EvidenceProf Blog

Frye in the Trunk of a Car (Anthony case)

Many thanks to Professor Colin Miller for inviting me to guest blog on this site for a couple of weeks.

Much attention has been paid to the Casey Anthony case – State of Florida v. Casey Marie Anthony, Case No. 48-2008-CF-15606-O (In the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida) before the Honorable Belvin Perry, Jr., Circuit Judge. A couple of Judge Perry’s Frye Orders are interesting. As most Americans know, Casey Anthony has been charged with first degree murder of her daughter Caylee. The indictment is available at: http://i2.cdn.turner.com/cnn/2008/images/10/15/caylee.indictment.pdf.

The trial began in Florida on May 24, 2011. Judge Perry ruled on two interesting Defense motions to exclude “unreliable evidence” under the standard followed in Florida, Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). The first Order was issued on April 27, 2011 and is available at: http://www.baynews9.com/static/articles/images/documents/casey-anthony-chloroform-motion-denied-0427.pdf (the “Chloroform Order”). The other is Judge Perry’s May 7, 2011 Order, available at: http://www.cfnews13.com/static/articles/images/documents/casey-anthony-order-denying-motion-to-exclude-unreliable-evidence.pdf (the “Decomposition Odor Analysis” Order).

In his Chloroform Order, Judge Perry denied Defendant’s motion to exclude any mention of chloroform at the Anthony trial. Defendant Anthony first moved to exclude the evidence based upon pure relevance grounds. The judge gave the relevancy objection short shrift. He found that there was circumstantial evidence that Casey Anthony had access to the computer that contained computer searches for the term “chloroform” prior to the death of her child.

On the Frye part of the motion, he determined that the method used for analysis of the carpet samples from the trunk of Defendant’s car (the GC/MS – gas chromatograph/mass spectrometer method) had been in use for 40 years and was generally accepted in the scientific community. He denied Defendant’s motion.

In his Decomposition Odor Analysis (DOA) Order, Judge Perry ruled on the Defendant’s Motion to Exclude “any testimony or evidence concerning any alleged identification of the chemical composition of human decomposition odor…or reference to an alleged “decompositional” odor analysis database.” At the Frye hearing, Dr. Arpad Vass, a senior research scientist with the University of Tennessee Oak Ridge National Laboratory testified that his colleague Dr. Marcus Wise “removed air with a syringe from the headspace of a metal evidence can containing the carpet sample taken from the vehicle allegedly driven by the Defendant.” His “Final Forensic Report” stated the following:

While not conclusive, these data indicate that:

(1)   Nearly all the compounds present in early human decomposition were detected in the trunk samples…”; and

(2)   Compounds that have been detected in these select animal remains and not in humans were not detected in the Florida trunk carpet sample…

The Defense called two scientists to refute that Dr. Vass’s scientific principles were generally accepted by members of his scientific field.

First, Judge Perry determined that expert testimony on “basic odor identification” would be allowed and he denied the Defendant’s motion on that particular evidence. He would permit testimony that when Dr. Vass opened the sealed container that contained the carpet sample, he smelled a “strong odor of human decomposition.” Second, he allowed in (under Frye) evidence that “the odor signature identified in the trunk of the vehicle alleged to have been used by the Defendant [was] consistent with an early decompositional event of human origin but that the results do not rule out the remote possibility an unusual variety of products or materials may have had some contribution to the overall chemical signature.”

My take on it: The Defense really did not have a Frye-type objection to the chloroform evidence. It is clear the method was well established in the field. The Defense really had an issue not with the method itself, but rather with how the samples were collected and analyzed. It really was not a Frye issue at all.

The Decomposition Odor Analysis (DOA) Order. Judge Perry really dodged the issue of whether Dr. Vass’s analysis passed muster under Frye – he seemed to indicate that because Dr. Vass found that the “odor signature” could not be found to be solely that of a decomposing human body, the Frye test was met. I disagree. That ruling has to do with the strength of the method, not whether the method has been generally accepted in the field. Only Dr. Vass and a Greek scientist, Dr. Statheropoulos have performed this type of “signature decomposition” analysis. Neither, it appears, had ever tested this method on carpet samples.

