He Who Lives by the Reasonable Extension of Time . . .

You need an extra couple of weeks to get your expert reports together. You call opposing counsel, who grants your request as a routine courtesy.

Have you just unwittingly granted opposing counsel a reciprocal extension? Apparently so, at least in West Virginia.

Daubert Hearing Not Required for DNA Evidence, Says Massachusetts High Court

The Massachusetts Supreme Judicial Court has published a decision holding that a trial court did not err by admitting prosecutors' DNA evidence without first conducting a Daubert inqury. The defense expert agreed that the tests had been conducted reliably, and he also agreed that the results indicated a DNA mixture to which the defendant and the victim could have contributed (although so could 50% of the general population). The defense expert merely contested the lab's threshold level for reportable results. That was a fitting subject for cross-examination, but not enough to trigger a Daubert hearing, according to the high court. See Commonwealth v. O'Laughlin, 446 Mass. 188 (2006).

Third Circuit Upholds Trial Court's Admission of Testimony on Modus Operandi of Drug Dealers over Relevance Objection

In an unpublished opinion, the Third Circuit has upheld the trial court's admission of expert testimony from a law enforcement officer on the modus operandi of drug trafficking organizations. From the opinion:

[Defendant] does not challenge Agent Bellis' qualifications to testify, but argues instead that Bellis' testimony about shootings and the use of firearms in drug conspiracies did not "assist the trier of fact" under Rule 702, and was in fact prejudicial because there was no evidence connecting Reynolds to any firearms or violence. We reject this claim. Bellis' statements about firearms and shootings were not central to his testimony, and in the context of a general discussion of the operation of drug organizations, they did not prejudice [defendant's] case. The District Court reasonably concluded that Agent Bellis' testimony would assist the jury in understanding the nature of the conspiracy alleged by the government. Thus, we hold that the District Court did not abuse its discretion in permitting the testimony of Agent Bellis.

See United States v. Reynolds, No. 04-3183 (3d Cir. Mar. 27, 2006) (Sloviter, Fuentes, & Restani, JJ.).

Tenth Circuit Upholds Exclusion of Polygraph Evidence

The Tenth Circuit has upheld the trial court's exclusion of evidence that a prosecution witness failed a polygraph. The witness was a DEA informant who dropped a dime on the defendants for operating an LSD lab in Aspen. During the informant's involvement in the case, he took two polygraph exams, passing one but with deception indicated on the other. The district court concluded that even if the polygraph evidence somehow managed to pass Daubert muster, it would still be subject to exclusion under Fed. R. Evid. 403. "This ruling," says the Tenth Circuit panel, "is entirely consistent with our precedent." See United States v. Apperson, No. 03-3368 (Mar. 28, 2006) (Briscoe, Anderson, & Murphy, JJ.).

Testimony on Fire Causation Should Have Been Admitted as Expert Evidence, Not Lay Opinion, Says Nebraska Supreme Court

It was error to admit testimony on fire causation only as lay opinion when it should have been admitted as expert evidence, the Nebraska Supreme Court ruled yesterday. The high court concluded that the error was sufficiently prejudicial to warrant a new trial. See Perry Lumber Co. v. Durable Servs., Inc., 271 Neb. 303 (2006).

The Wikipedia Entry on Daubert

We've just been looking at the Wikipedia entry for the Daubert standard. It does a pretty good job of distilling the ruling in a manner that lay readers can readily understand, with no significant inaccuracies that we could spot.

Must Offers of Proof Include Rule 104(a) Material?

You are defense counsel in a criminal trial. You want to introduce expert testimony from an engineer who developed an animated re-enactment of the crime. The trial judge shuts you down, because: (a) you didn't fully comply with discovery requirements; (b) the judge thinks the expert is unqualified; (c) the judge thinks the testimony is unreliable; and (d) the judge thinks the animation could mislead or confuse the jury, because it doesn't match up with the factual evidence offered at trial.

You decide to preserve the evidentiary issues for appeal. So you make an offer of proof. You offer the animation and some stills from it. You also offer the expert's CV. And you say:

"I merely proffer that we have the engineer here outside the courtroom, that he would testify, if permitted, that he analyzed the coroner's report, talked to the defense investigator in this case, and he presented a piece of demonstrative evidence that's on this tape, Defendant's Exhibit A, and also B through E, which are stills coming from the tape which would demonstrate, if permitted, the testimony of the investigator as to his theory of what happened in this case."

At least you've now preserved the record, right?

Not in Ohio, you haven't. See State v. Conway, 108 Ohio St. 2d 214, 842 N.E.2d 996 (2006) ( ¶¶ 111-123). The Conway court concluded that this proffer did not contain sufficient information to establish the expert's qualifications, the substance of his testimony, or the reliability of the evidence.

