Category Archives: Research & Trends

3D Evidence Enters the Courtroom

The latest tool for expert witnesses who want to explain a crime or accident scene to a jury is the 3D laser scanner. A 3D scanner creates a three dimensional image of the area it scans. Used indoors, it can capture all the contents of a room, from floor to ceiling. Used outdoors, the scanner will record everything within a specified distance.

Commonly used as a tool in industrial design and engineering, medical imaging, and the entertainment industry, lawyers and expert witnesses are beginning to appreciate the value of virtual reality as a litigation tool. As law enforcement agencies and experts make greater use of 3D laser scanners, 3D evidence will play an increasingly dynamic role in the courtroom.

Expert Evidence in 3D

Photographs of accidents and crime scenes have value, but they rarely have the same impact on juries as a three dimensional representation. Virtual scans allow jurors to visualize the scene in more detail than two-dimensional photographs permit. Unlike photographs, a scan’s perspective can be changed to give the jury a ground level or “bird’s eye” view of the scene. A three dimensional representation even allows an expert to take a jury on an animated “fly through” of a crime or accident scene.

Forensic experts also appreciate the wealth of data they can glean from 3D images. An accident reconstruction expert, for example, often works from measurements and photographs taken by accident investigators. Particularly when the investigators are untrained, the photographs and measurements may not give a reconstruction expert a complete set of data. A 3D scan, on the other hand, allows the expert to make precise measurements of distances between objects that are depicted within the scan. The clarity of 3D imaging also helps experts determine where an impact occurred by showing gouges in the pavement and other markings that might not be apparent from two-dimensional photographs.

Fortunately, 3D scans are becoming available to experts when they analyze crime and accident scenes. More and more law enforcement agencies are investing in 3D laser scanners to document the scenes of serious accidents and crimes. That trend is likely to continue as 3D laser scanners become more affordable.

Daubert Considerations

In their book, The Crime Scene: A Visual Guide, Marilyn T. Miller and Peter Massey point out that evidence gathered by means of a 3D laser scanner has survived several Daubert challenges. The Daubert standard governs the admissibility of evidence in federal court and in most state courts.

That 3D scan evidence is routinely admitted should not be surprising. In many cases, the evidence is not challenged. A 3D scan is essentially a virtual reality photograph. Just as courts admit photographs into evidence if a witness establishes that the photograph accurately represented the scene, a 3D scan should be admitted under the same standard. Assuming that the expert’s opinions pass the Daubert test, the use of a 3D scan to illustrate the expert’s reasoning is likely to be helpful to the jury, and should rarely be objectionable.

3D Printers

Experts often use demonstrative evidence to help the jury understand their testimony. An orthopedic surgeon who points to the bones on a plastic skeleton while testifying is a classic example.

If 3D scans are a modern version of traditional photographs, exhibits created by 3D printers are the modern form of demonstrative evidence. A plastic skeleton can be helpful, but an exact replica of a patient’s damaged knee joint gives juries a much better sense of a plaintiff’s injury.

A 3D printer builds a model (in some cases, an exact duplicate) of an object from a digital file made with a 3D scanner. How closely the model will approximate the original depends upon the quality of the printer and the materials used to “print” the model. Typical models are made from thermoplastics, but more expensive printers can use ceramics and metals to build models that are virtually interchangeable with the copied object.

Using 3D printers to build scale models of rooms, buildings, and crashed vehicles generally results in a more accurate model than one that is constructed by hand. In addition, manufacturing an elaborate model with a 3D printer is usually quicker than making traditional models.

Only the expert’s imagination limits the potential uses that can be made of 3D scanners and printers. As the devices become more affordable, lawyers and experts alike should keep their benefits in mind when they think about how to present expert evidence to a jury.

Missouri Debates Adoption of Daubert Standard

Missouri is the latest state to consider jumping on the Daubert bandwagon. The Daubert standard for the admissibility of expert opinion testimony requires judges to exclude opinions that are not based on reliable methodology. Proponents of the Daubert standard argue that it protects against jury verdicts based on “junk science.” The difficulty of deciding whether opinions are based on “junk science” is summed up in the title of a scholarly article that examines the issue: “Our Science is Sound Science and Their Science is Junk Science.”

