Category Archives: General

Terrorism Expert Testifies in Trial of Minnesota Men Accused of Joining ISIS

A terrorism expert witness took the stand this week in the trial of three Minnesota men accused of joining ISIS and plotting to commit violent acts abroad. The high profile trial highlights recent efforts by state and federal government officials to fight growing concerns over radicalization of young men who are exposed to recruitment videos by terror groups such as ISIS.

Minnesota Men Charged with Plotting to Join ISIS

In 2014 the U.S. Attorney’s Office in Minnesota began investigating activities of a group of Muslim Somali men residing in Minneapolis – St. Paul due to suspicion of conspiracy to join terrorist groups. With the cooperation of a friend of the defendants who secretly recorded conversations, the FBI was able to identify nine possible suspects connected to a plot to fly to the Middle East and join with the terrorist network, ISIS. The group of men allegedly met at parks and Somali shopping centers to discuss leaving the country, and were arrested after some of them drove to San Diego in an effort to obtain fake passports and leave the country.

As a result of a joint counter-terrorism effort between the FBI and local police, a total of nine suspects were detained and charged with plotting to join with and aid ISIS’s terror activities in the Middle East. The arrests shocked the Somali community in the Twin Cities, with critics accusing the government of unfair scrutiny of Somali Americans living in Minnesota which led to unjust accusations of conspiracy to commit terrorism. Despite concerns about the nature of the investigation, six of the men have pled guilty to lesser charges.

The remaining three defendants have maintained their innocence, setting the stage for a trial which will help shape the US Government’s ongoing strategy to investigate and prosecute alleged terrorist conspirators who are exposed to radical ISIS recruitment videos.

National Terrorism Experts Testifies in Minnesota Trial

The three suspects who chose not to plead guilty – Guled Omar, 21; Abdirahman Daud, 22; and Moahmed Farah, 22 – claim that watching ISIS recruitment videos and discussing the organization with their friends does not mean they became radicalized. In order to support their case against the defendants, prosecutors called Charles Lister, a senior fellow at the Middle East Institute in Washington, D.C., to explain the Syrian conflict and the ISIS terrorist group to jurors in an effort to help them put the defendant’s actions in context. Lister is a terrorism expert with years of experience studying terrorism recruitment efforts such as the ones ISIS has engaged in, and was tapped by the prosecution in order to show jurors that actions like the defendants’ are indicative of terrorist radicalization.

Lister spent the early part of his terrorism expert testimony explaining the Syrian conflict and Arab Spring to jurors, and how these violent disputes gave opportunity for groups like ISIS to bolster recruitment and expand their terrorist network. After a short break, Lister continued his testimony by focusing on the extreme levels of violence and brutality which ISIS uses to advance its ideological mission of world domination. During his testimony, Lister explained the core tenets of ISIS, discussed the organization’s aggressive recruitment strategy, and identified symbols of the organization. Importantly, Lister also pointed out that because ISIS has been designated a terrorist organization, it is illegal to have any relationship or contact of any kind with the network.

Lister’s three hour testimony with prosecutors concluded with the terrorism expert explaining the types of actions people who join ISIS engage in, and the allure the organization has on young Islamic men in the United States. After he was finished with the prosecutors, defense attorneys spent the afternoon questioning him on cross examination.

Attorneys for Accused Minnesota Terrorists Question Prosecution Expert

Attorneys for the defendants took turns questioning the prosecution’s terrorism expert after the state was finished speaking with him. The thrust of the defense seemed to be twofold: first to highlight how the complex situation is in Syria blurs the lines between good and bad; and second to question whether actions like the defendants’ really suggest conspiracy to join terrorist activities. Defense attorneys had Lister explain that not every group in Syria which opposes the existing government is a terrorist network, suggesting that the defendants were not necessarily plotting to join a terrorist group just because they were planning to go to Syria.

Defense attorneys also questioned Lister about whether or not exposure to ISIS recruitment videos and materials meant radicalization. Lister admitted that not everyone who watches ISIS propaganda is a terrorist before court adjourned for the day. The trial of the Minnesota men linked to a plot to leave America and join ISIS in Syria is expected to continue for several weeks as prosecutors attempt to prove that the defendants were part of a growing radicalization movement which warrants state and federal investigation.

Missouri Passes Daubert Bill, Governor May Veto

States legislatures, bar associations, and courts are continuing to debate the appropriate standard for the admission of expert testimony. As an attempt to defeat the Florida legislature’s adoption of the Daubert standard heats up, the Missouri legislature has sent Governor Jay Nixon a bill that would replace the state’s current rule of expert testimony admissibility with a Daubert standard.

The Daubert standard

Having been adopted by the federal government and a majority of states, the Daubert standard is now familiar to lawyers and to expert witnesses. Judges applying Daubert generally see their role as that of a “gatekeeper.” Before allowing a jury to hear expert testimony, the judge must be satisfied that the expert’s testimony is both relevant and reliable.

Expert testimony is relevant under Daubert if it would help the jury decide the case and if:

the testimony is based on sufficient facts or data;
the testimony is the product of reliable principles and methods; and
the expert has reliably applied the principles and methods to the facts of the case.

To decide whether scientific principles and methods are reliable, Daubert requires the judge to consider whether the method that the expert used to form a scientific opinion:

can be and has been tested;
has been subjected to peer review and publication;
is not associated with an unacceptable error rate;
is controlled by standards; and
has attracted widespread acceptance within a relevant scientific community.

