Friday, June 17, 2011
Many thanks to Professor Colin Miller for inviting me to guest blog on this site for a couple of weeks.
Much attention has been paid to the Casey Anthony case – State of Florida v. Casey Marie Anthony, Case No. 48-2008-CF-15606-O (In the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida) before the Honorable Belvin Perry, Jr., Circuit Judge. A couple of Judge Perry’s Frye Orders are interesting. As most Americans know, Casey Anthony has been charged with first degree murder of her daughter Caylee. The indictment is available at: http://i2.cdn.turner.com/cnn/2008/images/10/15/caylee.indictment.pdf.
The trial began in Florida on May 24, 2011. Judge Perry ruled on two interesting Defense motions to exclude “unreliable evidence” under the standard followed in Florida, Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). The first Order was issued on April 27, 2011 and is available at: http://www.baynews9.com/static/articles/images/documents/casey-anthony-chloroform-motion-denied-0427.pdf (the “Chloroform Order”). The other is Judge Perry’s May 7, 2011 Order, available at: http://www.cfnews13.com/static/articles/images/documents/casey-anthony-order-denying-motion-to-exclude-unreliable-evidence.pdf (the “Decomposition Odor Analysis” Order).
In his Chloroform Order, Judge Perry denied Defendant’s motion to exclude any mention of chloroform at the Anthony trial. Defendant Anthony first moved to exclude the evidence based upon pure relevance grounds. The judge gave the relevancy objection short shrift. He found that there was circumstantial evidence that Casey Anthony had access to the computer that contained computer searches for the term “chloroform” prior to the death of her child.
On the Frye part of the motion, he determined that the method used for analysis of the carpet samples from the trunk of Defendant’s car (the GC/MS – gas chromatograph/mass spectrometer method) had been in use for 40 years and was generally accepted in the scientific community. He denied Defendant’s motion.
In his Decomposition Odor Analysis (DOA) Order, Judge Perry ruled on the Defendant’s Motion to Exclude “any testimony or evidence concerning any alleged identification of the chemical composition of human decomposition odor…or reference to an alleged “decompositional” odor analysis database.” At the Frye hearing, Dr. Arpad Vass, a senior research scientist with the University of Tennessee Oak Ridge National Laboratory testified that his colleague Dr. Marcus Wise “removed air with a syringe from the headspace of a metal evidence can containing the carpet sample taken from the vehicle allegedly driven by the Defendant.” His “Final Forensic Report” stated the following:
While not conclusive, these data indicate that:
(1) Nearly all the compounds present in early human decomposition were detected in the trunk samples…”; and
(2) Compounds that have been detected in these select animal remains and not in humans were not detected in the Florida trunk carpet sample…
The Defense called two scientists to refute that Dr. Vass’s scientific principles were generally accepted by members of his scientific field.
First, Judge Perry determined that expert testimony on “basic odor identification” would be allowed and he denied the Defendant’s motion on that particular evidence. He would permit testimony that when Dr. Vass opened the sealed container that contained the carpet sample, he smelled a “strong odor of human decomposition.” Second, he allowed in (under Frye) evidence that “the odor signature identified in the trunk of the vehicle alleged to have been used by the Defendant [was] consistent with an early decompositional event of human origin but that the results do not rule out the remote possibility an unusual variety of products or materials may have had some contribution to the overall chemical signature.”
My take on it: The Defense really did not have a Frye-type objection to the chloroform evidence. It is clear the method was well established in the field. The Defense really had an issue not with the method itself, but rather with how the samples were collected and analyzed. It really was not a Frye issue at all.
The Decomposition Odor Analysis (DOA) Order. Judge Perry really dodged the issue of whether Dr. Vass’s analysis passed muster under Frye – he seemed to indicate that because Dr. Vass found that the “odor signature” could not be found to be solely that of a decomposing human body, the Frye test was met. I disagree. That ruling has to do with the strength of the method, not whether the method has been generally accepted in the field. Only Dr. Vass and a Greek scientist, Dr. Statheropoulos have performed this type of “signature decomposition” analysis. Neither, it appears, had ever tested this method on carpet samples.
That being said, the possibility of Judge Perry’s ruling on the decomposition odor analysis being reversed on appeal (if indeed an appeal is taken if Casey Anthony is convicted) is slim. Judges have broad discretion in this area.
