In every case involving [state your poison], we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘Cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’. Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962)(emphasis added).

And you may be familiar with this research.

Diamond Shari Seidman, and Neil Vidmar, Jury Room Ruminations on Forbidden Topics, 87 VA. L. REV. 1857 (2001); Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 EMORY L.J. 135, 175-78 (1989) (discussing studies on curative instructions and noting that “[t]he empirical research demonstrates that jurors are deeply affected by prejudicial comments and evidence and that curative instructions tend to increase the prejudice rather than decrease it. Moreover, the research shows that the impact is much greater in weak cases than in strong ones.”).

Let’s assume for the moment that as a result of United States v. Blazier the prosecution decides that they will approach the naked urinalysis case differently when calling an expert. It seems, for the moment, that an expert might still be able to testify but they ought to be limited to the computer test printouts for their testimony. See Mil. R. Evid. 703. There would still be a viable issue that the substitute expert can’t testify about the receipt and handling of the sample when it arrived at the lab or anything as to chain of custody and quality assurance. My sense is that the substitute expert ought to be limited to interpreting the test data only. In other words, it’s my view that Blazier narrows what the substitute expert can testify to without running into a confrontation issue. If the prosecution wants to establish the sample arrived safely, that it was not damaged, etc., then they need to call the “receptionist.” Testimony about that by an expert would still be hearsay and subject to a confrontation challenge, as well as relevance under Mil. R. Evid. 401, 403 and 703.

But, assuming the substitute testifies about the results printed out from the MS/GCMS (and that the judge likely allows him or her to testify about everything else) and adopts the test printouts for the purpose of his or her opinion, then that leads to another issue — the need for a “Limiting Instruction,” in accordance with Mil. R. Evid. 105.

Rule 105. Limited admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the military judge, upon request, shall restrict the evidence to its proper scope and instruct the members accordingly.

That now takes us to a new post from one of my favorite bloggers, Professor Colin Miller.

Like its federal counterpart, Arizona Rule of Evidence 105 provides that When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. And, as the recent opinion of the Supreme Court of Arizona in State v. Gomez, 2010 WL 5173627 (Ariz. 2010), makes clear, the submission of an inadequate instruction does not waive the defendant’s right to a limiting instruction in a case covered by Rule 105.

Gomez is a case where DNA evidence was used.

In performing DNA testing and analysis, the laboratory used an “assembly line” method that involved seven steps. . . . Various technicians involved in the laboratory processes did not testify at Gomez’s trial.

Sound familiar?

The State instead called a single witness about the DNA testing. That witness, a senior forensic analyst and supervisor at the laboratory, testified in detail about the laboratory’s operating procedures, standards, and safeguards. Although the analyst had not witnessed all of the steps in the process, she had checked the technicians’ records for any deviations from the laboratory’s protocols. The analyst had performed the initial evidence screening and DNA extraction on most of the items, and she testified about the chain of custody for all items. For each sample, the analyst personally performed the final step in the process, interpretation and comparison. This step required her to compare the DNA profiles generated in the laboratory, and it was the only step involving human analysis.

The analyst testified that several profiles derived from evidence at the crime scene “matched” the profile obtained from Gomez’s blood sample. The data from the testing process were not introduced into evidence as exhibits. Now, if this data were introduced, it could have violated Gomez’s rights under the Confrontation Clause pursuant to the Supreme Court’s opinion in Melendez-Diaz v. Massachusetts. But, the prosecution instead used the new technique of merely having the analyst use this data as the basis for her opinion under Rule 703, thus circumventing the Confrontation Clause.

Another look at Blazier and Mil. R. Evid. 703, 704, and 705 continues to be warranted. It seems to me there is room to litigate the scope of any testimony admissible under Mil. R. Evid. 703. I know we’ve focused a lot on the confrontation issues, and some exist still. But beyond the confrontation issues there a other lingering evidentiary objections.

