CLPEX Chat Board

One can get the transcripts online, I'm mislaid the link, this a.m., but I'll look again after more coffee.

My guess from reading it, is that the Court is going to overturn Mass and suggest the California model where the examiner comes in unless prosecution and defense agree to waive (which is allegedly common).

Transcripts are here:
http://www.supremecourtus.gov/oral_argu ... 07-591.pdf

Someone asked me about Crawford. As I gather the question is whether these certificates of whether a substance is a narcotic and the amount, or whether a firearms works, are testimonial under Crawford or are a counterpart to a business record which may be admissible without live testimony.

Hi Ernie

I guess I have never worked in a state where my report could be introduced without my testimony. Is it common in some places that the report is considered "proof" of drugs, of intoxication, of presence, etc., without the drug analyst, blood alcohol analyst, fingerprint analyst, etc., actually testifying? Honestly, I thought that unless the defense stipulated to the evidence, we had to testify in order for our evidence to go before the court.

Here is the .pdf of the decisoin:

http://www.clpex.com/Information/USSC-Melendez-Diaz.pdf

This is mostly disruptive to the Controlled Substance and Toxicology sections of laboratories in some states that have moved toward having their reports read into the record in place of live testimony.

-Kasey

I believe that the importance of this Supreme Court decision (but I am no lawyer... so, hopefully our expert, Lisa Steele, will help here...) is that it cites the National Academy of Sciences report. Whether you hate or like the NAS report (or a bit of both...), the fact that the Supreme Court is citing it, means that we are more likely to see other courts across the US citing it.

Itiel

Here are a few situations where this might have a huge effect on fingerprint units.

I've seen some labs that have a 'Testimony Team'. In these situations, regardless of who the subpoena is sent to, the agency sends someone from the testimony team to present the evidence.

One reason these labs do this is so they don't have to train everyone to testify, they just have to make sure that a few people are kept updated on current issues that might come up in court.

Another reason an agency might do this is because their staff works different shifts and it's hard to schedule a graveyard person to testify when the dates and times aren't firm. Someone could be on call for court for several days.

I've also seen where no testimony team exists but the supervisor chooses to send an examiner to testify because the supervisor feels that one person may be better than another (for a variety of reasons). In this situation the examiner is told to inform the courts that the examiner isn’t available.

I’m guessing that this ruling may be important to labs that currently have these kinds of procedures.

Other news citations at:

NPR - Morning Edition - ‎Jun 26, 2009‎
3 High Court Rulings Change Legal Landscape
http://www.npr.org/templates/story/stor ... =105950470

Los Angeles Times - ‎Jun 25, 2009‎
Defendant can cross-examine forensic experts, Supreme Court rules
http://www.latimes.com/news/nationworld ... 3455.story

Boston Globe - June 26, 2009
Accused win right to query forensics
http://www.boston.com/news/local/massac ... ourt_rules

Christian Science Monitor - June 25, 2009
Supreme Court says criminal defendants can challenge forensic experts
http://www.csmonitor.com/2009/0625/p02s21-usju.html

USA Today - June 25, 2009
High court rules forensic analysts must appear
http://www.usatoday.com/news/washington ... nsic_N.htm

Science in the Headlines - June 26, 2009
Supreme Court Opinion Cites NAS Forensic Science Report
http://www.nationalacademies.org/headli ... 0626b.html

The Associated Press - ‎Jun 25, 2009‎
Summary of actions by the Supreme Court
http://www.google.com/hostednews/ap/art ... gD991VL1O1

Reuters - ‎Jun 25, 2009‎
Top court requires lab analyst testimony
http://www.reuters.com/article/domestic ... 8G20090625

And there are other lesser-known sources that picked it up within those 48 hours... and there will undoubtedly be many more in these next 48 hours.

-Kasey

Retirement is better and better with each passing day!!!

Ernie Hamm wrote:Retirement is better and better with each passing day!!!

Truer words were never spoken, Ernie. I always thought I was making good career moves when I would change jobs. But now that I look back, the folks I started this business with began retiring in 1993. My earliest minimum retirement date now will come when I'm 67 and "full retirement" will come when I'm 83. My advice to the kids nowadays is that a "good career move" when you are in your 20's might be a wise thing, but by the time you hit 40, you should think very long and very hard before you jump at a better position. The grass may look greener, but it seldom is.

Michele Said

I've seen some labs that have a 'Testimony Team'. In these situations, regardless of who the subpoena is sent to, the agency sends someone from the testimony team to present the evidence.

One reason these labs do this is so they don't have to train everyone to testify, they just have to make sure that a few people are kept updated on current issues that might come up in court.

Another reason an agency might do this is because their staff works different shifts and it's hard to schedule a graveyard person to testify when the dates and times aren't firm. Someone could be on call for court for several days.

