-: SJC-13161.
Commonwealth versus Philip Daniel Chism.
-: Attorney Schneider. -: Good morning, Your Honors.
May it please the court,
I represent the defendant appellant, Philip Chism.
With me today is Attorney Ben Brooks.
Let me begin by stating the obvious,
which is that what occurred was obviously a senseless
and horrific act.
At trial, there was no question
but that the defendant was the one who killed the victim.
The main questions that were developed at trial was, first,
whether this 14-year-old with a family history
of severe mental disorders
with evidence that he was suffering
from a number of symptoms of disorders himself
and with some clear brain anomalies
was able to mount a full and fair insanity defense,
or whether the judge's evidentiary rulings,
in particular the admission of the brain scan evidence
and the raw data materials
and the forced disclosure of the raw data materials,
interfered with the defendant's right
to produce all proofs favorable to the defense.
In addition, the other main question
is whether evidence of the non-homicide offenses
was sufficient to go to the jury.
If I may, what I would like to do is address
and focus on today the issues raised
in the defendant's reply brief.
With respect to the,
I'll start with Point 4 in our main brief,
which is the issue involving the raw testing data.
Justice Gaziano: Before you get to that,
can I ask you on the Daubert-Lanigan issue...
-: On the which, I'm sorry?
-: The Daubert-Lanigan issue. -: Sure.
-: Ultimately, the defense selected
or proffered the testimony of Dr. Satawaith, I'm sorry,
-: Satterthwaite. -: Satterthwaite, okay.
The defense proffered that expert testimony,
not Dr. Gher, correct?
-: Correct. -: Okay.
When we assess the sufficiency of reliability
of the finding under Daubert-Lanigan,
do we look at the testimony of Dr. Gher for that?
And if we do, what do we do with the judge's finding
that Dr. Gher was not credible?
-: Well, first of all, I think credibility
under Roberio and Torres is not for the judge
to be making at that particular juncture.
That's an issue ultimately for the jury.
-: So if an expert testifies in a Daubert-Lanigan
and the judge thinks that the expert is not credible,
they have to consider that testimony?
-: I believe that that's what Commonwealth versus Roberio
says quite clearly, that that's an issue...
The judge is not supposed to intervene
and make a determination.
-: I thought Roberio was a case where a judge said that,
"I don't believe this testimony is relevant."
I'm fairly familiar with Roberio.
I don't know if it goes as far as that,
but what do we do with that finding of credibility?
So you think the judge couldn't have made that finding?
-: First of all, I would submit that the testimony
of both Dr. Gher and Dr. Satterthwaite should be considered
with respect to the proffer made by the defense.
-: So your position is, consider both of their testimony.
-: That they should both be considered.
And I would add, one of the issues that arose
with respect to Dr. Gher was that he was being examined
at the Daubert hearing by Zoom.
And there were scheduling issues
that prevented him at the last minute
from being present when the judge ordered him
to be present in the courtroom for examination and cross.
-: So your position is, consider both of their testimony.
And your position regarding the credibility determination,
you think that was error.
-: And I would submit that it was premature
for the judge to be making a credibility determination
or to be looking at the quality of the science
that was being proffered
other than with respect to the 702 issues.
-: But isn't part and parcel of determining
the quality of the science
and whether it meets the standard of Daubert-Lanigan,
part of that is the credibility
of the witness proposing the science?
-: Well, it's not at all clear.
So the judge did go back and forth
when you actually look at his rulings.
And I can cite the section of the transcript.
But the four pages where he makes his ultimate rulings,
he sort of goes back and forth on issues of credibility,
reliability, relevance.
-: And why is that an error? -: Right?
-: It's not necessarily an error,
but I would point out that the judge's findings,
his ultimate rulings were sort of a mix
of 401 relevance concerns and 702.
-: Well, of course, you don't wanna have scientific evidence
that's not relevant.
-: Sure, but one of the big issues that the judge found
and that was of concern to him,
and the Commonwealth raises it in its brief,
is that the defendant was ultimately not diagnosed
with schizophrenia narrowly defined in "DSM-5".
And so that ended up being a major part
of his determination.
And I would submit that was ultimately some mix
of a 702 and a 401 issue.
But I think that issue can be squarely met.
And I think we tried to do that in our brief,
which is to say that, you know,
ultimately, the evidence was proffered
to establish that the defendant was suffering
from a mental disease or defect.
-: So is it your position that if a party
presents non-credible expert testimony,
the judge has to consider it in a Daubert-Lanigan hearing?
-: Well, I may not go so far.
If you look at the way the judge framed his rulings,
he was concerned
about Dr. Gher not being sort of clear in his testimony,
whether his ultimate finding constituted a finding
that he was simply incredible with respect to the science-
-: He says it; he goes, "I find him not credible."
-: Well, he does end up there.
It's interesting though.
If you go back, lemme see if I can find the citation.
I think it's record appendix 3471 but I'm not certain.
