Monday, January 30, 2006

A Definitive Solution to the Pronunciation Riddle

Up until now, we had been forced to base our views on how to pronounce "Daubert" on information available from reliable secondary literature.

But now, a definitive answer can be given. We are honored to have heard from Jason Daubert himself, who says: "I have always found it easiest to suggest folks try pronouncing 'Dogbert' without the g."

Sunday, January 29, 2006

Presents for Everybody

We got an iPod for our birthday.

So maybe we'll have to look into this podcast idea.

Saturday, January 28, 2006

Expertise in High-End Coercive Tactics

A New Hampshire man is not to be found.

Prosecutors say the man suffered a fatal heart attack while strapped to a medieval torture device in the lair of a Massachusetts dominatrix. According to police, the dominatrix confessed to them that her boyfriend dismembered and buried the body after the client gave out under the stress. But the confession was not taped, the police destroyed their notes, and the body parts haven't been found.

The dominatrix is now awaiting a jury's verdict on a manslaughter charge. The sole witness called on her behalf was Berkeley sociologist Richard Ofshe, who opined that people will say all sorts of things when subjected to "high-end psychologically coercive tactics." In the right circumstances, said Ofshe, people will confess to anything you please, whether they're really guilty or not.

We don't doubt it for a minute.

Update 1/31/06: Not guilty, says the jury.

Thursday, January 26, 2006

Daubert & Motions for New Trial

A visitor to the site from Hawaii has inquired whether, in a motion for new trial based on newly discovered scientific evidence, the court must convene a hearing to determine whether the newly discovered evidence would be admissible under Daubert, Frye, or the local evidentiary regime du jour. The visitor's case involves a new trial motion in a state court criminal case, but insights from all contexts would undoubtedly be welcome.

It seems intuitive that some inquiry should be made. Why afford a new trial, after all, if the evidence will be inadmissible as a matter of law? The harder question is what the standard should be. Should it suffice that the evidence could be admitted under a court's sound discretion? That is, should a discretionary decision whether to admit it be left for the new trial court? Or should the first court, hearing the new trial motion, exercise whatever discretion it would normally have to admit or exclude the evidence? If the latter, and if the court grants the motion for new trial, should the trial court then be at liberty to revisit the discretionary decision? Or should it be stuck with the first court's decision?

This is making our brain hurt. But there must be some reasonable answer. Comment is invited.

"Ethics" or "Witness Tampering"? (Part 2)

In part 1, we posited four theses about medical society rules on expert testimony, and we selected the AAEM’s Position Statement on expert testimony as an exemplary vehicle for purposes of further discussion. It may now be helpful to orient readers to the general direction that the argument is expected to take.

The Current Climate of Debate

The recent movement by some medical societies to regulate expert testimony provokes strong reactions on both sides. The word “sides” is chosen advisedly, because participants’ pre-existing ideological stances and economic allegiances are fairly good predictors of what their opinions will be on this issue.

The Ideal-Typical Proponent of Medical Society Rules on Expert Testimony

The leading proponents of medical society regulation of expert testimony (primarily physicians and “tort reform” advocates) generally portray and/or perceive such regulations as an effort by knowledgeable professionals, who devote their careers to a noble and socially beneficial service, to assume some formal responsibility for the role played by members of their profession in discussion and decision-making about medical issues in a specific and important arena: litigation. The proponents, in other words, see medical society regulation as a socially responsible means of fostering rational and informed discourse, and of combating a certain set of perceived social ills. Those perceived ills may include, among others: (a) a sense that prevailing legal rules and interests foster sham or intellectually dishonest testimony that works to benefit undeserving malpractice claimants and their lawyers, while unfairly stigmatizing treating physicians (or even operating to their economic devastation) and hampering the effective and inexpensive provision of medical care (call this a “policy” concern); and (b) a sense that irresponsible testimony by mercenary experts-for-hire demeans the profession, debases the public discourse, and hampers rather than promoting the goal of truth-seeking debate, discussion, and decision-making, whether in litigation or more broadly (call this an “ethical” concern).

To be sure, some proponents may not formulate the issues in this way, and indeed may not formulate the issues by reference to considerations of public policy or professional ethics at all. The positions of some may be driven mostly by economic interest, or by simple feelings of solidarity in what the media consistently portray, and what many understandably see, as a “war” between healthcare providers and the plaintiffs’ malpractice bar. But if one goal of responsible debate is to move people’s thinking away from reflexive “us-vs.-them” reactions, and toward more open-minded assessment, it behooves us to assume the possibility of good-faith motivations among the participants, and to engage their strongest arguments, rather than focusing entirely on their most dubious ones.

