Combating the CSI Effect : An Analysis of Forensic Science in North Carolina

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1 Combating the CSI Effect : An Analysis of Forensic Science in North Carolina Recommendations for Improving the Accuracy of the Criminal Justice System 12/31/2009 George C. Kourtsounis

2 Introduction Forensic science is defined as the use of science to answer legal questions. Drastic reforms are needed in the field of forensic science to ensure that the administration of justice is unbiased and accurate. Forensic science has proved to be a vital component of our criminal justice system for decades. In fact, popular crime dramas like CSI: Crime Scene Investigation and its progeny give the impression that forensic science is flawless. These dramatizations portray the science as unimpeachable and the analysts as arms of law enforcement with boundless resources who are able to process massive amounts of evidence with breathtaking speed and unflappable precision. In reality, nothing could be further from the truth. As such, it is imperative that we not overlook the critical need for reform that exists within the criminal justice system. The independence of these findings and the accuracy of the results are critical to ensuring that forensic science is a tool that can be used for generations to come. The power of the forensic science in a legal context is limitless and the technological advances that are taking place nationwide, particularly in the area of DNA testing, have allowed law enforcement to convict the guilty and exonerate the innocent. In fact, in North Carolina alone there have been seven individuals set free as a result of post-conviction DNA testing. Great power comes from these scientific tools and it is imperative that we ensure that the best and brightest minds in the scientific community are using proven scientific methodology when the integrity of the criminal justice system hangs in the balance. This paper will highlight several problem areas that exist with the practice and use of forensic science and will provide some practical solutions to ensure this vital investigative and legal tool is utilized to its highest level of effectiveness.

3 All Forensic Techniques Must be Subjected to Rigorous Scientific Evaluation Unvalidated or Improper Forensic Science played a role in approximately 50 percent of wrongful convictions later overturned by DNA testing. While DNA testing was developed through extensive scientific research at top academic centers, many other forensic techniques such as hair microscopy, bite mark comparisons, firearm tool mark analysis and shoe print comparisons have never been subjected to rigorous scientific evaluation. The term forensic science encompasses a broad range of forensic disciplines, each with its own set of technologies and practices. As a result, there is a great amount of variety present with regards to the techniques and methodologies that are used. For example, some forensic science disciplines are laboratory-based, such as nuclear and mitochondrial DNA analysis, toxicology, and drug analysis. However, others are based on expert interpretation of observed patterns; this is widely known in the field of law enforcement as experience forensic evidence and includes fingerprints, writing samples, tool marks, bite marks, and specimens such as hair. The forensic science community, in turn, consists of a host of diverse practitioners, including scientists (some with advanced degrees) in the fields of chemistry, biochemistry, biology, and medicine, laboratory support, crime scene investigation, and law enforcement. These sharp distinctions between the scientific disciplines and the people entrusted with the analysis of this evidence present unique problems as related to the interpretation of forensic evidence. To illustrate the distinctions that exist between laboratory-based forensic evidence and the interpretive evidence detailed above, it is prudent to rely on the information contained in The National Research Council report, Strengthening Forensic Science in the United States: A Path Forward. This report breaks down the forensic disciplines into two categories. Pattern or experience evidence includes commonly utilized investigative techniques such as: fingerprint analysis, firearms examination, tool marks, bite marks, impressions (i.e. tires, footwear), bloodstain pattern analysis, handwriting analysis, and

4 hair fiber analysis. Alternatively, analytical evidence includes DNA, serology (blood typing), fluid analysis, testing of chemicals such as drugs and coatings, and nonbiological materials such as clothing fibers. DNA testing has proven to be the most high profile and scientifically viable of all the disciplines of forensic science. To date, it has been responsible for countless criminal convictions nationwide and 245 exonerations of the wrongfully-convicted based largely on post-conviction DNA testing. The study of DNA and its subsequent testing procedures has its origins in top academic institutions from across the globe. At every phase, it has been subjected to intense scrutiny from members of the scientific community during each phase of its development. That unyielding deference to established scientific principles is at the core of the success of DNA testing and must be applied to other methods of forensic evidence. Of the first 200 exonerations of the wrongfully convicted, forensic evidence was presented by the state in 113 of these cases. The fact is that only 5-10% of all criminal cases involve biological evidence that could be subjected to DNA testing. In the other 90-95% of crimes, DNA testing is not a viable option. The criminal justice system relies on other kinds of evidence, including forensic disciplines that may not be scientifically sound or properly conducted. Often in criminal prosecutions and civil litigation, forensic evidence is offered to support conclusions about individualization (sometimes referred to as matching a specimen to a particular individual or other source) or about classification of the source of the specimen into one of several categories. With the exception of nuclear DNA analysis, however, 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. Scientifically, the analytically-based disciplines generally hold a notable edge over disciplines based on pattern or experience, which is offered by expert testimony.

