Criminal JusticeEvidenceForensic DNA

New DNA Restoration Technology Helps South Korea Police Solve 33-Year-Long Murder Case

Due to advancements in DNA technology, a 33-year-long murder mystery has finally been solved. The most infamous serial killing case in South Korea, otherwise known as the Hwaseong murders (1986-1991), resulted in the death of 10 women and girls. The true killer, Lee Chun-jae (pictured below), admitted to 30 rapes and 14 murders, 9 of which were part of the Hwaseong murder cases.  

The Korean Zodiac Killer: Lee Choon-Jae and the Hwaseong Serial Murder –  Serial Killer Shop

What instigated the confession was a recent discovery in DNA restoration technology. This new forensic advancement has allowed police and other government agencies to identify DNA that either could not be identified at the time it was processed or even after long periods of time, as in this case. The South Korean Police conducted a comparison between samples of DNA from a victim’s underwear with the DNA database of prisoners at the penitentiary. The outcome identified Lee as the culprit, who was already facing a life sentence for the last 2 decades for his sister-in-law’s rape and murder. He told the court that he “was surprised he wasn’t caught earlier,” (CNN). Lee also told reporters that he did not try to hide his crimes. Though detectives asked him questions, they were always about other people. The DNA results also confirmed the innocence of the man arrested for Lee’s crimes.  

In 2008, a person named Yoon, whose full name cannot be released for legal reasons, was freed after spending 20 years in prison for the rape and murder of a 13-year-old girl, a murder victim from the Hwaseong cases. Last year, the DNA evidence was released, thus confirming Yoon’s innocence. Yoon was granted a retrial, and his lawyers are currently in the process of overturning his conviction. He told CNN, “I want to clear my false accusation, and I want my honor back.”  

South Korean investigators examine a crime scene in Hwaseong, South Korea in 1993, following a spate of murders.

Suffice it to say, at the time of the murders, there were some discrepancies in the investigation. The Gyeonggi Nambu Provincial Police Agency Chief, Bae Yong-ju, admitted to ABC News that Yoon was mistreated by the police to the point where he made a false confession under coercion. The police involved in the case have issued a public apology to Lee Chun-jae’s victims, their families, and Yoon, a victim of the failed police investigation. Yoon, outraged from being subjected to years of injustice, aspires to continue his life as a free and innocent man. 

So, what happens next? Lee Chun-jae will not be facing prosecution for the Hwaseong murders. The statute of limitations on the case has expired. However, he will continue to live out the rest of his life in prison for the rape and murder of his sister-in-law. Thanks to advances in DNA technology, grave mistakes, like those found in this case, will hopefully be reduced.  

ComputersEmploymentHuman ResourcesOrganizational Development

The Future of the Office in a Post-Pandemic World

As we endure almost ten months of living through a pandemic, we can all agree COVID-19 has brought about various changes and challenges. The pandemic has affected every aspect of daily life. Worrying when items will be restocked in local grocery stores, wondering when the next stimulus check will arrive in the mail, and keeping ourselves and families safe from the virus have been at the forefront of everyone’s minds. Although millions of jobs have been lost this year, people who are lucky enough to either have found or kept his/her job now deal with working-from-home. Because the workforce is now conducting a 180 towards online practices, the future of offices in a post-pandemic world is pending. 

According to Nicholas Bloom, a Stanford Economist, “we’re in the middle of a structural, seismic shift,” in the workplace. Working-from-home is not a new concept, there are jobs that are designed specifically for remote locations and travel. The problem is millions of people are now forced to adapt to new working conditions in order to slow the spread of the virus, putting the world’s technological advancements to the test. To ensure productivity through a tumultuous time, businesses are instantly tasked with reimagining the role of work and creating a positive environment for their employees. Both individuals and organizations face benefits and drawbacks from this uncontrollable shift.  

Some employees love the working-from-home lifestyle. For busy individuals or employees who have families, working-from-home creates flexibility in his/her work schedule, allowing time to complete daily errands and appointments. A surprising “36% (of employees) would choose it (remote work) over a pay raise,” a statistic from Global Workplace Analytics. Working-from-home also allows people to save money on clothesgas, and food costs that they would otherwise need for the workplace. Lastly, working remotely does not necessarily mean people are tethered to their homes. Computers and smartphones allow people to work from any location, including coffee shops, parks, and even planes. Having the choice of when and where you work is the appealing aspect of working remotely.  

While working from home has been successful for some people, it has caused great strife for others. Merging the personal and professional components of life is not an easy feat. This sudden disruption of daily routines adds physical, mental, and emotional anxiety. For those with families, balancing the work load may be difficult with children under foot. To add, the lack of in-person communication creates a sense of isolation and loneliness, which could decrease productivity. To combat these hardships, employees and employers who work-from-home must dedicate some time to maintain his/her health and wellness by exercising, connecting with family and friends, and finding activities that bring happiness to the day.  

Although companies who adopt the work-from-home method implement different policies, the general pros and cons seem to be consistent for most businesses. According to Global Workplace Analytics, “A number of states, including Virginia, Georgia, and Oregon offer financial incentives for businesses to adopt telework.” The benefits are not limited to financial incentives. States such as Arizona and Connecticut offer free training to businesses willing to convert to remote work. Also, working from home is environmentally friendly. The rate of office equipment energy consumption is twice that of energy consumption from a person’s home. Businesses save money by participating in the work-from-home method and improving the conditions of the planet one step at a time. Finally, remote work is slowly increasing the hiring pool because it provides geographic diversity that would not have been possible pre-pandemic. 

For CEOs, managers, and other team leaders within an organization, being unable to convene at an office can be difficult. The absence of a physical space forces people on all levels of the organizational hierarchy to interact through digital means. Face-to-face communication has been limited to video conferences on sites such as Zoom, Skype and Google Hangouts. Projects, presentations, sales pitches, settlements, and other types of meetings are conducted through a computer or phone, which increases the chance of miscommunication and technological difficulties. This quick transition to telework also increases management mistrust.  As many as “75% of managers say they trust their employee, but a third say they’d like to be able to see them, just to be sure,” stated by Global Workplace Analytics. Working from home provides a flexible schedule for employees, but it is also their responsibility to accomplish the required tasks and not abuse the time allotted to do so. Companies must make strides to embrace remote work as part of the new norm by setting and measuring goals for employees.  

Ultimately, there are advantages and disadvantages to working from home and the office. Many companies adopt the hybrid model where employees do both, and this is most likely what the future holds in store for the modern-day workforce. For both businesses and employees, the balance between work and personal life has become a priority during the height of the pandemic. The work-from-home model not only relieves some of the stress imposed by the pandemic but allows people who work in non-online industries, such as healthcare and construction, to safely tend to their job. Whether businesses go back to the office or not, it has been reassuring to know that many industries and individuals have the technological capability and resources to work from home during a global pandemic. 

AdvertisingInformation & Communication TechnologySearch Engine OptimizationSEO

Google Antitrust (Part 1): Search Engine Optimization, Or Monopolization?

