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Look Again

Posted in Evidence on Thursday September 15 2011 @ 6:19pm

There is a classroom experiment where the teacher has a random person walk in during class, hand the teacher a book, then leave. The teacher then asks the class what the person was wearing, what was handed over, what did the book look like, etc. The students, all of whom were sitting there during the event, usually won't get it right.

Blessedly, eyewitness testimony is being discredited faster than the theory of spontaneous generation. The American Judicature Society (AJS) will release a new study Monday, September 19, 2011.

According to AJS:

The ground-breaking report, which comes on the heels of a landmark decision by the New Jersey Supreme Court mandating major changes in the way courts evaluate eyewitness identification evidence, determines which lineup method -- sequential or simultaneous -- is more accurate.

AJS will hold a dial-in news conference at 2:00 p.m. EDT on Monday. To participate, call 888-567-1602 (US and Canada), or 201-604-5049 (international). Panelists include Dr. Gary Wells, Dr. Nancy K. Steblay, Dr. Jennifer E. Dysart, Barry Scheck, Rosemary Lehmberg, Austin Police Chief Art Acevedo, and Dr. Karen L. Amendola, COO of the Police Foundation.

Thanks to Seth Anderson, Executive Director of AJS, for the news. See also AJS's index of resources on forensic evidence.

Bonus jury-related discussion: How Can Courts Trust Eyewitnesses? New York Times (September 1, 2011), with debaters Saundra Guerra Thompson, Brandon L. Garrett, Stacy Malone, Elizabeth Loftus, Emily Truman, and Amy Bradfield Douglass.

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Fun Fingerprint Facts

Posted in Evidence on Thursday November 13 2008 @ 5:46pm

  • Fingerprint evidence was first used in the 1905 trial of Alfred and Albert Stratton. The brothers were convicted of murder.

  • Ancient Babylonians impressed fingerprints onto clay tablets recording business transactions.

  • Francis Galton (Darwin's cousin) collected and studied fingerprints, and was the first to catalog prints in a system usable by law enforcement. He served as an expert witness in the Stratton trial.

  • The FBI's fingerprint database is 10x as large as its DNA database.

  • Dogs and cats don't have fingerprints, but primates, tree shrews, koalas, and some possums do. (Here, defense attorneys are making numerous notes to self!)

  • Fingerprints are present by week twenty in utero.

  • People with certain chromosomal defects have fingerprints with specific characterizations.

  • When being booked, it is extremely bad form to poke the fingerprinting officer's white shirt repeatedly with your inky fingers.

See Historical Fingerprint Events & People,, and Sticky Fingers, Natural History (December 2008-January 2009).

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Does Bad Googling Make Bad Law?

Posted in Evidence on Tuesday July 29 2008 @ 6:25pm

A new study from the University of Chicago weighs the effects of no-brainer research (i.e., Googling) on science. The author found that too much Googling leads to less citation of other articles. He also found that the little research cited tends to be extremely recent.

Ah, the mark of Google!

What does this mean for the law? The U of C study found that legal research appears to be less at-risk. Perhaps this is because legal researchers are a) wonkier, and b) use different research tools than the rest of the known universe (would you Shepardize using Google? Don't answer that.)

But bad science can make bad law. Think of the research cited by opinions and advocates -- DNA, autism, polygraphs, mental health, substance abuse, pharmacology, neuroscience, nanotechnology. These studies don't drive the law, but they are important pieces of the puzzle.

Moreover, shoddy research habits frustrate us in other ways. See, e.g., Mistakes Were Made, court-o-rama (July 4, 2008). Keep your clerks in check, judges.

Sooo...all you summer interns out there (yes, you!), puh-leeeeze open a book! Pull it from the shelf, crack its spine, smell the old-book smell, turn the pages, and learn something! Believe it or not, book-reading can sometimes get you better information than the ever-lovin' Googling method. (Cue Tom with his techie comment...but know that he never dealt with interns.)

See Electronic Publications: Too Much of A Good Thing? University of Chicago press release (July 28, 2008). And no, we did not find that via Google.

