Identifying Criminal Suspects in a Lineup

Eye witness testimony has always been of questionable accuracy. The human brain is not a computer, retrieving exact copies of what has been observed and placed in carbon based storage as a chemical composition. In fact, memories housed in the human brain are quite malleable and are modified in deference to a person's ego needs (sense of self) and deep rooted attitudes.

Now comes the finding that fingering a criminal suspect in a lineup is best done quickly and not after the witness is given time to ponder who he/she thinks is the criminal standing amongst innocent persons.

See excerpts from the May 3, 2012 issue of The Economist:

Neil Brewer, a psychologist at Flinders University in Australia, has devised a new type of police line-up, described in Psychological Science. Rather than simply pointing out the perpetrator, witnesses are asked how confident they are when identifying him. And they have to make up their minds quickly. Whereas a typical police officer tells a witness to take time and mull it over, Dr Brewer sets a very short deadline.

Dr Brewer knew from past research that strong memory traces are more rapidly accessed by the brain than weaker ones—and that accurate eyewitness identifications are made significantly faster than inaccurate ones. So he guessed that limiting the time witnesses had to look at suspects would yield better results.

Witnesses who were given a flexible choice but only a short time to ponder were much more accurate. They picked the correct suspects 67% of the time. The “yes or no” group picked the right man only 49% of the time. A witness delayed may be justice denied.

Homeowners Cautioned: Beware of Contract Mechanics Liens

Homeowners need to be aware of scams involving roofing and other home repairs provided by contractors! Our office recently talked to one of seventeen homeowners in the Greensburg area who had their roofs all repaired by the same Texas company in the aftermath of a tornado. The Texans never paid for the supplies they used in repairing the roofs. All homeowners paid in full for their roofing jobs, only to discover that the Texans never paid for the supplies used to repair their roofs. The local supply company filed mechanics liens on all the homes. The supplier is entitled to judgment against the homeowners, even though the Texans were paid in full. If the liens are not paid, the supplier can foreclose on the homes.

Legally, the homeowners will have to pay twice for the roofing materials, once to the Texans and once to the supply company. It isn't fair, but it is the law of mechanics liens.

Mechanics liens are intended to protect subcontractors and suppliers who are not paid by the contractor. Anytime you contract for a home repair, make sure you either have a non lien contract signed by the subcontractors or suppliers or you withhold money until you are certain all suppliers and subcontractors are paid. Otherwise, you could be in double jeopardy for paying twice.

There is an encouraging post script to the Greensburg story. The Greensburg District Attorney is investigating the Texas roofing company for theft by deception. The Texans could face criminal charges for their fraudulent conduct. The fear of being incarcerated may be what is needed for them to pay the roofing supplier so that our fellow Pennsylvanians are not stuck with paying twice for their shingles, nails, and other materials.

Religious Freedom Means No Religion in Public Schools

Marc Schneider, Charlie Steele and Jonathan Steele participated in a federal mediation last week that culminated in settling an "Establishment Clause" case against a Mercer County School District. School officials were complicit in conducting prayer groups during the school day, with a teacher facilitating the participation of local ministers in religious activities with students. Months earlier, the Superintendent invited ministers to an in-service meeting of teachers, where teachers were asked to pray with local ministers during their work day. School officials also distributed religious literature at school by having elementary students take the material home.

To some persons, religion in school sounds like a good idea, religion being the moral education of young students. However, religious freedom for all begins with separating government and religion, lest we be forced by government to worship a particular religion. All of us, believers, non believers, and doubters have the right to a public education free from the coercion of a particular religious group's teachings.

The employees who brought the suit, and suffered work place retaliation for defending the Constitutional rights of students and teachers to be free from religious coercion, were compensated for "hostile work" environment and reinstatement damages.

Steele Schneider is a civil rights law firm and we are proud to defend the Constitutional rights of our clients.

Overcharging for E-Discovery--Pet Rocks and Gunsmiths

Whenever "something new" is introduced into the marketplace, it is often overpriced. The "pet rock" comes to mind. Baby boomers will recall that the pet rock was the brainchild of a creative entrepreneur Gary Dahl. During the Christmas season of 1975 Dahl sold pet rocks for $3.98. The pet rocks were sold in a cardboard box with air holes for breathing. Purchasers were told that the pet rocks were the perfect pet because they didn't need to be fed, bathed, walked or nursed to health due to illness. In actuality, the pet rocks were gray stones purchased at a builders' supply store. Dahl became a millionaire because thousands of people purchased pet rocks.