One issue raised by the new case concerns whether a majority of the Court still supports the Confrontation Clause analysis established under Crawford v. Washington in 2004, and Melendez-Diaz v. Massachusetts in 2009. Two Justices who voted in the majority (John Paul Stevens and David H. Souter) have since retired. The five majority votes in Melendez-Diaz v. Massachusetts included author Justice Antonin Scalia and Justices John Paul Stevens, David H. Souter, Clarence Thomas (who also filed a concurring opinion), and Ruth Bader Ginsburg. The four dissenting included Justice Kennedy, who authored the dissent, and Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Samuel Anthony Alito, Jr.. It is unclear whether a new majority will be formed on the Confrontation Clause analysis and how the newest Justices (Sonia Sotomayor and Elena Kagan) will vote on Confrontation Clause issues.

The military judge also questioned why experts for the defense continue to have difficulties obtaining payments for work done on Bozicevich’s behalf as attorneys prepare for a February 2011 capital court-martial trial.

The humor is that this is neither a new problem nor a problem limited to the 3ID, or the Army for that matter.

And in a current case the defense expert requests took weeks to get approved. But on the 7th of the month the prosecution request for an expert was submitted and it was approved on the 8th of the month. This is no different than witnesses. For some reason it takes weeks to get defense witnesses approved, but days if not hours for prosecution witnesses.

The joke is on Article 46, UCMJ.

If the record disclosed that the reasonable remedy had been implemented in full, Appellant’s participation in and apparent acquiescence at trial to the remedy crafted and Appellant’s disavowal of any claim of ineffective assistance of counsel would end the inquiry. However, because the record does not disclose whether the remedy crafted by the military judge was actually implemented in full, under the facts of this case we devolve to the ordinary test whether unlawful command influence deprived Appellant of access to character witnesses. United States v. Gleason, 43 M.J. 69, 73 (C.A.A.F. 1995) (explaining the government’s burden to establish beyond a reasonable doubt that defense access to witnesses was not impeded by unlawful command influence). We are not convinced beyond a reasonable doubt that Appellant was not thus prejudiced. United States v. Biagase, 50 M.J. 143, 151 (C.A.A.F. 1999) (finding beyond a reasonable doubt the correct quantum of proof applicable to issues of unlawful command influence). Accordingly, we overturn the United States Air Force Court of Criminal Appeals.

The facts of this case are not uncommon. Commands routinely give no contact orders to an accused (but interestingly not their own witnesses). It is not unusual for a command to cast an accused adrift, make them an outcast, and directly or indirectly imply to others that supporting and helping the outcast will be viewed with disfavor.

Appellant moved to dismiss the charges and specifications against him on the ground that MSgt Bialcak’s orders and actions constituted unlawful command influence by creating a hostile environment that made it unlikely that Appellant’s colleagues would speak on his behalf.

The bottom line lesson of this case should be directed at SJA’s and trial counsel. They are the ones with the first and most effective opportunity to avoid UCI problems with potential witness interference. In each of these cases it is my view that the training, guidance, and assistance rendered the commander by the SJA office is defective. If the SJA is doing her job, her counsel should be out there in advance of a case, and specifically when a case comes up ensuring that the command is properly educated about interference with the defense. I attribute the continuing nature of this type of issue to a failure on the part of the SJA and trial counsel. At trial and on appeal everyone puts the burden on the defense to prove UCI. Why do we never put a burden on the SJA and TC to do something before UCI rears its ugly head? In the opinion CAAF refers to the MJ as, “the last sentinel,” so who is the first? It’s not the defense counsel, “it is a shared responsibility.” In this case all were quite happy to think about blaming the defense counsel because he didn’t object or object strongly enough. For example, in the dissenting opinion:

On the other hand, neither the military judge nor the defense counsel put the Government to the test.

Ergo, if you don’t challenge, then the government can get away with it. So the lesson to the defense is never ever agree that any “remedy” suggested by the military judge is sufficient.