On October 20th, 2020, The United States government, along with several states (AR, FL, GA, IN, KY, LA, MS, MO, MT SC, and TX), filed an antitrust lawsuit against technology company, Google LLC, for illicitly continuing monopolies in general search services, general search text advertising, and search advertising. Google has been accused of maintaining control of these markets through exclusionary practices, which prohibits the expansion of competition throughout the internet technology industry. The basis for this accusation is Google’s alleged violation of Section 2 of the Sherman Act, 15 U.S.C. § 2, which bans monopolies in trade and commerce. Along with previous antitrust cases, it is important to review the nature of the lawsuit. Since Google is being accused of antitrust in several areas, the case’s foundation will be broken up into two sections.

1. General Search Services: Within the last twenty years, Google has transitioned from a new start-up to one of the richest companies on Earth, making as much as $160 billion a year. Because search engines are dispersed throughout a variety of devices, such as smartphones, tablets, and laptops, user search queries in the United States have surged in the last decade. Search engines are the most effective when they are set as the default. For example, if a consumer uses a Dell, they are more likely to have Bing as the default search engine, unless the user changes it to Google, Firefox, etc., which rarely occurs. In addition, Google pays billions to a plethora of distributors spanning from device manufacturers, wireless carriers, and browser developers to set their search engine services as the default. Because Google pays companies like Apple, Motorola, Mozilla, AT&T, and UCWeb to secure their search engine as the default, along with the lack of users changing their default engine themselves, the lawsuit alleges the deals made by Google were intended to eliminate competition among other search engine providers. In fact, 90% of all generated-search engine queries have been searched through Google. It does not cost anything to search online. So, it begs the question: how were they able to make billions of dollars?

Google Search adding site favicons to every result - 9to5Google

2. Search Advertising/General Search Text Advertising: Google utilizes consumer information and search queries to sell advertising. Since Google is the default search engine for various devices, they receive almost $40 billion from advertisers to place ads on their search engine results pages (SERP). Because Google receives 90% of search engine traffic (that’s billions of eyeballs on tailored ads), these deals create difficulty for smaller rival search businesses to compete and incentivizes advertisers to stay with Google rather than switching to another company that cannot perform on such a grand scale. The services Google provides require intricate algorithms which collect vast amounts of data used to tailor content based on a user’s search query. For example, if you search holiday discounts for a Keurig coffee maker, you might see an ad for the exact search entry two days later, which is what advertisers want. These deals ultimately engender a continuous cycle of anticompetitive behavior from Google and thwart potential competition, giving the United States government and various states another reason to issue an antitrust lawsuit.

With the nature of the case in mind, Google’s ever-growing power is concerning. Is Big Tech too influential in the economic and advertising sectors? Shouldn’t consumers be aware of Google’s seemingly anticompetitive tactics? As the world continues to enter a digital age, how will this case change the ways in which internet companies conduct business ventures? Stay tuned as our Experts.com Members give their input on the subject in Part 2: coming soon.

Expert WitnessUncategorized

Fake Police Officer Scam Targeting Expert Witnesses

Mental health professionals are being targeted by a failure to appear scam. The first scam we’ve seen targeting expert witnesses.

This is the first blog post I’ve written that falls directly into the “public service announcement” category. Yesterday morning, I saw an article by the Washington Post where the author describes a telephone-based scam, where perpetrators pretend to be police officers.

The story grabbed my attention because the suspects have a little deeper knowledge about prospective victims. They know enough to know you are likely to act as an expert witness.

The caller, impersonating a police officer, claims the victim failed to appear at a court hearing in which they were subpoenaed to testify as an expert witness. The criminal claims to be an officer and provides the real name of an an officer employed at the local law enforcement agency, which can be confirmed online. The victim is told they have a civil option to pay a fine and avoid jail time.

As recounted in the Washington Post article, “The problem, the alleged detective stressed, was that because of the coronavirus, people couldn’t come into police headquarters to settle such matters. He said she needed to purchase “MoneyPak” electronic cash transfer cards — at one point transferring the call to his purported supervisor, who also had assumed the name of a real Montgomery officer.”

You need to start asking questions at this time! Have them send you some documentation in the mail. Have them personally serve you the paperwork. Do not get frightened by someone claiming to be an authority figure over the phone. That’s their goal! Get you nervous and acting irrationally.

The option to pay a fine should immediately get your attention. Not to mention this silliness of paying with “electronic cash transfer cards.” There is no reason you shouldn’t be able to pay a fine with a check or credit card.

If you are accused of missing are accused of missing a court hearing. You should know that police officers, detectives, investigators, are not usually those responsible for collecting fines. Generally that’s a different department.

Scam Has Been Taking Place for a While:

Although this fake police officer scam targeting mental health professionals, took place in Maryland. However, in preparing to write this post, I did a little research and found that the Los Angeles Police Department (LAPD) had also warned about this type of a scam back in 2019. Here is their press release on the subject. The LAPD specifically mentioned therapists and psychologists as more likely to be targeted:

“It should be noted that many of the victims are current/former employees in the mental health industry. In each of these incidents, the caller claimed that the victim missed an appearance as an expert witness in a court case. Therapists and psychologists should particularly beware of the scam. You can get help determining the authenticity of a call by contacting your local police station.”

CommunicationPoliticsPsychology

First Presidential Debate: Even Experts Say It Was “Painful to Watch”

To say 2020 has been a whirlwind of a year would be an understatement. After enduring a global pandemic, the arrival of murder hornets, Australian and West Coast wildfires, and so on, it appears the world can’t catch a break. For the United States in particular, politics has added fuel to the fire. The seemingly exhausting nature of the country’s current political environment is one that cannot be ignored, as the election in November is quickly approaching. The future Commander in Chief of the nation is in the hands of voters from two extremely divided political parties, the Democrats and Republicans. However, the outcome of the recent presidential debate lacked the information needed for voters to make an important decision: who they want to take the Oval Office.  

On September 29th, the first presidential debate for the 2020 election took place at the Sheila and Eric Samson Pavilion in Clevland, Ohio. Assuming the election will be a close race, this has certainly been the most anticipated debate in American history. Republican nominee and current President of the United States, Donald Trump, and Democratic nominee and former Vice President under the Obama Administration, Joe Biden, battled it out face-to-face on the debate stage with Fox News Sunday anchor, Chris Wallace, as the moderator. Although the set topics included the coronavirus pandemic, economy, systemic racism, and healthcare, anything but those subjects were addressed. This may not have given voters much to work with, however, linguistspsychologists, and body language experts had a field day analyzing the candidates’ performances. Let’s discuss the verbal and nonverbal cues that made this debate, in the words of body language expert, Patti Woods, “painful to watch.”  

