Transcript Overview Of Forensic Sciences and the NAS Report

OVERVIEW OF FORENSIC
SCIENCES AND THE
NATIONAL ACADEMY OF
SCIENCES REPORT
Marvin Schechter
Jennifer Friedman
Cliff Gardner
April 15, 2010
Atlanta, GA.
Topics to be Discussed:
I. Criticisms of the report
II. Highlights of the report
III. Litigation issues
IV. Reinvestigating the case
V. Post-conviction legal vehicles
VI.Telling the story
Criticisms of the Report
• There were no forensic analysts or
examiners on the committee.
• The committee did not review all existing
research and literature demonstrating that
the techniques have been validated.
• The committee did not consider the years of
adversarial testing each discipline has been
subject to.
Criticisms of the Report (cont.)
• Scientific validation is unnecessary because
forensic science practitioners use a holistic
approach based on scientific principles.
• Forensic science practitioners need to be
provided information about the crime and
suspect in order to make fully informed
decisions regarding what to test and how to
test it.
No Forensic Examiners on the
Committee
• Seven of the 17 committee members have
substantial backgrounds in forensic science.
The other members have expertise in related
areas of science and the legal system.
Existing Validation Literature
Was Not Considered
• Committee reviewed published research
• IAI provided CD of Journal of Forensic Sciences
• National Clearinghouse for Science, Technology
and Law submitted literature review
• Staff conducted literature reviews
• Committee members provided literature and
reviewed materials
Existing Validation Literature
Was Not Considered
• Committee heard from SWGDRUG, SWGFAST,
SWGMAT and from forensic science experts on the
following disciplines: drug identification; fingerprints;
toolmarks; arson; hair; and forensic odontology.
• Committee heard from leadership of the following
forensics organizations: AAFS; ASCLD; ASCLD-LAB;
FQS; IAI; NAME; and CFSO.
• Committee heard from representatives of various forensic
laboratories.
Existing Validation Literature
Was Not Considered
• Except for the literature surrounding DNA
analysis, studies that attempt to validate
forensic science methods are generally
inadequate.
Years of Adversarial testing was
Not Considered
• Courtroom does not equal laboratory.
• Adversarial testing does not equate to
scientific testing of methodology or
replication of scientific results.
A holistic approach based on
scientific principles
• “Adherence to scientific principles is
important for concrete reasons: they enable
the reliable inference of knowledge from
uncertain information—exactly the
challenge faced by forensic scientists.
Thus, the reliability of forensic science
methods is greatly enhanced when those
principles are followed” p. 111
A holistic approach based on
scientific principles
• “The scientific method presumes that events occur
in consistent patterns that can be understood
through careful comparison and systematic study.
p. 112
• “One particular task of science is the validation of
new methods to determine their reliability under
different conditions and their limitations.” p. 113
• “To confirm the validity of a method or process
for a particular purpose (e.g., for a forensic
investigation), validation studies must be
performed.” p. 113.
Information is Necessary / Too
Expensive to do Blind Verification
• Report does not state that practitioners
shouldn’t be provided information, rather
report raises concern and calls for further
study.
The Report raises
questions as to whether…
• Various forensic techniques have been
validated
• Testing methods produce reliable
results
• Labs are competently performing the
techniques
• Examiners are proficient
Deficiencies of Forensic
Disciplines Described in the
Report
“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.” p. 7
"[S]ome forensic science disciplines are
supported by little rigorous systematic
research to validate the discipline's basic
premises and techniques."
“The bottom line is simple: In a number of
forensic science disciplines, forensic
science professionals have yet to establish
either the validity of their approach or the
accuracy of their conclusions . . . .”
ACE-V Method
• Analyze: Is there enough detail to make a
comparison?
• Compare: Do the details match? Can those
that do not match be explained?
• Evaluate: Is there enough detail to declare a
match to the exclusion of all others?
• Verify: Do these prints that I have declared
a match, match?
FINGERPRINT COMPARISON
ACE-V “is not specific enough to qualify as a
validated method for this type of analysis.
