Category Archives: In the News

Articles about legal issues currently in the news.

California Suspect in Deputy Shooting Declared Competent to Stand Trial after Expert Testimony

Mental competency expert witnesses assisting prosecutors in California have convinced a judge that a defendant accused of murdering two Sacramento sheriff deputies is legally competent to stand trial. After a series of hearings last fall which featured disputes among expert witnesses who argued over mental competency, the long awaited murder trial of two law enforcement officers will proceed later this year.

Sacramento Man Accused of Murdering Sheriff Deputies

Luis Bracamontes stands trial for the murder of Sacramento-area sheriff deputies Danny Oliver and Michael David Davis, Jr. during a criminal rampage in October, 2014. Deputies Oliver and Davis, Jr. were murdered after responding to a call about a suspicious vehicle which turned into a deadly shootout with a male and female suspect who used an AR-15-type assault rifle to kill the two law enforcement officers and injure another deputy and a civilian before being arrested. After the incident, police identified Luis Bracamontes, a man who had twice been deported to Mexico, as the shooter and filed murder charges against him.

Before Bracamontes could face trial for murder, his attorneys demanded a competency review to determine if the defendant was legally competent to understand the charges against him and participate in his defense. Questions about Bracamontes’s mental competency intensified during a hearing in February of 2015 when he blurted out, “I did kill those cops. You can execute me whenever you’re ready” without being prompted.

Competency Hearing for Man Accused of Murdering Sacramento Sheriff Deputies

Throughout November and December of last year, Luis Bracamontes faced a mental competency hearing featuring mental health experts who debated the defendant’s mental state in front County Superior Court Judge Steve White. Attorneys for Bracamontes called psychiatry expert witnesses to inform the court that the defendant did not properly understand the nature of the consequences of his actions. Psychiatry expert witnesses who interviewed the defendant while in jail argued he did not fit the legal definition of mental competency because Bracamontes believed he was close to God that he will be saved from death because lethal injection drugs will transform into vitamins instead of killing him.

Prosecutors countered with expert witnesses who acknowledged the defendant suffered from a mental illness, but argued he understood what is going on and can participate in his own defense. The legal standard for mental competency does not depend strictly on whether or not a defendant is mentally ill, but instead focuses on if a person accused of a crime can comprehend the criminal justice process and the consequences that a conviction brings. If a defendant has a diagnosed mental illness but can still follow the legal process and understand the charges against him then a judge can determine that the mental disorder does not preclude prosecution.

In the case of Luis Bracamontes, expert witnesses for the prosecution explained to the court that the defendant’s mental illness was not so severe as to inhibit his understanding of the murder trial proceedings, and argued he was competent to face the charges.

California Man Charged with Killing Sheriff Deputies Declared Competent to Stand Trial

After hearing the expert witness testimony about Luis Bracamontes, Judge White determined the defendant was mentally competent to face murder charges for the 2014 slaying of two sheriff deputies. Although experts for the defense painted the picture of a man who embraced execution because he felt close to God, the prosecution expert witnesses – who focused on the legal standard of mental competency rather than a mental illness diagnosis – ultimately convinced Judge White to proceed with the trial as planned. After the competency ruling, Bracamontes’s murder trial is scheduled to begin in March of this year, and the defendant faces the death penalty if convicted.

Missouri Debates Adoption of Daubert Standard

Missouri is the latest state to consider jumping on the Daubert bandwagon. The Daubert standard for the admissibility of expert opinion testimony requires judges to exclude opinions that are not based on reliable methodology. Proponents of the Daubert standard argue that it protects against jury verdicts based on “junk science.” The difficulty of deciding whether opinions are based on “junk science” is summed up in the title of a scholarly article that examines the issue: “Our Science is Sound Science and Their Science is Junk Science.”

The Daubert standard governs expert testimony in federal court. About 35 states have adopted some form of the Daubert standard, although (as ExpertPages recently reported) the Florida bar is asking its state supreme court to reject the Florida legislature’s adoption of Daubert. Most of the remaining states adhere to the Frye standard, which admits expert testimony if it is based on scientific methods or findings that have gained general acceptance within the relevant scientific community.

Missouri follows neither Daubert nor Frye. The Missouri test of admissibility, adopted by the state legislature in 1989, requires “the facts and data upon which the expert relies to be of a type reasonably relied upon by experts in the field” provided that the testimony is “otherwise reasonably reliable.”. As is true in federal court, the threshold question in Missouri is whether expert testimony would assist the jury in finding a fact or understanding the evidence.

Critics Attack Missouri Standard of Admissibility

Testifying in support of a bill that would adopt the Daubert standard of admissibility in Missouri, Brian Bunten, the general counsel for the Missouri Chamber of Commerce and Industry, told a legislative committee that “Missouri state judges have their hands tied by an outdated rule for admitting expert testimony—a rule that dates back to 1923 and has been abandoned by the vast majority of states in one form or another.” Bunten’s reference to the Frye standard was misguided, however, since the Missouri legislature rejected Frye when it adopted the current standard in 1989.

It is nevertheless accurate that the current Missouri standard is less restrictive than Daubert. Bunten testified that the U.S. Chamber of Commerce ranked Missouri’s judicial system 42nd out of 50 and said that “the American Tort Reform Association ranked Missouri’s judicial system the fourth worst judicial hellhole in the United States, explicitly citing the lack of Daubert standard in our courtrooms as the reason for the poor rating.”

