Nicholas L. Scott Assistant Linn County Attorney.

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1 Nicholas L. Scott Assistant Linn County Attorney

2 NAS Forensics and Iowa Courts I. Iowa Expert Testimony II. III. Cases citing NAS Forensics Report Discussion / Questions Prognosticating NAS influence in Iowa Courts

3 I. Iowa Expert Testimony

4 IA Rule of Evidence Testimony by Experts 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.

5 Court as Gatekeeper Court is committed to a liberal view on the admissibility of expert testimony. Leaf v. Goodyear Tire, 590 N.W.2d 525, 532 (1999). Judicial role increasing difficult and complex we encourage a more expansive judicial gatekeeping function in difficult scientific cases. Ranes v. Adams Lab, 778 N.W.2d 677, 686 (Iowa 2010).

6 Court s threshold questions 1. Will the evidence assist the trier of fact? Is expert testimony relevant? See R relevance defined Is there a sufficiently developed and reliable body of scientific, technical or specialized knowledge that exists? - (if not reliable then the evidence will not assist trier of fact. Johnson, 570 N.W.2d 633, 637 (Iowa 1997). 2. Does the expert have sufficient qualifications? (Balancing Rule still applies: probative value substantially outweighed by prejudicial affects)

7 1. sufficiently developed and reliable body of scientific knowledge Old Frye Test General acceptance in scientific field in which it belonged 1980 Iowa Supreme Court concerned about newly developed areas of scientific evidence

8 1. sufficiently developed and reliable body of scientific knowledge State v. Hall, 297 N.W.2d 80, 85 (Iowa 1980) blood splatter- flight characteristics admissible (not complex) Ad Hoc reliability test: (1) Professor MacDonell's considerable experience and his status as the leading expert in the field; (2) the existence of national training programs; (3) the existence of national and state organizations for experts in the field; (4) the offering of courses on the subject in several major schools; (5) use by police departments throughout the country in their day-to-day operations; (6) the holding of annual seminars; and (7) the existence of specialized publications.

9 1. sufficiently developed and reliable body of scientific knowledge Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) Guiding factors enumerated 1. The knowledge can be tested 2. Subjected to peer review or publication 3. It has a known or potential rate of error 4. Generally accepted within the relevant scientific community Focus solely on principles and methodology, not on the conclusions generated.

10 1. sufficiently developed and reliable body of scientific knowledge Leaf v. Goodyear, 590 N.W.2d 525 (Iowa 1999) Daubert useful and instructive on scientific evidence Iowa relies on it s own body of law (State v. Hall) not going to mandate replacement with Daubert whether the case is scientific or technical in nature Court encourages use of Daubert if complex scientific evidence is to be admitted

11 1. sufficiently developed and reliable body of scientific knowledge Ranes v. Adams Labs., 778 N.W.2d 677 (Iowa 2010) Ad hoc Hall is general approach for reliability of technical or specialized knowledge (including general medical issues) Not as complex Foundational showing is lower Difficult scientific cases the court must engage in more expansive judicial gatekeeping function Apply Daubert

12 2. Does the expert have sufficient qualifications? The qualifications of an expert witness must be carefully scrutinized by the court to guard against a psuedolearned person or charlatan who may give erroneous testimony or opinions without a sound foundation. Ranes at 686. Court has broad discretion. No specific certification or degree requirements.

13 Lay of the Land Historically Admissible: eye witness id problems, battered women s syndrome, trained dog reactions to controlled substances; vehicle speed, handwriting, HGN test, firearm characteristics, fingerprint identification, drug-dealer profile*. See Iowa Practice Series Vol. 7 Evidence at 5.702:2 Inadmissible: comment on credibility of another witness; polygraphs *cf. Malcolm Gladwell 2007 article Dangerous Minds regarding serial killer profiling at

14 II. Cases citing NAS Forensics Report

15 Procedural Mechanics How to challenge expert testimony? Couple possibilities: 1. Motion in Limine 2. Motion for Rule Hearing

16 Procedural Mechanics Motion in Limine Iowa Rules of Crim. Pro. 2.11(2)(g) and (4) Filed no later than 9 days before trial BUT...

17 Quad City Bank v. Kircher 786 NW2d 519 (Iowa App. 2010) Limine used to secure protective order against prejudicial questions and statements. Provide little time for other party to resist and less time for the Court to consider the matter. See also Comm. V. Gambora discussed later Expert Witness challenges should use not a Motion in Limine.

18 Procedural Mechanics Rule 5.104(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court

19 CASES citing NAS report NO IOWA CASES.

20 FEDERAL CASES Melendez-Diaz v. Massachusetts, 129 S.Ct (2009) Drug trafficking Mass Statute: Certificates of Analysis admissible Lab Report: The substance was found to contain: Cocaine

21 Melendez-Diaz cont. At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed. While we still do not know the precise tests used by the analysts, we are told that the laboratories use methodology recommended by the Scientific Working Group for the Analysis of Seized Drugs, At least some of that methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination.

22 Melendez-Diaz cont. Court cites NAS forensics report as well as numerous other reports regarding lab malfeasance. Fact that could have subpoenaed lab analyst as a witness is unpersuasive. Confrontation Clause: there may be better ways to test the evidence but confrontation is one that is guaranteed in the Constitution Cf. Iowa Code 691.2

23 US v. Willock 696 F.Supp.2d 536 (D. Maryland 2010) Cartridge casings found at 2 crime scenes in Baltimore, MD Sgt. Ensor concluded they matched and were discharged from same gun Court cites studies and NAS calling into question toolmark identification s status as science a complete restriction on the characterization of certainty was warranted

24 US v. Rose 672 F.Supp.2d 723 (D.Maryland 2010). Attempted carjacking resulted in death. Latent fingerprint identification using ACE-V. NAS report identified need for add l published peer reviewed studies and setting national standards NAS quoted Huber paper that found no available scientific evidence of the validity of the ACE-V method

25 US v. Rose cont. Report itself did not conclude that fingerprint evidence was unreliable such as to render it inadmissible Indeed, Judge Harry Edwards, who co-chaired the project, made it clear that nothing in the Report was intended to answer the question whether forensic evidence in a particular case is admissible under applicable law. erroneous identifications ranging from zero to.4% to a high of only 3% as to one set of more difficult latents.

