Articles Posted in Experts

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.

Published in the journal Psychological Science, the study suggests individuals who engage in mindfulness meditation may have less accurate memories than those who do not take part in the practice.

Look for this as an additional piece of potential junk science in courts.


(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.

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.

If the vaunted FBI examiners can make errors, then surely the examiners at USACIL, DCFL, and similar “labs” can have problems.

One of the underlying issues may be that examinations for law enforcement purposes are not “blind.”  What do I mean by that?  Go back and look at a few examinations you’ve seen for your case recently.  When the samples are submitted for testing the field agent normally submits a statement or outline of the case.  Essentially, they are telling examiners the result they want–the evidence matches the suspect.  See comments here.  I know I talk about this frequently–the confirmation bias phenomenum–but here is my evidence Prof’s thoughts on how the manner in which samples are submitted, and tested, can lead to the potential for a flawed result.

Commentators have identified bias as a serious problem in the forensic setting. As one commentator noted: “To the extent that we are aware of our vulnerability to bias, we may be able to control it. In fact, a feature of good scientific practice is the institution of processes—such as blind testing, the use of precise measurements, standardized procedures, statistical analysis—that control for bias.” A 1996 National Academy of Sciences report on DNA testing recommended that laboratory procedures “be designed with safeguards to detect bias and to identify cases of true ambiguity. Potential ambiguities should be documented.

Keep in mind that internal quality assurance reviews do not solve this potential problem.  The incentives for the QA examiner are no different than the initial examiner.  Some of you may remember from quite some years ago the Brooks AF drug lab scandal.  This involved a blind negative sample submitted by AFIP, which was reported by the laboratory as positive for a controlled substance.  I remember a case where the female client’s sample was reported positive for a controlled substance.  It was not until the case reached an adsep board and we got “discovery” that we noticed that the testing data showed the presence of male DNA in the sample.  The government’s expert testified that the result was correct, but that it must have been contaminated somewhere in the collection and testing process.  Despite this the command persisted in going forward to a finding of no misconduct.

Here is a piece from Marc Green, about how these human factors mentioned above can affect the reliability of a forensic test result.  Whereas the FBI describes the handwriting methodology.  They have this interesting statement.

The FBI Laboratory has not established a specific number of “points” or characteristics needed to identify a questioned writing as having been prepared by a particular individual. In order for a forensic document examiner to identify an individual as having prepared a questioned writing, agreement must exist between significant characteristics in the questioned and known writing with no significant differences. The examiner must explain any exceptions.

Yes, there is a wide degree of subjectivity.  See here for a discussion of the points issue.  Prof. Jennifer Mnoonkin writes here on fingerprints.

The point here is that you yourself should not engage in your own blind confirmation bias–which is to accept without examination the findings of a forensic examination.  As several writers point out, there may be quite a bit of other evidence in your case which goes to prove the accused’s guilt, and that the forensic examination is merely icing on the cake.  But in close cases it’s worth a read to peel the onion on forensic tests and reports.  Certainly the research and questions about the reliability of forensic testing may well help lay a foundation for expert assistance.  There may be support for what it is the expert is going to do for the defense.

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.

In Kennedy v. Louisiana the court had the opportunity to address the issue of a non-homicide child-rape.  The court held, that like the rape of an adult, a rape of a child cannot be punished by death.  While doing so, the court had this to say about child witnesses.

 There are, moreover, serious systemic concerns in prosecuting the crime of child rape that are relevant to the constitutionality of making it a capital offense. The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases. Atkins [Atkins v. Virginia536 U. S. 304 (2002)] at 321. See also Brief for National Association of Criminal Defense Lawyers et Amici Curiae 5–17.  Studies conclude that children are highly susceptible to suggestive questioning techniques like repetition, guided imagery, and selective reinforcement. See Ceci & Friedman, The Suggestibility of Children: Scientific Research and Legal Implications, 86 Cornell L. Rev. 33, 47 (2000) (there is “strong evidence that children, especially young children, are suggestible to a significant degree—even on abuse-related questions”); Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95J. Crim. L. & C. 523, 539 (2005) (discussing allegations of abuse at the Little Rascals Day Care Center); see also Quas, Davis, Goodman, & Myers, Repeated Questions, Deception, and Children’s True and False Reports of Body Touch, 12 Child Maltreatment 60, 61–66 (2007) (finding that 4- to 7-year-olds “were able to maintain [a] lie about body touch fairly effectively when asked repeated, direct questions during a mock forensic interview”).

Kennedy v. Louisiana, 554 U.S. 407 (2008).

The issue of false memory and false memory syndrome has been raised in connection with Russell Strand’s “new” approach to interviewing sexual assault complainants.  He calls it the Forensic Experiential Trauma Interview (FETI).

Here are some helpful links to professional policies relevant to recovered memory.

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.

In What Your Cell Phone Can’t Tell the Police, June 2014.


Being drunk and being incapacitated aren’t the same – no matter how hard military sexual assault trainers try to convince you otherwise.  Such training is not just wrong – it is – IMHO – knowingly false.

