The American jury trial system is adversarial. The plaintiff presents evidence to prove entitlement to legal relief. The defense challenges that evidence and has the option to present evidence of its own to persuade the jury that relief should not be awarded.

Between the two adversaries sits a neutral judge. The role of the judge, as Chief Justice Roberts put it in his confirmation hearing, is to call balls and strikes. In fact, Supreme Court Justices do not play the role of umpire — they determine the law — but Chief Justice Roberts aptly described the role of a trial judge.

Assuming that the law is settled, the trial judge’s only task is to assure that the parties receive a fair trial. The judge should not take sides in the dispute. Taking sides is the job of the adversaries and their attorneys.

Judges must usually allow the parties to present their evidence as they see fit, within the bounds of the law. Judges decide whether questions that the lawyers ask witnesses are proper, but judges do not themselves question witnesses. Deciding whether questions are proper results in the “balls and strikes” rulings that Chief Justice Roberts described.

On occasion, judges ask questions to clarify answers, but they must maintain their neutrality while doing so. Judges cross the line between neutrality and advocacy when they take over the questioning of a witness. The Idaho Supreme Court recently decided whether a trial judge’s questioning of an expert witness crossed that line.

Facts of the Case

Damian Secol died from T-cell lymphoblastic lymphoma, a rare form of cancer. Several months before his death, Damian visited a primary care physician, Dr. Austin Gillette, at Fall River Family Medicine. Damian complained of persistent coughing and a feeling that his throat was closing when he lay down.

Damian visited the same clinic five more times over a period of about six weeks. Each time he was examined by either Dr. Gillette or Dr. Kelly Dustin. Neither physician ordered a chest x-ray.

Damian’s wife Cassie accompanied Damian on one of his visits. She asked Dr. Dustin to perform a chest x-ray. Dr. Dustin told her the x-ray was unnecessary because Damien was suffering from an allergy or asthma.

Damian’s symptoms steadily worsened. After his last visit with the clinic, he drove some distance to another clinic and asked for a second opinion. He was promptly given a chest x-ray and a CT scan, which revealed a large mass in his chest. A biopsy confirmed that Damien had acquired a fast-growing form of cancer. The first stage of Damian’s treatment by an oncologist was successful, but his condition deteriorated during the second stage, leading to his death.

Trial Evidence

On behalf of herself and her four children, Cassie sued Fall River Family Medicine and Drs. Gillette and Dustin for medical negligence. She contended that the doctors breached the appropriate standard of care by not ordering a chest x-ray, resulting in a delayed cancer diagnosis and Damian’s premature death.

The clinic designated two expert witnesses to testify about standard of care. Cassie asked the court to limit the clinic to a single standard of care expert. The judge granted that motion. After the judge was appointed to a higher court, the case was reassigned to Judge Jon Shindurling. The clinic asked Judge Shindurling to reconsider the ruling that limited it to a single standard of care expert. While a change of judge is not usually an adequate ground to reconsider a ruling, Judge Shindurling granted the clinic’s request.

The clinic also disclosed Dr. Jeffrey Hancock, Damian’s treating oncologist, as a non-retained expert witness. The clinic wanted to ask Dr. Hancock whether his prognosis would have been different if Damian had been diagnosed six weeks earlier. The clinic contended that the delayed diagnosis, even if caused by their doctors’ negligence, did not cause any harm because Damian would have died on the same day even if the cancer had been diagnosed six weeks earlier.

Carrie objected that Dr. Hancock should be limited to testifying about his diagnosis and treatment of Damian. Since he was not a retained expert, Carrie argued that he should testify as a treating physician and should not provide expert opinions about the impact of a delayed diagnosis. Judge Shindurling overruled those objections.