“Judicial hellhole” is a buzzword that is typically used to describe states in which consumers and injury victims have a better-than-average chance of winning compensation from juries. Notably, the Chamber of Commerce and the American Tort Reform Association both represent the business community, which has an interest in shielding businesses from jury verdicts. Advocates for injury victims and consumers are likely to prefer Missouri’s current standard.

Does the Standard Matter?

Since “junk science” is not generally accepted by any scientific community, expert opinions based on unreliable methodologies should be inadmissible under either Frye or Daubert. It is not clear that the standard adopted by a state actually has a real-world impact on trial outcomes. It is also unclear that judges, who typically lack a scientific background, are more capable than juries of evaluating the reliability of methodologies employed by forensic scientists and other experts.

A widely cited study by law professors Edward Cheng and Albert Yoon suggests that whether a state follows the Daubert or Frye standard makes little difference, at least in tort cases. If there was ever a serious problem of expert witnesses relying on “junk science,” as proponents of the Daubert standard claim, judicial awareness of that problem has increased, regardless of the standard the state applies. As judges have developed a stronger understanding of what makes an expert opinion reliable, they have become less inclined to allow juries to consider unreliable opinions.

In addition, the fact that jurors are allowed to consider an expert opinion does not mean that jurors will accept it. The fear that juries are swayed by junk science finds little support in empirical studies. Juries are usually capable of distinguishing treasure from junk.

In some instances, the Daubert standard authorizes the admission of expert testimony that the Frye standard would disallow. Opinions that are derived from reliable methodology are admissible under Daubert even if they have not gained general acceptance in the scientific community. To the extent that Daubert liberalizes the admissibility of expert opinions, it may not be the shield that some members of the business community believe it to be.

As Robert Underwood wrote, “nothing fosters belief like self interest.” That can be true of experts who tailor opinions to favor the party who pays for those opinions. It can also be true of lawyers who argue for standards of admissibility that they regard as improving their chances of winning cases. In the end, expert testimony plays a vital role in the justice system and will continue to do so regardless of the standards of admissibility that states choose to adopt.

Pennsylvania Law Allows Victim Psychology Expert Witnesses to Testify in Child Abuse Trials

A November court case in Pennsylvania has affirmed and set into effect a 2012 state law which will allow testimony from psychology expert witnesses who are able to explain why child victims of sexual assault delay reporting alleged crimes for months or even years after incident. The law, which is a direct response to the Jerry Sandusky abuse case, will give jurors the opportunity to hear experts explain delays which are often key points of emphasis for defense attorneys in child abuse criminal cases.

Pennsylvania Law allows Child Psychology Experts to Testify

In the wake of the high profile child sexual assault trial of former Penn State University assistant football coach Jerry Sandusky – during which multiple expert witnesses about child sex abuse were denied the opportunity to testify during the prosecution – Pennsylvania legislators drafted and passed a law which specifically permitted experts in child sexual violence to testify during criminal trial. The law was designed to educate jurors about victim psychology which may explain delays in crime reporting or inconsistent testimony that laypeople on a jury would be unlikely to understand. Child psychology expert witnesses would not be allowed to tell jurors that victim behavior suggests guilt or innocence, but would serve to context in which to interpret the facts presented at trial.

Efforts to pass the law have been stymied by both the Pennsylvania legislature and the state court system which specifically rejected similar efforts to use psychology expert witnesses to explain victim behavior during previous trials. With a handful of charges against Sandusky unable to proceed due to questions about victim credibility giving the law’s supporters a publically sympathetic argument the bill finally garnered enough support in 2012 to become law. In 2014 the law was subject to a legal challenge by defense attorneys who claimed the legislature did not have the authority to impose evidentiary rules on the court system, particularly ones which directly countered previous state court rulings.

Child Psychology Expert Law Survives Pennsylvania Legal Challenge

During the 2013 trial of Jose Luis Olivo, on trial for sexually assaulting a young girl starting when she was 4 and continuing until she was 7, the prosecution attempted to present testimony from an expert in child victim psychology. Defense attorneys for Olivo objected to the expert testimony arguing two points: first, the legislature did not have the constitutional authority to pass laws dictating rules of evidence, and second, prior Pennsylvania case law specifically precluded such a law by disallowing victim psychology expert testimony. The trial court agreed with defense attorneys and disallowed the proposed expert witness testimony despite the new state law allowing it, setting up a series of appeals which eventually brought the case before the Pennsylvania Supreme Court.

In November of last year, Pennsylvania’s highest court released an opinion which first validated the legislature’s authority to pass laws establishing judicial rules of evidence and second considered recent advancements in social science to conclude that the specific type of expert testimony proposed by the new law was admissible during trial providing the experts do not speak about the particulars of the case facts. The majority opinion pointed out many evidentiary rules which have origins in statutory authority, suggesting that Pennsylvania lawmakers have demonstrated authority to impose evidentiary rules on the judiciary. Further, the majority found prior case law which excluded psychology was distinguishable because it featured a different type of evidence and was analyzed with a different understanding of the nature and benefit of victim psychology expert testimony.

