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Race, Gatekeeping, Magical Words, And The Rules Of Evidence, Bennet Capers -- Professor Of Law

Vanderbilt Law Review

Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence-what is deemed relevant, what is deemed trustworthy-to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.

One area that has escaped racialized scrutiny-at least of the type I am interested in-is that of expert testimony. Even in my own work on race and evidence, I have avoided discussion of expert testimony. In …

Understanding The Impact Of Scientific Testimony On Potential Jury Members: Independent And Interactive Effects Of Expert Characteristics And Jury Member’S Social Location, Ellory R. Dabbs

Graduate Theses, Dissertations, and Problem Reports

As science and technology evolve, they impact society at different levels. With these changes, it is important to understand how members of society will be affected. One area where there has been a rise in the use of scientific information is in jury trials. Those who are on trial for a criminal offense are more often relying on forensic evidence, and forensic experts, to aid in their defense, and those who are prosecuting a criminal case are also relying on forensic evidence and forensic experts. However, forensic evidence is not consistent in type or interpretation – what one person may …

Race, Gatekeeping, Magical Words, And The Rules Of Evidence, I. Bennett Capers

Faculty Scholarship

Although it might not be apparent from the Federal Rules of Evidence themselves, or the common law that preceded them, there is a long history in this country of tying evidence—what is deemed relevant, what is deemed trustworthy—to race. And increasingly, evidence scholars are excavating that history. Indeed, not just excavating, but showing how that history has racial effects that continue into the present.

One area that has escaped racialized scrutiny—at least of the type I am interested in—is that of expert testimony. In this brief Essay written for the Vanderbilt Law Review Symposium, Reimagining the Rules of Evidence at …

Testing The Waters: An Investigation Of The Impact Of Hot Tubbing On Experts From Referral Through Testimony, Jennifer T. Perillo, Anthony D. Perillo, Nikoleta Despodova, Margaret Bull Kovera

Publications and Research

Objective: The present research examined whether concurrent expert testimony (“hot tubbing”) and court appointed testimony reduced adversarial allegiance in clinical experts’ judgments compared with traditional adversarial expert testimony. Hypotheses: We predicted Hypothesis 1: Defense experts would render more not responsible judgments and lower ratings of criminal responsibility than would prosecution experts; Hypothesis 2: Adversarial allegiance effects on experts’ judgments would be heightened for adversarial experts and attenuated for concurrent experts over time; Hypothesis 3: Adversarial and concurrent experts would report higher dissonance than would court-appointed experts and adversarial experts’ ratings would increase over time, concurrent experts’ ratings would decrease, and …

Junk Evidence: A Call To Scrutinize Historical Cell Site Location Evidence, Victoria Saxe

The University of New Hampshire Law Review

Historical cell site location information (CSLI) has been offered as objective, scientific location evidence in criminal trials, but is far less precise than the claims it is used to support. Not only is there no way to pinpoint a cellphone’s precise geographic location from historical CSLI, but there are also no known validation or error rates for the methodologies used to collect and analyze this data. A 2019 telecommunications scandal in Denmark revealed gross inadequacies in the cellphone data and software used by law enforcement to analyze this type of evidence. The scandal sent shockwaves through the country’s legal community …

The Work Of Expert Testimony: Central Americans, Human Rights Defenders, And Immigration Courts, Allan F. Burns

Maya America: Journal of Essays, Commentary, and Analysis

Anthropologists have worked in legal arenas as experts on civil, criminal, and asylum cases throughout the history of the discipline. Today expert witnesses give opinions on the conditions of countries where immigrants flee, and that work includes ethnographic interviewing, research into the causes of political and social violence, and appearing in court through written affidavits and personal testimony. Expert testimony today includes helping in the defense of people fleeing intimate partner violence, persecution based on sexual orientation, threats and violence by gangs, and those whose political opinions put them at risk. Immigrants in the United States face institutional culture shock, …

Full Issue - Maya America V2, I1, Alan Lebaron

Maya America: Journal of Essays, Commentary, and Analysis

Full issue of Maya America, volume 2, issue 1.

