Category Archives: In the News

Articles about legal issues currently in the news.

Blood-Splatter Expert Testimony Challenged in Murder Trial

An Australian blood-splatter expert telephoned the defense attorney in the Pennsylvania murder trial of Jessica Alinsky because he was shocked by the opinions expressed by a state police trooper who was testifying as a forensics expert. Dr. Mark Reynolds knew about the Alinsky case because the trooper based a presentation on the crime scene evidence while attending a blood-splatter training course that Reynolds taught. According to Reynolds, the trooper would have failed the course if he had been graded on that presentation alone.

Unfortunately for Alinsky, the defense only learned of Dr. Reynolds’ opinion after the trial was underway. The defense moved for a mistrial to give Dr. Reynolds, who was in Australia, time to familiarize himself with the case and to testify as an expert witness. After the judge denied that motion, Alinsky was convicted of third degree murder.

Expert Evidence in Jessica Alinsky’s Murder Trial

Matthew Ryan Gailie, a prison guard, was shot in the head soon after he returned home from work. Prosecutors claimed that his girlfriend, Jessica Alinsky, shot him at close range and then manipulated the murder scene to make it appear that he had committed suicide. Alinksy gave multiple explanations of the shooting to the police, attributing it both to an accident and to suicide. In one version, she said she was upstairs when she heard the shot. At other times, she said she was next to Gailie when the gun went off during a struggle. Alinksy did not testify during the trial.

Gailie’s body was found on the living room floor with a gun in his hand. The gun was in Gailie’s left hand, but Gailie was right-handed. The strongest expert evidence against Alinksy came from forensic pathologist Gary Ross, who testified that people who use a gun to commit suicide usually drop the gun.

The trial began with the expert testimony of Trooper John Corrigon. He concluded that a blood soaked bank statement found next to Corrigon’s body had been planted by Alinsky to suggest a motive for the suicide. He did not believe that a bloody handprint on the back of the statement could have been Gailie’s, because Gailie would have been immediately incapacitated by the shot. He also expressed the opinion that the gun was in the wrong position for Gailie to have fired it.

Based on the substantial amount of blood found on the couch, Corrigon testified that the body had been there for some time. He suggested that blood on Gailie’s leg appeared to be “defying gravity,” creating the appearance that Gailie had first fallen on the couch before being rolled to the floor, causing blood to spray onto the floor under the kitchen table.

Corrigon attributed smears of blood on Gailie’s body to Alinsky’s attempt to clean up the evidence. Using a special dye, police also found evidence of bloody female footprints leading to the bathroom, as well as blood in the bathtub that had been cleaned before the police arrived.

Another forensic expert testified that neither Gailie’s nor Alinsky’s hand tested positive for gunshot residue. Both individuals had traces of gunshot residue components on their bodies, but the expert acknowledged that she could not determine who fired the gun based on that evidence.

Reynolds’ Comments

Corrigon used his analysis of blood-spatter evidence in Alinsky’s case when he made a presentation in the course that Reynolds taught. In an email to the defense attorney, Reynolds said that “in almost every instance there was no underpinning scientific support for what he was saying and/or there was a reasonable alternative(s) supportive of self-infliction.”

Reynolds also recalled that Corrigon “made a number of significant concessions and essentially agreed that there was just as much likelihood of it being self-inflicted as it was a homicide.” Those concessions were not reflected in Corrigon’s courtroom testimony.

After the defense became aware that Reynolds had criticized Corrigon’s analysis, the defense recalled Corrigon as a witness. Corrigon admitted that he wrote no report about the professional criticism, but contended that he was not required to do so. The defense contends that Corrigon concealed exculpatory evidence and that the prosecution had a duty to disclose it.

Reynolds also suggested that Corrigon’s conclusions were influenced by other evidence in the case, including Alinsky’s statements. In a telephonic hearing conducted during a break in the trial, Reynolds told the court that a science expert should base conclusions strictly on science. Taking other evidence into account is the jury’s job, not the expert’s.

Grounds For Appeal

The jury took only two hours to find Alinsky guilty of third degree murder and of tampering with evidence. The jury might have come to the same conclusion even without Corrigon’s testimony, given the conflicting statements that Alinksy made to the police and the other evidence that pointed to her guilt.

It is likely, however, that Alinksy will raise at least two grounds on appeal that might result in a new trial. The first is the judge’s decision not to grant a mistrial, which effectively prevented Alinsky from presenting Reynolds’ expert testimony. That testimony might have given the jury a basis for discounting the conclusions drawn by Corrigon.

Alinsky is also likely to argue that Corrigon had a duty to reveal Reynolds’ professional criticism of his analysis and that the prosecution had a duty to disclose that criticism to the defense. Whether either ground for appeal will result in a new trial for Alinksy will probably not be known for more than a year.

Court Dismisses Expert Witness Lawsuit Against Professional Association

Expert witnesses typically belong to professional associations. Their memberships may enhance their credibility when they testify in court. Many of those organizations have established rules that members must follow if they wish to remain in good standing with the association. Some groups have developed rules that govern members who testify as experts.

A case arising in Texas demonstrates the risks associated with disobeying rules that address expert testimony. A recent decision of the United States Court of Appeals for the Fifth Circuit affirmed the dismissal of an expert’s lawsuit against a professional organization that censured the expert for violating a rule governing the conduct of expert witnesses.

