Category Archives: In the News

Articles about legal issues currently in the news.

Psychology Expert Witness Questions Children’s Memories of Abuse

In a story reported by lehighvalleylive.com, an expert witness in Washington Township, NJ faced a pretrial qualification hearing to determine if he could take the stand as a defense expert witness in a criminal trial over alleged child abuse. Elliot Atkins, a forensic psychology expert witness, who was also a defense expert in the Jerry Sandusky trial, will testify that the recollections of child abuse victims should be looked at with a “certain degree of skepticism” due to the way memories, true or false, develop.

Atkins pointed to recollections by the victims that increased the severity and frequency of the abuse the more times they were interviewed by police or prosecutors, as evidence suggesting memory formation may be tainted and easily influenced. Defense attorneys hope that Mr. Atkins will be permitted to testify at trial that the memories of the victims have been altered by biased questions, which would call into question key victim testimony the prosecution has planned. The accuracy of eye witness testimony and first-hand accounts are a frequent hotbed of disagreement during criminal trials. It is not uncommon for defense attorneys to seek out expert witnesses to call eye-witness accounts to task because of faulty or bias memory. Mr. Atkins has based his testimony on scientific study of memory formation and recall, forcing prosecutors to question his credentials, his methodology, and his ability to apply his science to the specific facts at hand. Whether or not Mr. Atkins testifies will be determined when the case resumes early next year.

Chicago Area County Will Pay for Indigent Defendant’s DNA Expert Witness

Will County, located just outside of Chicago, has paid $3,800 for an indigent defendant’s expert witness in a double murder case. According to news source, Shorewood Patch, Will County Judge Gerald Kinney agreed with attorneys representing Bethany McKee that the defendant qualified for assistance in paying for her expert witness. Mckee, age 19, and three of her friends are accused of luring two men into a residence and murdering them. Ms. Mckee’s attorneys, who are private attorneys hired by McKee, have argued that the defendant does not have sufficient funds to hire an expert in her defense.

Judge Kinney agreed despite the prosecution’s objections, and has authorized up to $5,000 be spent on expert witness testimony on behalf of Ms. McKee. The law on government assistance for indigent defendants varies across states – the only constant being the right to have a qualified attorney regardless of income level. As expert witness testimony, particularly in regards to DNA analysis, becomes more critical in assessing a defendant’s involvement in criminal activity, indigent defendants will likely argue that the government is responsible for paying for expert witnesses in order to give the best possible defense against criminal charges.

Expert Witness Testimony the Centerpiece of Trial Against Juvenile Detention Centers

The Southern Poverty Law Center, a non-profit civil rights organization, has filed a lawsuit against Polk County, Florida for treatment of juveniles in detention centers. As reported by The Ledger, the Southern Poverty Law attorneys presented key testimony from a nationally recognized expert on juvenile justice who criticized Polk County prison for conditions conducive to violence and abuse among juvenile inmates. Paul DeMuro, nationally recognized as a juvenile justice system administrator, was critical of Polk County for failing to provide young inmates with sufficient activities, which leads to restlessness and inmate fighting. DeMuro also questioned the use of pepper spray on young inmates, saying that Polk County officials were too quick to resort to the tactic.

Attorneys for Polk County aggressively cross-examined DeMuro, specifically questioning whether or not he could testify to violent fighting being worse in Polk County jails than anywhere else. When he could not, DeMuro was next asked to analyze a situation in which pepper spray was used to determine if he felt it was appropriate. Although the expert witness was shown a video of prison officials using pepper spray to break up a violent fight, DeMuro stood his ground in his belief that the tactic was not used to prevent harm.

As the case is ongoing, it is unclear whether or not DeMuro’s testimony was sufficient for the plaintiffs, but it does serve as an example of how attorneys on both sides of an issue approach expert witnesses. Attorneys for the SPLC identified a nationally renowned expert and had him specifically criticize the defendant’s practices, and the attorneys for Polk County responded with pointed questions that challenged Mr. DeMuro’s knowledge and ability to evaluate the facts at issue in the case. Expert witness testimony can often shape the outcome of litigation, and it is important that attorneys opposing the expert are prepared to challenge his testimony and ability to offer a persuasive point of view.