More ambiguous standards govern the evaluation of nonscientific expert testimony, which by its nature does depend upon the application of the scientific method.

The Missouri Bill

The bill that passed the Missouri House would adopt the Daubert standard in most trials. The current Missouri rule of expert evidence provides that an expert may testify in the form of an opinion if the opinion would help the jury (or the judge in a bench trial) “understand the evidence” or “determine a fact in issue,” provided the expert is “qualified as an expert by knowledge, skill, experience, training, or education.” To form an opinion, the expert may rely on any “reasonably reliable” facts that are “of a type reasonably relied upon by experts in the field.”

Like the Daubert standard, the current Missouri rule does not require experts to form opinions by using a methodology that has gained widespread acceptance. The Missouri rule therefore differs from the traditional Frye standard of admissibility. “Widespread acceptance” is a factor the court can consider under Daubert, but no single factor is controlling.

At the same time, the Missouri rule differs from Daubert, which does not require experts to rely on the kind of facts that would ordinarily be relied upon by other experts in the same field. In that sense, Missouri’s current rule might be more restrictive than the Daubert standard. It is therefore unclear whether the change proposed by the bill would benefit plaintiffs or defendants.

As a general rule, lawyers who represent businesses and insurance companies like Daubert because they believe it gives them an opportunity to prevent plaintiffs’ experts from testifying when their opinions are not based on customary or orthodox methodologies. Plaintiff’s lawyers and consumer advocates tend to view Daubert as improperly substituting the judge’s opinion for the jury’s in the assessment of a methodology’s reliability.

Daubert’s Unclear Impact

In reality, the distinction between the Daubert standard, the Frye standard, and the current Missouri standard is only important at the fringes, since most scientific experts based their opinions on uncontroversial methodologies, even when their opinions conflict. One study suggests that the difference between standards of expert opinion admissibility does not typically affect the outcome of a case. The Missouri Bar’s Expert Witness Legislation Working Group concluded that there is no objective proof that the Frye standard, the Daubert standard, or the current Missouri standard is more likely to increase the fairness of a trial, although the Daubert standard tends to impose greater burdens on the judicial system by making more work for judges.

The Missouri bill would apply the Daubert standard to civil cases other than those arising in probate court, juvenile court, or family court. If the true purpose of the bill is to increase the reliability of evidence, it seems odd that the Missouri legislature would think that juvenile and family cases should turn on less reliable expert evidence.

The bill’s fate is now in the hands of Governor Nixon. The bill was supported by business lobbyists but opposed by the state’s Circuit Judges Association and a bipartisan group of legislators. The Missouri Times reports that the governor is expected to veto the bill.

Vanderbilt Football Player Convicted of Rape Despite Defense Expert Testimony

Last week jurors in the high profile rape trial of a former Vanderbilt football player returned a guilty verdict against a defendant who claimed he was too intoxicated to engage in the type of malicious criminal behavior required for aggravated rape charges. Despite testimony from a defense expert witness which bolstered his claim, Cory Batey was convicted of aggravated rape and 6 lessor charges for his role in a 2013 incident involving a 21-year-old woman.

Former Vanderbilt Football Players Charged with Rape

Cory Batey was the first of two former Vanderbilt football players to face a retrial for charges stemming from the 2013 incident when he allegedly raped an unconscious 21-year-old woman in a university dorm room after a night of drinking. Batey and former teammate Brandon Vandenburg were convicted in January of 2015 of aggravated rape, attempted aggravated rape, and aggravated sexual battery, but were granted a new trial only two months later when evidence emerged that one of the jurors was a victim of sexual assault. Judge Monte Watkins granted the mistrial due to a potential conflict of interest, forcing Tennessee prosecutors to prepare for a second trial which began in March of 2016.

Trials for Vandenburg and two other former Vanderbilt players who have yet to face any trial, Brandon Banks and Jaborian McKenzie, will begin later this month now that prosecutors have finished retrying Batey for his alleged role in the incident. During the prosecution’s case, jurors were shown pictures of cell phones belonging to Batey, Vandenburg, and Banks which depict graphic images of the players apparently squatting over the unconscious victim and touching her genital area while making lude gestures towards the camera.

Since the early part of the investigation, Batey claimed that he was intoxicated throughout the incident and could not remember assaulting the victim. In order to bolster his claim that Batey did not act with the intent necessary to commit aggravated rape, defense attorneys called an expert witness to tell jurors that the defendant’s intoxication significantly affected his mental state at the time.

Defense Expert Explains Intoxication Level in Vanderbilt Rape Case

Jonathan Lipman, an alcohol expert, took the stand during Batey’s defense in order to explain to jurors the effect a night of drinking had on the defendant. According to Lipamn, the defendant was so drunk on the night of the rape that his blood alcohol content was likely between 2 and 5 times the legal driving limit in Tennessee. Lipman punctuated his expert testimony by telling the jury that Batey would have been able to function, but would likely have done “silly things, jackass things” that he was not going to remember the next day.

Prosecutors in the case took Lipman to task for the methods he used to arrive at his expert opinion, and aggressively questioned him during cross examination. Deputy District Attorney General Tom Thurman started his cross examination by forcing Lipman to admit that his entire expert testimony was based on data he had collected from Batey’s own recollection of the evening. Lipman conceded that there was no hard evidence of the amount of alcohol the defendant consumed, and Thurman pointed out that Batey’s own testimony about the number of drinks he had changed during the investigation, and included an admission from the defendant that he had stopped drinking at least an hour before the sexual assault.

