Logic and Informal Fallacies


The use of logical fallacies is a key component in the process and support of MOEC. It would benefit all if one were to become familiar with basic logic. Predicate calculus is superior to informal fallacies. Formal logic is based on truth values assigned to antecedent and consequent phrases. This site contains excellent explanations of informal fallacies.


http://www.infidels.org/library/modern/mathew/logic.html




bratton.w LAPD


William Bratton

Parks.B


Bernard Parks

LAPD badgeLAPD Badge

Willie Williams LAPD

Willie Williams

Gates.D LAPD

Darryl Gates


Chief Beck LAPD


Charlie Beck

Micheal Moore LAPD

Michael Moore






The Gay Militia


A cell of LAPD California has been running a de facto entrapment openly since June 17, 1987. These actors ideologically to the school of Irrationalism. The are Pre Fascists. They are noted for a Nativistic presentation where those with lower cognitive abilities are placed by force against more qualified persons. Their culture lacks the ability and skills to build a state or lead a nation.


Totalitarianism will seek to isolate.


They are openly recruiting LGBTi persons and heterosexuals to stalk and harass persons. The racketeering of drug deals and other crimes are sources of economics.


This is obtained by Prisoner's Dilemma. There is no rule of law or rights.


LAPD is operating a hub and node system that was designed by Cambridge Law School. This network is operative though every police stationhouse worldwide.


LAPD has used me as foil essentially to attack the United States at the present level. This would involve treason. They are using what is a Pontius Pilate Paradigm to hit command level officials. The majority are no more than sergeants in rank.


The air and water are poisoned. I cannot enter a building without the police spraying the building. All the running water and lakes have been contaminated by the police.


Therefore the Gay Militia is Irrational and Pre Fascist. They are Alter Egos to the Islamic State.


This is a PURGE OF INFORMANTS.


There is no plan in place for any sustainable culture. The breadth of the attack is centered on Ethnic Nationalism and Nativism. The LGBTi Community are the most proximate culture to the GAY MILITIA. They will suffer first. This is exemplified by, "If I go down, I drag everybody down", mentality. This philosophy was adapted from Tom Metzger leader of Skinhead Nazis in San Diego.


The Center for Disease Control (CDC) and the Federal Bureau of Investigation Unified Crime Reports provide factual evidence to correlate to a Proximate Cause in LAPD and Cambridge Law School, United Kingdom.




Operation Radhanatha Begins


Dateline February 12, 2007


The escalation in the environment has contaminated all flowing rivers and streams. All stores and shops in my vicinity serving food will present one with contaminated products simply by ADDING TAP WATER.


IF YOU USE CREEK WATER YOU ARE ALSO AT RISK. THE EPA ZONES OF CALIFORNIA, NEVADA, AND ARIZONA ARE HEAVILY ATTACKED.


An ISKCON diksa guru H.H. Radhanatha whom has been associated with this personally has nodirecting capacity with this event.


The fallacy used in this instance is called Poisoning the Well and returns to the Sulochana murder case in Los Angeles and West Virginia.




Ritvik Organizations


There are three major ritvik groups ISKCON Bangalore, ISKCON REVIVAL MOVEMENT (IRM) and the HARE KRISHNA SOCIETY (HKS). I have no formal association with any group. I am an independent ritvik. The text The Final Order on the IRM site describes in detail the ritvik position versus the diksa position.


http://www.iskconbangalore.org/


http://www.iskconirm.com/


http://www.krishnaconsciousnessmovement.com/




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2019 Archives


 

Expert and Scientific Evidence: Hair Analyses


Blythe CA Ehrenberg CA

February 26, 2019


Hair Analyses


Hair analysis is still based on the science of microscopy. However recent advances in mitochondrial DNA have established the complementary use of the two techniques. The goal of hair analysis is "establish a common origin between known and recovered samples linked to a suspect in a criminal case”(Kiely 2006). MtDNA lacks the inclusionary features of DNA, however it is a very strong exclusionary tool. It is finding increasing use in complementing phenotype characteristic comparisons in criminal caseloads. Hence forensic sciences basically operate in a context of providing data on class characteristics and individual characteristics.


In hair analysis these class characteristics can be confirmed:


⦁ Is the sample hair or fiber?


⦁ Human or animal hair?


⦁ Male or female?


⦁ Race?


⦁ Was the sample forcibly removed? Is there root tissue for DNA sampling?


⦁ Head, body, or pubic source?


