evidence law

The Illinois Supreme Court has issued a ruling that could lead to more expert testimony on the unreliablity of eyewitness evidence, the Chicago Tribune's Dan Hinkel reports.

The reversal of defendant Eduardo Lerma's conviction of murder was affirmed by the Illinois Supreme Court. The trial judge was found to have abused his discretion by barring defense lawyers from calling experts about the fallibility of eyewitness evidence.

The ABA Journal's Mark Hansen has a cover story about how two decades of research into the cause of fires has shown that many criminal defendants have been wrongfully convicted of arson-related crimes because of faulty evidence admitted against them. Arson expert John Lentini estimates that there may be a few hundred innocent people in prison for arson.

Arson cases are "particularly difficult to undo," Hansen reports. "Arson cases are not like typical murder or rape cases, where DNA evidence may still exist that not only can establish one’s innocence but also implicate another. In arson cases, evidence is usually consumed in the fire. And a fire investigator can rarely rule out arson as the cause of a blaze, which is often a requirement for overturning a conviction.

Justin McShane, a Pennsylvania lawyer who has won one man's freedom from allegedly killing his mentally ill daughter in a fire, said Pennsylvania and other states should follow the lead of Texas and California in allowing defendants to get new trials if the underlying forensic science used to convict them is shown to be flawed.

The Legal Intelligencer's Lizzy McLellan has a piece analyzing the legal problems posed by wearable technology: "Lawyers in the technology space agreed that new capabilities provided by wearable devices like Google Glass and GoPro cameras, as well as nonwearable but portable devices, like smartphones and tablets, have created some questions of criminal and civil law that have yet to be answered, or are answered inconsistently in different jurisdictions. But that will not slow down users and creators of those tools, they said."

Matthew C. Mousley of Duane Morris, told McLellan that invasion of privacy claims will turn on the venue where the technology is used, including if there is an expectation that actions won't be recorded in that space or there is a policy against recording in that space.

The Marshall Project's Beth Schwartzapfel has written a piece questioning the use of bite mark evidence in criminal cases. Bite mark comparison, which aims to match a bite wound on a victim with a suspect's teeth, is misleading, Schwartzapfel reports.

Fourteen men have been exonerated after being convicted of crime on the basis of bite mark analysis.  The National Academy of Science has found that the field of "forensic odontology" has never been scientifically proven. The academy also found that "'bite marks on the skin will change over time and can be distorted by the elasticity of the skin, the unevenness of the surface bite, and swelling and healing. These features may severely limit the validity of forensic odontology.”'

Schwartzapfel reports that the California Supreme Court, courts in Mississippi and a judge in Ohio are weighing whether bite mark evidence in contested convictions can be upheld.

Texas has enacted a law making it easier for convicted defendants to get DNA testing, according to the Innocence Project.

People who have been convicted of crimes now have to show that there a reasonable likelihood that evidence contains DNA, Texas Lawyer's Angela Morris reports. The law was enacted in response to Texas Court of Criminal Appeals rulings strictly interpreting Texas' "post-conviction DNA testing statute 'to require proof that biological evidence exists before a judge can allow testing to see if exculpatory biological evidence exists. This new interpretation severely restricts a judge's ability to order DNA testing … which in turn prevents the discovery of exonerations in cases where exculpatory evidence is often microscopic,'" Morris reports.

The New Mexico Supreme Court has ruled that mandated child reporters must report suspected child abuse and neglect no matter the circumstances, the Associated Press' Vik Jolly said. The court rejected an intermediate appellate court ruling finding that social workers are privileged against having to report child abuse and neglect when they learn information during counseling sessions.

Many plaintiffs suing their insurers over Superstorm Sandy are alleging that engineering reports were "as part of an effort to minimize insurance payments to flood victims in New York and New Jersey after the 2012 hurricane," The New York Times' David W. Chen reports. A hearing will be held Thursday, February 19, on the engineering reports.

As the trial proceeds in the murder of Etan Patz, who disappeared in 1979 while walking to a NYC bus, the Associated Press' Adam Geller reports on how confessions like the one in the Patz murder case can be clouded by defendants' mental illnesses. The presiding judge has found that Pedro Hernandez's confession to Patz's murder is admissible, but some experts said the defendant's history of mental illness "raise difficult questions about whether a suspect is exercising free will in talking to police, and greatly increase the potential for false confessions." Only the final part of Hernandez's interrogation was recorded, not the hours of questioning before he gave a videotaped recording.

Of the 300-plus people who have been cleared by the Innocence Project, a quarter falsely confessed, and 30 to 40 percent of those people were mentally ill or mentally disabled.

The Massachusetts Supreme Judicial Court has changed the jury instructions that should be given about eyewitness evidence, which is often more fallible than people think, the Boston Globe's Travis Andersen and Martin Finucane report. While the defendant did not get his conviction overturned, the high court has issued new instructions to be used in criminal cases going forward, including "a warning that a witness’s expressed certainty may not indicate accuracy, especially when the witness did not express the same level of certainty when first making the identification. The template also includes commentary on the complexity of recalling past events, the effect of stress on eyewitness identification, the length of time that elapsed between a crime and a person being identified, and issues associated with having a witness view a suspect multiple times during identification procedures. In addition, the instructions allow jurors to consider whether witnesses were exposed to descriptions given by others, including police officers, which 'may inflate the witness’s confidence in the identification.'"

Eric Taylor McDavid has had his convictions for being a radical, domestic ecoterrorist thrown because thousands of pages of evidence were not turned over by federal prosecutors to his defense counsel, the Sacramento Bee reports. McDavid allegedly plotted to bomb or torch the Nimbus Dam, a U.S. Forest Service lab and cellphone towers in the Sacramento region. McDavid's lawyers said he fell for a FBI informant "who later prodded him to take violent action against government targets with promises that they would later consummate a romantic relationship, and the informant entrapped him by providing money, housing and food to McDavid and his two codefendants.