Lipman responded to the questioning that even if Batey was not as drunk as he initially estimated, the defendant still would have been blackout drunk and impressionable to suggestion by others. Lipman conceded that his expert witness testimony was only as good as the data he received, but maintained his statement that the defendant was severely intoxicated.

Jury Convicts Cory Batey in Vanderbilt Rape Trial

Despite expert testimony about the effect of alcohol on his decision making, jurors again convicted former Vanderbilt football player Cory Batey for aggravated rape in his retrial. Batey received a small break because the secondary charges he was convicted of are less serious than the ones he was convicted of following the 2015 trial, but he is facing serious prison time which will be determined during his sentencing trial on May 20^th.

The remaining defendants will face trial later this month, and their defense teams have not announced plans to call Lipman or any other expert witness to testify about their mental state or intoxication level at the time of the rape.

When Expert Opinion Amounts to Speculation

Attorneys do not often serve as expert witnesses, in part because only the judge who presides in a trial is the expert in the law that controls the case. In some cases, however, attorneys do serve as expert witnesses. They do so most often in legal malpractice cases, when they testify about the quality of representation a reasonable lawyer should provide and express opinions as to whether a particular lawyer met that standard.

An attorney was allowed to testify in a Texas malpractice case involving a technology company and its patent lawyers. The Texas Court of Appeals recently ruled, however, that the expert’s testimony was based on speculation rather than facts. Since the testimony failed to establish that the plaintiff was harmed by the alleged malpractice, the plaintiff could not prevail.

Lawsuit Background

Axcess International markets radio frequency identification (RFID) products and services. Axcess improved its technology by creating a “dual-frequency RFID system.” It hired Baker Botts, a Texas law firm, to act as its intellectual property counsel. Baker Botts began filing patent applications for Axcess in 1999. A year later, Axcess’ chief competitor, Savi Technologies, hired Baker Botts to seek patents of its own dual-frequency RFID system.

In 2002, when Savi announced the release of its new product, the Axcess employee who developed its dual-frequency RFID system thought that the Savi product might be using the same technology that Axcess had patented or that pending applications were seeking to patent. Axcess asked its Baker Botts attorney for advice. Axcess alleges that Baker Botts failed to provide the requested assistance.

Axcess then hired a new firm, Haynes and Boone, which wrote to Savi and suggested that Savi might need to license the patents that had been issued to Axcess in order to avoid infringing upon that patent. Savi forwarded the letter to its attorney at Baker Botts, who realized that Baker Botts had represented Axcess in its patent applications. Since a conflict of interest existed, Baker Botts told Savi it would need to have a different firm represent it in the case. Represented by new counsel, Savi advised Axcess that it was not infringing the Axcess patents and therefore would not license them.

A third competitor in the RFID industry, AeroScout, later challenged the validity of Savi’s patents. It based its challenge in part on the claim that Baker Botts should have disclosed Axcess’ patent applications to the patent office when it applied for patents on behalf of Savi.

Apparently in response to AeroScout’s contentions, Axcess hired yet another firm to sue Savi for patent infringement. Savi responded by asking the Patent Office to invalidate Axcess’ patent on the ground that the patented technology had already been patented by others. The Patent Office agreed and Axcess lost its patent. Axcess then sued Baker Botts, alleging that Baker Botts committed legal malpractice and that it breached its fiduciary duty to Axcess during its dual representation of Savi and Axcess.

Expert Evidence on Causation

To win its case, Axcess needed to prove not just that Baker Botts committed malpractice or breached a duty of loyalty, but that its alleged misconduct caused harm. The Texas Court of Appeals held that Axcess introduced no competent evidence to prove that it was harmed by Baker Botts.

Axcess relied on the expert testimony of a patent attorney to establish causation. The attorney testified that if Baker Botts had disclosed to Axcess that it was pursuing patents on behalf of its competitor Salvi, Axcess would have hired counsel that did not have a conflict of interest. The attorney then testified that, with new counsel, Axcess would have initiated an interference proceeding with the Patent Office. Under the law in effect at that time, the party that first invented something (rather than the party that first filed for a patent) was entitled to patent it. An interference proceeding resolves conflicts about entitlements to patents.

The attorney testified that a successful interference proceeding would have caused Salvi’s patent rights to shift to Axcess, placing Salvi’s lucrative government contracts that relied on the patents at risk. That would have placed Axcess in a stronger position to negotiate a resolution with Salvi, which would have benefitted Axcess.

According to the appellate court, the attorney’s expert opinion as to causation rested on (1) his belief that Axcess would have prevailed in its interference proceeding, and (2) his belief that Salvi would have negotiated a resolution to the dispute that would have benefitted Axcess. The court concluded that the attorney’s beliefs amounted to speculation rather than factual evidence.

The court decided that the attorney had no basis for deciding how the patent office would have responded to the interference proceeding. He pointed to no facts, such as similar disputes that the Patent Office had decided, to support his opinion that the Patent Office would have ruled in Axcess’ favor. The fact that the Patent Office ruled in Salvi’s favor with regard to another patent suggested that the attorney’s opinion was not grounded in the specific facts that separate a reasonable conclusion from conjecture.

