Document Library

Draft motion arguing that finding many grams of methamphetamines does not necessarily support a conviction for possession with intent to distribute. Bottom of p. 1 through p. 3 explains that people addicted to methamphetamines use more frequently and in higher dosages than first-time users, using as much as one gram per day and rarely (but at least once) up to 15g in one day. Thus a person found with many grams of meth may only be a user rather than a dealer.  This data could also be used in other arguments, including: (1) a suppression argument that there is no probable cause to search a location for evidence of distribution when the quantity recovered or known about only suggests personal use; (2) a Rule of Evidence 403 argument limiting the testimony of a witness who wants to characterize a given quantity of meth as “a lot of drugs” or who wants to describe the client as a drug dealer or distributor; (3) a sentencing argument that a client is not as much of a danger to their community as someone actively selling drugs, despite the amount of drugs found.

This draft motion section relies on psychological and neuroscientific research to argue that young people who have been exposed to trauma behave differently when interrogated and are more likely to give false, unreliable, and involuntary confessions such that past exposure to trauma should be an important factor in the voluntariness analysis.

Pages 2-3:  Youth with trauma histories are quicker to perceive subtle threats from interrogators.

Pages 3-4: They are more sensitive to environmental stressors

Pages 4-5:  They are more distressed when they perceive threats leading to over- and under-reactions

Pages 5-6:  They often give in to authority figures and confess to avoid additional trauma

Pages 6-7:  They are more susceptible to police interrogation tactics like maximization and minimization.

Pages 7-11:  These pages discuss other potential uses of this emerging research, including (a) a request for funding to retain an expert to explain how a client’s trauma symptomatology may have manifested during an interrogation; (b) arguments that prior trauma exposure should be considered when determining whether an adolescent was in custody and being interrogated; and (c) arguments that prior trauma may affect the voluntariness of a Miranda waiver.

The ACLU of Michigan included these reports as exhibits in its recent litigation attacking the constitutionality of Michigan’s Sex Offenders Registration Act (SORA). Does v. Whitmer (Does III), No. 22-cv-10209 (E.D. Mich.). The research cited in these reports — specifically on the low risk of recidivism among people convicted of sexual offenses and the counterproductive impact of registration/notification requirements on public safety and recidivism — could be used (1) when negotiating with a prosecutor for a plea to a non-registration offense, (2) when justifying such a plea to a sentencing judge, (3) in pre-trial release arguments, (4) in sentencing arguments where clients will be forced to register to show the onerous nature of registration, or (5) to support a motion in limine to preclude reference to a client as a “sex offender.”

(Note that the following page numbers are keyed to the page numbers in each expert report, which you can find in the middle bottom footer of each report):

Letourneau Report

Pages 2-11: Explaining through a dozen different scientific studies that sex offender registration and notification laws fail to increase community safety, do not have a general deterrent effect, and may even increase the incidence of crime by making it difficult for ex-offenders to find and maintain housing, employment, and social relationships.

Pages 11-12: Noting that researchers have found no connection between juvenile registration/notification and an increase in public safety but they have found increased incidences of attempted suicide among juvenile registrants as well as an increase in their likelihood of being victims of sexual assault themselves.

Pages 12-13: Citing research showing that 80% to 90% of adult males convicted of sex offenses are never reconvicted of a new sexual crime, including studies that debunk recidivism myths by showing rates of recidivism as low as 2-5%.

Pages 13-14: Discussing research showing that conviction offense has no bearing on recidivism risk.

Pages 16-17: Citing research showing the negative impact of registration on people’s mental health and ability to find and maintain stable housing, employment, and prosocial relationships, creating barriers for reintegration.