Wednesday, June 15, 2011
From today until June 27th, I will be traveling. While I'm gone, Ann Murphy will be guest blogging here. Professor Murphy is an Associate Professor of Law at the Gonzaga University School of Law, where she teaches Evidence, Individual Federal Income Tax, Taxation of Exempt Organizations, Wills and Trusts, and Litigation Skills and Professionalism. In 2007, she won the Orland Professor of the Year at Gonzaga, and later that year she served as a Fulbright Lecturer in Beijing.
Professor Murphy has published several books, with her most recent being People of the State of California v. Phillip Spector Case File. She has also published numerous articles, including:
•Federal Rule of Evidence 502 – Inadvertent Disclosure - The “Get-Out-Of-Jail-Free Provision” - Or Is It? - 41 New Mexico Law Review __ (2011);
•The Attorney-Client Privilege and Inadvertent Disclosure, Washington State Bar Association, Litigation News, Special Edition: Evidence, spring 2010;
•FRE 502: The Lawyer-Saving Provision for Inadvertent Waivers of Privileges, LexisNexis Emerging Issues Analysis, June 7, 2010; and
•Spin Control and the High-Profile Client - Should the Attorney-Client Privilege Extend to Communications with Public Relations Consultants?, 55 Syracuse Law Review 545 (2005).
So, please join me in giving a warm welcome to her.
Quantum Of Stealth: Supreme Court Of Iowa Finds Theft & Burglary W/Intent To Commit Theft Fall Under Rule 5.609(a)(2)
Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
So, assume that a defendant has prior convictions for theft and burglary with intent to commit theft crimes of dishonesty or false statement, meaning that they are per se admissible under Rule 5.609(a)(2)? According to the recent opinion of the Supreme Court of Iowa in State v. Harrington, 2011 WL 2162817 (Iowa 2011), the answer is "yes." I disagree.
Tuesday, June 14, 2011
Resource Of Interest: Evidence: Skills, Strategies, and Assignments for Pretrial and Trial & The Freck Point Trial DVD
An old Chinese proverb says, "Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime." This proverb sums up the approach taken by Marilyn J. Berger, John Mitchell, and Ronald Clark with their new book Evidence: Skills, Strategies, and Assignments for Pretrial and Trial, which is accompanied by a DVD with an excellent simulated trial -- the Freck Point Trial -- and related materials. So, what makes the book such a good tool for use in an Evidence or Trial Advocacy class?
Monday, June 13, 2011
Demystifying The Myth Of Fingerprints: The NCSTL's Introductory Video And The San Diego Courthouse Bomber Case
The use of fingerprint evidence is always an interesting issue in Evidence and Expert Evidence classes. So, what is the history of fingerprinting? How about SWGFAST? ACE-V? A friction ridge? A few weeks ago, I posted an entry about the fine folks at the National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law and the terrific content that they are producing. Well, they have just put out a terrific two-and-a-half minute video that delves into these and other issues and would serve as a nice introduction to the material in an evidence-related class:
Meanwhile, if you are looking for a solid case that delves into many of these topics, you could do a lot worse than the recent opinion of the United States District Court for the Southern District of California in United States v. Love, 2011 WL 2173644 (S.D. Cal. 2011).
Sunday, June 12, 2011
Call The Doctor: NY Court Addresses Questions About Compensation For Physicians Called As Fact Witnesses
A party can only pay fact witnesses attendance fees, travel expenses, and compensation for their loss of time spent testifying. This is because fact witnesses have a public duty to testify. Conversely, expert witnesses are under no obligation to testify and can be pad commensurate with their special knowledge and skill. But let's say that a party wants to call a physician who is usually called as a expert witness, but the party only wants to call him as a fact witness. Can the party pay the expert an amount commensurate with the amount that he ordinarily receives when he testifies as an expert? According to the recent opinion of the New York Supreme Court, Appellate Division, Second Department in Caldwell v. Cablevision Systems Corp., 2011 WL 2164004 (N.Y.A.D. 2 Dept. 2011), the answer is "no." So, why did the court affirm a verdict against a plaintiff despite a defendant overpaying a physician/fact witness?