In addition, the court decided that the attorney’s opinion as to what Salvi would have done if, in fact, Axcess had prevailed in the interference proceeding was entirely speculative. His testimony about what Salvi might have done was, in the court’s view, a conclusory opinion that was not based on fact.

Since Axcess needed expert evidence to prove that it was harmed by the actions of Baker Botts, and since the evidence it produced was based on speculation rather than facts, Axcess was not entitled to prevail. The case is a reminder that no matter how knowledgeable or qualified an expert might be, an expert’s opinion must still be grounded in demonstrable facts before a court will rely upon it.

Former Federal Judge Limited in Testimony as Expert Witness

A former Federal Court Judge in Madison, Illinois was limited in the scope of the expert testimony that he could offer at trial. A Court held that some of his opinions invaded the province of the presiding judge.

Factual Background

The underlying case involved a fatal accident that occurred in 2005 when a vehicle carrying 6 people ran off a road and rolled over; one person was killed and others were injured. The Estate of the deceased sued two highway contractors that were under contract with the Illinois Department of Transportation. Significantly, the contractors had formed a joint venture with each other to carry out the project.

The gist of the underlying case was that the contractors failed to post adequate barriers and to properly warn oncoming traffic of hazardous conditions. The defendants counterclaimed, alleging that the deceased drove too fast, drove while fatigued, and drove on the shoulder of the road, all of which were claimed to have proximately caused or contributed to the collision, death and injuries.

Insurance Disclosure Led to Pre-Trial Settlement

Before trial, the parties settled the negligence suit for $1 Million under a demand for policy limits, but before the discovery cut-off date. The settlement was based, in part, on a representation by defense counsel for the joint venture, Richard Green, that the $1 Million policy was the total amount of available liability coverage. The policy limits were tendered because the magnitude of the injuries and the risk of a verdict for the Plaintiff(s) could have resulted in excess exposure on the Defendants had policy limits not been tendered. After the settlement had been reached, the negligence lawsuit was dismissed with prejudice.

Revelation of Additional Insurance Prompts Second Suit

Later, it was determined that the contractors had individual liability insurance policies in addition to coverage for the joint venture. Therefore, the Estate filed a new lawsuit. It claimed that the negligence suit would not have been settled had the Plaintiffs known of the additional liability coverage.

Former Federal Judge Renders an Opinion as a Defense Expert in Second Suit

Former Judge Patrick Murphy stated that the defense counsel in the negligence suit had no reason to believe that there was insurance in addition to that on the joint venture.

But he went further, and that’s where problems arose. He stated that while he had no opinion on whether or not there really was additional coverage, it was the duty of the Plaintiffs’ lawyer to determine if there was. He stated that the lawyer could have propounded detailed interrogatories and used other methods of discovery. Mr. Murphy also stated that under Rule 26 of the Federal Rules of Civil Procedure, defense counsel had no duty to investigate whether there was other coverage. He stated that it was “gross negligence” by the Estate’s attorney not to have done so.

Court Held That the Scope of the Expert’s Opinion Was Overly Broad

The Court in the coverage case granted a motion to strike Judge Murphy’s testimony about Rule 26. It held that whether or not there was compliance with Rule 26 was strictly within the province of the court. The Court also held that Mr. Murphy’s testimony about whether or not plaintiffs’ counsel was negligent in the underlying case were impermissible legal conclusions.

Source: Madison Record

(Photo Credit: “Expert Witness” by NY and Picserver is licensed under CC BY-SA 3.0.)

Expert’s Credibility Challenged in Brock Turner Trial

Maintaining an appearance of objectivity is essential if an expert witness wants to be effective. When an expert appears to be an advocate for a party, the jury is less likely to regard the expert’s testimony as credible.

An expert who testified about the potential effect of alcohol on an alleged sexual assault victim learned that lesson during her cross-examination. According to media reports, the expert’s credibility was attacked because the expert’s emails to the defense attorney suggested a lack of objectivity.

Brock Turner Trial

Brock Turner was a varsity swimmer at Stanford and a potential Olympic contender prior to his arrest. He was charged with sexually assaulting an intoxicated, unconscious woman behind a fraternity house in January 2015. The alleged victim, a 23-year-old woman, did not attend Stanford but was on campus to attend a party at the fraternity.

A student who was biking to the party at about 1:00 a.m. testified that he saw Turner on top of a woman who was laying on the ground and not moving. The student testified that he confronted Turner and that Turner tried to run away. The student and his friend held Turner until the police arrived.

The police determined that the woman was unresponsive. The woman’s dress was hiked up and her underwear was found on the ground next to her.

A paramedic who responded to the scene testified that the woman was unconscious. However, she vomited before entering the ambulance and was able to clear the vomit from her throat without assistance.

The woman was taken to a hospital, where she regained consciousness after about three hours. Her blood alcohol content was estimated to be 0.24{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} at the time of the alleged assault. Turner’s was 0.17{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4}.

Turner was charged with three felonies: assault with intent to commit rape of an intoxicated or unconscious person, sexual penetration of an intoxicated person, and sexual penetration of an unconscious person. Turner, who was a 19-year-old freshman, withdrew from Stanford following his arrest.

Turner told the police that he had sexual contact with the woman but did not have intercourse with her. At trial, Turner testified that he “dry humped” the woman and penetrated her with his finger, but again denied that he had intercourse with her. He said he never removed his pants.

