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Scientific Evidence and Expert Testimony in California 2018

This book offers comprehensive discussion of several types of scientific evidence you’re likely to encounter in the courtroom. From discovery to trial, use this practical, accessible guide to learn which kind of expert you will be working with, what to ask about the evidence, and how to get what you need from testimony as well as which terms and concepts a jury can easily understand. 

This book offers comprehensive discussion of several types of scientific evidence you’re likely to encounter in the courtroom. From discovery to trial, use this practical, accessible guide to screen experts, to ask the important questions about the evidence, and to get what you need from an expert's testimony as well as to learn the terms and concepts a jury can easily understand. Written by California attorneys and the experts they’ve relied on, there is no other book like it.

  • Presenting and challenging expert testimony
  • Evidence of alcohol intoxication
  • Forensic toxicology and the use of drug evidence
  • DNA evidence
  • Origin and cause of fires
  • Digital forensics investigations in corporate environments
  • Forensic accounting
  • GPS, cell phones, and other tracking devices
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approx. 650 pages, softbound, 2018

 

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This book offers comprehensive discussion of several types of scientific evidence you’re likely to encounter in the courtroom. From discovery to trial, use this practical, accessible guide to screen experts, to ask the important questions about the evidence, and to get what you need from an expert's testimony as well as to learn the terms and concepts a jury can easily understand. Written by California attorneys and the experts they’ve relied on, there is no other book like it.

  • Presenting and challenging expert testimony
  • Evidence of alcohol intoxication
  • Forensic toxicology and the use of drug evidence
  • DNA evidence
  • Origin and cause of fires
  • Digital forensics investigations in corporate environments
  • Forensic accounting
  • GPS, cell phones, and other tracking devices

About the Authors

Robert Aguero, a coauthor of chapter 9 (Global Positioning Systems (GPS), Cell Phones, and Other Tracking Devices) since the 2016 update, is the owner and CEO of CTF DataPro, Inc. He has been an investigator in the private sector for more than 20 years, specializing in cell phone forensics and cell tower data analysis. He has investigated and analyzed more than 500 cell phone forensics and cell tower data cases and has testified as an expert in court. He is currently certified in the Cellebrite UFED (Universal Forensic Extraction Device), the Cellebrite Physical Analyzer, Katana Lantern, Susteen Secure View 3, and Mobile Phone Seizure. Mr. Aguero started his career as a police officer in 1979 and spent 15 years working in law enforcement. For eight of those years, he was a detective working primarily gang crimes, major narcotics, and homicides.

Hudson Bair, Esq., a coauthor of chapter 3 (Evidence of Alcohol and Marijuana Intoxication), is a principal in the Oakland law firm of Kapsack & Bair, LLP, specializing in the defense of driving under the influence. Mr. Bair earned his undergraduate degree from the University of Utah and his J.D. degree from Golden Gate University School of Law, San Francisco. He has particular expertise in breath and blood testing for alcohol and is certified both as a drug recognition screener and as an instructor in standardized field sobriety testing (sFST).

Elliot S. Beckelman, Esq., a coauthor of chapters 1 and 2 (Introducing Scientific Evidence and Presenting and Challenging Expert Testimony on Scientific Evidence, respectively), is an attorney for California's Labor Commissioner's office, which is the chief law enforcement agency for the state's labor laws, and in this capacity oversees its Criminal Investigation Unit. He earned his undergraduate degree from the University of Wisconsin, Madison, and his J.D. degree from the University of California, Hastings College of the Law. Mr. Beckelman is a former assistant district attorney with the City and County of San Francisco who served as the managing attorney of the Sex Crimes/Child Abuse and Career Criminal Prosecution Units and also served as a trial attorney in the Homicide, Gangs, General Felony Litigation, Elder Abuse, and Narcotics units. He also supervised the district attorney's investigation of clergy sexual abuse and was co-counsel in its DNA-STR admissibility litigation.

Michael Begovich, Esq., a coauthor of chapter 2 (Presenting and Challenging Expert Testimony on Scientific Evidence), is a deputy public defender with the San Diego County Public Defenders Office and former chair of the Executive Committee of the State Bar's Criminal Law Section, where he previously served in other capacities, including chair of the Education Subcommittee. Mr. Begovich earned his undergraduate degree (summa cum laude and Phi Beta Kappa) from the University of California, Davis, and his J.D. degree from the University of California, Hastings College of the Law. He is an adjunct professor at Thomas Jefferson School of Law in San Diego, where he teaches trial practice and advanced trial advocacy. Before joining the public defender's office, Mr. Begovich worked in an AV-rated civil law firm. Rated AV by Martindale-Hubbell, he provides ongoing MCLE training for the State Bar, San Diego County Bar, and his office staff in areas relating to trial practice. He is also the author of chapter 29 (Jury Selection) in CEB's California Criminal Law Procedure and Practice and California Criminal Law Forms Manual (2d ed Cal CEB) and of additional articles relating to jury selection and trial practice.

Ulises Castellon, CPCU, RFA, a coauthor of chapter 6 (Origin and Cause of Fire), is the chief operating officer of Fire Cause Analysis, a forensic investigation and engineering firm. Within that company, he also is the head of claims analysis as an insurance consultant and expert witness. He regularly teaches courses on topics ranging from arson and fraud investigations to fair claims practices, and he has published articles on similar topics for insurance trade journals. Mr. Castellon belongs to numerous professional organizations and is highly experienced in providing deposition and trial testimony.

David J. Cohen, Esq., a coauthor of chapter 4 (Forensic Toxicology and the Use of Drug Evidence), is a certified criminal law specialist and the lead principal of Bay Area Criminal Lawyers, P.C., of San Francisco. Mr. Cohen earned his undergraduate degree from Amherst College and his J.D. degree from the University of Chicago Law School. His practice emphasizes white collar criminal defense work, and he has extensive trial and appellate experience in both federal and state courts. He began his legal career in New York City but relocated to California and, after practicing with Federal Defenders of San Diego, Inc., opened his own practice.

Elena Condes, Esq., a coauthor of chapter 9 (Global Positioning Systems (GPS), Cell Phones, and Other Tracking Devices) and a consulting editor for the prior edition of this title, has maintained a private criminal defense practice in Berkeley since 1993. Ms. Condes earned her undergraduate degree from the University of Arizona and her J.D. degree from Golden Gate University School of Law, San Francisco. She is also an update author for California Criminal Law Procedure and Practice (Cal CEB). Known for her exceptional trial advocacy skills, Ms. Condes's practice takes her into both federal and state court. Formerly, she served as the chair of the East Bay La Raza Lawyers Association and as president of Women Defenders.

Scott Wm. Davenport, Esq., a coauthor of chapter 1 (Introducing Scientific Evidence) whose background includes being a certified specialist in both appellate law and criminal law, is a partner in the Orange County office of Manning & Marder, Kass, Ellrod, Ramirez LLP. Mr. Davenport earned his undergraduate degree from the University of California, Riverside, and his J.D. degree from California Western School of Law, San Diego. He has been lead counsel in over 400 appellate matters, is AV rated, and is the chair of the Committee of Bar Examiners. He also serves as an appellate settlement officer with the Second District Court of Appeal.

Lisa C. DewBerry, Esq., a coauthor of chapter 4 (Forensic Toxicology and the Use of Drug Evidence), is a certified criminal law specialist who maintains her practice in San Francisco. Ms. DewBerry earned her undergraduate degree and her J.D. degree from the University of San Francisco School of Law. She has over 28 years of experience representing both youth and adults, and she has handled more than 100 jury trials. Before opening her practice, she was a lead attorney in the San Francisco Public Defender's Office. She is also an adjunct professor at Golden Gate University School of Law and is on the faculty of the National Institute of Trial Advocacy.

E. Thomas Dunn, Jr., Esq., a coauthor of chapters 1 and 2 (Introducing Scientific Evidence and Presenting and Challenging Expert Testimony on Scientific Evidence, respectively), is a certified specialist in both criminal and appellate law, with an Anaheim practice that focuses on criminal law and motion matters, writs, and appeals. He earned his undergraduate degree from Biola University and his J.D. degree from Southwestern University School of Law. He previously handled civil rights defense cases as an associate with Manning & Marder, Kass, Ellrod, Ramirez LLP, and he was the lead appellate attorney for 4 years at the California Court of Appeal. He also was a senior deputy district attorney for Orange County from 1985 to 1997, and he served for 2 years as a California deputy attorney general. He teaches advanced criminal evidence and other advanced criminal law courses at Western State University College of Law, where he has been on the faculty since 1992. Mr. Dunn is also an update author for California Criminal Law Procedure and Practice (Cal CEB).