Judicial Questioning

After Dr. Hancock testified and was cross-examined, Judge Shindurling engaged in an extensive cross-examination of his own. Among other questions, the judge asked:

• Whether it was likely that Dr. Gillette should have diagnosed cancer during his first visit with Damian.
• What the primary care physician faces after seeing symptoms which “ultimately, in hindsight,” were symptoms of cancer.
• At what point a patient who is being treated for symptoms similar to Damian’s would come to see an oncologist. Dr. Hancock testified that he would usually see the patient after a couple of months of treatment, when a physician has seen a mass in a chest x-ray.
• Whether sending a patient to an oncologist “a couple of months” after first seeing the patient for such symptoms means that the treating physician acted inappropriately. Dr. Hancock responded, “never.”

The judge said that he wanted to hear about the six-week period between the first consultation and the chest x-ray because “the testimony hasn’t focused on that.” While the court characterized the questions as “clarifying,” the questions went beyond the evidence presented by the defense and actively solicited expert opinions that the defense did not solicit.

Clarissa moved for a mistrial because the judge departed from his role as a neutral umpire and became an advocate for the defense. Unsurprisingly, the judge denied that motion and the jury returned a verdict in favor of the clinic and its doctors. Clarissa appealed.

Appellate Analysis

While Idaho’s procedural rules allow judges to question witnesses, the state supreme court noted that “exercise of this authority is fraught with the risk that the jury will be influenced in their deliberations by their perception of the court’s opinion of an issue.” A judge’s extensive questioning of a witness signals the judge’s belief that the witness has given important testimony.

A jury may attach greater weight to the testimony of a witness who has been questioned by the judge or may attach lesser weight if the judge’s questions suggest skepticism about that testimony. Judicial questioning should therefore be limited to clarifying a confusing answer.

Judge Shindurling went well beyond the permissible bounds of questioning. As the supreme court noted, the judge elicited inadmissible testimony. As he acknowledged in his deposition, Dr. Hancock was not qualified to testify about the standard of care that applies to primary care physicians. The clinic did not ask him to do so. Yet the judge asked what Dr. Gillette should have done and expressly asked whether Dr. Gillette acted inappropriately. The questions could only be answered with inadmissible standard of care testimony.

The judge’s comment explaining why he wanted to ask questions was also prejudicial. The judge said he had “some thoughts that haven’t been answered” and that it had only “been suggested, or at least implied” that Fall River should have diagnosed Damian’s disease earlier.

The first comment suggests that the judge wasn’t satisfied with the evidence presented by Clarissa. As the supreme court explained, the judge’s “statement that the evidence that had been presented merely implied or suggested certain facts called into question the weight of the expert testimony offered by the Secols during trial.”

The jury likely understood the judge’s comments to mean that the judge didn’t think the expert evidence presented by Clarissa was sufficient to prove malpractice. The judge thus improperly placed his thumb on the scale to favor the clinic.

Finally, after Dr. Hancock testified that it is never inappropriate for a treating physician to fail to order a chest x-ray for a period of several weeks as a patient’s health declines, the judge commented: “Thank you. That’s the questions I had. I think that we needed to focus on that point of view.” The jury could easily have perceived that comment as an endorsement of Dr. Hancock’s expert opinions.

Since Judge Shindurling’s comments and questions unmistakably signaled his opinion that the malpractice claim had no merit, the judge deprived Clarissa of a fair trial. The supreme court therefore reversed the judgment against her and ordered a new trial.

Unfortunately, not all trial judges confine themselves to calling balls and strikes. When a judge abandons neutrality and takes one party’s side, presenting expert testimony becomes a futile endeavor. Fortunately, the Idaho Supreme Court ordered the case reassigned to a different judge so that Clarissa will have a chance to present her case to a jury that will not be influenced by judicial bias.

Thomas Lee Johnson was convicted of first-degree murder. Weeks after a woman was stabbed to death in her home, Johnson told his ex-wife that he had rented a car, driven to the woman’s home, carried a stun gun into the residence, and confronted the woman. Johnson told his former wife that the woman armed herself with a knife and told him to leave. Johnson’s story became confusing at that point, but he said that he panicked in response to the woman’s reaction. He then disposed of the knife and left the state.