Pennsylvania Supreme Court Dissent Highlights Opposition to Psychology Expert Witnesses

A lone dissenting judge to the majority opinion argued Pennsylvania should continue to prevent victim psychology experts from testifying in child sexual abuse cases. Citing fears that such testimony would turn trials in a battle of experts which would either serve to confuse jurors or alter the presumption of innocence and burden of proof by telling jurors how they should interpret facts, the dissenting opinion argued that jurors should be presented will all available evidence and decide witness or victim credibility.

While the dissent’s concerns are shared by many in the judiciary who have resisted expansion of behavioral science and psychology expert testimony, mounting evidence from psychological research which suggests juries are largely unable to make sophisticated assessments about behavior has begun to influence a slow shift towards permitting behavioral science testimony during criminal trials. With the new law in Pennsylvania affirmed, prosecutors will start presenting victim psychology expert testimony during trial.

Expert Witness Featured in Movie Concussion

The movie Concussion opened on Christmas Day. Concussion tells the story of Dr. Bennett Omalu’s impact on professional football. Dr. Omalu (played in the movie by Will Smith) is a forensic pathologist who is credited with discovering chronic traumatic encephalopathy (CTE), a degenerative brain disease that afflicts people who have experienced multiple concussions and other forms of repeated brain trauma. Known colloquially as “gridiron dementia,” CTE causes memory loss, aggression, depression, and other personality changes. It may also lead to premature death.

Notably, one of the movie’s first scenes depicts Dr. Omalu testifying as an expert witness in a murder trial. Board certified in neuropathology and forensic pathology, Dr. Omalu has testified in hundreds of civil and criminal cases since 2009. Much of that testimony has resulted from Dr. Omalu’s position as the Chief Medical Examiner of San Joaquin County, California.

Concussion spotlights Dr. Omalu’s successful quest to force the NFL to take concussions seriously. Due in part to his pioneering work, other expert witnesses are playing vital roles in civil cases that involve brain injuries caused by repetitive concussions.

CTE Lawsuits

Concussions occur in a variety of contexts, including falls and car accidents. The plaintiffs in all of those cases may require a neurologist or other medical expert to prove the extent of the injury.

Multiple concussions in sporting events, however, are the only known cause of CTE. In addition to football, athletes who participate in boxing, wrestling, and hockey are at risk of developing CTE. Soccer, a game played without protective headgear, is not a contact sport, but collisions frequently lead to concussions.

Experts are playing a critical role in developing the link between sports and CTE. In addition to conducting research, experts have testified or assisted in court cases that have revolutionized injury management in athletic competitions.

Five thousand former NFL players joined a lawsuit accusing the league of hiding the risks of concussion from them. A federal judge approved a settlement of that lawsuit that authorizes multimillion dollar payments to former players who are suffering from severe neurological disorders, including CTE. The total outlay by the NFL may exceed one billion dollars. The settlement will not become final, however, until appeals are resolved.

The lawsuit motivated the NFL to implement new safety measures to protect players from CTE. Starting with the 2013-14 season, the NFL agreed to have an independent neurologist on the sidelines of every game to evaluate players who may have suffered a concussion.

The family of hockey player Steve Matador recently sued the NHL on similar grounds. Matador, a former defenseman for the Chicago Blackhawks, died at the age of 35. An autopsy revealed that he suffered from an extensive case of CTE. His family alleges that “the league did not do enough to warn them of the long-term effects of repeated blows to the head or protect them from the hits.”

Matador’s lawsuit is only the latest to accuse the NHL of concealing the risk of concussions from players. A potential class action involving 60 former NHL players is pending. Depositions of expert witnesses in that case are expected to begin soon.

Expert testimony will likely be the key to Matador’s lawsuit and to the class action. The NHL’s commissioner maintains that “from a medical and science standpoint, there is no evidence yet” that playing in the NHL leads to CTE. While neurosurgeon and CTE researcher Julian Bailes agrees that much about CTE remains to be discovered, he points out that the “only known risk factor for CTE is having had multiple concussions and cranial impacts in contact sports.”

Student Athletes

While concussions sustained by professional athletes have fueled research by experts like Dr. Omalu, student athletes who have sustained repeated concussions have also been found to suffer from CTE. A recent study suggests that CTE may afflict a significant percentage of amateur athletes who play contact sports.

Medical and statistical experts who assisted in crafting the settlement of a class action concussion lawsuit against the NCAA concluded that college athletes who play contact sports have about the same risk level as NFL players to have symptoms related to CTE. The settlement includes $70 million for medical monitoring while permitting injured athletes to bring individual claims for compensation for concussion-related injuries.

Lawsuits by students often focus on coaches and training staff who clear a player to return to the field after violent contact without adequately screening the player to determine whether a concussion occurred. Players who sustain a second concussion after returning to play are at substantially greater risk of developing permanent brain damage.

Lawsuits have also claimed that schools fail to provide needed treatment that would prevent brain injuries. A school district in Iowa paid a million-dollar settlement to a permanently disabled football player whose complained of headaches to a school nurse after being tackled. The student continued to practice and play despite his complaints. He eventually fell into a coma.