Discovery issues are a concern. Criminal rules usually place a burden on the party seeking discovery on what is to be requested. In Hoffman v. State, the Florida Supreme Court held that the prosecution must produce all exculpatory hair analysis and it's refusal to do was a reversible error. Hair analysis is a point of departure for the investigation of other trace elements as fiber, soil, glass and paint, ballistics, fingerprints, and foot prints. The increased use of mtDNA has thrown more focus on the use of DNA in criminal cases.


In forensic science matching statements are rarely permitted. Terms used in forensic analysis may include:


⦁ Match (reversible error in most states)


⦁ Compatible with


⦁ Consistent with


⦁ Similar in all respects


⦁ Not dissimilar


⦁ Same general characteristics


⦁ Identical characteristics


⦁ Could of have originated from


⦁ Cannot be eliminated


In Buie v. McAdory, Buie's main issue was that the trial judge violated his due process rights by permitting the prosecutor to overstate the strength of her conclusion (Kiely 2006). Pulling, the state's expert argued, "With a reasonable degree of scientific certainty, I would state that the hair came from Joel Buie" (Kiely 2006). Buie claimed the Constitution forbids expert witnesses to overstate scientific conclusions. The court did not agree and argued that expert statements are meant for cross examination under adversarial conditions.


Hair is class evidence and it is impossible to state that a questioned hair came from one exact individual.


Qualifications are very powerful issues under Daubert or Frye Standards.


In McGrew v. State the concerns of lawyers were addressed. McGrew was charged with deviate sexual assault. He had met his victim and forced her to perform oral sex in his vehicle. Hairs were recovered from near the center of the seat. Head and pubic hairs were compared to the defendant and victim. The defense requested a separate hearing to determine the admissibility of police DNA analyst Carl Sobieralski. McGrew argued the unreliability of hair analysis. The trial court denied. Sobieralski testified one hair was similar to the victim's head hair placing her in the vehicle. The other hair was a pubic hair similar to McGrew.


In the appellate case the court found that the trial court erred in that the evidence did not meet the three prongs of Daubert. The court argued that the conviction rested on the victim's credibility. Here the court is asking for proof of the reliability of the scientific principles at hand that yield the expert testimony.


Prosecutorial treatment of hair characteristics was extensively treated in People v. Linscott. Three experts testified and stated that visual characteristics of hair and the comparisons was conclusive if at all to negate suspects. Tahir an expert stated he looked at 7 to 12 characteristics and found that hairs found in the victim's apartment were similar to defendant Linscott. Tahir testified that a person can not be identified by the hairs he leaves behind.


At closing statements the prosecutor stated, "...he left eight to ten hairs of his in that apartment; his pubic hairs were found in her crotch; and his hairs are found in the most private parts of the woman's body" (Kiely 2006).


The court found that the prosecutor improperly argued. There was no court testimony to support the claims.


mtDNA is the future of hair analysis. The leading case is State v. Pappas. mtDNA is only present in the mitochondria and will reflect the matrilineal line, hence females only. Such contains 16,569 base pairs. It can not establish positive identification.


In Pappas two hairs were recovered from a sweat jacket from a robbery. A FBI test revealed that the sample and the defendant's hair were similar and he could not be excluded. The FBI used presented agent Wilson who described the agency's methodology in detail countered by defense expert Shields.The Connecticut Supreme Court upheld the FBI techniques on mtDNA based on it's scientific bases.


Reid v. State focuses on the exclusionary nature of mtDNA testing to request a new trial. Reid is a sexual assault kidnapping case. The victim was a Caucasian and was grabbed in a park and assaulted. Reid is black. The victim picked Reid in a photo array.


Three pubic hairs were recovered from the victim. Under physical analysis expert Settachatugal stated the hairs did not come from the victim but were similar to the defendant.


Reid at the trial for his petition presented a three page report by Dr. Terry Melton. She stated that her firm Mitotying Technologies was requested to develop mtDNA profiles on three samples. She found the samples matched each other but the sequence of 2212K1 did not match Mark Reid.


The court found that the criminal trial found circumstantial evidence if accepted proved defendant's guilt. However in the civil motion mtDNA found that the hairs were not the petitioners.


Hence the emergence of mtDNA evidence may set the tone for other forensic sciences as technology and appeals emerge.


Expert and Scientific Evidence: Tool Marks


Blythe CA Ehrenberg CA

February 26, 2019


Ballistics and Tool Marks


The murder and robbery trial of anarchist Sacco and Vanzetti in 1921 provides proof of the early uses of ballistics in American legal history. The visual inspection of ammo under the microscope at this time provided compelling evidence to link material to a defendant.