David Fermino, Esq., a coauthor of chapter 7 (Digital Forensics Investigations in Corporate Environments), is a partner at the San Francisco law firm Sideman & Bancroft, where his practice focuses on white collar criminal defense and complex criminal and civil appeals in the state and federal courts. Mr. Fermino graduated with a B.A. degree in anthropology in 1982 from Carleton College, and he obtained his J.D. degree in 1987 from Washington University in St. Louis Law School and was admitted to practice law in California 1991. Following graduation from law school, Mr. Fermino served as a law clerk for United States District Judge George N. Leighton, U.S. District Court for the Northern District of Illinois. Prior to joining Sideman & Bancroft, Mr. Fermino was an assistant federal public defender in Los Angeles and San Francisco, where he handled a broad spectrum of matters, including criminal tax matters, complex fraud matters, and major gun and drug trafficking cases. In addition to his trial experience, Mr. Fermino's appellate experience includes oral argument before the U.S. Supreme Court, an en banc panel of the Ninth Circuit Court of Appeals, numerous three-judge panels of the Ninth Circuit, and the California Courts of Appeal that have resulted in significant published opinions.

Lou Feuchtbaum, Esq., a coauthor of chapter 7 (Digital Forensics Investigations in Corporate Environments), is a partner with Sideman & Bancroft, where his practice is focused on white collar criminal defense and complex civil litigation, particularly as it relates to trademark counterfeiting. A graduate of the United States Naval Academy, Mr. Feuchtbaum served for 7 years as a commissioned officer in the U.S. Navy, specializing in surface ship warfare and serving in combat. Mr. Feuchtbaum obtained his J.D. degree in 1999 from the George Washington University Law School and is admitted to practice law in New York (2000) and California (2002) as well as before various federal courts. Prior to joining Sideman & Bancroft, Mr. Feuchtbaum was an assistant district attorney in the Bronx, where his practice focused on investigating and prosecuting organized crime and official corruption cases. He oversaw several long-term investigations involving electronic surveillance that targeted money-laundering, fraud, and extortion, including an investigation that led to the breakup of one of the largest illegal gun smuggling operations in New York City's history. Mr. Feuchtbaum has defended major automotive and tire manufacturers in product liability actions, and he has defended individuals accused of complex frauds and business crimes.

Kerry L. Francis, CPA, a coauthor of chapter 8 (Forensic Accounting), is a forensic accountant and partner in the forensic and dispute services practice of Deloitte Financial Advisory Services, LLP, and leads its national corporate investigations service line out of the San Francisco office. Ms. Francis received her undergraduate degree from the University of California, Berkeley. She specializes in internal corporate investigations and securities litigation matters and has provided services in a variety of legal matters, including preparing trial exhibits and testimony. She wishes to thank Caroline Greenway and Robert Kytonen of Deloitte Financial Advisory Services, LLP, for their research assistance.

Kali S. Grech, Esq., a coauthor of chapter 4 (Forensic Toxicology and the Use of Drug Evidence), is a criminal defense attorney with Bay Area Criminal Lawyers, P.C., of San Francisco. She earned her undergraduate degree (summa cum laude) from California Polytechnic State University, San Luis Obispo, and her J.D. degree from the University of San Francisco School of Law. Before joining Bay Area Criminal Lawyers, P.C., Ms. Grech worked for the Contra Costa County Public Defender's Office in Richmond and had prior experience with law offices that practiced in a variety of subject areas, including family, tax, bankruptcy, environmental, and general civil litigation.

Geoff Hazard, a coauthor of chapter 6 (Origin and Cause of Fire), is a forensic expert in the origin and cause of fires and explosions and a partner with Fire Cause Analysis. He holds a master's degree in forensic and fire science from the University of New Haven, Connecticut, and has lectured to UNH students on numerous occasions. Mr. Hazard is a certified fire investigator through the International Association of Arson Investigators and holds a Pro Board Certification as a fire investigator from the National Board on Fire Service Professional Qualifications. He has participated in over 1500 investigations of residential, commercial, and vehicular fires as an origin and cause expert with Fire Cause Analysis. Mr. Hazard is an expert in the dynamics, evolution, and spread of fires and the forensic application of NFPA 921 to fire origin and cause investigation and has qualified and testified as an expert witness on several occasions. Mr. Hazard has been published in the Journal of the International Association of Arson Investigators and the California Conference of Arson Investigator's Magazine.

John Janes, a coauthor of chapter 7 (Digital Forensics Investigations in Corporate Environments), is director of the Analytic and Forensic Technology Group of Deloitte Financial Advisory Services, LLP, in San Francisco. Mr. Janes earned his undergraduate degree from the University of Maryland. He has over 25 years of experience in providing technology solutions to law firms and general counsels' offices. He has worked for systems vendors and consulting firms designing, installing, and implementing litigation and case management systems for law firms and law departments. He wishes to thank Tomas Castrejon of Deloitte Financial Advisory Services, LLP, for his research assistance.

Ellen Lin, a coauthor of chapter 8 (Forensic Accounting), is a senior manager at Deloitte Financial Advisory Services, LLP, in San Francisco. She graduated with a B.S. in business administration from the University of California, Berkeley. Ms. Lin has over 6 years of experience in performing fraud and forensic investigations and litigation support work of various companies, mainly in the financial services and technology industries, and 4 years of experience in Deloitte's financial statement audit practice, performing integrated audits of public and private companies. She is a certified public accountant in California and a certified fraud examiner, and she is certified in financial forensics.

Hon. Darrell S. Mavis, a coauthor of chapters 1 and 2 (Introducing Scientific Evidence and Presenting and Challenging Expert Testimony on Scientific Evidence, respectively), is a judge of the Los Angeles County Superior Court. Judge Mavis earned his undergraduate degree from MIT and his J.D. degree from Harvard Law School. From 1991 until becoming a judge in 2006, he was a deputy district attorney with the Los Angeles County District Attorney's Office. He served earlier as an attorney with the United States Department of Justice. Formerly, Judge Mavis was the chair of the State Bar's Criminal Law Section Executive Committee. He has been an adjunct professor at Southwestern University School of Law since 1996, teaching trial advocacy.

Mark E. Michels, a coauthor of chapter 7 (Digital Forensics Investigations in Corporate Environments), is a director in Deloitte Financial Advisory Services, LLP. Mr. Michels received his B.S. degree from Georgetown University School of Foreign Service, an M.S. degree from the Department of Defense Intelligence College, and his J.D. degree (magna cum laude) from Georgetown University Law Center. He specializes in advising on electronic discovery management related to complex litigation, patent litigation, class actions, commercial disputes, premerger reviews, and internal investigations. Mr. Michels is also a nationally recognized expert on in-house e-discovery implementation, patent litigation discovery management, and litigation cost control. He has been an advisory board member of the Georgetown Law Advanced E-Discovery Institute since 2005. He wishes to thank Jesús A. Chavez of Deloitte Financial Advisory Services, LLP, for his research and writing assistance.

Judith L. Stewart, a coauthor of chapter 4 (Forensic Toxicology and the Use of Drug Evidence), is a senior forensic technologist in a division of Forensic Analytical Specialties in Hayward. She earned an undergraduate degree in biology from California State University, Fresno. Ms. Stewart has over 33 years of experience in forensic toxicology, including 4 years as a laboratory director. She is court-qualified in many forensic science areas, including blood and urine analysis and interpretation and analysis of controlled substances. She is a member and past president of the California Association of Toxicologists, has authored articles, and has given presentations on various aspects of forensic toxicology.

Danielle Van Wert, Esq., a coauthor of chapter 8 (Forensic Accounting), is an attorney at Orrick Herrington & Sutcliffe LLP. She received her undergraduate degree from the University of California, Davis, and her law degree from the University of California, Los Angeles, School of Law. Her practice focuses on securities litigation, internal investigations, and white collar criminal defense. She represents companies and individuals in securities-regulated regulatory investigations, including SEC and FINRA matters.

John White, PE, a coauthor of chapter 6 (Origin and Cause of Fire), is a registered fire protection engineer in the states of California and Nevada and a certified fire investigator for Fire Cause Analysis in Berkeley. He received an undergraduate degree in chemistry from the University of California, Berkeley, and his M.Sc. in fire protection engineering from Worcester Polytechnic Institute in Massachusetts. He specializes in the design and analysis of fire protection systems; failure mode and effects analysis; the forensic analysis of fire origin, cause, and spread; and the use of computer-based predictive fire modeling. Mr. White has consulted on a variety of investigations and design projects for private companies, public agencies, transit authorities, insurance companies, and private citizens.

Hon. Mark E. Windham, the author of chapter 5 (DNA Evidence), is a judge of the Los Angeles County Superior Court. Judge Windham earned his undergraduate degree from the University of California, Berkeley, and his J.D. degree from the University of California, Hastings College of the Law. He served as head deputy public defender for the Los Angeles County Public Defender's Office from 2000 until his appointment to the bench in January 2008. From 1985 to 2000, he served as a deputy public defender for the same agency and was in private practice from 1984 to 1985.

Douglas K. Wood, Esq., a coauthor of chapter 6 (Origin and Cause of Fire), is a partner in the San Francisco office of Morris Polich & Purdy LLP. Mr. Wood received his undergraduate degree (cum laude) from the University of the Pacific and his J.D. degree (magna cum laude) from the University of California, Hastings College of the Law. He specializes in property insurance law and defends coverage and bad faith litigation arising out of complex insurance claims. Repeatedly, he has been named one of Northern California's Super Lawyers, a Top Rated Insurance Lawyer, and one of the Bay Area's Best Insurance Lawyers. Mr. Wood coauthored and served as on-camera subject matter expert in the International Association of Arson Investigators' new online CFITrainer.net Expert Witness Deposition modules. Mr. Wood has served the California Conference of Arson Investigators as legal consultant, instructor, and ex-officio member of the board of directors. He speaks, writes, and teaches regularly.