That being said, the possibility of Judge Perry’s ruling on the decomposition odor analysis being reversed on appeal (if indeed an appeal is taken if Casey Anthony is convicted) is slim. Judges have broad discretion in this area. 

 

Please Welcome Guest Blogger Ann Murphy

From today until June 27th, I will be traveling. While I'm gone, Ann Murphy will be guest blogging here. Professor Murphy is an Associate Professor of Law at the Gonzaga University School of Law, where she teaches Evidence, Individual Federal Income Tax, Taxation of Exempt Organizations, Wills and Trusts, and Litigation Skills and Professionalism. In 2007, she won the Orland Professor of the Year at Gonzaga, and later that year she served as a Fulbright Lecturer in Beijing.

Professor Murphy has published several books, with her most recent being People of the State of California v. Phillip Spector Case File. She has also published numerous articles, including:

•Federal Rule of Evidence 502 – Inadvertent Disclosure - The “Get-Out-Of-Jail-Free Provision” - Or Is It? - 41 New Mexico Law Review __ (2011);

•The Attorney-Client Privilege and Inadvertent Disclosure, Washington State Bar Association, Litigation News, Special Edition: Evidence, spring 2010;

•FRE 502: The Lawyer-Saving Provision for Inadvertent Waivers of Privileges, LexisNexis Emerging Issues Analysis, June 7, 2010; and

•Spin Control and the High-Profile Client - Should the Attorney-Client Privilege Extend to Communications with Public Relations Consultants?, 55 Syracuse Law Review 545 (2005).

So, please join me in giving a warm welcome to her.

-CM

Quantum Of Stealth: Supreme Court Of Iowa Finds Theft & Burglary W/Intent To Commit Theft Fall Under Rule 5.609(a)(2)

Like its federal counterpart, Iowa Rule of Evidence 5.609(a)(2) provides that

Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

So, assume that a defendant has prior convictions for theft and burglary with intent to commit theft crimes of dishonesty or false statement, meaning that they are per se admissible under Rule 5.609(a)(2)? According to the recent opinion of the Supreme Court of Iowa in State v. Harrington, 2011 WL 2162817 (Iowa 2011), the answer is "yes." I disagree.

In Harrington, Wendell Harrington was convicted of ongoing criminal conduct, first-degree theft, second-degree theft, and three counts of second-degree burglary, all enhanced as a habitual offender. After Harrington testified at trial, the trial court permitted the prosecution to impeach him through evidence of his prior convictions for theft and burglary with intent to commit theft. 

After he was convicted, Harrington appealed, claiming, inter alia, that the trial court erred in admitting these convictions without balancing their probative value against their prejudicial effect under Iowa Rule of Evidence 5.609(a)(1), which states that

Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

It was undisputed that the trial court did not conduct this balancing, meaning that its impeachment decision was erroneous unless Harrington's prior crimes were crimes involving dishonesty or false statement under Iowa Rule of Evidence 5.609(a)(2), making them per se admissible. And, according to the Supreme Court of Iowa, they were as it concluded that

Our common law cases have repeatedly held theft and burglary with the intent to commit theft are crimes of dishonesty....We originally reasoned that theft falls within the plain meaning of the term dishonesty, and we quoted former Chief Justice Burger, then on the United States Court of Appeals for the District of Columbia, in observing "'[i]n common human experience acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity.'"...It has been settled law in this state that convictions for theft and burglary with intent to commit theft are crimes of dishonesty. Harrington makes no contention his prior theft and burglary convictions are not crimes of dishonesty or false statement under rule 5.609(a)(2). Thus, we find Harrington's prior convictions fall within the scope of rule 5.609(a)(2).

The way I see it, there is a serious flaw with the Supreme Court of Iowa's original reason. According to Burger, stealing is universally regarded as reflecting adversely on a man's honesty and integrity. Fine. I'm sure that we would all agree on this fact. But saying that stealing reflects adversely on a man's honesty and integrity is different from saying that stealing involves dishonesty or false statement. Or at least that it always involves dishonesty or false statement. A defendant sees a woman leave a purse on a table as she goes to the bathroom and he snatches it. I don't think that this crime of theft involves dishonesty or false statement. A defendant falsely tells a woman that she left her car lights on so that she goes to check her car while he snatches her purse. This crime clearly involves hearsay/false statement.

