To address the challenges of prison overcrowding, Chief Justice Mike McGrath, Attorney General Tim Fox (Montana's top cop), Montana Department of Corrections Director Mike Batista and others requested technical assistance from the Council of State Government Justice Center to use some abstract, collective behavior approach that was developed within a certain social group that will last a finite period of time. In other words, this too will pass.
If Montana is really interested in reducing the number of criminal convictions we must diligently pursue the tactics used to convict defendants. One such tactic allows investigators to lie to the accused about the evidence against the accused. The concept of the lawful use of deception should not be a Montana value. Do we really want convictions based on lies and deception on the part of law enforcement?
A person can be charged with a felony for lying to law enforcement yet we consistently allow law enforcement to lie to a defendant and their attorney. The idea that sometimes you have to resort to trickery to get a confession is paramount to saying the state has no case against the accused. If there is no case against the accused we should not be convicting them. You can try to justify this approach however being a good liar should not be a job requirement for law enforcement. Lying is a slippery slope. Where does the lying stop or does it stop?
The second reform Montana needs is to adopt the current federal standard for Daubert, the standard set forth for expert witness testimony. Federal Rule 702 is as follows:
RULE 702. TESTIMONY BY EXPERT WITNESSES A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts of the case.
In Montana Rule 702 reads as follows:
Rule 702. Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Montana does not require expert witnesses to use reliable principles and methods in conducting their examinations which brings us to expert witnesses such as the infamous and beleaguered James Blanco, a handwriting expert from California that purports to do work for the Montana Department of Justice on his curriculum vitae. In a deposition in a case, Blanco stated that one could hire an expert to "testify to the exact contrary" to another expert, because one "can pretty much get experts to say anything." See Southwell Decl. Ex. G. In yet another deposition, Blanco stated his findings would be different if he was working for the opposing side. See Edens vs Kennedy. The American Board of Forensic Document Examiners, the Southwest Association of Forensic Documents Examiners and the American Academy of Forensic Sciences determined that James Blanco had diminished confidence in forensic scientists and their disciplines. He is no longer allowed membership in their organizations, yet Montana allows his testimony because Montana does not require experts to use reliable methods. In other words, in Montana an expert can make any finding as requested by the Montana Department of Justice whether or not the finding is reliable. Whatever finding the Montana Department of Justice wants, Blanco will give it to them as will other experts hired by the Department of Justice.
Chief Justice (former prosecutor for Lewis and Clark County and former Montana Attorney General) Mike McGrath knows this. Mike McGrath has hired James Blanco. Attorney General Tim Fox, Montana's top cop, knows Montana courts do not require reliable expert testimony. Montana Department of Corrections (former head of Montana Department of Justice Criminal Investigations) Mike Batista knows Montana does not require reliable expert witness testimony. Mike Batista has also hired James Blanco.
I wonder why Mike McGrath, Tim Fox and Mike Batista, with the knowledge they have, don't start reforming laws pertaining to the concept of the lawful use of deception and Rule 702 that allows unreliable expert testimony? Oh wait, I know...they have all used these techniques and at least two of them have hired unreliable expert testimony in the form of James Blanco.
Montana needs to decide which reform is better: (1) passing a bunch of bills based on some abstract, collective behavior approach that was developed within a certain social group that will last a finite period of time. Or (2) reforming the laws that convict Montana citizens by lies, treachery and subterfuge and hiring unreliable expert testimony.
Contact your legislator when you have made your decision.