I have a eerie feeling that charlatan techies of e-discovery are the pet rocks of 2011. These e-discovery keyboard jockeys are overcharging for their services, knowing that the legal market is scrambling to bring about fair handling of digital evidence and the prevention of spoliation in circumstances where documents aren't a stack of papers but "a block of arbitrary information, or resource for storing information, which is available to a computer program and is usually based on some kind of durable storage" http://en.wikipedia.org/wiki/Computer_file

The irony is that the digitization of documents should render it cheaper, not more expensive to produce computer files in discovery. A litigant no longer has to make "hard copies" of documents he/she wants to review. Armed with search terms, a party seeking discovery can search through thousands of documents in seconds as opposed to hours or even days. Copying the documents can be performed electronically with ease without crumpling or damaging the original files.

So why is e-discovery so expensive? In my opinion, it is because of a several factors. First, the courts are just catching up to understanding the technology of digital files, while attempting to superimpose old rules, meant for paper, onto e-discovery. Second, well heeled litigants are taking advantage of the opportunities to bleed their cash strapped opponents by charging him/her for digital scanning, storage and other services that can be performed cost effectively via collaboration between the litigants.

E-discovery experts are charging outrageous fees to sort through digitized data on hard drives and on corporate servers. These profit-minded experts frequently charge by the gigabyte, knowing that on a hard drive there are program files, movies and other large sections of the hard drive that do not need searched at all. Next, the e-experts charge expensive fees for storing the digital data produced in discovery.

The charges of these e-experts are out of line with the economies offered by technology. Storage is cheap. Litigants should ask the court to approve economical storage options that preserve the integrity of the digitized evidence being preserved. The best time to do this is at the inception of a case when e-discovery is negotiated between the parties and approved by the court.

Of course, each party should have its own e-expert. In choosing an e-expert, a party should be careful to know what they need. Is a forensic expert needed? Or is just an e-warehouse expert needed?

An e-warehouse expert knows how to secure the digital evidence from the opposing side, either by copying it via imaging or agreeing to a protocol to be followed by the other side for copying and/or imaging. The copies and/or images of the digital universe of information being preserved can be inexpensively stored. A "master image" of the imaged data can be stored with a third party or in the case of a non-party, with that non-party. This way, there is always a pristine version of the "original digital universe" of e-evidence that is relevant to the case. Preservation of a "master copy" of the "original digital universe" should ensure the integrity of the digital evidence inexpensively. Digital warehousing of evidence should be cheaper than paper discovery and the storage of paper documents. Yet that is often not the case due to ignorance of the e-discovery consumer and the fact that some courts have yet to grasp basic concepts of the digital world.

An entirely different matter is when a litigant needs a forensic expert. There are plenty of charlatans parading around as forensic experts. Many of these so-called experts' knowledge does not extend beyond the user's manual of the computer program they use. The limitations of the software they use are their limitations. If the software program they are using does not have a way to detect untoward alteration of a digital document, these pseudo forensic experts are clueless when it comes to ascertaining the true integrity of a digital document.

True forensic experts are trained to design software programs to evaluate the integrity of the digital documents within a universe of computer files. These real experts are worth their weight in gold because they are capable of finding the needle in the digital haystack, that needle being a hidden code or a fragment of a file that is inconsistent with what the digital document purports to be.

In today's world of digital authentication of documents key documents are offered into evidence as "purporting to be" digital documents that have not been tampered with. A real forensic expert is able to ensure that these digital documents pass the necessary muster to be regarded as original documents, not defiled by the deceptive tactics of a desperate and/or unsavory litigant.

Unfortunately for lawyers and their clients, it is tough to sift through the resumes of would be forensic experts and find a true expert, one who understands the technology behind commercial forensic software. Good questions to ask a self professed computer expert are:

1. Where was he/she trained? GIAC at http://www.giac.org/certified-professionals/directory is a good example of exemplary training. You can find highly trained and certified computer forensic experts on GIAC's site.

2. What tools does he/she use? If a professed forensic expert only uses forensic tools out of a box, ask him/her what training he/she underwent to use the software. Keep in mind that forensic experts tied to a single software platform have limited vision and skills. They are shills of the software manufacturer.

3. What cases has the forensic expert worked on? In connection with those cases what forensic challenge was addressed and what was the outcome? Understanding the experience and results of a forensic expert is critically important. If possible, ask to review the transcribed testimony of the expert. There is no better insight into the expertise of a forensic expert than ascertaining whether the expert withered under cross examination or rendered opposing counsel feckless.

4. Judge for yourself whether the forensic expert will perform well on the witness stand. Is the expert capable of explaining complex technological concepts in layman's terms? Is the expert likable and does he/she appear trustworthy?

Do your homework when hiring a forensic expert. If you mount a forensic challenge to the authenticity/integrity of digital evidence or defend such a challenge, your case will rise and fall on the capabilities and ability of your expert to be communicative. If you come across a forensic expert that meets your expectations after being vetted, he/she is no digital storage jockey, whittling at a digital warehouse. A true forensic expert who can convince a court that spoliation or digital skullduggery occurred is likely worth the price being asked for his/her services.

