...The case Daubert v. Merrell Dow Pharmaceuticals is about two children that were born with birth defects. They and their parents sued Merrell Dow Pharmaceuticals because they are the manufacturer of the drug Bendectin which they believed is the cause of their defects. When the courts asked for evidence that the drug could indeed cause such birth defects all they could come up with was that in some animal testing there were defects. The courts did not consider this as admissible. For an expert testimony to be admissible, the theory would have to be accepted in the scientific field, the theory would had to been tested and the results would have to be documented. The only thing that they had going for them was that the relationship between the drug and the birth defect. They could not prove that the drug cause the defect cause there was no other known cases and that there were no circumstantial evidence provided by their experts. The Daubert Standard imposed new obligations on the federal judge with regard to expert testimony. It said that the judge is the one who must screen all expert testimony for relevancy and reliability on the...
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...investigators perform their job? Technology improved the way criminal investigators perform their jobs by making it easier to track things, there is different types of software out there today to help them with these issues, and make the jobs easier, when you have different technology to help. 3. Why would a company report or not report a compromise case? The reason a company may or may not report a compromise because if it’s not in their favor and they may report it if it’s in their favor and vice versa. They wouldn’t want to look incompetent. 4. Who is in charge of labeling and securing sensitive information? The one in charge of labeling and securing sensitive information is the forensic specialist. 5. What is the Daubert standard? The Daubert Standard provides a rule of evidence regarding the admissibility of expert witnesses' testimony during United States federal legal proceedings. 6. Why would someone use a hex editor in a forensic investigation? The reason someone would use a hex editor in a forensic investigation is if the suspect has deleted files and has overwritten them on his or her hard disk, you can always use a hex editor to view any data stored in (or deleted from) both files and disk sectors. A hex editor allows you to peek at the physical contents stored on a disk, regardless of the boundaries of files, directories, or partitions. 7. What is the largest known data loss incident to date?...
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...Daubert Paper Lisa Boetta Acct343-F1WW Tricia Bell October 27, 2013 The Dauber standard is the standard used by trial judges to determine if an expert witness’ testimony is based on scientifically backed up reasoning and if it can be applied to the facts of the case at hand. There are multiple factors to determine if the criterion has been met. They are: “(1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community”. (Daubert Standard) In Daubert vs. Merrell Dow Pharmaceuticals, suit was brought against the makers of Bendectin. It was alleged that the drug caused serious birth defects in children whose mothers had taken it while pregnant. Copious amounts of published scientific literature stated that there was not a link between the consumption of Bendectin and birth defects in humans. Eight well credentialed experts testified that Bendectin can cause side effects in animals as well as in humans, however, their testimony was deemed by the court to not meet general acceptance standards for the admission of expert testimony. Since their findings have not been published by the scientific community, they were not considered to be generally accepted (Daubert v. Merrell Dow Pharmaceuticals...
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...Forensic Psychology Abstract: U.S. Supreme Court Rules in Kumho Tire Co. v. Carmichael Case (No. 97—1709. Argued December 7, 1998–Decided March 23, 1999) On March 23, the U.S. Supreme Court ruled in Kumho Tire Co. v. Carmichael, No. 97-1709, that all types of expert evidence are subject to the relevance and reliability ‘gatekeeping’ function that the Supreme Court had articulated with respect to scientific evidence in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Court further held that trial judges have substantial discretion or ‘considerable leeway’ to determine how to evaluate relevance and reliability and to make a determination on whether to admit the expert evidence. While this decision will make it more difficult when judges are hostile to the type of expert testimony being offered by plaintiffs, there were some helpful aspects to the Court’s opinion that lawyers for plaintiffs should know and emphasize: • The Court rejected arguments that all, or even one, of the four Daubert factors (testing, peer review, error rates, and scientific acceptability) must be satisfied for the testimony to be admissible, noting that even in scientific evidence cases the Daubert factors ‘do not all necessarily apply’; • The Court endorsed the idea that expert testimony from reliable fields of study that conforms with the standards used in that discipline should be admissible (In doing so, the Court was allowing...
