"DNA matches aren't always a lock" is the headline of this LA Times story by Jason Felch and Maura Dolan. Cases where a suspect is identified by a "cold hit" database search involve different probability considerations than the typical case where a person already a suspect based on other evidence is confirmed as the perpetrator by a DNA test.

By analogy, if you buy a lottery ticket for a drawing, the chances that your ticket will win are extremely small. However, the chances that somebody will win from that drawing are often pretty good. If the chance that a person would match a profile if selected at random are one in a million and the database searched for that profile has millions of people, then there is a decent chance that an innocent person will be a random match. Of course, with fresh samples and modern techniques, the random match probability is 1/quadrillions, not millions, so the chance of random false positive remains very small. With old, degraded samples and only a few markers available, though, the chance of a false positive match is significant.

Is this story accurate? I would be interested in hearing from DNA experts.

Posted by Kent Scheidegger at 05:24 PM | Permalink | Comments (1)

The Federalist Society is having a program Tuesday in DC on a proposed federal "shield law" for journalists. Details here.

Posted by Kent Scheidegger at 01:43 PM | Permalink | Comments (0)

Ed Silverman over at Pharmalot notes that the Supreme Court denied cert. in the "Zoloft Defense" case, Pittman v. South Carolina.

Continue reading "Justices Decline ‘Zoloft Defense’ Case" »

Posted by Steven K. Erickson at 05:03 PM | Permalink | Comments (2) | TrackBacks (0)

The Ninth Circuit today decided Osborne v. District Attorney's Office (Anchorage), No. 06-35875. (Hat tip: Ward)

William Osborne, an Alaska prisoner, brought this action under 42 U.S.C. § 1983 to compel the District Attorney’s Office in Anchorage to allow him post-conviction access to biological evidence—semen from a used condom and two hairs—that was used to convict him in 1994 of kidnapping and sexual assault. Osborne, who maintains his factual innocence, intends to subject the evidence, at his expense, to STR and mitochondrial DNA testing, methods that were unavailable at the time of his trial and are capable of conclusively excluding him as the source of the DNA....

[U]nder the unique and specific facts of this case and assuming the availability of the evidence in question, Osborne has a limited due process right of access to the evidence for purposes of post-conviction DNA testing, which might either confirm his guilt or provide strong evidence upon which he may seek post-conviction relief.

Posted by Kent Scheidegger at 10:36 AM | Permalink | Comments (0)

Julie Seamon has this article in the Georgetown Law Review on the impact of Crawford v. Washington on the practice of experts testifying on the basis of hearsay facts.

With respect to prosecution experts who testify in the form of opinions based upon testimonial hearsay statements, the answer is clear: such opinions should not be permitted. They fall squarely (so to speak) within the three corners of the expert testimonial triangle and sit at the convergence of the various lines of trust and distrust of juries, government, and experts. In other contexts, however, the answers are less clear. Where a government expert relies on evidence that is inadmissible, but not testimonial, Crawford and the Confrontation Clause do not apply and thus only two legs of the triangle are implicated. And with respect to a criminal defendant’s offer of expertise that rests on otherwise inadmissible hearsay, or in civil litigation, the expert testimonial triangle offers not concrete answers but rather directions for further exploration.

Posted by Kent Scheidegger at 04:20 PM | Permalink | Comments (2)

The Confrontation Clause has bestowed a freebie on an unlikely beneficiary. Sidney Blumenthal, former aide to President Clinton and present adviser to presidential candidate Clinton was charged in New Hampshire with aggravated drunken driving and doing 70 in a 30. Lucky for him, the police officer has been shipped off to Iraq, forcing the prosecution to offer a deal of only a $750 fine and 16 months license suspension. AP story here. Hat tip: James Taranto.

Posted by Kent Scheidegger at 01:38 PM | Permalink | Comments (0)

The Florida Supreme Court held yesterday that a discovery deposition is insufficient to satisfy the requirement of Crawford v. Washington, 541 U.S. 36 (2004) that the defendant have an opportunity to cross-examine before an out-of-court "testimonial" statement can be introduced in evidence. The opinion in State v. Contreras, No. SC05-1767, is here.

