical view of developing social science. In Alicia, a man with “low intelligence” and “mental health issues” confessed to firing a gun that killed an innocent bystander. Of the eyewitnesses, only one pointed to the defendant – the others claimed it was one of two other men. Before trial, the defendant convinced the trial court that he should be permitted to offer an expert to explain psychological research regarding how false confessions may result from interrogation.

The Commonwealth took an interlocutory appeal from the trial court’s decision, asserting that the proposed expert testimony invaded the jury’s exclusive role as the arbiter of credibility. A divided panel of the Superior Court affirmed. In an opinion authored by Justice McCaffrey, the Supreme Court reversed, holding that “[g]eneral expert testimony that certain interrogation techniques have the potential to induce false confessions improperly invites the jury to determine that those particular interrogation techniques were used to elicit the confession in question, and hence to conclude that it should not be considered reliable.” Such issues, rather, are “best left to the jury’s common sense and life experience[.]”

Unlike its decision in Walker, the Court offered no discussion of the scientific studies on false confessions or the prevailing position of social science on the issue. In the opinion of David Harris of the University Pittsburgh, the Court’s omission of any such discussion is “troubling,” as the research on false confessions “is there. It’s well done. It’s reliable. And yet, it’s not even mentioned in the Alicia opinion. [The Court] just ignore[s] it.”

Scientific Testimony or Common Sense?

The primary distinction between the Court’s treatment of social science in Walker and Alicia is the subject matter of the research. Although the Court has refused to endorse the validity of the body of psychological research behind false confessions, it has given defendants license to use similar research to challenge eyewitness identifications. One possible reason for the different outcomes is that police interrogations and confessions are familiar territories for the Court, while psychological findings regarding “weapons focus” and “cross-racial identification” are outside the Court’s experience. Indeed, the admissibility and reliability of confessions are already the subject of Miranda and other constitutional protections that have long been a staple of criminal procedure.

Setting aside for a moment the question whether the Court has simply given greater credence to the more extensive body of social science underlying faulty eyewitness identifications over false confessions, one thing is clear – the Court will approach expert testimony in this field with caution. The Court clearly was reluctant to admit expert psychological or psychiatric testimony that would serve as a direct challenge to witness credibility, a matter viewed as “well within the range of common experience, knowledge, and understanding of a jury.”

As the Court recognized in Walker, however, social science experts can educate the jury that its common sense may be wrong in certain circumstances. Such expert assistance may improve decision-making. But, as noted by Chief Justice Castille, experts are expensive, and “not all disciplines self-denominated as scientific are as objectively reliable as others.” While costs should not alone justify excluding important exculpatory evidence in criminal cases, practical concerns regarding whether expert testimony bolstering or undermining the testimony of eyewitnesses to a crime clearly warrants further scrutiny on a case by case basis, ensuring that the requisite elements of Pennsylvania Rule of Evidence 702 and the Frye test have been satisfied.

It remains to be seen to what extent the Court’s ruling in Walker will generate frequent expert challenges to eyewitness testimony. For now, it is up to the trial courts and criminal defense attorneys to determine which cases will likely benefit from social science experts and what quantum of expertise they must possess to qualify to “teach” the jury about the pitfalls of eyewitness identification.

ADHD Expert Witness Testimony Rejected in Criminal Case Alleging Fraud

Last month, US District Court Judge W. Louis Sands rejected testimony from a neuropsychology expert witness in the criminal trial of Stewart Parnell, accused of defrauding customers of his now defunct Peanut Corporation of America (PCA) by selling them peanut products filled with harmful contaminants. Throughout 2008 and 2009, PCA distributed peanut products that led to a widespread outbreak of Salmonella that sickened 700 people and killed 9. Parnell, responsible for PCA quality control, hired Dr. Joseph Conley, Jr. to testify that his Attention Deficit Hyperactivity Disorder (ADHD) made it impossible for him to comprehend the problems leading up to the contamination – a unique, but ultimately unsuccessful approach.

