Report Writing and the drafting of standards by the National Commission on Forensic Science

Reporting and Testimony Subcommittee Inaugural Meeting Conference Call April 30, 2014

Membership Ms. Rebecca Brown, The Innocence Project Mr. Mike Cariola, CEO & President, Bode Technology** Dr. Jamie Downs, M.D., Forensic Pathologist, forensX LLC** Mr. Jules Epstein, Professor of Law, Widener University Mr. Paul Giannelli, Professor of Law, Case Western Reserve University Hon. Barbara Hervey, Judge, Texas Court of Criminal Appeals Ms. Susan Howley, Director of Public Policy, Nat’l. Center for Victims of Crime Ms. Linda Jackson, Director, Virginia Department of Forensic Science** Dr. Larry Kobilinsky, Professor & Chair, Dept. of Sciences, John Jay College** Mr. John Kacavas, United States Attorney, District of New Hampshire Ms. Pam King, Assistant State Public Defender, State of Minnesota Mr. Gerald LaPorte, Acting Director, Office of Investigative and Forensic Services, NIJ, OJP** Ms. Julia Leighton, General Counsel, Public Defender Service, District of Columbia Mr. Thomas McShane, President, Guidepost Solutions, LLC Mr. Peter Neufeld, Co-director, Innocence Project Mr. Phil Pulaski, Chief, Detective Bureau, NYPD (ret’d.) Hon. Jed Rakoff, U.S. District Judge, Southern District of New York (Co-Chair) Mr. Matt Redle, County and Prosecuting Attorney, Sheridan County, Wyoming (Co- Chair) Ms. Shannan Williams, NIST Ms. Charlotte Word, Consultant in Human DNA and paternity testing** Ms. Paula Wulff, Office of General Counsel, FBI Laboratory, USDOJ

Working Groups within the Sub- Committee Legal Issues Terminology Probabilistic Statements Evidence Preservation Report Content

Members of the Report Content Working Group Julia Leighton, General Counsel, Public Defense Services, Washington, D.C. Phil Pulaski, Chief of Detectives (ret’d.), NYPD, New York, New York Peter Neufeld, Attorney and Co-Director, The Innocence Project, New York, New York Linda Jackson, Director, Virginia Department of Forensic Science

Sources Examined Federal Rules of Criminal Procedure [Rule 16] National Academy of Sciences Report ISO/IEC Accrediting Bodies – A2LA – ASCLD-LAB – FQS LAB

Sources Examined [con’t.] ASTM E620 ASTM E2327 DAB QAS SWGANTH SWGFAST SWGFEX SWGDRUG SWGMAT

Sources Examined [con’t.] NIST NIJ NAME Checklist NAME Standards NY Standards

Issues Contents of Report v. Contents of Case File – Items required to be contained in the case file Report Comment re existence of case file and it contents Reporting of Condition of Items Received References used to Augment or Formulate Opinions and Conclusions

Report Format and Organization Administrative information – Personnel, Tracking Requests of Submitting Agency Summary of the work performed Methods Employed Data, Observations and Results Conclusions and Opinions Reference Material cited and/or considered

Speed Bumps Some aspects require coordination with OSAC et al. – E.g., Efforts at formulating uniform terminology “Interpretation” v. “Conclusion” v. “Opinion” Declarations of “match” and limitations Declarations of “consistency” and limitations

The Discussion Points Uniformity - Big Differences Exist in Ways Information Reported by Disciplines – Consistent terminology across disciplines Report Content – What Information Should be Included? – What Information is appropriate for Bench Notes/Case File? What information should be written down? – Should it be recorded contemporaneously – Is this distinction important as long as there is a means of gaining access? Should there be some form of disclaimer in the report regarding existence of other data or information?

The Discussion Points Report Content – What Information Should be Included? (continued) – Is Rule 26 (a)(2), Fed. Rules Civ. Procedure, a good model for report content and testimony? Requires: – Disclosure of identity of any expert witness. – Contemporaneous with the disclosure, provide a written report, signed and prepared by the witness, which contains: 1.A complete statement of all opinions the witness will express. a.The basis and reasons for them; b.Facts or data considered in forming the opinions, bases or reasons; c.Any exhibits to be used to summarize the opinions, bases or reasons. 2.The witness’s qualifications a.Including all publications authored during the previous 10 years.

The Discussion Points Report Content – What Information Should be Included? (continued) – Is Rule 26 (a)(2), Fed. Rules Civ. Procedure, a good model for report content and testimony? Requires: – Disclosure of identity of any expert witness. – Contemporaneous with the disclosure, provide a written report, signed and prepared by the witness, which contains (con’t.): 3.A list of all other cases in which the witness has testified as an expert during the previous 4 years. 4.Statement of compensation paid. Provides for: – Timing of Disclosure by parties. – Supplementation of Disclosure. – Experts retained as consultants only. – Should we consider two tiers of reporting detail requirements? Preliminary Reports and Trial Reports.

Discussion Points Concluding Points – Need to Train Examiners and Analysts Ethical Issues relating to Reports Due Process issues such as Brady – Note: Is it more effective to approach these issues from a scientifically based culture which values a peer review process rather than a legally based culture of advocacy balanced by due process? – Requests for Reports and Reporting Standards NIST/NIJ, Latent Print Examination and Human Factors (2012) WH-OSTP-SoFS, Reporting Document – Laporte Document (Unfinished) Reporting Standards ISO ASCLD-LAB International Supplemental Requirements for Accreditation for Forensic Testing Laboratories (2011) ASCLD-LAB policy: Reporting Uncertainty of Measurement (2013) ABA Standards for Criminal Justice, 3 rd Edition – DNA Evidence

OtherResources Spreadsheet of Report Requirements or Recommendations (20 bodies including Federal Rules, NAS, ISO, ILAC Guide 19, [Accrediting bodies] A2LA, ASCLD-LAB, FQS, LAB, ASTM E620, ASTM E2327, DAB QA, SWGANTH, SWGFAST, SWGFEX, SWGDRUG, SWGMAT, NIST-NIJ, NAME Checklist, NAME Standards A draft Analysis of Reporting for the SoFS containing sample content for Autopsy Reports; Firearms report, Latent Fingerprint Report, Nuclear DNA report

Moving Forward Committee (and Commission) members – Submit reports or materials they believe useful. – Circulate ideas and substantive suggestions that we might wish to adopt even early on. – Judge Rakoff and myself, intend to circulate a plan of attack by the end of the month. Questions? Comments?

Reporting and Testimony Subcommittee Inaugural Meeting Conference Call April 30, 2014

Reporting and Testimony Subcommittee Inaugural Meeting Conference Call April 30, 2014