Category Archives: Research & Trends

Expert Silenced for Giving Truthful Testimony

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

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

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

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

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

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

Sexual Predator Laws

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

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

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

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

Expert’s Study Undermines Premise of Sexual Predator Laws

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

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

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

Padilla’s Expert Testimony

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

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

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

Expert Silenced for Telling the Truth

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

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

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

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

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

 

How Do Jurors Evaluate Expert Opinions?

A study co-authored by professors of psychology and law at the University of New South Wales examined the factors that jurors are likely to consider when they decide whether an expert’s opinion is persuasive. The goal was to determine how jurors “differentiate witnesses who offer genuinely expert opinions from those who do not.”

The study was motivated in part by the consistent use of questionable forensic expert evidence to prove guilt in criminal cases. In Australia as in the United States, innocent defendants are convicted when prosecutors bolster weak cases with expert opinions that are founded on unreliable science — or no science at all.

Understanding how juries might evaluate expert evidence should help lawyers as they select experts and prepare them to testify. An understanding of jury psychology may also help lawyers cross-examine experts to expose testimonial weaknesses that are most likely to matter to jurors. Experts can also benefit from the study by shaping their reports and testimony in ways that are the most persuasive to jurors.

Methodology

After examining existing scholarship in the areas of persuasion generally and jury decision-making specifically, the authors proposed “eight broad attributes that are logically relevant to the merit-based assessment of an expert opinion.” They termed those attributes the “Expert Persuasion Expectancy (ExPEx) Framework.”

The ExPEx Framework suggests that jurors consider these factors when they evaluate expert evidence:

  • Foundation for opinions — whether the field of study upon which the expert relies is sufficiently valid to support the expert’s conclusions
  • Field expertise — whether the expert has sufficient training and experience in the field of study to merit trust in the expert’s opinions
  • Specialty of expert — whether the expert’s training and experience in the field addresses the specific specialty that forms the basis for the expert’s opinions
  • Ability of expert — whether the expert states opinions accurately and reliably
  • Opinion expression — whether the expert’s opinions are stated clearly and with necessary qualifications
  • Support — whether the expert supports opinions with evidence
  • Consistency — whether the expert is consistent with other experts in the field
  • Trustworthiness — whether the expert is personally reliable as a source

The study did not examine actual jurors who consider the testimony of actual witnesses in actual trials. Rather, the authors provided different study participants with different versions of an expert report: a control version plus versions that weakened or strengthened one of the attributes identified above.

In one experiment, the control report was strong as to every attribute. Each of the remaining eight reports weakened a single attribute but made no change to the rest of the report. In a second experiment, the control report was weak while each of the other reports strengthened a single attribute.

In each experiment, roughly fifty participants reviewed the control report, another fifty reviewed a report with a weakened or strengthened attribute, another fifty reviewed a report with a different weakened or strengthened attribute, and so on. About 450 people participated in each experiment.

The reports concerned gait analysis, which purportedly allowed the expert to identify a person on a video recording by the way the person walked. The expert in the strong report was a podiatrist. The expert in the weak report was a hand surgeon. Other attributes were manipulated in similar ways.

Test subjects were asked questions to measure the persuasiveness of the various reports. The questions asked participants to rate “the credibility of the witness, the value of their evidence, and the weight they would give to the opinion” on sliding scales of 1 to 100.

The three ratings were closely correlated to each other. The authors thus combined them into a single “persuasiveness” rating.

Study Results

In the first experiment, the participants regarded the control report as highly persuasive. Weakening the Support attribute made no difference in perception of the report’s strength. Weakening the other attributes had some impact on perceptions of persuasiveness, but perceptions of persuasiveness were significantly affected only by four attributes: Ability, Trustworthiness, Consistency, and Opinion.

In the second experiment, the participants regarded the control report as unconvincing. Strengthening the attributes for Ability or Consistency significantly improved perceptions of persuasiveness. Strengthening one of the other attributes of the weak report had no significant impact on how participants viewed the report.

Perhaps unsurprisingly, the study suggests that jurors are most likely to be persuaded when an expert in the relevant field who is trained and unbiased provides an empirically supported, confident opinion derived from methods that have been endorsed by other experts in the field.

Conversely, jurors are less likely to be persuaded when they consider an empirically unsupported, doubtful, contentious opinion from a novice “hired gun” who is testifying outside his or her field of expertise.

According to the authors, a “strong expert opinion was significantly undermined by a high likelihood of error, disagreement among experts, and questionable integrity. Conversely, a weak expert opinion was significantly improved by a low likelihood of error and agreement among the experts.”

Analysis

Perhaps the most surprising finding is that participants were not particularly concerned with whether an expert supported an opinion with evidence. Instead, “Ability, Consistency and Trustworthiness may be particularly influential attributes.”

Judges in a Daubert regime, of course, focus largely upon the Support attribute. Admissibility depends upon whether the evidence upon which the expert relies is supported by sufficient facts and a reliable methodology.

The study suggests that trial outcomes will be best when the evidence assures jurors that an expert is honest (Trustworthiness), that the expert is stating opinions accurately (Ability), and that the expert’s opinions are consistent with those of other experts in the field (Consistency). Witness preparation that focuses on those attributes might persuade a jury to believe an expert’s opinions.

