Transcript Scientific Evidence

Legal Issues &
Forensic Science
- Paul Giannelli
- Weatherhead Professor
- Case Western Reserve
University
Types of Evidence
 Eyewitness Identifications
 Confessions: False & Abuses
 Jailhouse Snitches
 Physical (“scientific”) Evidence
Developments in 1990s
 Daubert trilogy
 DNA admissibility “wars”
 Scientific evidence abuse cases
Daubert v. Merrell Dow
Pharm., Inc. (1993)
 Liberal vs. stringent standard?
 “liberal thrust” of Federal Rules
 but “gatekeeper” role
 Wisegram v. Marley (S. Ct. 2000):
 “exacting standards of reliability”
 Civil v. criminal cases
Kumho Tires Co. v.
Carmichael (1999)
 Kumho “plainly invite[s] a reexamination
even of ‘generally accepted’ venerable,
technical fields.”
 United States v. Hines (D. Mass. 1999)
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Handwriting comparison
Fingerprint comparison
Hair comparison
Firearms identification (“ballistics”)
DNA Admissibility “Wars”
 University science, not forensic science
 “Science culture”
 written protocols
 quality assurance/quality control
 proficiency testing
 Open science vs. adversarial science
DNA Exonerations
 Wrongful convictions
 Third of cases involved “tainted or
fraudulent science”
 Scheck et al., Actual Innocence 246 (2000)
Abuse Cases
 In re Investigation of W.Va. State Police
Crime Lab., Serology Div.
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438 S.E. 501 (W. Va. 1993)
Chief serologist, Fred Zain
fabricated reports
perjured testimony
Justice Department I.G.
Report on FBI Lab (1997)
 establish report review procedures by unit
chiefs;
 prepare adequate case files to support reports;
 monitor court testimony in order to preclude
examiners from testifying to matters beyond
their expertise or in ways that are
“unprofessional”; and
 develop written protocols for scientific
procedures.
Oklahoma City
 Mitchell v. Gibson, 262 F.3d 1036, 1044 (10th Cir. 2001)
(“Ms. Gilchrist thus provided the jury with evidence
implicating Mr. Mitchell in the sexual assault of the
victim which she knew was rendered false and
misleading by evidence withheld from the defense.”).
 McCarty v. State, 765 P.2d 1215, 1218 (Okla. Crim. App.
1988) (“[T]he forensic report was at best incomplete,
and at worst inaccurate and misleading.”; “We find it
inconceivable why Ms. Gilchrist would give such an
improper opinion, which she admitted she was not
qualified to give.”).
Montana & Washington
 Adam Liptak, 2 States to Review Lab
Work of Expert Who Erred on ID, N.Y.
Times, Dec. 19, 2002, at A24 (discussing
erroneous hair evidence in the trial of
Jimmy Ray Bromgard, who spent 15 years
in prison before being exonerated by
DNA).
Houston - DNA
 Nick Madigan, Houston’s Troubled DNA
Crime Lab Faces Growing Scrutiny, N.Y.
Times, Feb. 9, 2003 (operations
suspended in December after an audit
found numerous problems).
Houston - Toxicology
 Ralph Blumental, Double Blow, One Fatal,
Strikes Police in Houston, N.Y. Times, Oct.
30, 2003, at A23 (“The Houston police
chief announced on Wednesday that he
had shut down the Police Department’s
toxicology section after is manager failed
a competency test ....”).
Houston - Serology
 Liptak & Blumenthal, New Doubt Case on
Crime Testing in Houston Cases, N.Y.
Times, Aug. 5, 2004.
 6 independent experts: witness either
lacked basic knowledge of blood typing or
gave false testimony
Cleveland
Connie Schultz,City to Pay $1.6 Million for
Man’s Prison Time, The Plain Dealer, June
8, 2004, A1
City of Cleveland agreed to pay Michael
Green $1.6 million for the 13 years he
spent in prison for a rape he did not
commit.
 Lab audit of prior cases.
Ramirez v. State (Fla. 2001)
 “In order to preserve the integrity of the
criminal justice system in Florida, particularly in
the face of rising nationwide criticism of forensic
evidence in general, our state courts … must
apply the Frye test in a prudent manner to cull
scientific fiction and junk science from fact. Any
doubt as to admissibility under Frye should be
resolved in a manner that minimizes the chance
of a wrongful conviction, especially in a capital
case.”
Basic research
 Beyond competence of most crime labs
 National Academy of Sciences
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Voiceprints (1979)
DNA (1992) & (1996)
Polygraph (2002)
Bullet lead composition comparison (2004)
U.S. v. Havvard (S.D. Ind.
