Term
| Daubert v. Merrill Dow Pharmaceuticals |
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Definition
FRE 702 supersedes Frye - TAPE
1. Whether theory or technique has been tested
2. Acceptance in the relevant scientific community
3. Peer review & publication
4. Known or potential error rate and standards controlling its operation |
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Term
| Federal Rule of Evidence 702 |
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Definition
KEETS - knowledge, experience, education, training, skill
1. Helps trier of fact
2. Based on facts or data
3. Product of reliable principles and methods
4. Reasonable application of methods to the case |
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Term
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Definition
| Daubert's gatekeeping function applies to all expert testimony |
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Term
| General Electric v. Joiner |
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Definition
| abuse of discretion standard applies to expert or scientific evidence |
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Term
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Definition
| Standard in GA - "reach a scientific stage of verifiable certainty, or rests upon the laws of nature" |
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Term
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Definition
| Defendant opened the door to questions on cross about faking mental illness and malingering by mentioning psychiatrist's treatment of him on direct - Malingering is basically an opinion that someone is not telling the truth |
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Term
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Definition
| Impermissible as a matter of constitutional law for an incompetent person to be subject to trial; standard to be subjected to trial is the same standard to waive trial - a trial court still has the duty to inquire into a defendant's competency where it appears to be in question at the time of trial |
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Term
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Definition
| ALWAYS ALWAYS ALWAYS go look at the crime scene |
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Term
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Definition
| Studies the manners and causes of death |
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Term
| Determinations of manner of death |
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Definition
1. Homicide
2. Natural
3. Accidental
4. Suicide
5. Undetermined |
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Term
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Definition
| Studies toxic poisons or substances |
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Term
| Melendez-Diaz v. Massachusetts |
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Definition
| Violation of the confrontation clause to allow forensic reports to come in without the testifying witness |
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Term
| Speed detection on gradient |
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Definition
| Cannot use speed detection on a grade in excess of 7% |
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Term
| Should a client hire the expert? |
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Definition
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Term
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Definition
| Abuse of discretion is the proper standard of review for all evidentiary rulings |
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Term
| Aguilar v. Children's Healthcare of Atlanta |
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Definition
| Physician who was not an emergency pediatrician was not qualified to provide an affidavit on medical procedures used on an infant |
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Term
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Definition
| There cannot be a "match," only similarities |
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Term
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Definition
| Legal issue - determined by a preponderance of the evidence |
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Term
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Definition
| Psychological issue - determination whether an individual is mentally fit to stand trial |
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Term
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Definition
| An explanation for a phenomenon which can be tested in a way that proves or disproves itself |
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Term
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Definition
1. Observation and research
2. Hypothesis
3. Prediction
4. Experiment/Testing
5. Conclusion |
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Term
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Definition
| Deductive reasoning - term logic |
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Term
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Definition
| Empiricism (credited with developing the scientific method) |
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Term
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Definition
| Critical rationalism - empirical falsifiability separates science from non-science |
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Term
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Definition
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Term
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Definition
| pseudo-science that is not supported by a valid and reliable method or lacks scientific basis |
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Term
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Definition
| Made up facts from t.v. were used to validate opinion that defendant was making up her mental illness and post-partum depression |
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Term
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Definition
| Prosecutor Nancy Grace engaged in an extensive pattern of inappropriate and illegal conduct in attempting to create scientific evidence supporting the theory of arson |
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Term
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Definition
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Term
| United States v. Williams |
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Definition
| voice identification versus polygraph |
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Term
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Definition
| A witness may not testify to a matter unless he or she has personal knowledge, pursuant to provisions of 703 |
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Term
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Definition
| Testimony of lay witness - if a witness is not an expert, his testimony is limited to rationally based perceptions of the witness |
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Term
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Definition
| Bases of opinion testimony by experts- can base opinion on facts or data made aware of or observed, or data that other experts in the field would rely on. If facts or data are inadmissible, then 403 analysis |
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Term
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Definition
| Testimony on the ultimate issue - not automatically objectionable to testify as to the ultimate issue UNLESS it is an expert testifying as to mental state - cannot state whether defendant had mental state or condition that constitutes an element of the charged offense |
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Term
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Definition
| Disclosure of facts underlying an expert opinion - expert can disclose opinion without revealing underlying facts or data, but must give them up on cross if asked |
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Term
| Brown v. Board of Education |
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Definition
| Relied on social science data that inequality harbors inherent inferiority |
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Term
| Georgia standard in civil cases |
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Definition
Daubert, not Harper.
