1. NAS Report on Forensic Science Jane Campbell Moriarty Professor of Law University of Akron School of Law Visiting Professor Case Western Reserve University School of Law March 19, 2009

2. Daubert v. Merrell Dow Pharms., Inc. (S.Ct. 1993) A reliability-based standard, applied to all scientific evidence. A multi-factor test: –(1) whether the theory or technique can be or has been tested; (2) subjected to peer review and publication; (3) the potential or known rate of error of the theory or technique when applied; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) general acceptance in the relevant scientific community –“observations” by the Supreme Court –Flexible test –Focus on methodology used, not conclusions generated –Applies to all scientific evidence, not just novel evidence –Trial court is the gatekeeper to assure that expert testimony possesses “trustworthiness” or “evidentiary reliability”

3. Joiner v. General Electric (S.Ct. 1997) Abuse of discretion is the standard for reviewing decisions concerning admission/exclusion of expert evidence Conclusions and methodology not entirely distinct. Nothing requires a district court to admit opinion evidence connected to the existing data by the ipse dixit of the expert. There may simply be too great an analytic gap between the data and the opinion proffered to admit the testimony.

4. Abuse of Discretion Standard Described by one court as follows: “appellants who challenge rulings [under this standard] are like rich men who wish to enter the Kingdom; their prospects compare to those of camels who wish to pass through the eye of the needle.” US v. Coleman, 179 F.3d 1056, 1061 (7 th Cir. 1999).

5. Kumho Tire v. Carmichael (S. Ct. 1999) Kumho Tire v. Carmichael (US S.Ct. 1999)(applying the reliability based standard to all expert testimony, not just traditional scientific evidence) Up to the trial court whether and how to apply Daubert’s factors; seeks to “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”

6. Kumho Tire’s implications, cont. An important limitation: “While a trial judge must have considerable leeway in [deciding whether] particular testimony is reliable,... a trial court should consider the specific factors identified in Daubert where they are reasonable measures of reliability of expert testimony.” What should this mean to forensic science?

7. Variability of Admissibility standards, post-Daubert Some states use a general acceptance standard; Federal Courts and many states use a reliability standard (but there is still focus on Frye); Some states using general acceptance have woven a reliability requirement into their test (e.g., theory generally accepted as reliable in relevant field (Kansas)); Great variability in how Frye is applied (AZ only applies it to novel scientific evidence; FLA grandfathers in long-standing science; Minn. excludes Frye in behavioral science—just the “helpfulness test”); and Many courts use the “generally accepted by other courts” test.

8. Kansas—the outer limit Kansas limits Frye’s application, by exempting “pure opinion testimony,” which the KS SCT defined as “an expert opinion developed from inductive reasoning based on the expert’s own experience, observations or research.” State v. Patton (2005).

9. Post-Daubert Challenges Fingerprints Hair Handwriting Photographic comparison Toolmarks Bitemarks

10. Fingerprints US v. Haarvard (7 th Cir. 2001 US v. Llera Plaza (ED Pa. 2002) US v. Crisp (4 th Cir. 2003) Commonwealth v. Patterson

11. US v. Havvard “The methods of latent print identification can and have been tested. They have been tested for roughly 100 years. They have been tested in adversarial proceedings with the highest possible stakes-liberty and sometimes life.” US District Court, aff’d on appeal (7 th Cir. 2001).

12. US v. Llera Plaza, First Opinion, January 7 th 2002 The government’s fingerprint comparison methods do not meet Daubert 's testing, peer review, and standards criteria, and information as to [its]... rate of error is in limbo. Excluding the testimony would put “at naught a century of judicial acquiescence in fingerprint identification processes-[and] would be unwarrantably heavy-handed.” Government’s witnesses may (1) describe how fingerprints were obtained, (2) magnify fingerprints to show to jury (3) point out observed similarities (and differences) between prints; Expert witnesses may not testify as to their “opinion”... that a particular latent print is in fact the print of a particular person.

13. After Llera Plaza I vacated, new opinion “In short, I have changed my mind.” Court allows government witnesses to testify as to the conclusion about fingerprint matches. Relying in part on Scotland Yard witness’ testimony in the rehearing, the court said “If it is sufficiently reliable for an English court,” it should satisfy FRE 702.