In all of these lawsuits, expert witnesses play a vital role. In addition to providing testimony about the likely cause of an athlete’s brain injury, experts testify about the adequacy of a school’s protocol for evaluating athletes and returning them to play after they may have experienced a concussion. The failure to develop or to follow protocols is often the kind of negligence that leads to concussion-related lawsuits against educational institutions.

Florida Attorneys Resist Change in Expert Witness Admissibility Rules

Attorneys in Florida recently submitted a recommendation to the state Supreme Court requesting the judiciary refuse a legislative directive to increase scrutiny on expert witnesses. The recommendation and accompanying report submitted by the Florida Bar association highlights an ongoing debate about the proper standard for evaluating and admitting expert testimony in court.

Florida’s Expert Testimony Standard

In 2013 the Florida legislature passed a law which required the Florida judiciary to adopt the same legal standard for admitting expert testimony as the federal court system uses. The standard, known as the Daubert test, requires judges to conduct a thorough evaluation of proposed expert witness testimony across three parts: whether the expert’s work is based on sufficient facts or data, is the product of reliable principles and methods, and has applied the principles and methods reliably to the facts of the case. Under the Daubert standard courts are required to assess an expert’s qualifications, the work a proposed witness did to prepare testimony, and the standards used by specialists in the expert’s field of study.

Florida legislators responded to assertive lobbying efforts led by business groups and medical organizations by adopting the Daubert standard for expert testimony in state courts, setting off a debate between the law’s proponents and plaintiff attorneys of the Florida Bar Association. According to arguments from plaintiff attorneys, a more restrictive approach to admitting expert witness testimony only benefits large businesses or deep-pocketed defendants who use the standard as a way to stymie legitimate lawsuits.

Florida Attorneys Resists New Expert Witness Standard

Members of the Florida Bar Association have resisted change to the Daubert standard since the state legislature adopted the new test in 2013 by arguing it prevents low-income citizens from being able to pursue legitimate legal claims. Attorneys caution the Daubert standard enables wealthy defendants use procedural rules on expert admissibility to delay and make expensive lawsuits to the point where plaintiffs may be discouraged to continue. Opponents to the Daubert test argue wealthy defendants can rely on a select few experts who routinely testify on the same issue across several lawsuits while plaintiffs without the same resources would be unable to find or afford experts the courts would admit.

The Daubert standard reduces the number of available experts by imposing more rigorous standards of admissibility, and with a smaller pool of experts to choose from it becomes difficult for every lawsuit to have a qualifying expert to offer support. Attorneys who oppose the Daubert standard argue Florida should retain its old test for expert witness admissibility known as the Frey test. The Frye test offers a much simpler requirement to determine expert qualifications: whether the proposed expert testimony is based on techniques and theories which are generally accepted as reliable in the relevant scientific community. Unlike the Daubert standard which requires judges to evaluate expert testimony, the Frye test simply asks judges to ascertain whether the scientific community has conducted an evaluation.

Proponents of the Daubert standard argue the Frye test too frequently allow “junk science” to be used in court by experts who can find any scientific publication to submit their work, and maintain that using a more rigorous standard for expert analysis preserves the integrity of the legal system and prevents frivolous lawsuits.

Florida Bar Association Asks State Supreme Court to Reject Daubert Standard

After several months of debate over the Daubert and Frye standards, the Florida Bar’s Board of Governors voted 33 – 9 to formally recommend the state Supreme Court not adopt the Daubert standard in direct opposition of the legislative directive. Despite the Daubert’s use in the federal court system, and most states, Florida attorneys expressed a desire to maintain the less restrictive Frye standard of expert witness evaluation. The state Supreme Court has the authority under Florida’s constitution to adopt rules for the judiciary, and, as such, as the ultimate say in whether or not the Daubert standard is used.

With the petition recently submitted to Florida’s Supreme Court there is unlikely to be any action on the issue for several months, but Florida’s internal debate on the appropriate legal standard for admissibility of expert witnesses provides an interesting challenge to a long-accepted method for assessing expert reliability.

Dueling Experts Contribute to Mistrial in Case Against Baltimore Officer who Arrested Freddie Gray

A Baltimore area judge has declared a mistrial against the first police officer to face prosecution for the death of Freddie Gray after jurors could not reach a verdict after more than 16 hours of deliberations. While many factors can contribute to juror deadlock, the emotionally charged case featured several conflicting expert witness statements, none of which was convincing enough to sway the entire jury towards conviction.

First Officer Trial in Freddie Gray Case Ends with Mistrial

Baltimore police officer William G. Porter was the first of six officers charged with the death of Freddie Gray, a suspect who died in police custody in April of this year. Freddie Gray, who suffered a fatal neck injury while shackled in a Baltimore PD van, earned the national spotlight when protests over his death turned to riots by angry citizens of predominantly black Baltimore neighborhoods who expressed frustration about law enforcement brutality against African American citizens. Porter, who is also black, denied racially motivated treatment of Gray and maintained that he and his fellow officers were unaware of the seriousness of the 25-year-old injuries at the time of his death.

During the trial, prosecutors called medical expert witnesses in an effort to convince jurors that Officer Porter – along with his colleagues – acted inappropriately by failing to properly secure Gray in the back of the police van, and, more importantly, failing to call for medical help when the victim’s injuries became apparent. Attorneys for William Porter called counter-experts in police training and medical fields to dispute the prosecution’s position and argue the defendant was not responsible for the tragic accident which took Gray’s life.

