FORENSIC SCIENCE DEVELOPMENTS

Transcription

1 CHOOSING AND USING EXPERTS IN LITIGATING FORENSIC SCIENCE ISSUES June 7, 2018 FORENSIC SCIENCE DEVELOPMENTS 1

2 GOVERNMENT REPORTS CALL FORENSIC SCIENCE DISCIPLINES INTO QUESTION 2009 NAS Report, Strengthening Forensic Science in the United States: A Path Forward 2011 Texas Forensic Science Commission Report re Willingham/Willis Investigation (Arson) 2016 PCAST Report, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods These are just examples! 2

3 INITIAL CONSIDERATIONS 3

4 Do I need an expert? Identifying and Retaining An Expert How many? How/where do I look for one? How do I choose? When should I retain the expert? How do I pay the expert? CASE PROFILE: COMMONWEALTH V. CRYSTAL WEIMER Scientific Evidence Used at Trial Forensic odontologist claimed Crystal s teeth were a definite match to a bite mark on an autopsy photo Opinion that some soil on Crystal s clothing was similar in color to soil from the crime scene DNA reports excluding Crystal Theory that Crystal kicked victim Experts for Post Conviction Forensic odontologist from trial Additional forensic odontologist Geologist/soil analyst Forensic pathologist 4

5 CASE PROFILE: COMMONWEALTH V. RUSTY BRENSINGER Scientific Evidence Used at Trial Treating physician Child abuse pediatrician 2 forensic pathologists Experts for Post Conviction Pediatrician Forensic pathologist Pediatric radiologist Biomechanical engineer I HAVE AN EXPERT, NOW WHAT? 5

6 Preparing your expert and yourself Send materials/ask for materials Discovery Due diligence Motions practice Stipulations CASE PROFILE: BRANHAM V. ROHM AND HAAS Frye motions as to all of plaintiff s experts denied before trial Frye motion renewed during trial as to one expert and granted Additional expert ordered to produce additional data during trial, leading to entry of a nonsuit 6

7 CASE PROFILE: BRANHAM V. ROHM AND HAAS On October 19, 2010, appellant called expert witness Dr. Richard Neugebauer, an epidemiologist who studied the prevalence of brain cancer in the McCullom Lake area population. Rohm and Haas's cross-examination revealed serious problems with Dr. Neugebauer's application of his epidemiological principles as Dr. Neugebauer became unsure if one of the individuals he had used in his analysis was properly included in the study and admitted to making last minute changes to his report that Rohm and Haas's attorneys may not have received. After the trial court concluded the trial proceedings for the day on October 20, 2010, the trial court instructed Dr. Neugebauer to review his notes for clarification of this issue and restricted him from communicating with the parties. Dr. Neugebauer proceeded to stay up all night to make numerous additional changes to his report, which he submitted to both parties in the early morning hours. Despite the changes to his analysis, Dr. Neugebauer claimed these clarifications did not affect his overall opinion that a brain cancer cluster existed in McCullom Lake Village. CASE PROFILE: COMMONWEALTH V. LARRY TRENT ROBERTS 7

8 CASE PROFILE: COMMONWEATLH V. LARRY TRENT ROBERTS CASE PROFILE: COMMONWEALTH V. LETITIA SMALLWOOD 8

9 POST-CONVICTION Potential claims Ineffective assistance of counsel Due process/fundamental unreliability of trial evidence Brady Newly discovered evidence Actual innocence 9

10 CASE PROFILE: COMMONWEALTH V. CRYSTAL WEIMER 10

11 CASE PROFILE: HAN TAK LEE V. TENNIS Slow and painful has been man's progress from magic to law. This proverb, inscribed at the University of Pennsylvania Law School on the statue of Hseih Chai, a mythological Chinese beast who was endowed with the faculty of discerning the guilty, is a fitting metaphor for both the progress of the law and the history of this case. The law is the means by which fragile, frail, imperfect persons and institutions seek greater perfection and justice through the search for the truth. But the search for the truth is not always easy, and the path to the truth is not always clear. Sometime we find that truth eludes us. Sometimes, with the benefit of insight gained over time, we learn that what was once regarded as truth is myth, and what was once accepted as science is superstition. So it is in this case. 11