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CHALLENGING YOUR LOCAL FORENSICS LABS
Bruce Livingston & Kathleen Elliott
Strengthening Forensic Science in the United States: A Path Forward (2009)
◦ NAS Report
◦ NRC Report
◦ 2009 Report
Start Here….
Looks at forensic science differently
Easy to read
Begin with the Summary (p 1- 33)
E-format (on disk) and hardbound (order)
Don’t be Scared of the Report
Asked for by forensic analysts Authorized by Republican Congress/President Researched by NRC of National Academies
Created by an Act signed by President Lincoln in 1863
200 members have won Nobel Prize
Other National Academies of Engineering and Medicine Authored by Committee
◦ Co-chaired by US Court of Appeals Judge & Statistician
Embrace the Report
Forensic Sciences Reviewed in the
Report
Fingerprints Firearms Toolmarks Bite Marks Impressions
◦ Tires◦ Footwear
Bloodstain Pattern Handwriting Hair
Pattern/Experience Evidence
DNA Coatings (i.e.., paint) Chemicals including Drugs Materials including Fibers Fluids Serology Fire & Explosives
Digital Evidence
Analytical Evidence
Collection/Flow from crime scene to courtroom
Manner in which forensic practitioners testify
Misinterpretation
Adversarial system in criminal/civil litigation
Lawyers’ Use/Misuse
Judge’s Handling
The NAS Report: Use of Forensic Evidence
What is Science?“The Hallmark of Science is
Transparency”
◦ Hypothesis
◦ Testing
◦ Falsifiability
◦ Replication
◦ Peer Review
Scientific Method for Forensic
Practice
To Determine the Limitations of Forensic Science . . .
Collection and Analysis of Forensic Data
Accuracy and Error Rates of Forensic Analysis
Potential Bias & Human Error in Interpretation
Proficiency Testing of Forensics Experts
Assess the Method & Technology
Validation Studies: ◦Must be performed to confirm the validity
of a method or process for a particular purpose
◦Appropriate error rates have been defined and estimated
How to Assess
Proficiency Testing: ◦Routine and Random◦Mandatory ◦Realistic ◦Representative cross-section of analyst’s casework areas
How to Assess …
CSI ?
The Reality of Forensic Science
San Francisco(2010)
North Carolina(2010)
Drug TheftDestruction of Records
◦ DNA Mix-upMisleading Forensic Report
Misrepresented ResultsHid Evidence from DefenseManual: Be aware of “defense whores”230 Flawed Cases
3 Ended in Execution
Errors and Fraud
New York Dep’t of Forensic Investigation
LAPD
Connecticut
Oklahoma
Misconduct and Falsifications “could be the basis for a criminal prosecution”
File Missing after Errors found
“Major Deficiencies” in Dr. Henry Lee’s Lab
Joyce Gilchrist, Lab Supervisor, Dismissed for Falsifying Evidence
Errors and Fraud…
West Virginia
Houston
Washington
FBI
Lab employee lied in 100+ casesCredentials questioned
Grossly Incompetent Work“Misleading manner designed to unfairly
help prosecutors obtain convictions”
“Troubling Flaws” in Drug Cases◦ Failure to Disclose Brady
DNA Contamination and Errors
Brandon Mayfield Case◦ Bias ◦ Circular Reasoning
Quantico Lab Analyst DNA Error and Falsified Report
Errors and Fraud…
Idaho Possession of Untraceable C/S
Possession of Unauthorized Amounts of C/S
Hiding C/S during Audits
Errors and Fraud….
“With the exception of nuclear DNA analysis,… no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” – NAS Report
Is it Science?
Hair
Bite Marks
Fingerprints
Absent DNA testing, No individualization possible
“Could” ≠ Accurate
Continuing dispute over the value and scientific validity of comparing and identifying bite marks
Studies demonstrated that identification decisions on same fingerprint can change solely by presenting the print in a different context
Is it Science?
Arson
DNA
Despite the paucity of research, some arson investigators continue to make unsupported determinations about whether or not a particular fire was set
Mislabeling & Losing SamplesMisinterpreting dataUnderestimating probability of
family matchLCN
Is it Science…?
What is Reported?