Since nonconsensual penetration with a finger would be sufficient to establish a sexual assault under California law, the question for the jury is whether the woman was either unconscious or too intoxicated to consent to Turner’s actions. Turner testified that the woman was awake and that she gave verbal consent to the sexual activity.

The alleged victim’s sister testified that she seemed fine at 12:15 a.m., when the sister left the party she was standing and her eyes were open.

The alleged victim testified that she could not remember anything that happened after midnight. Other witnesses established that she made two telephone calls at about 12:30 a.m., but she did not remember making those calls. She also acknowledged that she had experienced four or five alcohol-related blackouts when she was still in school.

Prosecution Experts

A sexual assault nurse examiner testified that scratches on the woman’s body were consistent with “penetrating trauma.” She acknowledged, however, that she did not know what caused the scratches.

A forensic biologist who examined the woman’s underwear as well as swabs taken from her cervix and vagina found no evidence of semen. He found DNA that he attributed to the woman and to one other person in the waistband of the woman’s underwear, but he ruled out Turner as the source of the DNA.

Defense Expert

To obtain a conviction, the prosecution needs to prove that Turner’s alleged victim was either unconscious or extremely drunk and that Turner knew about that condition when he had sexual contact with her. The defense called a psychology professor to give expert testimony on the effects of alcohol, including blackouts.

The professor testified that a person who has been drinking can seem normal despite having a level of intoxication that leads to a blackout. The professor explained that an intoxicated person might be capable of making decisions, such as a decision to drive or to have sex, but incapable of storing short-term memories about those decisions.

The prosecution did not attack the scientific validity of the expert’s testimony. Instead, the prosecution attacked the expert. The prosecutor cross-examined the expert about an email she wrote to the defense attorney that “exulted in the acquittal of a Seattle man who had confessed to rape and expressed hope for a similar outcome for ‘our client’.” The prosecutor used that email to portray the expert as an advocate for the client, not as an unbiased expert.

A second email questioned whether communications between the expert and the defense should be turned over to the prosecutor because (according to the expert) doing so would be “akin to showing our entire poker hand prior to making a bet.” The disclosure of the emails was required by California law and the suggestion that they should not be disclosed created the impression that the expert was trying to create an advantage for the defendant instead of providing neutral evidence. The reference to poker also gave the prosecutor a chance to ask “Do you think this is a game?,” a potentially devastating question.

Expert Credibility

The lesson to be learned is that experts should avoid making statements that could be used to suggest a close alignment with the outcome of the case. Lawyers are advocates for clients. Effective experts are advocates for the truth. When an expert appears to cross the line by strategizing about how to win the case or by referring to the lawyer’s client (rather than the lawyer) as “my” client, the expert risks crossing a line that will harm the expert’s credibility.

(Photo Credit: “Expert Witness” by The Blue Diamond Gallery is licensed under CC BY-SA 3.0 NY)

Election Experts Testify in Virginia Voter ID Case

Laws requiring voters to show photo identification before their votes can be cast or counted are both politically and legally controversial. Last year, the United States Supreme Court declined to consider a challenge to a Wisconsin law that requires voters to produce a photo ID before they are allowed to vote. The Supreme Court’s inaction left in place a sharply divided federal appeals court decision that rejected a challenge to Wisconsin’s law. A few months later, a different federal appeals court ruled that Texas may not enforce portions of its voter ID law.

A lawsuit challenging Virginia’s voter ID law is underway. The plaintiffs, which include the Democratic party, are relying on expert testimony to support their challenge to the law. The defendants are countering with experts of their own.

The Voter ID Controversy

Proponents of voter ID laws argue that they are needed to combat voter fraud. Opponents of voter ID laws argue that voter suppression is the true motivation underlying the demand that voters produce a photo ID. They claim that voter fraud is a red herring and that disenfranchising voters who are poor, young, or disadvantaged — the groups who are least likely to have a valid photo ID — is the hidden purpose that the laws actually serve. That claim was recently endorsed by a conservative federal judge who has been persuaded by the evidence that photo ID laws have nothing to do with voter fraud and everything to do with politics.

As of January 2016, 36 states have adopted laws that require voters to show some kind of identification at the polls. Not all of those states, however, require a photo ID. The laws in 3 of the 36 states have been struck down by courts.

Election Experts Testify in Virginia

The plaintiffs in the Virginia suit contend that the voter ID law is intended to reduce the number of minority voters. Proponents had argued that the law is needed to curb voter fraud by impersonation, but a state senator testified that the law’s proponents could not point to a single case in which a Virginia voter had been arrested or convicted for impersonating another voter.

An expert testifying on behalf of the parties who are challenging Virginia’s voter ID law told the court that fear of voter fraud is not a rational justification for the law. The expert, Lorraine C. Minnite, is a professor of political science at Rutgers who has studied election fraud and vote suppression.

Minnite testified that the kind of fraud photo ID laws are meant to curtail is so rare that the number of legitimate voters who will be disqualified from casting ballots for lack of acceptable identification far exceeds the number of fraudulent voters who will be prevented from voting. Minnite conceded that voter fraud occurs, but contended that one voter impersonating another — the kind of voter fraud that photo ID laws target — almost never happens.

