Category Archives: In the News

Biking, Race

Lance Armstrong Doping Expert Banned for Doping

An expert on doping who was part of Lance Armstrong’s defense team has been banned from the sport of cycling for four years after testing positive for banned substances.

Expert Witness John Gleaves

John Gleaves is an associate professor of kinesiology at California State University, Fullerton (CSUF). Gleaves focuses his research on doping in sport, which he examines from a variety of sociocultural perspectives. Gleaves was appointed co-director for the International Network for Doping Research from 2012 to 2019. Gleaves is a co-founder and current co-director for CSUF’s Center for Sociocultural Sport and Olympic Research. He also serves as an Associate Editor for the Journal of Olympic Studies. Gleaves co-authored “Doping in Cycling: Interdisciplinary Perspectives” with Bertrand Fincouer and Fabian Ohl, and Practical Philosophy and “History of Sport and Physical Activity” with Scott Kretchmar, Mark Dyreson, and Matthew Llewellyn.

In 2015, Gleaves was an expert witness for Lance Armstrong’s defense during the United States government’s whistleblower lawsuit fraud suit. Gleaves offered testimony about the widespread nature of doping that persisted in the sport at the time that Armstrong was accused of doping.

Armstrong ended up confessing to doping and settling the fraud suit with the federal government for $5 million. As a result of his confession, Armstrong was banned from sanctioned cycling events for life and stripped of all seven of his titles in the Tour de France.

Gleaves’ Doping Ban

In addition to being a kinesiology professor and expert witness, Gleaves is a masters racer on the United States cycling circuit.

On August 31, 2019, Gleaves, 36, gave a urine sample as a participant at the Masters Track National Championships. Gleaves tested positive for oxandrolone metabolites 17α-Hydroxymethyl-17β-methyl-18-nor-2-oxa-5α-androst-13-en-3-one and 17β-Hydroxymethyl-17α-methyl-18-nor-2-oxa-5α-androst-13-en-3-one, as well as clomiphene and its metabolite 4-hydroxyclomiphene.

These substances are prohibited at all times by the USADA Protocol for Olympic and Paralympic Movement Testing, the United States Olympic and Paralympic Committee National Anti-Doping Policies, and the International Cycling Union Anti-Doping Rules.

As a result of his positive sample, Gleaves accepted a four-year period of ineligibility that began on August 31, 2019. Gleaves has also been disqualified from competitive results obtained on and subsequent to August 31, 2019, including forfeiture of any medals, points and prizes.

Doping Among Seniors on the Rise

While the ban of a doping expert for doping may come as a surprise to some, Gleaves himself has been speaking about the rise of doping among seniors for years.

In June 2015, Gleaves spoke about the rise of doping of seniors at the National Athletic Trainers’ Association convention. Gleaves said that current estimates were that 23 percent to 25 percent of all athletes knowingly use a banned substance at least once during their careers. Gleaves noted that experimentation has increased among masters athletes, or athletes who are 35 and older and compete in things such as distance running and cycling competitions.

Gleaves said, “It’s what no one is talking about now…In cycling, swimming and track and field we’re seeing illicit use. There are a lot of lawyers, doctors and middle- to upper-middle-class people with disposable income and the social capital to be able to get quasi-legal prescriptions.”

Gleaves noted that there was little testing at masters events, so few people were caught. However, the United States Track and Field did begin testing masters athletes over the past few years.

 

Expert Silenced for Giving Truthful Testimony

Sexual predator laws hold defendants convicted of sex crimes in detention after they have served their sentences. The laws are premised on the popular belief that sexual predators have an uncontrollable compulsion to commit sex crimes, and that an indefinite civil commitment time is an appropriate means of protecting society from the crimes they might commit in the future.

State legislatures avoid double jeopardy concerns by claiming that sexual predators are not receiving more punishment after they finish their sentences. The laws generally require that defendants who are labeled as sexual predators must receive treatment, although whether any treatment can defeat an actual compulsion to commit sex crimes is a hotly debated topic.

Whether or not they receive treatment, individuals who are labeled as sexual predators are confined to institutions that in many respects are indistinguishable from prisons. The deprivation of freedom has a punishing impact even if punishment is not the law’s stated purpose.

Sexual predator laws typically allow a confined individual to petition the court for release, based on evidence that the need for confinement no longer exists. After all, if the laws are justified by the rationale that offenders have a mental disorder for which they need treatment, individuals who respond to treatment and are no longer a likely threat should be released from confinement.

The government typically resists release by calling experts who testify that the risk persists. Offenders respond with experts who testify that there is little reason to believe the offender will commit a new sex crime.

But do the experts have the data they need to form reliable opinions? As a recent article in Reason explains, the State of California took extraordinary steps to suppress a study that would have helped expert witnesses make better judgments about the risk to society that follows the release of an offender who has been defined as a sexual predator.

Sexual Predator Laws

Before an individual can be deprived of freedom, perhaps for the rest of that person’s life, sexual predator laws require two conditions to exist. First, the alleged predator must have been convicted of a sex crime. Each state defines the specific offenses and the number of convictions that are required before sexual predator proceedings can be commenced.

Second, a court must determine that the person poses a high risk to society. While the definition of a sexual predator who should be civilly committed varies from state to state, it generally has two components: (1) the alleged predator suffers from a mental abnormality or personality disorder that seriously impairs the ability to control sexually violent behavior, and (2) because of that disorder, the alleged predator will probably engage in acts of sexual violence if not confined.

