Let’s talk about experts for minute. The Blasdell cases, extremely important case on page 30 of the paper, decided by the court of criminal appeals. In that case, the defense wanted to put on a physiological expert to talk about the unreliability of the eye witness identification in that case. And the expert wanted to talk about “weapons focus effect”. And I think with that means is; when you get a gun shoved in your face, you tend to look at the gun and not the color of the robber’s eyes or how big his nose or ears are. And so therefore your identification is going to be less reliable and he had a lot of data to support it but he was unable to say. The expert in Blasdell was unable to tell the trial court that, that weapons focus effect had in fact effected the identification in that case.
Well, how could he? What kind of quack could say that that it had in fact affected it? And for that reason the trial court said,” Well the testimony doesn’t fit the facts of the case because your experts cannot say conclusively that it did in fact have an effect on the eye witness so I’m not going to allow it”. The court of appeals affirmed on that basis and the court of criminal appeals reversed! With the court of criminal appeals said is that, “An expert need not testify that the eyewitness’s perception was in fact impaired. It is no less valuable to educate a jury about the realistic potential, if that has been empirically shown to exist”.
So that’s a much easier standard on us. Rather than having to show that, that this witness would have been affected, just the realistic potential for that so much better case. Coz I remember and many of you do too remember probably where expert’s witness was really a game of; heads the states wins and tails the defense loses. Because if the state’s expert was allowed to testify, we could not win on appeal and if our experts were prohibited from testifying, we could not win on appeal! It’s much different now. Not just this case although this case is the most recent case which decides the case in a good way but in recent years, the court of criminal appeals has really loosed up on experts. Ex parte Henderson was a death penalty case outta Travis County. Doctor Bayardo testified at trial against Henderson. The defense in that case was that the baby had died, and the baby sitter was accused of killing the baby and the defense was, “Yeah the baby died but it was an accidental short fall. I didn’t intentionally strike the baby and killed the baby”.
Bayardo testified for the state and said, “That’s ridiculous, short fall theory is false and impossible” years later after much litigation, they had different experts come in and guess who Bayardo himself came in at the writ hearing and I guess to his credit said, “Look in recent developments in bio-mechanics and physics make it no way for me to know” so he didn’t say; Yes, it was a short fall or yes it might have been a short fall. He’d just said,” what I said before I can no longer stand by, there’s no way to know if this was a short fall accidental injury or if it was an intentional trauma”.
And the death penalty was, a relief was granted and the court said, the court of criminal appeal said, “In light of new biomechanical evidence, no reasonable juror would have convicted Henderson of capital murder” I mean isn’t it why we became lawyers so we don’t have to talk about biomechanics and physics and things like that? Well, get used to it, Somers v..State is another case. Also out of the court of criminal appeals on EMIT test, EMIT mean I had to write it down coz I couldn’t remember it “Enzyme-multiplied immunoassay technique” that’s what EMIT stands for. It’s a pulmonary test, used to be thought of as that. In Somers, Somers was a college kid who had a, who drank too much at his fraternity party and had a car crash and killed a woman, who was parked on the side of the road. The defense did not argue with Somers on intoxication, but the defense said couple of things; one we think the woman who was in the car was not killed by us, we think she was already dead, we think she had died of a heart attack and we think she had parked her car kind of cockeyed in the middle of the street and that contributed to the accident the way she parked and also she died of a heart attack that had nothing to do with a striking her and so therefore even if we were intoxicated, we didn’t caused her death and we’re not guilty with intoxication man slaughter.
And they wanted to put an evidence of facts that she had emphysema and cocaine in her blood. And the EMIT test, the preliminary test showed that there was cocaine in her blood. The problem is when they did the more positive, well excepted GS or whatever it’s called “The Good Test” on the woman’s blood a year later. It showed just trance amount of cocaine, too little for DPS to come in and say,” That is in fact cocaine!” So they were unable to say; she had cocaine in her system. Where it was a huge part of the defense’s defense and, but the problem was that probably because no preservatives had been put in the blood that they could well have been cocaine in her blood that dissipated between the time of the accident and a year later.
So the defense was in a really bad situation, they couldn’t prove that she’d been smoking crack and that she probably killed herself. So they offered the EMIT test, but the state objected and the trial court sustained the objection said,” this is just a preliminary test, it wasn’t confirmed and we’re not going to admit it”. The court of criminal appeals in this seems to me had have been a very well done case at trial and on appeal and the defense just bombarded the court with cases from other juror dictions and scientific studies to show that EMIT is reliable enough under the Kelly Standard to be admitted with or without confirmation. So I’ve got that as a Blue case, a good case but you could just as easily call it a ‘Red case’. And that’s unfortunate about you know whose ox is being gored today. The rules of evidence almost always are double edged. So what case we used to help us today might hurt us tomorrow, just be aware that EMIT testing is going to be admissible.