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Expert Witness Ethics
EXPERT WITNESS ETHICS Joseph Sanders* The worst that can be said about an expert opinion is not that it is a lie— that criticism is often beside the point—but that it is unreasonable, that no competent expert in the field would hold it.1 INTRODUCTION Expert witness ethics is one of those topics about which there appears to be a fair degree of resigned acceptance of the status quo. In large measure this is because of a lack of agreed upon ethical standards and, therefore, a lack of consensus concerning what steps we should take to encourage more ethical behavior. Both of these are difficult issues, and I do not propose to offer noncontroversial solutions to either. Nevertheless, the topic is worthy of our attention. The costs of unethical expert witnessing are substantial. They include the costs associated with weeding out the most unethical witnesses and, equally important, the costs reflected in any reduced ability of fact-finders to come to correct conclusions. This essay is organized into three sections. In the first part, I discuss the nature of the expert’s ethical obligation and impediments to fulfilling that obligation. This part is informed by the central proposition that the primary purpose of a trial is to ascertain the truth.2 This purpose informs the central ethical obligation of experts, which is to provide adequate, unbiased justifications for their position. I argue that the “same intellectual rigor” test advanced by the U.S. Supreme Court in Kumho Tire Co. v. Carmichael,3 although much criticized, is with some modification the most appropriate measure of this ethical standard. -
Case 3:14-Cv-00092-JMS-MPB Document 444 Filed
Case 3:14-cv-00092-JMS-MPB Document 444 Filed 09/26/19 Page 1 of 36 PageID #: <pageID> UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA EVANSVILLE DIVISION WILLIAM HURT, DEADRA HURT, and ANDREA ) HURT, ) Plaintiffs, ) ) 3:14-cv-00092-JMS-MPB vs. ) ) JEFF VANTLIN, JACK SPENCER, WILLIAM ) ARBAUGH, JASON PAGETT, MATTHEW WISE, ) and ZACHARY JONES, ) Defendants. ) ORDER Plaintiffs William Hurt, Deadra Hurt, and Andrea Hurt1 allege in this matter that they were wrongfully targeted, arrested, and prosecuted for the death of their uncle, Marcus Golike, whose body was found in the Ohio River in June 2012. After the Court ruled on Motions for Summary Judgment filed by Defendants Evansville Police Department Detectives Jeff Vantlin, Jack Spencer, William Arbaugh, and Jason Pagett (the “EPD Defendants”) and Kentucky State Police Detectives Matthew Wise and Zachary Jones (the “KSP Defendants”), the Defendants sought and the Seventh Circuit resolved an interlocutory appeal. Following remand, the Court considered briefing by the parties on the effect of the Court’s summary judgment rulings and the interlocutory appeal, and determined that the following claims remain for trial: (1) Wrongful Pretrial Detention: William vs. EPD Detectives Vantlin, Spencer, Arbaugh, and Pagett; Deadra vs. EPD Detectives Vantlin and Spencer; (2) False Arrest: William, Deadra, and Andrea vs. EPD Detective Vantlin and KSP Detectives Wise and Jones; (3) Use of an Involuntary Confession in a Criminal Proceeding: William and Deadra vs. EPD Detective Vantlin and KSP Detectives Wise and Jones; (4) Failure 1 For simplicity, the Court will refer individually to Plaintiffs by their first names only in the remainder of this Order. -
A New Regime for Expert Witnesses
Valparaiso University Law Review Volume 26 Number 3 Summer 1992 pp.757-764 Summer 1992 A New Regime for Expert Witnesses Richard A. Epstein Follow this and additional works at: https://scholar.valpo.edu/vulr Part of the Law Commons Recommended Citation Richard A. Epstein, A New Regime for Expert Witnesses, 26 Val. U. L. Rev. 757 (1992). Available at: https://scholar.valpo.edu/vulr/vol26/iss3/5 This Monsanto Lecture is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at [email protected]. Epstein: A New Regime for Expert Witnesses A NEW REGIME FOR EXPERT WITNESSES RICHARD A. EPSTEIN I. TORT REFORM OR PROCEDURAL REFORM Most proposals for tort reform are efforts to mount a frontal assault against a system that many believe to be deeply