"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Monday, December 13, 2021

On the necessity of motions in limine (to exclude) re testimony of experts on the ultimate issue of criminal proceedings - whether the defendant killed the alleged victim

The US Supreme Court has stated a long time ago that for the law to be constitutional, it must be

  1. statutory (done by legislature and not by judges or executive/administrative agencies);
  2. be clear to an ordinary person (not university educated, no law degree); and
  3. contain a clear guide for application of the law for the police, prosecutors and judges.

What happens in court is usually the opposite.  Lawyers and judges bamboozle the public with terms and "rules" that even judges and lawyers squabble over as to WTH they mean.

So, when I say "motion in limine", that is lawyerspeak for a good old request to the court not to allow introduction of certain proof at trial.

Now, I receive a lot of mail from readers of this blog who report that various prosecution-hired experts in CPS ("civil") and in criminal proceedings routinely testify in court on the so-called "ultimate issue" - was the defendant responsible for the injuries of the alleged victim or not.

Sometimes forensic proof (DNA evidence etc.) points clearly at the defendant, and then such testimony by the expert is warranted.

Oftentimes, though, a forensic expert LACKS proof (a person has been raped, but there is no DNA evidence pointing at the defendant as the perpetrator, or the alleged victim obviously died from a certain weapon - knife, gunshot wound etc.), and the expert fills in the gaps by testifying that IN HIS SCIENTIFIC OPINION it was the defendant who raped-stabbed-shot the alleged victim.

It is apparent that expert opinions are allowed in court only when an expert knows more than an ordinary person and can explain to the jury facts that the jury may not understand without an explanation from a person with specialized knowledge in a particular field.

Yet, once the expert testified that in his opinion the victim did have sex on the day of the supposed crime, or that the alleged victim did die from a stab wound or from a gunshot wound, if the expert does not have ADDITIONAL evidence pointing at the defendant as perpetrator of the crime, the expert no longer has specialized knowledge to inform the jury WHO DID IT - and his "opinion" on the matter should not be allowed.

In federal cases, while an opinion on the ultimate issue is not in itself objectionable, an opinion about the mental state of the defendant as to the ultimate issue (whether the defendant possessed the necessary criminal intent in committing the crime charged) is not allowed.

In New York State, the Court of Appeals (the top state court) has ruled that:

"In a sense, opinion testimony of an expert witness necessarily enters upon the jury's province, since the expert — and not the jury — draws conclusions from the facts, which the jury is then asked to adopt. Such testimony, however, is admissible where the conclusions to be drawn from the facts "depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence." (Dougherty v Milliken, 163 N.Y. 527, 533De Long v County of Erie, 60 N.Y.2d 296.)"

So, expert opinion on any issue of fact, and especially on the ultimate issue of defendant's guilt or innocence IS NOT ADMISSIBLE in court - and thus may and should be eliminated by a defense's motion before the trial  - when an expert has made a prior claim (in any kind of a pretrial hearing) not based on evidence, but based on personal opinion of the expert that has nothing to do with any specialized skill or knowledge, that the defendant is guilty of committing the crime charged.

Defense attorneys often neglect making motions to specifically exclude testimony of prosecution's expert on the ultimate issue of criminal proceedings - whether the defendant committed the crime charged if the expert has no evidence of it other than the manner of death of the victim.

It must become a good defense practice to make such motions in limine/to exclude improper expert opinions.

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