Johnson relied on expert witnesses during his trial. On appeal, he argued that the prosecution’s cross-examination of his expert witnesses, and the prosecution’s comment upon the experts during closing argument, was improper. The Colorado Court of Appeals agreed but affirmed the conviction.

Cross-Examination of Clinical Psychologist

Gwen Mitchell, a clinical psychologist, testified about the human response to stress and trauma, including the concept of “fight, flight, or freeze.” She explained that people do not always make a rational evaluation of threatening situations. A mistaken assessment of a threat may lead to the excessive use of force in response to the threat.

Mitchell also testified that after a traumatic event, individuals may suffer from an impairment of memory or may be unwilling to discuss the event. They may also experience dissociative behavior.

On cross-examination, the prosecutor asked Mitchell:

• if “rational people . . .decapitate women on their apartment floors”;
• if taking such actions as leaving the state, obtaining false identification, behaving evasively, and hiding the truth from police and family is consistent with an attempt to avoid responsibility;
• if certain behavior is consistent with “narcissism from the DSM-5 grandiosity”;
• if the abandonment of parental rights can cause stress and be a sign of narcissism or sociopathy; and
• if a sexual assault could be the result of stress and if the possibility of a “rape charge” could create further stress.

The defense objected that the questions were irrelevant, inflammatory, or improper. However, the defense used the expert testimony to argue that Johnson’s actions were the result of a primitive response to the perception of a threat. The court of appeals concluded that the prosecutor’s questions were relevant because they were designed to cast doubt on Mitchell’s opinions in favor of the alternative theory that Johnson engaged in premeditated conduct. The prosecution’s hypothetical questions were based on evidence that the jury heard so they were not improper.

The prosecutor certainly walked the line between permissible and impermissible questioning. The court characterized the questioning as “aggressive.” Asking an expert whether rational people “decapitate women on their apartment floors” seems to cross the line from aggressive to inflammatory. With little analysis, the court nevertheless concluded that the questioning did not deprive Johnson of a fair trial.

Cross-Examination of Criminal Investigation Expert

The defense called Joseph Arseneau as an expert in criminal investigations. Arseneau worked for several years as a law enforcement officer before beginning a career that involves litigation support and expert testimony.

The appellate opinion provides little information about Arseneau’s direct testimony. On cross-examination, the prosecutor asked if the evidence that Arseneau reviewed would be “consistent with a sadistic and demeaning sexual cutting” and if it would be “also consistent with [a] brutal, depraved, cold-blooded hacking of a woman.”

The appellate court decided that the questions were not unfairly prejudicial because they explored a theory of the crime as an alternative to Arseneau’s theory. The question, however, was not whether exploring alternative theories was proper, but whether it was prejudicial to do so by using inflammatory language that was likely to stir the passions of the jurors. The court skirted that issue.

Closing Argument

Discussing Arseneau’s expert testimony during its closing argument, the prosecutor:

• told the jury “that guy is a fraud”;
• characterized Arseneau’s testimony as the “speculative musings of an overreaching, I suppose, ex-police officer with bare minimal experience, who I submit to you tried to sell himself to us as something . . . he is not”; and
• argued that “with his bogus web page, [Arseneau was] holding himself out as Colorado P.O.S.T. Certified, with misleading puffery and false swagger, essentially saying anything he can and co-opting the work of others. He reads a book, and he wants to come here and pretend like he’s the author of the book.”

The outrageous nature of the attack on Arseneau was of only slight concern to the appellate court. The court concluded that Arseneau’s nine years of law enforcement experience could fairly be characterized as “minimal” since he was a patrol officer, not a crime scene investigator. Yet expertise can be acquired through study, not just experience, and gaining expertise through study does not make an expert “something . . . he is not.”

