Criminal Law

Pet Writing Peeve of the Day

Posted on October 25, 2008
"Acquaintanceship."Spotted twice in as many days.

Still on Hiatus

Posted on October 13, 2008
Busy with other things right now.Stay tuned.

Today's Pet Writing Peeve

Posted on June 10, 2008
Please, for the love of God:NeitherJones failed to attend the July 6, 2002, meeting.nor, worse still,Jones failed to attend the July 6, 2002 meeting.but ratherJones failed to attend the meeting of July 6, 2002.and thereafterJones failed to attend the July 6 meeting...

No, We're Not Defunct

Posted on June 07, 2008
Just resting, filled as we are with blogging ennui (New Year's resolutions notwithstanding).We do have our day job, you see, as well as other pursuits. And we're not under any contractual obligations to blog, so we're free to succumb to ennui when it besets us...

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Expert Testimony on False Confessions Too Abstract, Says 5th Circuit

Posted on January 20, 2008
In an unpublished per curiam opinion, the Fifth Circuit has upheld a trial court's decision excluding a criminal defendant's proffered expert evidence on false confessions. The expert's testimony, the panel said, consisted only of generic propositions; the expert failed to apply them adequately to the facts of the case...

11th Circuit Upholds Statistical Testimony in Medicare-Fraud Prosecution

Posted on January 20, 2008
On plain error review, the Eleventh Circuit has upheld the trial court's admission of testimony from a statistician in a Medicare-fraud case.The defendant was a dermatologist charged with performing unnecessary skin-cancer surgeries on hundreds of elderly patients...

Witness Tampering Watch (British Edition)

Posted on January 20, 2008
If the RSPCA's experts don't initially say what the RSPCA wants, they may be told to say something different.The British are shocked. K9 Magazine has the story.

More on Babies in the Microwave

Posted on January 16, 2008
Defense expert: Babies are not pancake batter.

Judge Posner on the Static 99

Posted on January 11, 2008
In sentencing proceedings, experts often rely on an instrument known as the "Static 99" to estimate the risks of recidivism for sex offenders. Although Rule 702 does not apply at the sentencing phase in federal cases, the sentencing guidelines do call for information considered at sentencing to meet a standard of "probable accuracy...

On Babies in the Microwave

Posted on January 10, 2008
At the murder trial, do you need a microwave expert, or a baby expert?Sadly, the question is not hypothetical.

California Supreme Court Hears Argument on Recoverability of Expert Fees Under Cal. Civ. Code 1021.5

Posted on January 10, 2008
California's high court heard argument Wednesday on whether expert fees are recoverable by the prevailing party in actions brought under the state's private attorney general statute. Law.com has the story.

9th Circuit Upholds Fingerprint Evidence

Posted on January 10, 2008
In an unpublished opinion, a Ninth Circuit panel has upheld the trial court's decision to admit fingerprint testimony without a Daubert hearing. The reliability of fingerprint evidence may properly be taken for granted, the opinion holds -- at least in the absence of evidence from the objecting party calling its reliability into question...

Anesthesiologist Competent to Testify on Ophthalmologic Effects, Says Idaho Supreme Court

Posted on January 06, 2008
Reversing a trial court's evidentiary ruling, the Idaho Supreme Court has held that an anesthesiologist was competent to opine that a patient's anesthesia caused post-operative blindness in his right eye. The lower court had wanted to hear from an ophthalmologist...

8th Circuit Reverses Exclusion of Accident Reconstruction Experts

Posted on January 05, 2008
The Eighth Circuit has reversed a trial court decision that excluded testimony from plaintiffs' accident reconstruction experts and awarded summary judgment to defendants. The district court relied in part on differences between conditions in the experts' testing and during the accident...

Happy New Year

Posted on January 01, 2008
Our resolution: to blog once again.

Hold Daubert Hearings, Says Mississippi High Court

Posted on October 07, 2007
Last week, a sharply divided Mississippi Supreme Court signaled that trial courts risk reversal if they exclude expert testimony without holding a Daubert hearing. See Smith v. Clement, No. 2006-CA-00018-SCT (Miss. Oct. 4, 2007). The testimony in question was offered on summary judgment, in an affidavit from the plaintiffs' mechanical engineer, to prove that a school bus fire was caused by defects in the bus's propane fuel system...

Another Unsettling Field of Expertise

Posted on October 02, 2007
Mattress stains.

Naysaying

Posted on August 04, 2007
Long piece in Newsweek on the industrial manufacture of scientific doubt. Topic: global warming.

Quantum Indeterminacy in Extra Innings

Posted on July 29, 2007
From the AP report on tonight's 12-6 win by the Red Sox over Tampa Bay:"Kyle Snyder (2-2) scattered one hit over two innings for the win."