ACE-V does not guard against bias; is too
broad to ensure repeatability and transparency;
does not guarantee that two analysts following
it will obtain the same results…merely
following the steps of ACE-V does not imply
one is proceeding in a scientific manner or
producing reliable results.” p. 142
FINGERPRINT COMPARISON
“ Claims that these analyses have zero error
rates are not scientifically plausible.” p. 142
“The method and the performance of those
who use it, are inextricably linked, and both
involve multiple sources of error.” p. 143
FINGERPRINT COMPARISON
ACE-V (analysis-comparison-evaluationverification)is not specific enough to
qualify as a validated method for this type
of analysis. “We have reviewed the
available scientific evidence of the validity
of the ACE-V method and found none.”
p. 143, quoting Haber and Haber
See also Langenberg, G. “A Performance Study of the
ACE-V Process,” Journal of Forensic Identification
(2009).
OTHER PATTERN
IMPRESSION
“There is no consensus regarding the
number of individual characteristics
needed to make a positive
identification, and the committee is not
aware of any data about the variability
of class or individual characteristics or
about the validity or reliability of the
method.” p. 149
FIREARMS COMPARISON
“Toolmark and Firearms analysis
suffers from the same limitations
discussed above for impression
evidence.” p. 154
FIREARMS COMPARISON
“Because not enough is known about variabilities
among individual tools and guns, we are not able
to specify how many points of similarity are
necessary for a given level of confidence in the
result. Sufficient studies have not been done to
understand the reliability and repeatibility of the
methods. A fundamental problem is a lack of a
precisely defined process.” pp. 150-55
FIREARMS COMPARISON
“Although some studies have been
performed on the degree of similarity that
can be found between marks made by
different tools and the variability in marks
made by an individual tool, the scientific
knowledge base for toolmark and firearms
analysis is fairly limited.” p. 155
MICROSCOPIC HAIR
COMPARISON
“No scientifically accepted statistics exist
about the frequency with which particular
characteristics of hair are distributed. There
appear to be no uniform standards on the
number of features on which hairs must
agree before an examiner may declare a
‘match.’” p. 160
MICROSCOPIC HAIR
COMPARISON
“The committee found no scientific support
for the use of hair comparisons for
individualization in the absence of nuclear
DNA. Microscopy and MtDNA analysis
can be used in tandem and add to one
another’s value for classifying a common
source, but no studies have been performed
to specifically quantify the reliability of
their joint use.” p. 161
QUESTIONED DOCUMENTS
“The scientific basis for handwriting
comparisons needs to be strengthened….
Although there has been only limited
research to quantify the reliability and
replicability of the practices used by trained
document examiners, the committee agrees
that there may be some value in handwriting
analysis.” p. 167
ARSON AND ANALYSIS OF
EXPLOSIVE DEBRIS
“The scientific foundations exist to support the
analysis of explosions, because such analysis is
based primarily on well-established
chemistry….By contrast much more research
is needed on the natural variability of burn
patterns and damage characteristics and how
they are affected by presence of various
accelerants. Despite the paucity of research,
some arson investigators continue to make
determinations about whether or not a
particular fire was set.” p. 173
ARSON AND ANALYSIS OF
EXPLOSIVE DEBRIS
“Experiments should be designed to
put arson investigation on a more solid
scientific footing.” p. 173
BLOODSTAIN PATTERN
ANALYSIS
“Scientific studies support some aspects of
blood pattern analysis.” However, “many
experiments must be conducted to
determine what characteristics of bloodstain
pattern are caused by particular actions
during a crime and to inform the
interpretation of those causal links and their
variabilities.” p. 179
BLOODSTAIN PATTERN
ANALYSIS
“Extra care must be given to the way in
which the analyses are presented in
court. The uncertainties associated
with bloodstain pattern analysis are
enormous.” p. 179
ANALYSIS OF CONTROLLED
SUBSTANCES
While the “chemical foundations for the analysis
of controlled substance are scientifically sound,”
“possible sources of error are not commonly
included” and the “style of reporting is often
inadequate because it may not provide enough
detail to enable peer review or other courtroom
participants …question the sampling scheme,
processes of analysis, or interpretation.” p. 135
Admissibility: Frye and Daubert
Frye:
General acceptance by
the relevant scientific
community that the
technique is
RELIABLE
• Daubert:
Court determination of
RELIABILITY. Factors
include but are not limited
to
Testing/Validation
Peer Review and
Publication
Error Rate
Standards
General Acceptence
It’s all about whether there has
been testing that demonstrates the
techniques produce valid and
reliable results.
