WAKING THE GATEKEEPER: ATTACKING THE STATE’S EXPERT WITNESSES THE ALASKA PUBLIC DEFENDER AGENCY...
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Transcript of WAKING THE GATEKEEPER: ATTACKING THE STATE’S EXPERT WITNESSES THE ALASKA PUBLIC DEFENDER AGENCY...
WAKING THE GATEKEEPER:ATTACKING THE STATE’S
EXPERT WITNESSES
THE ALASKA PUBLIC DEFENDER AGENCY2011 Training Conference
Girdwood, Alaska
James K. JenkinsMaloy Jenkins Parker
Boulder, Colorado & Atlanta, [email protected]
WHY WAKING THE GATEKEEPER
MATTERS
EXPERT WITNESSES CONVICT OUR CLIENTS
JUNK SCIENCE MURDERS
INNOCENT PEOPLE
THE WILLINGHAMS
THE WILLINGHAM CHILDREN
WILLINGHAM HOMEDECEMBER 23, 1991
STATE DEPUTY FIRE MARSHALMANUEL VASQUEZ
CO-STARRING WITNESS THE STATE
JAMES GRIGSON, FORENSIC
PSYCIATRIST:
TODD WILLINGHAM WAS “AN
EXTREMELY SEVERE SOCIOPATH” AND
WAS “INCURABLE”
TEXAS GOVERNOR RICK PERRYDENIES CLEMANCY
Todd WillinghamJanuary 9, 1968 – February 17, 2004
Todd Willingham February 17, 2004
"I am an innocent man, convicted of a
crime I did not commit. I have been
persecuted for 12 years for something
I did not do.”
BARRY SCHECK
GERRY GOLDSTEIN
Criminal Procedure Rule 16(b)(1)(B)
(B) Expert Witnesses. Unless a different date is set by the court, as
soon as known and no later than 45 days prior to trial, the
prosecutor shall inform the defendant of the names and addresses
of any expert witnesses performing work in connection with the
case or whom the prosecutor is likely to call at trial. The
prosecutor shall also make available for inspection andcopying any
reports or written statements of these experts. With respect to
each expert whom the prosecution is likely to callat trial, the
prosecutor shall also furnish to the defendant a curriculum vitae
and a written description of the substance of the proposed
testimony of the expert, the expert's opinion, and the underlying basis of
that opinion.
Failure to provide timely disclosure under this rule
shall entitle the defendant to a continuance. If the
court finds that a continuance is not an adequate
remedy under the circumstances of the case, the
court may impose other sanctions, including
prohibiting the prosecutor from calling the expert
at trial or declaring a mistrial.
Nacchio v. United States,555 F.3d 1234 (10th Cir. 2009)
Mr. Nacchio argues that the district court's ruling
waspremised upon Rule 16 and that, consequently, it was
patentlyerroneous. We disagree. The district court's exclusion
ofProfessor Fischel's testimony rested on Daubert
grounds.True, the government first framed its challenge to
ProfessorFischel's expert testimony as an objection to the
sufficiencyof Mr. Nacchio's Rule 16 disclosure. But, by the time
the district court ruled to exclude Professor Fischel's
testimony, it was clear that the court's principal concern was
Daubert
MESSAGE FROM AN APPELLATE LAWYER TO ALL YOU AWESOME
TRIAL LAWYERS OUT THERE:
MAKE A FUCKING OFFER OF PROOF
INVESTIGATE THE STATE’S EXPERT WITNESS
Awesome Website: containing hundreds of transcripts
of testimony by forensic experts where defendant was
subsequently exonerated by DNA:
http://www.law.virginia.edu/html/librarysite/garrett_exo
neree.htm
AWESOME WEBSITE FOR TRANSCRIPTS
http://www.law.virginia.edu/html/librarysite/
garrett_exoneree.htm
United States v. Robinson, 44 F.Supp. 1345 (N.D.Ga. 1997)
“If a defendant does not have the basis for
the expert’s opinion, there is no way the
defendant can effectively cross-examine
the expert. It is this issue which goes to th
fairness of the trial that the court must
always keep in mind in dealing with
discovery issues in criminal cases.”
Ratliff v. State, 110 P.2d 982, 985(Alaska App. 2005)
Indeed, at the conclusion of Hammer's testimony,
when Judge Weeks asked Ratliff's attorney if she had
any argument to present regarding the scientific
validity (or lack of validity) of Hammer's analysis, the
defense attorney had nothing to say. She simply
responded, “Your Honor, as far as whether the general
techniques [of shoeprint analysis] are acceptable or
not, I will just let the Court rule on that.”
