Category Archives: Research & Trends

Lawyer Allowed to Testify as Expert Witness in Fraud Prosecution

Lawyers (some more than others) are experts in the law, but they rarely testify as expert witnesses. Legal malpractice cases, in which expert testimony is needed to establish a lawyer’s standard of care, provide one of the few opportunities for a lawyer to testify as an expert.

But lawyers in malpractice cases do not explain the law to juries. Rather, they explain the actions a prudent lawyer should take or avoid in light of prevailing professional standards.

In most cases, lawyers may not testify as experts on the law. The only expert who can explain the law to the jury is the presiding judge. The judge provides that explanation through jury instructions, not testimony.

A federal criminal case spotlights an unusual instance in which a lawyer was allowed to explain fiduciary duties imposed by state law, the breach of which was relevant to a federal prosecution for fraud. The Court of Appeals for the Third Circuit rejected an appellate challenge to the admission of that expert testimony.

Facts of the Case

Renee Tartaglione was charged with 53 crimes related to defrauding a community clinic and for failing to report income earned from the fraudulent acts. Tartaglione, described in the press as a “member of a longtime Philadelphia political dynasty,” was the president of the board of the Juniata Community Mental Health Clinic.

Prosecutors convinced a jury that Tartaglione caused the nonprofit clinic to pay exorbitant rent for buildings that she and her husband controlled. Prosecutors offered evidence that she used the rent proceeds to remodel her own home and to fund her lifestyle.

Prosecutors also presented evidence that Tartaglione was responsible for a bogus drug treatment program aimed at low income people. The crimes were charged in federal court because the clinic primarily served Medicaid recipients.

The jury convicted Taraglione after a nineteen-day trial. Noting that Taraglione had betrayed the public trust by misappropriating money from a taxpayer-funded program, the judge sentenced Taraglione to 82 months in prison. She appealed, challenging the prosecution’s use of a lawyer as an expert witness.

Expert Testimony Regarding Non-Governing Law

The prosecution called the Deputy Attorney General of Pennsylvania, Mark Pacella, as an expert witness. While a prosecutor who testifies for another prosecutor might have an inherent bias, the question of bias is usually for a jury to consider. Potential bias, by itself, does not typically disqualify expert witnesses, although on rare occasions judges have excluded experts because of their financial interest in the case or because their history of extreme bias renders their opinions unreliable.

Pacella “explained the legal and regulatory framework for Pennsylvania charitable nonprofit corporations, including the fiduciary duties imposed on board members and directors of such organizations.” Since the judge could have explained fiduciary duties in jury instructions, the question before the appellate court was whether the expert testimony violated the rule that lawyers cannot generally testify as experts in the law.

While recognizing the general rule, the court noted that an exception permits legal experts to testify about “non-governing law” if the testimony will assist the jury. The exception usually applies to the law of a foreign country.

Rule 26.1 of the Federal Rules of Criminal Procedure allows a court to consider relevant testimony about foreign law. At least one legal scholar has bemoaned the use of legal experts to testify about domestic law that a trial judge is fully capable of understanding and explaining.

The appellate court nevertheless concluded that a “non-governing law” exception to the general rule covers “applicable legal duties, especially when those non-governing laws help explain fraudulent intent.” Pacella explained the clinic’s Articles of Incorporation and the legal distinction between a for-profit and a charitable nonprofit corporation. The court decided that the testimony did not cover governing law.

Expert Testimony Regarding Fiduciary Duties

More troubling was Pacella’s testimony about the “fiduciary duties of care and loyalty applicable to directors and officers of such organizations under Pennsylvania law.” The court decided that those duties were not “governing law” because they arose under Pennsylvania law and Tartaglione was not charged with violating Pennsylvania law. The court thought it was noteworthy that Pacella testified that Pennsylvania does not criminalize the breach of a fiduciary duty.

The court’s analysis is questionable. Since prosecutors used Pacella’s testimony to argue that a breach of state law fiduciary duties evidenced a violation of federal law, Pennsylvania law “governed” the very conduct that prosecutors deemed fraudulent.

It is difficult to understand the relevance of Pacella’s testimony if not to define legal duties that governed Tartaglione, the breach of which gave rise, at least in part, to federal charges. The court acknowledged that the testimony was offered to support the argument that Tartaglione’s breach of a governing fiduciary duty proved her intent to commit fraud.

The court cited no on-point precedent, probably because most trial judges do not allow prosecutors to call another prosecutor as an expert witness to bolster their case. The court likened Pacella’s testimony to background evidence about scientific principles, but the issue was whether a lawyer can be called as an expert to explain the law, not whether a scientist can be called as an expert to explain science. If the court is the only expert on the law, it is difficult to understand why the explanation of Pennsylvania law governing Tartaglione’s fiduciary duties should not have come from the court rather than an expert witness.

Arkansas Allows Chiropractor to Provide Expert Opinion About the Need for Surgery

The insurance industry has long disparaged the testimony of chiropractors in personal injury cases. Courts nevertheless agree that chiropractors may give expert testimony about the cause of injuries for which they provide chiropractic treatment as well as the necessity of that treatment.

