Don’t let the court cut off your voir dire!!
Courts across the country have created a patchwork of Daubert based decisions. The editors of The Litigator’s Handbook of Forensic Medicine, Psychiatry, and Psychology feel that In many jurisdictions, courts are beginning to make better decisions with respect to behavioral science experts.[1] Courts across America remind that analysis of proposed expert testimony must be a flexible one,[2] but courts are also instructing that an expert’s analysis must be reliable at every step.[3] Cross examiners must be vigilant to ensure that this is so.
In the original edition of Cross Examining Experts in the Behavioral Sciences, Dr. Lorandos stresses the importance of the cross examiner making a record. This is exceedingly important. For example, when the cross examiner works to make a strong record in voir dire challenges to admissibility and in attacking bolstering and causism,[4] appellate courts reverse convictions in which “consistent with” and victim bolstering testimony has been found.[5]
For example, in State v. Pearce,[6] an Idaho trial court judge limited the expert testimony of an eminently qualified expert psychologist. The Court of Appeals for the state explained that this was an abuse of discretion. Although the abuse was rendered “harmless” by the other circumstances in the case, the record made concerning the qualifications of Professor Charles Honts is a veritable template for qualification processes.[7]
CUTTING OFF VOIR DIRE: DON’T LET IT HAPPEN
In State v. Vidrine,[8] a Louisiana appellate court chastised their trial judge for cutting off voir dire. In this case, one Judy Benitez, a counselor with a master’s degree in education, testified to “the dynamics of victimization”.[9] When defense counsel attempted to question her about the nature of her testimony, the State objected and he was limited to discussing only her qualifications as an expert. Unfortunately the pre-trial hearing did not reach the level of a Daubert inquiry, and did not address the reliability of Ms. Benitez’s testimony. The cross examiner was also cut off from inquiring into the methodology upon which Ms. Benitez proposed to base her opinion. In reversing the conviction, the Louisiana appellate panel instructed that because the trial court never made any determination regarding the admissibility of Ms. Benitez’s testimony and then denied the defendant a Daubert hearing, the trial court failed to perform its gatekeeping function. The panel ruled that this was an obvious abuse of discretion.[10]
In Espinal v. Arias,[11] the trial court’s cessation of voir dire and the judge’s comments that the expert “has been here before” got the case reversed for the diligent examiner. In the recent In re Smartalk Teleservices, Inc.[12] case, a federal judge in Ohio relied on a state law case to hold that the “reliability of expert testimony is an issue that goes to the weight of the evidence rather than its admissibility.”[13] Without a decent record, the cross examiners in that case will not fare well with the Sixth Federal Circuit on this silly decision.
The editors of The Litigator’s Handbook find another notable example of a cross examiner’s tenacity is found in U.S. v. Belyea from the Fourth Federal Circuit.[14] In Belyea, the defendant was convicted of possession of a firearm by a drug user. When the defendant appealed, the Fourth Circuit appellate panel held inter alia that their district court had failed to conduct a particularized Daubert inquiry regarding the admission of expert testimony from Dr. Solomon Fulero on factors correlating with false confessions, and that this error was not harmless. Thanks to a strong offer of proof by defendant’s counsel, the Belyea appellate panel was able to walk through the particulars of Fulero’s proposed testimony and find that it was improper to exclude it out of hand.[15]
The editors of The Litigator’s Handbook emphasize that “Experts” are not experts just because they say so, and they must have something valuable to add.[16] In Holman Enterprises v. Fidelity and Guaranty Insurance Co.,[17] the federal district court in New Jersey reiterated that where an expert’s testimony can be shown to be based upon the mere restatement of evidence, speculation, and conclusions concerning the law, it is inadmissible.[18]
[1] Unfortunately not Georgia, Pennsylvania, Texas and California. See infra.
[2] See, e.g.: U.S. v. Williams, 506 F.3d 151 (Cir. 2nd N.Y. 2007): “Daubert’s list of specific factors, however, ‘neither necessarily nor exclusively applies to all experts or in every case.’ Kumho Tire, 526 U.S. at 141, 119 S.Ct. 1167. Rather, the district court’s inquiry into the reliability of expert testimony under Rule 702 is a ‘flexible one.’ Daubert, 509 U.S. at 594, 113 S.Ct. 2786. Accordingly, ‘the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.’ Kumho Tire, 526 U.S. at 142, 119 S.Ct. 1167. Yet while the district court’s discretion is considerable, it is not unfettered: It does not permit the district court ‘to perform the [gatekeeping] function inadequately.’ Id. at 158-59, 119 S.Ct. 1167 (Scalia, J., concurring) (noting that the majority opinion ‘makes clear that the discretion it endorses-trial-court discretion in choosing the manner of testing expert reliability-is not discretion to abandon the gatekeeping function’).” 506 F.3d 160-161.
