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.
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.
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:
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: