Sunday, January 25, 2004

Expert Witness Developments Across the Big Pond

In the native land of Sherlock Holmes, the courts are busy correcting two separate forensic misadventures that have received little press attention in the United States:

Earprint evidence. In 1998, Mark Dallagher was sentenced to life imprisonment for murdering a 94-year-old woman inside her home. The conviction rested largely on earprint impressions discovered on the woman's window. Police sent the prints to Cornelis Van Der Lugt, a Dutch policeman who lacked formal forensic credentials, but who had been working for years on developing the concept that each human earprint is unique, much as fingerprints are widely thought to be. After examining the prints, Van Der Lugt told the court he was "absolutely convinced" they were Dallagher's. As a result, Dallagher became the first man ever convicted of a crime based on earprint evidence. Law enforcement officials heralded the technique as a new and valuable weapon in the forensic arsenal, and began building earprint databases. But now, after being jailed for nearly seven years, Dallagher has been exonerated on the basis of DNA evidence. Earprinting's proponents apparently aren't prepared to wave the white flag. Van Der Lugt admits his hypothesis that human earprints are unique remains scientifically unproven. But he says it someday will be. American earprint jurisprudence is sparse, but a murder conviction based on earprint evidence was reversed in State v. Kunze, 97 Wn. App. 832, 988 P.2d 977 (1999), because the technique was held to lack general forensic acceptance.

Sudden Infant Death Syndrome. Sir Roy Meadow is a widely-known physician and professor whose prestigious career includes a three-year stint during the 1990's as president of the British Pediatric Association. He performed the seminal research in "Munchhausen's syndrome by proxy" -- a controversial disorder of Meadow's discovery or concoction, depending on whom you believe. Mothers who suffer from the disorder supposedly seek attention by inventing medical symptoms in their children or, in extreme and pathological cases, by causing them. Having published his research, Meadow went on to serve as an expert witness in many criminal and family court cases involving children having died from SIDS, and became famous for "Meadow's law," according to which one SIDS death is a tragedy, two are suspicious, and three are murder. The foundations for "Meadow's law" are essentially statistical; Meadow based it on the rate of incidence of SIDS and his computations of the odds that multiple instances would occur in one family. For some time, criminal convictions founded primarily on his testimony have been the subject of heated debate in England. (For one thing, such testimony arguably shifts the burden of proof to mothers, calling on them to prove they didn't smother their children.) After a Court of Appeal ruling that mothers should no longer be prosecuted in such cases when natural crib death is a possible explanation, the government is investigating doctors who have worked with Meadow, and thousands of previous court decisions, including hundreds of criminal convictions, are up for review. Some quick back-of-the-envelope research reveals no American criminal convictions based on testimony like Meadow's. But children have sometimes been removed from parental custody when found to be exhibiting Munchhausen's by Proxy. See, e.g., In re Aaron S., 163 Misc. 2d 967, 625 N.Y.S.2d 786 (Fam. Ct. 1993).
Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.