Law Professor Plagiarizes Wikipedia for Expert Witness Report

When parties hire an expert witness in preparation for trial, the expert will typically compile a report that analyzes the facts of the case and the relevant law. An expert witness report is used by judges and litigating parties to help understand the issues surrounding the case, and often provides the basis for expert witness testimony if and when the case goes to trial. Expert witness reports are critical to litigation, so it is disheartening to read the JDJ Journal story about law professor James Feinerman plagiarizing most of an expert report on the Chinese government from popular online information hub, Wikipedia. Feinerman, hired as an expert for a case involving illegal disclosure of trade secrets, copied 13 of his 19-page report almost word-for-word from a Wikipedia entry on the Chinese government, and in doing so has damaged not only his professional reputation but the legal practice as a whole.

Legal Battle of the Tech Giants: Apple VS Samsung

In the summer of 2012, technology giants Apple and Samsung engaged in a fierce and highly publicized legal battle in which Apple successfully sued its South Korean competitor for patent violations stemming from designs of Samsung smart phones and tablets. On November 21, 2013, Apple scored another victory when a federal jury, with help from a damages expert witness, awarded the company with a $290 million damage award for lost profits caused by Samsung’s patent infringement.

Apple vs Samsung Legal Battle Continues

After Apple won its patent infringement lawsuit in 2012, the jury awarded the company $1.05 billion from the defeated Samsung. Upon review of the jury award, U.S. District Court Judge Lucy Koh reduced the award to $600 million based on jury error in calculating damages for patent infringement leading to the creation of 13 Samsung products. Over the last several months, the two companies have continued to fight for a correct damage calculation, leading to the November 21^st ruling granting Apple an additional $290 million.

The award is less than the $400 million vacated by Judge Koh after the initial trial, but significantly more than the $52 million Samsung had argued for. The primary difference is accounted by the award to Apple for lost profits the company allegedly suffered, which Samsung argued its competitor was not entitled to. The jury also felt that Apple was entitled to a large share of Samsung’s profits generated by sale of products that infringed on Apple patents.

How an Apple Expert Witness Influenced Damages

When Judge Koh reduced Apple’s $1.05 billion award by over $400 million, she did so because the jury had not clearly calculated the effect of Samsung’s patent infringement. When the jury determined that Samsung had infringed on Apple patents to create its smartphones and tablets, the damage calculation had to specifically identify the cost such infringement had on Apple – a difficult task because it is impossible to positively confirm the amount of Apple’s lost profits or attribute what portion of Samsung’s profit came at Apple’s expense . Because Apple’s damage award required a jury to quantify economic projections the calculation required the support of expert knowledge.

In the resulting damages trial, Apple attorneys hired damages expert witness Julie Davis who showed the federal jury that it could attribute $178 million of Samsung’s $230 million in profits to reduced operating costs that were a direct result of using Apple’s patents. Ms. Davis, a certified public accountant, provided the jury with clear evidence of Samsung’s benefit at Apple’s expense, and withstood vigorous cross-examination that questioned her methodology and economic calculations.

Jury forewoman Colleen Allen credited Ms. Davis’ testimony with helping the jury members resolve a dispute about the $178 million in operating costs being included in the damage award, and praised Apple’s witness for her clear explanation of damage calculation and her presence on the witness stand. Juror Barry Goldman-Hall echoed the forewoman’s sentiment by saying that Julie Davis convinced most of the jury to include the full $178 million into its calculations, which helped the jurors generate the $290 final damage figure awarded to Apple.

A Samsung appeal is all but certain given the significantly high damage award, and the two companies will continue the issue in a separate infringement trial scheduled for next March; however, for now it appears Apple’s use of a damages expert witness has paid off. For more information, the case is Apple Inc. v. Samsung Electronics Co. Ltd., 11-cv-01846, U.S. District Court, Northern District of California (San Jose). Details, write ups, and the case itself can be found by clicking here.