In sum, don't over pay for digital downloading, imaging and storage. When it comes to hiring a digital gunslinger, a forensic expert, don't hire an ill trained, techie salesman who professes to know forensics when all he/she is is someone who buys his gun/weapon out of a box. That pseudo expert will be as valuable as a pet rock, which in 2011 is substantially less than the $3.98 it sold for in 1975.

Hire a forensic expert who is akin to a gunsmith, someone who in a technological sense knows how guns are made and can make and shoot his own gun at a hidden target. The price you pay such an real expert will be dictated by the amount at stake and the forensic issue that may be preventing your rightful recovery.

E-Dicovery Ruling Could Prove Costly

In a case that favors well-heeled litigants, a Pittsburgh federal court equated e-discovery costs with "making copies" and ordered a plaintiff to pay $367,000 in electronic copying charges.

E-experts are taking advantage of the legal marketplace by overcharging clients for their services. Many of these "so called" experts just push buttons to software programs they don't understand. Other e-experts charge exorbitant per diem fees for electronic paper shuffling.

A wealthy litigant can bear the costs of these over-priced keyboard jockeys, knowing that if they prevail, they can saddle these costs onto the losing party.

Our solution--hire your own e-expert and have him/her do as much as possible in retrieving the electronic files. For example, if a hard drive is to be imaged, have you own expert perform this task on a laptop computer that is physically produced pursuant to a discovery request. If you are requesting email records from a file on the other party's server, request information about the server's operations and the storage of emails and have your expert give precise instructions on the downloading of emails.

If you have e-discovery issues, give us a call. We can help.

The Importance of Documents

I would sooner trust the smallest slip of paper for truth than the strongest and most retentive memory ever bestowed upon a mortal man. --Joseph Henry Lumpkin, American Jurist

When juries retire to decide the the results of a trial, they evaluate the evidence presented to them. There is no doubt that documents trump testimony in importance. This is because jurors trust documents more than witnesses. Jurors expect witnesses to shade their testimony to one side or the other. Documents created before trial, often before a lawsuit was ever contemplated, are deemed to speak the truth more often than do witnesses.

Too often trial lawyers inundate juries with innumerable documents, so many documents that the power of the most important documents in a trial are diluted with unimportant exhibits. Most trials, not matter how complex the issues are, boil down to no more than three to five critical documents. It is the trial lawyer's job to bring those documents to the attention of the jury, citing their importance in helping the jury decide the case.

What this all means is that a client should create and maintain important documents if they think litigation might ensue at some future date. Documenting conversations and confirming facts with an adverse party is an important part of pre-litigation document creation and preservation. Damning admissions by an adversary that surface in emails or correspondence can make the difference at trial.

Clients should not expect the other side to preserve emails and other documents. There is too great a temptation, despite severe penalties for doing so, for parties to eliminate emails and other documents of importance when litigation is expected. That is why it is always advisable to print or download emails and other digitized documents so that they are preserved for later use in litigation.

Remember, documents testify, as do witnesses. Documents that are created in the ordinary course of business--not those perceived to be self serving--speak the truth to a jury.

Another important aspect witness testimony, as opposed to documents, is that humans have an illusion of memory. Human memory does not store a person's observations of events like a tape or video recorder. To the contrary, "what is stored in memory is not an exact replica of reality, but a re-creation of it. We cannot play back memories like a DVD--each time we recall a memory, we integrate whatever details we do remember with our expectations of what we should remember." The Invisible Gorilla, Chabris, Christopher and Simons, Daniel, Crown Publishing New York.

What this all means is that witnesses can give testimony they believe to be true when it is not. That is why the preservation of documents is important. Documents force witnesses to confront a recording of events that was created at the time of the events' occurrence. If a witness gives testimony that is contradicted by a believable document, the document impeaches the credibility of the witness, especially if the witness authored the document that impeaches him or her.

Of course, document preservation, including the preservation of all electronically stored evidence, is required of parties to litigation whenever litigation is reasonably expected to occur. A word to the wise, however, is for anyone thinking about filing a lawsuit to preserve evidence as soon as litigation is contemplated.

A Crisis of Candor

While having lunch with a long time friend recently, we discussed a fellow lawyer whom I regarded as being less than honest. My good friend disagreed with my assessment of the lawyer's character. He described the lawyer as being crafty, conveying that this quality was a positive attribute.

The reason why I regarded the defense lawyer to be dishonestly crafty was my experience with him in a personal injury case. The defense lawyer sought the dismissal of my client's case by claiming she "assumed the risk" of her injury. He did this despite knowing that the defense of assumption of the risk has been practically eliminated by the Pennsylvania Supreme Court. The defense of assumption of the risk requires an injured party to knowingly encounter an obvious risk, disregarding the dangers that risk poses to him or her. For a defense attorney to succeed using an assumption of the risk defense, the injured party must encounter a risk of injury or danger with an attitude of knowing indifference.

