Archive for the ‘Scientific Evidence’ Category

California is often the nation’s trend setter: fashion, green technology, locavore movement, and, these days, budget woes.  True to form, another “left coast” idea has moved east.  New York has joined the handful of jurisdictions that permit familial DNA searching to identify suspects. 

Quietly and quickly approved in December 2009, a state rule provides that DNA found at a crime scene that fails to exactly match the DNA of a person already contained New York’s DNA database can nonetheless be used to search for suspects if the DNA closely resembles that of someone on file.

The premise of this strategy is uncomplicated. Family members share genetic traits, and it would be reasonable to conclude that a partial DNA match indicates that a relative of a person in the database is the unknown suspect. Thus, the search can be narrowed to family members of the person who clearly didn’t commit the crime in question (since that person’s DNA does not precisely match the crime scene sample).

I’ve written about the inherent pitfalls of this approach.  While no one wants to rally against legitimate crime fighting tools, there are also issues with literally bringing the investigation into the family room. By any other name, an investigation of this source is based on guilt-by-relation, and since families can be expansive, the investigation would affect more innocent people than guilty.

California has the most aggressive approach to using familial DNA searches as an investigation technique, and other jurisdictions have followed suit. Notably, there is no national standard for how close a DNA profile has to be to qualify as possibly related to the database offender.

Law enforcement officials say the policy frees forensic scientists from sitting on potentially valuable evidence that they had not been able to turn over to local police departments.

As I said in my article, we’re well past debating whether these policies should be implemented at all, however, there needs to be informed discussions about repercussions, regulations, and limitations in connection with these policies.

The most recent installment of the confrontation clause showdown rolled through the Supreme Court on January 11 this year. But just two weeks later, SCOTUS kicked Briscoe v. Virginia to the curb.  While not unexpected, the ruling was a disappointment for advocates (primarily prosecutors) hoping that the Supreme Court would retreat from its decision last year Melendez-Diaz v. Massachusetts. Fortunately, by punting Briscoe, the Supreme Court left the Melendez holding intact. 

In effect, Melendez held that that confrontation clause requires that the lab analyst who performed forensic tests be present and subject to cross-examination (i.e., bring the body). In many states, prior practice was to simply submit the lab report as evidence.  Justice Scalia, in what is perhaps the only issue I agree with him on, wrote the majority for Melendez.

While the result in Briscoe is not unexpected – it presents a bit of a mystery as to why the Court took it so soon after deciding Melendez.  Predictions abound over whether Sotomayor might tilt the 5-4 Melendez split in a different direction. The issue in Briscoe is slightly different from Melendez. Under Virginia law, the burden of subpoening the lab analyst shifted to the defense. As a result, if the defense failed to call the individual who is arguably the State’switness, then the the report was put into evidence and the defendant was out of luck. Other states have this same scheme, but Virgnia has since changed the practice. No doubt that this latter development factored in to the Court’s decision to remand the issue to the Virgnia  Supreme Court.

While the issue is dormant for the time being, I predict we’ll see a challenge to Melendez in the near future.

• Go figure – Dodd is dropping the consumer protection agency provision from the financial regulation bill. http://ow.ly/WTfA #

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The Confrontation Clause rides again – and this time it’s headed back to the Supreme Court for an 11:30am showdown on Monday.

Back in June of 2009, the Supreme Court issued its latest Confrontation Clause pronouncement: in Melendez-Diaz v. Massachusetts, the court prohibited the admission of crime lab reports as evidence in a criminal case unless the scientist who prepared that report is available for questioning by the defense. 

In my opinion, it was the right decision. I’ve seen good lab analysts and I’ve seen bad ones, and the defendant has a right to fully question that person’s scientific capabilities. I analogize it to an airplane: while we generally accept that air travel is safe (unless you were recently on NW Flight 253 on December 25), that planes are properly maintained, and that we will get from point A to point B, who among us is going to board a plane with a drunk pilot at the controls?