In support of its ruling, Ohio's high court invoked Ohio R. Evid. 104(A) (scroll down), which tracks Fed. R. Evid. 104(a). Both versions of Rule 104 provide that in ruling on admissibility, the trial court is not bound by the rules of evidence. That is, the court may consider information bearing on admissibility even if that information would not itself be admissible in evidence.

Ohio's rule on offers of proof also tracks the federal version. Compare Ohio R. Evid. 103(A)(2) (scroll down) with Fed. R. Evid. 103(a)(2). Both versions of Rule 103 provide that to preserve error when evidence is excluded, the proponent must make "the substance of the evidence" known to the trial court. No doubt defense counsel in Conway thought he was doing precisely that. But in this context, "the substance of the evidence" includes not only the substantive testimony, but also the factual predicates for its admissibility under Rule 104(a). That's now the rule in Ohio, at least, and although a formalistic quibble could be raised (the Rule 104(a) material needn't be admissible in "evidence"), the Conway rule makes a certain amount of sense. How else is the appellate court supposed to decide whether the trial court's ruling should be reversed?

The moral? Make a very thorough proffer. If you're worried that doing so will tax the trial court's patience, write the proffer down. Be sure to tender the expert's report as part of that proffer. But be sure not to assume that the report, or the expert's CV, are enough to do the job by themselves.

Kentucky High Court Holds Bullet-Lead Identification Inadmissible as a Matter of Law

Comparative bullet-lead analysis is a largely discredited forensic technique -- one that the FBI formerly employed, but which it has since repudiated, thanks in part to the tireless efforts of William A. Tobin, a retired FBI agent and former chief metallurgist at FBI.

The FBI's recantation was apparently enough for the Kentucky Supreme Court to hold, this past week, that bullet-lead comparison testimony should be inadmissible in Kentucky courts, under Daubert, as a matter of law. See Ragland v. Commonwealth, No. 2002-SC-0388-MR (Ky. Mar. 23, 2006). Two justices dissented, believing that a per se ban on such testimony goes too far. The Lexington Herald-Leader has more.

Damn Dixit

Steve Minor has pointed us to an article on expert evidence in the March 2006 Tennessee Bar Journal by Brian Jackson, a Nashville attorney whose practice includes products liability defense. Entitled "Ipse Dixit by Another Name," the piece reacts to the Tennessee Supreme Court's decision in Brown v. Crown Equip. Corp., No. W2002-02228-SC-R11-CV (Oct. 27, 2005), which overturned the trial court's exclusion of the plaintiff's design defect evidence in a forklift injury case.

These forklift cases, in which Crown Equipment Corporation is recurrently a defendant, tend to fit a certain mold. The worker is injured and brings a products suit against Crown. The worker's engineering expert opines that the injury might have been prevented or mitigated had the forklift boasted a door (or some other design feature). The trial court excludes the engineer's testimony as unreliable, commonly applying Daubert's standards for scientific evidence with unusual zeal: it is customary to hear that the engineer has never designed any forklifts (or any forklifts of the particular kind at issue), has offered no drawings (or only inadequate ones), has conducted no tests (or only inadequate ones), has cited no published peer-reviewed literature (or not enough of it), and has not shown that his opinions are generally accepted by the design, manufacturing, and/or regulatory communities. Having excluded the plaintiff's evidence on defective design, the trial court then awards judgment to the defendant, and the appellate court affirms. See, e.g., Dhillon v. Crown Controls Corp., 269 F.3d 865 (7th Cir. 2001); Bourelle v. Crown Equip. Corp., 220 F.3d 532 (7th Cir. 2000).

The forklift companies, in short, have a certain strategy for winning these cases, and the strategy usually works. In its Brown decision, however, the Tennessee Supreme Court has now thrown a wrench into the works, holding that the trial court applied the "Daubert factors" too mechanically and stringently to the plaintiff's engineering testimony. Mr. Jackson's article sees this as a portent that Daubert may be headed toward toothlessness in Tennessee. We see the Brown decision more as reaching a narrow and sensible conclusion: viz., that the so-called "Daubert factors" have limited application to engineering testimony in design defect cases, and that such evidence is generally better handled under Kumho Tire's rubric for "experience-based" expert testimony.

There are disciplines, like engineering, that make frequent use of scientific information and scientific tools, but whose primary methods of inquiry and analysis are not reducible to the "scientific method" as that concept is generally understood. We may sometimes refer to these disciplines with the honorific, as when we speak of "the science of psychology" or "the science of medicine," and surely there's nothing wrong with the generous spirit in which the compliment is bestowed -- so long as it's remembered that these fields also embody elements of judgment and imperfectly codified practical knowledge to a degree that "harder" sciences do not (or profess not to). Depending on the testimonial occasion, the hybrid character of these fields can often mean that the "Daubert factors" are not suitable for use in evaluating testimonial reliability. But that doesn't mean, as the defense bar sometimes implies, that the testimony is governed by no standards at all. It means only that the governing standards for intellectual rigor are not those of the sciences, but must be gleaned by reference to the standards prevailing within the field in question as it is normally practiced (as Kumho Tire teaches).