Prosecution in Freddie Gray Case Calls Expert Witnesses

During the prosecution’s case against Baltimore officer William Porter attorneys for the state argued the six police officials had an opportunity to prevent Freddie Gray’s death by taking better precautions and by responding to Gray’s injuries in a timely manner, but failed on both accounts. Neither side contests the fact that the van Gray was placed in upon his arrest made a total of 6 stops before officers requested medical attention Gray’s injuries, but what is contested is where along those 6 stops the victim suffered the fatal injury. Prosecutors argue Gray suffered the injury early in the trip – sometime after the second stop – which would give police officers ample time to respond to his injuries.

To support their case prosecutors called Dr. Carol Allan, the medical examiner who performed Gray’s autopsy, as a forensic expert witness. Dr. Allan told jurors that her expert analysis of the case concluded Gray was injured sometime between the 2^nd and the 4^th stop of the van, and believes that the police acted with criminal negligence by failing to recognize the severity of the situation after the 4^th stop. According to Dr. Allan had Gray received prompt medical attention after the 4^th stop then he may not have died in the police van, suggesting Porter and his fellow officers failed in their opportunity to request timely medical attention.

Dr. Allan’s testimony was buttressed by Illinois neurosurgeon and medical expert witness Dr. Morris Marc Soriano who told the court that immediate medical attention could have saved Freddie Gray’s life. A final medical expert for prosecutors was paramedic Angelique Herbert who responded to the scene after Porter and his fellow officers finally called for medical attention. According to Herbert, by the time she arrived at the scene Freddie Gray was already beyond saving. Defense attorneys responded to the testimony by prosecution experts with police tactic and forensic expert witnesses who told the court there was nothing Officer Porter could have, or should have, done differently during Gray’s arrest and detention.

Defense Attorneys in Freddie Gray Officer Trial Use Expert Testimony

Early in the defense’s case, attorneys for William Porter called Timothy Longo, a police chief in Charlottesville, Virginia with more than 35-years of experience as an officer, as a police tactics expert witness. According to Longo, Officer Porter exercised reasonable discretion and good judgment considering the circumstances by detaining a resistant suspect and by informing the van’s driver of the need for medical attention at an appropriate time. Longo addressed allegations that Porter should have buckled Gray in by saying the arresting officers are required to use circumstance and discretion when faced with orders issued by Baltimore PD requiring detainees be buckled because those rules “don’t create a higher standard in criminal or civil proceedings. They’re clearly administrative in purpose.”

Longo also told jurors that Officer Porter could have gotten on the radio sooner to request medical attention, but ultimately was acting under the authority of his fellow officer Caesar Goodson who was driving the van and in charge of the operation. Defense attorneys also called neurosurgeon Dr. Matthew Ammerman as a medical expert witness to tell jurors there is nothing Porter could have done had he called for medical attention right away. According to Dr. Ammerman’s forensic testimony, Gray’s neck injury was catastrophic and immediately paralyzed his ability to breathe, speak, and move. Dr. Ammerman said this injury must have occurred after the fourth stop because Gray could still communicate at that time.

Jurors were unable to reach a verdict against Officer Porter after more than 16 hours of deliberations. The State has an opportunity to retry the officer, but has not announced a decision at this time. All of the other officers, including Caesar Goodson, will face criminal prosecution in the near future for their role.

Tom Brady Relies on Experts to Challenge “Deflategate” Suspension

Experts are weighing in on “Deflategate,” the name the media have bestowed upon the allegedly conspiratorial events that resulted in Tom Brady’s four game suspension from the NFL. The initial investigation of underinflated footballs relied heavily on expert opinions. Brady also relied on an expert when he appealed his suspension to NFL Commissioner Roger Goodell.

A federal court lifted the suspension for reasons that were largely unrelated to the expert testimony. That ruling is now on appeal.

Deflategate Investigation

The New England Patriots battled against the Indianapolis Colts for the right to advance to the 2015 Superbowl. According to an investigative report “concerning footballs used during the AFC championship game,” the Colts questioned the inflation levels of the footballs the Patriots were using during the first half of the game. An NFL rule requires footballs to be inflated to a pressure within the range of 12.5 to 13.5 psi during league games.

At halftime, the officiating crew tested the balls that had been used by both the Patriots and the Colts. The officials found that all of the Patriots’ footballs were underinflated. The footballs supplied by the Colts were within the accepted range, at least according to one of the two pressure gauges that were used to test them.

The report concluded that a locker room attendant and an assistant equipment manager employed by the Patriots participated in a scheme to deliberately circumvent the NFL rules by releasing air from the footballs after they were examined by the officiating crew. The report also concluded that Brady was “generally aware” of their inappropriate activities.

Experts Analyze Football Inflation

The investigative report relied in part upon the input of experts, including Dr. Daniel Marlowe, a professor of physics at Princeton, who coordinated testing and analysis provided by an engineering firm. The experts determined that a reduction of air pressure in a football between the start of the game and halftime is a natural result of footballs moving from warm locker rooms to chilly playing fields. The experts nevertheless determined that the drop in air pressure within the Patriots’ footballs was greater than the laws of physics could explain without the intervention of someone releasing air from the balls. The experts also concluded that a deliberate release of air was the only credible explanation for the greater reduction of air pressure in the footballs used by the Patriots than those used by the Colts.