at odds with the best interests of our legal social system. In the many years in which I have dealt with mass torts, both as a scholar and as a consultant, I have become convinced that the protracted struggles in litigation are a pointless social exercise that fail in all of their fundamental objectives. The sprawling nature of the litigation consumes enormous social resources, and the kinds of factual inquiries that are raised in the cases require lawyers to develop extensive expertise in a wide range of scientific, economic, and historical issues. In 1968 when I started to teach, the paradigmatic tort was still the automobile collision at the intersection of Fourth and Main, and serious scholars were asking whether the tort system had any future at all, given that automobile no-fault insurance was likely to overtake automobile liability, just as employer liability gave way to worker's compensation laws. -
The Effect of Expert Witness Testimony on Jury Verdicts in Rape Trials" (2017)
Arcadia University ScholarWorks@Arcadia Senior Capstone Theses Undergraduate Research Spring 4-28-2017 Swaying the Jury: The ffecE t of Expert Witness Testimony on Jury Verdicts in Rape Trials Christina E. Ball [email protected], [email protected] Arcadia University has made this article openly available. Please share how this access benefits ouy . Your story matters. Thank you. Follow this and additional works at: http://scholarworks.arcadia.edu/senior_theses Part of the Criminal Law Commons, Criminology Commons, Law and Gender Commons, and the Social Control, Law, Crime, and Deviance Commons Recommended Citation Ball, Christina E., "Swaying the Jury: The Effect of Expert Witness Testimony on Jury Verdicts in Rape Trials" (2017). Senior Capstone Theses. 29. http://scholarworks.arcadia.edu/senior_theses/29 This Capstone is brought to you for free and open access by the Undergraduate Research at ScholarWorks@Arcadia. It has been accepted for inclusion in Senior Capstone Theses by an authorized administrator of ScholarWorks@Arcadia. For more information, please contact [email protected]. Swaying the Jury: The Effect of Expert Witness Testimony on Jury Verdicts in Rape Trials Christina Ball Department of Sociology, Anthropology, and Criminal Justice Arcadia University April 28, 2017 Abstract With the reliance on rape myths to form opinions towards rape victims, the use of expert witnesses is of increased importance. Rape myths may give jurors misinformed notions about why, how, or to whom rape happens. This indicates a need for educational expert testimony in rape jury trials. It is proposed the use of this testimony will help dispel these myths and social biases towards victims of rape. -
Challenging Law Enforcement “Expert” Testimony
Challenging Law Enforcement “Expert” Testimony Paul Sun & Kelly Dagger © Ellis & Winters LLP 20152016 Why Law Enforcement “Experts” Matter • They testify frequently. – So often that the Supreme Court has said police need absolute immunity from § 1983 liability for testifying falsely. Rehberg v. Paulk, 132 S. Ct. 1497 (2012) (because “police officers testify with some frequency,” if they “were routinely forced to defend against [perjury] claims based on their testimony,” it would divert attention from official duties). © Ellis & Winters LLP 2015 Why Law Enforcement “Experts” Matter • They may be the only witnesses, particularly if your client does not put on evidence. – And that does not necessarily entitle you to voir dire to weed out pro-law enforcement jurors. See United States v. Lancaster, 96 F.3d 734 (4th Cir. 1996) (en banc) (not necessarily error to refuse defense request to ask prospective jurors whether they would be biased in favor of officers). © Ellis & Winters LLP 2015 Why Law Enforcement “Experts” Matter • Judges and jurors believe the police. – E.g., David N. Dorfman, Proving the Lie: Litigating Police Credibility, 26 Am. J. Crim. L. 455 (1999). – Difficult to win a civil suit for police misconduct. See Galazo v. Piekza, 2006 WL 141652 (D. Conn. Jan. 19, 2006) (“Often the case boils down to a ‘he said, he said’ between a police officer and a plaintiff who frequently possesses a criminal record. Regardless of jury instructions to the contrary, juries tend to believe the testimony of a police officer over that of a convicted criminal.”). © Ellis & Winters LLP 2015 Why Law Enforcement “Experts” Matter • Jurors overvalue expert testimony. -