2000) (fingerprints)
 Error rate is “zero.”
 “Peer review” is a second examiner
reviewing the analysis.
 not true in all labs
 often not blind
 but see Daubert = “refereed” journals
 Adversarial testing = scientific testing
Stephan Cowans
 Released after serving 6 years
(Massachusetts) for nonfatal shooting of a
police officer. First conviction overturned
on DNA evidence in which fingerprint
evidence was crucial in securing the
wrongful conviction.
Loftus & Cole, Contaminated Evidence, 304
Science 673, 959, May 14, 2004
Brandon Mayfield
 Sara Kershaw, Spain and U.S. at Odds on
Mistaken Terror Arrest, N.Y. Times, Jun. 5,
2004 at A1 (Spanish clear Portland-area
lawyer. Although F.B.I. found fingerprint
match, Spanish officials matched the
fingerprints to an Algerian national.).
U.S. v. Mitchell (3d Cir. 2004)
 “We are deeply discomforted by Mitchell's
contention - supported by Dr. Rau's account of
events, though contradicted by other witnesses
- that a conspiracy within the Department of
Justice intentionally delayed the release of the
solicitation until after Mitchell's jury reached a
verdict. Dr. Rau's story, if true, would be a
damning indictment of the ethics of those
involved.”
Forensic Science: Oxymoron?
 Donald Kennedy, Editor-in-Chief, Editorial,
Forensic Science: Oxymoron?, 302 Science 1625
(2003) (discussing the cancellation of a National
Academy of Sciences project designed to
examine various forensic science techniques
because the Departments of Justice and
Defense insisted on a right of review that the
Academy have refused to other grant sponsors).
“To put the point more bluntly: if the state
does not test the scientific evidence with
which it seeks to convict defendants, it
should forfeit the right to use it.”
- Redmayne, Expert Evidence and Criminal
Justice (2001)
Regulate Crime Labs
 E.g., New York, Oklahoma, Texas
 Accreditation of labs
 Certification of examiners
 Proficiency testing
 Standardization of procedures
 Published protocols
ABA Resolutions (Aug. 2004)
Innocence Committee

1. Crime laboratories and medical examiner
offices should be accredited, examiners should
be certified, and procedures should be
standardized and published to ensure the
validity, reliability, and timely analysis of forensic
evidence.
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2. Crime laboratories and medical examiner
offices should be adequately funded.
Proficiency Test: Fingerprints
U.S. v. Llera Plaza (2002)
 “[T]he FBI examiners got very high
proficiency grades, but the tests they took
did not. ... [T]he proficiency tests are less
demanding than they should be.”
 New Scotland Yard examiner: “It’s not
testing their ability. … I mean I’ve set
these tests to trainees and advanced
technicians. And if I gave my experts
these tests, they’d fall about laughing.”
Proficiency Test: Handwriting
U.S. v. Lewis (2002)
 “Mr. Cawley testified that he achieved a
100% passage rate on the proficiency
tests that he took and that all of his peers
always passed their proficiency tests. Mr.
Cawley said that his peers always agreed
with each others’ results and always got it
right. Peer review in such a ‘Lake
Woebegone’ environment is not
meaningful.”
1-800-4A-Expert
 MacDonald, The Making of an Expert
Witness: It’s in the Credentials, Wall
Street J., Feb. 8, 1999, B1.
 American College of Forensic Examiners
Legal reforms: Discovery
 Lab reports that are “scientific”:
 Comprehensive
 Include methodology
 Include limitations
 Comprehensible (readable by jury)
 Lab Protocols on the internet
 Discovery of lab notes, graphs, etc.
 Discovery of examiner credentials
Defense experts
 Ake v. Oklahoma (S.Ct. 1985)
 Defense expert not appointed in a DNA
case “because of a shortage of county
funds.” Prater v. State (Ark. 1991)
State v. Huchting
(Mo. Ct. App. 1996)
 “[W]e disagree with [accused’s] contention that the
average attorney is ill-equipped to defend against [DNA]
evidence. To the contrary, law libraries – i.e., law
journals, practitioners’ guides, annotated law reports,
CLE materials, etc – are teeming with information and
advice for lawyers preparing to deal with DNA evidence
trial. Even a cursory perusal of the literature in this area
reveals copious lists of questions for defense attorneys
to use in cross-examinations and other strategies for
undermining the weight of DNA evidence.”
 Ake v. Oklahoma: The Right to Expert
Assistance in a Post-Daubert, Post-DNA
World,
 89 Cornell Law Review Issue 6 (Sept. 2004)