Margaret L. Wu, Esq., a coauthor of chapters 7 and 8 (Digital Forensics Investigations in Corporate Environments and Forensic Accounting, respectively), is managing counsel for litigation in the Office of General Counsel, University of California, in Oakland. Ms. Wu earned her undergraduate degree from Stanford University and her J.D. degree from the University of California, Berkeley, School of Law. Her practice focuses on academic affairs and other complex litigation. She previously was an attorney with Morrison & Foerster, LLP, in San Francisco and with Boies, Schiller & Flexner, LLP, in Oakland. She wishes to thank Julie Soeganda, Felicia Medina, and Nicholas Napolitan of Morrison & Foerster, LLP, for their research assistance.

Jeffrey L. Zehnder, a coauthor of chapter 3 (Evidence of Alcohol and Marijuana Intoxication), is a forensic toxicologist and director of Drug Detection Laboratories, Inc., of Sacramento, which provides drug and alcohol testing for employers, courts, public and private attorneys, hospitals, counselors, parents, and other individuals. Mr. Zehnder has a B.S. degree in forensic science with a teaching minor in chemistry from California State University, Sacramento. Previously, he was a clinical toxicologist with the University of California Medical Center as well as a supervising toxicologist with Sacramento Clinical Laboratories. He has testified approximately 2000 times as an expert on drug and alcohol metabolism and testing, on the effects of alcohol and drugs, and on toxicology testing.

About the 2017 Update Authors

Robert Aguero is the update author of chapter 9 (Global Positioning Systems (GPS), Cell Phones, and Other Tracking Devices) since the 2016 update; see biography in About the Authors section of this book.

Michael Begovich, Esq., is an update coauthor of chapter 2 (Presenting and Challenging Expert Testimony on Scientific Evidence); see biography in About the Authors section of this book.

Ulises Castellon, CPCU, RFA, is an update coauthor of chapter 6 (Origin and Cause of Fire); see biography in About the Authors section of this book.

Lisa C. DewBerry, Esq., is the update author of chapter 4 (Forensic Toxicology and the Use of Drug Evidence); see biography in About the Authors section of this book.

David Fermino, Esq., is an update coauthor of chapter 7 (Digital Forensics Investigations in Corporate Environments); see biography in About the Authors section of this book.

Lou Feuchtbaum, Esq., is an update coauthor of chapter 7 (Digital Forensics Investigations in Corporate Environments); see biography in About the Authors section of this book.

Geoff Hazard is an update coauthor of chapter 6 (Origin and Cause of Fire); see biography in About the Authors section of this book.

Hon. Darrell S. Mavis is an update coauthor of chapter 2 (Presenting and Challenging Expert Testimony on Scientific Evidence); see biography in About the Authors section of this book.

John White, PE, is an update coauthor of chapter 6 (Origin and Cause of Fire); see biography in About the Authors section of this book.

Hon. Mark E. Windham is the update author of chapter 5 (DNA Evidence); see biography in About the Authors section of this book.

Douglas K. Wood, Esq., is an update coauthor of chapter 6 (Origin and Cause of Fire); see biography in About the Authors section of this book. Mr. Wood is now a Member in Clark Hill LLP's San Francisco office.

1

Introducing Scientific Evidence

E. Thomas Dunn, Jr.

Hon. Darrell S. Mavis

Elliot S. Beckelman

Scott Wm. Davenport

  • I. ?SCIENTIFIC EVIDENCE ?1.1
  • II. ?TRENDS AND CONTROVERSIES IN ANALYSIS OF SCIENTIFIC EVIDENCE ?1.2
  • III. ?PHYSICAL EVIDENCE
    • A. ?Collection at Crime or Incident Scene or From Persons ?1.3
    • B. ?Importance of Immediate Collection of Fleeting Evidence ?1.4
    • C. ?Chain of Custody ?1.5
    • D. ?Testing by Qualified Forensic Expert ?1.6
  • IV. ?EXPERT TESTIMONY ?1.7
  • V. ?DOCUMENTARY EVIDENCE
    • A. ?Business and Official Records ?1.8
    • B. ?Lab Reports ?1.9
    • C. ?Authentication ?1.10
    • D. ?Stipulations ?1.11
    • E. ?Objections ?1.12
  • VI. ?PRETRIAL "402" MOTION ?1.13
    • A. ?Challenging the Expert ?1.14
      • 1. ?Challenging Qualifications ?1.15
      • 2. ?Challenging Subject Matter ?1.16
      • 3. ?Challenging Basis of Opinion ?1.17
      • 4. ?Preventing Cross-Examination Based on Hearsay ?1.18
    • B. ?Challenging New Scientific Techniques: Kelly Rule
      • 1. ?Statement of Rule ?1.19
      • 2. ?Applicability of Rule
        • a. ?New, Novel, or Experimental ?1.20
        • b. ?General Acceptance; Published Appellate Decision ?1.21
      • 3. ?Approved Techniques Under Kelly ?1.22
      • 4. ?Disapproved Techniques Under Kelly ?1.23
      • 5. ?Kelly Hearing
        • a. ?Moving for or Opposing Kelly Hearing
          • (1) ?When to Make Challenge ?1.24
          • (2) ?What Opponent of Evidence Must Show to Get Hearing ?1.25
          • (3) ?Burden of Proof at Hearing ?1.26
        • b. ?First Prong: General Acceptance in Relevant Scientific Community
          • (1) ?Reliability Requirement ?1.27
          • (2) ?What Constitutes General Acceptance? ?1.28
          • (3) ?Defining Relevant Scientific Community ?1.29
          • (4) ?Requisite Showing to Establish General Acceptance ?1.30
        • c. ?Second Prong: Proper Qualification of Experts
          • (1) ?Who Is Qualified to Testify as Expert? ?1.31
          • (2) ?General Qualifications of Expert to Prove "General Acceptance" ?1.32
          • (3) ?Qualified to Understand Principles and to Evaluate Differences of Opinion ?1.33
        • d. ?Third Prong: Test Performed in Accordance With Correct Scientific Procedures ?1.34
    • C. ?Review of Trial Court's Rulings
      • 1. ?Independent Review of General Acceptance ?1.35
      • 2. ?Deferential Review of Expert Qualifications ?1.36
      • 3. ?Reviewing Court May Look Beyond Trial Court Record ?1.37
    • D. ?Challenging the Scientific Evidence as the Basis for Expert Opinion Under Sargon ?1.38
  • VII. ?ADDITIONAL EVIDENTIARY ISSUES
    • A. ?Concealment, Alteration, or Destruction of Evidence ?1.39
    • B. ?Loss of Evidence ?1.40
    • C. ?Failure to Preserve Evidence ?1.41