In my client's case, she opened and walked through a solid door at a construction site, not knowing what was on the other side of the door because of the ever changing circumstances at the work site. Her injuries were permanent, serious and life changing. It is undisputed that my client did not know what was on the other side of the solid door. She didn't knowingly disregard an obvious risk. At best, she was negligent in opening and walking through a door that she forgot she was instructed not to use. Proper application of the law of negligence would have allowed her to have her case decided by a jury. A jury should have decided how much her negligence should have reduced her amount of recovery against the construction company that did not properly barricade or place a warning on the door to prevent its use.

My client's case was dismissed by a trial judge who ignored the legal precedent relevant to assumption of the risk. It is possible that the judge ignored the legal precedent of assumption of the risk because the crafty defense lawyer did not cite and explain the existing and relevant legal precedent and try to distinguish the facts of the case before the court to avoid the application of the same.

I don't fault the trial judge for this injustice, although courts should know the law as it is applied to facts. The culprit in this nightmare for my client is the crafty defense lawyer. He failed to discharge his obligation of candor to the court, hoping to win at all costs. His lack of candor presented the court with an unnecessary legal conflict to be resolved against a backdrop of him filing a brief filled with sophistry that ignored my client's argument to apply existing precedent. He hoped to confuse the Court and succeeded in doing so.

I was taught my candor obligation by my mentors, gentleman and lady lawyers who were licensed to practice law in the aftermath of WWII. These giants of the law taught me that all lawyers owe a solemn obligation of candor to the Court.

Candor means honesty in the context of acknowledging and deferring to existing legal precedent announced by court decisions in prior appellate cases or by a trial court in the county where the case is is filed. Candor enables lawyers and their clients to rely upon stare decisis or "standing decision" such that they can expect that legal precedent will be applied to their case if they can prove their facts mirror the facts giving rise to the legal precedent relied upon. If every case were a free-for-all of argument with no guiding precedent, no lawyer could advise clients to file or not file a complaint based upon existing legal precedent. Legal anarchy would ensue, as it did for my client.

Our adversarial system of justice assumes that both plaintiff and defense lawyers will acknowledge applicable legal precedent, whether that precedent is helpful or harmful. Courts depend upon lawyers involved in a case to educate judges of the existing legal precedent that applies to the facts of a case. If a precedent is harmful, the lawyer is required to disclose and accurately explain the precedent to the court. The lawyer faced with negative legal precedent has only one candor option. That option is to distinguish the precedent by convincing the court that the facts of his/her case are distinguishable from the facts giving rise to the existing precedent. Convincing the court that the facts in the case are distinguishable allows the skillful and candid lawyer to argue that the existing legal precedent ought not apply to the unique facts of the case before the court because such application will lead to an absurd or unjust result. Zealousness and candor are reconciled.

Lawyers are required to be zealous and candid, not zealous and crafty, if crafty is equated with purposefully ignoring or misinterpreting legal precedent. An attitude of winning at all costs ignores the obligation of candor and results in unpredictable and inconsistent legal rulings for our citizens. Unfortunately for our citizenry, my experience is that my lawyer colleagues fail miserably at discharging their obligation of candor in pursuit of winning at all costs.

I recall the oft used phrase of my evidence professor in law school. "Change the facts, change the law!" My professor's proclamation rings in my ear to this day. It was his way of encouraging his future lawyers to be candid with the court in resisting the application of precedent to facts that are distinguishable to the fact pattern which created the precedent to be avoided.

Only courts can compel the return to candor by requiring it of attorneys whenever it is lacking. Only if lawyers are upbraided and possibly sanctioned for the lack of candor will they refrain from advocating arguments that are inimical to a lawyer's obligation to educate the court about the precedent that applies to the facts of the case.

Until then, I struggle with opposing counsel who obfuscate rather that educate the court about controlling precedent. Too often, I oppose mega law firms that throw everything but the kitchen sink at my client in terms of arguments, including arguments that ignore or misinterpret clearly established legal precedent.

All the while, my clients pay for the lack of candor by higher legal fees and being the victims of delay and legal decisions that fly in the face of existing legal precedent that was relied upon in filing and defending the case before the court.

Candor and zealousness can coexist only if lawyers fear being penalized for shirking their responsibility, as officers of the court, to be candid about legal precedent that could harm their chances of winning. After all, some of the best legal advice to be given to a client is an explanation of harmful legal precedent that lessens the chance of winning. It is only then a client can make a risk of loss decision that is consistent with existing law.