EXPERTS I

From Cyberlaw

Who Controls the Courtroom?

Note: The Convergence of Fact and Opinion (pp. 754-755)
Commonwealth v. Holden (pp. 756-758)
Problem - Murder at the Hotel Thoreau (p. 758)
United States v. Figueroa-Lopez (pp. 759-766)
Frye v. United States (pp. 772-775)
Problem - Frye and the Defense (pp. 776-777)
Note: The Bases of Expert Opinions (pp. 780-782)
Problem 178 - The Dowser (p.777)
Problem 179 - Good Buddy (p. 777)
State v. Saldana (pp. 784-789)
State v. Chapple (pp. 789-799)
In re Agent Orange Product Liability Litigation (pp. 822-841)
Wells v. Ortho Pharmaceutical (pp. 841-847)
Federal Judges vs. Science (pp. 848-849)


Can expert testimony be controlled? Is assertion of control just another way of taking power away from the jury? Should the standard for the admissibility of expert testimony differ in civil and criminal cases, or between prosecution and defense?

Contents 1 A few things to catch up on with Vinny 2 Feedback Memos -- Exam 3 Rodney King 4 Nesson’s Seminar 5 Restorative Justice 6 Sidenotes 7 Expertise 8 Frye test and development of Expert Testimony Market 9 Rule 701 10 Rule 702 11 Rule 703 12 Application of Expert Testimony in Complex Cases 13 Agent Orange 14 Wells Birth Defect Case 15 Reflection

A few things to catch up on with Vinny

• no public defender would ask what happened
  • Alabama is unusual in turning over all the files
  • Often your client is your best source of information about P’s case
  • Asking what happened puts the person you’re speaking to most at risk. It’s the very unusual D in that situation who will say what happened. Instead, you get a story of innocence. That’s not “bad,” but at the beginning, before the witness has been prepared, you get a lousy story of innocence, at which point you start cross examining your client. Then your client might admit he's lied, which isn't a great start.
  • If you start from the point of arrest, you can get a detailed picture of how the other side was absorbing its information.
• Jury selection
  • We saw a death qualified jury.
  • That skews juries by excluding those opposed to the death penalty

Feedback Memos -- Exam

• there was a lot of worry about the exam
• once dealt with this problem in a way that got me in trouble. Passed out 600 multiple choice questions and said the test would contain only those questions. People came up with intriguing memory devices. Everyone in the class got all the questions right except for 2.
• I had said we were going to do 2 essay questions, one directed, the other less so.
• Many of us are at the midpoint of our lawschool careers, becoming familiar with disputes. We are looking at the law in a way that keeps emphasizing the recursive, point set structure that keeps reiterating in different contexts, the idea that evidence takes its meaning from different contexts, if you study law as an object, you're missing it if you don't study it/ understand it in context. Space in the meta space, point in the set, the third view of the Necker cube.
• He would like us to do an essay, which we will start thinking about now. We should pick a dispute that we have a feeling about. Discuss the issue in a way that brings to bear on that dispute as much as what we have learned in the course as possible. Should start thinking about the dispute by seeing it from the other side. Should think about whether the law/trial is suited to resolve this dispute. How does the process of working through resolution find its way through the sieve of the laws of evidence. In light of what we've learned, how would we see the dispute resolved?
• This is a theme that each of us are players in this environment. This is a challenge to step up.
• Should be about 7 pages long, double spaced
• What sort of disputes is he talking about?
  • He wants it to be real. Real feeling and real fact.
    • Is that supposed to be part of the essay? Could go one way or the other.
  • He's looking for a challenge to use that reflects what he's trying to make this class about. Questions about scope and appropriateness are to be measured by the range of things that we've introduced.
  • He wants us to teach him things. Do not parrot back what he has said to us.
  • Should be justicable.
• The challenge of next week is to confront how the system that we've been talking about is going to face forward into the future.
• He would be thrilled to take a document with links in it.
• Won't it take longer than 7 pages to develop a fact pattern?
• The challenge is becoming more masterful in the art of dispute resolution. One of the weaknesses of law school is that it leads to a form of looking at disputes without ever having engaged in them, or rather as an advocate. The rubber never meets the road. But then if you just write your feeling, you just have a rant. How to talk about something where you have a feeling but isn't a rant.

