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48 Cards in this Set
- Front
- Back
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Name 3 reasons that forensic expert opinions might be wrong, misleading, and contribute to erroneous outcomes.
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(1) "Pure," "impartial," "unbiased" science is "corrupted" by association with the legal system: lawyerly "spin," police techniques, and close relationship between scientists and police; (2) Human error, whether honest error or fraud; and (3) bad science, or junk science -- invalid scientific theory or technique.
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Objection: authentication
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Response: Certified public records can be self-authenticated under Fed. R. Evid. 902(2) & (4)
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Objection: best evidence
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Response: Copies of documents authenticated under Fed. R. Evid. 902 are admissible under Rule 1005
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Objection: Hearsay
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Responses: (a) Fed. R. Evid. 803(8) excpetion for official records excludes matters observed by police and other law enforcement personnel in criminal cases from its exception, BUT most courts hold forensic scientists testing and recording performed in a routine and non-adversarial setting. (b) 803(6) Business Record -- if not excluded by 803(8), a majority say 803(6) is an alternate exception to hearsay if record is (i) routine and (ii) trustworthy
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Objection: Confrontation Clause not adhered to
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Responses: (a) out-of-court testimonial statement is inadmissible hearsay in a criminal trial unless (i) declarant is unavailable and (ii) defendant had prior opportunity to cross-examine. (b) testimonial statements are those ex parte examinations offered as evidence against the accused, including, but not limited to, (i) prior testimony at prelim. hearing, grand jury, former trial and (ii) structured police interrogations; (iii) primary purpose test is used to determine whether it's a structured police interrogation
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How do you catch untrustworthy forensic science before trial?
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(a) Obtain (1) underlying raw data/reports, (2) correspondence and notes between investigators and forensic scientists, (3) certification and examiner credentials; (b) reserach and fact-finding: (1) forensic manuals, (2) comb reports for absolute statements, suspicious "overlooked" evidence, suspect communications, and questionable test results, (3) submit to independent expert, (4) obtain independent re-testing, (4) determine if 'Daubert' or 'Frye' hearing is needed
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How do you catch untrustworthy forensic science during trial?
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(a) look for enhanced testimony; (b) look for absolute statements; and (c) cross examine on all weaknesses
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How do you catch untrustworthy forensic science after trial?
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(a) Motion for New Trial Based Upon Newly Discovered Evidence, but can you satisfy 'Berry' standards? (b) Habeas corpus; and (c) clemency
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What must a proponent of evidence show in order to admit scientific evidence?
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(1) Authenticity of specimens tested, if any, under Fed. R. Evid. 901 & 902; (2) qualify expert under Rule 702; (3) testimony must "assist" trier of fact (R. 702); (4) validity of theory, reasoning, methodology, and the technique that applies to it under Fed. R. Evid. 401-403, 702; (5) proper applications of those techniques in THIS case; and (6) proper test interpretation in THIS case with a proper expression of opinion.
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Witnesses need to show evidence is admissible?
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(1) Chain of custody witnesses; (2) academic witnesses to verify theory, techniques, methods; (3) application witnesses, the persons who performed the tests; and (4) interpretive witnesses who may draw conclusions and make opinions -- when these are distinct from the application witnesses
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What are 3 policy justifications for 'Frye'?
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(1) Scientists, not the court, should determine questions of scientific validity and reliability -- scientists more qualified, scientific general acceptance insures reserve of experts to testify, and promotes uniformity of decisions; (2) conservative test is needed -- 'Frye' is conservative, deliberately intended to be obstacle to admission of evid. based on new scientific evid., restraint warranted in criminal cases, in cases of precedence, and the "mystic infallability" of science; (3) 'Frye' "general acceptance" test is judicially manageable
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What is the 'Frye' test?
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If (1) the expert testimony is based upon a new or novel scientific theory, principle, or technique, then (2) the underlying theory must be GENERALLY ACCEPTED as (3) reliable by (4) scientists in the relevant field
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What determinations must the Court make under 'Frye'?