The authors also acknowledge that decision-making is a subtle art, and that the interplay of the defined attributes might not always be obvious. For example, Confidence and Trustworthiness are both important, but other studies suggest that an expert can enhance Trustworthiness by acknowledging reasons to doubt the expert’s opinion. Since Trustworthiness is a more important attribute than Confidence, acknowledging weaknesses in an opinion might actually strengthen its persuasive value.

 

Disabled man, wheelchair

Life Care Planner Does Not Need Medical Credentials to Testify About Future Healthcare Needs

A jury awarded more than $2.2 million against a negligent rehabilitation facility in Boise, Idaho. The jury found that nursing negligence resulted in the amputation of an elderly woman’s leg. A physician and a life care planner were among the expert witnesses who testified for the plaintiff. The Idaho Supreme Court rejected challenges to the admission of their expert testimony and affirmed the judgment in the plaintiff’s favor.

Facts of the Case

Leila Brauner was 76 years old when she decided to have a total knee arthroplasty. The procedure replaces damaged bone and cartilage with an artificial knee joint. Brauner hoped that the knee replacement would enable her to continue living an independent life.

The procedure was performed in Boise by Dr. Richard Moore, an orthopedic surgeon. Brauner was then transferred to Aspen Transitional Rehab.

About two weeks after the surgery, Dr. Moore noted that Brauner’s knee was swollen. Brauner complained of numbness in her foot. Dr. Moore had an x-ray taken of Brauner’s right leg. He failed to diagnose a fracture in her femur. Dr. Brauner recommended placing ice on the knee and sent her back to the rehab facility.

Blauner’s pain increased. About two weeks after the x-ray, Brauner began to experience confusion during the middle of the night. A nurse noted that her right foot had curled inward and that her pulse rate had increased significantly. Bruising was visible on her leg. Brauner complained that she was in extreme pain and asked the nurses to shoot her.

Brauner’s nursing expert testified that the nurses should have recognized that Brauner’s symptoms demanded immediate medical attention. The nurses at Aspen failed to call a doctor.

About two hours later, Brauner’s leg was cold to the touch, her skin was pale, and no pulse could be detected in her foot or ankle bone. Brauner demanded that she receive emergency care. She was transferred to a hospital, where doctors determined that her fractured femur had severed the femoral artery. A surgeon amputated the leg at the thigh.

Expert Witness Disclosure

Brauner sued Dr. Moore and Aspen for medical malpractice. The trial judge set deadlines for expert witness disclosure.

Brauner settled her claim against Dr. Moore. She disclosed Dr. Moore as one of her expert witnesses. Three days later, she amended the disclosure to specify that he would testify about the steps he would have taken if he had been informed of Brauner’s condition when nurses first noticed her inward-curling foot and other symptoms.

Brauner also disclosed her intent to call Michelle Nielson Cook to testify about future damages. Cook is a certified life care planner.

Cook prepared a life care plan detailing the future expenses that Brauner would need to incur to cope with her amputated leg. She revised that plan after reviewing it with Brauner’s treating physician. The revised version was disclosed as her expert report.

After her report was disclosed, Cook shared it with the surgeon who performed Brauner’s amputation. He confirmed Cook’s findings.

During her deposition, Cook acknowledged that she made notes on the first draft of the report when she spoke to Brauner’s treating physician and used those notes to help her prepare the revised report. Brauner refused to produce the draft report with the notes because earlier drafts of an expert report are not discoverable in Idaho. During the deposition, Cook testified extensively about the information she received from the treating physician.

Shortly before trial, Cook prepared an amended report. The primary revisions included a reduction in medical damages to conform to a court ruling, a mention of her discussion with the surgeon who performed the amputation, and an itemization of the medical information that she relied upon in preparing the report. The medical information was all contained in medical records that had previously been disclosed.

The amended report was provided to Aspen the day before trial began. Aspen moved to exclude it on the ground that it was untimely and for lack of foundation. The court admitted the report over objection.

Challenges to Life Care Planner’s Prediction of Future Medical Needs

On appeal, Aspen argued that Cook was not qualified to testify about the medical necessity for future health care expenses that resulted from the amputation. The appellate court noted that decisions in some states have required medical necessity to be proved by a medical expert, while other courts have permitted life care experts to base their testimony on their own expertise in reviewing medical records, coupled with confirmation of medical necessity by a physician.

The Idaho Supreme Court followed the latter rule. The court noted that experts can generally rely upon facts to form an opinion if facts of a similar nature are reasonably relied upon by experts in the same field. That rule suggests that life care planning experts can rely on medical records and the opinions of physicians to form an opinion, since that is information that life care planners reasonably rely upon to form opinions.

Since Cook followed a reasonable methodology and considered reliable facts in reaching her opinion, the opinion was admissible under Idaho law.

Challenge to Scheduling Order Violation

Aspen objected to Cook’s amendment of her report on the eve of trial. The trial court noted that experts have a duty under Idaho law to supplement their reports if their opinions change.

The amendment was necessary because the trial judge ruled that medical expenses should be based on the amount that would actually be paid, not on the amount that would be billed. The appellate court noted that the judge’s ruling was wrong, but given that ruling, Cook had a duty to amend her report to reflect the calculation that the court required.

While the supreme court expressed concern that Cook waited so long to amend the report, it concluded that the trial court did not abuse its discretion when it decided not to strike the amended report. Since the report revised downward the estimate of future healthcare costs, the amendment did not prejudice Aspen. In fact, the appellate court was puzzled that Aspen was challenging an amendment that worked to its benefit.

