Category Archives: Research & Trends

Disabled man, wheelchair

Suit Claims Requiring Disabled Attorneys to Present Experts is Discriminatory

A new suit filed in California district court claims that the California State Bar discriminates against attorneys with mental disabilities by requiring them to present expert witnesses to attest to their condition when they are facing discipline.

The Requirement

The Rules of Procedure of the State Bar of California outlines ten mitigating factors that a respondent may rely upon in disciplinary proceedings. Standard 1.6(d) specifies that “Mitigating circumstances may include:…(d) extreme emotional difficulties or physical or mental disabilities suffered by the member at the time of the misconduct and established by expert testimony as directly responsible for the misconduct, provided that such difficulties or disabilities were not the product of any illegal conduct by the member, such as illegal drug or substance abuse, and the member established by clear and convincing evidence that the difficulties no longer post a risk that the member will commit misconduct.”

The Lawsuit

On June 24, 2021, Michael Potere filed a lawsuit against The Board of Trustees of the State Bar of California and Donna S. Hershkowitz, the Interim Executive Director of The Board of Trustees of the State Bar of California.

Potere is disabled according to the definition provided by the Americans with Disabilities Act, which defines disability as “a physical or mental impairment that substantially limits one or more of the major life activities” or the individual in question and “mental impairment” to include “any mental or psychological disorder, such as…emotional or mental illness.” Potere has been diagnosed by numerous medical professionals as suffering from depression or major depression.

Potere claimed that he was harmed by Standard 1.6(d) because he was financially unable to hire an expert witness in his California State Bar Court proceedings. Because he was unable to provide an expert witness, the Hearing Department and the Review Department both found that Potere failed to prove that his mental disability caused his misconduct.

In his suit, Potere claimed that Standard 1.6(d) discriminated against persons with disabilities because it is the only group of respondents who are required to use expert testimony to establish a mitigating circumstance. Additionally, the respondents would be required to provide that expert witness at their own expense.

Potere points out that California is the only state that requires disabled respondents to hire an expert witness to prove that they have a disability. Every other state either follows the ABA Standard 9.32(i), which requires only “medical evidence,” or has no evidentiary requirement at all.

Potere argues that Standard 1.6(d)’s heightened evidentiary burden for disabled respondents violates their constitutional right to due process and equal protection, along with their right to be free from discrimination based on their disability pursuant to the American with Disabilities Act.

Potere brought the lawsuit on behalf of himself and those similarly situated. He asked for the court to issue a declaratory judgment that Standard 1.6(d) violates the due process and equal protection clauses of the U.S. Constitution and violates Title II of the Americans with Disabilities Act. Potere also asked the court to permanently enjoin The State Bar of California for using or enforcing Standard 1.6(d) as it is currently written.

Supreme Court Building in DC

Federal Advisory Committee Considers Significant Change to Rule 702

After the Supreme Court’s Daubert decision, judges may only admit expert testimony that is based on a reasonable methodology. A question that divides federal courts is whether expert opinions should be admitted if a jury could reasonably regard the expert’s methodology as reasonable even if the judge doesn’t. A federal advisory committee may soon propose a change in the rule that resolves that question in favor of judges rather than juries.

A Brief History of Rule 702

Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. The first version of the rule, adopted with the other Rules of Evidence in 1973, allowed qualified witnesses to express expert opinions if their “scientific, technical, or other specialized knowledge” would “assist the trier of fact to understand the evidence or to determine a fact in issue.” The rule made the expert’s qualifications a matter of “knowledge, skill, experience, training, or education.”

The rule said nothing about the judge’s role in determining whether the expert’s opinions were reliable. When Rule 702 was adopted, federal courts followed the Frye standard of admissibility. Using that standard, courts admitted expert opinions based on scientific techniques that were, in the judge’s opinion, “generally accepted” as reliable in the relevant scientific community.

The Frye standard prevented juries from hearing opinions that were based on new or novel theories that, while reliable, were not yet generally accepted. The standard therefore kept juries from hearing reliable evidence that might help them decide the case. At the same time, the Frye standard allowed juries to hear unreliable testimony because courts had been ruling for years that the testimony was “generally accepted” as reliable. The Frye standard was particularly harmful in criminal cases. Unreliable forensic evidence, including bite mark and hair comparisons, has contributed to the widespread phenomenon of wrongful convictions.

In 1993, the Supreme Court purported to cure the deficiencies of the Frye standard by creating a new rule. The Daubert standard (named after the case in which it was adopted) expands the judge’s “gatekeeper” role in deciding whether evidence is sufficiently reliable to be admitted.

The Daubert decision held that Rule 702 was inconsistent with the Frye standard. The Court noted that the drafting history of Rule 702 did not mention Frye and concluded that “a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to opinion testimony’.”

The Daubert court jettisoned the Frye standard. To fill the void, it created a new rule that, as interpreted by some judges, is incompatible with the “liberal thrust” of Rule 702 and its goal of relaxing barriers to expert testimony.

The Daubert standard broadened the admissibility of expert opinions by making reliability, rather than general acceptance, the dominant consideration in the judge’s analysis. At the same time, the standard narrowed the admissibility of expert opinions by requiring the judge to exclude expert opinions unless they are based on a reliable methodology that the expert applied to adequate facts in a reliable way.

Rule 702 was amended in 2000 to reflect the Daubert holding. The rule was amended again in 2011 to clarify its language. The current rule states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) The testimony is based on sufficient facts or data;

(c) The testimony is the product of reliable principles and methods; and

(d) The expert has reliably applied the principles and methods to the facts of the case.