The Daubert standard governs expert testimony in federal court. About 35 states have adopted some form of the Daubert standard, although (as ExpertPages recently reported) the Florida bar is asking its state supreme court to reject the Florida legislature’s adoption of Daubert. Most of the remaining states adhere to the Frye standard, which admits expert testimony if it is based on scientific methods or findings that have gained general acceptance within the relevant scientific community.

Missouri follows neither Daubert nor Frye. The Missouri test of admissibility, adopted by the state legislature in 1989, requires “the facts and data upon which the expert relies to be of a type reasonably relied upon by experts in the field” provided that the testimony is “otherwise reasonably reliable.”. As is true in federal court, the threshold question in Missouri is whether expert testimony would assist the jury in finding a fact or understanding the evidence.

Critics Attack Missouri Standard of Admissibility

Testifying in support of a bill that would adopt the Daubert standard of admissibility in Missouri, Brian Bunten, the general counsel for the Missouri Chamber of Commerce and Industry, told a legislative committee that “Missouri state judges have their hands tied by an outdated rule for admitting expert testimony—a rule that dates back to 1923 and has been abandoned by the vast majority of states in one form or another.” Bunten’s reference to the Frye standard was misguided, however, since the Missouri legislature rejected Frye when it adopted the current standard in 1989.

It is nevertheless accurate that the current Missouri standard is less restrictive than Daubert. Bunten testified that the U.S. Chamber of Commerce ranked Missouri’s judicial system 42nd out of 50 and said that “the American Tort Reform Association ranked Missouri’s judicial system the fourth worst judicial hellhole in the United States, explicitly citing the lack of Daubert standard in our courtrooms as the reason for the poor rating.”

“Judicial hellhole” is a buzzword that is typically used to describe states in which consumers and injury victims have a better-than-average chance of winning compensation from juries. Notably, the Chamber of Commerce and the American Tort Reform Association both represent the business community, which has an interest in shielding businesses from jury verdicts. Advocates for injury victims and consumers are likely to prefer Missouri’s current standard.

Does the Standard Matter?

Since “junk science” is not generally accepted by any scientific community, expert opinions based on unreliable methodologies should be inadmissible under either Frye or Daubert. It is not clear that the standard adopted by a state actually has a real-world impact on trial outcomes. It is also unclear that judges, who typically lack a scientific background, are more capable than juries of evaluating the reliability of methodologies employed by forensic scientists and other experts.

A widely cited study by law professors Edward Cheng and Albert Yoon suggests that whether a state follows the Daubert or Frye standard makes little difference, at least in tort cases. If there was ever a serious problem of expert witnesses relying on “junk science,” as proponents of the Daubert standard claim, judicial awareness of that problem has increased, regardless of the standard the state applies. As judges have developed a stronger understanding of what makes an expert opinion reliable, they have become less inclined to allow juries to consider unreliable opinions.

In addition, the fact that jurors are allowed to consider an expert opinion does not mean that jurors will accept it. The fear that juries are swayed by junk science finds little support in empirical studies. Juries are usually capable of distinguishing treasure from junk.

In some instances, the Daubert standard authorizes the admission of expert testimony that the Frye standard would disallow. Opinions that are derived from reliable methodology are admissible under Daubert even if they have not gained general acceptance in the scientific community. To the extent that Daubert liberalizes the admissibility of expert opinions, it may not be the shield that some members of the business community believe it to be.

As Robert Underwood wrote, “nothing fosters belief like self interest.” That can be true of experts who tailor opinions to favor the party who pays for those opinions. It can also be true of lawyers who argue for standards of admissibility that they regard as improving their chances of winning cases. In the end, expert testimony plays a vital role in the justice system and will continue to do so regardless of the standards of admissibility that states choose to adopt.