He initially seems to make a finding
of gatekeeper reliability.
And then when he goes later into the analysis
after hearing further argument,
backtracks and seems to make a finding.
-: Well, I don't know if it's backtracking.
He says "It's layered."
He says, "I find you haven't satisfied
"gatekeeper reliability."
And then the alternative, "I find it doesn't meet 403."
It's layered.
-: He does mention 403, which is the balancing
of obviously probative value and prejudice.
He does go there.
And I would submit that argument doesn't hold water
because the defense ultimately wasn't,
pursuant to the consensus guidelines,
wasn't introducing the actual fancy pictures.
They weren't gonna introduce
the actual brain scans themselves,
which I can understand would be prejudicial.
The defense was simply-
-: Isn't the prejudice that a jury would say
that this is essentially evidence of schizophrenia
when the testimony really is it's an indication,
or could be an indication of schizophrenia.
-: So first of all, the judge could have issued,
could have sua sponte
'cause it wasn't specifically requested,
given a limiting instruction and said,
"This is only to be considered for the first prong
"of the McCool test, whether the defendant was suffering
"from a mental disease or defect."
If you actually look at the defendant's motion in limine,
counsel was pretty clear that she was offering it
for the essential issue at trial,
which is whether or not the defendant was suffering
from a mental disease or defect.
That was essentially the thrust
of the Commonwealth's case that he wasn't,
and that he was just malingering.
This evidence would've been critical objective support.
The Commonwealth got to introduce its psychological tests
that were also conducted two years later,
that Dr. Dudley-
-: But just to be clear, the fact that the Commonwealth tests
were conducted two years later
was actually pertinent to the issue of malingering.
Right, the question was, was the defendant lying now,
not whether he lied when he committed the crime.
Whereas the mental health issue was,
the relevancy of the mental health diagnoses
was when he committed the crime, at the time of the offense.
-: But if you look closely enough
at Dr. Nancy Hebben's testimony,
you'll see that she also used it to confirm her opinion
that the defendant wasn't suffering,
wasn't showing any signs of psychosis when she-
-: When you say, "she used it," what do you mean?
-: I'm sorry, she used the discrepancy
in the raw testing data,
the fact that in 2014, the defendant had scored
average to high on cognitive tests,
whereas in June, 2015 when the test was re-administered-
-: But that was a small part of her testing.
The major part of the test is the test that she did.
We're getting into your other issue, but like let's-
-: Except that I would point out that
she also said that when she looked at-
-: We'll get to that issue.
Let's continue to talk about Daubert-Lanigan for a second.
The proffer in Gher's testimony,
or at least his written proffer,
is something like, "These abnormalities,
"these volumetric abnormalities are indicative
"of a mental illness such as schizophrenia or TBI."
And then later. he says, "and/or TBI."
Isn't that incredibly broad
to say "it's mental illness such as."
There's lots of mental illnesses.
-: Well, in the motion in limine,
counsel specifically mentions four grounds.
One of them was the most essential issue,
that "the defendant was suffering
"from a mental disease or defect, a psychotic disorder."
Dr. Dudley went on to give a very nuanced diagnosis.
Remember, this is all in the context
of a 14-year-old being diagnosed where even Dr. Kinscherff,
the Commonwealth's expert, testified-
-: It says "They are consistent
"with a major psychiatric disorder
"such as schizophrenia or TBI."
-: And then if you go on, Point #4 is,
in its simplest form, the evidence is relevant
to establish that the defendant
was suffering from a mental disease or defect,
which was, of course, directed
at the most important part of the defense
and the thing that was most directly confronted
by the Commonwealth's expert.
And so it should have been relevant for that limited purpose
of simply providing some objective evidence
that the defendant was in fact
suffering from a real mental disease or defect.
This was not just simply a minor mood disorder.
-: And then we get to 403
and the judge's discretion, correct?
-: Well then we get to 403,
and the judge certainly does have discretion,
although I would submit the issue is preserved
and the standard is abuse of discretion.
And the judge did abuse his discretion
because, ultimately,
ultimately, this was relevant.
The defendant was not proffering,
the fancy pictures was not proffering the actual images.
There was one guideline that matters most
out of the consensus guidelines.
And that's the issue of whether or not
that the images should not be used
to establish a behavioral link.
-: Are you talking about the Emory study?
That's the consensus.
-: The Emory Consensus Study.
Gher himself participated in that study
and testified, I believe, that he complied
with the strictures of that study.
While the Commonwealth in its brief
refers to a number of different guidelines,
there was one guideline that was perhaps most significant,
and that was experts when they testify
should not be connecting the images
to any particular behavioral implications
for a specific defendant.
And neither Gher not Satterthwaite did that.
I would point out again on the credibility issue
that Satterthwaite essentially recapitulated
most of the testimony that Gher had offered.
And his testimony was completely in line.
They were in fact working as a team.
They had similar backgrounds
both with respect to structural MRI,
the use of the FreeSurfer program.
