Daubert Motions Challenging OWI Defense Expert Opinions Webinar

Daubert Motions: Challenging OWI Defense Expert Opinions Webinar Kenneth Stecker Traffic Safety Resource Prosecutor Prosecuting Attorneys Association of Michigan May 12, 2017

What do we Know? In 2015 there was: • • 35, 092 traffic fatalities End of a five-decade trend of decline in fatalities 7. 2% increase in fatalities from 2014 Alcohol-impaired fatalities increased by 3. 2% from 9, 943 in 2014 to 10, 265 in 2015 • Alcohol-impaired fatalities accounted for 29% of 2015 overall fatalities

Michigan – 2016 • 1, 064 Crash Fatalities • 312, 172 Overall Crashes • Drug-involved fatalities increased from 179 in 2015 to 236 in 2016, up 32 percent February 2007

Definition of an Expert “A person who has a comprehensive and authoritative knowledge of or skill in a particular area. ” Webster’s Dictionary, 3 rd Edition.

Junk Science? • Actual case: A soothsayer backed by “expert” testimony from a doctor and several police officials won a million dollar jury award for the loss of her psychic powers after a CAT scan. • “There is hardly anything, not palpably absurd on its face, that cannot now be proved by some socalled ‘experts. ’” Chaulk v VW of America, 808 F 2 d 639, 644 (7 th Cir 1986)

Daubert to the Rescue • Daubert v Merrell Dow Pharmaceuticals, Inc. , 509 U. S. 579 (1993) • Gilbert v Daimler Chrysler, 470 Mich 749 (2004) • Kumho Tire Co. v Carmichael, 119 S Ct 1167 (1999)

Michigan is a Daubert State • Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U. S. 579 (1993) • Judge is the Gatekeeper: Under MRE 702, the task of "gatekeeping", or assuring that scientific expert testimony truly proceeds from "scientific knowledge", rests on the trial judge. • Relevance and reliability: This requires the trial judge to ensure that the expert's testimony is "relevant to the task at hand" and that it rests "on a reliable foundation". Thus, the Judge must find it more likely than not that the expert's methods are reliable and reliably applied to the facts at hand.

Who is considered an Expert? • Michigan Rule of Evidence (MRE) 702: – If scientific, technical, or other specialized knowledge will assist the trier of fact to understand evidence or determine fact in issue, a witness qualified as expert by knowledge, skill, experience, training, or education, may testify in the form of an opinion or otherwise. – Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable. • Michigan Rule of Evidence 403: – Probative value of testimony substantially outweighed by risk of unfair prejudice or jury confusion.

What does this standard mean? • Daubert is essentially codified in MRE 702. The DRE has to show 4 things, all of which he should be able to do: • 1. That she/he is an expert qualified by education, training, experience, etc…. • 2. That her/his testimony is based on sufficient facts or data. . • 3. The testimony is the product of reliable principles and methods (how he/she makes her determination and the principles behind it) • 4. How he/she applied those principles and methods to the facts of the case.

New Focus now is on the opinion, rather than the science. Accepted Science + Qualified Witness +Opinion reliably based upon adequate data = Opinion is coming in.

So what is it? It is the Judge performing the role of gatekeeper—to prevent the jury from hearing unreliable or otherwise unfounded opinions. The Judge does not concern himself or herself with whether the opinion is correct—it is the METHODOLOGY!

They Can’t fight the LAW* • • Data. Master Partition Ratio Horizon Gaze Nystagmus (HGN) *but judges let them do it all the time…

“Vigorous cross examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. ”

Cross-Examination of Defense Expert Concessions • • • No report No published, peer reviewed, replicated studies Does not know the defendant Jones and Dubowski are experts Blood test is gold standard

What is the key to cross examining an expert witness? Knowing what they will say before they say it!

The Process • • Prepare, Prepare The Decision What is Your Plan of Attack? Executing Your Plan

Prepare • Transcripts • Colleagues • Videotapes • Articles • Call the expert and discuss the case

Develop a Theme • Do not let the Defense make the trial about the BAC test and their expert. • BAC test is only one part of your evidence. • BAC test is NOT what your case is about!

The Decision: Turn the Witness or Attack? • Are you going to use the defense expert to benefit your case? • Are you going to attack the witness? • You will probably do a little of both, but need to decide which you are doing. • This decision affects how you handle the witness.