Defendant Hires ADHD Expert Witness

Parnell is charged with fraud for knowingly selling peanuts with harmful microbiological content, and shipping a product that did not meet customer’s specifications. Central to the government’s case against him are several email correspondences between Parnell and other members of PCA which indicate that he was aware of the potential contamination and distributed the peanut products regardless. If the government can connect the contents of his emails to knowledge about the Salmonella contaminant, Parnell could be found guilty of intentionally defrauding customers by knowing the risks associated with distributing the tainted peanuts and withholding safety information.

In his defense, Parnell called upon Dr. Conley to testify that his ADHD prevented him from formulating the knowledge necessary to defraud because it left him incapable of understanding or appreciating the nature of the communications regarding the peanut contamination. Dr. Conley’s expert findings report that Parnell suffers from being restless, distracted, and inattentive – depriving him of the neurocognitive capacity to function in the role of quality control manager. According to Conley, “Mr. Parnell was and remains cognitively incapable of fielding, delineating, organizing, and integrating the daily plethora of phone calls and E-mails required in managing three companies.”

Dr. Conley explained that his expert witness testimony was not designed to defeat intent, but rather to demonstrate that Parnell did not, and could not, acquire the knowledge assigned to him in the indictment. Arguing that his ADHD made Parnell unlikely to create a scheme to defraud customers because he could not read or understand the necessary emails, Dr. Conley’s testimony represents a unique approach to the use of medical expert witnesses at criminal trials.

Judge Rejects ADHD Defense

In response to Dr. Conley’s ADHD testimony, the prosecution called Dr. David J. Schretlen to point out flaws in both his methodology and conclusions regarding the effect of Parnell’s alleged disorder. Dr. Schretlen testified that Parnell’s condition did not render him incapable of understanding emails because his responses to work communications demonstrated that he was able to comprehend the significance of the correspondence. Further, Parnell was not diagnosed with ADHD as a child, even though it is mostly commonly diagnosed in childhood, which called into question Dr. Conley’s research methods and diagnosis.

Citing a number of factors, including Dr. Schretlen’s expert analysis, Judge Sands rejected the use of Dr. Conley and his ADHD expert witness testimony. Pointing out that a defendant must “show a valid scientific connection” between testimony and the facts at issue in order have an expert witness admitted, Judge Sands found that Parnell had failed to forge the link between his alleged ADHD and the inability to understand the information regarding the contaminated peanuts. In Judge Sands’ opinion, Dr. Conley’s expert witness testimony designed to establish diminished capacity was not relevant because the case alleged Parnell formed a complex scheme to defraud customers, not that he had made errors in processing information contained in emails.

The case has gained attention for Parnell’s uncommon use of expert witness testimony to attempt an ADHD defense. Although ultimately unsuccessful because it was not relevant, the use of Dr. Conley to attempt a diminished capacity argument due to the neurocognitive deficiencies caused by ADHD is an interesting approach and one worth noting.

Mental Health Experts Key in Legal Bid to Remove Donald Sterling as Clippers Co-Owner

A trial to enforce the sale of the NBA’s Los Angeles Clippers may turn on expert witness reports regarding the mental health of recently disgraced owner, Donald Sterling. Following racist and disparaging comments made by Sterling, the league banned him from any basketball related activities before issuing an order for him to sell the team. With Sterling’s refusal to agree to a $2 billion sale of the Clippers negotiated by his estranged wife, who has an ownership stake in the franchise, a California court will determine if Sterling’s mental health justifies his removal as a trustee.

Expert Witnesses Key to Determining Sterling’s Mental Health

Shelley Sterling negotiated a $2 billion deal selling the Clippers to Microsoft mogul Steve Balmer within weeks of the NBA’s decision to force Sterling out of the league. Shelley, by virtue of California’s law on marital property, has an ownership stake in the franchise, but cannot finalize the agreement without Donald Sterling’s consent. With Mr. Sterling refusing to sign the deal, Shelley has taken the matter to court by asking a judge to declare Donald mentally unfit to act as a team trustee.