And they had deep knowledge of psychotic disorders.
Justice Georges: Counsel, could I just go back
to Justice Gaziano's point?
'Cause I wanna make sure I have your position on this right.
-: Yes, Your Honor. -: Even before the 403,
which is back at the Daubert-Lanigan
determination by the judge,
your view is that the trial judges
don't have the ability or the discretion
to consider the credibility of the proffered expert
in making the Daubert-Lanigan threshold inquiry.
-: I would suggest that to the...
First of all, my understanding is that Roberio and Torres
really address that issue and say
that judges should not be intervening in deciding
whether a particular expert's testimony is credible.
But to the extent that they can-
Justice Georges: Hold on-
-: That was ineffective assistance.
And the judge says, "Ah, there's no ineffective assistance."
You know, he was fine.
-: But I would submit to the extent that a judge...
-: But still with the credibility question though,
because I don't wanna go too far afield
to not the threshold question for the trial judge,
is is this expert going to be helpful?
Is it going to be helpful?
That's where the judge starts
when there's a proffer of an expert.
And so in the helpfulness of,
and whatever features that go into that,
is it your position that the judge
can't consider the credibility of the proffered expert
engaging the helpfulness to the jury
that before they even get to the substantive testimony,
just whether or not this person has anything to say
that would be helpful to the jury's determination,
that you are saying that Roberio says
we can't consider credibility?
-: No, I certainly wouldn't go that far.
What I would suggest is, first of all,
there's no question that experts were required
to give their opinions about scientific issues
that were way beyond the ken of the jury.
And in that sense, the second prong
of Mass. Guide to Evidence 702 was satisfied.
With respect to the issue of credibility,
I think what Roberio is really driving at is
that the judge shouldn't be determining the credibility
of the actual opinions that are being given
by the scientific expert.
And it's not clear
exactly what the judge's credibility issue here is.
He seemed to be concerned that Dr. Gher was primarily
not being clear enough in his testimony.
But certainly, a judge is able to make a finding
that the evidence proffered needs to assist the jury.
And he certainly found Satterthwaite credible.
Satterthwaite's testimony, as I say,
recapitulated pretty much everything that Dr. Gher did.
But I also would submit that
it wasn't just Gher's testimony that was before the judge
at the Daubert hearing.
It was also the two exhibits,
the report and the addendum that he submitted.
It was the five articles that were submitted
in support of the motion in limine.
And that all those articles,
the entire proffer put forward by the defense
was more than sufficient to establish the credibility,
the reliability of the evidence now.
And I would submit, in a case like this,
and ever since McCool, the court has recognized
that defendants mounting an insanity defense
should be given a lot of leeway in presenting anything.
It doesn't necessarily even require a formal DSM diagnosis
or any kind of evidence about what the etiology
of a defendant's disorders may be.
And even lay testimony about interactions with the defendant
on the day of an incident may be sufficient.
Justice Gaziano: But does that include
unreliable expert testimony?
-: But I would submit that when you look at...
First of all, Satterthwaite's was not unreliable.
-: No, but you just said that it should be given leeway.
And I understand that it can be raised
without expert testimony.
-: I would not disagree that 401 considerations
as well as 702 considerations and 403
all need to be satisfied.
-: We still have trials; we still have rules of evidence.
-: And I would submit, in this case,
this evidence was incredibly important to the defendant.
Because the Commonwealth went so far
as to suggest the defendant was not suffering
from any kind of mental disease or defect.
Even on Kinscherff's own test,
and I understand there's a malingering issue,
but it's interesting that he happened
to score extremely high both on the psychoticism scale
and also on the dissociative experiences scale.
And that's critical because Dudley's testimony was
that the defendant was suffering from a psychotic disorder,
not otherwise specified, with traumatic traits.
With respect to the issue of TBI, it was proffered.
The Commonwealth was on notice.
Satterthwaite testified that there was a huge asymmetry
in the superior temporal sulcus
on the left side as opposed to the right side
of greater than three and a half standard deviations.
It's my understanding that that would put him
in less than 0.2% of the general population.
And that this dramatic, huge asymmetry was evidence
of traumatic brain injury.
Dudley himself testified that the defendant,
that he saw evidence of traumatic symptoms.
And this was evidence that the defendant
in fact had suffered some kind of trauma.
-: There's a difference between traumatic
and being traumatized, and TBI.
TBI is a blow to the head
versus traumas.
You can't really,
that's really deceptive to say
that Dudley's testimony aligned with TBI.
-: Except that physical abuse
as well as emotional and sexual abuse
can lead to very similar-
-: So emotional abuse is evident in brain scans for TBI?
-: No, and that's not what Dr. Satterthwaite testified.
He testified that there was evidence
that there was such a huge asymmetry.
-: You're trying to align the MRI with Dudley's testimony.
And you said that Dudley's testimony that there was trauma,
right, which I read to be the trauma of his childhood.
Is that fair, that was Dudley's testimony?