The blogosphere critiques this opinion as poorly written and unneeded because the defense didn’t complain. So it’s all the defense fault. The blogosphere may be – technically – correct, but . . . Gosh, it’s always the defense fault. I for one believe this opinion could do a service by addressing a very common problem when an accused is charged. I doubt however that anything will be done training-wise.

United States v. Ellis. This is a case regarding a government expert testifying about rehabilitation potential in a sex case, using part (I emphasize part) of a psycho-sexual evaluation.

I’m a proponent of using psycho-sexual evaluations in sentencing. I take the position that failure to at least ask for assistance in that regard is IAC in child sexual abuse and child pornography cases. I have no problem with the prosecution using psycho-sexual testimony, assuming it is based on a legitimate evaluation and the defense has had a legitimate opportunity to have their own evaluation.

The flaw in Ellis is that the government expert never talked with the accused. The flaw isn’t related to the Static-99 or similar tests. All experts who do psycho-sexual evaluations (at least legitimate ones) will tell you that a personal interview and testing is critical to a proper evaluation using Static-99 or other instruments, and included in that testing is a polygraph. In this case the government expert did not have a critical part of the evaluation. IMHO this case is wrong, not as to the use of psycho-sexual evaluation testimony, but as to the adequacy of the foundation for that testimony.

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009).

STATEMENT OF THE CASE This Court held in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), that the prosecution violates the Confrontation Clause when it introduces forensic laboratory reports into evidence without affording the accused an opportunity to “‘be confronted with’ the analysts at trial.” Id. at 2532 (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)). This case raises the question of whether the prosecution complies with that holding by introducing forensic reports through the in-court testimony of someone, such as a supervisor, who did not perform or observe the testing discussed in the reports. In this case, a bare majority of the Indiana Supreme Court upheld the practice, deepening a square conflict of authority on the issue. The Indiana Supreme Court granted discretionary review. While the case was pending, this Court issued its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), clarifying that forensic laboratory reports are testimonial under Crawford. Three months later, a bare majority of the Indiana Supreme Court affirmed the court of appeals, adopting yet another rationale to justify admitting Powers’ forensic reports without calling her to the stand. Specifically, the Indiana Supreme Court upheld the admission of Powers’ testimonial statements on the ground that “it [is] up to the prosecutors to choose among the many ways of proving up scientific results, as long as the way chosen feature[s] live witnesses.” App. 12a (citing Melendez-Diaz, 129 S. Ct. at 2532 n.1). The court noted that State introduced two live witnesses: Lisa Black, Powers’ supervisor, and Dr. Conneally, the prosecution’s genetics expert. In the Indiana Supreme Court’s view, this “sufficed for Sixth Amendment purposes.” App. 12a-13a. The dissent accused the majority of basing its reasoning on “certain isolated passages from the Melendez-Diaz opinion” that, “taken in context,” dictated the opposite result. App. 15a-16a. In the dissent’s view, Melendez Diaz held that “a defendant has a constitutional right to confront at the very least the analyst that actually conducts the tests.” App. 19a. The opportunity to cross-examine a supervisor is “no substitute for a jury’s first-hand observations of the analyst that performs a given procedure.” App. 19a.

The petition notes a growing and deeper split over the meaning of Melendez-Diaz. And notes for example that:

In the wake of Melendez-Diaz, two state supreme courts and one federal court of appeals have held that the Confrontation Clause prohibits what might be called “surrogate” forensic testimony – that is, introducing one forensic analyst’s testimonial statement through the in-court testimony of another. In direct contrast, three state high courts have held, based on the two distinct theories the Indiana appellate courts adopted below, that introducing one forensic analyst’s testimonial statement through the in-court testimony of another does not violate the Confrontation Clause. The post-Melendez-Diaz conflict concerning surrogate forensic testimony deepens a pre-existing split over whether, as a more general matter, testimonial statements of a nontestifying witness can be introduced through the in-court testimony of an expert witness.

To illustrate the reason why it is necessary to have the actual personnel involved in testing testifying, the petition uses an issue from California. I think we can think of situations in military labs – Hastis, USACIL and its DNA testing.

