Criminal defense

May 20, 2015

Forensic Podiatrists Examine Crime Scene Footprints to Identify a Suspect

by Law Offices of David L. Freidberg, P.C.

Often a criminal defense case will rely on the use of expert testimony. Whether it is DNA evidence, blood splatter, fingerprint or hair analysis, this evidence must be tested and interpreted, and the results relayed to the jury by an expert in the field. Much of the forensic evidence used in criminal trials is well accepted theory. The prosecutor and defense attorney may disagree on whether the fingerprint analysis points to the defendant, or whether the results of DNA testing pinpoint the defendant as the suspect, but they do not question the science behind this evidence or its ability to be used to identify a suspect.

But what happens when a new type of science comes along, such as say, forensic podiatry?

Use of Expert Testimony in Chicago Criminal Cases

Forensic evidence, when available, and questioning of the forensic expert, can often mean the difference between conviction and acquittal. If the evidence doesn’t point to the defendant as the one who committed the crime, the verdict is often (though not always) an acquittal. Likewise, if the expert can be debunked on the stand, whether due to a history of inaccurate analysis, improper credentials or because the other side’s expert comes across as more knowledgeable, the verdict can be swayed in favor of the side with the most convincing expert.

Not just anybody can be deemed an expert with the ability to testify in court regarding a particular subject. Some experts are recognized on a local level, and neither side will object to their being brought to the stand to testify as an expert in their particular field. In order to be accepted as an expert, the prosecution (or defense, depending on who is calling the expert) must show to the court that he has the necessary “knowledge, skill, experience, training, or education” regarding the subject matter of which he claims to be an expert. This proof is usually accomplished by the expert’s educational background, work in the field, publications, number of prior cases in which he has served as an expert and reputation in the field.

If, however, the witness claims to be an expert in a field that is new – such as forensic podiatry – the requirements to be admitted as an expert are a bit harder to prove. In addition to proving the necessary knowledge in his field, the prosecution or defense attorney (depending on who is calling the expert) has the burden of proving that the scientific principles or methodology underlying the expert’s opinion, and how he came to it, “is sufficiently established to have gained general acceptance in the particular field in which it belongs.”

What does this mean? It means that the prosecution must prove more than just “this witness is an expert because he works in this field.” In the growing field of forensic podiatry, which is not as generally accepted as fingerprint analysis or DNA, he would have to prove that the science behind the method is sound. The judge is responsible for making a determination as to whether a witness qualifies as an expert; the jury may give as much weight to the witness’ testimony as they wish, which means they can discard it entirely.

Both the prosecution and criminal defense attorney can call their own witnesses to the stand to testify about the same piece of evidence. It is then up to both attorneys to prove to the jury why their expert is the most credible, and why his testimony should be given the greatest weight during deliberations.

May 14, 2015

The Use of Social Media in Chicago Criminal Cases

by Law Offices of David L. Freidberg, P.C.

Social media sites such as Facebook, Twitter and Instagram are changing more than just how we communicate with friends and family. It is changing the way law enforcement and criminal defense attorneys handle their cases as well.

The Oak Brook police department, for example, posts alerts on its Twitter and Facebook pages in real time, alerting followers to descriptions of suspects and vehicles to be on the lookout for. Law enforcement routinely comb suspects’ social media sites – many of which are wide open to the public – for evidence that could point to commission of the crime or fulfill the reasonable suspicion necessary to obtain a search warrant.

Law enforcement also uses social media in sting operations to catch child predators, having undercover cops pose as underage children in online chat rooms or other groups and arranging meetups. And a suspect’s updates can pinpoint his location to a specific time and location, which could help put him in the vicinity of the crime or, in the case of a defense attorney, could provide an alibi.

But while social media is changing the way police, prosecutors and criminal defense attorneys obtain evidence and conduct their investigation, the evidence is still subject to scrutiny and must be collected in accordance with the same rules of criminal procedure that apply to other evidence.

Access to social media accounts. For example, law enforcement could not hack into your social media sites. If they want access to non-public information, they need to obtain a search warrant or have your consent to access the sites. If you have a shared account with another person – many husbands and wives share Facebook accounts, for instance – the other person could consent to law enforcement’s access of the account.

Hacked accounts. If the police find photographs or other evidence that tends to show the suspect was responsible for the crime, computer experts must be called in to examine the evidence to determine if it could have been posted by somebody else. Did the suspect have access to the social media site at the time the photo, status or other evidence was posted? Does somebody else have access to the account? Could the time stamp or location designation have been altered? Could the incriminating evidence have been posted due to spam?

On the other hand, social media sites give law enforcement the potential for unparalleled access to a suspect’s information that may seem sneaky, but are nonetheless legal.

Facebook friends. If your page is private, law enforcement can set up a fake profile and request to be your friend. If the friend request is accepted, law enforcement can use anything on your page as evidence without the need for a search warrant, because you invited them to look.

Off-site entry. Have you ever gotten a call from somebody claiming to be your computer’s technical support, asking for access to your computer to fix a “bug”? Law enforcement could try to access your computer that way as well, which could give access to your social media passwords. This may be considered legal access to your information, even though you wouldn’t have given them permission if you’d known who they really were, similar to if you allow a police officer into your home.

May 12, 2015

FBI Admits Errors in Analysis of DNA Evidence

by Law Offices of David L. Freidberg, P.C.