Listen carefully, please, because we're going to say it one more time. Daubert promised you that there would be certain standards for expert scientific testimony. It did not promise you that all expert testimony would be scientific.

P.S. While we're at it: "Ipse dixit" is a Latin expression loosely translatable as "he himself said it." It is used in idiomatically correct fashion to refer to an expert opinion for which substantially no defense is offered, other than the expert's invocation of his personal or professional authority. It is not correctly used in reference to opinions for which a reasoned defense is tendered.

A few other things that "ipse dixit" is sometimes used to mean, but which it does not mean: (1) the logic of the expert, or of the expert's discipline, does not constrain inquiry to a unique conclusion; (2) the expert's conclusion is not falsifiable by experimental test; (3) the expert's views run contrary to the weight of official opinion; (4) the expert has relied on some premise or principle for which he cites no published authority; (5) the expert has advanced some thesis that could be restated as a hypothesis susceptible to statistical investigation, but in support of which the expert has offered no statistical analysis. All of these may sometimes be valid criticisms of expert opinion. But the term "ipse dixit" doesn't capture them.

The malapropistic use of "ipse dixit" in modern evidentiary parlance (with which Mr. Jackson's article flirts, without quite embracing it) has a known provenance. It can be traced directly to a passage from Chief Justice Rehnquist's majority opinion in the Joiner decision:

Respondent points to Daubert's language that the "focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." He claims that because the District Court's disagreement was with the conclusion that the experts drew from the studies, the District Court committed legal error and was properly reversed by the Court of Appeals. But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.

We suspect that the textual proximity and conceptual affinities of "ipse dixit" and "analytical gap" in this passage render it vulnerable to misreading, helping to foster the widespread confusion of the two concepts. Once that confusion has taken root, it can be compounded by a mindset that tends to discount all "nonscientific" species of rationality. Every "nonscientific" inference looks, to those in the grip of this mindset, like an "analytical gap." Given the false equation between "analytical gap" and "ipse dixit," it's a short step from there, via transitivity, to the conclusion that all nonscientific inference must be ipse dixit.

That's one of the problems with a bricolage style of legal argumentation, in which the lawyer simply mixes together whatever rhetorical ingredients may be ready to hand and then stirs vigorously. It can lead to mixed-up conclusions.

Expert Perjury Watch (San Diego Edition)

According to a story from KFMB (San Diego's CBS affiliate), an audit has revealed that Ray Cole, a frequent prosecution expert in area DUI cases, holds an undergraduate degree in political science. This would be unremarkable, except that Cole has reportedly testified for years that his degree was in pre-med.

Another Free Bonus to Our Readers

Beginning with this calendar year, we've started maintaining a spreadsheet for all federal appellate decisions involving the admissibility of expert evidence under Daubert and Rule 702. The idea is to record certain information about the opinions in a manner that would later facilitate statistical analysis, but the spreadsheet is also handy for providing a synoptic view of the year's decisions. Plus it includes PDF files with the text of the opinions themselves.

We've decided, for the time being at least, to make it available, for free, to all comers. You can download it by clicking here, or by manually pointing your browser to:

http://www.daubertontheweb.com/2006.zip

Still More on Expert Sequestration

In response to our 3/16/06 post on witness sequestration, C.E. Petit has pointed out that sequestration protects not only against witnesses' adjusting their testimony in light of other evidence, but also against their doing so in response to extra-evidentiary courtroom developments (rulings on motions in limine, arguments at sidebar, etc.).

We agree that there's room for mischief here. Because they are giving opinion evidence, and because their testimony is not tethered to facts within their personal knowledge, experts work within looser limits on testimonial scope. It may sometimes be tempting, therefore, for counsel to use them as vehicles for interjecting extra-evidentiary information that could not otherwise be presented for the jury's consideration. And obviously an expert with a wish to be accommodating can derive substantial guidance just by listening to opening arguments.

But we think there are remedies for these problems short of total sequestration. If a court has ruled that some factual issue may not be drawn to the jury's attention, the judge can direct counsel to pass that ruling along to the expert witnesses. Similar steps can be taken for colloquy at sidebar. And maybe it makes sense to sequester witnesses during argument.

Some distinction could also be drawn, perhaps, between major trials in big cases and shorter trials in smaller ones (and/or between civil actions and criminal trials). In major civil litigation (or in a major criminal case, we suppose), the parties' presentations are likelier to have been carefully stage-managed in advance, so that fewer secrets remain to be kept from the witnesses, and the advantages to be gained from expert sequestration may be attenuated at best. In a shorter, more routine trial, the participants (e.g., assistant d.a.'s, public defenders, forensic witnesses) may all lead lives that are too busy to allow for extensive pretrial coordination, and sequestration might stand a better chance of accomplishing something.