The Ideal-Typical Opponent

Leading opponents of the rules (primarily members of the plaintiffs’ bar, and perhaps some consumer-oriented groups) generally portray and/or perceive the medical society rules as efforts by professional guilds to circle the wagons and insulate their members from accountability. They see such rules as tainted by an inherent conflict of interest, and as presenting a major potential for abuse, because the rules may silence legitimate expert testimony that could otherwise expose negligent or incompetent medical practitioners and facilitate the compensation of their victims. What the proponents see as the nurturance of responsible discourse, the opponents see as ham-handed censorship and a potential vehicle for ruinous retribution against honest witnesses who have the courage to blow the whistle.

Once again, the thinking of some opponents may be less complicated than that. In particular, if members of the plaintiffs’ malpractice bar couldn’t find expert witnesses to testify in their clients’ favor, they would have to pursue new career choices, some of which might require knowledge of math. To have an opinion on medical societies’ rules about experts, that may be all such lawyers need to know. But once again, it may move the ball forward if we assume that medical society rules might be opposed on serious and disinterested grounds that warrant some consideration and respect.

Some Features of the Current Debate

The arguments of both camps (and to be very clear, we number among the opponents) involve some emphasis on the corrupting effects of economic incentives on expert testimony. Neither side’s arguments about those corrupting effects should be lightly dismissed. It should be frankly acknowledged, all the same, that absent radical restructuring of our current legal system (in which experts are retained by the parties and compensated for their, um, time), such incentives probably represent an ineradicable feature of the landscape. Both sides in a medical malpractice controversy have every intrinsic incentive to maximize their own options about expert testimony, and to minimize the adversary’s. Repeat players have every incentive to do so on the institutional level, in addition to their lawsuit-by-lawsuit battles. And groups with common interests have every reason to band together to promote their aims, as a kind of group protection arrangement. AAEM does, and so does ATLA.

Given those inevitable interests, and the equally inevitable conflicts between them, there might be two approaches to controlling the incentives’ corrupting effects. We are not speaking, here, of disagreements between those who tend to respond by wanting to regulate the content of testimony versus those (ourselves included) who tend to see more speech as the best remedy. Those disagreements are largely disagreements of emphasis. The current litigation system employs a mix of both methods (censorship, a.k.a. evidentiary rules, on the one hand, versus cross-examination and responsive testimony, on the other), and most people believe that in general, it should. In a more perfect world, it might be hoped that censorship would be unnecessary, because in the long run, with unfettered discourse, the truth might be expected to out. But the world of the courtroom is not the world of the long run. We have finite time and resources to resolve litigious controversies and a strong interest in promoting the finality of their resolution. And so, in the shorter, courtroom run, discussion will be finite. There is, in circumstances of limited and finite discussion, a notorious danger that propaganda and spin will carry the day. And for that reason, everyone would draw the evidentiary line somewhere. The system should not permit juries to be taken in by cynical practitioners of charlatanry and fraud. And over the relatively short span of a trial, they might be.

Here we pause briefly to digress. As modern techniques of persuasion grow ever more sophisticated, and as the art of rational argument increasingly loses ground to the science of spin and cognitive manipulation, it could be felt, if one were taking the long view, that keeping expert testimony within rational confines is a program more promotive of plaintiffs’ interests than defendants’. Spin doctors are expensive, and sometimes rationality is the only power tool on the poor man’s argumentative shelf.

But to return to our agenda, the two competing methods for ameliorating the corrupting effects of economic incentives on expert testimony might be described broadly as follows. On the one hand, if the issue were seen primarily as a battle between private interest groups, and/or if the legal system itself were seen as having fallen largely captive, perhaps irredeeemably, to one group’s interests, then the emphasis might be on private action calculated to restore the balance. This might assume the form of principled individual action (“I will testify only truthfully and for the deserving, as I interpret those concepts”) or of more concerted private conduct (e.g., group efforts at moral suasion, perhaps to the point of creating countervailing private incentives, as a balance to the effects of incentives employed by one’s adversaries to their benefit).

Alternatively, one might see certain types of private power struggle over the shape of courtroom testimony as precisely the problem – as precisely the sort of thing, that is, that the state, as the legitimate monopolist in matters of civil adjudication, should regulate, to the exclusion of private, politically unaccountable, and possibly self-interested regulators.