Central to the legal battle regarding the sale of the Clippers are reports from three different medical expert witnesses who found that the 80-year-old Sterling has shown symptoms of Alzheimer’s disease and dementia. Shelly Sterling hired doctors to conduct an analysis of her husband’s mental health because a clause in the trust both spouses signed in December allows for one to remove the other if two board-certified doctors offer a written report indicating mental incapacitation. Claiming that the $2 billion sale is in the best interests of all parties, Shelly is taking action to remove her husband in order to close the deal without requiring his involvement.

Donald Sterling Seeks Mental Health Expert Witness

Despite the expert medical reports diagnosing him with early signs of Alzheimer’s and dementia, Sterling maintains that he is of sound mind. He has promised to defend himself in the lawsuit for control over the Clippers, and recently requested the Court delay the hearing until he can present testimony from his own medical expert witness who is prepared to contradict reports regarding his mental condition. Sterling has hired Dr. Jeffrey Cummings, a neurologist from the Cleveland Clinic, to conduct a preliminary assessment and offer testimony that he is mentally sound and capable of running his franchise and estate.

Whether or not Donald Sterling’s expert witness will matter is still unclear as Judge Michael Levanas has already indicated that the case seems pretty clear. With two medical expert reports certifying Sterling’s incapacity to make decisions regarding the trust he and Shelly co-own, the language of the trust agreement may clearly control matters regardless of what Sterling offers in his defense. Sterling’s attorneys responded to Judge Levanas by arguing that the parties unintentionally omitted a provision in the trust that permitted reinstatement if a certificate of mental capacity is submitted – making the use of Dr. Cummings’ expert testimony critical.

Matters of mental incapacity are delicate, and competing expert witnesses are not uncommon – particularly when billions of dollars are at stake. As the Donald Sterling situation continues to escalate into increasingly contentious waters, how Judge Levanas uses the medical expert witness reports at his disposal will be critical in the decision to remove Sterling’s control of the Clippers and allow the $2 billion sale to proceed despite his objections.

Trial Skills: 7 Tips for Cross-Examining the Plaintiff’s Expert

Seven Tips for Cross-Examining the Plaintiff’s Expert

1)   Know the elements of the plaintiffs’ case. In almost every case involving some professional or technical issue, the plaintiff must hire an expert to address the elements of the cause of action. Make sure you know what the plaintiff is trying to prove. You won’t be able to organize a good cross without knowing the plaintiff’s objective in closing argument. Some of your best cross-examination testimony will come from attacking the element or elements on which the expert is weakest.

2)   Know the elements of your affirmative defenses. In the same way, you need to stay close to the elements you need to prove for any affirmative defenses. Although you will most likely have evidence from your own expert to support your defenses, any testimony from the plaintiff’s expert that supports your theories will be persuasive. Unless the expert is over-reaching, you should be sure to bring out the obvious concessions. If they don’t concede your obvious points, then you have good material to attack credibility during argument.

3)   Be aware of the juror attention curve. The jury’s attention is always high at the beginning of the direct examination and trails off the longer the examination goes. When you begin your cross, you’ll have their attention again for a few minutes. You need to begin with something impactful and interesting. The longer the examination goes, the harder you will have to work to make your points come across. Because no cross-exam lasts less than the attention you will get from the jurors, be mindful of some methods for bringing them back from the daydreaming that always occurs. Walking directly toward the jury box as you speak, raising your voice or inflection and making eye contact can be a highlight on the testimony. In addition, long pauses of silence can cause jurors to wonder why nothing is happening. The next words out of your mouth will be listened to with more focus after that. Whispering to co-counsel always perks up jurors. They will want to know what you are talking about and what question is next. Demonstrative exhibits are always helpful if used sparingly. On the other hand, information overload is a problem. Don’t overdo demonstratives and vary the method (blow ups, PowerPoint, mock ups). Finally, my favorite way to keep the jury focused is to simply write down the points of testimony you want them to remember on a dry erase or marker board.

4)   Examination outline organization. Your outline must start with something impactful, but the flow must also make sense. Organizing your cross around the plaintiff’s elements is a good place to start. Go from the weakest testimony to the strongest; most impactful to least impactful, or start with the points that must obviously be conceded. It also never hurts to recap the points at the end. If plaintiff’s counsel objects to the testimony being repetitive, or cumulative, they only highlight to the jury the points you are making.

