Experts Category Archives — Page 5 of 9 — Court-Martial Trial Practice Blog Published by International Military Lawyer

Hair comparison admissibility

April 19, 2010 | The Law Office of Philip D. Cave

Gianneli on the Unreliability of Microscopic Hair Analysis

Paul 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.”

Blazier and Melendez-Diaz

April 18, 2010 | The Law Office of Philip D. Cave

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).

CAAF issues two decisions

February 23, 2010 | The Law Office of Philip D. Cave

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.

Shaken baby syndrome

January 19, 2010 | The Law Office of Philip D. Cave

Does it exist or not. Here are a couple of news articles about a pending case in Fairfax, VA.

Shaken baby syndrome itself is put on trial in Fairfax court

Shaken-baby syndrome at center of Fairfax trial

Eyewitness identification

December 24, 2009 | The Law Office of Philip D. Cave

I have done several posts on this blog (here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it. Now, based upon the recent opinion of the Supreme Court of Utah in State v. Clopten, 2009 WL 4877404 (Utah 2009), we can add Utah courts to the list of courts that allow such expert testimony.

Blogs Prof. Collin Miller. Note that the Military Judges’ Benchbook already has an instruction about cross-racial identification for use at court-martial. Prof. Miller:

"'[T]he vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.’"…Decades of study, both before and particularly after Long, have established that eyewitnesses are prone to identifying the wrong person as the perpetrator of a crime, particularly when certain factors are present….For example, people identify members of their own race with greater accuracy than they do members of a different race….In addition, accuracy is significantly affected by factors such as the amount of time the culprit was in view, lighting conditions, use of a disguise, distinctiveness of the culprit’s appearance, and the presence of a weapon or other distractions….Moreover, there is little doubt that juries are generally unaware of these deficiencies in human perception and memory and thus give great weight to eyewitness identifications….Indeed, juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy….That the empirical data is conclusive on these matters is not disputed by either party in this case and has not been questioned by this court in the decisions that followed Long.

NMCCA new cases – CP related.

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

A couple of new opinions from NMCCA address issues related to CP prosecutions.

United States v. Jones, III, has this issue:

WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT THE OPPORTUNITY TO REVIEW THE EVIDENCE BEFORE HE PLED GUILTY AND WHETHER, IN LIGHT OF THAT DENIAL, APPELLANT’S PLEA WAS PROVIDENT.

Failures in care of combat stressed Soldiers leading to blue on blue incidents?

October 20, 2009 | The Law Office of Philip D. Cave

MiamiHerald.com

An American soldier accused of killing five fellow troops at a counseling center in Iraq had been unraveling for nearly two weeks but the U.S. military lacked clear procedures to monitor him or deal with the deadly shooting spree once it began to unfold, a military report found.

The shooting deaths drew attention to the issues of combat stress and morale as troops have to increasingly serve multiple combat tours because the nation’s volunteer army is stretched thin by two long-running wars.

Key lapses in assistance, care, and observation of troubled soldiers.

DOD Authorization Act Conference Committee Report.

October 8, 2009 | The Law Office of Philip D. Cave

Thanks to CAAFLog, here is a link to the above report.

Here are the most pertinent sections affecting military justice trial practitioners.

SEC. 512. MEDICAL EXAMINATION REQUIRED BEFORE ADMINISTRATIVE SEPARATION OF MEMBERS DIAGNOSED WITH OR REASONABLY ASSERTING POST-TRAUMATIC STRESS DISORDER OR TRAUMATIC BRAIN INJURY.

New ACCA decision

October 6, 2009 | The Law Office of Philip D. Cave

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.

The prosecutor’s fallacy.

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

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.