The NAS Report: Developments, Lessons, and Resources. Steven D. Benjamin Benjamin & DesPortes, PC Richmond, VA

Transcription

1 The NAS Report: Developments, Lessons, and Resources Steven D. Benjamin Benjamin & DesPortes, PC Richmond, VA

2 The Problem Conclusions and terms Scientific examination Individualized match Zero % Error Rate Misleading Aura of Science Technical fields Conclusions/techniques without research / validation Premise Method

3 The Problem Prejudicial weight of expert testimony Inaccessibility Scientific illiteracy Semantics Reality of Indigent Defense Caseloads Experts Discovery

4 THE NAS REPORT Strengthening Forensic Science in the United States: A Path Forward, Committee on Identifying the Needs of the Forensic Sciences Community: Committee on Applied and Theoretical Statistics, National Research Council, National Academy of Sciences,

5 A Consistent Message The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country. This can only be done with effective leadership at the highest levels of both federal and state governments, pursuant to national standards, and with a significant infusion of federal funds.

6 WHAT SCIENTISTS HEARD The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country. This can only be done with effective leadership at the highest levels of both federal and state governments, pursuant to national standards, and with a significant infusion of federal funds.

7 WHAT LAB DIRECTORS HEARD The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country. This can only be done with effective leadership at the highest levels of both federal and state governments, pursuant to national standards, and with a significant infusion of federal funds.

8 WHAT PROSECUTORS HEARD science The forensic system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country. This can only be done with effective leadership at the highest levels of both federal and state governments, pursuant to national standards, and with a significant infusion of federal funds.

9 WHAT MOST DEFENSE ATTORNEYS HEARD The forensicsciencesystem, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports science the forensic community in this country. This can only be done with effective leadership at the highest levels of both federal and state governments, pursuant to national standards, and with a significant infusion of federal funds.

10 WHAT EVERYONE SHOULD HAVE HEARD The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country. This can only be done with effective leadership at the highest levels of both federal and state governments, pursuant to national standards, and with a significant infusion of federal funds. p. xx

11 NAS REPORT The law s greatest dilemma in its heavy reliance on forensic evidence concerns the question of whether and to what extent there is science in any given forensic science discipline.

12 NAS REPORT In short, the interpretation of forensic evidence is not infallible. Quite the contrary. This reality is not always fully appreciated or accepted by many forensic science practitioners, judges, jurors, policymakers, or lawyers and their clients.

13 NAS REPORT: FINDINGS No Standards No Protocols No uniformity: certification/accreditation No determination: Scientific validity Performance limits Impact of bias

14 NAS REPORT: FINDINGS Fingerprints and Impression Evidence Analytical framework is not specific enough to qualify as a validated method for this type of analysis.[it] does not guard against bias; is too broad to ensure repeatability and transparency; and does not guarantee that two analysts following it will obtain the same results. p. 142 [M]erely following the steps of ACE V does not imply that one is proceeding in a scientific manner or producing reliable results. p.142

15 NAS REPORT: FINDINGS Firearm analysis: Toolmark and firearms analysis suffers from the same limitations discussed above for impression evidence. Sufficient studies have not been done to understand the reliability and repeatability of the methods.

16 NAS REPORT FINDINGS Judicial system inadeqaute. to determine scientific validity: The judicial system is encumbered by, among other things, judges and lawyers who generally lack the scientific expertise necessary to comprehend and evaluate forensic evidence in an informed manner

17 NAS REPORT: FINDINGS Double standard on admissibility trial judges rarely exclude or restrict expert testimony offered by prosecutors appellate courts routinely deny appeals contesting trial court decisions admitting forensic evidence against criminal defendants. p.11

18 NAS REPORT: FINDINGS Enterprise incapable of curing itself. Governance necessary

19 NAS REPORT RECOMMENDATIONS NIFS Standardization Validation research Sever ties to law enforcement Research on bias and error Protocols that reflect best practices

20 NAS REPORT RECOMMENDATIONS Accreditation/certification QA/QC Code of Ethics Education and training Database interoperability Integrate with Homeland Security

21 NAS REPORT: VALUE Reform Education Expert Assistance Discovery Admissibility Confrontation

22 NAS REPORT: An Alert To lawyers/judges in CJS Forensic Science has problems Disciplines/Methods/Practice/Performance What has been the response??