1. Testimony is based on sufficient facts or data
2. Testimony is product of reliable principles and methods
3. Witness has applied the principles and methods relaibly to the facts of the case |
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Term
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Definition
| Preliminary question of qualification of a witness, privilege, or admissibility shall be made by a judge |
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Term
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Definition
| Relevant evidence is anything which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence |
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Term
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Definition
| Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence |
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Term
| Blackmun's observation on the Daubert decision |
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Definition
| scientists are committed to continuously testing - vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the tradiational and appropriate means of attacking shaky but admissible evidence |
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Term
| Investigation of the West Virginia Police Crime Laboratory |
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Definition
| So many errors - overstated results, frequency of genetic matches, reporting inconclusive results as conclusive, etc. |
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Term
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Definition
DEA agent gave opinion that more than on ounce of meth is for distribution and not personal use; raised 4 errors but was upheld
1. Agent's opinion was subjective belief
2. Opinion not based on any sound or reliable methodology
3. Agent merely vouching for co-conspirator
4. Agent's opinion was highly prejudicial |
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Term
| United States v. Hankey, a/k/a, Poo |
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Definition
| Gang expert was allowed to testify that gang members who testify against their own are beaten or killed - within court;s discretion |
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Term
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Definition
| Ghanian defendant could not introduce testimony by Ghanian social scientist as to false confession - outside scope of experts |
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Term
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Definition
Scientific - perform the testing
Forensic - explain to the jury |
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Term
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Definition
| Judge took judicial notice of science of comparison between two palm prints, but left the ultimate issue to the jury |
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Term
| Gianotta v. Beleza Hair Salon |
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Definition
| Expert opinion on the ultimate issue is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves |
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Term
| Court methods for determining admissibility of scientific evidence |
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Definition
1. Admissibility tests - Daubert, Frye, Harper
2. Judicial notice of acceptability of a scientific procedure
3. Legislative recognition of admissibility of a scientific test or procedure
4. Use of stipulations of admissibility of evidence relating to a test or procedure |
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Term
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Definition
| sociological studies used to defend law that stated women could work no longer than 10 hours per day in a factory, laundry, or plant |
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Term
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Definition
| whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion |
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Term
| United States v. Alatorre |
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Definition
| after defendant requested a Daubert hearing, court allowed defendant to voir dire expert in the presence of the jury regarding testimony about the value of marijuna seized |
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Term
| Three factors to be used in the decision to admit expert testimony |
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Definition
1. Is the expert qualified to testify competently to the matters intends to address?
2. Is the methodology by which the expert reaches his conclusion sufficiently reliable?
3. Will the testimony assist the trier of fact, through the application of the scientific, technical, or specialized expertise, to understand the evidence or determine a fact in issue? |
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Term
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Definition
| Expert cannot testify to a fact not in evidence unless the jury is incapable of drawing that reference |
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Term
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Definition
| judge's discretion to allow someone to be qualified as an expert |
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Term
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Definition
| There must be a foundation for proof of accuracy (this was |
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Term
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Definition
Proponent of scientific evidence must show that the general scientific principles and techniques used are:
1. Valid and capable of producing reliable results
2. Person performing the test substantially did so in an acceptable scientific manner |
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Term
| Challenging expert testimony |
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Definition
1. Is a particular test or procedure required?
2. Did the witness comply with that or those procedures?
3. If not, what effect does that have on the witness's testimony? |
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Term
| Seewar v. Town of Summerdale |
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Definition
| general acceptance of Intoxilyzer allowed results of breath test into evidence |
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Term
| Georgia Code on Breath Tests |
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Definition
| Alcohol chemical tests on blood, breath, or urine are admissible as long as they follow protocols as dictated by the Division of Forensic Sciences |
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Term
| Georgia Code on Speed Detection Devices |
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Definition
| If the speed detection device is approved, it is considered reliable |
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Term
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Definition
1. Teaching witness - testifies about theory or validity, but does not connect with the case
2. Application witness - usually the one that conducted test or theory; testifies about whether it was properly conducted
3. Interpreting witness - testifies to results and explains them to jurors |
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Term
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Definition
| chemist who testified for State was allowed to testify as to translation and interpretation of breath test results, but not to administration |
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Term
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Definition
| The fact a person is qualified to testify as to the results of a test does not necessarily qualify a person to testify about the reliability of a test in general |
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Term
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Definition
| Refers to the chances of a particular even occurring |
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Term
| United States ex rel DiGiacomo v. Franzen |
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Definition
| analyst gave probability odds on hair analysis, conviction upheld even though there is no such thing |
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Term
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Definition
| Probability testimony based on empirical scientific data is admissible, cross is opportunity for clarification |
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Term
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Definition
| in rape case, serologist could not testify to probability because of danger of statistics to jury, but could testify that none of the tests excluded the defendant |
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Term
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Definition
| no testimony as to the likelihood of the guilt of the accused |
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Term
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Definition
| Error to permit analyst to present probabilities on fiber evidence |
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Term
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Definition
| Statistician who had just talked to doctors could not give SIDS statistics |
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Term
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Definition
| allowed evidence regarding recurrence of compulsive behaviors because it was beyond the ken of the jury |
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Term
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Definition
| Without statistics or probabilities, DNA is useless; juries are allowed to analyze the statistical analysis |
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Term
| Types of statistical analysis |
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Definition
| quality control, political polls, clinical studies, laboratory research |
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Term
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Definition
1. Real evidence
2. Demonstrative evidence
3. Documentary evidence
4. Testimonial evidence |
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Term
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Definition
| Can be seen, touched, felt, or smelled, also certain types of eyewitness evidence |
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Term
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Definition
Types of evidence that can imply the existence of a fact, certain types of eyewitness evidence can be defined as circumstantial
Character evidence that can give rise to inferences is circumstantial |
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Term
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Definition
| All physical evidence must be authenticated or identified |
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Term
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Definition
| Strict showing of chain of custody not necessary where evidence is nonfungible |
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Term
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Definition
| Where undershorts were taken from a defendant and given to a custodian and officer identified them at trial, there was a proper foundation |
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Term
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Definition
| Tangible evidence, in contrast to fungible evidence, is a distinct item that can be recognized by its features by someone who saw it, thus that person's recognition is enough to authenticate it |
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Term
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Definition
1. Foundation - reasonable probability that it is the same item in the same condition
2. Chain -receipt of items, safeguarding, disposition
3. If the proponent of the evidence has a missing "link" in the chain, it can be inadmissible, but a weak link is up to the jury to decide |
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Term
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Definition
questioned chain of custody of blood samples in vehicular homicide case
1. Missing link = inadmissible
2. Weak link = question weight and credit |
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Term
| United States v. Cardenas |
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Definition
| Court has to determine if evidence is substantially in the same condition and the chain of custody is complete with such sufficiency that it renders it improbable that the original item has been tampered with |
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Term
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Definition
| State doesn't have to foreclose every possibility of tampering, just reasonable assurance of the identity of the item; where there is missing link and no allegation of tampering, state has met its burden |
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Term
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Definition
| Where witness testified to a knife, their testimony was enough to create a chain of custody |
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Term
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Definition
| Foundation was sufficient when dr mailed blood samples to a lab and marked the vials with defendant's name and time of taking |