New Skull Fracture Research May Cause Experts to Revise Child Abuse Opinions

Legal teams that seek to free wrongly convicted defendants from prison frequently turn to expert witnesses to help them prove a client’s innocence. New evidence provided by DNA experts has resulted in 330 post-conviction exonerations in the United States. Many of those innocent defendants were facing the death penalty.

As ExpertPages has reported, expert testimony is also persuading courts to reopen cases in which convictions were based on evidence of “shaken baby syndrome.” Advances in medical science have persuaded experts that many so-called “shaken baby” injuries that were once thought to have been inflicted as an act of abuse could have resulted from natural causes.

New research may cause forensic investigators to rethink their conclusions — and may lead to a new wave of exonerations —in child abuse cases involving skull fractures. In the past, experts testified that multiple fractures were indicative of child abuse. New research is now casting doubt upon that testimony. In the near future, experts may be called upon to help free wrongly convicted prisoners who are serving child abuse (or murder) sentences in cases where children experienced multiple skull fractures.

Skull Fracture Research at MSU

Until now, when doctors and medical examiners observed multiple fractures on a child’s skull, they regarded it as a “red flag” for child abuse — at least in the absence of an accident that produced multiple impacts with the child’s head. Researchers at Michigan State University are now questioning that conclusion. Their research may change the way forensic scientists interpret skull fractures when they are deciding whether a child was or was not the victim of child abuse.

After spending years smashing infant pig skulls and examining the results, the MSU research team has concluded that a single impact can cause multiple, unconnected fractures. That finding contradicts the conventional view that unconnected fractures can only be produced by separate impacts.

The research brought together Todd Fenton, the director of the MSU Forensic Anthropology Laboratory, and Roger Haut, the director of MSU’s Orthopaedic Biomechanics Laboratories. Fenton thought that merging the expertise of a forensic anthropologist and a biomechanical engineer could fill a gap in existing science. Their ultimate goal is to create a map of skull fractures that could be used to prove or disprove child abuse accusations.

Implications for Skull Fracture Child Abuse Cases

The research may lead to exonerations of individuals who have been convicted of child abuse on the strength of mistaken testimony that a single, accidental blow to the head could not produce multiple fractures. “Knowing what we know now,” Fenton told the Lansing State Journal, “our fear is that there may be people that have been wrongly accused of child abuse based upon those protocols.”

The MSU team’s findings may be particularly significant in cases where a defendant testified that a child was dropped accidentally or fell out of bed. In the past, juries may have rejected the defendant’s testimony simply because prosecution experts testified that a single fall would not produce multiple fractures.

Fortunately, honest scientists are willing to change their minds when advances in scientific research demonstrate that conclusions they drew in the past may be mistaken. Just as experts have recanted their testimony in shaken baby cases, experts who testified that multiple skull fractures could not result from a single impact may be asked to rethink their opinions by post-conviction attorneys working to free wrongly convicted defendants in child abuse cases.

Meeting Future Challenges

Fenton notes that determining the cause of a pediatric death is often challenging. “And often times,” Fenton says, “when those cases go to trial, expert witnesses line up on both sides and it can become really contentious.”

Before the MSU scientists began their work, there was little sound science upon which to base an interpretation of cranial fractures. The MSU team is working with computer scientists to build a skull fracture database that they have termed the Fracture Printing Interface. They hope that their database will give forensic experts a foundation for deciding whether a skull fracture pattern was or not the result of child abuse.

How an Expert Explains the Psychology of Killers

Psychologists can play important roles in criminal cases for both the defense and prosecution. During trials, they may focus on issues of eyewitness identification, diminished capacity, or the susceptibility of child witnesses to outside influence. Before trial, they establish or refute a defendant’s competency to stand trial. At sentencing, they educate the judge about the defendant’s cognitive ability, mental impairments, family history, social environment, treatment needs, and potential for rehabilitation. Psychologists who provide mitigating evidence during the death penalty phases of murder trials often make the difference between life and death.

Explaining the Choice to Kill

In his recently published book, Listening to Killers, Dr. James Garbarino recounts the lessons he learned from his twenty years of testifying as an expert witness in murder cases. His book exemplifies the kind of testimony that psychologists provide in criminal cases.

