NAS Report part II: foundation and reliability

[Gerald Clough]

Would that cause tensions in a lab if Examiner A not only can't tell any of his/her colleages what case he or she is reviewing, but not what result was obtained, especially if the result is inculpatory. I also wonder about conflicts of interest and how that applies to experts. If I take a case, I have a duty of loyalty to that client -- there are strict rules that may disqualify me if I ever represented a co-defendant or key prosecution witness. I haven't looked into if or how that affects experts -- if Examiner A has privileged information about a case from working for the defense, and is later involved in an investigation in which that information would be important either to inculpate the defendant or exculpate another suspect, will there be restrictions on how he/she can use the information.

I haven't looked into this area -- have these problems already come up? Are there already procedures in place for conflicts checking or review?

I know we have to be alert to who is the expert's client. We sometimes have to stop a moment and remember if a particular expert is truly a joint expert or if the parties merely agreed that one party's expert can undertake an analysis. A lot of experts are properly fascinated by their work, and they may quite easy get caught up and reveal privileged information when they happen to be talking with opposing counsel, so it's kind of up to us to limit the conversation. Since we're routinely selecting experts very late in the game, it sometimes happens that one under consideration actually worked the other side of the case early on and can't hire on for the opposition now. Of course, if they're jointly hired, they can speak freely to both parties.

I think that any independent forensic facility would, by its nature, have the character of being jointly "hired," and all their product and internal processes would be accessible to both parties. But joint hiring is not the norm. In my world, it happens when the issue is obviously straightforward, and even if the result is not known, both sides recognize and accept that it won't be subject to any real doubt. Playing this thought experiment about an independent resource, I also would anticipate that there would be conclusions that one or another party would want to question and that there would be potential for another analyst, not in the public resource, to contradict. I think imagining that all independent public forensic resources will be equal and consistent among themselves is akin to the "all competent examiners will agree" fallacy. And I don't see courts requiring either party to use only the public resource. Even that independent public lab's conclusions are going to be subject to attack by other experts. Which gets us back to using one's expert of choice. Not that they are always such great experts.

[g.]

For the joint lab, the biggest problem I see is confidentiality. The prosecution has an ethical obligation to disclose any exculpatory evidence to the defense. But a combination of the protection against self-incrimination and attorney-client confidentiality mean that defense experts are bound by the hiring attorney's confidentiality obligations -- depending on the specifics of the case, they may not be able to admit that they were even consulted, never mind what their results were.

Hi Lisa, maybe i am feeling a little crabby today, so please take this in the spirit in which it's intended! As someone who works defense cases (and sees the value of working cases from both perspectives), this point that you bring up is very valid...but falls on my deaf ears!

Meaning that maybe, if our forensic system needs reform, maybe the legal system needs reform too. And here is a frustrating example of how defense laments "we should have equally funded access to quality tests and experts and resources...but then we don't have to disclose the results that tend to incriminate a client".

Here I say (as someone very sympathetic to defense work and does several pro bono cases a year): "tough". Live by the sword, die by it.

If defense and prosecutors were to some day have equal access to the forensic tests, then they shouldn't order tests that may incriminate their client. Don't waste resources on the tests just to look for the negative...

I guess this falls under the same heading of hypocrisy that "these tests haven't been shown to be reliable through validation testing and scientific study....unless they exclude my client. Then they're fine."

g.

(your point is noted, agreed upon, and I say that the U.S. legal system should also go through a major overhaul as well....revisiting "old rules" and tactics for a better tomorrow.)

Hope I wasn't too snippy! [and it wasn't aimed at you personally, what you described is very true and accurate and I find a frustrating nuance of the system]

[Gerald Clough]

Meaning that maybe, if our forensic system needs reform, maybe the legal system needs reform too. And here is a frustrating example of how defense laments "we should have equally funded access to quality tests and experts and resources...but then we don't have to disclose the results that tend to incriminate a client".

Here I say (as someone very sympathetic to defense work and does several pro bono cases a year): "tough". Live by the sword, die by it.

If defense and prosecutors were to some day have equal access to the forensic tests, then they shouldn't order tests that may incriminate their client. Don't waste resources on the tests just to look for the negative...

