Brady and Giglio Final Paper

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We read about and heard a guest speaker discussing recent issues involving cellphone tracking devices and the collection of cell phone location information. There is dispute whether a person has a right to privacy in location information collected by mobile phone companies. See, e.g., United States v. Davis, 785 F.3d 498 (11th Cir. 2015) (en banc). Consider another arguable threat to privacy: License Plate Readers. Such readers can be installed on any public street, and can record the license plates on all passing cars.

Suppose you are a judge overseeing a criminal trial, and the prosecution wants to introduce into evidence data from an LPR that shows the criminal defendant’s movements on the day of the crime (say, a bank robbery). The prosecution did not obtain a warrant for the information. How do you go about thinking about the issue? Does it matter: (a) how long the information is retained? (b) how many license plate readers there are -- that is one every 20 miles on a highway or are they on every block of a busy city street? (c) who maintains the license plate readers -- a law enforcement agency (e.g., the state police) or an administrative department of the state (e.g., the state department of transportation, or department of public works)? What additional questions would you need answered before making your decision?

Topic 6 - Experts

We saw from the reading on experts that there is a strong push, especially among the community of defense counsel, to prevent any one from testifying as an expert if they cannot establish a known error rate in their field of practice. For example, DNA experts can testify that the error rate for a particular test or procedure is “1 in x million,” and, thanks to recent developments and controlled trials, fingerprint analysts are able to say that they have an error rate of “1 in x hundred.”

Should the ability to state a tested error rate be a requirement for all scientific expert testimony? Consider the following: In a child molestation case in which the complainant waited for four years after the alleged molestation to tell anyone of the alleged molestation, the prosecution wishes to introduce the expert testimony of a child psychologist who specializes in treating victims of child molestation and who will testify that it is not unusual for children who have been molested to wait -- sometimes several years -- to reveal their molestation. The child psychologist has never done a study to show how many children wait, or how often allegations of years-old molestation are false, or whether the rate of false delayed allegations is different from the rate of false prompt allegations, but she is comfortable in saying that she has treated molestation patients for 20 years, and recognizes the phenomenon of “delayed outcry.” She will also testify that the reason for the delayed outcry, in her opinion, is that children are often frightened by their molesters and still in contact with them after the molestation, or are embarrassed by the molestation itself.

Should she be permitted to testify about the phenomenon? If so, what should she be entitled to say about it and what, if any, jury instruction should be given?