On the whole, though, we remain skeptical that much is generally gained from sequesterring experts. Indeed, there are so many ways to circumvent sequestration that in the typical case, sequestration may amount to nothing more than a pretense -- one which may actually mislead the trier of fact. Sequestration may also afford an unfair advantage to litigants whose counsel and experts are willing to engage in gamesmanship, at the expense of litigants whose counsel and experts play strictly by the rules. How much would really be lost, if the experts went unsequestered, and if the jury simply took that fact into account in its assessments of credibility? Might something not meanwhile be gained, in the quality of the expert testimony?

Tennessee High Court Upholds Exclusion of Attorney Testimony on Ineffective Assistance

The Supreme Court of Tennessee has upheld the exclusion of expert testimony from an attorney who sought to opine, in post-conviction proceedings, that the petitioner received ineffective assistance from counsel at trial. See Howell v. State, No. E2003-01469-SC-R11-PC (Tenn. Mar. 16, 2006).

Tennessee follows a more stringent variant of Fed. R. Evid. 702. Under Tennessee's version, expert testimony must "substantially" assist the trier of fact. The trial judge had ten years of experience as a criminal defense attorney and twenty-five years as a criminal court judge. The high court agreed with his assessment that he didn't need the help.

More on Expert Witness Sequestration

Our post on witness sequestration has drawn two responses. One, from a reader who requests anonymity, is as follows:

I agree that sequestering of expert witnesses is generally not sensible (though if they were to find a really nice hotel, I might be convinced otherwise). My only counter-example would have to be something along the lines of the following:

The expert witness writes a report stating that because EvilPharma put out drugs A and B, one million people developed a disease from taking one or more of those drugs. In trial, it comes out that EvilPharma had received glowing test results about A but bad results on B, and put both drugs on the market anyway. Assume that everyone feels that the jury is much more likely to find liability for the effects of B than for the effects of A. The expert witness is then asked in trial whether there was a way to look at his/her data to distinguish between the effects of A and B, and claims that if you squint hard enough and turn one of the graphs on its side, it's clear that A (if a defendant's expert) or B (if a plaintiff's expert) caused at least 999,999 of the one million cases of disease.

Now, one might say this can be avoided by cutting off the answer with some voir dire on whether the expert's pre-trial report and deposition separated out the effects of A and B, but the expert may claim that all he/she is doing is highlighting something that was already in the data presented. I would think that ideally, the judge would tell all the experts to separate out the effects of drugs A and B without any clue as to which side would favor which split. However, that might mean that the expert could never meet with counsel who might smile or make a funny face in planning the revised direct. So, while I'm not convinced that sequestration would be practical, I could imagine it being useful in theory.

The third paragraph of this counterexample is imbued, perhaps, with a certain wistful longing for a world in which experts opine from behind some Rawlsian veil of ignorance. It may be granted that objective, unbiased testimony might be more forthcoming in such a world. But that world is very distant from our current adversary system. Still, even if dreams of any notionally better world were put aside, it would remain to address the underlying scenario described in the counterexample's second paragraph, where factual evidence emerges at trial that undercuts an expert’s assumptions or analysis. In that situation, there may be something to be said for testing the expert’s credibility by surprising the expert with the information and watching the expert squirm in response.

Of course, if that thinking were applied more generally, we might also want to stop providing experts in advance with much of any information about the issues in controversy. The Rawlsian longing expressed in the counterexample’s third paragraph, that is, may be more integral to the counterexample than it initially seemed. If there is an insuperable practical problem with a system where the jury is permitted to watch the expert’s voyage of discovery, it is probably is that such voyages are often unprofitable if navigated improvisationally, without maps or charts or sextants. It takes a lot of time and thought to analyze (e.g.) whether a drug causes a disease. The price of allowing experts that leisure (and of requiring pretrial disclosure of their finished work) is tolerating a world where the expert gets most of the information beforehand – even if that tends to deprive juries of some opportunities to see perspiration beading up on expert brows.

But then again, maybe the thinking doesn’t need to be applied more generally. Maybe leaving some room for surprise, in judicious quantities, is a helpful way of pulling back the curtain and letting the jury get a glimpse of the real wizard, pulling nervously at the levers. The question might be, does cross-examination already present sufficient opportunity for that? And if so, then is the increment of informative unpredictability that might be gained from sequestering experts worth the loss in testimonial coherence that may come from making experts testify without having heard any of the evidence?

A second response comes from C.E. Petit. We’ll discuss it in our next post.

Update 3/18/06: Our anonymous reader responds:

I'll see your Rawlsian longing and raise you a Heisenberg uncertainty. You do bring up an interesting point that the more we get to see the expert surprised, the less well-considered the expert's analysis would have to be.