Arseneau admitted during his testimony that he was not currently certified by the Peace Officer Standards and Training Board (P.O.S.T.) because P.O.S.T. only certifies current law enforcement officers. Arseneau was certified when he was still working as a law enforcement officer. The appellate court concluded that the failure to indicate on his website that his P.O.S.T. certification was no longer current] provided an evidentiary basis for the prosecutor’s comment that the website was “bogus.” The court relied on that same evidence to excuse the prosecutor’s argument that Arseneau “tried to sell himself to us as something that he is not” and engaged in “misleading puffery.”

The court was more troubled by the prosecutor’s characterization of Arseeau as ““co-opting the work of others,” and as having read a book and “want[ing] to pretend like he’s the author of the book.” The court recognized that the prosecutor had no basis for accusing Arseneau of being a plagiarist. Nor does one “co-opt the work of others” by reading a professional treatise and learning from it. The accusation that Arseneau plagiarized another person’s work was an improper personal attack upon the expert witness.

The court also agreed that the prosecutor crossed the line between fair but aggressive argument and unfair disparagement of an expert witness when he accused Arseneau of testifying “with false swagger, essentially saying anything he can.” While “misleading puffery” went to the content of Arseneau’s website, “false swagger” was a personal attack upon his character. Claiming that Arseneau would say “anything he can” was the equivalent of calling him a “hired gun,” which Colorado precedent forbids.

While the court held that the prosecutor’s personal attack on the expert was improper, the court also held that the evidence against Johnson was so strong that the misconduct could not have influenced the verdict. Characterizing the misconduct as harmless, the court affirmed the judgment.

While the court’s harmless error analysis may be correct, it does nothing to correct the prosecutor’s misconduct or to discourage prosecutors from disparaging experts in the future. Nor does the analysis assure that defendants receive fair trials. Unethical prosecutors who believe in winning at all costs have learned from decisions like Johnson that they can attack defense experts with impunity and without consequence.

Camille Sedar parked her car on the ground level of a parking garage at Reston Town Center, where she planned to have lunch with friends. Reston Town Center is a mixed-use development in Reston, Virginia.

Patrons who park in the garage must climb up a short flight of stairs before crossing a brick-paved landing and climbing down another short flight of stairs that leads to a sidewalk. As Sedar was crossing the landing, she tripped and fell.

Sedar has no memory of the fall. Friends who were following her did not see her trip, but they testified that her direction of travel took her over some loose bricks just before reaching the top of the stairs. Her friends took pictures and videos of the loose bricks.

Sedar landed face down on the sidewalk. She suffered a concussion, lost consciousness, fractured her elbow, and had cuts on her face and lip. An ambulance transported her to an emergency room for treatment.

After she was discharged from the hospital, Sedar examined the flat-soled shoes she had been wearing. She saw a scuff mark on the toe that was not present before she fell. She concluded that the scuff mark was caused by contact with the loose bricks.

Expert Evidence

Sedar hired a structural engineer to reconstruct the accident. The expert formed an opinion based on witness testimony, photographs of the scene, and the scuff mark on Sedar’s shoe.

The expert opined that deteriorating caulk on the landing caused bricks to become loose and unstable. He concluded that the landing was “structurally unsound and a hazard that violated applicable building and maintenance codes.” In his opinion, the hazardous condition was the most likely cause of Sedar’s fall down the stairway.

Summary Judgment

Sedar sued the property owner and the property manager. They removed the case to federal court, a forum that is often less friendly to plaintiffs than state court.

The defendants moved for summary judgment. They argued that no evidence proved that the property was in an unsafe condition. They argued in the alternative that if the property was unsafe, no evidence proved that they knew or should have known of the unsafe condition. Finally, they argued that Sedar could not prove that the allegedly unsafe condition caused her injury, given her loss of memory.

Remarkably, the district court judge granted summary judgment against Sedar. The court held that Sedar failed to prove that the property was dangerous or that the property owner or manager had notice of the unsafe condition. Notwithstanding the expert evidence, the court found that Sedar could only “speculate” about the cause of her fall.