Expert witnesses play a key role in sexual predator proceedings. Psychologists with experience evaluating sexual predators make predictions about the risk of future violence. In a typical case, experts testify for the government and for the alleged predator. A judge or jury then decides whether the government has met its burden of proving that the alleged predator must be confined for the safety of society.

Like too many laws, sexual predator legislation is based on fear, not on a neutral assessment of data. While offenders who commit other crimes are released after serving a sentence, public sentiment (or at least the sentiment of people whose voices are heard by legislatures) favors continuing the confinement of sex offenders on the unsupported theory that sex offenders are more likely than other criminals to commit new offenses after they are released. In fact, the data shows that most convicted sex offenders are never charged with another sex offense after they are released from prison.

Expert’s Study Undermines Premise of Sexual Predator Laws

Arguably, empirical data concerning sex offender recidivism does not capture the subset of offenders who are selected for additional confinement as sexual predators. Jesus Padilla decided to answer that question by gathering data that addressed the relevant population.

Jesus Padilla was a psychologist employed at Atascadero State Hospital in California. Padilla tracked individuals who had been confined as sexual predators and who were released without treatment after the State dropped the ball in pursuing recommitment (a process that California required at the time). Since the legal system identified those individuals as sexual predators but failed to give them treatment, Padilla expected that they would have a high rate of recidivism.

Padilla was surprised to find that five years after their release, only 6.5% of the offenders had been arrested for a new sex offense. That recidivism rate is remarkably low, considering that 49% of offenders convicted of other crimes are rearrested for a similar offense within 5 years of release.

Padilla’s Expert Testimony

In 2006, an individual confined as a sexual predator in California petitioned for release. His lawyer learned of Padilla’s study. The lawyer subpoenaed Padilla to testify as an expert witness.

The state objected that Padilla’s publicly funded research was confidential, a silly claim that the judge rejected. To protect the privacy of individuals who were studied, the judge limited Padilla to giving a summary of his findings.

Padilla’s research called into question the rationale for sexual predator confinements. Because he is honest, however, Padilla gave honest testimony about his research results. It turned out that honest expert testimony did not sit well with the State of California.

Expert Silenced for Telling the Truth

Like the prison industry, the sexual predator industry is a substantial employer. California spends more than $300 million a year on its sexual predator program. State employees depend on courts filling institutions with sexual predators so that they will continue to draw state paychecks. Perhaps it isn’t surprising that, with their jobs on the line, employees of the department responsible for confining sexual predators resisted Padilla’s conclusions.

It is surprising, however, that California chose to silence Padilla rather than criticizing his study or funding larger studies to determine whether his results could be replicated. According to a law review article that examined Padilla’s research, Padilla’s study was “halted in midcourse” after he testified. Reason explains that Padilla’s “records were confiscated, his hard copies were shredded, and he was forbidden to talk about his work.” His boss accused him of illegally accessing conviction data, a bogus charge that was dismissed after an independent investigation concluded that it was groundless. Padilla’s efforts to restart the research were consistently rejected.

The law professors who investigated Padilla’s case made a Freedom of Information Act request for the research data. The state claimed an inability to verify that Padilla had ever conducted a study. The law professors then confronted the state with documents proving that the study had been approved and funded. At that point, the state was forced to turn over the data. However, when Padilla inspected the data, he discovered that someone had tampered with the Excel files by carving up spreadsheets and rendering them useless. He also discovered that the data was incomplete.

Censoring an expert and suppressing an expert’s research because the expert’s findings are unwelcome is a shameful response to honest research. As Reason notes, authorities in California apparently prefer to adhere to their “unexamined assumptions” rather than considering evidence that might contradict the foundations of their work.

The law professors concluded that after Padilla testified, the state “may have realized the study had to be stopped because it threatened the legitimacy of the entire [sexual predator] program.” Nothing could be more antithetical to the honest research and expert analysis upon which the legal system depends than suppressing knowledge that undermines the basis for depriving individuals of their freedom.

 

Expert Witness

Recommendation That Expert Should Not Be Disqualified From Testifying Against Former Employer

A U.S. district court judge has received a recommendation that he should allow a former employee of the Consumer Financial Protection Bureau to testify as an expert witness against it, in the agency’s suit against loan financier Navient.

The Underlying Suit

In 2017, the Consumer Financial Protection Bureau (CFPB) and the State of Pennsylvania sued Navient, claiming that the nation’s largest student loan servicer failed to properly service its borrowers’ accounts and improperly directed them towards forbearance, instead of encouraging them to move toward income-based repayment plans. Forbearance is the act of refraining from paying any debts.

The complaint alleges that Navient violated the Consumer Financial Protection Act, the Fair Debt Collection Practices Act and Regulation V of the Fair Credit Reporting Act.

Navient has vigorously defended against these claims and called the suit an “unauthorized copycat” of a complaint that CFPB previously filed against it.

The case is before U.S. District Judge Robert D. Mariani in the Middle District of Pennsylvania.

Proposed Expert Testimony

Navient proposed to have Xiaoling Ang, Ph.D, testify as one of its expert witnesses at trial. Dr. Ang is an expert in consumer financial services, antitrust, and labor economics. She has experience in class certification and damages analysis, policy evaluation, cost-benefit analysis, and fair lending in a range of industries, including mortgage, student loan, subprime lending, deposit products, and fixed income.