14. Commonwealth v. Patterson (Mass. 2005) No single fingerprint could be matched, but latent print examiners matched four impressions based upon cumulative similarities. Examiner claimed all four finger impressions were made at the same time by the same hand. SJC upheld the exclusion of such testimony, but also held that the theory and methodology of matching a single fingerprint to be generally accepted and sufficiently reliable to be admitted. Noted that the trial court “ACE-V defies easy testing because it does not require a minimum number of similarities, but rather operates on a subjective sliding scale.”

15. Handwriting Comparison United States v. Mooney (1 st Cir. 2002) United States v. Prime (W.D.Wash. 2002), vacated and remanded on other grounds, subsequently affirmed on this issue, (9 th Cir. 2005). United States v. Crisp (4 th Cir. 2003) Several US District Court cases allow experts to compare points of similarity; disallow conclusions about a match

16. US v. Mooney (1 st Cir. 2002) Finding the Daubert factors relevant to his evaluation of the reliability of the expert's testimony, the judge noted that all the factors were met in this case. The judge also found persuasive the historical acceptance of handwriting testimony.... Court of Appeals found no abuse of discretion.

17. United States v. Prime US Dist.Ct: “Where a technique has been repeatedly applied and tested by law enforcement and courts for over a century, the court does not believe the absence of scientific data, without more, should sound the death knell for such testimony.”

18. US v. Prime (Ct. App.) Professor Srihari of SUNY Buffalo testified that “handwriting is individualistic.” Court found her training credentials in the Secret Service as well as her certification by the American Board of Forensic Document Examiners “impeccable.” Error rate of approximately 13% not problematic. Focus on methodology not conclusions. “As long as the process is generally reliable, any potential error is for cross exam and competing testimony.” “The Court reasonably concluded that any lack of standardization is not in and of itself a bar to admissibility in court.” General acceptance: Used extensively by the FBI, CIA and Postal Service. Also met the “ generally accepted by other courts” standard.

19. US v. Crisp (4 th Cir. 2003)(fingerprints and handwriting) [T]he principles underlying fingerprint identification...bear the imprimatur of a strong general acceptance, not only in the expert community, but in the courts as well.... Put simply,... no reason... to believe that this general acceptance of the principles underlying fingerprint identification has, for decades, been misplaced. Accordingly, the district court was well within its discretion in accepting at face value the consensus of the expert and judicial communities that the fingerprint identification technique is reliable. Dissent: The government did not establish... that this evidence is reliable. [It]... has had ten years to comply with Daubert. It should not be given a pass in this case.

20. Photographic Comparison to declare a “Match” US v. McKreith (11 th Cir. 2005) –Court held no error in allowing forensic analyst to compare a shirt owned by defendant with a shirt worn in a surveillance photograph, upholding testimony that shirt “matched the class characteristics of the shirt,” that the black bag was “indistinguishable” and that there were “similarities in the shape of nose, mouth and chin” of defendant to the picture in the photo.

21. Toolmarks US v. Green (D. Mass 2005) US v. Glynn (S.D. NY 2008)

22. US v. Green (D.Mass. 2005) Trial court found a wealth of shortcomings in the testimony of the toolmark examiner (matching marks on bullets found at scene with test-fired bullets from defendant’s weapon) Examiner not certified by any professional organization Not proficiency tested Training consisted of observing his mentor and “applying best practices” Could not cite any error rates for him, his lab, or indeed, the profession No proof that markings are unique to each weapon Shell casings in question did not match exactly Great deal of subjective judgment in declaring a match No statistical probabilities concerning the likelihood of a coincidental match (unlike DNA profiling)

23. US v. Green Trial court allowed government’s expert to testify about the points of comparison, but would not allow him to testify that the bullets matched “to the exclusion of every firearm in the world.” Admitting such evidence because of its longstanding history of courtroom use runs the risk of “grandfathering in irrationality,” arguably ignoring the mandate of the Supreme Court.

24. US v. Green I reluctantly come to the above conclusion because of my confidence that any other decision will be rejected by appellate courts, in light of precedents across the country, regardless of the findings I have made.... [W]hen liberty hangs in the balance-and, in the case of the defendants facing the death penalty, life itself-the standards should be higher than were met in this case, and than have been imposed across the country. The more courts admit this type of toolmark evidence without requiring documentation, proficiency testing, or evidence of reliability, the more sloppy practices will endure; we should require more

25. US v. Glynn Court disallows expert from testifying that a bullet and shell casing came from defendant’s firearm “to a reasonable degree of ballistics certainty.” However, did allow him to testify that it was “more likely than not” from defendant’s firearm, citing FRE 401.