Facts Pertaining to the Case

Dr. Jay Barrash regularly testifies as an expert witness in the field of neurosurgery. Hired as an expert witness in a medical malpractice case, Dr. Barrash testified in a deposition that the defendant surgeon had incorrectly placed a bone graft during a patient’s surgery and failed to treat a post-operative infection.

After settling the case, the defendant surgeon filed a complaint with the American Association of Neurological Surgeons (AANS). The complaint alleged that Dr. Barrash violated the AANS Rulesfor Expert Opinion Services by failing to provide impartial testimony, failing to review all pertinent medical information, and failing to allow for differing medical opinions. The complaint also alleged that Dr. Barrash was unqualified to testify and that he charged excessive fees to provide expert witness services.

After holding a hearing, an AANS committee agreed that Dr. Barrash was entitled to criticize the defendant surgeon’s post-operative care. The committee apparently rejected the surgeon’s complaints about Dr. Barrash’s qualifications and fees.

The committee ruled, however, that Dr. Barrash did not review all pertinent medical records before testifying because he failed to examine an available X-ray. The committee also concluded that Dr. Barrash failed to provide unbiased testimony. The committee recommended that Dr. Barrash be suspended from AANS membership for six months. After Dr. Barrash appealed, the AANS Board of Directors downgraded the suspension to a censure. The censure decision was upheld by the membership at large.

There is always a risk that members of a professional organization will be resentful when one of its members testifies against another of its members. Whether that happened here is unclear, but it is clear that Dr. Barrash was unhappy with the association’s disposition of his case.

Dr. Barrash resigned from AANS and sued the association in federal court, alleging (among other claims) that he was denied due process because he was not given adequate notice of the charges. The district court agreed that Dr. Barrash was not given notice of how he allegedly failed to give unbiased testimony. The district court ordered the expungement of that allegation from the censure.

The district court upheld the AANS’ resolution of the charge that Dr. Barrash failed to consult pertinent medical records before testifying. It also rejected Dr. Barrash’s claim that the AANS failed to follow its bylaws and therefore breached its contract with him. Dr. Barrash appealed.

The Decision on Appeal

Dr. Barrash based his lawsuit on claims that arise under Texas law. The court of appeals noted that Texas courts give a great amount of deference to the internal operations of voluntary organizations like the AANS. Notwithstanding that deference, Texas law does require voluntary organizations to provide due process when the organization takes an adverse action against a member.

The most fundamental due process rights are the right to be informed of the accusation and the right to be heard in response. The AANS gave Dr. Barrash a copy of the letter in which the surgeon accused him of testifying without reviewing intraoperative X-rays that allegedly showed proper bone graft placement. The X-rays were available for Dr. Barrash’s inspection at the hearing and Dr. Barrash did not ask to see them in advance. The court of appeals concluded that the AANS gave Dr. Barrash adequate notice of the charge and did not violate his due process rights with regard to that charge.

Dr. Barrash also argued that he did not review the X-rays because they were not pertinent to his testimony. The court of appeals declined to review that claim, which would have required it to substitute its own judgment for the professional conclusions drawn by a committee of neurologists who were better situated to decide the question.

Finally, Dr. Barrash contended that the AANS failed to follow the procedural requirements of its own bylaws during his disciplinary proceeding. He argued that the bylaws constituted the terms of a contract with its members and that AANS therefore breached its contract. The court of appeals concluded that Texas law does not provide a contract remedy for a voluntary organization’s failure to abide by its bylaws. While voluntary organizations must provide basic due process, bylaw provisions that exceed that basic duty are not enforceable in a breach of contract action under Texas law.

In the end, Dr. Barrash learned that courts (at least in Texas) provide limited recourse when a professional organization has disciplined a member. Since professional discipline can often be used against an expert witness during cross-examination, experts should always take care to understand and to follow any rules for expert testimony that have been created by the professional associations to which they belong.

Texas Commission Votes to Exclude Bite Mark Experts from Criminal Trials

Acting on reports from forensic expert witnesses, the Texas Forensic Science Commission has formally recommended the state’s criminal justice system suspend use of bite mark evidence due to its unreliability. Questions about the integrity of bite mark evidence have gained increased traction over the last 6 years, leading to the recommendation by Texas officials to formally suspend the use of dental experts during criminal trials.

Dental Experts Question Bite Mark Evidence

Over the course of the past decade research by Mary and Peter Bush at the State University of New York at Buffalo suggests that no two bite marks from the same set of teeth are the same. The Bush research used a mechanical clamp with teeth attached in an effort to duplicate bite marks, but two bites did not result in identical patterns – even in perfect simulation conditions. If bite marks leave patterns like the Bush research suggests, using bites to connect a defendant to a crime is flawed because unlike DNA evidence or fingerprints – which are unique and connected to an individual – bite marks do not leave consistent impressions and are accordingly a flawed method of identification.

Forensic odontologists have used bite mark testimony in criminal trials since the 1970’s – Ted Bundy was famously convicted in part to bite mark expert witnesses – but the Bush team is just one of many research groups who have questioned the validity of bite mark evidence in recent years. Research on the flaws associated with bite mark identification and the inconsistencies across bite mark expert testimony was compiled by the American Board of Forensic Odontology.