Chapter one (available as a pdf online) explores whether and why murderers choose to kill. Mixing case studies from his own experience with current research findings, Dr. Garbarino explains how the choices that murderers make are shaped by a variety of factors, including brain functions, cultural values, panic, personality disorders, traumatic experiences, fear, misperceptions, addiction, curiosity, peer pressure, and the instinct for self-preservation.

Psychologists often examine the difference between choice and compulsion. They join neuroscientists in asking whether the concept of free will (upon which the criminal justice system’s philosophy of punishment is based) is just an illusion. Behavioral choices that many people perceive as evidence of moral weakness or “bad character” may not be choices at all, in the sense that choices can be driven by unconscious motivations. If the decision to murder is the product of psychological and environmental factors that the killer did not choose, is the killer really choosing to kill?

The Science of Decision-Making

Psychologists are not called upon to justify criminal behavior, but to make it comprehensible. Their goal is to help judges or juries see the defendant as a human being, not as a monster. They focus on “the science of decision-making,” basing testimony on the neuroscience community’s evolving understanding of brain development and its impact on human behavior. They also rely upon studies that have linked murders and violent behavior to damage in parts of the brain that are responsible for moral calculations or empathy.

At the same time, experts caution against attributing criminal or violent behavior solely to underdeveloped or damaged brains. Research suggests that murderers have a “genetic vulnerability” to brain development that fails to control antisocial behavior. Despite that vulnerability, brains may develop normally when children are raised in a safe and nurturing environment. On the other hand, abuse or trauma may act as triggers that prevent vulnerable brains from developing the social controls and empathy that cause most people to behave nonviolently.

Differing Approaches to Expert Testimony

The extent to which psychologists are permitted to testify in criminal cases varies from state to state and from context to context. For example, the admissibility of a psychologist’s pretrial testimony on the issue of competency to stand trial is relatively uncontroversial. Mitigation testimony during sentencing is also generally admissible and, in the death penalty phase of a trial, cannot generally be precluded and may even be required.

Judges typically exercise considerable discretion over the admissibility of a psychologist’s defense testimony in the guilt phase of a murder trial. Some states have adopted evidentiary standards that preclude experts from offering an opinion as to whether a defendant was capable of forming an intent to kill. Judges are even less likely to allow a psychologist to testify that a defendant did not have an intent to kill.

State evidentiary standards also differ as to whether (for example) a “battered woman’s defense” can be raised to explain why an abuse victim killed her abuser. Similarly, states have taken inconsistent approaches to diminished capacity defenses. When they are allowed to testify, however, there is little doubt that psychologists and behavioral experts can be of enormous assistance to a criminal defendant who is charged with murder.

Florida Judge Advocates for Increased Use of Eyewitness Experts in Criminal System

A Florida Supreme Court Justice issued a strong argument for the use of eyewitness testimony expert witnesses in the state’s criminal system – supporting the growing field of social and behavioral science that has called to question the accuracy of eyewitness identification. Justice Barbara Pariente issued her comments imploring the use of eyewitness experts as a concurring opinion in the court’s recent decision to reject the appeal of a Death Row inmate, opening the door for supporters of the issue to push for expanded use of behavioral science studies in Florida courtrooms.

Florida Supreme Court Justice Calls for Eyewitness Expert Witnesses

Justice Pariente saw the opportunity to make her opinion on the use of behavioral science experts known when Charles Peterson filed an appeal to his Death Row conviction on the grounds that his trial lawyer’s failure to use an eyewitness identification expert constituted ineffective assistance of counsel. Although Pariente joined the unanimous ruling dismissing Mr. Peterson’s appeal, she, joined by Justice Peggy Quince, wrote a strong concurring opinion that championed the use of such experts in future trials. Her 8-page opinion noted that the outcome of Peterson’s appeal should not lead courts to conclude that the use of eyewitness identification experts is inadmissible, but instead encouraged judges to welcome such testimony to help juries decide on the reliability of eyewitness identifications.

