It is conventional wisdom that a story of actual innocence – there was no crime, the wrong person is on trial, the accused acted in self-defense – is the preferred modality in criminal cases. Why? An argument of ‘they can’t prove it beyond a reasonable doubt’ may come across like a schoolyard taunt – my
The stronger and more compelling the case against a criminal defendant, the more cohesive the picture of guilt painted by the prosecution in opening statement, the more defense counsel must have something coherent to say in response – an alternate story, a more complete story, or an attack on the veracity and integrity of the
It is rare if ever that a proffered expert will be deemed so unqualified as to be precluded from testifying. Why? The threshold for expertise is decidedly low. To use the Pennsylvania test, “[t]o qualify as an expert witness, a witness need only have a reasonable pretension to specialized knowledge, on a subject for which expert
Do mask-wearing witnesses deprive criminal defendants of their right of Confrontation? Does impairing the ability of jurors and lawyers to fully assess ‘demeanor’ result in less reliable trials? Can jury selection be fair of prospective jurors’ faces are covered? Or is this all a Shakespearean “much ado about nothing” because we – the great majority
Does science support a firearms and toolmark expert from saying anything more than that “the firearm may have fired the recovered casing…? Not ‘it came from this gun and no other,’ or ‘casings from the crime scene and from test fires of the suspect’s gun match,’ but a much more calibrated and restricted conclusion, evidence that is
We live in a time where every action we take, every premise we rely on, warrants scrutiny through the prisms of race and implicit bias. This reckoning, long overdue for too many individuals and institutions, was brought about by the murder by police of George Floyd and the consequent outpouring of grief, rage and commitment.
Judging the immorality of the four police officers charged with the death of George Floyd is easy. Mr. Floyd was handcuffed and on the ground, with four armed officers over him. All the police had to do was listen and stop – he would still be handcuffed, he would still be unable to harm them;
The landmark holding Crawford v. Washington, now sixteen years old, changed the framework for challenging hearsay offered against the accused in a criminal case – if the hearsay was “testimonial” in nature it is admissible only under one of two conditions: The declarant will ultimately appear at trial and thus be subject to cross-examination regarding
Science in the courtroom must be reliable, and to ensure that we want and expect judges to serve as gatekeepers, examining both reliability and relevance; but we also want and need to protect the right to present a defense. Two cases illustrate the apparent collision of these demands and the result – two new trials.
Two recent decisions reflect remarkably different values in how trials are conducted – one addressing whether we need judges who are awake and alert, the second whether it is permissible to attack defense counsel in a criminal case as a truth-twisting purveyor of information. Let’s start with the judges. On November 27, 2019, a unanimous