The 14th Interpol Forensic Science Symposium Literature Review divides their analysis into four main areas: 1. firearms 2. ammunition 3. equipment and technique 4. professionalism. These authors emphasize the primary focus of ballistics experts is to identify the firearm. The next is subtype followed by absolute identification of the weapon.


In this consideration, understanding the internal mechanism of the firearm is salient with one third of papers in 2001 on this subject.


In the area of ballistics and forensic evidence are three distinct areas: 1 internal ballistics: the striations imparted to a projectile from the barrel of the weapon 2. external ballistics: the flight and angle of the shot, ricochet, suicide, sniper, homicide 3. terminal ballistics: the effect on the target as wound.


Computers have increased the interest in ballistics data outside the field by other disciplines. Internally digital images and software are increasing in accuracy in complementing visual analysis. An an example is DRUGFIRE, a digital association system and the Automated Fingerprint Identification System (AFIS).


Ballistic expert qualifications are integral to reliability. In Morgan v. State expert forensic pathologist Dr. Halwley testified that a wound on deceased Mr. Wiley's head indicated that the weapon had to be placed against his skull. The Indiana Supreme Court held the trial court did not abuse it's discretion in permitting the testimony.


In United States v. Hicks, significant contestation under Daubert Standards were at issue. Hicks challenged state expert John Beenes credentials and methodology as if the technique: 1. had been tested 2. had any published peer review 3. studies calculated to demonstrate error ratios 4. if standards existed for making shell to firearm comparisons.


The Court held that Beene had a 28 year career, a chemistry degree, and had performed thousands of examinations. Beene testified at the Daubert hearing that he relied on the Association of Firearm and Tool Mark Examiners literature.


The Court held that Beene was an expert and his methodology was reliable.


Tool Mark studies identifies the striations and imprints that tools made with harder materials may leave permanent identification marks on softer materials that they cut or clamp. These identification marks are viewable under magnification.


In People v. Gingrinch, the defendant was convicted of using explosives to commit assault and two counts of indifference homicide. The state expert stated three pliers were used in explosive making. One set of pliers of the defendant cut wire, another were wire strippers used on wire, and a third was used to fasten the cap on a pipe. He also testified that wires in two bombs came from the same batch.


Gingrinch attacked that the evidence was nonscientific, not based on an accepted theory, no techniques used created reliable results, and the expert did not use tests that followed scientific techniques.


The Court held the trial judge did not error in admitting testimony. The expert did not need a degree. Tool Mark analysis did have a record of proof at trial. The defendant addressed issues at weight for the jury and no pre trial evidentiary hearing was needed.


The future of ballistics is still centered on firearms identification. New techniques as lasers and casting parts are salient. Material science is advancing with composite materials and polymers on the rise.


Soil, Glass, and Paint


The subject of soil, glass, and paint can be treated with a degree of confidence in which to link a sample to a defendant at trial.


Glass evidence usually involves crushed glass found at the crime scene and transferred by some manner to the suspect linking him to the crime scene. Many class characteristics may be yielded from glass. Here are some types of glass that are identifiable:


Window glass


Plate glass


Safety glass


Auto glass


Auto headlight glass


Tinted glass


Eye glasses glass


Antique glass


Architectural glass


Glass beads


Pyrex


Clay and fired surfaces


Crystal


Class characteristic information includes the type of glass, nature of impacting projectile, the direction of impact (in or out), type of glass cutters, and comparisons for matching jigsaw pieces.


Here as with the majority of forensic scientists that courts will admit statements over comparisons as similar dissimilar and so forth.


State v. Ceja reveals the use of science to link glass fragments from a crime scene to an article of clothing in this instance Ceja's shoe. The crime included a carjacking and crash site. Ceja argued that state expert Lukas did have a scientific basis for his opinion. The sample recovered from the shoe was so small that only a refractive index was available. Lukas conducted the refractive index by grinding a sample, placing it on a slide, and then into an oven. He then compared the results to the Illinois State Police Crime database which contains 2087 samples. Lukas argued that the sample had a frequency of occurrence of between 1 in 22 to 100 which is a middle range.


Ceja did not challenge this data in his instant trial and the appellate court sustained his conviction.


Paint analysis is useful in hit and run and vehicular homicide cases. It also has applications in burglary. The matching of automobile paints is rising worldwide. The color, make and model may be ascertained by paint analysis. Paint examination is also concerned with non commercial issues as case requirements, crime scene collection, chain of evidence, and environmental factors.