The Direction of the Argument to Follow

The argument here will be in favor of the latter view. Governmental rules about evidence may or may not be benighted, but they are promulgated, at least, by bodies who enjoy a legitimate monopoly in the official regulation of courtroom evidence, in the sense that competing efforts by private bodies should and must yield in case of conflict.

Obviously it will not be proposed that speech about expert testimony (“moral suasion,” as it was called above) be licensed and controlled by the government. It will be contended, however, that in various familiar contexts, there is broad recognition of the state’s legitimate interest in controlling exogenous influences on courtroom testimony, expert and otherwise. Those interests are at their most acute when the exogenous influences are economically corrupting or pragmatically coercive. (Recall that one basis for tort reformers’ disquiet with some expert testimony is its more or less frequent association with compensation practices that can seem to resemble bribery.) The polity’s concerns over such influences currently find legislative expression in laws governing witness tampering and the obstruction of justice.

The agenda, then, just to be clear, is not to march perfectly nice doctors off to jail as their families stand in the driveway weeping. It is assumed that physicians, on the whole, are decent and law-abiding individuals, and that if they should find themselves living under a regime where medical society regulation of expert testimony is legally impermissible, they will abate their efforts to engage in it. The agenda here is rather to inquire, in a more philosophical vein, whether a principled distinction can be drawn between attempts to influence testimony via medical society regulation, on the one hand, and attempts to influence testimony by other methods that are generally regarded as illegitimate, on the other. To put the question another way, the inquiry is into whether we risk inconsistency, if we permit medical society regulation of witness behavior without also permitting other forms of evidentiary interference that we may not be (and certainly have not been) prepared to countenance. More in this vein in part 3.

Tuesday, January 24, 2006

What Canon of Statutory Construction We Are

We took the quiz. Here are the results:
You are Interpretation in Avoidance of Constitutional Questions! You presume that the legislature doesn't intend to draft unconstitutional stautes and so you interpret them so that you won't have to reach a constitutional decision. Some criticize you for implicitly making constitutional law, but without stating your reasons. You like to stay away from difficult decisions. You're kind of a weasley little bastard.
Which Canon of Statutory Construction Are You?
brought to you by Quizilla

Monday, January 23, 2006

What Peer Review Can't Do

Here's a piece by Peter Dizikes from yesterday's Boston Globe about fraudulent research in published scientific literature, and why peer review is not enough to stop it.

Update 1/24/06: And it's not just fraudulent data. The New York Times says it's the pictures too.

"Ethics" or "Witness Tampering"? (Part 1)

Because robust debate is best promoted, sometimes, by robust positions . . .

Four Theses: In general, (1) "ethical" rules adopted by medical organizations that provide for sanctioning members based on the substance of their testimony as expert witnesses are not in fact "ethical," nor even a legitimate exercise of the organizations' authority over matters within their institutional competence, (2) but rather represent a real or attempted usurpation of the legal system's legitimately exclusive authority in regulating the presentation of evidence, (3) and may even be viewed as a form of witness tampering subject to criminal sanction under current law in some jurisdictions. (4) If the adoption of such rules by professional medical societies would not be counted as witness tampering or obstructon of justice under current law, maybe it should be.

The Example of Choice: Walter Olson recently drew to his readers' attention a Position Statement on expert testimony promulgated by the American Academy of Emergency Medicine. It is chosen as the exemplary vehicle for this discussion not for the sake of picking on AAEM, but rather because some of the Position Statement's provisions are typical of measures adopted of late (or proposed for adoption) by other professional medical societies.

Disclaimer Regarding the Example of Choice: For the record, there is no intention to accuse AAEM, or any member of AAEM, of committing any crime. The arguments to be raised here involve broad issues about institutional competence to regulate expert testimony. The conduct of any particular organization or individual in any specific jurisdiction may or may not be lawful under the relevant governing law and the peculiar facts and circumstances of each case.

Anatomy of the Example of Choice: The AAEM's Position Statement is not merely a hortatory document. It explicitly provides that violation of the principles in the Position Statement may be considered a sanctionable violation of the AAEM's Code of Ethics. The Position Statement is set forth in full below:

The American Academy of Emergency Medicine believes the following principles to be essential to the ethical conduct of an expert offering opinions or testimony in medical legal matters. Violation of these principles constitutes a violation of the Academy's Ethics policy and may be subject to sanctions as described therein.

