Posts tagged evidence

Two days ago, the Connecticut Supreme Court released an advance opinion in State v. Griffin [pdf]. As the title of this post implies, the decision has to do with the admissibility of expert scientific testimony under Daubert and Frye and State v. Porter (CT case adopting Daubert).

There are two different tests to consider in this case:

1. The Grisso test &

2. The Porter standard of admissibility

Considering each (for background):

1. The Grisso test

A test developed by Dr. Thomas Grisso for

evaluating an individual’s competency in regard to a particular stage of trial proceedings involves identifying what tasks are involved
at such stage of the proceedings . . . and determining whether the individual possesses the competency to understand the issues and tasks related thereto. [The expert] testified that she evaluated the defendant to determine whether he possessed the competency to understand his Miranda rights.

[The expert] explained that her evaluation involved several methods: A clinical interview, [intelligence quotient (IQ)] testing, personality testing, testing for reading and spelling proficiency, testing for arithmetic ability and general achievement testing. In addition to testing the defendant to determine his ‘overall competency,’ [the expert] also tested the defendant with a ‘set of questions that had to do with the specific tasks in understanding the Miranda warning[s] and making a choice to waive [his] rights.’

‘‘[The expert] explained that those questions were part of a protocol developed by . . . Grisso, a forensic psychologist who has devoted his professional efforts to issues regarding ‘juvenile competency’ and who works with a research group that researches issues of competency. She also testified that the Grisso testing ‘instrument,’ which is part of the study protocol, consists of four parts that are scored by the test administrator.’’

‘‘The first part tests a person’s ability to explain accurately, in his or her own words, what aspects of the Miranda warnings mean. The second part tests ‘recognition’ of Miranda rights, and the third part tests comprehension of the vocabulary [used in] the warnings. Finally, the fourth part, which involves pictures and stories about fictional persons being interrogated, tests a person’s ability to recognize, during an interrogation, the function of the Miranda warnings.’’

2. The Porter standard

In explaining the Porter standard, the Court writes:

‘‘In [Porter], we adopted the test for determining the admissibility of scientific evidence set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. We noted therein two requirements established under Daubert. First, [we noted] that the subject of the testimony must be scientifically valid, meaning that it is scientific knowledge rooted in the methods and procedures of science . . . and is more than subjective belief or unsupported speculation. . . . This requirement establishes a standard of evidentiary reliability . . . as, [i]n a case involving scientific evidence, evidentiary reliability will be based upon scientific validity.

. . .

Second, [we noted that] the scientific evidence must fit the case in which it is presented. . . . In other words, proposed scientific testimony must be demonstrably relevant to the facts of the particular case in which it is offered, and not simply be valid in the abstract.’’  In adopting the Daubert approach in Porter, we ‘‘held that scientific evidence should be subjected to a flexible test, with differing factors that are applied on a case-bycase basis, to determine the reliability of the scientific evidence. . . . Porter explicitly stated that the flexible Daubert approach was a better approach than the test of general acceptance in the scientific community, which was established in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).’’

So basically, the testimony must be scientifically valid and must fit the case in which it is presented.

Analysis:

In analyzing the admissibility of the expert’s testimony, the Court first concluded that the proposed testimony was subject to the Porter analysis.

[The expert's] testimony concerning the Grisso protocol was predicated on the results of a scientific instrument or tool and not solely on her observations, educational background or experience. ‘‘[T]he . . . testimony [at issue] was based on a method employed
by the expert witness to assess comprehension. Neither powers of observation, comparison nor common sense, however, could be used [by the trier of fact] to assess the validity of the method underlying the Grisso test and in determining whether it accurately measures what it purports to measure. Instead, the methodology underlying the test rested on . . . scientific principles, theory or experiment in the field of psychology.’’ We agree with the Appellate Court that, in such circumstances, a Porter inquiry was a necessary predicate to admissibility.