The "Damned" In A Flashover State: Arson And The Use Of Scientific Methods And Expert Testimony In West Virginia, Christopher W. Maidona

West Virginia Law Review Online

The fire moved quickly through the house as Cameron Todd Willingham screamed for his children from the front porch. Inside the blaze were his three children. Firefighters arrived, uncoiled hoses, and aimed water at the raging fire. However, all three Willingham children died that night from smoke inhalation.

News of the December 23, 1991, tragedy spread throughout Corsicana, Texas. Meanwhile, investigators sought to determine what caused the fire. The investigators “toured the perimeter of the house, taking notes and photographs, like archeologists mapping out a ruin.” In the kitchen, they found smoke and heat damage—signs the fire had not originated …

General Acceptance Among Experts Of Eyewitness Research Findings: Sources Of Influence, Sneha Suresh

Student Theses

Recent advances in eyewitness identification research has been rapidly expanding with emergence of new eyewitness phenomena. At the same time, the number of experts being call upon to testify in court to the reliability of these various phenomena are also increasingly. For such testimony to be admissible, it must meet various criteria of general acceptance established by the courts. In the current study, 54 experts responded to a survey to assess the extent of their consensus of general acceptance of various eyewitness phenomena, collect information on their demographics, opinions regarding various other courtroom phenomenon and assess the impact of recent …

Debunked, Discredited, But Still Defended: Why Prosecutors Resist Challenges To Bad Science And Some Suggestions For Crafting Remedies For Wrongful Conviction Based On Changed Science, Aviva A. Orenstein

Articles by Maurer Faculty

Flawed science has significantly contributed to wrongful convictions. Courts struggle with how to address such convictions when the mistaken science (such as bogus expert claims about the differences between accidental fires and intentionally set ones) significantly affected the guilty verdict but there is no DNA evidence to directly exonerate the accused. My short piece explores why prosecutors often defend bad science. Mistakes in science tend to serve the prosecution, but there are other more subtle factors that explain prosecutors’ reluctance to address flawed forensic testimony. Such reluctance may arise from fondness for the status quo and a resistance to subverting …

Reflections On The Challenging Proliferation Of Mental Health Issues In The District Court And The Need For Judicial Education, Jessie B. Gunther

Maine Law Review

Maine's courts constantly deal with litigants with mental health issues. Historically, our decisions have relied on expert testimony addressing specific issues of responsibility, risk, and treatment. In recent years, by my observation, court involvement in the treatment process has increased, but the availability of expert evidence has decreased. Thus, we as judges have become the ultimate decision-makers regarding litigants' mental health treatment in both criminal and civil contexts, without supporting expert testimony. In the face of this development, three interconnected issues arise. The first issue is whether judges should even attempt to fill the void caused by lack of expert …

Expert Testimoney And Opinion Evidence In A Narcotics Prosecution, Robert Ewald

Faculty Works: CRJ and LS (2002-2017)

Courts in New York have admitted expert testimony when “it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of a typical juror.” People v. DeLong 60 NY2d 296 (1983). More specifically, in making such a determination, the trial court must consider [1] “when jurors are able to draw conclusions from the evidence based upon their day-to-day experience, their common observation and their knowledge, [2] and when they would be benefited by the specialized knowledge of an expert witness.” Cronin at 433. The Court of Appeals has recognized that …

Cross-Racial Identifications: Solutions To The "They All Look Alike" Effect, Laura Connelly

Michigan Journal of Race and Law

On a late summer evening in August of 1997, Nathan Brown was in his apartment rocking his young daughter to sleep when the police knocked on his door. The police sought Brown, one of a few Black men in his apartment complex, after a young White woman said she had been assaulted by a shirtless Black man wearing black shorts with strong body odor walking through the complex’s courtyard. Minutes later the police took Brown outside and put him in the patrol car for a one-on-one “showup.” They brought him out by himself to see the victim wearing black shorts …