5 Some pattern evidence is relied on by law enforcement more than others. For example, there are more established protocols and available research for fingerprint analysis than the analysis of bite marks. There also are significant variations within each discipline. These disparities between and within the forensic science disciplines highlight a major problem in the forensic science community: the simple and stark reality is that the interpretation of forensic evidence is not always based on scientifically valid principles to determine its accuracy. In one specific instance, the scientific validity of a particular forensic process (bullet-lead analysis) was called into question by an established, independent scientific entity. However, the insistence of law enforcement to interpret the evidence based on principles that are developed based on pattern or experience has led to injustice. Comparative Bullet-Lead Analysis: A Failed Forensic Test Based on Subjective, Not Scientific Principles One example of the use of forensic evidence with devastating results is the use of comparative bullet lead analysis in the case of Lee Wayne Hunt. Hunt was convicted twenty-one years ago (as of November, 2007) of a double murder. Hunt is an admitted marijuana dealer, but has steadfastly denied involvement in the killings. The FBI expert in the case, Ernest Roger Peele, testified that his match of the crime-scene bullets to those in the suspect s box was typical of everything we examined coming from the same box or the next closest possibility would be of the same type, same manufacturer, packaged on or about the same day. Coincidentally, Hunt s co-defendant, who admitted he committed the murder alone, subsequently committed suicide while in custody. In addition, the bullet lead analysis was the sole forensic evidence against Hunt. What makes this conviction and his subsequent lengthy incarceration so egregious is that, in 2004, three years before this Washington Post article was published, the National Research Council concluded that, variations in the manufacturing process rendered the

6 FBI s testimony about the science unreliable and potentially misleading. Specifically, the National Research Council said that decades of FBI statements to jurors linking a particular bullet to those found in a suspect s gun or cartridge box were so overstated that such testimony should be considered misleading under the Federal Rules of Evidence. Since North Carolina s own Rules of Evidence mirror the Federal Rules of Evidence, it is reasonable to conclude that this analysis would be misleading in this jurisdiction as well. The FBI abandoned bullet-lead analysis a year after the National Research Council report was published. What is especially abhorrent, however, is that the FBI told defense lawyers in a letter dated September 1, 2005, that, although it was ending the technique, it still firmly supports the scientific foundation of bullet-lead analysis. This is a good example of the problem of relying on judges and attorneys, rather than independent experts in the sciences to evaluate the validity of scientific testimony. Experts from an independent scientific agency have used laboratory-based scientific principles to discount this pattern evidence and FBI crime lab technicians, who are viewed as an arm of law enforcement and seem oblivious to the blatant conflict of interest that exists when evidence is viewed through the prism of making a case as opposed to following the science, wherever it may lead. Clifford Spieglemen, a statistician at Texas A&M University, who served on the 2004 National Research Council s Committee on Identifying the Needs of the Forensic Science Community that sharply criticized the FBI s bullet-lead technique said, [w]hat we re seeing is too many instances in which the FBI and other prosecution scientists are simply doing what it takes to get their man. Proposed Solution for North Carolina: Better Research and Education for the Forensic Science Disciplines Just as there is a distinction in the types of forensic science, as noted above, the forensic science community consists of a wide range of professionals from varying

7 backgrounds from scientific disciplines to careers in law enforcement. The problem with dealing with such a wide spectrum of educational levels and experience is the inherent difficulty of interpretation of this type of evidence and the human bias that most assuredly occurs. One component of a possible solution is the founding of a body of research that is required to establish the limits and measures of performance to address the impact of sources of variability and potential bias. There is sparse research in the areas of pattern and experience evidence, which, as seen in the Hunt case, can be of vital importance to sustaining a criminal charge or gaining a conviction based solely on faulty scientific procedures. There is no plausible reason why such research cannot be conducted, particularly in a state that boasts some of the best research and scientific laboratories in the nation. More state funding is needed to support research in the forensic science disciplines and forensic pathology in universities, such as North Carolina State University and the University of North Carolina at Chapel Hill, to name just two state-funded institutions that are committed to such work. The forensic science community also needs opportunities to collaborate with the broader science and engineering communities to ensure that the best and brightest minds in the state are working together without restriction. In areas such as matching, where subjective assessments are necessary, there must be rigorous protocols to guide these subjective interpretations. There is also an urgent need for collaborative efforts to develop new scientifically tested methods that can be accurately and precisely applied to criminal litigation. The success and sustainability of DNA testing is in no small part based on the fact that it was, unlike many forensic sciences currently in use, developed for its scientific merit independent of the criminal justice system and then applied to criminal litigation. It was not developed under the guise of science specifically and solely for use in the criminal justice system

