expert testimony

Biestek v. Berryhill

Issues

Can a vocational expert’s testimony in a Social Security disability benefits hearing constitute substantial evidence of job availability if the vocational expert does not provide the data underlying their conclusions upon the applicant’s request?

This case asks the Supreme Court to decide whether a vocational expert’s testimony can constitute substantial evidence of job availability when a Social Security disability claimant requests but is not suppled with the data underlying that expert’s testimony. Petitioner Michael J. Biestek contends that the substantial evidence standard requires vocational experts to produce the underlying data upon an applicant’s request; otherwise, the expert’s testimony is unverifiable and allows the expert’s word to be unlawfully substituted for actual substantial evidence. Respondent Nancy A. Berryhill, the acting Commissioner of Social Security, counters that the substantial evidence standard focuses on the contents of the hearing record, not the procedure used to make that record. Additionally, Berryhill responds that plaintiffs already effectively undercut a vocational expert’s testimony on cross-examination and thus do not need to review the expert’s data. The outcome of this case will have large implications on litigation strategy in Social Security disability claims, for both claimants and the government.

Questions as Framed for the Court by the Parties

Whether a vocational expert’s testimony can constitute substantial evidence of “other work,” 20 C.F.R. § 404.1520(a)(4)(v), available to an applicant for social security benefits on the basis of a disability, when the expert fails upon the applicant’s request to provide the underlying data on which that testimony is premised

In March 2010, Biestek applied to the Social Security Administration (“SSA”) for Supplemental Social Security Income and benefits under 40 C.F.R. § 404, alleging that he had been disabled and unable to work since October 2009. Biestek v. Comm’r of Soc. Sec. at 2.

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Daubert Standard

Harrington v. Richter

Issues

Whether the California Supreme Court's summary denial of Richter's claim was an adjudication on the merits that qualifies for state court deference under 28 U.S.C. Section 2254(d), and whether the Court reasonably adjudicated both prongs of Richter's Strickland claim.

 

Joshua Richter, convicted of murder, alleged that he received inadequate assistance from his attorney at trial. Richter argued that his attorney should have presented expert testimony concerning a blood splatter at the crime scene, which could have corroborated his version of the events. The United States Court of Appeals for the Ninth Circuit agreed with Richter and granted his request for habeas corpus relief. Kelly Harrington, the prison warden, claimed that Richter did not receive inadequate counsel and that the California Supreme Court’s earlier summary disposition denying habeas corpus relief should be upheld. The Supreme Court’s  decision in this case  will determine the level of deference that should be granted to lower court orders, such as summary dispositions, which could discourage lower courts from issuing such orders in the future.

Questions as Framed for the Court by the Parties

In granting habeas corpus relief to a state prisoner, did the Ninth Circuit deny the state court judgment the deference mandated by 28 U.S.C. Section 2254(d) and impermissibly enlarge the Sixth Amendment right to effective counsel by elevating the value of expert-opinion testimony in a manner that would virtually always require defense counsel to produce such testimony rather than allowing him to rely instead on cross-examination or other methods designed to create reasonable doubt about the defendant's guilt?

In addition, the parties were directed to brief the following question: Does AEDPA deference apply to a state court's summary disposition of a claim, including a claim under Strickland v. Washington, 466 U.S. 668 (1984)?

On December 19, 1995, Respondent Joshua Richter (“Richter”) and his co-worker Christian Branscombe (“Branscombe”) drove to Joshua Johnson’s (“Johnson”) home, to deliver money that Richter owed to his co-worker “Tony” and to buy marijuana from Johnson. See Richter v. Hickman, 578 F.3d 944, 947 (9th Cir.

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Additional Resources

· Wex: AEDPA

· Civil Procedure and Federal Court Blog: SCOTUS Cert Grant of Interest: Harrington v. Richter (Feb. 25, 2010)

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Kansas v. Cheever

Issues

When a defendant presents expert testimony that he was not in the required mental-state to commit a capital offense because of methamphetamine use, does the State violate the defendant’s right against self-incrimination by presenting rebuttal testimony based on a court-ordered mental evaluation of the defendant?

Court below

After he shot and killed Sheriff Matthew Samuels, Scott Cheever argued that his habitual use of methamphetamines prevented him from forming the necessary mental intent to commit capital murder. The State initially filed its case in federal court after Kansas temporarily abolished the death penalty. In federal court Cheever presented the defense of voluntary intoxication, which is not recognized as a mental disease or defect defense in Kansas, and used expert testimony to support his defense. The federal court ordered Cheever to undergo a mental evaluation. Later, Kansas reinstated the death penalty and the State asked the federal court to send the case to state court. In state court, Kansas used the results of Cheever's mental evaluation to rebut his voluntary intoxication defense. Cheever argues that this evidence should not have been presented because he did not intend to waive his Fifth Amendment right against self-incrimination when he presented his mental status defense in state court. Kansas argues that by presenting mental health testimony, Cheever voluntarily opened the door to rebuttal testimony based on the court-ordered mental health exam. This case will address the role of state law in a defendant’s waiver of the federal constitutional right against self-incrimination. It will also impact prosecutors’ ability to rebut a defendant’s testimony in light of the Fifth Amendment. The issues in this case implicate questions of federalism and constitutional rights.

