Scientific Evidence

Articles

• Alex:  2011 Reference Manual on Scientific Evidence – Free (October 2011)
• Kevin Sali: A Few Words on State v. Branch (August 2011)
• Kevin Sali:  Does the State Have the Wrong Expert? (May 2011)
• Kevin Sali:  Challenging Scientific Evidence – Choosing Your Strategy (April 2011)
• Ryan Scott on Finding of a Personality Disorderwithout a Diagnosis  (April 2011)
• Kevin Sali:  What is Scientific Evidence (March 2011)
• Kevin Sali:  Opportunities at the Intersection of Science and Law (March 2011)

Specific Topics

• Arson
• Ballistics
• Bitemarks
• Bloodstain Pattern Analysis
• Computers
• DNA
• Dog Scent
• Entomology (using bugs to determine location and time of an event)
• Eyewitness Identification
• Firearm and Toolmark Identification
• Fingerprints
• Handwriting Identification
• Mental Illness
• Polygraphs
• Shaken Baby Syndrome
• Toxicology and Serology
• Trace Evidence (e.g., fibers, paint, hair)
• Violence Prediction

Recent Caselaw

No Foundation for Scientific Evidence is Needed in a “Clear Case”

Lidar (laser distance) measurement is scientific evidence that does not require a foundational consideration of the Brown/O’Key factors because it is such a “clear case”. A “clear case” is one in which the science is so universally accepted and the technology so widely used that there is no question about the scientific foundation for the evidence.   Once a court has found that it is a clear case or taken judicial notice, the burden shifts to the opposing party to show that the science is not universally accepted, widely used or sound for the purpose offered.   State v. Branch

HGN

When the officer fails to follow the protocol for the Horizontal Gaze Nystagmus test, the test lacks scientific validity and the state cannot establish a foundation for the evidence.  Here, the officer failed to make the required number of passes, moved the stimulus at an improper speed and held the stimulus at a higher level than dictated by the protocol. Thus, the failure of scientific validity was fairly clear. However, this case seems to stand for the proposition that any deviation from the protocol means the test lacks scientific validity.  Moreover, HGN evidence is “qualitatively different” than other kinds of evidence in a DUII case and is, therefore, unlikely to be harmless error.  State v Ingram (Nov 2010)

Vertical Gaze Nystagmus Test 

The state failed to establish the scientific validity of the vertical gaze nystagmus (VGN) test for intoxication, which measures jerking movements as the eyes move up and down. It wasn’t enough that the state submitted a Department of Transportation manual asserting that “field experience” had found VGN reliable. It also wasn’t sufficient that the Oregon Supreme Court previously endorsed the horizontal gaze nystagmus (HGN) test in State v. O’Key or that the appeals court implicitly endorsed the VGN in State v. Sampson as one component of the 12-step drug recognition expert (DRE) protocol. State v. Bevan