5)   Impeachment material. We’ve all learned you should never ask a question you don’t know the answer to, there are sometimes exceptions to that. Cross-examination of the plaintiff’s expert is not one of the times for an exception. As you prepare your outline, every question should have a reference to a document or deposition transcript page that supports the answer you want. The key here is to maintain control of the witness and not let him stray with his answers. The documents and deposition transcripts are your leash to pull tight if the expert ever gets out of line. Snap the leash hard a few times early in the exam and the expert is yours for the duration.

6)   Non-leading questions are sometimes helpful. With solid impeachment material, open-ended questions can give the witness enough rope for a good hanging. For example, if you know an expert has limited experience on a particular issue, let him tell the jury.

–   Q (leading): Mr. Expert, only twice in 300 cases you’ve testified in have offered the opinion that there was a safer design available, correct?

–   Q (non-leading):  Mr. Expert, you told this jury you’ve testified in over 300 cases in cases involving injury from gas fireplaces. Exactly how many times have you believed there was a safer design available like you do in this case?

–   Q (leading): And you’ve never once testified that the fireplace was improperly used.

–   Q (non-leading): Can you tell this jury how many times you’ve placed responsibility at the feet of the person who was using the fireplace?

7)   Win the credibility battle. Your credibility is the best thing you have going for you in every case. Don’t lose it with the expert. This means you must make obvious concessions. The expert was hired in most cases because he is the most knowledgeable person the plaintiff could find on the subject. He is going to testify about things that you likely have no response to. Your time to put it in context is during closing. Don’t pick a fight you can’t win or it will hurt you in the long run. But bury your concessions in the middle to last half of the examination, when the jury is paying the least attention.

Original article can be found at DRI Today. 

Merck Seeks Sanctions Against Expert in Vioxx Case

An expert witness in high dollar litigation over Merck’s discontinued Vioxx pill faces potential sanctions from a federal judge for disclosing confidential information regarding the case to The Wall Street Journal. Professor David Egilman of Brown University testified as an expert witness for plaintiffs alleging Merck misled consumers about the dangers of Vioxx, and recently came under fire for violating a 2005 confidentiality order issued by a federal court when the litigation was in its early stages.

Expert Witness in Vioxx Litigation Challenges Confidentiality Order

Vioxx was an anti-inflammatory pill manufactured by Merck that was withdrawn from the market after studies linked its usage to increased risk of heart attack and death. Millions of Americans used Vioxx, and thousands of deaths were allegedly linked to side effects caused by its use before the drug was recalled. In litigation filed by the Kentucky Attorney General, who alleged Merck violated consumer protection laws by failing to disclose the risks associated with Vioxx, Professor Egilman was called to offer his expert testimony on the quality and integrity of the drug’s clinical tests. As part of his investigation, Dr. Egilman was given access to internal emails, research reports, and other documents from Merck that allowed him to testify about what the company knew before releasing Vioxx to the market.

The lawsuit settled for $23 million in November, but as part of the agreement Merck was not required to admit that the company did anything wrong in the manufacture, testing, and distribution of the drug. Shortly after the case in Kentucky was resolved, Dr. Egilman sought, and was granted, legal permission to challenge the confidentiality order protecting documents from Merck that he believed included information about the testing and distribution of Vioxx, about which the public had a right to know. In describing his decision to seek the release of Merck’s documents, Dr. Egilman stated that he was privy to information that suggested the company misrepresented the health effects of the drug and engaged in fraudulent studies during Vioxx clinical testing.

Merck Seeks Sanctions Against Expert Witness

Although Merck has declined to comment on Dr. Egilman’s legal efforts to declassify Vioxx documents, the company has taken legal action against the expert witness over comments he has made about the case. Merck claims that Dr. Egilman’s description of the alleged contents of the confidential documents was sufficient to violate a 2005 protection order precluding expert witnesses from revealing the details of the case. Even though Dr. Egilman did not specifically describe the documents in question, Merck argues that it could be harmed by his comments regarding their contents.

