Articles Posted in Evidence

We all laugh at TV shows and movies which we think of as fantasy.  The CSI shows, NCIS, JAG, among .  We ..get a laugh out of them.  But reality may make you cry.

Nathan J. Robinson, Forensic Pseudoscience: The Unheralded Crisis of Criminal Justice.  Boston Review, November 16, 2015.

This past April, the FBI made an admission that was nothing short of catastrophic for the field of forensic science. In an unprecedented display of repentance, the Bureau announced that, for years, the hair analysis testimony it had used to investigate criminal suspects was severely and hopelessly flawed.

. . .

In more than 95 percent of cases, analysts overstated their conclusions in a way that favored prosecutors. The false testimony occurred in hundreds of trials, including thirty-two death penalty cases. Not only that, but the FBI also acknowledged it had “trained hundreds of state hair examiners in annual two-week training courses,” implying that countless state convictions had also been procured using consistently defective techniques.

But questions of forensic science’s reliability go well beyond hair analysis, and the FBI’s blunders aren’t the only reason to wonder how often fantasy passes for science in courtrooms. Recent years have seen a wave of scandal, particularly in drug testing laboratories. In 2013 a Massachusetts drug lab technician pled guilty to falsifying tests affecting up to 40,000 convictions. Before that, at least nine other states had produced lab scandals. The crime lab in Detroit was so riddled with malpractice that in 2008 the city shut it down. During a 2014 trial in Delaware, a state trooper on the witness stand opened an evidence envelope from the drug lab supposedly containing sixty-four blue OxyContin pills, only to find thirteen pink blood-pressure pills. That embarrassing mishap led to a full investigation of the lab, which found evidence completely unsecured and subject to frequent tampering.

[I]t is relatively straightforward for an innocent person’s DNA to be inadvertently transferred to surfaces that he or she has never come into contact with. This could place people at crime scenes that they had never visited or link them to weapons they had never handled.”

In discussing United States v. Henning, No. 20150410 (A. Ct. Crim. App. Sep. 3, 2015), a good friend had this to say about the case and about DNA examinations which are common in military sexual assault cases.

There are many problems with this opinion.

He notes that:

The KC lab has had problems in the past relevant here, e.g., “chain-of-custody,” sealing and storage issues as noted HERE, staffing issues, noted HERE, etc.

He notes then the general purpose behind evidence such as DNA results.

The logical and legal purpose of using DNA evidence is to do one of two things: either match the DNA to a specific individual, or to exclude someone from the universe of potential matches.  The DNA “results” in this case can do neither, so therefore, how can they be relevant under MRE 401?  To “conclude” that the Accused could “not be excluded” is a nonsensical statement – other than the sample was too small to draw any scientific conclusions – which is after all why DNA testing is done in the first place.

Indeed, as the FBI itself states:

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Because of the current politics surrounding sexual assaults in the military, some are wondering what they can do in advance to avoid a later false claim of sexual assault.  This has lead to a suggestion that the interactions should be video recorded, the idea being that the recording will later be evidence to defend against a false report.

Well, that doesn’t take care of the issue about the potential crime involved.  If the recording is done with knowledge and consent, that probably is defensible.  But what if it isn’t.  Many states now have statutes prohibiting unknowing or nonconsensual recordings.  As does the federal government in 18 U.S.C. 2251(a).  Now what.

See United States v. Palomino-Coronado, a decision of the Fourth.

The accused was convicted of taking pictures during sex.  He asked for the federal equivalent of a Griffiths motion, which was denied.  On appeal the court found the judge erred and the charge should have been dismissed.  The court found insufficient evidence of intent to engage in sex for the purpose of making pictures.  In other words, if he’d decided to take pictures of sex and then arranged the sex and recorded the sex—and there was evidence of that intent—then he could be found guilty.  But, as the recording was incidental and there was no evidence of intent there could be no conviction.  It’s not exactly a chicken-and-the-egg problem, but seems close.

Palomino-Coronado contends that the government failed to prove one of the elements of § 2251(a)—namely, that he acted for the purpose of producing a visual depiction.

§ 2251(a) contains a specific intent element: the government was required to prove that production of a visual depiction was a purpose of engaging in the sexually explicit conduct.  a defendant must engage in the sexual activity with the specific intent to produce a visual depiction; it is not sufficient simply to prove that the defendant purposefully took a picture.

Anyway.  If the accused is charged under UCMJ art. 134 for violating 18 U.S.C. 2251(a) or a similar statute, careful attention should be paid to Palimino-Coronado.  It is certainly not a slam-dunk, but there are arguments that can be made.