-: I think Dudley was unable
to get enough out of the defendant.
The defendant wasn't really able to assist him.
-: But follow my question. -: Yes.
-: Dudley testifies that there was trauma-based
brain injury, or a psychosis, correct?
-: He testified that he saw evidence of traumatic traits.
-: Traumatic traits. -: Traumatic symptoms, yes.
-: Then when I asked you about the Gher report that says TBI,
as I take it, TBI means brain injury.
-: It does. -: Physical injury.
-: It does. -: All right.
So how do those correlate?
-: So I would submit that
it shouldn't even necessarily matter
that there was no alignment
between what the brain scan showed
and specifically what Dr. Dudley showed.
If there was evidence that the defendant
had this huge hole in his head or this huge asymmetry,
that's evidence that would've been extremely relevant
to the jury.
And they should have heard it to determine
whether or not the defendant was suffering
from a mental defect.
There are a lot of cases...
This court has recognized that in the Philbrook case
and in other cases that brain defects
are inherently mental defects.
And the Fifth Circuit in Lyons was quite explicit about it,
that evidence of brain damage is directly relevant
to the issue of whether or not the defendant is suffering
from a mental disease or defect.
-: On the issue you wanted to start with, the raw data,
can I ask you about that?
As I understand it from the record,
and please correct me if I'm wrong,
is the defense hires a psychologist
to conduct some type of testing.
And it turns out to be this intelligence quote testing.
That was, as I understand it, not associated with Dudley.
Then the prosecution,
when they do under Rule 14 their reciprocal discovery,
they reach out and they find that he had been tested again
unrelated to Dudley.
So if Dudley had authorized the psychological testing,
it'd be a different issue, correct?
-: [Attorney Schneider] That's correct.
-: 'Cause it'd be part and parcel of a testifying expert.
-: That's correct. -: Okay.
-: And if he had reviewed it and relied on it.
But in this case, he didn't.
-: Well, I was just wondering if he didn't rely on it
because he didn't wanna rely on it
because the defense attorney said, "Whoa, this isn't good.
"Let's not give it to Dudley."
-: It's my understanding it wasn't disclosed to him
until after the judge issued the order.
-: That was the question I had was
how did this issue arise basically?
-: And the issue was litigated
up through the Single Justice and sent back
because it wasn't appropriate for resolution at that time.
-: Okay.
So how are you prejudiced by...
If we find this is error, how are you prejudiced by it?
-: Well, the evidence of the raw data
was obviously used to support Hebben's testimony
that the defendant was just malingering,
and ultimately to Kinscherff's testimony
that he was just malingering and was not suffering
from a mental disease or defect,
which was the critical issue for the defense
and for the prosecution in this case.
-: Given that Hebbens relied on other tests,
not this raw data alone,
how do we weigh that in determining the prejudice
to your client?
-: Well, I do think you have to look at her testimony
where she says that when she saw the discrepancies
between the 2014 test and the 2015 IQ test,
that this was one of the most important pieces of evidence.
And by the time she testifies,
one of the most important things that she looked at,
and if Your Honor wishes, I could certainly submit
a 28(j) letter to address that
to point out exactly where that occurred
although I think it's cited.
Justice Gaziano: No, I think your brief
is quite extensive, so we don't need anything else.
-: Yes, apologize for the extra reading, but yes.
-: No, no, appropriately so.
-: But this was a complicated case.
-: Well, let me ask you.
On those same lines as Justice Wendlandt asked you
about prejudice,
and Hebben's testimony about the other tests.
Hebben also through skillful cross-examination, I think,
admits that malingering could take two different forms.
It could be pure malingering
or I think she called it partial malingering
where the person actually does have a mental illness
but they're exaggerating the symptoms.
Does that go into the prejudice analysis as well?
-: Well, it's hard to say
'cause I think the Commonwealth's main expert
was Dr. Kinscherff who testified that the defendant
was just malingering.
He specifically testified
the defendant was just malingering
and not suffering from a mental disease or defect.
I think the thrust of the defense evidence was
that even if there was some evidence of malingering,
at least with respect to that IQ test,
and frankly by 2015 the defendant had been tested so often
that maybe he simply wasn't responding.
But in any event...
-: Let me ask you about- -: Yeah.
-: Say we agree with you in amici
regarding the interpretation of Rule 14
on that one line and that footnote in Hanright, et cetera,
is it authorized for the Commonwealth to get a list
of tests that were done so they're not repeated?
I understand raw data is different than the types of tests.
How do we handle that?
-: That's a good question going forward 'cause of the court.
Justice Gaziano: Well, help me out on that then.
What do we say?
-: I think that because of the right to counsel issues
that are implicated by the Commonwealth
being made aware of defense investigatory processes
and consulting with experts
that that's material that probably should not.
Even though it may enhance the truth determining function,
which is what Hanright understandably was addressing,
I think the court has to remember
that we're operating within the context, of course,
of an adversarial system
where defendants have a right to counsel
that involves a right to zealous investigation,
a right to explore all possible defenses,
especially important
in a complicated mental health situation like this one.