2

Presenting and Challenging Expert Testimony on Scientific Evidence

Hon. Darrell S. Mavis

Michael Begovich

E. Thomas Dunn, Jr.

Elliot S. Beckelman

  • I. ?PREPARING TO WORK WITH EXPERT WITNESS ?2.1
    • A. ?Talk to Other Attorneys ?2.2
    • B. ?Obtain Background Information on Expert ?2.3
    • C. ?Learn About Subject Matter of Testimony ?2.4
    • D. ?Obtain Transcripts From Prior Trials ?2.5
    • E. ?Retain and Determine Scope of Work ?2.6
    • F. ?Talk to Both Sides' Experts ?2.7
  • II. ?DISCOVERY ?2.8
    • A. ?Criminal Cases ?2.9
    • B. ?Civil Cases ?2.10
  • III. ?PRINCIPLES GOVERNING ADMISSION OF EXPERT TESTIMONY
    • A. ?Required Qualifications ?2.11
    • B. ?Trial Judge's Determination Whether Witness Qualifies ?2.12
    • C. ?Proper Subject Matter of Expert Testimony ?2.13
    • D. ?Requirements for Admission of Expert Testimony ?2.14
    • E. ?Proper Bases for Expert Opinion
      • 1. ?Evidence Code §801(b) Requirements ?2.15
      • 2. ?Expert Testimony Not Subject to Kelly Rule ?2.16
      • 3. ?Particular Sources of Information on Which Expert May Rely
        • a. ?Hearsay Generally ?2.17
        • b. ?Opinions of Nontestifying Expert ?2.18
        • c. ?Hypothetical Questions ?2.19
        • d. ?Tests and Experiments ?2.20
    • F. ?Improper Bases for Expert Opinion ?2.21
      • 1. ?Trial Court May Require Examination of Basis for Expert's Opinion ?2.22
      • 2. ?Trial Court May Exclude Opinion Based on Improper Matter ?2.23
    • G. ?Additional Considerations
      • 1. ?Expert Testimony on Ultimate Issue ?2.24
      • 2. ?Effect of Expert Testimony in Criminal Cases ?2.25
    • H. ?Court-Appointed Experts
      • 1. ?On Court's Motion or Motion of Any Party ?2.26
      • 2. ?Court-Appointed Scientific Experts ?2.27
  • IV. ?PRESENTING EXPERT TESTIMONY
    • A. ?Using Three-Part Approach: Qualifying the Expert, Asking Forensic Questions, Asking Hypothetical Questions ?2.28
    • B. ?Qualifying the Expert Witness
      • 1. ?Procedure During Trial ?2.29
      • 2. ?Specific Area of Questioning
        • a. ?Teaching Experience ?2.30
        • b. ?Publications ?2.31
        • c. ?Awards and Honors ?2.32
        • d. ?Professional Affiliations ?2.33
        • e. ?Previous Experience as Expert Witness ?2.34
      • 3. ?Suggested Questions for Qualifying Expert ?2.35
    • C. ?Asking Forensic Questions
      • 1. ?Presenting Expert's Opinion and Basis for Opinion ?2.36
      • 2. ?Suggested Direct Examination Questions ?2.37
    • D. ?Asking Hypothetical Questions
      • 1. ?Importance of Hypotheticals ?2.38
      • 2. ?Limitation of Five Hypothetical Questions ?2.39
      • 3. ?Rationale for Asking Hypothetical Questions ?2.40
      • 4. ?Checklist: Suggested Approach to Posing Hypothetical Questions ?2.41
    • E. ?Redirect and Rebuttal ?2.42
  • V. ?CHALLENGING EXPERT TESTIMONY ON SCIENTIFIC EVIDENCE
    • A. ?Use of In Limine Motion to Challenge Expert Testimony
      • 1. ?When Motion Is Appropriate ?2.43
      • 2. ?Challenging Existence of Preliminary Fact
        • a. ?Authority to Challenge Preliminary Fact ?2.44
        • b. ?Procedure for Motion to Challenge Preliminary Fact ?2.45
        • c. ?Challenging Expert's Qualifications ?2.46
        • d. ?Challenging Subject Matter of Expert's Opinion ?2.47
        • e. ?Challenging Basis of Expert's Opinion; Limiting Hearsay on Direct Examination
          • (1) ?Challenging Basis of Opinion ?2.48
          • (2) ?Limiting Hearsay on Direct Examination ?2.49
    • B. ?Courtroom Strategies for Cross-Examination
      • 1. ?ABCs of Cross-Examination: Corroborate Case, Attack Opinion, Interweave Bias ?2.50
      • 2. ?Corroborate Case ?2.51
        • a. ?Restate Favorable Evidence ?2.52
        • b. ?Reinforce Lay Witness's Testimony ?2.53
        • c. ?Reinforce Own Expert's Opinions or Isolate Differences ?2.54
      • 3. ?Attack Opposing Opinion ?2.55
        • a. ?Move to Prevent Testimony ?2.56
        • b. ?Attack Expert's Qualifications on Voir Dire ?2.57
        • c. ?Expose Limits in Expert's Knowledge of Facts ?2.58
        • d. ?Show Opinion Is Based on Invalid Factual Assumptions ?2.59
          • (1) ?Opinion Is Based on Insufficient Information ?2.60
          • (2) ?Opinion Is Based on Unreliable Information ?2.61
            • (a) ?Opinion Is Based on Sources From Only One Side ?2.62
            • (b) ?Opinion Was Preformed ?2.63
            • (c) ?Opinion Ratifies Opponent's Version of Facts ?2.64
            • (d) ?Opinion Is Based on Disputed Facts ?2.65
        • e. ?Change Hypothetical Circumstances ?2.66
        • f. ?Show Minimal Basis for Opinion ?2.67
          • (1) ?Too Little Time Arriving at Opinion ?2.68
          • (2) ?Speculating ?2.69
          • (3) ?Insufficient Testing ?2.70
          • (4) ?Completely Subjective and Lacking Scientific Precision ?2.71
          • (5) ?Lacking Firsthand Knowledge ?2.72
          • (6) ?Relying on Controlled Conditions ?2.73
        • g. ?Establish Conflict Among Experts ?2.74
      • 4. ?Interweave Bias ?2.75
        • a. ?Expert Is Advocate for Opposing Side and Not Neutral ?2.76
        • b. ?Expert's Compensation Reveals Bias ?2.77
        • c. ?Expert Wants to Be Retained in Future ?2.78
        • d. ?Expert Did Not Give Opposition Copy of Report ?2.79
        • e. ?Expert Refused to Consult With Opposition ?2.80
        • f. ?Expert Advertises as Professional Witness ?2.81
        • g. ?Expert's Practice Falls Below Profession's Standards ?2.82
        • h. ?Expert May Have Given Speeches to Particular Side's Bar Associations or Conferences ?2.83
        • i. ?Expert Unhesitatingly Accepts Opposing Side's Statements and Assumptions and Dismisses Contrary Views ?2.84
    • C. ?Fine-Tuning Cross-Examination
      • 1. ?Structure Questions to Control Examination ?2.85
        • a. ?Ask Closed Questions ?2.86
        • b. ?Keep Questions Short ?2.87
        • c. ?Avoid Conjunctions and Compound Questions ?2.88
        • d. ?Minimize Conditions: Ask Narrow Questions ?2.89
        • e. ?Exception: Use Open-Ended Questions to Show Hostility, Overstatement, Bias ?2.90
      • 2. ?Use Common Sense ?2.91
      • 3. ?Focus on Closing Argument ?2.92
      • 4. ?Impeach (Lock, Load, and Fire) ?2.93
        • a. ?Safety Check: Double-Check Prior Statement and Inconsistency ?2.94
        • b. ?"Lock" Present Testimony ?2.95
        • c. ?"Load" Prior Statement ?2.96
        • d. ?"Fire" Prior Statement ?2.97
      • 5. ?Refer to Treatises or Other Publications in Certain Cases
        • a. ?When to Question Whether Expert Relied on, Referred to, or Considered Publications ?2.98
        • b. ?Permissible Circumstances
          • (1) ?On Cross-Examination ?2.99
          • (2) ?When Publication Informed Opinion ?2.100
          • (3) ?When Publication Is Considered Reliable Authority ?2.101
        • c. ?When to Read Into Evidence Conflicting Portions of Publication ?2.102
  • VI. ?PROPONENT'S DEFENSE OF EXPERT TESTIMONY
    • A. ?Proponent's In Limine Motions and Responses in Support of Expert
      • 1. ?Motion to Prevent Cross-Examination Attacking General Acceptance ?2.103
      • 2. ?Motion to Prevent Inadmissible Hearsay on Cross-Examination ?2.104
      • 3. ?Response to Opponent's In Limine Motions ?2.105
    • B. ?Proponent's Redirect and Rebuttal
      • 1. ?Choosing Redirect or Rebuttal With Proponent's Expert ?2.106
      • 2. ?Redirecting or Rebutting Opponent's Expert ?2.107