Failure to Disclose Expert’s Notes

When Cook spoke to Brauner’s physicians about the initial draft of her expert report, she made notes in the margins of that report. Brauner’s refusal to produce the notes triggered a dispute as to whether the notes were part of the draft and thus not discoverable under Idaho law, or whether they were discoverable regardless of the document on which they were written.

Brauner assured the court that Cook’s testimony about the notes during her deposition was complete, even though she did not read the notes into the record. The supreme court concluded that the trial judge should not have accepted that representation, but should have reviewed the notes to determine whether they were a discoverable compilation of information for possible use in the case, or notes which were created with the expectation that they would be used in the final report. Facts in the former category are discoverable while facts in the latter category are not.

The district court’s failure to engage in the required analysis was nevertheless harmless. The only notation that could arguably have changed Aspen’s cross-examination was an “oblique reference” to the possibility of living at home. However, uncontradicted evidence established that Brauner’s attempt to live independently after her amputation was unsuccessful. Since production of the notes would not have affected the trial, the court’s error did not require the judgment to be reversed.

Dr. Moore’s Expert Testimony

Dr. Moore was designated as an expert, but not as a retained expert. Accordingly, Idaho law did not require him to prepare an expert report. Brauner satisfied Idaho law by providing a statement about the subject matter of Dr. Moore’s anticipated testimony.

Brauner made a timely disclose of Dr. Moore on the last day permitted by the scheduling order, as modified by agreement of the parties. On the next business day, Brauner amended the disclosure to add that Dr. Moore would testify about measures he would have taken if Aspen had immediately informed him of Brauner’s symptoms.

The trial court excused the belated amendment because it did not prejudice Aspen. The Idaho Supreme Court sensibly decided that being one day late in a disclosure that comes months before trial could not have affected Aspen’s ability to defend the case. While some courts take a more rigid view of deadlines, the Idaho approach recognizes that justice is served when parties are allowed to present important evidence and that strict adherence to deadlines should not stand in the way of doing justice.

 

Courtroom

Should Elected Officials Be Permitted to Testify as Experts in Community Standards?

In an ideal world, elected officials would be experts in public policy. Since no politician can have in-depth knowledge about every policy issue that might come before the government, even the most informed officials rely on information provided by experts to guide their decisions.

In the real world, elected officials need no policy expertise at all. They only need to know how to get elected. To win an election, however, politicians need to have a sense of how voters feel about issues that are significant in the community. Does the ability to win elections make elected officials experts on a community’s beliefs?

Ocean City, a resort town in Maryland, is relying on its mayor and a member of the town council as experts in “community sensibilities.” Plaintiffs who filed a lawsuit challenging a town ordinance contend that winning an election is not a sufficient qualification to testify as an expert witness.

Lawsuit Against Ocean City

In June 2017, Ocean City’s elected officials enacted an emergency ordinance prohibiting females, but not males, from going topless on beaches and in other public areas. While the nature of the emergency is not entirely clear, the ordinance was swiftly challenged by gender equality advocates who contend that women have just as much right as men to uncover their upper bodies when they visit the beach.

Most laws that require women to wear a top target clubs that feature nude dancing. Courts have recognized that dancing is a form of expression that enjoys First Amendment protection, although the Supreme Court has upheld narrow bans against nude dancing that are not intended to curtail expressive conduct.

Challenges to laws banning women from exposing their upper bodies in public areas, as opposed to private clubs, have been premised on the argument that the ordinances infringe “a women’s constitutional right not to be discriminated against on the basis of gender.” Proponents of the ordinances counter that women are anatomically different from men. They contend that female breasts, unlike their male counterparts, are inherently sexual. They accordingly argue that a traditional understanding of morality allows communities to impose anatomically-based restrictions on women that do not apply to men.

Legal challenges to bans on appearing topless in public have met with mixed results. In 1992, New York’s highest court applied the accepted rule that laws may only treat genders differently if the differential treatment serves an important governmental interest. The court noted that the prosecution offered no evidence that a topless ban served an important governmental interest, but ducked the constitutional question by ruling that the law did not apply to women in public places.

A district court in Colorado granted a preliminary injunction against a Fort Collins ordinance that prohibited women from exposing their breasts to public view. The Court of Appeals for the Tenth Circuit affirmed that decision because no governmental interest advanced by the city was sufficiently important to override the right to equality. The fact that some people are bothered when women exercise the same rights as men is not, in the court’s view, a legitimate reason to treat women unequally.

The Court of Appeals for the Fourth Circuit, addressing the question in less depth than the Tenth Circuit, concluded that the differential treatment of men and women served an important governmental interest by “protecting the moral sensibilities” of a “substantial segment of society.” For much the same reason, several state and federal district courts have upheld ordinances that required women, but not men, to cover their breasts in public.

The Fourth Circuit decision and others like it have been criticized for elevating the values of an unmeasured “segment of society” above the ability of women to exercise the same rights as men. Regardless of an individual’s own view of toplessness, court decisions that uphold topless bans depend on the assumption that community sensibilities are offended by breast exposure. The parties in the Ocean City lawsuit therefore turned to expert witnesses to define those sensibilities.

