Monday, April 01, 2013

Criminal court experts can also be bad

I have been following the Jodi Arias trial, and I may have to reassess some things I've said here in the past. I have long complained that the family court allows expert testimony of the sort that would not be admissible in a criminal court. For example, I wrote in Dec. 2011:
Power corrupts, and the psychologists are not reliable. I got a Palo Alto psychologist named Ken Perlmutter and he gave testimony that would never be admissible in a real court. He did not apply any psychological expertise at all, and just gave an incompetent opinion. I have detailed his incompetence and bias on this blog. Maybe someday the legal system will recognize that a crook like Perlmutter should never testify in court.
And in Nov. 2011:
But a conclusory statement is one that tries to give some sort of conclusion without supporting evidence. In a real court, testimony is dismissed as soon as the lawyer points out that it is conclusory. The quack court shrinks write conclusory reports that no legitimate judge would accept.
Jodi gives shrink the finger. HLN TV blurred it.
But the Jodi Arias defense experts are shockingly bad, and the judge and prosecution meekly put up with them.

Maybe this judge has just lost control of the case. Maybe she (yes, judge Sherry Stephens is a woman) is scared that a death penalty verdict will not withstand appeal unless she bends over backwards to allow the defense to do whatever it wants. I doubt it, because this trial is a train wreck that probably will not have a death penalty verdict anyway. There is overwhelming evidence of premeditated first degree murder, but it will be hard for the jury to stay focused on the real issues.

It appears that the problem with expert psychotherapist testimony is much more widespread than I thought.

One of the basic rules of American justice is the hearsay rule. It is shown in the Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial,... to be confronted with the witnesses against him; ...
The idea here is that you cannot be convicted based on someone's out-of-court accusations, or even affidavits under oath. All statements have to come from witnesses who testify in court, and are cross-examined when confronted in court.

The Jodi Arias trial violates the hearsay rule at least 20 times a day. The defense domestic violence expert LaViolette is testifying that Travis (the victim) was an abuser based entirely on hearsay.

Normally, testimony of abuse has to come from an eyewitness. Jodi could testify that she was abused. A voicemail or email could be admitted only if the author testifies about what he meant by the message. Since Travis is dead, his emails would be hearsay but might be admitted under a hearsay exception.

You sometimes hear about a trial witness being murdered before he can testify at a gangster trial. That is because all his police statements, affidavits, and depositions are all hearsay unless he actually testifies in the court trial.

But LaViolette has read emails from Jodi and Travis and argued that they are evidence of abuse. The judge has ruled that this is admissible provided that LaViolette does not quote from the emails. As long as she paraphrases an email or draws her own factual conclusions, the testimony is allowed.

This is backwards. The emails do not even show any abuse. LaViolette's theory is that the abuse is so subtle that only an expert like herself can recognize it. But she does not even have any expertise in reading emails.

LaViolette might think that anal sex is abusive. I doubt that it was, as Jodi herself testified that she enjoyed anal sex with other boyfriends. But that is up to the jury, and this witness's opinion is irrelevant unless she has some data or other generally accepted expert knowledge about anal sex to inform the jury. But LaViolette has no expertise in anal sex and has not presented any knowledge on the subject. She just has her opinion.

Occasionally the prosecutor makes a hearsay objection by saying, "objection foundation". He is not allowed to say any more before the jury because the judge has forbidden "talking objections". If such an objection is sustained, then the defense lawyer merely backtracks slightly by asking something like, "Is this email important to you? ... Please explain why." Whereupon the witness says that the email shows abuse or whatever the defense wanted, and usually without objection. Thus the defense has managed to get in all of the hearsay as evidence.

This goes against what I thought that I knew about criminal procedure. There is supposed to be some linkage between the witness's expert knowledge, and some factual question at issue in the trial. Here, there is none.

This trial is costing millions:
The Jodi Arias murder trial became even more of a spectacle Thursday as defense attorneys argued that the prosecutor committed misconduct by signing autographs and posing for pictures with fans outside court. ...

The argument played out as officials revealed that the cost of Arias' defense to taxpayers has exceeded $1.4 million to date. Arias is represented by court-appointed attorneys at a rate of up to $250 per hour after she was unable to afford her own defense.
This does not include the tax money spent by police, prison, prosecutor, and court.

The press reports:
LaViolette said many victims of domestic violence don't leave their abusers because "shame and humiliation will keep people stuck."