3

Evidence of Alcohol and Marijuana Intoxication

Hudson Bair

Jeffery L. Zehnder

  • I. ?PURPOSE OF CHAPTER ?3.1
  • II. ?PHYSIOLOGICAL ASPECTS OF ALCOHOL INGESTION ASSOCIATED WITH INTOXICATION
    • A. ?Physiological Aspects of Alcohol Ingestion ?3.2
    • B. ?Absorption of Alcohol ?3.3
    • C. ?Elimination of Alcohol From Bloodstream
      • 1. ?Changes as Liver Metabolizes Alcohol ?3.4
      • 2. ?Blood Alcohol Concentration (BAC) Decreases When Alcohol Level Reaches Equilibrium ?3.5
  • III. ?DISCOVERY STATUTE AND COMMONLY EXPLORED ISSUES
    • A. ?Discovery ?3.6
    • B. ?Issues Most Commonly Explored ?3.7
    • C. ?Laying a Foundation to Enter Chemical Tests Into Evidence ?3.8
    • D. ?Effect of Implied Consent on Chemical Testing ?3.9
    • E. ?Licensing the Testing Laboratory ?3.10
  • IV. ?FIELD SOBRIETY TESTING FOR ALCOHOL INTOXICATION
    • A. ?Development of Field Sobriety Test (FST) ?3.11
    • B. ?Development of National Highway Traffic Safety Administration (NHTSA) Standards
      • 1. ?History and Correlation Studies ?3.12
      • 2. ?Types of NHTSA Tests
        • a. ?Horizontal Gaze Nystagmus (HGN) ?3.13
        • b. ?One-Leg Stand (OLS) ?3.14
        • c. ?Walk and Turn (WAT) ?3.15
    • C. ?California and FSTs ?3.16
      • 1. ?Role of California Highway Patrol (CHP) in DUI Investigations ?3.17
      • 2. ?Citation to NHTSA Tests and Standards in Training Materials ?3.18
      • 3. ?Other Roadside Sobriety Tests ?3.19
    • D. ?Admitting FST Evidence
      • 1. ?FSTs Used in Nearly Every Investigation ?3.20
      • 2. ?HGN Evidence ?3.21
    • E. ?Challenging FST Evidence ?3.22
  • V. ?BREATH TESTING
    • A. ?Underlying Theory ?3.23
    • B. ?Breath Testing Technologies ?3.24
      • 1. ?Electrochemical Testing ?3.25
      • 2. ?Infrared (IR) Spectrophotometry ?3.26
    • C. ?Importance of Meeting Federal Department of Transportation (DOT) Standards ?3.27
    • D. ?Common Preliminary Alcohol Screening (PAS) Devices ?3.28
    • E. ?Slope Detector for Mouth Alcohol ?3.29
    • F. ?Breath Testing Equipment Used for Evidentiary Purposes ?3.30
    • G. ?Discovery in Breath Test Cases ?3.31
    • H. ?Special Rules for Admissibility of PAS Breath Testing Devices ?3.32
    • I. ?Challenging Breath Test Evidence
      • 1. ?Importance of Breath Sample Quality in General ?3.33
      • 2. ?Effect of Temperature on Sample ?3.34
      • 3. ?Contamination of Breath Sample by Mouth Alcohol ?3.35
      • 4. ?Violation of 15-Minute Rule ?3.36
      • 5. ?Error in or Lack of Slope Detector ?3.37
      • 6. ?Gastroesophageal Reflux Disease (GERD) ?3.38
      • 7. ?Metabolic and Dietary Defenses ?3.39
      • 8. ?Margin of Error ?3.40
      • 9. ?Assumed Partition Ratio of Breath to Blood Alcohol ?3.41
  • VI. ?BLOOD TESTING
    • A. ?Use of Blood Testing in Relation to Other Test Methods ?3.42
    • B. ?Scientific Basis of Blood Testing
      • 1. ?Gas Chromatography as Underlying Scientific Basis ?3.43
      • 2. ?Use of Serum or Plasma Versus Whole Blood to Measure Alcohol Concentration ?3.44
    • C. ?Discovery in Blood Test Cases ?3.45
    • D. ?Challenging Blood Test Evidence
      • 1. ?Three-Prong Analysis ?3.46
      • 2. ?Effect of Rising or Falling Blood Alcohol Levels Over Time ?3.47
      • 3. ?Stability of Ethanol in Whole Blood Samples
        • a. ?Oxidation ?3.48
        • b. ?Fluoride Preservative and Microbial Production of Alcohol ?3.49
      • 4. ?Arterial Versus Venous Blood Measurement During Absorptive Phase ?3.50
      • 5. ?Special Factors Causing Variations in Test Results (Margin of Error) ?3.51
      • 6. ?Hearsay ?3.52
  • VII. ?URINE TESTING
    • A. ?Test Rarely Used in California ?3.53
    • B. ?Challenging Urine Test Evidence ?3.54
  • VIII. ?SAMPLE QUESTIONS
    • A. ?Questions for Proponent of Evidence
      • 1. ?Introducing Field Sobriety Tests (FSTs) ?3.55
      • 2. ?Qualifying Expert ?3.56
      • 3. ?Eliciting Expert Opinion ?3.57
      • 4. ?Breath Test-Related Questions ?3.58
      • 5. ?Blood Test-Related Questions ?3.59
    • B. ?Questions for Opponent of Evidence ?3.60
      • 1. ?Regarding Expert's Opinion ?3.61
      • 2. ?Relating to FSTs ?3.62
  • IX. ?MARIJUANA INTOXICATION ?3.63
    • A. ?Physiological Aspects of Marijuana Intoxication ?3.64
    • B. ?Development of Field Sobriety Tests (FSTs) for Marijuana Impairment ?3.65
    • C. ?Drug Evaluation and Classification (DEC) Protocol ?3.66
    • D. ?Standardized Field Sobriety Tests (sFSTs) in Marijuana Intoxication Cases ?3.67
    • E. ?Drug Recognition Expert Testimony in Marijuana Intoxication Cases ?3.68
    • F. ?Correlation of Marijuana Ingestion to Resulting Blood and Urine Levels ?3.69

4

Forensic Toxicology and the Use of Drug Evidence

Lisa C. DewBerry

Kali S. Grech

Judith L. Stewart

David J. Cohen

  • I. ?ROLE OF EXPERT IN DRUG CASES
    • A. ?Use of Expert Witnesses in Drug Cases ?4.1
    • B. ?Types of Experts
      • 1. ?Forensic Toxicologists ?4.2
      • 2. ?Law Enforcement Officers
        • a. ?Probable Cause to Arrest ?4.3
        • b. ?Culpability in Conspiracy Case ?4.4
        • c. ?Drug Recognition ?4.5
        • d. ?Fortified Drug House ?4.6
        • e. ?Possession, Use, and Trafficking
          • (1) ?Proper Opinion Testimony ?4.7
          • (2) ?Improper Opinion Testimony ?4.8
      • 3. ?Drug Counselors ?4.9
      • 4. ?Admitted Experts ?4.10
      • 5. ?Controlled Substances Experts ?4.11
  • II. ?Admissibility of Scientific Evidence Regarding Drugs
    • A. ?Novel Scientific Technique, Procedure, or Device Must Meet Kelly Rule ?4.12
      • 1. ?Generally Accepted Tests Not Subject to Kelly Rule ?4.13
      • 2. ?Kelly Rule Not Applicable to Objectively Verifiable Symptoms ?4.14
    • B. ?Sargon Decision ?4.15
  • III. ?FORENSIC TOXICOLOGIST'S PROCEDURES AND METHODOLOGY
    • A. ?Role of Forensic Toxicologist ?4.16
    • B. ?Resources ?4.17
    • C. ?Metabolism and Drug Characteristics ?4.18
    • D. ?Specific Drugs Subject to Testing
      • 1. ?Opiates ?4.19
      • 2. ?Cocaine ?4.20
      • 3. ?Methamphetamine ?4.21
      • 4. ?Bath Salts (Synthetic Cathinones) ?4.21A
      • 5. ?PCP ?4.22
      • 6. ?Marijuana (THC); Hashish ?4.23
      • 7. ?Spice ?4.23A
      • 8. ?Alcohol ?4.24
      • 9. ?Prescription and Over-the-Counter Drugs ?4.25
    • E. ?Samples for Testing
      • 1. ?Utility of Sample Types ?4.26
      • 2. ?Timing of Sample Collection ?4.27
      • 3. ?Preparation of Samples for Testing ?4.28
      • 4. ?Treatment of Sample Types
        • a. ?Blood ?4.29
          • (1) ?Personnel ?4.30
          • (2) ?Tubes for Collection ?4.31
          • (3) ?Labeling of Tubes and Envelopes or Containers ?4.32
        • b. ?Urine ?4.33
        • c. ?Body Tissue ?4.34
        • d. ?Hair ?4.35
        • e. ?Oral Fluid ?4.36
        • f. ?Solid Dose ?4.37
        • g. ?Breath ?4.38
    • F. ?Screening and Confirmation
      • 1. ?Two Tests; Two-Step Protocol ?4.39
      • 2. ?Screening Tests
        • a. ?Types ?4.40
        • b. ?Directed Analysis ?4.41
        • c. ?Color Tests ?4.42
        • d. ?Broad Spectrum Screens
          • (1) ?Thin Layer Chromatography (TLC) ?4.43
          • (2) ?Immunoassay ?4.44
      • 3. ?Confirmation Tests
        • a. ?Purpose of Confirmation ?4.45
        • b. ?Chromatography; Chromatographic Process ?4.46
          • (1) ?Gas Chromatography (GC) ?4.47
          • (2) ?High-Performance Liquid Chromatography (HPLC) ?4.48
          • (3) ?Mass Spectrometry (MS) ?4.49
          • (4) ?Combining Liquid Chromatography and Mass Spectrometry (LC-MS; LC-MS/MS) ?4.49A
  • IV. ?ADMITTING AND CHALLENGING DRUG EVIDENCE
    • A. ?Chemical Testing ?4.50
    • B. ?Usable Quantity ?4.51
    • C. ?Manufacturing ?4.52
    • D. ?Laboratory Reports ?4.53

