CLPEX Chat Board

Thanks Steve E. for posting the prior threads. I had a nagging sense this had come up before.

The jury, or the judge in a bench trial, is the fact finder. They decide the ultimate question -- has the prosecution proven beyond a reasonable doubt that the defendant is guilty. That usually means making a bunch of underlying decisions about witness credibility and expert testimony. In a jury case, this happens in the mysterious black box of the jury room -- all we get is the verdict and we don't know if the jury understood the expert testimony, never mind whether they accepted or rejected it. In a bench trial, the trial judge often gives findings, either written or oral, that explain some of the reasoning.

I'm not disagreeing with you Timbo, that jurors aren't LPEs. One of the threads Steve E mentioned talked about juror examination of exhibits and experts who are on the jury. But they are the fact finders -- they get to accept or reject any testimony and give it whatever weight they see fit. If the jury doesn't understand your testimony, looks at the exhibits and doesn't see what you described, they could reject it or give it a weight of zero.

Courts often require experts to at least provide detailed reports to the other side. A couple of years ago, the Mass Supreme Court wrote:

“before trial, the examiner must adequately document the findings or observations that support the examiner's ultimate opinion, and this documentary evidence, whether in the form of measurements, notes, sketches, or photographs, shall be provided in discovery, so that defense counsel will have an adequate and informed basis to cross-examine the forensic ballistics expert at trial.”

Com. v. Heang, 458 Mass. 827 (2011).

In a Daubert/Frye hearing, judges will want to see the documentation and may raise questions if they can't see what it is the expert is describing. (This had been an ongoing problem in firearms ID cases where it was rare for photos of the comparison to be taken, never mind introduced.) I haven't yet had a case with a picture of a firearms ID match, but it takes a while for a case to make it to an appeal. At trial, the comparison materials may come in either in direct or cross if someone thinks there's a good tactical reason to put it in. Once it is an exhibit, it goes to the jury room and they can do whatever they want with it -- jury room is a black box we don't poke into.

Let me get back to the underlying question I posted, tho -- what happens when the judge has familiarity with a scientific or technical area -- can he or she use it even if that evidence didn't come up in this case?

I mentioned the possiblity of a good Daubert/Frye challenge in case A, and whether the judge could use that information in case B. I think it would be within a US trial judge's discretion, if he/she gives proper notice to both sides and an opportunity to address the materials from the other case.

There's another possiblity. The Massachusetts Supreme Judicial Court just received a report from its Study Group on ID testimony. One of the recommendations is for, in effect, judicial notice of certain scientific facts about perception, memory, and identification and for training of all judges on the science. This would create another situation where a judge might have technical information outside of the case which here, he or she is intended to apply in making findings and rulings. By that logic, what of appellate court decisions and CLEs on technical issues?

(The report is here:
http://www.mass.gov/courts/sjc/notice-i ... dence.html )

While I appreciate the content of the conversation and am fully supportive of self-examination and full accountability, for those that have not seen this particular comparison set, I would like to advise that I would be comfortable in suggesting that if this cannot be deigned to be a valid individualization then we are all out of a job! I am a full supporter of Shirley sir but respectfully submit that this particular case does not even come close to the amount of distortion seen in her case, or the Mayfield impression,(the decision to individualize in her case was an insult to quality fingerprint examiners around the world, not to mention a serious miscarriage of justice and unwarranted persecution against her.). When this impression is finally released you will see what I mean. The bottom line in this case is the judge failing to request expert advise to explain a minor (and very explainable) single distortion within an otherwise outstanding clarity impression. If a lay person is allowed to independently decide on what is and what isn't an individualization then why bother with expert fingerprint testimony. Hopefully the decision to appeal or not will be made shortly and you can all have a look for yourselves. But by all means keep vigilant and keep the conversation going!! It can only help!

djth59 wrote: . . . . . The bottom line in this case is the judge failing to requesting expert advise to explain a minor (and very explainable) single distortion within an otherwise outstanding clarity impression. . . . . .

In the US at least, a judge would seldom seek independent expert advice. It is the prosecution's responsibility to provide a competent presentation of the evidence. It is the defense responsibility to competently question the case. If either the prosecutor or defender is less than competent, then good arguments may be lost on the court or the evidence may be misunderstood. But it is not the judge's responsibility to seek outside advice to compensate for incompetent counsel by prosecutor of defender. Perhaps the prosecution failed to do a good job, or perhaps the witness was less than competent in his/her presentation. Or perhaps the judge simply had a defense bias in the same way we are accused of having a prosecution bias.

Either way, as you suggest djth59, seeing the evidence on this site would provide an interesting perspective on the story. Thanks for your reassurance that the identification is a good one!

I would agree with you if the defense had brought up the particular distortion within the trial,however it was brought up by defense in argument after the trial, at which time I believe the judge should have sought expert opinion. I have not seen the transcripts myself however this is the information I have been given. The basis of the appeal will be on whether there was enough evidence within trial (including whatever challenges defense put forth) to reach a conclusion of convicting the accused.