In State v. Kandies, the defendant was charged with murder. Sergeant Wilson's discovery of paint in the cab of the truck contradicted the assertion that the victim was hit accidentally, was bleeding and placed in the truck. The officer spotted peculiar red spots in the cab. He sanded then down and found them to be red oxide primer not blood which contradicted the defendant's statements.


The court held that Wilson's part time experience as a car body man supported his perceptions.


In Commonwealth v. McEnamy the defendant was convicted of second degree murder, burglary, and robbery. Kathryn Bishop, 82, was found dead. A forensic expert determined she had been stomped to death. Paint chips were found in her hand. Her basement window had been broken open. Trooper Stansfeld obtained search warrants for McEnany's van and residence. Paint chips were found on the clothing he wore on the day of the crime. The chips were consistent with those in Bishop's hands and the peeling paint near the broken window.


The court found the evidence sufficient to uphold defendant and fellow chimney sweep's presence at the murder scene and convict.


In Clark v. State the defendant was convicted of second degree murder. He appealed that the testimony of the soil and cadaver dog's handler was insufficient to establish expertise and also it did no support interpretation of the dog's actions.


The defendant was accused of a child murder 11 years prior and having buried and removed the body to another location.


Bruce Hall, FBI expert soil comparison examiner testified that samples from the undercarriage of appellant's truck contained the same minerals as rust marks left on a cemetery marker on the Clark family plot. This location also was an asterisk on a map in the appellant's truck.


Two cadaver dogs Dan and Panzer both gave alerts near the Clark plot at different dates. Dan was the first dog to react and Panzer on a later date. Trooper Barret of the Massachusetts State Police Department testified that Dan gave an alert on January 3, 1993. Trooper Zarella of Rhode Island State Police testified that Panzer gave an alert on the same spot in September of 1995.


Clark argued that admission of the dog expert's testimony was a reversible error. The court denied holding that the circumstances of the site had been disturbed, the appellant was present, and there were two alerts by trained dogs that supported the admission of expert testimony.


Case Briefs


Ivron G. BUTLER, Appellant, v. STATE of Missouri, Respondent. No.WD 61053. (2003)


Facts: Ivron Butler was convicted by a Clay County MO jury of forcible sodomy, §566.060, RSMo Cum.Supp.1993; and felonious restraint, §565.120, RSMo 1994; two counts of armed criminal action, §571.015, RSMo 1994. Butler was found to be a prior and persistent offender under §§558.016 and 557.036, RSMo 1994, and was sentenced to consecutive terms of life imprisonment for forcible sodomy, §566.060.2, RSMo Cum.Supp.1993; He was also convicted to seven years for felonious restraint, §558.011.1(3), RSMo Cum.Supp.1993; plus 100 years each for the two counts of armed criminal action, §571.015.1, RSMo 1994. Butler's convictions were affirmed by this court on direct appeal. State v. Butler, 24 S.W.3d 21 (Mo.App. W.D. banc 2000).


Butler filed a Rule 29.15 motion for post conviction relief. An evidentiary hearing was held, the motion court denied his pleading's finding that trial counsel's decision not to challenge inadmissible statements by State's forensic chemist i.e. a hair sample comparison was a reasonable trial strategy and did not prejudice Butler. The motion court found that counsel was not ineffective for failing to retain a hair analysis expert for Butler. Butler appeals challenge those findings.


Main issue: Did the trial court error in finding that counsel's decision not to challenge the positive identification and quantification testimony was a reasonable trial strategy? Yes.


Court's decision: The motion court's judgment is reversed. Butler's trial counsel did not comport to the level of skill, care and due diligence of reasonable counsel and Butler was prejudiced.


The case is remanded to the motion court with and ordered to sustain the Rule 29.15 motion. Butler is granted a new trial.


If not for unsound strategy of trial counsel in failing to not object to the inadmissible testimony of the State's expert witness, it is reasonable that Butler may not have been convicted. See Butler, 24 S.W.3d at 60. Indeed en banc six of the ten judges, in Butler's direct appeal concurred that without the forensics expert's inadmissible testimony, the evidence presented by the prosecution during the instant trial was insufficient to make a admissible case. Butler's counsel's failure to object permitted Butler to be convicted.


Ms. Duvenci, state expert testified that Butler's pubic hair sample and the unidentified pubic hair found in J.L.'s underwear had spots on the medulla. She could not remember finding such spots in her examination of over 1200 hair samples. She could not recall finding two unidentified hairs from different body regions of a person that both matched hairs from those same parts of the body of another individual. She stated this was a double significance. She acknowledged that forensic scientists in general were not able to positively identify individuals based on hair comparison.


