Articles Posted in Experts

My argument is no, and as military defense lawyers, this is our position at a court-martial trial held under the UCMJ.

In State v. Terrance Police, 2022 Conn. LEXIS 123 (May 10, 2022), the issue was whether “touch DNA” was good enough for probable cause to get an arrest warrant. Here is the important part of the decision saying it wasn’t.

[T]he DNA evidence used to describe the suspect was not a single source sample known to have come from the perpetrator. Rather, it was “touch DNA,” also known as “trace DNA,” from multiple sources that might or might not have come from the perpetrator—something the police simply had no way of knowing when they applied for the John Doe arrest warrant. Notably, the state has not identified a single case, and our research has failed to uncover one, in which mixed partial DNA profiles from touch DNA provided the description of a suspect in a John Doe arrest warrant. Touch DNA “is a term used to describe DNA that is left behind just by touching an object …. Notwithstanding its name, however, touch DNA does not necessarily indicate a person’s direct contact with the object. Rather, according to [experts], abandoned skin cells, which make up touch DNA, can be left behind through primary transfer, secondary transfer, or aerosolization.” (Internal quotation marks omitted.) State v. Dawson, 340 Conn. 136, 153, 263 A.3d 779 (2021). Even when a person touches an object, “DNA is not always detectable, meaning that it is possible to have someone touch an object but not leave behind detectable DNA because … some people leave more of their skin cells behind than others, i.e., some people are better ‘shedders’ of their DNA than others. There are also other factors that affect the amount of DNA left on an object, such as the length of contact, the roughness or smoothness of the surface, the type of contact, the existence or nonexistence of fluids, such as sweat, and degradation on the object.” Id., 154. 

Like it or not, consistent or not consistent with long-held notions of justice, a military member accused of a sexual assault is presumed guilty.

Sure command and others will say you are going to get a fair hearing and trial, but that’s not reality.

Over 100 Law Professors, Others Call on DOJ to Stop Junk-Science ‘Victim-Centered’ Methods

We have a new book worth the read to litigators facing child assault allegations with Shaken Baby Syndrome “evidence.”

Randy Papetti, The Forensic Unreliability of the Shaken Baby Syndrome:  The Book.

Arizona trial attorney Randy Papetti has brought nearly 20 years of experience and research to his valuable new analysis of shaken baby theory in the courtroom, The Forensic Unreliability of the Shaken Baby Syndrome,now shipping from Academic Forensic Pathology International (coupon for $50 off).

As we see frequently, texts and messages on cellphones can be important evidence in a case.  Most of the time the MCIO’s merely got the CW to provide a screenshot and otherwise cherry-pick what they want to take as evidence in the beginning.  Of course the cherry-picking is in favor of the CW and they ignore what might be Brady-plus material.  True, I’m starting to see more MCIO’s do a Cellbrite extraction, which is good.

United States v. Pham from the NMCCA teaches us that we need to be precise in what we ask for when we are seeking the CW’s phone.

Here, the CW “voluntarily provided her cell phone, a Samsung Galaxy S-IV, to NCIS for forensic examination. NCIS investigators performed a logical extraction of the phone and returned it to PI the same day. In response to a January 2016 defense discovery request for a copy of the physical extraction” the defense got “a logical extraction performed 11 months earlier.”

As an investigative tool, DNA has been a powerful weapon in identifying or confirming who committed a crime.  But the value of DNA evidence is overshadowed by regular stories of corruption, incompetence, and flawed interpretation.  It’s, for this reason, I never accept the DNA results as golden for the prosecution in a contested case.

Here’s another story.  http://www.miaminewtimes.com/news/hundreds-of-south-florida-cases-in-doubt-over-dna-testing-problems-9383687

Two linked issues are driving the ongoing saga. The first came to light last summer, when an investigation found problems with how the Broward Sheriff’s Office crime laboratory was interpreting complex samples, which contain DNA from more than one person. With its accreditation threatened, the lab last July ceased reporting those complex samples and instead began sending them to outside experts.

so starts a post at wrongfulconvictionsblog–Junk Science Reigns ____ So Much for True Science in the Courtroom.

[W]hen the National Academy of Sciences report Forensic Science in the United States; A Path Forward was published

people thought we might see a true effort to address “junk science being used to convict innocent people.”

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

 

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