Rodney King

• this is about civil rights, Jim Crow, discrimination in the criminal justice system
• the brutality of the film is overwhelming, coherent with the story
• completely resonant with powerful themes that create belief structures on which people’s life experience is grounded.
• And yet there is another culture, and if it’s made real enough, the viewpoint from that perspective of fear becomes accessible.
• I worked for John Dorr at DOJ. He was one of the best lawyers I ever knew. His belief was that it was the facts that persuaded.
  • He first came to notice in govt circles in a voting rights case in 1959, when he attached to the brief pictures of the families the heads of which had been refused the right to vote. That made an impact. Face the people that you’re passing judgment on.
  • He won cases in front of Southern juries.
  • He had a style, a very structured event. He would be in the courtroom himself with one assistant who would sit next to him, and one person who could go in and out of the courtroom. There could be 50 FBI agents in cars fanning out in the county, he was not against using federal force to find out things, but the jury never saw anything but John and two young people. He didn’t want to be Big Brother in a Southern court room. He didn’t wear a fancy suit, and it wasn’t always spotless. He often had a little dandruff. He often made grammatical mistakes. But he had these cases prepared meticulously on the facts.
  • When he stood up for closing argument, he would fumble around a little.
  • Why did he win? The jury said, whoa, he had a heck of a case. He had no ide what to make of it, but what a case.
  • This is a version of the Cox strategy.
  • He later took a job as counsel in the senate impeachment committee for the Nixon impeachment. He broke up the issues alleged into separate stories. He would go through a day, laying out evidence, and at the end of the day would say, as strong as that is, it’s not enough for impeachment, and then he would come back day after day, to the point where his opponenets are saying, what does it take to convince this guy?
    • So think about which side the argument we’re on, as we’re attempting to structure an approach that encompases the whole of it.
• Contrast that to Dersh.

Nesson’s Seminar

• What has made the story of the trial of Socrates so enduring?
• Now we’re watching a video of 3L’s from last year taking the exam while drinking beer
• Socrates took responsibility for his actions
• Has your voice come together in any sense, or has it disaggregated?
• I’m more confident than when I came to law school. I’m terrified of being called on.
• I learned to have an opinion, and that it’s worth something
• I’ve had some classes where i’ve learned something, and others that have given me hope
• Our law school became the big power that it is because it’s always had a terrible student/faculty ratio. We turn out so many more lawyers, that we dominate the field.
• Law school is a script. You know what’s going to happen every day.
• We learn early what we’re supposed to think about the way we should think about the law, and then we should start doing something else.
• The best thing I’ve done here is helping something else.
• By the third year, you should have an apprenticeship.
• Law school isn’t worth getting worked up about. When it’s no longer novel and no longer fearful, interest wanes.

Restorative Justice

• When I was in DOJ I was in Alabama, and met Stokeley Carmichael. I watched him organize the whole county.
• Back in the days of “freedom of choice” for schools
• He held a rally after no one had signed up to go to the white school, and on Monday 270 kids signed up to go to white schools. That is the event that started the Christian academies.
• Stokeley went on to other things, but I mention it because I was thinking about it with Kevin. Hurricane Carter is coming here with Kevin and Courtney Kezembe, a barrister from Kingston, who is representing Jah Cure.
• I would love a grand audience. This is the idea that we can actually do something. The doing of the projection of this message of restorative justice which is essentially what Carter and Kevin represent would be a positive thing.

Sidenotes

• I want to apologize for using the word bullshit. The impetus was just feeding back some of the vibe in the feedback memos.
• On the other hand, this course is about sorting truth from bullshit.

Expertise

• starts with a form of circumstantial witness
• you have a percipient W who tells the points.
• Experts deal with the idea of cicumstantial evidence, where there is a set of evidentiary objects, but their meaning is opaque, and are thought to have specialized knowledge that will allow them to evaluate that particular circumstantial set.
• We’re dealing with the 700 rules, in a story that goes back a ways. History:
  • Experts are one of the most controversial areas of evidence. Whereas a lot of evidence is procedural, when you’re dealing with experts, suddenly you get to substance.
  • The idea of experts in the good old days has the local doctors testifying about something he knows about, and because he’s respected in the community, his story is accepted. It would be amazing in the story telling aspect of the courts if the courts didn’t take advantage of expertise.
  • Experts continue to be pretty much non controversial, up until the 1950s.
  • In Frye, D calls a lie detector expert to say that he passed the test as support for credibility. The case becomes famous because the judge excludes the evidence, treating the development of lie detection as a new fangled science. Articulates the principle of discrimination between ripened scientific evidence that is able to be relied on and that which is suspect.

