Legal counsel specialization

[kevin]

Back in July of 2008 Crimelabreport posted a response to the Innocence Project's claim that 'Bad Forensics' was to blame in some inflated percentage of cases amongst other systemic failures...

---here is the link to the article: http://www.crimelabreport.com/library/m ... 7-2008.htm

Crime lab report went back and clarified how the numbers became so inflated but they also cited a number of instances where exculpatory evidence was overlooked by lawyers in the case(s). In light of the NAS report and the attention that is being drawn to forensic science as a whole, I was wondering how legal counsel fits into this equation?? Do criminal lawyers have any kind of sub-discipline in handling forensic cases and/or is it an option for legal specialization by the ABA?? When lawyers have so much control over how and when forensic testimony is presented shouldn't they bear some of the burden in supplying knowledgeable people on both sides of the issue so that the jury can make the best decision(s)? Does the ABA enforce any standards on Criminal lawyers in presenting forensic cases?

The pessimist in me thinks there are nightmare scenarios out there which beat methodology theorem to death in an effort to discredit a witness when the very latent identified could have helped an innocent man go free if properly investigated by the attorney.....not saying this has happened or will or that all attorneys are incompetent or anything like that- I'm just advocating that if the NAS (and people in general) want to improve forensic science it needs to be all-inclusive and am curious if the legal system has taken any steps akin to what the forensic community is in the process of doing???

[L.J.Steele]

In light of the NAS report and the attention that is being drawn to forensic science as a whole, I was wondering how legal counsel fits into this equation?? Do criminal lawyers have any kind of sub-discipline in handling forensic cases and/or is it an option for legal specialization by the ABA?? When lawyers have so much control over how and when forensic testimony is presented shouldn't they bear some of the burden in supplying knowledgeable people on both sides of the issue so that the jury can make the best decision(s)? Does the ABA enforce any standards on Criminal lawyers in presenting forensic cases?

The short answer is no -- a law degree will let you handle anything from adoptions to zoning cases in any jurisdiction where you can pass a general bar exam. There's a few exceptions, like the U.S. Patent Office bar, which requires a certain amount of undergraduate-level study in one of a list of sciences.

The ethics rules require one to learn what one needs to know to competently represent a client in a particular matter, and one can be disciplined and/or sued for failing to do that, but the standard for what's competent is measured by the ordinary fallible lawyer. The standard of ineffective assistance of counsel (used to get a new trial in habeas) is similarly built around the ordinary fallible lawyer and very deferential to tactical decisions made at the time, not examined in hindsight.

So virtually anyone with a law degree can take criminal cases from private clients. The private client has to talk with the attorney and decide if the client is comfortable with the attorney's experience and knowledge in key areas. States vary widely in how indigent defense cases are assigned -- some states have a full-time public defenders' office tha thandles the vast majority of indigent work. Some states use a mix of full-time public defenders and private attorneys working either by contract for a certain number of cases or case-by-case. Some almost exclusively use private counsel. Some states require attorneys to take a certain number of hourse of legal education, others don't. I expect most public defenders offices offer in-house training in forensics, but the quality likely varies. There are alot of forensics programs offered by various defense organizations, like NACDL and the state bar assocations, which also vary in scope and quality and are only going to reach the folks with time and interest to take them. '

I don't know much about the prosecution side -- it is likely mostly staff folks, who will get in-house training. But budgets are tight and they often have a turnover problem with folks leaving for private practice after a few years. So just as NAS found a huge range of ways exerts do things across the country -- there's a huge range of how lawyers do things.

Add to that a huge variety in judicial training and experience. I doubt any judge has been appointed or elected based solely or even primarily on a knoweldge of science or statistics. There are judicial education programs, but again wide variation.

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[L.J.Steele]

Let me continue a bit -- so you've got a wide variation in legal experience and education.

Now we get to resources. In Massachusetts, if I want to challenge evidence in an indigent defense case, I file a motion with the trial court, which has to approve an authorization for funds for an expert. (The funds come out of a public-defender budget, not the courts'.) This means the prosecutor knows what I'm looking for an expert about and to some extent why. Judges vary widely in what they will approve -- some are stingier than others. In Connecticut, I have to request authorization from the public defender's office, which has its own internal budget concerns. The prosecutor doesn't know I've consulted anyone. And then I have to find an expert willing to work for that rate -- the folks who are good and willing to work cheap are busy, so this is not easy.

