Strengthening Forensic Science in the United States: A Path Forward (2009) NAS Report NRC Report 2009 Report
Looks at forensic science differently Easy to read Begin with the Summary (p 1- 33) E-format (on disk) and hardbound (order)
Asked for by forensic analysts Authorized by Republican Congress/President Researched by NRC of National Academies Created by an Act signed by President Lincoln in 1863 200 members have won Nobel Prize Other National Academies of Engineering and Medicine Authored by Committee Co-chaired by US Court of Appeals Judge & Statistician
San Francisco (2010) North Carolina (2010) Drug Theft Destruction of Records DNA Mix-up Misleading Forensic Report Misrepresented Results Hid Evidence from Defense Manual: Be aware of defense whores 230 Flawed Cases 3 Ended in Execution
New York Dept of Forensic Investigation LAPD Connecticut Oklahoma Misconduct and Falsifications could be the basis for a criminal prosecution File Missing after Errors found Major Deficiencies in Dr. Henry Lees Lab Joyce Gilchrist, Lab Supervisor, Dismissed for Falsifying Evidence
West Virginia Houston Washington FBI Lab employee lied in 100+ cases Credentials questioned Grossly Incompetent Work Misleading manner designed to unfairly help prosecutors obtain convictions Troubling Flaws in Drug Cases Failure to Disclose Brady DNA Contamination and Errors Brandon Mayfield Case Bias Circular Reasoning Quantico Lab Analyst DNA Error and Falsified Report
Idaho Possession of Untraceable C/S Possession of Unauthorized Amounts of C/S Hiding C/S during Audits
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. – NAS Report
Hair Bite Marks Fingerprints Absent DNA testing, No individualization possible Could Accurate Continuing dispute over the value and scientific validity of comparing and identifying bite marks Studies demonstrated that identification decisions on same fingerprint can change solely by presenting the print in a different context
Arson DNA Despite the paucity of research, some arson investigators continue to make unsupported determinations about whether or not a particular fire was set Mislabeling & Losing Samples Misinterpreting data Underestimating probability of family match LCN
Possible sources of error and statistical data Evidence of analysis and the chemists notes Some laboratories might mention the tests that were conducted
From a scientific perspective, this style of reporting is often inadequate, because it may not provide enough detail to enable a peer or other courtroom participant to understand and, if needed, question the sampling scheme, process(es) of analysis, or interpretation - NAS Report
Get the Goods What Exists? Who has it? How do I get it? Why do I want it? How do I use it?
What Exists? Audit Reports Internal External Manuals and SOPs Validation Studies Quality Control Unexpected Results Log Error Log Corrective Action Log Proficiency Testing Maintenance Records
What Exists…? ASCLAD Accreditation Legacy v. ISO 17025 Standards Subjective Judgment as to compliance or corrective action request Not Transparent Look for units outside lab
What Exists…? Analysts Case File including Bench Notes CV Proficiency Testing Personnel Files Certificates Number of Analyses Courts/Cases Qualified
Who has it? Law Enforcement Agencies Crime Lab ASCLAD Prosecutor DOJ The NAS Report Government Oversight Agencies
How do I get it? Informal Request Discovery Subpoena Duces Tecum FOIA/Public Records Online Sources SWG s Libraries
Why do I want it?Provide Trier of Fact with Accurate Information Allow Trier of Fact to Assess Proper Weight Rebut Zero Error Myth Public Entities Paid for by Public
The Result is Not Inculpatory Alternative Interpretations General Acceptance Lab Compliance Analyst Competence Bias
Based on my experience… Scientific Method Hypothesis Testing Falsifiability Replication Peer Review Scientific Assessment Collection and Analysis Accuracy and Error Rates Potential Bias & Human Error Proficiency
Match… You cant see what I saw… No Bias Define Not Recognized By… Scientific Method Bring Whatever it Takes for Us to See Contextual Bias Peer Review
Melendez-Diaz v. Mass,129 S.Ct. 2527 (2009) (Confrontation re Lab Analysis) Nor is it evident that what [the State] calls neutral scientific testing is as neutral or as reliable as [it] suggests. Forensic evidence is not uniquely immune from the risk of manipulation
The majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency
Because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency
A forensic analyst responding to a request from a law enforcement official may feel pressure-or have an incentive-to alter the evidence in a manner favorable to the prosecution
Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well Citing the NAS Report concerning problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint analysis, pattern/impression analysis, and toolmark and firearms analysis
There is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material – Justice Scalia quoting NAS Report Contrary to respondents and the dissents suggestion, there is little reason to believe that confrontation will be useless in testing analysts honesty, proficiency, and methodology-the features that are commonly the focus in the cross-examination of experts – Justice Scalia
Brady Deficient Performance Anything the prosecution didn't disclose that Scalia mentioned as a possible subject of cross– examination is Brady Everything that trial counsel didnt request in discovery or use as a basis for cross- examination is deficient performance
US v. Oliveira (D. Mass 2010) The NAS Report called for sweeping changes in the presentation and production of evidence....
In the past, the admissibility of this kind of evidence was effectively presumed, largely because of pedigree-the fact that it has been admitted for decades.
As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited ….
The NAS report suggests a different calculus-that admissibility of such evidence ought not to be presumed; that it has to be carefully examined in each case….