Dymenstein v. State, 720 P.2d 42, 45(Alaska Appeals 1986)
Dymenstein also argues that Kirk should not have been
allowed to offer her opinion concerning N.C.'s credibility. Kirk
did give her opinion of N.C.'s credibility numerous times
during the sentencing hearing, attempting to explain N.C.’s
inconsistent statements and why N.C. took so long to admit all
of the sexual abuse she had suffered. She explained that
N.C.'s prior statements were consistent with the theory of
“progressive admissions.” Dymenstein, however, failed to
object to Kirk's opinion of N.C.'s credibility the first time itwas
elicited. He objected only once: the second time Kirk said she
believed N.C. Later, Dymenstein elicited Kirk's opinion twice
again on cross-examination, yet he failed to object to the
testimony or to request that it be stricken or disregarded.
WHY IT IS A REALLY GOOD IDEA TO DO A LITTLE RESEARCH ON THE STATE’S EXPERTS
A similar situation was presented to this court in Colgan
v. State, 711 P.2d 533, 534–35 (Alaska App.1985). There,
the same counselor testified that she believed the
complainants: children who said they had been sexually
assaulted by the defendant. In Colgan, as in the present
case, no timely objection was made. This court analyzed
the issue under the plain error rule, Criminal Rule 47(b).
We found that, even if inadmissible, the testimony did not
substantially prejudice Colgan's rights …
It’s an uphill struggle, folks:
[However, a]n analysis of post‑Daubert decisions demonstrates
thatwhereas civil defendants prevail in their Daubert challenges,
most of thetime criminal defendants almost always lose their
challenges to government proffers. But when the prosecutor
challenges a criminal defendant’s expert evidence, the evidence is
almost always kept out of the trial. . . .In the first 7 years after
Daubert, there were 67 reported federal appellate decisions
reviewing defense challenges to prosecution experts. The
government prevailed in all but 6, and even among the 6, only 1
resulted in the reversal of a conviction. In contrast, in the 54 cases
in which the defense appealed a trial court ruling to exclude the
defendant’s expert, the defendant lost in 44 cases. In 7 of the
remaining 10, the case was remanded for
a Daubert hearing.
Model Fingerprint Cross-ExaminationJennifer Friedman
Los Angeles County Public Defender
Background reading materials for cross-
examination
I. Education
II. Training
III. Accreditation
IV. Certification
V. L.A. Police Department Audit and Errors
VI. Fingerprint Basics
VII.Work of Examiner
VIII.Contextual or Observer Bias
IX. Bradford Mayfield Case
X. AFIS cases (computer matching)
XI. NAS Report -- February 2009
XII.Subjectivity
XIII.This Print
XIII. Documentation
XIV. IAI Resolution
XV. Summary
Art vs. Science InstructionUnited States v. Starzecpyzel, 880 F. Supp. 1027,
1050-51 (S.D.N.Y. 1995)
The Court has studied the nature of the skill claimed by
forensic documentexaminers, and finds it to be closer to a
practical skill, such as piloting a vessel, than to a scientific
skill, such as that which might be developed by a chemist or
aphysicist. That is, although forensic document examiners
may work in “laboratories,” and may rely on textbooks with
titles like “The Scientific Examination of Documents,”
forensic document examiners are not scientists – they
are more like artisans, that is, skilled craftsmen.
THE NAS REPORT
National Research Council, National
Academy of Sciences
Congressional Funding
Related to DNA Exonerations
OVERALL CONCLUSIONS
Other than DNA, nearly all forensic
individualization “sciences” rest on
inadequate scientific foundations.
OBSERVER EFFECTS
The tendency of the observer’s
preconceptions and motives to
influence perceptions and/or
interpretation of evidence.
Also known as: context effects;
examiner bias; confirmation bias.
“THE FAILURE TO ADDRESS OBSERVER
EFFECTS IS THE HALLMARK OF JUNK
SCIENCE.”
JUNK SCIENCE CONVICTS INNOCENT CLIENTS
THE BRADFORD MAYFIELD
CASE
“In March 2004, the Federal Bureau of Investigation (FBI) Laboratories identified Brandon Mayfield, an Oregon attorney, as the source of a latent fingerprint recovered from a plastic bag containing explosive detonators found near the site of commuter train bombings in Madrid, Spain that killed 200 people and injured almost 1,400 others. Based primarily on the FBI laboratory’s conclusion, the FBI arrested Mayfield as a material witness in May 2004. Approximately 2 weeks after Mayfield’s arrest, the Spanish Police (SNP) informed the FBI that it had identified an Algerian national, Ouhnaw Doud, as the source of the latent fingerprint.
The FBI subsequently examined Daoud’s fingerprints and withdrew its identification of Mayfield, and Mayfield was released from custody after being held for 14 days.
The FBI issued a formal apology to Mayfield and his family.