The Court then moved onto the two prongs of Porter, namely (1) whether the testimony is scientifically valid and (2) whether the reasoning or methodology can be applied to the facts of this case. With regard to the reliability prong there are four factors to be considered:

1. whether it can be, and has been, tested;
2. whether the theory or technique has been subjected to peer review and publication; 
3. the known or potential rate of error, including the existence and maintenance of standards controlling the technique’s operation; and 
4. whether the technique is, in fact, generally accepted in the relevant scientific community.

The trial court, in considering the admissibility of the testimony, decided that the defendant had failed to prove that the Grisso test had sufficient scientific validity.

The trial court further found that the methodology underlying the Grisso test had not been subject either to sufficient testing since its development in 1981 or to adequate peer review and publication. In addition, the trial court concluded that the defendant had failed to demonstrate that the Grisso test is generally accepted in the relevant scientific community.

The defendant, obviously, claimed that the trial court’s analysis was unduly mechanical and did not take into consideration other factors such as the reputation of Dr. Grisso and the expert who was to testify and scientific and legal literature. The defendant also emphasized the fact that there are numerous judicial opinions and professional journal articles that cite Dr. Grisso’s empirical data. The Court did not find this persuasive.

The great majority of those references, however, do not concern the methodology underlying the Grisso protocol but, rather, stand for the general proposition, gleaned from those studies, that juvenile arrestees often have particular difficulty understanding Miranda warnings. Thus, the references to the Grisso test identified by the defendant provide little, if any, support for his contention that the trial court had abused its discretion in excluding Baranoski’s testimony.

The Court could not find that the trial court abused it’s discretion in denying the proposed testimony. Interestingly, the Court did not preclude the use of the Grisso test in the future. The Court concluded

Of course, we do not foreclose the possibility that, in a future case, sufficient evidence regarding the reliability of the Grisso test will be presented such that it may be found to pass muster under Porter. We conclude today only that the trial court in the present case reasonably determined, in light of the particular evidence adduced, that the defendant had failed to meet his burden, under Porter, of demonstrating the threshold reliability of the Grisso test.

So it left open the possibility that in the future, the Grisso test might be found admissible.

My eyes are bleeding (not literally) from reading transcripts, so I’m taking a little break to review an interesting appellate case:

The Connecticut Appellate Court today issued State v. Stavrakis [pdf]. The defendant, Stavrakis, raised four separate issues on appeal:

1. The trial court improperly admitted evidence of prior convictions and improperly prevented defendant from cross examining victim on victim’s prior misconduct. "Evidentiary Impropriety",
2. The trial court improperly instructed the jury on three issues. "Instructional Impropriety",
3. Having been acquitted of a lesser included offense, the verdict of guilty was legally inconsistent. "Inconsistent Verdict" and
4. Prosecutorial Misconduct

Stavrakis was convicted of Assault in the 2nd Degree, in violation of C.G.S § 53a-60 and Criminal Trespass in the 1st Degree in violation of C.G.S § 53a-107
. 
He was found not guilty of Criminal Mischief in the 3rd Degree (C.G.S. §
53a-117)  and Disorderly Conduct (C.G.S. § 53a-182).

The Facts:
The defendant, Michael Stavrakis, and his father became involved in an altercation with the victim, Stephen DeLuca. The altercation arose out of the father’s disapproval of a relationship between the victim and Christina Stavrakis, the defendant’s sister. During the course of the struggle, after the victim had pushed the defendant’s father through a glass panel, the defendant struck the victim over the head with a stick.

I. Evidentiary Impropriety

The defendant claimed that the trial court

improperly admitted into evidence an act of larceny that he had committed in 1988 and his conviction in 1989 for possession of narcotics with intent to sell. He argues that the court should have precluded reference to both acts of misconduct because of their
remoteness in time to the present incident. In his other evidentiary claims, he maintains that the court improperly precluded him from presenting evidence of prior violence on the part of the victim and of hospital records describing the extent of the victim’s physical injury.