Courts are less likely to agree whether chiropractors are qualified to testify about the causation of injuries for which medical treatment is provided or the necessity of that treatment. A recent decision in Arkansas rejected a blanket rule and decided that the expert’s qualifications depend on the expert.

Facts of the Case

On a rainy day in 2010, Karen Elder visited a Dollar General store in Mt. Ida, Arkansas. She slipped on the wet sidewalk outside the store’s entrance. Elder reported her fall to an assistant manager.

Elder had preexisting back pain for which she had received chiropractic treatment since 2004. After her fall, Elder had neck, back, and shoulder surgery. In 2013, she sued Dollar General for negligence, alleging that Dollar General breached its duty to maintain its premises in a safe condition.

Elder intended to have her chiropractor, Eric Carson, testify about the cause of her injuries, the permanence of her disability, and the reasonableness of her medical bills. Dollar General moved to exclude much of Dr. Carson’s testimony. The motion was denied and the case went to trial.

Trial Evidence

Elder testified that the weather was misting and that she was jogging toward the entrance to avoid getting wet. She encountered a slick area on the sidewalk and fell. She testified that the slick area was not covered by a mat and that no signs warned her that parts of the concrete sidewalk were slippery.

One portion of the sidewalk has a rough surface and is presumably not as slippery, but another portion has a smooth surface. Elder relied on a safety expert to establish that the smooth portion of the sidewalk was unreasonably dangerous and that the danger was not obvious.

A former assistant manager testified that she had slipped on the sidewalk when it was wet and that she had seen at least four other people slip. She alerted her manager and the landlord about the unsafe condition and expressed concern that it might lead to a customer injury. She was told that it would be taken care of, but no action was taken.

Over objection, Dr. Carson testified that Elder’s injuries and the medical treatment Elder received for them, including her surgeries, were caused by her fall. Dollar General offered the testimony of an orthopedic surgeon that her surgeries were related to a degenerative medical condition and not to her fall.

The jury found in Elder’s favor and returned a verdict of $700,000. Dollar General appealed, arguing that Dr. Carson was not qualified to testify that Elder’s surgery was caused by injuries she sustained in her fall.

Competence of Chiropractor to Testify About Causation

Elder supplemented its discovery responses to disclose Dr. Carson’s anticipated causation testimony. Dollar General claimed to be surprised by those opinions and asked for a continuance during the trial so it could pursue additional discovery. The supreme court agreed with the trial court that the request for a continuance came too late, given that the opinions were disclosed almost three weeks before the trial.

A more troubling question was whether Dr. Carson was competent to testify about causation. There were two related issues of causation in Elder’s case. The first is whether her fall at Dollar General caused her to suffer an injury. The second is whether the medical (as opposed to chiropractic) treatment she received was caused by injuries she suffered in the fall.

Dollar General agreed that Dr. Carson was qualified to testify that injuries he actually treated were caused by the fall and that he provided necessary treatment for those injuries. Dollar General contended that Dr. Carson was not qualified to testify about the necessity of treatment provided by medical doctors.

The supreme court disagreed with the proposition that “a chiropractor may not testify as to the causal need for surgical procedures that a chiropractor may not perform.” The Arkansas precedent upon which that argument was based held that no foundation had been laid for the chiropractor’s testimony that a patient had a permanent disability. That precedent did not establish a blanket rule.

The court decided that the admissibility of a chiropractor’s opinion requires a case-by-case assessment of a chiropractor’s training and experience. Dr. Carson had extensive training in the fields of orthopedics and neurology. The trial court was satisfied that his training in those areas was similar to the training of a medical doctor.

Dr. Carson’s experience included the treatment of hundreds of patients who suffered from traumatic injuries. He acknowledged that he does not perform surgery, but he regularly diagnoses injuries and makes an informed judgment about whether the injury would respond to chiropractic care or would be better treated by a medical doctor.

The combination of Dr. Carson’s training and experience qualified him to opine that Elder’s injuries were caused by her fall, whether or not he treated them. That he was not trained as a medical doctor went to his credibility, not to the admissibility of his causation testimony.

Competence of Chiropractor to Testify About Necessity of Treatment

Dollar General next argued that Dr. Carson was not qualified to testify about the necessity of Elder’s medical treatment. Whether surgeries were related to the fall or to preexisting conditions was an issue in the case.

The supreme court noted that the reasonableness of treatment (which must generally be established to support the inclusion of medical expenses in a verdict) was not contested. Dr. Carson might not have been qualified to testify about the reasonableness of the medical treatment, but his training and experience qualified him to testify that the medical treatment was necessary. Since he was competent to testify that the fall caused the condition for which Elder was treated, he was also competent to testify that she needed the treatment she received.


Juries May Not Base Guilty Verdicts on Unreasonable Disregard of Expert Testimony

The Indiana Supreme Court began its opinion in Payne v. State with the observation that the “criminal legal system rests on the assumption that humans are rational agents of free will with the ability to exercise conscious choice in their everyday actions.” Whether that assumption is accurate is hotly debated by philosophers and neuroscientists. There is much about the mind and the concept of self that we do not understand, but judges are comforted by long-held assumptions that, if abandoned, would undermine the foundations of criminal punishment.