One partial solution would be to have more court-appointed experts who, while they might still have their own biases, would at least be able to consult with either neither set of counsel or else counsel for both sides. Another potential solution might be to give each side a limited number of pre-trial computation-intensive hypotheticals that it could ask the other side's expert, presumably with the questioner footing the bill for any additional work. (And coming up with and approving an acceptable budget would be a nightmare.) Thus, in the case of the two drugs, the hypothetical would be to assign relative harm to each drug. The expert would then submit a responsive report and if he or she came up with a different answer at trial after the evidence is presented, the responsive report could be used for impeachment. This may involve tipping one's hand to the other side before trial, but I'm sure that lawyers are well-acquainted with making judgments about whether such a strategy is worthwhile.

Anyway, thanks for raising the interesting question. Deep down, I do agree with you that because experts' testimony is supposed to be based on other facts in the case, as opposed to the testimony of a fact witness in most situations, sequestration of experts is generally not a good idea.

The Year So Far

Some numbers:

Federal appellate opinions so far in 2006 addressing the admissibility of expert evidence under Rule 702: 19

Projected opinions to be rendered this year at that pace: 94

Average per annum from 2000 through 2005: 132

Decisions this year in which the district court's evidentiary ruling was held to be error: 1

Decisions in which an erroneous district court ruling led to reversal of the judgment: 0

Number of dissents in this year's opinions to date: 0

Number of this year's opinions published to date: 6

Percentage published, year to date: 31.6

Percentage published, 1/1/2000 to date: 59.3

Update 5/28/06: We've added "under Rule 702." The caveat is necessary to distinguish decisions under other procedural and evidentiary rules that may also apply to expert testimony, such as Fed. R. Evid. 601. See, e.g., Jerden v. Amstutz, No. 04-35889 (9th Cir. Jan. 12, 2006). We should also mention that we're not counting opinions like Fuesting v. Zimmer, Inc., No. 04-2158 (7th Cir. May 22, 2006), that simply modify rulings handed down last year.

Is Witness Sequestration Always Sensible?

The hubbub over Carla J. Martin has us wondering: How sensible is it to adopt a blanket policy of witness sequestration? (It's not sensible, of course, for attorneys to memorialize their flagrant violations of sequestration orders in their own e-mails, but that's another kettle of fish.)

In federal cases (both civil and criminal), a trial court may sequester witnesses on the court's own motion, and must do so on any party's request, under Fed. R. Evid. 615. Typically, sequestration orders not only bar witnesses from physical presence in the courtroom while other witnesses are testifying, but also prohibit lawyers and parties from communicating the substance of one witness's testimony to another witness who has yet to take the stand. Rule 615 exempts witnesses in a few specific categories from sequestration (e.g., parties). But the exceptions are narrowly drawn.

Rationales for sequestration include the understandable desire not to equip witnesses with the means to tailor their testimony to match (or contradict) the evidence offered by other witnesses. This rationale is at its strongest, we think, for witnesses testifying to matters of brute fact. It's more tempting, perhaps, to lie about about a fact, if the witness can somehow know before he takes the stand that his false account will stand uncontradicted (as least by witnesses having testified so far). It is also easier to concoct a factual untruth, and to have it roll trippingly from the tongue, if a witness knows the lay of the evidentiary land in advance and therefore possesses both the information and the lead time necessary for the honing of effective dissimulations. On issues of pure fact, in short, it may often be a good idea to maximize the witness's actual and perceived risks of getting caught, if he tells what might be shown up as a bald-faced lie.

(We've been assuming, however, that the prevaricating witness always goes last. Sometimes he goes first -- a circumstance that tends to undermine the rationale for sequestration. Disclosure of misleading testimony from previous witnesses might actually help in preparing honest witnesses to give effective responsive testimony. But let's leave that issue to one side.)

Even in the context of purely factual testimony, of course, it's questionable whether sequestration is an effective method of achieving its goals. In most litigation, the contours of any important factual disputes are likely to be familiar to everybody, well in advance of trial (and thus before any sequestration order takes effect). This is especially so in civil cases, where the factual issues have usually been explored at length in discovery. Even during trial, after a sequestration order has been entered, litigators still have a million ways of signaling information about the record during witness preparation, without literally or explicitly reporting on what previous witnesses have said.

The rationale for sequestration seems considerably weaker, meanwhile, for opinion testimony (whether offered by lay witnesses or experts). Take the witnesses Carla Martin allegedly coached: aviation security witnesses who would have testified not so much about any actual event or occurrence, but rather, in the subjunctive, about what consequences would have flowed for airport security practices, if Zacarias Moussaoui had warned the feds about 9/11. There's little chance that any witness would be caught in an outright lie about that issue, because the testimony would consist of transparently speculative opinion involving counterfactual conditionals, not matters of brute observational fact. There would be a problem, to be sure, if Martin orchestrated the testimony of the aviation security witnesses, but that problem doesn't seem to be a sequestration problem, so much as it's a mouthpiece problem. We don't want lawyers telling witnesses what their factual testimony (or their opinions) should be. But that's a different issue from telling them what the testimony of other witnesses actually is.