Posted by Kent Scheidegger at 02:09 PM | Permalink | Comments (0)

Forensic DNA is producing more results in England than in the U.S., reports Gautam Nak in the Wall Street Journal. Some of the reasons are controversial.

Continue reading "DNA Advances in England" »

Posted by Kent Scheidegger at 09:58 AM | Permalink | Comments (0)

It seems fashionable lately for many scholars to decry our criminal justice polices surrounding sex offenders. Indeed, classifying all sex offenses - from adolescents who take nude pictures of themselves to the worst sex abuse imaginable - seems unwise. Moreover, the civil commitment of sex offenders seems problematic and encompasses an ominous trend to attribute biological causes as the root problem for so many antisocial behaviors, including sexual deviancy. And it is true that the "science" surrounding much of the sex offender debate is a minefield of pitfalls and spurious links.

But those criticisms and limitations do not mean that sex offenders are a minor risk and that all of the retributive rhetoric about them is misplaced. As many forensic psychologists know, conducting a risk assessment evaluation on a convicted sex offender often entails a lengthy tread into the world of recidivism, failed treatment programs, and eternal denial on the part of the offender. A recent, albeit, extreme story regarding the tragic case of Dylan and Shasta Groene demonstrates why public sentiment is so starkly in favor of heavy penalties and restrictions against sex offenders.

Continue reading "The Horror of Our Failed Incapacitation Policies for Sex Offenders" »

Posted by Steven K. Erickson at 06:48 AM | Permalink | Comments (2) | TrackBacks (0)

The Colorado Supreme Court holds in Hernandez v. People:

Construing the applicable statutory provisions, the supreme court holds that treatment is not mandated in every case where a sex offender subsequently commits an offense of any kind. Where the recommendations of the sex offender evaluation and the facts of the subsequent case do not support treatment, a sentencing court is not required by section 16-11.7-105 to order treatment. On the other hand, when the sex offender evaluation and the facts of the case support it, the trial court must impose sex offender treatment as a condition of probation. Here, the trial court ordered Hernandez to complete sex offender treatment.

Defendants first crime in 1984 was attempted second degree assault which resulted when he forcibly inserted his fingers in a woman's vagina in a restroom at a bar. Nineteen years later, he was charged with possession of a schedule two controlled substance and introduction of contraband into a detention facility and ultimately plead to simple possession. After initially refusing to submit to a sex offender evaluation, on the advise of counsel, defendant complied resulting in a recommendation that he receive treatment. According to the opinion, the evaluator found the defendant's denial of guilt in both crimes as well as his scores on various sexual deviancy measures as supportive of the recommendation:

The evaluator rated Hernandez as being at high risk for a repeat sexual offense based upon his: (1) denying having sexually assaulted the previous victim; (2) taking no responsibility for possessing cocaine in his most recent offense; (3) exhibiting defensiveness throughout the evaluation process; (4) lacking victim empathy; (5) lacking motivation to engage in offense specific treatment; (6) having previously used coercive force against a female adult victim and registering arousal levels to a female adult and a female teen in a coercive sexual situation, in comparison to a consensual sexual male/female adult encounter, during the assessment; and (7) having a considerable substance abuse history.

One wonders how effective treatment will be for this recalcitrant offender.

Posted by Steven K. Erickson at 05:38 AM | Permalink | Comments (0) | TrackBacks (0)

Today, the US Supreme Court granted certiorari in Giles v. California (07-6053), a case that will review whether the Confrontation Clause permits the hearsay statement of a witness who is unavailable for trial because the defendant killed her - even though he did not intend to silence her testimony when he killed her. The California Supreme Court ruled in March of last year that the hearsay statement was admissible, but placed some limitations on how and when the statement would be allowed in court.

In Giles, the defendant was charged and convicted with the murder of his former girlfriend Brenda Avie. According to witnesses, Avie had arrived at the defendant's grandmother's house on the night of the murder, and had talked with defendant for about a half hour. Witnesses then heard the victim yell "Granny" several times followed by a series of gunshots. When witnesses arrived on the scene, they saw defendant standing about eleven feet from Avie with gun in his hands. Defendant then fled the scene and was arrested sixteen days later.

Avie had been shot six times in her torso. Two of the wounds were fatal. Avie had not been carrying a weapon when she was shot.