Criticisms of Current Rule

The Daubert standard as embodied in the current version of Rule 702 has been criticized for its lack of clarity. Some judges view the Daubert standard as expanding the admissibility of expert testimony. Those judges typically leave it to juries to decide whether to accept or reject expert opinions that could reasonably be regarded as reliable. Other judges view their role as determining reliability according to their own strenuous standards without regard to how a jury might view the evidence.

Critics who believe judges too often allow juries to evaluate expert testimony are advocating another change in the rule. Echoing the views of the insurance defense industry, those critics claim that judges are failing to exercise their role as the “gatekeepers” of reliability.

The critics cite anecdotal evidence to create the illusion of a widespread problem. One journalist, relying on his distant memory of an expert witness who gave allegedly inconsistent testimony in two different cases, recently wrote that he “wouldn’t believe a word from an ‘expert’ witness.” The journalist did not seem to appreciate that experts base opinions on facts and that different facts in different cases lead to different opinions.

Unfortunately, the reporter’s perspective advances the strange but popular belief that expert opinions do not reflect objective reality but are simply what the expert chooses to regard as true. That belief is encouraged by political assertions that objective facts are “fake news” and by attacks upon scientific experts who warn the public about dangers (such as global warming) that politicians would prefer to ignore. Attacks on expertise have given birth to a subculture that rejects expert opinions in favor of biased opinions on the ground that an unsupported opinion is just as valid as one based on facts, experience, education, and sound reasoning.

Some critics have suggested that judges should restrict expert testimony in civil cases to prevent “runaway juries” from deciding cases based on emotions rather than facts. Since those critics rarely express concern that juries convict innocent defendants because of emotional reactions to evidence of victimization, the critics seem to be more interested in protecting businesses from the consequences of their carelessness or misconduct than in protecting the right of litigants to have disputed facts resolved by juries.

Critics who complain that judges are inadequate gatekeepers often represent or work for industries that are sued for harming the public with dangerous products or environmental hazards. Those critics tend to brand experts as unscrupulous, but only when they testify for plaintiffs. The critics argue that Daubert was meant to limit expert testimony offered by plaintiffs despite the Supreme Court’s recognition that “relaxing the traditional barriers to opinion testimony” was the very purpose of Rule 702.

Proposed Revision of Rule 702

A recent report from the Advisory Committee suggests a change in Rule 702 that the committee may ask the Supreme Court to adopt. The change results from the concern that “in many cases expert testimony is permitted because the judge thinks that a reasonable jury could find the methods are reliable.” Judges do so because they respect the jury’s role in evaluating evidence.

Judges, after all, are not scientists. There is no reason to believe that judges are any more capable than jurors of understanding and evaluating expert testimony. As a Fourth Circuit decision reminded us in 1934, “Questions of fact are questions for the jury; and they do not become questions for the court merely because their solution may require scientific knowledge or expert opinion.”

Some members of the committee, however, have concluded that only judges have the wisdom to decide whether an expert’s methods are reliable. Their argument that judges should substitute their view of an expert’s reliability for a reasonable view that a jury might take is consistent with a disturbing trend to remove cases from juries — a trend that some scholars decry as reflecting a pro-business bias. Their apparent goal is to change gatekeepers into gate closers.

The report proposes “an amendment to Rule 702 that would clarify that expert testimony should not be permitted unless the judge finds by a preponderance of the evidence that each of the prerequisites are met.” In other words, even if a jury could reasonably find that an expert’s methodology was reliable, a judge who feels otherwise can prevent the jury from making that determination. The proposal represents one more effort to chip away at the American ideal that juries, not judges, should decide cases.

As Judge Kathleen O’Malley recently wrote, the jury is a vital tool in deeply divided country that “protects all of us from overreach by the other two branches of government.” In Judge O’Malley’s view, “If two minds are better than one, nine or twelve are better still.” Judge O’Malley is confident that jurors acting collectively are just as capable as judges of evaluating expert testimony, and that it is arrogant for judges to suggest otherwise.

The advisory committee meets again in June 2021. Whether and when the committee will decide to propose a revision of Rule 702 is unclear. Equally uncertain is whether the Supreme Court would agree that it is wise to undermine expert testimony by giving judges more power to prevent juries from considering expert opinions that jurors might reasonably regard as being based on a reasonable methodology.

Policeman standing with crossed arms

Colorado Supreme Court Allows Police Officers to Testify About Body Language Without Expert Designation

The Colorado Supreme Court has ruled that police officers may testify about how they interpret body language without first being designated as expert witnesses.

The Non-Verbal Response

A fifteen-year-old student was sent to the school counselor after a teacher expressed concern that the student appeared ill.  During his meeting with the counselor, the student explained that he had attended a concert the night before with his thirty-five-year-old stepsister, Justine Murphy, and that he had used methamphetamine with her before the concert.

The student was admitted to a local hospital for evaluation and recovery. The school resource officer, Deputy Mark Johnson, interviewed the student while his father was present. During the interview, Deputy Johnson asked the student where he got the methamphetamine and if he had gotten it from his stepsister. Deputy Johnson later testified that instead of responding, the student’s body language changed, instead of looking directly at him, he looked down and away. The deputy took the student’s nonverbal response to mean that he didn’t want to answer because the answer was yes, so he asked a follow-up question, “Did she just give it to you or did she sell it to you?” The student responded that “She sold it to me.”

Murphy was charged with distributing a controlled substance and contributing to the delinquency of a minor.

Expert Designation Issue

Prior to trial, defense counsel objected to Deputy Johnson testifying about the inference he had drawn from the student’s non-verbal response. Defense counsel argued that the deputy should have been first qualified as an expert witness.