I've also seen where no testimony team exists but the supervisor chooses to send an examiner to testify because the supervisor feels that one person may be better than another (for a variety of reasons). In this situation the examiner is told to inform the courts that the examiner isn’t available.

WOW a testimony team-----I have never heard of that before. How do they get around testifying to the examination of the evidence UNLESS they re-examine the evidence and generate a second report. I have done that on several occasions where the original LPE is no longer available for this reason or another-----but to have a team just to testify on others work is just WILD.

Reminds me of the State Lab back in the 60 and 70’s where the work was performed by a LPE but the report was signed by the supervisor. When the supervisor got the subpoena they would look up who did the work and send them to testify which created some confusion with prosecutors when the person who reported to them to testify was not the person who signed the report. After a series of appeals and that the lab was moving towards accreditation they abandoned that procedure and the reports were signed by the person doing the work-----as it should be.

Just when you think you have seen a sample of each and every system, someone figures out a different wrinkle.

Not too long ago someone told me about how some agencies perform what was described as “Hit and Quit”. Something I would never consider but apparently several agencies will make a single ID on a case and write it up without looking or comparing the other latent prints in the case. Report the one hit and move on.

Hit and Quit----crazy, simply crazy-----a way to work through cases fast I would imagine.

Are there any agencies that would own up to doing ‘Hit and Quit’ examinations?

Hi Charles

The lab in which I work gives the examiner the option of "one ident, exam discontinued,"mostly for large drug cases. The policy is not to "quit," but to discontinue the exam with the final sentence of the report advising that the officer may contact the latent print examiner if more comparisons are needed. The large drug cases sometimes included twenty or thirty or more large bales of marijuana. To develop and compare and verify and report on sometimes hundreds of latent prints has been deemed unnecessary when one identification links the suspect to the case. Otherwise, we could spend weeks on a single case while ten more equally large cases are coming in.

You may play the "Yes, but what if . . . " game, and there are all kinds of exceptions. More than one suspect, at least one ident per suspect. More than one type of evidence, at least one ident per type (marijuana, cocaine, etc.) This is a common sense option we can exercise to simply avoid wasting days and weeks on a case that, in all probability, will never go to trial anyway. In the rare case that one of these cases does not plea readily, the officer or the prosecutor always have the right to simply phone and ask that more work be done. But that almost never happens.

We don't "hit and quit" on persons crimes, or in cases when the officer requests everything be done, or in cases in which there are dozens of different, small pieces of evidence -- only in non-persons crimes in which there are numerous large, similar items. But the officers and the prosecutors alike prefer the idea of getting more cases done to being "thorough and complete" on a drug case in which a single ident almost always gets the plea.

Hi Pat,

Now what you have described I would consider that a ‘Preliminary’ examination. The way ‘Hit and Quit’ was described to me was that a few agencies do that type of examination on the majority of their latent cases.

But now you have me thinking about it----I guess we do ‘Hit and Quit’ as well, only we call them ‘Preliminary’ examinations. It is interesting to me that two LPE can be talking about the same thing but one title has a little negative connotation while a different title is not so negative.

We do ‘Prelims’ [hit and quit] only on those examinations that are generated from AFIS and we never do them from Detective Requests and we do not have the large drug cases that a state lab would have [we send ours to the state]. The ‘Prelims’ are done in situations such as a reverse [TLI] search and it comes back to the victim, officer, or someone associated with the scene or evidence. They are not done on ‘viable candidate(s)’ with ‘probative’ weight generated AFIS returns [our new required terminology].

We can do ‘Prelims’ on crimes against persons but only if the investigator agrees or the supervisor approves.

So to answer my own question, I guess my agency does ‘Hit and Quit’ as well but not many. I may do 8-9 a year. I could do more, but if I only have three latent prints I might as well do them all. Generally ‘Prelims’ will have 30 plus latent prints.

I certainly agree that doing ‘Preliminary’ examinations on drug cases that have 100 plus latent print(s) is a very smart management tool. The argument of ‘what if’ has always been a pretty thin argument with me.

Charles Parker wrote:WOW a testimony team-----I have never heard of that before. How do they get around testifying to the examination of the evidence UNLESS they re-examine the evidence and generate a second report. I have done that on several occasions where the original LPE is no longer available for this reason or another-----but to have a team just to testify on others work is just WILD.

That's pretty much the point of more than one ruling. Some of them came up because some states codified the idea a lab report being a sort of business records affidavit. You can play pretty loose and free with "business records" in civil cases, but it's been running into confrontation clause problems in criminal. And there's the recent state case remanding the conviction from trial where the examiner was there but couldn't say how he came to his conclusion, which kind of amounts to the same thing, since anyone could have just presented his report.

Not too long ago someone told me about how some agencies perform what was described as “Hit and Quit”. Something I would never consider but apparently several agencies will make a single ID on a case and write it up without looking or comparing the other latent prints in the case. Report the one hit and move on.