Plaintiff’s Expert Witness

The challengers to the Ocean City ordinance are making their case with the help of Dr. Debra Herbenick, a professor and director of the Center for Sexual Health Promotion at Indiana University-Bloomington. Dr. Herbenick prepared an expert report that criticizes the rationale underlying the ordinance.

According to Dr. Herbenick, Ocean City failed to account for significant similarities between male and female breasts. The primary biological difference is the ability of the female breast to manufacture milk.

Dr. Herenick opined that Ocean City overstated the “sexualization” of female breasts, given the absence of any biological distinction that makes female breasts any more sexual than male breasts. That opinion tracks the Tenth Circuit’s observation (and Judge Rovner’s dissenting opinion in a Seventh Circuit case) that arguments about public sensibility “boil down to a desire to perpetuate a stereotype” about the sexualization of female breasts.

Citing peer-reviewed studies, Dr. Herbenick noted that public sensibilities have changed and that topless women are less likely to be regarded as shocking to public sentiment than was true in the past. However, Dr. Herbenick relied on nationwide studies of thousands of people. She did not survey town residents, whose sensibilities could be more prudish than the nation’s as a whole.

Finally, Dr. Herbenick pointed out that restricting the freedom of women when that same freedom is granted to men may cause harm to girls and women by unduly focusing their attention on characteristics that society regards as sexual.

Challenge to Ocean City Experts

Ocean City filed a motion for summary judgment, asking the court to rule that the ordinance does not violate the Constitution. The plaintiffs responded by asking the court to exclude the testimony of three individuals who expressed opinions about public sensibilities in Ocean City. Two of those, the mayor and a city council member, are elected officials. The third was the president of the local Chamber of Commerce.

The plaintiffs argued that town’s witnesses are not qualified to provide expert evidence. Unlike Dr. Herbenick, who relied on peer-reviewed studies of public perceptions, the town’s three witnesses based their testimony on impressions that they formed by speaking to town residents. They took no surveys and adopted no methodology to assure that the residents with whom they spoke represented a fair cross-section of the community.

In the end, neither the plaintiffs nor the town presented evidence that statistically documents the specific sensibilities of town residents. Neither Dr. Herenick’s reliance on nationwide surveys nor the anecdotal evidence offered by the elected officials can be viewed as a reliable measurement of public opinion in Ocean City.

It seems likely that the judge will rule that politicians are situated to give lay opinions about public sentiment and that those opinions are admissible, even if they are not expert evidence. Based on the judge’s decision denying a motion for a preliminary injunction, it seems likely that the court will rule that public sentiment is a justification for treating women differently from men. If he does so, he will probably rely on testimony from town politicians in ruling that the ordinance is constitutional because it serves an important governmental interest.

 

Police

The Psychology of Deadly Force Debate

As the use of psychology in the defense of police officer shootings becomes more common, a debate has arisen over whether it is appropriate to allow expert testimony on the connection between stress and deadly force.

Defense of Jason Van Dyke

Jason Van Dyke was a white police officer who shot Laquan McDonald, a black teenager from Chicago’s West Side in 2014. Van Dyke shot McDonald 16 times within seconds of exiting his police vehicle. McDonald was holding a knife that he had reportedly used to damage the police vehicle.  However, McDonald was already walking away from the police when he was shot. The entire shooting was filmed by another police vehicle’s dashboard camera. Van Dyke was charged with first-degree murder and numerous other charges in connection with the shooting.

At Van Dyke’s trial, Florida police psychologist Laurence Miller took the stand in his defense. Miller holds a Ph.D. from CUNY’s department of psychology, where he specialized in neurocognition. He has his own private practice in Florida and has been consulting with police departments for almost 20 years.

Miller asked the jurors to focus on Van Dyke’s perception of the shooting. He explained that life-and-death situations can cause the body’s stress response to distort cognition, perception, and memory. Miller opined that this stress response can lead to a “deadly force mindset” in police officers, where the officer will feel that his or her only option is to kill or be killed.

The jury ultimately found Van Dyke guilty of 16 counts of aggravated battery and second-degree murder, which is a lesser charge than first-degree murder. This lesser verdict may suggest that the jury believed Miller’s contention that Van Dyke perceived himself to be in danger.

The Argument Against Allowing Deadly Force Psychology

When a criminal defendant is not a police officer, courts tend to skeptical about the admissibility of “mindset” evidence or other testimony from psychologists to excuse violent behavior. Courts seem inclined to believe that psychologists should be permitted to testify about what probably motivated a police officer to shoot a nonthreatening suspect.

However, the psychology of deadly force is not an exact science. Some psychologists question the connection that stress has to deadly force. While police officers do experience cognitive and perceptual impairments such as tunnel vision or dissociation during deadly encounters, researchers do not know much about how stress affects an officer’s decision to use deadly force.

Psychologist Phillip Atiba Goff, a professor at the City University of New York’s John Jay College of Criminal Justice and cofounder and president of the Center for Policing Equity, a think tank that studies racial disparities in criminal justice policy, commented: “The defense used what seems to be an exculpatory argument, though not actual data, to say, ‘You shouldn’t be responsible because this is the level of stress on the job’… This is a bad area for science to be in.” Many people have stressful jobs, but courts do not routinely allow a “stress” defense to murder when the defendant is not a police officer.