The experts examined and ruled out a number of alternative explanations for the pressure drop, including natural leakage, the repeated insertion of inflation needles, defects in the gauges the officials used to measure pressure, the relative humidity in the rooms where the balls were stored, and rough handling of footballs during the game. In particular, the experts discounted the explanation offered by Patriots’ Coach Bill Belichick, who claimed during a press conference that the vigorous rubbing of footballs in preparation for the game accounted for their loss of pressure.

The investigation was based on interviews and a variety of evidence, including text messages between the locker room attendant and the assistant equipment manager discussing Brady’s displeasure with the degree to which footballs are inflated. The locker room manager called himself “the deflator” in one of the texts while other texts refer to an inflation needle that the assistant equipment manager said he would provide to the locker room manager. A video showing the locker room manager carrying a bag of footballs into a bathroom before he carried them onto the field was particularly decisive evidence. The expert evidence nevertheless contributed substantially to the investigative results by ruling out innocent explanations for the discovery that the footballs used by the Patriots were underinflated during the first half of the championship game.

Brady’s involvement was suggested by his gift to the locker room manager of an autographed jersey and two autographed footballs during the week before the championship game. The text messages also suggest that Brady knew of the plan to deflate the footballs. The suspicious timing of telephone calls between Brady and the assistant equipment manager immediately after concerns were raised about the football inflation level also contributed to the conclusion that Brady was at least generally aware of the plan to deflate the footballs. The report did not find sufficient evidence to accuse Brady of directly participating in the deflation conspiracy.

Expert Helps Brady’s Challenge

The NFL imposed a four game suspension on Brady. Brady appealed to NFL Commissioner Roger Goodell. At the appeal hearing, Brady testified that he knew nothing about a scheme to deflate footballs. He was unable to explain, however, what happened to the cellphone that he used on the day of the championship game. He said it was “missing” when the investigators asked to inspect text messages on that phone.

The player’s union, on Brady’s behalf, called Edward Snyder, a professor of economics and Dean of the Yale School of Management, as an expert witness. Snyder challenged the findings of Marlowe’s team. Snyder testified that Marlowe failed to factor timing into his analysis of the different pressure drops. The amount of time each ball spent in a warm locker room after being carried in from a cold field would affect the ball’s pressure. The Colts’ footballs were inspected after the Patriots’ footballs, and that reason alone would account for the Colts’ balls having higher pressure, but Snyder believed that Marlowe’s team did not account for the timing differences.

Two gauges were used to measure pressure at halftime and, since they consistently showed different results, Marlowe’s team applied an adjustment to account for the difference. Snyder faulted Marlowe’s team for failing to apply that same adjustment to the gauge used to measure ball pressure before the game started. Snyder concluded that had they done so, the pressure level in eight of the Patriots’ footballs would have been at an acceptable level.

Although Snyders’ interpretation of Marlowe’s test results was challenged on cross-examination, other experts have recently criticized the methodology used by Marlowe’s team. In the end, it is likely that Goodell placed more weight on text messages and video evidence than he placed on the scientific analysis. Goodell upheld the suspension.

Brady’s Court Case

Brady successfully challenged his suspension in federal district court. The court ruled that the NFL gave Brady no notice that “general awareness” of tampering with footballs or a failure to cooperate with the ensuing investigation would result in a suspension from play. The court also noted that the NFL violated Brady’s procedural rights by denying him access to evidence prior to his appeal hearing.

The NFL appealed and Brady’s case is now before a federal court of appeals. At this point, quarrels about expert opinions are less relevant than Brady’s contention that the NFL did not treat him fairly and that it failed to follow its own rules by imposing a four game suspension, rather than a fine, for his “general awareness” of football tampering.

Expert Witnesses Debate Lord of the Rings Character Gollum in Turkish Criminal Trial

The Washington Post reports on a trial for a doctor in Turkey which provides an interesting use of expert witnesses by asking five experts to discuss the nature of the character Gollum. The case arose when the defendant shared an internet meme comparing the Turkish president to the creature, potentially committing the crime of insulting the head of state.

Turkish Doctor Compares President to Gollum

Dr Bilgin Çiftçi of the Aegean province of Aydin in Turkey was arrested earlier this year for the crime of insulting a public official when he shared a meme on Facebook which compares Turkey’s president to the J.R.R. Tolkien created character Gollum. Gollum has been portrayed in Lord of the Rings and Hobbit movies as a computer-generated creature with wispy hair, sharp and rotting teeth, large ears, and a pale skinny body shape – an image very few associate with attractive or handsome. The creature’s mannerisms are barbaric, childlike, and uncivilized, Gollum has been widely considered by many to be an antagonist to the main characters of Tolkien’s story having pursued both Bilbo and Frodo Baggins as they held possession of the One Ring which he desired. Although Gollum had moments of character conflict which resulted in helpful behavior towards Frodo, many of his actions seem to be driven by a single-minded and evil plan to obtain the Ring for himself, often at the expense of the lives of those who were charged with destroying it.