Continue reading "Giles v. California: Defining the Scope of "Forfeiture By Wrongdoing" " »

Posted by Lauren Altdoerffer at 02:36 PM | Permalink | Comments (0)

Orin Kerr has this long, interesting post at the Volokh Conspiracy on "Why the defendant should win in Virginia v. Moore." My reason why the state should win is much shorter and simpler. Mapp v. Ohio, 367 U.S. 643 (1961), which found an exclusionary rule applicable to the states in the Fourth Amendment, was wrongly decided. It is just barely tolerated as a matter of stare decisis and should not be extended anywhere that the Court's precedents do not absolutely require. Whatever federal interest there may be in protecting people from a search that the state could have authorized but didn't, there is none so strong as to require the drastic remedy of excluding evidence for a reason unrelated to its reliability and contrary to the truth-seeking function of the criminal trial.

Posted by Kent Scheidegger at 02:21 PM | Permalink | Comments (3)

Robert Loblaw points to a recent 4th Circuit case, U.S. v. Colonna, 06-5237 (4th Cir., Dec. 20, 2007), suppressing evidence obtained during a search of the defendant's home for child pornography involving 24 FBI agents:

The district court found that Colonna was awakened by armed agents and guarded by agents until the search and interview concluded. The home was inundated with approximately 24 officers who gave Colonna and his family members instructions; that is, they told them where to sit and restricted their access to the home. Colonna did not voluntarily request to speak with Agent Kahn. Instead, Agent Kahn requested that Colonna accompany him to a FBI vehicle to answer questions, wherein a full-fledged interrogation took place. Agent Kahn questioned Colonna for almost three hours, albeit with breaks. But, even during these breaks, Colonna was constantly guarded. Although Colonna was not placed under formal arrest, he was told twice that lying to a federal agent was a federal offense. And, at no time was he given Miranda warnings or informed that he was free to leave.

But the District Court held that since the agents informed Colonna that he was not under arrest, no interrogration took place. Not so, says the 4th Circuit:

Indeed, there is no precedent for the contention that a law enforcement officer simply stating to a suspect that he is "not under arrest" is sufficient to end the inquiry into whether the suspect was "in custody" during an interrogation.

And in a footnote:

Agent Kahn testified that he took twenty-three agents because the house was of considerable size; three stories high, four bedrooms, and a large detached garage.

Posted by Steven K. Erickson at 05:43 AM | Permalink | Comments (0) | TrackBacks (0)

Doug Berman highlights a potential case that might be granted cert by the Supreme Court involving a 30 year sentence for a teen who killed his grandparents when he was 12 years old. Ed Silverman adds an interesting twist to the case: apparently the convicted defendant, Christopher Pittman, was taking the antidepressant Zoloft at the time of the killings. There's been a lot of allegations that antidepressants have the propensity to cause suicides, particularly in children. Yet there's strong evidence against this notion (including an international study). The link between antidepressants and violence against others is even less compelling (View image)

Update: The Last Psychiatrist has this very good post about the misinterpretation of a study examining the perception of violence, kids, and mental illness:

I had thought the entire infrastructure of psychiatry rested on the very foundational idea that psychiatric disorders, especially depression, are responsible for increased risk of violence to the self. And these quotes are even more weird given that they come from Ohio and Indiana-- the two states responsible for over half the increase in female youth suicides in the whole country. You know, the increase that everyone is blaming on antidepressants.

But words are lies, and you can use loose language like "violence" and "dangerous" and "youth" and "kids"-- bending its meaning to whatever you need it to mean at that moment-- to make any point you want. The actual arguments for this position can be be flipped when necessary (e.g. Nasrallah saying a school shooting isn't "evil" but "medical illness.") You can do this if you manipulate words, e.g. conflating school shooting and suicide to "violence," and then making "violence" mean what you need it to mean at that moment.

Posted by Steven K. Erickson at 08:42 AM | Permalink | Comments (0) | TrackBacks (1)

Convicted felons have a seemingly inexhaustable supply of reason for not submitting to the DNA testing that Congress has required. In United States v. Zimmerman, the Ninth Circuit affirmed in part, reversed in part, and remanded for consideration of Zimmerman's complaint that the drawing of blood violates his religious beliefs.