Bite Mark Expert Testimony Targeted by Innocence Project

According to the report by the Board of Forensic Odontology several dentists and other purported bite mark evidence experts could not even identify if a series of marks were made by teeth, much less connect to marks made by the same person. While some experts were able to identify bite marks, the 38 dentists polled could only unanimously agree on 4 out of 100 attempts at making bite mark identification. The discrepancies noticed by the Board of Forensic Odontology and the research by Peter and Mary Bush have been used by the Innocence Project – a national organization which seeks to exonerate wrongly convicted defendants – to argue convictions based on bite mark evidence should be overturned.

The Bush team has testified on behalf of the Innocence Project for the past several years, and the increased scrutiny against bite mark expert testimony has opened the door for several appeals. According to the Associate Press, 24 men who were convicted of serious crimes such as murder or rape using bite mark expert testimony have been exonerated and freed based on the use or more sophisticated DNA evidence. With a growing number of dentists, legal professionals, and forensic scientists turning against bite mark evidence and calling it unreliable, it is not surprising that the Texas Forensic Science Commission would recommend this evidence be suspended from use in criminal trials.

Texas Suspends Use of Bite Mark Expert Testimony

In the face of harsh criticism about the scientific integrity of bite mark evidence and the reliability of bite mark expert witnesses, some proponents of the practice maintain that it is a viable tool for identification. Defenders of bite mark expert testimony argue that the evidence has reliably bene used to earn convictions for several decades, and maintain that a fully trained bite mark expert can use the indention left by teeth to identify a potential suspect in a crime.

Despite the defense of bite mark expert testimony, the wealth of scientific evidence against the practice encouraged the Texas Forensic Science Commission to formally recommend the use of bite mark evidence be excluded in criminal trials. While the recommendation does not guarantee that the use of bite mark expert testimony will be suspended, the committee’s decision will likely influence judges throughout the state who are confronted by bite mark testimony.

As a growing body of research criticizes the use of bite mark expert testimony, the recommendation against its continued use in Texas may be the sign of a growing trend. The use of rigorous scientific study has raised the stakes for experts in a variety of fields, and the Texas decision indicates bite mark evidence is feeling the effects of increased scrutiny.

Fitness Tracking and Expert Testimony

Health conscious Americans are using a variety of new tools to help them measure their fitness. Activity monitors, including Fitbit, Jawbone UP, and Nike Fuelband, keep track of heartbeats, body temperature, the number of steps a user takes, and other data. Some smartwatches record similar data. Measurements of time and distance (assisted by GPS components) allow fitness monitors to compute the speed at which the person wearing the device has been walking or running.

Fitness technology users often have the option to upload the information collected by their devices to an online database. That allows them to keep track of their activity over time. It also permits a comparison of the user’s information to a broad group of people who share similar characteristics (such as age and gender).

The advent of fitness technology has given rise to a new breed of experts. Statisticians are using fitness monitoring data to compare individuals to larger populations. In some cases, they are using data gained from technology users when they testify as expert witnesses.

Experts in Activity Analysis

The first court case involving the expert analysis of data collected from a Fitbit device took place in Canada. A personal injury plaintiff who was injured when she was working as a fitness trainer used expert testimony to establish that her activity levels were lower than average for a person of her age and profession.

Of course, a plaintiff who is malingering might deliberately engage in lessened activity while wearing the Fitbit device. The expert’s data analysis might therefore shed limited light on whether an individual user’s data has been manipulated. The Canadian court presumably left that issue for the jury to resolve.

Whether an activity data analysis would be permitted in an American court would likely depend on whether the party seeking its admission can satisfy the standard for expert evidence that applies in that court. In states that adhere to the Daubert standard, the party would need to establish that the expert’s testimony is based on the application of a reliable methodology to reliable data. The reliability of data that can be manipulated by the person wearing a monitor might be difficult to prove.

While plaintiffs might have trouble using an activity analysis to prove their injury claims, activity data might be a boon to insurance companies that seek to expose fraudulent claims. A plaintiff who claims a serious injury might have difficulty explaining an analysis of Fitbit data showing that the plaintiff is more active than an average person of a similar age. Activity data might also show that a plaintiff who claims to be disabled goes jogging every day. Of course, a savvy individual who wants to make a false insurance claim might know better than to wear a smartwatch or to upload Fitbit information to a database.

Data-Driven “Truth”

As courts increasingly become aware of the perils of eyewitness identification, they may see technology as a means to increase the reliability of evidence that juries consider. Yet raw data is nearly always subject to human interpretation provided by expert witnesses.

As one commentator notes, courts should understand that a “data-driven regime of truth” can be just as unreliable as eyewitness testimony. Some monitoring devices record arm movements as walking when the wearer is sitting in a chair while writing or eating. Others fail to record cycling as an activity. The algorithms that data analysis experts use to interpret the raw data may be flawed, while the data uploaded by people who use fitness trackers may not be representative of the population as a while.

Courts that apply a Daubert rule will presumably examine the reliability of data assessments made by expert analysts. Juries may also hear testimony from competing experts pointing out the problematic nature of data-driven evidence. In the end, however, expert opinions based on fitness tracking technology is likely to become increasingly common in the courtroom.