(W)e seem to be on an endless quest to unmask the deceiver. This is easier said than done. The research is surprising.

  • Even the professionals aren’t very good at catching people in a lie.
  • When we do catch a lie, it’s often not for the reasons you may expect.
  • There is no “Pinocchio’s nose”. That is, there is no single verbal, nonverbal or physiological cue uniquely related to deception.

See, Grimes, infra.

Some may be familiar with how military law enforcement tells commanders and other how they can spot a liar.  There has always been a healthy suspicion about this so-called ability.  Here is some current reportage that is a useful reminder to challenge their assumptions.

David Robson, The best (and worst) ways to spot a liar, BBC, 7 September 2015.

Thomas Ormerod’s team of security officers faced a seemingly impossible task. At airports across Europe, they were asked to interview passengers on their history and travel plans. Ormerod had planted a handful of people arriving at security with a false history, and a made-up future – and his team had to guess who they were. In fact, just one in 1000 of the people they interviewed would be deceiving them. Identifying the liar should have been about as easy as finding a needle in a haystack.

Using previous methods of lie detection, you might as well just flip a coin

So, what did they do? One option would be to focus on body language or eye movements, right? It would have been a bad idea. Study after study has found that attempts – even by trained police officers – to read lies from body language and facial expressions are more often little better than chance. According to one study, just 50 out of 20,000 people managed to make a correct judgement with more than 80% accuracy. Most people might as well just flip a coin.

Ormerod’s team tried something different – and managed to identify the fake passengers in the vast majority of cases. Their secret? To throw away many of the accepted cues to deception and start anew with some startlingly straightforward techniques.

Bill GrimesLooking for Lying in All the Wrong Places, The Jury Expert, 28 Aug. 2015.

In 2006, two of the premier researchers in the field of deception detection, Charles Bond and Bella DePaulo, re-examined the results of over two hundred studies on how well people detect lying. They found that people were able to detect lies 54% of the time. You’d get 50% right by pure chance, so that’s not very impressive (Bond & DePaulo, 2006). Another study tested 13,000 people to see how many of them were good at spotting lies (O’Sullivan, 2008). Thirty-one were good at it. That is 2-tenths of one-percent (.02%), again, not very impressive.

Research also shows that lie experts – police interrogators, customs agents, even lawyers – aren’t any better at detecting lying than anyone else (Bond & DePaulo, 2006). Decades of research show that lie detection is a near-chance game (emphasis added).

You should be aware that there is a dispute about these issues, some of which is reflected in Michael G. Aamodt Ph.D.; Heather Custer M.S., Who Can Best Catch a Liar?: A Meta-Analysis of Individual Differences in Detecting Deception.  15 (Spring) FOR. EXAMINER, at 6 (2006).

We do a lot of military sexual assault cases with alcohol involved.  It is not unusual for a complaining witness to claim they were drunk, blacked out and didn’t consent.

First, if blacked out they can’t know they didn’t consent–it’s impossible if they were blacked out, rather than them exhibiting a convenient and selective memory.

Second, we know from medical science that a person can do a whole lot of things which does include the voluntary, and apparently consensual engagement is sexual activity.  Here is an example, out of many, how a person can engage in a lot of thoughtful and physical activity and not remember it.

Enter Keith Fraley, a 19-year-old second year student of software engineering at Michigan Tech college, and his tweet about his roommate, Mark, a mechanical engineering student, who arrived home wasted and managed to design an entire plane – and woke up with no memory the next day.

Meet ‘Mark’, the crazy genius who designed an aeroplane while drunk, The Guardian.

Several relevant items for you this weekend.

Orin Kerr has this post at The Volokh Conspiracy. In part:

Computer searches usually happen in two stages. Agents take the computer, make a mirror image copy of its hard drive on a government storage device, and then search the image. Officers do this to ensure the integrity of the original data. Searching can alter the contents on the computer, so working from a copy preserves the original.

This two-step procedure raises an interesting puzzle for consent doctrine. What happens if a target consents to a computer search, the agents quickly make a copy, and then the target revokes consent before the image is searched? Everyone agrees that the officer can’t search the target’s own computer after consent was withdrawn. But can the officer search the copy? Is the copy now the government’s to search regardless of the suspect’s revocation, or should the revocation of consent cover both the original and the copy?

h/t CrimProfBlog.

This is not an uncommon situation in military cases.  I suspect we all have cases where the computer is taken and imaged, and then we send in a notice of representation and notice of withdrawal of consent.