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(1) Does 'Frye' apply (it's only applied to new or novel "scientific" evidence)? (2) What scientific field(s) must accept the theory/technique as reliable? (3) Is there GENERAL ACCEPTANCE in those fields (the inquiry is do SCIENTISTS accept generally; not does the court find it reliable)?
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What is the procedure for determining whether evidence is admissible under 'Frye'?
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(1) General accpetance is a preliminary admissibility issue governed by the State's equivalent of Fed. R. Evid. 104(a), and the trial ct. will hold evid. hearing. (2) burden of establishing "general acceptance" is on the proponent of the evid. (3) Trial ct. considers (a) judicial opinions, (b) scientific and legal articles, (c) expert testimony.
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What is the standard for appeal of a 'Frye' ruling?
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De novo review
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To what evidence has 'Frye' been historically applied?
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Opinions based upon principles that are both "new" and "scientific"
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What policy governs the application of 'Frye'?
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Its narrow common-sense purpose: to protect the jury from techniques which though new, novel, or experimental, convey a misleading aura of certainty.
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When is expert opinion testimony generally subject to scrutiny under 'Frye'?
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Generally when there is a special feature which "blindsides" the jury
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What is the general rule of 'Frye'?
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The test only applies to the limited class of expert testimony that is based on scientific technique that is (a) new or novel and (b) appears in name and description to provide "definitive truth," i.e., a misleading aura of certainty.
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What are the two elements of the 'Frye' test?
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(1) New or novel theory or technique and (2) misleading aura of certainty
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What is 'Daubert'?
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U.S. S. Ct. case that (1) eliminated 'Frye' for Federal trials; (2) set the trial court as the gatekeeper of evidence, not the scientific community; (3) established new factors: must be (a) relevant and (b) reliable (defined as reasoning or methodology underlying scientific testimony is scientifically valid); (4) the trial ct. determines whether reliable using list of factors and "general acceptance" is one of many; (5) limited holding to (a) scientific evidence and (b) the methodology, not the conclusions (later changed by other cases)
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What are the factors of 'Daubert'?
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(1) relevancy and (2) reliability (according to list of factors)
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What is 'Joiner'?
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U.S. S. Ct. case that modifies 'Daubert' -- (1) provides for an "abuse of discretion" standard in appellate review of 'Daubert' rulings by trial cts.; and (2) allows for the conclusions to be reviewed, not just methodology
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What are the elements of a 'Daubert' hearing after 'Joiner'?
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(1) relevancy, (2) reliability of methods and conclusions, (3) reviewable under "abuse of discretion"
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What is 'Kumho Tire'?
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Applies 'Daubert' gatekeeping and reliability test to all Fed. R. Evid. 702 experts, not just scientific experts; trial court, subject to its sound discretion, must determine (1) whether this person is a R. 702 expert; (2) what factors of reliability to apply; and (3) whether special proceedings are necessary to determine factors of reliability
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What are the elements of a 'Daubert' hearing after 'Kumho Tire'?
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(1) relevancy, (2) reliability or methods and conclusions, (3) of all Fed. R. Evid. 702 experts, (4) subject to special proceedings to determine (a) whether reliability determination is necessary, i.e., is this person an expert and (b) what those factors of reliability are; and (5) all of which is subject to appellate review for "abuse of discretion"
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What is the current 'Daubert' test for scientific evidence?
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Is the testimony (1) relevant and (2) reliable, defined as (a) is the reasoning or methodology underlying the testimony scientifically valid? and (b) is there too great an analytical gap between the data produced by the methodology and the conclusion/opinion?
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What is the procedure for conducting a 'Daubert' inquiry?
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(1) Make a Fed. R. Evid. 104(a) determination, if necessary, i.e., determine under the authority given the court, whether the evidence is admissible; (2) whether such a determination is necessary; (3) if necessary, what sort of reliability factors are reasonable to determine reliability?
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What standard is used to review 'Daubert' inquiries?
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Abuse of discretion
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To which experts do 'Daubert' inquries apply?
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All experts under Fed. R. Evid. 702
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Name the factors of reliability used in the 'Daubert' trilogy inquiry.