Expert Witness Testifies During Post-Conviction Hearing of Serial’s Adnan Syed

The post-conviction hearing for Adnan Syed, whose case was made famous by the 2014 legal podcast Serial, featured intense testimony from an expert witness who argued the murder conviction should be invalidated due to insufficient defense counsel. The hearing, which is expected to conclude later this week, will determine the fate of Syed who is currently serving a life sentence.

Serial Podcast Leads to Post-Conviction Hearing

In 2000 Adnan Syed was convicted for the 1999 murder of Hae Min Lee, his ex-girlfriend and high school classmate. From the moment of his arrest Syed has maintained his innocence, and has spent the time since his conviction seeking a new trial by claiming his defense attorney provided constitutionally inadequate representation. Syed has been in prison for more than 16 years, but finally earned a post-conviction hearing to review his case in part due to the overwhelming popularity of a NPR podcast which reviewed the facts of the case and Adnan’s prosecution.

In 2014 journalist Sarah Koenig produced and hosted a podcast on NPR called Serial which discussed the investigation into Lee’s murder and Adnan’s involvement. Throughout the course of Serial’s first season Koenig pointed to a number of procedural question marks in Adnan’s prosecution and defense, the most glaring of which was his attorney’s failure to properly question a number of potential alibi witnesses who placed Adnan in a different location from Lee at the time of her murder.

Three weeks after the conclusion of Serial’s expose on Adnan’s murder trial, the Maryland Court of Special Appeals allowed him to appeal his conviction on the grounds his attorney, Christina Gutierrez, who died in 2004, was ineffective in her efforts to defend him.

Adnan Syed Defense Team Calls Legal Expert Witness

A criminal defense expert witness called by Adnan’s attorneys took the stand to tell the court that Gutierrez’s failure to pursue alibi witnesses was a crucial mistake which satisfies the legal standard for constitutionally insufficient counsel. According to David Irwin, an attorney who consults as an expert witness for criminal defense, Gutierrez was made aware of potential alibi witnesses by Adnan shortly after his arrest, but she didn’t seriously inquire about their alibi testimony or call any to the stand during Syed’s criminal trial.

Irwin called Gutierrez’s failure a “game changer” which “made an incredible difference in the outcome of the case” and told the Court of Special Appeals that Adnan’s insufficient counsel satisfied the Strickland Test, named after the Supreme Court case Strickland v Washington. The Strickland Test, which is used to determine whether defense counsel was constitutionally deficient, requires a defendant to first show his counsel fell below an objective standard of reasonable quality and second that had the defense attorney performed adequately the outcome of the trial would have been different.

During his expert testimony Irwin said that Gutierrez’s counsel fell below the standard for care expected of defense attorneys and the result of Adnan’s trial would likely have been different because alibi witnesses are, according to Irwin, the second-best evidence a defendant can present at trial. Irwin concluded that there were no tactical reasons for Gutierrez to not call alibi witnesses, which suggests her decision to not follow up on those witnesses constituted a failure.

Alibi Witness Testifies at Adnan’s Appeals Trial

To bolster testimony by its expert witness, Adnan Syed’s defense team called a key alibi witness to the stand during his post-conviction hearing. Asia McClain, a classmate of Adnan’s, testified during the hearing that she remembered seeing the defendant at the library at the time he was allegedly killing Lee in a Best Buy parking lot. McClain also told the court that Gutierrez knew about her statement but did not call her to the stand, lending credibility to Irwin’s claim that Adnan was not adequately represented during his initial trial.

Adnan’s post-conviction hearing, which also featured expert testimony from prosecutors which argued cell phone information linking Adnan to the murder scene was valid, is expected to wrap up this week after several days of dramatic testimony.

Pennsylvania Judge Denies Access to Source Code Behind DNA Expert Witness Software

Last year we covered a Pennsylvania legal dispute over DNA testing software used by forensic expert witnesses in criminal trials. Earlier this week the case took another turn when a Pennsylvania judge blocked defense lawyers from accessing the source code for the software, rejecting arguments that the Sixth Amendment mandated the DNA expert witnesses turn over the details of their methodology.

Defense Attorneys Challenge DNA Expert Witness Software

In Pennsylvania and across the country forensic DNA expert witnesses have increasingly relied on a software program which, according to its creators, is able to improve the accuracy of DNA testing significantly. The program, called TrueAllele, can provide police investigators and prosecutors with a positive match using DNA found at a crime scene by comparing it to large databases of stored genetic material. Experts analyze genetic material using the TrueAllele program in order to single out individuals who are linked to the crime, and it has been used in sexual assault, homicide, and property destruction criminal trials.

Pennsylvania and several other states have widely adopted expert witness use of TrueAllele with several police departments and trial courts fully integrating the program. The program has gained favor because of its ability to parse out individual DNA from multiple sources, which is a feature most crime labs are unable to accommodate. TrueAllele’s DNA analysis is more thorough than competing tools, giving investigators better opportunity to single out suspects. Despite the software’s growing acceptance in the legal system, defense attorneys in Pennsylvania have resisted its continued use because they are unable to gain access to TrueAllele’s source code.