During her 18 days on the witness stand, Arias described repeated instances of Alexander physically abusing her, once even choking her into unconsciousness.

LaViolette explained that it's typical for a battered woman not to tell anyone about the abuse.

"They want people to like their partner," she said. "They don't want anybody to think they have lousy taste."
Typical? It would be more useful to say that first degree murderers lie about their crimes.

If she were really an expert on this, she would tell us what percent of women are abused, and what percent do not tell anyone. And also she would tell us about all the women who make up a phony abuse story in court, when her lawyer advises her that it is to her legal advantage.

A real expert would tell us whether she can distinguish real abuse from phony abuse, and give some verifiable procedure for measuring her accuracy. LaViolette cannot do anything of the kind, of course.

Most ourtageiously, she claimed that an "email string" showed abuse, but was unable to point to any specific words or sentences that were abusive. She explained this by saying that she heard somewhere that 90% of communication is nonverbal, so she was inferring abuse from the emails without necessarily having verbal evidence.

Prosecutor Juan Martinez is widely praised as a tough cross-examiner, but I do not think that he is competent enough to pick apart LaViolette. We will see. And if he is, I do not think that Judge Stephens is smart enough to understand just how bad LaViolette is.

Here is how the testimony was reported:
LaViolette was referencing email exchanges between Arias, Alexander and his longtime friends Chris and Sky Hughes.

LaViolette was not allowed to quote from the emails and they were not shown to the jury, but she was allowed to paraphrase the content and offer her opinion on it.

"The question with regard to whether or not the Hugheses thought Mr. Alexander had previously been abusive with women, is that important to you?" Arias’ defense attorney, Jennifer Willmott, asked LaViolette.

"Yes, it is," LaViolette replied.

"Does that help you to formulate an opinion ultimately about the type of relationship this ended up to be?" asked Willmott.

"Yes it does," said LaViolette.

"And so, in this e-mail, is there information about whether or not Mr. Alexander's closest friends thought he had issues with women?" Willmott asked.

"Yes, there is," said LaViolette.
Isn't this obviously bogus? If Alexander's friends thought he had issues, and if those issues were somehow related to his killing, then the friends could be called in to testify under oath. For some shlock expert to testify that he had issues based on some emails is crazy. And it is even worse that the jury is not allowed to see the emails.

California passed Evidence Code 1107 just to grease the wheels for domestic violence experts:
1107. (a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding intimate partner battering and its effects, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge.

(b) The foundation shall be sufficient for admission of this expert testimony if the proponent of the evidence establishes its relevancy and the proper qualifications of the expert witness. Expert opinion testimony on intimate partner battering and its effects shall not be considered a new scientific technique whose reliability is unproven.

... it refers to "intimate partner battering and its effects" in place of "battered women's syndrome."
This law does require "relevancy", and therefore defense lawyers argued that the prosecution should not be allowed the use domestic violence experts unless there is some evidence of domestic violence. This law was written to make it easier to convict men of domestic violence.

However the California Supreme Court removed ine relevancy requirement in People v. Brown (2004), which decided (also reported here):
Expert testimony on battered women's syndrome may be introduced at domestic violence trials, even in the absence of prior evidence of abuse, the California Supreme Court ruled Monday. Such evidence can be admitted, the court held, because the judge could use it in evaluating the credibility of a victim's courtroom testimony. A domestic violence counselor testified that 80 percent to 85 percent of battered women recant their testimony before or at trial.
Sometimes a man is charged with domestic violence, and the only witness is his wife or girlfriend  and she testifies that he did not abuse her or refuses to testify. The the prosecution uses a domestic violence expert to testify that the woman is just trying to protect her man, and that the state needs to bust up an unhealthy relationship.

The lone dissenter was Janice Rogers Brown, who is now a federal appeals judge in DC. The name of the case, "People v Brown", is based on a defendant named Brown. By a coincidence of names, it was also "People v Brown" because Judge Brown was the only sensible judge we had in California.

I do not know whether Arizona has a law like California's. Apparently Arizona does allow bogus domestic violence expert testimony.

Update: I have previously mentioned Supreme Court cases on the right to confront witnesses here and here, and Justice Scalia's skepticism about psychologists.

Update: Here is LaViolette's exact testimony:
Defense lawyer (after objection): Why is that important to you, Ms. LaViolette?

