Wednesday, August 10, 2011

Expert Opinion . . . Fail

As Wikipedia explains, an expert witness is a witness who

by virtue of education, training, skill, or experience is believed to have expertise and specialized knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally rely upon the witness's specialized . . . opinion about an evidence or fact issue within the scope of his expertise, referred to as the expert opinion, as an assistance to the fact-finder.

This post is about the recent decision of a federal judge in a civil suit. Clements-Jeffrey v. City of Springfield, Ohio, 2011 WL 3207363 (S.D. Ohio 2011). I’m doing a post on the case because the opinion addresses the admissibility of an expert witness’ testimony on a 4th Amendment issue involving online communications, an issue that could arise in a criminal case, as well.

The plaintiffs’ Third Amended Complaint says the lawsuit arises from the

grossly excessive search and seizure of sexually explicit images depicting Plaintiffs that Defendants, in violation of Plaintiffs' Fourth . . . Amendment rights, . . . made electronically of Plaintiff’s . . . laptop computer, which she had purchased . . . and in which she . . . held an objectively reasonable expectation of privacy, when Defendants were tracing the theft of that computer from its original owner and . . . downloaded and made hard copies of those images and then used them in arresting and holding Plaintiff Clements-Jeffrey. . . .

Clements-Jeffrey v. City of Springfield, Ohio, Third Amended Complaint ¶ 1, 2010 WL 4250688.

Here, roughly, is how the Third Amended Complaint summarizes what happened: Clark County, Ohio bought an HP laptop “equipped with an Absolute Software `LoJack Computrace’ device”. Third Amended Complaint ¶ 10. The computer was stolen and the plaintiff, Susan Clements-Jeffrey, bought it from one of her students for $60 and took it home. Third Amended Complaint ¶ ¶ 12-25. She then began using the laptop to communicate with others online, including additional Plaintiff Carlton Smith, who lived in Massachusetts and with whom she was having a long-distance “romantic relationship.” Third Amended Complaint ¶ ¶ 26-28. “As part of that romantic relationship, Plaintiffs exchanged sexually explicit images over the Internet.” Third Amended Complaint ¶ 29.

Some time later, one of the defendants, Kyle Magnus, who was a theft recovery officer for Absolute Software, contacted Springfield Police Officer Ashworth and told him he’d been using the LoJack system to track the stolen HP laptop and wanted to “`provide [Ashworth] with the information he needed to apprehend a suspect.’” Third Amended Complaint ¶ 31. (Springfield is in Clark County, Ohio.) Ashworth agreed so Magnus sent him “documentary information on the Computrace device along with intercepted communications between Plaintiffs that had been captured” by it. Third Amended Complaint ¶ 33. “This data included Plaintiffs' sexually explicit images which they had intended and expected to be highly confidential.” Third Amended Complaint ¶ 33. The Complaint then alleges that at

no time material to this action, did Defendants Ashworth, [Officer] Lopez, and the City need the number of Plaintiffs' sexually explicit images and the images themselves to identify the current location and presumed thief of the laptop computer.


Rather than return or destroy any images that went beyond those they needed to identify the current location and presumed thief of the laptop computer, Ashworth and Lopez displayed those images to other employees of Defendant City and retained them in a file.

Third Amended Complaint ¶¶ 34 & 35. Ashworth and Lopez went to “Clement-Jeffrey’s residence” without “a search or arrest warrant” and “demanded entrance on the false representation they possessed a warrant for the computer.” Third Amended Complaint ¶ 41. Once she let them in they (i) demanded to see the laptop, which she showed them, (ii) began asking about it without Mirandizing her and (iii) arrested her “on the felony charge of `receiving stolen property.’” Third Amended Complaint ¶¶ 42-44. The officers then “restrained, handcuffed, and transported . . . Clement-Jeffreys to police headquarters.” Third Amended Complaint ¶ 50. She was held for “at least two hours” but “eventually released.” Third Amended Complaint ¶¶ 54-55.

Back to the opinion: It contains a ruling by the district court judge who has the case on the plaintiff’s motion to bar the defendants “from introducing, at trial,” the testimony of a local sociology/criminal justice professor. Clements-Jeffrey v. City of Springfield, Ohio, supra. The defendants wanted the professor to testify as a

`contextual expert,’ who can help to explain the problems of laptop computer theft, the need for theft recovery tools, and how those tools operate. He also intends to offer his expert opinion that Plaintiffs had no reasonable expectation of privacy in communications via the Internet.

Clements-Jeffrey v. City of Springfield, Ohio, supra. As noted above, the plaintiffs are arguing, in part, that their rights under the 4th Amendment were violated. As I’ve noted in earlier posts, the test for whether law enforcement engaged in a “search” under the 4th Amendment is predicated on whether someone had a reasonable expectation of privacy in the place and/or thing searched. As to that issue, the defendants’ proposed expert witness would testify, if called at trial, that “[i]t is not reasonable to believe that electronic communication is private online.” Clements-Jeffrey v. City of Springfield, Ohio, supra.

The plaintiffs moved to exclude his testimony, claiming it “does not satisfy the standards for expert witness testimony” under Rule 702 of the Federal Rules of Evidence. Clements-Jeffrey v. City of Springfield, Ohio, supra. Rule 702 provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The judge first addressed whether the professor possessed “the requisite qualifications to offer the proposed expert witness testimony.” Clements-Jeffrey v. City of Springfield, Ohio, supra. He noted that the professor teaches university-level courses on cybercrime and that “Internet crime and privacy issues have been a consistent area of interest for him.” Clements-Jeffrey v. City of Springfield, Ohio, supra.

