Wednesday, September 12, 2012

What if I don't have a PageID#?!?!?!?!?

Some documents, like the Presentence Report, do not have PageID#s. Others, like sealed documents and transcripts, might not have accessible PageID#s at the time you file your brief. Per Cheryl Borkowski at the Sixth Circuit, if you don't have it and/or cannot get it, just don't put one in. The judges will not reject your brief.

As a personal practice, I think I'll be dropping a footnote at first reference to a transcript, to remind judges that I do not have access to the docketed transcript until well after I submit my brief.

Monday, September 10, 2012

Important rule change for citing to record in appeals

Rather than just citing to the page number of the particular document we are referring to (i.e. R. 36, Sentencing Memorandum, p. 3), we will now need to cite to the "PageID#" along with a brief title and the record entry number of the document referenced. This is Sixth Circuit Rule 28(a)(1). So I think a citation to the record would look something like this: (R. 36, Sentencing Memorandum, PageID#: 274). The PageID# can be found on the far right of the header or footer added to a filed document and is very clearly labeled "PageID#."

The judges are apparently getting iPads that will let them link directly to the record via PageID# in the briefs. This will take some getting used to, but make the change: "Counsel’s failure to do so may result in rejection of the brief."

Friday, September 07, 2012

The new lie-detector test?

Today saw publication of an opinion addressing "a matter of first impression in any jurisdiction": whether the results from a functional magnetic resonance imaging ("fMRI") lie detection test should have been admitted to prove that the defendant was not lying.  The defendant, a clinical psychiatrist and CEO of two healthcare companies, was accused of healthcare fraud and money laundering.  At trial, the district court rejected his attempt to introduce the results of an fMRI test showing that he was generally truthful when answering that his billing decisions were made without an intent to defraud.

Perhaps unsurprisingly, the new technology -- which purports to take detailed images of the parts of the brain associated with "truth telling" -- did not breeze past Daubert analysis.  Although there was some research backing the validity of the science, the district court found that even the supportive research recognized an error rate that was prohibitively high.  The Sixth Circuit opinion by Judge Stranch got into some slightly more philosophical areas, noting testimony from one of the supporters of the technology that "the issue that one faces with lie detection, is what is the real world baseline truth?"  In the words of pot-smoking college students everywhere: "It's like, what is truth anyway?"

So it looks like federal defender offices won't have to dip into already limited expert-witness budgets to pay for fMRI tests any time soon.  (It is not surprising that this issue was raised by a healthcare CEO and not, say, a meth dealer.)  But this question will continue to be raised, and this case will be an important early battle in the larger war over the capital-t "Truth."  Indeed, Judge Stranch quoted one professor in an ominous parenthetical: "[W]ere an accurate lie detector developed, the jury's unique role in determining witness credibility would be called into question."