8 such as, fingerprint analysis, which, as an example shows that it is possible to alter identification decisions on the same fingerprint, solely by presenting it in a different context. This inherent type of bias that exists in viewing pattern evidence is not easily combated, given that human beings are contextual in nature. The solution is to develop and strengthen existing internal protocols scientifically so as to limit the influence of human bias as much as possible. In addition, officers of the court, including lawyers and judges often lack the training in scientific methodology, and they have a limited understanding of the different approaches used by the various forensic science disciplines and the subsequent reliability of the testimony entered at trial. Such training is essential, because any checklist for the admissibility of scientific or technical testimony is imperfect. Conformance with items on a checklist can suggest that testimony is reliable, but it does not guarantee it. Better connections must be established and promoted between experts in the forensic science disciplines and law schools, legal scholars, and practitioners. The fruits of any advances in the forensic science disciplines should be transferred directly to legal scholars and practitioners (including civil litigators, prosecutors, and criminal defense counsel), federal, state, and local legislators, members of the judiciary, and law enforcement officials, so that appropriate adjustments can be made in criminal and civil laws and procedures, model jury instructions, law enforcement practices, litigation strategies, and judicial decision making. Law schools should enhance this connection by offering courses in the forensic science disciplines, by offering credit for forensic science courses taken in other colleges, and by developing joint degree programs. Judges need to be better educated in forensic methodologies and practices. The training for judges is especially critical as they are charged with determining the admissibility of evidence in all litigation. However, educating all of those involved with the judicial process will lead to more efficient proceedings and help to ensure that fairness accuracy, and accountability exists in all

9 phases of the justice system. To promote this goal, North Carolina hosted a national three day conference in Greensboro in 2006 of the American Judicature Society, which is a non-partisan policy research group comprised of attorneys, judges and academics to look into improved training and proficiency standards in crime labs. This cross-section of legal and scientific minds was a good step in establishing a important dialogue and fostering a collaborative effort for improvement and should continue to grow within the borders of the State and Nation. The Current Structure of North Carolina s Forensic Crime Laboratories North Carolina s State forensic laboratories are currently under the purview of the Attorney General, Roy Cooper, and function as an arm of law enforcement. The State Bureau of Investigation (SBI) operates 3 major crime labs in the State. Its headquarters reside in Raleigh, and there are two satellite offices one in Asheville, which services the western region of the jurisdiction and one in Guilford County, which opened in July 2008 and services twelve additional counties. This branch of the State Crime Laboratory is a participant in the Crime Laboratory Accreditation Program established by the American Society of Crime Laboratory Directors (ASCLD/LAB). Accreditation is part of the Crime Laboratory's quality assurance program in maintaining standards in management, operations, personnel, procedures, equipment, physical plant, security and health/safety procedures. The SBI Crime Laboratory initially met the accreditation criteria in 1988 and has been reaccredited every five years with a full review of the laboratory, including an onsite inspection of the forensic disciplines. While ASCLD/LAB is the only industrywide standards organization, it only requires one annual proficiency test for each formal discipline and self-reporting for compliance when error is detected.

10 The North Carolina State Crime Lab has six distinct departments that analyze diverse types of evidence. They include: Toxicology, Digital Evidence, DNA, Firearms and Tool Marks, Latent Evidence and Trace Evidence. These Departments are typically staffed with analysts and directors who rarely possess more than a Bachelor s Degree. In fact, nationally 96% of positions in forensic science laboratories are held by people with a Bachelors Degree or less. This lack of education and training is a critical component to the deficiencies in the analysis of forensic science. In what can only be described as the CSI Effect detailed three times weekly on national television, too many forensic analysts see themselves as an extension of law enforcement and that viewpoint creates an inherent bias towards making the evidence fit a specific offense. Danger exists in a system that has developed without oversight because the finder of fact is offering the evidence as impartial, when in reality there is simply no feedback mechanism to ensure a neutral viewpoint. This pressure to close cases and appease law enforcement and prosecutors has no place in a scientific lab where testing and its subsequent analysis must be independent of bias to ensure scientific principles are strictly followed. From negligence to misconduct, one study has shown that faulty forensics or testimony was a contributing factor in nearly sixty percent of wrongful convictions. While many of these mistakes are unintentional, there are a disturbing number of cases where the misconduct is willful and systemic. According to the most current statistics released from The Innocence Project s website, there have been 74 cases in which defective or fraudulent forensic science was a cause of a wrongful conviction. Of these 74 cases, 72 have directly identified faulty forensic science as a cause of a wrongful conviction. There have been 11 cases