The policies Trump and Biden represent are not the only factors that distinguish these candidates. Both nominees exemplified different behavioral approaches regarding how they answered Wallace’s questions and responded to their opponent. Some experts believe Trump’s strategy was based on anger. Woods told The Independent, “Anger is the strongest persuasive emotion… His choice to be on the attack, nonverbally he did that very specifically by looking at Biden when he was interrupting and talking over him and turning his upper body toward him.” She also claimed the painful aspect of the debate was Trump’s bully-like behavior, which is not typically seen during debates of such stature as those held for elected officials. Trump’s interjections are also an example of Face-Threatening Action. Brian Larson, an associate professor at Texas A&M University School of Law, told Inverse, “It’s (Face-Threatening Action) a specific type of interruption intended to diminish social power.” The purpose of these interruptions is to not only accelerate the pace of the debate, but to cause Biden to retract, clarify, and correct statements. Other experts believed Trump’s demeanor made him look like a strong leader. Lillian Glass, a body language expert, told Boston Globe, “His body movements matched his emotions and what he had to say… there was not a lot of levity.” 

Biden, on the other hand, had a much more welcoming and laid-back approach according to experts. Woods stated that Biden’s decision to look at the camera and address the audience with a smile could be seen as self-control. Other experts, like Chris Ulrich, a behavioral body language expert, believed his direct statements toward the camera was his attempt to make a connection to voters and establish a “transference of power” (Boston Globe). Larson noticed Biden’s language was casual. For instance, when the debate started, Biden greeted President Trump by saying, “How you doing, man?” This happened again when Trump interrupted Chris Wallace and Biden exclaimed, “Will you shut up, man?” According to Larson, Biden’s informal language helped abate the perceived power dynamics that were present due to Trump’s interjections and his role as President. Glass thought Biden’s decision to directly speak to the viewers was inappropriate. She believes debaters should be looking at their opponent or the moderator. Based on this notion, Biden’s actions could have displeased many viewers.  

First Trump-Biden debate ends with many insults, little substance | WITF

So, based on body language alone, which presidential candidate won the first debate? Well, every expert has their own opinion and interpretation of what occurred. According to Glass, Trump won the debate. Trump’s disposition was in sync with his body language. In moments when he needed to be serious, his physical stance and gestures correlated with his verbal statements. Although it reads as aggressive and obnoxious, Trump was unwavering in his decisions to argue, interrupt, and defend. Glass felt Biden failed to present himself as a leader because his gestures were more rehearsed. In moments when Trump refuted him, for instance, when the Green New Deal was discussed, Biden would smile during confrontation and used coached motions like pinching his thumb and finger to demonstrate a point. However, Woods suggests that Biden won the debate. Unlike Trump, Biden established a connection with voters by making direct eye contact with the camera. He explained his policies and plans to the American people, the 328 million citizens responsible for electing the 46th President of the United States of America. Because Trump was constantly interrupting Biden, along with his lack of rapport with viewers, he was perceived as a bully.  

Now that America’s disappointment in the first presidential debate is common knowledge, and considering all divisive information has arisen in the meantime, it will be interesting to see how effective Trump and Biden’s communication skills will be during the final debate this Thursday, October 22nd, 2020. 

FraudSecurities

Nikola: The Next Tesla, Or A Fraud?

Nikola founder, Trevor Milton, recently resigned from his position as Executive Chairman of the Board after facing accusations of fraud. Before delving into the fraud allegations, it is important to understand the genesis of the company, which adds to the gravity of the situation. You may recall, last week we delved into the upcoming fraud trial for former Theranos CEO Elizabeth Holmes. We wanted to continue covering this topic of high profile fraud.

Milton built Nikola in 2014 hoping to reform the transportation sector. His plan in accomplishing this goal was to create mainstream battery-electric and hydrogen-powered vehicles from state-of-the-art zero-emissions technology. Establishing a company based on the same inventor and mission as another company, Tesla to be specific, is not the only suspicious act Milton has committed.

According to Business Insider, on September 10th, 2020, a report published by the Hindenburg Research investment firm contains evidence of Milton providing false statements about his products. More specifically, the report accuses Milton of exaggerating the viability of his products and thus misinforming investors, partners, and consumers. An example of these fraudulent statements is based on a video demo advertising Nikola’s debut semi-truck, the allegedly hydrogen-powered “Nikola One.” The report revealed an exchange of text messages from a Nikola employee developing a plan to roll the vehicle down a hill to manipulate the “high-speed” aspect of the truck. Nikola diverted from the issue by stating the prototype was discarded and therefore irrelevant. To add, they thought the Hindenburg report was released as sabotage considering Nikola’s partnership with General Motors was finalized two days prior. It should be noted, Hindenburg is a short-seller, so they were interested in seeing Nikola’s stock price decline. (Photo Source: Twitter @HindenburgRes).

The company started trading on June 4th, after a reverse merger with VectoIQ. VectoIQ is a publicly-traded special purpose acquisition organization led by Stephen Girsky, the former Vice Chairman of General Motors. Before the Hindenburg report, Nikola was performing well in the stock market. A CNBC article stated that shares of Nikola Corporation increased by 20% at the end of the month. According to the closing price, Nikola was valued at almost $28.8 billion, making the corporation more valuable than Ford. However, Nikola’s stock market surge stemmed from Milton’s announcement of the company’s new battery-electric fuel-cell truck, the Badger. He followed his announcement confirming the company’s partnership with General Motors, a necessary move to get the new truck to market. Nikola did not anticipate to generate income until 2021, but investors were willing to provide a hefty sum for promising vehicles.

Despite the incident that led to his resignation, analysts think Milton’s exodus is a positive and necessary step for the progression of both Nikola and General Motors. Whether the motive for resigning was personal or strictly business, with Milton absent there will be less negative publicity.

What does this mean for Trevor Milton? Along with his resignation, he agreed to relinquish $166 million of equity and a two-year $20 million consulting contract. However, Milton gets to possess $3.1 billion in stock due to a recently finalized separation agreement. He agreed to assist the corporation as an unpaid consultant, but his role in company operations and decision-making are paused for at least three years. In the aftermath of Milton’s resignation, Nikola’s shares decreased significantly in premarket trading, opening Monday, September 21st, at $24.97, the lowest opening price since the company went public in June. It ended the day, closing down 19% at $27.58. As he continues to defend himself against the Hindenburg Research report, Milton’s legal expenses are paid for by Nikola as long as they receive copies of evidence.

With Milton out of the picture, Stephen Girsky has been appointed chairman of the board. General Motors’ main priority is to plan production of the battery-powered Badger truck starting late 2021 or early 2022, ultimately continuing the partnership with Nikola. Although General Motors bears the responsibility for its creation, Nikola will remain in charge of marketing and selling the product upon its release. Because Nikola lacks the cushion of intellectual property and revenue, they heavily rely on the investor’s contribution through the stock market. Nikola’s tarnished reputation requires damage control in order to maintain enough revenue until the Badger is released.

UPDATE: Now that time has passed from Nikola’s public fraud incident, the aftermath has unraveled. As of Monday, November 30th, 2020, General Motors decided to remove themselves from their deal with Nikola, thus relinquishing their $11 million equity stake. Because Nikola failed to live up to their “fast-paced” evolution of electric and hybrid vehicles, General Motors believed it was in their best interest to maintain distance for their future business ventures. Since the manufacture of Nikola’s hydrogen-powered Badger pickup truck relied on a partnership with an automaker, the vehicle’s production has been paused. According to The Verge, the two companies will cooperate to bring, “GM’s Hydrotec fuel-cell technology into Nikola’s Class 7 and Class 8 zero-emission semi-trucks for the medium- and long-haul trucking sectors.” With Nikola partly out of the picture, General Motors can focus on their multi-billion-dollar pursuit for a future involving all-electric vehicles. This requires the automaker to invest $2.2 billion to reconfigure their vehicle assembly plant and create the development process for its modular battery-electric platform, Ultium. They announced last week their $2.2 billion electrification investment will become $27 billion through 2025.  

