Evidence Commons^™

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 The Hall and Champion cases, although they do not cite each other, both discuss significant issues with regard to who is eligible for execution under the Atkins decision.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 …

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 )

Managing Big Data In Complex Litigation, Robert Sanger

Robert M. Sanger

Any lawyer doing complex litigation, civil or criminal, has confronted what seems like an insurmountable sea of data. Many of us have used computer relational database programs and otherwise fought through the mass of information to prepare to try a case. There have been some advancements in managing data made by law enforcement in recent years to make their investigations manageable. During law enforcement investigations, the goal is somewhat different than that of the lawyer preparing for trial; however, the concepts are useful.

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 …

Government Denial Under Oath – Hidta, Hemisphere And Parallel Construction, Robert Sanger

Robert M. Sanger

In September of last year, the New York Times reported on a remarkable program of the United States Government that involved spying on domestic phone records without a warrant.1 The news had a limited independent impact as it seemed to be lost in the disclosures of Michael Snowden regarding the National Security Administration (NSA), which purportedly was aimed at foreign terrorists but also included domestic targets. Yet, this program, called “Hemisphere,” was authorized by the Office of the President of the United States, Office of Drug Control Policy, under the High Intensity Drug Trafficking Area Program (HIDTA) and it primarily …

Shredded Fish,, Robert Sanger

Robert M. Sanger

There are just too many criminal laws and their proliferation has expanded exponentially over the last few decades. This is overcriminalization. In addition, the jurisdiction of federal authorities under general or vague laws has vastly expanded federal criminal prosecution of people and organizations for what otherwise would not be a crime. This is overfederalization and overcriminalization. In this article we will look at the current litigation before the United States Supreme Court that had directly taken on this controversy. The case of Yates v. United States involves briefing by the parties and by amici curae directly invoking and defending the …

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 …