Articles Posted in Experts

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.

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

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.

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

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

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?”

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.”

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.

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