The trial court overruled the objection, finding that Deputy Johnson’s testimony constituted lay opinion testimony because he had observed the student’s body language and had a rational basis for forming an opinion about the body language.  A jury found Murphy guilty of distributing methamphetamine and contributing to the delinquency of a minor.

Murphy appealed and the court of appeals reversed, ruling that Deputy Johnson’s testimony was improper lay testimony “because it provided more than an opinion or inference rationally based on his perception.” Instead, the court concluded that Johnson’s testimony was based upon his training and experience. It could just as easily be said that Johnson’s testimony was improper because it was speculative.

The state appealed to the Colorado Supreme Court. The Colorado Supreme Court granted certiorari. The court clarified that lay witnesses are generally confined to stating facts, as opposed to providing opinions, inferences, or conclusions. Lay witnesses may provide opinion testimony where it is “(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’[s] testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”  In contrast, expert opinion testimony is “scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence or to determine a fact in issue” and requires an expert’s “knowledge, skill, experience, training, or education” to provide the requisite foundation for that specialized knowledge.

The court determined that the trial court properly admitted Deputy Johnson’s opinion as lay testimony. It concluded that any lay person could have come to the same conclusions as the officer. The court wrote, “Anyone who has interacted with children, for example, could infer that a child who looks away or avoids eye contact when confronted about their misbehavior (‘Did you take the cookie?’ ‘Did you hit your brother?’) may be tacitly acknowledging that misbehavior.”

Of course, the same body language may signal that the child feels intimidated by the officer and doesn’t want to interact further for that reason. The officer is not a mind-reader. It should be up to the jury, not the officer, to draw inferences based on the officer’s testimony about what the officer saw.

By reversing the Colorado Court of Appeals ruling, the state supreme court reinstated Murphy’s conviction and eight-year prison sentence.

Expert Witness

Expert Witness Report Rule Relaxed in Expedited Litigation

A Virginia district court has relaxed the expert witness report rule in the case of expedited litigation.

The Abduction

Bryce Gerald Randall Nowlan and Nina Lynn Nowlan were married and had a daughter, “AEN.” Bryce Nowlan is a Canadian citizen who resides in Canada. Nina Nowlan is an American citizen who currently resides in Virginia. Bryce Nowlan alleges that Nina Nowlan wrongfully took their daughter from his custody in Canada to Virginia.

Bryce Nowlan filed a petition for AEN’s return to Canada under The Convention on the Civil Aspects of International Child Abduction (the Hague Convention) and the International Child Abduction Remedies Act. He also filed a motion to expedite the proceedings under the Hague Convention.

Court Proceedings

The parties submitted a proposed scheduling order. The parties agreed on all matters with one exception. Bryce Nowlan proposed that both parties should provide “full and complete expert disclosures as required by Rule 26(a)(2)(A)-(C) of the Federal Rules of Civil Procedure” and “full and complete rebuttal expert disclosures, which shall also comply with Rule 26(a)(2)(A)-(C). Nina Nowlan objected to “importing the strict disclosure requirements of Rule 26, particularly since this matter is proceeding on an expedited basis.” Rule 26 requires that a witness prepare and sign a detailed report at the expense of the disclosing party. Since Nina Nowlan is indigent, she requested that the court instead require counsel for each party to provide summaries of each expert’s anticipated opinions.

The court granted Nina Nowlan’s request and required each party to provide “detailed written summaries of their experts’ opinions and conclusions.” The court noted that it was “cognizant of the onerous burden imposed by Rule 26 regarding expert witness disclosures and Ms. Nowlan’s objection to complying with the strictures of the rule due to both time and expense. The court agrees and notes that this, at bottom, is a summary proceeding with expedited deadlines, modified procedures, and relaxed standards for the admissibility of evidence. Given these unique factors, respondent’s objection is persuasive. The court will grant the parties latitude during the cross examination of any expert witness as necessary to account for any expert report that is less than fulsome than a standard Rule 26 report.”

Bryce Nowlan objected to the “truncating” of expert-disclosure obligations under Rule 26(a)(2)(B) in light of Nina Nowlan’s claims that he had sexually abused AEN. His objection stated that the court’s order did not provide him with the opportunity that he would have had under Rule 26 to note any Daubert challenges or move in limine to exclude a proposed expert in advance of trial.

Court Ruling

The court noted that district courts are “afforded substantial discretion in managing discovery.” It also noted that Rule 26(a)(2)(B) contemplated deviations from the typical requirements for expert witnesses’ written reports by including the language “unless otherwise stipulated or ordered by the court.”

The court noted that its order still required the parties to produce “detailed, written summaries” and that it had granted the parties “latitude during the cross examination of any expert witness as necessary.”

The court was satisfied that the parties were able to adequately prepare for the bench trial and bring any purported insufficiencies or shortcomings of the other party’s expert witnesses at trial and overruled Bryce Nowlan’s objections.

Criminal Forensics, word cloud concept 11

Does the CSI Effect Hurt Prosecutors Who Don’t Rely on Expert Witnesses?

It has become an urban legend, at least among prosecutors, that jurors have been conditioned by the CSI franchise (CSI: Crime Scene Investigation, CSI: Miami, CSI: NY, and CSI: Cyber) to expect guilt to be proved beyond doubt by forensic evidence. Prosecutors fear that they will lose cases if they try to prove guilt the old-fashioned way: with confessions, eyewitness testimony, or inferences based on motive and opportunity.

