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 was intoxicated to the point that she had no memory of meeting Turner at the party where the crime occurred.

According to the Palo Alto Weekly, Fromme explained that a blackout is subjective: The only way to know that someone has blacked out is if the person later cannot recall a time period during which he or she was intoxicated. Thus, a person could perform conscious, complex actions such as driving a car or engaging in sex but not store memories, Fromme said.

A key point of contention in Turner’s case was how intoxicated the victim, whom The Daily will call Emily Doe, appeared throughout Turner’s interaction with her. While Turner and Doe were both drunk the night of assault, the prosecution argued Turner took advantage of Doe’s state and ultimate incapacitation. At one point following Turner’s own testimony, the prosecutor played a voicemail with heavy slurring that Doe left her boyfriend shortly before the assault: “You would agree with me that in that voicemail she sounded super intoxicated, right?” the prosecutor asked Turner.

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, embroiling Fromme — who says she’s just a researcher — in the explosive publicity around the Turner case.

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. Fromme, on the other hand, said that her expert witness roles are an extension of her primary work as a scholar. She noted that a pre-trial Daubert Hearing occurring before her testimony in the Turner case and outside the presence of the jury affirmed that what she would share is scientifically valid. (Daubert Hearings occur when the opposing party in a case challenges an expert witnesses’ admissibility).

“I’m first and foremost a Professor, scientist, and mentor,” she told The Daily over email. “My part-time work as an expert witness was not something I sought out nor view as my professional identity. I am, however, one of few people with expertise in alcohol-induced blackouts, so I see it as a professional obligation to share that expertise in helping ensure that justice might be served in the court system.”

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.

And yet Fromme, who criticized Rhode’s evaluation of her given that the professor is unfamiliar with her work, pointed out that the science of blackouts behind her testimony was not in question.

When the prosecution sought to discredit Fromme during Turner’s trial, they noted her $8,000 retainer and $350 per hour fee. The Palo Alto Weekly reported thousands of dollars in additional compensation covering Fromme’s hotel and travel, but Fromme disputes that figure, saying the $8,000 was mean to cover her travel expenses. The retainer was more than usual due to the high expense of visiting Palo Alto, she said.

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 said the emails were taken out of context as a legal tactic.

“If you instead examined the full context of the emails, you would see, for example, that the Not Guilty verdict was “huge” because it was unexpected,” she said. “It came about, in part, because the jury viewed all 6 hours of intense interrogation of a naïve and suggestible young man, who was manipulated by specific interrogation tactics that elicited what appeared to be a confession. There is a large literature on false confessions, although I’m no expert in the area.”

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 said she also pointed out that the victim could have been raped without remembering it. She noted over email that “no one (including me) can say definitely what happened” due to the memory impairment from a blackout.

Fromme also provided telephone testimony at the pre-trial hearing of a Naval Academy football player accused of rape but never charged, as well as a written evidence evaluation 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.

However, Fromme has also provided expertise for the prosecution. For example, her testimony in the case of Ryan Ferguson — a young man accused of murder by someone who had been experiencing an alcoholic blackout  — helped exonerate Ferguson in 2013, eight years after he was convicted and sentenced to 40 years in prison.

Fromme’s research on alcohol has led to other engagements outside her university position, besides court testimony. In 2014, she was hired for $4,500 by UCSD as an alcohol expert and consultant to its new task force on safe drinking for its Sun God Festival. According to a written summary of her consultation, her advice ranged from rebranding Sun God to emphasize music and intellectual celebration to minimizing students’ drinking of alcohol between acts through random breathalyzing.

In Turner’s case, it seems that Fromme’s testimony did not impact the jury’s final decision. 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 at 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.

Fromme, though, sees her testimonies as part of a responsibility to use her scholarly work to help courts reach the truth.

“I strongly believe that it’s important to safeguard the rights of everyone involved in the legal process,” Fromme said. “Indeed, the basic premise of our legal system is “innocent until proven guilty.””

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

This article has been updated with comments from Fromme to provide more balanced information about Fromme’s work and role as an expert witness and to fix serious inaccuracies. Finally, The Daily has added information about Turner’s trial to give Fromme’s testimony more context. The Daily sincerely regrets the original errors, as well as its decision to initially publish this piece without statements from Fromme.

Fromme was paid $4,500 for her consultation with UCSD — not $40,000, as reported in a San Diego Reader article The Daily originally cited — and the advice she provided is not accurately represented by the phrases ridiculed in the Reader piece. Fromme also did not physically testify in the Frimpong case, submitting a written evidence evaluation instead, and testified over telephone for pre-trial hearing for a Naval Academy football player accused of sexual assault who ultimately was not charged — rather than on behalf of three Naval Academy defendants.