UPDATE – 07/29/2021

We sort of knew it was coming. The grand jury had been convened. Mr. Milton had a lot of very public statements that were likely false or misleading. So, it was no surprise today when the grand jury indicted him on three counts of fraud. Here’s an update on the matter from CNBC.

Criminal LawExpert WitnessForensic PsychiatryFraudUncategorized

Elizabeth Holmes Fraud Trial: Mental Disease & Defect Defense

Before Nikola and the Trevor Milton scandal, there was a prominent blood-testing startup called Theranos. Its founder, Elizabeth Holmes, currently faces a criminal fraud trial.

If you’ve been tuning into business news recently, the latest scandal with Nikola, a electric-powered truck manufacturer, and its founder, Trevor Milton, is no surprise to you.

For those who have not been following along, a quick summary is as follows: Nikola (NKLA) recently became a publicly traded company alleging they had hydrogen fuel cell (battery) technology that would revolutionize the trucking business. The stock did well after IPO. Nikola then did a multi-billion dollar deal with General Motors. The stock went higher. A few days after the GM deal, a short-seller released a report that accused them of a being an intricately constructed fraud. The founder, Trevor Milton, contested the accusations on social media and asked for time so he could rebut all of the allegations. Within a couple of days he went silent, was removed as executive chairman, and deactivated his social media accounts. It has been widely reported that both the SEC and DOJ are conducting investigations related to his actions and claims as founder and executive chairman.

I share that story because some news agencies have suggested Trevor Milton’s story is similar to that of Theranos founder and CEO, Elizabeth Holmes. Ms. Holmes is now facing a criminal fraud trial and she is the focus of our our post today. Stay tuned next week for some further discussion on the issues surrounding Nikola.

Background:

Elizabeth Holmes founded a privately held biotechnology company called Theranos. The company intended to revolutionize blood tests, with just a drop of blood. No more needles and vials, just a small drop of blood, and the tests results would be available rapidly. Ultimately, they failed to deliver tangible results and led consumers to believe false promises. After receiving more than $700 million in private investment, the company began falling apart.

In Spring 2018, Holmes was charged with fraud by the SEC, as reported by Bloomberg. This being a civil action, Holmes settled it without admitting any of the allegations. The settlement required her to relinquish her shares to the company and abstain from being an officer or director of a public company for a period of 10 years. There was also a fine, according to Barron’s. To the best of my recollection, Ms. Holme’s settled with the SEC on the same day she was charged.

In the Summer of 2018, the US Attorney’s office filed charges against Holmes’ for conspiracy and wire fraud, as reported by CNN. This criminal indictment is the inspiration for this blog post.

For more than 2 years, we’ve followed the developments in the criminal prosecution of Elizabeth Holmes, wondering if it would lead us to an interesting analysis from an expert witness perspective. In September of 2020, I found this article from the New York Daily News. It seems Ms. Holmes is preparing for the use of a “mental disease or defect” defense.

More specifically, the article from the New York Daily News, indicated the judge had assigned a neuropsychologist and psychiatrist to conduct a two-day, 14 hour evaluation of Ms. Holmes. Additionally, this evaluation is to be recorded. Now, I had never heard of psychological evaluation being this long and I worked in the mental health field for years before joining Experts.com.

To the best of my knowledge, I had not heard about the “mental disease or defect” defense since law school. I remembered it as a mitigating factor to a crime. Something we learned about when we learned about defenses and factors related to defenses.

So, I did what I usually do with these blog posts, and reached out to the experts. This time, I thought it would be good to get insights from a federal public defender and a psychiatrist.

First, let’s see get a view of the legal opinion…

Analysis from Federal Defense Attorney, Diego Alcalá-Laboy:

Diego Alcalá-Laboy is a criminal defense attorney with his own practice Defensoria Legal, LLC, in Puerto Rico, where he represents federal criminal defendants and advises startups. He is also an adjunct professor at the Inter-American University, School of Law and teaches the Federal Evidence and Federal Criminal Procedure courses at the University of Puerto Rico Law School’s Federal Bar Review.

Nick Rishwain: Why would one use a defense of “mental disease” and what impact might it have on the case?

Diego Alcala: A prosecutor must prove that a defendant intended to commit an act (mens rea), and that he committed the act (actus rea). And most crimes require that the defendant acted intelligently, knowingly, or willfully, and on some occasions recklessly or negligently. The type of “mens rea” a crime requires is defined by Congress and the interpretations given by the courts. On some occasions, an offense may not even require a mens rea, such as with strict liability offenses.

Crimes may have different elements, and a prosecutor may have to prove that the defendant had the required mens rea to commit each element of the offense. If the prosecutor cannot prove this, the defendant may be found not guilty.

Congress also recognized that a defendant may show that because of a medical defect he was unable to appreciate the nature and quality of his or her acts because of a severe mental disease or defect. After the John Hinkley trial, Congress amended its statutes and eliminated the affirmative defense of diminished capacity but allowed a defendant the possibility to attack an element of an offense because of a mental condition.

This is a lot harder than it sounds. The Courts are the gatekeepers of the any scientific testimony intended to be presented at trial. Therefore, whenever a defense of mental defect is offered by a defendant, the Court must ensure that the evidence offered is grounded in sufficient scientific support. This scientific evidence then must be scientifically sound and must also show that the medical condition negates mens rea of an element of the offense. So, a defense of mental defect, if grounded on scientific basis, and shows that it negates an element of the charged crime, will clear the defendant from a particular case.

NR: Have you ever seen a “mental disease” defense used in a criminal fraud matter?

DA: I have never seen a mental disease defense presented before. But I did find some cases where the defense tried to introduce this type of evidence but was ruled inadmissible because it did not satisfy the Court that the proffered evidence: a) was based on sound scientific principles, or b) even if it was based on sound principles, it failed to negate mens rea for the element(s) of the offense. In fraud cases, a defendant is accused of committing some type of false representation. It follows that the evidence of mental disease must show that if his/her medical condition can be logically connected to a subjective belief that his/her assertions were not false, baseless, or reckless vis-a-vis the truth.[1] I have not found a fraud case in which the defense has been able to overcome this burden.

NR: If it is established that Elizabeth Holmes is suffering from “mental disease,” can she still be held criminally liable for her actions?

DA: If a defendant presents a successful mental disease defense, the federal law states that she will be found not guilty. But a finding of not guilty does not necessarily mean that she is free to leave. A determination of not guilty by reason of mental defect will then place a defendant in a “suitable facility” and may be release only after showing that she is no longer a threat.

NR: Does a “mental disease” defense have much success in federal criminal trials?