The defendants, state agencies and officials charged with administering elections in Virginia, countered with the testimony of two experts. Karen L. Owen, an assistant professor of public administration at Reinhardt University in Georgia, suggested that legitimate public policy concerns, rather than voter suppression, may have influenced Virginia’s legislators to enact the voter ID law. Even if voter impersonation is not a serious concern, she said, legislators may have been responding to the public perception that voter fraud is a problem, and enacted the law to increase voter confidence in the integrity of election outcomes.

Daniel J. Palazzolo, a professor of political science at the University of Richmond, agreed that the legislature may have enacted the voter ID law in response to public perceptions. He also suggested that legislators may have been influenced by activist groups that lobbied in favor of the law. Palazzolo testified that he could not rule out prejudice against minority voters as a motivating factor, but contended that there was insufficient evidence to prove that legislators passed the law because they wanted to suppress minority votes.

After all the trial testimony was completed, the presiding judge asked the parties to file written arguments. The last of those arguments is due in court in early April. Whether the judge’s decision will be influenced by the expert testimony presented on behalf of either party will not be known until the judge issues a decision.

Former OJ Simpson Forensic Expert Witness Comments on Discovery of Possible Murder Weapon

A forensic expert witness who testified for the O.J. Simpson defense team during the sensational 1995 murder trial spoke to news outlets this week about the possibility that DNA evidence is recovered from a knife recently uncovered at Simpson’s former home. Although the former athlete and broadcaster cannot be retried for murder, DNA found on the knife may finally provide a murder weapon after more than two decades of searching.

Knife Found on OJ Property Turned into LAPD

Last week the Los Angeles Police Department announced it was examining a knife which was reportedly found years ago on an estate which once belonged to OJ Simpson. The knife was turned over to the LAPD by an ex-Los Angeles traffic officer who was allegedly given the item by a construction worker who claims to have found the knife while renovating OJ’s former estate sometime “back in the 90’s.” Following his retirement, the officer turned the knife in after holding on to it for almost two decades, apparently under the belief that the case was closed and any potential evidence no longer mattered.

Whether or not the knife is the weapon which was used to kill Simpson’s ex-wife Nicole Brown Simpson and her friend Ron Goldman in 1994 has yet to be determined, but the development provides an interesting twist during a time when attention to the case has been reawakened by recent FX television dramatization of OJ’s arrest and trial. Simpson, who has been in jail for a robbery conviction in Nevada since 2008, is protected from a second murder prosecution by double jeopardy, but the LAPD is still testing the knife for a potential link to the notorious murder, which officially remains unsolved.

Former OJ Forensic Expert Witness Speaks About Knife

Dr. Henry Lee, who testified as a forensic expert witness during OJ’s mid-90’s trial, spoke with a Connecticut news station following the discovery of the knife to discuss its potential impact. According to Lee’s expert analysis, the knife could still contain enough biological evidence to connect it to Brown and Goldman, which would confirm it is the murder weapon. Lee, who has not been asked to examine the newly discovered weapon, told reporters that forensic experts working in a lab could potentially identify DNA sufficient to connect the weapon to the victims and potentially perpetrator depending on how well preserved the weapon was.

When asked directly if DNA could be recovered from the knife, Dr. Lee responded, “If the knife underneath someplace, yes, if protected. If knife exposed to environment you probably can still find some mitochondrial DNA. If you find hairs, because that’s a really brutal murder so there should be sufficient amount of blood, or tissue, or cells still, or hair on them.“ Dr. Lee went on to explain that police should first determine if there is blood on the knife before analyzing whether or not it is human blood. If there is human blood on the knife, Dr. Lee said it is possible to create a DNA link.

Dr. Lee cautioned, however, that rust on the knife could result in a false positive and concluded that a DNA connection, while possible, would be difficult. The knife is being examined by LAPD forensic experts this week.

Knife Will Have Little Effect on OJ Simpson

Tampering excitement about the knife’s discovery is the fact that several false murder weapons have been turned in over the years, and the timing of this discovery – which syncs perfectly with the FX television series – is suspicious. Even if the knife is connected forensically to OJ, Nicole Brown Simpson, and Ron Goldman, it is unlikely to impact Simpson, who cannot be tried again for the murders. According to representatives for OJ, there is a small concern that it could negatively impact his upcoming parole hearing. Simpson is eligible for parole in November of 2017, and there is some speculation that should the knife forensically connect him to the murders the Nevada parole board could use that fact to reject his attempt for parole.

Of course, this series of events is both distant and unlikely, but as the American public regains a new interest in the OJ Simpson murder case the discovery of the knife potentially used to commit the crimes opens up a new story for police, forensic experts, and the media to investigate.

Neuroscientific Evidence in the Courtroom

The increasing importance of neuroscientists as expert witnesses in death penalty hearings and other court proceedings is highlighted in a recent article in The Atlantic. The article calls attention to a Duke University study of more than 1,600 court decisions that addressed neuroscientific evidence between 2005 and 2012.

According to the Duke study, neuroscientists and related experts testify in about 5 percent of all murder trials and in 1 to 4 percent of all other felony trials. The experts are commonly used to provide mitigating evidence in an attempt to lesson a criminal defendant’s punishment, but neurobiological experts also testify regarding a defendant’s competency to stand trial or to plead guilty, as well as a defendant’s ability to give a voluntary confession when questioned by the police. Less frequently, they testify in support of insanity defenses and defenses based on a defendant’s inability to form the mental status (such as intentional conduct) required to commit the charged crime.