Polygraph Admission Through Compulsory Process, Timothy J. Walsh

Akron Law Review

Polygraph evidence is included within the broad category of expert testimony, yet it is treated quite differently from other forms of expert testimony. If admissible at all for the defense, polygraph evidence almost always requires the stipulation of the prosecution for it to be admitted into court. Such a requirement vests solely, within the hands of a prosecutor, the ability to eliminate that proof which may be necessary for the defendant to effectively prove his innocence. Furthermore, in some jurisdictions a defendant cannot even place his faith in the sympathy of a prosecutor. Instead, a rule bars him from proving …

Jurors' Evaluations Of Expert Testimony: Judging The Messenger And The Message, Sanja Kutnjak Ivkovic, Valerie P. Hans

Valerie P. Hans

Jurors are laypersons with no specific expert knowledge, yet they are routinely placed in situations in which they need to critically evaluate complex expert testimony. This paper examines jurors' reactions to experts who testify in civil trials and the factors jurors identify as important to expert credibility. Based on in-depth qualitative analysis of interviews with 55 jurors in 7 civil trials, we develop a comprehensive model of the key factors jurors incorporate into the process of evaluating expert witnesses and their testimony. Contrary to the frequent criticism that jurors primarily evaluate expert evidence in terms of its subjective characteristics, the …

Can Jury Trial Innovations Improve Juror Understanding Of Dna Evidence?, B. Michael Dann, Valerie P. Hans, David H. Kaye

Valerie P. Hans

A single spot of blood on a pink windowsill will tell investigators who broke a windowpane, turned a lock, and kidnapped 2-year-old Molly Evans from her bedroom in the middle of the night. An expert witness will testify that the DNA profile of the blood evidence recovered from the windowsill was entered into CODIS, an electronic database of DNA profiles. That process yielded a “hit,” identifying the defendant as the most likely source of the blood inside Molly’s room. But will jurors be able to understand the expert’s intricate analysis and use it to reach a verdict? And what—if any—steps …

Statistics In The Jury Box: How Jurors Respond To Mitochondrial Dna Match Probabilities, David H. Kaye, Valerie P. Hans, B. Michael Dann, Erin J. Farley, Stephanie Albertson

Valerie P. Hans

This article describes parts of an unusually realistic experiment on the comprehension of expert testimony on mitochondrial DNA (mtDNA) sequencing in a criminal trial for robbery. Specifically, we examine how jurors who responded to summonses for jury duty evaluated portions of videotaped testimony involving probabilities and statistics. Although some jurors showed susceptibility to classic fallacies in interpreting conditional probabilities, the jurors as a whole were not overwhelmed by a 99.98% exclusion probability that the prosecution presented. Cognitive errors favoring the defense were more prevalent than ones favoring the prosecution. These findings lend scant support to the legal argument that mtDNA …

Burris V. State: Suggestions For The Continued Development Of The Rule For Admitting The Testimony Of Gang Experts, Michael Jacko

Maryland Law Review Online

No abstract provided.

Forensic Evidence - Toward A Legacy Of Truth-Telling And Fair Trial For International Criminal Tribunals, Beth S. Lyons

Beth S. Lyons

No abstract provided.

“Far From The Turbulent Space”: Considering The Adequacy Of Counsel In The Representation Of Individuals Accused Of Being Sexually Violent Predators, Michael L. Perlin, Heather Ellis Cucolo

Michael L Perlin

Abstract:

For the past thirty years, the US Supreme Court's standard of Strickland v. Washington has governed the question of adequacy of counsel in criminal trials. There, in a Sixth Amendment analysis, the Supreme Court acknowledged that simply having a lawyer assigned to a defendant was not constitutionally adequate, but that that lawyer must provide "effective assistance of counsel," effectiveness being defined, pallidly, as requiring simply that counsel's efforts be “reasonable” under the circumstances. The benchmark for judging an ineffectiveness claim is simply “whether counsel’s conduct so undermined the proper function of the adversarial process that the trial court cannot …

Juror Perceptions Of Eyewitness Identification Evidence, Timothy G. Wykes

Theses and Dissertations (Comprehensive)