Pages 17-20: Discussing why the costs of implementing sex offender registration and notification laws are greater than any savings or benefits generated by those laws

Pages 21-22: Finding no correlation between failure-to-register violations and sexual recidivism

Socia Report

Pages 4-8:  Citing research showing that 90-95% of all sex crime arrests are for first-time offenders; the vast majority of sex crimes are not committed by strangers; and sex offender registration and notification laws do not reduce recidivism or make communities safer

Page 9-12:  Debunking through scientific research any suggestion that there is a high sexual recidivism rate and noting that sexual recidivism rates are actually lower than those of any other offense except murder

Pages 16-17:  Noting that language matters to public perceptions and that individuals are more likely to think negatively about someone described as a “sex offender” than someone described as an “individual convicted of crimes of a sexual nature” (this research might support a motion in limine about how clients should be described in court)

Pages 19-22:  Documenting how individuals on the sex offender registry are stigmatized in ways that affect reintegration including compromising employment and housing opportunities, as well as social support networks

Pages 22-25:  Noting that there is no consistent evidence that failure-to-register convictions predict increased sexual recidivism.

This draft sentencing argument is one-page long and relies on three studies to demonstrate that when young people (including people up to age 24) are exposed to violence (gun-related or not), it substantially increases the likelihood that  they will later carry guns because they are afraid and feel they need the gun for self-protection and to protect their loved ones.  This data could also be used to argue in pre-trial release hearings that youth charged with firearms-related offenses are not necessarily dangerous.

Pages 17-24 and 32-33 collect research and argue that descriptive statistics – statistical analyses that do not control for other factors – can establish the possibility of racial bias and trigger an evidentiary hearing under the California Racial Justice Act and that regression analyses that account for potential confounding variables provide strong evidence of racial bias under the Act without the need to interrogate individual motives or impacts.

p. 40-86 outline the flaws in firearm identification, the current state of the field, and issues of cognitive bias

Pg. 13 – noting that there is no reliable scientific study validating the hypothesis that shaking alone can cause bleeding in the brain and eyes and neurological impairment; accidents can cause these symptoms

Pg. 14 – discussing thirty documented exonerations of innocent people wrongfully convicted based on shaken baby syndrome (and in 13% of those cases, the innocent person falsely confessed)

Pg. 19 – discussing a survey that reveals fewer than half of forensic pathologists think SBS is a valid diagnosis

Pgs. 20-28 – discussing why experts in biomechanical engineering are relevant to and regularly testify in SBS/AHT cases and how biomechanical studies show that shaking alone cannot produce the medical findings associated with SBS/AHT

Pgs. 28-31 – discussing the many non-abusive causes/circumstances that can present the same diagnostic signs relied upon to support SBS/AHT

Pgs. 38- 39 – collecting research that discusses the biasing impact of false confessions, how they corrode evidence collection and create a false appearance of corroboration, and how likely they are to lead to erroneous convictions

Pgs. 39-40 – documenting the problem of contaminated confessions

Pgs. 41-42 – discussing research showing that (a) individuals who have experienced trauma as well as (b) individuals who are depressed are more susceptible to police coercion and more likely to falsely confess

Pgs. 42-44 – discussing research about the dangers of police reliance on false evidence ploys to induce confessions

Pgs. 48-50 – surveying recent social science evidence on false confessions

Pgs. 50-53 – discussing social science research on confirmation biases in forensics

This motion incorporates studies of implicit bias and racially discriminatory policing in San Diego. Studies referenced describe disparities in how police speak to drivers of different races as well as disparities in post-stop outcomes.

Explains the issue of secondary DNA transfer – footnotes on p. 7 specifically cite studies demonstrating a person’s DNA can be transferred to an object they never touched via an intermediate person or object.

Filed by the American Psychological Association, this brief overviews specific interrogation techniques (maximization, minimization, and sleep deprivation) that contribute to false confessions, as well as research showing that young people are particularly likely to falsely confess.

This brief follows an extensive Frye hearing on bullet matching evidence and incorporates extensive criticism from the scientific community, an explanation of the unintended impact that a narrow definition of the “relevant scientific community” can have, and evidence of the ways that cognitive bias impermissibly taint pattern-matching evidence.

