In United States v. Cook, 454 F. 3d 938 (8th Cir. 2006), the trial judge in a cocaine distribution case granted the defendant's motion in limine to exclude evidence of four prior drug convictions. The U. S. Court of Appeals for the 8th Circuit affirmed the ruling on interlocutory appeal, using an abuse of discretion standard. The 8th Circuit rejected the government's unsupported suggestion that de novo review is appropriate because the appeal is an interlocutory appeal. The 8th Circuit reasoned that it saw no good reason why the standard of review should differ because the evidentiary ruling was made and appealed before trial.
GREGORY CHANDLER, Attorney at Law
Thursday, July 28, 2011
Friday, July 22, 2011
GREGORY CHANDLER ON LEGAL OUTSOURCING
A reality that is here to stay is the fact that a substantial amount of legal work is being outsourced. Legal outsourcing is the practice of obtaining legal work from a law firm or legal support services company that is outside the United States of America. Legal work is being outsourced for the same reasons that U. S. businesses in other services and professions started outsourcing.
The various reason for legal outsourcing include lower costs and the avoidance of complying with the laws and regulations that exist in the U. S. Of course, legal work done in a foreign nation does not have to comply with, for example, government mandated wage laws.
Legal outsourcing took off in the late 1990s. The nations that do the most outsourcing for U. S. recipients are Canada, India, the Philippines, and Israel. India is the major player in terms of legal outsourcing. Legal outsourcing has a huge costs-savings advantage. Attorney work that may cost between $100.00 to $500.00 per hour in the U. S. will usually cost much less in a foreign nation.
In India, legal outsourcing represents an upscale movement in outsourcing. A decade ago, outsourced work in India consisted of low end call centers dealing with service functions. This work consisted of, for example, doing customer service work for a U. S. business. Legal outsourcing, however, involves more than just speaking over the telephone. Legal outsourcing involves engaging in sophisticated legal work.
Indian workers, who once helped with legal transcription, now offer services that include research, litigation support, document discovery and review, drafting of contracts and patent writing. The industry offers an attractive career path for many of the 300,000 Indians who enroll in law schools every year. India and the United States share a common law legal system and Indian lawyers are trained to conduct proceedings in English.
The United States legal profession has experienced great change during the past decade. The realities of the global market, such as legal outsourcing, will continue to change the legal profession.
GREGORY CHANDLER, Attorney at Law
Thursday, July 21, 2011
Gregory Chandler -- Handwriting Analysis
I have trained with the Federal Bureau of Investigation on questioned documents. Handwriting analysis is a major focus of questioned documents training.
Handwriting analysis is used to link a specimen of handwriting with a crime suspect by comparing the suspect's handwriting with, for example, the handwriting on a ransom note or other communication linked to a crime. The purpose is not to profile the writer but to determine if the same hand produced a document known to have been written by the suspect, called an exemplar or standard, and the document in question.
Handwriting analysts try to maintain a strict protocol with criminal suspects. The analysts do not show the suspect the questioned document. They do not tell the suspect how to spell certain words or how to use punctuation. The suspect is to use writing materials similar to those of the questioned document. The dictated text should in some respects match the content of the questioned document so that the spelling and handwriting of certain words and phrases can be compared. The text the suspect is to write out should be dictated at least three times. In addition, a witness should observe the procedure.
In either type of case--whether authenticating documents or investigating criminal suspects--handwriting analysts begin from the premise that while most people learn to write using a certain system, such as the Palmer or Zaner-Blosser system, they develop idiosyncrasies in the way they form letters and words. These idiosyncrasies become fixed and remain constant over time, even when the person is attempting to disguise her or his writing.
For comparison, analysts generally focus on four categories of factors that define a person's handwriting. The first is form: the shape of letters, their proportion, slant, lines, angles, retracing, connection, and curves. One writer, for example, might begin a "t" at the top and make a single straight line down, while another may begin at the bottom and form a loop. Similarly, a writer may form the vertical line of a "d" with an upstroke, then retrace downward to finish the letter, while another writer may form a loop rather than retracing. One person's capital "A" might be round and fat, another's thin and angular. One person's cross on a "t" may slope up, another's may be horizontal, any yet another's may slope downward. The second category is line quality, which results from the pressure exerted and the type of writing instrument and includes the continuity and flow of the writing. Thus, pauses can be discerned, and these pauses tend to take place in predictable patterns. The third category is arrangement, which includes spacing, alignment, formatting, and punctuation. Document examiners also look at a final category, content, which includes spelling, phrasing, grammar, sentence formation, and the like.
