Filed under: Forensics

AVOIDING THE TERM “REASONABLE DEGREE OF SCIENTIFIC CERTAINTY”

by: Dennis J. Ryan, an ALM Listing Expert

Recently, the National Commission on Forensic Science published a Views Document by the Subcommittee on Reporting and Testimony dealing with the terminology “Reasonable Degree of Scientific Certainty” or any variation of the term which may be discipline-specific.  The Commission was highly critical of using the term in testimony by forensic experts, and suggested that the scientific community should not encourage the use of this terminology. The Commission recommends abandoning this phrase, which has been used for many years in courts across the United States.  The Commission admits that there is no clear alternative to the term “reasonable degree of scientific certainty,” and they admit that work is needed in this area to strengthen terminology for expressing an expert’s opinion.

The term “reasonable degree of scientific certainty” is not defined in any standard medical or scientific journals; rather, it is a legal term that was first linked to opinion testimony in a 1969 case (Twin City Plaza Inc. v. Central Surety & Ins. Corp 409 F.2d 1195, 1203 (8th Cir. 1969). The Daubert-related cases, Daubert, Joyner and Kumho, and the Federal Rules of Evidence 702-705 do not require any similar language.  The Daubert and Frye tests serve to exclude any speculative testimony and preclude the need for any such language relating to scientific certainty.

The Commission recommended that courts discontinue using the term “reasonable degree of scientific certainty” because it could result in confusion for those involved in court cases.  The commission states: “In the courtroom setting, the phrase risks misleading or confusing the factfinder” and “has no scientific meaning and may mislead jurors or judges when deciding whether guilt has been proved beyond a reasonable doubt.” In a 2014 case in Hawaii (State v. DeLeon, 319P.3d 382, 403 (Haw.2014) the court said “trial courts should not require a ‘reasonable degree of scientific certainty’ before admitting expert opinions.”

The lack of a common definition of this word across the sciences, or even within a discipline of science, is confusing and frustrating.  If one was to assemble a room of legal professionals, there would be a host of different definitions for the term, and no common definition would result.  The same would hold true for a room of scientific scholars. A juror may, on the other hand, have a totally different understanding of the term and may equate it to finding of proof beyond a reasonable doubt.

Much work is needed to strengthen the terminology a forensic expert uses to expresses their opinions. The goal is to minimize any misleading or confusing terminology.

Leave a Comment June 29, 2016

How Murky Video, Dead Lawyer Won a New Murder Trial

By: Noreen Marcus, Daily Business Review

Now that police dashboard cameras and smart phones are everywhere, it seems incredible that a grainy, silent video can still sway a 1994 murder case.

But it can. Casmir “Casey” Sucharski, one of three homicide victims, had installed a surveillance camera at his Miramar home. The camera captured two men killing Sucharski along with Marie Rogers and Sharon Anderson, friends he knew from his tavern Casey’s Nickelodeon.

With little else connecting defendants Pablo Ibar and Seth Penalver to the gory home invasion on June 26, 1994, the videotape became the state’s Exhibit A.

The case spawned a marathon of five trials. In 2012 a jury acquitted Penalver; on Feb. 4 the Florida Supreme Court gave Ibar a new trial. Ibar has spent 22 years behind bars, almost 16 of them on Death Row.

By a 4-3 vote the court decided his trial lawyer, the late Kayo Morgan, so mishandled his defense as to render ineffective assistance of counsel. The majority said Morgan’s worst failing was not using an expert witness to challenge his client’s identification as one of the men in the video.

“Ibar told Morgan that he wanted a ‘forensic thing,’ but, despite Morgan’s understanding of the critical nature of such evidence, Morgan talked Ibar out of it,” the unsigned opinion states.

“Simply put, we cannot and do not have confidence in the outcome of this trial,” it concludes.

Benjamin Waxman, Ibar’s post-conviction lawyer, said the ruling reflects four justices’ “deep concern that Mr. Ibar may be another innocent person.”

“It all comes down to this blurry, grainy, soundless videotape which was never analyzed for the jury,” said Waxman of Robbins, Tunkey, Ross, Amsel, Raben & Waxman in Miami.

At this point “I can’t imagine Mr. Ibar agreeing to a life sentence,” he said.

Inexpert Defense

Fort Lauderdale-based Morgan cared passionately about his clients but was a rogue within the organized bar. After Morgan died of cancer at 63, his mother said he “got in trouble with judges a lot,” the South Florida Sun Sentinel reported Nov. 21, 2014.

“Morgan’s personal life impacted his practice,” the Supreme Court opinion notes. During jury selection in Ibar’s trial Morgan was charged with aggravated battery on the drug-addicted woman who bore his child. “Morgan was in emotional and physical pain, suffering from extreme duress, and ‘was not there’ mentally,” the opinion recounts.

Knowing he had to attack the video ID’s reliability, Morgan brought in Fort Lauderdale lawyer Barbara Brush as his second-chair and penalty-phase counsel. Morgan delegated to Brush the job of getting a facial identification expert to testify for their side.

Somehow that didn’t happen. The Supreme Court blamed Morgan, finding “Brush acted under Morgan’s direction and it was clear that Morgan was ultimately responsible.”

The majority rested on the expert witness gap to find ineffective assistance, but acknowledged eight other problems with Morgan’s Ibar defense. The justices emphasized they didn’t take Morgan at his word when he testified about his “defective” lawyering at a 2009 post-conviction hearing.

“[W]e do not rely on his admission … but rather on his complete failure to pursue the important defense that Ibar was not the perpetrator of the crime through discrediting the videotape and the state’s evidence as to that identification,” the opinion states. The court reversed Broward Circuit Judge Jeffrey Levenson, who had denied Ibar’s motion for post-conviction relief.