In defense, Dr. Egilman has responded that the statements he made were already publically known, and that he did not provide sufficient detail to violate the confidentiality order. Dr. Egilman claims that he is not precluded from offering his thoughts on what the documents contain, and has not violated the confidentiality order by simply talking about the investigation he conducted while preparing to be an expert witness. While the US District Court Judge Eldon Fallon considers Merck’s petition, he has issued a restraining order against Dr. Egilman preventing him from making any additional comments about the case.

Case Highlights Confidentiality Concerns for Expert Witnesses

The consequence of breaking confidentiality is something that Dr. Egilman should be sensitive to already. In 2007, he agreed to pay $100,000 to drug manufacturer Eli Lilly after he released information learned while testifying as an expert witness for plaintiffs in litigation over the company’s anti-psychotic drug, Zyprexa. Even though Eli Lilly later settled the criminal investigation over Zyprexa by pleading guilty to promoting the drug for inappropriate use and paying $1.4 billion, Dr. Egilman was not entitled to break court-imposed confidentiality as he saw fit. As the legal action against Dr. Egilman demonstrates, any expert witness who believes that the public has a right to know information contained in court protected documents can expect potentially serious, and expensive, consequences if confidentiality is violated.

 

Experts Analyze Traffic Stops and Citations in Federal Lawsuit Against North Carolina Sheriff

A federal anti-discrimination lawsuit filed by the US Justice Department against a North Carolina sheriff has been held up due to a dispute over expert witness testimony.  Alamance County Sheriff, Terry Johnson, has been sued by the DOJ following accusations that he and his department engaged in discrimination against Latinos, and expert witnesses have been retained by both sides to offer statistical analysis of traffic stops and citations among the Latino population. After reviewing two drastically different expert witness reports, Judge Thomas Schroeder delayed the proceedings to better analyze the information presented.

DOJ Expert Witness Finds Evidence of Discrimination

The Justice Department submitted the research of John Lamberth, an expert police consultant, who conducted field analysis of police traffic stops in Alamance County to determine if the sheriff’s office was issuing citations to a disproportionately high number of Hispanics. Lamberth, who operates his own consulting company which provides services to police departments, local governments, and civil rights groups, focused his study on traffic stops on three major roadways between 2008 and 2013.

Lamberth’s expert testimony informed the court that 37{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of all individuals stopped by the Alamance County Sheriff’s Office were Latino – a troubling statistic considering the fact that Latinos only make up 8.7{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the driving population in the county. Attorneys for the Department of Justice point to Lamberth’s study as “strong evidence of intent” by Sheriff Johnson and his office of carrying out institutionalized discrimination against the county’s Latino population. Attorneys retained by Sheriff Johnson countered Lamberth’s study with a statistics expert witness who argued the methodology and results were flawed and misleading.

Expert Witness Criticizes DOJ Finding of Discrimination

Countering Mr. Lamberth’s research, attorneys for Sheriff Johnson called David Banks, a professor of statistics at Duke University. Banks, sitting as a statistics expert witness, evaluated data from the Alamance County Sheriff’s Office, the U.S. Census Bureau, and the North Carolina state government to reach his conclusion that Lamberth’s study did not accurately reflect the frequency of which Latinos were pulled over.

Professor Banks argued that Lamberth’s study was flawed because it focused only on citations issued and not the total number of stops, and also included citations from outside the Alamance jurisdiction. Banks pointed out that the flaws in Lamberth’s analysis suggested that there is no statistical evidence that Sherriff Johnson or his staff engaged in discriminatory behavior. After analyzing the conflicting expert witness reports, Judge Schroeder delayed the start of the trial in order to give him time to analyze the evidence and rule on a handful of motions filed by each side.

Conflicting expert witnesses are nothing unusual, but this case is interesting in that both sides make use of statistical experts to analyze potentially discriminatory behavior, demonstrating yet another type of expert testimony attorneys seek out. Statistical analysis can be useful to judges and juries who are asked to identify trends in behavior, and expert researchers are called upon to conduct investigations and parse through data to make statistics useful during trial. As the DOJ accusation of discrimination against Sherriff Johnson plays out, the use of statistical expert testimony will have a significant impact on the outcome.

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.