Putting aside the debate about free will, it is commonly understood that some people, at least, are compelled by irrational beliefs to behave unlawfully. Those people are sometimes said to be insane, although many states have abandoned that term.

The criminal justice system is premised on the belief that serious punishment should be reserved for people who choose to commit a crime despite their knowledge that it is wrong to do so. Modern legal thought generally shields defendants from criminal punishment when, at the time they engage in unlawful conduct, they are suffering from a mental disease or defect that deprives them of the ability to control their actions or to understand that their actions are wrong.

The tests for legal responsibility (or “insanity” in those states that still use the term) vary from state to state. In Indiana, an accused is not legally responsible for conduct that would otherwise be criminal “if, as a result of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the time of the offense.”

Expert Testimony and Proof of Responsibility

Mental illness is typically proved by expert testimony. When a defense is based on the accused’s mental disease or defect, both the prosecution and the defense typically call an expert witness to opine whether the accused meets the relevant legal standard.

In some cases, however, mental illness and its impact on the defendant’s perception of reality is so obvious that all the experts agree that the legal standard is met. Those cases often result in a civil commitment based on the need to protect society from a dangerous person.

In Payne v. State, all the experts agreed that Payne was unable to appreciate the wrongfulness of his conduct, but the prosecution nevertheless took the case to trial and obtained a conviction. The question before the Indiana Supreme Court was whether jurors are free to disregard the unanimous view of expert witnesses when they decide whether a defendant is responsible for a criminal act.

Facts of the Case

Jesse Payne was arrested for burning down two covered bridges in 2002 and 2005 and for attempting to burn a third bridge. A judge determined that Payne was incompetent to stand trial, presumably because his mental illness rendered him incapable of understanding the proceedings or assisting in his defense. In 2016, the court decided that Payne had regained competence and the prosecution resumed.

Payne defended the charge on the ground that, when the crimes occurred, he was incapable of appreciating the wrongfulness of his conduct. Indiana persists in referring to that defense as an “insanity defense.”

Pursuant to Indiana law, the court appointed three neutral experts — two psychiatrists and a psychologist — to evaluate Payne and to determine his mental status at the time the alleged crimes were committed. All three experts agreed that Payne “suffered from paranoid schizophrenia and delusional disorder, rendering him unable to distinguish right from wrong” in 2002 and 2005.

Notwithstanding the unanimous opinions of the experts, and not satisfied with the fact that Payne had lost his freedom for eleven years before being declared competent to stand trial, the prosecution took Payne to trial. The prosecution argued that Payne’s demeanor proved that he knew he was doing something wrong. The jury evidently agreed with that argument and found Payne guilty. The Indiana Court of Appeals concluded that the jury was entitled to give the demeanor evidence greater weight than the unanimous expert opinions and affirmed his conviction.

Indiana Precedent

Appellate courts rarely second-guess a jury verdict. It is the jury’s function, not the court’s, to weigh the evidence. Juries are entitled to disbelieve witnesses, including expert witnesses.

But juries must still base their decisions on evidence, not on a sense of outrage that a crime might go unpunished if they vote to acquit a defendant who does not have the ability to understand the difference between right and wrong. The unwillingness of juries to let bad acts go unpunished makes the “insanity defense” a defense of last resort. Yet there are times when the evidence compels a finding that the defendant was not legally responsible for his actions, even if the jury chooses not to believe the obvious.

The supreme court noted that flaws in an expert’s opinion about the defendant’s mental status, combined with evidence of a defendant’s demeanor at the time the crime was committed, might reasonably permit the jury to find a defendant guilty. The primary Indiana precedent involved a defendant who had carefully planned a crime for weeks and then took steps to conceal evidence of the crime to avoid apprehension. Those facts, the court thought, could convince a jury that the defendant understood that it was wrong to commit the crime, given inconsistencies in the experts’ opinions.

Of course, failing to understand that conduct is wrong is not inconsistent with making a plan to engage in that conduct. A person might be driven by schizophrenia and paranoia to plan a crime without appreciating that the criminal conduct is morally wrong.

Concealing evidence might be seen as proof that the defendant knew the conduct could lead to punishment, but a desire to avoid consequences is not the same as appreciating that conduct is morally wrong. “Demeanor evidence” may therefore be an ambiguous ground upon which to base a rejection of uncontradicted expert testimony.

Expert Opinions and Demeanor Evidence in Payne’s Case

Regardless of the merit of Indiana precedent, the supreme court deemed it to be inapplicable. The court recognized that experts are “central to a determination of insanity.” The experts agreed that Payne’s history of paranoid schizophrenia and delusional disorder was longstanding and well documented. There was no evidence that Payne had been faking the condition before, during, or after he committed the acts of arson.