When a case like this comes across a defense counsel's desk,
the first thing they have to do is to try and figure out
and understand what they're dealing with,
and what are the different kinds of potential defenses
that are available.
And I think that the communications that the defendant,
that the defense counsel has with the defendant
and with defense experts,
and between the defense experts and the defendant
all have to be protected by the attorney client privilege.
And I think that all falls within the right to counsel.
So I would submit-
-: At the sake of perhaps the issues
that are raised in Hanright?
-: There might be some loss.
And there are other situations
that I'm not sure I'm prepared to indicate,
in which the truth determining function of trials
has to give way to the rights of criminal defendants,
the adversarial system, and the whole structure
of the criminal justice system under our Constitution.
And so I'm not sure that defense counsel should be required
even to list the particular tests or the particular experts
that she or he uses.
-: As long as they're not adjacent to a testifying witness.
-: As long as they're not reviewed by and relied upon
the testifying witness.
I think that's-
-: Or at least, well, I don't know if relied upon,
but at least reviewed by.
Because if they're reviewed by,
then we have the cherry picking issue.
-: [Attorney Schneider] At least reviewed by.
-: Reviewed by. -: For sure.
And I think that that's consistent with what Hanright said.
I mean, obviously, Hanright only addressed
prior treatment records and only if reviewed by
the testifying defense expert.
And I think the amicus brief elaborates even further
in a very nice way
on some of the points that we make
in our brief on that issue.
-: Okay, thank you. -: Thank you.
-: Attorney O'Sullivan.
-: Good morning.
May it please the court, David O'Sullivan
for the Commonwealth.
With leave of the court, I'll start with the scans issue
and hopefully address a question that Justices Gaziano,
Wendlandt, and Georges were alluding to
with respect to the credibility determination
that the judge found.
So what the judge can do,
in fact the judge must do from cases back to Canavan
is when he or she is determining
whether the Daubert-Lanigan standard is met
to exercise credibility determinations.
What a judge may not do,
and I would suggest what was not done in this case,
is make a credibility determination
with respect to the ultimate opinion
that's offered by a defense expert
and exclude it based on disagreement with that opinion.
But our system assumes the need for a judge
to exercise credibility determinations
in getting to the point of, you know,
the Daubert-Lanigan standard.
Justice Gaziano: What case do you cite
for that proposition?
-: So Hines is the one we cite.
But I think where my brother is citing Roberio,
it helps to actually quote what they said in Roberio.
"Once the expert's qualifications were established,
"and assuming the expert's testimony met the standard
"of Lanigan, the issue of credibility was for the jury."
So when we get to that point,
then the judge has to shut off any disagreement
with the expert here.
And I would submit that this mattered
in this particular case for a couple of reasons.
There were two experts that testified
for the defense in the Daubert-Lanigan hearing,
one of which was ultimately proffered by the defense.
The testimony, to use my brother's term,
of Dr. Gher was not recapitulated in the testimony
of Dr. Satterthwaite, who was ultimately proffered.
Dr. Satterthwaite's testimony was more measured.
That may have been the reason, ultimately,
they tactically decided to proffer his testimony.
Because he simply came off as more credible.
But he was more measured in several respects.
First of all, he acknowledged that the number of scans,
or the number of persons in the control group,
limited the statistical power to detect abnormality.
That was not something that Dr. Gher admitted.
Second, he acknowledged that these types of scans
are not in fact used for the purpose proffered here,
that is in aid of diagnosis of a psychiatric condition here,
particularly schizophrenia.
And further, he went further than that.
Not only are they not used as a standard of practice
in the relevant field, they're not quote,
"ready for such use."
In fact, he said that the processing algorithms
and the pattern recognition tools are not ready to be used
for the purpose of clinical diagnosis.
And so where that's the purpose
that they're being offered here,
I acknowledge that it is, you know, not the end-all, be-all
whether it's used in clinical diagnosis.
But where the purpose is to aid in a diagnosis,
that becomes pretty important here
and was certainly within the judge's discretion to consider.
So as to the guidelines,
you know, it's important to note that
these don't reflect the opinion of one doctor,
but rather are the results
of a multidisciplinary consensus conference.
And the guidelines that came out of that
reflect that consensus.
And so these guidelines which were submitted in connection
with the Commonwealth's Daubert-Lanigan materials
either provided a roadmap for the defense
to provide a solid proffer
on this novel use of this, you know, this technology
for the purpose offered here,
or a list of why the proffer was deficient.
And I would say, what shook out was the latter.
There was a catalog of the deficiencies
that are noted in the guidelines.
And, you know, one issue,
to speak to Justice Georges' concerns regarding helpfulness,
we would suggest that before we even get
to the Daubert-Lanigan factors,
there are issues of assistance to the trier of fact here
that we would submit glaring
even if they weren't expressly noted by the judge.