The central question is whether handwriting analysis is a valid forensic technique. It has been shown that even trained document examiners can be fooled. Nonetheless, for over three decades handwriting analysis has been regarded as valid and reliable evidence in court. The existence of such groups such as the American Society of Questioned Document Examiners suggest that a community of scientists generally accepted the premises and techniques of handwriting analysis. Further, the United States Secret Service maintain that their computer databases prove that among a large sample of writers, no two share the same combination of handwriting characteristics.
Since 1993, though, the admissibility of handwriting analysis has come under intense scrutiny. That year, the United States Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, created the stricter Daubert standard, which gives federal judges more discretion in admitting or excluding scientific testimony and evidence. Specifically, Daubert requires judges to determine whether a theory of technique has been tested, whether it has been submitted to peer review, whether standards exist for applying the technique, and what the error rate is. Under the stricter Daubert standard, virtually any forensic technique, including handwriting analysis and even such venerable tools as handwriting comparison, could be questioned and excluded.
One federal ruling dealt a severe blow to the admissibility of handwriting analysis. In United States v. Saelee, (162 F. Supp. 2d 1097, D. Alaska 2001) a federal court ruled that handwriting analysis had never been adequately tested. The court stated that serious questions exist about the reliability of methods currently in use. The court went on to say that the technique of comparing known writings with other writings appears to be entirely subjective and entirely lacking in controlling standards.
One drawback that I see in handwriting analysts is that most of the supposed handwriting analysts do not understand how to handle the professional forgers. The professional forger understands the training, methods, and background of handwriting analysts and acts on that knowledge to defeat handwriting analysts who are trained to deal with the general public. For example, consider cocaine distribution by teenagers will usually lack the sophistication of a professional drug cartel. The teenage drug dealers do not know the methods of law enforcement. The drug cartels do understand the methods of law enforcement. The professional drug dealers understanding of law enforcement makes them difficult to combat.
Like all experts or supposed experts, handwriting analysis often comes down to a battle of expert witnesses. The handwriting expert for one side will often lessen or completely cancel the handwriting expert for the other side.
GREGORY CHANDLER, Attorney at Law
Handwriting analysis is used to link a specimen of handwriting with a crime suspect by comparing the suspect's handwriting with, for example, the handwriting on a ransom note or other communication linked to a crime. The purpose is not to profile the writer but to determine if the same hand produced a document known to have been written by the suspect, called an exemplar or standard, and the document in question.
Handwriting analysts try to maintain a strict protocol with criminal suspects. The analysts do not show the suspect the questioned document. They do not tell the suspect how to spell certain words or how to use punctuation. The suspect is to use writing materials similar to those of the questioned document. The dictated text should in some respects match the content of the questioned document so that the spelling and handwriting of certain words and phrases can be compared. The text the suspect is to write out should be dictated at least three times. In addition, a witness should observe the procedure.
In either type of case--whether authenticating documents or investigating criminal suspects--handwriting analysts begin from the premise that while most people learn to write using a certain system, such as the Palmer or Zaner-Blosser system, they develop idiosyncrasies in the way they form letters and words. These idiosyncrasies become fixed and remain constant over time, even when the person is attempting to disguise her or his writing.
For comparison, analysts generally focus on four categories of factors that define a person's handwriting. The first is form: the shape of letters, their proportion, slant, lines, angles, retracing, connection, and curves. One writer, for example, might begin a "t" at the top and make a single straight line down, while another may begin at the bottom and form a loop. Similarly, a writer may form the vertical line of a "d" with an upstroke, then retrace downward to finish the letter, while another writer may form a loop rather than retracing. One person's capital "A" might be round and fat, another's thin and angular. One person's cross on a "t" may slope up, another's may be horizontal, any yet another's may slope downward. The second category is line quality, which results from the pressure exerted and the type of writing instrument and includes the continuity and flow of the writing. Thus, pauses can be discerned, and these pauses tend to take place in predictable patterns. The third category is arrangement, which includes spacing, alignment, formatting, and punctuation. Document examiners also look at a final category, content, which includes spelling, phrasing, grammar, sentence formation, and the like.