When expert opinions are in conflict or when there is reason to discount them, juries are free to choose among conflicting opinions or to reject them all. While “conflicting diagnoses, inadequate document review, deficient psychiatric evaluations” and similar flaws in the expert opinions might allow a jury to disregard those opinions, none of those flaws were present in Payne’s case. Nothing in the expert testimony gave the jury any factual basis for concluding that Payne did not meet the Indiana definition of insanity.

Nor did the prosecution’s reliance on “demeanor evidence” justify a verdict that disregarded the unanimous expert opinions. Dr. Jeffrey Huttinger explained that Payne’s demeanor, though “superficially normal to a casual observer,” was consistent with schizophrenia when his actions were “driven by some type of delusion.”

The prosecution relied on evidence that Payne set the fires late at night, a choice made — in the prosecution’s view — to avoid detection. The prosecution also argued that Payne lied when he told the police that fuel in his car was for camping and that he used convenience store receipts in an attempt to establish a false alibi. The prosecution suggested that the jury could view its evidence as establishing a consciousness of guilt.

The supreme court recognized that the jury was required to consider the totality of the evidence. The prosecution’s demeanor evidence was ambiguous. People who are paranoid and delusional might well operate in secrecy and tell lies. In fact, that conduct might be a product of their mental illness.

In the supreme court’s view, the prosecution’s demeanor evidence did not outweigh the unanimous opinion of three mental health experts that Payne was incapable of appreciating the wrongfulness of his conduct. Given the weight to which the expert opinions were entitled, the probative value of the prosecution’s demeanor evidence “effectively dissolves.” The court therefore concluded that “not guilty by reason of insanity” was the only verdict a reasonable jury could return.

The supreme court observed that its judgment is not a “get out of jail free” card. Indiana law requires a civil commitment proceeding to follow an acquittal on the ground of insanity. If Payne still suffers from a mental illness which makes him a danger to society — and he might not, given the prosecution’s argument that treatment restored his competence to stand trial — he will be subject to civil commitment until he no longer poses a danger.

Lessons Learned

The culture wars that divide America include a battle over expert opinions. Some people reject all expert opinions, whether they pertain to global warming or the dangers of coronavirus, as “elitist.” Those people believe that expert opinions are entitled to no greater deference than the opinions of people who have no expertise at all. That battle, coupled with the insurance industry’s relentless effort to portray all experts as “hired guns,” has tended to make juries less open to the opinions of experts who are more knowledgeable than lay jurors.

Judges routinely take cases away from civil juries because they believe that no reasonable jury could disbelieve the evidence presented by defense experts. The willingness to disregard the judgment of jurors in civil cases, where only money is at stake, should equally protect defendants in criminal cases, where freedom is at stake. When jurors refuse to believe unassailable expert opinions about a defendant’s mental health, it is the judiciary’s duty to set aside the jury’s unreasonable verdict and to acquit the defendant.


Expert’s Demonstrative Exhibit Held Inadmissible Because It Was Based on Speculation Rather Than Science

Douglas Shaneyfelt was driving at night on a state highway in Ohio. Robert Byram was backing his tractor-trailer into his driveway. Byram’s vehicle was blocking both lanes of traffic when Shaneyfelt began braking. His pickup truck slammed into the side of Byram’s semi.

Byram contended that he was not negligent because he checked the road for oncoming traffic and saw none before he began to back into his driveway. Byram broke no law. Whether it is prudent for a trucker to back into a driveway from a highway at night was a question for the jury. The jury found in favor of Byram.

Shaneyfelt moved for a new trial, contending that he was prejudiced by the computer-simulated images that Byram’s expert witness used as demonstrative evidence. The trial court agreed and granted the motion for a new trial. The Ohio Court of Appeals held that the exhibit was inadmissible but reversed the order for a new trial after finding that the exhibit was not prejudicial.

Demonstrative Evidence

Byram called Ashley Dunn as an accident reconstruction expert. Dunn prepared three computer-simulated images to show how Byram’s truck would have appeared to Shaneyfelt at a distance of 600 feet, 400 feet, and 250 feet.

Shaneyfelt complained that the images were not produced in discovery but were only disclosed four days before trial. The trial court agreed with Shaneyfelt that the untimely production of the images violated the court’s discovery order.

The trial court nevertheless concluded that under Ohio law, discovery violations should not result in the exclusion of evidence unless the violation caused material prejudice to the opposing party. To determine whether the violation was prejudicial, the court allowed the expert to testify, subject to cross-examination.

After the trial, the court determined that the demonstrative exhibits were inadmissible because there was no evidence that they accurately represented Shaneyfelt’s view of the accident. Specifically, Dunn did not measure the brightness of the lights and reflectors on Byram’s tractor-trailer or the brightness of Shaneyfelt’s headlights. Without making that measurement, Dunn could only hazard a guess about how the scene might have appeared to Shaneyfelt.

The court reasoned that Dunn’s demonstrative evidence was “speculative and void of case-specific facts.” Because Dunn’s testimony misrepresented the exhibits as depicting an accurate view of the scene when he could not have known whether the exhibits were accurate, the testimony and related exhibits were prejudicial.