On one hand, it is tempting to say that the government should have just gone to another method rather than spending the money to litigate this issue. On the other, if the government bends every time a prisoner asserts a claimed and probably fabricated religious objection, it's going to end up doing a lot of bending.

Posted by Kent Scheidegger at 04:20 PM | Permalink | Comments (1) | TrackBacks (0)

The Governator has vetoed SB 511, which would have required video recording of station-house interrogations in violent crime cases. Demian Bulwa reports on this and other bill signings and vetos for the SF Chron. Text of the bill here. Veto message here:

Police interrogations are dynamic processes that require investigators to use acumen, skill and experience to determine which methods of interrogation are best for the situation. This bill would place unnecessary restrictions on police investigators.

Also in the Chron on Cal. bill-signing season, resident contrarian Debra Saunders has this article on the creeping nanny state.

Posted by Kent Scheidegger at 06:40 PM | Permalink | Comments (0)

Psychology and Crime News has this post on the Gudjonsson Suggestibility Scales. I had not previously heard of this instrument, but it may be coming soon to a courtroom near you.

People who are high in IS [interrogative suggestibility] are more susceptible to making false confessions under interrogative pressure, in a police or military interrogation scenario, for instance. However, as the authors point out, some offenders might be motivated to appear suggestible or vulnerable even if they are not. For instance, if an offender wanted to retract a statement or confession, or “in circumstances where the successful demonstration of vulnerability may lead to a reduction in a fine or sentence or even to escaping a custodial sentence”.

The problem is explored in a forthcoming article: Julian Boon, Lynsey Gozna and Stephen Hall (in press). Detecting ‘faking bad’ on the Gudjonsson Suggestibility Scales. Personality and Individual Differences

Posted by Kent Scheidegger at 02:26 PM | Permalink | Comments (0)

Professor Berman yesterday links to the recent 9th Circuit opinion in U.S. v. Mitchell, affirming the death penalty sentence for a defendant involved in a double murder. As the opinion notes, during the sentencing phase, Mitchell offered this mitigating evidence:

The defense presented as mitigating evidence the testimony of family members, friends, and teachers of Mitchell whom they portrayed as an excellent high school student with no disciplinary problems except for a brief suspension for possessing marijuana, who was an outstanding athlete with college football prospects, a leader both in student council and in sports, and respectful towards teachers. (p. 11560)

According to Wiggins v. Smith, defendants have a right to introduce psychologically mitigating evidence, including descriptions of child abuse, neglect, and other unfortunate social factors in determining the appropriateness of a death sentence. In Mitchell, of course, it's the opposite: Mitchell introduced evidence of his relatively uneventful childhood as proof of his good character. Considering Justice Steven's dissent in the recent case Schriro v. Landrigan suggesting that antisocial personality disorder is an "organic brain syndrome" akin to delirium or mental retardation one wonders what constitutes a psychologically relevant aggravating factor in death penalty cases.

Of course defendants are entitled to present mitigating evidence during trial and sentencing. Such evidence should include salient psychological factors that could impinge on culpability. Yet the reduction of character evidence, psychologically speaking, into exclusively mitigating evidence seems the trend in our criminal justice system these days. This course follows the emergent and popular claim by many scholars that biology is destiny -- and that biology always seems to show a lack of choice by defendants to conform their behavior to the criminal code. Yet such claims should be viewed with a healthy dose of skepticism. As I discuss in this brief essay, history is a great teacher and history is replete with examples of scientific claims once viewed as promising and certain only to be viewed by future generations as downright foolish. Our legal traditions have always placed a great burden upon defendants wishing to exculpate or mitigate their guilt based on psychological factors alone since our system also cherishes individual choice and autonomy. But with choice and autonomy comes responsibility. Few predispositions, childhood histories, and other misfortunes should arguably negate that responsibility given the breathtaking implications such a course would have for our criminal code.

Posted by Steven K. Erickson at 04:57 AM | Permalink | Comments (0)

The Last Psychiatrist has this short post on the death sentence for John Couey, the man convicted of kidnapping and killing Jessica Lunsford. This post follows up on a prior post from the Last Psychiatrist which aptly points out the many problems inherent in the Atkins v. Virgina case which prohibited the execution of the mentally retarded. Surely the execution of the mentally retarded is reprehensible; but the formulaic declaration that Atkins set forth is problematic and troubling; problematic for the reasons the Last Psychiatrist states and troubling because it removed an important moral question from the hands of the People, which are arguably in a better position to weigh the individual circumstances of each case.

