Is this still going on?

[Bill Schade]

Interesting quote from one of todays news stories. Is this a reporter getting the quote wrong or is this stuff still being testified to in court.
And are attorneys so ill prepared that this doesn't immediatly raise a flag for an objection.
The more things change.......



"Expert Latent Print Analyst processed the murder weapon and found a visible fingerprint on the handle of the knife. Using an amino black dye, she was able to stain the print to gain a better visual, allowing her to do a comparison of the print on the murder weapon to the registered reference print from Xxxxxx Xxxxx. In this line of work, 8 matching characteristics are needed to make an identification; the witness was able to identify at least 12 distinct matching characteristics, prompting her to declare the identification with “100% certainty.”"

[Dr. Borracho]

I guess she didn't get the memo. Pity the poor witness who testifies like this when opposing counsel does have a copy.

[Bill Schade]

I was thinking more along the lines of what responsibility does her management and agency have if this was actually said in court?

I am sitting on a management panel presentation at the IAI this year.
This could be a good starting point for a discussion (which is why I brought it up here on the board)

And remember, it could be a reporters take on the testimony, or one of the attorneys asking "are you 100% sure?" This could be nothing at all.

Nothing to see here, move along

[L.J.Steele]

I am sitting on a management panel presentation at the IAI this year.
This could be a good starting point for a discussion (which is why I brought it up here on the board)

And remember, it could be a reporters take on the testimony, or one of the attorneys asking "are you 100% sure?" This could be nothing at all.

When NACDL wrote its response to the NAS report, it suggested having a transparent mechanism for someone to ask the lab to review testing/testimony if they felt it was inaccurate, outside of the pressures of the criminal justice system. I've had rare occasion to ask for QA reviews of my local lab and have gotten very brief responses without a sense that they understood my concern.

I would love to see accreditation/certification include random transcript review. In any case where there's a trial and conviction, odds are that the transcripts were ordered for the appeal. If the lab asked me for a copy, I'd be glad to send them the pdf. I expect the DA would do likewise.

And the Court are unlikely to get involved when the prosecutor mis-states or overstates the expert's carefully worded testimony in closing. See State v. Brett B, 186 Conn. App. 563 (2018), cert. denied 330 Conn. App. 961 (2019) (DNA and footwear results) and State v. Gonzalez, 188 Conn. App. 304 (2019) (cert. pending) (DNA results). It's frustrating -- it isn't hard to get this right -- the wording of the opinion is likely right in the report.

[josher89]

I would love to see accreditation/certification include random transcript review.

ANAB now requires this. Testimony is now part of technical review and it has to be someone who is competent in the area that does the technical review. This is different than handing out surveys to attorneys and judges grading a testifier on their appearance, demeanor, etc.

I think this is a great addition to the accreditation program. Not fond of a lot of others but this seems to be really thought-out.

[L.J.Steele]

ANAB now requires this. Testimony is now part of technical review and it has to be someone who is competent in the area that does the technical review. This is different than handing out surveys to attorneys and judges grading a testifier on their appearance, demeanor, etc.

Is ANAB's review random or does the lab or expert pick/suggest transcript to be reviewed? Even under my suggestion, you're saving money by requesting transcript in cases where there's a conviction and piggy-backing on the transcripts ordered for the appeal, which makes it less random than if you looked at all the cases where the expert testified.

I'm not sure querying the attorneys and judges is all that helpful -- what might be more useful but devilishly hard to do would be to randomly survey jurors after the case was over to see if they felt the expert was helpful, professional, comprehensible, credible, etc., or provided some way for jurors to provide feedback if they wished.

[josher89]

In my jurisdiction, judges and attorneys are (generally) prohibited from providing any sort of feedback until all trials (appeals, etc.), hearings, etc. are completed so I've stopped asking them for their responses on that.

As far as the technical review of testimony, ANAB does not do this; the labs do and they determine the frequency. ANAB gives no guidance on how often but the percentage of cases that examiners work that go to trail are extremely low. They do require that testimony get technically reviewed which is a good start.

As far as getting transcripts after trial, that is also something that is a bit hard to come by in my jurisdiction. Sometimes the prosecutor will order the transcripts if they feel they are necessary but even if they know the case is going to get appealed, they don't always order them. I'm definitely not going to spend my own money purchasing them and it's hit or miss if my agency would. I can almost guarantee that if I were to call the public defender's office asking for my transcripts from a trial, I would either get hung up on or told a big fat NO. YMMV elsewhere

I wish you worked in my area!!!

[L.J.Steele]

As far as getting transcripts after trial, that is also something that is a bit hard to come by in my jurisdiction. Sometimes the prosecutor will order the transcripts if they feel they are necessary but even if they know the case is going to get appealed, they don't always order them. I'm definitely not going to spend my own money purchasing them and it's hit or miss if my agency would. I can almost guarantee that if I were to call the public defender's office asking for my transcripts from a trial, I would either get hung up on or told a big fat NO. YMMV elsewhere

I wish you worked in my area!!!