Jurors rely on eyewitness testimony in deciding a defendant’s guilt or innocence. Archival analyses of hundreds of post-conviction DNA exonerations have identified eyewitness misidentification as the highest individual factor contributing to wrongful convictions (Innocence Project, 2014). Internationally, criminal justice systems have employed procedural safeguards (PSs) to educate juries on factors affecting eyewitness identification accuracy. Two such safeguards include the introduction of eyewitness expert testimony during trial proceedings and the reading of cautionary instructions by a presiding judge. In an independent factorial design, this research sought to examine the effects of a model judicial caution drafted by the Ontario Judicial Council …

Evaluating Evidence Of Childhood Abuse As A Function Of Expert Testimony, Judge’S Instructions, And Sentence Recommendation, Judith Platania, Fotine Konstantopoulou

Arts & Sciences Faculty Publications

In the current study we examined how jurors utilize evidence of childhood abuse as a function of expert testimony and sentence recommendation. We also varied the specificity of instructional language in the context of mitigating circumstances. We predicted jurors who impose a life sentence would rate evidence of childhood abuse as significantly more important in determining sentence compared to jurors who impose the death penalty. Furthermore, we expected this effect to be moderated by expert testimony. Testimony of childhood abuse increased importance ratings of non-statutory mitigating circumstances. This effect was more evident for jurors who imposed a life sentence compared …

The New Rules For Admissibility Of Expert Testimony: Part Ii, Robert Sanger

Robert M. Sanger

As described in the last Criminal Justice column for the Santa Barbara Lawyer magazine, the California Supreme Court’s opinion in Sargon Enterprises v. University of Southern California, 55 Cal. 4th 747, 149 Cal. Rptr. 3d 614 (2012) made it clear that California is now, (and perhaps unsuspectingly has been for some time), a Daubert jurisdiction. This requires the trial court be the “gatekeeper” and make a determination as to the admissibility of scientific or expert testimony and to determine the limits of any testimony, if it is introduced. The Court held that there are essentially three criteria: The first criterion …

Jailhouse Informants, Robert M. Bloom

Robert Bloom

No abstract provided.

Tender Is The Night: Should Your Expert Be?, Cynthia Ford

Faculty Journal Articles & Other Writings

This article discusses the practice of tendering an expert for acceptance or certification by the court at trial in the presence of the jury. The article considers Tennessee and Montana state and federal evidence law. The author suggests that Montana courts and lawyers should comply with the A.B.A. Updated Civil Trial Standard 14 and let juries assess the testimony of a Rule 702 witness without a special designation accorded by the judge certifying a witness as an "expert" in his or her field.

Voice Identification Experts, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines United States v. Schiro, 679 F.3d 521 (7th Cir. 2012) and the issue of reliability of voice identification or "earwitness identification." Given that mistaken eyewitness identification is a major contributor to wrongful convictions, courts should instruct jurors of the frequency of voice identification mistakes. In addition, jurors should be educated as to factors that promote or detract from accuracy. Jurors should be instructed to examine identification testimony carefully.

The (In)Admissibility Of False Confession Expert Testimony, David A. Perez

Touro Law Review

This Comment discusses the relationship between police interrogation tactics and false confessions in order to address the admissibility of false confession expert testimony, a question that has traditionally been left to the discretion of the trial judge. The current literature-indeed, the prevailing consensus-argues for drastic changes to police interrogation practices to prevent false confessions and, in combination with such changes, demands that expert testimony on false confessions be admitted in criminal trials. Despite the relative unanimity in the literature, state and federal courts remain bitterly divided on the question of admissibility of false confession expert testimony. Each decision in this …

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew E. Taslitz

Northwestern Journal of Law & Social Policy

Much has been written about the need to videotape the entire process of police interrogation of suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC) ratified a uniform recording statute for consideration by the states. I was …

Jailhouse Informants, Robert M. Bloom

Robert M. Bloom

No abstract provided.

Williams V. Illinois And The Confrontation Clause: Does Testimony By A Surrogate Witness Violate The Confrontation Clause?, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party. …