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...| 2013 | | Introduction to Forensics | [week 1 individual work] | Forensic scientists do much more than process, analyze and compare evidence. The scientist must be qualified as an expert witness. Your individual work will explore the question, "What is an expert witness?" | The Supreme Court in the 1960’s wanted police to place a greater need on finding evidence that was scientifically evaluated. This led to a growth in the forensic laboratory department. Drug abuse and DNA profiling are also a reason the growth has happened. While the growth of crime and drug use has rocketed, so has the technology used to identify a person as well as the chance to identify a drug and what it is used for or where it was made. Drug abuse cases still outnumber DNA cases, but the DNA experts have made it possible to identify someone based on a bloodstain, semen stains, hair and saliva residues left behind on stamps, cups, bite marks and so on (Saferstein, 2009). Different communities offer different services based on the employees they have and what their experience is in. This is because of the variation in local laws, different capabilities and functions of the organization to which the laboratory is attached and budget and staffing limitations. This is the reason for independent laboratories. Some scientists that work for these laboratories are required to testify about the methods used and conclusions to the evidence at a trial or hearing. When this happens,...
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...He Frye Standard came out of a 1923 legal decision (Frye V United States). It was a case discussing the admissibility of a polygraph test. James Frye was convicted of murder and first admitted his guilt then recanted his confession. The Frye Standard came when they tried to convict on a polygraph test which is not admissible as guilt in the court of law. The Frye Standard is now that all evidence must determine admissibility of an expert in his or her field. 3. Please explain when a forensic expert witness would have to attend a Daubert hearing. 4. What is a Daubert hearing? A Daubert hearing is when a counsel objects to a testimony or an expert in general. This hearing usually takes place before a trial and out of a jury’s presence. It is a hearing for a judge to determine if the testimony is an expert in his or her field. 5. What does it mean that the judge is the “keeper”? The judge has the final motion to determine if the testimony truly proceeds from scientific knowledge. 6. What would some tests for establishing "validity" be? The judge will determine if the expert has testified before on the testimony or the background he or she has in the field in which the testimony facts will be. The experience of the expert witness and the validity of the evidence itself. 7. Please explain why these standards are important when determining whether or not physical evidence may be admitted into court. Daubert Hearing is that it seems to have been effective at keeping...
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...Expert Witness Requirement’s- The Frye and Daubert Test’s CJ305-01: Legal Foundations of Criminal Evidence Sigrid Hess June 3, 2013 Expert Witness Requirements This article will briefly review the applicable standards of the admission and exclusion of expert testimony in the Federal Court. The guidelines discussed in this article, principally pertain to the subject of the reliability of the methodology supporting the submitting of evidence. In addition, the qualifications of the proposed experts in the pertinent field of expertise, and the relevancy of evidence from expert’s .These areas also offer opportunities for confronting the opponent’s case by excluding the evidence on the grounds of; lack of expert qualification of the witness or the lack of relevance of the testimony to the facts of Court Cases. I. Discuss the Frye and Daubert tests Frye Test: Frye v. United States was a case in 1923 U.S. v. Frye, 54 App.D.C. 46, 293 F. 1013 C.A.D.C 1923. Retrieved from: Westlaw.com. , in which James Frye was tried for murder and in his defense he produced the testimony of an expert with the result of a blood pressure test, in the expectation to prove that he was speaking the truth when he did not accept his guilt. This deception test was intended to tell if a person is being dishonest or not. This case became a standard for judges while allowing admissibility of testimony of experts based upon scientific methods. Frye test is also referred to as Frye standard or general...
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...99 Chapter 8 Litigation Services Provided by Accountants CHAPTER SUMMARY Overview This chapter explains what standards apply to accountants when they perform litigation services, discusses how to qualify as an expert witness, gives tips for testifying at a deposition or trial, and points out the potential liability that accountants risk when they testify at trial. Litigation in the United States ¶8001 U.S. Tort Costs Climbing The U.S. tort system cost $248.1 billion in 2009, which was about $808 per U.S. citizen ($12 in 1950). U.S. tort costs accounted for 1.74 percent of GDP (2.09 in 2002). Increasingly inefficient, the U.S. tort system returns less than 50 cents on the dollar to people it is designed to help; only about 22 cents to compensate for actual loss. ¶8006 A Dispute Begins There are two different courtroom environments: civil and criminal. Some experts believe it is more difficult to convict in a criminal trial (e.g., Casey Anthony). Types of Litigation Services Provided by Accountants ¶8011 Consultant An accountant may be hired by an attorney to gather and interpret facts, prepare analyses, help the attorney interpret evidence, advise about issues and strategies involved in a legal matter, locate other accountants to act as consultants or expert witnesses, and help expert witnesses form their opinions. Accountants acting as consultants will not be asked to testify in a judicial or regulatory proceeding, and their work usually will be protected from disclosure...