Neurobiology and the Law

The authors of the Duke study grouped neuroscience and behavioral genetics together under the umbrella of neurobiological evidence. The fields of neuroscience and behavioral genetics are increasingly linked as researchers discover that neither a purely genetic nor a purely neuroscientific approach are adequate to explain the biological components of human behavior. In fact, understanding the “pathways between gene, brain, and behavior” may require an interdisciplinary approach that “requires expertise in genetics, neuroscience, psychology, and psychiatry.”

Criminal defense lawyers are turning to neurobiological evidence to explain a client’s criminal behavior. One example links a gene known as MAOA (Monoamine Oxidase A) with antisocial behavior. The gist of the defense is that a criminal defendant should not be held responsible for behavior that results from biology rather than choice. Experts assist lawyers in presenting that defense through MAOA genotyping and neuroimaging.

The use of neurobiology in criminal defense has sparked debate among experts and non-experts alike. If people are truly not responsible for criminal behavior, why should they be punished for their conduct? Neurobiology arguably undermines the retributive foundation for the criminal justice system.

At the same time, prosecutors have used neurobiology to argue that the safety of society requires that criminals who have a genetic or neurologic propensity to behave violently should receive longer sentences. They have contended that the need to protect society trumps the question of personal responsibility for lawless behavior.

Debating Free Will

The debate about the role that neuroscience should play in criminal law falls within a larger scholarly debate about whether free will actually exists. Many neuroscientists conclude from experimental data that the subjective sense of free will is an illusion. They argue that behavior is determined by physical and biological laws, not by individual choice. If that is true, the deterrent value of criminal punishments may be nonexistent.

Scientific evidence notwithstanding, those conclusions are unpopular with a large majority of people who prefer to believe that they make rational or moral decisions about how to behave. The deterministic approach of neuroscience arguably undermines not only criminal law, but moral codes and a good bit of philosophy since the age of Aristotle. If people should not be held responsible for behavior that is not the product of free will, doesn’t that give bad people (or even good people) an excuse to misbehave?

The Future of Expert Testimony

While the authors of the Duke study found that attempts to introduce neurobiological testimony in criminal trials have been relatively unsuccessful, the study also found that attempts to introduce expert neurobiological evidence have been “more successful than most scholars believe.” At least with regard to some claims that criminal defendants raise, “testimony by an expert on the matter may serve as powerful evidence that impacts the outcome of the case for the defendant.”

While neurobiological evidence is used in the sentencing phase of capital cases, it is more often introduced to mitigate punishment in serious felonies that do not involve the death penalty. Since sentencing hearings take place after guilt has been determined, the rules of evidence governing the admission of expert testimony are often more relaxed than those that govern evidence during the guilt phase of a trial.

More controversial is whether to allow expert neurobiological testimony in an effort to persuade a jury that a defendant did not commit the charged offense. When, for example, a crime requires proof that a defendant acted intentionally, a neurobiologist might conclude that the defendant was incapable of forming the specific criminal intent that the law requires. To the extent that experts are allowed to render such opinions, juries commonly reject them.

Still, expert testimony from neuroscientists can make a difference. The Duke study, which defined neurobiological evidence broadly to include not just brain scan results and biomarker examinations but also the results of neuropsychological testing, found that the evidence makes a difference in 20 to 30 percent of cases in which it is admitted.

Measuring the impact of neuroscientific evidence is nevertheless difficult. A jury that acquits a defendant or decides not to impose the death penalty may have done so even in the absence of the expert evidence. Appellate courts have reversed convictions and remanded for new hearings or trials because neuroscientific evidence was improperly excluded (or because the defense attorney failed to present it), but the result after the new trial or hearing may turn out to be the same.

Given the gaps in knowledge about the connection between the brain, genetics, and criminal behavior, not all neuroscientists agree that expert neurobiological evidence should play a role in the courtroom. Notwithstanding that controversy, as scientific analysis becomes increasingly sophisticated, experts in neuroscience are likely to play a larger role as witnesses in criminal trials.

Utah Supreme Court Upholds Lower Court Decision to Disallow Testimony of Eyewitness Identification Expert

At the end of 2015, the Utah Supreme Court reversed a decision the Utah Court of Appeals that granted a new trial to a defendant who was not permitted to call an eyewitness identification expert at his trial. The decision, based on a conclusion that the trial judge did not abuse its discretion in disallowing the expert testimony, reaffirms the Utah Supreme Court’s recognition that eyewitness identification experts are, at least in some cases, an essential safeguard of a defendant’s right to a fair trial. The decision also stands as a reminder that lawyers who want to call expert witnesses must be prepared to explain why the expert’s testimony is important.

Eyewitness Identification Experts

Juries often consider eyewitness testimony to be the strongest evidence in a criminal trial. While jurors have faith in eyewitness identifications of people who are charged with a crime, studies have established that eyewitnesses are often wrong when they identify a suspect. A 1996 review of 28 wrongful convictions in which the defendant was exonerated by DNA evidence revealed that each conviction was supported by one or more false identifications of an innocent defendant. The Innocence Project reports that mistaken identifications play a role in more than 70{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of all convictions that are later overturned as a result of DNA evidence.

Research confirms that eyewitness identifications are tainted by:

Suggestive lineups or photo arrays in which police subtly encourage a witness to identify a particular suspect.

