Oh well, back from vacation. Lot’s to catch up on.
Here is an interesting article:
Anthony E. Giardino, COMBAT VETERANS, MENTAL HEALTH ISSUES, AND THE DEATH PENALTY: ADDRESSING THE IMPACT OF POSTTRAUMATIC STRESS DISORDER AND TRAUMATIC BRAIN INJURY, 77 Fordham L. Rev. 2955 (2009).
I’m not an expert I’m here as a teacher to help you understand some of the evidence and facts.
Richard Gabriel, Redefining Credibility: Turning Expert Witnesses into Teachers, 21(3) The Jury Expert, May 2009.
Frequently, however, [jury’s] are turned off by expert witnesses, who may resemble one of the following:
I’ve already commented on breath tests.
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.
I have written several previous posts about the problems associated with the Intoxilyzer brand of evidential breath alcohol-testing devices.
Here is a good case offered by Prof. Colin Miller, Under Construction: Ninth Circuit Resolves Interplay Between Rules Of Evidence 608 And 609, 17 May 2009.
As the 9th and Professor Miller note this was a close issue.
And here is another treatment of the case at FederalEvidence.blog,“Collateral Details” Of The Defendant’s Prior Conviction Results In Reversal.
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:
I’ve posted before on issues about potential bias and unreliability with forensic and other expert testimony: here and here. In particular, we’ve referenced the National Academy of Sciences study.
Well it’s not just in the United States. Here is a piece from the U.K.
Frances Gibb, Why the Law Commission is worried about expert evidence, 7 April 2009.
I take some back, almost.
Again I was looking at the NKO Criminal Law Division’s practice tips and I came across this one dealing with the ““Blackout” defense to alcohol facilitated sexual assault.” No, it’s not. This title implies that the accused has deliberately gotten the complaining witness drunk. This is not the case in 99% of the cases and don’t let the prosecutor characterize it this way. There are several items or thoughts generated from this pointer helpful to the defense. This pointer could be useful to the defense in justifying experts. But let’s comment on the article from a defense perspective – I’ll do this stream-of-consciousness. No secrets here, it’s in plenty of records of trial.
1. The article tells the prosecution to hold the defense feet to the fire on qualified experts. Ha! Doesn’t the prosecution usually deny the expert and then offer one under the “adequate substitute” theory? I would be very interested in the number of times an expert request is made and not approved. Which leads to a next point about this. Now, remember this. When the prosecution denies the request and proffers a substitute, even if it turns out the substitute isn’t really qualified, what has the prosecution done? Conceded necessity. Once that happens it’s all over, the only issue is who and is that person available according to the timetable. Ooops, just gave a hint to the prosecution, but that’s OK.
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.
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.
Court-Martial Trial Practice Blog