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...underground spring, plaintiff calls a dowser to testify that he dowsed plaintiff's land and estimates a spring flowing approximately 500 feet beneath the surface. 1. Does this testimony constitute scientific knowledge? No, dowsing is not recognizes to be effective in the scientific community. 2. Should it be admitted under the Frye test? No, this would not be admitted under the Frye test because it has not gained general acceptance in the particular field in which it belongs. 3. Should it be admitted under the Daubert test? No, the judge to allow admittance the court requires the expert to tie there assessment to known scientific conclusions. Explain your reasoning. Dowsing is not recognized in the scientific community, it was the ancient art of finding things, there is no scientific evidence to prove that dowsing is effective. For it to be admitted under Frye it must be sufficiently established and have gained general acceptance under the scientific community. Under the Daubert Standard even though the dowser might have specialized knowledge in dowsing it can not be admitted because it does not contain facts or data that have been proven and accepted in the scientific field. The testimony must be based on reliable principle and methods. It is the role of the trial judge to ensure relevance and reliable scientific evidence to allow the testimony to be admissible. The testimony of the Dowser is not based on sufficient facts or data it could not be admissible as evidence. The case...
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...FRYE v. UNITED STATES, 293 F. 1013 (D.C. Cir. 1923) ISSUE(S): Could the results of the deception test be used as evidence? FACTS: • Frye was convicted of second degree murder. • Before the trial, Frye took a deception test to prove his innocence and presented an expert witness to testify on the results. • The prosecution objected, and the court sustained the objection. • Frye argued that the opinions of experts is admissible in those cases in which the expert can clarify the issue in order for judgment to be made. HOLDING(S): Expert testimony must be based on well-recognized scientific principles, and be generally accepted in the community to which it belongs. REASONING: The deception test had not gained such standing and scientific...
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...Fry vs. State Brief Fact Summary. Mr. Frye (Appellant) was convicted of second-degree murder, after the lower court disallowed Appellant from introducing testimonial evidence relating to the results of a deception test Appellant had taken following the crime. Appellant appeals his conviction here. Synopsis of Rule of Law. When a test (such as a systolic blood pressure deception test) has not gained scientific recognition from psychological and physiological authorities, expert testimony regarding the results of such a test is inadmissible. Facts. Appellant was charged with and put on trial for murder. At his trial, Appellant attempted to call an expert witness to testify that Appellant had taken a systolic blood pressure deception test, and to further testify as to the results of the test. The expert testimony was held inadmissible by the lower court, Appellant was convicted of second-degree murder. Held. No; the test results Appellant attempted to introduce into evidence did not meet the requirement that such evidence be “sufficiently established to have gained general acceptance in the particular field in which it belongs,” and therefore the test results were properly excluded by the lower court. Discussion. The court reasoned that although the deception test at issue here has a scientific basis, “[j]ust when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define . . . [and] the thing from which the deduction...
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...was widely discussed at the time. When more and more people began to use DNA evidence in the courtroom, the rules for admissibility had to be set (Shaer, Matthew) Typically, there are two standards used to determine the admissibility of DNA evidence, the “Frye standard” and the “Daubert standard.” The Frye standard constitutes that evidence based on a scientific technique is admissible only when the technique is generally accepted as reliable in the scientific community (Sundquist, Terri). The Daubert ruling states that the evidence should be subject to peer review and the trial judges ultimately decide if the evidence will be admissible in the courtroom. The Daubert v. Merrell Dow Pharmaceuticals ruling allows little room for error and is widely accepted throughout the United States (Drury University). Although the courts faced numerous difficulties in the late 1980’s and early 1990’s when it came to the admissibility of DNA evidence, most of the bigger cases allowed DNA evidence into the trial so long as it was properly collected and analyzed. If they chose to consider the evidence inadmissible, it was usually due to questions of the chain of custody or if the DNA was properly tested (Frye, Daubert and Where Do We Go From Here) Of course, determining the admissibility of DNA evidence was already stressful enough when the Federal Bureau of Investigation’s (FBI) introduced a new system known as the Combined DNA Index System (CODIS) which is a forensic database. CODIS enables...
