CERTIFYING EXPERT WITNESSES. Jennifer D. Gordon Maryclaire Akers Assistant Prosecuting Attorneys Kanawha County

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1 CERTIFYING EXPERT WITNESSES Jennifer D. Gordon Maryclaire Akers Assistant Prosecuting Attorneys Kanawha County

2 THREE PARTS TO PRESENTATION 1. Expert witnesses in child fatalities/physical abuse 2. Expert witnesses in child sexual abuse 3. Other Ways to Use Expert Witnesses

3 FORENSIC PATHOLOGISTS Testify as to cause of death, manner of death, observe injuries without a filter EXPERTS IN CHILD FATALITIES/PHYSICAL ABUSE

4 Not generally an issue of getting these witnesses qualified. By virtue of their education and experience, they possess specialized knowledge to assist the trier of fact to understand the evidence or to determine a fact in issue. Pursuant to Rule 702 of the Rules of Evidence

5 Issue of defense attacking the credibility of the witness How do they attack credibility? o Experience Credentials, board certifications, publications, etc. o Response to Attack Emphasize the credentials they do have, the number of autopsies performed, any pending board certification applications,

6 Issue of the Defense attacking the credibility (cont.) o Bias Often members of law enforcement are present at autopsy Forensic pathologists rely upon witness statements and investigative information compiled by the police o Response to Attack Witness statements, crime scene photographs, other investigative information are items that are customarily relied upon in the field of forensic pathology It does not occur in a vacuum o Attacking the Bases for Opinions Counsel will attack the literature and studies particularly in cases of abusive head trauma

7 State v. Larry Hayes, Memorandum Decision, No (May 17, 2013) Dr. Mock testified for the State and testified that he was eligible to become certified in clinical pathology and anatomic pathology Court allowed the Defense expert, Dr. Thomas Young, to listen telephonically to Dr. Mock s testimony Defense counsel actually had all night to prepare for Dr. Mock s cross because the trial court recessed after his direct Cross examination lasted for about ninety minutes Dr. Mock was then excused without the defense reserving the right to recall him

8 Later, defense counsel conferred with his expert who opined that Dr. Mock had lied about his credentialing based upon Dr. Young s assumptions on how the two pathology examinations were scheduled. Defense attempted to subpoena Dr. Mock in its case in chief for the sole purpose of impeaching him on his credentials. Trial court denied the Defendant s Motion to Enforce the Subpoena Trial court also precluded Dr. Young from giving an opinion that Dr. Mock had lied about the anatomic pathology portion of the certification test.

9 WVSCA ruled that the trial court did not abuse its discretion Defense counsel had ample opportunity to investigate Dr. Mock s credentials prior to trial Trial court allowed the defense to postpone cross examination of Dr. Mock until day to give him the opportunity to discuss it with Dr. Young Defense cross-examined Dr. Mock for an hour and a half including crossing him on his credentialing process

10 The Court also found that the trial court properly excluded Dr. Young from giving his opinion regarding Dr. Mock s testimony Defense sought to introduce testimony that Dr. Mock must have failed the anatomic portion of the pathology exam The Court find that the trial court did not deny the petitioner the right to present a complete defense by prohibiting Dr. Young from speculating, in the presence of the jury, whether Dr. Mock may have failed the anatomic pathology exam. No evidence that Dr. Young was an expert in the Board s examination procedures. More about Dr. Young and the Hayes case later.

11 Negligence in performing his or her duties For example, attacks on not performing certain tests, not preserving certain evidence, personal observations made during the autopsy (example in the Hayes case) Response to Attack The witness was in the best position to view the evidence, the autopsy was performed pursuant to national standards within the field.

12 Effectively communicating testimony to the jury o o Photographs Watch for gruesome objection The admissibility of photographs over a gruesome objection must be determined on a case-by-case-basis pursuant to Rules 401 and 403 of the West Virginia Rules of Evidence. Syl. Pt. 5, State v. Waldron, 218 W.Va. 450 (2005). Once the photo is determined relevant, the probative value must be substantially outweighed by the danger of unfair prejudice In Waldron, the photos admitted were of the victim on the morgue table and close-up photos of GSWs. The Court found those relevant to identify the victims, the nature and location of the wounds, and crime scene. Be mindful that in these cases, you are showing juries photos of deceased children, so the courts may hold us to a higher threshold.