Well, serology (state) does essentially that with DNA in sexual assault. If they hit a viable suspect at some point, they quit. They will do the rest on request, if it's going to trial, and it's not unusual to get more hits, which has been valuable, as it was on one of mine where it was an ex-boyfriend who had been ID'd off undergarments. Hitting him off a breast swab helped close off a defense argument. But it probably dragged the case out longer, since he didn't plead until those results were known, months after negotiations began. Of course, you're not going to get any credits to offset your expenses on account of a somewhat abstract saving of another part of the system time and money.

Practical balance always has to be done, although no one else in the business gets a pass on account of coming off a night shift or it being their day off. But, confrontation type legal issues aside, the most offensive thing related in this discussion was, unless I read it wrong, the observation that some supervisors will send a examiner thought to be better at testifying and instruct them to lie to the court about the other examiner being unavailable. And that includes manipulating assignments, vacation, etc. to make them "unavailable." Sorry, folks. That's crooked.

Itiel: What I question is the N.A.S. Report being "cited" at all. Seems to me that's as inappropriate (and lazy) as citing an encyclopedia. How do you credibly cite something that is exactly that, a compilation, not an authority. I guess if you're the Court, you can make your own rules. It would get your paper sent back if you tried to do that for a journal.

Dr. Dror wrote:I believe that the importance of this Supreme Court decision * * * is that it cites the National Academy of Sciences report. Whether you hate or like the NAS report (or a bit of both...), the fact that the Supreme Court is citing it, means that we are more likely to see other courts across the US citing it.

Certainly it is going to boost the profile of the report when it is raised by either side in a motion or cross-examination.

The Court says:

Nor is it evident that what respondent calls “neutralscientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratoryadministrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) (hereinafter NationalAcademy Report). And “ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, theysometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” Id., at S–17. A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.

Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced to confront the defendant, post, at 10, the same cannot be said of the fraudulent analyst. See Brief for National Innocence Network as Amicus Curiae 15–17 (discussing cases of documented “drylabbing” where forensic analystsreport results of tests that were never performed); National Academy Report 1–8 to 1–10 (discussing documented cases of fraud and error involving the use of forensic evidence). Like the eyewitness who has fabricated hisaccount to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. See Coy v. Iowa, 487 U. S. 1012, 1019 (1988). And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.

Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that “[t]he legal community now concedes, with varyingdegrees of urgency, that our system produces erroneousconvictions based on discredited forensics.” Metzger,Cheating the Constitution, 59 Vand. L. Rev. 475, 491(2006). One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases. Garrett & Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions,95 Va. L. Rev. 1, 14 (2009). And the National Academy Report concluded:
“The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country.” National Academy Report P–1 (emphasis in original).6

[fn6]Contrary to the dissent’s suggestion, post, at 23, we do not “rel[y] insuch great measure” on the deficiencies of crime-lab analysts shown bythis report to resolve the constitutional question presented in this case.The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Teresa.We discuss the report only to refute the suggestion that this category of evidence is uniquely reliable and that cross-examination of the analysts would be an empty formalism. [end fn]

Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination.
* * *
The same is true of many of the other types of forensic evidence commonly used in criminal prosecutions. “[T]here is wide variability across forensic science disciplines with regard to techniques, methodologies, reliability, types and numbers of potential errors, research, general acceptability, and published material.” National Academy Report S–5. See also id., at 5–9, 5–12, 5–17, 5– 21 (discussing problems of subjectivity, bias, and unreliability of common forensic tests such as latent fingerprint analysis, pattern/impression analysis, and toolmark and firearms analysis).
* * *
Finally, respondent asks us to relax the requirements of the Confrontation Clause to accommodate the “‘necessities of trial and the adversary process.’” Brief for Respondent
59. It is not clear whence we would derive the authority todo so. The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.

There's some very interesting stuff in there from the defense PoV -- a high profile recognitition of lab scandals and fraud, a high profile recognition of the subjective aspects of many tests and concerns about bias, and a reminder that the criminal justice system is about more than efficiency and cost-control.

It is too early to tell how this is going to play out -- I expect a spate of defense attorney insisting on live witnesses, courts making the necessary arrangements to accomodate busy examiners, and, after a few experiences with live witnesses being more memorable and damaging than a piece of paper, going back to waiving the witness in the bulk of trials.

[quote="Gerald CloughWhat I question is the N.A.S. Report being "cited" at all. Seems to me that's as inappropriate (and lazy) as citing an encyclopedia. How do you credibly cite something that is exactly that, a compilation, not an authority. I guess if you're the Court, you can make your own rules. It would get your paper sent back if you tried to do that for a journal.[/quote]

Courts cite secondary authorities all the time -- the Court here also cites to a couple of law review articles which compile cases and studies. Interested parties are expected to look at the underlying sources, and their sources, as needed. (My own tendency in briefing is, when space permits, to give both, a representative sample of underlying authorities and a "see generally" cite to law reviews or other works discussing them.)