Ms. Duvenci went stated there was a very strong probability that the two unidentified hairs from J.L. came from Butler. The prosecutor questioned her if the unidentified hairs were from Mr. Butler. Ms. Duvenci answered affirmatively.


In briefs and oral argument before this court en banc, Mr. Butler's counsel stated that failure to object to Ms. Duvenci's positive identification and quantification testimony was part of a trial strategy. Mr. Butler's counsel mistakenly believed that the proper challenge to bases for Ms. Duvenci's testimony was to object that the evidence was reliable to permit submission of the case to the jury. Counsel did not dispute the admissibility of the evidence. Mr. Butler's counsel decided not to object to Ms. Duvenci's testimony by strategy and believing he could discredit expert testimony on cross examination.


The rule of law established by the Supreme Court in Washington, is an affirming of the conviction based upon all of the evidence because there was no objection to the incompetent evidence, as a matter of trial strategy. Mr. Butler pleads that a conviction upon incompetent evidence to prove guilt beyond a reasonable doubt violates his rights. The constitutional rights of a defendant are adequately protected by post conviction relief under Rule 29.15. Mr. Butler has the right to assert a claim of ineffective assistance of his trial counsel for not objecting to the admissibility of Ms. Duvenci's testimony. Any determination if Butler would have a valid claim for post conviction relief is properly left to future proceedings.


Holding: The trial counsel's failure to object permitted Butler to be convicted. A proper and timely objection would have prevented a conviction based on the evidence as presented at trial. This is prejudicial to petitioner.


My Thoughts: The competency of both counsels to consider grounds for their appeals if need be should be part of the instant trial strategy. At times the defense states it is not challenging certain issues reserving such for appeals if permitted. State expert here clearly overstated the evidence. What is unique is the prosecutor lead her into this error in part.


The fact that all the judges in the appeal en banc were used states the importance of the case. The defense for certain must be assertive in presenting objections at trial to exhaust the process towards appeals to be effective.


UNITED STATES of America, v. Darryl GREEN, et al. No. CRIM. 02-10301-NG. (2005)


Facts: Defendants are charged with racketeering, assault in aid of racketeering, and firearm offenses. Green moved to exclude expert ballistics testimony. The Court is motioned to review expert testimony to evaluate its relevancy and to determine if it meets requisite standards of reliability. Fed .Rules Evid.Rule 702, 28 U.S.C.A.


For expert testimony to be admissible, the conclusion must have been derived in scientifically sound and in a methodologically reliable manner. The state bears the bears burden of proving it's admissibility by fair preponderance of evidence.


A. Expert Had No Certification


The government's expert, Sergeant Detective O'Shea, worked in the Boston Police ballistics unit for seven years (since 1998). He received armorer's training in a Smith & Wesson revolver and two types of Glock pistols. He was an apprentice for six to twelve months.


While the Association of Firearm and Tool mark Examiners (AFTE) certifies ballistics examiners he has never been AFTE-certified. The AFTE has established for examining ballistics in United States v. Monteiro. O'Shea did not follow them in his initial examination. The Boston Police Laboratory, is not certified by any organization.


B. That the Markings on Each Firearm Are Unique


The defendants have contested the premise that the surface contours of each firearm are unique (Daubert Hr'g Tr. 29, Nov. 2, 2005). The issue is how a qualified expert can distinguish one from another, which to negate, and the reliability of the conclusions.


C. The Examination: Class, Subclass, Individual, and Accidental Characteristics


O'Shea did not systematize his own experience. There are no written record of the characteristics of the guns he has examined. He compares the image in front of him to what he remembers from prior examination to discern a subclass or class characteristic. (Daubert Hr'g Tr. 38-40, Nov. 2, 2005.)


D. No Documentation, Notes, Drawings, Photographs


O'Shea used a comparison microscope. There are no pictures, no notes of his work during examination of the evidence in 2001. He measured the striae with a reticle on the microscope, without recording measurements. He did not measure three dimensional contour. (Daubert Hr'g Tr. 75, Nov. 2, 2005.) O'Shea finally took pictures in part a week before this motion, five years after to prepare for the Daubert hearing.


E. The Examination: Observer Bias and Lack of Blind Testing


O'Shea indicated that he did not know the origin of samples or firearms at the time he did his examination. He was presented one firearm. (Daubert Hr'g Tr. 85-86, Oct. 5, 2005.) He had test fired from three guns in Boston Police custody. He used these test fires to provide a sample of Hi Point casings, not as alternative matches. The examination was an evidence show up (are casings come from this gun?), not an evidence line up (these casings come are from which gun?).