Given the commonly held negative view of Gollum – particularly in terms of physical appearance and mannerisms – Turkish officials responded to the Facebook post by arresting Dr. Çiftçi and accusing him of insulting the president with a meme which showed three pictures of Turkish President Recep Tayyip Erdogan side by side with three pictures of Gollum and text pointing out the similarities. In response to the accusation, Çiftçi has argued comparing the Turkish president to the creature Gollum is not an insult because Gollum can be viewed as a good guy or even a hero by many fans of the Lord of the Rings series. To evaluate the quality of this defense the court will rely on testimony from five expert witnesses who will discuss the full implications of a comparison to Gollum.

Expert Witnesses Debate Gollum Comparison

According to Çiftçi he was not insulting President Erdogan when he compared him to Gollum because the character’s position as a villain is questionable. Çiftçi pointed out that Gollum was most commonly allied with the protagonists in the story as a guide, and even was the one who caused the ring’s destruction – even though he did so inadvertently by biting off Frodo’s finger before falling to his death in the fires of Mount Doom with the ring in hand. Çiftçi’s attorney asked for the chief judge presiding over the case to provide an analysis of Tolkien’s complex character, and the judge, who admitted he was not familiar with the Lord of the Rings lore, responded by calling for a panel of expert witnesses to evaluate Gollum’s nature.

The panel of experts who will evaluate what is being called “the pride of Gollum” will consist of two academics, two behavioral scientists, and one cinema production expert. These experts will review all writings and film adaptations associated with J.R.R. Tolkien’s Gollum character and issue an opinion to the Turkish court which will be used to determine whether or not Çiftçi’s Facebook post will be considered an insult punishable by jail time.

High Stakes in Gollum Expert Witness Analysis

Gollum’s character died in 1955’s Return of the King, and Tolkien followed in 1973, so the outcome of Turkey’s Gollum expert analysis will not matter to those whose character is under question. However, for Dr. Çiftçi the analysis will be critically important. If the Gollum expert witness panel determines the comparison was insulting the doctor faces up to two years in a Turkish prison. Although prosecution for comparing a president to a fictional character is a strange concept here in the US, the Erdogan administration has developed a notorious reputation for aggressively pursuing citizens who insult him with 105 indictments for the crime of insulting the head of state since August of 2014.

Commenting on use of expert witnesses outside of the American legal system is not common, but this case – while humorous to some respect – highlights the necessary variety of expert opinions in trials across the globe.

Technology Used by DNA Expert Witnesses Faces Scrutiny from Defense Attorneys

Law-enforcement and defense attorneys in Pennsylvania have engaged in a legal battle over technology used by DNA expert witnesses to narrow down suspects and identify criminal defendants. Use of a computer program which unravels DNA inter-mixed at crime scenes has been disputed by defense lawyers who do not have access to its programming source code.

DNA Experts in Pennsylvania use High Tech Program

Over the last few years technology has emerged which allows law-enforcement officials to parse through mixed DNA samples taken from crime scenes in order to positively identify a single suspect. TrueAllele, developed by the Pittsburgh-based company Cybergenetics, is able to infer a genetic profile from DNA and match it with large databases in order to provide police and prosecutors with positive matches. According to the TrueAllele website, the technology reduces the chances of misidentification, operates without bias against certain suspects, and meets all legal and scientific guidelines for reliability.

The software is billed as a DNA identification tool for use by police investigating sexual assault, homicide, property crimes, and mass disasters. In each case the TrueAllele software is able to single out “major and minor contributors” to the incident with the goal of assisting law-enforcement in identifying, arresting, and prosecuting parties responsible for criminal activity. TrueAllele has been widely used in at least six states across the country including New York and Pennsylvania, but recently defense attorneys have pushed back against the software because expert witnesses who use it are unable to provide details about how the program works.

TrueAllele DNA Identification Software Challenged by Defense Attorneys

Defense attorneys who have been involved in cases where TrueAllele was used to connect defendants to a crime argue that secrecy surrounding the software combined with its impact on jurors violates suspect’s constitutional right to be considered innocent until proven guilty. Citing a phenomenon known as the “CSI effect” concerned defense attorneys point out jurors not only expect scientific evidence, but place heavy reliance on it when making final verdict decisions. The impact of DNA expert witnesses using TrueAllele on trials is significant, and with the software’s creators refusing to provide defense attorneys with the source code some attorneys questioning the legitimacy of the program’s use in criminal cases.

According to TrueAllele creator Mark Perlin, the program’s source code is a protected trade secret, but defense attorneys should be satisfied with its validity because of the software’s repeated use in trials to both identify guilty subjects and exculpate innocent ones. Additionally TrueAllele has survived intense peer-review scrutiny by top DNA and computer program experts who attest to the software’s ability at accurately identifying DNA matches when crime scenes contain samples which make identifying one individual difficult.

Defense attorneys are not convinced, however, and argue the risk of miscodes or inaccuracies in TrueAllele’s source code can result in false convictions of innocent defendants. Without access to the underlying code in a program DNA expert witnesses are citing to positively make matches that jurors will heavily rely on in their verdict decision, defendants arguably are not given a fair opportunity to challenge the evidence presented against them.