Currently, Florida courts rely on a 31-year-old standard for eyewitness experts which rejects their use, arguing, “a jury is fully capable of assessing a witness’ ability to perceive and remember…without the aid of expert testimony.” Justice Pariente disagreed, pointing out that advances in social science have identified a number of factors that can result in misidentification and misremembering by eyewitnesses, and jurors are unable to tell when a witness is mistaken. Pariente wrote, “As the burgeoning body of scientific research indicates and courts across the country increasingly recognize, expert witness testimony on the reliability of eyewitness identifications can be a “powerful tool in helping the criminal justice system achieve its goal of convicting the guilty while acquitting the innocent.”

Justice Pariente Not Alone in Legal Community

As she noted in her opinion, Justice Pariente is not alone in welcoming the use of eyewitness expert testimony to help judges and juries analyze eyewitness identification. As blogged about here, Pennsylvania recently welcomed the use of eyewitness experts, joining courts in New Jersey, Utah, Oregon, and Connecticut. Justice Pariente pointed to Connecticut’s stance on the matter, suggesting that Florida “adopt the rationale of the Supreme Court of Connecticut … and conclude that this Court’s precedent, which suggests that factors affecting eyewitness testimony are within the common experience of jurors, is ‘out of step with the widespread judicial recognition that eyewitness identifications are potentially unreliable in a variety of ways unknown to the average juror.’”

Justice Pariente also pointed to work on the issue submitted by the Innocence Project, a nationwide organization that seeks to combat wrongful convictions in part by informing jurors about the common errors that plague eyewitness identification. Pariente noted research by the Innocence Project which found that 75{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of wrongful convictions later exonerated by DNA were the result of eyewitness misidentification – evidence that not only are eyewitnesses frequently unreliable, but that jurors are not able to identify when misidentification has occurred.

Although Justice Pariente’s analysis represents a progressive use of eyewitness experts that is supported by a growing number of behavioral science studies, the legal community has not widely embraced the change. Judges across the country still believe in the ability of jurors and attorneys to ferret out unreliable testimony, and are hesitant to open the courtroom doors to social science experts like those who offer analysis of eyewitness accounts. Because Justice Pariente’s argument was unrelated to the outcome of the case in which she wrote it, Florida judges are not compelled to welcome eyewitness expert testimony, however, Pariente’s words are encouraging to advocates of behavioral science experts and may prove significant should the Florida Supreme Court have the opportunity to set a new standard in the near future.

Remote Expert Testimony Via Skype Embraced in Australia

An Australian court has embraced the age of digital communications by allowing expert witness testimony to be delivered via Skype or other teleconferencing applications. Called remote witness evidence, the experimental practice has been utilized in select criminal courts over the past 12-months. Feedback on the procedure seems positive, particularly from expert witnesses who do not have to travel, but remote witness testimony is a long way from becoming widely accepted – particularly in the US.

Remote Expert Witness Testimony Useful in Australian Criminal Trials

Initiated to end the hours spent by police officers and other expert witnesses waiting at the courthouse, the driving force behind Australia’s experiment with remote testimony is efficiency in the legal system. Deputy Police Commissioner Catherine Burn touted the advantages of remote testimony by saying that time spent as a witness was “something that police have had a real frustration with for decades” before teleconferencing provided a solution. Prosecutors must notify the court that expert witnesses or police intend to present testimony remotely, and if the judge determines that the evidence is too contentious, the witness must still report to court in person.

In addition to trimming the time spent by expert witnesses, allowing remote testimony has two other notable advantages:

Cost: Paying an expert witness to travel to a courthouse for testimony can get expensive – particularly if the expert is not local. Hiring an expert witness can be expensive, and costs such as flights, rented cars, meals, and hotel rooms can easily make the use of some experts too pricey for a number of criminal defendants.
Expanded Access: With concerns over travel costs effectively eliminated, clients in a remote testimony environment have expanded access to a variety of experts. Over the course of Australia’s experiment with remote testimony, some cases featured testimony by experts in other parts of the country and even as far away as England. With remote testimony in place, clients can rely on expert witnesses from virtually anywhere – providing the internet connection allows for easy teleconferencing.

