New Article on Forensics Problems in Courtroom

[L.J.Steele]

Garrett & Neufeld, INVALID FORENSIC SCIENCE TESTIMONY AND WRONGFUL CONVICTIONS, 95 Virginia L. Rev. 1 (2009)

Brand-new article looking at the trial testimony in 137 DNA exoneration cases and finding instances of testimonial errors not caught by defense counsel. The authors discuss the mis-use of data (non-probative evidence presented as probative; exculpatory evidence discounted), testimony about statistics that don't have any empirical support, stating results more affirmatively than the science permitted (instead of "consistent with", terms like "highly likely" or "from the defendant"), and a variety of procedural errors. I'll be curious to hear your reactions.


"[A] total of 85 cases—or 63% of the 137 cases—involved either invalid testimony or withholding of exculpatory evidence. The testimony at these 137 exonerees’ criminal trials chiefly in-volved serological analysis (100 cases) and microscopic hair com-parison (65), because most of these cases involved sexual assaults for which such evidence was commonly available at the time. In-deed, in many cases, where both hair and semen were recovered from the crime scene, both disciplines were utilized. Some cases also involved testimony concerning: fingerprint comparison (13 cases), DNA analysis (11), forensic geology (soil comparison) (6), forensic odontology (bite mark comparison) (6), shoe print com-parison (4), fiber comparison (2), voice comparison (1), and fin-gernail comparison (1).
In the two main categories of evidence present in the study set, serology and hair comparison testimony, this study found the following: Of the 100 cases involving serology in which transcripts were located, 57 cases, or 57%, had invalid forensic science testimony. Of the 65 cases involving microscopic hair comparison in which transcripts were located, 25 cases, or 38%, had invalid foren-sic science testimony."
[They had 13 cases with fingerprint testimony, two with questionable fingerprint testimony (Stephen Cowans and Gene Bibbins (Louisianna) .]


One of the more interesting observations
"Unfortunately, our criminal system may not be well situated to prevent unscientific testimony. The adversarial system largely failed to police the invalid testimony during these trials. Defense counsel rarely cross-examined analysts concerning invalid testimony and rarely retained experts, since courts routinely deny funding for defense experts. Prosecutors, moreover, presented errone-\ous accounts of the forensic evidence during closing arguments. In a few cases in which the defense challenged invalid forensic science, judges seldom provided relief. Courts do not typically review testimony after finding the underlying methodology reliable and permitting the forensic analyst to take the stand. As the NAS Report explained, “the legal system is ill-equipped to correct the problems of the forensic science community.”

Expanded here:
"At least in criminal cases, having found that the underlying dis-cipline is satisfactory and the evidence admissible following the Frye—or now the Daubert—standard, courts do not typically ex-amine conclusions experts reach on the stand regarding whether statistical claims or other inferences drawn from the data are sup-ported by the evidence. There is no screening of the case specific inferences and opinions before the jury hears them. Yet it is precisely while the expert testifies that, as Simon Cole puts it, “the rubber meets the road,” and the jury hears claims about the actual evidence in the case. In the few cases where the exonerees’ de-fense counsel raised objections to invalid forensic testimony, judges rarely limited it. When appellate attorneys challenged faulty forensic testimony, courts rarely granted relief, often finding any error to be harmless.
Thus, if an expert overstates the evidence or presents it in a mis-leading fashion, cross-examination is relied upon to test the evi-dence. Yet in a criminal case, the defense is typically an unarmed adversary that lacks expert assistance. Also of crucial importance, the presentation of forensic science during criminal trials is usually one-sided, provided only by analysts testifying for the prosecution. Most states do not routinely fund the provision of forensic experts for indigent defendants, though there are strong arguments that under Ake v. Oklahoma defendants should be entitled to expert assistance as a matter of due process, at least in some types of cases. As a result, courts routinely deny indigent defendants the funds to hire their own forensic experts. Almost all of the analysts testifying in the 137 exonerees’ trials worked for police laboratories; only 19 exonerees retained experts. The fact-finders in most of these cases were jurors: non-experts who could be easily misled by invalid sci-entific testimony. Prosecutors not only elicited invalid forensic tes-timony, but sometimes further misrepresented the forensic science in their closing arguments, perhaps leading the jury to draw incorrect conclusions in cases where the analyst provided proper testimony."

[Big Wullie]

L.J.Steele

Are any steps afoot to rectify these problems since their highlight here or are your Judiciary as oppressive as Scotland and prefer to cover up their wrongdoings than admit fault.

Scotland has the same problem with defence teams reluctant to query forensic evidence.

We also have the same problem with legal aid not being granted for defendants because the Crown supply copies of their forensic reports.

