Law Commons^™

What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone

Linda A. Malone

No abstract provided.

Resolving The Frye Dilemma: A Reliability Approach, Fredric I. Lederer

Fredric I. Lederer

No abstract provided.

Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary

William & Mary Bill of Rights Journal

This Article addresses touch DNA, chemical analysis of skin traces, and the implications for crime scene investigation, arguing that changes in how trace evidence is analyzed require alterations in the law’s approach to its use. Part I discusses the history of traditional DNA analysis. Part II examines the emergence of touch DNA and related technologies and how they differ from traditional DNA analysis. Part III outlines the specific risks created by the collection and storing of results under the current outdated jurisprudence. Part IV focuses on specific risks to suspects and victims of crime. Part V proposes a legal framework …

The New Pcast Report To The President Of The United States On Forensic Science, Robert M. Sanger

Robert M. Sanger

The Hallmark Of A Champion—Or Not, Robert Sanger

Robert M. Sanger

Two decisions that just came down, one from the United States Supreme Court and the other from the California Supreme Court. The former is Hall v. Florida and the latter is In re Champion on Habeas Corpus. The Hall and Champion cases, although they do not cite each other, both discuss significant issues with regard to who is eligible for execution under the Atkins decision.

Hall and Champion perpetuate the myth that capital punishment can be imposed accurately and consistently. Additionally, both cases contain serious errors in interpreting science while suggesting that life and death decisions can be based on …

Rapid Dna Testing, Robert M. Sanger

Robert M. Sanger

In 2010, the FBI began the process of encouraging the development of Rapid DNA testing. Rapid DNA testing involves a fully automated process of developing a “short tandem repeat” (STR) profile from a reference sample. The process consists of automated extraction, amplification, separation, detection and allele calling without human intervention. In other words, it is a quick, hands free method of obtaining a DNA profile.

In this article we will look at this new and expanding area of scientific technology. We will also look at the efforts to regulate it and maintain appropriate scientific standards as well as the issues …

Science Is Not Waiting For The Courts, Robert Sanger

Robert M. Sanger

The Forensic Science Community and the federal government are moving far beyond the courts in an effort to improve the quality of scientific evidence and expert testimony in the courts. Major events in forensics have caused a top to bottom reconsideration of what should count as expert testimony. Last month, the National Institute of Standards and Technology (NIST) and the federal Department of Justice (DOJ) convened the first set of meetings of the Organization of Scientific Area Committees (OSAC). This is a forward-looking approach to forensic science.

The first OSAC meetings were held on February 16 and 17, 2015, at …

Full-Scale Intelligence Quotient Test Scores And The Impropriety Of “Ethnic (Or Socio-Economic) Adjustment” In Atkins Cases, Robert Sanger

Robert M. Sanger

After attending this presentation, attendees will gain new information regarding developments in epigenetics which relate to the validity of Full-Scale Intelligence Quotient (FSIQ) scores in determining intellectual disability for the purpose of eligibility of a criminal defendant to be executed if otherwise subject to the death penalty. (Complete Abstract at page 727 of the proceedings: http://www.aafs.org/sites/default/files/2015/2015Proceedings.pdf )

Empiricism In Daubert And The California Supreme Court In Sargon, Robert Sanger

Robert M. Sanger

California has become a Daubert state. In Sargon v. The University of Southern California, the California Supreme Court held that judges are the “gatekeepers” with regard to expert or scientific evidence in this state, just as has been the case in the federal system (and many other states) since the decision in Daubert. Now that California is avowedly a Daubert state, it is important to understand why courtroom evidence – scientific, expert or, for that matter, otherwise – is properly grounded in empiricism. Empiricism is the theory that knowledge is derived from experience. Understanding this empirical basis for both Daubert …

Redesigning The Science Court, Justin Sevier

Maryland Law Review

No abstract provided.

A Scientific Approach To Scientific Evidence: A Four-Stage Rule For Admissibility And Scope, Robert Sanger

Robert M. Sanger

Scientific or expert testimony is often critical in criminal cases. The Supreme Court has established that the trial judge is the "gatekeeper" who is to determine what evidence is allowed before the jury. The current rules of evidence are not organized in a way that makes this task readily intelligible. This chapter proposes a more direct our-step process to accomplish the gatekeeping function.

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 …

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

Robert M. Sanger

In a previous series of articles for this magazine, I took the position that California really was a Daubert jurisdiction in the sense that Kelly and Frye and thenexisting case law required that the court be the “gatekeeper” and make a determination as to: 1) whether a science (or area of expertise) was a science (or area of expertise); 2) whether the witness was a scientist (or expert); 3) whether the data was reliable; and then, and only then, 4) what a true scientist (or expert) could say based on the science and based on the reliable data. In the …

The Admissibility Of Bayesian Likelihood Ratios, Robert Sanger

Robert M. Sanger

As someone once said, “there are lies, damned lies and statistics.” Anyone who has tried a case where statistics are presented to the jury knows how powerful statistics can be. Jurors are generally not versed in statistics and are vulnerable to being misled. Ironically, judges may not be much better at identifying valid statistical analyses as opposed to bogus ones.

In this Criminal Justice column we will look at statistical analysis and its place in the courtroom. We will look at a recent decision of the British Courts and the implications for that type of thinking on American jurisprudence. To …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

David S Caudill

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …

Scientific Evidence In The Age Of Daubert: A Proposal For A Dual Standard Of Admissibility In Civil And Criminal Cases , William P. Haney Iii

Pepperdine Law Review

No abstract provided.

