QUOTE OF THE DAY: "The case isn't over, but this is a huge shift in the burden of admissibility for DREs (Drug Recognition Experts) in courts," said Rich Lomurro, a Freehold criminal defense attorney, who frequently represents clients charged with DUIs. "The angle they hold the flashlight. The way they press the skin to look for firmness. There's a methodology to all that, and it has to be done a correct way otherwise the whole test is out the window."
In a unanimous ruling released Friday, Chief Justice Stuart Rabner said that judges must consider whether the testimony of drug recognition experts is reliable before qualifying them as expert witnesses in DUI or DWI cases, such as the two cases at the center of New Jersey v. Olenowski, which has been litigated since 2015.
Until now, drug recognition experts were held up to the "Frye standard," a legal precedent that allows such expert testimony to be admitted as long as it's "generally accepted" as reliable in the scientific community. But there is no such scientific community when it comes to drug recognition experts — only officers and law enforcement agencies who rely on them to prosecute cases.
Rabner ruled they should be held to the Daubert standard, a legal precedent that casts judges as gatekeepers when it comes to expert testimony, allowing them to examine just how reliable or scientific that testimony might be.
"Daubert is a better standard for testing scientific reliability," said attorney John Menzel, who represented the New Jersey State Bar Association as an amicus party in the Olenowski case. "Science is a very rapidly evolving thing. The focus of Daubert is on the methodology to make sure it's reliable and scientific, not just based on the idea that people have always relied on it."
Expert witnesses are already held to the Daubert standard in federal court and an increasing number of state courts.
The fate of the drug recognition expert program is still up in the air. Rabner's ruling didn't put Olenowski to bed; rather, it remanded the issue back to Judge Joseph Lisa, appointed by the Supreme Court as the case's special master. In August, Lisa ruled it satisfied the older Frye standard. Now, he'll be tasked with examining whether it meets the Daubert standard.
"The case isn't over, but this is a huge shift in the burden of admissibility for DREs in courts," said Rich Lomurro, a Freehold criminal defense attorney, who frequently represents clients charged with DUIs. "The angle they hold the flashlight. The way they press the skin to look for firmness. There's a methodology to all that, and it has to be done a correct way otherwise the whole test is out the window."
The New Jersey Attorney General's Office did not immediately return a request for comment."
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
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