New Issue of International Journal of Evidence and Proof

Hat tip to Robert Richards for his alert to the following new issue of the

International Journal of Evidence and Proof

 

Volume 16 Number 1 2012
ISSN: 1365-7127  eISSN: 1740-5572

ARTICLE

The likelihood-ratio framework and forensic evidence in court: a response to R v T
Keywords: Bayesian; Bayes; Admissibility; Validity; Reliability
Geoffrey Stewart Morrison DOI: doi:10.1350/ijep.2012.16.1.390
(2012) 16 E & P 1
 ABSTRACT: In R v T the Court of Appeal concluded that the likelihood-ratio framework should not be used for the evaluation of evidence except 'where there is a firm statistical base'. The present article argues that the court's opinion is based on misunderstandings of statistics and of the likelihood-ratio framework for the evaluation of evidence. The likelihood-ratio framework is a logical framework and not itself dependent on the use of objective measurements, databases and statistical models. The ruling is analysed from the perspective of the new paradigm for forensic-comparison science: the use of the likelihood-ratio framework for the evaluation of evidence; a strong preference for the use of objective measurements, databases representative of the relevant population, and statistical models; and empirical testing of the validity and reliability of the forensic-comparison system under conditions reflecting those of the case at trial.

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Is reliability sufficient? The Law Commission and expert evidence in international and interdisciplinary perspective (Part 1)
Keywords: Law and science; Forensic science; Expertise; Admissibility; Daubert;Reform; Trial safeguards; Proof; Opinion; Judging
Gary Edmond DOI: doi:10.1350/ijep.2012.16.1.391
(2012) 16 E & P 30
ABSTRACT: This article offers a critical appraisal of the Law Commission's Report, Expert Evidence in Criminal Proceedings in England and Wales (2011), and related proposals for reform. Drawing upon interdisciplinary research and empirical studies from other common law jurisdictions it suggests that the introduction of a reliability-based admissibility standard for expert opinion evidence, even in conjunction with provision for recourse to court-appointed experts, is unlikely to generate the kinds of changes required to improve the quality of incriminating forensic science and medicine evidence or align criminal justice practice with espoused goals and principles.

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Due process and the admission of expert evidence on recovered memory in historic child sexual abuse cases: lessons from America
Keywords: Expert evidence; Recovered memory; Due process; Historic child sexual abuse prosecutions; the United States; Ireland; England and Wales; Law Commission
Sinead Ring DOI: doi:10.1350/ijep.2012.16.1.392
(2012) 16 E & P 66
ABSTRACT: This article reviews the decisions of the US state courts on the admissibility of expert testimony on recovered memory in historic child sexual abuse prosecutions. Unlike their English and Irish counterparts, most US courts scrutinise the reliability of expert evidence on recovered memory. In examining the US decisions the article explores the challenges posed to the criminal process by the contested scientific status of recovered memory theory. It sets out due process arguments why expert evidence on the topic should not be admitted in a criminal trial.

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CASE NOTE

Expert evidence on the reliability of eyewitness identification-some observations on the justifications for exclusion: Gage v HM Advocate
Keywords: Expert evidence; Eyewitness identification; Admissibility; Common knowledge; Probative value
Andrew Roberts      93
DOI: doi:10.1350/ijep.2012.16.1.393

CASE COMMENTARIES

Case Commentaries
Rosemary Pattenden      106
DOI: doi:10.1350/ijep.2012.16.1.394

NOTICEBOARD

Noticeboard
Rosemary Pattenden      128
DOI: doi:10.1350/ijep.2012.16.1.395
 

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Important Eyewitness Identification Ruling: Perry v. New Hampshire

In Perry v. New Hampshire No. 10-8974 (Jan. 11, 2012) (8-1; Sotomayor, J., dissenting) the Supreme Court of the United States held that a pretrial identification not conducted by police officers or state agents is not - at least as a general matter - subject to due process scrutiny. This basis for the decision was not  unexpected, even if it was unfortunate.

The Court wrote (footnote omitted):

We have not extended pretrial screening for reliability to cases in which the suggestive circumstances were not arranged by law enforcement officers. Petitioner requests that we do so because of the grave risk that mistaken identification will yield a miscarriage of justice.Our decisions, however, turn on the presence of state action and aim to deter police from rigging identification procedures, for example,at a lineup, showup, or photograph array. When no improper law enforcement activity is involved, we hold, it suffices to test reliability through the rights and opportunities generally designed for that purpose, notably, the presence of counsel at postindictment lineups, vigorous cross-examination, protective rules of evidence, and jury instructions on both the fallibility of eyewitness identification and the requirement that guilt be proved beyond a reasonable doubt.

