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Report gives new argument to exclude forensic evidence

Sylvia Hsieh//March 3, 2009

Report gives new argument to exclude forensic evidence

Sylvia Hsieh//March 3, 2009

A recent forensic science report released by the National Academy of Sciences is likely to be a new weapon for attorneys, particular criminal defense lawyers trying to exclude non-DNA forensic evidence, such as fingerprints, hair analysis, tool marks, handwriting analysis and bite marks.

The report by the Academy’s committee on science, technology and law found that forensic science labs across the country have serious deficiencies and that the reliability of many forensic techniques offered as legal evidence is lacking.

“If this were a report card, it would be mostly D’s and F’s. I would anticipate that defense counsel will be waving this report every time a forensic science discipline is offered against their client,” said Myrna Raeder, a law professor at Southwestern University in Los Angeles and co-author of a “nutshell” on evidence.

It will also be relevant in civil litigation, as many criminal cases end up as civil suits, Raeder noted.

The report said that aside from DNA analysis, no forensic method has been rigorously shown to, consistently and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.

“One could really look at this report as pointing out a scandal. That’s why the tone of the report is so strong,” said David L. Faigman, a professor at Hastings College of Law in San Francisco and the author of several books including “Legal Alchemy: The Use and Misuse of Science in the Law.”

One of the report’s authors, Harry T. Edwards, judge emeritus of the D.C. Circuit, said that although the absence of validity and reliability of certain forensic methodologies is not a new finding, this report is the first time the issues have been brought to the forefront in such detail.


Expect challenges

The report makes it easier for lawyers to challenge forensic identification methods, including ballistics, footprints, hair, handwriting, tool marks, bite marks and other methods that rely on patterns.

Criminal defense attorneys “have no excuses now for not challenging – and challenging aggressively – any kind of forensic science claiming to place a client at the scene of a crime, with the exception of DNA evidence,” said Marvin E. Schechter, a criminal defense attorney in New York.

He added that prosecutors “may think twice before putting on forensic evidence.”

However, judges are not likely to exclude forensic evidence wholesale, experts predict. “If the defense bar uses the report more as a rapier than as a broad-brush attack, they have much more likelihood of success,” said Raeder.

In addition to the underlying theories of forensic evidence, the report contends that there are problems with forensic evidence technicians not being certified and labs not being accredited, as well as problems with high error rates.

Raeder said she predicts courts will also look at these issues in evaluating forensic evidence. She also expects judges will be more willing to limit the kinds of testimony that forensic experts give.

Faigman said judges are likely to strike a middle ground by, for example, allowing a forensic expert to testify about similarities between bite marks and an individual’s dental records, or ballistics and the defendant’s gun, but stop short of concluding that the evidence “matches” an individual.

What a judge will allow will depend on the type of forensics involved. For example, non-DNA hair analysis is “fairly overwhelmingly unreliable,” Faigman said, whereas the reliability of latent fingerprint analysis depends on how many bits of information are available. Kent Cattani, chief counsel of capital litigation and criminal appeals for Arizona’s Office of the Attorney General, agreed that defense attorneys will cite to the report. The impact, he predicted, will be to increase the number of experts required in cases involving forensic evidence.

Faigman said he expects to see habeas petitions to open up old cases, although it isn’t easy to prove that a case would have turned out differently without the forensic evidence.


Changes to look for

The report also makes a number of recommendations, the most controversial of which is the creation of an independent agency to oversee and enforce standards in the profession.

“We are not saying that a federal statute would take over all state rules,” said Edwards. “The feds would say, ‘We will support you so long as you meet these minimum standards.’ ”

Other recommendations include mandatory accreditation of labs, certification of professionals and consistent protocols, as well as standards for forensic experts’ testimony, said Edwards.

Currently, “[t]here are no uniform standards and there is no mandatory certification of who can show up in court and present themselves as an expert,” said Constantine Gatsonis, a professor of medical science and director of the Center for Statistical Sciences at Brown University, who co-authored the report.

The report also suggested that forensic labs be independent of law enforcement to shield them from potential bias.

But Barry Fisher, director of the Los Angeles County Crime Lab, contends that this would not be economically feasible.

“Running a crime lab is an expensive proposition, and many labs are seriously underfunded and don’t have the resources to do the job in a timely fashion,” he said, noting that his lab is funded by the local sheriff’s department.

Fisher added that although he does not expect police agencies to give up their crime labs, he could see them establishing a “firewall” between law enforcement and the forensics lab.

This could be accomplished by using double blind review, said Faigman. “If you have … a bite mark, you could have a forensic examiner on the scene and at the autopsy, but at some point there [would have] to be some statement about who is the perpetrator of that bite mark,” he said. “That could be sent out to an independent investigator.”

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