Apple Award Highlights Value of Damages Expert Witness

Calculating damages in a lawsuit can become complex, particularly when the figure includes lost profit estimations or attributions of one company’s profit to actions that harmed its opposition. Hiring an expert witness who knows how the specific type of damages requested are calculated can be an important asset to getting the full value of a lawsuit. Damages expert witnesses will explain to judges or juries the process of putting a dollar value on losses, and help a party demonstrate that damages without clear cut economic support can be quantified.

Whether the damages alleged are not economic in nature – such as pain and suffering or emotional distress – or the economic value requires projection and conjecture – such as lost profits or missed business opportunity – a damages expert witness can help quantify losses and maximize the value of litigation. As the recent Apple decision highlights, a damages expert witness can have a significant positive impact by helping a jury understand complex award calculations and proving that an injured party is entitled to compensation for losses that are not clearly quantified.

Duty to Protect Staff in Schools and Massachusetts Teacher Murder

Duty to Protect Students and Staff

Schools have a duty to protect students and staff from harm. They have an expectation that when participating in an educational program at the school or a school-sponsored event, that the school has acted reasonably and appropriately to protect them. With that in mind let’s examine some issues around the recent Massachusetts teacher murder.

In order to provide this protection, schools develop and implement safety plans, assign school resource officers, teach staff on appropriate staff-student relationships and contacts, develop and implement anti-harassment and bullying policies as well as implement other measures such as installing metal detectors at school entrances and quality surveillance camera systems in hallways and classrooms.

The school budget and the budget of other agencies such as the local police ultimately affect the level of security that is provided. At some schools there is a recognized need for a metal detector at the entrance because of past history of offenses, but more often than not schools do not have the money to purchase and maintain such a system. When a student or an intruder brings a weapon into the school, can the school be held liable if someone is injured or murdered? When there is a determination by a local board of education and police department that assigning a school resource officer (police officer on school grounds) to the school will protect students and staff but there is a shortfall in funding and someone is unfortunately assaulted, will the school or local police department be held liable? Once a school makes a cogent decision to act to protect the safety of students and staff (via installation of reliable safety equipment or assigning a school resource officer on site), that decision can be seen as an admission that those intercessions (or interventions) are likely to curtail bad behavior. However, schools cannot generally be held liable for budgetary decisions leading to a change in safety procedures but they may have to show if they had the resources they were not just reassigned. If there is a lawsuit the court will determine whether the school was justified in altering the safety measures because of budgetary constraints. If not, the school may be held negligent for failure to provide adequate safety and supervision leading to the cause of the injury.

Danvers High School Tragedy

Like so many other schools around the country, Danvers High School outside of Boston is a place that provides its students with a tons of opportunity to excel. Each student is assigned a counselor who makes himself/herself available if a personal crisis arises and the student needs guidance and support. However, this only works, as we have seen in the numerous school shooting cases recently, when the school recognizes a student in trouble and acts on it or when a troubled student initiates contact with a caring adult at the school and gets help instead of resorting to extreme measures. Kids slip through the well-intentioned programs and supportive services offered by schools and can end up hurting themselves as well as others. Classmates said that Philip Chism, the student who killed his teacher, Colleen Ritzer in the teacher’s bathroom at Danvers High School, kept to himself but was liked by his soccer teammates. He was quiet and was not a troublemaker according to news media reports. There may not have been anything that a teacher or counselor would have picked up on that would give reason to believe Philip may have been troubled and distressed.

The Danvers High School offers “help sessions” for students, which are available in the afternoons after dismissal for extra help and make-up work. According to school policy, if a teacher asks a student to return for extra help, the student must return. From the information revealed to date, it appears that Ms. Ritzer asked Philip to remain after the final class of the day, possibly for a help session. It would seem like she was reaching out to him to provide what the school believes to be an opportunity for a student to do his/her best. The high school was assigned a School Resource Officer, an officer who was stationed at the school by the local police department to perform police duties and at the same time, become acquainted with the student population. However, due to budgetary problems in the police department, the officer was pulled from his position and reassigned before the murder of Ms. Ritzer. There was no officer in the building when Philip followed Ms. Ritzer to the teacher’s bathroom, a restricted area for students, and killed her. One wonders if the presence of an officer would have prevented this Massachusetts teacher murder?

