Transcript Reliability & Forensic Science

Reliability & Forensic
Science
Paul Giannelli
Weatherhead Professor of Law
Case Western Reserve University
West Virginia: Fred Zain
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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
fabricated reports
perjured testimony
Zain’s Acts of misconduct
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(1) overstating the strength of results;
(2) overstating the frequency of genetic
matches on individual pieces of evidence;
(3) reporting that multiple items of evidence
had been tested, when only a single item had
been tested;
(4) reporting inconclusive results as conclusive;
(5) repeatedly altering laboratory records;
Zain continued
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(6) failing to report conflicting results;
(7) failing to conduct or to report conducting
additional testing to resolve conflicting results;
(8) implying a match with a suspect when testing
supported only a match with the victim; and
(9) reporting scientifically impossible or
improbable results.
Law Reviews
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Giannelli, The Abuse of Scientific Evidence in
Criminal Cases: The Need for Independent
Crime Laboratories, 4 Va. J. Soc. Policy & L. 439
(1997)
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Bernstein, Junk Science in the United States and
the Commonwealth, 21 Yale J. Int’l L. 123
(1996) (discussing cases in Canada, Australia,
New Zealand, and England)
W. Va. Lab: Later Problems
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“The trooper who discovered one of the more
recent scandals at the State Police crime lab was
placed on leave Tuesday pending an
investigation of his own work.”
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Messina, State Police Lab Review Leaves Agency
With Another Shiner, Charleston Gazette, Mar. 13,
2002, at P1A
Justice Department I.G.
Report on FBI Lab (1997)
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(1) seek accreditation;
(2) require examiners in the Explosives Unit to
have scientific backgrounds in chemistry,
metallurgy, or engineering;
(3) mandate that each examiner prepare and
sign a separate report instead of a composite
report “without attribution to individual
examiners”;
I.G. Report continued
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(4) establish review process for analytical
reports by unit chiefs;
(5) prepare adequate case files to support
reports;
(6) monitor court testimony in order to
preclude examiners from testifying to matters
beyond their expertise or in ways that are
“unprofessional”; and
(7) develop written protocols for scientific
procedures.
FBI - DNA
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Jacqueline Blake failed to use negative controls
in DNA testing for 2 years in more than a 100
cases.
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Office of Inspector General, U.S. Department of
Justice, The FBI Laboratory: A Review of Protocol
and Practice Vulnerabilities (May 2004)
Bullet Lead Comparison
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“In a sworn affidavit, [Lundy] admitted that her
trial testimony was untruthful and that the
manufacturing batch was many times larger than
she had suggested. ... Lundy blamed her
conduct partly on a sense of crisis in her work,
fed by ‘new and repeated challenges’ to the
validity of the science associated with bullet lead
comparison analysis.”
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Pillar & Mejia, Science Casts Doubt on FBI’s Bullet
Evidence, L.A. Times, Feb. 3, 2003
Oklahoma City: Joyce Gilchrist
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“[T]he forensic report was at best incomplete,
and at worst inaccurate and misleading.”
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“We find it inconceivable why Ms. Gilchrist
would give such an improper opinion, which she
admitted she was not qualified to give.”
 McCarty
v. State, 765 P.2d 1215, 1218 (Okla.
Crim. App. 1988)
Gilchrist continued
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“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.”
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Mitchell v. Gibson, 262 F.3d 1036, 1044 (10th Cir.
2001) (withheld exculpatory DNA report)
Gilchrist continued
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“[I]n her missionary zeal to promote the cause
of the prosecution she had put blinders on her
professional conscience so that the truth of
science took a back seat to her acting the role of
an advocate.”
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Starrs, The Forensic Scientist and the Open Mind,
31 J. Forensic Sci. Soc’y 111, 132-33 (1991)
Okla. City P.D. Report
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(1) missing evidence in numerous cases,
(2) contamination issues due to evidence being
“stacked all over the chemist’s area,”
(3) systematic destruction of rape evidence
before statute of limitations expired,
(4) lack of peer review in many cases, and
(5) lack of proficiency testing although such
testing had been paid for.
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Memo from Captain Byron Boshell (Jan. 16, 2001)
FBI Review
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8 cases: misidentified hairs in 6 & fibers in 1
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“The review of the laboratory notes revealed
that they were often incomplete or inadequate to
support the conclusions reached by the
examiner. No documentation existed that would
allow the examiner to identity textile fibers
associated in one of the cases.”
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Special Agent Deedrick, Summary of Case Reviews of Forensic Chemist,
Joyce Gilchrist (April 4, 2001) at 1
Montana: Arnold Melnikoff
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Erroneous hair evidence in the trial of Jimmy
Ray Bromgard, who spent 15 years in prison
before being exonerated by DNA.
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Liptak, 2 States to Review Lab Work of Expert Who
Erred on ID, N.Y. Times, Dec. 19, 2002, at A24
Melnikoff continued
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Melnikoff: “[T]he odds were one in one
hundred that two people would have head hair or
pubic hair so similar that they could not be
distinguished by microscopic comparison and
the odds of both head and pubic hair from two
people being indistinguishable would be about
one in ten thousand.”
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State v. Bromgard, 862 P.2d 1140, 1141 (Mont. 1993)
Melnikoff continued
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“egregious misstatements” & a “fundamental
lack of understanding” of hair comparisons:
“The witness’s use of probabilities is contrary to
the fact that there is not – and never was – a
well established probability theory for hair
comparison... . If this witness has evaluated hair
in over 700 cases as he claims in his testimony,
then it is reasonable to assume that he had made
many other misattributions.”
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Innocence Project, Peer Review Report
Houston - DNA
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“[T]he validity of almost any case that has relied
upon evidence produced by the lab is
questionable.”
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Rodney Ellis, Editorial, Want Tough on Crime?
Start by Fixing HPD Lab., Houston Chronicle, Sept.
5, 2004 (state representative).
Proficiency Test: Fingerprints
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“[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.”
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New Scotland Yard examiner: “It’s not testing
their ability. … And if I gave my experts these
tests, they’d fall about laughing.”
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U.S. v. Llera Plaza, 188 F. Supp. 2d 549, 558 (E.D. Pa. 2002)
Proficiency Test: Handwriting
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“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.”
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U.S. v. Lewis, 220 F. Supp. 2d 548, 554 (S.D. W.Va.
2002)
Regulate Crime Labs
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Accreditation of labs
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Certification of examiners
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E.g., New York, Oklahoma, Texas, Virginia
Proficiency testing
Standardization of procedures
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Published protocols
Federal Legislation
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“Justice for All” Act
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Requires states to have an investigative entity
DNA Identification Act
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Requires accreditation of DNA labs within 2 years
Defense Experts
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Ake v. Oklahoma, 470 U.S. 68 (1985) (due
process right to defense expert for indigents).
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Giannelli, Ake v. Oklahoma: The Right to Expert Assistance
in a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305
(2004).
Defense expert not appointed in a DNA case
“because of a shortage of county funds.”
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Prater v. State, 820 S.W.2d 429, 439 (Ark. 1991).
State v. Huchting
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“[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.”
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927 S.W.2d 411, 420 (Mo. Ct. App. 1996)
ABA Resolutions (2004)
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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.
2. Crime laboratories and medical examiner offices
should be adequately funded.
3. The appointment of defense experts for indigent
defendants should be required whenever reasonably
necessary to the defense.