The Law of Insider Trading: 1
31458_nyb_8-1 Sheet No. 79 Side A 03/05/2012 16:25:17 \\jciprod01\productn\N\NYB\8-1\NYB106.txt unknown Seq: 1 23-FEB-12 10:14 THE LAW OF INSIDER TRADING: LEGAL THEORIES, COMMON DEFENSES, AND BEST PRACTICES FOR ENSURING COMPLIANCE BRADLEY J. BONDI* & STEVEN D. LOFCHIE** I. INTRODUCTION .................................. 152 R II. LEGAL OVERVIEW ................................ 153 R A. Background on Insider Trading. 153 R B. Liability for the Fund or Firm Based on Conduct of Employees ................................. 155 R C. Theories of Insider Trading . 156 R 1. “Classical” Theory . 157 R 2. “Tipper-Tippee” Theory . 157 R 3. “Misappropriation” Theory . 158 R 4. “Outsider Trading” or the “Affirmative Misrepresentation” Theory . 158 R D. Rule 10b5-1: Definition of “on the basis of” . 161 R E. Rule 10b5-2: Definition of Duty of Trust or Confidence ................................... 162 R F. Potential Criminal Charges Associated with Insider Trading .............................. 162 R G. Insider Trading in the Debt Markets, Credit Derivatives, and Distressed Loan Markets . 163 R 31458_nyb_8-1 Sheet No. 79 Side A 03/05/2012 16:25:17 H. Insider Trading in the Commodity Futures and Derivatives Markets . 167 R III. LEGAL AND FACTUAL DEFENSES. 169 R * Bradley J. Bondi is a litigation partner in Washington, D.C. and New York with Cadwalader, Wickersham & Taft LLP. He focuses on SEC and DOJ enforcement defense, insider trading investigations and compliance, com- plex civil and criminal litigation, and internal investigations. See http://www. cadwalader.com/Attorney/Bradley_J._Bondi/1843. ** Steven D. Lofchie is a regulatory partner and co-chairman of the Fi- nancial Services Department of Cadwalader, Wickersham & Taft LLP. -
State of Kansas ("The State") by the Kansas Behavioral Sciences Regulatory Board (“BSRB”) and PERSON ("Outside Expert")
KANSAS BEHAVIORAL SCIENCES REGULATORY BOARD CONTRACT FOR EXPERT WITNESS SERVICES This Contract for Expert Witness Services ("Contract") is made on behalf of the State of Kansas ("the State") by the Kansas Behavioral Sciences Regulatory Board (“BSRB”) and PERSON ("Outside Expert"). This Contract with Outside Expert governs the following licensing matter: In re , Case No. (“this case”). The State and Outside Expert agree as follows: 1. Credentials. Outside Expert is licensed as a in Kansas and agrees to maintain such license(s) in good standing throughout the duration of this Contract. Outside Expert further agrees to notify the BSRB of any complaint filed or disciplinary action (e.g., censure, fine, probation, restriction, condition, suspension, or revocation) against Outside Expert. Outside Expert acknowledges that a pending complaint or disciplinary action shall constitute grounds for the BSRB to terminate this Contract without notice to Outside Expert. In such instance, Outside Expert shall be paid for fees and expenses at stated herein as of the date of termination. Outside Expert shall provide the BSRB with an original and current curricula vita which shall become a record of the BSRB. 2. Scope. Outside Expert shall perform expert witness services on behalf of the BSRB and perform those services in a diligent and professional manner. Such services may include investigation, document review, studies, research, and such other services as may be necessary for Outside Expert to consult with and/or advise the BSRB or as may be agreed upon by the parties. Outside Expert agrees to report, verbally or in writing, such facts, conclusions, and findings to the BSRB and, upon request, to provide a written report. -
Practice Pointers for Working with Expert Witnesses in Bankruptcy Court
