Articles Posted in Experts

Except in a slightly different context, but still a similar point.

Errin Morris, Cognitive Biasl and Evaluation of Forensic Evidence, The Champion, NACDL, May 2012.

Remember, USACIL and all the others get a full brief sheet on why the evidence should be tested and lots of facts.  The subsequent testing is not done in the blind.

Well, I use Wikipedia for research.  But, I use it “in some limited situations . . . for getting a sense of a term’s common usage."  Fire Insurance Exchange v. Oltman & Blackner, Case No. 201004262-CA, 2012 UT App 230 (Utah App. 2012)(discussing the uses and reliability of Wikipedia as a source of information).

See e.g., United States v. Jones, ARMY 20090401 (A. Ct. Crim. App. December 14, 2011),   Appellant was accused of effectively “Equating MOS trainees to permanent party – grandmothers to toads”  The court cites to Wikipedia for the proposition that the expression “WIKIPEDIA, http://en.wikipedia.org/wiki/Apples_and_oranges (a Serbian expression akin to the familiar "apples to oranges" idiom in English) (last visited Dec. 1, 2011); in United States v. Magalhaes, NMCCA 200602480 (N-M Ct. Crim. App. February 21, 2008), the court cites to Wikipedia for the definition of the Pythagorean Theorem; in United States v. Ober, ACCA again resorts to Wikipedia for discussion of Kazza one of the early “programs” used to exchange many things over the internet, but for our purposes CP (which was also done in State v. Ballard, 2012-NMCA-043, ¶ 19 n.1, 276 P.3d 976 (N.M. Ct. App. 2012)(citing Wikipedia to define "peer-to-peer file sharing").). 

But the Fire Insurance Exchange court cites to these several cases and there is an interesting discussion of Wikipedia.

Maybe not.  There is quite a bit of research and anecdotal evidence to show that eyewitness testimony can be unreliable.  Now New Jersey is in the frontline of making sure a jury is aware of the potential problems with eyewitness testimony.  To quote the ABA Journal.

New jury instructions in New Jersey will warn that human memory is not foolproof and eyewitness testimony must be carefully scrutinized.

Set to take effect on Sept. 4, the new instructions follow a landmark ruling last year by the New Jersey Supreme Court that makes it easier for defendants to challenge the reliability of eyewitness identifications, the New York Times reports. The decision also required juries to be instructed on the variables that could lead to mistaken identifications.

SBS has been subject to significant criticism, so the “experts” have changed it’s name to Abusive Head Trauma.  But does a name change mean that the “syndrome” or “diagnosis” is any more real?

Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right

Keith A. Findley University of Wisconsin Law School

In two days CAAF has granted two urinalysis cases citing to Melendez-Diaz.  Note Blazier is still undecided.  In the Air Force case the defense did not object, in the Navy case the defense did object.

No. 10-0668/AF. U.S. v. Jerrod D. NUTT. CCA S31600. Review granted on the following issues:

WHETHER, UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT’S SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE.

This report from Savannah.now questions why expert payments within the 3ID claimancy take so long.

The military judge also questioned why experts for the defense continue to have difficulties obtaining payments for work done on Bozicevich’s behalf as attorneys prepare for a February 2011 capital court-martial trial.

The humor is that this is neither a new problem nor a problem limited to the 3ID, or the Army for that matter.

CAAF has decided United States v. Lloyd, in a 3-2 decision.  The majority determined that the defense had not sufficiently shown the need for a blood spatter expert.  Chief Judge Effron writing for himself and Judge Baker dissented.  I see this as a fact based decision and not stating any new law.

Gianneli on the Unreliability of Microscopic Hair Analysis

Giannelli paul cPaul C. Giannelli (Case Western Reserve University School of Law) has posted Microscopic Hair Comparisons: A Cautionary Tale on SSRN. Here is the abstract:

According to the National Academy of Sciences (NAS) Report on forensic science, “testimony linking microscopic hair analysis with particular defendants is highly unreliable.” This is a stunning conclusion because hair evidence has been admitted in numerous trials for over a century. 
The NAS Report was not the first to raise issues concerning hair evidence. In 1996, the Department of Justice issued a report discussing the exonerations of the first twenty-eight convicts through the use of DNA technology. This report highlighted the significant role that hair analysis played in a number of cases of these miscarriages of justice, including some death penalty cases. In 1998, a Canadian judicial inquiry into the wrongful conviction of Guy Paul Morin was released. His original conviction was based, in part, on hair evidence. The judge conducting the inquiry recommended that “[t]rial judges should undertake a more critical analysis of the admissibility of hair comparison evidence as circumstantial evidence of guilt.”

Thanks to Professor Colin Miller for this piece.

In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant’s trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their "own" conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).

United States v. Douglas.  This is a UCI case.  The military judge found UCI and then crafted a remedy.  The issue on appeal related to the appropriateness of the remedy and whether or not the appellant had accepted the remedy and actively participated in the remedy.  The AFCCA decision was reversed.

If the record disclosed that the reasonable remedy had been implemented in full, Appellant’s participation in and apparent acquiescence at trial to the remedy crafted and Appellant’s
disavowal of any claim of ineffective assistance of counsel would end the inquiry. However, because the record does not disclose whether the remedy crafted by the military judge was
actually implemented in full, under the facts of this case we devolve to the ordinary test whether unlawful command influence deprived Appellant of access to character witnesses. United States v. Gleason, 43 M.J. 69, 73 (C.A.A.F. 1995) (explaining the government’s burden to establish beyond a reasonable doubt that defense access to witnesses was not impeded by unlawful command influence). We are not convinced beyond a reasonable
doubt that Appellant was not thus prejudiced. United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999) (finding beyond a reasonable doubt the correct quantum of proof applicable to issues of unlawful command influence). Accordingly, we overturn the United States Air Force Court of Criminal Appeals.

The facts of this case are not uncommon.  Commands routinely give no contact orders to an accused (but interestingly not their own witnesses).  It is not unusual for a command to cast an accused adrift, make them an outcast, and directly or indirectly imply to others that supporting and helping the outcast will be viewed with disfavor.

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