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...remember who I owe my loyalties to. As a servant to the public, it is my responsibility and privilege to ensure that their priorities supersede my personal agenda (Ethical Issues for Fraud Examiners 2013) (Kutin 2015) (Code of Ethics 2017). IV. Legal Framework A. Court Rulings The evidence provided in Daubert vs. Merrell Dow Pharmaceuticals, Inc. was inadmissible because the testimony was not reviewed by the judge. Therefore, HealthSouth interviews must be in compliance with Rule #702, which increases the expert testimony’s relevance and weight. The interview must result from usage of practical methods and principles reliably applied to the facts in the HealthSouth case. The judge would then review the materials to better understand the evidence before presented. One method for interviewing would be reciting the Miranda Rights. The Miranda Rights enabled HealthSouth employees to remain silent or wait until their attorneys were present. Failure to administer the Miranda Rights before interviewing would result in inadmissibility. Waiving the Miranda Rights would be an irrevocable action overturned only by intoxication, duress, or handicap (DAUBERTv.MERRELL DOW PHARMACEUTICALS, INC. 1993) (Just Whose Employee is it? 2014) (Rule 702 2017) (Steinberg 2017). The Weingarten Rights aimed to protect a union member’s right to representation during investigations or pre-disciplinary meetings. While interviewing a HealthSouth employee, the Weingarten Rights were invoked and the union...
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...adversarialism? The adversarial system is the two-sided structure under which criminal trial courts in the UK operate. There are four prominent structural features of the English adversarial system. Firstly, the parties dominate the conduct of proceedings with the judge playing a relatively passive role. Secondly, the parties are free to choose the terrain on which to fight out their legal battles and to select their forensic weapons. Thirdly, Trials are continuous, oral and public events. Fourthly, the imbalance of power between the state and the accused is ameliorated by rules and principles reducing inequality of arms. High level definitions or at least descriptions of the adversarial system abound such as that of Lord Denning in Jones v The National Coal Board.They are all to the effect that the judge is a passive and neutral umpire who cannot descend into the arena for fear of having his or her judgement clouded. The adversarial system is said to be the most efficient means of arriving at approximate truth because it harnesses the power of self-interest on each side to unearth the best evidence. Similarly the best legal arguments are thought to emerge from the clash of advocate’s submission on the law. A classic quotation is that of Lord Eldon in Ex Parte Lloyd that ‘truth is best discovered by powerful statements on both sides of the question.’ This follows from the notion that dispute resolution ‘achieving justice’ is the overriding objective of adversarial adjudication...
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...http://lawecommons.luc.edu/lclr/vol10/iss4/6 This Case Note is brought to you for free and open access by LAW eCommons. It has been accepted for inclusion in Loyola Consumer Law Review by an authorized administrator of LAW eCommons. For more information, please contact cklink@luc.edu. CASE NOTES Courts split as to whether consumers injured by hot coffee can seek recovery by Zachary Rami Common sense, coffee and consumers clashed recently in McMahon v. Bunn-O-Matic,l wherein the Seventh Circuit Court of Appeals held that a coffee maker manufacturer did not have a duty to warn consumers that its coffee would be served at 180 degrees, and that the coffee maker was not defectively designed. The decision, which affirmed a lower court's entry of summary judgment in favor of the coffee maker manufacturer, is consistent with a majority of courts, which have held in recent years that such claims leave no issue of material fact for trial.' However, not every jurisdiction has routinely dismissed these "coffee" cases. In fact, McMahon referred to Nadel v. Burger King,3 which held that a products liability claim for excessively hot coffee was appropriate for a jury to decide. This Note will discuss the facts and procedural history of McMahon, as well as the Seventh Circuit's ruling on the duty to warn and defectiveness of the product's design. This note will next examine the Ohio Court of Appeals' contrasting decision in Nadel. This comparison will...
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