Following a win for the cross examiners in the nationally reported Georgia vs. Tonya Renee Craft case, criminal cases in the State of Georgia have been added to this list of infamous evidentiary quagmires. In Cotton v. State, the Georgia appellate court informs that “[g]enerally, an individual will qualify as an expert upon a showing of being ‘knowledgeable in a particular matter’”. In Georgia Dept. Trans. v. Miller the Georgia appellate court found that it is perfectly okay for an expert opinion to be based on inadequate knowledge. In Purvis v. State the Georgia appellate court held that “[g]enerally, nothing more is required to qualify as an expert than evidence that the person has been educated in a particular trade, science, or profession”. Further, Georgia has decided that police officers may give an opinion as to whether a person is “traumatized”. And in Georgia, it’s not a very bad thing to have the State’s expert comment on whether the alleged victim was “lying”. We at PsychLaw.net feel that in a state that insists that the defense gets a full Daubert analysis if one’s finger is cut off by a lawnmower, the opinions on expert evidence law when one’s life is at stake are an abomination.
It seems the state courts in Pennsylvania are not profiting from being in the same general vicinity as the Pennsylvania Federal Courts. Where In re Paoli R.R. Yard PCB Litig. and the recent Calhoun v. Yamaha Motor Corp, U.S.A. laid out easy-to-follow eight part tests for reliable and valid expert testimony, recent Pennsylvania cases are curious. In re K.C.F. found the Pennsylvania Superior Court explaining their “more than ordinary” test: “[i]n general, to qualify as an expert witness, one must only possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience.”
Their Davis v. Steigerwalt case is curious as well. When one remembers the recent Holiday Inn Express television commercials where an otherwise non-distinguished citizen is providing loud, seemingly “expert” and knowledgeable advice to an unsuspecting crowd; one can understand the silliness of the Pennsylvania State Court’s “pretension to specialized knowledge” test from Davis v. Steigerwalt. In Davis, the court informed that “…the test to be applied when qualifying an expert witness is whether the witness had any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given such testimony is for the trier of fact to determine”. We at PsychLaw.net feel that unfortunately, Pennsylvania recently upheld this sort of stupid decision in Novitski v. Rusak.
In this same vein, one appellate panel in Pennsylvania created the “…consulted sources…” test. In Wood v. Chatterjee, the Superior Court of Pennsylvania cited to Primavera v. Celotex Corp., and ruled that “when the expert witness has consulted numerous sources, and uses that information, together with his own professional knowledge and experience, to arrive at his opinion, that opinion is regarded as evidence in its own right and not as hearsay in disguise”.
As we at PsychLaw.net described throughout this blog, the cross examiner should expect badly thought out or simply not thought out decisions from Texas. The following are a few more illustrations from Texas.
In Biggins v. State, the appellate court in Fort Worth articulated the “just about anybody can be an expert in Texas…” test. In Biggins, a young woman who had just earned her master’s degree and had no training or experience in child sexual abuse assessment, diagnosis, evaluation or treatment whatsoever was qualified as an expert. In this case, the “expert” with no “…specific training in sexual abuse in her educational background…” had been working at an advocacy center as an intern for only a few weeks before seeing the alleged victim. This same young woman continued her counseling relationship with the alleged victim (a girl of twelve at the time of the alleged incident) for eight months after their first meeting. The trial court qualified her as an “expert” despite this dual relationship and permitted her to testify about “…the traits of a typical sexually abused child.”
In Esquivel v. State and Coy v. State, the Texas appellate courts in San Antonio and Houston respectively, articulated the “…forget objective data…” test. In Esquivel, the trial court qualified and the appellate court affirmed the expertise of a social worker who had worked for five years as a counselor and who had some experience with sexually abused children. The courts determined that this experience properly qualified her to give expert testimony in the punishment phase of the trial, about the “long-term effects of childhood sexual abuse.”
We at PsychLaw.net note that although there are no empirical studies about the long-term effects of child sexual abuse which depart in any significant degree from the long-term effects of any rare childhood trauma (dog-bite, near drowning, serious automobile accident, witnessing the suicide of a relative, et cetera), this witness was qualified on the basis of her subjective experience as an “expert” and then allowed to opine. She testified that her sense of the long-term effects was based upon “…attending professional conferences, where she listened to ‘other people, other experts and doctors who have worked with this long term, who work in therapy, who work in the police department, all of the professionals that get involved when this type of crime happens to a child’…”.