F. The Examiner: No Data on Error Rates


The trier of fact should have some data to determine how much reliability to place in O'Shea's powers of observation as proficiency testing, error rates, or certification. O'Shea testified that for false positives there is less than a 2% error with no factual backing.


H. Defense Expert David Lamagna


Defense expert David Lamagna had limited insight into the problems with O'Shea's methodology.


His testimony confirmed several features of the field which confound identification: first, wear on a firearm may affect the marks it leaves. Second, marks on two shell casings from the same gun may vary. Third, no three dimensional analysis of the tool marks. Fourth, and most problematic there are no standards in for differentiating class and subclass from individual characteristics. Lamagna explained that a scientist must be able to have his methodology be replicated by other scientists. Lamagna cast doubt on O'Shea declaring a match excluding all guns in the world reasoning that a responsible scientist would not hold such a claim.


Main Issue: Was the reliability of the expert's methodology in the case valid for the purposes for which it is being offered? Yes, with limitations.


Court’s Decision: The defendant's motion is granted in part and denied in part. The case is a precedent with the evidence and suggests admission but with limitations. O'Shea is a seasoned observer of firearms and tool marks: O'Shea may testify to his observations, he is not permitted to conclude the match he found by the specific methodology defines the exclusion of all other guns as the origin of the shell casings. Defense will be permitted adversarial procedures.


Defendants suggest that a match to the exclusion of every gun in the world overstates from O'Shea's data. O'Shea was given a single firearm that suggested it was the incriminating weapon, equivalent to an evidentiary show up, not a line up. The Supreme Court held in Manson v. Brathwaite, a show up raises reliability concerns because it reflects a suggestive procedure. 432 U.S. 98, 107, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).


Here, O'Shea reexamined evidence, photographed some of it in preparation for with knowledge that the defendants had been indicted for these crimes. His examinations were being questioned, and that he would be re testifying over his original conclusions. The defense counsel or the jury would not be in a position to evaluate the methodology.


There was no credible testimony about error rates of this examiner or in the field as a whole. O'Shea could not produce peer reviewed documentation of statistics.


These factors, absence of error rates, certification, or proficiency testing, argue against the admission of the testimony.


State objections to defendant's motion are met with court opinions that rely upholding standing recognition of ballistics. United States v. Hicks, 389 F.3d 514, 526 (5th Cir. 2004).


Holding: The state expert's tool mark testimony was admissible, even under consideration of subjective testing methods and lack of evidence concerning error rates in field. The testimony is limited to expert's observations.


My Thoughts: This was a very complicated ruling. It demonstrates the liberal standards for journeyman expertise which I believe have validity but are coming to pass. The need for a more standardized protocol for ballistics and tool mark expert testimony was developed. The AFTE standards are meeting Frye or Daubert and I find it hard for an agency not to internally adopt their methodologies at this stage.


STATE of New Jersey, Plaintiff Appellant, v. Judel NOEL, Defendant Respondent (1998)


Facts: In the trial case FBI expert Peters was permitted to testify on the composition of lead bullets recovered from murder of Antoine Hargrove. He was shot in the back. Two bullets were recovered from him. Police recovered six 9mm Speer casings and four spent bullets. Two eyewitnesses saw Noel flee the crime scene.


The police arrested Noel at a pre parole halfway house. His locker contained a pouch with 18 9mm bullets nine of which were made by Speer. Charles Peters, a expert witness employed by the FBI examined 15 bullets, four form the crime scene, two from the victim's body, and nine from Noel's belongings.


The bullets were studied using inductively coupled plasma atomic emission spectroscopy (ICP). ICP determines the proportions of six elements other than lead: copper, antimony, bismuth, arsenic, tin, and silver. Speer mixes these elements to each batch of lead. The proportions in a batches and bullets is variable.


Peters had visited the Speer manufacturing plant in Lewiston, Idaho. His testimony was limited to the manufacturing process and explained that each bullet is produced from a billet, or seventy pound cylinder of lead. A batch of lead produces a number of billets. A billet yields about 4,300 bullets. Five billion bullets are manufactured in the United States each year. Fifty thousand bullets may have the same composition.


The Appellate Division held that the trial court had committed reversible error in admitting Peters to testify without foundation evidence of statistical probability and about the identical composition between the bullets from the crime scene and the victim's body and those found in Noel's pouch. 303 N.J. Super. 435, 445, 697 A.2d 157 (App.Div.1997). The Appellate Division held Peters's testimony depended on the statistical probability that the two sets of bullets would have the same composition.