Dr. Ang was the author of an article that was published in Law360

entitled, “Student Loan Repayment Options in Light of CFPB v. Navient.” Navient’s counsel approached Dr. Ang about testifying on Navient’s behalf based on her writing this article. Her expert report, which Navient proposed to rebut one of CFPB’s experts, reflects the information contained within her article.

Claim of Conflict of Interest

The CFPB objected to Dr. Ang testifying as an expert for Navient, claiming a conflict of interest. Dr. Ang has a Ph.D. in economics from Princeton University and currently serves as an Associate Director at NERA Economic Consulting. Dr. Ang previously served as an Economist at the CFPB from July 2011 to November 2015. At the CFPB, she served as the Lead Economist on Bureau initiatives and rulemakings, including interagency appraisal rulemakings, larger participant rulemakings in student loan servicing and international money transfers, randomized control trials, disclosure testing, and on a Congressional report on private student loans.

The CFPB argued that Dr. Ang should be disqualified from testifying as an expert because she worked for CFPB during its investigation of Navient.

Special Master’s Report

The court asked Special Master Thomas I. Vanaskie to investigate whether Dr. Ang should be disqualified from testifying as an expert at trial. Vanaskie recommended that Dr. Ang should not be disqualified.

Addressing the claimed conflict of interest, Vanaskie wrote, “I have also concluded that Dr. Ang’s sporadic and brief interactions with the Bureau’s Office of Enforcement attorneys over a period of two years did not expose her to confidential information substantially related to the opinions she has offered in her report in this matter such that the Bureau will be prejudiced if she remains an expert witness in this particular case.”

 

Georgia Supreme Court Prohibits Automatic Exclusion of Expert Testimony as Sanction for Violating Scheduling Order

The failure to disclose an expert witness or to provide an expert report within the time limit set by a scheduling order is a recurring issue. Some courts enforce deadlines rigidly. Others are more flexible.

Overruling several lower court precedents, the Georgia Supreme Court made clear that the late disclosure of an expert should not automatically result in exclusion of the expert’s testimony. Rather, a trial judge should make a ruling that is fair to both parties, given the circumstances of the case.

Smith’s Discovery Disclosures

David Smith II was a highly ranked collegiate high jumper before he fractured his hip in a car accident. Smith sued the other driver, Donggue Lee, for negligence. Lee admitted fault.

Smith’s complaint requested damages for medical expenses and pain and suffering. The complaint did not specifically ask for an award of lost future earnings, but it did include a boilerplate request for such further relief as is just and proper.

An interrogatory asked Smith to identify expert witnesses. He answered that he had not made a decision about experts and would supplement his answers pursuant to the rules of civil procedure.

Another interrogatory asked Smith to itemize all of his special damages, including lost wages. Smith provided the medical expenses he had available, stated that he had not received final billings for all of his treatment, and promised to supplement his answers pursuant to the rules of civil procedure. The answer made no reference to past or future wage loss.

The last relevant interrogatory asked for information about lost earnings. Smith answered that he was not claiming lost earnings.

In response to a request for production of documents concerning loss of wages or future earning capacity, however, Smith answered that he was not claiming a loss of past or present earnings but might present evidence of lost earning capacity. He stated that he would supplement his response when that evidence was available.

Four years after the accident, Smith was able to compete in the Olympics. A year later, he had surgery to remove a bone chip from his hip joint that he regarded as accident related.

Two months after that surgery, Smith supplemented his discovery responses to state that he intended to call damages witnesses, including a treating physician and his agent. He stated that in the absence of a stipulation, he would also call an economist to testify about reduction to present value of future lost earnings.

Scheduling Order Issues

The trial court then entered a scheduling order setting a deadline for disclosing experts. Before the deadline passed, Smith supplemented his discovery responses again to indicate that he had been losing earnings, and would continue to do so, in the form of endorsement fees, corporate sponsorship fees, appearance fees, and similar compensation regarding his career as a professional high jumper. He also identified a newly retained agent who would testify as an expert witness.

The defense responded by identifying a rebuttal expert. Smith moved to exclude the expert because he was not identified within the time required by the scheduling order. The trial court granted the motion.

The court expressed sympathy for defense counsel’s claim that prior to the last day for disclosing experts, Lee had no notice that Smith intended to call his new agent as an expert or to make a claim for lost endorsement fees and similar future earnings. However, the court was apparently frustrated that the case had been on the docket for so long and did not want to make any rulings that would further delay the trial.

At trial, Smith emphasized in closing arguments that the defense presented no expert testimony to counter the agent’s calculation of lost earnings. The jury returned a general verdict of $2 million in Smith’s favor.

Lee appealed. The Georgia Court of Appeals affirmed the judgment. The Georgia Supreme Court agreed to review the trial court’s exclusion of testimony by Lee’s rebuttal expert.

Automatic Exclusion of Expert Testimony

The Supreme Court considered two principles of Georgia law that are in tension. First, trial courts have broad discretion to manage their cases and to set deadlines in scheduling orders. Since compliance with those orders is “of paramount importance” to effective case management, judges must be given broad discretion to enforce them.

Second, the exclusion of a witness is a “harsh sanction” that should not be used to punish noncompliance with a scheduling order if a lesser sanction will suffice. Only sanctions that “vindicate the court’s authority” should be imposed.

To reconcile those competing principles, trial courts must exercise their discretion in a reasonable way. The state supreme court decided that trial judges cannot automatically default to the exclusion of an expert witness based solely on a late disclosure, because the automatic imposition of a sanction is not an exercise of discretion. Courts must instead weigh the facts and make a ruling that is fair to both parties.