The likelihood that a witness will misidentify a suspect after seeing that suspect’s picture in a photo array or newspaper.

The difficulty of focusing on the details of a criminal’s appearance and imprinting a memory under stressful conditions that usually exist while the crime is occurring, particularly when a weapon is present.

The malleability of memory — that is, the fact that what we “remember” changes as we receive new information, so that memories we believe to be reliable have in fact been altered.

The absence of a strong correlation between a witness’ certainty that a memory is accurate and the actual accuracy of that memory.

The difficulty that eyewitnesses have when they attempt to identify a suspect of a different race.

Conditions that impair the ability to make a careful observation, including poor lighting, distance, and the brevity of time during which the criminal is in view.

A comprehensive review of these and other factors by the National Academy of Sciences points to the important role that psychologists and neuroscientists play in explaining perception and memory to juries when a prosecution is founded on an eyewitness identification. Expert testimony conveys research findings to juries that explain why “common sense” understandings of memory and perception are often mistaken.

Studies of jury decision-making establish that eyewitness identification experts have a beneficial impact on jury deliberations. Research also confirms that cautionary jury instructions, advising a jury of potential pitfalls of eyewitness identifications, have no significant impact on a jury’s evaluation of eyewitness testimony.

Clopten Decision

Prior to 2009, appellate court decisions in Utah discouraged trial judges from admitting expert witness testimony. The decisions created a presumption that, in most cases, jurors were capable of evaluating eyewitness identifications without the assistance of an expert. Expert testimony was seen as invading the jury’s province as the sole evaluator of witness credibility. The Utah Supreme Court repeatedly held that an instruction regarding the evaluation of eyewitness testimony was adequate to guide the jury, and that expert testimony would be superfluous and confusing.

The Utah Supreme Court jettisoned that presumption in 2009 when it decided State v. Clopten. The Clopten decision acknowledged that jurors rarely understand the limitations in human perception and memory that are critical to the accuracy of an eyewitness identification. The court determined that cross-examination and cautionary jury instructions are inadequate substitutes for expert testimony as tools for conveying the reasons that an eyewitness identification might be mistaken. The court decided that expert testimony is the best method for educating the jury about the vagaries of eyewitness identification. Accordingly, the court followed a growing trend by ruling that trial courts should admit expert testimony whenever it might help the jury evaluate the reliability of an eyewitness identification.

Guard Decision

In a case decided on December 31, 2015, the Utah Supreme Court revisited the issue of expert testimony in eyewitness identification cases. In that case, a stranger tried to kidnap a 9-year-old girl at knifepoint. The girl kicked and punched her assailant, freeing herself from his grasp. She then ran home.

When the police interviewed her, the girl described a man with curly hair and a beard, but said she did not see his face. She was able to describe some of his clothing, including his shoes and a distinctive t-shirt and cap. The next day, a police detective showed her six photographs, and she identified the photograph of Jimmy Guard with certainty. Further investigation found two neighborhood residents who, after looking at Guard’s photograph, said they saw a man who looked like Guard in the area of the assault on the day that it occurred. Another child, who was a block away when the assault occurred, confirmed the victim’s general description of the assailant.

The police arrested Guard two days later. They searched his home but could not locate the cap, t-shirt, or shoes that the victim described. Guard described stores he had been in at the time of the assault. The police waited a week before they interviewed the store employees, none of whom recalled Guard. Guard also told the police that he visited a library in addition to the stores. Unclear photographs from a surveillance camera at a library may have depicted Guard’s image.

Guard’s attorneys wanted to call an expert witness to testify about the problems with attention, perception, and memory that influence eyewitness identifications. The trial court refused to allow the expert testimony. After Guard was convicted and while his appeal was pending, the Utah Supreme Court decided Clopten.

The Utah Court of Appeals decided that Clopten should apply retroactively to Guard’s case. It made that decision notwithstanding a Utah Supreme Court decision that declined to apply a newly announced rule of criminal procedure to cases that are pending on appeal when the new rule represents a “clean break” from past decisions. Since Guard’s case went to trial at about the same time as Clopten’s, the Court of Appeals thought it would be fundamentally unfair to deny Guard the protection of the new rule.

Abandoning the “clean break” rule, the Utah Supreme Court agreed that the Clopten decision should apply to Guard’s case. The court nevertheless ruled that the trial judge was entitled to disallow the expert’s testimony. The court held that Guard failed to establish that the proposed testimony was reliable. Following Utah’s version of the Daubert test, the Utah Supreme Court concluded that Guard failed to make a pretrial showing of the eyewitness identification factors that the expert deemed relevant or how those factors could have influenced the identifications in Guard’s case. Responding to the trial court’s confusion, Guard’s counsel had offered to provide a written summary of the expert’s proposed testimony before trial, but failed to do so. Under those circumstances, the supreme court concluded that the trial court did not abuse its discretion in disallowing the expert testimony.

The Guard decision should not be viewed as an abandonment of the Clopten ruling, which the Utah Supreme Court expressly reaffirmed. Instead, Guard illustrates the importance of making a strong pretrial showing of the relevant testimony that an eyewitness identification expert will offer. Guard’s attorney probably could have made that showing and might have rendered ineffective assistance of counsel by failing to do so. In the end, Guard is the unfortunate victim of poor advocacy rather than poor rules governing the admission of expert testimony.

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