Main issue: Did the trial court error in admitting expert testimony in the absence of statistical probability evidence concerning the composition of lead bullets at crime scene, victim's body, and defendant's belongings? No.


Court's decision: Reversed. The Noel's conviction is reinstated. Statistical evidence has not been a prerequisite to the admission of matching samples. In cases involving matching blood samples statistical evidence of the probability of a match has not been held to establish a blood stain. Historically, statistical evidence has not been a prerequisite to the admission of matching samples. For example, in cases involving matching blood samples, statistical evidence of the probability of a match has not been required to establish a blood stain as a link in the chain of evidence. State v. Beard, 16 N.J. 50, 58-59, 106 A.2d 265 (1954); link in the chain of evidence. State v. Beard, 16 N.J. 50, 58-59, 106 A.2d 265 (1954).


In the present case, the expert's testimony established a match from the bullets found in defendant's belongings, crime scene, and the victim's body. Noel contends the large quantity of bullets produced by Speers yields the match among the bullets as inconclusive. Similarly, in the present case, the expert's testimony established a match among the bullets found in defendant's belongings, at the crime scene, and in the victim's body. As with the matching fiber samples, however, the production of a large quantity of comparable samples affects the weight, not the admissibility, of the evidence.


The Appellate Division relied on State v. Spann, 130 N.J. 484, 617 A.2d 247 (1993) regarding the incidence, frequency and distribution to reverse Noel's conviction. Spann, however, is distinguishable from Noel's case.


In Spann, the expert testimony usurped the role of the jury which lead to a guilty verdict.


The State sought to prove that Spann had sexually assaulted the victim, who s gave birth to a child. The State's expert relying on DNA from the child and defendant testified to a 96.55% likelihood that the defendant was the father.


This data assumed a 50 percent paternity. The flaw in the assumption is that the prior probability of paternity will vary with the facts of each case. No one informed the jury of the effect that a different probability would have that the defendant was the father. The jury was unable to calculate the probability of paternity based on DNA evidence. The expert testimony usurped the role of the jury and compelled a verdict of guilt.This Court reversed. Here, the jury received the guidance it needed to discharge it's duties. The expert explained the chemistry of lead analysis. He also discussed the origination of bullets of the same chemical composition generally were from the same box. A single box may contain several bullets of different materials.


The jury was left the determination whether the bullets at issue came from the same box.


The jury in the present case could evaluate the expert's testimony without recourse to mathematical calculations (Bayes Theorem). Similar to juries assessing samples of blood, soil, and fibers, the jury here did not need statistical data to deliver it's verdict. Peters's testimony was straightforward. The Court concludes that Peter's opinion as an expert did not create an enhancement of probative weight. 303 N.J. Super. at 445, 697 A.2d 157.


Holding:1. Statistical probability evidence in itself has not been a requirement to the admission of expert testimony on the composition of lead bullets. 2. Plasma atomic emission spectroscopy of lead bullets is accepted by the scientific community and produces reliable results to warrant the admission into evidence of expert testimony.


My Thoughts: As seen the Court attempted to address the issues on the minimum of grounds, I agree with this principle. The best science is one that has a conclusion that is accurate and delivered with the least complexity. Not that I am against complexity. The reality principle here are that juries as triers of fact and the judges themselves are not experts. The bullets recovered strongly corresponded to the prosecution's claims.


Works Cited


Ivron G. BUTLER, Appellant, v. STATE of Missouri, Respondent. No.WD 61053 (2003). Retrieved November 16, 2011: http://caselaw.findlaw.com/mo-court-of-appeals/1450683.htm


Kiely, T.F. (2006). Forensic evidence: Science and the criminal law. Boca Raton FL. USA. Taylor and Francis Group.


STATE of New Jersey, Plaintiff-Appellant, v. Judel NOEL, Defendant-Respondent (1998). Retrieved November 16, 2011: http://caselaw.findlaw.com/nj-supreme-court/1340159.html


UNITED STATES of America, v. Darryl GREEN, et al., Defendants. No. CRIM. 02-10301-NG. (2005). Retrieved November 16, 2011: http://pacer.mad.uscourts.gov/dc/opinions/gertner/pdf/greenjuryvenire.pdf


Hair Analyses


Blythe CA Ehrenberg CA

January 29, 2019


Hair analysis is still based on the science of microscopy. However recent advances in mitochondrial DNA have established the complementary use of the two techniques. The goal of hair analysis is "establish a common origin between known and recovered samples linked to a suspect in a criminal case" (Kiely 2006). MtDNA lacks the inclusionary features of DNA, however it is a very strong exclusionary tool. It is finding increasing use in complementing phenotype characteristic comparisons in criminal caseloads. Hence forensic sciences basically operate in a context of providing data on class characteristics and individual characteristics.