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Fired for Testimony: There Oughtta Be A Law

Posted in Evidence on Sunday April 20 2008 @ 7:51pm

It makes sense: you can't be fired for reporting for jury service or being called up by the miliatary. Why should employers be free to retaliate against employees who have "subpoena duty?"

A counselor fired by a Seattle mental health group is suing his former employer and the court probation supervisor for wrongful termination and violation of his First Amendment rights.

The plaintiff performed domestic violence counseling for the mental health group. Cases were referred by the court. After the plaintiff responded to a subpoena (which is not optional), he was fired after the court threatened his employer with withholding referrals.

See Counselor Says Court Testimony Cost His Job, Mike Carter, Seattle Times (April 19, 2008).

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Science v. Law: Looking for a Few Solid Truths

Posted in Evidence on Tuesday March 18 2008 @ 7:20pm

Truths are hard to come by, so we'll offer a few:

  • The thing a toddler wants to share, you probably don't want

  • Greg Kinnear has never been in a bad movie

  • Goetta is tastier than you'd expect

Unfortunately, you'll have to take our word. These truths won't be tested in court any time soon.

But the quest for truth does lead parties to test scientific theories in court. Recently, the Vaccine Court ruled that a family who claimed vaccines caused their daughter's autism is due compensation from the National Vaccine Injury Compensation Program.

While study after study has shown that autism is not caused by vaccinations, this case found that a child's already-present autism worsened as a side-effect.

Vaccine Court is a federal MDL, specially formulated to inoculate other courts from claims that parties were harmed by vaccinations. Special masters handle the claims, of which there are many. As with asbestos, makers of vaccines were afraid that they will be bogged down with cases. The government doesn't always win these cases. Legal rights are not signed away; vaccine court is merely a first step.

People can stop using asbestos. But with vaccines, public health concerns are paramount (what if everybody stopped getting vaccinated? Hello, smallpox outbreak!).

What if the court's finding is at odds with the medical community? Courts don't take scientific evidence as proof, necessarily. Sure, there's talk about causation, but the meaning differs in law, physics, and philosophy. (Yet another reason to worry about the increased use of "plain language" over "legalese.")

Experts can battle it out in court (or elsewhere), but in the end it comes down to credibility, unique facts, and individual merit.

What kind of country would we be living in if a brain scan determined guilt or innocence? What if all ENTJs were enjoined from blogging?

Likewise, DNA evidence is not conclusive in and of itself. How could it be? Even in a non-Fuhrman world, a world without twins or clones, a world in which the chain of custody is as flawless as a string of pearls, DNA can't tell us the difference between murder one and manslaughter, between premeditation and accident.

So we need juries, judges, and oh my even lawyers, and OK even expert witnesses.

Meanwhile, science doesn't take a legal victory as proof of anything. Why should it? Legal norms are not peer-reviewed, they're not conducted in closed worlds, there is no scientific method at work.

While we hope for connections, truth in law sometimes differs from truth in science, just as truth in math or truth in literature might. "The truth is out there," and there's lots of it!

See (and hear) Case Stokes Debate About Autism, Vaccines, Julie Rovner, Morning Edition (March 7, 2008). A rundown of the Vaccine Court process can be found in See You in (Vaccine) Court, David Kirby, Huffington Post (June 7, 2007).

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Maryland Finds Prints Not So Charming

Posted in Evidence on Friday February 29 2008 @ 7:41am

Like a feminist princess, one Maryland trial court will not wait for prints to come to the rescue...(hey, it's Friday!)

The fact that it was a capital case may have made all the difference. "Death is different," opined the court. So it's not clear whether the rejection of partial latent fingerprint evidence as not establishing a reliable factual foundation would apply in other types of cases, or whether it could be one of many factors in a case with different facts.

One commentator (see below) noted that the so-called Frye court seemed "extraordinarily Daubertesque." But in fact, jurisdictions have a difficult time defining their evidentiary standards. Check out this NCSC survey to see how jurisdictions self-report. The distinctions are fuzzier than a caterpillar.

