2nd honker
Sept. 19, 2016
News Picks from NYSDA Staff
News Picks
Public  Defense Providers Can Help Clients Who Are Human Trafficking Victims Obtain Services.  As part of the 2015 Trafficking Victims Protection and Justice Act ( L 2015, ch 368 ), Social Services Law (SSL) 483-cc(a) was amended to allow established providers of social or legal services to refer individuals who reasonably appear to be human trafficking victims to the Office of Temporary and Disability Services (OTDA) and the Division of Criminal Justice Services (DCJS) for specialized services, "if such victim consents to seeking services pursuant to [SSL article 10-d]." The amendment took effect Jan. 19, 2016.
In April, OTDA amended its regulations ( 18 NYCRR Part 765 ) to incorporate the revised statutory language. Section 765.2 provides that "[t]he term established provider of social or legal services shall include public agencies, county or municipal governments, or any subdivisions thereof; not-for-profit corporations, including charitable organizations incorporated, registered and in good standing with the charities bureau of the New York State Attorney General's Office; faith-based organizations; and educational institutions." In June, DCJS amended its regulations on human trafficking victims ( 9 NYCRR Part 6174 ) to incorporate the statutory amendment.
The referral form and information about the services available for human trafficking victims, including a list of service providers, are available at https://otda.ny.gov/programs/bria/trafficking.asp . If you represent a client in criminal or family court who is a non-citizen and who may be a human trafficking victim, you should contact the regional immigration assistance center in your area for information about how a service referral could impact the client's immigration status. A list of the centers is available on NYSDA's website at http://www.nysda.org/page/CrimImmResources

Court of Appeals Overrules Matter of Alison D. to Allow De Facto Parents to Petition for Custody and Visitation. Heralded by some as a landmark decision, Matter of Brooke S.B. v Elizabeth A.C.C. (2016 Slip Op 05903 [8/30/2016]), recognizes the value of the relationship between a child and a non-biological person who has acted as a parent to a child. Specifically, the Court of Appeals overruled the precedent in Matter of Allison D. (77 NY2d 651) to allow the definition of "parent" to include persons who are neither married to a biological parent nor have formalized an adoptive relationship with a child, but have agreed to the conception and rearing of the child. See Domestic Relations Law 70. "We will no longer engage in the 'deft legal maneuvering' necessary to read fairness into an overly-restrictive definition of 'parent' that sets too high a bar for reaching a child's best interest[] and does not take into account equitable principles ...."
For further exploration of de facto parents' rights in relation to the U.S. Supreme Court decision in Obergefell v Hodges, see this post on the Concurring Opinions blog.

OCFS Extends Emergency Rule Regarding School Interrogations. The Office of Children and Family Services (OCFS) has opted to extend the term of the Emergency Rule that directs county school districts and departments of social services to continue the practice of questioning children at school without parental notice when an allegation of abuse or neglect is raised. This response is meant to address the anxiety that school district officials felt after they learned about the outcome of Phillips v Orange County , which was first reported in the October 6, 2015 issue of News Picks. Subsequent developments were reported in the April 19, 2016 issue and June 30, 2016 issue . OCFS intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule-making, I.D. No. CFS-23-16-00004-EP, Issue of June 8, 2016. The emergency rule will expire Oct. 17, 2016.

Communicating Forensic Science  - How Jurors Weigh Complex Expert Forensic Evidence . A federally funded research report, Communicating Forensic Science , was recently released on the broad issue of how jurors respond to forensic expert trial testimony on the issue of identification, e.g., fingerprints, bite marks, etc. The researchers, led by Dr. Nicholas Schweitzer of the Law & Cognition Lab at Arizona State University, sought to determine "what factors affect how a juror will understand and weigh complex forensic identification expert testimony?" The study included an examination of whether a forensic expert's expressed level of subjective certainty, experience in the field and in court, and the witness's degree of willingness to concede the possibility of error, impacted jurors' views of the strength of the forensic evidence. The study also considered the impact of exculpatory forensic evidence.
"The findings suggest that jurors tend to over-value some attributes of forensic science expert testimony and under-value other aspects," and do not "always assess scientific evidence on the meaning and strength of the evidence, but lean heavily on the people telling them what lesson to take from the evidence." The study reveals a risk that "jurors who hear forensic science testimony may be attending to irrelevant, correlated cues (examiner experience and confidence) while ignoring a key cue (scientific validity)."
The researchers proposed potential application of the findings on various fronts. For forensic science organizations and scientific and legal authorities, they "might choose to take note of [the] findings, in part, to identify standards for the conduct and presentation of expert witness testimony at trial." They further noted, of particular interest to defenders, that the "findings underscore the importance of the judicial gatekeeping function ...." "If jurors have great difficulty evaluating the quality of the evidence offered by forensic scientists at trial, and instead allow themselves to be led to conclusions by superficial and ultimately uninformative attributes of the witness, then the court's gatekeeping duties are that much more important to ensuring a fair trial and a correct verdict."
The report is a reminder of the importance of seeking court approval for funds for expert assistance in evaluating evidence and finding ways to effectively communicate with lay jurors about the scientific validity of the relevant forensic discipline and the competence of the experts. Defenders with questions about seeking expert witness funds under County Law 722-c and other issues involving forensic science experts are encouraged to contact the Backup Center.

