Articles Posted in Experts

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:

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.