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(1) Testing and testability; (2) peer review and publication; (3) error rate; (4) existence and maintenance of standards and controls; (5) general accpetance; (6) ipse dixit of the expert; (7) research independent of litigation; (8) same level of intellectual rigor; (9) does field of expertise lack reliability? (10) alternate explanations accounted for? (11) personal knowledge, experience, and training.
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What must the proponent of DNA evidence show?
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(1) authenticity of specimans tested, establishing chain of custody for each; (2) expert qualified; (3) validity or reliability of (a) underlying technique, methodology, etc. through judicial notice of DNA theory and (b) the technique, device and testing used to produce a DNA "match" in this case, through judicial notice of RFLP method, PCR method, and (outside Alabama) Testing kits; and (4) properly applied (flaw in application is issue of weight) and interpreted in THIS case -- not judicially noticed
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What issues arise in determining whether a proper DNA test has been performed?
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(1) Was a generally accepted (if 'Frye') or reliable (if 'Daubert') test protocol used? (2) Was a generally accepted/reliable commercial test kit used in this case? (3) Was there any human error in performing the test protocol? (4) Any human error in using the commercial kit?
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What is the majority view on DNA testing admissibility?
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Majority view: both issues go to weight, not admissibility; issue must be raised by the evidence's opponent as a weight issue; exception: any human error in performing the test protocol or in using commercial kid goest to weight UNLESS the defendant demonstrates human errors are so severe that they undermine reliabilty
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What is the minority view on DNA testing admissilbiity?
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Prosecutor must offer some evidence that an accepted protocol and commercial kit were used and must affirmatively demonstrate there was no human error in the test performance (through affidavit, testimony, quality controls used, etc.).
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What circumstantial evidence may be used to infer chain of custody?
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(1) Sealed package doctrine; (2) habit and routine practice, under Fed. R. Evid. 406; (3) documents such as "chain of custody sheets," under Fed. R. Evid. 803(5), (6), and (8); (4) totality o circumstances; (5) presumption of regularity and proper handling for (a) gov't investigators, (b) hospital workers, (c) postal workers, and (d) minor links in the chain, unless defendant offers evidence of mishandling, tampering, ill will, etc.
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What are the two theories of when chain of custody begins?
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(1) When police seize evidence; and (2) at the time of the incident.
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Explains the Police Seizure Theory of Chain of Custody.
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Purpose of chain is to establish that evidence has not been tampered with; state does not have to account for evidence prior to its seizure of the evidence; links are persons who possess evidence after state custody; relevance must be shown
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Explain the Relevance Theory of Chain of Custody.
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Purpose is to connect fungible evidence to an incident to show relevance; analysis begins with incident that connects it to case and links must flow from incident.
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When does the chain of custody end?
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Either at the analysis of the evidence or at the trial, depending on the purpose of offering the evidence.
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If evidence is being offered as "real evidence" to the jury, when does the chain of custody end?
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At trial.
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If evidence is being offered because analysis makes the evidence relevant, when does the chain of custody end?
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And the analysis of the evidence; e.g., DNA sample.
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What is the Florida Rule of the End of Chain of Custody?
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For drugs, always ends at the trial and drugs must be introduced at trial.
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Upon what must a lay opinion be based?
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Perception of witness, so long as the opinion is helpful to the trier of fact
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What standard is used to determine whether a statement is testimonial under 'Crawford'?
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Under 'Davis' the ct. examines the primary purpose of the statement to see whether the declarant is bearing testimony.
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Name some situations in which the 'Frye' inquiry would not apply.
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Expert personal opinion, under 'Stoll'; social science and behavioral science research, unless research used to form diagnosis; physician or psychiatrist opinions; physical comparisons; verifiable data; or new applications of established and accepted techniques.
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How, if at all, is 'Frye' used in civil cases?
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It is used in most 'Frye' jurisdictions but only to an expert's methodology.
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What is the Alabama inquiry under 'Frye'?
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Must prove scientific principles, methods, or procedures that have gained general acceptance in the field in which the expert is testifying under 'Slay'
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