In this case, the court acknowledged that Lee didn’t create the problem but excluded his rebuttal expert solely because he missed a disclosure deadline that he arguably had no opportunity to meet. The court abdicated its duty to exercise discretion by excluding the expert as an automatic sanction for a belated disclosure. The state supreme court thus reversed the court of appeals’ opinion and overruled a string of court of lower court opinions that affirmed the automatic exclusion of a witness based solely on a violation of a scheduling order.

Factors Courts Must Consider When Sanctioning a Scheduling Order Violation

Going forward, the Georgia Supreme Court requires trial courts to consider four factors when deciding whether the late disclosure of an expert witness should be sanctioned by exclusion of the witness:

  • the party’s explanation for the failure to make a timely disclosure
  • the importance of the testimony
  • the prejudice to the opposing party if the witness is allowed to testify
  • whether a less harsh sanction would be sufficient to ameliorate any prejudice and vindicate the court’s authority

Granting a continuance of trial or amending the scheduling order to permit discovery regarding the witness are examples of remedies that are less harsh than exclusion of the witness. Whether to select one of those remedies will depend on how the court weighs and balances the other factors.

Discretion should be exercised in the first instance by the trial judge, not by the appellate court. The Georgia Supreme Court therefore remanded the case to the trial judge with the direction to allow the parties to present evidence and arguments relevant to the identified factors. It will be up to the trial judge to decide whether Lee’s expert should be allowed to testify in a new trial, or whether no new trial is necessary because the court would have excluded the witness after conducting the appropriate analysis.

 

Growing Trend of Using Rap Lyrics as Evidence in Court

An expert on hip-hop culture has noted an uptick in the trend of prosecutors using rap lyrics and videos as evidence of guilt.

The Shooting Death

On December 10, 2016, shots were fired at a “Naughty or Nice Pajama Jam” party being held in the warehouse district of Carson in the Los Angeles area. A 24-year-old partygoer Davion Gregory was shot five times. Gregory was brought to the Harbor-UCLA Medical Center and pronounced dead on arrival. Two other people were wounded in the shooting, Travis Harvey-Broome and Kwentin Polk.

Investigators found shell casings from a .40-glock pistol and a .38 revolver at the scene. There was no video footage of the shooting and no one could identify the shooters. L.A. County sheriff detectives Francis Hardiman and Richard Biddle visited Harvey-Broome and Polk at the hospital, who described seeing a “light-skinned black guy with braids or dreads” in the parking lot, vaguely remembering seeing a black Mercedes SUV and red Mustang or Benz.

Approximately one week later, Hardiman heard the name “Drakeo the Ruler” on a wiretap in an unrelated gang case. Detective Hardiman alleges that he spoke to the victim’s family about Drakeo and they told him that they had also heard rumors about Drakeo being involved with the shooting. This led to an investigation into Darrell Caldwell, a rapper who goes by the name, Drakeo The Ruler.

Darrell Caldwell/Drakeo’s Trial

Drakeo was eventually charged with murder, attempted murder, felony gun possession by a felon, and criminal gang conspiracy in connection with the shooting death of a Davion Gregory.

Drakeo was acquitted of all charges of murder and attempted murder and convicted on a charge of felony gun possession by a felon. The jury was hung on the count of criminal street gang conspiracy. The prosecutors’ theory behind this charge is that Drakeo had ordered the shooter to kill a musical rival, “RJ,” but the shooting was botched and Gregory was killed. As evidence, prosecutors cited a line from Drakeo’s song “Flex Freestyle,” in which he raps, “I’m ridin’ round town with a Tommy gun and a Jag / And you can disregard the yelling, RJ tied up in the back.”

Hip-Hop Culture Expert

Drakeo’s defense attorneys called Erik Nielson to testify as an expert witness in Drakeo’s first trial. Nielson is an Associate Professor of Liberal Arts at the University of Richmond. His research is focused on African American literary and musical traditions, with an emphasis on hip-hop culture. Nielson has co-authored two books on the topic, “The Hip Hop & Obama Reader” and “Rap on Trial: Race, Lyrics, and Guilt in America.” He is also the author of numerous academic articles, chapters, reviews, and feature articles on the topic.

Nielson has estimated that he has been asked to consult on over 60 cases where prosecutors have introduced rap lyrics or videos as evidence of guilt. Nielson also conducted research with University of Georgia law professor Andrea Dennis that reveals over 500 instances of prosecutors using this tactic.

Nielson explained that the role that he plays at criminal trials is correcting prosecutorial characterizations or rap music. He noted that prosecutors “routinely ignore the fact that rap is a form of artistic expression – with stage names, an emphasis on figurative language and hyperbolic rhetoric – and instead present rap as autobiographical.”

Nielson further explained that this practice is effectively asking “jurors to suspend the distinction between author and narrator, reality and fiction, and to read rap lyrics as literal confessions of guilt. No other art form is exploited like this in court. And yet it’s an effective strategy precisely because it taps into stereotypes about rap music and the young men of color who are its primary creators.”

In Nielson’s opinion, introducing rap lyrics as evidence in criminal trials can be highly prejudicial because it allows prosecutors “to draw on stereotypes about young black and Latino men as violent, hypersexual and dangerous.”

Drakeo is set to be retried on the criminal gang conspiracy charge. If convicted, he faces life in prison.