As regards most expert opinion, meanwhile, any benefit from sequestration is considerably diluted, at least in federal court, by the requirement, in both civil and criminal proceedings, that any expert testimony be disclosed in advance of trial. Sequestration may still prevent experts from anticipating questions based on evidence elicited from lay witnesses, or from other experts in cross-examination. But that's not necessarily a good thing. The modern federal trend is decidedly toward full and transparent disclosure of expert opinion in advance of trial. That trend has a lot going for it. It helps to define what aspects of complex opinion testimony are in genuine dispute. That, in turn, enables the parties, at least in theory, to develop legible presentations that engage the central issues in a rational and methodologically defensible way. That is, disclosure helps to foster rational debate, as opposed to litigation via ambush and surprise.

Are there strong countervailing considerations militating in favor of sequestration for experts? Maybe we could think of some if we tried. But we're skeptical they'd be convincing.

Update 3/17/06: Judge Brinkema has now approved a request by prosecutors to offer substitute witnesses untainted by contact with Carla Martin, according to a CNN report.

Will they also be untainted by the massive media coverage this controversy has now attracted? Does sequestration amount to much more than a charade at this point? Massaoui's lawyers, as quoted in the CNN story, seem to have a point: "The existence of such a person [unacquainted with the publicity] is difficult, if not impossible, to imagine, and assurances that there is a rock at the FAA under which that person has been found should be greeted with the skepticism it plainly deserves," defense counsel said in their papers.

We do now know that speculative testimony won't be running completely rampant -- at least not in theory. From the CNN story:

In her order, Brinkema limited the scope of what the untainted government aviation witness can tell the jury.

They may be questioned to describe "what United States government 'could' have done to prevent the attacks had the defendant disclosed in August 2001 the facts that he admitted in pleading guilty," Brinkema said.

The witnesses may not testify "as to what the United States government 'would' have done with this information. That type of testimony would be unduly speculative and misleading to the jury," Brinkema said.

We'll watch with interest to see how well that line can really be drawn.

Expert Perjury Watch (New York Edition)

From the Rochester Democrat and Chronicle:

Sentencing is Tuesday for Talibah Amatullah Akili, who pleaded guilty to first-degree perjury for falsely claiming that she possessed multiple graduate degrees and other credentials that allowed her to testify as an expert witness in a child custody case in Family Court.

Akili, who had only a high school diploma, ran the foster care and adoption program at Ibero-American Action League. She is expected to receive five years' probation and mandatory mental health treatment.

Update 3/16/06: Ms. Akili has been sentenced to five years' probation conditioned on her obtaining mental health treatment. When prosecutors complained at sentencing that Akili has taken no action to date to secure treatment, her lawyer explained that she had been unable to do so, because she has no birth certificate for her real name of Arlene Susan Schwartz.

Our Sudden Early Retirement

We have been toiling in the workforce for three decades, more or less, and we had expected to toil for maybe one or two more. But now, it appears, we can hand in our letter of resignation at the firm, and maybe buy one of those hot retirement properties in Panama that NPR has been talking about. How foolish it was, in retrospect, to have worried about that 401k! How foolish, when the world can change so dramatically in just a few short hours!

Today, you see . . . well, it began much like any other Sunday. After sleeping in, we wandered downstairs to make ourselves some coffee and fire up the computer. We checked the news to make sure that HBO hadn't canceled the Sopranos. And then we took a look at our e-mail. That's when we learned the astonishing news. We almost missed the notification. It was actually miscategorized as junk, of all things, due to an apparent glitch in SpamBayes. (For some reason, the site seems to receive a lot of junk e-mail. Can any readers offer some insight on that? Anyway, we do always check to see that the spam filters haven't misrouted a legitimate communication.)

You've probably heard the rest on CNN by now. That international internet lottery? You know the one we mean; it's run out of Amsterdam? It uses e-mail addresses as lottery tickets, to encourage wider use of the fledgling internet? It's sponsored by a group of philanthropist industrialists who want to remain anonymous? Well, the odds were long, and we hadn't really expected to win anything. In fact, we had almost forgotten about it.

But as all the world now knows, the winning numbers (drawn on January 30) were 1-9-74-31. What may still come as news to some of you is that those were the very numbers assigned by computer to the e-mail address webmaster@daubertontheweb.com. We don't know how that works, exactly, but we assume it's probably because we: (a) are one person; (b) have lived in our house for nine years; (c) graduated high school in '74; and (d) were born in a month with 31 days. So those are naturally the numbers we would have picked, if the lottery computers hadn't done it for us.