Courts’ View of NAS/NRC Reports
Courts’ Historical View of
NAS/NRC Reports
• “Courts have recognized that the [NRC] is a distinguished cross
section of the scientific community.” People v. Venegas, 954 P.2d
525, 18 Cal.4th 47 (1998).
• Courts have recognized that the conclusions of the National
Research Council regarding the reliability of a particular
methodology "can easily be equated with general acceptance of
those methodologies in the relevant scientific community." U.S. v.
Porter, 618 A.2d at 643 n.26 (D.C. 1992).
• SCOTUS cites to report for proposition that “serious deficiencies
have been found in forensic evidence used in criminal trials.”
Melendez-Diaz, 557 U.S. ----, 129 S.Ct. 2527.
Why is this report being treated
differently?
Bohan’s main points
-The NAS report has not yet had a significant impact on
criminal trials
-This lack of immediate response may be due to the
conclusory manner in which the criticisms were framed
- Earlier NAS reports (polygraph and bullet lead) carefully
reviewed all the studies claimed to have validated the
practice in question before concluding that the practice had
not been validated
Pattern Impression Evidence-Two Parts:
• Part 1: Comparison
-exclusion
-match
-inconclusive
• Part 2: Significance of match or weight
-How common or uncommon are the
matching characteristics observed?
-What can be said about the match?
CASE LAW-Prints
Pre-NAS
• Crisp, 324 F.3d 261 (2003): “While the
principles underlying fingerprint identification
have not attained the status of scientific law,
they nonetheless bear the imprimatur of a
strong general acceptance, not only in the
expert community, but in the courts as well.”
citing Havvard, 260 F.3d 597,601 (2001).
A Glimmer of Hope?
Prints
Pre-NAS
• State v. Rose 03-K-06-0545, finding
fingerprint comparison evidence not
generally accepted.
• (But cf. U.S. v. Rose : CRIMINAL NO. CCB-080149 meets Daubert and is generally
accepted –no hearing held)
Trial Courts- Prints
Post- NAS
• The latent print examiner (LPE) will not be able to
testify that her opinion is the result of an infallible
scientific process, and the defendant is free to
vigorously cross-examine the LPE on the
shortcomings of the ACE-V method raised in the
2009 NAS report.
People v. Greenwood (Los Angeles trial court ruling)
A Glimmer of Hope- Firearms
Pre-NAS
• Glynn, 578 F.Supp.2d 567 (S.D.N.Y.2008) limited to “more likely than not.”
• Monteiro, 407 .Supp.2d351(D.Mass.2006) inadmissible because failed to comport with
standards for documentation and peer review in
ballistics field.
• Diaz, No. 05-167, 2007 WL 485967 (N.D.Cal.
Feb. 12, 2007) - reasonable degree of certainty in
the ballistics field.
More Hope-Firearms
Post-NAS
• Taylor, No. CR 07-1244, 2009 WL 3347485 (D.N.M.
Oct. 9, 2009) - reasonable degree of certainty in the
firearms field.
• Mouzone, 2009 WL 3617748 (D.Md., 2009).
opinion of examiner without any characterization as to
degree of certainty. Alternatively more likely than not,
alternatively “to a reasonable degree of ballistic
certainty.”
• Alls, CR2-08-223(1)generally accepted but cannot reach
a definite conclusion as to the exclusive source of the
bullet. (S.D. Ohio)
INSTRUCTIVE CASE LAWHandwriting
Pre- NAS
• Hines, 55 F.Supp.2d 62 (D.Mass.1999),
Rutherford, 104 F.Supp.2d 1190, 1193
(D.Neb.2000),testimony restricted to
similarities and dissimilarities; may not
testify to source.
