Brock Turner trial puts expert defense witness in spotlight

For those who accuse Judge Aaron Persky ’84 M.A. ’85 of favoring former Stanford freshman Brock Turner with a relatively light six-month sentence for sexual assault, the Turner case has sparked closer scrutiny of potential bias in a supposedly impartial institution.

Accusations of bias also arose during the trial back in March, around another courtroom figure that is at least in theory nonpartisan: the expert witness.

Turner’s defense drew on the testimony of one expert witness in particular, Kim Fromme from the University of Texas at Austin, who stated that someone experiencing an alcohol-induced “blackout” (in which she said a person is conscious but memory-impaired) can still act normally and engage in voluntary activities. Witnesses say they discovered Turner “thrusting” on an unconscious body, but Turner says the interaction was consensual both then and earlier in the night. Fromme cited her research on alcohol and adolescents to argue that the victim could have agreed to sex even though she has no memory of meeting Turner at the party where the crime occurred.

Fromme, a professor of clinical psychology, holds a Ph.D. and has been published in a number of peer-reviewed scientific journals. She conducted a decade-long study of alcohol’s effects in over 2,000 UT students. But the prosecution questioned her objectivity when she testified at Turner’s trial. For critics, Fromme exemplified the ethical dilemmas surrounding expert witnesses — particularly when they receive large sums of money and have a track record of testifying for the same kinds of clients.

Expert witnesses are knowledgeable in a certain field and can range from a doctor called to discuss medical evidence to an engineer called to discuss design flaws in a machine. Deborah Rhode, Ernest W. McFarland Professor of Law at Stanford and a frequently cited scholar on legal ethics, said that unlike regular witnesses, most experts are paid to appear.

Rhode said that when deciding whether to trust an expert witness, jurors should consider the person’s academic qualifications and reputation among peers, as well as how much the expert is paid for his or her testimony and what other cases he or she has testified in.

“I think there’s a reason to be deeply suspicious of this testimony,” Rhode said of Fromme, although she noted that she was not familiar with and could not pass judgment on the professor’s research.

When the prosecution sought to discredit Fromme during Turner’s trial, they noted her $8,000 retainer and $350 per hour fee, in addition to thousands of dollars covering her hotel and travel. According to a 2014 survey, the average hourly fee for expert witnesses was similar to Fromme’s, while the average retainer was lower at about $3,400.

Prosecutors also brought up emails between Fromme and the defense in which Fromme seemed to regard acquittals in other alcohol-related rape cases as victories.

“Let’s hope for a comparable outcome for your client,” Fromme wrote about an acquittal in a sexual assault and kidnapping case for which she had recently testified. A few days later, she called a not-guilty verdict for a man who had confessed to raping a woman “huge.”

Fromme’s history in court also came under fire. Fromme has been an expert witness in over 30 court cases, many of which dealt with alcohol and sexual assault. In almost all of those instances, she testified on the side of the defense.

In one of her highest profile cases, Fromme appeared in the 2013 Steubenville rape trial in Ohio, which found two teens guilty of digitally penetrating an intoxicated 16-year-old girl without consent. One boy was also convicted of taking a picture of the naked, passed out victim and circulating it among classmates. Fromme argued that if the girl was capable of, for example, walking unassisted down the stairs, then she could also have made voluntary decisions and consented to sex.

Fromme also testified in 2014 on behalf of three Naval Academy football players accused of raping a woman intoxicated beyond consent and in the 2008 trial of former UCSB soccer player Eric Frimpong, who was ultimately convicted of raping a drunk woman. Frimpong and the victim gave very different accounts of the night in question; Fromme said that changes in the victim’s testimony — at first she said she was hit, but she later described in detail being bitten — showed “how memory can be constructed following a blackout” and indicated that the victim’s story was unreliable.

Fromme’s research on alcohol has led to other engagements outside her university position, besides court testimony. In 2014, she was hired by UCSD as an alcohol expert and consultant to its new task force on safe drinking. An article in the San Diego Reader mocked Fromme’s advice, which came with a $40,000 price tag, as “such priceless pearls as, ‘pace yourself,’ ‘avoid Jell-O shots,’ and ‘beer before liquor, never sicker.’”

In Turner’s case, it seems that jury members were not swayed by Fromme’s testimony. The jury convicted Turner on all three felony counts charged against him: sexual penetration of an intoxicated person, sexual penetration of an unconscious person and intent to commit rape of an intoxicated or unconscious person.

But Turner’s case is not over — and not just because controversy continues to mount over his sentence. Amid a recall effort against the judge and an outpouring of support for the victim, Turner is planning to appeal his conviction. And Fromme may testify in other sexual assault cases in the future. Rhode said that juries and the public should be vigilant as they weigh different opinions.  

“Anyone who has a pattern and practice of accepting such large fees for such a controversial position ought to be viewed with the closest scrutiny,” she said.

Contact Hannah Knowles at hknowles ‘at’ stanford.edu.