Defense Attorneys Petition to Access TrueAllele’s Source Code

Defense attorneys for Michael Robinson, a man charged with shooting and killing two men in Allegheny, PA, argued that the hidden source code behind TrueAllele denied their client the opportunity to adequately confront all of the evidence against him. Robinson’s attorneys, like others before them, argued that the mysterious software program may provide DNA results which police and prosecutors find useful, but its reliability and accuracy cannot be adequately tested without other experts fully analyzing the code which the program uses to parse out genetic material.

TrueAllele has not been in circulation for very long, and defense attorneys claim that without verification by independent experts there are too many unanswered questions about its accuracy to trust. DNA evidence, which is heavily used in criminal trials, was the center of a scandal last May when the FBI admitted to providing inaccurate expert witness testimony at hundreds of trials due to faulty tools of analysis, and defense attorneys have shown a hesitancy to accept forensic analysis technology at face value.

TureAllele’s creator, computer scientist Mark Perlin, has consistently resisted sharing his source code by arguing it would be economically disadvantageous for his company to do so. Currently Mr. Perlin’s company Cybergenetics is the only one using the software, and he does not want to disclose trade secrets as part of a criminal trial.

Pennsylvania Judge Protects DNA Software Source Code

In response to requests by attorneys for Michael Robinson who requested the TrueAllele source code be revealed as part of their cross-examination of prosecutor DNA expert witnesses, Judge Jill E. Rangos said the defense did not sufficiently demonstrate the need for the source code. According to Judge Rangos, requiring Cybergenetics to disclose the source code has “the potential to cause great harm” because of it is a highly valuable trade secret which no other company is able to duplicate at this time. Further, Judge Rangos said that revealing the source code is not “the lynchpin to undermining the Commonwealth’s case” against Robinson, and therefore the defense does not have sufficient reason to put Mr. Perlin’s business at risk by exposing his code.

Robinson’s defense team publically disagreed with the ruling, maintaining that defendants have a 6^th Amendment right to adequately confront witnesses, and in this case that means challenging the foundation of the technology used by expert witnesses who provide DNA testimony. Perlin maintains that experts do not even use the source code, but simply rely on the technology to produce a result after they input data and attorneys can safely test the extent of the expert’s knowledge and methodology without access to the underlying code of the software.

Judge Rangos’s ruling echoes the result from a handful of other criminal courts across Pennsylvania and other states, so for now DNA expert witnesses can safely use TrueAllele without Cybergenetics revealing the protected source code.

Art Experts Gather for Fraud Trial in Manhattan

Art experts from around the world are gathering in a federal courtroom in Manhattan to testify in a case alleging that a prominent New York gallery fraudulently sold forged art. The lawsuit involves a painting of black and red rectangles, attributed to Mark Rothko, that was actually painted by a Chinese immigrant in Queens. The gallery, Knoedler & Company, sold the painting in 2004 to Domenico and Eleanore De Sole for $8.3 million. The gallery closed its doors after it was flooded with lawsuits and is now in the hands of a holding company.

The De Soles are seeking $25 million in damages. A key issue in the trial is whether the gallery or its director, Ann Freedman, were aware that the Rothko was a fake when Knoedler sold it to the De Soles.

Allegations of Fraud

Over the course of 15 years, Knoedler sold about 30 forged paintings that were attributed to abstract artists, including Pollock, de Kooning, and Rothko. Collectors paid about $63 million for the combined works. The forgeries were supplied to Knoedler by Glafira Rosales, a Long Island art dealer who claimed she acquired them from art collections in Zurich and Mexico City.

Rosales was convicted of several fraud charges in 2013. The forger, who fled to China, told an interviewer that he was not paid significant sums for the works and did not know that they were being resold as originals.

During the first week of trial, Domenico De Soles testified that he based his decision to purchase the Rothko on the gallery’s reputation for honesty and made no significant effort of his own to authenticate the painting. He said he also received a letter from Freedman stating that the Rothko had been viewed by eleven individuals “with special expertise on the work of Mark Rothko,” including art historian Irving Sandler and Rothko’s son. The De Soles took the letter as verification of the painting’s authenticity, while Freedman’s lawyer made the point that the letter said “viewed” rather than “authenticated.” The jury might think that Freedman’s lawyer is splitting hairs if it regards the letter as implying that none of the art experts who viewed the painting had doubts about its origin.

The De Soles allege that Freedman and the Knoedler gallery knew the painting was forged, or deliberately disregarded evidence that the painting was not authentic. According to the De Soles, Freedman should have realized the Rothko was a forgery when she was able to purchase an $8.3 million painting from Rosales for $950,000.

Freedman argues that she purchased art from Rosales for her own collection, including a $280,000 Pollock, without realizing that she was buying forgeries. The De Soles’ lawyer contends that Freedman purchased the forged works for herself as a promotional device and to bolster her credibility with customers.

The lawsuit will hinge on proof that Freedman knew, or at least suspected, that the Rothko was a fake. If she concealed such knowledge or suspicions from the De Soles, the jury would have a basis for concluding that she acted fraudulently.

Expert Testimony

Among the experts called in the first week of trial, Dana Cranmer, the former conservator for the Rothko Foundation, testified that he was unaware that Freedman used his name in the letter that was sent to the De Soles. He was uncertain whether he ever saw the painting that was sold to the De Soles, although he recalled looking at a Rothko in Freedman’s office for five or ten seconds. He testified that he did not authenticate it because “that’s not what conservators do.” His expertise is in preserving paintings rather than authenticating them.