 

a doctor and a child

Where Are the Dauberts Today?

The Supreme Court’s Daubert decision revolutionized the law governing the admissibility of expert witnesses. The decision imposes a duty on trial judges to decide whether expert testimony is sufficiently reliable to be admitted as evidence in court. While there remains widespread disagreement about whether Daubert is meant to open or close the door to expert testimony, the decision’s influence on American law is undeniable.

A majority of states have adopted some version of the Daubert analysis, although states often put their own spin on the role that judges should play when the assess expert witness testimony. One scholar has applauded the Daubert “revolution” for bringing “scientific enlightenment to the law.” Another has questioned whether judges are any better than juries at evaluating expert evidence. In short, opinions about Daubert are all over the map.

The Daubert Decision

The Daubert decision was the culmination of a lawsuit commenced by Joyce and Bill Daubert. Among other deformities, their newborn son was missing three fingers and a bone in his forearm. Doctors told her that she was probably exposed to something that caused her developing embryo to deform, but they could not identify the specific cause.

About ten years later, Joyce read a newspaper article about a little girl with symptoms that were similar to her son’s. The girl’s parents were suing Merrell Dow, alleging that the birth defects were caused by Bendecin. The company marketed the anti-nausea medication as a remedy for morning sickness.

In 1983, the parents of the little girl won a $750,000 verdict against Merrell Dow. Their lawyer called a reproductive epidemiologist and a pediatrician as expert witnesses. About two weeks later, Merrell Dow pulled Bendecin from the market.

The Dauberts brought their own lawsuit against Merrell Dow. They assembled a team of expert witnesses. By that time, pharmaceutical and insurance companies had launched a public relations campaign against “junk science.” The campaign disparaged juries as being too “sympathetic” to injury victims (as if human empathy is an evil trait) and contended that experts chosen by plaintiffs (but not drug companies) were “hired guns” who slanted their unscientific opinions to favor the parties who hired them.

Merrell Dow moved to dismiss the case without a trial, based on an epidemiological study that found no “reproducible or consistent association of birth defects with Bendectin exposure.” The Dauberts challenged that study. They relied on eight experts, including experts in reproductive epidemiology, developmental biology, toxicology, biostatistics, and pharmacology. The experts reanalyzed the epidemiological data and concluded that the study advanced by Merrell Dow did not rule out the possibility that Bendectin caused birth defects.

The trial judge sided with Merrell Dow. On appeal, the Ninth Circuit applied the Frye test for expert witness admissibility. The court concluded that the methods relied upon by the Dauberts’ experts were not a “generally accepted” means of proving causation and thus could not be admitted as evidence.

The Dauberts took their case to the Supreme Court. The Court rejected the Frye test. The question, the Court said, should be whether expert testimony is reliable, not whether it is based on a methodology that is generally accepted by other scientists. While acceptance is one factor that helps a judge assess reliability, making it the only factor prevents juries from hearing reliable evidence simply because it is new or novel.

The Supreme Court reversed the Ninth Circuit’s decision. It rejected the Frye standard and crafted an admissibility test that is now known as the Daubert standard. The New York Times reported that the Court raised the bar for admitting expert testimony. The Washington Post reported that the Court lowered the bar. That controversy has continued to this day.

The Aftermath of Daubert

The Ninth Circuit applied the new standard and again rejected the Dauberts’ experts. This time, the court concluded that epidemiological evidence did not prove that Bendectin exposure would double a child’s risk of being born with birth defects. If the risk is not doubled, the court decided, it was impossible to say that birth defects were probably caused by Bendectin.

Putting aside the wisdom of the decision, the Ninth Circuit’s reasoning has been widely adopted. Judges have used it to reject expert testimony in a variety of contexts that involve potentially dangerous exposures, from chemical products and pollutants to radiation from power lines and cellphones.

The Ninth Circuit judge who wrote the decision rejecting the Dauberts’ claim later became an advocate for applying the Daubert standard in a way that benefits not just corporations accused of wrongdoing, but defendants who are accused of committing crimes. The judge noted that government crime lab employees too often view their jobs as helping prosecutors, not as seeking the truth.

The legal system has been slow to reject the testimony of crime lab analysts who were allowed for decades to base opinions on anecdotal evidence rather than rigorous methodologies. While change does not come easily, courts are beginning to recognize that dubious testimony about bite marks, hair comparisons, blood spatter, and other branches of forensic science cannot be considered as proof of guilt.

What Happened to the Dauberts?

Where did the Daubert decision leave the Dauberts? Joyce feels that justice was not done because she never had her day before a jury. In the absence of any better explanation for her son’s birth defect, she still blames Dow Merrell. She might be right, but the Ninth Circuit’s questionable belief that doubling a relative risk is essential to proof of causation has become widely accepted by federal judges.

On the other hand, Joyce’s son — who is now 46 and working in the field of information technology — appreciates that a case bearing his name is being used to reduce the risk of innocent defendants being convicted on the strength of junk science. While disagreement about the application of Daubert in civil cases continues to spark controversy, there is a growing recognition of its importance as a shield against overzealous prosecutors who disguise biased opinions as “expertise” in their effort to convict accused defendants.

 

stock market

Experts Testify at Congressional Hearing About Blockchain Technology

A panel of experts have offered testimony at a United States Congress hearing over the benefits of blockchain technology for small businesses.