5

DNA Evidence

Hon. Mark E. Windham

  • I. ?SCIENTIFIC ANALYSIS OF DNA EVIDENCE AS MEANS OF IDENTIFICATION
    • A. ?Importance of Familiarity With DNA Testing ?5.1
    • B. ?Forensic DNA Analysis Defined ?5.2
    • C. ?DNA Terminology and Definitions
      • 1. ?Double Helix; Base Pairs ?5.3
      • 2. ?Loci; Polymorphic; Allele; Junk DNA ?5.4
      • 3. ?Heterozygous; Homozygous; Genotype; DNA Profile ?5.5
      • 4. ?California's Offender Database; National Combined DNA Index System (CODIS) ?5.6
      • 5. ?RFLP ?5.7
      • 6. ?PCR-STR ?5.8
      • 7. ?Product Rule ?5.9
    • D. ?Theoretical Basis for DNA Testing ?5.10
    • E. ?Collection of DNA Evidence
      • 1. ?Sources of DNA Evidence ?5.11
      • 2. ?Evidence Collection ?5.12
      • 3. ?Reference Samples ?5.13
  • II. ?DNA PROCESSING: DESCRIPTION OF DNA TESTING METHODS AND TECHNIQUES
    • A. ?Current Standard: Short Tandem Repeat (STR) Loci Testing
      • 1. ?Introduction to STR Testing ?5.14
      • 2. ?Theoretical Basis of STR Testing ?5.15
      • 3. ?Laboratory Application of STR Testing Method
        • a. ?Use of Genetic Analyzer Device and Related Software ?5.16
          • (1) ?Step 1: Extraction and Amplification ?5.17
          • (2) ?Step 2: Dye and Insertion Into Analyzer ?5.18
          • (3) ?Step 3: Electrophoresis ?5.19
          • (4) ?Step 4: Sizing of DNA Fragments ?5.20
          • (5) ?Step 5: Determination and Comparison of Profiles ?5.21
        • b. ?Use of Other STR Testing Devices ?5.22
      • 4. ?Other Laboratory Testing Methods: Y-STR and Mitochondrial DNA ?5.23
      • 5. ?Emerging Technologies ?5.24
    • B. ?Earlier DNA Testing Methods and Techniques
      • 1. ?Restriction Fragment Length Polymorphism (RFLP) ?5.25
      • 2. ?Polymerase Chain Reaction (PCR) Amplification ?5.26
      • 3. ?Reverse Dot Blot Typing ?5.27
  • III. ?DETERMINING MATCH; STATISTICAL PROBABILITY
    • A. ?Significance of Match; Potential Problems ?5.28
      • 1. ?Spurious Results and Mixed Samples ?5.29
      • 2. ?Partial Match ?5.30
      • 3. ?Anomalous Data Arising From Artifacts ?5.31
    • B. ?Statistical Probability: Potential Problems
      • 1. ?Population Statistics: Product Rule ?5.32
      • 2. ?Cold-Hit Cases
        • a. ?Database Search or Trawl ?5.33
        • b. ?Statistical Issues
          • (1) ?Application of Kelly to Product Rule ?5.34
          • (2) ?Database Ascertainment Bias ?5.35
          • (3) ?Reducing Coincidental Match ?5.36
        • c. ?Statute of Limitations, Speedy Trial, Ex Post Facto, Search and Seizure ?5.37
  • IV. ?DEVELOPING CASE STRATEGY
    • A. ?Proponent's Strategy
      • 1. ?Preparing to Present Evidence ?5.38
      • 2. ?Admission of Expert Testimony Under Evid C §801 ?5.39
    • B. ?Opponent's Strategy
      • 1. ?Determining Level of Attack ?5.40
      • 2. ?Laboratory Reports and Confrontation Clause Challenges ?5.41
      • 3. ?Challenging Proponent's Expert ?5.42
      • 4. ?Checklist: Strategy for Attacking DNA Evidence ?5.43
  • V. ?PRETRIAL AND TRIAL ISSUES
    • A. ?Challenging DNA Evidence at Preliminary Hearing ?5.44
    • B. ?Kelly Rule
      • 1. ?Appointment of Expert for Kelly Hearing ?5.45
      • 2. ?Kelly's Three-Prong Test ?5.46
      • 3. ?Testing Methods ?5.47
      • 4. ?Population Statistics Issues ?5.48
      • 5. ?Third-Prong Kelly Challenges ?5.49
      • 6. ?Testing Kits ?5.50
      • 7. ?Challenges Based on Federal Standards ?5.51
        • a. ?Defining "Scientific Community" ?5.52
        • b. ?Changes Affecting General Acceptance ?5.53
    • C. ?Discovery in DNA Cases
      • 1. ?Criminal Discovery Rules ?5.54
      • 2. ?Discovery Request for Party Opposing DNA Evidence ?5.55
      • 3. ?Post-Complaint Sampling of Defendant; Observation of Testing ?5.56
      • 4. ?Search of Genetic Profile Database to Show Third Party Culpability ?5.57
      • 5. ?Discovery From Third Parties by Subpoena Duces Tecum ?5.58
      • 6. ?Discovery Obligations of Defense ?5.59
    • D. ?Responsibilities of Defense Counsel
      • 1. ?Due Diligence ?5.60
      • 2. ?Adequate Time for Preparation ?5.61
      • 3. ?Appointment of Opposing Expert ?5.62
      • 4. ?Independent DNA Testing ?5.63
    • E. ?Jury Instructions
      • 1. ?Proponent of DNA Evidence ?5.64
      • 2. ?Opponent of DNA Evidence ?5.65
  • VI. ?SPECIFIC CHALLENGES TO DNA EVIDENCE
    • A. ?Chain of Custody ?5.66
    • B. ?Laboratory Mistakes and Limitations; Fraud ?5.67
      • 1. ?Contamination ?5.68
      • 2. ?Innocent Transfer From One Surface to Another ?5.69
      • 3. ?Proficiency Test Errors ?5.70
      • 4. ?Variance From Standards ?5.71
      • 5. ?Fraud and Abuse ?5.72
      • 6. ?Incorrect Interpretation ?5.73
      • 7. ?Wrong or Insufficient Evidence Tested; Wrong Test Performed ?5.74
      • 8. ?Contradiction With Conventional Serology ?5.75
      • 9. ?Coincidental Matches ?5.76
      • 10. ?Nature and Timing of DNA Deposit ?5.77
    • C. ?Errors in Statistical Data
      • 1. ?Proponent's Approach to Statistical Data ?5.78
      • 2. ?Population Statistics ?5.79
      • 3. ?Error Rate of Statistics ?5.80
    • D. ?Planted Evidence ?5.81
    • E. ?Destruction of Evidence ?5.82
    • F. ?Fourth Amendment Challenge: Surreptitious Collection ?5.83
    • G. ?Familial DNA Searches (FS) ?5.84
  • VII. ?GUIDELINES FOR QUESTIONING WITNESSES
    • A. ?Proponent's DNA Expert
      • 1. ?Direct Examination of Proponent's Expert ?5.85
      • 2. ?Cross-Examination of Proponent's Expert ?5.86
    • B. ?Opponent's DNA Expert
      • 1. ?Direct Examination of Opponent's Expert ?5.87
      • 2. ?Cross-Examination of Opponent's Expert ?5.88
  • VIII. ?POSTCONVICTION DISCOVERY AND TESTING
    • A. ?Postconviction Testing by Defense ?5.89
    • B. ?Postconviction Database Sampling by Prosecution
      • 1. ?Mandatory Collection of DNA Samples ?5.90
      • 2. ?Fourth Amendment Challenge to Sampling ?5.91
      • 3. ?Mistaken Inclusion in Database ?5.92
      • 4. ?Expungement of Sample From Database ?5.93

6

Origin and Cause of Fire

Ulises Castellon, CPCU

Geoff Hazard, MS, CFI

John White, PE, CFI

Douglas K. Wood, Esq.

