Articles Posted in Experts

Once again one of my two favorite evidence blogs (federal evidence review) has published the annual “review” for 2013 and for 2014.

Key Evidence Issues During 2013

1. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Kansas v. Cheever: Allowing The Government To “Follow” Where The Defense Leads On Defense Expert Mental State Evidence

2. Supreme Court Watch: Fifth Amendment (Self-Incrimination Clause): Salinas v. Texas: Splintered Ruling Fails To Provide Guidance On Prearrest Contacts With Law Enforcement

3. Supreme Court Watch: Fourth Amendment (Search and Seizure Clause): Maryland v. King: Divided Court Upholds DNA Sample Collection From Arrestees For A “Serious” Crime Without A Search Warrant

4. Supreme Court Watch: Fifth Amendment (Due Process Clause): Smith v. United States: Unanimous Conspiracy Withdrawal Ruling

5. Certification (a civil case).

6. Supreme Court Watch: Sixth Amendment (Right to Present a Defense) (Confrontation Clause); FRE 608(b) (Specific Instances of Conduct): Nevada v. Jackson: No Constitutional Right To Present Extrinsic Evidence For Impeachment Purposes

7. Addressing Juror Internet Research During Trials

8. Electronic And Internet Evidence Issues

9. FRE 706: Encouraging The Use And Consideration Of Court-Appointed Experts

10.  Rule Amendments: FRE 803(10) (Absence of a Public Record)

Each of the above issues had something of value and interest to military justice practitioners.  For example:

In Smith v. United States, 568 U.S. _, 133 S.Ct. 714 (Jan. 9, 2013), the Supreme Court held unanimously that the burden of proof to establish withdrawal from a conspiracy, is on the accused, and the prosecution has no burden to disprove withdrawal under the Fifth Amendment Due Process Clause.

And now, “we look forward at some key evidence issues that may arise in 2014.”

 Key Evidence Issues for 2014

 1. Supreme Court Watch: Sixth Amendment (Confrontation Clause): Continuing Confusion On Expert Testimony Following Williams v. Illinois

2. Circuit Split: Sixth Amendment (Confrontation Clause): Division under the Confrontation Clause on “Language Conduit” Theory for Interpreters

3. Supreme Court Watch: Is An Analytical Shift Coming for Fourth Amendment Analysis on the Search and Seizure of Digital Evidence?

4. Open Issue (civil case):

5. Circuit Splits: Challenging A Verdict Based On Claims of Juror Racial Bias During Deliberations Or Claims of Juror Dishonesty During Voir Dire

6. Legislation: Will Congress Enact a New Media Shield Privilege?

7. Rule Amendment: Sixth Amendment (Confrontation Clause): More Notice and Demand Rules?

8. Rule Amendment: FRE 801(d)(1)(B): Encouraging the Use and Consideration Of Court-Appointed Experts

9. Rule Amendment: FRE 803(6) (Business Records), FRE 803(7) (Absence of Business Records), and FRE 803(8) (Public Records)

10.  Considering the Role of Cameras in the Courtroom

Professor Friedman, a frequent litigator on confrontation issues hasn’t blogged recently, but here is one related to post-Williams issues.

[T]he second petition for certiorari in Turner v.  United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court’s conference on Friday but the Court did not take any action.  (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.)  It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take.  There are several others pending.  The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State’s response is not due until February 3.  Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644,  on Nov. 22.

(Note:  I have one case pending at a CCA on issue 5 – impeaching a verdict.)

It is unusual in military cases to have evidence of microscopic hair analysis.  But, it’s worth keeping up on, just in case.  Also, the point below is further substantiation of the National Academy of Sciences critique of forensic “science” evidence.  A 2009 news release on the NSA report had this to say:

A congressionally mandated report from the National Research Council finds serious deficiencies in the nation’s forensic science system and calls for major reforms and new research.  Rigorous and mandatory certification programs for forensic scientists are currently lacking, the report says, as are strong standards and protocols for analyzing and reporting on evidence.  And there is a dearth of peer-reviewed, published studies establishing the scientific bases and reliability of many forensic methods.  Moreover, many forensic science labs are underfunded, understaffed, and have no effective oversight.

Interestingly, in April 2009, before the NSA report was released, the FBI published a short piece about hair examination, which seems to support the reliability of MHE.

Various state and federal organizations have responded to the NSA report in various ways.

The Houston Chronicle reports, Hair Analysis: The Root of the Evidence Problem (Texas takes on first-in-the-nation statewide case review).