Ideally, we need more money cross the board for education from the law school level up in basic science and statistics. Both the prosecutors and defense bar need to think hard about minimum education and ongoing CLE in forensics, both in the actual science and in the latest law about challenges. And we need to think about how judges are appointed/elected, and education for judges.

Ideally, we also need more money for defense experts and a more uniform and fair system of deciding what cases get how much money for experts.

NAS is right, the court system has done a terrible job and it needs to do better. But the bottom line is still likely to be in the lab with the expert making sure the science is solid, the procedure is solid, and the expert's training is solid.

[Gerald Clough]

While it's usually said that "the courts" should do more (and I do it, too), it's not that simple. We need to be more specific about what "the courts" means and who else bears the responsibility. A trial judge cannot advocate for the defendant by instructing a defendant's counsel to ask for expert money, any more than the judge could remind the prosecutor to bring the analyst to testify and not the supervisor, so that the testimony might be more admissible. At the trial level, it's pretty much entirely up to the defense counsel to discover what can and should be challenged. In my experience, very few have even the most fundamental knowledge required to evaluate physical evidence analysis or even to know when to seek expert help. And they generally have to make some kind of argument to the court that their money should be spent. (Around here, in felony, it's essentially state money spent by the judicial district administration.) It's perfectly clear from their questions that most attorneys possess only a few catch-phrase sort of tidbits gleaned from the occasional article or news report. On a slightly higher level, they may try to adopt language and approach from another published case but without understanding why it just doesn't work in their current case. A trial court judge or court administrator who wants criminal cases defended by attorneys with a working knowledge of forensic sciences is in a tight spot. They have to make appointments in all those cases and have little ability to limit appointments to those attorneys, if they have any at all to choose from.

Few courts will flatly deny a reasonably argued request for expert services. Even if one or another does deny the motion, counsel has still laid the groundwork for a substantive appeal. If it seems harsh, I'm sorry, but I have to lay this one at the feet of the practitioners, exactly as I would hold a family practice physician responsible for knowing enough about one or another branch of special practice to know when to call in the specialist. I do not expect that generalist doctor to know how to manage the specialty problem, but he'd better know when to seek help and do it. If someone is going to practice criminal law and take on cases in which physical evidence is important, if they don't make the effort to learn the basics, they're no better than a physician who says, "Shoot. I don't know enough to say if that's anything to worry about. I guess I'll take a shot at it and just hope it works out okay."

Prosecutors tend to be somewhat better. That's natural, since their practice is almost exclusively criminal, and they need only pick up the phone to get a thorough free consultation with an expert. But I found that even they knew far less than they should, largely because they're so rarely challenged by a really knowledgeable attorney. Here we have an open forum, and so far as I'm aware, we have one participating attorney. Resources are not hard to find. But few attorneys who take on criminal cases use them. I'm a little shrill about this, because I see how much time and money goes into dealing with the aftermath. And really, it's much, much harder to deal with these issues post-conviction. Things work so much better when people know what they're doing in the first place.

Back to "the courts." "The courts" that drive the evolution of legal procedure are the appeals courts. They are fairly responsive, and a good number of appellate attorneys are quite adept at getting and utilizing forensic experts. But at that level, they have the additional hurdle or the great deference that appeals courts generally give to trial court decisions. But it's often not until the case reaches the federal courts, with their realization that they are there last resorts, that serious expertise comes into play. Not the best possible time, either from the standpoint of scientific analysis nor from the point of view of the defendant.

I think it's fair to point out that the money from criminal appointments is not really enough to be much of a motivator, but I don't give the attorneys a pass on that account. I see it as a matter of acquiring the knowledge required to do the job, and I have no more regard for those who don't than I have for a detective who doesn't acquire essentially the same knowledge. Neither is competent.

[kevin]

Thanks for the replies!

Both the prosecutors and defense bar need to think hard about minimum education and ongoing CLE in forensics, both in the actual science and in the latest law about challenges. And we need to think about how judges are appointed/elected, and education for judges.