Congressional Hearing

The hearing, entitled, “Building Blocks of Change: The Benefits of Blockchain Technology for Small Businesses,” was held before The Committee on Small Business on March 4, 2020. The purpose of the hearing was to give the committee insight into “how innovators and entrepreneurs are using blockchain technology to help small businesses boost productivity, increase security, open new markets, and change the way business is done.”

Blockchain technology utilizes a distributed, decentralized, digital ledger or database that allows multiple parties to engage in secure transactions with each other without the use of an intermediary. Blockchain technology is most commonly associated with cryptocurrency such as bitcoin. However, it has many potential uses, including: monitoring goods in global supply chain, use in retail reward loyalty programs, serving as digital identification, digital voting, and transfers of items like real estate or motor vehicle titles.

Expert Witnesses

The experts who were called to testify before the Committee included: Shane McRann Bigelow, Dawn Dickson, Marvin Ammori, and Jim Harper.

Shane McRann Bigelow is the CEO of Ownum, LLC, a blockchain tech company focused on unlocking business growth and making government more efficient. Bigelow offered testimony on behalf of the Chamber of Digital Commerce. Bigelow testified that his company hoped to use blockchain technology to “Help the poorest in our country, who are also disproportionately minorities, to gain better access to their vital records in a secure way by encouraging federal and state governments to allow for the digitization of not only their vital records, but the process to acquire them.” He emphasized, “Additionally, we will help improve public safety through more accurate data, particularly in the vehicle title arena.”

Dawn Dickson is the CEO of PopCom, a company that uses blockchain technology in “high-IQ automated retail technology” or smart vending machines. Dickson testified, “Blockchain is not a silver bullet. But it can solve problems that small businesses face.” She gave the example that her company believes that the most “secure way to check and confirm a customer’s identity, while ensuring that their personal data remains secure, is to have the customer verify their information securely on their mobile device and store that data on blockchain.”

Marvin Ammori is the General Counsel of Protocol Labs, a research, development, and deployment institution for improving Internet technology. Ammori testified on behalf of the Blockchain Association, a trade association for organizations who are interested in responsibly building and investing in the next generation of digital services. Ammori testified that blockchain technology benefit businesses in many industries, including health care, supply chain, law, and enabling investment and competition in internet infrastructure services such as cloud storage.

Ammori also testified that, “The tax treatment is very complicated” and “doing your taxes for crypto is the worst nightmare.” He explained that doing taxes involving crypto is currently a nightmare and that the system should be reformed before mass adoption. He gave the example, “If you wanted to spend Bitcoin on a coffee this morning, you’d have to keep track of what you paid for the Bitcoin and how much it was worth the moment you spent it, and pay the capital gain or loss on every single transaction.” Ammori also argued for clearer crypto guidelines from both the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CTFC).

Jim Harper is a visiting fellow at the American Enterprise Institute, a public policy think tank dedicated to defending human dignity, expanding human potential, and building a freer and safer world. Harper identified, “three advantages of blockchain I can identify for small business: First, simple efficiencies may produce lower costs for small businesses. Second, blockchains may allow for diversified and open market structures that support more niches and specialties. Finally, blockchains may reduce the competitive advantage that large businesses have in the world of data.”

 

A judge

Colorado Supreme Court to Weigh in on Experts in Domestic Violence Cases

The Colorado Supreme Court has decided to hear a case to determine whether to permit expert witness testimony in domestic violence trials by experts who are not familiar with the details of the case.

The Domestic Dispute

In the summer of 2013, Kerry Lee Cooper and his partner, L.K., got into an argument over where to place an electric fan. L.K. testified that Cooper shoved her face into the fan’s blades, cutting her, and she retaliated by hitting him. L.K. claims that Cooper then punched her, grabbed her by the jaw, and beat her with a tire iron.

Cooper claimed that L.K. had been the aggressor. According to Cooper, L.K. asked him to reposition the fan. When she was unhappy with the way he had placed it, he threw the fat on the end of the bed. He claims that L.K. hit him with the flashlight and bit his hand when he tried to take the flashlight away from her. Cooper only admitted to pushing L.K. in the forehead.

Cooper’s daughter, who lived nearby, heard screaming and called the police.

The Domestic Violence Expert

At Cooper’s trial, the prosecutors brought in an expert witness to testify about the “characteristics of domestic violence relationships” and the “power and control wheel,” a tool that was developed with the intent to “explain the ways that an abusive partner can use power and control to manipulate a relationship.”

Cooper’s attorneys objected to the testimony, but the court allowed its admission. A jury convicted Cooper of third degree assault and harassment, but acquitted Cooper of related menacing and cruelty to animal charges—Cooper’s dog had entered the room during the incident.

Colorado Court of Appeals

Cooper appealed his conviction. On appeal, the Colorado Court of Appeals considered whether the district court erred by admitting a subject matter expert witness who had no familiarity with the facts of the case.

The Colorado Court of Appeals ruled that the trial court had erred by admitting the expert witness. Writing for the court, Judge Michael H. Berger stated that “No evidence presented to the jury proved or even suggested that prior to the charged incident Cooper had assaulted, or physically or nonphysically abused, L.K.” Berger also noted that there was no indication of a cycle of violence or control over L.K.; however, “the expert was permitted to give extensive testimony about how domestic abusers exercise such control”.

Berger wrote that the expert’s testimony “may well have caused the jury to infer that there was a prior history of domestic violence.” The court reversed Cooper’s conviction and ordered a new trial.