Possible sources of error and statistical data
Evidence of analysis and the chemist’s notes
Some laboratories might mention the tests that were conducted
What is Not Reported…?
“From a scientific perspective, this style of reporting is often inadequate, because it may not provide enough detail to enable a peer or other courtroom participant to understand and, if needed, question the sampling scheme, process(es) of analysis, or interpretation”
- NAS Report
What is Reported…?
Get the GoodsWhat Exists?
Who has it?
How do I get it?
Why do I want it?
How do I use it?
Challenging Forensic Science
What Exists? Audit Reports◦ Internal ◦ External
Manuals and SOPsValidation StudiesQuality Control
◦ Unexpected Results Log
◦ Error Log◦ Corrective Action Log
Proficiency TestingMaintenance Records
The Goods…
What Exists…?
ASCLAD Accreditation
◦Legacy v. ISO 17025 Standards
◦Subjective Judgment as to compliance or corrective action request
◦Not Transparent
◦Look for units outside lab
The Goods…
What Exists…?
Analysts
◦ Case File including Bench
Notes
◦ CV
◦ Proficiency Testing
◦ Personnel Files
◦ Certificates
◦ Number of Analyses
◦ Courts/Cases
Qualified
The Goods…
Who has it? Law Enforcement Agencies
Crime Lab
ASCLAD
Prosecutor
DOJ
The NAS Report
Government Oversight Agencies
The Goods
How do I get it? Informal Request
Discovery
Subpoena Duces Tecum
FOIA/Public Records
Online Sources
◦ SWG s
◦ Libraries
The Goods…
Why do I want it? Provide Trier of Fact with Accurate Information
Allow Trier of Fact to Assess Proper Weight
Rebut Zero Error Myth
Public Entities Paid for by Public
The Goods…
The Result is Not Inculpatory
Alternative Interpretations
General Acceptance
Lab Compliance
Analyst Competence
Bias
The Goods…How do I use it?
“Based on my experience…”
Scientific Method◦ Hypothesis
◦ Testing
◦ Falsifiability
◦ Replication
◦ Peer Review
Scientific Assessment ◦ Collection and Analysis
◦ Accuracy and Error Rates
◦ Potential Bias & Human Error
◦ Proficiency
How do I really use it in Trial?
“Match…”
“You can’t see what I saw…”
No Bias
DefineNot Recognized By…
Scientific MethodBring Whatever it Takes for
Us to See
Contextual BiasPeer Review
How do I really use it in Trial?
Case Law
Melendez-Diaz v. Mass,129 S.Ct. 2527 (2009) (Confrontation re Lab Analysis)
“Nor is it evident that what [the State] calls ‘neutral scientific testing’ is as neutral or as reliable as [it] suggests. Forensic evidence is not uniquely immune from the risk of manipulation”
Case Law….
“The majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency”
Justice Scalia on the Report
“Because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency”
“A forensic analyst responding to a request from a law enforcement official may feel pressure-or have an incentive-to alter the evidence in a manner favorable to the prosecution”
“Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well”
Citing the NAS Report concerning “problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint analysis, pattern/impression analysis, and toolmark and firearms analysis”
Scalia on the Value of Confrontation
There is “wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material” – Justice Scalia quoting NAS Report
“Contrary to respondent’s and the dissent’s suggestion, there is little reason to believe that confrontation will be useless in testing analysts’ honesty, proficiency, and methodology-the features that are commonly the focus in the cross-examination of experts” – Justice Scalia
Scalia’s Roadmap to Cross
Brady
Deficient Performance
Anything the prosecution didn't disclose that Scalia mentioned as a possible subject of cross–examination is Brady
Everything that trial counsel didn’t request in discovery or use as a basis for cross-examination is deficient performance
How do I use it in Post-Conviction?
US v. Oliveira ◦(D. Mass 2010)
“The NAS Report called for sweeping changes in the presentation and production of evidence ....
The Standing Order …
“In the past, the admissibility of this kind of evidence was effectively presumed, largely because of pedigree-the fact that it has been admitted for decades.
The Standing Order
“As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited ….
The Standing Order…
“The NAS report suggests a different calculus-that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case….”
The Standing Order….