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Term
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Definition
| Even though the evidence technician who initially received the envelope did not testify, chain of custody was created between officer who mailed the material and chemist who examined it where chemist testified regarding its receipt |
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Term
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Definition
| FRE 901 requires only that to meet the admissbility threshold, the government needs to prove only a rational basis for concluding the exhibit is what it purports to be - once an exhibit is entered into evidence, it is up to the jury to decide weight of alleged defects in the chain of custody |
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Term
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Definition
| State has the burden to gain admission of evidence, show with reasonable certainty that the evidence is the same that was seized and that there has been no tampering or substitution |
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Term
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Definition
| Court's decision on chain of custody issue is reviewed for abuse of discretion; fact that someone in the chain does not testify does not make testimony inadmissible |
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Term
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Definition
| Absent affirmative evidence of tampering, a crime lab and all its branch offices and employees are considered a single link in the chain |
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Term
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Definition
Records breathing, pulse rate, blood pressure, galvanic skin response
Inadmissible unless stipulated |
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Term
| Hypnosis (Borawick v. Shay) |
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Definition
Determining the admissibility of post-hypnotic testimony -
1. Whether the hypnosis was to refresh memory or part of therapy
2. Whether witness received any suggestions from hypnotist or others during or prior to hypnosis
3. The presence or absence of a permanent record which could help the court ascertain whether suggestive procedures were used
4. Whether hypnotist was properly qualified
5. Whether corroborating evidence exists to support reliability of hypnotically refreshed testimony
6. The degree of subject's hypnotizability
7. Any expert evidence offered by parties as to reliability of procedures used in the case |
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Term
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Definition
| The per se rule of excluding hypnotically refreshed testimony infringes on a defendant's right to testify on his or her own behalf - inaccuracies can be reduced by tape or video recording |
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Term
| Narcoanalysis (truth serums) |
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Definition
| Truth serum testimony too unreliable to be admitted |
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Term
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Definition
1. Palmar surface prints
2. Latent fingerprints - cannot be aged
3. Patent fingerprints
4. Ridge comparisons |
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Term
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Definition
1. Arch - plain or tented
2. Whorl - central loop or plain
3. Loop - radial loop or ulnar loop |
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Term
| Pattern characteristics for identification |
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Definition
1. Bridge
2. Bifurcation
3. Double bifurcation
4. Triple bifurcation
5. Opposed bifurcations
6. Dot
7. Lake or enclosure
8. Hook or spur
9. Ridge ending |
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Term
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Definition
| Automated Fingerprint Identification System |
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Term
| Handwriting sample comparison |
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Definition
| Theory that no two writers share the same combination of characteristics and each writer has a range of variation |
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Term
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Definition
| Subject of scientific testimony cannot be "known certainty" - there are no known certainties in science |
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Term
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Definition
| Not as widely used as fingerprints, but still acceptably used |
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Term
| Human hair identification |
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Definition
1. Can be classified by race (Caucasian, negroid, mongoloid)
2. DNA clings to the cells in the follicle |
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Term
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Definition
| Central dogma is postmortem remains can be identified with antemortem dental records |
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Term
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Definition
| Retinal scan identification - converts to mathematical code |
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Term
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Definition
| method by which is identified is a multi-faceted process requiring the use of the visual senses |
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Term
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Definition
| how popular fiction about forensic sciences affects real life expectations of forensic |
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Term
|
Definition
| Derived form conventional basic science, parent field is most often chemistry |
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Term
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Definition
Seek to associate an item of evidence with its unique source
DNA is exception because it is derived from traditional science |
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Term
| Methods to generate DNA profiles |
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Definition
1. RFLP
2. PCR
3. STR
4. MtDNA |
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Term
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Definition
Restriction Fragmentation Length Polymorphism -
1. Extraction
2. Fragmentation
3. Electrophoresis
4. "Southern Blotting"
5. Hybridization
6. Autoradiograph - visual inspection |
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Term
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Definition
Most common because it can use very small amounts of DNA
1. DNA is extracted from the cells
2. Selected regions of the sample are identified
3. The amplified gene is "typed" through the use of DNA probes to identify the specific alleles it contains |
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Term
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Definition
Short Tandem Repeats
1. A locus or lci is the actual location of the gene on the region of the chromosome
2. Different STR markers occur at different loci
3. Each person has at most two alleles at each marker
4. An allele is a different form of a gene at a particle locus. the designation of two alleles at a particular locus is a genotype |
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Term
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Definition
| specific location of a gene or DNA sequence on a chromosome |
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Term
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Definition
| Different form of a gene at a particular locus |
