Articles Posted in Experts

There are a couple of interesting items in Vol. 224, MIL. L. REV.

MILITARY JUSTICE INCOMPETENCE OVER COMPETENCY DETERMINATIONS, by Major David C. Lai.  This is relevant to me because I have an appellate case where there are issues with the client’s current competency and there were at trial.

ALWAYS ON DUTY: CAN I ORDER YOU TO REPORT CRIMES OR INTERVENE? By Major Matthew E. Dyson.  This is highly relevant in regard to the ongoing sexual assault issues and considerations of by-stander behavior.

Working with expert witnesses can be difficult for even the most seasoned attorneys and trial consultants. Oftentimes, egos and expertise can get in the way of an expert’s ability to deliver persuasive testimony, requiring attorneys and trial consultants to be creative when developing solutions that fit both the problem and the expert witness. As trial consultants, we have gained valuable information on how to prepare expert witnesses for trial from the jury research we have conducted. For instance, we know that the best experts are capable of conveying they are honest, respectful people who have a firm grasp on the issues they are asked to testify about. When experts convey their insights in a polite, yet knowledgeable, manner they can be an invaluable asset at trial.

Tips for Preparing the Expert Witness, by Alyssa Tedder-King, M.S. from Litigation Insights and Katie Czyz, M.A. from Litigation Insights – April 25, 2016

 

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.

[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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http://www.medicalnewstoday.com/articles/299443.php

While numerous studies have hailed mindfulness meditation for its potential benefits for the mind and body, new research suggests it may have a negative impact on memory.
While mindfulness meditation is believed to be beneficial for the mind and body, researchers say the practice may impair the ability to accurately recall memories.

(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.

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.

The Washington Post has a report today:

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far, according to the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Project, which are assisting the government with the country’s largest post-conviction review of questioned forensic evidence.

The Navy-Marine Corps Court of Criminal Appeals recently, in United States v. D.W.B., __ M.J. ___ (N-M Ct. Crim. App. 2015), had to decide “a complex and controversial topic: the admissibility of a witness’s testimony regarding memories recovered through a psychotherapeutic approach known as Eye Movement Desensitization and Reprocessing (EMDR).”  Slip op. at 2.

BLUF:  the military judge did not abuse his discretion in concluding that KB’s testimony was the product of a tainted and highly suggestive psychological process, and therefore inadmissible.

In Coker v. Georgia, 433 U. S. 584 (1977), the Supreme Court held that the Eighth Amendment bars the use of the death penalty as punishment for the rape of an adult woman, where there is no homicide.  The question was left open about a non-homicide rape of a child.

It has been some time since I’ve had a case where it was necessary to have “cell tower” evidence to “locate” the client.

Here is an interesting piece in The New Yorker.

On May 28th, Lisa Marie Roberts, of Portland, Oregon, was released from prison after serving nine and a half years for a murder she didn’t commit. A key piece of overturned evidence was cell-phone records that allegedly put her at the scene.