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Math + Summation = Reversal + Retrial

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A Massachusetts prosecutor gets his case back to do over again for trying to do amateur probability analysis in his closing argument.  Joe Palazzolo has this post at WSJ Law Blog.  Kyle Chesney has this story for State House News Service.  We can't link directly to the opinion due to Massachusetts' quirky opinion system.  The case is Commonwealth v. Ferreira, SJC-10902.  It is under "Slip Opinions" on this page for the time being.  Later, you will need to search the archives for it.

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After reading the identification procedure described in the court's opinion, I'm not sure I agree that there are 49 combinations. First, it isn't apparent that the witness was given a none of the above option. Second, the witness did not follow the detective's instructions and stopped after viewing only 5 photos in the first set of 6. So, the number of combinations might be 30. Regardless, given that the witness knew the first person he identified well, it seems as if a better question would have been, "after the witness picked the first person out, what are the odds that the second person he picked from the line up would turn out to be the first person's close friend, if the choice was simply random." The answer would be 1 in 6, which is not all that unusual or persuasive. Regardless, I think the court got it right when it found that this isn't the sort of argument a prosecutor can just spring on the jury during closing without the assistance of expert testimony during trial.

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