Cites research showing that the length of a sentence does not contribute to general deterrence, rather, deterrence is linked to the risk/certainty of detection: “there is no reliable evidence that appreciably longer periods of incarceration for violent crimes have a general deterrent effect on the population.” Particularly when looking at gun crimes and sentencing enhancements, “there is little reliable evidence “of a general deterrent effect of lengthy sentencing enhancements that impose additional years of incarceration for crimes committed with a firearm.”” Further incorporates research demonstrating that longer periods of incarceration increase the rate of recidivism.

Although this is a habeas brief, pages 27-29 (p. 34-36 of the PDF) lay out how lifetime electronic monitoring burdens participation in civic and social life by causing adverse impacts on relationships, decreased psychological well being, and reduced employment opportunities. The data collected in this section could be useful to defenders in sentencing and/or pre-trial release arguments — either to prevent the use of electronic monitoring devices or to argue for reductions in other conditions if electronic monitoring is imposed.  Additionally, pages 37-40 (p. 44-47 of the PDF) argue that sex offender registration burdens both freedom of movement and participation in civic and social life because of differences in state laws and the lack of privacy after information is posted on the internet.  That data could be used to argue for reduced incarceration for individuals who face placement on the registry in light of the punitive effects associated with the registry itself.

Pgs. 7-8 – summarize scientific research describing how people create entirely false memories, a study of false memory creation, and a list of false memory risk factors, particularly for children.

Pgs. 9-10 – explain how interview techniques can create false memories in children, even false memories that do not seem to directly relate to the questions asked by the interviewer, and why expert testimony is needed to educate the jury on the counterintuitive nature of memory creation (i.e., the more detailed a memory, the higher the likelihood of error).

Pgs. 12-14 argue that, because the science behind false memories is similar to that of mistaken eyewitness identifications and both require jury education to evaluate witness credibility, expert testimony on false memories should be admitted at the discretion of the trial judge under the same logic.

p. 13-59 overview studies of Shotspotter accuracy and racially biased implementation

p. 35-65 detail research demonstrating bite-mark comparison has “no empirical support” high error rates, and is not accepted within the scientific community

Pages 1-4 discuss the history and development of the DRE program; pages 6-10 explain how the DRE test fails Rule of Evidence 702 because it does not assist the trier of fact to understand a fact in issue and the officers who testify about it are not qualified in the relevant field of knowledge; and pages 11-26 explain why the DRE protocol fails each of the five Daubert factors.

p. 16 – 28 cite to research on the deterrent effect of particular sentences, with studies concluding that “general deterrence is primarily a function of the certainty of punishment, not its severity.”

Details the dilemma that admitting a prior felony conviction results in: if the defendant testifies and his conviction is introduced, research shows there is a heightened risk that the jury will use the prior conviction to “draw an impermissible inference.” However, if the defendant chooses not to testify in order to prevent his conviction from being introduced, research shows people are more likely to find him guilty because he did not testify.

p. 18 – 23 incorporate research about the high susceptibility of adolescents to persuasion, especially by police. Amici argues that this makes adolescents more likely than adults to give false information to authority figures. Includes research on how adolescents respond to authority under stress.

p. 51-56 cite research on general inefficacy of jury instructions

P. 21-25 of the brief details the developments in scientific understanding of fire, including the 2004 National Fire Protection Association’s Guide for Fire and Explosion Investigations (NFPA 921), studies conducted by ATF and the National Institute of Justice, and other experts.

p. 14 to 21 cites research on false confession risk factors and police techniques that increase risk

Cites studies demonstrating racial disparities in incidents of police violence, being stopped by police, and resulting perception of police

Studies demonstrate that pre-trial publicity impacts decision-making and individual questioning about content exposure is necessary in cases involving substantial, prejudicial pre-trial publicity

Overview of social science suggesting that juries do not accurately assess bias/motivation to lie in cooperating witnesses.

Based on six years of data of police stops in Philadelphia based on the smell of marijuana, this brief overviews how its use as a justification for a search has vastly increased the number of searches conducted, but less than 20% of the searches relying on the presence of marijuana actually discovered contraband. The brief argues that such discretionary opinions perpetuate implicit bias and result in racially biased outcomes.

p. 22-33 explain the changing landscape of arson investigations and wide-scale rejection of the “negative corpus” theory that some fire investigations rely upon.