If there's an actual appeal, the transcripts ought to be filed with the appellate court and should be public documents (outside of sex cases or cases with child victims where the record is often sealed/impounded). You might be able to get them from the Court itself or from its website it if posts electronic versions of documents.

If the PD's office has a separate appellate unit, they may be more receptive to sending out transcript upon request. Heck, try a query letter. Worst they can say is "no". For Mass and CT, the defense orders transcripts for appeal, but the appellate prosecutor gets a copy -- it may not get to them until around the time the 1st brief is filed, but try the appellate prosecutor too.

[SConner]

More so than ever, I'm becoming of the opinion that transcripts are outdated and nearly worthless when it comes to reviewing testimony. I have read alleged transcripts of my testimony and they're shockingly poorly written, spelling mistakes abound, have contained things that I didn't say or certainly didn't say as written, and most importantly, like any written document they're unable to provide tone or demeanor, all you have is what the person doing the transcribing thinks the person said. There really isn't any good reason in this day and age to not video record all testimony as a primary means of preservation. Leave the court reporter as a backup if you must but video recording of testimony should be the norm.

[Bill Schade]

SConnor makes a good point.

In these days of police body cams becomming more in vogue, it begs the question of why not recorded testimony to provide context, nuance and accuracy to the written words

[L.J.Steele]

More so than ever, I'm becoming of the opinion that transcripts are outdated and nearly worthless when it comes to reviewing testimony. I have read alleged transcripts of my testimony and they're shockingly poorly written, spelling mistakes abound, have contained things that I didn't say or certainly didn't say as written, and most importantly, like any written document they're unable to provide tone or demeanor, all you have is what the person doing the transcribing thinks the person said. There really isn't any good reason in this day and age to not video record all testimony as a primary means of preservation. Leave the court reporter as a backup if you must but video recording of testimony should be the norm.

This is an ongoing discussion with the courts.

The traditional answer is that the fact finder -- jury or judge in the trial court room is the sole arbiter of credibility. The appellate courts don't want the audio (or video) recordings because it makes it more tempting to second-guess that decision --- appellate courts now say they can't second-guess because they don't have the tone, body language, etc. This becomes a problem when a witness gestures or indicates something on an exhibit and neither the court reporter nor the attorney make a record of what they did. (Let the record reflect the witness held her hands about 6" apart, or Let the record reflect that the witness pointed to the person in the upper left of the crime scene video at 10:59.)

There are money issues. Courtroom audio as it is terrible. Court reporters and monitors are expensive. Connecticut maintains court monitors and reporters in the courtroom. They can catch a recording problem or a witness who's soft spoken in real time. Massachusetts outsources to a centralized recording system. So far, they've been a pleasure to work with, but there's no one there if a cable gets unplugged or someone is speaking too softly or quickly.

There's a time issue. Transcript is easy to read. I can review a day's transcript in a few hours. It is easy to pinpoint cite and quote -- the court reporter is the arbiter of what was said. (One can ask to listen to the audio and ask for corrections if there's a dispute.) Audio and video is hard to listen to outside of in real-time and it can be hard to go to specific spots -- for a multi-day trial, that's a pain. It's hard to pin-point quote/cite. (Where exactly did witness say "X".) and you can get good-faith disagreement between attorneys about what was actually said if the quality is poor. This has been an ongoing issue with AV exhibits -- the court reporters (at least in CT) take the position that the transcript is whatever was caught by the courtroom microphones, even if the jury has access to the actual exhibit and could listen to it directly. I can move to have long exhibits transcribed, but the logistics are surprisingly complex.

There are storage issues -- transcript is typically preserved in paper, as well as in the pdf or Word doc. No issues with bit rot, storage medium failure, or changes in software that makes older files impossible to read. I can and do get calls about murder cases where I represented the client 15 or even 20 years ago and there's still ongoing litigation -- the physical transcript usually survives -- the digitial file is often 50/50 at best.

There are some privacy issues -- courts are wary of having some witnesses video recorded for fear that it will leak to the public or social media. That's one of the reasons that cell phones are normally banned in the court room. Courts are reasonably worried about child witness/victims, sexual assault victims, informants (in the formal sense), and cooperating witnesses being embarrassed, harassed, or harmed. Courts are also worried, I think reasonably, about what happens when attorneys and witnesses start performing for the media (the OJ case being the classic example).

All that being said, I'm seeing increasing use of surveillance/security video, recorded ID procedures (required when feasible in CT), and recorded interrogation/interviews. It's fascinating and it has been leading to some trial and appellate issues.

[ER]

ANAB may be requiring technical review by a proficient examiner, but in this instance, the "proficient" reviewer is probably deemed so by the same lab system that deemed the examiner on the stand as proficient.

Sending a reviewer to court meets the requirement, but the reviewer will likely have the same inappropriate ideas about what "proper testimony" is.

It's like ANAB is requiring that a document be checked for spelling, but letting the lab itself decide who knows how to spell.