In hair analysis these class characteristics can be confirmed:


Is the sample hair or fiber?


Human or animal hair?


Male or female?


Race?


Was the sample forcibly removed? Is there root tissue for DNA sampling?


Head, body, or pubic source?


Discovery issues are a concern. Criminal rules usually place a burden on the party seeking discovery to what is to be requested. In Hoffman v. State, the Florida Supreme Court held that the prosecution must produce all exculpatory hair analysis and it's refusal to do was a reversible error.


Hair analysis is a point of departure for the investigation of other trace elements as fiber, soil, glass and paint, ballistics, fingerprints, and foot prints. The increased use of mtDNA has thrown more focus on the use of DNA in criminal cases.


In forensic science matching statements are rarely permitted. Terms used in forensic analysis may include:


Match (reversible error in most states)


Compatible with


Consistent with


Similar in all respects


Not dissimilar


Same general characteristics


Identical characteristics


Could of have originated from


Cannot be eliminated


In Buie v. McAdory, Buie main issue was that the trial judge violated his due process rights by permitting the prosecutor to overstate the strength of her conclusion (Kiely 2006). Pulling, the state's expert argued, "With a reasonable degree of scientific certainty, I would state that the hair came from Joel Buie" (Kiely 2006). Buie claimed the Constitution forbids expert witnesses to overstate scientific conclusions. The court did not agree and argued that expert statements are meant for cross examination under adversarial conditions.


Hair is class evidence and it is impossible to state that a questioned hair came from one exact individual.


Qualifications are a very powerful issue under Daubert or Frye Standards.


In McGrew v. State the concerns of lawyers were addressed. McGrew was charged with deviate sexual assault. He had met his victim and forced her to perform oral sex in his vehicle. Hairs were recovered from near the center of the seat. Head and pubic hairs were compared to the defendant and victim. The defense requested a separate hearing to determine the admissibility of police DNA analyst Carl Sobieralski. McGrew argued the unreliability of hair analysis. The trial court denied. Sobieralski testified one hair was similar to the victim's head hair placing her in the vehicle. The other hair was a pubic hair similar to McGrew.


In the appellate case the court found that the trial court erred in that the evidence did not meet the three prongs of Daubert. The court argued that the conviction rested on the victim's credibility. Here the court is asking for proof of the reliability of the scientific principles at hand that yield the expert testimony.


Prosecutorial treatment of hair characteristics was extensively treated in People v. Linscott. Three experts testified and stated that visual characteristics of hair and the comparisons was conclusive if at all to negate suspects. Tahir and expert stated he looked at 7 to 12 characteristics and found that hairs found in the victim's apartment were similar to defendant Linscott. Tahir testified that a person can not be identified by the hairs he leaves behind.


At closing statements the prosecutor "he left eight to ten hairs of his in that apartment; his pubic hairs were found in her crotch; and his hairs are found in the most private parts of the woman's body" (Kiely 2006).


The court found that the prosecutor improperly argued. There was no court testimony to support the claims.


mtDNA is the future of hair analysis. The leading case is State v. Pappas. mtDNA is only present in the mitochondria and will reflect the matrilineal line, hence females only. Such contains 16,569 base pairs. It can not establish positive identification.


In Pappas two hairs were recovered from a sweat jacket from a robbery. A FBI test revealed that the sample and the defendant were similar and he could not be excluded. The FBI presented FBI agent Wilson who described the agencies methodology in detail countered by defense expert Shields. The Connecticut Supreme Court upheld the FBI techniques on mtDNA based on it's scientific bases.


Reid v. State focuses on the exclusionary nature of mtDNA testing to request a new trial. Reid is a sexual assault kidnapping case. The victim was a Caucasian was grabbed in a park and assaulted. Reid is black. The victim picked Reid in a photo array.


Three pubic hairs were recovered from the victim. Under physical analysis expert Settachatugal stated the hairs did not come from the victim but were similar to the defendant.


Reid at the trial for his petition presented a three page report by Dr. Terry Melton. She stated that her firm Mitotying Technologies was requested to develop mtDNA profiles on three samples. She found the samples matched each other but the sequence of 2212K1 did not match Mark Reid.


The court found that the criminal trial found circumstantial evidence if accepted proved defendants guilt. However in the civil motion mtDNA found that the hairs were not the petitioners.


Hence the emergence of mtDNA evidence may set the tone for other forensic sciences as technology and appeals emerge.