Articles Posted in Experts

Here is the lead in for an piece on federalevidence.com blog:

In medical malpractice case, trial court’s exclusion of defense expert as unqualified was not harmless error; the defense expert’s opinion that the plaintiff’s expert’s conclusion was not supported by the medical literature plaintiff cited did not require the defense expert to have as much specialized “training and experience” as the opposing expert whom he critiqued, in Huss v. Gayden, __ F.3d __ (5th Cir. June 10, 2009) (No. 04-60962)

The lack of precision in the Daubert test for the admission of expert witness testimony serves as a source of its remarkable flexibility and also as a source of frustration to practitioners. It is clear that under Daubert, an expert witness need not be a star in his or her field to qualify. On the other hand, minimal preparation or training frequently is insufficient for expert qualification. The Fifth Circuit recently probed the question of just when an expert is “expert enough” in a medical malpractice case. The result reached by the circuit demonstrates that expertise is a matter that must be assessed within the context of the evidence presented and arguments that will be made at trial.

What Are Your Intentions?: Sixth Circuit Finds No Plain Error In DEA Agents Drug Quantity Testimony

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Does this rule prevent DEA agents from testifying that the quantities of drugs recovered from a defendant are consistent with intent to distribute? The answer is "no" according to the Sixth Circuit in its recent opinion in United States v. Alford, 2009 WL 1587267 (6th Cir. 2009), at least if the defendant does not object to such testimony.

Here is a link to Prof. Colin Miller’s site.

The Areas Of My Expertise: Alabama Federal Court Allows Expert Eyewitness Testimony Despite Eleventh Circuit Precedent.

Professor Miller discusses an 11th Circuit decision allowing expert testimony on the unreliability of eyewitness identifications.  The court allowed testimony about problems with identifications, but did not allow testimony that the particular identifications in the case were erroneous.

Seems like it’s explaining things to the jury, much like the prosecution gets to introduce “syndrome” like evidence.

I’ve already commented on breath tests.

Are military breath tests reliable?

Is the Intoxilyzer 5000 racially and genetically biased?

Here is a new case and continuing discussion which potentially excludes evidence of the Intoxilyzer 5000, a device found to be used frequently at military bases.  The issue is actually one of discovery.

Supreme Court Of Minnesota Throws Intoxilyzer 5000 In The Drunk Tank Based Upon Non-Production Of Source Code, Prof. Colin Miller, 3 June 2009.

I have written several previous posts about the problems associated with the Intoxilyzer brand of evidential breath alcohol-testing devices.

Here’s a new law review article to go along with my rants about how prosecution expert and forensic evidence can be biased, it’s difficult to deal with, and the system allows the problem.

Volume 95, Issue 1
Brandon L. Garrett and Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 Va. L. Rev. 1 (2009) View PDF

This is the first study to explore the forensic science testimony by prosecution experts in the trials of innocent persons, all convicted of serious crimes, who were later exonerated by post-conviction DNA testing. Trial transcripts were sought for all 156 exonerees identified as having trial testimony by forensic analysts, of which 137 were located and reviewed. These trials most commonly included serological analysis and microscopic hair comparison, but some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and several included DNA testing. This study found that in the bulk of these trials of innocent defendants—82 cases or 60 percent—forensic analysts called by the prosecution provided invalid testimony at trial—that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data. This was not the testimony of a mere handful of analysts: this set of trials included invalid testimony by seventy-two forensic analysts called by the prosecution and employed by fifty-two laboratories, practices, or hospitals from twenty-five states. Unfortunately, the adversary system largely failed to police this invalid testimony. Defense counsel rarely cross-examined analysts concerning invalid testimony and rarely obtained experts of their own. In the few cases in which invalid forensic science was challenged, judges seldom provided relief.

Been a while since I’ve posted something related to technology and this century.  (I should note a red book sighting the other day at NLSO WNY.)  Here is an interesting article.  Of course those of us with the offending L1 GPS systems are quite aware of running into brick walls or cul-de-sacs due to inaccuracies.  But what will the courts do.

Recalculating, Take 5: Is GPS Evidence Too Unreliable To Be Admitted Into Evidence?  Professor Colin Miller posts about a number of items about reliability.

In the article, GPS Evidence Too Unreliable For Legal Purposes, Thomas Claburn provocatively opens by noting: