Admissabilty of scientific evidence

[Micky Dee]

Related post: Manufacturer shouldn't have to turn over trade secrets!!!!! link!


There's no "trade secret" here unless one considers plain old B.S. and or deceit to be a "trade secret".

What they are talking about is the program code that the manufacture has coded into the machine's memory ("EPROM") and not so much what programming language was use to encode it.

Every state agency that have these machines also has access to this code. They have to. If they didn't they would not be able to modify how these machines work, something which they have done, time and time again, just to suite their fancy.

The use of the phrase "trade secret" here is just a dodge to prevent anyone form being able to prove in court that there is no "scientific validity" or reliability behind these machines. They are afraid the courts might find and rule that these machines, and their use, do not meet the criteria or ("scientific method") required by judicial standards for the admissibility and the use of evidence. They do not want anyone to be able to prove that these machines are based on pseudoscientific link! claims and opinions and have more to do with pseudoscience link! than any true science or forensic evidence gathering.

Quote: Who would purchase something to use to convict people of a crime without understanding fully how it works??
Oh, now come on maggie, you already KNOW the answer to THAT question.
None other than our good friends at MADD!!!!

Yes, none other than MADD, with the help of their friends in the government.

(NHTSA) Criminal Justice Leadership Meeting
Under:Priorities and Recommendations for Law Enforcement
Quote:
Conduct research on DWI detection devices to get them certified and accepted by the courts. Manufacturers of these devices should conduct this research. The cooperation of the courts is needed. http://www.ridl.us/phpBB2/viewtopic.php?t=957

Note that their emphases was just to "get them certified and accepted by the courts" and not to determine if they were scientifically valid or reliable.

When these machines were first introduce the rules that governed the admissibility of scientific evidentiary evidence were far more lenient that they are today. Even so these machines would have never passed the mustard if they were subjected to the rigors of a real forthright objective review..

Back then the admissibility of novel scientific evidence was largely governed by the "Frye inquiry" which allowed the judiciary to defer to "scientific expertise" precisely as to whether or not it has gained "general acceptance" in the relevant field.

Def: Defere: To submit or yield to another's wish or opinion
- submit, bow, accede, give in

So the MADDness took the manufactures pseudoscientific claims and with the help of their cohorts over at the NHTSA conducted a pseudo link! peer review of their own. Their peer review was nothing more than a yuck yuck yuck fest conducted by the true believers and was pure pseudoscience. Never the less it was enough to get these machines into the courts with their blessing.

Since that time a new standard has come into play for the admissibility and use of scientific evidence in the Courtroom. It is called the Daubert test or rule. Daubert may provide the impetus link! to amend Fed. Rule 702 and its state counterparts which have created a variety of tests such as the "modified Frye Rule", the "Frye Plus Rule", the "objectively verifiable rule", and "three-prong rules".

Interpretation of Frye: Old rule

Where novel scientific evidence is at issue, the Frye inquiry allows the judiciary to defer to scientific expertise precisely as to whether or not it has gained "general acceptance" in the relevant field. The trial court's gatekeeper role in this respect is conservative, thus helping to keep "pseudoscience link! " out of the courtroom.

Interpretation of Daubert: New rule

General acceptance is an austere link! standard absent from and incompatible with the Rules of Evidence. "Scientific knowledge" must be derived from the scientific method supported by "good grounds" in validating the expert's testimony, establishing a standard of "evidentiary reliability.

Daubert changed the law of evidence by establishing a "gatekeeper" function for trial judges under Federal Rule of Evidence 702. While the "gatekeeper" function normally used by the judge to decide wether or not to allow the testimony of some witness proffered up as a "Expert" it also allows the judge to decide on the admissibility of any an all evidence including the results of the breath testing machines.

There are some judges who take their roll of being the gatekeeper seriously and as a result Judges Are Scrutinizing Reliability More Carefully. http://www.rand.org/publications/RB/RB9037/
While general acceptance in the scientific community is still a factor, it is only one of many that might enter the judges' assessment of reliability. The thing is this. No longer can the prosector just tell a judge that he must except the evidence because it is "generally acceptance" by those in it's field who call themselves "experts".

Seminole County judges have been following the lead of County Judge Donald Marblestone, who in January ruled that although the information may be a trade secret and controlled by a private contractor, defendants are entitled to it.

"Florida cannot contract away the statutory rights of its citizens," the judge wrote.

Judges in other Florida counties have said the opposite: the state cannot turn over something it does not possess, and the manufacturer shouldn't have to turn over trade secrets.

So here we have some some judges who take their roll of being the gatekeeper seriously and others who do not. The latter are either "true believers" in the MADDness and are willing to sacrifice the rights of the individual in light of the "big picture", or they have other aspirations and do not want to cause waves.

This has scared the hell out of the MADDnesss and that is why we have seen MADD sponsored legislation in places like Washington State that tries to remove or severely limit the "gatekeeper function" of the judges.

Judges — instead of juries — will now decide what weight to place upon a test result and are to view that evidence "in a light most favorable to the prosecution," the law says. MADD a law making body link!

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[Micky Dee]

The following is a breaking story in Illinois and is now making the rounds on the network morning news shows.

It a perfect example why real PHYSICAL evidence is so important and the ability for someone who is accused to be able to question it and have it independently verified.

http://www.dailyherald.com/story.asp?id=63017
Charges dropped against man accused of daughter's murder
Associated Press
Posted Friday, June 17, 2005

Confronted with a DNA test that didn't match, authorities dismissed murder charges today against a Wilmington man prosecutors had accused of drowning his 3-year-old daughter.

Kevin Fox was released from Will County Jail within an hour of a brief court hearing to drop the charges. Fox had insisted he was innocent in the June 2004 drowning and sexual assault of his daughter, Riley.

Police said Fox gave them a statement that led them to believe he killed the girl. But Fox filed a federal lawsuit in November claiming detectives subjected him to threats, lies and promises of a deal during a 14 1/2-hour interrogation.

Former Will County State's Attorney Jeff Tomczak had vowed to seek the death penalty in the case. Tomczak was defeated in November by current State's Attorney James Glasgow a month after charging Fox with first-degree murder and sexual assault.

Tomczak, now in private practice in Joliet, did not immediately return a message seeking comment.

Fox reported his daughter, Riley, missing from their home on June 6, 2004. Police said he told them he had awoken to find Riley gone and the front door to their home open.

An Amber Alert was issued. Hikers found her body a short time later in a creek four miles away. Authorities later said she had been purposely drowned and sexually assaulted.

Will County Sheriff Paul Kaupas has said Fox later told investigators he decided to make his daughter's death look like an abduction after he thought he had accidentally killed her by hitting her in the head with a bathroom door.

Fox pleaded not guilty in January. His federal lawsuit alleged that investigators fed him a story that led him to believe that if he said he accidentally killed his daughter he would receive a more lenient sentence.

"It just appeared on the face of it to have all the hallmarks of a false confession," said Rob Warden, director of the Center on Wrongful Convictions at Northwestern University.

Warden said false confessions often arise after long periods of interrogation when police use a technique that minimizes the seriousness of what will happen if a suspect confesses and maximizes the penalties of what will happen if they don't.

So here we had a State's Attorney who was running for reelection . Because there was no convenient "Drunk Driving" case that he could glom on to and hawk to the public as an example of how tough he was on criminals, he choose the next best thing. He would go after the victims father and persecute him for this horrible crime. No time to actually first figure out if he was really guilty or not. Noooooooo... the campaign was in full swing. Now it comes out that they had the DNA evidence for almost a year but never got around to testing it until about a month ago. Meanwhile this father sat in jail accused of killing and molesting his daughter and the one guilty remains free.

Remember the murder of that little girl JonBenet Ramsey up in Denver? Once again we saw where the police and prosecutors choose to just ignore evidence in their possession, like a handprint and DNA that could not be matched to family members, and continue to go after the parents.

The above case of the wrongfully accused father has many eerie similarities with the murder of Stephanie Crow. CBS's 48 Hours just aired an repeat and a update of the story last week.

Stephanie's Murder Revisited
48 Hours' Bill Lagattuta revisited the story of 12-year-old Stephanie Crowe's murder, as dramatic evidence mounts against a new suspect seven years after the brutal California stabbing. http://www.cbsnews.com/sections/i_video ... el=48Hours

Twelve-year-old Stephanie Crowe was found stabbed to death on her bedroom floor on Jan. 21, 1998.

In the weeks to follow her brother, Michael, then 14, and two of his friends, Joshua Treadway and Aaron Houser, were charged with conspiring to kill her.

Those charges were dropped before trail in February 1999 after last-minute DNA testing found spots of Stephanie's blood on a sweatshirt worn by transient Richard Tuite, who had been seen in the neighborhood the night of the killing.

In the Stephanie Crow murder case, in Escondido CA, police ignored reports of a homeless drifter in the area the night of the murder. They focused their attention on the victim's brother and two of his friends after he was told he failed a CVSA- polygraph, and was pushed by police into confessing.

Several years ago I watched the video of the brother's integration. The bother and both of his friends were taking from their parents and kept incommunicado and not allowed to talk to anyone but the police. No family members or attorneys.

The brother was subjected to 10 to 14 hour interrogation where he repeatedly denied that he had anything to do with his sisters death. The police told him that his parents believed that he had killed his sister and that they never wanted to see him aging or have anything to do with him. They told him that they had found his sisters blood in his room. Both statements were outright lies. At the time his parents were desperately fighting to see him and get him representation. They had found No blood whatsoever in his room.

After hours of integration when the kid was at the point of physical and mental exhaustion they bring in the machine called the Computer Voice Stress Analyzer, or CVSA. They tell the kid that the machine says he is lying. The brother says that he doesn’t remember doing it but if the machine says he did then he must have!!!!

They used similar tactics on his two friends and were able to get them to make false incriminating statements.

The CVSA is described by its manufacturer, the Florida-based National Institute for Truth Verification, as an almost foolproof lie detector, better than the polygraph.

Despite accolades from detectives who use it, the device is controversial within law enforcement. The manufacturer acknowledges there is no independent scientific research that proves it works. Numerous tests have shown it to be no more reliable than a coin flip!!!

In an interesting twist, a neighbor told the victims parents about the drifter. The police knew about him, but did not pursue him because they had a confession from the victim's brother.

Finally, using the press to goad the police into actually doing an investigation, the drifter was located and found to have a sweatshirt with the victim's blood on it.

Oops-- The charges against the brother and his friends were eventually dropped, but not before going through several years of pure hell. The police were reluctantly FORCED to charged the drifter!!

Last year some seven years latter, the mentally ill transient was found guilty and sentenced to 13 years in prison for killing Stephanie Crowe. In addition he was given another four years and four months behind bars for escaping from custody and trying to bribe a deputy.

This is just another example of how REAL pysical evidence is so important in getting at the truth. If it was not for the real physical evidence in this case three young boys would have been wrongfully convicted and sent to jail for this.

But it wasn't the police and prosecutors that discovered it, even though it was in their possession all along. No it was the fact that it existed in the first place that allowed a defense attorney to question it and have it retested independently, only to find the victims blood all over it.

Initially the police lab reported that they had previously tested the drifter's sweatshirt, and found that it did not contain any of the victims blood, only the drifter's, and no further testing was warranted..

In May 1999, the San Diego Union-Tribune examined the police handling of the Stephanie Crowe murder in a six-part series. Story You can Read the series Here!

You know like most people I would like to think that our police officers, prosecutors, and judges are always more concerned with actually finding and convicting those who are truly guilty, but repeatedly, over and over again we see examples how they will go after someone with a one track mind, ignoring any other suspects and evidence or lack of it. Not quite sure what the reason (s) are for this is in every case, but none the less, it has to give one pause when we here some story about someone in the media charged with some crime..

We all should remember that everyone has the RIGHT, not the privilege, but the RIGHT to be presumed to be innocent until proven guilty.

But alas when it come to DUI and those Breath testing machines THERE IS NO presumption of innocence under the DUI laws.

On top of that the physical evidence is purposefully discarded.

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[Micky Dee]

Essential Cases to Know in Handling Challenges to Scientific Evidence,

http://www.lennystamm.com/essentialcasespart1.htm

http://www.lennystamm.com/essentialcasespart2.htm
The Fourth Amendment

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