The first being that as the guidelines made clear,
that the scanners and the post-processing techniques
and data interpretation are rapidly developing.
And so we have, you know, these 61 scans
taken from the Philadelphia cohort.
And then we have these scans taken of the defendant
in September of 2014 at MGH.
There is no testimony in the proffer that the scanners,
the post-processing techniques used,
the data interpretation were the same
even though the guidelines say
that could make the results vary greatly.
So in terms of whether
there's an apples-to-apples comparison here,
we would suggest that out of the gate,
there was a problem in this proffer,
even though that wasn't specified by the judge as a reason.
-: So your position taken to its logical end
would mean that in order for MRI tests to be admissible,
they would have to be,
the study would've had to have been conducted
on the same machine as the MRI test used
on the person involved in the case.
-: According to the guidelines,
that would certainly improve the quality of the proffer.
-: [Justice Wolohojian] Would it be required?
-: I don't know if it would be required, Your Honor,
but it would definitely be something
that ought to be addressed in the proffer itself.
Either it could be had the defendant been
or had Dr. Satterthwaite been asked this question
that he would've said,
"It doesn't matter for X, Y and Z reasons."
But here, we just have a gap in the proffer
on which the defendant carried the burden.
And that's important here.
To the extent there are gaps in this proffer,
the burden was on the defendant to show its compliance
with the Daubert-Lanigan standards.
So the other reason is that
although this might not be sufficient on its own,
is that this evidence was proffered on the issue
of the defendant's mental state at the time of the crime,
which was, of course, two years before the scans
were ultimately taken.
-: I guess that leads to another logical question
for us when we talk about this.
Because as your opposing counsel mentioned,
this happens in all of these cases, right,
that it's after the fact.
So how are we to evaluate the issues
with Daubert-Lanigan retroactively?
I mean, how are we supposed to meaningfully give guidance
to trial judges where this is what you're going to find?
It's the state of affairs all the time.
And how are we supposed to do that?
-: Well, I think it makes sense
to look at the particular technology
or evidence that's being offered.
And maybe it makes sense here to compare it
to the psychometric tests utilized
by the Commonwealth experts, particularly Dr. Hebben.
So in one case, the scans...
As we know, an sMRI scan is a snapshot
of the defendant's structural brain, you know, qualities
at a moment in time,
literally at the second the scan is taken.
So it's chiefly relevant to the brain state
at that period in time.
It may be through testimonial linkage
that a good Dopp Air showing could say,
"Okay, well, we find this characteristic
"significant in the brain.
"And also, we find, or we aver that, you know,
"two years before, this was likely to have also existed."
'Cause recall that the scans were taken
not only at a moment in time,
but amid a time of, (hits mic accidentally) excuse me,
of rapid volumetric change.
And so when you're ascribing significance
to a physical characteristic
and you're measuring that characteristic amid a period
that you know is one of rapid volumetric change,
you'd better have some linkage to the time of the crime.
And the defense seemed to understand
that this was a necessary link,
because their motion in limine mentions it
and their opening argument mentions it.
-: How do you address the fact
that this has been admissible in many mitigation cases
in the federal courts?
-: Well, mitigation is different.
You know, the evidentiary standards are looser there,
typically,
particularly when we're talking about death penalty cases.
But I would submit that here where it's proffered
on the issue of criminal responsibility
and where there's particular power
to this type of testimony,
both that we could understand sort of in a common sense way
and as the guidelines particularly, you know, reference
where there's peculiar power
to the idea of, "Oh, we don't need..."
Justice Gaziano: That's a 403 argument, correct?
-: It folds into 403, but I think it's relevant as well to,
yeah, it really is a 403 argument
with respect to the particular power of this testimony.
When you're looking at it and we're saying,
Okay, you know, an average juror could look at this
and say, "Okay, well, we have a picture of the brain.
"Oh, isn't this a wonderful enticing window
"into the defendant's brain,
"which will obviate the need to look any further.
"After all, look at this brain characteristic.
"That explains it."
You know, I think, frankly, the experts
who created the guidelines did a public service.
-: [Justice Wendlandt] But I thought
the photos weren't gonna come in.
-: Correct, the photos weren't going to come in, but I-
-: But you wouldn't have the problem of these,
you know, suddenly scientists that jurors can become
when they see, "Aha, this brain looks different."
-: Right, and just to be clear, they're not photos,
but they would be graphical representations
of the volumetric differences of the brain
represented by colors. -: Understood, yes.
-: But to your point, Your Honor,
I think the same danger of oversimplification
and perceived objectivity would enure from testimony
as it would enure from the pictures.
If you're testifying to the same facts
that would be in the picture,
then I think, and a fair reading of the guidelines is,
that that sort of testimony carries the same dangers
as does the pictures themselves.
So it's not only the pictures we're complaining about.
It would be the testimony to the effect
that there were, you know, "clinically significant..."
And I'm putting that in quotes.