Australian courts making use of remote testimony reported little to no problems with connectivity or communication quality, meaning introducing expert witness testimony via teleconference was not significantly different than doing so in person.

United States Unlikely to Welcome Remote Expert Witness Testimony

The concept of remote witness testimony is not uncontemplated by American jurisprudence. The Supreme Court spoke directly to the issue in 2004’s Crawford v Washington, and directly rejected widespread use of remote testimony as being in violation of the Confrontation Clause of the Constitution. The Confrontation Clause gives every criminal defendant the right to physically confront, in court, any witness – including an expert witness – who offers evidence during trial. The Crawford opinion echoed the Court’s decision to reject a 2002 amendment to the Federal Rules of Evidence that would have allowed remote witness testimony based on concerns over the Confrontation Clause. The Supreme Court, setting the tone for the American legal system, has declined the opportunity to allow widespread use of remote expert witnesses, and it is unlikely the thinking will change dramatically despite technological advances that have made teleconferencing more affordable and reliable since the Court last weighed in.

Although the issue of remote testimony seems stagnant in the United States, it is not necessarily dead. Courts already allow limited use of teleconference testimony, typically reserved for situations in which the witness is intimidated by the defendant and unable to confront him in court – none of which would apply to use of experts. As technology improves teleconferencing – an innovation clearly not considered by the Constitution – Courts may begin to recognize that defendants are still able to confront a witness who testifies remotely. Legal scholars continue to keep the issue fresh (see articles here, here, and here), and it is possible, even likely, that a younger generation of judges who are more familiar with technology will be willing to open the door for remote testimony across the U.S.

Pennsylvania Supreme Court Rejects Use of False Confessions Expert Witness

Criminology research indicates that approximately 1/3 of people accused of crimes issue a false confession – a troubling statistic considering how valuable confessions are in criminal trials. Behavioral scientists have conducted years of research into the matter, and recently the Pennsylvania Supreme Court was called upon to decide on whether a social scientist expert witness could offer testimony regarding false confessions during a criminal trial. Unconvinced by social science research, the Court rejected behavioral expert testimony regarding false confessions, contradicting a similar opinion it issued the same day.

Pennsylvania Court Rejects False Confession Expert

In Commonwealth v Alicea, a divided Pennsylvania Supreme Court reversed a lower court decision that allowed a nationally renowned behavioral science expert to testify about false confessions during a criminal trial. Murder trial defendant Jose Alicea, accused of a 2005 killing, confessed to the crime after five hours of intense police interrogation. Lawyers for Mr. Alicea, whose IQ of 64 is well below the traditional threshold for intellectual disability, argued that expert testimony regarding the tendency for certain defendants to falsely incriminate themselves was critical to jurors’ analysis of their client’s confession.

Writing for the majority, Judge Seamus McCaffery was unconvinced that jurors needed a behavioral science expert witness to evaluate the legitimacy of confessions. Wishing to avoid a battle of experts arguing social science generalities, the court wrote, “Ultimately, we believe that the matter of whether a confession is false is best left to the jury’s common sense and life experience.” Cleary, Judge McCaffery and the rest of the 4 – 2 majority were unconvinced that the value of behavioral science research outweighed the potentially overwhelming use of social science experts during criminal trials – leaving dissenting judges with a strong counterargument.

Dissent Argues Value of Behavioral Science Expert Witnesses

Dissenting members of Pennsylvania’s high court took issue with the majority’s approach to social science research. Writing for the minority opinion, Judge Thomas Saylor criticized the majority’s “blanket exclusion of social science research based upon unanalyzed assumptions about juror capabilities, even as these assumptions are challenged by demonstrations of wrongful convictions and developing behavioral science.”

Judge Saylor’s argument is echoed by defense attorney organizations and social scientists who seek acceptance by the judiciary of established behavioral science research. It also represents a position the Pennsylvania Supreme Court was willing to accept in a related case – leaving the overall place for behavioral science expert witnesses in Pennsylvania criminal trials somewhat unclear.