And see also, Edward J. Imwinkelried (University of California, Davis – School of Law) has posted The Ambivalence in the American Law Governing the Admissibility of Uncharged Misconduct Evidence IProceedings of the Fifth International Conference on Evidence Law and Forensic Science, Forthcoming) on SSRN.


The NMCCA has issued an interesting published opinion on a government appeal.

United States v. Rios.  From the opinion.

  • The appellee is currently facing trial by special court-martial on numerous charges regarding larceny from the Marine Corps Exchange (MCX) on Camp Pendleton, California.
  • He is alleged to have conspired with his wife to commit larceny[.]
  • Among the evidence the Government seeks to offer to prove the appellant’s guilt is Mrs. Rios’ testimony regarding her husband’s involvement in the purportedly criminal activity. Mrs. Rios’ attorney, however, informed the military judge that his client intends to invoke her privilege (spousal incapacity) under MILITARY RULE OF EVIDENCE 504(a), MANUAL FOR COURTSMARTIAL, UNITED STATES (2012 ed.).
  • The Government sought a preliminary ruling on whether the appellee’s wife could be compelled to testify under the exception found in MIL. R. EVID. 504(c)(2)(D). The military judge ruled that the appellee’s wife may validly invoke the privilege under MIL. R. EVID. 504(a), and that the exception found at MIL. R. EVID. 504(c)(2)(D) in no way limits that invocation.
  • The Government now appeals that ruling under Article 62, UCMJ. We have thoroughly reviewed the record of trial and the briefs submitted by the parties. Following that review and our consideration of all the materials before us, we conclude that the appeal is properly before us and find no error in the military judge’s findings of fact and conclusions of law.

Interestingly the opinion does not address the wife’s Fifth Amendment privilege or immunity.  Perhaps that was not an issue at the time.

Worth-the-read is A PRELIMINARY DRAFT OF Proposed Amendments to the Federal Rules of Bankruptcy Procedure and the Federal Rules of Evidence, is the source for the ABA article I just posted about ancient documents.

There is another proposal in the Draft relevant to technology.  The drafters are suggesting changing FRE 902, which as we know will likely change MRE 902 18 months later (absent action from the Prez.).

902 (13) Certified Records Generated by an Electronic Process or System.  A record generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent must also meet the notice requirements of Rule 902(11).

902(14) Certified Data Copied from an Electronic Device, Storage Medium, or File. Data copied from an electronic device, storage medium, or file, if authenticated by a process of digital 10 identification, as shown by a certification of a qualified person that complies with the certification requirements of Rule 902(11) or (12). The proponent also must meet the notice requirements of Rule 902(11).

This is worth-some-study.  On the surface, it may well be an appropriate rule appropriately limited.  My concern is abuse by prosecutors–more likely witnesses–when it comes to certain types of evidence.  I’m sure we are all aware of the free software programs downloadable to your cell phone which allow the creation of fake texts, emails, twits, and such.

The abundance of electronically stored documents is spurring a committee of the U.S. Judicial Conference to propose abolishing the “ancient documents” rule.

The rule—803(16) of the Federal Rules of Evidence—allows the admission of documents that would usually be banned as hearsay if the documents are at least 20 years old and appear authentic. The National Law Journal (sub. req.) has a story on the proposal to scrap the rule.

A committee report (PDF) said the rule “has always been questionable” but it has been tolerated because it is infrequently used, and usually in cases where there is no other evidence on point.

Now, the abundance of electronic documents creates a strong likelihood that the ancient documents exception will be used much more frequently in coming years, according to the report by U.S. District Judge William Sessions III of Vermont, who chairs the advisory committee on evidence rules.

“Many forms of [electronically stored evidence] have just become or are about to become more than 20 years old, and there is a real risk that substantial amounts of unreliable ESI will be stockpiled and subject to essentially automatic admissibility under the existing exception,” the report said.

From the ABA Journal, which 20 years from now will automatically be admissible as evidence, absent a rule change.

There are some interesting articles for military justice practitioners in the Summer 2015, MLR.

Barracks, Dormitories, and Capitol Hill: Finding Justice in the Divergent Politics of Military and College Sexual Assault
3.  By Major Robert E. Murdough.pdf
Rudderless: 15 Years and Still Little Direction on the Boundaries of Military Rule of Evidence 513
4.  By Major Michael Zimmerman.pdf
Open-Ended Pharmaceutical Alibi: The Army’s Quest to Limit the Duration of Controlled Substances for Soldiers
5.  By Major Malcolm Wilkerson.pdf
A Better Understanding of Bullying and Hazing in the Military
7.  By Major Stephen M. Hernandez.pdf