Toward A Neuroscience Model Of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine, Jean Eggen, Eric Laury

Jean M. Eggen

The “neuroscience revolution” has now gained the attention of legal thinkers and is poised to be the catalyst for significant changes in the law. Over the past several decades, research in functional neuroimaging has sought to explain a vast array of human thought processes and behaviors, and the law has taken notice. Although functional neuroimaging is not yet close to being a staple in the courtroom, the information acquired from these studies has been featured in a handful of cases, including a few before the United States Supreme Court. Our assertion involves the incorporation of functional neuroscience evidence in tort …

Science On Law's Terms: Implications Of Procedural Legitimacy On Scientific Evidence, Nayha Acharya

LLM Theses

Scientific evidence is relied on more and more in litigation. Discussions and debates aimed at enabling courts to make the best use scientific evidence are increasingly critical. This thesis adds the perspective of procedural legitimacy to the science and law discussion. Procedural Legitimacy is the concept that consistent adherence to legal procedure maintains the overall legitimacy of the legal system, and the validity of its outcomes. I argue that the integrity of legal procedures must be maintained where scientific evidence is presented, so that judicial decisions that rely on scientific evidence are legitimate.

The Impact Of Daubert On Forensic Science, Henry F. Fradella, Lauren O'Neill, Adam Fogarty

Pepperdine Law Review

No abstract provided.

Neuroscience In The Courtroom: An International Concern, Dominique J. Church

William & Mary Law Review

No abstract provided.

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Pepperdine Law Review

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …

Liar, Liar, Jury's The Trier? The Future Of Neuroscience-Based Credibility Assessment And The Court, John B. Meixner Jr.

Scholarly Works

Neuroscience-based credibility-assessment tests have recently become increasingly mainstream, purportedly able to determine whether an individual is lying to a certain set of questions (the Control Question Test) or whether an individual recognizes information that only a liable person would recognize (the Concealed Information Test). Courts have hesitated to admit these tests as evidence for two primary reasons. First, following the general standard that credibility assessment is a matter solely for the trier of fact, courts exclude the evidence because it impinges on the province of the jury. Second, because these methods have not been rigorously tested in realistic scenarios, courts …

Close Test Scores And Epigenetics In Atkins Cases, Robert M. Sanger

Robert M. Sanger

In the Atkins case, the United States Supreme Court held that it was unconstitutional to execute a person who was intellectually disabled (mentally retarded). An IQ score is evidence that can be considered in making the determination of whether a particular individual is intellectually disabled. Certain prosecution experts seek to add points to the scores of African Americans as a form of "ethnic adjustment" making those individuals more susceptible to being put to death. This article examines the molecular biology issues that may have an effect on whether such points should properly be added.

Judicial Gatekeeping And The Seventh Amendment: How Daubert Infringes Upon The Constitutional Right To A Civil Jury Trial, Brandon L. Boxler

W&M Law Student Publications

This Article begins by reviewing the history, purpose, and function of the Seventh Amendment within the American constitutional system. It then discusses the Supreme Court‘s analytical framework for preserving the fundamental features of the right to a civil jury trial while simultaneously permitting rational legal development of the jury system. Next, the Article provides a brief overview of the Court‘s Daubert jurisprudence, and argues that the creation of judicial gatekeeping has caused an institutional shift of adjudicatory authority away from juries and into the hands of judges in violation of the Seventh Amendment. The Article concludes by suggesting three legal …

Forensic Science: Why No Research?, Paul C. Giannelli

Faculty Publications

The National Academy of Sciences ground-breaking report on forensic science – Strengthening Forensic Science in the United States: A Path Forward – raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles – in particular, to support claims with empirical research. The Report observed that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques. There is no evident reason why such research cannot be conducted.”

The Report went on to identify fingerprint examinations, firearms (ballistics) …

Comparative Bullet Lead Analysis: A Retrospective, Paul C. Giannelli

Faculty Publications

For over thirty years, FBI experts testified about comparative bullet lead analysis (CBLA), a technique that was first used in the investigation into President Kennedy’s assassination. CBLA compares trace chemicals found in bullets at crime scenes with ammunition found in the possession of a suspect. This technique was used by the FBI when firearms (“ballistics”) identification could not be employed – for example, if the weapon was not recovered or the bullet was too mutilated to compare striations. Although the FBI eventually ceased using CBLA, the Bureau’s conduct in first employing the technique and then defending it after it was …

More Views From The Ivory Tower: The Kiss Principle - Keep It Simple, Solicitor, David Spratt

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Everything New Is Old Again: Brain Fingerprinting And Evidentiary Analogy, Alexandra J. Roberts

Law Faculty Scholarship

Brain Fingerprinting uses electroencephalography to ascertain the presence or absence of information in a subject's brain based on his reaction to particular stimuli. As a new forensic tool, Brain Fingerprinting technology stands poised to exert a tremendous impact on the presentation and outcome of selected legal cases in the near future. It also provides a fertile case study to examine the role of analogical reasoning in the process by which lawyers, experts, judges, and the media influence how factjinders perceive and evaluate unfamiliar types of proof When juridical metaphor disguises, distorts, or destroys ideas, it ceases to serve as an …

What Do Snowmobiles, Mercury Emissions, Greenhouse Gases, And Runoff Have In Common?: The Controversy Over "Junk Science", Linda A. Malone

Faculty Publications

No abstract provided.

The Best Scientific Evidence Available: The Whaling Moratorium And Divergent Interpretations Of Science, A. W. Harris

William & Mary Environmental Law and Policy Review

No abstract provided.