United States v. Saelee, p. 830 D. Alaska, 2001

1. 1 United States v. Saelee, p. 830 D. Alaska, 2001

2. 2 Rule 901(b)(3) provides that the authenticity of an exhibit can be established by �comparisons by . . . expert witnesses with specimens which have been authenticated.� This rule is not conclusive on the question whether testimony forensic document examiners should be admitted because -- To say that specimen comparisons can be used to authenticate is not to say that handwriting expertise is always admissible. Rule 901 was adopted before the codification of Daubert Both of the above Neither of the above

3. 3 State v. Porter, p. 839 Supreme Court of Connecticut, 1997

4. 4 Preliminaries Skip assignment 44 but read the �three probabilities� box on pp. 916-17 Let�s choose a review date Apr. 22, 10:50? May 3, 10:50? Other?

5. 5 CQT test Neutral questions Relevant questions Control questions

6. 6 If arousal is higher during the _______questions than during the_______questions, that is considered a sign of deception.  relevant, control control, relevant other

7. 7 Someone trained in countermeasures would be most likely to use them to increase arousal when asked a _____ question. Control Relevant Neutral

8. 8 CQT polygraph theory is premised on the theory that a guilty person will show greater arousal on the relevant questions than on the control questions. But is there any reason why an innocent person might show greater arousal on the relevant questions?

9. 9 Is there any reason why a guilty person might show greater arousal on the control questions than on the relevant questions?

10. 10 High sensitivity = few �misses� Few misses = low false negative rate High specificity = few �false alarms� Few false alarms = low false positive rate

11. 11 In lie detection: -- a �false positive� is the mistake of finding deception when there is no deception. -- a �false negative� is the mistake of failing to detect deception when it occurs.

12. 12 If a lie detection method has a high false positive error rate, then its ________ is low. Specificity Sensitivity

13. 13 If the sensitivity of a test is 90% then its false ______ error rate is 10%. Positive Negative

14. 14 If the sensitivity of a test is 90%, its specificity is _____. 10% 90% Can�t tell without more information.

15. 15 Suppose a pregnancy test has a 1% false positive error rate. The test is administered to a virgin. She tests positive. She is probably pregnant. True False

16. 16 If a lie detection method has a 10% false positive error rate, that means that -- 10% of the truth-tellers who take the test will designated as liars. When the method designates someone as a liar, it will be correct 90% of the time. Both of the above.

17. 17 The false positive error rate is not the same as the predictive value positive. To determine the predictive value positive, we also need to know the baserate among the tested population. Example: Heroin test for airline pilots False positive error rate: 10% False negative error rate: None. 1000 pilots take the test. Only 10 of them use heroin. 990 do not. Of the 990 actual negatives, how many will test positive? Ans. 99 If the 10 actual positives, how many will test positive? Ans. All 10 The test has identified 109 pilots as heroin users. It was wrong in 99 cases. Its predictive value positive is 9%.

18. 18 Example of typical lab test of the polygraph Subjects are randomly assigned to truth group or lie group Members of the lie group are told to commit a fake crime (e.g., taking a book from the next room). The polygrapher interrogates the subjects without knowing which ones are �guilty.� The truth group tells the truth, denying the �crime� The lie group lies, denying the �crime� When tested in this fashion, polygraphers usually have fairly low error rates. Are these experiments generalizable to real crime situations?

19. 19 Problems with generalizing from lab studies The subjects aren�t fearful because the crimes aren�t real crimes. No countermeasures are being used. Thus, an innocent subject who would react with arousal when accused of a crime might not react with arousal here. (And you�d think these studies would exaggerate the false negative error rate because the guilty subjects wouldn�t be as fearful either � they would have a greater reaction to the control questions than to the negative questions.)Thus, an innocent subject who would react with arousal when accused of a crime might not react with arousal here. (And you�d think these studies would exaggerate the false negative error rate because the guilty subjects wouldn�t be as fearful either � they would have a greater reaction to the control questions than to the negative questions.)