It isn’t unreasonable for jurors to expect prosecutors to rely on expert witnesses when they can. After all, the Constitution requires guilt to be prove beyond a reasonable doubt. If fresh blood found at the scene of the crime isn’t analyzed for DNA, a jury might reasonably wonder why the government didn’t do everything in its power to determine whether the blood belonged to a criminal suspect.

Still, forensic evidence isn’t available in every case. Sometimes there’s no physical evidence to analyze. In other cases, budgets may be inadequate to fund an expert. When those circumstances occur, does a case become unwinnable?

Concerns About the CSI Effect

A state’s attorney in McLean County, Illinois recently warned readers of a Central Illinois newspaper that CSI is not realistic. When he questions potential jurors, he asks them whether they “expect to see satellite imagery and laser grid analysis.” His questions are intended to remind jurors that high tech evidence isn’t needed or available in every case.

Whether the CSI effect actually exists is open to debate. A 2006 survey asked participants whether they would expect to see various kinds of evidence in seven different cases ranging from murder to theft. Participants were asked, for example, whether they would expect to see “eyewitness evidence,” “some kind of scientific evidence,” “fingerprint evidence,” and “DNA evidence.”

The survey found that 46% of participants expected to see some kind of scientific evidence in every criminal case, 32% expected to see ballistic evidence in every criminal case, and 22% expected to see DNA evidence in every criminal case. Since ballistic evidence pertains to firearms and since most crimes are committed without a firearm, the survey results might indicate that participants were not given sufficient information to make rational responses.

The survey also found that participants who watched a CSI show regularly were more likely to demand scientific evidence in every case than participants who rarely or never watched CSI. Those results were dutifully reported by the Central Illinois journalist who fretted about the impact of CSI on jurors.

The journalist neglected to report the survey’s central finding: Participants were not more likely to acquit a defendant simply because guilt was not supported by expert evidence. A recent article in the ABA Journal notes that the 2006 survey was followed by an urban survey in 2008-09 that found even less reason to believe that a CSI effect results in unwarranted acquittals. A judge who helped design the survey attributed worries about the CSI effect to “grumbling prosecutors.”

While survey participants said that the absence of scientific evidence would not make them more inclined to acquit, they were more likely to doubt guilt in the absence of eyewitness testimony. Ironically, eyewitness testimony is among the least reliable forms of evidence in a criminal prosecution. The defense lawyer in a case that turns on eyewitness identification should give automatic consideration to the need for an expert witness who can explain why identifications are so often mistaken.

Should Jurors Be Cautioned About the CSI Effect?

How participants respond to hypothetical questions on a survey is probably a poor measure of how they will judge the evidence in an actual trial. It makes little sense to think that jurors will worry about the absence of ballistic evidence in a case that does not involve a gun. No judge would allow a defense attorney to question the absence of evidence that isn’t relevant to the case.

The judge who was interviewed in the ABA Journal article argued that prosecutors might actually trigger a CSI effect by asking potential jurors whether they expect guilt to be proved by scientific evidence. If potential jurors aren’t thinking about scientific evidence before the prosecutor talked to them, they may wonder about its absence when the prosecutor calls attention to it.

In some cases, however, a defense lawyer’s comments about the prosecution’s failure to present forensic evidence is legitimate. The Journal article reports a Maryland case in which a criminal defense lawyer called the jury’s attention to the absence of scientific evidence to prove that the defendant had handled a screwdriver or tape found at the scene of the burglary.  No expert witness testified about fingerprints or DNA samples that one might expect to find on that evidence.

It is commonplace for lawyers to argue that a police investigation was incomplete and that the failure to make a diligent search for evidence creates reasonable doubt. The trial judge in the Maryland case nevertheless instructed the jury that ““there is no legal requirement that the state utilize any specific investigative technique or scientific test to prove its case.” That’s true, but there is a legal requirement that prosecutors prove guilt beyond a reasonable doubt.

An appellate court found that the instruction improperly undermined the defense theory that the absence of scientific evidence contributed to reasonable doubt. The defense lawyer did not argue that the prosecution had an obligation to present expert evidence. Rather, the lawyer argued that the prosecution had the ability to ask experts to analyze the evidence and that its failure to conduct a complete investigation of the evidence created a reasonable doubt about the defendant’s guilt. That argument did not warrant a jury instruction regarding the prosecution’s failure to produce scientific evidence.

Similar instructions have come to be known as “anti-CSI instructions.” Prosecutors argue that the instructions are needed to overcome the CSI effect. Since there is little evidence that the CSI effect actually exists, fair judges keep their thumb off the scale and avoid giving instructions that seem to excuse a prosecutor’s failure to introduce expert evidence when a case seems to call for it.


A white cop

Seventh Circuit Permits Police Officer to Testify as Drug Jargon Expert

The odds of admitting expert testimony are stacked against defendants in criminal cases. An analysis of federal criminal prosecutions found that judges almost always admit expert testimony offered by prosecutors but usually disallow the expert testimony of defense experts.

Prosecutors commonly rely on police officers to provide expert testimony. While the officers are not allowed to testify that a defendant is guilty (an issue that only the jury can decide), they are often allowed to give “ultimate issue” testimony that invites the jury to find guilt. To a jury, there is little difference between testifying that “In my opinion, the defendant sold drugs” and testifying that “In my expert opinion, all of the evidence is consistent with the defendant selling drugs.”

Federal courts have been criticized for their lax application of the Daubert standard to police officer testimony. Other experts are required to demonstrate that they formed opinions through the reliable application of a sound methodology to sufficient facts. Police officers are often allowed to couch any opinion as an expert opinion simply by claiming that the opinion is based on their experience in law enforcement.