Expert Testimony as Medical Practice

Provision of opinions, reports, reviews or testimony as a medical expert is part of medical practice. As such, an expert witness providing such services is subject to all applicable rules, regulations and standards as well as the oversight and authority of the appropriate state licensing body.

Qualifications of Expert

An expert witness offering testimony related to emergency medical care must be

1. board certified by The American Board of Emergency Medicine or the American Board of Osteopathic Emergency Medicine; and

2. actively engaged in the provision of emergent medical care to patients.

Scope of Testimony

An expert witness offering testimony should

1. offer testimony only about care that falls within the expert's area of expertise and training;

2. conduct a thorough review of relevant material including, but not limited to, medical records, test results, and witness statements or depositions prior to offering testimony or opinions;

3. review and be prepared to describe medical literature relevant to the care provided, including that literature provided by other witnesses when possible;

4. offer complete testimony (whenever necessary to avoid incomplete or inaccurate testimony, the expert must offer appropriate qualifications or clarifications); and

5. explicitly state whenever an opinion offered is not conclusive, as well as explain the reason(s) why it is not.
Duty to the Court

At all times, an expert witness offering testimony must

1. impartially assist the Court and its officers on relevant matters within the expert's area of expertise;

2. not advocate for the party who engages him or her as an expert witness;

Duty to Confer

At the direction of the court, an expert witness will confer with other witnesses to

1. attempt to reach agreement on matters within the field of expertise of the expert witnesses;

2. prepare and sign a joint witness statement describing matters of agreement and disagreement among the witnesses, along with the reasons for disagreement.
In following the court's direction, the expert must exercise independent and professional judgment and must not act on the instructions or directions of any person to withhold or avoid agreement.

Professional Reimbursement

An expert witness, being engaged in the practice of medicine, shall be entitled to fair reimbursement for all work performed. In establishing a fee structure, the expert witness shall refuse payment based on case outcome.
That should suffice to lay the groundwork for the discussion to follow in subsequent posts.

Sir Roy Meadow Appeals

Over in London, Sir Roy Meadow is appealing from the General Medical Council's decision barring him from medical practice, according to a Reuters report. The ban was imposed as a sanction for testimony by Meadow, at a criminal trial, that the odds of two unexplained crib deaths in the same family were one in 73 million -- testimony now deemed to have been misleading.

We hold no brief for Sir Roy Meadow, and we find it appalling that mothers were convicted of crimes based on such testimony. But after much reflection, we also think the sanction of defrocking physicians for disfavored testimony is inappropriate. We'll be saying more about our reasons in the next little bit.

Sunday, January 22, 2006

Credit Where Credit Is Due

Since our parent site first opened its doors several years back, we've been waiting patiently for the Fourth Circuit to reverse a district court's decision excluding expert testimony under Daubert.

It has been a long wait. As the year 2005 drew toward a close, it hadn't happened in this millennium. In an unbroken string of 32 consecutive decisions, published and unpublished, the Fourth Circuit had affirmed the exclusion of expert evidence every single time.

We now see that the string has been broken at last. With the year winding down, a Fourth Circuit panel finally reversed a trial court's exclusion of expert testimony, for the first time in the 21st century. More impressively still, it reversed the lower court's exclusion of a criminal defendant's evidence on false confessions. See United States v. Belyea, No. 04-4415 (4th Cir. Dec. 28, 2005) (Wilkins, Michael, & Traxler, JJ.).

It took a lot. Here's the gist of the story line as narrated in the Fourth Circuit's opinion.

Michelle invites Joe to a party, at her parents' house in Virginia, where meth is freely consumed. Despite the drug consumption, the party eventually disperses without apparent incident. Only after a year goes by does Michelle's dad discover that three handguns are missing from the hope chest in the master bedroom. Dad promptly calls the cops, who run a computer check and discover that two of the guns have been retrieved from a D.C. drug dealer's car in a search.

ATF swoops in and questions the partygoers, including Joe. When Joe's memory seems a little shaky, the ATF agent decides to lie to him a little. The agent tells Joe that one of the guns has been used in a murder (not true). He also tells Joe that the gun in question bears Joe's fingerprint (also not true). With Joe's anxiety now mounting visibly, the agent decides to close the deal, and tells Joe that they already have enough to hold him as a material witness -- not in fair Virginia, mind you, but in a D.C. jail where "a skinny white boy like you won't last very long." Joe deems it prudent to confess, and he is charged with possessing a weapon while under the influence of a controlled substance.