The high school has a reasonable policy that prohibits firearms, knives, sharp objects, any type of weapon, or facsimile including water guns and sling shots. Philip murdered Ms. Ritzer with a box cutter, a prohibited weapon according to school policy. If a teacher noticed the box cutter and didn’t act to remove it from Philip and he used it in the murder of Ms. Ritzer, is the school liable? What good is a policy if no one saw Philip with a box cutter in the first place? Can the school be liable for something for which it had no notice? Students bring all kinds of weapons into school undetected. Children bring their parent’s guns to school, carry knives and, as in this case, box cutters, all undetected by school officials. If there is no reason to search a student for contraband or illegal weapons the school is not justified in singling out a student without cause. However, if the school has a metal detector and all students must pass through it on the way to class, then they are all being treated equally.

Education Expert’s Approach to MassachusettsTeacher Murder

As a school liability expert witness I am frequently asked to determine if the schools met the standards of care and if they could have done anything to prevent an accident or wrongful death from happening. In this case, the main question is whether Danvers High School, through its administration and/or employees, acted reasonably and within the professional standard of care in the field of education, administration and supervision under the circumstances? Did the school breach its duty of care? If so, did that breach significantly contribute to the murder of Ms. Ritzer?

I use the following questions to begin the analysis:

Did Philip exhibit any behavior that would have caused a reasonable staff member concern and a referral to a counselor or other services?
Was there a policy that teachers should not be alone with students in their class after school and was that policy breached?
Was there a policy that following a help session students must be escorted out and leave the building?
What was the level of supervision during this time of the day and was it reasonable?
Would the presence of a school resource officer or other staff person in the hallway of Ms. Ritzer’s classroom have prevented the murder?
Could the teacher’s bathroom been secured with a lock? And, if so, would this have prevented Philip from following Ms. Ritzer into the room?

Bear in mind, these questions are only the beginning of a far deeper analysis to assess responsibility or determine whether anything different could have been done to protect both students and staff. As we begin to investigate, more information will likely surface and more questions will need to be answered and addressed. Even with the best intention to protect students and staff, it isn’t always possible to do so. Courts have acknowledged that schools cannot 100{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} guarantee the safety of all students and teachers while going about their lives on the school grounds, but they can be held liable for injury or death resulting from negligence based on the legal principle of duty of care. On the other hand, when a school acted reasonably and within the professional standard of care the school may not be held accountable for unfortunate injuries or death.

Recent blog posts from Dr. Dragan:

Wrongful Death Lawsuits Against Schools and Agencies: What Attorneys Need to Know

School Liability Under Section 1983, Ch. 42, USC

School and Summer Camp Liability

Police Expert Witness Testimony Affirms $25M Damage Award to Wrongfully Convicted Man

Thaddeus Jimenez, a man who spent 16 years in prison for a murder he did not commit, recently had his 2011 civil judgment against the City of Chicago upheld. Mr. Jimenez, released in 2009, filed a lawsuit against Chicago claiming the police investigation was inadequate and resulted in his wrongful conviction. Largely due to testimony from a police expert witness, Mr. Jimenez was awarded $25 million. After two years of appeal, the United States Seventh Circuit Court upheld Mr. Jimenez’s expert witness testimony and large settlement.

Expert Witness Testimony the Cornerstone of Jimenez Verdict

Playing a significant role in the Jimenez civil lawsuit against the City of Chicago was the testimony of Gregg McCrary, a former FBI agent with 25 years of experience in criminal investigations. Mr. McCrary spent 17 years specifically investigating violent crimes, and testified to a number of violations of investigative practice by the Chicago police during the course of the murder case against Mr. Jimenez.

During the 2011 civil lawsuit, Mr. McCrary identified ways the police “conducted a substandard investigation into the murder … that resulted in the wrongful conviction of [Mr. Jimenez] and left the true killer … on the streets free to kill again.” Saying that the police failed to follow basic police investigation techniques by focusing too much on Jimenez and ignoring physical evidence about the actual shooting, McCrary’s expert witness testimony identified inadequate police work and proved instrumental in Mr. Jimenez’s successful civil suit for damages.