DA: As mentioned, I have not found a successful case, and primarily the difficulty lies in the very narrow type of cases that may meet the discussed admissibility standard. Even if she can get this evidence into trial, it is still up to the jury to accept this defense.


Now that we have some idea of the application of the law for fraud in federal criminal cases, we need to review the science as outlined by Mr. Alcalá.

Analysis from Forensic Psychiatrist and Expert Witness Dr. Sanjay Adhia:

Dr. Sanjay Adhia is triple-Board-Certified in Forensic Psychiatry, Brain Injury Medicine, and Psychiatry. Dr. Adhia serves as a Psychiatrist and Brain Injury Medicine specialist at TIRR Hermann Memorial, a Rehabilitation and Research hospital treating those with brain and spinal cord injuries and psychiatric elements of their injury and recovery. In private forensic practice he conducts Independent Medical Examinations (IMEs), and renders his opinions by report and testimony. Dr. Adhia serves on the faculty of McGovern Medical School at UTHealth. You can visit his website at: forensicpsychiatrynow.com.

Nick Rishwain: According to the psychiatric community, what constitutes “mental disease” and “mental defect?”

Sanjay Adhia, MD: These are more legal terms rather than actual formal psychiatric definitions.

According to Merriam-Webster, the legal definition of “mental disease” is “an abnormal mental condition that interferes with mental or emotional processes and internal behavioral control and that is not manifest only in repeated criminal or antisocial conduct”.

Examples would include Schizophrenia, Schizoaffective Disorder and Bipolar Disorder which are considered Severe Mental Illness (SMI). These conditions may lead to psychiatric hospitalization. The conditions maybe associated with and loss of touch with reality and a lack of volitional control.

“Mental defect,” on the other hand, is defined by Merriam-Webster as a “an abnormal mental condition (as mental retardation) that may be of a more fixed nature than a mental disease”.   “Fixed” disorders would include Intellectual Developmental Disorder (IDD; formerly known as mental retardation), Autism and Brain Injury. According to this definition, Antisocial Personality Disorder (ASPD) would be excluded. ASPD is marked by a tendency to lie, break laws, and act impulsively. It shares some features with psychopathy or sociopathy. A number of states do not permit the use of ASPD in the insanity defense.[2] Allowing ASPD would have unintended repercussions. For example, it could potentially permit a defendant like Ted Bundy or Jeffrey Dahmer to avoid prison.

NR: In the court order, it limits the evaluation of Ms. Holmes to a 14 hour, 2-day, psychiatric examination. Is this out of the ordinary in a criminal matter?

SA: There is a wide range of exam times in criminal cases. It would depend on a variety of factors including the type of case, the jurisdiction, the funding available and the severity of the charge. Assessment time in a misdemeanor will not be identical to a capital case. Ms. Holmes’ case is not a capital case, but it helps to understand differences in how long the examination might take. The exam time in a Competency to Stand Trial for a misdemeanor trespassing case would likely be under two hours. I have seen some examiners spend 30 minutes for the interview in such cases. The other extreme would be Capital cases which could go over 8 hours or several days; this is especially true if neurocognitive testing is required, which can take an entire day.

Again, in a capital case the threshold and the stakes are very high—especially in death penalty cases that often go to the appeals court.

In misdemeanor cases, you may have a single mental health expert and the findings may be accepted without the need for an opposing expert. In Capital cases, the defense itself may retain several mental health and other medical experts (i.e. Fetal Alcohol Syndrome experts). In the Holmes case, the 14 hours is to be shared between a forensic neuropsychologist and a forensic psychiatrist.

As it is a high-profile case, it is possible that the court may allow additional funds or there maybe a willingness of the expert to work within a budget.

It is my experience that the examination in insanity cases take more time than other types of cases as you have to elicit a detailed account of the crime from the defendant and then determine the mental state at a time in the past and consider malingering (lying for secondary gain—like a lesser sentence). I suspect in the Holmes case, it is likely the charges are not limited to one circumscribed incident so it could take additional time. It is worth noting that time spent reviewing records and preparing a report could exceed twenty hours or more.

NR: What information might you need to establish or rebut an insanity defense?

SA: In addition to interviewing the defendant, it would be helpful to review medical records, legal records along with police records and videos. I often will interview collateral informants as well. In Ms. Holmes’s case there maybe, media accounts, if admissible, as well as financial records and corporate documents. Of course, an expert would review the other expert witness reports. Records in a violent crime could include an autopsy, or blood splatter expert reports, for example. In the Holmes case, there may be a forensic accounting or fraud expert report.  Other sources of data could include polygraph testing, school records and employment records.

NR: In the Holmes case, the defense has retained a trauma expert. Is it common to successfully assert an insanity defense in cases of PTSD?

SA: Insanity defenses are more commonly associated with other diagnoses that are considered to be more severe forms of mental illness such as schizophrenia, bipolar disorder and IDD because they have a different impact on decision-making and regulating behavior. Although many individuals with PTSD do suffer with severe symptoms, they are generally able to maintain awareness of the nature of their acts and appreciate the wrongfulness of such acts. In jurisdictions that allow for the volitional prong, individuals with PTSD are generally considered to be able to behave lawfully. Of course, there are cases where PTSD is successfully asserted as an insanity defense.[3] In cases where the defense attorney realizes the PTSD does not lend itself for an insanity defense, they may successfully utilize it for sentence mitigation.


[1] United States v. Bennett, 29 F. Supp. 2d 236 (E.D.Pa. 1997), aff’d 161 F.3d 171, 183 (3d Cir.1998), cert. denied, 528 U.S. 819, 120 S. Ct. 61, 145 L. Ed. 2d 53 (1999)

[2]Does A Psychopath Who Kills Get to Use the Insanity Defense? NPR, 8/3/16, by NATALIE JACEWICZ

[3]PTSD as a Criminal Defense: A Review of Case Law by Omri Berger, Dale E. McNiel and Renée L. Binder; Journal of the American Academy of Psychiatry and the Law Online December 2012, 40 (4) 509-521;

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Computer SecurityComputersInformation & Communication TechnologySocial Media

TikTok: Is It The Next Cyber-Security Threat?

TikTok has been the most downloaded app globally in 2020. Although it has existed since 2018, TikTok surpassed 2 billion downloads back in April, during the apex of the new socially-distanced reality engendered by the pandemic. The ability to share and create content such as comedy skits, dance challenges, and lip-syncing clips, has appealed to various age groups around the world, especially teenagers. However, TikTok has been at the center of controversy for raising cyber security concerns not just here in the United States, but around the world. 

The problem with TikTok is twofold. The first issue is the app is owned by a Chinese company called ByteDance. Because ByteDance is not American-based, it does not follow U.S. federal and state consumer privacy laws. TikTok announced the data collected by American users is backed-up in Singapore, which is not subject to Chinese law. Though true, it is possible the Chinese government could pressure ByteDance to relinquish its user information. 