When the defendant objected to the subjective and biased nature of the testimony, citing the trial and appellate courts to the recent adoption of Daubert in Texas, the courts explained that:
…When addressing fields of study aside from the physical sciences, we ask the following questions: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. Id. On appeal, defendant asserts the record does not indicate [the social worker] relied on principles involved in the field of research concerning the behavior of sexually-abused children…
It is difficult to find in the record that either the trial court or the appellate courts did any of those things.
In similar fashion in Coy v. State, the State’s expert, another social worker, “…testified at trial that the complainant experienced headaches and stomach aches, which are consistent with symptoms of sexual abuse.”  This expert went on to testify as to whether or not the child complainant had been coached.
Finally, we at PsychLaw.net offer a cross examiner’s caveat: Be prepared for strange expert evidence decisions in California. Certainly the cross examiner should expect frankly silly expert evidence decisions from Missouri – the “some qualifications test”; or South Carolina – the “know more than the jury…” test; or Mississippi – the “experience beyond the average adult” test. But arguably California has the largest supply of well educated lawyers, the hardest bar examination to pass, the most stringent continuing education rules and the strongest ethics enforcement. When reviewing expert evidence decisions against this background, California’s courts deserve the prize for the most science-questionable expert evidence decisions in the fifty states. It is in the context of sex cases where this problem is most evident.
A random review of California appellate decisions for a 30 day period found five cases where defendants had been convicted in part because of “expert” testimony of and concerning the Child Sexual Abuse Accommodation Syndrome. This is curious for two reasons. First, almost every court in the fifty states that has actually taken the time to think about the foundational validity and reliability of this syndrome, has found it to be junk science.
We at PsychLaw.net remind the reader that second, the so-called experts testifying about CSAAS are either psychologists in breach of their professional ethics, ill informed social workers or District Attorneys’ investigators. Curiously, California seems to have the largest number of cases where district attorneys’ office investigators or police officers are qualified as “experts” to provide bolstering testimony. If this were civil court and the defendant insurance company wished to have their paid investigator or adjuster qualified to give expert testimony concerning the accident or injury, they would be laughed out of court. Not so in California’s criminal courts. A recent example illustrates this ridiculousness.
In People v. Simonton, the prosecutor proposed bolstering testimony on the issue of sex offenders “grooming” potential victims. Where the cross examiner should have objected on relevance grounds (“grooming” was never an element of any charge), the record does not suggest this was done. Absent the relevance objection, the prosecution offered the testimony of a police officer from the vice unit. This witness explained that he:
…[H]ad been a police officer for 12 years, had worked in vice for three years, and had worked in the child abuse unit for about 2 and one- half years. He attended classes in criminal investigations, child abuse investigations, child abuse/sexual assault training, and several sexual abuse seminars. He also attended monthly meetings with known sex offenders, some of whom discussed the ways in which they obtained the confidence of the child victim…and…had handled more than 100 child abuse cases…
Aside from the fact that the testimony was thoroughly subjective, not scientific in any way and offered by a witness with a clear interest in the outcome, the only objection noted in the record was that defendant asserted the officer was that he was “…not qualified to testify about grooming as it relates to child molestation because when asked about grooming, [the officer] began to testify about grooming in the context of pimps and prostitutes”.
In response to this faux pas, the appellate court responded that, “…[the officer’s] initial analogy to the grooming of prostitutes did not make him unqualified to discuss the grooming of child victims.”
In this context, we at PsychLaw.net feel that the cross examiner is wise to remember Goethe’s comment: We look for what we know. We find what we look for.
 NBC The Today Show May 12th, 2010:
http://today.msnbc.msn.com/id/26184891/vp/37103478#37103478 last visited May 17th, 2010
http://uservideos.smashits.com/video/7aXvS9IZUN0/Tanya-Craft-Not-Guilty-on-all-22-Charges.html last visited May 17th, 2010
 297 Ga.App. 664, 678 S.E.2d 128 (Ga. App. 2009).
 Id. 297 Ga.App. 664, 666; 678 S.E.2d 128, 131.
 2009 WL 3788601 (Ga. App. 2009).
 2009 WL 3930962 (Ga. App. 2009).
 2009 WL 3930962 (Ga. App. 2009) at page six.
 Hubert v. State, 297 Ga. App. 71, 74; 676 S.E. 2d 436 (Ga. App. 2009).
