Legal Issues & Forensic Science - Paul Giannelli - Weatherhead Professor - Case Western Reserve University

Types of Evidence z Eyewitness Identifications z Confessions: False & Abuses z Jailhouse Snitches z Physical (“scientific”) Evidence

Developments in 1990s z Daubert trilogy z DNA admissibility “wars” z Scientific evidence abuse cases

Daubert v. Merrell Dow Pharm., Inc. (1993) z Liberal vs. stringent standard? y “liberal thrust” of Federal Rules y but “gatekeeper” role z Wisegram v. Marley (S. Ct. 2000): x “exacting standards of reliability” z Civil v. criminal cases

Kumho Tires Co. v. Carmichael (1999) z Kumho “plainly invite[s] a reexamination even of ‘generally accepted’ venerable, technical fields.” y United States v. Hines (D. Mass. 1999) z Handwriting comparison z Fingerprint comparison z Hair comparison z Firearms identification (“ballistics”)

DNA Admissibility “Wars” z University science, not forensic science z “Science culture” y written protocols y quality assurance/quality control y proficiency testing z Open science vs. adversarial science

DNA Exonerations z Wrongful convictions z Third of cases involved “tainted or fraudulent science” y Scheck et al., Actual Innocence 246 (2000)

Abuse Cases z In re Investigation of W.Va. State Police Crime Lab., Serology Div. y 438 S.E. 501 (W. Va. 1993) y Chief serologist, Fred Zain y fabricated reports y perjured testimony

Justice Department I.G. Report on FBI Lab (1997) z establish report review procedures by unit chiefs; z prepare adequate case files to support reports; z monitor court testimony in order to preclude examiners from testifying to matters beyond their expertise or in ways that are “unprofessional”; and z develop written protocols for scientific procedures.

Oklahoma City zMitchell 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.”). zMcCarty 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 z 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 z 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 z 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 z Liptak & Blumenthal, New Doubt Case on Crime Testing in Houston Cases, N.Y. Times, Aug. 5, z 6 independent experts: witness either lacked basic knowledge of blood typing or gave false testimony

Cleveland zConnie Schultz,City to Pay $1.6 Million for Man’s Prison Time, The Plain Dealer, June 8, 2004, A1 zCity 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. z Lab audit of prior cases.

Ramirez v. State (Fla. 2001) z “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 z Beyond competence of most crime labs z National Academy of Sciences y Voiceprints (1979) y DNA (1992) & (1996) y Polygraph (2002) y Bullet lead composition comparison (2004)

U.S. v. Havvard (S.D. Ind. 2000) (fingerprints) z Error rate is “zero.” z “Peer review” is a second examiner reviewing the analysis. y not true in all labs y often not blind y but see Daubert = “refereed” journals z Adversarial testing = scientific testing

Stephan Cowans z 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. yLoftus & Cole, Contaminated Evidence, 304 Science 673, 959, May 14, 2004

Brandon Mayfield z 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) z “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? z 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).

z“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.” y- Redmayne, Expert Evidence and Criminal Justice (2001)

Regulate Crime Labs z E.g., New York, Oklahoma, Texas z Accreditation of labs z Certification of examiners y Proficiency testing z Standardization of procedures y Published protocols

ABA Resolutions (Aug. 2004) Innocence Committee z1. 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. z2. Crime laboratories and medical examiner offices should be adequately funded.

Proficiency Test: Fingerprints U.S. v. Llera Plaza (2002) z “[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.” z 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) z “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.”

A-Expert z MacDonald, The Making of an Expert Witness: It’s in the Credentials, Wall Street J., Feb. 8, 1999, B1. z American College of Forensic Examiners

Legal reforms: Discovery z Lab reports that are “scientific”: y Comprehensive x Include methodology x Include limitations y Comprehensible (readable by jury) z Lab Protocols on the internet z Discovery of lab notes, graphs, etc. z Discovery of examiner credentials

Defense experts z Ake v. Oklahoma (S.Ct. 1985) z 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) z“[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.”

z Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, y 89 Cornell Law Review Issue 6 (Sept. 2004)