Update: As the commentators correctly suggest, historically the prohibition of the death penalty against the mentally retarded was against the profoundly mentally retarded -- those akin to Blackstone's "wild beast" whose intellect was so impaired as to render them as "infants". See generally, Steven K. Erickson, Minding Moral Responsibility

Posted by Steven K. Erickson at 12:45 PM | Permalink | Comments (3)

Here are updates on the two Crawford cases we noted here. Both cases have pending certiorari petitions in the U.S. Supreme Court on questions relating to the admissibility of a prior statement of the victim.

In Cage v. California, No. 07-5156, the state waived its right to respond, the court set the case for the "long conference" on Sept. 24, and the court then asked the state to respond.

In New Mexico v. Romero, No. 07-37, defendant got an extension to Sept. 10 but actually filed the brief in opposition on Aug. 21. I wouldn't be surprised to see this case on the long conference list as well. Jeff Fisher is now on the defense team.

Posted by Kent Scheidegger at 09:24 AM | Permalink | Comments (0)

Here are a couple of certiorari petitions to watch for those dealing with the aftermath of Crawford v. Washington, 541 U.S. 36 (2004).

Crawford indicated and Davis v. Washington confirmed "that one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." 165 L.Ed.2d. 224, 244 (2006). One popular method of obtaining the absence of the witness is to murder her. But does the state have to prove not only that the defendant murdered the witness but that his specific intent was to prevent her from testifying? That is the issue in New Mexico v. Romero, 07-37. The cert. petition is here, courtesy of AAG Joel Jacobsen. As a practical matter, such proof could be extremely difficult. Motives of preventing testimony, retaliation for going the police, and whatever the motive was for the original act of violence could all be mixed. When the killer has multiple motives, how do you prove specific intent?

Another Crawford case to watch is Cage v. California, 07-5156. I don't have the cert. petition on this one yet. The Cal. Supreme opinion is here for now but will scroll off in about a month. Lisa Marie Cage is a mother who will never be mistaken for June Cleaver. She was convicted of aggravated assault for carving a long, deep gash in the face and neck of her son with a piece of glass. Cal. Supreme held that the son's statement to the emergency room doctor in response to the question "What happened?" was not testimonial. A statement to the investigating police officer was testimonial, but it was harmless due to being cumulative to the other statement.

Update: The cert. petition in Cage is here, courtesy of Gary Schons. Counsel for Cage has stated the question as the admissibility of the doctor's testimony rather than the harmlessness of the officer's testimony. Not the way I would have done it.

Posted by Kent Scheidegger at 04:36 PM | Permalink | Comments (4)

In Schroeder v. Tilton, No. 06-15391, the Ninth Circuit rejected an Ex Post Facto challenge to a retroactive change in California evidence law. The change broadened the admissibility of prior sex offenses in sex crime cases. The state court found the change distinguishable from the one in Carmell v. Texas, 529 U.S. 513 (2000). "The decision of the California courts was neither contrary to nor an unreasonable application of clearly established Supreme Court law under Carmell."

Posted by Kent Scheidegger at 03:15 PM | Permalink | Comments (0)

We generally don't comment on the "celebrity" cases that are in the news only because of the personalities involved. Once in a while, though, a legal or policy issue worth serious discussion actually arises out of the tabloid fodder.

Linda Deutsch of AP has this story on a development in the Phil Spector murder case in LA. A former Spector defense attorney, Sara Caplan, has been held in contempt for refusing to answer questions about a piece of physical evidence from the scene that she pointed out to forensic expert Henry Lee, who then removed it. The prosecution, naturally, would like to have the evidence if possible, and if not to at least have the testimony of people who observed it. Ms. Caplan refused.