Second, TikTok has a large accumulation of data related to the types of videos Americans watch and post. Because it has turned into an important platform for political activism, people are worried the Chinese government could influence public opinion and control speech. For instance, according to both The Guardian and The Intercept, last year, TikTok company officials told their employees to censor content considered sensitive to Beijing. TikTok claimed their policies were outdated when the reports were released. As a result of this incident, they established a “transparency center” so security and technology experts from around the world can observe their policies. 

Despite TikTok’s official statement, President Donald Trump issued an Executive Order in August declaring the prohibition of all business with ByteDance. Unless ByteDance announces a plan to sell TikTok, the app will be banned on September 29th, 2020. Several American agencies and companies, such as the U.S. Army and Wells Fargo, have been proactive, requiring servicemen and employees to uninstall the app in response to these security concerns. Other countries, like India, have followed suit, banning the app altogether. 

Many people, including computer security experts, believe banning the app in the United States would be an extreme course of action. Not only would it invite questions about censorship in a free country right before an election, but it would affect various companies here in the U.S. who use the platform for marketing purposes. A solution technology experts have mentioned is to implement policies for protecting consumer privacy and measures to minimize data misuse from companies around the world. Currently, with the exception of a few state laws, the responsibility of American privacy and data sharing belongs to companies such as TikTok, Facebook, and Twitter. 

On September 14th, 2020, ByteDance accepted Oracle’s proposal to be their new technology provider. This means Oracle would be held accountable for protecting all user information collected through TikTok. Although this deal is pending approval by the U.S. government, this would keep businesses invested in TikTok afloat and allow up to 100 million users to continue posting creative content. Tresury Secretary, Steve Mnuchin, told CNBC that the government will be reviewing the proposal this week, as their top priority is to keep American user data from the Chinese Communist Party.   

Four days later, the U.S. government announced the removal of TikTok and fellow Chinese app, WeChat, from American app stores supplied by Apple and Google. Distribution, updates, and maintenance will be expelled for purchase unless the Trump administration, TikTok, and Oracle can close a deal by September 20th. Commerce Secretary, Wilbur Ross, told Bloomberg WeChat would be shut down for practical purposes, but Americans could still use the app for payments in China and talk to loved ones overseas. He added TikTok’s official shut down is scheduled after November 12th if the deal with Oracle falls through.  

On Monday, September 21st, 2020, President Trump announced his approval of the deal between Oracle and TikTok. As a result of the ongoing proposal, Oracle and Walmart will share a 20% stake in TikTok Global, a new company headquartered in the United States. ByteDance will own 80% of TikTok Global and allow Oracle to review its source code. Ceding algorithms and other technologies was not included in the deal. Allowing Oracle to review the source code is still not fool-proof as ByteDance could easily instruct the code to send data back to China in secret. Trump’s approval has postponed the ban for now, but the removal of TikTok through American app stores is still in effect. As relations between the United States and China remain tumultuous, the final outcome of the TikTok debate remains to be seen. 

DepositionExpert Witness

Increasing Use of Remote Depositions – Expert Witness Best Practices

Remote depositions appear to be growing. As an expert witness, what should you do to improve your presentation and performance to maintain credibility and authority?

As more professionals work from home, remote depositions will continue to rise in popularity and usage. But, the extent of the rise is hard to tell since there is a lack of any hard data on the subject. One of our contributors, Isaiah Leslie, has provided some anecdotal information on the subject. We know court hearings and administrative meetings are taking place remotely. In an article from the Fort Worth Star Telegram, we learn about what may be the first remote jury trial in the U.S., which occurred in Texas. With an increase in remote hearings, depositions, and even jury trials, we wanted to give you some information about presentation and performance as an expert witness in remote deposition.

There have been an abundance of articles discussing remote depositions, but none of them appear to cover best practices for the deponent and, relevant to Experts.com members, the expert witness. Instead, the articles discuss the law permitting remote depositions; the local rules to be followed; agreements between lawyers about sharing of discoverable information; procedures for exhibits; whether the deposition is going to be taken by video conference or the deposition is being video recorded; and operation of several of the remote video platforms. The information is important for all parties to a litigation, but none of it helpful to the deponent.

To this end, I had to do some digging and contact a bunch of folks for their insights. We received some great feedback from court reporters, court videographers, and live video marketing professionals. Below is a summary of suggested best practices for expert witnesses before and during a remote deposition, focusing on presentation, apparel, lighting, audio, video, and overall performance.

Increase in Remote Depositions:

One of our contributors, Isaiah Leslie, a co-founder and partner at Regal Court Reporting, provided us with the best data on the increase in remote depositions from his company’s personal experience. In March of 2020, only 2.6% of their depositions were remote. By April, all of their depositions were remote, increasing by 550%. Although remote depositions have not outnumbered their previous in-person deposition numbers, as Isaiah noted, the adoption is still significant.

The increase in remote depositions makes sense, given the shelter-in-place orders throughout the country. Many of those who adopted remote deposition by necessity have discovered its advantages. By no means am I suggesting remote depositions would replace in-person depositions entirely. However, as legal professionals become more comfortable with videoconferencing technology, it’s reasonable to anticipate continued growth in remote depositions even after COVID-19.

Legal system participants are likely to realize, if they have not already, the value of videoconferencing. It is convenient for all involved, as there is no need to travel to the deposition location. Reduced travel should lower litigation costs as parties will no longer have to pay for travel time and costs (for lawyers and expert witnesses). Most importantly at the present time, it provides the added benefit of being socially distanced.

With this expectation remote depositions will become more prevalent, even post-COVID-19, here are the suggestions from our contributors, to help you as a deponent, give your best presentation and performance.

Court Reporter Suggestions:

Isaiah Leslie and I have become friendly on Twitter, which for those who know me, is where I’ve made a significant number of professional relationships. Isaiah brought his partner and wife, Stephanie Leslie, into the conversation so we can get some outstanding suggestions direct from a court reporter who regularly participates in depositions.

As with other past blogs, I provided a variety of questions and Mrs. Leslie provided some outstanding responses (some edited for brevity and clarity).

Nick Rishwain: Have you experienced an increase in remote/virtual depositions during COVID-19?

Stephanie Leslie: We have certainly seen more remote depositions than usual, but unfortunately most law firms are still not jumping on board fully quite yet for a variety of reasons. One being their lack of comfort with the technology aspect of things. Once they try it, they typically schedule more after that. It’s just making the plunge.

NR: Based on your experience doing in-person video depositions and remote depositions, have you identified any best practices for deponent performance?

SL: The most crucial thing with remote depositions is abiding by the admonition to not talk over others. As a working reporter myself, I can attest to the fact that speakers talking over each other is always a nuisance and makes my job exponentially harder, but in remote depositions it is absolutely critical because remote platforms, such as Zoom, act similarly to a speakerphone, and it can only choose one voice to allow through the system, so if there is simultaneous speaking, I can usually hear no one. And then, to add insult to injury, if other speakers are talking, I cannot successfully interrupt and remind everyone to speak one at a time because no one can hear me either. I have found that even though it feels very tedious to go slowly and methodically, it actually makes the deposition go more quickly and smoothly.

NR: My customers are concerned with coming across as credible, knowledgeable, professional and authoritative in their field. What do you recommend for best remote deposition performance?