Same with a lab analyst. The method may well be reliable, the science may be solid, but if that analyst lacks the skill to perform the job, then Houston (literally) we have a problem. Put another way, would you want an unqualified or incompetent lab analyst  to confuse or comingle your blood sample that results in perhaps the misdiagnosis of a disease, or, worse yet, no diagnosis of a life-threatening illness? I think not.

We demand comptency, and the same should hold true in a criminal trial where freedom is at stake. Competency does not exist by virtue of a white coat and lab report. It is, in a sense, a personal question that requires bringing the person to court to answer it. The ability to complete what is often times a boilerplate or computer-generated report does not give rise to automatic credibility.  There is a reason why the government has the burden to prove guilt beyond all reasonable doubt. The Supreme Court this past June affirmed the obvious: to meet that burden, the lab rat must come to court (having done some time as a lab rat myself, I mean no offense to rodent populations).

In a bit of a surprise move, the Supreme Court will revisit this issue in  Briscoe, et al., v. Virginia on Monday. Suprising since the prior decision is still fresh, but yet the Court  is already considering whether to limit the scope ofMelendez-Diaz. The issue in Briscoeis whether the prosecution or defense must take the initiative to summon the scientist for questioning.  While it sounds like a redux of Melendez-Diaz, Briscoe is a narrow focus on certain state laws (such as Virginia’s) that shift the burden of demanding the appearance of the lab analyst (or other appropriate witness associated with the lab report) in court. 

More specifically, prosecutors must give pre-trial notice of plans to offer evidence related to the lab report and/or its results. Virginia law further provides that the prosecution can offer that report without presenting a witness (i.e., putting in the paper without the person).  The law then puts the onus on the defense to call that witness – as a defense witness! The state does at least pick up the tab of calling that witness.

It will be interesting to see what comes out of the oral argument. It’s also an interesting question why the Court decided to take this case so soon after Melendez-Diaz.I’m sure that the shrieks of prosecutorial horror when the Court dropped the decision in June had something to do with it.  Two things for sure: there will be lively debate and Scalia will be an active participant since the Confrontation Clause is a “pet project” of his. Sotomayor can be the wild card here. 

One last word: Virginia changed its law on this subject subsequent to the Supreme Court granting cert. The Supremes could punt the issue back to Virginia Supreme Court to see how it shakes out under the new law.

Law.com reports that a neurosurgeon had his expert fee slashed by a federal magistrate in New Jersey. Apparently, the good doctor charged $7,000 for TWO hours of deposition testimony. Wait, it gets better. If the case makes it to trial, then the doc rakes in $12,000 per day (rising to $15,000 for out of state appearances). Is this a TV appearance or a court appearance?! You could probably get Bill Clinton (or at least W) for that rate.

The expert, an assistant professor of neurosurgery at Thomas Jefferson University Medical College in Philadelphia, charges $5,000 for the first hour of deposition and $2,000 for every hour thereafter. I’m an assistant professor and thought that lawyers charged exorbitant hourly rates, but, my comment here is, Really?? Doesn’t quite pass the smell test. 

The magistrate was just as appalled and cut the expert’s hourly to $600, which the defendant in the case will cover. If the expert doesn’t agree to reduced rate, the plaintiff will be on the hook for the difference.  The expert was the treating physician in the case, which claims that the plaintiff was rear-ended by an ambulance and resulted in myelopathy and loss of spinal function.

The injuries are serious and tragic, but so is that fee. Those fees hurt everyone involved. It adds credence to the “hired gun” accusations against medical expert. The disabled plaintiff may have to pay the price if the doctor doesn’t agree to the capped rate. If doctors insist on fees above capped rates then it will surely have a chilling effect on contingency fee cases that depend on expert medical evidence.

While U.S. Magistrate Judge Karen Williams noted that neurosurgery may well command a higher fee due to the nature of the work, but she wasn’t about to cave to highway robbery. Hopefully the ruling will serve as a caution in this area. There is a difference between expert medical testimony and extravagant medical testimony.