A NEW YORK LAW JOURNAL SPECIAL SECTION WWW. NYLJ.COM Litigation MONDAY, APRIL 16, 2012 Practice Pointers for Working With Expert Witnesses in Bankruptcy Court held to resolve several issues, including the debt- BY CHRISTOPHER R. HARRIS ors’ total enterprise value. Confirmation of the plan AND H. GREGORY BAKER was opposed by the Official Committee of Equity Security Holders, primarily on the grounds that the ITIGATORS are called upon to participate plan undervalued the debtors, and that a global in bankruptcy proceedings in a variety of settlement—upon which the plan was based— L ways, including frequently to prepare for did likewise. Id. at 567. The determination of the and conduct hearings. As in any court, such hear- debtors’ total enterprise value came down to a ings provide parties the opportunity to introduce battle of the experts between the debtors’ witness evidence, including expert testimony, to enable and the equity holders, both of whom employed the court to resolve issues of fact. standard valuation methodologies (discounted While similar in many respects to any other cash flow, comparable companies, and precedent litigation, there are some important nuances of comparable transactions). Following a detailed bankruptcy court practice to be mindful of, espe- review of the experts’ opinions, the bankruptcy cially when working with expert witnesses. A few court confirmed the plan, finding that it did not factors that may distinguish bankruptcy court violate 11 U.S.C. §1129(b)’s “fair and equitable” litigation are: requirement because the debtors’ total enterprise • the lack of juries—bankruptcy judges are the value did not exceed the total enterprise value sole fact finder, and tend to possess a great deal of underlying the proposed settlement. -
Challenges Facing Judges Regarding Expert Evidence in Criminal Cases
Fordham Law Review Volume 86 Issue 4 Article 5 2018 Challenges Facing Judges Regarding Expert Evidence in Criminal Cases Paul W. Grimm Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Recommended Citation Paul W. Grimm, Challenges Facing Judges Regarding Expert Evidence in Criminal Cases, 86 Fordham L. Rev. 1601 (2018). Available at: https://ir.lawnet.fordham.edu/flr/vol86/iss4/5 This Symposium is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Challenges Facing Judges Regarding Expert Evidence in Criminal Cases Erratum Law; Criminal Law; Evidence; Courts; Judges This symposium is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol86/iss4/5 CHALLENGES FACING JUDGES REGARDING EXPERT EVIDENCE IN CRIMINAL CASES Paul W. Grimm* INTRODUCTION Ever since the U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc.,1 the role of trial judges in determining the admissibility of expert testimony has become familiar. Trial judges are to be the “gatekeepers” standing between the parties, who naturally offer the most impressive experts they can find or afford and are willing to advance their theory of the case, and the jury, who must come to grips with scientific, technical, or other specialized information that usually is completely unfamiliar to them. The judge’s gatekeeper role is imposed by Federal Rule of Evidence 104(a), which provides, in essence, that the trial judge must decide preliminary issues about the admissibility of evidence, the qualification of witnesses, and the existence of any privileges.2 When applying this Rule with respect to experts, we are further informed by Federal Rule of Evidence 702. -
Police Expert Witnesses and the Ultimate Issue Rule Gail Sweeney Stephenson
Louisiana Law Review Volume 44 | Number 1 September 1983 Police Expert Witnesses and the Ultimate Issue Rule Gail Sweeney Stephenson Repository Citation Gail Sweeney Stephenson, Police Expert Witnesses and the Ultimate Issue Rule, 44 La. L. Rev. (1983) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol44/iss1/9 This Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. NOTE POLICE EXPERT WITNESSES AND THE ULTIMATE ISSUE RULE The defendant was convicted of possession of marijuana with intent to distribute. The arresting officers testified that when they approached the defendant, he fled after discarding a bag which con- tained ten coin envelopes of marijuana, a plastic bag of marijuana, and a loaded pistol. The officers further testified that the defendant was apprehended almost immediately and $359 in cash was found in his pockets. A police officer was then qualified by the court as an expert in narcotics transactions. The prosecutor posed a hypothetical question to this expert which incorporated