Category Archives: In the News

Articles about legal issues currently in the news.

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

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

Expert Witnesses Key to Determining Sterling’s Mental Health

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

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

Donald Sterling Seeks Mental Health Expert Witness

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

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

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

Merck Seeks Sanctions Against Expert in Vioxx Case

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

Expert Witness in Vioxx Litigation Challenges Confidentiality Order

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

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

Merck Seeks Sanctions Against Expert Witness

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

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

Case Highlights Confidentiality Concerns for Expert Witnesses

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

 

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

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

DOJ Expert Witness Finds Evidence of Discrimination

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

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

Expert Witness Criticizes DOJ Finding of Discrimination

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

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

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

Experts Play Critical Role in Shaken Baby Cases

A New York father has been acquitted of charges stemming from the tragic death of his 4-month old son, whose suspicious death led prosecutors to believe that Adrian Thomas had caused his child’s death by violently shaking him. As has become common in trials following suspicious death of infants, the Thomas verdict was heavily influenced by expert witnesses whose testimony assisted jurors in understanding the circumstances of the case.

Adrian Thomas Acquitted of Second Degree Murder Charges

Adrian Thomas received attention from police and prosecutors after his 4-month old son, Matthew, was found dead in September of 2008. After a 2009 guilty verdict that was dismissed on appeal due to an improperly obtained confession, prosecutors in Troy, NY again brought Mr. Thomas to trial, this time relying on testimony by medical experts to prove that Matthew’s death was caused by traumatic brain injury suffered as a result of being shaken. In response, Thomas’ attorneys argued that a bacterial infection in Matthew’s blood was the cause of his death, clearing their client of wrongdoing.

After both sides presented a number of medical expert witnesses to offer opinion on the cause of Matthew’s death, jurors determined that there was insufficient evidence to conclude that Mr. Thomas shook his son and cause his fatal injuries.

Prosecution Experts Argue Injuries Point to Shaken Baby Syndrome

New York prosecutors called medical examiner Michael Sikirica as an expert witness to testify that Matthew Thomas suffered from traumatic brain injury commonly seen in shaken baby syndrome. Dr. Sikirica noted that a subdural hematoma like the one Matthew experienced are most often caused by head injuries. Sikirica went on to testify that such injuries can be caused by rapid change in velocity that moves the brain back and forth, often indicating the infant is the victim of shaken baby syndrome.

Prosecutors argued that Dr. Sikirica, who performed Matthew’s autopsy, told the most important part of the story because he identified a cause of the child’s death. Arguing in closing that Dr. Sikirica’s testimony was “consistent with blunt force trauma,” prosecutor Christa Book pointed to her medical expert witness as a critical voice in the trial. To reinforce Dr. Sikirica, Ms. Book called on Dr. Carole Jenny to provide expert testimony after reviewing medical records. Dr. Jenny agreed with the medical examiner’s opinion, and testified to jurors that Matthew died of head trauma.

Defense Medical Expert Claims Bacterial Infection Led to Death

Defense attorney Stephen Coffey countered the prosecution’s argument by attempting to show that Matthew died after going into septic shock due to a bacterial infection in his brain. Dr. Jerome Klein, a medical expert from Boston University, was called to analyze Matthew’s injuries and provide opinion on his death. Dr. Klein acknowledged the possibility of head trauma, but pointed out that a brain infection could have caused the same symptoms and death. Dr. Klein’s testimony was designed to present a viable alternative theory of Matthew’s death, and he did so by explaining that the injuries the child suffered were not necessarily the result of shaken baby syndrome.

The Adrian Thomas case is yet another example of the questions debated by medical expert witnesses who are faced with a mysterious infant death that displays signs of head trauma. As blogged about here, shaken baby syndrome can result in hotly contested medical expert testimony, and in this particular case jurors were unconvinced that Matthew Thomas’ injuries were clearly caused by blunt force trauma. Prosecutors and defense attorneys faced with a shaken baby case need to be aware of the different types of expert witness testimony available, and employ a full array of medical experts to provide useful analysis to jurors.