Things to Consider • Can the defense expert help you prove elements of your case? • Will the defense expert actually answer your questions? • Will the defense expert actually give you information that will help prove your case?

What is your plan of attack? • Attack the witness’ qualifications – Review MRE 702 • Attack the science – Talk to your expert – Review literature in the field • Attack the facts – Knowledge of the facts of the case • Attack the opinion offered

Isolate the Issues • Isolate the issues where the witness will help you • Eliminate wiggle room – Map out each point – Have any prior statements of the witness ready to use

Execute your Plan • Treat the cross examination as a debate not an argument. • Be methodical. • Do not leave a point until you have an answer or a stated refusal to answer. • Know how to properly impeach the witness. See MRE 607, 613, 703, & 707. • Avoid asking one question too many.

Impeachment • Leading the expert to the truth that was forgotten on direct examination • Prior testimony • Published Studies by Experts • Is that how you do your science? Your science contradicts the science of true experts!

C. Dennis Simpson – Expert? • Dr. C. Dennis Simpson studies: admits the alcohol in mouth won’t apply in real world; (length of blow study could help prosecutor case). • Alleged interfering substances: many published studies to refute. • Simultaneous blood/breath tests show breath tests usually 10 or 11 percent lower.

Standardized Field Sobriety Tests • Student Manual for Standardized Field Sobriety Tests (SFSTs): can rebut Simpson’s testimony (use of pen, directions, imaginary line). • Even if SFSTs are not done properly can still evaluate intoxication (simple multiple task). • Horizontal Gaze Nystagmus (HGN): Where did he receive his training? Never a police officer! Not out at the road-side!

Studies • Challenge: What studies (published, peer reviewed, replicated) has he done to prove whatever theory that’s presented. • Have you had Jones, Dubowski, etc. , replicated or cited in your research? • You have no published studies, correct?

DMT Data. Master Instrument • Where are your articles published? (defense drunk driving seminar, defense newsletters as opposed to scientific journals, e. g. , Journal of Analytical Toxicology). • Partition ratio of 2100 to 1 (Simpson admits it will benefit defendant 85% of the time but maintains it is against science without anything to back his position). • No matter what scientific studies you are shown, no matter what the law is, you won’t change your opinion of the inaccuracy of the Data. Master?

General Concessions • Signs of intoxication: – List the factors and ask if it is consistent with intoxication – Smell of alcohol consistent with intoxication? – List as many as possible!

General Concessions • DMT Datamaster: – Widely accepted in other states and countries (Canada) – There is no better instrument for measuring breath BAC – Datamaster has been held to be accurate in Michigan

Attack the Expert Witness: Dr. Simpson • Dr. Simpson’s Qualifications • Lack of experience with the DMT Datamaster • Lack of specific knowledge of the case • Monetary bias

Dr. Simpson’s Qualifications • His doctorate is in teaching • No advanced degree in any field relating to this topic (like chemistry, biology or pharmacology) • At best he is misleading • This goes back to are you attacking or turning the witness?

Lack of Experience with the DMT • Are they certified Datamaster operators? • How often have they given actual Datamaster tests to real drivers? • Is their experience limited to laboratory conditions? • Do they use the instrument as part of their regular job? • Has their “research” been published? • Has it been subjected to pier review?

Lack of Knowledge About the Case • Do they know the Defendant? • Have they reviewed the facts of the case? • Have they spoken with Defendant or the investigating officer? • Have they learned any of the facts they claims can effect the BAC level?

Monetary Bias • • How much do they earn testifying? How much per hour preparing and traveling? What percentage of your incomes from testifying?

People v. Julia Capobianco, Case No. 10 -5587, decided October 8, 2010, 39 th District Court, County of Macomb, State of Michigan • • p. 23, lines 11 -13 – Qualified as an expert of SFSTs and Data. Master, but must keep his testimony limited p. 28, lines 17 -20 – Simpson has done SFST at the roadside, the rest, Simpson intentionally fed alcohol to the subjects and then had these subjects perform the SFSTs. With these subjects, he trained others and evaluated them if they were doing it correctly, and then published on these matters p. 29, lines 9 -21 – Court did not qualify Simpson as an expert in field sobriety tests p. 29, lines 24 -25 – Simpson is qualified as an expert in the field of the Data. Master p. 39, line 40 – Simpson did not do a study at 15 minutes, just 3 and 7 minutes p. 41, line 23 – Simpson acknowledged that Michigan’s law regarding partition ratio is 2100 to 1 p. 42, lines 2 -3 – Simpson said it is in the regulations p. 43, line 16 – 83% of the time the 2100 -1 ratio underestimates the results

Simpson’s Home Rule • If a person at Simpson’s house has even one drink, the doctor will not let that person drive home. • . 04 can affect your ability to drive • This is when he is liable for the danger of drinking and driving.