SL: I have taken several expert depositions recently, all remotely, and I don’t think the virtual aspect of the deposition makes much of a difference. I felt like it was any other expert deposition. It was very clear to me which experts were knowledgeable and confident about the subjects upon which they were opining, and others were obviously not as much. I think a great CV and clear opinions backed by evidence still come through clearly to all observers.

NR: Any suggestions on apparel, lighting, audio/video setup?

SL: I have seen some sharp solid-colored virtual backgrounds created with an expert firm’s logo placed in the top corner just to the side of the witness, and it is very professional looking and memorable while not detracting from the substance of the proceeding. Apparel — I suggest still making sure you’re completely professional on top. What’s on bottom is up to you! I use an inexpensive cube light to help illuminate my face, but if the room is well lit (not too much back light), I don’t think it’s particularly necessary. Audio is the most important thing. Please test your connection and audio quality beforehand!

NR: Any further suggestions I may not have asked?

SL: As usual (but even more important with remote), if you are able to provide any spellings or technical words to the stenographer before the deposition, that is always appreciated. We usually come into the case with little to no context on the facts and your background and role, so anything you can assist with along the way is invaluable!

Legal Videographer Suggestions:

Isaiah, continued to provide me with excellent access to his team and we got some outstanding feedback from Sean Malone, of Malone Video, who works primarily with Regal Court Reporting.

The same questions provided to Stephanie Leslie were also sent to Mr. Malone. His different experiences from a videographer perspective are equally beneficial to the expert witness.

Sean answered the questions in a slightly different format, which have been edited for brevity and clarity.

Nick Rishwain: Have you experienced an increase in remote/virtual depositions during COVID-19?

Sean Malone: Definitely. Though overall some attorneys are still hesitant to go remote, others have been willing to test, and even embrace remote depositions right now, due to the quarantine. As a legal videographer, before the quarantine I had done exactly zero remote depositions. Since the quarantine, I have done at least 2 to 3 per week, on various platforms, and all for clients that were mainly accustomed to in-person depositions before COVID-19.

For the following, questions 2-4, Sean answered the questions in aggregate.  So, you don’t have to scroll up to find those questions again, I’ve added them below:

NR: Based on your experience doing in-person video depositions and remote depositions, have you identified any best practices for deponent performance?

NR: My customers are concerned with coming across as credible, knowledgeable and an authority in their field. What do you recommend for best remote deposition performance?

NR: Any suggestions on apparel, lighting, audio/video setup?

SM: As a legal videographer, the things that matter in an in-person deposition are the same things that matter for a remote deposition. For example, is the deponent well lit? Are they centered in frame? Can they be clearly seen and heard? I’d recommend a similar approach for everyone involved in a remote deposition: identify your best in-person deposition practices and translate those to the medium of video conference.

Just like in real life, the witnesses I’ve observed that come off well are the witnesses who:

  • Are professionally dressed.
  • Are well mannered/aware that they are the focus of the deposition and the video record.
  • Listen to and directly answer attorney questions.

One note on that last one: Just like in real life, we all know that deponents should let the taking attorney finish their question before starting to answer, and also pause a little so that the opposing attorney can get in their objections… But this is especially important during a remote deposition, because of that notorious split-second delay present in all video conferencing platforms.

To present yourself well and make the videographer love you, you can:

  • Make sure you are well lit, and not heavily backlit.
  • Make sure whatever is in the background behind you is relatively neutral and not distracting (in other words, maybe take that Backstreet Boys poster down before logging on).
  • Make sure the area around you is tidy and free from clutter.
  • Make sure the camera built into your computer is as close to your eye-level as possible. If the camera is too low, like on your lap for instance, everyone will view you (and the video record will capture you) from an unflattering, upward angle. Eye-level or at least face-level is the best idea for a flattering shot of you.
  • Ideal framing is you in the center of the frame, with your torso and head visible in frame, with a little bit of headroom on top (headroom is the small space between the top of your head and the top of the frame). See picture:

sean-malone-legal-videographer-frame-example

  • Make sure you are joining the video conference from a reliable device that has a decent camera and microphone built in.
  • Make sure that device is charged!

Some additional tips on your Internet connection. So that your testimony can be captured optimally by both the court reporter, and the videographer, make sure your Internet connection is as strong as possible. Office internet is more robust than home internet, but if you are at home, you can try:

  • Connecting your device via Ethernet cable rather than WiFi.
  • If you cannot connect via Ethernet cable, choose the spot in your home with the strongest WiFi signal.
  • Ask other members of your household to refrain from moderate or heavy Internet use that day (e.g. have them avoid streaming TV, playing online games, etc.)

NR: Any further suggestions I may not have asked?

SM: I always like to say that everyone in a deposition has a job to do. Therefore, I try to help others do their jobs well, by doing my job well. I think that approach can be helpful no matter what your job is!

As we feel this is going to be a growing experience for witnesses and expert witnesses, we wanted to create a blog post that is truly helpful to your presentation and performance. So, we brought in one more voice to help you nail that remote deposition!

Live Video Marketing Professional Suggestions:

As some of my readers know, I’ve been doing live video since about 2015. However, I do it as a hobby. Our next contributor does it professionally and has written a book on the subject. I’m just lucky enough to know her and call her a friend. Jennifer Quinn, is a leading consultant on Internet live-streaming. I reached out to her and asked her for her input regarding presentation and performance.

Here are the suggestions provided direct from Jenny. In this instance, I asked questions more generally and Jenny gave me us some outstanding suggestions, all of which should be considered for remote depositions.

NR: I’m looking for suggested best practices. How would you want an expert witness to be prepared for remote deposition? What best practices do you suggest?

Jennifer Quinn: The fastest way to build trust with someone is to show up the way they expect you to show up. Traditionally, as an expert witness, you would arrive, dressed professionally, sit upright, and be fully prepared for the deposition.

The question most expert witnesses have today is how to transfer that same level of authority, and trust one would have face to face or in-person to a video format.

There are a few quick and easy ways to convey instant authority and credibility when preparing for a video deposition.

  1. Pay attention to your background – be sure it conveys professionalism.
  2. Dress the same way you would dress if you were attending court in person.
  3. Make virtual eye contact with the video viewers by looking directly into the lens of the camera. Yes, this will feel awkward; however, it is possibly the most crucial skill you can master if you want to instantly build trust in this new era of video. Looking directly into the lens of the camera simulates eye contact and conveys authenticity more powerfully than anything else you can do when recording video.

In my book, I reference the need to pay attention to L.A.V.S.: Lighting, Audio, Video, Stability.

Lighting:

  • Daylight – sit in front of the window with the light shining in on your face.
  • Ring light – clips on to your phone.
  • Box lighting – home office studio setup.
  • Turn off the overhead lighting in the room.

Audio:

  • Earbuds with built-in mic.
  • External microphone.
  • USB/Studio mic.

Video:

  • Cell phone camera.
  • Built-in webcam.
  • USB webcam.
  • Keep the lens camera at eye level.
  • Look into the lens.

Stability:

  • Prop phone up – at eye level (think books, boxes, etc.).
  • Tripod or mount.
  • Desktop/laptop – don’t bump desk or table.