13 DEMONSTRATIVE AIDS

14 EXPLAIN THE AREAS OF THE BRAIN AND INJURIES

15 If there is a period of survivability, consider also calling a treating or consulting physician. Examples include: o o o Pediatric Intensivist (Ex. Dr. Manuel Caceres, Director of PICU) Pediatric Ophthalmologist (to document retinal hemorrhages if applicable) Radiologist (if dating of fracture is at issue) PEDIATRIC MEDICAL SPECIALISTS

16 IMPORTANT OPTION AT YOUR DISPOSAL! o o o o Call a physician as an expert who is certified in child abuse Experts can rely upon hearsay and other providers treatment to formulate his or her opinion Ideal if the doctor actually performed a consult but can also review the medical records prior to trial and formulate an opinion The idea in that because these experts exist, they can rely on the findings of other specializations and form an opinion based upon their specific expertise in the area of child abuse. PEDIATRICIAN BOARD CERTIFIED IN CHILD ABUSE

17 If you receive static from the judge or defense attorney regarding the expert witness testimony of a pediatrician board certified in child abuse, use that opportunity to educate them. Start with the filing of your Expert Witness Disclosure

18 Explain what obtaining a subspecialty in child abuse entails A physician must first be Board Certified by the American Board of Pediatrics Board Certification in Pediatrics requires: 1. Completion of a three-year residency in pediatrics; 2. Demonstration of competency in all aspects of pediatrics; and 3. Successful completion of the certifying examination of the American Board of Pediatrics

19 Those are just the steps to become board certified in pediatrics. Becoming board certified in child abuse requires (as of Jan. 1, 2013): Completion of their training in a program accredited for training in child abuse by the Accreditation Council for Graduate Medical Education (ACGME) Three years of full-time, broad based fellowship training in child abuse pediatrics No continuous absences of more than one year permitted Verification of Competence Form completed by program director stating satisfactory completion of required training, clinical competence, and scholarly activity Successful completion of subspecialty certifying examination

20 For physicians who entered their training prior to Jan. 1, 2010: Completion of two years of subspecialty fellowship training in child abuse pediatrics in a program under the supervision of a director who is certified in child abuse pediatrics, or lacking such certification, possesses appropriate educational qualifications Only those child abuse training programs that are operated in association with general comprehensive pediatric residency programs accredited by the ACGME will be considered A period of training of at least 22 months, excluding leave A Verification of Competence Form from the director of the fellow s child abuse pediatrics program

21 After hearing that testimony, it would be difficult for a judge to determine that such a witness does not possess specialized knowledge to assist the trier of fact as required by Rule 702. What about invading the province of the jury? Proper testimony is that the injuries are consistent with child abuse, not that this particular defendant abused the child. That determination is always within the province of the jury.

22 RELEVANT WEST VIRGINIA CASE LAW

23 State v. Fanin, West Virginia Supreme Court of Appeals Memorandum Decision, May 15, 2015 Death by a Parent, Guardian, or Custodian Four-Month-Old Pediatric ophthalmologist testified that her pupils were enlarged and her retina was covered in blood Skull fracture--conclusion was likely shaking with impact Medical examiner testified that it was homicide not consistent with a short fall

24 One assignment of error was the admission of expert testimony from Dr. Eduadro Pino, a pediatric intensive care physician regarding his participation in a statewide study involving establishment of a database or registry regarding shaken baby syndrome. Defendant objected because there was no indication that the study had been peer reviewed. The Supreme Court found no abuse of discretion, noting that the study was informational in character. Therefore, no gatekeeping analysis was required because the testimony was neither novel or scientific.

