![\"\"](\"https:\/\/law-dev.temple.edu\/aer\/wp-content\/uploads\/sites\/3\/2020\/01\/due-process-1-15-20-300x225.jpg\")
<\/p>\nScience 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.\u00a0 Two cases illustrate the apparent collision of these demands and the result \u2013 two new trials.<\/p>\n
<\/p>\n
The first decision arose from a capital murder case \u2013 a woman sentenced to death for the murder of her child, a crime that at trial she denied committing.\u00a0\u00a0 Lucio v. Davis, 2019 U.S. App. LEXIS 22447, *1-2, __ Fed. Appx. __, 2019 WL 3425186.\u00a0 Here, in the succinct summary provided by the Fifth Circuit, is what transpired:<\/p>\n
Her daughter’s body had been badly bruised, but the State’s examiner concluded that she died from a final blow to the head\u2026 After about five hours of interrogation, Lucio admitted to, in her words, spanking her daughter.\u00a0The State used those statements to argue to the jury that she confessed to abusing Mariah and that, by inference, she must have killed her. Lucio tried to rebut the impact of the interrogation by putting on an expert witness to explain why she would admit to facts that were not true. But the state trial court would not allow the expert to testify because it concluded such testimony was “irrelevant\u2026”<\/p>\n
<\/p>\n
Against Lucio\u2019s claim of having been denied Due Process of Law by being prevented from presenting a \u201ccomplete defense\u201d lay the trial judge\u2019s conclusion that this proof was irrelevant.\u00a0 How?<\/p>\n
The state trial court concluded that Lucio “admitted actions that she took that could have resulted in the death. But she denied ever having anything to do with the killing of the child.” It thus had “a hard time figuring out how it goes to the guilt or innocence” and denied Lucio the opportunity to present Pinkerman’s testimony.<\/p>\n
Id.<\/em>, *22.\u00a0 This was quickly and forcefully repudiated.\u00a0 There was no physical evidence or eyewitness testimony of abuse by Lucio; the statement was core to the prosecution; and \u201cPinkerman’s opinion was that Lucio was susceptible to taking blame\u00a0for something that was not her fault and that this behavior was manifested in the interrogation video. It thus cast doubt on the State’s key evidence and was paramount to Lucio’s defense.\u201d\u00a0 Id.<\/em>, *25.<\/p>\n Here, neither party questioned the expert\u2019s qualifications or the sufficiency of the information supporting the opinion.\u00a0 What happened here was a fundamental miscarriage \u2013 a failure to understand principles of relevance and how a defense story must be heard.<\/p>\n The second case, Allison v. State, 2019 Alas. App. LEXIS 94, 2019 WL 3367613 (July 26, 2019), was also one involving the murder of a child.\u00a0 The defense \u2013 with significant medical and scientific support \u2013 was that the child\u2019s death was consistent with having resulted from a fall.\u00a0 At issue was \u201cEhlers-Danlos Syndrome is a group of inherited disorders that affect a person’s connective tissues\u2014primarily their skin, joints, and blood vessel walls. People who have Ehlers-Danlos Syndrome usually have overly flexible joints and stretchy, fragile skin. They can also be more susceptible to bruising and excessive bleeding.\u201d\u00a0 Id.<\/em>, *6-7.<\/p>\n After her child\u2019s death the mother was diagnosed as having a form of this disease.\u00a0 In her defense, she sought to prove that there is a fifty percent chance of her child having inheritied this condition and that before any determination of what caused a death in a case involving significant bleeding a family history of this syndrome must be considered.<\/p>\n Again, the proof was disallowed.\u00a0 As the appellate court related,<\/p>\n The trial court ruled that such evidence was inadmissible unless (1) the defense produced an expert in the syndrome who could explain the mother’s diagnosis; and (2) the defense produced an expert who could diagnose J.A. with the syndrome “to a reasonable degree of medical certainty.”<\/p>\n Id.<\/em>, *15-16.<\/p>\n Both of these rationales were wrong.\u00a0 First, experts need not be \u2018expert in the syndrome\u2019 to be able to apply their knowledge of that condition to their conclusions.<\/p>\n Doctors Ophoven and Tawansy were qualified by the court to offer expert opinions on the State’s differential diagnosis of shaken baby syndrome\/abusive head trauma\u2026 Contrary to the trial court’s belief, the doctors did not need to be experts on Ehlers-Danlos Syndrome to reasonably rely on this medical information. Nor did they need to be experts on the syndrome to offer their expert opinion that this maternal history was something that “merited further investigation” and should be considered in any differential diagnosis of J.A.’s death.<\/p>\n Id.<\/em>, *17.\u00a0 Put more simply, an expert in differential diagnosis may opine that \u2018before you reach a conclusion of how the child died, the possibility of Ehlers-Danlos syndrome must be weighed in light of the family history.\u2019<\/p>\n As to the second error, the trial court conflated certainty with a relevance standard.<\/p>\n Allison was not required to present an expert who could diagnose J.A. with Ehlers-Danlos Syndrome “to a reasonable degree of medical certainty.” We recognize that the trial court had concerns about what it considered to be “the speculative nature” of the diagnosis. But the State bore the burden of proving Allison’s guilt beyond a reasonable doubt; it was not Allison’s burden to prove his innocence\u2026The evidence offered by Allison satisfied this test; that is, it tended to create a reasonable doubt as to Allison’s guilt. The State’s proof in this case rested on its experts’ conclusions that there was no reasonable explanation for J.A.’s death other than physical abuse. Evidence that there were other possible medical explanations for her excessive bleeding was something that the jury should have heard.<\/p>\n Id.<\/em>, *18-19.<\/p>\n The appellate court was making two points.\u00a0 There was enough proof that the child might have suffered from Ehlers-Danlos Syndrome to challenge the state\u2019s expert for failing to weigh that when conducting a differential diagnosis.\u00a0 Such proof simply needed to meet the minimal relevance standard of tending to make a fact of consequence more or less probable.<\/p>\n Are there essential takeaways from these two cases?\u00a0 The Due Process guarantee of the accused\u2019s right to present a defense must be factored in before excluding forensic evidence.\u00a0 Where qualified experts have information that will be helpful to the jury in answering the question(s) of culpability, courts must tread with care before keeping witnesses or knowledge out of the courtroom.<\/p>\n There is one additional lesson, separate from the Due Process concern.\u00a0 These two cases are ones where counsel dug deep, asking what else could explain conditions that made their clients appear guilty and then finding qualified experts who could answer that question.\u00a0 That is a model for effective <\/em>lawyering.<\/p>\n NOTE \u2013 <\/strong>This article was first published in Criminal Justice, Volume 34, Number 4, Winter 2020. \u00a9 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.<\/p>\n <\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" 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.\u00a0 Two cases illustrate the apparent collision of these demands and the result \u2013 two new trials.<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,6,7,11],"tags":[],"coauthors":[238],"class_list":["post-2509","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog","category-criminal-law","category-evidence","category-trial-advocacy"],"yoast_head":"\n