That really would seem to fit the bill for improving the level of knowledge all the way around....and really not that hard to implement if you think about it. So many of us teach academies, workshops, and other kinds of classes that you have a built-in instructor base the legal community to plug into. I agree with Gerald in that most of the folks on the prosecution side are much more prepared (but that isn't always a given), and that ultimately comes back on the individual attorney.

I got this topic in my head, for the most part, in thinking about the effect the NAS study has had and what effect it may have in the future....A lawyer at the Tampa conference relayed a story about one of his colleagues saying 'the cat is out of the bag' (or something to that effect) with regards to NAS' impact on the forensic community. I thought it was kind of funny because I would bet money his colleague probably doesn't even know the proverbial cat from a dog or from the bag when it comes to forensics. I've always thought the IAI has done a reasonably good job of policing its standards and members, keeping up with technological advances, and so on. But even with more funding, more training, training standards, etc our work product will still be a relatively small part of a much bigger and much more flawed system (in my opinion) than our own little corner of the world. But on the bright side I think a little bit could probably go a long way and be alot more effective when the powers that be look into implementing some of the NAS points... again, thanks for the replies.

[L.J.Steele]

I've had some great experiences with programs in Massachusetts that use a panel format with one or more experts -- forensics, eyewitness ID, false confession, etc. giving a presentation of the science in their field; then commentary by at least one defense attorney and at least one prosecutor on the various legal challenges to the science -- generally how the challenges have been made and defended. The audience is normally attorneys, mostly defense folks, with a smattering of prosecutors and judges. I've been to a couple of IAI meetings and had a great time talking with you folks about Patterson and some of the challenges from a defense attorney's PoV.

Some of my colleages, on the other hand, have not had good experiences with this format. There are reasonable concerns on all sides. Some of the defense attorneys seem concerned about tipping experts and prosecutors to approaches for challenges that haven't been litigated yet. And I think the prosecutors seem concerned about talking about their theories of how to respond in advance of actual litigation. (Heck, I've had that qualm myself in working with a prosecutor in setting up a demo cross-exam of a defense expert for a talk and helping figure out how to focus on the weak spots in offering that testimony and how to respond to them where the prosecutor was far less familiar with the research and I was bringing him up to speed on what had been done in other states.)

I'd assume from some of the posts I've seen here over the years that some of the experts are concerned about talking about the weak areas with the folks who are likely to cross-examine them. I suspect there are also concerns in the defense bar about whether the experts will be honest about the possible weaknesses in training, procedures, etc, or whether we'd mostly get a "we're all fine here, really" presentation rather than a substantive discussion. And there are, of course, minefields to avoid in discussing pending casework or past cases where there's ongoing litigation.

My feeling is there's alot we can learn from each other if we can manage to get a dialog going.

[Gerald Clough]

I'd assume from some of the posts I've seen here over the years that some of the experts are concerned about talking about the weak areas with the folks who are likely to cross-examine them.

I would feel hypocritical to, on one hand, wish for more knowledgeable counsel and, on the other hand, hesitate about discussing practical and theoretical weaknesses. There's kind of a conundrum here for government experts. The reality is that, for the vast majority of cases, they will be the only experts, either on account of systemic legal procedure and custom or from the simple attorney ignorance already cited. On the other hand, it's an adversarial system, and it's not the state's responsibility to argue both sides, although the state obviously bears a greater burden of caution and balance in the interest of justice. And it's also true that many government experts, if they wish to remain working government experts, have to step carefully when talking with opposing counsel. But, on the whole, we're extraordinarily open in our public discussions and writings. There is not the slightest difficulty in any intelligent person with an Internet connection gaining a grasp of the state of most of the forensic sciences directly from practitioners.

It's not counsel knowledge that gives us difficulty. It's counsel half-knowledge and guessing and, sometimes, plain old flailing about with casually acquired buzzwords and mistaken notions from lay media that bogs the system. It not only leads to courtroom confusion; it sometimes leads attorneys to sponsor very questionable science, simply because they can't evaluate some off-the-wall expert. It applies to both side, one not knowing they're sponsoring baloney and the other not recognizing that it's sliced way too thin. And they can sometimes move judges to order the strangest things. Anything we can do to dispel ignorance about the field is a benefit.