Rothko’s son also testified that he did not know Freedman included his name in her letter. He denied that he has ever authenticated any of his father’s paintings. Another person named in the letter, Rothko expert David Anfam, said he had only seen transparencies of the painting, not the original. He also denied authenticating the painting. Anfam admitted, however, that he placed another Rothko forgery in an exhibition, believing it to be authentic.

Other experts who are likely to contribute important testimony during the course of the trial include art appraisers and forensic accountants. James Martin, a paint analysis expert who initially determined that the Rothko and other paintings that Rosales sold to Knoedler were fakes, is expected to explain how the forgeries could have been detected.

Freedman initially maintained that Martin’s scientific analysis was faulty but dropped that assertion after the forger was identified. Freedman now bases her defense on the claim that she relied on experts who authenticated the forged Rothko before she purchased it. The testimony of those experts will be central to her claim that she was duped.

Robert Wittman, founder of the FBI Art Crime Team before beginning a career in private art security, is also expected to testify as an expert on Freedman’s behalf. The extent to which he will be allowed to express opinions about the relative responsibilities of the De Soles and Freedman to research the painting’s origin remains a point of contention.

Shining a Light

Expert testimony serves to educate the jury, but broader audiences are often interested in what experts have to say. According to artnet News, the “parade of experts and insiders expected to take the stand in the coming weeks” will likely “shine a light into the often murky and secretive practices surrounding high-stakes art sales.”

In addition to opening a window to the art world, the trial may answer questions about the ability of art experts to authenticate paintings. If, as Freedman claims, experts told her that the Rothko was real, art buyers need to be concerned that customary art authentication procedures may be inadequate to protect their investments.

Expert Opinion Excluded from Evidence in Lipitor Case

A number of individuals have filed federal lawsuits alleging that their use of the cholesterol-lowering drug Lipitor caused them to develop Type 2 diabetes. The lawsuits have been consolidated in a federal district court in South Carolina.

When large numbers of cases are consolidated in one court under federal rules governing multidistrict litigation, a single case is chosen for trial. That case, known as the “bellwether,” is chosen because it is representative of the other cases awaiting trial. The outcome of the bellwether case may encourage settlement of the remaining cases. It also helps the other litigants assess the risks and costs of taking their cases to trial.

Products liability cases against drug manufacturers necessarily hinge on expert testimony. The judge presiding in the multidistrict Lipitor litigation recently concluded that one of the expert witnesses designated by the plaintiffs in the bellwether case would not be allowed to testify that Lipitor causes Type 2 diabetes.

The Hempstead Case

Juanita Hempstead’s case was chosen as the bellwether. Hempstead was given a prescription for Lipitor in March 1998. She started taking it in June 1999 but did not take it consistently until July 2000. Her lipid levels (including her level of total cholesterol) were higher than normal before she began regular use of Lipitor. Her blood glucose level was normal when it was tested in 1999.

In 2002, Hempstead’s lipid levels were normal. Her glucose level, however, was abnormal. It was in a range that is classified as pre-diabetic. In 2003, Hempstead stopped taking Lipitor for three weeks because she was experiencing abdominal pain. At the end of the three weeks, her lipid and glucose levels were higher than they were in 2002. She resumed use of Lipitor and, three months later, her lipid levels returned to normal.

In February 2004, Hempstead was hospitalized for colitis. Her glucose reading at that time was in the diabetic range. Three months later, her glucose level was substantially higher and she was diagnosed with new-onset diabetes. Hempstead’s weight apparently increased steadily between 1998 and 2004.

Causation

Hempstead was required to prove both general and specific causation. To prove general causation, she needed evidence to establish that Lipitor is capable of causing diabetes. To prove specific causation, she needed evidence that Lipitor actually caused her diabetes.

The district court took note of cases that require no proof of specific causation if studies of general causation establish that taking a drug at least doubles the risk of sustaining the injury for which the plaintiff is suing. Those cases hold that if most people who take a drug experience the harm that the plaintiff experienced, no additional proof of causation is necessary, at least if the plaintiff’s characteristics and use of the drug were similar to those of the subjects who participated in the study that established the risk.

Studies cited by Hempstead’s experts established that taking Lipitor increases the risk of developing diabetes by a factor of 1.6. Since that is less than a doubling of risk, Hempstead was required to prove that Lipitor actually caused her diabetes. She relied on Dr. Elizabeth Murphy to prove specific causation.

Daubert Analysis

The court based its decision on Rule 702 of the Federal Rules of Evidence, as interpreted by the Daubert decision. That rule requires the trial judge to assure that an expert’s testimony will be both relevant and reliable. The reliability of scientific opinions is measured by whether the expert reasonably applied reliable principles and methods to sufficient facts or data.

The court noted that in its role as gatekeeper, it must not substitute its own view of expert opinions for the view that a jury could reasonably take. At the same time, the court has an obligation to protect the integrity of the jury’s decision by assuring that expert evidence, which has the potential “to be both powerful and quite misleading,” is based on a reliable methodology.