DNA Expert Witness Software Faces Legal Challenge

Defense attorneys for a man accused of murder in Pennsylvania have challenged the admissibility of TrueAllele evidence presented by a DNA expert witness by arguing the validity and methodology of the measure cannot be verified without access to the underlying source code. Suspicion surrounding TrueAllele is driven by an announcement by the FBI in May that work done by forensic expert witnesses working for the agency on thousands of cases may be inaccurate due to faulty DNA identification software. With the integrity of thousands of convictions at risk due to errors in DNA matching, defense attorneys are understandably suspicious of a software program with source code they cannot independently verify.

Despite the arguments against the use of DNA experts using TrueAllele, the software has been accepted in a number of criminal trials as reliable and scientifically valid evidence for expert witnesses to use when explaining forensic analysis to jurors. TrueAllele has a short history, but its gaining acceptance indicates the software has been vetted more thoroughly than the programs which created errors for FBI expert witnesses. Whether or not defense attorneys gain access to the source code, the use of TrueAllele by DNA expert witnesses seems likely to expand as trials increasingly rely on forensic analysis for reliable evidence.

Facebook Killer Trial in Florida Features Expert Witness Testimony

The trial of the “Facebook killer” in Miami, Florida has turned to expert witnesses on both sides who will argue over questions about forensic evidence and the defendant’s mental state at the time of the crime. The case, which gained national attention due to a graphic Facebook image posted by the killer, will likely turn on the ability of attorneys on both sides to use expert testimony effectively during the trial.

Facebook Murder Trial Underway in Miami

In 2013 Derek Medina was arrested for fatally shooting his wife after he posted a graphic photo of her dead body on his Facebook webpage. Prosecutors allege Medina murdered 27-year-old Jennifer Alfonso by shooting her eight times during an argument between the couple before he uploaded the picture onto Facebook. According to witnesses who knew the couple, Medina and Alfonso had a contentious on-again-off-again relationship which featured a marriage, a divorce, and a re-marriage before the fatal argument took place two years ago.

Medina has not denied killing his wife, but responded to the allegations by claiming he acted in self-defense on the night of the murder. Attorneys for Medina told jurors during opening arguments Alfonso abused drugs, battered her husband, and engaged in Satan worship which caused the defendant to fear for his life. According to Medina, who was an undefeated 200-pound amateur boxer, his wife had been attacking him at the time of the shooting which caused him to react aggressively in fear for his life.

Both sides have submitted expert witness testimony to present during the course of Medina’s trial which will analyze forensic evidence at the crime scene and Medina’s state of mind in order to present jurors with a complete analysis of the facts surrounding Jennifer Alfonso’s death.

Forensic Expert Witnesses Take Stand in Facebook Killer Trial

After showing jurors graphic photos to introduce them to the scene inside the home Medina and Alfonso shared, prosecutors told jurors the victim never attacked the defendant and was not killed justifiably in self-defense. To bolster their argument, the prosecution called a crime scene investigator expert witness who was first to respond to the scene of the crime and gather evidence of the murder. The forensic expert told the court that evidence from the crime scene was consistent with the prosecution’s theory Jennifer Alfonso was attempting to cower away from Medina at the time she was killed and not attacking him as the defendant claimed.

To reinforce the argument, prosecutors called Miami-Dade Crime Scene Detective Anabella Pasqua as a crime scene expert witness. On the stand, Det. Pasqua told the court, “My conclusion was that the source of the bloodshed was stationary and the source of the bloodshed was also lower than the area where the blood spatter was located.” Detective Pasqua’s conclusions are also consistent with the prosecution’s theory that the victim was cowering down in a corner of the kitchen in a stationary position while the defendant shot her eight times.

Defense attorney Saam Zangeneh vigorously questioned both of the prosecution’s expert witnesses on crime scene analysis by pointing out flaws in their investigation techniques, including the failure to analyze blood splatter on a kitchen rug which could support the defendant’s claim that the victim had been the initial aggressor. With the prosecution wrapping up its case early this week, defense attorneys for Medina will open their case with an expert witness in battered spouse syndrome.

Battered Spouse Syndrome Expert Witness to Testify in Facebook Murder Case

Before the second day of Derek Medina’s murder trial Judge Yvonne Colodny announced she would reverse an earlier decision and grant the defense’s request for an expert witness on battered spouse syndrome to testify. Judge Colodny had initially denied the request for a battered spouse expert witness because she was concerned the expert would make conclusions about the facts of the case, but after reconsidering the motion she told defense attorneys they will be permitted to call their expert under strict conditions.

According to Judge Colodny the defense expert will be permitted to explain to jurors the nature of battered spouse syndrome, but will not be allowed to discuss the facts of Medina’s crime. The battered spouse expert witness will only be able to testify in hypothetical terms which will allow jurors to better understand the conditions which allegedly satisfy battered spouse syndrome without having their opinion swayed by an expert’s conclusion about whether or not Medina legally acted in self-defense when he shot his wife.

The defense will present its case later this week when the prosecution has rested. Prosecutors spent several days presenting testimony from police investigators who visited the scene and spoke with Medina after the crime before showing jurors surveillance footage which suggested Alfonso was not aggressive at the time of the shooting. Defense attorneys have not announced if Medina will testify, but will use experts in an effort to show jurors the victim was not stationary during the argument and the defendant’s state of mind was impacted by years of abuse to make him believe he was defending himself.

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