My view is that, if we can't overcome the acknowledged weaknesses and areas where we're working and present a conclusion as having the degree of reliability we'd like, maybe we shouldn't be representing it as reliable to that degree. And if we pretend that all criticism is misguided, we tend to entrench in that position and go in unprepared to deal with it. I also remember posts here that seem to imply that the writer ardently hopes they are out of the field before there's any substantive change in the nature of the products of analysis, changes that would likely grow out of recognized weaknesses in the field. History does not look kindly on that. I have something posted on my office wall, a paragraph from The New York Tomes of October 9, 1903:

"The flying machine which will really fly might be evolved by the combined and continuous efforts of mathematicians and mechanicians in from one million to ten million years." Under that is the note that, on the same day, in North Carolina, Orville Wright wrote in his diary:

"We unpacked rest of goods for new machine."

[L.J.Steele]

I would feel hypocritical to, on one hand, wish for more knowledgeable counsel and, on the other hand, hesitate about discussing practical and theoretical weaknesses. There's kind of a conundrum here for government experts. The reality is that, for the vast majority of cases, they will be the only experts, either on account of systemic legal procedure and custom or from the simple attorney ignorance already cited. On the other hand, it's an adversarial system, and it's not the state's responsibility to argue both sides, although the state obviously bears a greater burden of caution and balance in the interest of justice. And it's also true that many government experts, if they wish to remain working government experts, have to step carefully when talking with opposing counsel.

This is one of the arguments underlying the NAS recommendation to get the labs out of law enforcement agencies. The prosecutor, of course, has the dual burden of zealously representing its client and to "do justice". But should an expert feel obligated not to assist both sides equally?

There is not the slightest difficulty in any intelligent person with an Internet connection gaining a grasp of the state of most of the forensic sciences directly from practitioners.

Yes and no. While you folks are extraordianarily open (for which I thank you), I'm prepping for a talk on firearms ID in Houston next week and it is much harder to get electronic versions of key AFTE J studies, to search for said studies, and/or to hear what debates are going on inside AFTE and SWGGUN in light of NAS, the NRC report, and the various federal district court cases limiting testimony.

It's not counsel knowledge that gives us difficulty. It's counsel half-knowledge and guessing and, sometimes, plain old flailing about with casually acquired buzzwords and mistaken notions from lay media that bogs the system. It not only leads to courtroom confusion; it sometimes leads attorneys to sponsor very questionable science, simply because they can't evaluate some off-the-wall expert. It applies to both side, one not knowing they're sponsoring baloney and the other not recognizing that it's sliced way too thin. And they can sometimes move judges to order the strangest things. Anything we can do to dispel ignorance about the field is a benefit.

It also leads to a failure to object to some odd stuff that comes in unchallenged and what I suspect are good-faith overstatements in closing arguments. A running problem is less what you don't know, but what you think you know that isn't so. Better education all around would help.

[Gerald Clough]

This is one of the arguments underlying the NAS recommendation to get the labs out of law enforcement agencies. The prosecutor, of course, has the dual burden of zealously representing its client and to "do justice". But should an expert feel obligated not to assist both sides equally

I think the reality is that it's just not going to happen anytime soon, if ever. And it raises the question of whether defense will also be limited to those official but non-law enforcement sponsored experts. I don't see that standing up. We've all seen blatant expert bias, at the very least, the experts whose propensities for particular opinions are known and that make them attractive to one side or the other. I don't see the problem in forensic sciences as particular bias but as simple systemic lack of adversarial advocacy at the trial level. That's what tests the strength of conclusions.

Yes and no. While you folks are extraordinarily open (for which I thank you), I'm prepping for a talk on firearms ID in Houston next week and it is much harder to get electronic versions of key AFTE J studies, to search for said studies, and/or to hear what debates are going on inside AFTE and SWGGUN in light of NAS, the NRC report, and the various federal district court cases limiting testimony.

I guess we happen to have particularly active public discussions. I think that's largely because of the sheer numbers of examiners. If you look at the percentage of examiners and other interested parties in the latent print field who are inclined to active discussion and consider that the vast majority aren't involved, it's not surprising that there aren't enough such from the numerically smaller disciplines to generate that kind of activity.