The Texas Forensic Science Commission voted unanimously Friday morning to move forward with a first-in-the-nation review of state criminal convictions that included testimony on microscopic hair analysis – a field of forensics deemed unreliable in a sweeping 2009 report on the state of forensics by the National Academy of Sciences.

Texas’ planned review piggybacks on a groundbreaking federal investigation announced in July 2013. That inquiry involves 2,000 criminal cases in which hair comparison analysis linking a defendant to crime scene evidence was provided by Federal Bureau of Investigation examiners. That review is being conducted via an agreement between the FBI and Department of Justice with the New York-based Innocence Project and National Association of Criminal Defense Lawyers.

The Innocence Project released this information in July 2013:

 Today the Innocence Project, the National Association for Criminal Defense Lawyers (NACDL) and its partners announced a groundbreaking and historic agreement with the FBI and the Department of Justice (DOJ) to review more than 2,000 criminal cases in which the FBI conducted microscopic hair analysis of crime scene evidence. The agencies agreed to undertake the review after three men who had served lengthy prison sentences were exonerated by DNA testing in cases in which three different FBI hair examiners provided testimony which exceeded the limits of science and contributed to their wrongful convictions. The review will focus on specific cases in which FBI Laboratory reports and testimony included statements that were scientifically invalid.

There is an interesting reminder (a la Phillip Mills) that it is not always the “science” that is wrong, but the examiner and the examiners opinions.

Arnold Melnikoff, the former lab director at the Montana State Crime Lab, is the poster child for improper hair testimony. Melnikoff, Joyce Gilchrist in Oklahoma City and others who lacked the proper training and casework experience, were found to have overstated the significance of microscopic hair comparison results in court.

A forensic toxicologist, for example, who detects a certain level of drugs in the blood of a suspected impaired driver, and later overstates the level of impairment during court testimony, does not invalidate the science of toxicology by virtue of their improper testimony.

Similarly, when the FBI discontinued the service of comparative bullet lead analysis in 2005, it was not the science of lead analysis that was bad. It was the significance assigned to the results that was flawed.

Certainly, the interpretation of results is a part of science.  But the distinction has relevance to our criminal justice system, which must be able to recognize the difference between junk science and isolated instances of junk application.  The two are very different.

[Update]

 The U.S. Department of Justice and the U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) today announced appointments to a newly created National Commission on Forensic Science. Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system.

 

 

 

 

 

 

 

 

Here is a piece by two titans of science in the courtr00m, with due deference to my former evidence professor, Paul Gianelli.

Confronting Science: Expert Evidence and the Confrontation Clause

Jennifer Mnookin

University of California, Los Angeles (UCLA) – School of Law

David H. Kaye


Penn State Law
February 23, 2013
Supreme Court Review, Forthcoming
Penn State Law Research Paper No. 11-2013
UCLA School of Law Research Paper No. 13-08

Abstract:
In Crawford v Washington, the Supreme Court substantially changed its understanding of how the Confrontation Clause applies to hearsay evidence. Since then, the Court has issued three bitterly contested expert-evidence-related Confrontation Clause decisions, and each one has generated at least as many questions as answers. This article analyzes this trilogy of cases, especially the most recent, Williams v Illinois.
In Williams, the Court issued a bewildering array of opinions in which majority support for admitting the opinion of a DNA analyst about tests that she did not perform was awkwardly knitted together out of several incompatible doctrinal bases. The most prominent and fully developed argument for admission was that the references to the work of the analysts who actually did the testing but who never testified were admitted for a purpose other than their truth. Although we maintain that this argument is, on the facts of Williams, implausible, we also recognize that in other, relatively limited instances, expert basis evidence might legitimately be introduced for a purpose other than its truth.
After striving for precision on this doctrinal point, we step back and suggest that the ongoing anxiety about how to think about expert evidence and the Confrontation Clause exists in large part because the Court has yet to face directly a set of larger, background concerns. There is significant uncertainty about how, and to what extent, scientific evidence should be treated as special or distinct from other kinds of evidence for confrontation purposes. We suggest that scientific and expert evidence might warrant some limited special treatment, based on what we see as one of the most critical dimensions of scientific knowledge production — that it is a collective, rather than an individual enterprise. Recognizing that scientists inevitably rely and build on facts, data, opinions, and test results of others, we suggest that courts should engage in a modest form of scientific exceptionalism within Confrontation Clause jurisprudence, through efforts to create procedures that respect the fundamental values of the Confrontation Clause, but also adapt when necessary, to the epistemic structures and processes of science.