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Term
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Definition
| 13 loci - all 13 match, can declare it a match - chances are 1 in |
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Term
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Definition
| Used to examine DNA from samples that cannot be analyzed by PCR or RFLP - degraded samples |
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Term
|
Definition
| Combined DNA Index System |
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Term
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Definition
1. Examine case materials
2. Examine chain of custody
3. Examine analyst's background
4. Scrutinze lab procedures
5. Re-run raw data
6. Identify artifacts, i.e., spurious test results
7. Look for indications of contamination
8. Look for plausible alternative interpretations
9. Review the pertinent scientific literature
10. Prepare and research |
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Term
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Definition
| First DNA based conviction |
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Term
|
Definition
| first appellate court to rule in favor of admitting DNA evidence |
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Term
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Definition
| acknowledged the scientific acceptance of DNA, but stated that the admittance of DNA hinges on the laboratory's compliance with appropriate standards and controls |
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Term
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Definition
| GA Supreme Court applied the Harper standard and held that it was proper for trial judge to decide whether the procedure or technique has reached a stage of verifiable certainty |
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Term
| Introducing DNA to establish or exclude identity |
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Definition
| trial court determines not only whether the general scientific principles and techniques are capable of producing reliable results, but also whether the laboratory performed the scientific procedures in an acceptable manner |
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Term
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Definition
| evidence of a matching DNA profile in a government database does not, in and of itself, constitute impermissible character evidence when no reference is made to when the matching sample was collected or stored |
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Term
|
Definition
| statistical evidence based on "product rule" method of analyzing DNA test results was admissible |
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Term
|
Definition
| defendant entitled to any exculpatory evidence |
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Term
|
Definition
| fundamental fairness is denied when a defendant is denied the opportunity to restest a pice of evidence |
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Term
| Commonwealth v. Gliniewicz |
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Definition
| some states have even recognized the right of expert to be present when testing occurs |
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Term
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Definition
| if a report is furnished late, the appropriate remedy is for the trial court to grant a continuance or recess upon timely request by the defendant; length of time rests with the trial judge's discretion |
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Term
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Definition
| The location of DNA, each has approximately 3 billion base pairs |
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Term
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Definition
Cytosine, Guanine, Adenine, Thymine
C-G, T-A |
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Term
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Definition
| Product rule, referred to as "random match probability" |
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Term
| Five Reports of DNA Analysis |
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Definition
1. Inconclusive
2. Exclusion
3. Nonmatch
4. Match
5. No results |
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Term
| Forensic psychology and psychaitry |
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Definition
| Deals with the legal aspects of human behavior |
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Term
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Definition
| Administer and score psychological and neuropsychological assessments |
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Term
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Definition
| A cluster or pattern of symptoms that appear together in a way that is considered clinically meaningful |
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Term
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Definition
| Post-Traumatic Stress Disorder - an anxiety disorder that occurs after a person has been through a traumatic event |
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Term
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Definition
| PTSD is not a a reliable indicator of sexual abuse - fails to pass Daubert |
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Term
| Battered Women's Syndrome |
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Definition
| Testimony is permissible because it is beyond the ken of the jury |
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Term
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Definition
| No such thing exists, so psychologist cannot testify to whether someone has a profile of a child molester |
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Term
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Definition
| Presumption of sanity unless the defense proves that at the time of committing the act, the accused could no appreciate right from wrong |
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Term
| Caes where Insanity is defense can result in |
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Definition
1. Guilty
2. Not guilty
3. Not guilty by reason of insanity
4. Guilty but mentally ill
5. Guilty but mentally retarded |
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Term
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Definition
| Requires examination by a licensed psychologist or psychiatrist and hold a hearing on the issue of defendant's mental condition to be satisfied there is a factual basis for the plea |
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Term
|
Definition
1. Presumption of sanity
2. The burden of proving the absence of sanity is on the defendant
3. Defendant may not be put to trial unless has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him |
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Term
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Definition
| In order for this to exist, there would have to be evidence that the defendant was laboring under a delusion, that the act was connected with the delusion, and the the delusion, if true, would justify the act |
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Term
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Definition
| Has burden of proof of civil proceeding - has to prove incompetency by a preponderence of the evidence |
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Term
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Definition
| Standard to be applied in making the determination as to whether a defendant is capable of understanding the nature and object of the proceedings and is capable of assisting his or her attorney with his or her defense |
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Term
