Transcript Forensic Evidence

CLEAR 2008 Annual Conference
CSI for Regulators Part I
Forensic Evidence
“Blood, Sweat and Tears”
Dean Benard
Kristina Mulak
Glenn Benard
Ernie Atkins
Anchorage, Alaska
Objectives
• Raise awareness about forensic evidence
• Discuss the challenges that exist when
using forensics
• Provide some considerations when
determining whether to use forensics
• Cover some of the legal considerations
around the use of forensics
CLEAR 2008 Annual Conference
Anchorage, Alaska
Fact or Fiction?
1. Handwriting analysis provides us with
information about the personality of a
subject of interest
2. DNA analysis takes about 8 hours to
complete
3. Polygraph testing can be beaten by
subjecting oneself to pain
CLEAR 2008 Annual Conference
Anchorage, Alaska
What is Forensics?
Forensic Science - the application of
various scientific applications to answer
questions of interest to the legal system.
Forensic Evidence – the items obtained
from the scientific applications that are
useable in assisting to answer questions of
fact that may be in dispute.
CLEAR 2008 Annual Conference
Anchorage, Alaska
Types of Forensic Evidence
• Document Analysis
– ink dating
– chemical analysis (thin layer chromatography)
– indented writings
– office equipment impressions
– comparative handwriting
– infra red photography
CLEAR 2008 Annual Conference
Anchorage, Alaska
Types of Forensic Testing
• DNA (Deoxyribonucleic Acid) Testing
– semen, saliva, hair, blood
• Chemical Analysis
– content testing
– drug / toxicology testing
• Polygraph (“Lie detector”)
• Computer Forensic Examination
CLEAR 2008 Annual Conference
Anchorage, Alaska
Document Analysis
Document Dating
•
Courtesy of Forensic Document Examination Services, Inc.
CLEAR 2008 Annual Conference
Anchorage, Alaska
Document Analysis
Document Dating
Courtesy of Forensic Document Examination Services, Inc.
CLEAR 2008 Annual Conference
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Indented Writings
Fig. A
Fig. B
Courtesy of Forensic Document Examination Services, Inc.
CLEAR 2008 Annual Conference
Anchorage, Alaska
Indented Writings
Courtesy of Forensic Document Examination Services, Inc.
CLEAR 2008 Annual Conference
Anchorage, Alaska
Case Example Indented Writings
• A physiotherapist allowed her billing number to
be used by another clinic for patients she never
actually treated
• A review of the patient charts revealed a
document made by the physiotherapist
indicating she reviewed the chart but didn’t see
the patient
• In an interview the physiotherapist indicated she
made those entries at the time of the review (two
years earlier)
CLEAR 2008 Annual Conference
Anchorage, Alaska
Case Example Indented Writings
• The investigator observed signs that
documents may have been added after
the fact (paper appeared new & notations
all in past tense)
• Documents sent for analysis
• Analysis revealed that all the documents
were created at the same time
– indented writing from the first and second pages were
found on subsequent pages
– There was a lack of indented chart entries on the
suspect documents
CLEAR 2008 Annual Conference
Anchorage, Alaska
Case Example Indented Writings
Interesting Facts:
• The time to get this done was 30 days at a
private lab
• Cost approximately $4500.00
• Outcome as yet not determined but likely
to result in a guilty plea again resulting in
significant savings by avoiding a contested
hearing
CLEAR 2008 Annual Conference
Anchorage, Alaska
Comparative Handwriting
Courtesy of Forensic Document Examination Services, Inc.
CLEAR 2008 Annual Conference
Anchorage, Alaska
Comparative Handwriting
• No two naturally written words or
signatures produced by the same person
are identical in every detail.
• No act of writing, when executed in a free
and natural manner, is void of that element
of writing known as variation.
• Mood, physical condition, muscular coordination and external influences can
impact on handwriting
CLEAR 2008 Annual Conference
Anchorage, Alaska
Comparative Handwriting
• Examiners use microscopes to look for
details such as:
– tracing lines
– smudges
– tremors
– inconsistencies in shapes
• Examiners require a suitable number of
samples with similar letter combinations.