[3] See, e.g.: Knight v. Kirby Inland Marine Inc., 482 F.3d 347 (5th Cir. Miss. 2007): “the expert’s testimony must be reliable at each and every step or else it is inadmissible. The reliability analysis applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, the link between the facts and the conclusion, et alia.” 482 F.3d 355. AND See: Daubert v. Merrell Dow Pharm., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993): “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” 509 U.S. at 596.
[4] “Causism”: The tendency to imply a relationship between factor A and factor B where the research does not support this conclusion. Seen in the presence of language such as: “the consequence of”, “as a result”, “the effect of”; where language such as: “is related to” or “may be inferred from” would have been more appropriate. See: “A Behavioral Science Glossary” in Lorandos, D. & Campbell, T: (2005) Benchbook in the Behavioral Sciences – Psychiatry – Psychology – Social Work – Carolina Academic Press, Durham, North Carolina. The term "causism" comes from the study of logic. In this context, it refers to a tendency to imply causal relationships between variables. Experts may not come out and say that their correlational analyses indicate a causal relationship, yet they often describe their findings using such words as consistent with, effect, impact, consequence, or the result of. In using such words when describing relationships between two variables, the implication is that one variable caused the other or at least influenced it. Such words distract the fact finder from the important point that the results are simply correlational, and that there may be other variables involved. It is like saying that the majority of domestic violence cases happen between a man and a woman, therefore if a man and woman cohabitate, the majority of them will be involved in domestic violence.
[5] See, e.g. State of Oregon v. Samado, 223 Or.App. 15( Or.App. 2008): The witness’s statement “I never doubted her for a second,” constituted a direct comment on the credibility of the victim. Reversed and Remanded 223 Or. App. 15, 18, 19; State of Missouri v. Foster, 244 S.W.3d 800 (Mo. App. S.D. 2008): “Sexual abuse expert’s improper bolstering of child’s allegations, opining to a reasonable degree of medical certainty that, despite lack of physical evidence, child’s allegation of sexual abuse was “very credible,” was prejudicial error in sexual abuse prosecution.” Reversed and Remanded 244 S.W.3d 800; People v. Wittrein, 198 P.3d 1237 (Col. App. 2008): “Error in trial court’s admission of testimony of medical expert that she could not imagine a child of victim’s age fabricating a story like hers, which was an inadmissible expert opinion on victim’s credibility, was not harmless at trial for sexual assault on a child.” Reversed and Remanded. 198 P.3d 1237.
[6] State v. Pearce, 2007 WL 1544152 (Idaho App. 2007) This opinion has not been released for publication in the permanent law reports.
[7] Id. at *6-*8.
[8] State v. Vidrine, 9 So.3d 1095, 2008-1059 (La.App. 3 , Cir 2009).
[9] Id. at 1105.
[10] Id. at 1107.
[11] 391 N.J.Super. 49, 916 A.2d 1081 (N.J.Super.A.D.,2007)
[12] 487 F.Supp.2d 940 (S.D. Ohio, Eastern Division 2007).
[13] The case Southern District of Ohio Judge Edmund A. Sargus, Jr. relied on was State v. Pierce, 64 Ohio St.3d 490, 597 N.E.2d 107 (1992).
[14] 2005 WL 3542410 (4th Cir.(Va.)).
[15] “…It appears to us that the expert in this case, Dr. Solomon Fulero, would have addressed whether and how these particular factors correlate to false confessions. Belyea’s motion in limine states that “Dr. Fulero would testify that false confessions in fact occur, and that various techniques used by law enforcement agents, such as false accusations and false promises can influence a person’s decision to confess falsely” (Id. at page 4.). In addition, Dr. Fulero would apparently testify that “particular characteristics of the person interrogated, such as ... anxiety problems, can affect the likelihood that a confession is false.” [reference] The record on appeal is sparse, however, on Dr. Fulero’s proposed testimony because the district court refused defense counsel’s request to make a proffer of the testimony. Without more detailed information, it is impossible to determine whether the expert testimony would aid the jury in this case. But the limited record suggests that the testimony would be helpful by at least clarifying that some people, contrary to common sense, make false inculpatory statements. See United States v. Hall, 93 F.3d 1337, 1343-45 (7th Cir.1996) (finding abuse of discretion where court excluded possibly critical expert testimony on personality disorder that made false confessions more likely). Accord United States v. Shay, 57 F.3d 126, 133-34 (1st Cir.1995) (mental disorder).” U.S. v Belyea, 2005 WL 3542410, *5 (4th Cir.(Va.))
[16] “...nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Kumho Tire Company, Ltd. v Carmichael, 526 U. S. 137, 119 S.Ct. 1167, 1179; 143 L.Ed.2d 238 ( 1999) citations omitted. See, e.g.: Giannaris v. Giannaris, 960 So.2d 462 (Sup. Ct. Mississippi, 2007) Testimony of social worker relying on “instinct” admitted. Reversed; social worker not an “expert”. Rooney v. Sprague Energy Corp., 519 F.Supp.2d 110 (D.Me.,2007) Social worker was a fact witness, not an expert.
[17] 563 F.Supp.2d 467 (D.C New Jersey 2008).
[18] Id. at 472.