This was the point implicitly made by the Advisory Committee in connection with the enactment of Federal Rule of Evidence 609(a)(2). According to the Advisory Committee's Note, the Committee meant for the Rule to cover

crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.

These are crimes which by their nature require an act of dishonesty or false statement; they are crimes in the nature of crimen falsi. This distinguishes them from crimes of stealth. As the Second Circuit noted in United States v. Estrada, 430 F.3d 606, 614 (2nd Cir. 2005), "[w]hile much successful crime involves some quantum of stealth, all such conduct does not, as a result, constitute crime of dishonesty or false statement for purposes of Rule 609(a)(2)."

-CM

Resource Of Interest: Evidence: Skills, Strategies, and Assignments for Pretrial and Trial & The Freck Point Trial DVD

An old Chinese proverb says, "Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime." This proverb sums up the approach taken by Marilyn J. Berger, John Mitchell, and Ronald Clark with their new book Evidence: Skills, Strategies, and Assignments for Pretrial and Trial, which is accompanied by a DVD with an excellent simulated trial -- the Freck Point Trial -- and related materials. So, what makes the book such a good tool for use in an Evidence or Trial Advocacy class?

Well, let's start with the goal of the book. According to the authors,

The goal of this book and the Freck Point Trial movie is to fill the need that law students and lawyers have for practical skills instruction on how to apply evidence in professional settings: in motion practice (motions in limine); during depositions; in alternative dispute resolution and in trial. Generally, traditional law school evidence courses teach legal doctrine, but not how evidence law works in real world practice. As a consequence of the lack of skills training on evidence, new lawyers are ill equipped for pretrial litigation and in trial settings....

Evidence Skills, Strategies & Assignments provides practical pretrial and trial advocacy experiences which teach evidence skills. By including a movie that shows the skills of experienced trial lawyers working with evidentiary issues, the book is a ground-breaking way of providing a model of performance skills.  

Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is broken down into 6 chapters: (1) Chapter 1. Introduction; (2) Chapter 2. Objections:  Skills and Strategies; (3) Chapter 3. Motions:  Skills and Strategies; (4) Chapter 4. Exhibits:  Skills and Strategies; (5) Chapter 5. Assignments; and (6) Chapter 6. Morgan’s Evidence Handbook

The book is accompanied by a a DVD with the 135 minute Freck Point Trial, a simulated trial that Professor Clark describes on the Pretrial, Trial, Appellate & Evidence Blog as follows:

The Freck Point Trial movie was inspired by several real cases, one of which is the Randy Roth case, which was the subject of renowned true crime writer Ann Rule's book A Rose for Her Grave. Ann Rule kindly joined in the project of producing this movie and provided her observations about the importance of watching skilled trial attorneys in trial as a means of learning how to be effective in trial.

I've had a chance to watch the entire DVD, and it really provides an excellent tool for students to learn how to conduct a trial from start to finish.  The trial is a civil wrongful death case in which the plaintiff claims that the defendant-husband murdered his wife and the defendant claims that his wife was killed by an intruder. The simulated trial is broken down into 6 chapters: (1) Jury Selection; (2) Opening Statement; (3) Direct & Cross of Plaintiff's Witness; (4) Direct & Cross of Expert Witness; (5) Direct & Cross of Defense Witness; and (6) Closing Argument. Most chapters have one of the attorneys (actual veteran trial lawyers) in the case initially describing the importance of each stage of the trial and the strategy that they use. We then see each attorney putting this strategy into practice as they strike jurors, make objections, and use visual demonstrations to drive home their points.