Surrogate witnesses fail to address – and may actually aggravate – the problems posed by an analyst’s potential fraud, incompetence, or flawed methodology. A recent case from California vividly illustrates the point. In People v. Dungo, 98 Cal. Rptr. 3d 702 (Cal. Ct. App. 2009), rev. granted (Cal. Dec. 2, 2009) the prosecution introduced an autopsy report to prove that a certain amount of time had elapsed before the victim’s death, a hotly contested issue at trial. The medical examiner who had authored the report, however, had since been fired. He had also been forced to resign “under a cloud” from another job, and was blacklisted by law enforcement in two more counties for falsifying his credentials. Id. at 704. Finally, the examiner had been known to base his conclusions on police reports instead of forensic methods. See People v. Beeler, 891 P.2d 153, 168 (Cal. 1995); Scott Smith, S.J. Pathologist Under Fire Over Questionable Past, THE RECORD, Jan. 7, 2007, available at http://www. recordnet.com/apps/pbcs.dll/article?AID=/20070107/A_NEWS/701070311#STS=g329z7h5.134t. In light of this problematic track record, the prosecution put the medical examiner’s supervisor on the stand instead of the examiner. As the supervisor explained during the preliminary hearing, “[t]he only reason they won’t use [the examiner himself] is because the law requires the District Attorney to provide this background information to each defense attorney for each case, and [the prosecutors] feel it becomes too awkward to make them easily try their cases.” Dungo, 98 Cal. Rptr. 3d at 708 (alterations in original). The California Court of Appeal held that this surrogate testimony violated Crawford, observing that the “prosecution’s intent” had been to “prevent[] the defense from exploring the possibility that the [medical examiner] lacked proper training or had poor judgment or from testing [his] ‘honesty, proficiency, and methodology.’” Id. at 714 (quoting Melendez-Diaz, 129 S. Ct. at 2538).

So what next for court-martial cases?

Shaken baby syndrome itself is put on trial in Fairfax court

Shaken-baby syndrome at center of Fairfax trial

I have done several posts on this blog (here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it. Now, based upon the recent opinion of the Supreme Court of Utah in State v. Clopten, 2009 WL 4877404 (Utah 2009), we can add Utah courts to the list of courts that allow such expert testimony.

Blogs Prof. Collin Miller. Note that the Military Judges’ Benchbook already has an instruction about cross-racial identification for use at court-martial. Prof. Miller:

“‘[T]he vagaries of eyewitness identification are well known; the annals of criminal law are rife with instances of mistaken identification.'”…Decades of study, both before and particularly after Long, have established that eyewitnesses are prone to identifying the wrong person as the perpetrator of a crime, particularly when certain factors are present….For example, people identify members of their own race with greater accuracy than they do members of a different race….In addition, accuracy is significantly affected by factors such as the amount of time the culprit was in view, lighting conditions, use of a disguise, distinctiveness of the culprit’s appearance, and the presence of a weapon or other distractions….Moreover, there is little doubt that juries are generally unaware of these deficiencies in human perception and memory and thus give great weight to eyewitness identifications….Indeed, juries seemed to be swayed the most by the confidence of an eyewitness, even though such confidence correlates only weakly with accuracy….That the empirical data is conclusive on these matters is not disputed by either party in this case and has not been questioned by this court in the decisions that followed Long.

Any impact?

Friday’s Utah Supreme Court decision essentially mandating expert testimony about the pitfalls of eyewitness identification has had an immediate impact. A January murder trial for Eugene Christopher Wright was canceled this week because eyewitness testimony is a crucial element of the state’s case and the defense needs time to find an expert.

reports The Salt Lake Tribune.

The New York State Police’s supervision of a crime laboratory was so poor that it overlooked evidence of pervasively shoddy forensics work, allowing an analyst to go undetected for 15 years as he falsified test results and compromised nearly one-third of his 322 cases, an investigation by the state’s inspector general has found.

New York Times reports.