Colorado Supreme Court

The People of the State of Colorado petitioned the Colorado Supreme Court for a Writ of Certiorari.

The Colorado Supreme Court granted the petition, agreeing only to determine the issues of (1) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence was inadmissible because the charged act was the first act of domestic violence in the relationship; (2) Whether the court of appeals erred in concluding that blind expert testimony on domestic violence must be limited to those facets of a subject that are specifically tied to the particular facts of the case; (3) Whether the court of appeals erred in finding that the admission of the expert testimony was not harmless.

 

Fake

Testing Instruments Used by Forensic Psychologists Criticized as Junk Science

Psychologists and other mental health professionals give helpful testimony in a variety of contexts. In civil cases, they may testify about the emotional trauma experienced by an accident victim. In family law cases, psychologists determine the fitness of parents seeking child custody. In workers’ compensation cases, they provide opinions about the degree of disability caused by job-related emotional injuries.

In criminal cases, mental health experts often provide evidence that will help a sentencing court decide upon an appropriate punishment. In death penalty cases, their testimony might help a jury understand whether a defendant is likely to commit another violent crime.

While mental health experts play a vital role in the legal system, their testimony is often criticized as inexact. Proper testing of DNA can establish identity to a near certainty, but mental health experts have no comparable tools. Physicians rely on objective evidence to make a diagnosis, including CT scans and MRI results, while mental health experts are more likely to rely on subjective impressions when they identify a mental health condition.

Assessment Instruments and Subjectivity

To reduce subjectivity in forensic psychological assessments, experts have developed instruments that help them make a diagnosis. Those tools allow psychologists and other expert witnesses to base opinions on objective research findings rather than subjective impressions.

Subjective conclusions may reflect unconscious bias. They may also reflect an opinion that would not be held by a different professional conducting the same evaluation. To the extent that an assessment instrument is both valid and reliable, the instrument may help forensic experts achieve more consistent results.

Despite the advantages of using assessment tools to inform an expert opinion, a 2014 study found that a quarter of all forensic evaluations are conducted without using an assessment instrument. Experts who regularly eschew tools typically trust their professional judgment more than evidence-based assessment methods.

While using an assessment instrument may contribute to the reliability of an expert opinion, not all instruments are created equal. The criteria chosen for measurement may be based on a consensus of subjective opinion rather than an objective analysis. In addition, instruments often call for the assessor to answer subjective questions. Different psychologists administering the same test might therefore reach markedly different results.

For example, the Hare Psychopathy Checklist, a screening tool to determine whether a patient should be classified as a sociopath, asks whether the subject has “excessive glibness” or superficial charm. Two different assessors might disagree about the amount of glibness that is “excessive.” What seems to be genuine charm to one might seem superficial to another. It isn’t surprising that the tool has been harshly criticized, despite its widespread acceptance in the mental health community, as relying on criteria that are “subjective, vague, judgmental and practically unmeasurable.”

Validity of Forensic Psychology Instruments

Tess Neal, an assistant professor of psychology at Arizona State University, led a study of testing instruments commonly used to provide an objective foundation for expert opinions rendered in court. Legal scholars teamed with mental health experts to examine assessment tools commonly used by expert witnesses. The study’s findings will likely fuel Daubert challenges while providing ammunition for challenging opinions on cross-examination.

The study examined 30 assessment tools “to determine their popularity among experts and their scientific credibility.” Neal and her colleagues assessed a variety of instruments, including “aptitude tests (e.g., general cognitive and ability tests), achievement tests (e.g., tests of knowledge or skills), and personality tests.”

The study found that only about two-thirds of popular assessment tools are generally accepted as reliable in the field of psychology. It also determined that there is only a “weak link” between general acceptance of a tool’s reliability and its actual reliability.

Actual reliability was determined by whether the instruments received “favorable reviews of their psychometric and technical properties in authorities such as the Mental Measurements Yearbook.” Only about 40% of popular assessment instruments have been favorably reviewed.

Some tests, such as the Static-99 (a sex offender risk assessment tool) are generally accepted as reliable despite the absence of any professional reviews. Others, such as the Structured Inventory of Malingered Symptomology (SIMS), are generally accepted despite having largely unfavorable reviews. The assumption that an instrument is reliable seems to be detached from evidence-based research.

The authors report that psychological testing is a large and profitable business. Yet it is not always true that “psychological tests published, marketed, and sold by reputable publishers are psychometrically strong tests.”

According to the study, “some psychological assessment tools are published commercially without participating in or surviving the scientific peer-review process and/or without ever having been subjected to scientifically sound testing—core criteria the law uses for determining whether evidence is admissible.” The mental health experts who use an instrument may be unaware that it has never been peer-reviewed or validated with testing.

Failure to Challenge Assessment Instruments

The study also noted that lawyers have done a poor job of challenging the reliability of assessment evidence. Judges and lawyers tend to accept the evidence without question.

The study’s key finding is startling: “Challenges to the most scientifically suspect tools are almost nonexistent. Attorneys rarely challenge psychological expert assessment evidence, and when they do, judges often fail to exercise the scrutiny required by law.”

The study found that lawyers challenged the admissibility of only 5% of expert opinions that were based on the surveyed assessment instruments. The majority of those challenges addressed how the expert used the tool (i.e., whether the expert followed the instructions correctly) or whether the expert interpreted the results correctly.