LaViolette: It's important to me because there is a saying in the -- I don't know if it's all the world, but in the clinical world that 90% of all the communication is nonverbal. One of the things we're looking at is a communication apparently by Mr. Alexander that although he says it's okay for her to date, ...

Prosecutor: Objection.
So she managed to testify that her expertise allows her to figure out that Travis Alexander's non-abusive email was actually controlling somehow. She later cited an email Jodi wrote to other boyfriend, saying she is loyal to Travis even tho they are in a non-exclusive relationship. Jodi forwarded the email to Travis. So maybe Jodi did not want to maintain multiple sexual relationships at once, and told the man she wanted to be her main boyfriend. How is this abuse? Don't most women do this?


Dan said...

You raise a really interesting issue. There is hope that what you criticize is unconstitutional.

There's a United States Supreme Court case (Crawford) which says that you can't admit "testimonial hearsay" because of the Confrontation Clause ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."). This applies to the states as well (that is, no state can allow "testimonial hearsay" to be admitted in a criminal case).

So-called "experts" are allowed to consider hearsay in forming their "expert" opinions. The question is how much hearsay they can discuss in court consistent with Crawford.

One federal appeals court opinion frames it this way: "Accordingly, we held that the question when applying Crawford to expert testimony is 'whether the expert is, in essence, giving an independent judgment or merely acting as a transmitter for testimonial hearsay.' " "Acting as a transmitter for testimonial hearsay" under this approach is unconstitutional; the question is when a court would actually find that this happened.

If you want some hope on this issue, cross your fingers that Scalia survives Obama's term. He is the strongest advocate for striking state procedure down under the Confrontation Clause.

George said...

Yes, you are right about Crawford and Scalia. In the Jodi Arias case, the bogus experts are testifying for the defense, but they seem to be just transmitters of testimonial hearsay to me.

Anonymous said...

I agree with almost everything you say about how bogus this "expert" testimony is. But I think you're a little off about emails and voicemails. I think one could be a witness to the receipt of such communications and then they could be entered into evidence. It would not be necessary to get the sender to testify. A witness would testify that he was accustomed to receiving such communications from the author and that he recognized the sender's voice or email address or that there was other contemporaneous corroboration that they came from that source. Then it would be up to the other side to give reasons why they might not be genuine. Whether the content of the communications supported the interpretation being placed on them would be for a jury to decide.

George said...

If the emails or voicemails are used as evidence for the truth of some statement by some person, then that person has to testify. Jodi's messages are not hearsay, because she is testifying. If a message is going to be evidence, then it has to be to resolve some factual issue under dispute. What is that issue?

Anonymous said...

I have to admit being at least ten times more interested in the Giants game today than Jodi Arias, so I'm pretty ignorant of the facts of the case. But I'm thinking if she says he abused me repeatedly via email and then he wound up stabbed 28 times, then a detective gets a search warrant for 789 emails, testifies how he authenticated them, and then a jury decides whether her story or his adds up and whether the actual text of the emails supports her interpretation of suffering abuse. The victim doesn't need to testify that Pizza tonight? didn't exactly mean I'll splatter your brains all over the kitchen counter.

George said...

The emails are not sworn, and the author could be telling any lies without consequences. Since Jode testified, the prosecution can introduce the emails as a way of challending her credibility. That is, if she said that she was abused, she can be asked to explain why the email show no abuse.

If emails were generally admissible, then maybe everyone would just write a bunch of emails saying false things to benefit themselves. While Jodi was planning the murder, she could have planted emails that would help her in court later.

Anonymous said...

"If emails were generally admissible, then maybe everyone would just write a bunch of emails saying false things to benefit themselves."

Same goes for police reports. But from my point of view, a hundred emails supporting the author's testimony add nothing anyway. What's more interesting is when a record contradicts someone's testimony, and in that case, it doesn't matter whether the one testifying is the author or not.

"While Jodi was planning the murder, she could have planted emails that would help her in court later."

Not sure what you mean by help. A logical trier of fact would recognize that a bunch of emails consistent with the author's testimony add nothing anyway.

Actually this is funny -- almost every email I write is crafted to produce a record or a response to point to later -- either I told you so or here are your exact words. In my last family court experience, I forwarded a year of emails from my ex-wife to a guardian ad litem (lawyer) in order to show that issues she alleged in a declaration had never come up in our exchanges.