City of Chicago Appealed Use of Police Expert Witness

Expert witness testimony is permissible when a qualified expert reviews a fact situation and offers an opinion on whether or not the actions of parties involved were in compliance with the standards expected of their profession. For example, doctors often testify in medical malpractice lawsuits by analyzing whether or not the physician(s) treating a patient acted in accordance with the requirements of the medical profession. Expert witnesses may not offer legal opinion about liability, but their testimony is often used to help juries understand complicated scenarios in order to make a decision about legal responsibility.

On appeal of Mr. Jimenez’s $25 million judgment, the City of Chicago argued that Mr. McCrary’s testimony offered a legal conclusion because his opinions spoke to whether or not the police acted reasonably. Reasonableness, argued the City, requires legal analysis, and, because McCrary’s expert testimony questioned a series of judgments by the investigating officers, the expert report “amounted to legal conclusions that were not admissible.”

In civil lawsuits, a plaintiff must show that the defendant acted unreasonably by presenting a series of facts, and the City’s appeal alleged that Mr. McCrary’s expert testimony exceeded simple analysis of the facts by speaking directly to whether the police acted reasonably. By claiming the police acted unreasonably, the City argued, Mr. McCrary’s report spoke to the conclusion rather than evidence that supported a conclusion. The difference may seem semantic, but, with $25 million on the line, it is far from trivial.

Seventh Circuit Upholds Expert Testimony on Police Behavior

In upholding Mr. Jimenez’s civil judgment, the Seventh Circuit Court disagreed with the City of Chicago’s argument. Finding that Mr. McCrary’s testimony “was within the bounds of proper testimony for a police practice’s expert,” the Seventh Circuit declined to overturn the significant judgment. Although the City of Chicago’s theory was sound – experts are not permitted to provide legal conclusion – it failed to recognize the difference between the expert analysis of a doctor’s actions and the judgment calls by police during the course of a police investigation.

A police expert analyzes the decision-making process, and must evaluate whether or not judgment calls to pursue, or ignore, evidence were reasonable in light of the circumstances of the investigation. Although McCrary stated that the actions of the Chicago PD were unreasonable, he did not offer a legal conclusion – he offered one that analyzed the facts of the police investigation. When analyzing actions, such as surgical procedures, it is easy to say a doctor did it right or wrong, however, when analyzing decisions the analysis focuses more on whether or not parties acted reasonably. Mr. McCrary looked at the facts – police ignoring evidence, focusing on Jimenez – and claimed that the decisions that created these facts were unreasonable.

In this case, the Seventh Circuit determined that Mr. McCrary, a police expert witness who reported on the reasonableness of investigative decisions and strategy, did not offer legal conclusion. As such, his expert testimony was admissible, and the judgment in Mr. Jimenez’s favor was affirmed – making the wrongfully convicted victim a very rich man.

Healthcare Act

The Patient Protection and Affordable Healthcare Act, more commonly referred to as the “healthcare bill” or Obamacare, has taken over a year to construct and has been a lightning rod for political debate because it effectively reshapes major facets of the country’s healthcare industry.

Here are 10 things you need to know about how the new law may affect you:

1. Your Kids Are Covered

Starting this year, 2013, if you have an adult child who cannot get health insurance from his or her employer and is to some degree dependent on you financially, your child can stay on your insurance policy until he or she is 26 years old. Currently, many insurance companies do not allow adult children to remain on their parents’ plan once they reach 19 or leave school.

2. You Cannot Be Dropped

Your health insurance company will no longer be allowed to “drop” you (cancel your policy) if you get sick. In 2009, “rescission” was revealed to be a relatively common cost-cutting practice by several insurance companies. The practice proved to be common enough to spur several lawsuits; for example, in 2008 and 2009, California’s largest insurers were made to pay out more than $19 million in fines for dropping policyholders who fell ill.