25 State v. Meadows, 231 W.Va. 10, 743 S.E.2d 318 (W.Va. 2013) Death by a Parent, Guardian, or Custodian Seventeen-month-old victim Issue was whether it was the mother or the mother s live-in boyfriend Boyfriend was indicted Injuries were caused by repeated blows to head and body

26 Dr. James Kaplan testified as an expert witness Abusive closed-head injury resulting from a violent acceleration/ deceleration force that was applied to the victim s brain Child would have become immediately abnormal Child also had severe injuries to toddler s colon, pancreas, and liver Only issue related to Dr. Kaplan s testimony related to the admission of photographs, including 22 photos taken at the hospital and five autopsy photos Five autopsy photos depicted the brain, tear to upper lip (frenulum), and bruising Court found that while the photos are disturbing, they were admissible as evidence relevant to material elements of the prosecution s burden of proof and the probative value clearly outweighed any prejudicial impact.

27 State v. Thorton, 228 W.Va. 449, 720 S.E.2d 572 (W.Va. 2011) Child Neglect Resulting in Death Evidence of abusive head trauma but could not determine whether it was the mother or the father who caused the injuries Theory was neglect in the delay by the parents in getting the child medical care

28 State called the following medical providers/experts: Dr. James Kaplan, Chief Medical Examiner Dr. Muhib Tarakji, Pediatric Ophthalmologist Dr. John Schmidt, Neurosurgeon Dr. Jillian McCagg, Pediatrician Dr. Mouna Chebib, Pediatrician

29 Diagnoses at hospital by Dr. Chebib were: Brain Death Shaken Baby Syndrome/non-accidental trauma Subarachnoid hemorrhage Cerebral salt wasting DIC Respiratory Failure Dr. Kaplan s Findings were: Closed Head Injuries as the result of care-taker assault

30 On appeal was the issue of survivability. The defendant contended that none of the State s medical witnesses testified that the child would have survived but for the failure to obtain medical treatment. Dr. Kaplan testified that there was a possibility that the child would have survived if treatment had commenced sooner. Dr. Chebib testified, without reservation, that had the child been presented for medical treatment, he would have survived. While there may have been some conflict between Dr. Kaplan s and Dr. Chebib s opinions on survivability, the Court found that the jury verdict was supported by sufficient evidence.

31 Defense called Dr. Harold Buttram Opined that the victim suffered from pre-existing medical conditions of autism and ADHD and that those disorders were associated with the administration of vaccines. The chronic brain inflammation associated with autism predisposed the victim to hemorrhages and death in response to the minor trauma (hitting his head on a coffee table three days prior to his death) that would not have caused hemorrhaging in otherwise healthy children. More about Dr. Buttram s cross-exam later DEFENSE S EXPERT

32 Pre-existing conditions Clotting disorders DIC is one that comes up. Disseminated Intravascular Coagulopathies DIC is normally an effect of the trauma not the cause of it Prematurity Children with disabilities (autism, head banging behaviors)

33 CROSSING THE DEFENSE EXPERT IN CHILD FATALITIES

34 WHERE TO START o Your own experts Chances are, the defense expert is attacking something your expert did or didn t do Give your expert an opportunity to defense him/herself Ask your expert if they know the defense expert Your expert may also have access to resources connecting others in the field, which may help you find information on the defense expert o Prosecuting Attorney List Serve other prosecutors to see if anyone has encountered this expert before Out-of-state experts Reach out to prosecutors in that jurisdiction o Google Don t Give up Expert information was found on page 8 of a google search! Westlaw for any opinions in which they are mentioned

35 A forensic pathologist who is now an independent consultant almost certainly got his or her start working in a medical examiner s office somewhere. If so, it is likely the expert has provided an opinion and/or testimony regarding shaken baby or abusive head trauma and most likely, that opinion was that a child died from it. Find that autopsy report and trial testimony if it exists and use it from cross examination material CROSSING FORENSIC PATHOLOGISTS