Kimberley McClure, a professor of psychology and law at Western Illinois University noted that stress responses are highly individualized. McClure said that Miller should have to clearly establish the factors that may have activated the HPA-axis during the seconds before Van Dyke got out of his car. Little peer-reviewed research connects perceptive distortions to the decision to fire a lethal weapon. McClure noted that expert witnesses have the responsibility to help judges, attorneys, and juries understand the knowledge that is out there, but cautioned that experts should also have “an appreciation for gaps in the information we have.”

PTSD

Judge Orders Mental Health Treatment Recommended by Defense Expert Witness

A Pennsylvania judge has taken the advice of an expert witness and ordered a specific regimen of mental health treatment for a defendant who has been sentenced to state prison time.

The Crime

On June 17, 2016, 31-year-old Calvin McDonald from Allegheny County, Pennsylvania got into an argument with his girlfriend at their residence. McDonald duct-taped and tied up his girlfriend with rope, choked her, and threw her into the back of their minivan. McDonald drove around for hours, going as far as Wheeling, West Virginia. The couple’s two children were also in the vehicle.

When McDonald later returned to his residence, his girlfriend was able to communicate with a neighbor through an upstairs window to call the police.

The Trial

During his trial, forensic psychologist Shannon Edwards testified that McDonald suffered from  post-traumatic stress disorder. Edwards also testified that McDonald was in a dissociative state during the incident.

A jury found McDonald guilty but mentally ill on five counts, including aggravated assault, kidnapping, and false imprisonment. The jury acquitted McDonald of sexual assault, endangering the welfare of children and criminal attempt of homicide.

The Sentencing

Judge Alexander P. Bicket of the Allegheny County Court of Common Pleas sentenced Calvin McDonald to 5 to 10 years in state prison. Judge Bicket also ordered the state to provide McDonald with the specific mental health regimen recommended by defense expert witness Shannon Edwards.

Edwards recommended that McDonald receive the psychotropic drugs already prescribed to him, individual and group counseling, and other kinds of therapy. Edwards also requested that Judge Bicket reevaluate McDonald’s mental health after one year. Edwards said that McDonald will regress if he does not continue to follow his current treatment regimen.

Mental Health Courts

Allegheny County is one of the many counties that has mental health courts that deal with nonviolent offenders whose psychiatric problems are the underlying factors in their criminal cases. In Allegheny County, the mental health court is designed to divert individuals with non-violent criminal charges who have a documented diagnosis of a mental illness to community based services; maintain treatment, housing, benefits, supervision and community support services for the individual; maintain effective communication between the criminal justice system and mental health system; and support public safety.

Benefits of mental health courts include giving an offender the opportunity to be released from jail and placed in mental health services/treatment in lieu of incarceration. An offender who is placed on probation by a mental health court is supervised  by a special services probation officer and receives support from an Office of Behavioral Health Mental Health Court probation liaison.

However, mental health court is only available to defendants with a documented diagnosis of a mental disorder, mental disability or dual-diagnosis with a mental disorder and substance abuse who is charged with committing a misdemeanor and/or non-violent felony in Allegheny County and is awaiting trial and/or sentencing.

Judge Bicket’s ruling is an example of how mental health court principles might be applied to prisoners with mental health issues who have committed violent felonies.

$1.5 Million Verdict Attributed to Excessive Expert Witness Payments

A Florida jury has ruled in favor of a plaintiff who filed a suit against his insurance company to receive what he believed to be the full amount owed to him under his policy. The plaintiff believes that the $1.5 million jury verdict in his favor is attributable to the insurance company’s hiding its excessive payments to an expert witness.

The Injuries

On November 12, 2015, Jeffrey Wolfson was in a car crash in Fort Lauderdale.  Wolfson  experienced a number of debilitating injuries in the crash. Wolfson underwent neck surgery as a result of his accident, in addition to one that he had previously had. Wolfson’s attorney, William Ruggiero, argued that these surgeries are likely to hasten the wear and tear on surrounding discs. Wolfson also suffered a fracture on the vertebra in his lumbar spine, an eye injury, and a mild concussion.

Because the other driver was not insured, Wolfson made a claim against his insurance carrier, Liberty Mutual Insurance, based on his uninsured motorist coverage. Wolfson and Liberty Mutual were unable to come to an amicable settlement, so Wolfson filed a complaint against them in Broward Circuit Court.

The Lawsuit

Wolfson alleged that Liberty Mutual “failed, refused and otherwise neglected” to compensate Wolfson according to the terms of his policy. His policy states that Liberty Mutual is responsible to “pay all covered losses resulting from the negligence of an uninsured and/or underinsured driver.”

Liberty Mutual argued that Wolfson’s injuries were not as severe as he alleged and presented evidence that the medical treatment he obtained was unnecessarily expensive. The company also suggested that plaintiff’s injuries were due to aging and degradation, rather than caused by the accident.

Liberty Mutual hired a neurologist, ophthalmologist, radiologist, and two orthopedic doctors to bolster its case. Ruggiero says that the radiologist, Dr. Steven Brown, may have played a large role in the favorable verdict for his client.

Initially, Dr. Brown, was deposed by video because he said that he was not available to give testimony at trial. Ruggiero subpoenaed the doctor to appear in court in-person. Dr. Brown said he was unavailable. Ruggiero then asked how much Dr. Brown was being paid for his services. When the court ordered the parties to reveal the amounts, Liberty Mutual revealed that it was paying Dr. Brown $58,000 to testify at trial.