Sedar appealed. The Court of Appeals for the Fourth Circuit sensibly reversed the district court’s defense-friendly judgment.

Dangerous Condition and Notice

The appellate court made short work of the first two issues. Whether the property was dangerous was a jury issue. Witnesses testified that the bricks were loose. Photographs showed that the loose bricks created a lip that constituted a tripping hazard. The expert engineer opined that the property condition shown in the photographs was dangerous. Since the evidence was sufficient to allow a jury to find that the condition was dangerous, the judge should not have taken that issue from the jury.

To prove that the property owner knew of the hazard, Sedar relied on a security guard’s testimony that he had “almost tripped on the stairwell a thousand times” because of “the way that it transitions from the garage to the stairs.” The appellate court held that the testimony referred to the layout of the brick landing and not to loose bricks. The court therefore agreed with the district court that there was no evidence that the property owner knew of the hazardous condition that caused Sedar’s fall.

On the other hand, the appellate court noted that Sedar’s expert testified that the deteriorating caulk joint adjacent to the loose brick would have been visible for some time. In the expert’s opinion, the condition that caused the brick to loosen did not happen overnight but resulted from a failure to maintain the property. In the expert’s view, the property owner should have spotted the hazardous condition during routine inspection and maintenance of its property.

The district court mischaracterized the expert testimony as “conclusory allegations.” In fact, the expert based his opinions on specific facts drawn from photographs of the property. He formed an opinion by applying his knowledge of property deterioration to those facts. The expert testimony would therefore allow a jury to conclude that Reston Town Center had constructive notice of the property defect. The district court erred by concluding otherwise.

Causation

Sedar was required to prove that the defective property condition caused her injury. Because she had no memory of tripping on the loose brick, and because no witness observed the reason for her fall, Reston Town Center argued that she could not prove causation.

While Sedar had no direct evidence of causation, the appellate court was satisfied that she presented circumstantial evidence. Witnesses testified that her path of travel took her across the defective portion of the landing. Photographic evidence of bloodstains were consistent with her following that path. In addition, the scuff at the tip of her shoe was consistent with her shoe getting caught in the lip created by the loose brick.

Sedar’s expert confirmed that a loose brick was the most likely cause of her fall, given the witness statements and contemporaneous photographs showing the property condition. The district court again disregarded that evidence as “conjectural.” The appellate court noted that inferences drawn from facts are not conjectural when the inferences are reasonable.

Reston Town Center argued that the circumstantial evidence was inconsistent. The appellate court recognized that juries, not judges, sift through inconsistent evidence to determine the truth. Since evidence, including expert testimony, supported the reasonable inference that Sedar tripped on a loose brick, it was up to the jury to decide whether that was the most likely reason for her fall.

A bill to end wrongful convictions due to faulty expert witness testimony has passed the California Senate Public Safety Committee.

SB 243

California Senate Bill 243 is a criminal justice reform bill that was authored by Senator Scott Wiener, a Democrat from San Francisco, and introduced on January 21, 2021. The bill proposes to add Section 806 to the Evidence Code and amend Section 1473 of the Penal Code. It relates to trial testimony.

Wiener has stated that the bill will “help exonerate innocent people across California, by strengthening the grounds for those wrongfully convicted based on faulty expert testimony to seek ‘post-conviction relief.’”

According to Wiener, currently

courts have discretion over which expert testimony is admissible. Studies show that courts accept most forensic science and expert testimony without sufficient scrutiny, leaving significant room for imprecision and human error. This error leads to the high rate of wrongful convictions. Expert testimony that fails to rely on sound logic should not be considered expert testimony at all.

SB 243 amends the standards for evaluating expert testimony and forensics in courts both in the pre- and post- conviction phases. SB 243 updates the definition of false testimony to include opinions that are based upon “flawed scientific research or outdated technology that is now unreliable or moot, and opinions about which a reasonable scientific dispute has emerged regarding its validity.”

