Professor Jules Epstein

Transcription

1 Professor Jules Epstein

2

3

4

5 An earprint was found at a burglary scene. Will you permit an expert to say it matches the defendant s ear and no other person s ear?

6 Q: Do you have an opinion as to the probability that the defendant's left ear is the source of the latent impression which was left at the scene of the crime in this case? A: I do have an opinion, yes.

7 A: I think it's probable that it's the defendant's ear is the one that was found on the scene I'm 100 percent confident with that opinion.

8 What does that mean? Is that science? Are we dissecting words?

9

10 Definition of MATCH a : a person or thing equal or similar to another b : one able to cope with another c : an exact counterpart

11 Relating to, used in, or appropriate for courts of law or for public discussion or argumentation. The public forum

12 We solve many crimes with forensics Important clues Important proof We have errors in forensics

13 Science, Then Forensics Police Work, Then(?) Science

14 Malfeasance Drylabbing

15 I can determine if bullets came from the same box of ammunition Class Characteristic Evidence Overstating Findings/ Creating Statistics

16 Science Later Proved Wrong Practitioner Error

17 Professor Brandon Garrett Forensic Testimony in Exoneration Cases Invalid testimony denotes a conclusion not supported by empirical data.

18 Two basic types of invalid science testimony occurred in these cases: (1) the misuse of empirical population data, and (2) conclusions regarding the probative value of evidence that were unsupported by empirical data.

19

20

21 Daoud record print Mayfield record print Ouhnane Daoud Madrid latent Brandon Mayfield

22

23 With the exception of DNA, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.

24 The simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity.

25

26 The forensic science system exhibits serious shortcomings in capacity and quality; courts continue to rely on forensic evidence without fully understanding and addressing the limitations

27 In a number of disciplines, forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions, and the courts have been utterly ineffective in addressing this problem.

28

29 Let it in!

30 United States v. Watkins, 2011 U.S. App. LEXIS (6th Cir. Ohio 2011): challenge to admitting latent experts at all; even though expert said that ACE-V = 100% accuracy

31 United States v. Council, 777 F. Supp. 2d 1006 (E.D. Va. 2011)

32

33 testimony to the effect that a latent print matches, or is 'individualized' to, a known print, if it is to be offered, should be presented as an opinion, not a fact, and opinions expressing absolute certainty about, or the infallibility of, an 'individualization' of a print should be avoided.'" Commonwealth v. Joyner, 467 Mass. 176, 181 (Mass. 2014)

34 various critiques that defendant highlights from the NRC Report go to the weight of the evidence, not to its admissibility under Frye. the forum for these criticisms is trial, People v. Luna, 2013 IL App (1st) , P70 (Ill. App. Ct. 1st Dist. 2013)

35 Handwriting analysis satisfies Frye. NRC report does not change general acceptance. Allows individualization testimony. ***Defense expert = law professor [deemed not part of the community ] Pettus v. United States, 2012 D.C. App. LEXIS 22

36 Harrison's testimony meets Fed.R.Evid. 702's requirements to the extent that she restricts her testimony to similarities or dissimilarities between the known exemplars and the robbery note.

37 Almeciga v. Ctr. for Investigative Reporting, Inc., 2016 U.S. Dist. LEXIS (S.D.N.Y. May 6, 2016) Calls science into doubt Focuses on error rate and risk of biasing

38 [S]he may not render an ultimate conclusion on who penned the unknown writing. United States v. Hines, 55 F. Supp. 2d 62, (D. Mass. 1999)

39 Let it in mostly

40 Anatomy of the barrel of a Rifled weapon Broach Photos from FirearmsID.com Button

41 Lands in the gun-barrel become grooves on the bullet

42 I recommend: (1) Sgt. Ensor not be allowed to opine that it is a "practical impossibility" for any other firearm to have fired the cartridges

43 (2) That Sgt. Ensor state his opinions and bases without any characterization as to degree of certainty (whether "more likely than not" or "to a reasonable degree of ballistic certainty");

44 (3), if you disagree with Recommendation No. 2, that Sgt. Ensor only be allowed to express his opinions "more likely than not";

45 (4) Alternatively that Sgt. Ensor only be allowed to express his opinions "to a reasonable degree of ballistic or technical certainty" (or any other version of that standard).

