Experts Category Archives — Page 8 of 9 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Injury in sexual assault cases.

April 17, 2009 | The Law Office of Philip D. Cave

I noticed an article on the Navy JAG NKO site today that should be treated with some caution by defense counsel. It is entitled Practice Tip: Presenting medical evidence in a sexual assault case.

I have no problem with the beginning and essential premise of the article – the absence of genital trauma in a rape case is not evidence that no rape occurred (sorry for the double negative). But the reverse is also true! The research is clear that rape cases happen and no observable (including by colposcopy viewing or Toluidine dye application) trauma occurs. The article then goes on to discuss how trial counsel should try to educate members about this. Up to this point I don’t disagree, however this is the language that should cause defense counsel caution, and should launch a Houser motion.

United States v. Houser, 36 M.J. 392 (C.A.A.F. 1993) sets out six factors a military judge should use to determine the admissibility of expert testimony. In United States v. Griffin, 50 M.J. 278 (C.A.A.F. 1999), the Court of Appeals for the Armed Forces makes specific the application of the Daubert factors under a Houser analysis.

PTSD in courts-martials

April 10, 2009 | The Law Office of Philip D. Cave

I’m sure you, like me, have used or tried to use PTSD at trial, either on the merits or at least in sentencing. Along with TBI, PTSD seems to have a significant impact, especially when it results from combat. There has been a lot published over the last few years about how the military handles – or doesn’t handle – these cases. I have found differing attitudes within the various “jurisdictions” I’ve traveled. For example, at Fort Belvoir, they have an exceptional program, well staffed and seemingly well balanced in their approach. Here is an item that may be of interest.

Michael de Yoanna & Mark Benjamin, “I am under a lot of pressure to not diagnose PTSD,” Salon, 10 April 2009.

Thanks to Karen Franklin, and here is her commentary on the article.

Voodoo science – continued

April 4, 2009 | The Law Office of Philip D. Cave

We previously commented on an issue of voodoo science, and more on voodoo science, and the National Research Counsel report on the future of forensics. The promoters of this piece of voodoo — a voice stress analyser — convinced law enforcement to fund and buy their expensive machine and methods for using voice stresses to tell if a suspect was lying. A number of reputable people published or sought to publish peer reviewed critiques. Rather than rebut with more peer reviewed research the owners of the company sued. That's right, rather than conduct the discussion in the research laboratory and through peer reviewed articles and research, they sought to close down critics through lawsuits. Also, they persuaded the supposedly neutral peer reviewed journal, the International Journal of Speech Language and the Law, to withdraw the critical commentary. The critique is still available due to the internet — an alert reader captured the article before it was removed from the journal's website. The company had received government funding.

Well here is the next of likely several more shoes to fall on this supposed reliable technology. It continues to be put through its own stress tests.

James D. Harnsberger, Harry Hollien, Camilo A. Martin, and Kevin A. Hollien (in press) Stress and Deception in Speech: Evaluating Layered Voice Analysis, Journal of Forensic Sciences.

Handwriting.

March 29, 2009 | The Law Office of Philip D. Cave

Here's a filler piece from Slate.
Nina S. Rastogi, Murder, She Wrote: How forensic handwriting identification works, Slate, 26 March 2009.
Here's an interesting standard for expert testimony admissibility:

According to the handful of studies on the subject, a trained examiner will be correct more often than a layman.

One 1997 study

Lay witness expertise

March 29, 2009 | The Law Office of Philip D. Cave

A lot of times we get caught up in the need for an "expert" witness. If you have an expert witness the person is testifying under Mil. R. Evid. 702. True, the expert can "get-in" more information than other witnesses, but do you always need an expert. Federal Evidence blog reminds us that lay witnesses can often be sufficient testifying under Mil. R. Evid. 701. This is an excellent blog for all kinds of evidentiary issues and background information. Here is their note about one such recent case.

The First Circuit explains the circumstances in which an undercover agent may give lay testimony “as to the meaning of code words or phrases” concerning drug quantities based on the agent's “undercover drug buys”; noting as one factor whether the witness's lay testimony “corresponds” to undisputed facts, in United States v. Santiago, __ F.3d __ (1st Cir. March 19, 2009) (Nos. 07-1575, 07-1718, 07-1728, 07-2017).

Are military breath tests reliable?

March 26, 2009 | The Law Office of Philip D. Cave

According to the MJ ruling in a case I just completed in Korea, the Intoxilyzer SD2 is reliable if administered in accordance with its instruction manual and the applicable AR. However, at Camp Casey, Korea, they are not admissible. That is because the MP's do not conduct proper calibrations in accordance with the test instructions and AR on how Army breath tests are to be conducted. For the military judge this failure constitutes a major departure from the regulation and not a minor failure.

Note: this is a Joint regulation applicable to all of the Services:

AR 190-5; OPNAVINST 11200.5; MCO 5110.1; AFI 31-218(I)

Voice authentication.

March 5, 2009 | The Law Office of Philip D. Cave

Prof. Colin Miller has posted on how to and who may authenticate a persons voice, Follow My Voice: Seventh Circuit Finds That Voice Authentication Doesn't Need To Be Done By An Expert.

Federal Rule of Evidence 901(b)(5), which states that the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence of:

Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

A resource.

February 28, 2009 | The Law Office of Philip D. Cave

Reference Manual on Scientific Evidence (2d ed. 2000), Federal Judicial Center. A third edition is in the works.

Law enforcement lay and expert testimony, potential for confusion.

February 27, 2009 | The Law Office of Philip D. Cave

United States v. Lopez-Medina, 461 F.3d 724 (6th Cir. 2006).

Federal Evidence Review draws attention to this case on the issue of law enforcement testimony. The case involved drugs. In military prosecutions we have similar situations where law enforcement testifies about drugs.

The circuit concluded that plain error resulted: “We conclude that permitting police officers to testify as experts in their own investigations and give opinion testimony on the significance of evidence they have collected, absent any cautionary instruction, threatens the fairness, integrity, and public reputation of judicial proceedings, regardless of whether the defendant is actually innocent.” Lopez-Medina, 461 F.3d at __.

Internet crimes & experts & role-play.

February 23, 2009 | The Law Office of Philip D. Cave

Expert Can Testify About “Role-Playing In … Sexually Explicit Conversations On The Internet”, Federal Evidence Review, 25 September 2008.

For those of us who have done internet solicitation cases, the concept of role-playing and lying amongst participants is a known serious issue. These cases, as have mine, usually come up because the client shows up to meet the too young for prime time player. Low and behold blow, it's a cop. The defense then is "I didn't believe she was under age, I thought this was all part of the game, and that I was going to meet an adult interested in some role-play sex." Of course these police stings are the ultimate role-playing game.

In United States v. Joseph, 542 F.3d 13 (2d Cir. 2008), the divided court reversed the conviction. In dicta, the court said the court should reconsider the denial of expert testimony about role-playing in internet chat sessions, at retrial.