3. You Cannot Be Denied Insurance

Starting in 2013, your child (or children) cannot be denied coverage simply because they have a pre-existing health condition. Health insurance companies will also be barred from denying adults applying for coverage if they have a pre-existing condition, but not until 2014.

4. No Caps On Coverage

Prior to the new law, health insurance companies set a maximum limit on the monetary amount of benefits that a policyholder could receive. This meant that those who developed expensive or long-lasting medical conditions could run out of coverage. Starting this year, companies will be barred from instituting caps on coverage.

5. You Do Not Have To Wait

If you currently have pre-existing conditions that have prevented you from being able to qualify for health insurance for at least six months you will have coverage options before 2014. You will be able to purchase insurance through a state-run “high-risk pool”, which will cap your personal out-of-pocket expenses for healthcare. You will not be required to pay more than $5,950 of your own money for medical expenses; families will not have to pay any more than $11,900.

6. You Must Be Insured

Under the new law starting in 2014, you will have to purchase health insurance or risk being fined. If your employer does not offer health insurance as a benefit or if you do not earn enough money to purchase a plan, you may get assistance from the government. The fines for not purchasing insurance will be levied according to a sliding scale based on income. Starting in 2014, the lowest fine would be $95 or 1{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of a person’s income (whichever is greater) and then increase to a high of $695 or 2.5{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of an individual’s taxable income by 2016. There will be a maximum cap on fines.

7. You Will Have More Options

Starting in 2014 (when you will be required by law to have health insurance), states will operate new insurance marketplaces – called “exchanges” – that will provide you with more options for buying an individual policy if you can’t get or afford insurance from your workplace and you earn too much income to qualify for Medicaid. In addition, millions of low- and middle-income families (earning up to $88,200 annually) will be able to qualify for financial assistance from the federal government to purchase insurance through their state exchange.

8. Flexible Spending Accounts Will Become Less Flexible

Three years from now, flexible spending accounts (FSAs) will have lower contribution limits – meaning you won’t be able to have as much money deducted from your paycheck pre-tax and deposited into an FSA for medical expenses as is currently allowed. The new maximum amount allowed will be $2,500. In addition, fewer expenses will qualify for FSA spending. For example, you will no longer be able to use your FSA to help defray the cost of over-the-counter drugs.

9. If You Earn More, You Will Pay More

Starting in 2018, if your combined family income exceeds $250,000 you are going to be taking less money home each pay period. That’s because you will have more money deducted from your paycheck to go toward increased Medicare payroll taxes. In addition to higher payroll taxes, you will also have to pay 3.8{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} tax on any unearned income, which is currently tax-exempt.

10. Medicare May Cover More or Less of Your Expenses

Starting this year, if Medicare is your primary form of health insurance you will no longer have to pay for preventive care such as an annual physical, screenings for treatable conditions or routine laboratory work. In addition, you will get a $250 check from the federal government to help pay for prescription drugs currently not covered as a result of the Medicare Part D “doughnut hole.”

However, if you are a high-income individual or couple (making more than $85,000 individually or $170,000 jointly), your prescription drug subsidy will be reduced. In addition, if you are one of the more than 10 million people currently enrolled in a Medicare Advantage plan you may be facing higher premiums because your insurance company’s subsidy from the federal government is going to be dramatically reduced.

Conclusion

You will most likely receive information in the mail from your health insurance company about how the recently signed law will affect your coverage. Read the correspondence carefully and do not hesitate to ask questions about your policy; there may be new, more affordable options for you down the road.

There have already been recent challengers in court to various sections of the law and the entire law, so please pay particular attention to how these changes may affect you and the material received from your heath insurer.

Should you have questions ask your health insurer or seek the advice of a professional.

The Process of Voice Identification

As an audio forensic expert, one of my day-today activities is voice identification. There is a misunderstanding about voice identification that has confused our courts in the United States creating the perception that voice identification testing is not a reliable science. In the following article, I hope to clear up the misconception of voice identification testing as well as communicate some ‘outside the box’ testing techniques that have successfully solved cases where other forms of identification were not possible.