You can see a preview of the simulated trial by clicking here. The trial is accompanied by a CD which contains a case file with exhibits, witness statements, legal documents and other things pertinent to the case. The simulated trial and this case file are then integrated into the book through readings and assignments. For instance, in Chapter 4, students are given a sample stipulation that might have been used in the Freck Point Trial. And, in Chapter 5, students are asked to file motions as if they were one of the attorneys in the trial Here is one example:

As your instructor directs, defense counsel will either make a motion in limine or object to Montgomery’s following testimony and prosecutor/plaintiff’s counsel responds to the defense motion or objection:

1.   Testimony that Homicide Unit’s Sergeant Kameron called him at home and told him that patrol officers had just arrived at a house in the Freck Point neighborhood in response to a 911 call placed by the home owner Sam Griffith. Kameron said that a patrol officer found Sam Griffith’s wife stabbed to death in the bedroom of the house. According to Montgomery’s testimony, Kameron told him to go to the Griffiths’ house.

Director Richard Linklater, who taught himself how to make movies, once directed the movie, It's Impossible to Learn to Plow by Reading Books. The point of Evidence: Skills, Strategies, and Assignments for Pretrial and Trial is that it is impossible to learn how to conduct a trial by (just) reading books. Instead, it let's students see a simulated trial that is, in a sense, even better than the real thing. And then it asks them to role play, to step into the shoes of the lawyers in the Freck Point Trial, to make motions, to question witnesses, to make opening and closing statements. It is highly recommended.

-CM 

Demystifying The Myth Of Fingerprints: The NCSTL's Introductory Video And The San Diego Courthouse Bomber Case

The use of fingerprint evidence is always an interesting issue in Evidence and Expert Evidence classes. So, what is the history of fingerprinting? How about SWGFAST? ACE-V? A friction ridge? A few weeks ago, I posted an entry about the fine folks at the National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law and the terrific content that they are producing. Well, they have just put out a terrific two-and-a-half minute video that delves into these and other issues and would serve as a nice introduction to the material in an evidence-related class:

Meanwhile, if you are looking for a solid case that delves into many of these topics, you could do a lot worse than the recent opinion of the United States District Court for the Southern District of California in United States v. Love, 2011 WL 2173644 (S.D. Cal. 2011).

Donny Love, Sr. was convicted of the use of a weapon of mass destruction and other charges arising from the bombing of the Edward J. Schwartz Federal Courthouse in San Diego on May 4, 2008. Prior to his trial, Love moved to exclude the testimony of Robin Ruth, the standards and practices program manager of Federal Bureau of Investigation's latent fingerprint unit, who analyzed fifteen latent prints that connected Love to the crime. In addressing this motion, the United States District Court for the Southern District of California began by noting that

There are, broadly speaking, two kinds of fingerprints. "Rolled," "full," or "known" prints are taken under controlled circumstances, often for official use. "Latent" prints, by contrast, are left—often unintentionally—on the surfaces of objects touched by a person. Latent fingerprint examiners compare unidentified latent prints to known prints as a means of identifying the person who left the latent print.

The court then cited to the Third Circuit's opinion in United States v. Mitchell, 365 F.3d 215 (3rd Cir. 2004), which provides a nice introduction to latent fingerprint terminology and methodology: 

[f]ingerprints are left by the depositing of oil upon contact between a surface and the friction ridges of fingers. The field uses the broader term "friction ridge" to designate skin surfaces with ridges evolutionarily adapted to produce increased friction (as compared to smooth skin) for gripping. Thus toeprint or handprint analysis is much the same as fingerprint analysis. The structure of friction ridges is described in the record before us at three levels of increasing detail, designated as Level 1, Level 2 and Level 3. Level 1 detail is visible with the naked eye; it is the familiar pattern of loops, arches, and whorls. Level 2 detail involves "ridge characteristics"-the patterns of islands, dots, and forks formed by the ridges as they begin and end and join and divide. The points where ridges terminate or bifurcate are often referred to as "Galton points," whose eponym, Sir Francis Galton, first developed a taxonomy for these points. The typical human fingerprint has somewhere between 75 and 175 such ridge characteristics. Level 3 detail focuses on microscopic variations in the ridges themselves, such as the slight meanders of the ridges (the "ridge path") and the locations of sweat pores. This is the level of detail most likely to be obscured by distortions.

The FBI...uses an identification method known as ACE–V, an acronym for "analysis, comparison, evaluation, and verification." The basic steps taken by an examiner under this protocol are first to winnow the field of candidate matching prints by using Level 1 detail to classify the latent print. Next, the examiner will analyze the latent print to identify Level 2 detail (i.e., Galton points and their spatial relationship to one another), along with any Level 3 detail that can be gleaned from the print. The examiner then compares this to the Level 2 and Level 3 detail of a candidate full-rolled print (sometimes taken from a database of fingerprints, sometimes taken from a suspect in custody), and evaluates whether there is sufficient similarity to declare a match....