Frye test and development of Expert Testimony Market

• Interesting to see how new lie detection is here.
• Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
• speculation <------> scientific.
• Nothing happens for 30 years. The reason things start to happen is the growth of the Plaintiff’s bar, the field of mass tort and class action. Why? in mass tort, the most difficult element to prove is causation.
• You can show the chain of causation statistically, but you don’t know how the chain of causation actually works. Many agents produce the injury before elaborate statistics have been generated. Certainly before definitive statistics. So you get an expert.
• Pressure starts being generated on both the expert and the prosecution/plaintiff side.
  • A market for experts. Satisfy the customer!
• This changes the point of control. The judge is nominally in control of the space, but the practice of experts is premised on the idea that there are some forms of reasoning process that are beyond the ken of the ordinary juror, and therefore appropriate for expert testimony; but if beyond the ken of the juror, then also the judge.
  • So now it seems unclear who controls where the expert goes.
• The expert looks at the circumstantial data, and then offers an opinion, and is presenting the jury something they can choose to believe or not as they credit the witness.
  • So in expertise, there’s a strategy for handling circumstantial evidence in a way that’s suited to jury process.

Rule 701

• opinion testimony by lay witnesses
• Commonwealth v. Holden: is it legit for a witness who observed him winking to testify that D wanted him to fabricate an alibi? Or should he be limited to testifying about the wink.
• Hotel Thoreau
  • crucial issue is the time of M’s death
  • this is a rule about specificity. As the Note suggests, you can be so specific about something that people wont understand what you’re talking about, or so general that you will convey nothing. We’re looking for communication in the band between specificity and generality at which jurors normally talk.
    • So an “expression of sadness” is about as well as you’re going to do
    • “acting disoriented” could be made more specific. It’s an abstraction to a general description where description about the set underneath is possible, and could communicate useful and effective information to the jury.
    • once W has testified as to the specificities in a way to unpack “distoriented,” it then makes sense for W to give that gloss to it.
  • if you’re not talking the jury’s language, you’ve got to have a reason why (expert)

Rule 702

• expert opinion
• we let them testify about anything as long as there is some filed that is recognizably respectable and beyond the ken of the juror.
• Good Buddy (truck driver)
  • He doesn’t need to have gone to truckology school. He just needs some experience that lets him draw concludsions.
• So he’s qualified based on what? See Rule 703

Rule 703

• the facts on which expert witness (EW) bases her testimony
• perceived by the expert before the hearing: the expert doing an experiment in the past (ballistics)
• perceived by the expert at the hearing: doing a test in court
• made known to the expert at the hearing: hypothetical question
• made known to the expert before the hearing: hearsay!
• The data need not be admissible in evidence, if reasonably relied upon by experts in the field.
  • If the doctor couldn’t rely on that unless the X-rays and the blood tests were in evidence, then P atty would have to introduce them. But how would you do that? It extends far.
  • Wait a minute, a brain surgeon would operate on this patient without interviewing the hemotologist. So you get this rule.
• We’re assuming the model of the legit expert, but this will also be the instrument by which we sort out charlatans, experts in unrecognized fields, experts who have an interest in using certain sketchy methodologies.

Application of Expert Testimony in Complex Cases

• Saldana
  • V doesn’t report rape immediately. Meets with rape counselor, who then qualifies as an expert at trial. She will testify as to her belief in what V has told her, based on normal patterns in response.
  • The court is not into it.
  • How does this compare to Lopez? Are these types of expertise different?
    • Lopez is testimony about D’s behavior, whereas the rape counselor is testifying about V, using that to determine what D might have done. So there’s an extra step.
    • If the counselor is the one who told V to testify, then the counselor’s testimony takes on a sense of advocacy.
  • The judge says, we don’t need this expert because this is stuff that juries already know
• Chapple
  • D is a minor hitman in the story, IDed in a photo lineup by a person who was in the middle of traumatic circumstances, resulting in a very weak ID
  • Eye witness testimony is not that reliable.
  • The kinds of things the expert will talk about are those things usually misunderstood by the ordinary person.
  • This was totally unusual. Usually courts defer to juries in terms of how they process information.
• Lie Detectors
  • Continue to be excluded, even though they’re used far and wide
  • Judges don’t like to allow the lie detector expert, since it infringes on the jury’s province
  • Often have a significant effect, since P won’t prosecute
• Mass Tort
  • Plaintiff’s law practice becomes big business in the 50’s.
  • Frye continues to be the only tool that judges have for keeping out witnesses who are quacks.
  • The big money is in surviving summary judgment, wherein you have to show sufficient evidence to prove each claim.
  • As soon as there is serious money in this business, you can find non-quacks who will say anything you like. The hired guns become the key to taking your case to a point where it’s worth money.
  • Everyone can see that this isn’t about getting to the truth of something; plaintiff’s lawyers smell blood.
  • The agent orange litigation was the beginning of the counter movement.