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Definition
| A defendant is not entitled to have his or her attorney testify as to the defendant's ability to assist in his or her defense for purposes of determining whether he or she is competent |
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Term
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Definition
| Identify, establish, preserve, secure, and protect |
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Term
| Types of evidence from a crime scene |
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Definition
| Biological evidence, trace evidence, laten prints |
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Term
|
Definition
| Drops, drip patterns, pools, clots |
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Term
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Definition
| Created when a wet, bloody surface comes in contact with a secondary |
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Term
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Definition
| blood released or thrown from a blood bearing object in motion |
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Term
|
Definition
created when an exposed blood source is subjected to an action or force greater than the force of gravity
1. Impact spatter
2. High velocity
3. Medium velocity
4. Low velocity |
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Term
|
Definition
| gunshot residue at close range |
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Term
|
Definition
| left or right bore, creates different patterns of deformation on the bullet |
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Term
|
Definition
| gunshot residue - correct sample collection techniques are critical (approximately 6 hours on live person) |
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Term
|
Definition
1. Slash wounds
2. Incision wounds
3. Puncture wounds |
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Term
| Knife wounds and identification |
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Definition
| Can identify weapon if a small piece breaks off, but if a match cannot be made, can determine whether a weapon is consistent with the wound |
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Term
| Crime Scene Investigation |
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Definition
1. Prevent contamination
2. Document the scene
3. Collect evidence
4. Preserve and transport evidence |
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Term
|
Definition
| subspecialty of medicine that studies causes of death |
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Term
|
Definition
| Almost always appointed, should be forensic pathologists; only testify to manner and cause of death |
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Term
|
Definition
| Elected officials - in A, county can |
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Term
|
Definition
| A legal question - like homicide, suicide |
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Term
|
Definition
| Causation - ex) gunshot wound, head injury, etc. |
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Term
| Test for causation in homicide |
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Definition
1. Injury was the sole proximate cause of death
2. Injury directly and materially contributed to the happening of a subsequent accruing immediate cause of death OR
3. The injury materially accelerated the death by a pre-existing cause |
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Term
|
Definition
1. An examination and dissection of the body
2. Death certificate |
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Term
|
Definition
| study of toxic substances; scientifically test on tissue samples and bodily fluids to determine whether any foreign drugs or chemicals are in the body |
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|
Term
| Locard's exchange principle |
|
Definition
| "Every contact leaves a trace" |
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Term
|
Definition
Schedule I - High potential for abuse, no medical use
Schedule II - High potential for abuse, very limited medical use
Schedule III - Potential for abuse less than I-II, accepted use bust abuse can lead to dependency
Schedule IV - low potential for abuse |
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Term
|
Definition
| Scientific discipline involving study of structure and mechanism related to the toxic effects of chemical agents |
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Term
|
Definition
| Determination of the type of blood, blood testing, bloodstain examination, preparation of testimony |
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Term
|
Definition
| Presumptive test for semen |
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|
Term
| Prostate Specific Antigen |
|
Definition
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| Presumptive test for blood - reacts with hemoglobin (but potatoes and onions can fluoresce) |
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| Turns pink in the presence of blood - phenolpthlalein and hydrogen peroxide |
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| Immunological precipitin test |
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| Test whether blood is human or not |
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| Is a question for the jury |
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| Must show that speed detection device was visible to approaching motorist for a distance of at least 500 feet before evidence of speed gained by use of speed detection device is admissible |
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| One must be going 10 miles over the speed limit except in residential, school, construction, or historical districts |
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| Visual Average Speed Computer Recorder - basically a stopwatch with a calculator |
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| Radio Detection and Ranging - based on Doppler Effect - change of frequency determines speed of target |
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| Evidence of speed based on a speed detection device approved by the Department of Public Safety shall be considered as scientifically acceptable and reliable and admissible for all purposes in any court, judicial, or administrative proceeding |
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| Four types of alcohol detection tests |
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Definition
1. Urine test
2. Blood test - most accurate, intrusive, and expensive
3. Breathalyzer - indirectly estimate BAC, can have false positives
4. Saliva alcohol test - relatively good approximation of BAC |
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Term
| Horizontal Gaze Nystagmus |
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Definition
three manifestation of alcohol consumption - Inability to follow visually, in a smooth way, an object that is moved laterally in front of the person's eyes, "jerking" of the eyeball
Only thing required for HGN is a stimulus |
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| Officer scores one point for each sign of intoxication per eye - 4 pts is BAC over .10 |
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| Used in GA - two sequential breath tests must be taken; If difference is .02 grams the lower shall be determinative for accusation purposes |
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Definition
| Only a doctor or otherwise qualified person can draw blood for chemical tests |
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| Refusal to submit to BAC or FST |
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Definition
| Can be used as evidence against defendant |
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