At the evaluation step, the examiner may reach three conclusions—that the prints are a match ("identification"), that the prints are not a match (“exclusion”), or that more information is needed ("inconclusive")...."In the final step, the match is independently verified by another examiner."

The Southern District of California then went on to note, "that since Mitchell was decided in 2004, there have been important refinements and developments with respect to latent print identification...."

This introduction led the court into the law, specifically Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which held that in determining whether expert testimony is based upon reliable principles and methods under Federal Rule of Evidence 702, courts can consider factors such as

whether the "technique can be (and has been) tested," "[w]hether it has been subjected to peer review and publication," the "known or potential rate of error," "whether there are standards controlling the technique's operation," and "whether the...technique enjoys general acceptance within a relevant scientific community."

In addition, the court decided to consider two other factors: (1) whether latent fingerprint analysis has a "relationship to...established modes of scientific analysis," and (2) whether it has "non-judicial uses." Briefly, here is what the court held in connection with each factor:

•Testing: "The parties do not dispute that the reliability of latent fingerprint analysis can be tested, and the record reveals three categories of potential tests....The fact that latent fingerprint analysis can be tested for reliability, without more, allows the first Daubert 'factor to weigh in support of admissibility.'...Ruth also testified, however, that at least some actual testing and research has been performed....Finally, several studies of the performance of fingerprint examiners have been performed. The most recent such study was published in May 2011....The court recognizes that the NAS Report called for additional testing to determine the reliability of latent fingerprint analysis generally and of the ACE–V methodology in particular....The Report also questions the validity of the ACE–V method....However, Daubert, Kumho, and Rule 702 do not require "absolute certainty"...; instead, they ask whether a methodology is testable and has been tested. On this record, the court finds that latent fingerprint analysis can be tested and has been subject to at least a modest amount of testing—some of which, like the study published in May 2011, was apparently undertaken in direct response to the NAS's concerns. The court therefore concludes that this factor weighs in favor of admitting latent fingerprint evidence." 

•Peer Review and Publication: "Publications regarding latent fingerprint analysis are relatively few in number. The government introduced into evidence a list of roughly thirty publications touching on various aspects of the field....Love's moving papers also contain citations to a handful of other relevant publications....Although limited in quantity, many of these publications appear to "address... theoretical/foundational questions" in latent fingerprint analysis....The articles are therefore relevant to the reliability inquiry.

Ruth stated that at least one of these articles was published in a peer-reviewed journal, and the government's brief cites three other examples of peer-reviewed work....Even assuming that all of the articles cited by Ruth and the parties are peer-reviewed, latent fingerprint analysis would have only a small fraction of the number of peer reviewed publications found in established sciences. Nonetheless, because there are a handful of publications that concern the reliability of latent fingerprint analysis, at least a few of which are peer-reviewed, this factor is either neutral or weighs slightly in favor of admissibility."

•Error Rates: "Latent fingerprint examiners have sometimes stated that their analyses have a zero error rate....Ruth did not so testify. Rather, she stated that the ACE–V methodology is unbiased and that the methodology itself introduces no random error. Errors occur, but those errors are human errors resulting from human implementation of the ACE–V process....Because human errors are nonsystematic, Ruth believes that there is no overall predictive error rate in latent fingerprint analysis.

Ruth's testimony does not mean that the ACE–V process is perfect, or even that it is necessarily the best possible process for identifying latent prints....Nevertheless, all of the relevant evidence in the record before the court suggests that the ACE–V methodology results in very few false positives—which is to say, very few cases in which an examiner identifies a latent print as matching a known print even though the two prints were actually made by different individuals. Most significantly, the May 2011 study of the performance of 169 fingerprint examiners revealed a total of six false positives among 4,083 comparisons of non-matching fingerprints for "an overall false positive rate of 0.1%."

The court therefore concludes that the error rate favors admission of latent fingerprint evidence."