11 in which a forensic analyst was found to misrepresent the facts, 10 cases where the statistics were exaggerated, 7 cases in which the analyst falsified results, and 7 cases in which the evidence was suppressed and not made available to the defense. There have been 5 instances where the evidence was contaminated, 5 instances where an expert has been found to lie about his or her credentials, and 4 instances where the expert testified as to the results of tests that were never even conducted. This phenomenon known as Drylabbing occurs when forensic evidence is manipulated or the results are made up due to unethical conduct. It has been a result of unchecked career advancement or greed. Often operating with little oversight, forensic crime laboratories frequently lack the safeguards necessary to prevent the introduction of erroneous forensic analysis into the courtroom. This can cost a state millions of dollars to undo the resulting damage. Past examples have included laboratories in West Virginia, Texas, New York and Michigan. Nationally, the Committee on Identifying the Needs of the Forensic Sciences Community of the National Research Council, in its 2008 report, Strengthening Forensic Science in the United States: A Path Forward, concluded that advancing science in the forensic science enterprise is not likely to be achieved within the confines of the Department of Justice. This inability to serve the broad needs of the forensic science community is in direct conflict with the Department of Justice s own mission statement which reads, [t]o enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial

12 administration of justice for all Americans. The lack of federal leadership in the area of forensic science demonstrates the need for states to fund and maintain their own independent oversight agencies dedicated to the advancement of forensic science. This step is of critical importance in order to adequately serve the needs of its citizenry. A Case Study Illustrating the Need for Reform in North Carolina: The Conviction and Exoneration of Dwyane Allen Dail. One such case that relied on faulty forensic evidence with tragic results in this jurisdiction is State v. Dail. On September 4, 1987, a man crawled through the window of a Goldsboro, North Carolina, apartment and raped a 12-year-old girl living there. The girl identified Dwayne Allen Dail as her attacker and he was charged with burglary, rape and other related charges. Since the testimony was from a minor, investigators relied heavily on hairs collected from the crime scene that were submitted for forensic testing. An expert testified that Dail s hairs were microscopically consistent with the evidence from the crime. There was no scientific basis on which the hair could be specifically matched to this particular defendant. Proclaiming his innocence, Dail reportedly turned down an offer to plead guilty in exchange for three years of probation, and he went to trial in A jury heard that the victim had identified Dail as her attacker and also that forensic testing had shown that the hair at the crime scene had come from him. The jury convicted him and he was sentenced to two terms of life in prison plus 15 years. It is a fair inference to state that the crime lab technician was very likely under tremendous pressure to find a match in a case to corroborate the victim s eyewitness

13 identification given the crime labs ties to the North Carolina Attorney General s Office. Removing this inherent conflict, would allow analysts to view the evidence with scientific precision and not make a conclusion that is not supported by scientific facts. While Mr. Dail was subsequently pardoned by Governor Easley, the 18 years he spent in prison is inexcusable and could have been avoided if appropriate and simple safeguards had been implemented. Proposed Solution for North Carolina: An Oversight Agency Independent of the Attorney General s Office to Regulate Crime Labs Judge Daniel Locallo in the Chicago Tribune, on October 20, 2004, If I m a defense counsel and there s science involved [I] should be able to go to that examiner and be able to say, What did you do? What was your method? What were your findings? And the people who are working at the state crime lab should not take the position that we are an arm of the prosecution. They re scientists. They should be an arm of the truth. Forensic scientists work so closely with police and district attorneys that their objectivity cannot be taken for granted. Forensic science serves more than just law enforcement; and when it does serve law enforcement, it must be equally available to law enforcement officers, prosecutors, and defendants in the criminal justice system. The entity that is established to govern the forensic science community cannot be principally beholden to law enforcement. In creating a new state agency, it must be a strong independent entity that would take on the tasks of improving the discipline of forensic science in a manner that is as objective and free as possible - one with no ties to the past and with the authority to implement a fresh agenda. This agenda should include a cross section of people from inside and outside the forensic establishment and others in the criminal justice system, including prosecutors and defense attorneys with experience in forensic science. The mission of this oversight agency should be to create a culture that

14 is strongly rooted in science. The National Academy of Science and The Justice Project both recommend providing a mechanism to protect the objectivity, reliability, and efficiency of forensic testing. The standards for this agency should include: Minimum qualifications for forensic lab employees, including analysts; Certification and continuing education requirements for all forensic techniques; Training programs & Quality control protocols; Routine internal and external proficiency testing; Internal disciplinary procedures; Internal structures and protocols to regulate the flow of information between a forensic examiner and the person requesting forensic services to minimize inadvertent bias in the processing or interpretation of evidence and testimony; Protocols for providing equitable access to law enforcement, prosecutors, and defense counsel, and a process for recording such contact with the forensic lab; Protocols for documenting forensic tests, examinations and analyses, and for archiving reports, bench notes, and other important documentation, and for appropriate disclosure of such information; A licensing program for all forensic laboratories offering lab tests, exams or analysis in the state. This comprehensive step is endorsed by the National Research Council in its report and represents all of the key principles that have been incorporated in the recommendations outlined above by The Justice Project. A Successful Model of an Independent Crime Laboratory in Maryland A feasible solution to this issue has been developed by the neighboring jurisdiction of Maryland. On April 24, 2007, the governor of Maryland signed a bill