Alicea Decision Contradicts Earlier Ruling on Use of Behavioral Science Experts

The Court’s decision in Alicea is somewhat puzzling considering that earlier in the day it accepted the use of behavioral science in Commonwealth v Walker – blogged about here. In Walker, the Pennsylvania Supreme Court accepted testimony by a behavioral science expert witness who explained to jurors the inaccuracies common across eyewitness testimony. Like Walker, the defendant in Alicea relied on expert testimony based on advances in social science to explain general patterns of human behavior that could influence a criminal investigation and trial, however, Pennsylvania’s Court was unwilling to broadly welcome behavioral science by accepting it in both cases.

While it is difficult to reconcile the two outcomes from Pennsylvania’s Supreme Court, the combination of Walker and Alicea are useful case studies of the integration of behavioral science expert witnesses into the legal system. Although it is clear by the dissent in Walker and the majority opinion in Alicea that some judges are unwilling to buy into the conclusions advanced by social science research, the partial acceptance in Walker is an encouraging step for behavioral science proponents. The expanding use of expert witnesses with behavioral science expertise will force more state courts to consider similar issues, and, while Pennsylvania may not offer a model of consistency, the Walker and Alicea decisions highlight the types of arguments judges will consider in future cases.

Arizona Supreme Court Allows “Cold” Expert Witness Testimony

The Arizona Supreme Court issued a landmark ruling last week, changing the way criminal trials in the state can make use of expert witness testimony. Rejecting an appeal of a lengthy prison sentence, the Court admitted testimony of a “cold” expert witness – meaning an expert who has not interacted with the victims.

Arizona Admits Cold Expert Witness Testimony

Martin Salazar-Mercado appealed his conviction of multiple counts of child abuse to the Arizona Supreme Court due to the prosecution’s use of an expert witness who knew nothing about the particular victims involved in the case. At trial, the state presented testimony of a forensic interviewer who discussed a condition known as Child Sexual Abuse Accommodation Syndrome in order to explain the behavior of Salazar-Mercado’s victims. Many of the child victims delayed reporting the abuse, had trouble recalling the timing of events, and even changed stories during the course of investigation – symptoms common among young victims of sexual abuse. Salazar-Mercado’s attorney objected to use of the expert witness because she had not interviewed any of the children or connected personally with the case.

In a unanimous decision, the Court rejected Salazar-Mercado’s appeal and set a lasting standard for the use of experts in Arizona criminal trials. Holding that the state’s forensic interviewer expert testimony was admissible, the Court found that, “Expert testimony about general behavior patterns of child sexual abuse victims may help the jury understand the evidence.” In this case, the state’s expert helped the jury understand reasons for the delayed and inconsistent reporting. In its conclusion, the court was careful to limit cold expert witness testimony to “general principles of social or behavioral science,” and reminded judges that cold testimony must still satisfy legal standards for admissibility.

Understanding Cold Expert Witness Testimony

Expert witness testimony is often used to analyze facts of the case and explain how professional or scientific knowledge applies directly to the particular issues jurors must decide. Experts are called upon to conduct investigations, write reports, and offer pointed testimony that help judges or jurors answer questions about the facts of the case. Traditionally, experts who have not interacted with the particulars of the case have not been used to speak to victim behavior, however the continued advances in social and behavioral science have made the use of cold expert witnesses possible.

A cold expert witness is so termed because she has not connected personally to the facts of the case, but instead is called upon to offer testimony on general principals – often relating to behavior. Courts make use of cold experts in order to understand why the parties involved behaved in a particular manner, but their testimony is limited in scope. In the Salazar-Mercado appeal, the Arizona Supreme Court properly restricted cold expert testimony by forbidding one to testify about “the accuracy, reliability or credibility of a particular witness,” because an expert who has not personally investigated the facts cannot comment on specific issues. As with any expert, a cold expert witness speaking to social or behavioral science must be able to show her testimony is supported by reliable and scientific knowledge before being admitted at trial.

