2nd honker
Jan. 17, 2018
News Picks from NYSDA Staff

News Picks
OCA Increases Hourly Expert Fee Guidelines. Administrative Order AO/446/17, signed by the Chief Administrative Judge of the Courts on Dec. 19, 2017, institutes new guidelines for expert fees effective Jan. 1, 2018. The new guidelines are: $250/hour for physicians and psychiatrists, $150/hour for certified psychologists, $75/hour for certified social workers, and $55/hour for licensed investigators. See also OCA Division of Financial Management Bulletin 1801 .
The Administrative Order notes that "Implementation of these guidelines shall be consistent with and subject to the limitations on maximum payments and exceptions for extraordinary circumstances contained in" County Law 722-c and Judiciary Law 35. When the rates were proposed, the Request for Public Comment said, "[i]t is anticipated that the Unified Court System will seek legislative amendment of those provisions ... which currently cap the compensation of court-appointed experts in various proceedings absent a finding of 'extraordinary circumstances.'" NYSDA supports such an amendment, and pointed out in comments to the proposal that an amendment to the compensation caps is required for any increase in the guidelines to be meaningful.
In addition to advocating for adequate compensation for defense experts, NYSDA seeks in other ways to help public defense lawyers get the expert assistance they and their clients need. For example, see our publication, "Getting the Expert Funds You Need Under County Law § 722-c," available on our website. When issues arise that are not addressed in the publication, please contact the Backup Center.

Video Equipment Grants Awarded in Advance of April 1 Effective Date of Law Requiring Recording of Some Custodial Interrogations. The Division of Criminal Justice Services (DCJS) has announced more than $650,000 in grants to local law enforcement agencies to purchase new or updated equipment in advance of the changes to CPL 60.45 and Family Court Act 344.2, effective April 1, 2018, that require law enforcement to video record custodial interrogations in certain A felony and B violent felony cases. The press release names 28 local agencies as grant awardees.
The new law strictly limits the types of cases where recording is required and is riddled with exceptions that allow police to bypass the recording requirement, such as "if such statement is not recorded as a result of an inadvertent error or oversight, not the result of any intentional conduct by law enforcement personnel" or "if such statement is made at a location not equipped with a video recording device ...." The new law provides that video recording "shall be conducted in accordance with standards established by rule of" DCJS. See CPL 60.45(3)(e). The Video Recording of Statements Equipment RFP, which was the basis for the grant awards, contains the Municipal Police Training Council Video Recording Model Policy Memo and the 2013 Model Policy; the Model Policy Memo includes a link to a DCJS online training program, " Investigative Strategies and Skills for the Recorded Interview (link does not work in all browsers). The Introduction to the RFP states that the "model policy will be updated in the future to reflect recent statutory changes."
When the legislation was enacted last year, John Schoeffel, Staff Attorney with The Legal Aid Society's Special Litigation and Training Units, prepared a Practice Advisory summarizing the legislative changes regarding video recording of custodial interrogations, as well as the admissibility of photo identifications. As noted in the July 31, 2017 issue of News Picks, the New York State Criminal Jury Instructions Pattern Jury Instructions on Confession added a section on the failure to record a statement under the revised CPL 60.45. The Backup Center will be monitoring the implementation of these legislative changes.

Intellectual Disabilities and Family Court Representation: Free Webinar. The National Research Center for Parents with Disabilities is sponsoring a free webinar for attorneys who represent parents with intellectual disabilities in family court proceedings on Wednesday, February 21 from 2:00-3:00 pm. Issues to be addressed include the application of disability law in the child welfare system and strategies for best representing those parents. The presenter, Robyn Powell, MA, JD, Research Associate at the Lurie Institute for Disability Policy, lectures frequently on issues surrounding the family court representation of persons with either physical or intellectual disabilities. This webinar may be especially relevant for New York practitioners given that the Court of Appeals will be reviewing a First Department decision concerning the agency's "diligent efforts" to reunify a family in relation to the Americans with Disabilities Act. Matter of Lacee L., 153 AD3d 1151 lv granted 2017 NY Slip Op 94379(U) (1st Dept 12/7/2017). For more information about the webinar and how to register, please click here

Drug-Sniffing Dogs May Be Sniffing Out Their Handlers' Wishes, Not Contraband. In 2011, trainers and handlers of dogs used in drug detection didn't want to hear about a study that found their canines might be picking up subconscious (or other) signals from their human partners rather than scents when deployed. But now, according to a recent NPR story , some are acknowledging the need to examine the problem. The article also points out the pressure that exists to maintain the status quo rather than test and train canine detection teams to avoid skewed outcomes; one former police dog handler said, "'All [police departments] care about is how many cars you're pulling over, how much money is being seized because your dog alerted,' ... referring to departments that use civil asset forfeiture to keep money and other property found in cars after a K9 alerts to the scent of drugs."
Attorneys looking to challenge the work of drug-sniffing K-9s may want to check out the standards of the Pacific Northwest Police Detection Dog Association (PNWK9), which the NPR story points to as using a retesting/certification "method that aspires to scientific levels of impartiality." The PNWK9 " Narcotic Dog Certification Rules and Guidelines " include single and double-blind exercises and much more. Older standards were set by the Scientific Working Group on Dog and Orthogonal Detector Guidelines (SWGDOG); they include standards for Substance Detector Dogs, Narcotics Section (2007) and general guidelines (2009). SWGDOG challenged the 2011 study mentioned above. The SWGDOG guidelines were described in a 2016 dissertation in Scotland as falling "short in offering any detailed analysis of specific handler behaviours or techniques which may influence a dog's performance." The dissertation writer also found that criticisms of the 2011 study were warranted, and set up a new study. The major conclusions included this: "handlers do introduce behavioural biases in detection dog work ...." The final recommendation was "that a comprehensive evaluation of handler behavior and techniques which may influence a detection dog should be introduced to detection dog training."
So it is not enough for law enforcement agencies to assert that the dogs in their K-9 units pass strict examinations and even "exceed the number of hours of monthly maintenance-training specified by New York State." Defense counsel encountering such assertions   about a dog detection team said to have uncovered evidence against a client may find the above materials helpful. And NYSDA will watch for new studies as they emerge.

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