It also leads to a failure to object to some odd stuff that comes in unchallenged and what I suspect are good-faith overstatements in closing arguments. A running problem is less what you don't know, but what you think you know that isn't so. Better education all around would help.

I guess the wildest example I was ever involved in was while testifying as the lead investigator in an aggravated robbery trial many years ago. Three inept actors ended up in a free for all inside a store when the clerk objected to being cursed (being robbed didn't upset her - she just didn't like being called that name) and attacked them with a mop handle, setting off wild shooting and the comic scene of one of them in tears trying to decide whether to drop the cash register in his arms or try to run with it, all the while being wailed on by the elderly mob wielding female clerk who was unstoppable, I suspect due to a bit of her family's meth production product in her system. The prosecutor "qualified" me by going over my familiarity with firearms and ammunition and asked if I could tell if a recovered metal jacket that had peeled off a bullet was more consistent with a .22 or a .25 caliber bullet. (Getting at which actor shot the hole in the mop handle and grazed the clerk's head.) It was quite obviously from a .25, so I knew the answer and answered the question. All through this, the defense counsel was nodding and agreeing that I was qualified. I even paused and looked at him, anticipating he would leap up and object. While the conclusion was correct and based on genuine knowledge and experience, he shouldn't have let it in. I've never been a firearms examiner and had offered no such conclusion in my report. It was absolutely an accurate conclusion and didn't really make one whit of difference in the outcome, but it was pretty clear that he would have sat there just the same, no matter what else was presented as expertise.

On the other side, part of my job from time to time is to spot the bogus expert, the guy whose resume cites multiple "courses" in the field that turn out, on closer examination, to really be three ten to thirty minute portions of some conference presentations. My attorneys would not have known the difference. I doubt that the attorney sponsoring him knew either.

[kevin]

This is one of the arguments underlying the NAS recommendation to get the labs out of law enforcement agencies. The prosecutor, of course, has the dual burden of zealously representing its client and to "do justice". But should an expert feel obligated not to assist both sides equally

I think that a forensic expert's first duty is to the truth and not to either side of the attorney's arguements. I guess it would be my opinion that the jury would be the one to decide if it helps either side. But that is the individual examiner (in this case me)-I never cared for much beyond what I can say under oath on the stand as being true and haven't really deviated from that in my career. I think some examiners might speculate a bit more?? But i really can't think of any good examples of this?? I think there was a case recently in Australia or New Zealand where an examiner was speculating (to an extreme) as to the manner an item could have been held or touched....maybe someone else recalls it better??? This was without having made a bum ID or anythign along those lines-just someone playing cowboy on the stand (meaning no offense to any cowboys who might post here...as I do see alot of TX in the sigantures around here)

But from a standpoint of who is initiating or requesting the examination we do; it would have to be the prosecution nearly every time. This being due to the adversarial system and having burden of proof placed on the prosecution to display facts that support their case. I think thats the essense of what we do and that is how our science has evolved so to speak....

I think that viewpoint fits with what Gerald was saying in the lack of adversarial advocacy in trials....however the defense seems to be a reactive strategy aimed at chipping away at any facts that a forensic expert may bring to the table. But there really isn't a playbook for doing that beyond employing an 'expert' along the lines of Haber or Cole, arguing methodology, or personal attacks like in the McKie case.

The problem with representing the defense equally is in many circumstances unfeasable due to the fact that often times the defendants are, in fact, guilty and the evidence can and will inevitably prove such. To employ a forensic expert in light of, or inspite of, that fact is kind of like putting the cart before the horse....i.e. this guy needs to be innocent therefore we can do X, Y, and Z to prove it such. Forensic science and fingerprints in particular lend themselves so much more towards the prosecution side that they are not always practical for use in defense with the exception of cases where they represent exculpatory evidence (such as, again, McKie....)

[Charles Parker]

Kevin Said

I never cared for much beyond what I can say under oath on the stand as being true and haven't really deviated from that in my career. I think some examiners might speculate a bit more?? But i really can't think of any good examples of this?? I think there was a case recently in Australia or New Zealand where an examiner was speculating (to an extreme) as to the manner an item could have been held or touched....maybe someone else recalls it better??? This was without having made a bum ID or anythign along those lines-just someone playing cowboy on the stand (meaning no offense to any cowboys who might post here...as I do see alot of TX in the sigantures around here)

Hey I resemble that remark-----Kevin we do not call it speculation -- we call it reconstruction. The latent print was on the bottle just like this when recovered. To place the finger in that positon on the glass it had to make contact in this arrangement. When you look at a set of 10Prints and see that the thumb on the card is upside down----are you speculating that it is upside down or are you reconstructing that it was placed upside down.