Questions as Framed for the Court by the Parties

  1. When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, does the State violate the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant?
  2. When a criminal defendant testifies in his own defense, does the State violate the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant?

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Facts

On January 19, 2005, Scott D. Cheever shot and killed Greenwood County Sheriff Matthew Samuels near Hilltop, Kansas. See Kansas v. Cheever,284 P.3d 1007, 1014 (Kan. 2012). Cheever and four others were cooking and using methamphetamine in the early morning before the police arrived at the home.

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NVIDIA Corp. v. E. Ohman J:or Fonder AB

Issues

Does the Private Securities Litigation Reform Act require plaintiffs alleging scienter (knowledge of fraud by defendants) based on allegations about internal company documents to plead with particularity the contents of those documents? And, does the Act permit expert opinion rather than particularized allegations of fact to satisfy the Act’s falsity requirement?

This case asks the Supreme Court to decide how plaintiffs can demonstrate intent (also called “scienter”) under the Private Securities Litigation Reform Act (“PSLRA”) for the purpose of alleging securities fraud. More specifically, this case asks the Supreme Court to decide whether plaintiffs can allege intent based on allegations about internal company documents without referring to specific content in those documents. It also asks the Supreme Court to determine if plaintiffs can satisfy the Act's falsity requirement by relying on an expert opinion in lieu of particularized allegations of fact. NVIDIA argues that Öhman’s failure to allege with particularity the contents of the internal documents to show that NVIDIA misrepresented its finances to investors does not show a strong inference of scienter that the PSLRA requires in order to reduce frivolous lawsuits, and that Öhman’s reliance on expert testimony to satisfy the PSLRA’s rigorous particularity standard would allow plaintiffs to circumvent it. Öhman counters that the PSLRA evinces a holistic approach in meeting the burden of showing a strong inference of scienter rather than requiring one specific allegation. Öhman also claims that an expert’s conclusion is an allegation of fact since the experts’ assertion is backed by embedded statements of fact to arrive at such a conclusion. The outcome of this case has strong implications for the national economy and access to justice.

Questions as Framed for the Court by the Parties

Whether plaintiffs seeking to allege scienter under the Private Securities Litigation Reform Act based on allegations about internal company documents must plead with particularity the contents of those documents; and (2) whether plaintiffs can satisfy the Act's falsity requirement by relying on an expert opinion to substitute for particularized allegations of fact.

In 1995, Congress enacted the Private Securities Litigation Reform Act (“PSLRA”) to rein in frivolous suits in securities fraud class actions. Choi, Stephen, and Pritchard, A.C., Securities Regulation: Cases and Analysis. 6th ed., Foundation Press, 2024.

Additional Resources

  • Choi, Stephen, and Pritchard, A.C., Securities Regulation: Cases and Analysis. 6th ed., Foundation Press, 2024.
  • Lipton, Ann, NVIDIA, Business Law Prof Blog (16 August, 2024).
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Smith v. Arizona

Issues

Is the Sixth Amendment’s Confrontation Clause violated when a testifying expert uses a nontestifying expert’s notes as the basis for their opinion when a defendant has not subpoenaed the nontestifying expert or otherwise had an opportunity to cross examine them?

This case asks the Supreme Court to decide whether the Confrontation Clause of the Sixth Amendment is violated when the State employs an expert who uses another expert’s notes as the basis of their own opinion. Jason Smith argues that the Confrontation Clause forbids the introduction of testimonial statements for their truth from expert witnesses whom a defendant has not had the opportunity to cross-examine, and that the testifying expert’s testimony in his case relied on the nontestifying expert’s testimonial notes and conclusions. Arizona argues that the Confrontation Clause allows experts to testify using facts that are not otherwise admissible when the facts are not submitted for their truth, and that the nontestifying expert’s notes in Smith’s case were not testimonial because they were not created for the purpose of testifying and lacked formality. The outcome of this case has serious implications for defendant’s Confrontation Clause rights and prosecutors’ ability to pursue cases that require forensics.

Questions as Framed for the Court by the Parties

Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.

The Confrontation Clause in the Sixth Amendment of the Constitution provides defendants with the right to “be confronted with the witnesses against [them],” allowing them to challenge the validity of the testimony before a jury.

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