Education Expert “Misunderstood” in Landmark California Teacher Tenure Case

Earlier this month, a California judge made national headlines by striking the state’s teacher tenure laws on the grounds that the legislation violates students’ rights to equal protection guaranteed by California’s Constitution. As attorneys and scholars debate the soundness of Judge Rolf Treu’s legal conclusions, his factual foundation was shaken this week when a key expert witness claimed the Court misinterpreted statements he made during deposition – giving opponents further reason to believe the ruling will not survive the inevitable appeal process.

Teacher Tenure Ruling Relies on Expert Witness Testimony

Finding that tenure laws keep ineffective teachers on the job, thus depriving poor and minority students of quality education, a basic breakdown of the point-by-point reasoning in Judge Treu’s teacher tenure opinion is as follows:

  1. Quality education demands quality teachers;
  2. Laws of teacher tenure prevent dismissals – leaving bad teachers;
  3. Because laws produce bad teachers – particularly amongst poor and minority populations – they are subject to strict scrutiny;
  4. Tenure laws fail strict scrutiny because there is no compelling reason for a state to protect bad teachers.

The strength and validity of the legal conclusions supporting points 3 and 4 are left for scholars and higher courts to debate, but the factual meat of Judge Treu’s opinion that makes his conclusion possible rests in point 2: the assertion that teacher tenure laws produce bad teachers by protecting them from dismissal. In support of his position, Judge Treu cited testimony from Dr. David Berliner, an education expert witness who testified that “1 to 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of teachers in California are grossly ineffective.”

Finding that the percentages quoted by Dr. Berliner represented a startlingly high number of ineffective teachers, Judge Treu concluded that tenure laws have created a low quality educational environment that has a “negative impact on a significant number of California students,” making the tenure protection illegal under the state’s constitutional guarantee of equal treatment across all racial and ethnic groups.

Education Expert Witness Claims He Was Misunderstood

In the wake of the controversial teacher tenure ruling, Dr. Berliner publicly provided opponents the opportunity to undercut the factual foundation on which Judge Treu based his legal conclusions by claiming his estimates of “grossly ineffective” teachers were misunderstood by the court. As an expert witness, Dr. Berliner was questioned during a deposition about ways his “value-added model” of teacher effectiveness could identify bad teachers. When pressed by lawyers about whether or not 1 – 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of educators had strong negative effect in the classroom – and were thus “grossly ineffective” – Dr. Berliner responded in the affirmative.

After realizing that Judge Treu relied on his conclusion that 1 – 3{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of California teachers could be classified as grossly ineffective, Dr. Berliner clarified that he “never said that,” and that he was misquoted as an expert witness. Claiming that he estimated the figure when pressed by attorneys, Dr. Berliner stated that he has never met a grossly ineffective teacher, and his expert opinion about the overall quality of California’s educators was misrepresented in the landmark decision.

Misunderstood Expert Witness Testimony May Affect Outcome

A spokesperson for Students Matter, the organization that filed the lawsuit claiming teacher tenure laws were unconstitutional, was undeterred by Dr. Berliner’s claims that his expert opinion was misunderstood, saying that “nothing in the opinion hinges on that number.”  Although the legal basis for Judge Treu’s opinion can stand independently of Dr. Berliner’s testimony, and is undoubtedly the aspect of the decision that will receive the brunt of the criticism and scrutiny on appeal, downplaying the effect of an expert witness countering his testimony can be dangerous for the plaintiffs.

Judge Treu supported his position that teacher tenure laws produce grossly ineffective educators with Dr. Berliner’s expert testimony, so even if an appeals court agrees with his legal conclusion that such laws can unconstitutionally deprive students of quality education – an outcome which is far from assured – an expert witness recanting testimony can cast doubt on the judge’s factual conclusion and influence the future of the litigation. Whether or not an appeals court places significant stock in Dr. Berliner’s efforts to clarify his testimony, the embarrassing circumstance of a misquoted expert serves as a reminder to judges and attorneys that it is critically important to properly understand exactly what expert witnesses say during trial.

 

 

Remote Expert Testimony Via Skype Embraced in Australia

An Australian court has embraced the age of digital communications by allowing expert witness testimony to be delivered via Skype or other teleconferencing applications. Called remote witness evidence, the experimental practice has been utilized in select criminal courts over the past 12-months. Feedback on the procedure seems positive, particularly from expert witnesses who do not have to travel, but remote witness testimony is a long way from becoming widely accepted – particularly in the US.