Continue reading "Privilege, Physical Evidence, and the Spector Case" »

Posted by Kent Scheidegger at 03:05 PM | Permalink | Comments (0)

The Sixth Circuit en banc has an interesting decision on when victim statements become "testimonial" as the incident progresses from a 911 call, the officers' arrival on the scene, the suspect's appearance at the scene, and further statements after that point. Judge Sutton, writing for the majority, holds that none of the statements are testimonial within the meaning of Crawford v. Washington, 541 U.S. 36 (2004). Judges Griffin and Cole concur in part and dissent in part, drawing the line between the victim's spontaneous exclamation upon the suspect's return and her further statements to police. The four dissenters would hold that all the statements are testimonial, even the 911 call made by the victim who had just left the house where she was assaulted with a gun and was just around the corner. The call is not testimonial, says Judge Moore, because the victim used past tense verbs and was not sufficiently chaotic. She displays an exceedingly narrow view of what constitutes an emergency.

Posted by Kent Scheidegger at 11:26 AM | Permalink | Comments (0)

In People v. Cage, S127344, the California Supreme Court has issued its first major decision applying Crawford v. Washington, 541 U.S. 36 (2004) as clarified in Davis v. Washington and Hammon v. Indiana.

Cage was charged with assault by means likely to produce great bodily injury. Her son, John, was taken to the hospital with a 5-6 inch gash on his face and neck. There, he told the doctor and a police officer that his mother had inflicted the wound with a piece of broken glass. Applying the "purpose" language of Davis, the court held that the statement to the police officer was testimonial but the statement to the doctor was not. By the time the officer spoke to John, the confrontation was over and medical personnel were treating him for his injury. The officer's questioning of John was investigation, not emergency response, as in Hammon. On the other hand, the doctor's simple question, "What happened?" was for the purpose of determining treatment, not taking testimony.

Defendant made the creative argument that the California law requiring health professionals to report suspected child abuse transformed this medical inquiry into testimonial interrogation. The court rejected that argument.

The California court criticized and declined to follow the decision of the West Virginia Supreme Court of Appeals in State v. Mechling, 633 S.E.2d 311 (2006). That case held that a statement to a neighbor regarding what happened, made after the emergency was over, was testimonial. The California court reads Crawford and Davis as excluding from "testimonial" statements made without the solemnity and purpose associated with testimony. Nontestimonial statements are not limited to those made during an emergency.

As the police officer's rendition of John's statement was merely cumulative, the court held 6-1 that it was harmless error under the Chapman v. California, 386 U.S. 18 (1967) standard.

Posted by Kent Scheidegger at 04:25 PM | Permalink | Comments (0)

Our regular scan of the SCOTUS docket for new capital cases turns up the interesting name of Marlo Thomas v. State of Nevada, No. 06-10347. Notwithstanding our disagreements with That Girl on multiple issues of policy, a death sentence strikes us as a bit harsh.

But seriously, folks, the opinion below rejects Thomas's claims that Crawford v. Washington, 541 U.S. 36 (2004) applies to the penalty phase. The Nevada Supreme Court considers this claim separately as to eligibility and selection, and rejects it for both. For eligibility, this is an issue that SCOTUS will probably have to address at some point.

Posted by Kent Scheidegger at 10:52 AM | Permalink | Comments (1)

Guest Post by Thomas Gede

While the issue may be novel, the decision in People v. Ramirez (Calif. 3d DCA, 3/28/07) (finding a state court suppression remedy in a federal Indian civil rights statute for evidence seized by tribal police without probable cause from a non-Indian on Indian land) is rather strained. I do not see how the federal statute at issue constrains, preempts or imposes a duty on the state trial court or proceeding. The statute is the Indian Civil Rights Act, or ICRA, which was enacted in 1968, to address the presumed non-applicability of the Bill of Rights to the actions of tribal governments. The Supreme Court had made clear in Talton v. Mayes, 163 U.S. 376, in 1898, that the Fifth Amendment did not constrain the Cherokee Nation from using tribal grand juries whose number of members did not meet the requirements of federal constitutional law, and ultimately and more broadly, that the Bill of Rights simply do not apply to constrain tribal governments in their exercise of self-government. Congress simply restated the Bill of Rights, with certain important exceptions, as statutory law to bar tribal governments from violating the rights there stated. It is clear that the Bill of Rights still does not apply to tribal governments, but it is equally clear that Congress, exercising its plenary power in Indian affairs, does and did have the power to impose the statutory restrictions in ICRA as a limitation on the tribes' inherent powers.