36 Case Study State v. Larry Hayes (Kanawha County 2010) Child Abuse Causing Death State Experts were Dr. Allen Mock (ME) and Dr. Manuel Caceres (PICU Director at Women s and Children ) Defense Expert was Dr. Thomas Young, Board-Certified Forensic Pathologist Worked for Kansas City, Missouri as an ME before going into private practice DR. THOMAS YOUNG

37 Google search uncovered a prior Westlaw opinion in which Dr. Young s name was mentioned. State v. Jessica Harber Facts were extremely similar to my case caretaker was charged after the child had a severe skull fracture and swelling from which he later died. Dr. Young, who at the time worked for the Jackson County Medical Examiner s Officer in Missouri, testified for the defendant at a hearing moving to withdraw the defendant s plea. Dr. Young knew the defendant s mother. The district court (trial court) denied the motion to withdraw, finding that Dr. Young s testimony was so wide of the mark that it was not worthy of any belief.

38 Spring Board for More Information Contacted the Prosecuting Attorney s Office in Jackson County, Missouri My victim had sustained a skull fracture that comprised almost 25% of her skull, subdural and subarachnoid hemorrhages, and retinal hemorrhages. Provided with trial testimony and autopsy reports where Dr. Young had opined that such injuries were consistent with shaken baby syndrome and that the manner of death was homicide. Importantly for my case, I had transcripts where Dr. Young opined that such injuries would had to be caused by high velocity type events.

39 Important to our case because Dr. Young opined that our victim s skull fracture was caused about a week prior when she may have hit her head on a plastic toy four-wheeler.

40 Dr. Harold Buttram (from State v. Thorton) Footnote nine of the Supreme Court opinion listed the areas of impeachment by the State: Prior discipline by licensing authorities in Pennsylvania Lack of board certification Reliance on discredited literature linking vaccines to autism Previous court appearances in which he causally connected child abuse with problems caused by routine vaccinations And entry of a consent decree with federal authorities for overcharging Medicare BASICALLY, HE S A QUACK AND A FRAUD!

41 Types of Experts in Sexual Abuse Cases 1. Medical 2. Forensic Interviewer 3. Mental Health/Therapy CERTIFYING EXPERT WITNESSES IN CHILD SEXUAL ABUSE CASES

42 More often than not, it is to explain non-findings The vast majority of child sexual assaults do not present with any tangible physical findings on exam Why is that? Delayed Disclosure Children heal quickly Type of abuse is such that physical findings wouldn t be expected MEDICAL EXPERTS

43 Do you need a medical expert? Are there physical findings? Is there a disclosure of consensual sex? If so, will presenting this evidence open the door to any evidence coming in that would normally be prohibited by rape shield? Recent case where victim had been sexually active with her boyfriend and there was no disclosure of penetration. Made the decision not to call a medical expert.

44 When there are physical findings and a medical expert is appropriate, think outside the box of just a standard disclosure. Recent case where the physical findings were a hymen with a deep cleft at the 7 o clock position. Expert witness disclosure contained the opinion that said trauma to this hymenal tissue would have been very painful and would not have resulted from the victim s own hands.

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46 In Kanawha County, our general practice is to disclose the forensic interviewer as an expert witness. Normally, is Maureen Runyon but could be any forensic interviewer with the requisite training and experience Most likely to receive challenges from the defense regarding expert testimony DISCLOSING THE FORENSIC INTERVIEWER

47 Insert Scans of Expert Witness Disclosures here

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49 Standard Disclosure but they should be tailored to each individual case, to the extent that they can. Behavior, demeanor, presence of detail What does that mean? Ability to provide sensory details (touch, taste, smell) Sexual knowledge beyond what would be expected for a child of his/her age Ability to correct details that the interviewer may get wrong

50 Demeanor is a tough one No two victims are going to react the same. Does crying make a victim more or less believable? What about the stoic victim? Those are all things that can be explained by your expert particularly if you are concerned that your victim is going to present sympathetic

51 Trials can always surprise however. State v. Wileman involved two victims who were sexually abused by their grandmother s boyfriend. One victim was more bubbly and open (co-counsel s witness). The other victim (my witness) was very closed off and angry and I was extremely concerned about how she would do during her testimony. Her testimony was extremely credible and appropriately emotional.