The central question is whether handwriting analysis is a valid forensic technique. It has been shown that even trained document examiners can be fooled. Nonetheless, for over three decades handwriting analysis has been regarded as valid and reliable evidence in court. The existence of such groups such as the American Society of Questioned Document Examiners suggest that a community of scientists generally accepted the premises and techniques of handwriting analysis. Further, the United States Secret Service maintain that their computer databases prove that among a large sample of writers, no two share the same combination of handwriting characteristics.
Since 1993, though, the admissibility of handwriting analysis has come under intense scrutiny. That year, the United States Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, created the stricter Daubert standard, which gives federal judges more discretion in admitting or excluding scientific testimony and evidence. Specifically, Daubert requires judges to determine whether a theory of technique has been tested, whether it has been submitted to peer review, whether standards exist for applying the technique, and what the error rate is. Under the stricter Daubert standard, virtually any forensic technique, including handwriting analysis and even such venerable tools as handwriting comparison, could be questioned and excluded.
One federal ruling dealt a severe blow to the admissibility of handwriting analysis. In United States v. Saelee, (162 F. Supp. 2d 1097, D. Alaska 2001) a federal court ruled that handwriting analysis had never been adequately tested. The court stated that serious questions exist about the reliability of methods currently in use. The court went on to say that the technique of comparing known writings with other writings appears to be entirely subjective and entirely lacking in controlling standards.
One drawback that I see in handwriting analysts is that most of the supposed handwriting analysts do not understand how to handle the professional forgers. The professional forger understands the training, methods, and background of handwriting analysts and acts on that knowledge to defeat handwriting analysts who are trained to deal with the general public. For example, consider cocaine distribution by teenagers will usually lack the sophistication of a professional drug cartel. The teenage drug dealers do not know the methods of law enforcement. The drug cartels do understand the methods of law enforcement. The professional drug dealers understanding of law enforcement makes them difficult to combat.
Like all experts or supposed experts, handwriting analysis often comes down to a battle of expert witnesses. The handwriting expert for one side will often lessen or completely cancel the handwriting expert for the other side.
GREGORY CHANDLER, Attorney at Law
Gregory Chandler on Cocaine Modus Operandi
I write again about cocaine litigation. In United States v. Fanfan, 468 F. 3d 7 (1st Cir. 2006), the Court affirmed a conviction for conspiracy to distribute cocaine. The Court assumed that the conspiracy had been terminated by the arrest of most of its members, but held that even so a post-conspiracy transaction in which the defendant attempted to distribute cocaine was admissible to prove modus operandi and identity. The arrested conspirator had paged the defendant, the government recorded the call, the arrested conspirator ordered cocaine and met the defendant by prearrangement. The defendant had cocaine and cocaine base in his automobile. This evidence was especially important because only one witness could identify the defendant as the man who supplied drugs and this witness had a plea deal with the government.
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER, Attorney at Law
Gregory Chandler -- Bank Fraud
I do some consulting about alleged forgery and alleged fictitious documents.
An interesting case is United States v. Brown, 597 F. 3d 399 (D. C. Cir. 2010). The Court affirmed a conviction for bank fraud and passing fictitious financial instruments. The Court held it was an abuse of discretion (but harmless error) to admit evidence that the defendant failed to pay a $700 home inspection fee.
The government's suggestion that this bad act evidences the defendant's motive to get money is too far removed from the charged offenses and shows only his bad character in cheating an agent out of the home inspection fee.
GREGORY CHANDLER, Attorney at Law
An interesting case is United States v. Brown, 597 F. 3d 399 (D. C. Cir. 2010). The Court affirmed a conviction for bank fraud and passing fictitious financial instruments. The Court held it was an abuse of discretion (but harmless error) to admit evidence that the defendant failed to pay a $700 home inspection fee.
The government's suggestion that this bad act evidences the defendant's motive to get money is too far removed from the charged offenses and shows only his bad character in cheating an agent out of the home inspection fee.
GREGORY CHANDLER, Attorney at Law
Gregory Chandler -- Rebuttal Evidence in Cocaine Litigation
In United States v. Mejia, 600 F. 3d 12 (1st Cir. 2010) the Court affirmed a conviction for conspiracy to distribute cocaine, finding no abuse of discretion in the admission of drug ledgers apparently in the defendant's handwriting, as the evidence tended to rebut his central defense that he was "merely present" at a drug deal and otherwise uninvolved in the charged conspiracy.