A joint task force comprised of the U.S. Department of Justice, the Federal Bureau of Investigation, the Innocence Project and the National Association of Criminal Defense Lawyers released a report in April indicating that in at least 90% of criminal defense trials reviewed, testimony by microscopic hair comparison analysis examiners was erroneous.

Three thousand cases involving FBI hair analysis are being reviewed as part of the review process. As of March 2015, approximately 500 of those cases have been reviewed. Among the report’s findings:

In cases where the examiner’s testimony was used as evidence of the defendant’s guilt, 96% contained erroneous statements;
In cases where the defendant received the death penalty, 94% contained errors;
Nine of the defendants sentenced to death have already been executed, and five died of other causes on death row; and
Of the 28 FBI examiners whose testimony has been reviewed, 26 of them had errors in their testimony or prepared lab reports containing erroneous statements.

The results of the joint study do not mean that there was no other evidence to support the defendants’ guilt, and the prosecution may have won a conviction even if the erroneous testimony had not been admitted at trial. But the fact that 96% of cases included false proof of guilt highlights the need for independent forensic experts in all criminal defense cases.

The popularity of television crime procedurals means that the public is more aware of DNA and forensic evidence than ever before. For many proof of guilt or innocence rests on the presence of DNA. But while advances in forensic science mean that forensic analysts are able to obtain DNA evidence from smaller and smaller specimens than they were in years past, the potential for error still exists, and a DNA “match” is not the slam-dunk television would have you believe. Errors in DNA evidence may include:

Improper collection;
Contamination of specimen prior to processing;
Failure to obtain a search warrant prior to taking a specimen;
Contamination of specimen during testing;
Malfunction of equipment used to test specimen;
Inadequate credentials and expertise of examiner, or;
Improper analysis of evidence.

Errors in DNA testing and analysis may be malicious or due to simple human error. Regardless of the reasons, those errors will go undiscovered without the knowledge and expertise of a seasoned criminal defense attorney and independent forensic experts. Forensic analysis submitted by the FBI or police department is biased; after all, they are the ones who made the arrest, so they are convinced of the defendant’s guilt. Thus in order to convince the jury that the prosecution’s analysis of the evidence is wrong, the defendant must obtain his own expert to test the DNA sample and prepare his own report on whether the evidence points to the defendant’s guilt or innocence. Failure to obtain an independent expert analysis of DNA evidence could mean the difference between a finding of guilt or innocence.

April 29, 2015

Intoxication as Defense in Chicago Criminal Case

by Law Offices of David L. Freidberg, P.C.

You have no doubt heard the story of a Kentucky woman who answered a knock at her door only to be assaulted by a stranger who began strangling her with a bra. The woman fended off the attacker after knocking her on the head with a ceramic chicken. The suspect pled not guilty and claimed she was under the influence of narcotics. But is being under the influence a valid criminal defense to the commission of any Illinois crime?

Intoxicated or drugged condition defense

Under Illinois law a person who commits a crime while intoxicated or otherwise under the influence of drugs or alcohol is still responsible for those crimes, unless the intoxication is involuntary and deprives him of substantial capacity to either:

Appreciate the criminality of the conduct; or
Conform his conduct to the law.

The intoxication defense is an affirmative defense. This means that the defendant, and not the prosecution, has the burden of proving that his intoxication was involuntary, and that as a result of this involuntary intoxication, he could neither understand nor control his conduct.

Under this standard, it is clear that knowingly drinking alcohol to the point of intoxication, or getting high on marijuana, cocaine or another drug, would fail the voluntary portion of this defense. But what situations would fall within the defense?

If the defendant was tricked or otherwise coerced into taking a substance that caused him to become intoxicated. Someone who ingested brownies or another food product made with marijuana, had a drug slipped in their drink, or in some other way took an intoxicating substance without knowing it was laced with drugs cannot be said to have become voluntarily intoxicated.

Another scenario would be when prescription or nonprescription medication affected the defendant in a way that was unexpected. Whether over the counter or prescribed by a prescription, drugs come with warnings of side effects. If drowsiness was a side effect, and the defendant ran over someone with his car after taking the drug and falling asleep at the wheel, he can’t be said to be involuntarily intoxicated. It was not his intent to become impaired, but he knowingly took the drug, with full knowledge of the potential side effects, and got behind the wheel anyway. The same could be said about a defendant who took a drug knowing that it had caused a reaction in the past. For example, maybe the defendant took medication that one day caused him to have a seizure. If he was in an accident at that time, he could successfully invoke the intoxication defense, because he had no idea the drug would cause that reaction. But if he took the drug again, knowing how his body may sometimes react, his intoxication would not be considered involuntary.

The above scenario would be different, however, if the defendant did not know the drug would affect him in the way that it did. For example, if the doctor failed to inform the defendant of possible side effects prior to prescribing it, or if the prescribed medication caused an adverse reaction with another medication the defendant was taking, and the physician failed to warn the defendant ahead of time of the consequences of the drug interaction. Another instance would be where the defendant had a previously undiagnosed medical condition that made him react to the drug in ways that could not have been anticipated when taken. If the defendant mistakenly took a powerful narcotic, when he thought he was taking something as ordinary as aspirin, could also be enough to invoke the intoxication defense.