This document was filed in support of a motion to compel discovery of the underlying source code, parameters, error rates, input data, results, reports, analyst, and confidence scores of the Facial Recognition program used in a criminal case. The expert explains the steps involved in a facial recognition search and areas where subjective human decisions — and cognitive bias — are likely to impact the outcome of the search.

p. 30 – 37 discuss studies of implicit bias and the ways that racial cues – like a prosecutor characterizing a Black man as ‘angry’ –  can “automatically affect a broad range of decisions and behaviors” within juries.

Overview of Shotspotter’s unreliability and contribution to discriminatory police practices

Filed by the Center for Integrity in Forensic Science, this brief explains the research demonstrating that cognitive bias in forensic analysts contributes to unreliable conclusions.

Focusing on retinal hemorrhages, this motion cites research showing no proven correlation between shaking and retinal hemorrhage, as well as studies documenting other (non-shaking) causes of retinal hemorrhage.

Civil rights complaint about problems with facial recognition technology – pgs. 9-12 collect research about errors with when images are of low quality, angles are different, resolution is bad; pgs. 12-15 collect research showing facial recognition algorithms are racially biased; pgs. 15-16 collect data about jurisdictions that have banned use of facial recognition technology because of its flaws

Incorporating statistical evidence of racial disparities in police stops and police violence, this brief argues that “what constitutes “suspicious” or “abnormal” behavior for Fourth Amendment purposes must take into account the realities of racism and police violence experienced by communities of color” and that any totality of the circumstances analysis must consider “the fraught, frightening, and sometimes fatal treatment some communities receive from police.”

Overview of flaws in proposed testimony explaining how children respond in aftermath of sexual abuse

Amicus brief from the Innocence Project explains genotyping software, similar software programs used in courts that were shown to be unreliable, and why defense access to the software source code is necessary.

This amicus brief from the Legal Aid Society explains how probabilistic genotyping software works, why it’s unreliable, and why the defense has to be granted access to the software’s source code to present a full defense

This expert report collects and describes cutting edge social science describing the problems with eyewitness identifications including: the effects of poor lighting and distance (p. 5); the effects of a quick exposure and the problem of witnesses’ overestimating the length of exposure (p. 5-6); problems with cross-racial identifications (p. 6); problem if witness previously viewed the person in another context (unconscious transference) (p. 7); problem of memory loss over time (p. 7); suggestive instructions & failure to warn that culprit may not be in line up (p. 8); problems with nonblind lineup administration (pp. 8-9); problems with biased lineup composition (bad fillers) (p. 9); what can be learned from how long it takes witness to make ID (p. 10); problems with in court identifications (commitment effect and inherent suggestiveness) (pp. 10-11); problems with witnesses being overconfident about IDs (pp. 11-12)

Incorporates studies on implicit bias generally, as well as specifically within jury panels

Argues that the likelihood ratio produced by STRMix software is unreliable because “the program’s code relies upon information that is subjective and can vary to an impermissible degree depending on the individual analyst and laboratory.” Explains factors that impact the reliability of probabalistic genotyping software, including threshold levels
(what the lab considers data vs. noise), stutter (a common result of miscopying in the PCR process), and drop-in (a peak in the results that isn’t present in the original profiles).

Details risk factors for false confessions, benefits of a defense expert on false confessions, and why expert testimony on false confessions satisfies Daubert

Advocates that showing prospective jurors a video about implicit bias will help ensure a fair and impartial jury.

p. 17 – 25 explain why attorney-conducted voir dire leads to increased self-disclosure and better assessment of juror bias.

Based on forensic reports on latent fingerprint matching, this motion argues that fingerprint analysts can only accurately testify in terms of exclusion, rather than that two prints are a “match,” from a “common source,” or that any individual is “the source” of a latent fingerprint.

Filed by the Innocence Project, this brief details research demonstrating that hair microscopy evidence does not meet the standards of reliable scientific evidence, as well as research showing how persuasive forensic testimony is to juries.