•Standards: Here, the court noted that "[i]t is not disputed that the ACE–V methodology leaves much room for subjective judgment" and that "[t]here is not a single national standard" to guide an examiner's judgment. The court, however, focused upon standards imposed by the FBI's latent fingerprints unit to find that this factor favored admission:

"The FBI uses three different types of standards in an effort to reach reliable conclusions through the ACE–V process. At the laboratory level, the FBI adheres to the standards for calibration laboratories provided by the International Organization for Standardization and the standards for forensic laboratories promulgated by the American Society of Crime Laboratory Directors Laboratory Accreditation Board ("ASCLD/LAB")....The FBI also follows the consensus-based guidelines for laboratories engaged in friction ridge analysis issued by the Scientific Working Group on Friction Ridge Analysis Study and Technology.

At the level of individual examiners, the FBI applies relatively stringent standards for qualification. In addition to a college degree, examiners must have a significant amount of training in the physical sciences. They are then given eighteen months of FBI training and a four-day proficiency examination. After passing that test, an examiner has a six-month probationary period in which every aspect of her work is fully reviewed. Even thereafter, examiners undergo annual audits, proficiency tests, and continuing education.

Finally, at the level of individual comparisons and evaluations, the ACE–V methodology provides procedural standards that must be followed, such as the requirement that examiners assess each ridge and ridge feature in the prints under comparison....The FBI has also recently incorporated documentation requirements that record the process used to detect latent prints as well as the examiner's comparison of the latent print to a known print. These documentation requirements and other procedures are enforced through the technical and administrative review of examiners' work. And the verification process serves as an error-reducing backstop."

•General Acceptance: "The NAS report does demonstrate some hesitancy in accepting latent fingerprint analysis on the part of the broader scientific community. Love's claim is subject to two significant qualifications. First, the NAS report itself states that "friction ridge analysis has served as a valuable tool, both to identify the guilty and to exclude the innocent."...Instead of a full-fledged attack on friction ridge analysis, the report is essentially a call for better documentation, more standards, and more research.

Second, Love does not dispute that the forensic science and law enforcement communities strongly support the use of friction ridge analysis. Acceptance in that narrower community is also relevant to the Daubert inquiry....For both of these reasons, the court concludes that the general acceptance factor at least weakly supports the admission of latent fingerprint evidence."

•Relationship to Established Techniques: "The Third Circuit held in Mitchell, and Ruth testified, that friction ridge analysis is related to the undisputeclly scientific "fields of developmental embryology and anatomy,” which explain “the uniqueness and permanence of areas of friction ridge skin."...Love argues that this strong tie to the biological sciences is irrelevant, because "'uniqueness and persistence are necessary'" but not sufficient conditions for friction ridge analysis to be reliable....Even if uniqueness and persistence alone cannot validate latent fingerprint analysis, however, it remains true that "[i]ndependent work in [developmental embryology and anatomy] bolsters" two critical "underlying premises of fingerprint identification."...This factor weighs in favor of admission."

•Non-Judicial Applications: "Ruth testified that friction ridge analysis is used for various other purposes, including to identify disaster victims, to identify newborns at hospitals, for biometric devices, for some passports and visas, and for certain jobs....Love stresses that these non-judicial applications generally use rolled and not latent prints. Ruth testified, however, that latent prints are used to identify disaster victims when rolled prints are unavailable....On the basis of the widespread use of fingerprints, and occasional use of latent prints, for non-judicial identification purposes, the court concludes that this factor modestly supports the admission of latent fingerprint evidence."

Based upon all of these factors, the court easily concluded that the latent fingerprint testimony was admissible.

-CM

Call The Doctor: NY Court Addresses Questions About Compensation For Physicians Called As Fact Witnesses

A party can only pay fact witnesses attendance fees, travel expenses, and compensation for their loss of time spent testifying. This is because fact witnesses have a public duty to testify. Conversely, expert witnesses are under no obligation to testify and can be pad commensurate with their special knowledge and skill. But let's say that a party wants to call a physician who is usually called as a expert witness, but the party only wants to call him as a fact witness. Can the party pay the expert an amount commensurate with the amount that he ordinarily receives when he testifies as an expert? According to the recent opinion of the New York Supreme Court, Appellate Division, Second Department in Caldwell v. Cablevision Systems Corp., 2011 WL 2164004 (N.Y.A.D. 2 Dept. 2011), the answer is "no." So, why did the court affirm a verdict against a plaintiff despite a defendant overpaying a physician/fact witness?