52 In that case, the State also disclosed that the forensic interviewer would give an opinion regarding delayed disclosure. Factors going into delayed disclosure: Relationship to the victim, household situation, threats, grooming techniques, age of the victim, family support or lack thereof Percentage of cases we deal with that are delayed disclosure cases? Probably high nineties!

53 What are some other areas that we can use a forensic interviewer to explain to a jury? Disclosure as being a process not a single event. Ever had a victim testify and describe the sexual acts exactly like he or she described them in the forensic interview? I haven t. A forensic interviewer can help explain to the jury the difficulties in disclosing the painful, private events some of which happened years ago. Common explanation Imagine being asked to describe all the sexual experiences you ve had over the last year.

54 Crawford v. Washington If the victim does not testify. If the victim does testify, there is no confrontation issue. Still have to clear the hearsay hurdle but our Court has made it pretty clear it s going to affirm the admission pursuant to the Medical Diagnosis Rule CHALLENGES TO ADMISSION OF THE FORENSIC INTERVIEWER AS AN EXPERT

55 State v. Hubley, West Virginia Supreme Court of Appeals Memorandum Decision, November 8, 2012, Case No Defendant was challenging the admissibility of trial testimony from a Maureen Runyon, identified in the opinion as a social worker The child was interviewed and examined at the Child Advocacy Center at CAMC

56 The Court found that the statements made to Ms. Runyon during the interview were properly admitted pursuant to Rule 803(4) of the West Virginia Rules of Evidence. Specifically, the Court found that the child s statements to a social worker whose interview is being observed by the treating pediatrician for the purposes of determining the proper course of treatment falls within the purview of this exception to the hearsay rule.

57 Foundation for Maureen s testimony as Rule 803(4) exception: Before the interview, the child is registered, a medical record is prepared, and a medical assistant gets weight, height, blood pressure, and temperature Medical assistant was dressed in scrubs Child had been told she was going to see the doctor and that she needed to tell the truth for purposes of diagnosis and treatment Child was then referred to the Center s pediatrician for a physical examination who uses the interview to determine what tests should be ordered

58 State v. Edward Charles L., 183 W.Va. 641 (1990) Still good law even though it is pre-crawford Statements made to the mother and psychologist were admitted Determine the motive behind the statement and whether such statements were those reasonably relied upon for diagnosis and treatment Inadmissible if the evidence was gathered strictly for forensic purposes (ex. When an interview is performed by law enforcement)

59 State v. Payne, 225 W.Va. 602 (2010) Dual Purpose analysis in determining whether a statement to a forensic nurse was admissible When a child is examined by a forensic nurse, the nurse s testimony is admissible under the hearsay exception, if the motive for making the statement was consistent with the purposes of providing treatment, and the statement was relied upon for treatment. Such testimony is admissible fi the evidence was gathered for a dual medical and forensic purpose

60 Emerging Trend for the Defense to Offer Expert Witnesses Testimony Regarding the Forensic Interview Haven t seen it yet personally but sure it is coming Provide a copy of the defense s report with your expert Has the expert ever been trained or certified in any of the methods of forensic interviewing? What experience does the expert have interviewing children? Upon what is the expert s opinion based?

61 Child Neglect Creating a Substantial Risk of Serious Bodily Injury or Death Can you quantify or qualify substantial risk? More than speculation based upon what could happen not what did happen. OTHER AREAS WHERE EXPERTS CAN BE USED

62 Child Pornography Cases Not uncommon for a defendant to have hundreds, if not thousands, of images that are unknown to NCMEC A pediatrician can testify to the age of the person in the photo, to a reasonable degree of medical certainty Tanner Stages I-V Describes the sexual development of children State v. Shingleton, No (March 24, 2016) No error in Dr. Phillips testifying regarding Tanner staging and giving an opinion that the children in the images were under the age of 18

63 (304) WHY I DO WHAT I DO.