15 creating an independent system for the oversight of forensic laboratories in Maryland. Maryland s law actively fosters fairness and accuracy at publicly funded forensics laboratories by giving oversight responsibility to the Department of Health and Mental Hygiene (DHMH) rather than the Attorney General. The legislation directs the DHMH, to create a quality assurance program; retain all case files for ten years; establish qualifications for personnel of forensic laboratories; establish procedures for verifying the background and education of personnel; and establish additional standards assuring that labs provide accurate and reliable services. The legislation also creates a forensic proficiency program, overseen by the Secretary of the DHMH. Under the law, licensing will be required for labs beginning in This clear separation of forensic science labs from law enforcement has allowed the crime lab technicians to work as a neutral third party during investigations and allows analysts to collaborate with the broader scientific community that is incorporated under the DHMH. The benefits that flow from an independent state agency are clear. First, the agency will bolster its ability to more accurately identify true perpetrators and exclude those who are falsely accused. Secondly, it will improve the jurisdiction s ability to effectively respond to, attribute, and prosecute threats to public safety. Finally, the ultimate goal will be to substantially reduce the likelihood of convictions resting on inaccurate data. Moreover, establishing the scientific foundation of the forensic science disciplines, providing better education and training, and requiring certification and accreditation will position the forensic science community to take advantage of current and future scientific advances. The DMNH program provides the type of education, training and certification, coupled with the accountability, that allows forensic scientists to work free of the pressure that currently exists in North Carolina where analysts are excessively entangled with the Attorney General s Office. That pressure could lead to unnecessary risks in processing evidence and could ultimately lead to wrongful convictions. The research institutions already are present within the state and those institutions could prove to be an invaluable

16 resource in developing new forensic technology that would be more reliable than some of the current techniques utilized by law enforcement. Adopting a model similar to that of the State of Maryland would represent a marked improvement to the system currently in place. Forensic Laboratories in North Carolina Must Be Adequately Funded To Produce Accurate and Unbiased Results. Lack of funding is a common problem in public forensic laboratories. The funding in most jurisdictions has remained constant despite a dramatic increase in workload. States must increase funding to implement the aforementioned reforms. Laboratories can use new funding to increase capacity. This is an issue of critical importance for the countless jurisdictions across the country that are inundated with backlogs of evidence that is waiting to be tested.the ability to hire and train qualified analysts has been severely compromised due to low salaries. Ninety-six percent of positions in forensic science laboratories are held by people with a Bachelors Degree or less. It is difficult to foresee significant advances in the field without the financial backing to recruit the best-qualified people when the pay is not competitive. There are also overall operational issues with regards to securing adequate funding to maintain state of the art facilities. The Triad Crime Lab which opened in 2008, coincidentally with a $100,000 contribution from the Guilford County Sheriff s Department, temporarily lost funding for its $1.5 million dollar operating budget just one year after the opening of the lab. Defenders of the SBI s Triad Regional Crime Laboratory acknowledged the tough budget situation but said closing it would cost more in the long run than would be saved. I don t think you re going to find a police agency in the area that hasn t used that lab, said Guilford County Sheriff BJ Barnes. Closing it, he said, would have a very negative impact on law enforcement in this area. The lab,

17 Barnes said, not only takes on work that would otherwise have to be done in Raleigh but also saves local departments travel time. If getting a particular result is urgent, Barnes said, officers can wait for evidence to be processed on site rather than having to drive back and forth twice. That has value you just can t imagine or put a price on, he said. The price is clearly the $100,000 that Barnes and the Guilford County Sheriff s office allocated to the funding of the lab. The influence in fighting to keep the lab operational transcends the local level. Attorney General Roy Cooper says the lab has helped cut down a statewide backlog in processing evidence. The Triad lab is a critical resource to the 12 counties it serves and the entire state by giving local law enforcement nearby access to SBI experts who can analyze drugs, computers, fingerprints and other evidence of crimes, said Jennifer Canada, a spokeswoman for Cooper. The Triad lab reduces the number of submissions to the Raleigh Crime Lab, allowing evidence to be analyzed more efficiently, which results in more crimes being solved. While funding was restored into the State Senate s budget in June of 2009 this lack of consistent financial resources demonstrates how tenuous the funding for a lab is on a legislative and political level. This clear conflict that exists between the Triad Crime Lab the Guilford County Sheriff s office, and ultimately, the Attorney General s Office, puts the laboratory s employees in a tenuous position. The mere fact that this lab experienced such budgetary constraints so soon after its inception demonstrates a clear lack of urgency and respect for the profession. This budgetary pressure could, under certain circumstances, lead to compromised results due to inadequate staffing, poor quality of staff, and sub-standard equipment. The United States Congress recognized the importance of adequate for forensic science in 2000 by passing the Paul Coverdell