The majority even hinted that the court might have ruled for Ibar a decade ago if an expert had forcefully challenged the video. Instead it upheld his conviction on direct appeal in 2006.

“The video was the foundation of the other testimony and much of that was found erroneously introduced,” Waxman said. Since the video survived unscathed, the high court dismissed as harmless error the jury’s misplaced reliance on video-related evidence that fingered Ibar.

Beyond the Video

To Justice Peggy Quince the case isn’t only about the video and Morgan’s failure to attack it.

She said the jury heard “the proper and compelling trial testimony of Gary Foy,” who saw Sucharski’s vehicle leave the crime scene and made eye contact with the passenger. Foy swore the passenger was Ibar.

The jury saw the video and decided Ibar was one of the killers, even though a T-shirt he allegedly used as a mask didn’t provide a DNA match. Quince clearly trusts the jury system.

“Even if Morgan had secured a different expert, the probability of a different outcome at trial is not substantial,” she wrote in her dissent, joined by Justice Charles Canady. Justice Fred Lewis dissented separately without opinion.

Only the four justices in the majority know whether they were influenced by the acquittal of Ibar’s co-defendant Penalver.

Soon after Ibar’s case arrived at the Supreme Court Waxman tried to interject the acquittal but the prosecution objected and the acquittal discussion disappeared from court filings.

Still the majority took notice. “There are … similarities between Ibar and Penalver’s case,” where the court found Penalver “was denied a fair trial by the prejudicial admission of irrelevant and inadmissible evidence repeatedly elicited by the State over objections,” the opinion says.

The ruling “goes deeper,” Waxman asserted.

Ibar’s conviction survived direct and post-conviction appeals. “It wasn’t until the fourth round of review that the court determined there was error of such magnitude that the conviction could not stand,” he said. “I don’t know any better proof of why we should abandon the death penalty.”

PABLO IBAR, APPELLANT, V. STATE OF FLORIDA, APPELLEE

Case no.: SC12-522

Date: Feb. 4, 2016

Case type: Death penalty

Court: Florida Supreme Court

Author of opinion: Per curiam

Lawyer for petitioner: Benjamin Samuel Waxman, Robbins, Tunkey, Ross, Amsel, Raben & Waxman, Miami

Lawyers for respondent: Attorney General Pamela Jo Bondi, Tallahassee, and Assistant Attorney General Leslie T. Campbell, West Palm Beach

Panel: Chief Justice Jorge Labarga and Justices Barbara J. Pariente, Ricky Polston and James E.C. Perry; Justice Peggy A. Quince (dissent) with Justice Charles T. Canady, and Justice R. Fred Lewis (dissent)

Originating court: Broward Circuit Court

 

 

Leave a Comment February 24, 2016

Forensics in Government Labs: A Dying Breed

by Dennis Ryan, an ALM Listing Expert

Forensics in government laboratories in the United States is undergoing a transformation.  The transformation began within the last ten years and principally involves the comparative science disciplines that were a mainstay in many government labs.  The comparative sciences includes, but is not limited to, impression evidence, paint examination, fiber examinations and questioned document examination.  With declining funding for salaries and equipment, lab administrators have been forced to choose between DNA and the comparative sciences.

Many of the comparative sciences provide investigative leads that otherwise would not be encompassed by a DNA examination.  For instance, a robbery demand note will be processed for DNA rather than be subjected to a questioned document examination for the possibility of indentations.  In a sexual assault case, a fiber examination may assist in placing the defendant at a specific location.  Tape lifts for fiber examinations are collected by rarely if ever subject to a forensic fiber examination.  Anonymous threat letters are also rarely subjected to a questioned document examination.  When is a forensic paint examination conducted on automotive parts left as the scene of an auto accident to determine the year and make of the automobile that left the scene?  It is likely that that evidence will be put in the long term storage of the government evidence vault never to be examined or seen again.

Specialization in forensic science has also contributed to the decline of forensic science in government laboratories.  The days of the trace evidence analyst doing different types of examinations is long gone; one analyst will do the paint examination, while another analyst will do the footwear impression and another analyst will do instrumental analysis.  While specialization is a positive for forensics, the municipality that funds the forensic laboratory has not funded for this specialization and fails to see the need for the additional analysts.  Many forensic laboratories have met the need for specialization by either informing their “customers” that they no longer offer those services (handwriting examination, fiber examination) or subcontracting with an outside laboratory or forensic scientist.  A majority of government laboratories subcontract some, if not all, of their forensic services.  One of the reasons for the subcontracting phenomenon is all about turnaround time.  Many government laboratories have gone from turnaround times of three or four weeks to three or four months.  Many government laboratories work on the premise that they will examine evidence only when needed for court.  A call to the government laboratory from an investigator or prosecutor will be needed in order to put their case in the queue.  The alternative for the investigator or prosecutor is to reach out to an outside contractor, especially if the prosecutor is looking for a short turnaround time.

Laboratory accreditation has also contributed to the transformation of the government forensic laboratory.  Cases that used to take an hour or two hours are now taking double that time.  This contributes to the backlog of cases in the laboratory.  While accreditation is a positive factor, many administrators of government laboratories have not “wrapped their head” around the whole accreditation issue.  Many administrators are taken aback when faced with regulatory control from an outside accreditation body.  There are other administrators who look at the accreditation body and react by letting the accreditation body “drive the train” and set the goals and objectives for the government laboratory.  Accreditation should be a cooperative effort between laboratory personnel and the accreditation body.

There are efforts from many different fronts to increase the funding to forensics and forensic laboratories.  Only time will tell if it is too little too late, or if the transformation will yield a better, more effective structure of the government laboratory.

Leave a Comment September 22, 2015


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