He also noted, though, that the professor had not written any articles that dealt “exclusively with the subject of his opinions in this case” and had never “testified as an expert witness on this topic.” Clements-Jeffrey v. City of Springfield, Ohio, supra. The judge then concluded that he did not need to decide whether the professor “possesses the requisite qualifications to offer the proposed expert witness testimony. Assuming arguendo that he is qualified, his testimony is nevertheless inadmissible for other reasons.” Clements-Jeffrey v. City of Springfield, Ohio, supra.

The judge proceeded to analyze the propriety of allowing the professor to testify as to his opinion that “no one, including Plaintiffs, has a reasonable expectation of privacy in Internet communications.” Clements-Jeffrey v. City of Springfield, Ohio, supra. He noted that “this is a threshold issue in this case, and a necessary prerequisite for” the plaintiffs’ 4th Amendment claims. Clements-Jeffrey v. City of Springfield, Ohio, supra. As I noted above, it they didn’t have a 4th Amendment expectation of privacy in the communications the officers accessed on the HP laptop, then accessing the communications wasn’t a 4th Amendment “search” so no 4th Amendment violation could have occurred.

The judge then explained that the question of whether “Plaintiffs had a reasonable expectation of privacy in their Internet communications” was not a question of fact but “is a question of law to be decided by the Court. . . . This renders [the professor’s] `opinion’ on this topic absolutely irrelevant.” Clements-Jeffrey v. City of Springfield, Ohio, supra. Before I continue reviewing the opinion, I want to noted that, as Rule 702 states, experts are allowed to testify as to matters within their expertise if such testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue”. Experts help juries with factual issues, not with the applicable law. The judge determines what the law is and, as I’ve noted in earlier posts, instructs the jury on the applicable law.

The federal judge who has this case then explained why the professor’s “`opinion’” on the legal issue noted above would be “absolutely irrelevant” to the issues involved in the case and could therefore not be admitted. He noted, first, that “[n]umerous courts have recognized that individuals have an objectively reasonable expectation of privacy in their personal computers.” Clements-Jeffrey v. City of Springfield, Ohio, supra (citing decisions from three U.S. Courts of Appeals). So, the judge is pointing out that all of us, including Clements-Jeffrey, have a 4th Amendment expectation in the contents of our laptop or desktop computers. That addresses the computer, as an item in and of itself.

The judge then pointed out that as to communications “sent over the Internet, the Sixth Circuit has recently held that `a subscriber enjoys a reasonable expectation of privacy in the contents of emails “that are stored with, or sent or received through, a commercial [Internet service provider].”’ Clements-Jeffrey v. City of Springfield, Ohio, supra (quoting U.S. v. Warshak, 631 F.3d 266 (U.S. Court of Appeals for the 6th Circuit 2010)). He noted that the Warshak court also held that even though email had to

pass through an Internet service provider and even though that provider may have contractually reserved the right to access the subscriber's email in certain circumstances, neither the ability of the ISP to gain that access, nor its contractual right to do so, extinguished the user's reasonable expectation of privacy.


In a similar vein, the Supreme Court recently assumed . . . a city employee had a reasonable expectation of privacy in text messages sent and received on a pager provided by his employer. See City of Ontario v. Quon, 130 S.Ct. 2619 (2010).

These holdings can be extended to cover instant messages and webcam communications, the types of communications at issue in this case. . . . [S]tatutes also shed light on whether an individual has an objectively reasonable expectation of privacy in electronic communications. The Stored Communications Act 18 U.S. Code § 1701 et seq., . . . prohibits the intentional, unauthorized access of stored communications such as email. The Electronic Communications Privacy Act, 18 U.S. Code § 2511, . . . prohibits the intentional, unauthorized interception, disclosure, and use of wire, oral, and electronic communications.


Based on these statutes and on the above-cited case law, the Court concludes that [the professor’s] expert `opinion,’ that no one has an objectively reasonable expectation of privacy in password-protected Internet communications, is contrary to law, and thus not relevant to the issues in this litigation.

Clements-Jeffrey v. City of Springfield, Ohio, supra. The judge found “it curious that, in formulating his opinion,” the professor did not take the statutes cited above “into account”. Clements-Jeffrey v. City of Springfield, Ohio, supra. He then held that the

question of whether Plaintiffs had an objectively reasonable expectation of privacy in their Internet communications is a question of law to be determined by the Court. This renders [the professor’s] opinion on this topic completely irrelevant, even more so in light of the fact that it is contrary to case law. For these reasons, the Court finds that his opinion on this topic is inadmissible.

Clements-Jeffrey v. City of Springfield, Ohio, supra. In the remainder of the opinion, the judge decided it would be imprudent to let the professor testify on the other issues noted above, and therefore granted the plaintiffs’ motion to exclude his testimony entirely. Clements-Jeffrey v. City of Springfield, Ohio, supra.

1 comment:

maelorin said...

Some 'expert witnesses' make the mistake of thinking their 'job' is to find a way to 'explain' their employer's case from an 'expert' point of view.

Others rely upon their status as an 'expert' to carry them past difficult questions.

In both cases, the person has mistaken their role in proceedings: 'to assist the fact finder' (the judge/jury), not the party who brought them into the room.

Perhaps the sociologist here has not only failed to consider the statutes relevant to the question of fact at hand, but also the relevant court rules regarding expert witnesses and expert testimony?

(Perhaps their enthusiasm for their subject of 'interest' got the better of them ...)