Eyewitness Memory for People and Events (Chapter 25)

Gary L. Wells

Iowa State University, Department of Psychology

Elizabeth F. Loftus


University of California, Irvine – Department of Psychology and Social Behavior
January 16, 2013
Handbook of Psychology, Vol. 11, 2013, Forensic Psychology, Chapter 25, R.K. Otto and & I.B. Weiner (Eds), Hoboken, NJ: John Wiley & Sons, Inc.
UC Irvine School of Law Research Paper No. 2013-88

Abstract:
This chapter begins with a summary of the case of Thomas Brewster, who was tried for murder based in large part on eyewitness testimony. Ultimately DNA came to Brewster’s rescue, and he was freed before the trial ended. Analyses of taped interviews in the case help reveal how the interviewing process itself may have tainted the eyewitness testimony. The chapter continues with discussions of new psychological research on memory for complex events. This work shows how the details of events can be changed when witnesses are exposed to post-event information that is misleading. And with enough suggestion, entire events can be planted into the mind of ordinary healthy adults. The final section discusses new findings concerning eyewitness memory for people. This includes eyewitness identification of previously seen strangers, and new findings on procedures that can reduce mistaken identifications.

I have mentioned this article before, Michael D. Risinger, Navigating Expert Reliability:  Are Criminal Standards of Certainty Being Left in the Dock?, 64 ALBANY L. REV. 99 (2000).  The basic theme:

This article shows that, as to proffers of asserted expert testimony, civil defendants win their Daubert reliability challenges to plaintiffs’ proffers most of the time, and that criminal defendants virtually always lose their reliability challenges to government proffers. And, when civil defendants’ proffers are challenged by plaintiffs, those defendants usually win, but when criminal defendants’ proffers are challenged by the prosecution, the criminal defendants usually lose. The article then goes on to examine, in detail, various categories of expert proffers in criminal cases, including “syndrome evidence,” polygraph, bite mark, handwriting, modus operandi, and eyewitness weakness, to shed light on whether the system bias revealed in the statistical breakdown is illusory or real.  Finally, an afterword analyzes the last year’s cases, and makes observations on apparent trends.

I revisited the above because of reading today’s post on on the Concurring Opinions blog, about “Convicting the Innocent.”  There is a comment to the post by Prof. Garrett asking, “if there is a double standard in forensics concerning exculpatory versus inculpatory evidence?”

Well, I came across this, Wes R. Porter, Repeating, Yet Evading Review:  Admitting Reliable Expert Testimony in Criminal Cases Still Depends on Who is Asking, 36 RUTGERS L. REC. 48 (2009) (emphasis added).

One of the unfortunate truths in criminal litigation is that trial courts frequently admit testimony from the government’s experts and exclude the defendant’s proposed expert testimony.

Prof. Garrett has written

In my book, I examined what went wrong in the first 250 DNA exonerations in the U.S. Jones was exonerated by a post-conviction DNA test. Now we know that his confession, like 40 other DNA exoneree confessions, was not just false, but likely contaminated during a botched interrogation. Now we know that 190 people had eyewitnesses misidentify them, typically due to unsound lineup procedures. Now we know that flawed forensics, in about half of the cases, contributed to a wrongful conviction. Now we know that informants, in over 50 of the cases, lied at trial.

Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2012).

Prof. Garrett has written about wrongful convictions.  But the ongoing point and usefulness for us practitioners going forward are the resources he offers both in his book and on the web.  Here is a link to the “Data and Materials” on line at the UVA website.

The Supreme Court of Oregon has revisited its 30-year old rule that allowed for admission of eyewitness identification resulting from “unduly suggestive pretrial identification procedures.”

State v. Lawson consolidates two cases on the same issue, and decides en banc to recognize significant changes in the understanding and science of eyewitness identification.

The court discussed State v. Classen and its two-step five (nonexclusive) factors to consider whether an identification was “independent of suggestive procedures.”  Classen had relied on Manson v. Brathwaite, 432 U.S. 98 (1977), wherein the Supremes “determined that reliability was the linchpin in determinations regarding the admissibility of identification testimony.”