I think what we have to remember is that it's not just an issue of how or if analysis is used. I see it as fundamentally a matter of operating the system so that the resources available to defend against a charge brought by the State doesn't depend entirely on the financial circumstances of the defendant. I really don't know how a court could make distinctions among requests for expert funding, other than a general argument that some particular sort of analysis can be subject to different interpretations and outcomes. The court pre-trial can't hear the details of the particular analysis that may be challenged, not without the court essentially passing on its credibility, which is specifically a function reserved for the trier of fact. The court would be saying, "That's a credible conclusion, so no further analysis would he useful." We recently saw discussion of the question of to what extent even admitting evidence tends to strengthen the jury's opinion of its credibility. Deciding credibility of conclusions is not even a small step away from summary judgment. Given the cost of expert work, only those with considerable cash on hand could afford an analysis with privilege. We spend considerable money later doing reanalysis to answer questions of whether further analysis would have produced exculpatory evidence, often in the context of an ineffective assistance claim when the attorney doesn't explore the issue. It is, of course, up to defense counsel to present an sufficient argument to convince a judge that reanalysis is justified. Sometimes, that's easy. Sometimes, it's hard. But, when it can be reasonably argued, it runs against everything we say we want in our justice system to make a basic resource dependent on wealth or to compel a defendant to contribute to the State's case.

We preach that every examination is equally a search for any valid conclusion. Obviously, a defendant hopes for a conclusion that is factually or as a matter of certainty other than the conclusion sponsored by the State and is not likely to sponsor an incriminating result. But I think the fundamental principle of presumed innocence requires at least a basic defense inquiry into the evidence without fear of incriminating themselves further. As you say, it would indeed require a dramatic change in the criminal justice system to impose on trials the same rules that obtain under later civil appeals rules in which both parties are ordered to reveal all products of their investigations. That's simply not going to happen, for reasons that could no doubt provide material for at least one full law course. But that's no reason to fail to provide some kind of equality in access to analytical resources with the same privilege available to defendants with private funding.

[Pat A. Wertheim]

If defense and prosecutors were to some day have equal access to the forensic tests, then they shouldn't order tests that may incriminate their client. Don't waste resources on the tests just to look for the negative...

I would agree with you if the system of justice were predicated on equal burden of proof for both sides, but it's not. The greater burden is on the prosecution. That is why the prosecution must disclose evidence that would tend to exhonerate the defendant, but the defense is not obligated to disclose evidence that carries a degree of culpability with it. You could argue philosophically that the playing field should be level, but I kind of like our criminal justice system slanted the way it is to minimize the chance of convicting an innocent person. True, sometimes the innocent are wrongly convicted. But I'm afraid of how much more often that might happen if you took away the extra burden of proof placed on the prosecution.

Lisa has a legitimate question regarding confidentiality and avoidance of bias. I don't know the answer. Creating separate labs for prosecution and defense seems awfully cost-ineffective. The right of the defense to hire their own independent expert is a good one in theory, but in practice most defendants are destitute. Like you, Glenn, I do a number of pro bono cases. I'm afraid a career as a defense expert would not be a lucrative one.

So, if one big Department of Forensic Science Services would have to serve both prosecution and defense, how do you get around confidentiality and bias concerns? Good question!

[Gerald Clough]

So, if one big Department of Forensic Science Services would have to serve both prosecution and defense, how do you get around confidentiality and bias concerns? Good question!

I guess it would have to be set up as what is sometimes called an "agency," a term that maybe once had a somewhat different meaning in law enforcement than it does now. And that would give it more the character as a referral agency, which really comes back around to public funding of individual experts. I think what we have to recognize is that, while some defense-hired experts do an entirely fresh analysis, their function is often not to rework the analysis as if it were a fresh case to develop their own plain conclusion, but to explore what we might call credibility issues, possible issues in reasonable doubt arguments. These argument can, of course take to forms with any forensic issue. One is general issues applicable to the discipline in general as it relates to the analysis. The other is the particular analysis and interpretation and its weight as characterized by the sponsoring party and the opposition. It is difficult to imagine any one agency that could always satisfy either party in a particular case. I think one of the offshoots of more research on fingerprints and examination process is that we will begin to see more experts put up to testify about those things in general, rather than just the evidence in the case. That's exactly what happened in eyewitness identification, as soon as a body of published research and researchers arose. And the federal circuits are more and more backing those efforts by admonishing trial courts to consider hearing from them.

The very nature of forensics is that it's not a matter of "research says this," so this is the way to apply it. The research rubber meets the legal highway in court where issues are settled for THAT hearing in THAT case only, for the most part. And it's the conventions, the state of the discipline, that are always being challenged. But maybe I'm trying to lump too many expert roles into the question of if a publicly funded pool could provide just the one aspect of reanalysis. But, really, there are independent experts available. It's mainly a question of the courts paying for them.

The real value in the NAS goals is in learning more and more about the process, and the effect of that is to make challenges more vigorous and meaningful. Those challenges are what drives the development of legal standards. I'm going next week to a two-day evidence seminar to hear from a bunch of heavy hitters, including Anne Mazza from NAS. Should be interesting.