The trial court noted that Byram took a chance by producing the exhibits after the discovery deadline. The court granted a new trial and barred Byram from calling Dunn, or anyone in Dunn’s firm, as an expert witness in further proceedings. Byram appealed.

Appellate Analysis

In the absence of any measurement of headlight brightness, it was impossible to make a demonstrative exhibit that accurately displayed the scene as Shaneyfelt would have seen it. While Dunn relied on industry standards and studies to determine how bright the scene might have been, it is common knowledge that headlights do not always meet industry standards.

Bulbs tend to produce less light as they get older. Perhaps more importantly, dirty or cloudy headlight coverings reduce the brightness of headlights. No assumptions about industry standards can take the place of actual facts when preparing demonstrative evidence.

The court of appeals agreed with Shaneyfelt that the pdf exhibit he received four days before trial differed from the 40” by 30” exhibit that was displayed to the jury. The brightness of the lights in the trial exhibit had been enhanced.

Byram contended that the difference was caused by brightness settings on the printer used to print the pdf. However, the trial exhibit had a car dashboard superimposed over the simulated view that was missing from the pdf. The trial exhibit was obviously not the same exhibit disclosed to Shaneyfelt.

Regardless of the belated pretrial disclosure, the court of appeals agreed that the trial exhibit was inadmissible. Because Dunn did not measure the brightness of the lights shown on the exhibit, the representation of Shaneyfelt’s alleged view was based on speculation, not fact.

The appellate court nevertheless concluded that the improper exhibit was not prejudicial. The court found no evidence in the record that Byram’s decision to back a tractor-trailer into a driveway at night was negligent. The court noted that Shaneyfelt’s own expert agreed that Shaneyfelt’s headlines should have illuminated the truck when Shaneyfelt was 288 feet from the truck. The expert calculated stopping distances and concluded that, if Shaneyfelt had slammed on his brakes at the moment the truck became visible, he could have narrowly avoided the collision.

Lessons Learned

If the trial judge had excluded the exhibit before the jury saw it, there would be no need to guess about the verdict the jury might have returned if it had not been exposed to inadmissible evidence. That is what the judge should have done, although it is not clear that Shaneyfelt objected to the expert’s methodology (as opposed to the belated disclosure) prior to trial.

Demonstrative evidence can be a persuasive tool at trial. Images embed themselves in the minds of jurors more effectively than words. Experts may therefore provide a valuable service for lawyers when they prepare demonstrative exhibits.

But exhibits are evidence, and when they are prepared by experts, they are subject to the same rules of admissibility as other expert evidence. Demonstrative exhibits should have a basis in fact and should reflect the expert’s application of a reasonable methodology.

An exhibit that recreates an accident may be persuasive when an accident reconstruction engineer relies on physics and math to recreate an accident scene. An exhibit that is based on a guess as to how the accident scene might have appeared has no value at all. To assure that demonstrative exhibits are admissible, experts should use the same care when preparing exhibits that they use when preparing reports and formulating opinions.



Law Professor Defends “Stand Your Ground” Laws

A law professor and commissioner on the United States Commission on Civil Rights has filed a statement in support of the “Stand Your Ground” laws that were the subject of a recent Commission on Civil Rights report.

Stand Your Ground Laws

Under the common law castle doctrine, the use of deadly force is justified in the case of a person defending their home. Stand Your Ground laws are extensions of this castle doctrine, allowing the use of deadly force beyond the confines of one’s home, into any area where a person “has a right to be” in defense of their person or property.

The United States Commission on Civil Rights Report

In April 2020, the United States Commission on Civil Rights published a report entitled “Examining the Race Effects of Stand Your Ground Laws and Related Issues.” The report was based upon a briefing that was held before the commission in Orlando, Florida in 2014.

The purpose of the briefing and report was to “determine whether there is a possible racial bias in the assertion, investigation, or enforcement of justifiable homicide laws in states with Stand Your Ground provisions.” The briefing consisted of expert testimony from state legislators, academic researchers, and advocates.

The published report consisted of statements by Commissioner Michael Yaki, Commissioner Gail Heriot, and Commissioner Peter N. Kirsanow and a transcript of the Stand Your Ground Public Briefing Transcript that was held on October 17, 2014.

Dissenting Statement

Commissioner Gail Heriot, who is also a law professor at University of San Diego, wrote a dissenting statement to accompany the report. In her dissent, Heriot wrote that the commission report had ignored its own research that indicated that “Stand Your Ground” laws do not disproportionately harm African Americans. She wrote, “This report should not have been published in this form.”

Heriot continued, “When the results of an empirical study don’t come out the way Commission members hoped and expected that they would, the right thing to do is usually to publish those results anyway. Why hide useful information? Instead, the Commission sat on the report for years. Then it decided to discard the draft written by our staff and publish instead a transcript of the witness testimony received at our briefing that took place on October 17, 2014 in Orlando, Florida.”