Wiener stated,

Faulty ‘expert’ witness testimony is one of the main reasons innocent people are sent to prison for crimes they did not commit. That is an unacceptable miscarriage of justice. Even one innocent person in prison is too many. SB 243 will ensure that when expert witness testimony is given, the science behind it is reliable. This is an important criminal justice reform measure that will help many innocent people.

Melissa Dague O’Connell, Staff Attorney and Policy Liaison for the Northern California Innocence Project, has said, “The Committee’s vote to move SB 243 forward recognizes how important it is for our criminal courts to stay lockstep with the advancements in and scrutiny of forensics and expert testimony to not just prevent wrongful convictions, but to intervene and restore justice when a wrongful conviction occurs.”

SB 243 is sponsored by the California Innocence Coalition, which includes the Northern California Innocence Project, Loyola Project for the Innocent, and the California Innocence Project. The bill was passed by the Senate Public Safety Committee in a unanimous vote. The voting members were Senators Bradford, Kamlager, Ochoa Bogh, Skinner, and Wiener. The bill will now move on to the Senate Appropriations Committee.

Other Reform Bills

SB 243 is part of a larger group of California Innocence Coalition reform bills. Another bill is SB 923, which was also authored by Senator Wiener. SB 923 ensures that law enforcement must use evidence-based procedures when obtaining eyewitness identification. Before this bill was signed into law in 2018, California had no statewide standards or best practice for eyewitness identification.

An Idaho federal district court has affirmed its role as the gatekeeper of expert witness testimony, by granting in part and denying in part a defendant’s motion to exclude expert witness testimony.

The Incident

Maria Elosu and Robert Brace owned a vacation cabin in McCall, Idaho. The cabin was part of a homeowners’ association called Middlefork Ranch, Incorporated (MFR). The cabin had a wrap-around deck with a propane-fired refrigerator on the north side.

On the day before the incident, Brace stained the deck using an oil-based stain. That night, Elosu smoked cigarettes on the deck. The next morning, Brace and Elosu used rags to clean up the excess oil from the deck. An MFR employee changed the propane on the refrigerator and relit the pilot light.

At 4pm, a fire started in or around the cabin when no one was home. A group of contractors discovered the fire and testified that the fire was isolated to the east side of the cabin when they first arrived. One witness testified that there were no flames around the propane-fired refrigerator. The fire destroyed the cabin and its contents.

The Lawsuit

Brace and Elosu sued MFR for negligently starting the fire. They claimed that the employee knew of the hazard when he lit the refrigerator pilot light on the oil-stained deck. Brace and Elosu hired a fire investigator, Michael Koster, and a mechanical engineer, Richard Mumper, to support their claims. Koster inspected the scene ten months after the fire. Mumper conducted lab tests. Both experts opined that the fire started on the north deck when the pilot light from the refrigerator ignited excess oil vapors.

MFR filed a motion to exclude Koster’s testimony as speculative and not supported by evidence. The court agreed. It found that Koster failed to meet the standards set by Daubert and Federal Rule of Evidence 702 because his conclusion was speculation or contrary to or unsupported by evidence. The court noted that Kosted admitted that there was no concrete physical or testimonial evidence to support his theory that the fire started on the north side of the deck.

MFR also filed a motion to exclude Mumper’s opinion because he is not a certified fire investigator. Brace and Elosu hired Mumper to examine the remnants of the appliances, including the propane refrigerator. Mumper conducted lab tests and examined the evidence. He concluded that there was no mechanical malfunction and opined that the pilot light started the fire.

While Mumper was not a certified fire investigator, the court noted that he worked for a firm that specializes in forensic fire investigations, so he might be qualified to offer opinions about the origins of the fire. However, the court ruled that Mumper could not testify about the origins of the fire in this case because his opinions lacked a proper foundation. Here, Mumper’s role was limited to investigating whether any of the appliances malfunctioned. He did not independently look into any other possible causes.