Intersting topic and kind of off subject for this thread. I know of a lot of LPE that will not testify or even attempt to reconstruct placement of fingers or palms and when I ask them they tell me. "I was not there when they touched it so how can I testify as to how they touched it."

Like I said an iteresting topic---one to save for a later day.

[Gerald Clough]

I think that viewpoint fits with what Gerald was saying in the lack of adversarial advocacy in trials....however the defense seems to be a reactive strategy aimed at chipping away at any facts that a forensic expert may bring to the table. But there really isn't a playbook for doing that beyond employing an 'expert' along the lines of Haber or Cole, arguing methodology, or personal attacks like in the McKie case.

The problem with representing the defense equally is in many circumstances unfeasable due to the fact that often times the defendants are, in fact, guilty and the evidence can and will inevitably prove such. To employ a forensic expert in light of, or inspite of, that fact is kind of like putting the cart before the horse....i.e. this guy needs to be innocent therefore we can do X, Y, and Z to prove it such. Forensic science and fingerprints in particular lend themselves so much more towards the prosecution side that they are not always practical for use in defense with the exception of cases where they represent exculpatory evidence (such as, again, McKie....)

Defense consultation with an expert most often won't result in new conclusions. But as Ms. Steele pointed out, it's what you think you know that hurts you. Expert review should have two primary goals. one is to help evaluate the presumed accurate analysis. This both informs counsel of what can be inferred from the analysis and whether it's better to attack it or to let it slide by with as little emphasis as possible. The other is to identify any additional analysis, either on the subject of the discovered analysis or on other evidence that's documented but not analyzed. Additionally, to identify any omissions in a situation in which the search for evidence was inadequate. Now, a defense attorney is reasonably safe from an claim of ineffective performance when the rest of the case is substantial and the reasonable strategy is to reframe the state's view of the crime and mitigate punishment. But it is dangerous for the defense counsel to join in the state's presumption of guilt, unless that's a strategy considered with full understanding of all the evidence.

The defense actually has a nice advantage in the use of experts that the state does not. The state's failure to reveal exculpatory facts and findings can be cause for reversal. The defense can analyze all they want and are not bound to reveal anything they don't want to reveal. I think one of the hazards of depending on a presumed independent government lab is that it may lead defense attorneys to assume that the analyst must be right and reliable in every case. Worse, if it moves judges to deny any additional defense forensic resources by the same assumption. The bottom line is that if you're trying a case involving forensic analysis, you had better genuinely understand the analysis or get your own expert advice as a sort of second opinion. And few attorneys can afford the time to become truly competent to evaluate analysis.

[L.J.Steele]

I think that a forensic expert's first duty is to the truth and not to either side of the attorney's arguements.

I'd agree. But that does have consequences -- like being equally available to both sides if they have questions, and being willing to share bench notes, manuals, logs, etc. with both sides equally. Certainly, there can be issues of confidentiality and privilege in discussions about tactics, but neither side should be favored.

I think some examiners might speculate a bit more?? But i really can't think of any good examples of this??

One of the problems I tend to see is guesses that probably don't have any empirical support -- we find useful latent prints in 10% of this kind of case (which may be true, but I doubt anyone actually kept count, the witness is likely guessing), we didn't process the firearm for prints because we only find them on firearms or ammo in 5% of cases (is that because they aren't there, or you don't look often, or the folks at the scene aren't being trained in how to handle the firearms evidence), etc. I have seen testimony trying to age a print (was the clearest, so must have been left by the last one out the door) or explaining that one didn't look for prints on the outside or inside of a cab involved in a felony-murder because it was raining and that would have washed off any prints. I don't think the witnesses were intentionally speculating, but I wish trial counsel had objected and pushed for the source of these claims.