A common example of the lax application of Daubert involves “expert” testimony about the meaning of “drug jargon.” A recent decision of the U.S. Court of Appeals for the Seventh Circuit determined that police officers can offer expert opinions about the hidden meaning of ordinary words that a defendant uses in text messages.

Facts of the Case

Maurice Gardner was the passenger in a car that was stopped by police officers in Evansville, Illinois. For reasons that the appellate opinion does not explain, the officers searched the vehicle. They found bags containing six grams of methamphetamine, digital scales, and a loaded firearm. Officers testified that they asked Gardner why he was in the vehicle and Gardner admitted that he was trying to sell drugs.

Given those facts, the government had a slam dunk case on the drug charges. It nevertheless bolstered its evidence by calling Evansville Police Officer Cliff Simpson as an “expert in narcotics distribution.” Since the jury was just as capable of interpreting the evidence as Simpson, this was not the kind of case in which the testimony of an “expert in narcotics distribution” would normally be admissible. The prosecution, however, wanted Simpson to “translate” text messages on Gardner’s phone that the prosecution claimed were “coded.”

Simpson claimed expertise because he had “interpreted” text messages and phone calls in more than a dozen wiretap investigations. The prosecution apparently offered no evidence that Simpson had interpreted the communications accurately.

Expert Opinions

Gardner received a text message that said “she will pay 245 for it.” Simpson testified that the message meant “someone would pay $245 for methamphetamine.” Since neither “245” nor “it” are drug jargon, it is difficult to understand why the judge felt that an expert was needed to decode the message. Whether “it” referred to methamphetamine was an inference that the jury could draw without Simpson’s guiding hand.

The same is true of Gardner’s reply: “I can do one for 250 and dat’s all.”  The phrase “do one” likely means “sell one” in context, but there’s nothing coded about that language. Simpson’s testimony that Gardner meant that he was willing to sell a quantity of the drug for $250 hardly requires an expert interpretation.

Simpson might have relied on expertise when he testified that 3 grams of methamphetamine would retail for $250, but the message did not say “I can sell three” or “I can sell an eight ball” (jargon that describes an eighth of an ounce, or about 3.5 grams). The jury was just as capable as Simpson of inferring that “one” referred to an unspecified drug quantity.

Finally, Gardner texted, “I ain’t got dat kind of deal rite now. I’m grinding dis out.” Simpson believed “dat kind of deal” referred to a lower price, an obvious conclusion that requires no expertise.

Simpson also testified that “grinding dis out” meant that Gardner was not selling large amounts but was breaking down his supply to sell in smaller amounts. Perhaps that’s true. Or perhaps Gardner was saying that he was just trying to get through the daily grind of his day. It is not at all clear that Simpson’s opinion about the meaning of Gardner’s words was grounded in expertise rather than assumptions.

Daubert Challenge Rejected

Perhaps the common practice of street dealers to make more money by risking multiple smaller sales rather than giving a quantity discount for a larger sale is not a practice that juries would understand without expert testimony. But Simpson did not explain how street dealers work. He simply offered a personal opinion of what “grinding dis out” meant. A reasonable expert methodology would require the expert to study the jargon used by drug dealers and to identify other instances in which “grinding dis out” meant “selling smaller quantities.” Nothing in the appellate opinion suggests that Gardner based his opinion on a reasonable methodology.

The appellate court nevertheless concluded that a different standard of reliability applies when an expert witness is a police officer. The expert officer does not need to employ a reasonable methodology to arrive at a reliable opinion. It is enough for the officer to base an opinion on the officer’s experience. The court held that “the reliability of the expert’s methods may reasonably be inferred from the expert’s background.”

Experts who testify about harms caused by dangerous drugs and toxic exposures need to rely on reasonable methodologies, no matter how “vast” their experience might be. Why is the Daubert rule different for the police? The Seventh Circuit made no attempt to justify its application of a different standard that benefits the prosecution in criminal cases. A cynic might conclude that the court simply wanted to make it easier for the government to win criminal cases and abandoned doctrinal consistency to advance that goal.

The court also rejected the argument that “Simpson interpreted innocuous, everyday words that need not be decoded by an expert.” According to the Seventh Circuit, words that might “seem entirely innocuous” to ordinary jurors can be recognized as “drug jargon” by police officers. Perhaps there are instances where that might be true, but nothing in the phrase “I can do one for 250” even remotely qualifies as coded drug jargon. What Gardner meant by “one” is an inference to be drawn from all the facts. It is not a “coded” word that only an expert can interpret.

In the end, the case against Gardner was so strong that Simpson’s testimony likely had no impact on the verdict. The court of appeals covered itself by noting that the district court’s decision to admit the testimony would have been a harmless error even if the appellate court had found the decision to be erroneous. The decision nevertheless provides further support for the sad conclusion that “the Daubert revolution, aimed at upgrading the quality of expert evidence, has had surprisingly little impact in the criminal courts.”


Death Row Inmate Freed After Bite Mark Evidence Discredited

A Mississippi man that sat on death row for over a quarter of a century has been freed and exonerated after the bite mark evidence that was used to convict him was discredited.

The Crime

In 1992, 84-year-old Georgia Kemp was found dead in her home in Lowndes County, Mississippi.  Her autopsy revealed that she had died from two stab wounds. Kemp also had injuries consistent with rape, but no visible bite marks.

Prosecutors retained Dr. Michael West as an expert witness. West is a forensic dentist known for his analysis of bite marks. Over a period of 15 years, West testified in 71 trials in 9 states. West examined Kemp’s body with ultraviolet light and found bite marks, which he testified matched the teeth of Eddie Lee Howard.