18 National Forensic Science Improvement Act. North Carolina needs to follow the example set by the federal government to ensure that the funding of any of its facilities is immune from political pressure and there are adequate resources to institute the proposed reforms. North Carolina Should at a Minimum, Adopt the Daubert Standard for the Admission of Evidence in Criminal cases. The current standards for the use of experts are typically stricter on civil evidence than in a criminal court. In a civil trial, evidence would be scrutinized when it has been presented in preparation for litigation. This is not the case for a criminal trial. North Carolina currently uses the test articulated in the case, HYPERLINK " &_xfercite=%3ccite%20cc%3d%22usa%22%3e%3c%21%5bcdata%5b341%20n.c.%20513%5d%5d%3e%3c%2fcite%3e&_buttype=3&_butstat=2&_butnum=1&_butinl ine=1&_butinfo=%3ccite%20cc%3d%22usa%22%3e%3c%21%5bcdata%5b346%2 0N.C.%20552%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1& wchp=dglbvlb-zskab&_md5=d8830f974baa7a0e4061af7928f775b3" State v. Goode. In the first step of the Goode analysis, the trial court must determine whether the expert's method of proof is sufficiently reliable as an area for expert testimony. The requirement of reliability is nothing new to the law of scientific and technical evidence in North Carolina and, indeed, pre-dates the federal court's adoption of the Daubert standard. Under Goode, to determine whether an expert's area of testimony is considered sufficiently reliable, a court may look to testimony by an expert specifically relating to the reliability, may take judicial notice, or may use a combination of the two.

19 Although North Carolina does not exclusively adhere to the Frye "general acceptance" test, when specific precedent justifies recognition of an established scientific theory or technique advanced by an expert, the trial court should favor its admissibility, provided the other requirements of admissibility are likewise satisfied. Conversely, there are those scientific theories and techniques that have been recognized by the North Carolina Supreme Court as inherently unreliable and thus generally inadmissible as evidence. In the second step of analysis under Goode, the trial court must determine whether the witness is qualified as an expert in the subject area about which that individual intends to testify. Under the North Carolina Rules of Evidence, a witness may qualify as an expert by reason of "knowledge, skill, experience, training, or education," where such qualification serves as the basis for the expert's proffered opinion. It is not necessary that an expert be experienced with the identical subject matter at issue or be a specialist, licensed, or even engaged in a specific profession. It is enough that the witness, because of his expertise, is in a better position to have an opinion on the subject than is the trier of fact. Similarly, in adjudicating a criminal matter, the North Carolina Supreme Court in State v. Bullard, addressing the reliability of footprint identification, gave a comprehensive review of the law concerning the determination of whether a proffered method is sufficiently reliable. Speaking for the Court, Justice Frye restated the following rule, which is applicable in assessing the reliability issue: in general, when no specific precedent exists, scientifically accepted reliability justifies admission of the testimony of qualified witnesses, and such reliability may be found either by judicial notice or from the testimony of scientists who are experts in the subject matter, or by a combination of the two." The qualifications for admissibility of forensic evidence were outlined by the

20 Supreme Court in Daubert v. Merrell Dow Pharm.. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. North Carolina should screen the evidence being offered for bias reliability and relevance before it is placed in front of a jury. This corresponds with the goals of the Supreme Court in Daubert. This decision lays out the current standards for admitting expert testimony for civil litigation. While this should have been a landmark decision in theory, it has to date had limited effect. Problems [in implementation] arise because most violent crimes are committed by the poor, and their court appointed advocates overworked and under financed are not up to the challenge. In the absence of a system of effective representation, Daubert will not improve scientific evidence in criminal cases. While resources and incompetent counsel may be significant roadblocks to the implementation of Daubert in criminal cases, it does represent a significant step forward in determining the admissibility of expert testimony, which is so often a monumentally persuasive piece of evidence in a criminal proceeding. Remember that the only one piece of forensic evidence proved sufficient to convict Dywane Allen Dail. This evidence was proffered by an expert witness and presumably carried significant weight during his trial. Taking their own lead, the Supreme Court in, Kumho Tire Co. v. Carmichael extended this analysis to all expert testimony concluding, [i]t would prove difficult, if not impossible for judges to administer evidentiary rules in which a gatekeeping obligation depended upon a distinction between the words scientific knowledge or technical or other specialized knowledge. There is no clear line that divides one from the others We conclude that the Daubert principles apply to all the principles in Rule 702.