The upshot? We need only contact Fritz Hartgers (miclottnl909@netscape.net) to claim our winnings of $2.5 million. We know that's less money than it sounds like, if you want to retire on it and plan to live for another thirty or forty years. But here's the really remarkable thing! In another e-mail, delivered almost simultaneously with the first, we've been notified that we've also won another $1.5 million -- in a second, completely different internet lottery! When it rains, we guess it pours. We don't have space to go into the details of this second lottery here, but if you're curious you can write to the certified and accredited claims agent, Patrick Bowman (reportclaim@netscape.net). Better still, ring him up on the phone. His number is +31 615 304 791. We can't find that little "plus" sign on our own phone, but we don't always have the latest technology. If you get his answering machine, just keep calling back. We imagine he's a busy guy, and you may have to pester him.

Anyhow, with $4 million in overnight winnings, we think we have enough of a nest egg to give retirement a go. It's not as though other income won't dribble in. To give you just one example, the good people at IRS were burning the midnight oil last night, when they noticed that our little website has an unclaimed tax refund refund coming, for $63.80 -- unremarkable, really, since the site actually loses money. People complain about the sprawling, unresponsive federal bureaucracy, but the IRS actually took the trouble to send us a copyrighted notification in the wee hours of the morning.

We figure our living expenses should be lower in retirement too. We're not saying how, but we happen to have some fresh leads on places where we can get prescription drugs at a steep discount.

DOJ Releases OIG Report on the Brandon Mayfield Case

Courtesy of TalkLeft, we learn that the Office of Inspector General of the United States Department of Justice has released its report (82-meg PDF) on the Brandon Mayfield fingerprint misidentification fiasco. Among the report's conclusions: investigators were so keen to get their man that methodological rigor went by the wayside, and big red forensic flags were simply ignored or rationalized away.

New DUI Defense Tactic: Demand the Intoxilyzer Source Code

Some DUI defense counsel have started to demand the source code for the Intoxilyzers that police use in breath tests. The manufacturer refuses, on trade secrets grounds, to release the source code, and some cases have been dismissed as a result. TalkLeft has more.

Setback for Lip Print Evidence

An Illinois court has ordered a new trial for a man convicted of murder based on dubious forensic testimony, yesterday's Chicago Tribune reports. Little or no evidence supported the charge, except for "lip prints" on a roll of duct tape found near the body of the deceased.

Reader Inquiry on Computer Forensics

A reader has posed the following inquiry:

The government has charged an individual with possession of CP. In the initial search for data, "standard" forensic tools (Encase, iLook, etc.) were used to no avail. Afterwards, a "secret" tool called Quincy was used to supposedly find data that was unable to be found by the other tools. Quincy supposedly only "located" data (which was in unallocated space and which had been deleted and in a state completely unretrieveable by other than forensic tools used by experts) and then the other tools were used again to retrieve the data which was "located" by Quincy. Should the evidence be suppressed based on the fact that Quincy is so secret that nobody outside of a few law enforcement/government types have verified its reliability and/or accuracy? Does anyone have any thoughts on this? I'm very curious.

Our own take: Because the Quincy tool was used only to locate the data, which was retrieved, once found, by other means, it's not clear that anything involving Quincy need even be offered in evidence. If a psychic tells the police where to dig, and if, on digging there, they discover the shallow grave, then they have found the corpus delicti. There's no requirement that the reliability of the psychic's methodology pass Daubert muster.

Care to add yours?

FMA Seeks Certification Requirement for Out-of-State MedMal Experts

Among the goals of the Florida Medical Association for Florida's 2006 legislative session is enactment of a certification requirement for out-of-state medical malpractice experts, according to a report in Saturday's Naples Daily News. The proposal is not to screen the knowledge, qualifications, or experience of out-of-state physicians in advance: certification would apparently require only proof of the physician's good standing in some other state, along with payment of a $50 fee. The idea, as FMA candidly acknowledges, is more to enable the imposition of after-the-fact professional sanctions on out-of-state experts who testify in a manner of which the Florida Board of Medicine disapproves.

We will be soon be unveiling the next installment in our series of posts arguing that imposing professional sanctions for disfavored expert physician testimony cannot readily be distinguished, in any conceptually principled way, from ordinary witness tampering.

Eleventh Circuit Decision Offers Lesson on Preserving Evidentiary Points for Appeal

Yesterday's decision in United States v. LeCroy, No. 04-15597 (11th Cir. Mar. 2, 2006) (Tjoflat, Anderson, & Marcus, JJ.), offers an object lesson in preserving the record for appeal.

The criminal defendant in LeCroy wanted to present mitigating evidence at the sentencing phase, in the form of testimony from a "teaching expert" who specialized in the psychology of men who suffered sexual abuse as children. The trial court said that if the defendant did call the witness, the court would consider permitting the government to offer responsive expert testimony of its own. (The government had a sealed report in reserve for that purpose, based on a government expert's review of the defendant's medical records. It is unclear why the report remained sealed after the guilt phase, or at whose behest it was sealed in the first place.)

