Sunday, May 21, 2017

CROSS-EXAMINATION OF DNA EXPERT

CROSS-EXAMINATION OF DNA EXPERT

For my Comprehensive Trial Advocacy course, Seattle University law students attend a day in trial and report on what they observed because that is a good way to learn the realities of trial practice. It is gratifying to read the students’ reports and to learn how being in the courtroom can be such a rewarding learning experience for them. 

Student Adam Brenneman attended a murder trial involving DNA evidence. The defendant Emanuel Fair was charged with murder in the first degree with sexual motivation. The defendant was at a party the night victim Arpana Jinaga was killed and was a friend of a woman who lived downstairs from victim. When Jinga’s body was discovered in the apartment, she was naked and her body was soaked in bleach and motor oil apparently used to obliterate any trace of DNA evidence. Police gathered items from the scene that the state crime lab could analyze.

The recovered DNA samples were degraded, mixed samples. The Washington State Crime Laboratory concluded that the blood on the victim’s robe was 1000 times more likely to contain the defendant’s DNA. However, TrueAllele, a software program, which relies on sophisticated algorithms to analyze DNA mixtures, determined that same blood was 56.8 million times more likely to include Fair’s DNA.

Adam Brenneman arrived in King County Superior Court courtroom in time to observe the cross-examination of Mark Perlin, CEO of Cybergenetics, the company that developed TrueAllele. The following are the student’s reflections on the cross-examination of Mr. Perlin.

CROSS-EXAMINATION OF DNA EXPERT
By Adam Brenneman

Mr. Perlin, an expert witness, is the owner of a DNA coding software company, TrueAllele.

During the portion of the cross examination observed, the defense was attempting to impeach and discredit Mr. Perlin by 1) challenging the process of the software, 2) pointing out the subjective portion of the process of the DNA coding using the software, 3) addressing inconsistent results between different runs of Mr. Perlin’s software, 4) challenging the result of Mr. Perlin’s software in relation to other DNA coding software.  Subsequent research outside the courtroom indicates that this case is the first case in Washington State in which software that analyzes DNA has been used by the prosecution; this type of software is also being used in other state for the same purpose.  Previously, such software has only been used to exonerate defendants in Washington State.

In addition to attacking the software itself, defense counsel also attempted to impeach Mr. Perlin using his Sound Cloud social media page, on which he posted personally written songs about a variety of topics including DNA coding and crime laboratory personnel.  The defense counsel read out loud verses from two the songs.  Defense counsel slightly misquoted the songs, these errors quickly corrected by the witness.  The mistake and quick response by the witness made the witness appear very intelligent and the defense counsel less so.  It was unclear how this played with the jury, but one has to assume if the effort is to discredit the designer of software that anytime you make the software designer (Perlin) look more intelligent, it is a bad result.

            The cross was very technical and defense counsel included a number of technical charts in a PowerPoint deck.  The charts were very difficult to read on the projector screen.  This required the witness to stand up and walk to the projector screen.  As noted below in relation to the federal courtroom, the superior court was very outdated. (Mr. Brenneman had also observed a trial in Federal Court and written a report on that experience).

            Defense counsel also allowed the expert to make extra statements outside the questions asked and generally did a poor job locking down the witness, who if he did not have the upper hand certainly was not being controlled by the attorney.

PostScript

The trial ended in a hung jury. And, the King County Prosecutor’s Office was considering whether or not to retry the case.


For more on the case, read this article in the Seattle Weekly.

Saturday, February 4, 2017

CROSS-EXAMINATION CHECKLIST

Checklists are critical to a winning cross-examination. To illustrate the importance of checklists, Dr. Atul Gawande tells the true story of an October 30, 1935 airplane flight competition that the U.S. Army Air Corps held at Wright Air Field in Dayton Ohio to determine which military-long range bomber to purchase. Boeing’s “flying fortress” was the likely winner. But, after the plane reached three hundred feet, it stalled, turned on its one wing and crashed, killing its pilot and another member of its five-person crew. The pilot had forgotten to release a new locking mechanism on the elevator and rudder controls. The plane was dubbed “too much airplane for one man to fly.”

Nevertheless, a few of the Boeing planes were purchased, and a group of test pilots considered what to do. They decided that the solution was a simple pilot’s checklist. With the checklist in use, pilots flew the B-17 1.8 million miles without an accident. Dr. Gawande in his book The Checklist Manifesto: How to Get Things Right (p. 34) concludes, “Much of our work today has entered its own B-17 phase. Substantial parts of what software designers, financial managers, firefighters, police officers, lawyers, and most certainly clinicians do are now too complex for them to carry out reliably from memory alone. Multiple fields, in other words, have become too much airplane for one person to fly.”