Relying on State v. Nardini, 187 Conn. 513 (1982), the Court identified three factors for consideration when admitting prior crimes evidence:
    (a) The extent of prejudice likely to arise
    (b) The significance of the commission of the particular crime in indicating untruthfulness and
    (c) It’s remoteness in time.

In Nardini, the State Supreme Court had adopted the 10-year rule of the FRE in determining remoteness ‘‘a rough bench mark in deciding whether trial court discretion has been abused . . . .’’ The Court ruled that his prior conviction for larceny was properly admitted, because of it’s probative value in determining the credibility of the defendant. The Court also held that the other felony conviction was too remote in time and not sufficiently probative of the crime charged in this case:

The defendant claims that the court improperly admitted into evidence his conviction for a felony that occurred thirteen years prior to the assault at issue in this case. The state concedes that this conviction, which involved the possession of narcotics, was not especially probative of the defendant’s truthfulness.

Explaining a case cited by the State, the Appellate Court stated

In State v. Askew, supra, 245 Conn. 364, 366–71, our Supreme Court held that it was not an abuse of discretion where the trial court admitted evidence of a criminal defendant’s conviction for felony larceny that exceeded the ten year benchmark by a mere seven months. This case differs from Askew in that, here, the defendant’s conviction exceeded the ten year benchmark by three years.

The Court, however, then went on to hold that even though admitting this prior conviction was error, the error was harmless.

An evidentiary error does not automatically require a new trial. The defendant also must show that the improper admission of the felony conviction was so prejudicial that he was deprived of a fair trial. State v. Ciccio, 77 Conn. App. 368

In this case, the potential for prejudice arising out of the admission
of the felony conviction was slight. Because the jury already was aware of the larceny incident for purposes of impeaching the defendant, ‘‘it is . . . highly improbable that any additional prejudice arising from knowledge by the jury of [the felony] conviction affected the outcome.’’ State v. Nardini, supra, 187 Conn. 530.

The Court then turned it’s attention to the defendant’s second evidentiary claim, that "he should have been able to inform the jury about previous violent misconduct on the part of the victim". Obviously, generally speaking, evidence of specific instances of misconduct are inadmissible. The only way this evidence would come in is if it fit within one of the exceptions to the rule. The defendant claimed that the exception that applied to specific acts of misconduct by the victim towards the defendant would also apply here. Actually, the misconduct that the defendant tried to introduce was towards the victim’s sister – the defendant’s then girlfriend. The Court naturally affirmed the trial court’s ruling on this matter.

In the present case, the defendant sought to demonstrate that his sister purposely falsified the version of events in her written statement to the police out of her fear of the victim. The evidence that the defendant sought to present in support of this theory had no bearing, however, on the defendant’s self-defense claim.

I’ll quickly jump to the LIO issue in the interest of boredom and space.

III. Inconsistent Verdict

The defendant then claimed that his conviction of Assault in the 2nd was inconsistent with his not guilty verdicts. More specifically, disorderly conduct is a  lesser included offense (LIO) of Assault 2 and therefore a conviction for the latter with an acquittal on the former is legally insufficient. The Court explained the standard:

In determining whether a conviction of one offense is inconsistent with an acquittal of the other, we look to whether ‘‘the offenses charged contain different elements.’’ State v. Soto, 59 Conn. App. 500 (2000). ‘‘If the offenses charged contain different elements, then a conviction of one offense is not inconsistent on its face with an acquittal of the other.’’

Reviewing both the offenses, the court identified three differences:

1. Both crimes required a different mens rea – assault requires intent to cause physical harm, whereas disorderly conduct requires intent to cause inconvenience, annoyance or alarm.
2. Most obviously, Assault requires a finding of actual physical injury where disorderly conduct requires only a threat of one.
3. Assault requires use of a dangerous instrument; such a requirement is not present in disorderly conduct.

Accordingly, the Court found that the jury correctly found him guilty of assault and the trial court was not incorrect in failing to enter an acquittal notwithstanding the verdict.

All in all, a good review of the admissibility of prior misconduct evidence and a brief explanation of LIOs.