In Caldwell, 

The defendant [Communications Specialists, Inc.] was contracted by Cablevision Systems Corporation  to install a high-speed fiber-optic cable underneath Benefield Boulevard in Peekskill. To install the cable, the defendant cut a trench, two feet deep and four to five inches wide, which extended more than 3,000 feet along Benefield Boulevard. Additionally, the defendant dug, along the trench, a series of "test pits," approximately one-foot wide, to determine the location of existing underground utility lines. The plaintiffs' home is located on Benefield Boulevard. On October 11, 2006, at approximately 10:00 P.M., the plaintiff Bessie Caldwell (hereinafter the injured plaintiff) took her 100–pound dog for a walk during a heavy rainstorm. As was her daily custom, the injured plaintiff crossed Benefield Boulevard from her driveway and walked with the dog on the sidewalk for a short distance. As she was walking back across Benefield Boulevard toward her driveway, the injured plaintiff tripped and fell in the road, allegedly sustaining injuries. At the time of the injured plaintiff's accident, the defendant had previously dug and backfilled the trench and test pits on Benefield Boulevard, but the road had not yet been permanently repaved.

The injured plaintiff and her husband, suing derivatively, subsequently commenced [an] action alleging, inter alia, that the defendant failed to properly backfill the trench and test pits, and had failed to adequately cover the trench and test pits with a temporary resurfacing material. According to the plaintiffs, the defendant had thereby created a dangerous condition on Benefield Boulevard which was the cause of the accident.

At trial, "the injured plaintiff testified that she fell when she tripped on a 'dip' in one of the test pits along the trench." Thereafter,

To rebut this testimony, the defendant called as a witness Dr. Barry Krosser, an orthopedic surgeon who had examined the injured plaintiff in an emergency room after the accident. Dr. Krosser was called during the liability phase of the trial solely to testify as to the description of the accident given to him by the injured plaintiff and recorded in his consultation note. Dr. Krosser's consultation note was admitted into evidence as a business record. Based upon the note, as opposed to his independent recollection, Dr. Krosser testified that when he evaluated the plaintiff, she indicated to him that she "tripped over a dog while walking ... in the rain." Dr. Krosser further testified that he was appearing by virtue of a subpoena served upon him by defense counsel, and that the defendant was compensating him for his lost time in the sum of $10,000. The plaintiffs' counsel cross-examined Dr. Krosser regarding this payment, without limitation. Dr. Krosser indicated that, in cases in which he had previously testified as an expert, he had charged a fee, since he would otherwise have been seeing patients or performing surgery.

Based upon thus payment, the plaintiffs' counsel moved (1) to strike Dr. Krosser's testimony on the ground that it was improper for the defendant to have paid $10,000 to a fact witness; or, in the alternative, (2) for a jury instruction pertaining specifically to the payment. The trial court ruled that both counsel could address Dr. Krosser's compensation in their summations, but it otherwise denied the plaintiffs' motion. After the jury entered a verdict finding that the defendant was negligent but that this negligence was not a substantial factor in bringing about the injured plaintiff's accident, the plaintiffs appealed, claiming "that Dr. Krosser's testimony should have been stricken or, alternatively, that the jury should have been specifically instructed as to the potential bias created by the $10,000 payment made to the witness."

