Articles Posted in Experts

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.

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.

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.