TEACHING AND LITIGATING FORENSICS AND EXPERT WITNESS LAW. Professor Jules Epstein NOVEMBER 2018

Transcription

1 TEACHING AND LITIGATING FORENSICS AND EXPERT WITNESS LAW Professor Jules Epstein NOVEMBER 2018

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3 WHAT DO WE NEED TO THE STANDARDS WHAT MAY/SHOULD BE CHALLENGED HOW A CHALLENGE IS RAISED DISCUSS? THE WORLD BEFORE A CHALLENGE IS MADE [DISCOVERY] USING 403 THINKING ABOUT LANGUAGE ESSENTIAL READING

4 OOPS

5 The Principal Admissibility Tests

6 [T]he thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye

7 FRE Daubert testimony based upon sufficient facts or data, testimony is the product of reliable principles and methods, and witness applied the principles and methods reliably to the facts

8 Daubert Considerations Testability Peer Review/Publication Error Rate Existence of Standards General Acceptance

9 ARE FRYE AND DAUBERT FIXES?

10 Do Frye and Daubert Hearings Make for More Accurate Science? United States v. Llera-Plaza I: expert witnesses will not be permitted to present testimony that a particular latent print is in fact the print of a particular person. United States v. Llera-Plaza II: I am now persuaded that the standards which control the opining of a competent fingerprint examiner satisfy Daubert.

11 Why Are Daubert and Frye Inadequate? Daubert s evidentiary reliability test does not mean necessarily mean accurate Frye s general acceptance test varies with the community

12 Why Are Daubert and Frye Inadequate? The cost of litigation The overworked indigent defense counsel No resources/modeling AND Perhaps adversary hearings are not the best model

13 WHAT MAY BE CHALLENGED? DAUBERT THE DISCIPLINE PROPER APPLICATION THE CONCLUSION [FIT] FRYE THE DISCIPLINE PROPER APPLICATION? THE CONCLUSION?

14 WHO DECIDES? DAUBERT FRYE

15 What Else Might Be Challenged?

16 Challenge 1

17 Challenge 2

18 Challenge 2 there is only one permissible answer regarding firearms and toolmark examiners' assertions of certainty in their pattern-matching conclusions: the District of Columbia courts should not allow them. Williams v. United States, 130 A.3d 343 (D.C. Jan. 21, 2016) NOTE ALSO CRAWFORD CONCERN RE: VERIFICATION SIGNED BY ANOTHER EXAMINER

19 Going Beyond The Science Challenge 3 Based on physical exam and the defendant s confession this was a homicide

20 Challenge 3 when a medical examiner bases his or her opinion of cause or manner of death largely on witness statements or information obtained through police investigation, such opinions would ordinarily be inadmissible State v. Tyler, 2015 Iowa Sup. LEXIS 79, *55, 867 N.W.2d 136 (Iowa 2015)

21 Challenge 4

22 Challenge 4 -Words count! SHOE/TIRE IS THE SOURCE OF THE IMPRESSION IF EVIDENCE AND SAMPLE SHARE CLASS CHARACTERISTICS AND ONE OR MORE RANDOMLY ACQUIRED CHARACTERISTICS SHOE/TIRE PROBABLY MADE THE IMPRESSION BASED ON THE CORRESPONDENCE OF CLASS CHARACTERISTICS IN COMBINATION WITH SPECIFIC WEAR AND/OR RANDOMLY ACQUIRED CHARACTERISTICS

23 Challenge 5

24 Challenge 5 the random match probability is approximately 1 in 2,900 with respect to the left New Balance sneaker In contrast, the random match probability is 1 in 2 with respect to the umbrella. UnitedStates v. Graves, 465 F. Supp. 2d 450, (E.D. Pa. 2006)

25 Challenge 6 (?) Let s Talk Error Rate

26 Defining(?) Error Rate An error rate can be thought of as: the number of times a result from a test or procedure is wrong, compared to the number of times the test or procedure has been done.

27 And The Relevance? Who hires an expert named This Court concludes that Dr. Iffy cannot define iffy? or defend a rate of error in his methods. The failure of Dr. Iffy even to address this Daubert factor counsels against admissibility of his opinions or of comparably-based opinions. Soldo v. Sandoz Pharm. Corp., 244 F. Supp. 2d 434, 575 (W.D. Pa. 2003)

28 And The Relevance 2? he used various sources of evidence to make a prediction about the future of the Earth... As the conclusion which he reached is supported by evidence, the absence of a defined error rate does not render it inadmissible. Green Mt. Chrysler Plymouth Dodge Jeep v. Crombie, 508 F. Supp. 2d 295, 318 (D. Vt. 2007)

29 Let s stay with experts and bias did you know?

30 Context female' Context male Decision female 100% 38%

31 Let s get ethical about experts (for a minute)

32 Challenge 7: A New Kind Of Expert [T]estimony would have been helpful to the jury in understanding how the toolmark analysis differed from general scientific methods and in evaluating the accuracy of Powell's conclusions regarding "scientific certainty. State v. Romero, 239 Ariz. 6, 10-11, 365 P.3d 358, (2016)

33 CHALLENGE 8 REASONABLE DEGREE OF CERTAINTY WHAT DEGREE IS REASONABLE? WHO SETS THE STANDARD? IDIOSYNCRATIC

34 BEFORE A CHALLENGE Professor Jules Epstein

35 First, a Little Law

36 Unusual Requests

37 Unusual Requests - 2

38 The Best Discovery

39 The Best Discovery The Ethical Duty NATIONAL ETHICS CODE (PROPOSED) Once a report is issued and the adjudicative process has commenced, communicate fully when requested with the parties through their investigators, attorneys, and experts, except when instructed that a legal privilege, protective order or law prevents disclosure

40 Discovery v. Admissibility Experts may rely on hearsay and other inadmissible evidence BUT Is expert backdooring the inadmissible proof?

41 How to teach this?

42 Old Discipline, New Discipline

43 Real World Challenge

44 Challenging Credentials Missing credentials Limited practical experience Improper inflating of credentials

45 Inflating Credentials? ACFEI also has given its stamp of approval to far less celebrated characters Zoe D. Katz the name of a house cat enrolled by her owner in 2002 to show how easy it was to become certified by ACFEI -- was issued credentials, too.

46 Litigation Issues Ake - $ New Frye hearings Motions in limine 403 Motions in limine Due Process Motions in limine 8th Amendment

47 Litigation Issues Motions in Limine scope Similarities, not a match No testimony to a reasonable degree of scientific certainty

48 Litigation Issues Defense experts (forensics experts) NAS report Learned Treatise 803(8)

49 Jurors Get Visuals Prosecution Possibilities

50 Prosecution Possibilities Show the other AFIS prints to demonstrate how distinctive the defendant s is

51 Prosecution Possibilities Shrink the universe of suspects. Then probabilistics may not come in to play. Only 3 people had access to the gun.

52 Essential Reading Pettus v. United States, 37 A.3d 213 (D.C. 2012) Almeciga v. Ctr. for Investigative Reporting, Inc., 185 F. Supp. 3d 401 (S.D.N.Y. 2016)

53 Essential Reading - 2

54 Essential Reading 3 [Resource]