She continued, “The Commission is publishing this transcript more than seven years after Trayvon Martin passed away — without any reference to its independent research on the subject. The controversy over his death and over ‘Stand Your Ground’ laws has largely faded out of the headlines. Some members of this Commission might be inclined to bemoan this report not being as relevant as it might have been had it been ready closer to 2012. I disagree. Cooler heads should have prevailed early on during the debate over Stand Your Ground laws. But they did not. Now that years have passed, the Commission could have made a modest contribution to that debate by publishing the results of its research. It chose to bury those results instead only because they did not go in the direction the Commission’s majority was hoping for.”

Gavel and scales

Ninth Circuit Panel Questions Precedent

A three-judge panel of the Ninth Circuit Court of Appeals ordered a new trial in a case where a district court had used the wrong standard in barring expert testimony. However, in a concurring opinion, the judges noted that while precedent requires a new trial, that result didn’t make sense in this case.

The District Court Case

Patrick Bacon and Daniel Ray were convicted of assault with a deadly weapon with intent to do bodily harm and assault causing serious bodily injury as the result of a metal shank stabbing of another prisoner at federal prison in Victorville.

At trial, Bacon pleaded insanity. Bacon’s defense attorneys retained forensic clinical psychologist Dr. Nadim Karim to testify on Bacon’s behalf. Dr. Karim was prepared to testify that Bacon’s mental health disorders would have caused him to have trouble understanding the consequences of his actions at the time of the stabbing.

District Court Judge Percy Anderson of the Central District of California excluded Dr. Karim’s testimony. Judge Anderson reasoned that “Dr. Karim’s opinion that an individual who was suffering from a myriad of severe mental health disorders that Mr. Bacon was facing would have had difficulty understanding the nature and quality of his action at the time of the offense conduct is equivocal and will not help the trier of fact to understand the evidence or determine the issue of sanity.”

Bacon was sentenced to 10 years in prison. Ray was sentenced for eight years and four months for his role in the crime.

The Ninth Circuit

Brown appealed the ruling to the Ninth Circuit Court of Appeals. His case was heard before a three-judge panel consisting of Circuit Judges Paul J. Watford and Mark J. Bennett, joined by District Court Judge Jed S. Rakoff of the Southern District of New York, sitting by designation.

On appeal, the Ninth Circuit ruled that Judge Anderson had applied the incorrect legal standard. Instead, Judge Anderson should have made his decision based on whether Dr. Karim’s testimony would assist the jurors in drawing their own conclusions regarding “Dr. Karim’s opinion that an individual who was suffering from a myriad of severe mental health disorders that Mr. Bacon was facing would have had difficulty understanding the nature and quality of his action at the time of the offense conduct is equivocal and will not help the trier of fact to understand the evidence or determine the issue of sanity.”

The court clarified  that it was not ruling that the district court must admit Dr. Karim’s testimony on remand — it was only holding “that the district court abused its discretion in finding the testimony was not relevant to Bacon’s insanity defense.” Under Ninth Circuit precedent, this abuse of discretion required a retrial.

However, Judge Watford wrote a concurring opinion joined by Judges Bennett and Rakoff. He wrote that he agreed with the panel’s ruling, but that he wrote “separately to highlight how wasteful of judicial resources that remedy potentially is.”

He gave the example, “What if, on remand, the district court decides that Dr. Karim’s testimony is insufficiently reliable, and thus must be excluded once again? If that occurs, why in the world should the court hold a new trial at which a second jury will hear the same evidence heard by the jury at the first trial?”

Judge Watford suggested that a better procedure would be to “conditionally vacate the judgment and remand to the district court with instructions to determine whether the disputed expert testimony was admissible” under the relevant court rule and case law. This course of action was previously suggested by Ninth Circuit Judge Jacqueline H. Nguyen’s concurring and dissenting opinion in the 2014 case of Estate of Barabin v. AstenJohnson, Inc.

Ohio wooden Mallet

Expert Opinions in Ohio Prosecutions Should Be Excluded If Not Disclosed in Report

Ronald Boasten was convicted of murdering his ex-wife, Brandi. They married after Brandi became pregnant and soon divorced after she had an affair. The couple reconciled and had another child together but did not remarry.

Several years after they reconciled, Ronald suspected that Brandi was having another affair. After Ronald placed spyware on Brandi’s mobile phone, Brandi moved out of their home. She returned every day, however, to spend time with their children.

Ronald continued to monitor Brandi’s texts with the spyware he installed on her phone. After reading a series of suggestive texts, Ronald borrowed a gun from a friend. Ronald said he wanted to take care of a problem but did not mention Brandi.

The day after Ronald borrowed the gun, a hunter found Brandi’s SUV parked in a field with its engine running. The police discovered Brandi’s body in the SUV’s cargo area. A forensic pathologist determined that she had been strangled.

None of Ronald’s DNA was found on the body or in the SUV. A hair from Brandi’s head was found on a buckle on one of Ronald’s gloves. However, since Ronald and Brandi had been together for years, the hair was far from conclusive evidence of Ronald’s guilt.

Autopsy Report

A forensic pathologist autopsied Brandi’s body. She determined a time of death based on stomach contents. While the pathologist prepared a report that described the autopsy and offered an opinion as to the cause of death, the autopsy report included no opinion regarding the time of death.

