Tag Archives: Expert Testimony


DNA: Strmix® Probabilistic Genotyping Technology Satisfies The Kelly Standard (People v. Davis (2022) 75 Cal.App.5th 694)
May 25th, 2022

–STRmix® is generally accepted in the relevant scientific community   –Court could rely on validation witness with vested interest in the technology   –Proprietary software can achieve general acceptance without disclosure of source code –Technology with subjective component can be generally accepted   –STRmix® not vulnerable to Evidence Code § 352 objection   –Not an […]


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CC 1192: Rape Trauma Testimony — Expert erroneously allowed to testify that it is “rare” for children to make up stories about sexual abuse
October 13th, 2021

In People v. Lapenias (2021) 67 Cal.App.5th 162 an expert testified regarding CSAAS, a theory that identifies typical behaviors of sexually abused children. The expert had no information or knowledge about the facts of the instant case. Defense counsel did not cross-examine the expert.  Instead, after an off-the-record sidebar, the trial court read aloud five […]


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CSC: Certainty About Identification Instruction (CC 315) Does Not Violate Due Process but Should No Longer be Given Absent Request by the Defense
July 1st, 2021

People v. Lemcke (2021) 11 Cal.5th 644 held that — while a modified version of the witness certainty factor in the instruction is advisable — that alone does not establish a due process violation in light of the record as a whole. Accordingly, even though it affirmed the judgement the Court recommended that the CALCRIM committee […]


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Proper to Tell Jury to Use Magnifying Glass to Examine Exhibit Photos
April 21st, 2020

Jury conduct that amounts to critical examination of the evidence admitted, as opposed to conduct resulting in the acquisition of new evidence, is not juror misconduct. Improper experiments by the jury are those that allow the jury to discover new evidence by considering areas not examined during trial. Conduct that is simply a more critical […]


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Is There a Disconnect Between the CALCRIM Expert Witness Instructions (CC 332 and CC 360) and People V. Sanchez (2016) 63 Cal.4th 665
June 22nd, 2018

In its March 2018 revision of CC 360 CALCRIM added a citation to Sanchez but failed to explain the crucial changes that case made to the law regarding an expert’s reliance on hearsay. Nor did Calcrim suggest any revisions to the instructional language in light of Sanchez. Furthermore, as to CC 332 [Expert Witness Testimony] […]


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Mens Rea and PTSD
August 22nd, 2016

People v. Herrera (2016) 247 CA4th 467 held that exclusion of psychiatric testimony regarding the defendant’s post-traumatic stress disorder (PTSD) required reversal of his murder conviction. PC 28 and 29 limit the use of mental disorder evidence to negate a defendant’s capacity to form any mental state is prohibited, but may be offered on the […]


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Juror Misconduct: Critical Examination of Evidence vs. Acquisition of New Evidence
July 18th, 2016

Jury conduct that amounts to critical examination of the evidence admitted, as opposed to conduct resulting in the acquisition of new evidence, is not juror misconduct. Improper experiments by the jury are those that allow the jury to discover new evidence by considering areas not examined during trial. Conduct that is simply a more critical […]


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