Anytime I say "abnormality" in this oral argument
or "clinically significant volumetric difference,"
I would be in quotes.
You know, that would have peculiar power to a jury.
Because it would be attached to some number
that it was alleged to have particular significance
in the case.
And in the reply brief, there's a suggestion
that we are attacking the use of Z-Scores,
which is not the case.
We recognize that Z-Scores
are a standard statistical measure that are used.
The problem is more in the monikers
that were used for, for example,
from one to two standard deviations from the mean
that was termed as clinically significant.
You'd be hard pressed to say
where you've also admitted in the same proffer
that these types of scans are not used clinically,
that this is clinically significant.
So, you know, we would suggest that serious prejudice
would enure from that type of testimony.
-: Can I ask you to address the raw data issue?
-: Sure.
So we would submit, and I think it probably makes sense
to map out how it actually happened at trial.
Obviously, the Commonwealth has the right
to conduct whatever tests it deems necessary
in order to serve the court-appointed examiner's,
you know, larger evaluation.
In this case, there was-
-: But why does the Commonwealth get to enter
into the strategic decisions of trial counsel
in retaining a consulting expert
to determine whether any particular defense
should be marshaled?
-: In your average case, it wouldn't
where the defendant didn't ultimately decide
to proffer the defense.
But the court's concern-
-: The defense or that particular consulting expert?
-: So the defense.
And for the reasons that the court pointed up in Hanright.
And there was a twofold-
-: But Hanright was about treatment records.
This is about records created by trial counsel
in connection with figuring out whether or not
to marshal a particular defense.
I don't think Hanright is controlling here.
-: Well, Hanright's facts, I would agree, Your Honor,
concerned prior treatment records.
But Hanright did more than decide
the narrow question before it.
-: That's always the problem, isn't it,
when the court goes beyond what its narrow question is?
-: Well, the court created its interim records rule,
it's interim same records rule.
And then the court defined that rule.
And I think the court's, you know,
use of words is very important.
It didn't say that the court-appointed examiners
get the same records that the counsel elects
to provide its own expert.
It said it gets the records that counsel
should have provided to its own experts.
And it raised a dual concern
with counsel making non-professional judgements
about what records are forensically relevant
to give to their own expert
or to keep their expert in the dark about.
And the dual concerns were this.
-: Well, presumably, an expert,
if they're actually an expert,
can figure out what records they want.
And those records,
so long as the defendant is putting the expert up,
are freely available to the Commonwealth's expert as well
or should be.
-: Right, those as well.
But where there's a non-testifying expert consultant,
in the defendant's phrase,
those records also might be directly relevant
to the defense examiner's evaluation
and the court appointed-
-: [Justice Wolohojian] Do you have a case-
-: [Chief Justice Budd] I'm sorry.
I was just gonna say,
let's say we don't agree with you on that.
Isn't there a problem here for the Commonwealth?
-: I would submit no.
And to look at Sliech-Brodeur as a definite, you know, case
where something very different happened there.
And there were defense-generated materials,
200 pages worth, were disclosed on order of the judge
to the Commonwealth's expert.
That included not only the limited amount
that was at issue here,
which is just the raw testing data,
i.e., the defendant's answers to psychometric tests,
but rather also the expert's notes from interviews,
the interpretive notes from psychological testing results.
So there's a much broader, you know, subset of materials
of which the psychological testing raw data
was just a small part.
Even so, in that case,
the court said that a foundational reason
for the Commonwealth's expert's opinion
was review of those notes of the interviews.
And so there, there was a clear impact in the case.
Here, Dr. Hebben's opinion was based
on her own psychological testing results.
And that was essentially a tag on at the end.
And it wasn't emphasized in the Commonwealth's argument
or anything like that.
So it's a very different scenario.
-: I don't remember the closing argument.
Did the Commonwealth,
did the prosecutor raise that issue at closing arguments?
-: No, no.
And also, Justice Gaziano,
sorry, Dr. Kinscherff did,
and I'm not sure my brother said this.
But just to be clear, Dr. Kinscherff did not testify
to that intelligence testing difference.
-: Dr. Kinscherff did say, "I took it in consideration,
"the testing regarding..."
I think he said, "Hebben's testing regarding malingering."
-: [Attorney O'Sullivan] Hebben's testing, correct?
-: Hebben's testing regarding malingering.
-: Yeah, yeah, but he did not testify as to this difference
between the cognitive tests
that were taken of the defendant.
But if I could go back for a second
to the issue of how this sort of shook out.
Initially, it was requested by Dr. Hebben
to learn which tests were given for an important reason.
This was a 14-year-old.
There were few tests that were validated
for kids down to that age.
We needed to know which tests were done
to account for the issue of practice effects.
And so it was done in stages.
The Commonwealth first moved to learn which tests happened.
And then from that, after that,
she selected the test for which she would need raw data
and submitted in-camera an affidavit
to establish her forensic need for that.
And so it was a very limited data set that went out,
nothing like what was disclosed in Sliech-Brodeur.