20. 20 Field studies --The investigator finds examples of use the polygraph in actual criminal investigations. --She makes a judgment about whether the person interrogated by the polygrapher was guilty or innocent. --Common guilt criterion: confession --If he confesses, he�s guilty --If somebody else confesses, he�s innocent. --She counts how often the polygraphers were correct in designating subjects as guilty or innocent. Is there any reason why the field studies might yield inaccurate error rates?

21. 21 Let�s say the suspect is more likely to confess if he flunks the test. Even if the polygraph test is a coin flip, a field study would make polygraphers appear to be accurate. Situation one: Polygrapher says he�s guilty. --He confesses: polygrapher gets credit for being correct. --He doesn�t confess: not counted. --He doesn�t confess and somebody else confesses: counted as wrong. Situation two: Polygrapher says he�s innocent --He confesses: counted as wrong. --Somebody else confesses: counted as correct. --Nobody confesses: Not counted.

22. 22 United States v. Piccinonna, p. 851 11th Cir. (en banc), The following questions call upon you to apply the doctrine of the Piccinonna case.

23. 23 The accused does not testify. He offers into evidence the opinion of a polygrapher that he was truthful when he denied committing the crime during a polygraph exam. Admissible Inadmissible It depends See p. 855See p. 855

24. 24 The victim testifies, identifying the accused as the person who robbed her. The accused testifies, denying the crime and claiming that he was home watching TV at the time. The prosecution offers evidence that the victim passed a polygraph test in which she identified the accused as the robber. Objection! Admissible Inadmissible It depends p. 855 **p. 855 **

25. 25 The Piccinonna case indicates that Rule 608(a) is the reason why the witness cannot be supported with the testimony of a polygrapher until the witness is attacked. Prof. Park is likely to say: You�re right! I�d like to be your law clerk. You idiots, 608 is about character evidence, and this not character evidence. You idiots, 608 is about opinion testimony, and this is not opinion testimony. You idiots, 608 bars extrinsic evidence about specific instances of conduct, so polygrapher testimony is inadmissible even if the witness has been attacked.

26. 26 Piccinonna requirements (See casebook, p. 855) Test must impeach or (after attack) corroborate witness Proponent must give notice and enough time for the opponent to perform its own test. The test must meet these guidelines: Qualified operator Properly conducted test Questions phrased appropriately

27. 27 Review session Friday, May 1, at 10:50 in Room K. The review session will be taped for those who miss it.

28. 28 Hypo. Piccinonna applies. In a sexual harassment case, the plaintiff claims that she was fired after she broke up a ten-year affair with her supervisor. The defendant testifies and offers a his polygraph test to support his testimony. In this polygraph test, arranged by his counsel, he was asked two relevant questions:1. �Did you have a ten-year affair with the plaintiff�? Ans. No. Finding: not deceptive.2. �Did you originate the firing of the plaintiff?� Ans. No. Finding: not deceptive.Objection! Admissible Inadmissible It depends

29. 29 Hearsay review.Buzzy and Izzi are divorced and share joint custody of Sonny. Izzy hides Sonny from Buzzy. She is charged with disobeying a court order to share custody. If she had a good faith reason not to turn Sonny over, she is innocent. She testifies that someone told her that Buzzy molested Sonny. Objection, hearsay! Admissible. Not hearsay. Admissible. Hearsay falling under an exception. Not admissible.

30. 30 Same hypo, except that Izzi testifies that a police officer told her that Buzzy had flunked a polygraph test when he was asked whether he abused Sonny. In the jurisdiction, the Daubert test applies, and polygraph tests have been held not to be valid science under Daubert. Objection, Daubert! Admissible. Inadmissible It depends

31. 31

32. 32 After Scheffer, is the Piccinonna court required to reverse course and exclude the evidence? Yes No

33. 33 From Roger Park 2009From Roger Park 2009