What may the technician-analyst say
about fingerprints?
• Defendant may not be excluded as the
source of the latent print.
• Defendant’s fingerprint impression shares
characteristics with the latent print
impression.
• Defendant’s fingerprint impression is
consistent with the latent print impression.
What may the technician say about
firearms comparison evidence?
• The casing collected in this case more likely than
not came from the gun marked as exhibit X.
• The features observed on the casing that was fired
from the gun marked as exhibit X are similar to the
characteristics observed on the cartridge casing
collected.
• The gun marked as exhibit X cannot be excluded or
is included among the pool of guns that could have
left the characteristics observed on the cartridge
casing collected.
How should expert arson evidence
be presented? Limited?
• Evidence of “alligatoring” or other charring
patterns as indicative of arson should be
excluded as there is no scientific basis for
claims that these types of charring
demonstrate an accelerant was used.
How should bloodstain pattern
evidence be qualified or limited?
• No speculation about what might have
occurred.
• No distance estimates from back spatter
from shootings.
• Bar the expert from testifying that a
particular stain was made in a particular
way.
Should hair comparison evidence be
admissible at all?
What should be required in the case
of controlled substance analysis?
• Complete files with all data
• Limitation of the opinion
• Standard errors of measurement
• Error rates
(These should be required in any case)
Litigating Forensics PostConviction
Post-Conviction Litigation
• Who are the decision-makers?
• What story or stories will resonate with
them?
Investigative Plan
• From the perspective of harmless error
review
• Reinvestigate forensic “swords”
• Reinvestigate forensic “shields”
• Reinvestigate issues relating to jury
questions
Factual Investigation
Review of Evidence Presented
• Police Reports
• Testimony of officers regarding collection
of evidence
• Testimony of experts
Files
• Trial counsel
• Prosecutor
• Separate files of experts and all lab files
Information to Obtain
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Reports
Raw Data
Diagrams/ Photographs
Chain of custody
Protocols (Standard Operating Procedures)
Audit report
Logs of unexpected results/corrective action files
Proficiency Tests
Error rates
Writing and Communications
Further Investigation
• Research the science
• Hire consultants
• Hire testifying experts
Selection of Experts
Using Experts
• Declaration
• Incorporate as part of the “new” story
• Using scientific evidence to prove
innocence; minimize culpability
-Exclusion/inclusion
-Showing the government’s narrative is
inconsistent with the physical evidence.
Legal Vehicles
•
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•
•
Brady v. Maryland, 373 U.S. 83 (1963).
Giglio v. U.S., 405 U.S. 150 (1972).
Napue v. Illinois, 360 U.S. 264 (1959).
Newly Discovered Evidence
Strickland v. Washington, 466 U.S. 668 (1984).
Beck v. Alabama, 447 U.S. 625 (1980).
Reliability (8th Amendment)
BRADY
• Discover new information
about the specific test or
evidence presented that was
not previously disclosed
STRICKLAND
• If the state argues it was
disclosed or counsel should
have been aware of it.
NEWLY DISCOVERED
STRICKLAND
• Discover new information
about the science that
impacts the forensic
evidence that was presented
• State alleges its not new
Material Misrepresentation
• Giglio, 405 US 150 (1972)
- Material misrepresentation by witness
-Prosecutor unaware
-Impeaches credibility of evidence (applies
to evidence where weight was exaggerated)
Measure of Prejudice
IMPORTANCE OF THE EVIDENCE
• What evidence was presented?
• Response to defense attacks.
• What was said about the evidence in
opening statement?
• What was said about the evidence in closing
argument?
• How did the judge instruct the jury?
Measure of Prejudice
• The print matched the
suspect to the
exclusion of all others,
The error rate is zero.
• The casing came for
the gun.
• Hair matched the
suspect.
• The latent and the
suspect print share
characteristics. The
error rate is unknown.
• More probable than
not the casing came
from the gun.
• No evidence re match.
Recap- Impact of the NAS
Report
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•
•
•
Choosing a story
Legal claims
Type of evidence you are collecting
Expert/consultant selection
Drafting of declarations
THE END.