At trial, Joe recants. He wants to offer expert testimony from Dr. Solomon Fulero, to the effect that people sometimes offer false confessions in the hope of escaping anxiety-provoking threats, such as a murder charge and/or gang rape. The trial judge rebuffs this proffer, on the stated basis that "jurors know people lie."

Michelle tries to come to Joe's aid, after a fashion. She testifies at trial that she took Joe and her boyfriend Kevin to dad's bedroom so they could break into the hope chest, get her savings bonds, and use them to buy more meth. She says nobody touched the guns. But her protests are unavailing, in the face of Joe's confession that he took the guns and gave them to Kevin to barter for drugs. The jury convicts.

Four of Kevin's acquaintances now come forth to tell a very different story. According to them, Michelle's boyfriend has repeatedly boasted that it was he, and he alone, who took the guns, on a completely separate occasion, without anyone else's knowledge or participation, sometime after the party. When Joe presents their testimony and moves for a new trial, the judge refuses, on the theory that the new evidence doesn't disprove the jury's verdict that Joe "possessed the firearms before they were stolen."

The Fourth Circuit panel saw red, of course, because no evidence, except for Joe's confession, linked him to the guns in any way. The panel's opinion concludes that jurors do not necessarily know that people will lie to their own detriment by confessing to crimes they didn't commit. On remand, the trial court is supposed to have another go at evaluating the admissibility of the expert testimony on false confessions. It's also supposed to take a harder look at that motion for a new trial based on newly discovered evidence.

We doubt Joe enjoyed being called a skinny white boy. But in retrospect, maybe he'll count himself lucky that it happened. It helped to buy him another shot, from a Fourth Circuit that doesn't dole them out liberally.

For our part, we applaud the panel for doing the right thing. Now if only the decision were published . . . .

Saturday, January 21, 2006

Cyril Wecht Indicted

Dr. Cyril H. Wecht is a forensic pathologist whose long career has included work on such high-profile cases as the JFK assassination and the JonBenet Ramsey murder. He was indicted Friday on charges that he used his public position as a medical examiner in Allegheny County, Pennsylvania, for private gain. According to the Pittsburgh Post-Gazette, the charges against Wecht include allegations that he provided unclaimed cadavers from the county coroner's office to a local university, in exchange for lab space to use in his private practice.

The case is not without political overtones, and some of the lines of allegiance aren't easy to explain (except, perhaps, to closer students of Pittsburgh politics than we can claim to be.) Wecht is a Democrat who was recently appointed as the county's chief medical examiner after agreeing to resign if indicted. But the Republican to whom Wecht lost a 1999 race for county executive, Jim Roddey, helped to create the Wecht Legal Defense Fund in May. Wecht's indictment was announced by U.S. Attorney Mary Beth Buchanan, a Bush II appointee. But among his defense counsel is Richard Thornburgh, who served (you'll remember) as U.S. Attorney General under Reagan and Bush I, after a previous stint as Pennsylvania's Republican governor.

Whatever the politics of it all may be, Wecht says he is innocent of all charges.

Wecht recently testified as a defense expert, incidentally, for a military officer charged with torturing an Iraqi prisoner to death during an interrogation. The officer allegedly handcuffed the Iraqi, stuffed him head-first into a sleeping bag, wrapped the sleeping bag in electrical cord, and sat on the Iraqi's chest while inquiring into Saddam Hussein's whereabouts, placing his hand over the prisoner's mouth whenever the name of Allah passed the prisoner's lips. The prosecution expert opined that the prisoner was suffocated. Wecht reportedly testified that the prisoner died when his enlarged heart gave out under the stress of interrogation. Apparently the latter theory might be considered exculpatory. The jury is still out in the torture case.

Update 1/22/06: Reportedly, the jury in the torture trial has now acquitted the defendant of murder but convicted him of negligent homicide, with a potential sentence of 39 months.

Update 2/11/06: Wecht, meanwhile, has pleaded not guilty.

Trials and Tribulations

Four months is a longish time to be in trial. We'd love to tell you how it's gone and what we've learned. But prudence forbids it.

We are at liberty, however, to rejoin the chatter in cyberspace. We'll be updating our parent site too. Our thanks for your patience.

Thursday, January 05, 2006

The Fog of War

Back in trial for two or three more weeks. No blogging here until it's finally over.
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.