Challenging Forensic Identification Evidence At Trial: Best Practices to Win Your Criminal Trial and Obtain A Not Guilty Verdict.

Part I  The Use of Bullet Lead Analysis (“CBLA”) Evidence

The claims that forensic expert witnesses make at trial for the prosecution often cannot stand close scrutiny and competent cross-examination by defense counsel.  CriminalDefenseNJ.com

There is no doubt that this type of testimony is powerfully persuasive to the jury hearing it especially in the age of television shows such as CSI.  Unfortunately, this testimony is not always reliable and such testimony will often lead to a guilty verdict.

There is much evidence to support the proposition that such evidence is often under-researched and often oversold.  The truth is forensic evidence is not infallible.

One such troubling example of junk science forensic evidence was the FBI use of lead alloy evidence or comparative bullet lead analysis (“CBLA”).  For forty-five years FBI forensic bullet alloy experts testified throughout the country claiming that they could match the lead in the bullet or fragments recovered from the defendants unused box of bullets found in his possession.  On September 1, 2005 the FBI admitted that the science was not reliable and discontinued this testimony.  How many innocent people were convicted on such testimony no one will ever know, and I do not thing anybody cares to find out. Like the fallacious CBLA forensic evidence, what other fallacious forensic evidence is still be peddled as the magic bullet for the prosecution?

In addition to junk science forensic testimony, there is also much historical evidence that prosecution expert forensic witnesses intentionally falsified the truth. In some cases they have been caught fudging numbers, exaggerating the truth, or outright lying. 

One continuing trouble problem is the use of the so-called intent to distribute experts, who testify in simple possession cases that the defendant possessed those drugs with the intent to distribute.  What crystal balls do these so called experts have to make these outlandish statements?  Troubling, however, that some juries will accept such testimony as gospel truth and convict on that junk testimony

Prepared for the People as a Public Service by the Law Office of Vincent J. Sanzone, Jr., Esq.

277 North Broad Street

P.O. Box 261

Elizabeth, N.J. 07207

Telephone: (908) 354-7005

YourCivilRights@gmail.com

Dated: December 14, 2013

Clawans Charge the Need to Challenge the State When They Fail To Call a Material Witness

In the New Jersey seminal case State v. Clawans, 38 N.J. 162, 170 (1962), the court held that a defendant is entitled to an adverse jury instruction when the state fails to call a material and corroborating witness in the case.   Specifically, when this occurs the jury is entitled to be given an adverse jury charge that the testimony would be unfavorable to the State.   A failure to call a cooperating witness by the State often occurs when multiple witnesses arrive at a crime scene or allegedly witnessed a crime committed by a defendant when one of the testifying witnesses (usually the complaining police officer), is known to be less than completely credible.  In these cases the prosecutor will not risk having the truthful officer testify and contradict the lying officer.

In prosecuting cases the State will often fail to call corroborating police witnesses in their case-in-chief.   This occurs most often in motions to suppress, in which the Clawans charge is technically inapplicable with pretrial motions because there are no jury charges in matters decided by the judge pretrial.  Nonetheless, a criminal defense attorney arguing the case before the motion judge can argue a Clawans inference to the judge as to why the State has failed to call this witness. 

However, in jury trials before the judge will give this charge under Clawans only if four factors are met.  (1) Whether the missing witness  was peculiarly within the party’s control (this factor is usually easy to meet with police witnesses); (2) Whether the witness was available, both practically and physically; (3) Whether the uncalled witness’s testimony appears to be superior to that already utilized regarding a fact to be proved or disproved.  State v. Hill, 199 N.J. 545, 561 (2009)

Criminal defense attorneys (criminaldefensenj.com) must be aware of this charge and press to court to use it under the right circumstances.  If defense counsel intends in asking for this charge, best practices is that defense counsel notify the court of its intention after the close of the State’s case in-chief.

This is blog is presented as a public service and for general criminal legal information by the Law Office of Vincent J. Sanzone, Jr., Esq.

CriminalDefenseNJ.com

Law Office of Vincent J. Sanzone, Jr., Esq.

277 North Broad Street

P.O. Box 261

Elizabeth, New Jersey

Telephone No. (908) 354-7006; Cell No. (201) 240-5716

When is a Criminal Defense Attorney Considered Incompetent to the Level of Ineffective Assistance of Counsel?

In 1996 Richard Rosario was convicted of murder in Bronx County New York. The only evidence against Rosario was the testimony of two witnesses whom picked his photo out of a book of police photos. There was no motive for the crime, since Rosario did not know the victim, or the two witnesses.

For the defense of this murder Rosario had the powerful and persuasive evidence that for the entire month June, 1996, Rosario was living in the State of Florida, and had 12 alibi witnesses whom were willing to testify to that fact.

Unfortunately his court appointed lawyer only called two of those witnesses to testify. The prosecutor was able to convince the jury during his summations that those two witnesses were close friends of Rosario and lied on his behalf.

The Federal Second Circuit Court of Appeals ruled in denying Rosario a new trial even though his court appointed lawyer performance was a “colossal failure”, involving “uncommonly bad mistake.” Fortunately for Rosario Chief Judge Jacobs dissented with the majority decision, and the matter is now before the United States Supreme Court, which will decide next week whether to take the case.

Hopefully the United States Supreme Court will get it right next week and agree to hear the case and grant a new trial for Mr. Rosario who has been incarcerated since 1996.

More often than we might think decisions that are made by defense counsel can sometimes be classified as ineffective, thus denying the defendant his constitutional right as guaranteed by the Sixth and Fourteenth Amendment to the United States Constitution. During every criminal trial every decision made by defense counsel has enormous consequences for the defendant, and every decision made must be made with the out-most competency expected of competent legal counsel, which can only come from experience and knowledge of the law.

In New Jersey every defendant convicted of a crime has up to five years to file a petition for post conviction relief requesting the trial court and than the appellate court if necessary, grant a new trial based on ineffective assistance of counsel. Although rarely granted, in some cases the performance of trial counsel was so deficient as to warrant a new trial.

Attorney Sanzone has 21 years of experience in defending individuals charged with Federal and State crimes, and has dedicated his practice to giving competent and vigorous representation to each and every one of his clients.

Vincent J. Sanzone, Jr., Esq.

Law Office of Vincent J. Sanzone, Jr.

Elizabeth, New Jersey

CriminalDefenseNJ.com

(908) 354-7007

YourCivilRights@gmail.com