Pennsylvania Supreme Court Allows Expert Testimony on Eyewitness Identification

Pennsylvania’s Supreme Court made a significant ruling on expert witnesses this week when it determined that juries may hear experts testify to the reliability of eyewitness identification. Social scientists have dedicated years of study that casts doubt on the ability of eyewitnesses to accurately recall events – meaning that juries may be making decisions based on incorrect accounts. Many state jurisdictions and federal courts already allow expert witnesses to inform jurors about the unreliability of eyewitnesses, making Pennsylvania the latest in a long list of courts to take this step.

Eyewitness Testimony is Questionably Reliable

Study of the human brain has revealed that we have difficulty accurately recalling information, and often fill in the memory gaps with embellishment or fiction to produce a false account of what occurred. Much of this is subconscious, meaning that eyewitnesses may believe they are telling the truth, but, regardless of intent, scientists suggest that many eyewitness reports are tainted by untruths that could significantly alter a juror’s perception of what occurred. From misidentification of a defendant, to inaccurate recollection of events, experts on eyewitness testimony have identified a number of concerning legal consequences of the human brain’s inability to accurately recall information.

Complicating the inaccuracies that plague eyewitness testimony is the value that jurors place on that type of evidence. Jurors find eyewitnesses to be strongly convincing, which means that trials are heavily influenced by information that is potentially unreliable given the source. Further study has demonstrated that jurors are not able to tell when an eyewitness is lying, so there are few safeguards in place to prevent reliance on inaccurate testimony. Although the effect of an eyewitness expert testifying to the unreliability of personal recollections at trial is unknown, many legal jurisdictions have recognized the importance of having an expert inform the jury of the scientific community’s investigation into eyewitness accounts.

Pennsylvania’s Eyewitness Identification Expert Ruling

Pennsylvania’s Supreme Court considered the case of Benjamin Walker, a man convicted of a 2005 robbery of two college students in Philadelphia. Walker, who is serving 35 years in prison, was convicted because the victims identified him during their testimony. Walker and his attorneys brought the challenge in an attempt to allow him to present a psychology expert witness who would explain to jurors that eyewitness identifications are potentially unreliable.

The four-justice majority in the case agreed with Walker’s argument, and determined that Pennsylvania jurors will now be allowed to hear expert testimony on the reliability of eyewitness identification. Writing for the majority, Justice Debra Todd stated, “Twenty years of advances in scientific study have strongly suggested that eyewitnesses are apt to erroneously identify a person as a perpetrator of a crime when certain factors are present.” Finding that the statistical evidence suggesting the inaccuracy of eyewitness testimony is “substantial,” Justice Todd supported the use of expert testimony to inform jurors of concerns of eyewitness identification.

Eyewitness Expert Testimony Ruling Not Unanimous

Two judges on Pennsylvania’s Supreme Court dissented from the majority, writing that a better approach would be to allow the judge to inform jurors about the potential issues with eyewitness identification during juror instruction. Arguing that allowing expert witnesses to testify about eyewitness identification would open the door to allow experts to confuse jurors with testimony questioning all aspects of eyewitness accounts. Chief Justice Ronald Castille went on to defend jurors’ ability to understand the problems with eyewitness identification, saying that social science experts are not needed to inform juries about “matters affecting human perception and recall.”

Despite the dissent, which seems to ignore convincing study on the value of social science experts on eyewitness testimony, many criminal defense attorneys consider the Pennsylvania decision to be a step in the right direction. Defense attorney organizations argue that allowing eyewitness experts to testify about recall problems will help reduce wrongful convictions, and Pennsylvania’s decision to join other jurisdictions in allowing social science expert witnesses to contribute testimony is a positive outcome for the integrity of criminal prosecutions.

Law Professor Plagiarizes Wikipedia for Expert Witness Report

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

ExpertPages Blog

Expert Evidence in 3D

Daubert Considerations

3D Printers

Critics Attack Missouri Standard of Admissibility

Does the Standard Matter?