Ruggiero says that the jury’s verdict is largely attributable to the size of Liberty Mutual’s payment to Dr. Brown and its subsequent concealment. Ruggerio said, “I think people were turned off by that number… I’ve been doing this for 28 years and have never seen anything like that number; it was just too big!” Ruggiero noted that Liberty Mutual had paid the ophthalmologist $23,000 and the neurologist $7,000.

The jury awarded Wolfson $1,579,629 total damages: $219,629 in past medical expenses, $150,000 in future medical expenses, $450,000 for past lost earnings, and $360,000 for future lost earnings.

Florida Computer Expert Arrested for Lying About Credentials Under Oath

Florida Supreme Court Rejects Daubert— Again

As ExpertPages reported last year, the Florida Supreme Court declined to adopt the Daubert standard of expert witness admissibility after the Florida legislature added it to the state Evidence Code. The Florida Supreme Court has the power to determine procedural rules that govern Florida’s court system and can reject legislation that invades that domain.

The court typically defers to legislation that changes court procedures, but reserves the power to overturn procedural legislation when it has doubts about its constitutionality. The court expressed concerns about the impact that Daubert has on the right to a jury trial because it substitutes a judge’s view of an expert’s testimony for a view that a jury might reasonably take.

Opponents of Daubert argue that it is the jury’s function to determine the credibility of witnesses. Proponents of Daubert make a distinction between the reliability of an expert’s methodology and the expert’s credibility.

Since an expert’s credibility typically hinges on the reliability of an expert’s methods, there is good reason to question whether the distinction is illusory. The Florida Supreme Court, in choosing not to adopt Daubert, placed its faith in juries to decide whether experts form their opinions in a reliable way.

The court’s decision in 2017 not to adopt Daubert as a rule of evidence avoided ruling on whether the legislature’s 2013 addition of the Daubert standard to the Evidence Code violated the Florida Constitution. That issue came before the court in DeLisle v. Crane because Florida’s Fourth District Court of Appeal ruled in 2016 that a trial court erred by not applying Daubert to exclude expert evidence.

Facts of the Case

Richard DeLisle developed mesothelioma, a form of cancer that is caused by inhaling asbestos fibers. He sued a number of businesses that may have exposed him to asbestos. His case went to trial against three defendants. Two other potential sources of asbestos exposure were included on the verdict form.

The jury found that all five entities named on the verdict form, including the three defendants, were responsible for DeLisle’s mesothelioma. The verdict against Lorillard Tobacco was based on evidence that DeLisle smoked Kent cigarettes in the 1950s. The filters in Kent cigarettes at that time contained asbestos. The filters were supplied by a former subsidiary of Hollingsworth and Voss Co. (“H & V”). The jury’s verdict against H & V was based on its use of asbestos in cigarette filters. The verdict against Crane Co., a manufacturer of valves and pumps, was based on its use of gaskets that contained asbestos.

One of DeLisle’s experts testified that every exposure to asbestos during a lifetime substantially contributes to mesothelioma. Two of his experts testified that low level exposures to the kind of asbestos used by Crane might not substantially increase the risk of mesothelioma.

Lorillard and H & V moved to exclude the causation testimony of four expert witnesses: a toxicologist, an environmental scientist, a pulmonologist, and an industrial hygienist. The companies argued that the testimony did not satisfy the standards of Daubert contained in the state statute that the legislature enacted. The trial court held a Daubert hearing and admitted the testimony.

The jury returned a verdict of $8 million. The jury apportioned 22% of the fault to H & V, 22% to Lorillard, and 16% to Crane. The remaining fault was attributed to the two entities that were not on trial. The trial court rejected all challenges to the verdict and entered judgment in favor of DeLisle.

The court of appeals reversed the judgment after concluding that the trial court failed to exercise its gatekeeping function under Daubert. The state supreme court agreed to review the decision to determine whether the legislature violated the principle of separation of powers by making a procedural change to the rules of evidence.

Supreme Court’s Rule-Making Power

The Florida legislature adopted the Florida Evidence Code in 1979. The Florida Supreme Court, while questioning the legislature’s power to impose procedural rules on the Florida court system, used its rule-making authority to adopt the Evidence Code to the extent that the Code’s provisions were procedural. The supreme court adopted the Code to avoid prolonged battles as to which of its sections address substantive law and which are procedural.

Since 1979, the supreme court has generally adopted legislative changes to the Evidence Code. In 2000, however, it declined to adopt a rule that would have allowed former testimony of a witness to be admitted at a criminal trial, even if the witness was available to testify. That rule would have violated a defendant’s constitutional right to confront witnesses, as the court decided three years later when it reversed a trial court decision that admitted testimony under the legislature’s rule.

The supreme court subsequently declined to adopt other procedural rules enacted by the legislature, including a rule that would have rendered inadmissible the testimony of out-of-state experts in medical malpractice cases unless the experts subjected themselves to disciplinary review by the Florida Board of Health. Last year, the court declined to adopt the legislature’s addition of the Daubert rule to the Evidence Code.

Substance v. Procedure

The Florida Supreme Court formally adopted the Frye standard to determine the admissibility of expert opinions in 1989. The Frye test equates an opinion’s reliability with the expert’s use of a generally accepted methodology to arrive at that opinion.