Almost all of the analysts testifying in the 137 exonerees’ trials worked for police laboratories

The same applies in Scotland

Unfortunately in Scotland the police are believed most of the time over the accused and by the time their evidence is within the Jury it is too late to object to it anyway.

I am looking at a case just now where the police said they were listening through a Letter Box of a door and heard three accused talking about a Rape.

CCTV footage shows that two of the accused did not enter the building till after the police stated they had heard them.

Their defence team, instead of asking for the CCTV to be produced merely just objected to the evidence as hearsay and the judge told the jury to disregard it.

(She did not mention it further in her later address to the jury which she should have done)

The CCTV footage would have shown the police tactics went far beyond gathering evidence and that they wanted these three men whatever the price.

They were found guilty and after doing their sentence in full still protest their Innocence.

Their site can be found here:

http://www.freewebs.com/ferniesidethreecampaign/

The police allowed this alleged victim to change her story Dramatically from being raped in stairs to being raped in their house but only after the CCTV footage showed (five days later) she was never near the stairs and she went to their house of her own free will.

She admitted in court to telling 56 lies

The expert said it was the worst case she had ever come across yet the Police report has logged her Injuries as Minor.

Their defence teams did not attempt to commission any report from another expert to counteract this expert despite her admitting in court she had never examined any woman who had ever had sex with three men before.

The alleged victim freely admits in her Police statement that she had had sex with three man before the alleged rape and that she was out of her face drunk.

All three have never denied sex took place by two of the males but they claimed it was consensual and the girl egged them on.

Do any experts there when giving evidence by any chance keep repeating these words "This is the worst case I have ever come across"?

Could this be a fault with experts worldwide I wonder !

[sharon cook]

[Gerald Clough]

A ridge is a ridge, or at least you do and will always be the one to decide if it really is, and can argue the toss with any other expert who says it isn't. But there are some realities to deal with. Some we can do something about. Some we can't.

We can't do too much about badly motivated or ill-informed associations with the shaky opinions that have come out of some other fields. That's going to happen, just as some will always attack police reporting and testimony as always suspect, attorneys as always willing sponsors of lies, and politicians as always dishonest. Everyone in any field pays a bit of the price for the mistakes and wrongdoings of others in the field.

What you personally may not be able to do is have the time or inclination to conduct validation and reliability studies demanded of any application of science to produce critical conclusions. You have to live with the actual state of the discipline an carry on doing what you do. On the other side, many of those who know how things are supposed to work can't themselves cause courts to rule correctly or even convince them of what that correct way should be.

EVERYONE'S goal is or should be to see all those frustrations relieved. That's coming. It really is. I wouldn't exactly say it's true just yet, but I don't think it would be wrong to stick a sign up on my bulletin board: "It's not your daddy's forensic science, any more."

[L.J.Steele]

I get awfully tired of being tarred by that slapdash brush with along with hair analysis, serology, documents analysis, tree bark analysis, and the like. The field of latent print analysis has been ridiculously error-free by any standards--it's only when someone, some ONE, screws up royally that suddenly all forensic science is shoddy and should all be thrown out. I agree completely that there should be national standards, proficiency testing, and certification for all latent print examiners.

The article is a long one, but I did not get the impression it is calling for tossing all forensics. It is pointing out a series of problems in the exoneration cases, some which include fingerprint cases. I think the authors' comments on the limitations of the adversarial system are quite valid. I've seen a few instances of unchallenged eyebrow-raising claims by fingerprint examiners on the stand (trying to age prints, explaining refusal to look for prints from rained-on surface because the rain would have destroyed any prints, offering as established fact a novel theory about the order of prints on a high-traffic surface (storm door) and there isn't a good mechanism to deal with these.

The examiners weren't IAI members, and I'm not sure how seriously IAI would take complaints from defense counsel about questionable testimony that resulted in a conviction absent evidence of the defendant's actual innocence. (Hard in non-DNA cases) I have, at times, written to the examiner and/or his/her supervisor asking questions about the testimony, generally receiving a bland "we stand by our examiner" response. No idea if anyone follows up internally. Similar problems arise with habeas and other post-conviction claims -- the claim would have to be raised through the hurdle of arguing the defense attorney was ineffective for failing to challenge the testimony AND show that that testimony resulted in an unreliable verdict. Prosecutorial misconduct claims where the prosecutor mis-stated the forensic evidence in closing tend to fail as well -- the jury is instructed that the closing arguments are not evidence and are expected to recall the testimony, not the wrong summary. Again, hard to prove the harm from the prosecutor's statements. There are issues with finding good defense experts and getting funds for them and issues with training attorneys to the point where they can spot questionable and challenge questionable claims.

Those are, legitimatetly, common problems across cases dealing with forensics and the justice system. And the system does need a better method to resolve them.