Dr. Murphy is a Professor of Clinical Medicine and the Chief of the Division of Endocrinology at San Francisco General Hospital. She has an M.D. from Harvard and a Ph.D. in biochemistry from Oxford. Her credentials to testify as an expert were clear, so the question was whether her opinion that Hempstead’s diabetes was caused by Lipitor was rooted in a reliable methodology.

The court characterized Dr. Murphy’s opinion as being based on (1) the fact that Lipitor increases the risk of diabetes (general causation) and (2) the fact Hempstead developed diabetes after taking Lipitor. Dr. Murphy’s deposition testimony disclosed no fact other than the temporal relationship between using Lipitor and the onset of diabetes that supported her opinion of a causal relationship between the two.

The court faulted Dr. Murphy for failing to rule out other risk factors that might have caused the onset of Hempstead’s diabetes, including her weight gain and a corresponding increase in her body mass index (BMI). Hempstead’s family history, age, and struggle with hypertension were also factors that could have caused her diabetes. The court concluded that Dr. Murphy’s opinion was unreliable because she did not determine whether Hempstead would have developed diabetes without taking Lipitor and did not compare the magnitude of the risk of diabetes onset associated with taking Lipitor to the magnitude of the risk that existed if Hempstead had not taken Lipitor.

Court Excludes Expert Opinion

It may be that the public interest would best be served by holding drug companies accountable for increasing a patient’s risk of contracting a disease, even when it cannot be established that the patient fell within the significant percentage of drug recipients whose disease was caused by the drug rather than the percentage who would have contracted the disease anyway. That, however, is not the law that governed the District Court’s decision.

Because Dr. Murphy’s testimony did not move beyond general causation to establish a specific link between Hempstead’s use of Lipitor and her development of diabetes, the district court barred Dr. Murphy’s testimony on the ground that her opinion about specific causation had no scientific basis. Whether Hempstead’s case will be able to move forward, and how the ruling will affect other Lipitor cases, are issues that will likely be decided in the coming weeks.

False Confession Expert Testifies in New Mexico Murder Trial

A false confession expert witness has testified in the trial of a New Mexico man who stands accused of murdering his girlfriend in 2013. The testimony represents the growing relationship between American courts and psychology experts used to explain human behavior during criminal trials, suggesting the once substantial gap between the two fields is shrinking with advances in behavioral science research.

Confession Expert Testifies in Murder Trial

New Mexico resident Cody Soto has been accused of murdering his 29-year-old ex-girlfriend Brandy Robinson in 2013 by stabbing her multiple times. The first-degree murder charge against Soto has been aided largely by a confession he provided to detectives during the criminal investigation following Brandy’s death, and prosecutors rested their case against the man earlier this week. Defense attorneys representing Soto have maintained the Not Guilty plea entered by their client, and attempted to downplay the weight of his confession by calling a psychology professor as an interrogation expert witness who will tell jurors why and how false confessions happen during police investigations.

Dr. Deborah Davis, a psychology professor at the University of Nevada in Reno who has become a confession and interrogation expert, took the stand as an expert witness for the defense in order to explain to jurors what circumstances create a false confession. According to Dr. Davis a suspect may be pushed towards a false confession when they are overwhelmed by an interrogation and “will do anything to get out of there,” or they believe they are going to lose at trial anyway and a confession is their best chance at a favorable legal outcome. In either case the suspect is distraught, confused, unsure of the legal system, and pressured to engaging in behavior that most jurors believe is impossible: confess to a crime he or she did not commit.

Dr. Davis pointed out to jurors that the Innocence Project, which is an organization committed to exonerating wrongfully convicted suspects by presenting DNA evidence, has calculated that one out of every four wrongfully convicted defendants has falsely confessed to a crime – many of them to serious crimes such as murder or rape.

Confession Expert Explains Police Interrogation Tactics

Police tactics are central to eliciting confessions, and Dr. Davis spent a significant portion of her testimony explaining to jurors how the popular Reid Technique used by most law enforcement detectives can result in a false confession. When instituting the Reid Technique, police officers are trained to demonstrate unwavering confidence that they know the defendant is guilty and that they have enough other evidence for prosecutors to earn a conviction in court. Detectives are allowed to mislead suspects about the strength of their other evidence, and frequently do so.

Dr. Davis when on to explain that detectives use confinement and isolation during interrogations to break down suspects, and will also frequently try to identify with them and express understanding about why the suspect committed the crime by downplaying the seriousness of their actions. The goal of the Reid Technique is to gradually elicit small admissions before earning a full-blown confession over the course of time and constant pressure. Dr. Davis pointed out that the Reid Technique is a highly effective tool, so much so that it can result in false confessions – particularly when defendants are mentally ill or intellectually deficient.

Dr. Davis concluded her testimony by identifying circumstances which can result in a false confession such as a longer-than-usual interrogation, a tired or hungry suspect, and the general discomfort of the session. Dr. Davis was not permitted to talk about Soto’s interrogation specifically, but jurors watched the confession video and attorneys for the defense will likely point out false confession indicators during closing arguments.