23 Congressional Response Criminal Justice and Forensic Science Reform Act of 2011 Office of Forensic Science Forensic Science Board;Specialized Committees Accreditation and Certification Research Standards and Best Practices Training and Education Code of Ethics

24 Judicial Response Melendez Diaz v. Massachusetts: We discuss the report only to refute the suggestion that this category of evidence is uniquely reliable and cross examination of the analysts would be an empty formalism. Confrontation is one means of assuring accurate forensic analysis.

25 Judicial Response: Melendez Diaz 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.

26 Judicial Response: Admissibility Meaning of NAS Report Evidentiary requirements Scientific method Subjectivity Bias Validation

27 Judicial Response: Fingerprints The absence of a known error rate, the lack of population studies, and the involvement of examiner judgment all raise important questions about the rigorousness of friction ridge analysis [and] are appropriate topics for cross examination, not grounds for exclusion. United States v. Aman, 2010 U.S. Dist. LEXIS (E.D. Va. 2010)

28 Judicial Response: Fingerprints Friction ridge analysis is not foolproof, but it is also far removed from the types of junk science that must be excluded under Rule 702, Daubert, and Kumho. United States v. Love, 2011 U.S. Dist. LEXIS (2011)

29 Judicial Response: Toolmark and Firearm US v. Taylor, 663 F.Supp.2d (D.NM)(2009) Reviews prior federal court decisions Acknowledges Significant criticisms Insufficient rigor to be received as science Permitted testimony of match Reasonable degree of certainty in the firearms examination field. NOT as a matter of scientific certainty NOT to exclusion of all other guns

30 Judicial Response: Toolmark and Firearm No error in admission of expert testimony on toolmark and firearm identification; form of expert s testimony, even if overstating the degree of certainty, not of sufficient prejudice to affect outcome of case. People v. Melcher, 2011 Cal. App. LEXIS 7222 (2011)

31 Judicial Response: Toolmark and Firearm Jones v. United States, 2011 D.C.App. LEXIS 524 (2011)(NAS Report not persuasive that pattern evidence as firearm and toolmark identification evidence no longer generally accepted; expert s testimony of 100% certainty and absolute certainty excluding all other possible firearms, if in error, was harmless).

32 Judicial Response: Arson United States v. Hebshie, D.Mass. (2010) Pretrial IAC: Failure to request hearing Trial court would have determined Laboratory evidence: whether minimal scientific standards were met in particular case; Dog evidence: scope and limits of testimony Trial IAC: Checklist of failures

33 Judicial Response: Terms Firearm examiner prohibited from opining as a matter of scientific certainty or as to a match to the exclusion, either practical or absolute, of all other guns. He may only testify to within a reasonable degree of certainty in the firearms examination field. United States v. Taylor, 663 F. Supp. 2d 1170 (D. N.M. 2009)

34 Judicial Response: Undue Weight Expert opinion that adhesives could have come from the same source excluded because of jury tendency to give undue weight to expert testimony. United States v. Zajac, 2010 U.S. Dist. LEXIS (D. Utah 2010) State v. Ward, 364 N.C. 133; 694 S.E.2d 738 (2010)(visual inspection of pills insufficiently reliable for identification)

35 Judicial Response: Undue Weight [J]urors may ascribe so much authority to such a noteworthy expert in forensic chemistry that they treat his testimony as infallible and automatically accept his opinion on the chemical composition of a substance, without properly appreciating even with vigorous cross examination and proper jury instructions that the expert chemist never even performed a scientific, chemical analysis. State v. Ward, 364 N.C. 133; 694 S.E.2d 738 (2010)

36 Judicial Response: Defense Expert People v. Price, 2011 Cal. App. Unpub. LEXIS 4016 (2011)(Defense expert prohibited from explaining to jury that questions may exist with respect to the identification of a suspect through the use of fingerprints.