CLEAR 2008 Annual Conference
Anchorage, Alaska
Comparative Handwriting
• Most attackable from a defense
perspective
• Some case law that rules handwriting
analysis as inadmissible
• Some have suggested that there is a lack
of sound scientific data behind this type of
forensic testing
CLEAR 2008 Annual Conference
Anchorage, Alaska
Case Example
Comparative Handwriting
• Chiropractor is accused of writing false
prescriptions for orthotics to satisfy insurance
company requirements
• Twenty seven prescriptions from four separate
medical doctors provided by insurance company
• Investigator inquired and discovered that three
of the four do not exist and the fourth works in
the same office as the Chiropractor
• Chiropractor’s position was “I don’t control what
patients bring me for prescriptions”
CLEAR 2008 Annual Conference
Anchorage, Alaska
Case Example
Comparative Handwriting
• Investigator reviewed the prescriptions noted
similarities in handwriting, and similar
discrepancies in size and layout of prescription
pads
• Forwarded for analysis
• Exhibits submitted were found by the expert to
have all been written by the same person
• Multiple entries from patient charts known to be
written by the chiropractor were also provided to
expert and these too were found to be written by
the same person as the prescriptions
CLEAR 2008 Annual Conference
Anchorage, Alaska
Case Example
Comparative Handwriting
Interesting Facts:
• The analysis was aided by the fact that every
prescription contained the exact same phrases and
sequences of letters and words. Only the signatures
were different
• In Ontario the Centre for Forensic Sciences (Provincially
funded lab) was able to complete this testing for us at no
cost
– For this type of testing it was worthwhile because turnaround
time was relatively short (45 days)
– If we were dealing with DNA there would be 7-10 month wait
CLEAR 2008 Annual Conference
Anchorage, Alaska
Deoxyribonucleic Acid (DNA)
• Highly accurate
(within millionths of a
percent)
• Usually admissible in
hearings and courts
• Highly effective in
resolving questions in
dispute where
credibility is at issue
CLEAR 2008 Annual Conference
Anchorage, Alaska
Considerations for DNA Testing
• It is completely useless if there is not a
reference sample
• Can be very expensive if being done in
private laboratories
• Results can take months to obtain
especially if using government labs
• There are different types of DNA not all
accepted in some jurisdictions
CLEAR 2008 Annual Conference
Anchorage, Alaska
Two Types of DNA
• RFLP (Restriction Fragment Length
Polymorphism)
– gold standard test
– sometimes called DNA fingerprinting or
profiling
– considered to be the most accurate
– requires many sample cells that are “fresh”
– takes anywhere from 3 weeks to three months
CLEAR 2008 Annual Conference
Anchorage, Alaska
Two Types of DNA
• PCR (Polymerase Chain Reaction)
– not as accurate as RFLP
– takes much less time to complete--a week at
most.
– requires minute samples which can be very
old years even decades old without reduction
in accuracy
– matches are not conclusive
CLEAR 2008 Annual Conference
Anchorage, Alaska
Case Example DNA
• Chiropractor accused of sexual abuse
• Alleged victim provides her panties
claiming his semen will be found there
• Chiropractor mails an envelope to the
victim and this too is collected
• DNA from semen in panties matched DNA
in the saliva used to lick the envelope
CLEAR 2008 Annual Conference
Anchorage, Alaska
Case Example DNA
• Until this time Chiropractor denied
everything
• When presented with DNA evidence he
eventually pled guilty
CLEAR 2008 Annual Conference
Anchorage, Alaska
Case Example DNA
Interesting Facts:
• DNA testing of three sources was required
– Victim for reference, panties, and envelope
• Cost of testing - almost $10,000
• Time to get results - 7 weeks
• Estimated savings from avoiding contested
hearing $50,000-$75,000
• Don’t forget – there was far from a guaranteed
outcome in a contested hearing without the DNA
CLEAR 2008 Annual Conference
Anchorage, Alaska
Evidence Collection and Continuity
CLEAR 2008 Annual Conference
Anchorage, Alaska
Evidence Collection and Continuity
Expert forensic evidence provided by the
most competent of experts will mean nothing
if the evidence has not been properly
collected and stored with access to the
evidence limited and controlled.
CLEAR 2008 Annual Conference
Anchorage, Alaska
Authentication of Evidence
•
•
•
•
•
Identify the evidence
Provide proof of the source
Custody of the evidence
Description of Condition on discovery
Proper receipt or list
CLEAR 2008 Annual Conference
Anchorage, Alaska
Collecting Evidence
When collecting or providing evidence for a
forensic laboratory be sure to seek advice
on proper collection processes:
• How to collect the sample
• How much do they need
• How should it be packaged and
transported
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Anchorage, Alaska
Maintaining Evidence
Preserving Identity
• Marking where possible without
affecting its evidentiary value
• Tag when marking is not practicable
• Sealing in container and labeling when
tagging and marking are not practicable
• Identify who collected the evidence and
placed it into custody
CLEAR 2008 Annual Conference
Anchorage, Alaska
Maintaining Evidence
Maintain adequate control:
• Secure location
• Suitable environment
• Prevent alteration of any kind
CLEAR 2008 Annual Conference
Anchorage, Alaska
Preserving the Evidence
• You must control the security of the
evidence – i.e. locked up with limited
access.
• Record all accesses to the evidence
• Maintain a suitable environment
– if evidence is perishable photograph it and
use proper means to sustain it.