A more fundamental challenge would address the validity of the instrument itself. Daubert requires expert opinions to be based on adequate facts and a reasonable methodology. If an assessment tool has not been determined by peer-reviewed studies to produce reliable results, opinions that are driven by the tool may be ripe for a Daubert challenge.

When validity challenges are made, they often fail. Judges base decisions on the evidence and arguments presented at a Daubert hearing, so it may be unfair to criticize judges for failing to recognize the weaknesses of assessment instruments that have not been validated.

Still, the study found that courts sometimes view test results as only one fact among many that informs the expert’s opinion. If that fact is unreliable, however, Daubert would prevent an expert from using the test result as support for an opinion. Since reliance on a testing instrument bolsters a psychologist’s subjective opinion with data that is supposedly objective, a jury might be swayed by unreliable test results, even if the jury might not be persuaded by the expert’s testimony in the absence of those results.

The study’s “bottom-line conclusion is that evidentiary challenges to psychological tools are rare and challenges to the most scientifically suspect tools are even rarer or are nonexistent.” Effective representation of a client may require lawyers to raise Daubert challenges to opinions based on psychological assessment instruments, even if the instruments are widely used.

Using Experts to Challenge Experts

When one party calls a mental health expert to testify, it is nearly always imperative for the opposing party to use its own expert to challenge that testimony. Professor Tess’ study provides a means for experts to challenge opinions that are based on the findings of popular assessment instruments.

Michael Saks, a professor of law with ASU’s Sandra Day O’Connor College of Law, stresses the importance of challenging the credibility of psychological evidence. Challenging biases that are inherent in assessment instruments is an important means of assuring that juries do not place undue weight on opinions that are only loosely grounded in science.

Professor Saks hopes that the study will encourage expert witnesses to be skeptical of their own testing instruments. Professor Neal agrees that psychologists need to be more introspective by challenging their own assumptions about the validity of their tools. At the very least, experts should be prepared to acknowledge the limitations of their findings and to admit that psychological opinion evidence can never be entirely free of subjectivity.

 

Former FBI Director Excluded as Expert Witness

A federal judge has excluded the testimony offered by a former FBI Director in the case of the high-profile Volkswagen diesel emissions scandal.

Volkswagen Diesel Emissions Scandal

Volkswagen installed emissions software on more than 500,000 diesel cars in the United States and about 10.5 million more globally that allowed them to sense when a car is going through an emissions test. When the cars are in test mode, they are fully compliant with the maximum emissions levels that are set by The Environmental Protection Agency (EPA). But when the cars are driving normally, the cars switch to a different mode that changes fuel pressure, injection timing, exhaust-gas recirculation, and the amount of urea fluid that is sprayed into the exhaust. The “normal driving” mode delivers higher mileage and power; however, it also emits nitrogen-oxide (NOx) at levels that are up to 40 times higher than the federally-allowed limit.

As a result of these findings, Volkswagen was sued by the Environmental Protection Agency, the Federal Trade Commission, and the Department of Justice. Volkswagen was also liable civilly to the customers who had purchased the vehicles with the emissions software installed.

Expert Witness Louis Freeh

In 2016, Volkswagen was in talks to hire former FBI Director Louis Freeh to run its diesel emissions litigation. Freeh’s resume includes stints as a special agent in the FBI, Assistant U.S. Attorney, and United States District Judge for the Southern District of New York. President Bill Clinton appointed Freeh as the 5th Director of the Federal Bureau of Investigation, where he served from 1993 to 2001. He now serves as a lawyer and consultant in the private sector.

Freeh requested a guaranteed $15 million over three years, plus 10% of the “savings the company and its subsidiaries yield and/or the costs saved by settlements.” In the end, VW passed over Freeh for the role.

Freeh, who is founder and chairman of consulting firm Freeh Group International Solutions and senior managing partner of the affiliated law firm Freeh Sporkin & Sullivan, is now working for the other side. Freeh was retained as an expert witness for the plaintiffs who opted out of VW’s 2016 civil settlement and chose to sue the company instead.

The Knight Law Group retained Freeh as a plaintiff’s expert witness in the case In Re: Volkswagen “Clean Diesel” Marketing, Sales Practices, and Products Liability Litigation. The Knight Group paid Freeh $50,000 to write a 21-page report and agreed to pay $1,850 per hour for any future work. In his report, Freeh concluded that Volkswagen had gotten off too cheaply in the government’s criminal case against it, which settled for $2.8 billion in 2017. In Freeh’s opinion, the proper fine should have been in the range of $34 billion to $68 billion.

Volkswagen’s defense team filed a motion to disqualify. In its motion, the team argued, “Mr. Freeh’s conflict of interest and receipt of confidential information disqualify him from serving as an expert adverse to defendants.” The motion argued that Freeh had “engaged in extensive privileged and confidential discussions with Volkswagen’s senior-most executives and counsel about the same diesel matters underlying this lawsuit, including discussing key documents and legal strategy.”

While the motion to disqualify was still pending, U.S. District Judge Charles Breyer of the Northern District of California, held a Daubert hearing on the relevance of Freeh’s opinion. Judge Breyer ruled that the admission of Freeh’s opinion could bog down the trial and would require testimony from the judge who oversaw the criminal case and federal prosecutors. Judge Breyer said that plaintiffs’ counsel could not point to a single case where that type of testimony would be admissible.

Judge Breyer’s ruling effectively mooted the pending motion to disqualify Freeh based on information that was shared with him when he was in the running for the role to run the company’s previous litigation.