Category Archives: Research & Trends

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.”

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.

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.

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{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of the offenders had been arrested for a new sex offense. That recidivism rate is remarkably low, considering that 49{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} 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.

Methodology

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

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

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

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

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

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

The reports concerned gait analysis, which purportedly allowed the expert to identify a person on a video recording by the way the person walked. The expert in the strong report was a podiatrist. The expert in 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.

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

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

Facts of the Case

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

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

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

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

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

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

Expert Witness Disclosure

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

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

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

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

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

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

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

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

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

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

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

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

Challenge to Scheduling Order Violation

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

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

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

Failure to Disclose Expert’s Notes

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

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

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

Dr. Moore’s Expert Testimony

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

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

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

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

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

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

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

Lawsuit Against Ocean City

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

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

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

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

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

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

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

Plaintiff’s Expert Witness

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

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

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

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

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

Challenge to Ocean City Experts

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

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

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

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

The Psychology of Deadly Force Debate

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

Defense of Jason Van Dyke

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

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

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

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

The Argument Against Allowing Deadly Force Psychology

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

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

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

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

Judge Orders Mental Health Treatment Recommended by Defense Expert Witness

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

The Crime

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

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

The Trial

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

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

The Sentencing

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

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

Mental Health Courts

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

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

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

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

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