• Avoid any alteration of the evidence
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Document the Entire Process
• Without proper documentation evidence will lack
a proper foundation
• The consequences include
– Unavailable evidence: lost, destroyed or never
collected
– Unauthenticated evidence: failure to show the source,
and handling of the materials
– Damaged evidence: not useable because of
deteriorated or altered condition
CLEAR 2008 Annual Conference
Anchorage, Alaska
Legal Challenges
Challenges may look for two possible outcomes:
• The evidence being deemed inadmissible
• The evidence being given reduced weight
The challenge may be on the following grounds:
• The nature of the forensic testing itself
• The quality of the process leading to the result
CLEAR 2008 Annual Conference
Anchorage, Alaska
Legal Challenges
Quality of the Process
• Sources of evidence
– collected from a scene
– provided by a victim or third party
• validity and continuity will be questioned
• Continuity post collection
– who had access
– What are your protocols / process for handling
evidence
– potential contamination or alteration
CLEAR 2008 Annual Conference
Anchorage, Alaska
Legal Challenges
• Laboratory error / contamination
– failure to follow protocols
• Questionable experts
– qualifications
– experience
• Was a reference sample acquired legally
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Anchorage, Alaska
Challenging the Value of
Forensic Testing
Daubert Opinion (US Supreme Court):
• The trial judge must screen scientific evidence to
ensure it is relevant and reliable
• Factors the court should consider include:
–
–
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testing and validation
peer review
rate of error
general acceptance
• Canadian courts although historically less rigid
in determining the value of expert evidence have
referred to Daubert occasionally
CLEAR 2008 Annual Conference
Anchorage, Alaska
Things to Consider Before Using
Forensic Experts
• How good is the case without forensic
evidence?
• What things can we look at first before
using a forensic expert?
• What information do we have that leads us
to believe a specific forensic test will show
something?
• What might the political impact be if we
pursue certain approaches?
CLEAR 2008 Annual Conference
Anchorage, Alaska
Things to Consider Before Using
Forensic Experts
Possible Advantages:
• May clear up issues of credibility
• Provide certainty with respect to culpability
• Possible cost savings if contested hearing is
avoided due to guilty plea
• May spare a victim the difficulty of a contested
hearing
• If contested hearing goes forward success is
more likely and prosecution may be easier
CLEAR 2008 Annual Conference
Anchorage, Alaska
Things to Consider Before Using
Forensic Experts
Possible Disadvantages:
• Testing is expensive if done privately
• No guarantee that testing will be positive
• Expert testimony at a hearing can be very costly
further adding to the cost of the matter
• Time involved can significantly delay the process
• If testing is negative this too must be disclosed
and case could be more difficult to prosecute
CLEAR 2008 Annual Conference
Anchorage, Alaska
Finding a Forensic Expert
• Check the potential expert’s Curriculum
Vitae
• Determine what professional training the
expert received
• Is the expert certified by a recognized
certifying body?
CLEAR 2008 Annual Conference
Anchorage, Alaska
Finding a Forensic Expert
• Past affiliations with state or provincial
labs
– Internships / mentorships
• Courtroom / Hearing experience
• Previous acceptance by courts as an
expert in their field
• Consider talking to your legal counsel who
may have suggestions
CLEAR 2008 Annual Conference
Anchorage, Alaska
Summary
• Forensic evidence can be very valuable
and should be considered in some cases
• Recognize that it has some limitations
• Carefully explore the feasibility and
appropriateness of forensic tests you are
considering by:
– consulting with prosecutors
– consulting with forensic experts
– Considering the cost benefit in your decision
CLEAR 2008 Annual Conference
Anchorage, Alaska
Summary
• Manage people’s expectations regarding
their suggestions of forensic testing
– be familiar with limitations such as:
• continuity of evidence issues
• resource availability
• time frames
• Ensure you have appropriate protocols in
place to manage evidence regardless of
what that evidence may be
CLEAR 2008 Annual Conference
Anchorage, Alaska
Quiz
CLEAR 2008 Annual Conference
Anchorage, Alaska
CLEAR 2008 Annual Conference
Anchorage, Alaska
References
• Mr. Dan C. Purdy, Forensic Document
Examination Services, Inc. Ottawa,
Ontario Canada.
• R. v. J.-L.J., 2000 SCC 51 (CanLII).
• Daubert v. Merrell Dow Pharmaceuticals
(92-102), 509 U.S. 579 (1993).
• R. v. Mohan, 1994 CanLII 80 (S.C.C.)
CLEAR 2008 Annual Conference
Anchorage, Alaska
Speaker Contact Information
Kristina Mulak
Manager of Investigations
College of Chiropractors of Ontario
130 Bloor Street West, Suite 900
Toronto, Ontario
[email protected]
Dean Benard
President
Benard + Associates
5-420 Erb Street West Suite 500
Waterloo, Ontario
Ernie Atkins
Investigator
Commonwealth of Virginia DPOR-CID
Field Investigations, Tidewater Region
9960 Mayland Dr. Suite 400
Richmond, Virginia
[email protected]
Glenn Benard
Associate
Benard + Associates
5-420 Erb Street West Suite 500
Waterloo, Ontario
[email protected]
[email protected]
CLEAR 2008 Annual Conference
Anchorage, Alaska