United States v. Brasington, ARMY 20060033 (A. Ct. Crim. App. 5 October 2009).
On 10 September 2008, our superior court granted appellant’s petition for grant of review on the following issue:
WHETHER APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE TRIAL DEFENSE COUNSEL ALLEGEDLY PROVIDED INCOMPETENT ADVICE REGARDING THE LACK OF THE DEFENSE OF MENTAL RESPONSIBILITY.
This is the name given to statistical errors that can arise when deciding the probability that a DNA sample is that of the accused. This is potentially more meaningful than usual to Troy Brown who was convicted of sexual assault and attempted murder. He has a twin brother.
This transposition of the conditional probability can produce results that range from the approximately correct to the grossly inaccurate. Without discussing the extent of the mathematical error, Mueller’s letter stated that this transposition was "so common it has been given a special name, the prosecutor’s fallacy."
Indeed, the fallacy abounds in the statements of judges, defense counsel, and journalists. Statistics textbooks, evidence casebooks and treatises, and judicial opinions all caution against it.
Do you have client accused of shoplifting, a senior officer or senior enlisted perhaps, a really good person who no-one would have imagined as stealing from the Exchange? Can you explain that?
For some years I have successfully argued from this book (e.g. in a Gen. Off. Art.15, or with the AFBCMR).
Will Cupchik, Why Honest People Shoplift or Commit Crimes of Theft (Revised), Tagami Comms., 2002
Thomas L. Hafemeister (University of Virginia School of Law) and Nicole A. Stockey have posted Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan W ith Post-Traumatic Stress Disorder (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:
As more psychologically-scarred troops return from combat in Iraq and Afghanistan, society’s focus on and concern for these troops and their psychological disorders has increased. With this increase and with associated studies confirming the validity of the Post-Traumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a “mental status defense,” such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to succeed in these defenses than Vietnam War veterans were a generation ago. This Article explores the prevalence and impact of PTSD, particularly in war veterans, the relevance of this disorder to the criminal justice system, and the likely evolution of related mental status defenses as Iraq and Afghanistan War veterans return from combat.
/tip CrimProfBlog
I’ve already noted that Briscoe is a very interesting follow-on to Melendez-Diaz about the use of forensic analysis reports at trial where the chemist is not called as a witness. See here, here, and here.
Here is a link to the Brief just filed on behalf of the
07-11191 Briscoe v. Commonwealth of Virginia
ACCA has issued a Memorandum Opinion in United States v. Markis, ARMY 20070580 (A. Ct. Crim. App. 18 August 2009).
Appellant had given three pre-trial admissions to CID. The defense sought to exclude the confessions as being coerced. The military judge permitted the defense to present expert testimony on coerced confessions, specifically it appears how the Reid Technique may lead to coerced confessions. However, the military judge refused to allow the defense to ask hypothetical questions unless the defense first asked for an Article 39(a), UCMJ, session to get a ruling. It appears that the defense did not seek to ask a hypothetical and did not ask for an Article 39(a) once the prosecution witnesses had testified and they had laid a sufficient foundation to get to the point where a hypothetical might be offered.
The opinion has a nice little review of what you must do, by way of proffer, to preserve an objection.
In conspiracy to possess marijuana and illegal firearm possession prosecution, expert fingerprint testimony identifying the defendant’s thumb print on guns and ammunition was admissible under FRE 702 and Daubert even though the defendant raised “questions regarding whether fingerprint analysis can be considered truly scientific in an intellectual, abstract sense”; circuit extensively explored the current argument regarding admissibility of fingerprint evidence under the ACE-V (analysis, comparison, evaluation, and verification) process for determining matches applying the Daubert admissibility factors, in United States v. Baines, __ F.3d __ (10th Cir. July 20, 2009) (No. 08-2098).
FederalEvidenceBlog also accounts for the other circuits on how they rule on such issues.
We have jurisdiction under 28 U.S.C. § 1291. Concluding that the district court did not abuse its discretion in allowing the government to present expert evidence that a thumb print found on some of the contraband recovered by the authorities was a match to Baines’ print, we affirm the judgment of the district court.
United States v. Baines, No. 08-2098, 2009 U.S. App. LEXIS 15945, at *1–2 (10th Cir. Jul. 20, 2009).
I’ve commented earlier that I do not see Melendez-Diaz altering the drug urinalysis case in terms of laboratory evidence. Here is some additional thought which I think supports my conclusion.
Q2: Peer review, forensic experts.
One question that came up during oral argument, and remains after the ruling, is the application of the ruling to peer review witnesses. It is common for a supervisor or peer to review a forensic examination, as part of a quality control process. The reviewer often does not conduct the specific analysis or testing.
Deborah Tuerkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, Washington University Law Review, Vol. 87, 2009.
Court-Martial Trial Practice Blog