 Carrie v. State, 298 Ga. App. 55, 64; 679 S.E.2d 30 (Ga. App. 2009).
 Georgia is a Daubert State for civil cases like products liability and medical malpractice: Moran v. Kia Motors America, Inc., 276 Ga.App. 96, 98, 622 S.E.2d 439 (Ga.App., 2005) (“Daubert … provides guidance as to the admissibility of expert testimony and lists the following factors as relevant to the analysis: whether the specialized theory or technique has been or can be tested, the theory’s general acceptance in the expert community, rate of error, and peer review….in interpreting and applying [OCGA § 24-9- 67.1], the courts of this state may draw from the opinions of the United States Supreme Court in … Daubert ...”).
 35 F.3d 717 (3rd Cir. 1994) (“Paoli II” ).
 Calhoun v Yamaha Motor Corp, U.S.A, 350 F.3d 316 (3rd Cir. 2003).
 928 A.2d 1046, 1050 (Pa.Super., 2007) citing Freed v. Geisinger Med. Ctr., 910 A.2d 68, 73 (Pa.Super.2006) (quoting Flanagan v. Labe, 547 Pa. 254, 690 A.2d 183, 185 (1997)).
 822 A.2d 22 (2003) Superior Court of Pennsylvania.
 One of the funniest, finds a person trapped inside a bear display at a zoo and the “hero” yelling instructions like “hit him on the nose..” “…that’ll show him who’s boss…” “…he will back down…” et cetera. Only to be asked by others in the crowd if that advice would really work and the hero saying, something like, “I don’t know, but I stayed at a Holiday Inn Express last night.”
 822 A.2d 22, 25 emphasis added. See, also Callahan v. National Railroad Passenger Corp. , 979 A.2d 866 (2009).
 941 A.2d 43 (PA Super 2008). “The test to be applied when qualifying an expert witness is whether the witness had any reasonable pretension to specialized knowledge on the subject under investigation. . .” 941 A.2d 43.
 827 A.2d 433 (2003).
 415 Pa.Super. 41, 608 A.2d 515, 518-19 (1992).
 827 A.2d 433, 444.
 Texas is, according to some of its decisions, a Daubert State: Perez v. State, 113 S.W.3d 819, 833 (Tex. App., 2003): “In 1995, the Texas Supreme Court adopted the Daubert test and added additional non-exclusive factors….Later, the Texas Court of Criminal Appeals held that its Kelly inquiry was substantially identical to the Daubert inquiry… and that although Kelly involved novel scientific evidence, the Kelly analysis applied to all scientific evidence, novel or not.”
 Biggins v State, 2003 WL 1784924 (Tex.App.-Fort Worth) w/ do not publish memo.
 Biggins v State, 2003 WL 1784924, page 3.
 Biggins v State, 2003 WL 1784924, page 2.
 Esquivel v State, 2003 WL 21697227 (Tex.App.-San Antonio) w/ do not publish memo.
 Coy v State, 2003 WL 22512075 (Tex.App.-Hous. (1 Dist.) w/ do not publish memo.
 Esquivel v State, 2003 WL 21697227 (Tex.App.-San Antonio) at page 1.
 See, e.g.: Rind, B., Bauserman, R. & Tromovitch, P. (1998) A Meta-Analytic Examination of Assumed Properties of Child Sexual Abuse Using College Samples. 124 Psychological Bulletin 22.
10 Esquivel v State, 2003 WL 21697227 (Tex.App.-San Antonio) at page 6. The cross examiner would be wise to review the portions of the main text describing claims to specialized knowledge via “professional conferences”.
 2003 WL 21697227 at page 5 Citing to Nenno v. State, 970 S.W.2d 549, 557 (Tex.Crim.App.1998).
 Perhaps the reason the courts made little or no inquiry into the subjective basis of the witness’s testimony has to do with a hallmark of Texas evidence law. They just pretend it’s not science: “Expert testimony regarding the effect of sexual abuse on children is nonscientific expert testimony.” Hernandez v. State, 53 S.W.3d 742, at 750.