Our court system is full of digital audio recordings that are evidence in criminal proceedings as well as civil litigation. As an audio forensic expert, I have testified in many cases in the United States and worked on cases around the world that involve voice identification. Voice identification is a viable science that involves both science and art. By art I mean discretion of the audio forensic expert to use ‘outside the box’ investigation techniques to help move along due process.

Some of the time my ‘outside the box’ voice identification testing is a matter of life and death. When a company receives a threatening voice mail recording and has an idea of who made that recording, they will call an audio forensic expert like myself and ask for our third party, unbiased opinion. Because I have no stake in the outcome, I can proceed with the untraditional testing in order to deliver my opinion of the probability of the suspect being the one who left the threatening voice mail message.

This serves two purposes. First it helps the organization know that professionals are looking into the origin of the threatening voice mail message. This is comforting to employees especially the employee who received the voice mail message. Secondly, it helps with the conviction process. In other words, when I deliver an opinion, I use a percentage of probability in my initial verbal report. The organization then takes that professional test result to the accused and some of the time they admit or confess and other times they agree or consent to cooperating with the investigative team to create an exact exemplar for more in-depth voice identification testing.

The starting point for any voice identification test is to be able to clearly hear the voice in question that is to be identified. Part of this initial process is to remove any background noise in the audio recording that is unnecessary and distracting to the expert’s sound perception. This noise removal is a process like peeling an onion. The goal for the audio forensic expert is to create custom filtering that increases the volume of the voice in question and remove any unnecessary background noise. This noise reduction filtering process is done a step-by-step, incrementally fashion.. In other words, part of the background noise is removed then the volume of the voice in question is increased. This step-by-step process is the discretion of the voice identification expert. The reason why the expert makes decisions one at a time is because every recording is different.

When conducting a voice identification test, an audio forensic expert looks for spectrums that match the recording in question against the exemplar. An exemplar is a comparison recording that a forensic expert creates of the voice in question for comparison purposes. Even more important are the words themselves. The way the words are pronounced, the pacing of the words pronounced, the space between the words, the articulation of the words and the idiolect of the speaking word delivery style—all are indicia of a voice.

No two human voices are the same ,just like no two fingerprints are the same. Regardless of attempted voice disguise cover up, a trained forensic expert can identify a voice and compare to another to determine identification.

With experience, a trained audio forensic expert can use voice identification skills in a variety of ways and help uncover the truth behind audio recordings.

For example, in the case of the ‘who cried for help’ question around the Trayvon Martin killing in People V. George Zimmerman, there are only screams, not words that an audio forensic expert can compare and identify to the best of their ability. I have formed an opinion about who I believe cried for help before Trayvon Martin was killed by George Zimmerman and have written several blog posts about my opinion. I have also appeared on national television discussing my process and opinions. This is ‘outside the box’ voice identification testing. Is it reliable? In my humble opinion the answer is yes.

Regardless of the type of voice identification testing, the second step, once the recording is as clear as possible, is to create a comparison file that includes back-to-back samples of speech from the accused (exemplar) as well as the evidence or threatening recording. I did this in the case of George Zimmerman before I formed my opinion. Using the example of the threatening voice mail message, each telephone message included two voices. The goal is to determine what percentage of possibility that both voices came from the same person.

During the investigation, I separate the voices – the suspect and the evidence – and create a new audio file called ‘comparison’. That way I can critically listen to all voices back to back in order to determine if any of the voices were identical or at least had similar characteristics.

Once I complete this back-to-back assembly process, I create work notes listing all the similarities as well as differences observed during the critical listening phase of the voice identification testing.

These notes help me provide my opinion and create a report explaining my processes when the voice identification testing is complete.

I also use spectrum analysis and sonograms to help arrive at a conclusion with the identification process. Often I print out the display of these two electronic measurement devices and include these images in my report.

One thing I have learned over the 29+ years as an audio forensic expert: keep it simple. Judges and juries like an uncomplicated decision from a qualified forensic examiner. They become frustrated when they have to interpret new information they have never heard of or are not familiar with.