The pathologist placed the buckle on Ronald’s glove against an abrasion on Brandi’s face and determined that the abrasion was “consistent with” the buckle and Velcro on Ronald’s glove. The autopsy report said nothing about the purported “consistency” between the glove buckle and the mark on Brandi’s face.

The pathologist mentioned her opinion about the glove buckle during a meeting with Brandi’s lawyer 19 days before trial. During the meeting, she also offered an opinion about the time of death. Brandi’s lawyer told the prosecutor that the autopsy report should be supplemented with this undisclosed information. The prosecutor declined to do so.

Failure to Disclose Expert Opinion Prior to Trial

Rule 16(K) of the Ohio Rules of Criminal Procedure requires an expert witness for either side in a criminal prosecution to “prepare a written report summarizing the expert witness’s testimony, findings, analysis, conclusions, or opinion.” The report must be disclosed no later than 21 days before trial. Failure to make the required disclosure “shall preclude the expert’s testimony at trial.”

The prosecution clearly violated discovery rules by failing to disclose two important expert opinions in a written report 21 days before the trial: time of death and alleged consistency between an abrasion and the buckle on Ronald’s glove. Ronald’s lawyer moved to exclude those opinions because that is the remedy for nondisclosure that Rule 16(K) requires.

The trial judge nevertheless admitted the opinions because defense counsel had the autopsy report that omitted those opinions a year before the trial and “chose” to meet with the pathologist 19 days before trial. Neither of those facts speak to the prosecution’s failure to follow the rule.

The court of appeals affirmed that ruling because courts are given “broad discretion” to make evidentiary rulings. However, courts have no discretion to make legally incorrect rulings. The Ohio Supreme Court therefore accepted review to determine whether a failure to disclose expert opinions 21 days before trial should result in exclusion of those opinions.

Appellate Analysis

Rule 16(K) allows the court to modify the 21-day deadline for good cause if the modification is not prejudicial. If the prosecution had asked the trial court in advance of trial to permit the late filing of a supplemental report, it might have cured the problem. Instead, prosecutors arrogantly refused to produce a supplemental report and did not ask for the deadline to be modified. Why prosecutors should be rewarded for flouting discovery rules is unclear.

The state supreme court noted a split in lower court decisions about whether Rule 16(K) means what it says. The text of the rule is written in absolute terms. The rule gives courts discretion to amend the disclosure deadline for good cause, but it grants no discretion to admit exert opinions that have never been disclosed in a written report. The supreme court concluded that “if a court rule is unambiguous, it is to be applied as written.”

Lessons Learned

The trial court erred by admitting the expert opinions that were not included in the written autopsy report. Having made the correct decision, the supreme court then upheld the conviction, ruling that the error was harmless because the defense lawyer knew about the expert’s opinions before trial and was able to cross-examine the expert about them.

The holding essentially nullifies Rule 16(K). The harmless error analysis does not depend on whether the defense cross-examined the expert, but on whether the trial outcome might have been different if the improperly admitted evidence had been excluded. Given the circumstantial nature of the evidence linking Ronald to the crime, it is difficult to conclude that evidence purporting to match Ronald’s glove to the wound on Brandi’s face did not influence the verdict.

Perhaps the defense should have anticipated that the trial judge would ignore Rule 16(K) and should have hired an expert to explain why the mark on Brandi’s face could have been caused by any number of objects. For the same reason that bite mark evidence is unreliable, an eyeballed opinion that Ronald’s glove buckle was consistent with the abrasion is not based on sound science. The lesson to learn is that defense lawyers should always be prepared to call an expert to challenge a prosecution expert, particularly when the prosecution is relying on doubtful expert opinions.


dollar bills

Experts Debate Pay Disparities for Female Soccer Players

Sports Illustrated reports that expert witnesses will play crucial roles in a gender equity challenge that the U.S. Women’s National Team (USWNT) has made against the U.S. Soccer Federation, the governing body of the sport of soccer in the United States. Daubert challenges may shape the expert testimony that the jury hears. The magazine notes that “arguing over expert witnesses illustrates how much experts could potentially sway juror opinion” in a complex case that offers competing views of how two different pay systems should be compared.

The members of the USWNT collectively sued U.S. Soccer for gender discrimination. The lawsuit contends that U.S. Soccer gives contracts to female players that are less favorable than the contracts it gives to male players. The USWNT members argue that the disparity cannot be explained by job duties or job performance. A May trial date was recently postponed to June because of the coronavirus epidemic.

In a public relations blunder, U.S. Soccer tried to win summary judgment by claiming, in part, that female players “did not perform work of equal skill, effort and responsibility” as male players. The organization made that argument notwithstanding that the USWNT has won two consecutive World Cup titles, while the Men’s National Team has never placed higher than third, a feat it last accomplished in 1930.

The suggestion that women don’t play as hard or as well as men caused a backlash that resulted in the resignation of U.S. Soccer’s president, the firing of its lawyers, and the withdrawal of that assertion. The lawsuit, however, continues.