Mississippi Supreme Court Unimpressed with Social Worker's Reliance on "Instinct"

Posted on July 21, 2007
The Supreme Court of Mississippi has faulted the trial court for giving even slight weight to testimony from a social worker in a custody dispute, when the testimony should have been excluded altogether. Asked to describe the basis of her custody recommendation, the social worker testified as follows:A...

3d Circuit Upholds Exclusion of Appraiser's Opinion

Posted on July 19, 2007
In a case involving groundwater contamination from leaking storage tanks at a New Jersey gas station, the Third Circuit has issued an opinion upholding the trial court's exclusion of an appraiser's testimony on the effects of the contamination on nearby property values...

"Medical Justice" Watch -- Day 1

Posted on July 13, 2007
After looking at the piece in yesterday's WSJ, we've sent an e-mail to the folks at "Medical Justice," asking for a copy of the organization's "patient-physician contract" -- under which patients are asked to agree, as a condition of treatment, that they will rely, in any future malpractice claim, only on experts who "belong to [certain medical societies] and who strictly follow their code of ethics...

7th Circuit Upholds Experts' Estimates of Drywall Workers' Rates, Productivity

Posted on July 06, 2007
In a suit involving pension benefits, a Seventh Circuit panel has upheld the experience-based testimony of experts who estimated the rates and productivity of drywall workers. See Trs. of the Chicago Painters & Decorators Pension v. Royal Int'l Drywall & Decorating, Inc...

ER Doc May Testify on Bullet Trajectory, Says RI Supreme Court

Posted on June 24, 2007
This past Wednesday, the Rhode Island Supreme Court upheld the admission of testimony from an ER physician on a bullet's angle of entry. See State v. Stone, No. 2006-24-C.A. (R.I. June 20, 2007).When lawyers and legal academics compile their little lists of states currently adhering to Daubert and Kumho Tire, Rhode Island is routinely included...

The Ten Worst Jobs in Science

Posted on June 23, 2007
Popsci.com has the list. "Expert witness" isn't on it -- unless you count "forensic entomologist," which clocks in at number 9, just ahead of "whale-feces researcher."

Beck & Herrmann on "Reasonable Medical Certainty": Part I

Posted on June 22, 2007
Quite some time ago now, we promised to respond to a Beck & Herrmann post decrying an ALI proposal to abolish any requirement that experts offer their opinions to a ?reasonable degree? of medical, professional, or scientific ?certainty.? (Call this the ?RDC? rule for short...

Department of Citations for Obscure Propositions

Posted on June 21, 2007
Sometimes we run across an expert report that seems largely devoid of direction or argument, and we find it can be hard to identify, in any succinct and familiar legal vocabulary, the evidentiary vice from which it suffers.You've seen the kind of report we're talking about...

Presentation of Disastrous Expert Was Ineffective Assistance, 7th Circuit Holds

Posted on June 19, 2007
Defense counsel provided ineffective assistance by calling a highly counterproductive psychological expert at the penalty phase of an Indiana capital case, the Seventh Circuit has held.The defendant molested a 10-year-old boy, killed him when he threatened to tell his parents, threw the body in the trunk of his car, drove to the countryside, and dumped the body under a bridge...

A Key Term Defined

Posted on June 17, 2007
We're glad this has been cleared up. Ted Frank:When reformers use "frivolous" they mean the meritless cases, where, because of far-fetched legal theories, junk science, or overbroad liability rules, plaintiffs seek or realize recovery far beyond what makes good social policy.

Reconstructing an Accident from a Single Photograph

Posted on June 01, 2007
It can be done.Here are the data:For the solution, go here.

Blog 702 Rouses from Slumber

Posted on June 01, 2007
In May, we were a little busy, and a little tired, and the idea of blogging filled us with ennui.But now it's June, and we've recuperated, so we'll be at it again.

Privilege Does Not Defeat Disclosure Rules, Says Texas Supreme Court

Posted on April 28, 2007
Texas has a "snap-back" rule permitting a party to recover privileged material it inadvertently produces in discovery. It also has a rule providing that all documents provided to a testifying expert are discoverable. What happens, then, when a party inadvertently provides privileged material to its expert? The "snap-back" rule may not be invoked in this situation, the Texas Supreme Court has ruled, unless the party also withdraws the expert...

Mississippi Supreme Court Upholds Exclusion of Neurosurgeon's Testimony on Standard of Care for Internal Medicine

Posted on April 28, 2007
A trial court did not abuse its discretion in holding that a neurosurgeon was not qualified to opine on the standard of care for a practitioner of internal medicine, Mississippi's highest court has held. The ruling does not rest on the mere difference in specialties, but rather on the neurosurgeon's more general lack of experience and knowledge in the relevant practice area...