ATTACK OPINION Conflicts With Experts Irrelevant Conflicts With Literature Unclear Methods Are In Question

ATTACK WITNESS Bias Unprepared Sloppy Close-Minded Not Interested

Expert (so-Called Expert) • • • Look for: Transcripts Articles Studies Publications Ads

Must Be Diligent Order Transcripts Order Videotapes Research Defense Experts

Traffic Safety Training Resources • • PACC/PAAM Other Prosecutors in Michigan State Police Experts Defense Experts - Internet Defense attorneys (really) National Traffic Law Center (NTLC) Other Traffic Safety Resource Prosecutors

May 2, 2017 Request • Hi Ken, • Do you have anything on this proposed expert, Tony Corroto? • William Maze and I are picking a jury in Waterford this morning. Our trial will start with opening statements on May 31, 2017. He stated that he is brining this guy into testify to SFST.

May 9, 2017 Request • Has anyone had the experience of dealing with or knowledge of Ronald E. Henson, Ph. D, of Beron Consulting out of Peoria Illinois? • This individual advertises that he provided expert testimony in cases involving drug and alcohol testing; namely: breath, blood, urine, as well as SFSTs. • From his website it appears he did testify in an OWI case in Ingham County in 2012. • I am copying Ken Stecker as well to see if he has any knowledge and/or could reach out to his counterpart in the state of Illinois to what information may be available on this individual. • Any assistance would be greatly appreciated.

Defense Expert Transcripts • • • • • Robert Belloto Lawrence Guzzardi Stefan Rose Terry Blount Tony Corroto Karl Ebner Solomon Fulero Mark Gallo William Haight Michael Hlastala Benedict Kukilis Daniel Mc. Coy Jan Semenoff C. Dennis Simpson Andreas Stolz Frank Tewlewski Henry Yff Wanda Guidry Richard Mc. Garry Warren Woodford Dennis Bryde Patrick Demers Daniel France James Galligan F. M. Gengo Ronald Henson George Jackson Gary Mac. Donald Mary Mc. Murray David Shepardson Alfred Staubus William Taylor Thomas Workman

Deal set for Dr. Joseph Citron who faked expertise in DUI cases • A Georgia doctor accused of faking his credentials is expected to plead no contest to charges that he gave false testimony as an expert witness in multiple DUI cases across the state — including one in Franklin County, according to District Attorney Matthew Fogal. • Dr. Joseph Citron, 68, a board certified ophthalmologist from Atlanta, Ga. , had been charged with 33 counts of perjury and false swearing for court cases in six Pennsylvania counties. • By pleading no contest Citron will face nine counts of felony perjury, one count for each trial, and one count of unsworn falsification to authorities. • Citron will receive a seven-year sentence of intermediate punishment, with the first 60 days of the sentence to be served on house arrest with electronic monitoring, according to Fogal. • “Obviously the most important piece is that he will never be able to testify again, ” Fogal said in a written statement.

Closing • You can call a so-called expert a hired gun, or even more pejorative terms if based on evidence like lack of expertise, testifying only for defendants, not applying scientific methods, etc. . See, e. g. , People v Chatfield, 170 Mich App 831, 833 -834 (1988) lv den 432 Mich 897 (1989) • No report; no scientific analysis of facts of case; wasn’t there at the scene; testifies for defendants; won’t accept other respected expert opinions; admits own studies don’t really apply; not published and replicated; and, merely speculates to help D.

Kenneth Stecker/Kinga Gorzelewski Traffic Safety Resource Prosecutors Prosecuting Attorneys Association of Michigan 116 West Ottawa Lansing MI 48913 (517) 334 -6060 x 827 or 816 Steckerk@michigan. gov gorzelewskik@michigan. gov