-: Isn't that a contradiction though?
She said which tests and data she needed,
but then said she didn't use it.
-: So well, she needed to learn what testing she could do
and how to interpret those testing results.
The affidavit, which lays out her reasons for that,
which are sort of technical reasons of a neuropsychologist,
are set forth in her affidavits,
both the one that's not impounded
and the one that is impounded and sealed.
So, you know, I'd refer the court to those.
-: Well, she testifies,
"I gave I think it was three or four tests.
"These are the results."
And then she says, "In addition,
"he was subject to two IQ tests."
And essentially, he did fine on one
and he tanked the second one,
which is further evidence of malingering.
-: Right, it supported the idea of malingering.
But she also conducted four tests on her own
for the purpose of convergent validity,
which themselves totally separate from that
yielded a result of almost, you know,
100% positive prediction of malingering.
-: I guess you're settling on the fact
that essentially there wasn't any prejudice
to the defendant in this.
But just generally speaking, in a case like this with,
as you described a little bit earlier,
this really powerful mental health evidence,
how are we to define the outer limits
of what's fair discovery in the context
of these really complicated mental health defense cases?
Because this is only going to get more complicated.
The science is just going to get better and better.
How are we supposed to cabin this?
-: Particularly with regard
to defense-generated materials, Your Honor?
-: I think that's part of it, right?
Because if you are saying
that this was discoverable under Rule 14,
so what are the limits of fair discovery here?
-: So I would suggest that the court,
when it adopted a month after this trial,
its raw data rule came down.
You know, after Sliech-Brodeur, you know,
they invited the Rules Committee
to consider particularly the issue of raw data.
And it came down, it drew a line.
And the line it drew was the raw data testing results,
i.e., the words from the defendant's mouth
in response to these psychometric tests
go over to the other side.
-: If we adopt the mQTL interpretation of that,
that means raw data that supports
or were provided to a testifying expert, correct?
-: That's correct, yeah,
but I would submit that that would be wrong
and would rip a giant loophole into the court's rule.
And that could be dangerous both
for the effective assistance of defendants
because counsel would be making those judgements
in a non-professional way.
-: Well, counsel will be relying on consulting experts
who presumably would help counsel
make those informed decisions.
-: Yes.
-: I mean, the rule as interpreted
by the Commonwealth in this case
would discourage counsel from reaching out
to consulting experts for fear
of creating a record that might not be helpful
to the defendant.
-: Well, when the defendant ultimately does choose
to offer the defense,
with all that in mind, having done that investigation,
at the end of that investigation essentially,
what I don't think the court's ruling in Hanright allows,
or a fair reading of the rule,
the current rules of the reporter's notes,
is to keep your expert in the dark
about potentially relevant psychometric testing data.
-: But wouldn't the expert have the expertise
to determine the relevancy of tests that that expert needs?
Why do you presume that the testifying expert
would not figure out what tests that expert needs?
-: To your point, I think that the persons
making those relevance determinations
should be the experts and not counsel.
-: Right, and so if the expert who's testifying on behalf
of the defendant does not think that an IQ test
is something that he or she needs,
why would that test then go to the Commonwealth
if it was conducted by a different consulting expert?
-: Well, because we can't keep it in the dark from them.
'Cause they can't make the relevance determination
without knowing what it is and without seeing it.
And so that's our position,
and that's what we understood the court
to be saying in Hanright.
-: How does your position
coexist with the work product doctrine?
-: And this gets to the line
that answers Justice Georges' question
with respect to where they draw the line.
And the court's new rule, I think, draws the line
through the set of materials
that was disclosed erroneously in Sliech-Brodeur.
And it does it in the following way.
It cuts out interpretive notes of the opposite side expert.
It cuts out interpretive notes
about the psychometric testing results.
But it includes the raw data
as something that needs to be disclosed.
So that's the line that the court drew
a month after this trial.
And we would submit, these are hard lines to draw.
But I think it bears noting that the court,
and back to Justice Wendlandt's question
which I think is an important one,
the court considered a lot of materials
in deciding to adopt the rule it ultimately did
a month after this trial.
The Rules Committee selected a group of experts
in forensic psychology and psychiatry,
evenly split among those who are normally retained
by the defense and those retained by the prosecution.
And what came out of that was what should be part
of a forensically sound examination.
And in principle, you know,
they said some of the principles
that came out of that consultation
were that, in principle, there's nothing
that isn't relevant to the scientific inquiry
into the defendant's criminal responsibility
at the time of the crime.
It's not in the nature
of any legitimate scientific inquiry
to close yourself off to data
and to have other non-scientists making those determinations
of forensic relevance.
I think the court's rules,
I think the court's statements in Hanright,
and I think the court's, you know, the reporters' notes
that those rules make clear that those judgments
should be made by professionals
in the area of forensic psychiatry and psychology.
And so with that, I see that my time is up.
I'm happy to rely on my brief on the other issues
if there are no further questions.