False Confession Expert a Sign of Behavioral Science and Law

The use of false confession expert witnesses like Dr. Davis is a growing practice in the American legal system, but is not without controversy. Attorneys and judges have voiced concerns over trials becoming “battles of experts” who can either confuse a jury with highly technical or scientific testimony, or improperly influence jurors by telling them how they should interpret the facts of a particular case. The case of false confession expert witnesses further muddies the intersection of law and psychology because no one really knows how frequent or problematic false confessions are. Even though 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of wrongfully convicted offenders who are later exonerated by DNA evidence falsely confessed to committing a crime, it is probably unreasonable to assume the percentage of confessions which are false is that high.

Despite the concerns over increased use of experts and uncertainty about the need for psychology expert witnesses, cases which feature experts like Dr. Davis are becoming more frequent. As behavioral science slowly integrates its research and findings into American jurisprudence, jurors are more frequently exposed to psychology expert witnesses who testify about human judgment and decision-making in order to assist the men and women of the jury appropriately weigh and analyze the facts presented during trial.

Conviction Reversed Because Defense Expert Not Allowed to Testify

In a decision released on January 20, 2016, the Arizona Supreme Court decided that a trial judge erred by refusing to allow a criminal defendant to call an expert in experimental design as a defense witness in a murder trial. That ruling allowed the testimony of the state’s firearms expert to go unchallenged.

The Evidence Against Romero

A man in Tucson died from two gunshot wounds in 2000. There were no witnesses to the shooting. Witnesses did see men leaving the scene in a pickup truck after hearing gunshots, but they could not agree upon the number of men or the make of the truck. Spent .40-caliber shell casings were found at the scene.

A month later, the police stopped Joseph Javier Romero for reasons that were unrelated to the shooting. They found a .40-caliber magazine in his possession. They also discovered a .40-caliber Glock handgun with a missing magazine along the route that Romero had traveled. The police drew the inference that Romero had jettisoned the gun, although they did not see that happen.

Seven years later, a cold case unit inspected a cellphone that was found next to the victim’s body. The phone’s owner told the police that “Joe,” his drug dealer, had borrowed his pickup truck in 2000. A firearms examiner conducted a ballistics test and concluded that the shells found at the scene had been fired from the Glock that the police associated with Romero. Romero was charged with first degree murder. A hung jury resulted in a second trial.

Rulings on Expert Testimony

Before Romero’s second trial started, the defense moved to exclude the testimony of the State’s firearms expert. The State, in turn, moved to exclude the testimony of Romero’s expert. The motions were based on Arizona’s version of the Daubert rule, which requires expert testimony to be based on a reliable methodology.

The trial court reviewed the proposed testimony of both experts. Romero’s expert did not address whether the State’s expert correctly analyzed the markings on the shell casings. Rather, he testified that no analysis of such markings is capable of yielding a reliable result, given the limitations of the experimental methods used by firearms examiners.

The trial court determined that the State’s expert based his conclusion on a reliable methodology and therefore permitted the expert to testify. The court excluded the testimony of the defense expert after concluding that the expert was not qualified to testify as a firearms expert and that submitting his testimony to the jury would invite the jury to second-guess the judge’s pretrial finding that the methodology used by the State’s expert was reliable.

Romero’s Retrial and Appeal

During Romero’s second trial, the State’s expert testified that the marks made on casings found at the scene of the shooting “matched very well” marks made by the gun that the police associated with Romero. The jury acquitted Romero of first degree murder but convicted him of second degree murder.

On appeal, Romero argued that his right to present a defense was violated by the judge’s exclusion of his expert’s testimony. The Arizona Supreme Court agreed.

The trial court and a lower appellate court decided that the defense expert was not qualified to testify, despite his review of applicable scientific literature, because he had never testified as a firearms expert before, had never conducted his own research on firearms identification, and had never tried to identify firearms based on the toolmarks found on expended shells. The state supreme court rejected that argument, noting that the witness’ expertise was not in firearms identification but in experimental design.

The court noted that the defense was not required to offer testimony from the same kind of expert that the state used. Rather, it was entitled to offer expert evidence that would help the jury decide the case. The defense expert would have helped the jury understand that the scientific methodology used by firearms experts differs in significant ways from methodologies that are routinely adopted by other scientists. Unlike other scientists, firearms experts do not follow standardized protocols that permit independent verification by other examiners. In addition, firearms identification relies on subjective assessments rather than an objective assessment based on a comparison of test subjects to control subjects.

The defense expert would have testified that the methodology used by firearms experts falls short of the scientific standards for experimental design, and that those flawed design standards undercut the reliability of the results the experts reach. That testimony would have helped the jury evaluate the evidence offered by the State’s firearms expert. The testimony was therefore admissible under Daubert’s “helpfulness” standard.

The defense expert had a Ph.D. in experimental psychology from Stanford and taught experimental design at Yale and other universities. He makes a profession of analyzing scientific methods. His careful study of the experimental methods used by firearms experts qualified him to render expert opinions about the validity of those methods.

Since the expert was qualified to give opinions that would have assisted the jury in evaluating the state’s evidence, the supreme court concluded that he should have been allowed to testify. The trial judge misunderstood his role when he ruled that the defense expert should not be allowed to undermine his determination that the State’s expert’s methodology was reliable. The judge’s assessment permits the jury to hear an expert’s testimony, but it does not require the jury to believe the expert. Evaluating expert testimony, once it has been admitted into evidence, is the function of the jury, not the judge.

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