Disparate Pay

U.S. Soccer now focuses on the argument that compensation statistics do not support the claims made by the USWNT players. In 2019, the president of U.S. Soccer released data that, in his view, proves that female players were paid more in salary and game bonuses than male players from 2010 to 2018. The USWNT players dispute that data, as do members of the Men’s National Team, who issued a statement accusing U.S. Soccer of resisting “any concept of equal pay or basic economic fairness for the USWNT players.”

Analysis of compensation data is complex. The men’s team and the women’s team are represented by separate unions that have negotiated contracts with different structures. Players on the men’s team are only paid if they are called up for a game or training camp. They also participate in bonuses for playing in certain games and earn higher bonuses if the team wins certain games or qualifies for the World Cup.

The 17 players who are signed to contracts on the women’s team are paid whether or not they are called up. The remaining “non-contract” players, like players on the men’s team, are paid an appearance fee if they are called up and can earn bonuses based on the team’s performance.

Although the contract structure is arguably better for the women’s team, the pay is arguably better for players who are called up to play on the men’s team. According to ESPN, “making a World Cup team will net a men’s player $68,750. A women’s player will make $37,500 for making the World Cup squad.” Other bonus payments are also higher for men than for women.

Challenges to Labor Law Expert

Given the difference in contract structure, expert testimony is essential to determining whether a pay disparity exists. Each side is relying on experts to make its case.

The USWNT recently made Daubert challenges to the proposed testimony that three experts plan to give on behalf of U.S. Soccer. The first challenge involves Philip Miscimarra, a labor lawyer who was chairman of the National Labor Relations Board (NLRB) under President Trump. He proposes to testify that U.S. Soccer has complied with civil rights laws and has not discriminated against female players.

The players object that the judge is the only expert in the law and that Miscimarra’s attempt to explain U.S. Soccer’s alleged compliance with the law to the jury could result in confusion. The players contend that his “misleading” testimony might make the jurors believe he knows more about civil rights law than the judge.

Miscimarra also contends that the players’ union agreed to the terms of their compensation and that finding their compensation to be unlawful would undermine federal labor law. Whether applying civil rights laws to collective bargaining agreements is good or bad seems like a policy argument for a court to decide rather than the kind of factual determination that juries make.

The players also note that the Equal Pay Act expressly states that “collective bargaining agreements are not a defense” and that “any and all provisions in a collective bargaining agreement which provide unequal rates of pay in conflict with the requirements of the Equal Pay Act are null and void and of no effect.” Appellate courts have held that collective bargaining agreements cannot perpetuate unlawful discrimination. If the judge decides that those statutory pronouncements and precedents apply to this case, they would seem to foreclose Miscimarra’s opinion.

Challenges to Forensic Accountant

Carlyn Irwin, a forensic accountant, opined that the total pay received by male players should be compared to the total pay of female players. The players argue that the rate of pay, not the total pay, is the better comparison. Given the recent success of female players, their total pay reflects bonuses for winning World Cups that male players did not earn. However, given their different rates of pay, male players would have earned more money than female players if their team had achieved comparable World Cup success.

The judge has signaled, but not decided, that rate of pay is a better comparator than total pay because it is less likely to be influenced by variables (like team success) that change from year to year. In any event, the proper basis for comparison seems like a legal question for the judge to decide, not a factual question that should be left to the jury. If the judge regards it as a legal question, Irwin’s testimony will likely be excluded as irrelevant.

Challenges to Labor Economist

Justin McCrary, a labor economist who is a professor at Columbia Law School, would opine that neither pay system “is systematically better or worse” and that “there is no single rate of pay for either” group. He also points out that members of the USWNT earn more than members of the men’s team when they play “friendlies” (international matches occur outside of tournament competition). Consequently, he reasons, the pay system for the women’s team is not inferior to the pay system for the men’s team.

The USWNT challenges McCrary’s analysis on the ground that it is based on hypothetical assumptions rather than actual data. The USWNT contends that McCrary assumed that the woman’s team would pay “an unrealistically small number of games” as opposed to the number of games that the team actually plays each year. Using the actual data rather than the assumed data, according to the WNT, undermines McCrary’s conclusions.

McCrary also argues that some members of the women’s team earn more than some members of the men’s team. Some female players, for example, earn pay when they are injured and cannot be called up, while injured male players earn no pay because men are only paid if they are called up. Women also receive maternity pay that men do not receive. The WNT argues that individual comparisons are misleading because women as a whole earn substantially less than men when the teams play a similar number of games and achieve comparable success.

Ruling to Come

The court had scheduled a hearing on the motion (as well as the USWNT’s summary judgment motion) for March 30, 2020. The court removed that hearing from the calendar due to coronavirus concerns. It stated its intent to decide the motions based on the parties’ submissions. The rulings may come within the next several weeks.

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 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 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.

Release from Confinement

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 not continue to be confined.

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, separate 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 responded with a shocking claim that it could not 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.


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 one of the weak reports 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.”

Selecting and Preparing Experts

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.