21 This ruling helped ensure that all evidence proffered in the context of a prosecution would be admitted. This took the gate-keeping away from Judges who have neither the scientific training nor expertise to distinguish between analytical (i.e. DNA) and experience or pattern evidence (i.e. fiber matching). The solution for the State of North Carolina is clearly evident. Since the Federal Rules of Evidence 702(a) and the North Carolina Rules of Evidence.C. R. Evid. 702(a) are identical in scope and language, the North Carolina Supreme Court should at least follow the precedent set forth in Daubert in all litigation matters and distinguish it from Goode. Alternatively, the North Carolina State Legislature could re-draft N.C. R. Evid. 702(a) to incorporate a more comprehensive standard for the testimony of forensic expert witnesses in criminal cases. On November 10, 2008, the Supreme Court ruled in favor the right to confront a lab technician in-person regarding his expert analysis in Melendez-Diaz v. Massachusetts. This is an acknowledgment that there is no such thing as infallible forensic evidence. The Federal Rules of Evidence require the confrontation of a police officer on the witness stand offering incriminating evidence.. This is the logical extension of the adversarial nature of expert witnesses. A report by a lab alone can seem unassailable if the methods or principles defy interrogation. It remains to be seen if, and to what extent, Melendez- Diaz (like Daubert and its progeny) will be applied by the Criminal Courts of North Carolina. North Carolina will Benefit by Adopting a Policy to Ensure the Objectivity and Reliability of Forensic Evidence. Cost The expense of an improper conviction will incrementally rise over the course of time Innocent people tend to be the ones who hold out for jury trials. Wrongful convictions waste the law enforcement s time and resources that should be properly

22 aimed at eliminating people from suspicion. They also put an undue strain on the penal system that could be avoided if clear scientific principles were followed from the outset of an investigation. Efficiency The system will benefit by being more efficient and less reliant solely on experience or pattern testimony to prove a case (hair comparison, ballistics, blood type, bite marks, etc.). This testimony can be easily rebutted by competent defense counsel, thereby wasting valuable law enforcement and judicial time in a court system that is overburdened by full dockets and a rising criminal caseload at a time when economic factors are causing states to do more with less finite resources. Data gathered may generate leads but must meet appropriate criteria before it is allowed in court. Integrity Undue influence can taint the results that might lead to unexplored investigation. Public safety is improved through accurate, consistent and final results. Those who can be excluded quickly will leave valuable resources for law enforcement. Every ineffective use of evidence reinforces a poor habit or procedure. The relationships that are formed during daily contact of forensic analysts with law enforcement create an environment of cooperation that, if left unchecked, can lead to possible coercion. In order to maintain integrity, the forensic sciences should be independent from law enforcement. A distant, but cooperative, relationship is critical to providing unimpeachable results. Accountability A number of forensic science organizations such as American Academy of Forensic Science (AAFS) and ASCLD (which governs labs in North Carolina)- have adopted codes of ethics. The codes that exist are sometimes comprehensive, but they vary

23 in content. While there is no reason to doubt that many forensic scientists understand their ethical obligations and practice in an ethical way, there are no consistent mechanisms for enforcing any of the existing codes of ethics. Many jurisdictions do not require certification in the same way that, for example, states require lawyers to be licensed. Therefore, few forensic science practitioners face the threat of official sanctions or loss of certification for serious ethical violations. It is also unclear whether and to what extent forensic science practitioners are required to adhere to ethical standards as a condition of employment. Conclusion Texas State Senator Juan Hinohosa, Forensic science is justice s best friend, but it has to not only be used right but done right. There needs to be a way to hold these labs accountable. DNA has done a tremendous amount to protect public safety and it has served to exonerate seven individuals from the injustice that is a wrongful conviction. Joseph Abbitt, Keith Brown, Ronald Cotton, Dwayne Dail, Daryl Hunt, Lesly Jean and Leo Waters countless others are free today because of the tireless following of scientific principles that were present when DNA testing was developed. This should be the minimum standard that is applied before we deprive people of their life or liberty. North Carolina, to date, has done an admirable job in addressing its flaws in its criminal justice system. North Carolina has by statute, enacted provisions for Access to DNA Testing, and Evidence Preservation. In October 2005, an order by the North Carolina Supreme Court established a Criminal Justice Reform Commission comprised of over of thirty