Court Proceedings

Howard was indicted on the charge of capital murder with the underlying felony of rape.  He was convicted in 1994 and sentenced to death. In 1997, Howard’s conviction and sentence were reversed and remanded for a new trial.

In May 2000, Howard’s second trial began. Dr. West testified again, stating that he was certain to a reasonable degree of medical certainty that Howard had left the bite marks found on Kemp’s body.  Howard was convicted of capital murder and sentenced to death. The conviction was upheld in numerous appeals and post-conviction relief proceedings.


In December 2010, the Mississippi Supreme Court allowed Howard to file another post-conviction petition for relief due to new DNA testing of physical evidence that had excluded Howard as a source.

The court reviewed the DNA evidence and also Dr. West’s bite-mark testimony. Dr. West’s techniques have come under criticism for overstating his findings and testifying on subjects where he had limited expertise. Dr. West’s practices were investigated and he was eventually suspended by the American Board of Forensic Odontology. Dr. West has also stated in a 2012 deposition that he no longer believes in bite-mark evidence and that it should not be used in court cases. That testimony is small comfort to the 71 defendants who were subjected to Dr. West’s unreliable opinions.

The court noted that there has been a change in the scientific understanding of the reliability of identification through bite marks since Howard’s conviction. Today, bite mark testimony would be inadmissble evidence. The court also concluded that Dr. West’s identification of Howard was the most important evidence presented at trial. Given the inadmissibility of bite mark evidence and the fact that that the DNA of another man was present on the murder weapon, the court found that a jury would probably not find Howard guilty beyond a reasonable doubt.

In August 2020, the Mississippi Supreme Court vacated Howard’s conviction and sentence and remanded his case for a new trial.

In December 2020, Howard was released from death row and on January 8, 2021, Howard was officially exonerated. Lowndes County District Attorney Scott Colom decided not to retry Howard’s case, noting that there was not enough evidence to convict Howard “beyond a reasonable doubt” and stating that “My ethical and legal responsibility requires that I dismiss the case.”


Criminal Forensics, word cloud concept 11

New Paper Condemns Failure to Establish Reliable Error Rates in Forensic Science

“Junk science” has been the rallying cry of lobbyists for the insurance and pharmaceutical industries. The term has largely been used to condemn expert evidence offered by plaintiffs in civil suits. While the claims that plaintiffs base cases on “junk science” have been largely overblown — the claims are intended, after all, to minimize the opportunity of juries to evaluate evidence of corporate negligence — there were a few well-publicized cases in which bad science may have influenced verdicts in civil cases. The Daubert revolution was a judicial and legislative response to those cases.

Since outrage about junk science has been carefully nurtured by corporate lobbyists, it has focused on expert evidence presented by plaintiff’s lawyers in civil cases. The outraged attacks upon experts tend to overlook questionable science that is funded by and relied upon by industries and their insurers to avoid liability.

Until recently, even less attention was paid to junk science advanced by prosecutors in criminal cases. If Daubert has value, judges should apply it consistently to all expert evidence, regardless of the side that offers it and regardless of whether the evidence is offered in a civil or criminal case. Yet judges routinely allow prosecutors to present testimony by forensic scientists that unbiased experts recognize as junk science.

Forensic Science Reliability

Slate recently called attention to a scientific paper that it deemed worthy of greater media attention. The paper (Misuse of Scientific Measurements in Forensic Science by Itiel Dror and Nicholas Scurich) discusses error rates in forensic science.

Error rates are a poorly understood factor in the application of the Daubert standard. Daubert demands that experts employ reliable scientific methodologies. A methodology that has a high error rate should generally be rejected as unreliable. While it is easy to understand that the reliability of a methodology is a function of how often the methodology produces an accurate result, the measurement of error rates to validate a methodology is less intuitive.

Dror and Scurich point out that the error rate for many forensic science methodologies is unknown. Crime lab employees often cover up that deficiency by claiming complete confidence in their results. Confidence, however, is not a substitute for science.

Fingerprint examiners, for example, often tell juries that the science of fingerprint comparison is infallible. As Dror and Scurich explain, there is no such thing as an error rate of “zero,” despite improper testimony to that effect. In fact, they cite a study demonstrating that the same expert comparing the same fingerprints on two separate occasions will reach a different result about 10% of the time.

Well prepared defense attorneys may be able to counter claims that fingerprint comparison is infallible with examples of mistaken fingerprint identifications that police agencies have relied upon in the past. The question, however, is whether the examiner should be permitted to testify at all — and whether a defendant should be placed at risk of a wrongful conviction — if the examiner can’t cite an error rate to prove that identifications are nearly always reliable.

Dror and Scurich lament that judges have often admitted the opinions of forensic science experts who rely on methodologies that “have no properly established error rates and even when experts have implausibly claimed that the error rate is zero.” How can a judge regard a methodology as reliable when the judge has no idea how often the methodology returns an erroneous result?

Error Rate Determinations in Forensic Science

Dror and Scurich argue that forensic sciences have difficulty measuring an accurate error rate because they classify opinions that a methodology returned an “inconclusive” result as correct. Rendering the opinion that a comparison is inconclusive does not mean that the opinion is correct.

Assume, for example, that nine of ten fingerprint examiners exclude the defendant as the source of a fingerprint on a pane of glass. If the tenth examiner testifies that the comparison is “inconclusive,” the examiner is likely wrong. Yet that incorrect opinion will be deemed “correct” in an analysis of error rates.

Crime lab employees too often have a bias in favor of prosecutors and police officers who are hoping for a particular result. When they know the police are hoping for a ballistics match that they cannot find, they may decide that the comparison is “inconclusive” to avoid damaging the prosecution’s case. If no match can be made, the opinion is wrong.

