Today, Magistrate Cousins of the United States District Court in San Jose California granted WSJ reporter John Carreyrou’s first amendment right to cover the Elizabeth Holmes federal wire fraud trial. Cousins found Carreyrou to be an expert witness instead of a fact witness. If he had been deemed a fact witness, Carreyrou would have been prevented from covering or attending the trial as his name appears on the defenses witness list, and witnesses are typically excluded from court. Interestingly, he has not yet been subpoened to testify.
Expert witnesses are allowed to attend trial and hear the testimony of other witnesses to render an opinion when they testify. Think of a coroner giving an opinion as to the cause of death or an accident reconstructionist listening to the testimony of a police officer. Mr. Carreyrou wrote a 2015 WSJ article that blew the whistle and penned a best selling book, Bad Blood, based on his investigation into Theranos and Holmes.
Curious, will the Holmes defense appeal Magistrate Cousins decision finding Carreyrou an expert witness? Or, object when Carreyrou testifies or offers an opinion?
Does Carreyrou qualify as an expert witness?
Federal Rule of Evidence 702 allows for expert testimony if it will ‘assist the trier of fact to understand the evidence or to determine a fact in issue’ by providing opinions on ‘scientific, technical, or other specialized knowledge’.(See jury instruction 2.13 here)
Even if Carreyrou is found to have scientific, technical or specialized knowledge, could his “findings” (investigative info) be considered too prejudicial and excluded (or limited), like the detrimental findings of Centers for Medicare Services after their investigation of Theranos, which the trial judge excluded from testimony today as too prejudicial?
Another words, one could assert, would the Carreyrou testimony be helpful (probative) to the trier of fact (the jury) or would it be too prejudicial to the defense?
And as the jury will be instructed before deliberations,
“Such opinion testimony should be judged like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’s education and experience, the reasons given for the opinion, and all the other evidence in the case.” (See jury instruction 2.13).
Keep in mind, it is the jury who decides what the facts are, weighs the credibility of witnesses and determines what weight to give the testimony of a witness, no matter…the bad blood.
Simply my opinion, what say you?
Expert Witness Rule #1 “Don’t take it personally!”
Apparently, Dr. Paul White, has forgotten that rule.
As just reported by CNN, Dr. White, the defense’s key witness was allegedly overheard today calling prosecutor Walgren a “scumbag” and intimating Walgren “tampered with evidence” and referred to the prosecutions expert as “taking the low road…the truth will come out” . The Judge’s response, he set a contempt hearing on Dr. White for November 16th.
Now, it appears that his alleged comments where overheard by media and members of the public. Can we expect his stripes to change when he hits the witness stand?
You may expect that other witnesses, say a family member, may make out of line comments, but to have an expert witness, especially the case-turning propofol expert, to take jabs at the other side or comment on the veracity of the evidence simply damages your case. Few things tank a case quicker than an expert witness who is perceived as lacking objectivity and/or taking the case personally.
No doubt the jury will hear or sense Dr. White’s apparent lack of objectivity in cross-examination if not sooner.
Simply my opinion, what say you?