The team at Science & Law Blog has several posts relating to the case: Exclusion of Fingerprint Evidence, And More on Fingerprints..., and Additional Thoughts on Maryland v. Rose (Fingerprints).

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Ripped from the Headlines

Posted in Evidence on Wednesday February 27 2008 @ 10:43am

It sounds like an episode of Law & Order: main suspect in a assault/multiple murder case killed in a shootout. His mother is successfully prosecuted on complicity charges after the police say she visited the scene in the middle of the night to destroy evidence. Then the late, great Jerry Orbach makes a snarky comment.

But this took place in reality, in Syracuse, where there is usually snow on the ground. No footprints were ever found by the snowy scene.

Nearly twenty years later, the mother wins a civil suit for malicious prosecution. During a job interview with the CIA, an investigator admitted to fabricating fingerprint evidence linking the mother to the scene. Not only did he not get the job, but the CIA reported him to authorities.

The chain of custody of the faux prints was an adventure in negligence. The three faint prints were not tagged or bagged, no photos were taken of the gas can where they were supposedly found, etc., etc.

Why bother with this kind of story? Because it sounds crazy, but it can happen. A case like this indicates the slew of points along the way where a case can go very wrong. From pretend evidence to bad preservation to overzealous prosecution, beware, beware, beware.

Servants to law and order: don't be a hero if the facts don't back you up. The costs to the system and to public trust are enormous.

See Judge Rules for Kinge in Civil Trial, Linda Stout and David Hill, Ithaca Journal (February 27, 2008).

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Photo Finish

Posted in Evidence on Tuesday February 26 2008 @ 3:09pm

Why not use photo lineups? Let us count the ways!

  • 1. Studies show that simultaneous lineups (where all pictures are grouped together) cause the viewer to compare the suspects to one another rather than to his or her own memory. Experts recommend, instead, the use of sequential lineups (pictures shown in a sequence).

  • 2. Studies also show that eyewitness evidence is more-or-less untrustworthy

  • 3. It's sooo Joe Friday!

A man unsuccessfully fought a conviction based in part on victim identification of him via a photo lineup. The lineup consisted of five photos on a single sheet. Counter-intuitive to #1, above, his challenge was that the photos were overly-suggestive because some had facial hair and glasses (one suspect had facial hair; none wore glasses), and two were older than the description of the suspect.

See Court Rejects Photo Lineup Appeal of Convicted Burglar, Joe Pinchot, Sharon Herald (February 25, 2008).

See also Giving False Witness, Karen Wiens, Hypercube (November 14, 2006), and Police Lineups: Making Eyewitness Identification More Reliable, Beth Schuster, NIJ Journal, no. 258 (October 2007).

And if your kid is strapped for a science fair project, or if you just want to kill some time and experiment on your friends, see Testing for Bias in a Photo Lineup, courtesy Science Buddies.

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Posted in Evidence on Friday February 22 2008 @ 10:03am

What did we do before Real Audio?

If you missed it yesterday, take a listen to The Diane Rehm Show. Guest host Susan Page interviewed Judge George "Woody" Clark about DNA evidence, double jeopardy, and the "CSI effect."

Callers were, as always, chock full o' good questions.

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Fun with DNA

Posted in Evidence on Monday February 04 2008 @ 2:52pm

The mild-mannered Columbus Dispatch wowed Ohio with its expose on DNA evidence in Ohio.

The short version --

  • Evidence is regularly destroyed

  • Prosecutors routinely oppose DNA testing

  • Judges dismiss requests without giving the required reason

  • Inmates requested DNA in 313 cases; 12 were tested

  • Two inmates have been cleared by DNA evidence; 7 have been confirmed guilty

See the multi-media cavalcade Test of Convictions, Columbus Dispatch.

See also today's Blog of the Nation: It Wasn't Me! Interesting discussion about who gets compensated for wrongful conviction, and how much. Is there a difference between someone who is completely innocent of any crime and spends decades in prison, or someone who is guilty on some counts but not others and spends a few extra years in the pokey? Those drafting statutes are considering this and other issues.

Ohio's Innocence Project is located at the University of Cincinnati College of Law.

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