Which brings us, finally, to the drunk sex issue. So, is Sokolow suggesting that all women who say they were raped while they were drunk were not really raped? He is not. “If there’s a no, I don’t care if there’s alcohol involved, it’s rape. What I’m saying is the fact that a woman was drunk can’t be the sole criteria for whether she was raped or not,” Sokolow explains, “and frankly, a lot of schools were getting this wrong. There is a vast difference between drunk and incapacitated.”

Brett Sokolow, Meet the Man Telling Colleges How to Fix Their Rape Problem, The Cut, 21 October 2014.

These are words many don’t wish to hear but they are legally, and more importantly medically true.  Unfortunately military trainers persist in teaching false information about “one drink.”  This is not old news.  A number of years ago the Air Force had a sex scandal and came out with new training.  As a result of that training and other erroneous training, the Department of Defense was forced to come out with this little bit of accurate information.


       I got this off the web for back then, it ain’t available anymore on the current website – I wonder why?  The cynic tells me it isn’t helpful to the government meme.  Here is a link to the rest of the image.

Some years ago I represented a Soldier accused of multiple assaults and rapes of his wife, and of his girlfriends.  The rapes allegedly included him choking the complaining witness during the rapes.

He told me – and later the members at his court-martial – that he and his wife consensually engaged in choking during sex as part of rough sex because she liked it.  At the time I was already aware of autoerotic behavior, so this didn’t seem too off-the-wall to me as a potential defense.  Almost all forensic pathology and death investigations texts have a section on the deadly act of autoeroticism.  So I researched “choking during sex” and came across quite a bit of research and current research about the “choking game,” and  “erotic asphyxiation.”  There is confusion over application ofthe term and the scope of the behavior.  There is even a website that describes why, in the writer’s view, women like to be choked during sex, and how to do it properly.  Like autoeroticism, the choking game can be deadly or cause serious harm.

Since that case I have had a number of cases where the complaining witness alleges she was choked while being raped, and I have investigated that as a possible defense.  I have several appeals now where this issue is clearly presented.  But in each of these appellate cases the defense counsel ignored or pooh-pooed the idea that the client was telling the truth about rough sex involving choking and so may have missed a potentially valid defense.

The Wikipedia entry on the choking game begins, “The choking game (also known as the fainting game and a wide variety of local slang names) refers to intentionally cutting off oxygen to the brain with the goal of inducing temporary syncope and euphoria.”  I cite Wikipedia because it is generally consistent with the research and anecdotal information I am aware of.  Wikipedia goes on to suggest the following.

Limited research has been conducted regarding motivations for practicing the fainting game, although thrill-seeking has been identified as a risk factor, as has the perception that it is a low-risk activity. Anecdotal reasons stated include:

Peer pressure, a challenge or dare, a rite of passage into a social group or amusement over erratic behavior.

Curiosity in experiencing an altered state of consciousness, the experience of a greyout, or an imagined approximation to a near-death experience.

A belief that it can induce a brief sense of euphoria (a rushing sensation or high).

The prospect of intoxication, albeit brief, at no financial cost.

Reasons for practice are distinct from erotic asphyxiation. Steve Field, chairman of the Royal College of General Practitioners in London, claims that the fainting game is pursued primarily by children and teens “to get a high without taking drugs.” Children “aren’t playing this game for sexual gratification.” It is frequently confused with erotic asphyxiation, which is oxygen deprivation for sexual arousal. Unlike erotic asphyxiation, practice of the fainting game appears to be uncommon in adulthood.

Here’s the Trial-Craft.  The prosecution identified an expert to come and testify about the physical effects of choking a person as a way to prove an aggravated assault as well as the rape.  But, that’s all they talked to the expert about during their interviews and preparation.  When I talked to the expert I talked about the choking issues and it turned out that based on his current practice and experience he was well aware of the choking game and it’s current “practice” especially by the young.  So when it came to trial I was able to make their expert my expert – to great effect.

The choking game defense in my case did result in acquittals on the rapes.

Prof. Berman at sentecing law and policy invites our attention to an interesting new decision from the Third.

US v. Husmann, No. 13-2688 (3d Cir. Sept 3, 2014) (available here) .

We all of us have an a client who is charged with distribution of CP because they were using a P2P program such as Limewire, and where the automatic settings placed information in the “shared” folder.  Because the information is in the shared folder it is accessible to others who search Limewire and come across it.  Actually many clients have been caught through the FBI or some other enforcement agency trolling Limewire for such information.

The opinion in Husmann makes much of the “intentional” placing of CP in the shared folder.  But does not address the way in which the program, by default places everything in the shared folder. Normally the use needs to affirmatively change the settings for downloads not to go in the shared folder.  The opinion assumes the subject files were deliberately placed in the shared folder making them accessible to others.

So, you have a client who downloads CP via a P2P program, doesn’t realize about the automatic settings upon execution of the P2P software, and there is NO evidence that someone queried and received CP from that client’s account?  In Husmann the investigators went through the various logs to see if they could find any evidence of another computer connecting and downloading, but weren’t able to find such evidence.

Currently in the Third the person may not be convicted, see Husmannn.  It’s a 2-1 decision with a strong dissent.  It’s only the Third.

Can you use the rationale from Husmann to defeat a conviction for distribution.  Keep in mind that he court was construing the definition of “distribution” under the federal statute.  And if it’s not distribution is it an attempted distribution.

All in all an interesting read for the all to common CP case.

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.)