all of the facts to which the arresting officer had testified. Over the defendant's objection, the expert was allowed to testify that, in his opinion, an individual with ten coin envelopes of marijuana, a plastic bag of marijuana, $359 in cash, and a handgun was involved in the distribution of marijuana. The expert also was permitted to testify that it was common for a distributor to carry a revolver and that "[tihe reason the subject had the revolver was to keep from being ripped off, due to the location and amount of money and what he was selling."' The Louisiana Supreme Court held that admission of the expert's response to the hypothetical question and his statement of the purpose for which the defendant carried the handgun was reversible error. -
Update and Strategies on Expert Witnesses in Federal Court from the Plaintiff’S and Defendant’S Perspectives”
NDNY FEDERAL COURT BAR ASSOCIATION, INC. www.ndnyfcba.org The NDNY-FCBA’s CLE Committee Presents “Update and Strategies on Expert Witnesses in Federal Court from the Plaintiff’s and Defendant’s Perspectives” Monday, August 20, 2018 10:00 a.m. – 11:00 a.m. (Registration at 9:30 a.m.) RSVP by August 6, 2018 Bellevue Country Club 1901 Glenwood Avenue Syracuse, New York Program Description: This program will provide an update on the law and other current issues relating to expert witnesses and provide practical advice on the selection and use of expert witnesses from both the plaintiff and defense points of view. Presenters: Michael Porter, Esq. Porter, Nordby & Howe, LLP Robert Smith, Esq. Costello, Cooney, Fearon, PLLC The Northern District of New York Federal Court Bar Association has been certified by the New York State Continuing Legal Education Board as an Accredited Provider of continuing legal education in the State of New York. “Update on Expert Witness Selection/Daubert Issues” has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for 1.0 credits towards the professional practice requirement.* This program is appropriate for newly admitted and experienced attorneys. This is a single program. No partial credit will be awarded. This program is complimentary to all Northern District of New York Federal Court Bar Association Members. * PLEASE REMEMBER TO STOP AT THE REGISTRATION DESK TO SIGN OUT AND TURN IN YOUR EVALUATION FORM Update On Expert Admissibility and Cross-Examination Michael S. Porter - Porter Nordby Howe LLP [email protected] Robert J. -
The Insider Threat
RECENT INSIDER THEFT CASES U.S. Department of Justice Federal Bureau of Investigation en Chyu Liu, a retired research scientist, was ichael Mitchell became disgruntled and was fired Wsentenced in January 2012 to 60 months in prison, Mfrom his job due to poor performance. He kept two years supervised release, a $25,000 fine and was numerous computer files with his employer’s trade secrets; ordered to forfeit $600,000. Liu was convicted in February he entered into a consulting agreement with a rival Korean company can often detect or control when an outsider (non-employee) tries to access 2011 of stealing trade secrets from his former employer company and gave them the stolen trade secrets. In and selling them to companies in China. Liu conspired March 2010, he was sentenced to 18 months in prison and company data either physically or electronically, and can mitigate the threat of an with at least four current and former employees, traveled ordered to pay his former employer over $187,000. throughout China to market the stolen information, paid outsider stealing company property. However, the thief who is harder to detect and halin Jhaveri gave trade secrets to a person he current and former employees for material and information, A and bribed a then-employee with $50,000 in cash to provide Sbelieved was an investor willing to finance a business who could cause the most damage is the insider—the employee with legitimate access. That insider a process manual and other information. venture in India, and confirmed that the information he had taken from his employer was everything he needed to start may steal solely for personal gain, or that insider may be a “spy”—someone who is stealing exue Huang was employed by two different US the business.