Dr. Gawande who heads the World Health Organization’s Safe Surgery Saves Lives program recounts that after the World Health Organization introduced the use of checklists for surgeons, research of nearly 4000 patients showed the following: major complications fell 36 percent; deaths fell 45 percent; infections fell almost 50 percent. Rather than the expected 435 patients expected to develop complications, only 277 did. The checklist spared 150 patients from harm and they spared 27 of those 150 from death. (The Checklist Manifesto, p. 154)

Just as checklists are critical for pilots and doctors, they are necessary for cross-examiners as well. At the end of almost every chapter in Cross-Examination Handbook:Persuasion, Strategies and Techniques 2nd Edition is a checklist of matters that are essential to effective cross-examination. The following is an example of a checklist that follows the chapter in Cross-Examination Handbook that focuses on exposing the false or exaggerated nature of what the witness reports on the stand.
Checklist: Impeachment Cross: Report

Improbability
   q Evidence of improbability is relevant and therefore admissible because it makes what the witness claims less probable. Fed. R. Evid. 401402. 

   q Under Fed. R. Evid. 611(b) and a similar state rule, cross should be limited to “matters affecting the credibility of a witness,” and a cross that reveals that the testimony is improbable goes to the witness’s credibility. 

   q The reduction-to-the-absurd technique exposes improbability by extending the original premise of the witness to an absurd result. 

   q The common-sense technique highlights the witness’s assertion and shows that it is unlikely because it defies common sense. 

   q The contradictory-conduct technique emphasizes the witness’s claim and then contrasts it with the person’s actions under the theme that action speaks louder than words. 

Prior Inconsistent Statements
   q Federal Rule of Evidence 613 and state equivalent rules provide that a witness may be examined about prior inconsistent statements.
     If the witness admits the prior statement, extrinsic evidence of the statement 
may be excluded as cumulative under Rule 403. 

     If the witness does not unequivocally admit the prior statement, extrinsic evi
dence of the statement is admissible. 

     The witness must be given an opportunity to deny or explain the statement. 

     The prior statement is admissible only for impeachment, not substantive, purposes unless admissible under another rule of evidence. 

q Avoid impeaching with minor inconsistencies, except: 

1. When the cumulative effect of the minor inconsistencies show the witness is not credible; or 

2. When necessary to force an evasive witness to yield concessions. 

q Don’t pluck a prior statement out of context because, under the rule of complete- ness as stated in Fed. R. Evid 106, opposing counsel can have the rest of the statement introduced contemporaneously, which may open the door to what would 
otherwise be inadmissible evidence. 

q Eight essential techniques for impeachment with a prior inconsistent statement are:
1.                   Recognize the inconsistency; 

2.                   Retrieve the prior statement; 

3.                   Repeat the testimony; 

4.                   Reinforce the truthful statement with where said, when said, who heard, what 
said, and whether said; 

5.                   Reference the prior statement; 

6.                   Resonate with the jury; 

7.                   Read or display; and 

8.                   Refute the witness’s denial. 

q Utilize the deposition strategy to extract the same answers from the witness that were given at the deposition.
 Apply the eight essential techniques when impeaching with a deposition.

         With video deposition clips the impeachment has a greater impact on the jury 
than with just the transcript. 

q Impeach the witness’s trial testimony by revealing that the witness previously 
failed to act or relate the same information when it would have been human nature to do so. 

Contradiction
q Extrinsic evidence contradicting a witness is admissible if it is relevant and substantive, not collateral. 

q Having a witness comment on the credibility of another witness—pitting—is improper. 



Sunday, December 25, 2016

NEW LINDBERGH KIDNAPPING CASE BOOK AND CROSS-EXAMINATION



Talbot Publishing recently released my co-author Bob Dekle’s book entitled Lindbergh Kidnapping Case: A Critical Analysis of the Trial of Bruno Richard Hauptmann.  Although the Lindbergh kidnapping case has been written about innumerable times, never before has the trial of Bruno Richard Hauptmann been meticulously researched and analyzed. Bob and his co-author Jim Dedman have done just that.            

The book is somewhat reminiscent of Vincent Bugliosi’s book Outrage: The Five Reasons O. J. Simpson Got Away WithMurder. In Outrage, Bugliosi, who had prosecuted Charles Manson, explains how he would have prosecuted Simpson, along with providing examples of what he would have done, such as what he would have said in closing argument.

Lindbergh Kidnapping Case is instructive on how to conduct a cross-examination. For instance, one of the prosecution witnesses at the Hauptman trial was John Conlon, an interloper who was involved in the negotiations over the ransom. This is how the book assesses defense counsel’s strategy in cross-examining Conlon:

Reilly adopted the wrong strategy for the examination of Condon. Instead of attacking the implausibility of Condon’s testimony, he attacked Condon personally. What Reilly succeeded in doing by aggressive verbal sparring with Condon was to highlight Condon’s wit in repartee, which in turn masked the implausibility of his testimony. . .
Rather than merely criticizing the strategy, the book recommends effective techniques that could be utilized as follows:
Reilly should have attacked the plausibility of the testimony, not the personality of the testifier. Snide remarks and personal assaults proved counterproductive and resulted in this portion of the cross-examination being diverted down a rabbit trail of arguing over the meaning of words. He would have done better by asking a line of tight and controlling single-fact questions. Such a line of questioning might have gone thus:
Q: You attended a lineup at the Greenwich Street police station in New York?
A: Yes.
Reilly should expect Condon to append a verbal barrage to his affirmation, but he should not take the bait. Rather he must relentlessly pursue the non-identification.
Q: The police asked you if anyone appearing in the lineup was the John whom you met in the cemetery?
A: Yes.
Q: Bruno Richard Hauptmann was in the lineup?
A: Yes.
Q: At that time you did not identify Mr. Hauptmann as John?
A: I identified Mr. Hauptmann at that time but I made no declaration of identification.
The Lindbergh Kidnapping Case is the perfect read for anyone interested in the Lindbergh case, an insightful telling of the story of the Hauptman trial, and a superb tutorial on trial strategies and techniques with illustrations from this famous case.