More welcome (as a conceptual or analytical matter) than the Court's flawed view of the requirement of state action was the Court's seeming awareness that the question of reliable or unreliable eyewitness identifications (in criminal cases) cannot readily be distinguished from the question of the reliability or unreliability of other types of evidence. (Such awareness - and perhaps acknowledgment - can be inferred from the Court's brief comparison of eyewitness identifications and testimony by "jailhouse snitches.")

• I think the question of the reliability of eyewitness identifications cannot and should not be separated from the even more general and decisive question of the reliability or unreliability of factual adjudication in criminal cases. 

The ruling in the case leaves open precisely how the Court and lower courts will use the federal due process guarantee to assure a minimum level of fact finding reliability in criminal cases. Although the Court did not speak as clearly as it might have - but when does it or anyone ever do that? - at least the Court made it tolerably clear, if only by means of a negative pregnant, that the guarantee of due process puts some sort of a ceiling on the risk of erroneous factual adjudication in criminal cases:

Only when evidence "is so extremely unfair that its admission violates fundamental conceptions of justice," Dowling v. United States, 493 U. S. 342, 352 (1990) (internal quotation marks omitted), have we imposed a constraint tied to the Due Process Clause. See, e.g., Napue v. Illinois, 360 U. S. 264, 269 (1959) (Due process prohibits the State’s 'knowin[g] use [of] false evidence,' because such use violates "any concept of ordered liberty.")

What is not clear from this statement and the Court's other pronouncements in the opinion is whether the Court will, in the near future, embrace the proposition that when the risk of fact finding error is so severe as to "shock the conscience" or offend "fundamental conceptions of justice," the due process guarantee can mandate remedies other than the (mere) exclusion of evidence - whether, for example, a criminal trial can be condemned as constitutionally defective because the accused had insufficient resources to mount a defense.

• Statements in the opinion such as the following suggest that support for such an approach will be forthcoming only grudgingly in the near future:

The Constitution, our decisions indicate, protects a defendant against a conviction based on evidence of questionable reliability, not by prohibiting introduction of the evidence, but by affording the defendant means to persuade the jury that the evidence should be discounted as unworthy of credit.

• Cf.  Justice Thomas' concurring opinion. He would plainly reject the approach I favor.

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Supreme Court Weighs Eyewitness Identifications

Adam Liptak of the New York Times provides a useful account of oral argument before the Supreme Court about constitutional limitations on the admissibility of eyewitness identifications (for the prosecution) in criminal trials.


Some of the more interesting comments by the Justices:

“Why is unreliable eyewitness identification any different from unreliable anything else?” (Justice Scalia)

“Eyewitness testimony is not the only kind of testimony which people can do studies on and find that it’s more unreliable than you would think,” Justice Kagan said.

Justice Ginsburg:

Justice Ruth Bader Ginsburg also seemed skeptical about the need for a special constitutional rule.

“What about all the other safeguards that you have?” she asked. “You can ask the judge to tell the jury, ‘Be careful; eyewitness testimony is often unreliable.’ You can point that out in cross-examination.”

“You can say something about it in your summation to the jury,” she went on, adding that the rules of evidence, as opposed to the Constitution, also allow the exclusion of some kinds of unreliable evidence.

“Why aren’t all those safeguards enough?” Justice Ginsburg asked.

General:

The justices also mused about other forms of evidence and information, including fingerprints, DNA, crystal balls, tea leaves and information obtained through torture. But they seemed persuaded by a lawyer for the federal government, Nicole A. Saharsky, who argued in support of state prosecutors in the case.

“Taking the question of reliability away from the jury,” Ms. Saharsky said, “would be a very big change in our system.”

Justice Kagan:

The primary point of excluding eyewitness identifications that were prompted by the police, said Michael A. Delaney, New Hampshire’s attorney general, was to deter police misconduct rather than to address unreliable evidence more generally.

Justice Kagan disagreed. “Well, it’s both,” she said. “The court has certainly talked about deterrence, but the court also has very substantial discussions in all of these opinions about reliability. And from the criminal defendant’s point of view, it doesn’t really much matter whether the unreliability is caused by police conduct or by something else.”

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Supreme Court Takes Eyewitness Identification Case

The Supreme Court granted certiorari in an eyewitness identification case, Perry v. New Hampshire, No. 10-8974. The petitioner's brief states the issue thus:



QUESTION PRESENTED
Do the due process safeguards against the State’s use of unreliable eyewitness identification evidence at trial apply to all identifications which arise from impermissibly suggestive circumstances and which are very substantially likely to lead to misidentification, or only to those identifications which are also the product of “improper state action”?
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The American Psychological Association submitted an amicus brief.


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