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER ON WAL-MART LITIGATION
I came across the case of Van Bumble v. Wal-Mart, Inc. last week while doing some research. The U. S. Court of Appeals, Seventh Circuit affirmed the denial of motions for a new trial or additur in a couple's slip-and-fall action. The Court found no abuse of discretion in the exclusion of evidence of the plaintiff's financial situation, including the fact that the plaintiffs lacked medical insurance.
Although it was argued that the evidence was relevant to prove why the wife did not seek medical treatment for two years, the Court noted that Wal-Mart did not question why the wife did not seek treatment, so the evidence was irrelevant and would have been prejudicial on the damages issue.
The citation for this case is 407 F. 3d 823 (7th Cir. 2005).
GREGORY CHANDLER, Attorney at Law
Although it was argued that the evidence was relevant to prove why the wife did not seek medical treatment for two years, the Court noted that Wal-Mart did not question why the wife did not seek treatment, so the evidence was irrelevant and would have been prejudicial on the damages issue.
The citation for this case is 407 F. 3d 823 (7th Cir. 2005).
GREGORY CHANDLER, Attorney at Law
Wednesday, July 20, 2011
Gregory Chandler on Embezzlement Litigation
United States v. Weller, 238 F. 3d 1215 (10th Cir. 2001) is a case about embezzlement litigation. In a bank manager's trial for embezzlement, the prosecution introduced evidence that the defendant had an empty bank account and "maxed out" credit cards prior to the incident charged. The bank manager also had substantial cash in the weeks following the incident charged.
The Court found no abuse of discretion in admission of the evidence. Although ordinarily evidence of the defendant's poverty is inadmissible to show a motive for crime, a significant change in the defendant's financial status, as in this case, can be quite probative of the commission of a crime.
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER--MAIL FRAUD
United States v. Ortland, 109 F. 3d 539 (9th Cir. 1997) is an interesting case about consciousness of guilt. The Court affirmed a conviction for mail fraud. The Court found no error in the exclusion of evidence offered by the defendant that one of his business partners had fled prosecution.
The Court had already rejected the idea that a co-defendant's flight is relevant to show the guilt of anyone other than the fleeing defendant in United States v. Candoli, 870 F. 2d 496, 501 (9th Cir. 1989). Similarly, flight does not tend to show that someone else is innocent, at least where there can easily be more than one guilty person, as in this case.
GREGORY CHANDLER, Attorney at Law
The Court had already rejected the idea that a co-defendant's flight is relevant to show the guilt of anyone other than the fleeing defendant in United States v. Candoli, 870 F. 2d 496, 501 (9th Cir. 1989). Similarly, flight does not tend to show that someone else is innocent, at least where there can easily be more than one guilty person, as in this case.
GREGORY CHANDLER, Attorney at Law
Monday, July 18, 2011
GREGORY CHANDLER -- FLEEING JUDGE
In United States v. Borders, 693 F. 2d 1318 (11th Cir. 1982) the Court affirmed the conviction of a defendant charged with involvement in an effort to bride a federal judge. The Court held that evidence of the judge fleeing once the judge learned of the defendant's arrest was admissible to prove the judge's involvement in a conspiracy with the defendant.
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER, Attorney at Law
Sunday, July 17, 2011
Gregory Chandler on Income Tax Litigation
An interesting case I came about last week concerning income tax litigation. In United States v. Hairston, 819 F. 2d 971 (10th Cir. 1987) the Court affirmed convictions for willful failure to file tax returns, holding that the defendant's testimony concerning the impact that tax protests literature and seminars had on his understanding of tax law requirements was more probative than the literature itself and that there was no error in excluding the literature on the grounds that it might confuse the jury.
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER, Attorney at Law
Friday, July 15, 2011
Gregory Chandler -- 940 F. 2d 1518
The Federal Circuit, in reviewing a Vaccine Act proceeding, the Court noted that the incubation period of measles is the sort of well-known medical fact of which judicial notice may be taken. The case is Hines v. Secretary of Health & Human Services. The citation is 940 F. 2d 1518 (Fed. Cir. 1991)
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER, Attorney at Law
Tuesday, July 12, 2011
Gregory Chandler--Suppression of Evidence
United States v. Maravilla, 907 F. 2d 216 (1st Cir. 1990) is a case dealing with the suppression of evidence. The Court affirmed convictions of former Customs officers for robbery-related offenses in connection with the murder of a money courier, holding that there was no abuse of discretion in admitting evidence a defendant had tried to have the barrel on his weapon changed. The effort to replace the barrel suggested an effort to eliminate features of the weapon that might have linked it with a bullet found in or near the victim's body, which suggested a consciousness of guilt. The Court also opined that there is no requirement that the prosecution introduce the much stronger evidence of the gun and the bullet, particularly since there was no showing the the government ever found a bullet.