  • I. ?ESTABLISHING PROOF FACTORS
    • A. ?Application of National Fire Protection Association Standards (NFPA 921) to Fire Investigations
      • 1. ?NFPA 921: Purpose ?6.1
      • 2. ?NFPA 921: Development ?6.2
      • 3. ?NFPA 921: Methodology ?6.3
    • B. ?Assessing Proof Package ?6.4
      • 1. ?Proof Factors Relating to Expert's Work and Opinions as to Fire Cause Determination (All Fire Causes) ?6.5
      • 2. ?Proof Factors Relating to Incendiary Fire Determination: The Connective Evidence (Who Is Responsible?) ?6.6
  • II. ?EXPERT'S ROLE AND METHODOLOGY
    • A. ?Expert's Role and Purpose ?6.7
    • B. ?Expert's Methods in Determining Origin and Cause of Fire
      • 1. ?Understanding Relationship Between Origin and Cause ?6.8
      • 2. ?Determining Origin of Fire
        • a. ?Distinguishing "Area" and "Point" of Origin
          • (1) ?Area of Origin ?6.9
          • (2) ?Point of Origin ?6.10
        • b. ?Examining Fire Scene ?6.11
          • (1) ?Initial Fire Scene Assessment ?6.12
            • (a) ?Resources ?6.13
            • (b) ?Surrounding Areas ?6.14
            • (c) ?Exterior Examination ?6.15
            • (d) ?Interior Examination ?6.16
          • (2) ?Management of Large and Complex Losses ?6.16A
          • (3) ?Fire Scene Excavation and Reconstruction ?6.17
          • (4) ?Recognition and Evaluation of Fire Patterns ?6.18
          • (5) ?Collection of Additional Data ?6.19
      • 3. ?Determining Cause of Fire
        • a. ?How Fire Starts ?6.20
        • b. ?Steps in Cause Determination ?6.21
          • (1) ?Identifying and Examining Possible Ignition Sources ?6.22
          • (2) ?Determining Circumstances That Led to Contact Between Ignition Source and Fuel ?6.23
          • (3) ?Using Scientific Method to Determine Cause of Fire ?6.24
      • 4. ?Using Relevant Scientific Information
        • a. ?Referring to Textbook and Research Data ?6.25
        • b. ?Conducting Analyses; Modeling ?6.26
          • (1) ?Visual Analysis of Fire Scene ?6.27
          • (2) ?Thermal Analysis of Fire Scene ?6.28
          • (3) ?Analysis of Composition of Materials ?6.29
          • (4) ?Performance and Failure Analysis ?6.30
          • (5) ?Fire Modeling; Graphics Modeling ?6.31
  • III. ?FIRE CAUSE AND RESPONSIBILITY ?6.32
    • A. ?Accidental Fires
      • 1. ?Interested Parties ?6.33
      • 2. ?Notification to Potentially Interested Parties ?6.34
      • 3. ?Evidence Documentation ?6.35
      • 4. ?Additional Evidence Inspections ?6.36
    • B. ?Incendiary Fires ?6.37
      • 1. ?Evidence Supporting Incendiary Cause of Fire ?6.38
      • 2. ?Physical Indicators of Incendiary Fire ?6.39
        • a. ?Multiple Fires ?6.40
        • b. ?Spreading Fire Using Fuels or Liquids (Trailers) ?6.41
        • c. ?Limited Fuel Load in Area of Origin ?6.42
        • d. ?Unexpected Ignition Sources ?6.43
        • e. ?Unusual Fuel Load or Configuration ?6.44
        • f. ?Burn Injuries ?6.45
        • g. ?Appliances to Mask Cause of Fire ?6.46
      • 3. ?Indicators of Prior Knowledge of Fire ?6.47
        • a. ?Contents Removed or Replaced Before Fire Started ?6.48
        • b. ?Open Windows and Exterior Doors ?6.49
      • 4. ?Other Evidentiary Factors ?6.50
      • 5. ?Connective Evidence Showing Responsibility for Fire ?6.51
  • IV. ?PRETRIAL CONSIDERATIONS
    • A. ?Checklist: Discovery ?6.52
    • B. ?Application of Kelly Rule ?6.53
      • 1. ?First Prong: Expert's Methods Are Generally Accepted as Reliable ?6.54
      • 2. ?Second Prong: Expert Is Sufficiently Qualified to Proffer This Opinion ?6.55
      • 3. ?Third Prong: Expert Correctly Utilized Generally Accepted Principles and Procedures ?6.56
  • V. ?DETERMINING AND ESTABLISHING EXPERT'S QUALIFICATIONS
    • A. ?Evaluating Expert's Qualifications ?6.57
    • B. ?Qualifications
      • 1. ?Education and Training ?6.58
      • 2. ?Certification ?6.59
      • 3. ?Fire Experience ?6.60
        • a. ?Fire Investigation Experience ?6.61
        • b. ?Fire Science Experience ?6.62
      • 4. ?Testifying Experience ?6.63
      • 5. ?Teaching Experience ?6.64
      • 6. ?Professional Publications ?6.65
      • 7. ?Membership in Professional Organizations ?6.66
      • 8. ?Written Communication Skills: Report Writing ?6.67
        • a. ?Fire Scene Investigation and Documentation Skills; Analytical Skills ?6.68
        • b. ?Witness Interviewing Skills ?6.69
        • c. ?Evidence Collection Skills ?6.70
        • d. ?Photographic and Other Demonstrative Evidence Skills ?6.71
      • 9. ?Oral Communication Skills ?6.72
      • 10. ?Knowledge of Insurance Claims Process ?6.73
      • 11. ?Integrity ?6.74
    • C. ?Sample Questions: Expert's Background and Qualifications ?6.75
      • 1. ?Questions on Professional Qualifications ?6.76
      • 2. ?Questions on Professional Education and Training ?6.77
      • 3. ?Questions on Professional Memberships ?6.78
      • 4. ?Questions on Fire Science and Dynamics ?6.79
      • 5. ?Questions on Principles of Fire Investigation ?6.80
      • 6. ?Questions on Explosion Dynamics ?6.81
      • 7. ?Questions on Principles of Explosion Investigation ?6.82
  • VI. ?ELICITING EXPERT'S OPINION
    • A. ?Addressing Technical Aspects of Fire Expert's Methodology ?6.83
    • B. ?Questions on Fire Origin and Cause ?6.84
      • 1. ?Questions on Methodology ?6.85
      • 2. ?Questions on Gathered Data
        • a. ?Fire Scene Response and Suppression Activities ?6.86
        • b. ?Prior Investigative Activities ?6.87
        • c. ?Information and Documents Regarding the Building, Vehicle, Vessel, Its Contents, and Its Occupants ?6.88
        • d. ?Expert's Scene Processing and Investigation Activities ?6.89
        • e. ?Documents Reviewed or Created ?6.90
      • 3. ?Questions on Expert's Conclusions
        • a. ?Origin of Fire ?6.91
        • b. ?Cause of Fire ?6.92
        • c. ?Expert's Bases for Conclusions Regarding Origin and Cause ?6.93
        • d. ?Expert's Conclusions Regarding Fire Spread ?6.94
        • e. ?Reconciliation With Other Evidence and Alternatives ?6.95

7

Digital Forensics Investigations in Corporate Environments

David Fermino

Lou Feuchtbaum

John Janes

Mark E. Michels, Deloitte Advisory

Margaret L. Wu

  • I. ?WHAT IS DIGITAL FORENSICS? ?7.1
  • II. ?CLASSIFICATION AND FUNCTIONS OF DIGITAL INVESTIGATOR
    • A. ?Classification as Digital Investigator ?7.2
    • B. ?Functions of Digital Investigators
      • 1. ?Support Investigation ?7.3
      • 2. ?Provide Understanding of Environment Being Investigated ?7.4
        • a. ?Corporate Data Systems ?7.5
          • (1) ?Anomaly Detection ?7.6
          • (2) ?Proliferation of Systems ?7.7
        • b. ?Corporate Office Systems and Related Electronic Data ?7.8
          • (1) ?Word-Processed Documents ?7.9
            • (a) ?Deleted or Encrypted Documents; Revision Tracking ?7.9A
            • (b) ?Software Versions ?7.10
          • (2) ?E-mail ?7.11
            • (a) ?Corporate E-mail Systems ?7.12
            • (b) ?Other E-mail Systems ?7.13
          • (3) ?Data on Mobile Devices ?7.14
          • (4) ?Graphical Images and Other User-Generated Files ?7.15
          • (5) ?Centralized Databases and File Shares ?7.16
          • (6) ?Corporate Network Data ?7.16A
      • 3. ?Provide Insight Into Available Technology Tools
        • a. ?Specialized Software Applications ?7.17
        • b. ?Importance of Peer Review ?7.18
  • III. ?TASKS OF DIGITAL INVESTIGATORS ?7.19
    • A. ?Preservation of Evidence ?7.20
      • 1. ?Non-Networked Computers ?7.21
      • 2. ?Networked Computers ?7.22
      • 3. ?Consideration of Need for Warrant ?7.23
    • B. ?Acquisition of Evidence ?7.24
      • 1. ?Disk Drives
        • a. ?Computer Disk Drives ?7.25
        • b. ?Tools for Decrypting or Restoring Corrupted Files ?7.25A
        • c. ?Disk Drives on Network E-mail Servers and Data Storage Arrays
          • (1) ?Network E-mail Servers ?7.26
          • (2) ?Network Data Storage Arrays ?7.27
      • 2. ?Magnetic Tapes and Other Network Backup Systems ?7.28
    • C. ?Restoration of Lost, Deleted, Altered, or Corrupted Data and Documents ?7.29
    • D. ?Anomaly Detection Using Data Analytics ?7.30
    • E. ?Generation of Reports ?7.31
  • IV. ?DISCOVERY
    • A. ?Discovery From Parties Involved in Case ?7.32
    • B. ?Discovery From Third Parties ?7.33
  • V. ?EXPERT TESTIMONY
    • A. ?Preparing and Qualifying Computer Forensics Expert
      • 1. ?Preparing Expert ?7.34
      • 2. ?Qualifying Expert ?7.35
    • B. ?Challenging Expert's Methodology ?7.36
  • VI. ?ADMITTING EVIDENCE
    • A. ?Computer Records as "Writings" ?7.37
    • B. ?Authentication ?7.38
      • 1. ?Computer Printout Presumption Under Evid C §1552(a) ?7.39
      • 2. ?Other Authentication Issues
        • a. ?Computer-Generated Data ?7.40
        • b. ?User-Generated Data ?7.41
        • c. ?No Assumption of Unreliability ?7.42
    • C. ?Hearsay Exceptions
      • 1. ?Business Records Exception ?7.43
      • 2. ?Official Records and Other Exceptions ?7.44
    • D. ?Nonhearsay Use of Evidence
      • 1. ?Use of Records to Show Computer's Operations ?7.45
      • 2. ?Use of Records to Show Certain Operative Facts ?7.46
  • VII. ?CHALLENGING EVIDENCE
    • A. ?Challenges Based on Evidence Code
      • 1. ?Authentication and Hearsay Violations ?7.47
      • 2. ?Violation of Evidentiary Privileges
        • a. ?Potentially Privileged Documents Stored in Computers ?7.48
        • b. ?Mingling of Privileged Materials and Other Data ?7.49
    • B. ?Challenge Based on Privacy Rights or Search and Seizure Issues
      • 1. ?Privacy Rights
        • a. ?Growing Body of Law ?7.50
        • b. ?Reasonable Expectation of Privacy in Computer Use ?7.51
        • c. ?Privacy Protection Act ?7.52
      • 2. ?Search and Seizure Issues
        • a. ?Public and Private Searches ?7.53
        • b. ?Need for Search Warrant; Exceptions ?7.54
        • c. ?Warrant's Specificity and Breadth ?7.55
        • d. ?Scope of Search Under Warrant ?7.56
        • e. ?Removing Computers Offsite for Further Searches ?7.57
  • VIII. ?SAMPLE QUESTIONS
    • A. ?Admitting Evidence
      • 1. ?Admitting Computer Printout ?7.58
      • 2. ?Admitting Bank Record ?7.59
    • B. ?Opposing Admission of Evidence
      • 1. ?Challenging Admission of Computer Printout ?7.60
      • 2. ?Challenging Admission of Bank Record ?7.61