Ultimately, the defendant did not present the "teaching expert." But he did call two physicians who treated him for psychological issues while he was incarcerated in the 1990's. When the doctors were asked to give their opinions on the defendant's diagnosis, the prosecution objected. The judge admonished defense counsel that if the doctors' opinions were elicited, he might permit the government to offer testimony from the sealed report to rebut it. Rather than incur that risk, defense counsel backed down.

On reading this account after the fact, most attorneys will be unsurprised at the appellate result. The Eleventh Circuit held that it was presented with no appealable issue:

[Defendant] simply did not create the conflict necessary for the issue to be appealable. The defendant could have called his witnesses, had them testify, and then objected at the proper time to government rebuttal testimony that he felt was "overkill." In such case, we would have had a concrete ruling by the district court as to the scope of the rebuttal. By not calling the witnesses, however, he would force this court to speculate twice: once with regard to the content of the defense experts' testimony, and a second time about what the district court would have permitted from the government expert in rebuttal. It would be improper for this court to engage in such speculation, and thus we decline to reach the merits of this issue.

But hindsight, of course, is twenty-twenty. During trial, it can be hard to keep your eye on the appellate ball -- especially in the recurring situation where a trial judge hints broadly at what consequences may follow from counsel's evidentiary decisions but makes no actual ruling on the point. To be sure, it may often make tactical sense to take the hint and waive the issue. But that decision should be made with the risk of waiver clearly in view. As one federal district judge of our acquaintance is wont to say, the court can't call balls and strikes unless somebody first throws a pitch. Likewise, the appellate courts can't overrule the umpire, if he never had occasion to make a call in the first place.

Eighth Circuit Upholds District Court's Sua Sponte Exclusion of Products Liability Expert

The Eighth Circuit has upheld the exclusion of testimony from three plaintiffs' experts in a products liability action involving a cotton picker that caught fire. The district court excluded one of the experts sua sponte and without a hearing. The Eighth Circuit's opinion advances not even the mildest criticism of that unusual step, but rather defends it on the theory that the district court had the benefit of a full record. The expert's report purported to contain a "complete statement of the opinions to be expressed by him and the basis and reasons therefor" (which all expert reports are required to contain, however, under Fed. R. Civ. P. 26(b)(2)(B)), and there had already been Daubert briefing on the plaintiff's other experts, who had opined on the same general subject matter. See Miller v. Baker Implement Co., No. 04-3419 (8th Cir. Mar. 1, 2006) (Murphy, McMillian, & Gruender, JJ.).

Presumption of Innocence Was Not Violated by Officer's Testimony on Modus Operandi of Drug Traffickers, Says 7th Circuit

The Seventh Circuit has issued an opinion rejecting a criminal defendant's argument that his entitlement to a presumption of innocence was violated when the trial court permitted a police officer to offer his expert opinion that drug traffickers do not normally engage in transactions if innocent adults are present at the scene. The defendant raised no Rule 702 objection at trial, and the panel found that no presumption-of-innocence violation occurred, because in combination with other evidence, the testimony rationally supported an inference of defendant's guilt, without mandating that the jurors actually accept the inference. The court left for another day the question whether such testimony would be sufficient to support a conviction if it were the only evidence of guilt. See United States v. Garcia, No. 04-3159 (7th Cir. Feb. 28, 2006) (Coffey, Easterbrook, & Williams, JJ.).

Symposium on Tarasoff

From HealthLawProf Blog, we learn of a symposium on Tarasoff, to be conducted at the University of Cincinnati College of Law on March 17. The Tarasoff decision, it will be recalled, imposed on psychotherapists a duty to protect the public from violent acts perpetrated by their patients. This year marks the decision's thirtieth anniversary. The symposium will assess legal and scientific issues implicated by the duty that Tarasoff announced.

Inquiry on Whether Judges May Testify as Expert Witnesses

A reader has transmitted the following inquiry on whether judges may testify as expert witnesses:

I am currently representing the State of West Virginia in a state habeas appeal in which the primary issue seems to be whether a trial judge may testify as an expert witness as to a defendant's future dangerousness. The trial court bifurcated the defendant's first degree murder trial. After the jury found him guilty, the State called the chief judge of the judicial circuit who testified that, based upon his experiences with the defendant, he constituted a future danger to the community. The judge was not the same judge presiding over the trial.

If anyone knows of any case law one way or the other, please forward me an e-mail with the cite at the address below. Thank you.

Robert D. Goldberg
Assistant Attorney General
State Capitol, Room E-26
Charleston, WV 25305
PH: 304-558-2021
FAX: 304-558-4030
robert.goldberg [at] wvago.gov

If our readers have any insights, or know of any relevant legal authorities, we're sure Mr. Goldberg would be glad to hear of them.