NACDL Final Report

[L.J.Steele]

The final report, as adopted by the Board is here:

http://www.nacdl.org/sl_docs.nsf/issues ... Austin.pdf

I'd be very interested in what y'all think, on or off-list.

[Pat A. Wertheim]

For the most part, I tended to agree with the NACDL comments. However, the hairs on the back of my neck prickled near the end of the document. In a footnote on "transparency" and what should be disclosed to the defense in any case involving forensic science, NACDL calls for disclosure of all of the following:

The following should be readily accessible to attorneys representing criminal defendants in cases involving scientific evidence:

(A) Information Pertaining to the Analysis

1. All “bench notes” (contemporaneous notes made during the examination or
analysis), including all photographs, diagrams and descriptions of the analysis conducted;

2. All data including electronic data generated as part of the analysis whether or not
the data was ultimately relied on in reporting the results or findings;

3. All communications concerning the case or the evidence whether oral or in writing
between the forensic science practitioners, supervisors, technical leaders, and/or law
enforcement, including police officers and prosecutors;

4. All chain of custody documentation regarding all samples examined and/or
analyzed;

5. All documentation regarding the collection of all physical evidence and subsequent
treatment as well as documentation regarding a decision not to collect any item of
potential evidence;

6. All information pertaining to any review conducted by a peer or supervisor
including all documentation and opinions rendered; and

7. All information generated by any database search including data on all of the
candidates generated during a search, even if they are not identified as the source.

(B) Information Pertaining to Quality Control within the Forensic Facility

1. The most recent external audit report;

2. Internal audit reports and supporting documentation for the year preceding the
analysis through the time of the anticipated testimony;

3. All internal quality control documents recording any errors of any kind (sometimes
denominated as “unexpected results” logs) whether or not the correct result was
ultimately obtained;

4. Contamination logs;

5. Records documenting corrective action taken following an error or “unexpected
result”;

6. If no corrective action was taken when an error or “unexpected result” occurred, the
written documented explanation of the inaction;

7. Records of any internal review or audits conducted for any reason other than
accreditation purposes;

8. Calibration records for all equipment used in the analysis; and

9. A list of any documents published or unpublished relied on in forming an opinion in
the case.

(C) Information Pertaining to the Forensic Science Practitioner

1. Current curriculum vitas or resumes of the testing practitioner, reviewer, and
supervisor;

2. Listing of instances in which the practitioner testified with sufficient detail to allow
ordering the transcripts if not already generated and held by the facility or archiving
federal agency;

3. Documentation of all education, training, employment, and other matters listed on
the curriculum vitae or resume;

4. Documentation of all relevant training received;

5. All information concerning deficient, negligent, or incompetent performance;

6. All records concerning any error or “unexpected result,” including instances when
the practitioner or a reviewer caught and corrected the error before conclusion of the
testing process;

7. All records concerning all proficiency tests; and

8. All records concerning certification.

(D) Standard Operating Procedure Manuals and Validation Studies

1. Standard operating procedure manuals for any technique or method in effect at the
time of the testing through the time of the anticipated testimony;

2. Validation studies for any method or technique used in a particular case; and

3. Underlying data from the validations studies.

Reports should include:

1. The opinion that will be presented in court;

2. All assumptions being made in rendering the above opinion;

3. A clear characterization of any limitations and an associated statistic that describes
the weight that should be attributed to the evidence; and

4. The underlying basis of the opinion including identification of any published or
unpublished material relied on.

Forensic facilities should provide up-front information regarding the results of examinations, all results of automatic database searches conducted as part of the examination (e.g., CODIS and AFIS), documentation of quality control problems in the facility or associated with a particular forensic science practitioner, and standard operating procedures and validation studies. While these disclosure requirements are broader than the current policies of most forensic facilities, they are not onerous and
should not only be provided after litigation. In fact, some forensic facilities already disclose the case-specific information as a matter of course upon request, and/or provide protocols and other non-case-specific information publicly online.

I am a firm believer in transparency and disclosure, but I have concerns about some of these disclosure demands. Specifically, I am worried that A-3, 5, 6, & 7; B-3, 5, 6, & 9; C-2, 3, 4, 6, & 8; and Reports 2 & 4 as listed above are (to varying degrees) unreasonable, irrelevant, and impossible to provide.

Much of this NACDL report is good. Much of that which they call for should be mandatory. But some of their recommendations are neither "scientific" nor "unbiased," the charges that defense attorneys all to commonly make against us in court.

[Gerald Clough]

A lot of this is wishful thinking, although it can provide an attorney with a laundry list of subpoena items. But to make use of most of those things in court, they would have to have a remarkable grasp of many issues and the ability to work it up into a coherent treatment. Since, to date, few attorney (on either side) appear to make much effort to grasp the issues, it's expecting quite a lot more from the defense attorneys than it's expecting from the latent print units. A nuisance for whoever has to compile all the products to produce, of course. I suspect few attorneys, or at least in few cases, will be asking for a mass of material that has been difficult enough to manage for very focused litigation efforts specific to fingerprint evidence admissibility, efforts which have mostly been futile. And unless you have a pretty good grasp of the state of the art and the issues, the material offers some outstanding opportunities for attorneys to appear foolish. There are usually better things to do in court and better people to do them to. And it's very much wishful thinking to hope for them to be mandated as being kept readily available. That's never been and is not likely to become a federal matter, since the states are pretty much still firmly in control of their own courts, so they have 51 separate battles to fight to get that done.