The U.S. Supreme Court replaced the Frye standard with the Daubert standard in 1993. While proponents of the Daubert test argue that it keeps “junk science” out of the courtroom, the Florida Supreme Court declined to adopt Daubert because (as it explained in a 1997 decision) it viewed Frye as a stricter test that was more likely to assure the reliability of expert evidence.

As the Florida Supreme Court explained: “Frye relies on the scientific community to determine reliability whereas Daubert  relies on the scientific savvy of trial judges to determine the significance of the methodology used.” Since judges are not scientists, the court deemed Frye to be the better test for judging reliability.

Responding to demands made by lobbyists for the insurance industry and other corporate interests, the Florida legislature adopted Daubert  in the Evidence Code. However, the Florida Constitution requires a two-thirds legislative majority to change the Florida Supreme Court’s procedural rules. The vote in the Florida House fell well short of that margin.

The supreme court decided that a rule governing the admissibility of expert testimony is procedural. Substantive rules create, define, or regulate substantive rights while procedural rules regulates the actions of litigants in court proceedings. There is no substantive right to present the testimony of a particular expert. Rather, courts decide whether to admit expert testimony by following a procedure that determines whether the testimony is reliable.

Under the Florida Constitution, it is the Florida Supreme Court that is empowered to define court procedures. The court decided that the legislature unconstitutionally infringed upon that procedure by adopting the Daubert  standard. Florida will therefore continue to use the Frye standard to determine the admissibility of expert opinions.

Court Reinstates Verdict

Given the Florida Supreme Court’s refusal to use its rulemaking authority to adopt Daubert after the legislature amended the Evidence Code, it should come as no surprise that the supreme court reversed the court of appeals’ reliance on the legislatively-adopted Daubert  standard.

The supreme court noted that Frye only excludes opinions that are based on new or novel methodologies that the scientific community has not accepted. In all other cases, it is the jury’s role to assess the reliability of expert testimony.

The supreme court held that medical causation testimony concerning mesothelioma is not new or novel and is therefore not subject to the Frye standard. Nor does an assessment of the risk of harm caused by substances containing asbestos depend on new or novel methods of analysis.

One expert’s disagreement about the reliability of another expert’s methodology is exactly the kind of factual dispute that juries should resolve. The court concluded that judges should not usurp the jury’s role in “choosing between legitimate but conflicting scientific views.”

Gun

New Study Challenges Traditional Procedures Following Police Shootings

A new study has challenged the traditional practice of allowing an officer time to “cool-off” before giving a statement following a police shooting.

Recovery Time Following Shooting

Traditionally, when a police officer is involved in a shooting, the officer is given a period of time to recover before providing his or her statement. The International Association of Chiefs of Police “Officer-Involved Shooting Guidelines” recommends that “Officers should have some recovery time before providing a full formal statement… An officer’s memory will often benefit from at least one sleep cycle prior to being interviewed leading to more coherent and accurate statements.”

This recommended waiting period is mandated by rules or laws in many jurisdictions. Other police departments have agreements with police unions to honor the waiting period. This waiting period is recommended by Bill Lewinski, a behavioral scientist who many police officers believe to be the definitive expert on interviewing officers after shooting. Lewinski is a professor emeritus of Law Enforcement at Minnesota State University and the founder and director of the Force Science Institute, a research, consulting, and training organization focused on human behavior in use-of-force situations.

Lewinski has studied police use-of-force issues since 1975 and has opined that “delay enhances an officer’s ability to more accurately and completely respond to questions.” Lewinski has recommended “a recovery period of at least 48 hours before being interviewed in depth.”

Of course, if delay after a stressful event enhances memory, one might expect the police to delay interrogations of the people they arrest for shootings for 48 hours to give their memories a chance to improve. That isn’t their practice, because the real benefit of delay to a shooter is the opportunity to fabricate a coherent and innocent explanation of the shooting.

New Study by Criminologists

Criminologists Geoff Alpert, Louise Porter, and Justin Ready conducted a study to test the theory that a police officer’s memory will benefit for a cooling-off period. The study involved 87 police officers who participated in a live active-shooter simulation in an abandoned building. The officers were divided into two groups: half were interviewed immediately after the shooting and the other half was interviewed two days later. The first group was also interviewed two days later, to see how their memory performed in a second interview.

The interview process consisted of 19-multiple choice questions related to the shooting. Nine questions were related to the threat and 10 questions were about nonthreatening details. Following the interviews, the researchers concluded that the officers’ cognition “did not seem to be directly affected by how recently they had experienced the scenario, and no significant improvement was evident after two days either between or within groups.”  The researchers noted that the “recall of non-threat related information was significantly better in the immediate condition compared with the delayed condition.”

The researchers concluded that early questioning can aid memory retention. They stated, “We did not find any evidence … that delay improves either recall or cognitive capability that could indicate enhanced ability to respond to questioning.”

Lewiniski criticized the study and its use of multiple-choice questions to evaluate accuracy of memory and stress levels. Lewinski suggested that a more realistic study would involve heart rate and pulse monitors and trained cognitive interviewers. Lewinski also noted that the study did not take into account that many officers have worked long hours before the time of a shooting or post-event interview, which harms cognitive abilities. Notably, Lewinski has not conducted the “improved” studies to determine whether the results would support his theory that delayed interrogation following a stressful event improves memory.