In addressing this argument, the Supreme Court of New York, Appellate Division, Second Department, began by noting that parties may only pay fact witnesses "attendance fees" in the amount of $15 for each day of attendance at trial, and travel expenses in the amount of 23 cents per mile pursuant to CPLR 8001(a) as well as compensation for the loss of their time spent testifying. The court then rejected the defendant's suggestion that its $10,000 payment was proper because it "was commensurate with the amount Dr. Krosser ordinarily charges to testify as an expert." According to the court,

There are...important differences between expert witnesses and fact witnesses. Experts are under no public duty, nor can they be compelled, to testify....Their opinion testimony involves "special knowledge and skill...and often requires examination and study upon a particular branch of science.. about which they are to testify"....Moreover, the testimony of a particular expert is not ordinarily necessary to the resolution of a case in the same manner as is the testimony of a fact witness who has personal knowledge peculiar to the case at hand. Thus, while fact witnesses have a public duty to testify and are limited to receipt of statutory fees and compensation for lost time, expert witnesses are justified in receiving compensation for their efforts....Here, Dr. Krosser was not called to provide any medical evidence. Therefore, because no special knowledge or examination and study was required for the testimony given by Dr. Krosser, the defendant's suggestion that the payment to Dr. Krosser was commensurate with his normal expert fees detracts from its assertion that the payment was merely reasonable compensation for time lost testifying.

That said, the court then noted that its role in the appeal before it was not to determine whether the payment to Dr. Krosser was reasonable; instead, it had to decide whether Dr. Krosser's testimony should have been excluded or accompanied by a specific instruction regarding potential bias. The court quickly rejected the exclusion argument, finding that "[o]ur legal system generally 'leave[s] the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.'"

The court, however, agreed with the argument that a specific instruction on bias should have been given. It concluded that

While the Supreme Court instructed the jury that it should consider bias or prejudice in determining the weight to be given to any particular witness's testimony, this general charge was insufficient under the circumstances. Just as a jury that hears testimony in a criminal trial from a witness who is testifying in exchange for a promise of leniency is given a specific instruction regarding the possibility of bias..., we conclude that, in light of the important public policy considerations concerning fees paid to fact witnesses, more than the general credibility charge is also warranted where, as here, a reasonable inference can be drawn that a fact witness has been paid an amount disproportionate to the reasonable value of his or her lost time. In crafting an appropriate instruction, trial courts should bear in mind the general principles regarding fact-witness testimony heretofore discussed, including a fact witness's public duty to testify for the statutory fee of $15; the permissibility of voluntary compensation for the reasonable value of time spent in testifying; the goal of drawing the line between compensation that merely eases the burden of testifying and that which tends to unintentionally influence testimony; the inference, which may be drawn from the disproportionality of the payment to the reasonable value of lost time, that a fee for testimony has been paid; and the potential for unconscious bias that such a fee may create. 

That said, the court ultimately concluded that

Although the trial court here failed to give a specific instruction regarding fact-witness compensation to the jury, under the particular circumstances of this case, the charge error does not require reversal. Dr. Krosser was called as a witness by the defendant for the sole purpose of testifying as to a single fact recorded in his medical notes. Dr. Krosser admitted that he had no personal recollection of speaking with the plaintiff and that his testimony was based only on what was written in his note. The jury's evaluation of this testimony was, therefore, only minimally dependent upon an assessment of Dr. Krosser's credibility. In other words, the plaintiffs do not challenge the believability of Dr. Krosser's testimony that he made a particular notation in the injured plaintiff's medical chart. Rather, they dispute the accuracy of the note itself. Because the payment of fees to a fact witness goes merely to the credibility of the witness, in view of the nature of Dr. Krosser's testimony, the charge error here was not so prejudicial as to warrant reversal and a new trial.

I'm not sure that I agree. Now, I don't have access to the full factual record of the Caldwell case, but a few things are clear. First, the jury found that the defendant was negligent. My assumption from this finding is that the jury found the defendant negligent in failing to act properly after digging the trench and test pits. Second, the jury found that the plaintiff was injured. Third, the jury found that the defendant's negligence was not a substantial factor in causing the plaintiff's injury. My assumption is that the jury credited Dr. Krosser's notation that the plaintiff tripped over a dog and thus discredited the plaintiff's testimony that she tripped on a dip in a test pit. That leaves one question: Besides Dr. Krosser's notation, what other evidence was there to discredit the plaintiff's testimony?

If there was plenty of other evidence that the plaintiff did not trip on a dip, I would agree with the court that a new trial was not warranted. But if Dr. Krosser's notation was the only or the primary evidence discrediting her testimony, his credibility was central to the case, and I think that a new trial was warranted.

(Hat tip to Michael J. Hutter for the link)

-CM