Voice identification is both an art and a science. As a voice identification expert, I use my talent, skill and ability in every case I am assigned to. The science is acceptable in court and the art is the ability to adapt every case to scientific standards.

http://www.youtube.com/watch?v=73tPKeKddfE

Challenging Voice Experts in Trayvon Martin-Zimmerman case

Before George Zimmerman goes on trial for the alleged murder of Trayvon Martin, his attorneys and Florida prosecutors are engaged in a legal battle concerning the qualifications of voice experts submitted by the prosecution. The trial, expected to reawaken the dramatic controversy surrounding Martin’s death, is scheduled to begin in early June and will, in large part, turn on whether juror’s believe Zimmerman’s testimony that he was in legitimate fear of his life before the shooting. As part of the trial, prosecutors will use audio experts to help jurors determine whether or not screams for help heard on the 9-1-1 call are coming from Martin or from Zimmerman – a tactic defense attorneys question by challenging the audio expert witnesses’ credentials.

Expert Witness Credibility

Attorneys cannot use any well-studied and intelligent witness to provide expert testimony to assist the trial. The law sets standards to qualify not only the experts, but the field of study that supports their testimony. Legal doctrine, established by the Supreme Court’s interpretation of Federal Rule of Evidence 702 in Daubert v Merrell Dow Pharmaceuticals, requires judges to act as gatekeepers, and only admit expert witness testimony in a subject matter that is based on scientific knowledge, relevant to the task at hand, and based on a reliable foundation.

Like most legal standards, the Daubert test does not provide any hard rules, but give judges a framework from which to make their decision. At the heart of most arguments for or against an expert witness is whether or not the expert’s field of study has sufficient basis in acceptable science – often a difficult determination for judges to make. As guidance, a judge relies on factors such as whether there is sufficient empirical testing to strengthen scientific assertions, whether the field has been subjected to peer review, the existence of standards controlling the field, and the degree to which the scientific theory at issue is generally accepted by other scientists. While these factors provide guidelines, they leave room for significant debate about the qualifications of an expert witness to a trial.

It is left to lawyers to advance compelling arguments that push the envelope, and gradually expand, or contract, the definition of qualified expert witness in high profile cases like the Zimmerman murder trial.

Audio Experts In Trayvon Martin Murder Case

Florida prosecutors are attempting to use audio experts to help jurors identify the source of cries for help on the 9-1-1 call made shortly before Zimmerman killed Martin. Zimmerman and his attorneys argue, as he claimed since the incident, that he felt threatened by Trayvon Martin and acted out of self defense in a violent struggle with the teenager. The voice on the 9-1-1 tapes either belongs to Martin or to Zimmerman, and prosecutors hope to show that it was Martin’s voice crying for help – a fact that will chip away at Zimmerman’s claim of self defense.

Both of the prosecutors’ experts, one with prior experience testifying at trial and the other an audio engineer and forensic expert, are prepared to testify that the voice on the call is not Zimmerman, despite the defendant’s claims. Although Zimmerman’s attorneys maintain that the voice belongs to their client, who was crying for help from an alleged attack by Martin, the primary response to the audio experts is to claim that they do not meet the Daubert standards and, therefore, cannot be allowed to testify. Defense attorneys argue audio expertise is not scientifically supported and that the tape could serve to confuse jurors, and hope that the judge’s broad discretion in qualifying experts will disallow the expert testimony.

Without knowledge of the field of audio identification and forensics, it is difficult to say for certain which way a judge will lean, but it appears prosecutors have the upper-hand. Counting against Zimmerman’s defense team is the fact that one expert, Tom Owens, has national renown in the field and has previously qualified as an expert witness. The other expert, Ed Primeau, is a forensic expert specializing in audio engineering – an impressive resume that seems relevant to the case at hand. At first glance it seems that the expert witnesses will be permitted to testify and help jurors identify the voice on the 9-1-1 tape – the evidence is of significant importance and the audio experts in question have strong and previously recognized credentials.

Unquestionably, this pre-trial debate is merely a teaser for the drama to come in the Zimmerman murder trial; however, it presents a high profile example of the importance of expert witnesses and the legal standard to which they are held.

ExpertPages Blog