Remote Expert Witness Testimony Useful in Australian Criminal Trials

Initiated to end the hours spent by police officers and other expert witnesses waiting at the courthouse, the driving force behind Australia’s experiment with remote testimony is efficiency in the legal system. Deputy Police Commissioner Catherine Burn touted the advantages of remote testimony by saying that time spent as a witness was “something that police have had a real frustration with for decades” before teleconferencing provided a solution. Prosecutors must notify the court that expert witnesses or police intend to present testimony remotely, and if the judge determines that the evidence is too contentious, the witness must still report to court in person.

In addition to trimming the time spent by expert witnesses, allowing remote testimony has two other notable advantages:

  • Cost: Paying an expert witness to travel to a courthouse for testimony can get expensive – particularly if the expert is not local. Hiring an expert witness can be expensive, and costs such as flights, rented cars, meals, and hotel rooms can easily make the use of some experts too pricey for a number of criminal defendants.
  • Expanded Access: With concerns over travel costs effectively eliminated, clients in a remote testimony environment have expanded access to a variety of experts. Over the course of Australia’s experiment with remote testimony, some cases featured testimony by experts in other parts of the country and even as far away as England.  With remote testimony in place, clients can rely on expert witnesses from virtually anywhere – providing the internet connection allows for easy teleconferencing.

Australian courts making use of remote testimony reported little to no problems with connectivity or communication quality, meaning introducing expert witness testimony via teleconference was not significantly different than doing so in person.

United States Unlikely to Welcome Remote Expert Witness Testimony

The concept of remote witness testimony is not uncontemplated by American jurisprudence.  The Supreme Court spoke directly to the issue in 2004’s Crawford v Washington, and directly rejected widespread use of remote testimony as being in violation of the Confrontation Clause of the Constitution. The Confrontation Clause gives every criminal defendant the right to physically confront, in court, any witness – including an expert witness – who offers evidence during trial. The Crawford opinion echoed the Court’s decision to reject a 2002 amendment to the Federal Rules of Evidence that would have allowed remote witness testimony based on concerns over the Confrontation Clause. The Supreme Court, setting the tone for the American legal system, has declined the opportunity to allow widespread use of remote expert witnesses, and it is unlikely the thinking will change dramatically despite technological advances that have made teleconferencing more affordable and reliable since the Court last weighed in.

Although the issue of remote testimony seems stagnant in the United States, it is not necessarily dead. Courts already allow limited use of teleconference testimony, typically reserved for situations in which the witness is intimidated by the defendant and unable to confront him in court – none of which would apply to use of experts. As technology improves teleconferencing – an innovation clearly not considered by the Constitution – Courts may begin to recognize that defendants are still able to confront a witness who testifies remotely. Legal scholars continue to keep the issue fresh (see articles here, here, and here), and it is possible, even likely, that a younger generation of judges who are more familiar with technology will be willing to open the door for remote testimony across the U.S.

Pennsylvania Supreme Court Rejects Use of False Confessions Expert Witness

Criminology research indicates that approximately 1/3 of people accused of crimes issue a false confession – a troubling statistic considering how valuable confessions are in criminal trials. Behavioral scientists have conducted years of research into the matter, and recently the Pennsylvania Supreme Court was called upon to decide on whether a social scientist expert witness could offer testimony regarding false confessions during a criminal trial. Unconvinced by social science research, the Court rejected behavioral expert testimony regarding false confessions, contradicting a similar opinion it issued the same day.

Pennsylvania Court Rejects False Confession Expert

In Commonwealth v Alicea, a divided Pennsylvania Supreme Court reversed a lower court decision that allowed a nationally renowned behavioral science expert to testify about false confessions during a criminal trial. Murder trial defendant Jose Alicea, accused of a 2005 killing, confessed to the crime after five hours of intense police interrogation. Lawyers for Mr. Alicea, whose IQ of 64 is well below the traditional threshold for intellectual disability, argued that expert testimony regarding the tendency for certain defendants to falsely incriminate themselves was critical to jurors’ analysis of their client’s confession.