There you have it. Four different individuals telling you how to up your remote deposition game as remote depositions have drastically increased in the last 90 days.

Throughout shelter-in-place, many lawyers and parties have experienced the benefits of remote depositions. It has proven both convenient and cost effective. We do not expect the trend in growth to wane any time soon. If anything, we could be witnessing a completely new shift in how the legal system communicates.

Computer SecurityExpert WitnessInformation & Communication TechnologySecurity

Is New Hampshire the Next Iowa Voting Disaster? Information Technology Expert Analysis

A hastily-developed app and combined with a lack of user testing caused a ruckus in Iowa Caucus voting this week. What’s in store for New Hampshire, Super Tuesday, and beyond?

It has been an exciting week in US politics. We had a State of the Union address and an impeachment vote. A whirlwind week by any standard! Before we could even get to those two events, we started the week with an outrageous technology failure in the Iowa Democratic Caucus. For purposes of this blog post, I’m not going into the differences between a caucus and a primary. Let’s just assume they accomplish the same result: selecting a candidate for political office.

For the Iowa Democratic Party, Monday night was a disaster and then it continued into Tuesday, Wednesday… you get the idea. As I write this blog post on Friday morning, I’m not even sure if they have an official determination of who won. The news stories seem to be conflicting.

So here is what we know about the app (IowaRecorder) failure based on available reports. The Iowa Democratic Party hired a marketing technology company to build an app which would be used, statewide, to report results of local caucus votes (I’m simplifying for purposes of brevity). The app was going to be used to submit voting results. Nobody was actually voting through the app.

This first really good article I read that outlined the technology implementation failure, came from Slate. Here was a good summary from a couple of days ago:

“It’s still unclear what exactly went wrong with the app, but all of these issues appear to have something in common: The Iowa Democratic Party clearly wasn’t prepared for any possible issues with the app and a more involved method of vote reporting introduced this year—and sure enough, it reportedly turns out that the app was never tested on a statewide scale. Shadow, which is run by alumni of the Barack Obama and Hillary Clinton campaigns as well as Google, was paid $60,000 to develop the app, but it had just two months after party officials decided to abandon plans to report results over the phone.”

There’s some updated information on the failure from Motherboard, which was released yesterday (along with the app code). Below, you’ll see that they released an app that was still in beta format:

“And Instead of going through proper app store review processes conducted by Apple and Google, Shadow used beta testing platforms like Apple’s TestFlight to distribute the software so it could meet the Monday deadline. So when it came time for the app to do its most critical role — letting Democratic precinct leaders report results from Iowa on Monday — it failed in every way imaginable.”

Expert Analysis:

As I do when these major stories break, I turn to Experts.com members to get insights. You may recall Dr. Stephen Castell. Dr. Castell, Chartered Information Systems Practitioner and Member of the Expert Witness Institute, is Chairman of CASTELL Consulting. He is an internationally acknowledged Independent Computer Expert who has been involved in a wide range of computer litigation over many years.

Dr. Castell and I wrote a blog post back in 2018, regarding West Virginia’s Blockchain voting program. They are actually expanding this plan, which may necessitate a separate blog post.

Below, please find my questions and Dr. Castell’s answers (Disclaimer: these questions and answers provided on February 5th, 2020):

Nick: From available reporting, it appears the Iowa Democratic Party failed to do a statewide testing of this vote reporting application. What type of tests would have been necessary to identify errors in the system before statewide roll-out?

Dr. Castell: As other ICT professionals comment in the reports, there should be thorough systems testing and QA procedures, including User Acceptance Testing and Pilot Trials, plus scaled-up ‘soak testing’, before contemplating any real-world launch, such as this statewide roll-out. You expect to get errors in systems testing – its main purpose is to identify faults and fix them. Sadly, software systems and Apps these days do seem often to be launched publicly without adequate systems testing, let alone with adequate prior User Testing and Pilot Trials. If such standard professional QA processes were omitted, or truncated, for something as high-profile and important as an App to collect and relay voter data in the Iowa Caucus, that does appear rather astonishing.

Nick: It doesn’t appear that all of the fault lies with the app developer. It seems the Iowa Democratic Party only gave the app developer 2 months to develop and deploy this application. What sort of time-frame would you anticipate to develop, test, and implement a software of this scale?

Dr. Castell: That is difficult to estimate without more knowledge of the actual detailed Customer Requirements Specification that the developer’s App was contracted to meet. On the face of it, an App simply to in-gather voting data, aggregate and transfer it, sounds in principle like fairly straightforward functionality to code, test (at scale) and implement, and 2 months may not have been an unrealistic timescale for development, testing and deployment.

Nick: Would you expect there to be a certain level of user sophistication for those using the app on this scale? Should there have been company representatives available at caucus sites?

Dr. Castell: Reports suggest that there was little prior familiarity, let alone ‘training’, or ‘user sophistication’, with the App on the part of those expected to employ it for real, in the high-pressure, real-time Iowa Caucus conditions. Whatever the state of compliance of the App with its contractual specification – perhaps reasonably well delivered to time, budget, specification, and of suitable quality, ‘fit for purpose’ – if there was no program for adequate user familiarity and training, plus some sort of support and trouble-shooting team from the developer company at caucus sites, that alone could account for the problems encountered in statewide roll-out operation.

Nick: From what I’ve read, it looks like the company was paid $60,000 to build this application. Is there any way to gauge whether this is too little or too much for this type of application development?

Dr. Castell: Again, that is difficult to gauge without more knowledge of the actual detailed Customer Requirements Specification, and thus the likely complexity of the functionality needed, and its associated software design and coding; also, there may have been a tight budget to which the developer company was obliged to work. It is not unusual for software developers to invest in a ‘plum’ assignment such as this high-profile Iowa Caucus project, for the promotional and marketing impact that gives them in securing hopefully more lucrative and profitable development jobs later. In this case, the $60,000 could have been much less than the true cost to the developer company of the analyst, designer, coder, tester, deployer and trainer man-days expended in building and launching the App with a statewide roll-out, against a tough deadline.

Nick: What sort of testing, trials, and quality assurance requirements would you have employed prior to such an implementation?

Dr. Castell: There should ideally have been thorough systems testing and QA procedures, including User Acceptance Testing and Pilot Trials, plus scaled-up ‘soak testing’, well understood by ICT professionals, before the real-world launch of this statewide roll-out. Relevantly, I teach a Course Avoiding IT Disasters – the Expert Way, the principles of which are also covered in my seminal paper “Forensic Systems Analysis: A Methodology for Assessment and Avoidance of IT Disasters and Disputes”, issued as a Cutter Consortium Executive Report, Enterprise Risk Management & Governance Advisory Service series (Vol. 3, No. 2, March 8, 2006).


 

We cannot say that New Hampshire is next. All available information tells us that New Hampshire is not using the same company/app used in the Iowa Caucuses. Furthermore, there was talk of Nevada using the app, but they have claimed they will not move forward with the application.

That’s the end of this particular blog post. Though, we’re already in talks about another post related to voting systems.