 Coy v State, 2003 WL 22512075 (Tex.App.-Hous. (1 Dist.) at page 2 emphasis added. This is of course, simply “hyperclaiming”: The tendency to overstate the implications of specific research. Hyperclaiming is best debunked by an explication of the research design and the statistical methodology utilized. Improperly tested hypotheses, small or unrepresentative samples, the absence of a comparison group, data dropping and failure to achieve statistical significance are hallmarks of hyperclaiming. And “causism”: The tendency to imply a relationship between factor A and factor B where the research does not support this conclusion. Seen in the presence of language such as: “the consequence of”, “as a result”, “the effect of”; where language such as: “is related to” or “may be inferred from” would have been more appropriate. See: “A Behavioral Science Glossary” in Lorandos, D. & Campbell, T: (2005) Benchbook in the Behavioral Sciences – Psychiatry – Psychology – Social Work – Carolina Academic Press, Durham, North Carolina.
 In fairness to the Courts, the prosecution in its brief on appeal argued that “(1) defense counsel stated prior to the Daubert hearing that he had no objection specifically to the expert’s qualifications, (2) defense counsel did not state the specific ground for his objection to the State’s testifying expert, and the specific ground was not apparent from the context, and (3) defense counsel did not object at the earliest opportunity when the State’s expert testified at trial that the complainant experienced headaches and stomach aches, which are consistent with symptoms of sexual abuse.” Coy v State, 2003 WL 22512075 (Tex.App.-Hous. (1 Dist.) at page 2.
 See, e.g.: “The unanticipated Problems of the Mondale Act” in Defending Against False Allegations of Sexual Molestation Part One of the six part series from Psychlaw.net – featuring the Clancy Litigation Group. A program of continuing education approved by the State Bar of California for Criminal Law Specialists and Family Law Specialists. http://www.psychlaw.net/videos.htm
 People v Gutierrez, 2001 WL 1239723 (Cal. App. 6 Dist.); People v McGee, 2001 WL 1260388 (Cal. App. 1 Dist.); People v Pollak, 2001 WL 1261936 (Cal. App. 2 Dist.); People v Ibarra, 2001 WL 1330296 (Cal. App. 6 Dist.); People v Wright, 2001 WL 1469092 (Cal. App. 2 Dist.)
 See, for example, the recent Sanderson v. Commonwealth, 291 S.W.3d 610 (Kentucky 2009) and a few additional representative cases where CSAAS was declared inadmissible as junk science: Bussey v. Com., 697 S.W.2d 139 (Ky. 1985); Lantrip v. Com., 713 S.W.2d 816 (Ky. 1986); Mitchell v. Com., 777 S.W.2d 930 (Ky. 1989); State v. Davis, 64 Ohio App. 3d 334, 581 N.E.2d 604 (12th Dist. Preble County 1989); State v. Dickerson, 789 S.W.2d 566 (Tenn. Crim. App. 1990); Hellstrom v. Com., 825 S.W.2d 612 (Ky. 1992); State v. Foret, 628 So. 2d 1116 (La. 1993); State v. Kendricks, 891 S.W.2d 597 (Tenn. 1994); State v. Stribley, 532 N.W.2d 170 (Iowa Ct. App. 1995); Newkirk v. Com., 937 S.W.2d 690 (Ky. 1996), reh’g denied, (Feb. 27, 1997); Hadden v. State, 690 So. 2d 573 (Fla. 1997), reh’g denied, (Mar. 21, 1997) and on remand to, 697 So. 2d 177 (Fla. Dist. Ct. App. 5th Dist. 1997), on reh’g, (June 27, 1997); Irving v. State, 705 So. 2d 1021 (Fla. Dist. Ct. App. 1st Dist. 1998).
 The case law suggests that this practice is commonplace in one California locale: Santa Clara County, where the District Attorney’s office investigator Carl Lewis regularly testifies as an “expert”. See, e.g.: People v Gutierrez, 2001 WL 1239723 (Cal. App. 6 Dist.) Aside from preconceived ideas, skewed orientation, and confirmatory bias models, California’s continued adherence to the ancient Frye doctrine, seems to permit no voir dire as to data, testability, falsifiability, validity, ‘fit’ or reliability.
 People v Simonton, 2003 WL 21321854 (Cal.App. 4 Dist.) Not Officially Published.
 People v Simonton, 2003 WL 21321854 (Cal.App. 4 Dist.) at page 6.
 Id. 2003 WL 21321854 at page 7.