Testimony of defense expert on issues surrounding Shaken Baby Syndrome diagnoses

Summarizes research on accuracy of “criminal profiling” evidence over forty years, concluding profilers are no “better than bartenders at predicting the traits and features of offenders.” Also provides an overview of cases nationwide excluding criminal profiling evidence and finding that its major premise is faulty and essentially propensity evidence.

“When jurors are presented with evidence that is particularly gruesome, they are likely to experience a visceral emotionally charged feeling that leads them to be inappropriately punitive.” Incorporates studies demonstrating that exposure to gruesome evidence decreases the brain’s capacity for logical reasoning.

p. 22-38 discuss the use of 404(b) “other acts” evidence and why evidence of drug possession is not relevant to intent to distribute drugs. The brief goes on to outline research demonstrating that such “other acts” evidence is highly likely to improperly prejudice the jury in a way that cannot be cured by a limiting instruction.

Argument that using in-court IDs as the only identification in case is a violation of the Due Process Clause because they create a substantial risk of misidentification. Social science studies cited throughout, specifically supporting reliability concerns (pgs. 10-12) and policy arguments (pgs. 13-15)

p. 19-26 incorporate social science research on primacy and impact of the first-listed choice over the second-listed choice.

Report overviews existing research on false confessions and specific risk factors for false confessions.

This hearing challenges the validity and reliability of STRMix DNA mixture analysis. Government witness: John Buckleton (creator of STRMix); defense witness: Nathan Adams (explains likelihood ratios, impact of number of contributors on the program’s output, problems with STRMix implementation

Transcript of testimony and argument pursuant to the defense motion to exclude the government’s expert witness. Defense witness explains (with research studies as examples) confirmation bias, contextual bias, and exposure to task-irrelevant information. Arguments: p. 57-70.

Argues “substantial amount[s] of highly inflammatory task-irrelevant context information,” improperly impacts opinions, cites research on contextual bias in forensic experts

Argues that “likelihood ratio” evidence — the statistical frequency of a suspect’s characteristic — has not been sufficiently validated and is misleading to the jury because the jury conflates it with probability of guilt.

Witness testifies about confirmation bias, clothing bias, witness degree of certainty, police witness accuracy, and face-to-photo ID accuracy

p. 14 – 22 outline research on how jurors respond to limiting instructions, demonstrating that “providing a limiting instruction likely has little effect because it is almost impossible for jurors to forget evidence for one purpose, while remembering it for another.”

p. 9-18 overview studies on unreliability of cross-racial identifications and juror tendency to overestimate eyewitness accuracy. Brief also details why expert testimony and cross-examination do not eliminate the need for a jury instruction.

Incorporates numerous studies demonstrating why show ups are unreliable

p. 36 – 94 contain testimony about shortcomings of latent print identification

Transcript of defense expert witness testimony focusing on contextual bias in forensics.

Brief outlines the factors that have been demonstrated to impact the reliability of eyewitness identification and argues for jury instructions that explain each individual factor.

Details the flaws in Bloodstain Pattern Analysis, the lack of enforced standards, and the high error rate. Additionally explains the danger of contextual bias impacting the decision of forensic analysts.

p. 9-13 cite research on jury bias, impact of prior conviction evidence, and inefficacy of limiting instructions about prior convictions

Argues that showing a witness a photograph of the defendant prior to trial testimony shares the same unreliability as a show-up and is impermissibly suggestive.

p. 11-15 overview reliability issues with fire investigations, particularly the lack of measurable standards and verifiable data.

p. 8 – 12 outline existing research on how jurors respond to and use evidence of prior convictions. Incorporates research demonstrating that limiting instructions do not cure the prejudice, as jurors still use prior convictions as propensity evidence even when instructed not to.

In-court identifications are inherently suggestive because they imply to the witness that the prosecutor has confirmed the witness’ initial identification. This brief argues that such an identification is more suggestive than a show-up and that the witness’ sense of accuracy artificially increases during subsequent identifications.