Since “inconclusive” results are not reflected in forensic science error rates, error rate computations by forensic scientists are skewed toward making the methodology seem more reliable than it actually is. As Dror and Scurich argue, “not ever counting inconclusive decisions as error is conceptually flawed and has practical negative consequences, such as misrepresenting error rate estimates in court which are artificially low and inaccurate.”

Lessons Learned

Defense attorneys should consider Daubert challenges whenever a prosecution is based on the testimony of a forensic scientist. The failure to rely on a methodology with an acceptable error rate may be a fruitful basis for challenging the admissibility of an expert opinion. Defense lawyers should also consider retaining their own expert for the purpose of educating the judge or jury about the danger of relying on error rates that count “inconclusive” results as if they are always accurate results.

Expert Allowed to Testify About Standard of Care Despite His Belief that the Standard Is Mythical

Pamela Scholl underwent lumbar fusion surgery in Indiana. Scholl alleged that the surgeon, Dr. Mohammed Majd, placed a screw too close to an iliac artery, causing nerve damage. She later had a second corrective surgery.

Scholl sued Dr. Majd for malpractice. Indiana law requires complaints of medical malpractice to be submitted to a medical review panel. The medical and insurance industries view those panels as discouraging malpractice lawsuits that have no merit. Plaintiffs’ lawyers regard panel members as having a pro-doctor bias and typically view them as an obstacle that adds a layer of delay and expense to litigation that is meant to benefit doctors and their insurers.

The panel concluded that Dr. Majd did not breach the applicable standard of care. Scholl then filed suit. She relied on the expert testimony of Dr. Robert Sexton to prove her claim.

After Scholl rested her case, Dr. Majd moved to dismiss on the ground that Dr. Sexton’s testimony failed to establish that Dr. Sexton was familiar with the applicable standard of care. That motion was based on Dr. Sexton’s testimony that the standard of care is whatever a physician thinks it is. Scholl appealed from the trial court’s decision to grant that motion.

Dr. Sexton’s Testimony

Dr. Sexton is a board-eligible neurosurgeon who has performed more than 12,000 spine surgeries during his career, including 150 fusions. Dr. Sexton retired from surgical practice but maintains an active medical license and complies with continuing medical education requirements.

A medical review panel determined that Dr. Majd’s surgery did not fall below the standard of care. Dr. Sexton testified that he disagreed with that conclusion. When he was asked about the panel’s findings, Dr. Sexton referred to the panel’s reliance on a “mythical” standard of care.

Dr. Sexton explained that there is no published standard of care. The review panel defined the standard of care generically as “what a reasonably skilled doctor . . . would do in a given situation.” Dr. Sexton suggested that the generic definition does not identify specific things a doctor should do but leaves it up to each doctor to invent his or her own standard of care.

Dr. Sexton testified that Dr. Majd’s surgery fell below the standard of care because his workup of Scholl before the surgery was “sparse.” He opined that a prudent spine surgeon would have performed a bone density test before deciding whether a spinal fusion was appropriate. He also testified that using a spinal fusion to correct Scholl’s condition as “very controversial.”

Dr. Sexton concluded that placing a screw too close to Scholl’s iliac artery caused her injury. He testified that the standard of care required a surgeon in Dr. Majd’s position to do one of two things: perform a bone graft without using screws or perform a decompressive laminectomy as an alternative to spinal fusion.

When he was asked whether Dr. Majd’s decision to perform a spinal fusion using screws fell below the standard of care, Dr. Sexton replied, “Based on the outcome, yes, I think it was.” On cross-examination, Dr. Sexton repeated that “there is no such thing as a standard of care except what the individual doctor thinks it is.”

After Scholl rested her case, Dr. Majd moved for judgment on the basis that Dr. Sexton did not demonstrate a familiarity with the applicable standard of care. The court granted Dr. Majd’s motion. Scholl appealed.

Appellate Analysis

Indiana follows the customary rule that a medical standard of care and its breach must be established by an expert opinion. The question before the court was whether Dr. Sexton’s opinion adequately conveyed the standard of care to the jury.

The court noted that Dr. Sexton quoted a doctor from the medical review panel who stated that the standard of care is “what a reasonably skilled doctor with reasonably skilled training would do in a given situation.” That is a correct paraphrasing of the standard of care. The fact that Dr. Sexton referred to it demonstrated his familiarity with the standard. His criticism that the standard is mythical in the abstract did not alter his understanding of the standard.

As the court noted, Dr. Sexton explained his reference to the “mythical” standard by noting that no textbook or other authoritative source clearly defines how a spinal surgeon should have treated Scholl’s condition. The court viewed his testimony as explaining that the standard of care was open to interpretation, as is often the case in medical malpractice lawsuits.

Of course, the abstract standard — doctors have a duty to do what reasonably skilled doctors would do — says nothing about what reasonably skilled doctors would do in a given situation. Dr. Sexton filled that gap by testifying that a prudent spine surgeon should perform a bone density test before surgery. He also testified that the standard of care required Dr. Majd to perform a laminectomy rather than a fusion with hardware, a procedure that would have eliminated the risk of causing the injury that resulted from placing a screw too close to the iliac artery.

Dr. Sexton’s extensive history as a spinal surgeon qualified him to express opinions about the applicable standard of care and its breach. The court held that Dr. Sexton’s characterization of the standard of review as “mythical” was “imprecise,” but those comments did not reveal a lack of understanding of the standard of care. The trial court accordingly erred by dismissing the lawsuit rather than submitting it to the jury.

