Tuesday, June 16, 2009


Three very interesting cases on experts and the like.

In People v. Safford, a divided panel of the Appellate Court of Illinois, First Division, reversed a conviction because the fingerprint evidence wasn't supported by a strong enough foundation. Specifically, the fingerprint examiner who testified that his analytic model was a matrix analysis, said that he used first, second, and third tier evaluations to compare a latent with a known print and conclude that they came frome the same person. But he didn't testify to just what he did at each stage of the analysis or how he did it.
Safford argued
The defendant contends the trial court erred in allowing Examiner Cutro to testify to his conclusion that the latent print recovered from Officer Marcano's patrol car belonged to the defendant without ever testifying, on either direct or crossexamination, to the evidentiary basis for his opinion. In his main brief, the defendant contends that to allow opinion testimony based solely on the qualifications of the witness as an expert, without disclosing the basis for the opinion "would be to invite forensic fraud." The defendant attacks the fingerprint identification testimony that the trial court allowed as equivalent to allowing Examiner Cutro "to testify in essence: I am an expert and you have to take my word for it." The defendant
argues the trial court erred by not requiring the State to offer an adequate foundation in the form of the expert's underlying reasoning to explain the expert's ultimate conclusion presented to the jury.
Under the circumstances, the court explained, there was simply no way for the defendant to conduct a meaningful cross-examination. In effect, the fingerprint examiner's testimony was no more than, "Trust me, I'm an expert." (Personally, and as an aside, I like to call these guys "trained lookers," butI digress.)

Still, you can see that the court might have let the purported "expert" get away with it if he'd tried. But
We can think of no reason Examiner Cutro could not explain the Level One, Level Two, and Level Three details he must have observed on each occasion, which led him to conclude that the two prints matched. "An expert's opinion is only as valid as the bases and reasons for the opinion." Gaytan, 313 Ill. App. 3d at 146. It was insufficient for Examiner Cutro to rely on his training and expertise as a basis for his ultimate opinion that no one other than the defendant could have left that latent print on Officer Marcano's police car. Before the jury could assess the weight and credibility of Examiner Cutro's opinion, it was incumbent on the trial judge to determine whether the foundational requirements had been met for the admission of Examiner Cutro's opinion. This was a question of law. "The trial court [may not] blindly accept the expert's assertion that his testimony has an adequate foundation." Gaytan, 313 Ill. App. 3d at 146.
Good for them.

Actually, Illinois is on a roll. A couple of weeks before Safford, another division of the appellate court there decided People v. Daniels, reversing the trial court's denial of a motion to suppress a confession. Why? Because Daniels didn't have the mental capacity to understand Miranda warnings.

Three experts testified. Two, in great detail, explained the testing they conducted and how and why and reached the conclusion that as a consequence of Daniels profound mental retardation she did not understand the warnings and, therefore, her waiver was not valid. The third expert disagreed. The trial court essentially discounted all of that.
After hearing all of the evidence and watching the videotaped confession, the circuit judge found defendant had knowingly and intelligently waived her rights. In doing so, the judge stated that he did not see how defendant’s poor performance on the abstract reasoning test applied to her ability to waive Miranda, noting that “as an intelligent person” he would have difficulty defining the similarities between “an ear and an eye” or explaining a proverb such as “between a rock and a hard place.” The judge further stated that defendant had received her rights at “every single turn” and that the experts’ opinions were a “wash” because the videotape of the confession “clearly indicate[d], without any doubt whatsoever, that [defendant] was advised of her rights, [that] she chose to give a statement, and [that] she did so knowing and understanding what her rights were.” The judge also found it unlikely that defendant would have said she understood something if she did not. The judge ultimately concluded that if a proverb was to be used to determine whether defendant had intelligently and knowingly waived her Miranda rights, then the following proverb should “be added to the mix: The truth is in the pudding,” with the pudding being defendant’s own videotaped confession.
We all know judges like that. Hell, we all appear before them regularly. What we all don't have is a court of appeals that
cannot find any basis upon which to predicate the transcendency of the judge’s lay opinion over that of the court’s own appointed experts . . . .

Rather the trial judge apparently chose to formulate his opinion based upon his own conceptualization of what it would take to establish sufficient comprehension of the import of Miranda warnings and chose to rely on defendant’s videotaped statement and her answers of “yes” to questions regarding her understanding of Miranda warnings without probing into defendant’s ability to understand the questions to which her answers were directed.
It's pretty damning.

Finally, there's the U.S. District Court for the Middle District of Alabama which, after trial, issued an opinion exploring numerous problems with eyewitness identification testimony and explaining why it allowed a defense expert (Solomon Fulero) to testify about eyewitness identification in general but not about the specific witnesses in the case (United States v. Smith, No. 07cr165).

No quotes this time. Just read it.

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