Since 1979 — the year that this court decided Classen — there have been more than 2,000 scientific studies conducted on the reliability of eyewitness identification. Amici curiae in these two cases — particularly the Innocence Network and a group of academics and university professors who have conducted, published, and reviewed a wide range of scientific research on the subject of eyewitness identification – submitted extensive data and analysis to this court regarding many of those studies.  Based on our extensive review of the current scientific research and literature, we conclude that the scientific knowledge and empirical research concerning eyewitness perception and memory has progressed sufficiently to warrant taking judicial notice of the data contained in those various sources as legislative facts that we may consult for assistance in determining the effectiveness of our existing test for the admission of eyewitness identification evidence.

The court then engages in a very helpful summary and analysis of the research.

My experience with identifications in the military has been with photographic line-ups.  My police experience is different, having had to go on the streets and scrounge up volunteers to come and participate in an ID Parade.  I’m not certain that military law enforcement does that many live parades.  But the information in the case is worthy of review for the photo cases as well as its general teachings on issues related to eyewitness identification – for proposing voir questions, or for cross-examination questions.  Some of this bleeds over into the issue of witness statement reliability and memory.  For example,

Suggestive Feedback and Recording Confidence

Post-identification confirming feedback tends to falsely inflate witnesses’ confidence in the accuracy of their identifications, as well as their recollections concerning the quality of their opportunity to view a perpetrator and an event.

This can happen when investigators share statements among witnesses or tell witnesses what another witness said, thereby getting the witness to question their own statements and perhaps change them to be consistent.

Here is an interesting case from the First, United States v. Cameron, decided 14 November 2012.  The issue is confrontation and the admission of various internet provider records.  I think this case helpful in litigating the paper that the prosecution seeks to use in CP cases.

We thus presume that Cameron’s challenge is to the following categories of evidence: (1) the Yahoo! Account Management Tool and Login Tracker data — this data was attached to the CP Reports and was also produced in response to search warrants; (2) electronic receipts of Yahoo’s CP Reports to NCMEC — these receipts were produced by Yahoo! in response to search warrants; (3) NCMEC’s CyberTipline Reports to ICAC; and (4) the Google Hello Connection Logs.

Over the years I have had some success in challenging expert testimony about the “age” of a child in photographs and video’s.  The testimony is based on so-called Tanner Scale.  As with many expert testimony in court, the prosecutor takes a method used by pediatricians in evaluating the health of a person whose age is known.  Basically the stages are compared to the persons physical development to determine if there is an illness or some form of abuse causing the person not to thrive as expected.   Tanner himself has frequently pointed out and argued that, “the scales were not designed to be used for estimating chronological age, forensically or otherwise.”  Thus a misuse of an otherwise medical diagnostic tool.

Generally there is a challenge that should be made in a Houser motion prior to trial, when the alleged images are of older children.

Basically the objection relates to being able to tell that a person is under 18, a very specific age.  A person can be 18 years and one day old and look like they are 16, or they can look like they are 20.  Essentially you should be cautious of any expert purporting to place the person in an image as being a Tanner Scale three or above and as being under the specific age of 18 (meaning they have not reached their 18th birthday).

Here is an interesting article that is relevant to the issue.

Arlen L. Rosenblum, Inaccuracy of age assessment from images of postpubescent subjects in cases of alleged child pornography, Int’l J. of Legal Med. (April 2012).

Despite frequent medical expert testimony authoritatively stating that images of individuals who are postpubescent indicate age less than 18 and therefore, child pornography, developmental experts have noted that a scientific basis for such estimation is lacking. In fact, recent studies have demonstrated a high degree of inaccuracy in such estimates, and that the stage of breast development often used as indicative of age under 18 years is present in a substantial percentage of adult women. Ten images of adult women from legitimate pornographic sites promoting youthful images were shown to 16 pediatric endocrinologists expert in evaluating maturation, who determined whether or not the individuals represented were under 18 years of age. They also provided information about what features were most important in their evaluations. Sixty-nine percent of the 160 estimates were that the images represented females under 18 years of age. There was wide variability in the designation of importance of the various features of maturation in reaching conclusions, with breast development and facial appearance considered most important. This study confirms that medical testimony, even by experts in adolescent development, can deem images of adult women selected for their youthful appearance to be under age 18 two thirds of the time. Thus, important as prosecuting users of child pornographic material may be, justice requires the avoidance of testimony that is not scientifically based,

Even if the military judge lets the expert testify, this is a fertile area of cross-examination.

Here is an interesting “report” of a case involving people over 18, where the government expert insisted they were 13-15 (and one of the people was a witness in court).