Writing for the majority, Judge Seamus McCaffery was unconvinced that jurors needed a behavioral science expert witness to evaluate the legitimacy of confessions. Wishing to avoid a battle of experts arguing social science generalities, the court wrote, “Ultimately, we believe that the matter of whether a confession is false is best left to the jury’s common sense and life experience.” Cleary, Judge McCaffery and the rest of the 4 – 2 majority were unconvinced that the value of behavioral science research outweighed the potentially overwhelming use of social science experts during criminal trials – leaving dissenting judges with a strong counterargument.

Dissent Argues Value of Behavioral Science Expert Witnesses

Dissenting members of Pennsylvania’s high court took issue with the majority’s approach to social science research. Writing for the minority opinion, Judge Thomas Saylor criticized the majority’s “blanket exclusion of social science research based upon unanalyzed assumptions about juror capabilities, even as these assumptions are challenged by demonstrations of wrongful convictions and developing behavioral science.”

Judge Saylor’s argument is echoed by defense attorney organizations and social scientists who seek acceptance by the judiciary of established behavioral science research. It also represents a position the Pennsylvania Supreme Court was willing to accept in a related case – leaving the overall place for behavioral science expert witnesses in Pennsylvania criminal trials somewhat unclear.

Alicea Decision Contradicts Earlier Ruling on Use of Behavioral Science Experts

The Court’s decision in Alicea is somewhat puzzling considering that earlier in the day it accepted the use of behavioral science in Commonwealth v Walker – blogged about here. In Walker, the Pennsylvania Supreme Court accepted testimony by a behavioral science expert witness who explained to jurors the inaccuracies common across eyewitness testimony. Like Walker, the defendant in Alicea relied on expert testimony based on advances in social science to explain general patterns of human behavior that could influence a criminal investigation and trial, however, Pennsylvania’s Court was unwilling to broadly welcome behavioral science by accepting it in both cases.

While it is difficult to reconcile the two outcomes from Pennsylvania’s Supreme Court, the combination of Walker and Alicea are useful case studies of the integration of behavioral science expert witnesses into the legal system. Although it is clear by the dissent in Walker and the majority opinion in Alicea that some judges are unwilling to buy into the conclusions advanced by social science research, the partial acceptance in Walker is an encouraging step for behavioral science proponents. The expanding use of expert witnesses with behavioral science expertise will force more state courts to consider similar issues, and, while Pennsylvania may not offer a model of consistency, the Walker and Alicea decisions highlight the types of arguments judges will consider in future cases.

Federal Fourth Circuit Forces Experts to Separate Opinions from Fact During Testimony

Expert witnesses are often used by attorneys to analyze facts and circumstances of a case and offer opinions to help jurors better understand the relevant issues. Federal evidentiary rules, which reflect the widely accepted Daubert standard, permit expert opinion testimony providing it is reliable and supported by scientific knowledge. Recently, the Fourth Circuit Court of Appeals issued a ruling that reminds attorneys that an expert’s opinion must also be clearly distinguishable from fact.

Government Witness Improperly Mixed Fact with Expert Opinion

In United States v Garcia, the Federal Fourth Circuit Court of Appeals reversed the criminal conviction of an alleged drug dealer due to improper testimony from an FBI expert witness. During trial, the prosecution relied on an FBI special agent to testify both as a factual witness, based on her work during the criminal investigation, and an expert witness, based on her years of experience decoding drug related conversations. In dismissing the conviction, the Fourth Circuit held “there were inadequate safeguards to protect the jury from conflating [the agent’s] testimony as an expert and fact witness,” reminding attorneys that there must be a clear line between fact and opinion testimony.

In its decision, the Fourth Circuit determined that the Government’s expert witness “moved back and forth between expert and fact testimony with no distinction,” which allowed the prosecution to submit evidence under the guise of expert opinion. For example, the agent testified that the phrase “one hundred forty five point” referred to 145 grams of heroin – a fact she gleaned from the investigation that was presented to the jury as an expert decoding of a drug related conversation. By mixing facts and expert opinion testimony, the prosecution was able to insert evidence into the trial without going through the proper channels.

Improper Connection Drawn Between Facts and Conclusions

The Fourth Circuit also took issue with the prosecution’s drug investigation expert witness for drawing the connection between facts and conclusions – essentially giving the Government’s case additional credence by tying her expert opinion to it. During trial, it is up to the prosecutor to establish facts that are sufficient to convict, and, although experts may opine on the meaning of facts, it is inappropriate for an expert witness to make the prosecution’s argument by connecting evidence to the underlying argument. The Fourth Circuit determined that such testimony falls outside of the evidentiary rule which “contemplates that an expert’s opinion testimony will be ‘helpful to the jury,’ not merely helpful to the prosecutor as transmutations of simple fact testimony.”