Continue reading "Indians and the Exclusionary Rule" »

Posted by Kent Scheidegger at 08:57 AM | Permalink | Comments (0)

This piece at ABC news discusses new applications for a drug called propranolol , an older antihypertensive medicine now being researched for "erasing memories" of past bad events. In true popular news fashion, ABC's suggestion that propranolol could erase memories is a bit over the top: people have been taking propranolol for years with the noted side effect of slight to modest memory impairment. Nonetheless, using drugs to erase memories presents some interesting questions. Given that propranolol is being considered as a treatment for post traumatic stress disorder via its memory impairing propensities, one wonders how this could play out in our criminal law. If a victim of a horrific crime, say rape, is given this drug and then subsequently called to testify in the criminal proceeding, would her memory of that event be immediately suspect? Even though rape prosecutions are purportedly rare, our recent criminal law is replete with problems related to memories.

Posted by Steven K. Erickson at 04:47 PM | Permalink | Comments (0)

The California Supreme Court today issued a decision in Taus v. Loftus, S133805. This is the civil suit by the subject of a controversial case study in recovered memory of childhood abuse against debunker Dr. Elizabeth Loftus et al. The Court of Appeal had whittled the plaintiff's claims down to four, and now there is one.

For the reasons discussed above, we conclude that the Court of Appeal erred in holding that plaintiff’s action should be permitted to go forward with regard to (1) Loftus’s alleged statements at the October 2002 conference relating to Jane Doe’s position in the military, (2) Loftus’s disclosure of plaintiff’s initials at the March 2003 deposition, and (3) defendants’ alleged action in obtaining information from confidential court records. At the same time, we also conclude that the Court of Appeal correctly determined that plaintiff’s action for improper intrusion into private matters could proceed based upon the claim that Loftus obtained personal and sensitive information regarding plaintiff from her former foster mother by misrepresenting herself as an associate of Corwin, a psychiatrist with whom plaintiff had a close professional relationship.

Continue reading "Recovered Memory Case Study Suit" »

Posted by Kent Scheidegger at 03:38 PM | Permalink | Comments (1)

Steven K. Erickson, J.D., LL.M., Ph.D.
Yale University

Some of the most promising research in psychology and law has focused on issues of memory and cognition. Because eyewitness testimony is so valued by juries and the justice system alike, conclusions that eyewitness testimony can be inaccurate and overvalued are hotly contested by scholars and policy makers. As additional studies build on older ones demonstrating that a host of memory and cognitive processes often involved in litigation are untrustworthy – repressed memories, eyewitnesses, line-ups – expert testimony related to these concepts has increased. The impetus of such testimony is heightened by the exoneration of many defendants by DNA evidence in cases where guilt was assumed to be “air tight.” Testimony related to the limits of memory and how people cognitively process and recall information, however, has met timid waters in the courts. Recently, the District Court for the District of Columbia disallowed expert testimony on memory in the highly-publicized case of Libby v. U.S., 05-394 (2006). The holding of the court suggests a deep skepticism of the proffered testimony and eschews its use because of a number of methodological shortcomings in the research studies themselves.

Continue reading "Memory, Credibility, and Experts" »

Posted by Steven K. Erickson at 05:05 PM | Permalink | Comments (0)

The California Supreme Court has scheduled argument for January 9 in its review of People v. Cage, 120 Cal. App. 4th 770, 15 Cal. Rptr. 3d 846 (2004). "Defendant's son had sustained a cut on his neck during a fight with his mother. He made three separate hearsay statements: to a police officer at the hospital where he was taken for treatment, to the doctor who treated him at the hospital, and to the same police officer at the police station--each to the effect that defendant had picked up a piece of glass and deliberately slashed him with it." The intermediate appellate court affirmed in a pre-Davis opinion. "The court held that the statements the victim made to the police officer and doctor at the hospital were nontestimonial, but the statement the victim made later to the police officer at the police station was testimonial. Admission of the testimonial hearsay statement ... was harmless beyond a reasonable doubt."

Expect an opinion within 90 days of argument.

Posted by Kent Scheidegger at 06:07 PM | Permalink | Comments (3)