President's Council on Science and Technology Criticizes the Scientific Validity of Feature-Comparison Methods. Earlier this month, the President's Council of Advisors on Science and Technology (PCAST) voted to approve a report to the President entitled, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods. The final report is expected to be released sometime this month. A draft of the report, dated Aug. 26, 2016 and marked "PREDECISIONAL -- DO NOT QUOTE OR DISTRIBUTE," has been posted online. The report addresses feature-comparison forensic practices, such as bitemarks, latent fingerprints, firearms, hair, shoe treads, toolmarks, and DNA mixture analysis, which are methods used to "determine whether an evidentiary sample ... is or is not associated with a potential source sample ... based on the presence of similar patterns, impressions, features, or characteristics" in the two samples. It also explores the scientific validity of each practice, the necessary steps to make the processes scientifically valid, and if allowed in court, how these practices should be used.
Regarding bite-mark analysis, the draft report concludes that such "analysis does not meet the scientific standards for foundational validity and is far from meeting such standards. To the contrary, available scientific evidence strongly suggests that examiners cannot consistently agree on whether an injury is a human bitemark and cannot identify the source of a bitemark with reasonable accuracy." And there is little prospect of developing bitemark analysis to meet scientific standards.
In contrast, the Council found that "latent fingerprint analysis is a foundationally valid subjective methodology-albeit with a false positive rate that is substantial and is likely to be higher than expected by many jurors based on longstanding claims about the infallibility of fingerprint analysis." The report recommends that juries should be informed there have only been two "properly designed" studies conducted on fingerprint analysis, those studies have produced false positive rates of 1 in 306 and 1 in 18, and the actual false positive rate in casework may be higher. With regard to firearm analysis, there is only one reliable study assessing the validity of firearm analysis, and this study alone is not enough to establish scientific validity. The Council noted that using "machine learning" methods for fingerprint and firearm analysis will convert these methods from subjective to objective practices.
In its discussion of DNA analysis of complex-mixture samples, the Council stated that "probabilistic genotyping software programs clearly represent a major improvement over purely subjective interpretation," but that "they still require careful scrutiny" and evaluation of these programs should be done by groups that are not associated with the software developers.
In a press release , the National District Attorneys Association (NDAA) said the Council's conclusions are "scientifically irresponsible" and " [a]dopting any of their recommendations would have a devastating effect on the ability of law enforcement, prosecutors and the defense bar, to fully investigate their cases, exclude innocent suspects, implicate the guilty, and achieve true justice at trial." NDAA president, Mike Ramos said "[i]t is unfortunate that members of PCAST, none of whom are forensic practitioners who have been trained or tested for competence in the forensic disciplines, ignored vast bodies of research, validation studies, and scientific literature authored by true subject matter experts." An article in the Washington Post, however, pointed out that the 19 member Council " is made up of renowned scientists -  people who work in professions governed by objectivity; who have achieved great success in fields where data is of the utmost importance and rhetoric means nothing; and who have no personal stake in whether these particular disciplines continue to be used in the courtroom."
The Communicating Forensic Science report discussed above, highlights the importance of the judicial gatekeeping function. However, this assumes that judges, who are legally (not scientifically) trained, weigh expert evidence differently than jurors and are more qualified to make scientific judgments. The Washington Post article says "[r]eal change would require that we stop making judges the gatekeepers of science in the courtroom. The judges who decide whether a new forensic discipline has the scientific chops to be presented to a jury are no more qualified to make that determination than the NDAA."

Justice Department Announces New Forensic Science Policies. Less than two weeks after the PCAST vote, the Department of Justice announced that it is implementing new forensic science policies "that will promote professional responsibility among forensics practitioners, institute best practices and advance the relationship between the academic research of forensic science and implementation in the field." The policies include a new Code of Professional Responsibility for the Practice of Forensic Science , which applies to Department of Justice personnel. The Code requires that forensic science providers "[p]repare reports and testify using clear and straightforward terminology, clearly distinguishing data from interpretations, opinions, and conclusions. Reports should disclose known limitations that are necessary to understand the significance of the findings." The new policies are based on recommendations by the National Commission of Forensic Science

Association News
Register Now for the Second Families Matter Conference. The Families Matter: Parent Defense in New York conference will be held on Oct. 14-15, 2016 at the Albany Hilton. The registration form and information about the program are available at the conference website, www.nyparentdefense.com . The conference is sponsored by NYSDA, the NYS Office of Indigent Legal Services, and the NYS Unified Court System Child Welfare Court Improvement Project. Questions about the conference? Contact NYSDA Family Court Staff Attorney Lucy McCarthy at 518-465-3524 or lmccarthy@nysda.org

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