Finally, the Government’s FBI expert witness failed to lay an adequate foundation for either her factual or her expert opinion testimony. Under Daubert standards that have been codified by the federal rules of evidence, expert witnesses must demonstrate their testimony is based on reliable, scientific knowledge. This requires attorneys to ask questions during testimony that give the expert the opportunity to support her opinion with reliable methodology or theory. By failing to do this, the prosecution further blurred the lines between fact and expert opinion, and further allowed the FBI expert’s testimony to make the Government’s argument rather than help the jury understand the facts.

Garcia’s Guide for Expert Opinion Testimony

The Garcia opinion clarified that attorneys must be careful when presenting expert opinion testimony. Expert witnesses are permitted to offer their opinion in order to assist the jury in understanding the facts, but an expert cannot be used to tell the party’s story. Expert opinion testimony offers insight into complex issues that jurors may not be able to properly comprehend, but it is up to attorneys to integrate the facts of the case with the expert’s opinion in order to make a convincing argument. As the Fourth Circuit demonstrated in United States v Garcia, judges will hold parties accountable for properly separating expert opinion from fact by dismissing expert testimony that crosses the line between assisting the jury and making the attorney’s argument.

Arizona Supreme Court Allows “Cold” Expert Witness Testimony

The Arizona Supreme Court issued a landmark ruling last week, changing the way criminal trials in the state can make use of expert witness testimony. Rejecting an appeal of a lengthy prison sentence, the Court admitted testimony of a “cold” expert witness – meaning an expert who has not interacted with the victims.

Arizona Admits Cold Expert Witness Testimony

Martin Salazar-Mercado appealed his conviction of multiple counts of child abuse to the Arizona Supreme Court due to the prosecution’s use of an expert witness who knew nothing about the particular victims involved in the case. At trial, the state presented testimony of a forensic interviewer who discussed a condition known as Child Sexual Abuse Accommodation Syndrome in order to explain the behavior of Salazar-Mercado’s victims. Many of the child victims delayed reporting the abuse, had trouble recalling the timing of events, and even changed stories during the course of investigation – symptoms common among young victims of sexual abuse. Salazar-Mercado’s attorney objected to use of the expert witness because she had not interviewed any of the children or connected personally with the case.

In a unanimous decision, the Court rejected Salazar-Mercado’s appeal and set a lasting standard for the use of experts in Arizona criminal trials. Holding that the state’s forensic interviewer expert testimony was admissible, the Court found that, “Expert testimony about general behavior patterns of child sexual abuse victims may help the jury understand the evidence.” In this case, the state’s expert helped the jury understand reasons for the delayed and inconsistent reporting. In its conclusion, the court was careful to limit cold expert witness testimony to “general principles of social or behavioral science,” and reminded judges that cold testimony must still satisfy legal standards for admissibility.

Understanding Cold Expert Witness Testimony

Expert witness testimony is often used to analyze facts of the case and explain how professional or scientific knowledge applies directly to the particular issues jurors must decide. Experts are called upon to conduct investigations, write reports, and offer pointed testimony that help judges or jurors answer questions about the facts of the case. Traditionally, experts who have not interacted with the particulars of the case have not been used to speak to victim behavior, however the continued advances in social and behavioral science have made the use of cold expert witnesses possible.

A cold expert witness is so termed because she has not connected personally to the facts of the case, but instead is called upon to offer testimony on general principals – often relating to behavior. Courts make use of cold experts in order to understand why the parties involved behaved in a particular manner, but their testimony is limited in scope. In the Salazar-Mercado appeal, the Arizona Supreme Court properly restricted cold expert testimony by forbidding one to testify about “the accuracy, reliability or credibility of a particular witness,” because an expert who has not personally investigated the facts cannot comment on specific issues. As with any expert, a cold expert witness speaking to social or behavioral science must be able to show her testimony is supported by reliable and scientific knowledge before being admitted at trial.