Lessons Learned

The intersection of law and medicine can lead to collisions. Doctors think in terms of medical concepts. The standard of care is a legal concept. Dr. Sexton viewed the standard of care as “whatever a doctor thinks it is” because the medical panel used the language of the law to describe the standard.

What a reasonable doctor would do in a given situation is intended to be an objective standard but differing opinions of whether a doctor’s actions were “reasonable” reveal its subjective nature. Dr. Sexton identified the subjective nature of the standard of care when he defined the standard as whatever “a doctor thinks it is.”

Scholl’s case ended with a dismissal and an appeal because Dr. Sexton referred to the standard of care as “mythical.” That testimony honestly identified the difficulty of defining a precise standard that has not been identified in medical texts. Unfortunately, the testimony was also problematic. An expert’s reference to a legal standard as “mythical” is likely to wave a red flag in front of opposing counsel.

The case illustrates the need for plaintiffs’ lawyers to take the time to explain legal standards to expert witnesses and to caution experts not to editorialize about those standards. How the expert feels about a legal standard has no bearing on the case. The appeal could have been avoided if Dr. Sexton had simply testified that “the standard of care is what a reasonable spinal surgeon would do and, in my opinion, a reasonable spinal surgeon would do the following.”



Expert Witness Establishes GEICO’s Failure to Pay Reasonable Cost of Windshield Replacements

A Florida judge in Hillsborough County consolidated eleven lawsuits that Glasso, Inc. filed against GEICO. In each case, Glassco replaced windshields that were damaged in cars insured by GEICO. Glassco took an assignment of the insurance benefits from the car owners and billed GEICO directly for the replacement cost.

The lawsuits alleged that GEICO paid less than the invoiced amount. GEICO admitted that it did not pay the invoices in full. It relied on a clause in its insurance contract that limits its liability to the “prevailing competitive price” for repairs. GEICO contended that Glassco’s billings exceeded the prevailing competitive price for windshield replacements.

To support its claim, Glassco relied on the testimony of owners of businesses that make windshield repairs. Glassco also called an expert witness. The judge agreed with the expert’s opinion and entered judgment in favor of Glassco.

Facts of the Case

At trial, the owner of Glassco and the owners of two competing auto glass companies explained how they determine pricing. They take into account the cost they pay for replacement glass and for the materials (molding, clips, and adhesive) they use to install the glass. They also take into account their labor costs. All of those depend on the make, model, and year of the vehicle that needs a replacement windshield.

To reach a final price, the owners add profit to their costs. To calculate profit, the owners take into account the amounts charged by competitors in their same market. They also consider the charge that most insurance companies will pay without dispute.

The owners of Glassco’s competitors testified that Glassco’s pricing structure was consistent with prevailing market prices. They also testified that 95% of insurance companies pay their bills without dispute. Glassco has a similar rate of undisputed payment.

Expert Testimony

Barrett Smith testified as an expert witness for Glassco. Smith is an expert in the appraisal of collision damage repair. He operated an auto body repair shop before joining the insurance industry. As a claims adjuster, Smith evaluated collision damages and estimated reasonable repair costs. He returned to the collision repair industry before founding a business that provides expert appraisal and mediation services regarding collision damage.

Smith testified that he was hired to “perform comparative market research regarding the products and services provided in windshield replacement service” and to tender an opinion “as to the prevailing competitive price of the goods and services.” He concluded that Glassco’s prices were competitive and prevailing within its market.

Smith surveyed 24 glass repair facilities to determine their pricing structure. Based on that survey and his considerable experience in the collision repair and insurance industries, he found that Glassco’s prices were at the lower end of the prevailing range of prices in the market.

GEICO’s Defense

GEICO did not contest that Glassco performed the windshield repairs competently. GEICO did not disagree that Glassco was conveniently situated to the owners who brought their vehicles in to be repaired.

GEICO offered no expert testimony. It instead relied on the testimony of a corporate representative who handles glass litigation claims. She testified that GEICO paid invoices according to its own determination of the “prevailing competitive price.” She based her opinion of that price on GEICO’s glass pricing agreement with its affiliate SGC/Safelite.

Court Decision

The court decided that Glassco had the initial burden of offering “substantial, competent evidence to establish its prima facie case for what the prevailing competitive price is” because Glassco could not prove a breach of contract without demonstrating that it invoiced the prevailing competitive price. If Glassco succeeded in making a prima facie case, the burden shifted to GEICO to establish that the invoices exceeded the prevailing competitive price.

Glassco met its burden with industry and expert testimony. In particular, the court credited Smith’s expert testimony that Glassco’s pricing was at the low end of the prevailing range of competitive pricing.

To rebut that testimony, GEICO offered only the opinion of its own employee. The court faulted GEICO’s representative for failing to offer any data to support her conclusory opinion. GEICO’s pricing agreement with a single affiliate did not establish a prevailing price within the industry. The court therefore agreed that GEICO breached its insurance contracts by failing to pay the full amount that Glassco billed for its services.

Lesson Learned

Glassco’s lawsuit illustrates the impact that expert evidence can have in litigation. While Glassco may have prevailed by relying only on the testimony of glass company owners, the court might have regarded that testimony as self-serving, given the owners’ interest in maximizing their profits by forcing GEICO to pay their bills.

By calling an expert witness with years of experience in both the collision repair industry and in the insurance industry, Glassco offered important support for its claims. The expert collected a significant amount of survey data to support his opinion, giving the court a strong basis for understanding the prevailing competitive price structure for auto glass repair. The court’s favorable view of that expert evidence clearly contributed to Glassco’s litigation success.