24 members appointed by the Chief Justice, and includes representatives from the judiciary, law enforcement, defense, prosecution, academia and the victims rights community. The commission makes policy recommendations seeking to reduce the incidence of wrongful conviction. These landmark steps demonstrate that North Carolina is committed to addressing the injustice of wrongful convictions. Reforms in the field of forensic science are a critical step forward to ensure that trend continues. Subjecting all forms of forensic evidence to the same standards that have made DNA analysis the gold standard of investigative techniques is an important first step. However, absent better research and training in the forensic disciplines and a strong commitment to collaborate with the scientific community at large to develop new and more accurate techniques to analyze forensic data, the success present in DNA analysis will not be replicated. Creation of an oversight agency that is independent of the Attorney General s Office is essential to properly train, supervise and certify employees in North Carolina s crime labs. These proposed reforms need adequate funding in the North Carolina s Operating Budget to support the independence of forensic analysis from the possible bias that can occur when analysts are paid by law enforcement. Adequate funding will also allow North Carolina to recruit and hire the brightest minds from a variety of scientific disciplines at competitive salaries and provide those analysts with state of the art equipment that is vital to improving the accuracy of their work. In a legal context, it is imperative that the North Carolina courts follow the wisdom of the Supreme Court in applying the holding in Daubert to determine the validity of expert testimony and to go one step further to mandate that experts must be present to support

25 and defend their findings in open court. This application of the Melendez-Diaz ruling will help to mandate that legal proceedings are what we hope for them to be, a search for the truth. Following these recommendations and adopting the Act to Ensure the Reliability of Forensic Evidence will build a fiscally responsible and efficient system that is predicated on integrity and accountability to the state of North Carolina when dealing with forensic science. In conclusion, in the words of the Chairwoman of the Jurisprudence Section of the American Academy of Forensic Sciences, If forensic evidence is not objectively tested, analyzed, and interpreted by adequately trained scientists, the search for truth will be compromised, if not defeated. Improving the Practice and Use of Forensic Science: A Policy Review, 1, THE JUSTICE PROJECT,(2008), [hereinafter Improving the Practice] Exonerations by State: N.C., THE INNOCENCE PROJECT, (last visited Oct. 19, 2010). Facts on Post Conviction DNA Exonerations, THE INNOCENCE PROJECT,, - (last visited Oct. 19, 2010). COMM. ON IDENTIFYING THE NEEDS OF THE FORENSIC SCI. CMTY & NAT L RESEARCH COUNCIL, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD. 6 (2009), available at HYPERLINK " [hereinafter NAT L RESEARCH COUNCIL]. at 7. at 4. Brandon L. Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 60 (2008). Improving the Practice, supra note 1. Barry Fisher, ACHIEVING JUSTICE: FREEING THE INNOCENT, CONVICTING THE GUILTY, (2006). NAT L RESEARCH COUNCIL, supra note 5, at 7. HYPERLINK "" John Solomon, FBI s Forensic Test Full of Holes, WASH. POST, (Nov. 18, 2007), available at John Solomon, Silent Injustice Question and Answer Session, WASH. POST,

26 (Nov. 19, 2007), available at /11/15/DI html. Solomon, supra note 16. Solomon, supra note 22. John Solomon, A Murder Conviction Torn Apart by a Bullet: In a 1995 Maryland Case, Key Testimony and the Science Behind it Have Been Discredited, WASH. POST (Nov. 19, 2007), available at HYPERLINK " NAT L RESEARCH COUNCIL, supra note 5, at 7. at 8. Itiel E. Dror et al., Contextual Information Renders Experts Vulnerable to Making Erroneous Identification, 156 FORENSIC SCI. INT L 74, 77 (2007). NAT L RESEARCH COUNCIL, supra note 5, at 28. Richard Willing, Errors Prompt States to Watch over Crime Labs, USA TODAY (Mar. 30, 2006), available at Crime Lab, N.C. DEP T OF JUSTICE, HYPERLINK " Investigation/Crime-Lab.aspx" Investigation/Crime-Lab.aspx (last visited Oct. 20, 2010). Willing, supra note 31. See generally Proficiency Review Program, AM. SOC Y OF CRIME LAB. DIR. LAB. ACCREDITATION BD.. (May 13, 2008), Crime Lab, supra note 32. Willing, supra note 31. Michael J. Saks & Jonathan J. Koehler, The Coming Paradigm Shift in Forensic Identification Science, 309 SCI 892, (2005). Garrett, supra Note 10 at 60.. Forensic Science Misconduct, THE INNOCENCE PROJECT, HYPERLINK " (last visited Oct. 20, 2010). See In re Investigation of the West Virginia State Police Crime Lab.., Serology Div.,, 438 S.E.2d 501, X (W. Va 1993). Improving the Practice,, supra note 1 at 3. See In re Investigation of the West Virginia State Police Crime Lab., Serology Div., 438 S.E.2d 501. NAT L RESEARCH COUNCIL, supra note 5. About DOJ, U.S. DEP T OF JUSTICE, (last visited Oct. 19, 2010). Know the Cases: Dwyane Allen Dail, THE INNOCENCE PROJECT, HYPERLINK