Florida’s Third Circuit Issues First In-Depth Treatment of Daubert

A recent decision from Florida’s Third District Court of Appeal provided an in-depth discussion on the differences between the old Frye standard of expert witness admissibility and the currently used Daubert test. In Perez v Bell South, the Court considered expert witness testimony in a personal injury claim, and clarified for future litigants how the Daubert requirements differed from the state’s previous Frye test. Although the decision applies only to Florida, analyzing the case is useful to attorneys who need to be aware how Daubert expert witness admissibility rules compare to the older standard.

Perez v Bell South Emphasizes Use of Daubert

Maria Perez filed a personal injury claim on behalf of her developmentally disabled son, Osmany, against her former employer for negligently creating a stressful work environment that resulted Osmany being born 20 weeks early. Ms. Perez alleged that Bell South caused her such significant difficulty that she suffered a placental abruption, which led to Osmany’s premature birth and subsequent developmental deficits. As part of her case, Maria called upon the medical expert testimony of Dr. Isidro Cardella, a board-certified obstetrician and gynecologist. Dr. Cardella testified that, in his opinion, Bell South’s refusal to allow Ms. Perez frequent bathroom breaks or limit her working hours to 40 created such stress on her body that she suffered the placental abruption.

The trial court dismissed Dr. Cardella’s expert testimony and Ms. Perez’s case because it was based solely on his opinion as a medical expert. Applying the Frye test, the trial judge determined that an opinion not supported by medical evidence or research is inadmissible.  Ms. Perez appealed, arguing that “pure opinion” testimony does not fall within the guidelines of Frye. On appeal, Florida’s Third District Court correctly made the dispute over Dr. Cardella’s testimony moot by analyzing under the state’s newly adopted Daubert standard – clarifying for attorneys, and judges, how expert witness testimony, including opinion, is to be evaluated in the future.

Daubert Test v Frye Test

Created by the 1993 Supreme Court decision in Daubert v Merrell Dow Pharmaceuticals, the Daubert standard sets forth an evidentiary rule that determines whether or not expert witnesses are permitted to testify at trial. Over the last two decades, all federal jurisdictions and over half of the states have implemented the Daubert test, however, a number of states, including California and Illinois, have yet to make the switch. Relevant to the Perez case, Florida’s legislature enacted a law that made the Daubert standard the official state rule as of July 2013.

Prior to Daubert, courts analyzed expert witness testimony under a test established in the 1923 case, Frye v United States. The Frye test simply required courts to determine if an expert witnesses testimony was based on scientific methods that are “sufficiently established” in, and generally accepted by, the scientific community to which the expert belongs. As the Perez Court pointed out, the Daubert standard, as adopted by Florida’s legislature in 2013, requires additional analysis. Ensuring that an expert’s methods are accepted and established by the greater scientific community is one of many factors that a court must consider under Daubert, as now codified in Florida’s rules of evidence.

Florida courts must consider a number of factors to ensure expert witness testimony is scientifically reliable – most notably determined by analyzing an expert’s methodology and scientific knowledge. In addition to an expert’s approach being generally accepted, courts must also consider the level of peer review it has been subjected to, the error rate that can influence his results, and the existence of professional standards that govern the operation of an expert’s investigation. The Daubert standard requires courts to look at a variety of factors, and the Perez case noted that a simple Frye evaluation of expert witness testimony is no longer sufficient in Florida.

Understanding the Daubert Standard

Reviewing Dr. Cardella’s testimony through a Daubert lens, Florida’s Third District Court of Appeal arrived at the same conclusion – his testimony was inadmissible. The pathway to the correct decision is important, however, because, as Ms. Perez’s attorneys pointed out, a Frye analysis is not sufficient to evaluate a pure opinion testimony. Using the Daubert test, which applies to any expert witness testimony, Florida courts can determine the admissibility of an expert’s analysis of facts and his opinion of the case. Under Daubert, Dr. Cardella’s testimony still fell short because he did not back his conclusions with scientifically reliable support.

Attorneys who intend to use expert witnesses must understand the proper application of the Daubert standard and be prepared to use an expert who can provide reliable, scientific knowledge to support testimony. With limited exception, the Daubert standard controls expert witness admissibility, and, as Florida’s Perez v Bell South demonstrates, Daubert is more comprehensive and thorough than the once widely-used Frye test.