Agent Orange

• Vietnam veteran was exposed to Agent Orange in Vietnam. He has a child with a serious deformity. He then gets leukemia, and later dies of a heart attack.
• Lawyers in the business look for local clients in good jurisdictions, and then band together with others who have found clients, then go to the judge and ask to be representatives of the class. Think about the lawyer who didn’t make it. Option? Opt out.
• The lawyer for the class was very weak in organizing it. The case languished for 5 years in front of the judge who was then moved up to the 2nd cir. Then it came before Weinstein. He grants the biggest settlement that had ever been granted. But he has a problem – the opt outs. He starts telling them to put the people in the class. Most agree, but Lilly’s lawyer doesn’t.
• Members of the class would end up getting around $15,000. But what would Lilly have gotten? Millions. If Weinstein doesn’t cut them off at the pass, they’re going to get to a jury. And if any one opt out can get to a jury, every other person feels like an idiot for being in a class.
• Gatekeeping probem with experts. Weinstein says that the expert isn’t basing his opinion on reasonably reliable evidence. But the opinion is actually pretty indefensible. Most thought that it would get reversed. The 2nd cir held it for two years. They know if they reverse, then the settlement is going to break up and there will be a ton of lawsuits. So they affirm on another ground.
• The word goes out to federal judges; there is a way to control this litigation. We know we’re winding up with crazy verdicts.

Wells Birth Defect Case

• The next case to make a hit after Agent Orange
• The judge says he wont be able to get this case in front of a jury for months. If you want to try this case in front of me alone, then you can. The plaintiffs agree. The opinion wont be in the black box.
• Shoob basically says, excellent experts on both sides. I studied the material for a whole weekend. But this is a law case, so I’m going to base this on the credibility of the witnesses.
• The plaintiff’s exerts were more credible.
• Case on appeal to the 11th circuit. They affirm unanimously.
• New York Times and New England Journal of Medicine go nuts. This product has a real value, and you’re going to imperil it on the basis of whether the witness sweats.
  • Law lord vs. Science lord : who will triumph?
• This is the framework of the Daubert case that went to the supreme court in 1994. he isn’t so interested in it at a doctrinal level. Rather, it’s the supreme court faced with a practical problem in the architecture of the judiciary. The out of control expert problem appears to them clearly. Not so clear what to do about it. the most important thing they say is that they trust the judges in the lower courts to work it out, but they give them precious little guidance in the opinion.
• If the judge bases it on who sweats more, the jury can’t be doing much better.
• But what would be a better way of determining whether a product is safe?
• Rules introduced after Daubert become weapons for judges as they try to control expert witnesses.
• Think about the problem of judges asserting control in contrast and comparison to the approach taken to Confrontation, where Scalia is trying to take judges out of the business of making substantive judgments about the reliability of evidence. Put those two tensions together to give thought to the expert witness as a separate category.
• Bendectum was a drug given to women during pregnancy to deal with nausea. Remember Thalydimide? So this drug was approved by the FDA, was widely prescribed. Some women are born with children with birth defects.
• You can try these cases like a broadway show. Jurisdiction by jurisdiction.
• The risk is that you will come up with a finding that's devastating to an industry and is at odds with the best of science
• The credibility of the system is up for grabs. The law lords decide to take control of the machine so it stops producing unacceptable verdicts.

Reflection

• If you start from the beginning of the idea that this is a message space, and that message on its way out and its way back in has Aristotelian components (logic, ethos, charisma), and you credit that at the individual level of persuading and being persuaded, but also at the institutional level of persuading and being persuaded, you add content to this personification of the law as the Law Lord, up against the competitors in this contest.
• N is interested in this from the POV of each of us, and what we are as a class; we have the capacity to have an identity as a class. We are “Nesson’s Winter Evidence, 2006.” We have the possibility of expressing ourselves within a medium that is largely within our control. So we’ve established a wiki that is quite a remarkable space, but could be more so. It’s accessible, there for the world. We are engaged not only in understanding and listening to messasges, but in projecting them. We’re involved in it not only for the fun of doing it, but also for the learning that comes with how to do it, and the integration that comes in the learning process by the values and energy that we put into it.
• Each of us in a sense is in a process of integrating our identities – who we are, and informing who we want to become.
• We haven’t yet recognized our identity as a class.
• So, a thought. Our Jamaican visitors. N’s intention is to have the questions that we have formulated about the Alcock case put to them in some fashion, so that we interact about those. His intention for Thursday night is to have them more broadly talk about the program of restorative justice and the theory of set and self development that they are projecting. It would be great to project that as powerfully as possible.
• So he’s eager to engage us in that process. Would love to see each group produce something for the wiki that in some way expresses the ethos of the group. He would like expression.
• He would like to make news, a media object. He would like the power of the idea to be framed.
• Break up into groups and (1) talk about the essay assignment for the final paper (disputes in which we have feelings and where there is a challenge); (2) talk about how the group might express itself in the wiki that would enhance the project of inviting these people, hearing their message (testing) and projecting their message.
• News article: “DNA tests confirm that Virginia man was guilty”