26 US v. Rose cont. ACE-V methodology is generally accepted in relevant scientific community Low incident of erroneous misidentifications Sufficiently reliable under 702 for use in this case.

27 State v. Lopez-Martinez 2010 WL (Kan.App. 2010) FACTS: Victim bites rapist 1980 KS Supreme Court case bite mark identification = admissible cites New York Times article about a 1999 study 63% rate in misidentifications No indication KS S.Ct. is going to depart thus follow 1980 case

28 State v. Lopez-Martinez cont. Concurring opinion 1980 was 30 years ago = long time for science Cites NAS *d+espite the inherent weaknesses involved in bite mark comparison, it is reasonable to assume that the process can reliably exclude suspects. The expert in the case testified properly when he stated the bite mark could not be from Isabel and that it was possible the mark was made by B.W.

29 State v. Ward 694 S.E.2d 738 (N.Carol. 2010) Facts: CI buys prescript. Drugs. Police seize coke, amphetamine, hydrocodone, Ritalin, Xanax, Valium etc. etc. charged with felony. NAS report Forensic scientists sometimes face pressure to sacrifice methodology for expedience. P. xx. Hard-working and conscientious people in the forensic science community, but under resourcing lab scientists limits their ability to do their best work. P. 24.

30 State v. Ward cont. Lab Expert Seasoned = understatement 34 years at State Bureau of Investigation 24 years as chemist at SBI Testified in over 500 cases

31 State v. Ward cont. Lab Methodology chemically tested only half of pills seized Why not chemically test all pills? When asked why he performed only a visual inspection with Micromedex literature on some of the tablets and a chemical analysis on others, Special Agent Allcox focused his response on concerns for maximizing time and resources: *W+e have limited resources and we have to weed out-we have to analyze the most important items... [W]e don't have the resources to analyze everything that's submitted.

32 State v. Ward cont. Trial court allowed lab s testimony as to all the pills NC SCt found an abuse of discretion finding visual examination was sufficiently reliable. The State cites decisions from other jurisdictions that appear to allow the type of visual inspection process at issue for identifying controlled substances. [citations from LA, MT, and WI courts omitted] To the extent these cases support the State's argument, we find them unpersuasive to our holding.

33 State v. Ward cont. Trial court allowed lab s testimony as to all the pills; SCt found an abuse of discretion finding visual examination was sufficiently reliable. The State cites decisions from other jurisdictions that appear to allow the type of visual inspection process at issue for identifying controlled substances. [citations from LA, MT, and WI courts omitted] To the extent these cases support the State's argument, we find them unpersuasive to our holding.

34 State v. Edwards 2010 WL (NC App. 2010) Drug trafficking case. Heroin was tested. filed a motion to suppress challenging the drug testing random sampling technique used to determine the controlled substance was heroin and the weight of the heroin. Court stated there was no authority to sustain a motion to suppress based on the unreliability of the evidence. Trial court made preliminary determination of admissibility and questions concerning the random sampling procedure employed went to the weight of the testimony rather than admissibility.

35 State v. Edwards cont. wanted to cross exam expert and ask is NAS recommendations had been implemented in her lab. Trial court found it to be irrelevant and was not allowed to do so. Appellate Court: *I+t is doubtful that a general report challenging industry methodology would have changed the outcome at trial. Accordingly, Defendant s argument is without merit.

36 Johnston v. State 27 So.3d 11 (Fla. 2010) PCR on death penalty case involving fingerprint and shoeprint evidence. Court: NAS report did not constitute newly discovered evidence Majority of studies cited were published prior to PCR Nothing in report rendered forensic techniques used in s case unreliable.

37 Facts: Comm. v. Gambora 933 N.E.2d 50 (Mass. 2010) Robbery of family owned hotel, mother/wife shot and killed in front of her family for $450 by intruder and who were high on heroin Police find shoe print and fingerprint Fingerprint evidence used ACE-V methodology Also find shoe that matches print

38 Comm. v. Gambora cont. challenges fingerprint analysis citing NAS report Doesn t challenge shoe print??? attorney asked fingerprint expert about disparity b/t DNA experts 1/100 billion as opposed to fingerprint matches or doesn t match Further pointed out that errors have been made in the past.

39 Gambora cont. Court cites prior Mass. S.Ct. case Patterson where a trial judge denied a motion to exclude fingerprint evidence after a 5 day hearing and finding it met the Daubert test. argued general acceptance in the fingerprint examiner community can t provide basis of admissibility where the entire discipline of the community is challenged. Court- NAS acknowledges fingerprints are unique; however, uniqueness does not guarantee prints from 2 people might not be sufficiently similar to cause confusion. NAS= more research into error rates and similarities required.

40 Gambora cont. Fact v. opinion Fingerprint experts should testify that their OPINION is that the prints match and not testify that it is a FACT or that there is absolute certainty. ACE-V methodology doesn t create infallibility FN22 nothing in this opinion should be read to suggest that the existence fo the NAS Report alone will require the conduct of Daubert hearings as to the general reliability of expert opinions concerning fingerprint identifications.

41 III. Discussion / Questions Prognosticating NAS influence in Iowa Courts

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