37 Judicial Response: Due Process The use of unreliable scientific evidence might violate due process Ex Parte Robbins, 2011 Tex.Crim.App. LEXIS 910 (2011)(dissent)

38 Professional Association Response ABA Training Task Force on the Presentation of Forensic Science NACDL AAFS and Forensic Science Foundation SWG

39 Resources NAS Report Reference Manual on Scientific Evidence (3d) Sarah Rackley, Forensic Resource Counsel NC Indigent Defense Services Paul C. Giannelli, Professor of Law Case Western Reserve University

40 Resources ABA Task Force: Voir Dire (draft) Understanding General scientific principles Specific principles relevant to for.sci.evi. to be presented Preconceptions about forensic science Bias for/against scientific evidence Whether scientific results will be accepted/rejected w/o consideration.

41 Resources ABA Task Force: Jury Instruction (Draft) Extent Technique/theory founded on reliable sci. method Technique/theory relies on interpretation Technique/theory validated Protocols/Standards Examination uses Examiner follows

42 Resources ABA Task Force: Jury Instruction (Draft) Examination susceptible to bias Physical observations observable by others Rate of error Known Cannot/not determined Estimation of uncertainty

43 Resources ABA Task Force: Jury Instruction (Draft) Qualifications of Examiner Contamination/alteration Acceptance w/i relevant sci. community Reasons for opinion Examiner certification Recognized body Evaluates competency by testing

44 Resources ABA Task Force: Jury Instruction (Draft) Accreditation of facility Whether physical observations observable by others

45 Concepts Culture of Science Scientific method Cognitive bias Validation Uncertainty and error Accreditation and certification Standards Proficiency tests

46 Concepts: Culture of Science Transparency Critical examination Self improving Avoids bias Avoids error Acknowledges uncertainty

47 Concepts: Scientific Method Precision accuracy and reproducibility Objectivity Documentation Peer Review Critical Thinking Careful observation and practice Uncertainty management error and bias

48 Concepts: Bias Contextual bias Confirmational bias

49 Concepts: Validation Validation study: a determination of the validity of a method or process designed for a particular purpose. Design: experimental conditions to test method. Publication of results Re examination by the scientific community Further evaluation Development of standard procedures Protocols: ensure the reliability of forensic analysis

50 Concepts: Uncertainty and Error Measurement error Methodological Examiner

51 Concepts: Accreditation and Certification Does it exist? What does it mean?

52 Concepts: Standards Terminology Documentation Protocols

53 Concepts: Proficiency Tests Blind? Submitted as casework?

54 Confrontation Culture of Science Scientific method Avoidance of error and bias Protocols Validation Uncertainty and error Standards Accreditation and certification Proficiency tests

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56 Use Discovery Complete report Documentation Protocols Training manuals Proficiency tests Accreditation documents Audit reports

57 CONCLUSION Science is essential to search for truth Forensic science does not belong to law enforcement Forensic science should be available to everyone in the criminal justice system to better assist in the determination of the facts and the search for the truth.

58 CONCLUSION Where that search for the truth falters, or relies on evidence of questionable integrity, knowledgeable cross examination is vital.

59 CONFRONTATION Curriculum vitae Education Professional associations Dues Only? Any demonstrated interest? Any requirements at all? Code of Ethics? AAFS? Attendance at any meetings or seminars? Submissions?

60 Confrontation Certification How obtain? E.g., Just pay fee? E.g., Required to attend a course in return for a certificate? Note: A real certificate requires more: Degree or background in science Training Demonstration of competency Continued education once certified Ability to pass proficiency tests once certified.

61 Employment Performance review Proficiency testing? Mandatory? Blind? Submitted like regular casework? Given chance to review? Re examination?

62 CONFRONTATION Continuing education Mandatory? Nature? On site attendance? On line (with ability to multi task?) Test? Currency of journal review?

63 CONFRONTATION Assumptions Collection, handling, storage Contamination Artifact Mislabeling