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER -- DRUG DISTRIBUTION LITIGATION
United States v. Roman, 728 F. 2d 846 (7th Cir. 1984) concerns inconsistent witnesses. The Court affirmed a conviction for conspiring to distribute LSD, rejecting an argument that it was error not to strike the testimony of two witnesses as being too inconsistent and confusing. The credibility of the witness, the court opined, was a question for the jury.
Gregory Chandler, Attorney at Law
Gregory Chandler, Attorney at Law
Monday, July 11, 2011
Gregory Chandler--Cocaine Prosecution
An interesting case is United States v. Foster, 986 F. 2d 541 (D. C. Cir. 1993). The Court reversed a conviction for distributing crack cocaine because the defense had not been permitted to cross-examine officers about their ability to identify other persons they mentioned in connection with the alleged transaction. The answers to the questions would have made it more or less probable that the officers had correctly identified the defendant. The Court opined that relevancy objections should have been overruled. Under the rules of evidence, evidence is either relevant or not relevant. The Court opined that there is no such thing as "marginally relevant" evidence.
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER, Attorney at Law
Sunday, July 10, 2011
Gregory Chandler -- Atlanta Bar Association 5K
The Atlanta Bar Association will present its 5K race and walk on Saturday, September 10, 2011. The race starts at 7:30 a.m.
The 5K is called "The Legal Runaround." Proceeds from the race will benefit the children of Atlanta police officers.
You may go to www.atlantabar.org for registration and more information.
Gregory Chandler, Attorney at Law
The 5K is called "The Legal Runaround." Proceeds from the race will benefit the children of Atlanta police officers.
You may go to www.atlantabar.org for registration and more information.
Gregory Chandler, Attorney at Law
Tuesday, July 5, 2011
Gregory Chandler on Casey Anthony Trial
Casey Anthony was found NOT GUILTY today on the major counts.
Many silly attorneys debated for weeks about the trial. Most of these
incompetent attorneys took the view that Casey Anthony would be found guilty of some form of murder charge. The majority of these know nothings were way off base.
When thinking about what a jury verdict will be, it is best to view the case from the perspective of a juror rather than from the perspective of an attorney. It is the jurors who reach verdicts and not the attorneys.
The prosecution theory about Casey Anthony wanting to party and getting a tattoo was just plain silly from a juror's standpoint. Most people do not usually commit murder because she or he wants more party opportunities.
GREGORY CHANDLER, Attorney at Law July 5, 2011
Many silly attorneys debated for weeks about the trial. Most of these
incompetent attorneys took the view that Casey Anthony would be found guilty of some form of murder charge. The majority of these know nothings were way off base.
When thinking about what a jury verdict will be, it is best to view the case from the perspective of a juror rather than from the perspective of an attorney. It is the jurors who reach verdicts and not the attorneys.
The prosecution theory about Casey Anthony wanting to party and getting a tattoo was just plain silly from a juror's standpoint. Most people do not usually commit murder because she or he wants more party opportunities.
GREGORY CHANDLER, Attorney at Law July 5, 2011
Monday, July 4, 2011
Gregory Chandler -- Firearms Possession
An interesting case I reviewed last week. In United States v. Williams, 442 F. 3d 1259 the Court affirmed a conviction for felon firearm possession. The Court found no abuse of discretion when the trial judge took judicial notice that a violation of the statue statute under which the defendant had previously been convicted was a crime punishable by more than one year of imprisonment.
Gregory Chandler
Gregory Chandler
Saturday, July 2, 2011
Gregory Chandler -- Judicial Knowledge
A trial judge may not take personal knowledge based on the judge's personal experience. This is the appellate court's view in United States v. Berber-Tinoco, 510 F. 3d 1083. The Court affirmed a conviction for unlawful re-entry after deportation. The Court, however, held that the trial judge acted improperly when, in a suppression hearing, he interjected his own observation regarding the location of stop signs along a certain road near the border and the narrowness of the road. The trial judge also improperly relied on his personal knowledge that no speed limit was posted on a certain read near the border and that the speed limit was therefore 55 miles per hour.
GREGORY CHANDLER, Attorney at Law
GREGORY CHANDLER, Attorney at Law
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