I think that viewpoint fits with what Gerald was saying in the lack of adversarial advocacy in trials....however the defense seems to be a reactive strategy aimed at chipping away at any facts that a forensic expert may bring to the table. But there really isn't a playbook for doing that beyond employing an 'expert' along the lines of Haber or Cole, arguing methodology, or personal attacks like in the McKie case.

The defense is almost always reactive -- the prosecution investigates the case, files the charges, and gets to put on its case first. Defense counsel with a forensics issue will likely apply a basic checklist:

Is the evidence good?
Search & seizure issues, chain of custody, fabrication/forgery, etc.
Is the science good?
NAS report, research on Lvl 3 detail (if used), etc.
Is the expert good?
training, certification, proficiency testing, lab accreditation, etc.
Is the procedure good?
documentation, notes, novel procedures, blind verification, pressure on examiner (if any),
confirmation bias, explanations for differences (discrepancy/distortion), single IAFIS matches,
etc.

How should the examiner's conclusion be stated -- Green/Montiero/Glynn line of cases for firearms ID imported by analogy to other disciplines.

The problem with representing the defense equally is in many circumstances unfeasable due to the fact that often times the defendants are, in fact, guilty and the evidence can and will inevitably prove such.

If that's what the evidence shows, and there's no good defense, the case is likely to be pled and the challenge isn't likely to come up. But to presume that the suspect is guilty before trial is very much to put the cart before the horse. As I recall, Stephan Cowans once said that given the evidence in his first trial, he would have voted to convict himself. Then 11 years later came the DNA exoneration and revelations about serious problems in the Boston PD latent print unit.

Defense counsel has very limited funds for experts, especially in indigent cases -- they get hired when trial counsel thinks there's something worth chasing.

[kevin]

If that's what the evidence shows, and there's no good defense, the case is likely to be pled and the challenge isn't likely to come up. But to presume that the suspect is guilty before trial is very much to put the cart before the horse.

Definitely agree that alot of lights out 'guilty' cases get plead away without too much fanfare. And i was definitely speaking in generalities with regards to most defendants being guilty....its just that many of them are going to wind up being guilty by a preponderence of evidence - Forensic and otherwise. For example lets take a fingerprint case and lets say I break my cases down into two broad categories for purposes of discussion when it comes to an identification-lets say 1) victims and people with legit access to the scene and 2) suspects who supposedly have no connection to the victim. The second category is the group that i would classify as being guilty as charged (or simply 'guilty' as i stated earlier)....I didn't think access to additional forensic work on the latter kind of case would be of much value. I was trying to take a step back and put it in persective from an empirical (and albeit abstract) point of view. But I think we are probably talking about those same types of cases from different perspectives -most of those kinds of cases get plead out straight away....

One of the problems I tend to see is guesses that probably don't have any empirical support -- we find useful latent prints in 10% of this kind of case (which may be true, but I doubt anyone actually kept count, the witness is likely guessing), we didn't process the firearm for prints because we only find them on firearms or ammo in 5% of cases (is that because they aren't there, or you don't look often, or the folks at the scene aren't being trained in how to handle the firearms evidence), etc. I have seen testimony trying to age a print (was the clearest, so must have been left by the last one out the door) or explaining that one didn't look for prints on the outside or inside of a cab involved in a felony-murder because it was raining and that would have washed off any prints. I don't think the witnesses were intentionally speculating, but I wish trial counsel had objected and pushed for the source of these claims.

I have seen and heard some of this as well....and you have my blessing to take them out to the proverbial woodshed while on the stand Lisa. That goes back to the individual examiner on the stand as there is plenty of literature out there to review on the subject(s). There should be training as well as the departmental procedures they can rely on for such things. Therein lies the need for standarized training to competency that the NAS pointed out in my humble opinion. There are always going to be extenuating circumstances and I'm not going to be too critical but thats on them to back that stuff up....

[kevin]

The defense actually has a nice advantage in the use of experts that the state does not. The state's failure to reveal exculpatory facts and findings can be cause for reversal. The defense can analyze all they want and are not bound to reveal anything they don't want to reveal. I think one of the hazards of depending on a presumed independent government lab is that it may lead defense attorneys to assume that the analyst must be right and reliable in every case. Worse, if it moves judges to deny any additional defense forensic resources by the same assumption.

Thats a good point....