8

Forensic Accounting

Kerry L. Francis, Deloitte FAS, LLP

Ellen Lin, Deloitte FAS, LLP

Danielle Van Wert

Margaret L. Wu

  • I. ?FORENSIC ACCOUNTANT'S ROLE AND INVESTIGATION PROCEDURES
    • A. ?Forensic Accounting Defined ?8.1
    • B. ?Forensic Accountant's Role in Criminal Prosecution ?8.2
    • C. ?Forensic Accounting Investigation Procedures
      • 1. ?Determining Scope of Investigation ?8.3
      • 2. ?Collecting Evidence ?8.4
      • 3. ?Evaluating Evidence ?8.5
      • 4. ?Analyzing Financial Records ?8.6
      • 5. ?Conducting Interviews ?8.7
    • D. ?Types of Evidence Used by Forensic Accountants ?8.8
      • 1. ?Financial and Accounting Records
        • a. ?General Ledgers ?8.9
        • b. ?Trial Balance ?8.10
        • c. ?Subsidiary Ledgers ?8.11
        • d. ?Journal Entries ?8.12
        • e. ?Source Documents ?8.13
      • 2. ?Internal Memorandums ?8.14
      • 3. ?Electronic Messages ?8.15
      • 4. ?Third Party Records ?8.16
  • II. ?REPRESENTATIVE CRIMINAL CASES IN WHICH FORENSIC ACCOUNTANT MAY BE USED ?8.17
    • A. ?Asset Misappropriation ?8.18
      • 1. ?Cash Misappropriations ?8.19
        • a. ?Payroll Fraud ?8.20
        • b. ?Expense Reimbursement Fraud ?8.21
        • c. ?Purchasing and Vendor Fraud ?8.22
      • 2. ?Noncash Misappropriations
        • a. ?Inventory Theft ?8.23
          • (1) ?Evidence That May Be Relevant ?8.24
          • (2) ?Evaluation of Evidence ?8.25
        • b. ?Fixed Asset Theft ?8.26
    • B. ?Corruption ?8.27
    • C. ?Ponzi Schemes ?8.28
    • D. ?Fraudulent Financial Statements ?8.29
  • III. ?REPRESENTATIVE CIVIL CASES IN WHICH FORENSIC ACCOUNTANT MAY BE USED ?8.30
  • IV. ?DISCOVERY
    • A. ?Voluntary Production of Documents in Certain Cases ?8.31
    • B. ?Use of Formal Discovery Methods ?8.32
    • C. ?Types of Records to Discover ?8.33
      • 1. ?General Business Records ?8.34
      • 2. ?Financial and Accounting Records ?8.35
      • 3. ?Records Reflecting Assets ?8.36
      • 4. ?Records Reflecting Liabilities ?8.37
      • 5. ?Records Reflecting Revenues ?8.38
      • 6. ?Records Reflecting Costs and Expenses ?8.39
  • V. ?EVIDENCE ISSUES REGARDING ACCOUNTING RECORDS
    • A. ?Secondary Evidence Rule ?8.40
    • B. ?Authentication ?8.41
    • C. ?Hearsay ?8.42
  • VI. ?ADMITTING ACCOUNTING EXPERT TESTIMONY
    • A. ?Expert Accounting Testimony Routinely Admitted ?8.43
    • B. ?Selecting Forensic Accounting Expert ?8.44
    • C. ?Qualifying Expert ?8.45
    • D. ?Establishing Basis of Expert's Opinion ?8.46
    • E. ?Sample Questions for Proponent of Evidence
      • 1. ?Qualifying Forensic Accountant ?8.47
      • 2. ?Eliciting Forensic Accountant's Investigation and Basis for Opinion ?8.48
      • 3. ?Admitting Accounting Records ?8.49
  • VII. ?CHALLENGING ACCOUNTANT EXPERT TESTIMONY
    • A. ?Challenging Relevancy of Expert's Qualifications ?8.50
    • B. ?Challenging Basis of Expert's Opinion ?8.51
    • C. ?Sample Questions for Opponent of Evidence
      • 1. ?Challenging Qualifications ?8.52
      • 2. ?Challenging Investigation or Basis for Opinion ?8.53
      • 3. ?Challenging Accounting Records ?8.54

9

Global Positioning Systems (GPS), Cell Phones, and Other Tracking Devices

Elena Condes

Robert Aguero

  • I. ?PORTABLE TRACKING DEVICES
    • A. ?Introduction to Portable Tracking Devices ?9.1
    • B. ?Determining Location by GPS ?9.2
      • 1. ?How GPS Works ?9.3
      • 2. ?How Location Services Work ?9.4
  • II. ?TRACKING CELL PHONES ?9.5
    • A. ?Live Tracking ?9.6
    • B. ?Historical Tracking ?9.6A
      • 1. ?Call Detail Records (CDRs) ?9.6B
      • 2. ?Other Call Records ?9.6C
      • 3. ?Evaluating Call Records ?9.6D
        • a. ?Cell Tower Sectors ?9.6E
        • b. ?Time Zones ?9.6F
        • c. ?Range of Cell Towers and Sectors ?9.6G
        • d. ?Cell Site Precision ?9.6H
    • C. ?Tracking Wi-Fi Connections ?9.7
  • III. ?IN-DASH GPS TRACKING ?9.8
  • IV. ?LAW ENFORCEMENT USES
    • A. ?GPS Technology ?9.9
    • B. ?Cell Phone Data ?9.10
      • 1. ?Text Messages and Call Data ?9.11
      • 2. ?Location Data From Cell Tower Dumps ?9.12
  • V. ?CONSTITUTIONAL CHALLENGES ?9.13
    • A. ?Search and Seizure ?9.14
    • B. ?Expectation of Privacy
      • 1. ?Attaching GPS Device to Automobile ?9.15
      • 2. ?Searching Cell Phone Location Data ?9.16
      • 3. ?Searching Cell Phone Contents ?9.17
      • 4. ?Searching Other Text Messaging Devices ?9.18
      • 5. ?Searching Vehicle's Event Data Recorder or Sensing and Diagnostic Module ?9.19
  • VI. ?USE OF GPS OR OTHER TRACKING DATA IN COURT ?9.20
    • A. ?Discovery
      • 1. ?Discovery of GPS Data ?9.21
      • 2. ?Discovery of Other Cell Phone Data ?9.22
      • 3. ?Discovery of Cell Site Data ?9.23
    • B. ?Expert Testimony
      • 1. ?GPS ?9.24
      • 2. ?Cell Site Data ?9.25
      • 3. ?Sample Questions to Establish Reliability of Location Data
        • a. ?Basic Cell Site Questions ?9.25A
        • b. ?Questions When AT&T Is Carrier ?9.25B
        • c. ?Questions When Sprint Is Carrier ?9.25C
    • C. ?Introducing and Challenging GPS or Cell Location Data Evidence
      • 1. ?Evidentiary Issues ?9.26
        • a. ?Laying Foundation ?9.27
        • b. ?Hearsay ?9.28
        • c. ?Secondary Evidence Rule (Formerly Best Evidence Rule) ?9.29
      • 2. ?Kelly/Leahy Issues ?9.30
      • 3. ?Accuracy Issues
        • a. ?GPS ?9.31
        • b. ?Cell Site Data ?9.32

Selected Developments

October 2017 Update

Blood alcohol content testing regulations. The California Department of Public Health's Forensic Alcohol Review Committee submitted the long-promised revisions to Title 17 of the California Code of Regulations §§1215—1222.2, regulating the forensic alcohol laboratories and forensic alcohol analysts and providing guidelines for forensic alcohol content testing of those arrested for driving under the influence of alcohol. For information on those revised regulations, see chap 3.

National Fire Protection Association (NFPA) 921: Guide for Fire and Explosion Investigations (2017). The NFPA has developed more than 300 codes, standards, and guides, which have been published and disseminated to minimize the possibility and effects of fire. NFPA 921, which sets the standards for scientific-based investigation and analysis of fire as well as explosion incidents, was updated in 2017. The revised NFPA 921 standards have been updated throughout chapter 6.

Right to confront and cross-examine expert witnesses. A defense expert's testimony about a defendant's participation in a criminal street gang that is based on other officers' police reports, STEP notices given to the defendant, and field interview (FI) cards violated the Confrontation Clause. An expert, whether a gang expert or forensic evidence expert, cannot testify about specific details of hearsay evidence on which the expert relied in forming an opinion without that evidence being independently admissible. People v Sanchez (2016) 63 C4th 665. See §§2.18, 4.53, 5.41.

In a sexually violent predator trial, a forensic psychiatrist's repeated references to the defendant's hospital records, which had not been admitted independently, and to the expert's recitation of other inadmissible hearsay were prejudicial and violated the Confrontation Clause. People v Landau (2016) 246 CA4th 850. See §2.18.

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