Because of the inherently suggestive nature of in-court identifications, courts should (1) subject them to the same protections and scrutiny as suggestive pretrial identification procedures (pgs. 4-9 of brief); (2) update existing standards and law to align with social science and other, more protective jurisdictions (pgs. 13-22 of brief); and (3) recognize that in-court identifications may be a violation of due process rights (pgs. 26-36 of brief)

Filed by the American Psychological Association, this brief supports specific jury instructions on eyewitness memory:

“Human memory is not foolproof. Research has revealed that human memory is not like a video recording that a witness need only replay to remember what happened. Memory is far more complex. The process of remembering consists of three stages: acquisition — the perception of the original event; retention — the period of time that passes between the event and the eventual recollection of a piece of information; and retrieval — the stage during which a person recalls stored information. At each of these stages, memory can be affected by a variety of factors.”

“Although nothing may appear more convincing than a witness’s categorical identification of a perpetrator, you must critically analyze such testimony. Such identifications, even if made in good faith, may be mistaken. Therefore, when analyzing such testimony, be advised that a witness’s level of confidence, standing alone, may not be an indication of the reliability of the identification.”

Affidavit submitted by proposed defense expert detailing the existing research on how juries perceive the testimony of jailhouse informants (otherwise called “secondary confessions.”)

p. 10-12 discuss a study that found that people with normal smell identification abilities could only smell a 5-pound bag of marijuana in a trunk 13% of the time, and that 10% of the time people thought they smelled marijuana when there was none. p. 12-13 argues that an officer can impermissibly taint a search by suggesting that he smells marijuana, similar to tainting a lineup by suggesting the suspect to the witness.

This sentencing memorandum marshals empirical research about the typical profile and risk assessment of someone convicted of possessing child pornography, along with research related to the client’s age and the impact of incarceration on recidivism/deterrence, to argue that the client is not dangerous or likely to reoffend. These arguments could also be used pretrial in a bond argument.

Pgs. 26-27: An older person will suffer greater punishment from incarceration than the average person incarcerated

Pgs. 29-30: The empirical evidence shows no relationship between sentence length and general/specific deterrence

Pgs. 31-33, 46, 51-52: Empirical research shows that first-time child pornography possession offenders have a very low risk of sexual recidivism and the consumption of child pornography alone does not seem to represent a risk factor for committing contact sex offenses

Pgs. 33-34: Marriage reduces recidivism as does employment, education and family ties/responsibilities

Pgs. 33, 51: Recidivism (including for child sex offenders) declines with age, and only a very few child sex offenders recidivate after age 60

Pgs. 22-23, 47: Because of the ease of accessing child porn on the internet, there is no evidence that the number of images possessed bears on the likelihood that an offender is “dangerous” or more likely to engage in contact sex crimes

Pgs. 21, 47-50: Harsher punishment for child porn consumption will not reduce the flow of child porn on the internet because there is no empirical evidence to support the assumption that children are abused for the sole purpose of creating child pornography for dissemination (i.e., the consumption of child porn alone has no “market effect”)

Pgs. 52-53: Collects research discussing the criminogenic effects of prison

Argues that gunshot residue evidence is not reliable

Explains process of latent fingerprint analysis, lack of uniform standards, false claims of “absolute certainty,” and why fingerprint analysis fails the Daubert standard.

p. 7-12 collect lower court cases excluding gruesome photos due to likelihood they would inflame the jury.

p. 8-12 incorporate social science studies on how jurors respond to testimony designated as “expert”

Explains history of the ACE-V method, the risk of confirmation bias, and the lack of uniform standards in fingerprint matching.

Overviews shortcomings in firearm/toolmark analysis, specifically argues against any testimony of a “match”

Overviews the history of the DRE program and the lack of scientific studies supporting DRE validity, cites studies demonstrating DRE conclusions are inaccurate and inconsistent.

Cites research demonstrating that most jurors do not have an accurate belief about the reliability of eyewitness identifications, and that cross-examination and jury instructions are not adequate substitutes for expert testimony on factors that contribute to the reliability or unreliability of identifications.