New Mexico

New Mexico Supreme Court Denies Request to Limit Defense Expert’s Access to Evidence

The New Mexico Supreme Court recently denied the state Attorney General’s request to prevent defense experts from using their own facilities and equipment to analyze evidence in a child pornography prosecution. The Attorney General argued that expert witnesses should use the government’s computers and should examine the evidence in government facilities. The case raises troubling questions about the efforts of prosecutors to hinder the work of defense experts whose analysis of evidence may reveal that no law was broken.

Expert testimony is essential in child pornography cases because Congress can only prohibit the possession of pornography involving actual children. It is not unlawful to possess a drawing or painting of a child that is a product of an artist’s imagination. By the same token, it is not unlawful to possess a digitized image of a child who is not real. Discerning the difference between a digitized photograph of a real child and a digitally created image of a child who isn’t real requires careful expert analysis. Hindering experts from performing that analysis risks the conviction of defendants who committed no crime.

Federal Law and Expert Witnesses

Everyone agrees that when child pornography is used as evidence in a criminal case, the evidence should not be distributed to the public. Possession of child pornography, after all, is illegal.

In federal cases, the U.S. Justice Department went a step further by arguing that defense attorneys should not be given copies of the evidence against their clients in child pornography cases because defense lawyers cannot legally possess it. That position made it difficult for defense lawyers to share the evidence with expert witnesses, who sometimes discover that the images seized from defendants do not depict children, or even real people, and that they are not in fact illegal to possess. A cynic might suspect that undermining the ability of defense experts to challenge the prosecution’s evidence is exactly why the Justice Department does not want to share its evidence.

When defense attorneys pointed out that prosecutors were in possession of suspected child pornography and asked why prosecutors could possess it if defense lawyers couldn’t, the answer was typically “Because we’re the government and you’re not.” Courts did not always view that as a sensible answer. Some courts required prosecutors to give copies of the evidence to defense attorneys, so that expert witnesses could examine the images using the equipment in their facilities, subject to protective orders that prevented the release of the evidence to anyone else.

When courts began to give defendants meaningful access to evidence, the Justice Department asked Congress to pass a law making prosecutors the “custodians” of suspected images of child pornography and prohibiting defense attorneys from obtaining copies of those images. The law served no important public policy, since nobody seriously believed that defense attorneys or their experts were violating protective orders by distributing allegedly pornographic images to the public. Many defense attorneys suspected that prosecutors simply wanted to make it harder for defendants to have a fair trial by preventing defense experts from conducting a meaningful analysis of the evidence. As it usually does, however, Congress gave the Justice Department what it wanted.

In other cases, when evidence has been seized from a defendant, federal discovery rules requires the government to give a copy of that evidence to the defense. Congress enacted an exception to that law that applies to child pornography. A federal statute now provides: “(1) In any criminal proceeding, any property or material that constitutes child pornography . . . shall remain in the care, custody, and control of either the Government or the court.” Of course, whether evidence “constitutes child pornography” is exactly the issue that defense experts analyze and that juries must decide, but prosecutors read the law as if it says “any property or material that the government alleges is child pornography.” Courts generally seem to be fine with that interpretation, given that the obvious intent of the federal law is to keep evidence out of the hands of defense attorneys and their experts.

Challenges to Federal Law

Most challenges to the federal law have failed. The law requires prosecutors to give defense attorneys and their experts ample opportunity to examine the evidence at a place chosen by the government, which is usually a conference room in the U.S. Attorney’s office or at the local FBI office. Inspection is usually overseen by a law enforcement agent. Courts have occasionally sided with defense attorneys who argue they were not given sufficient time to analyze the evidence, but courts have not often been receptive to complaints that lawyers should have been given access to the evidence outside the confines of a government office.

Occasionally, however, courts have recognized that expert witnesses cannot conduct a meaningful analysis of the evidence without testing it in the expert’s own facilities. In one case, for example, a computer forensic expert and two digital video experts “described the great cost and effort that would be required to conduct their analyses in a Government facility,” including the expense of moving a large truckload of equipment to the government office and the risk of damaging the equipment during the move. The court sensibly ordered the government to give the expert a mirror image of the defendant’s hard drive so that the experts could analyze it in their own offices.

Notably, prosecutors have sometimes given their own experts unrestricted access to the evidence while limiting the access provided to defense experts. Courts have been appropriately critical of the assumption that private experts hired by the government are more trustworthy than private experts hired by the defense, although federal prosecutors have brazenly argued that private experts somehow become the government when they are hired by the government. At least one court rejected the argument that retained experts are government employees.

New Mexico Court Sides with Defense

The federal law that makes the government the custodian of child pornography evidence only applies to federal prosecutions. A few states have enacted similar laws, but state courts are generally free to safeguard the rights of defendants by entering protective orders when defense attorneys want experts to review the evidence in their own facilities.

Recognizing the important role played by expert witnesses in child pornography cases, a judge in Bernalillo County, New Mexico ordered the prosecution to provide copies of images seized from the defendant to the defense expert. The New Mexico Attorney General asked the state supreme court to reverse the order on the bizarre theory that prosecutors would be violating the law by following the court’s order. The concern that prosecutors will prosecute prosecutors for obeying a judge’s order, an act that clearly immunizes them from prosecution, did not persuade the state supreme court to overturn the judge’s ruling. The court denied the Attorney General’s effort to prevent the defense expert from conducting a fair analysis using the expert’s own equipment.