46 United States v. Mouzone, 2009 U.S. Dist. LEXIS , (D. Md. Oct. 29, 2009)

47 the admission of [ballistics matching testimony] without a foundational Kelly prong-one hearing, did not constituted violation of his due process rights. Melcher v. Holland, 2014 U.S. Dist. LEXIS 591, (N.D. Cal. Jan. 3, 2014)

48

49 before trial, examiner must adequately document the findings or observations measurements, notes, sketches, or photographs, shall be provided in discovery,

50 Before offering an opinion, explain how toolmark comparison works *** The lack of a firm scientific basis proving the uniqueness of individual characteristic toolmarks is a proper subject for both direct examination and cross-examination.

51 May conclude that particular firearm fired a projectile or cartridge casing Limit conclusion to a reasonable degree of ballistics certainty.

52 Strong preference for visuals so jury can see what the expert saw Commonwealth v. Pytou Heang, 942 N.E.2d 927, (Mass. 2011)

53 there is only one permissible answer regarding firearms and toolmark examiners' assertions of certainty in their pattern-matching conclusions: the District of Columbia courts should not allow them. Williams v. United States, 2016 D.C. App. LEXIS 6, *24 (D.C. Jan. 21, 2016) NOTE ALSO CRAWFORD CONCERN RE VERIFICATION SIGNED BY ANOTHER EXAMINER

54 in this jurisdiction a firearms and toolmark expert may not give an unqualified opinion, or testify with absolute or 100% certainty, That a fatal shot was fired from one firearm, to the exclusion of all other firearms Gardner v. United States, 2016 D.C. App. LEXIS 202, *25 (D.C. June 23, 2016)

55 The proffered testimony was that the methods generally used in conventional toolmark analysis fall short of scientific standards State v. Romero, 2016 Ariz. LEXIS 32, *7-8, 730 Ariz. Adv. Rep. 4 (Ariz. Jan. 20, 2016) the Court find[s] that handwriting analysis in general is unlikely to meet the admissibility requirements of Federal Rule of Evidence 702 Almeciga v. Center for Investigative Reporting, et al., 15- cv-4319 (SDNY 5/6/16)

56 Going Beyond The Science Based on physical exam and the defendant s confession this was a homicide

57 when a medical examiner bases his or her opinion of cause or manner of death largely on witness statements or information obtained through police investigation, such opinions would ordinarily be inadmissible State v. Tyler, 2015 Iowa Sup. LEXIS 79, *55, 867 N.W.2d 136 (Iowa 2015)

58

59

60 Context female Context male Decision female 100% 38%

61 Do they match? Context 1 Context 2 He confessed to the crime Someone else confessed to it An eye witness identified him The detective knows he is guilty Someone else was identified The detective thinks it is not him

62 In 4 of the 24 examinations that included contextual manipulation, the examiners changed their outcomes.

63 MISLEADING SCENARIO 20 % ERROR on rigid surfaces 30% ERROR on fabric surfaces NEUTRAL SCENARIO 11% ERROR on rigid surfaces 26% ERROR on fabric surfaces

64

65 When 17 North American expert DNA examiners were asked for their interpretation of data from an adjudicated criminal case in that jurisdiction, they produced inconsistent interpretations.

66 The DNA analysts who concluded that the suspect cannot be excluded within the biasing context of the criminal case, are in sharp contrast to the vast majority of examiners who examined the same evidence without this biasing context.

67 The Forensic Science Regulator ensures that the provision of forensic science services across the criminal justice system is subject to an appropriate regime of scientific quality standards.

68

69 Since 2009, fewer than 126 cases even mention the NAS Report

70 In his opinion, the marks at the wig shop were made by the pry bar in question. Bergeron did not use phrasing overemphasizing his certainty.

71 According to a 2009 forensic science report from the National Research Council of the National Academies, toolmark analysis lacks the empirical and statistical work that is needed to support conclusions regarding identity.

72 I believe there are serious questions about whether such evidence has an adequate scientific foundation to allow its admission under MRE 702.

73 I concur in this Court's order denying leave to appeal, however, because this issue is unpreserved People v. McAdoo, 2015 Mich. LEXIS 547, 2 (Mich. Mar. 6, 2015)

74 Misreading lab reports The trial closing: Since his DNA was the major contributor, he wore it more recently. WRONG

75 What happens when science admits its limits years after a conviction?

76 Trial in 1995: Peele testified that the composition of elements in the molten lead of a bullet fragment found in Kulbicki s truck matched the composition of lead in a bullet fragment removed from the victim s brain;

77 a similarity of the sort one would expect if examining two pieces of the same bullet. a bullet taken from Kulbicki s gun was not an exac[t] match to the bullet fragments, but was similar enough that the two bullets likely came from the same package.

78 11 years after his conviction, CBLA had fallen out of favor. Translated: The NRC expressed concerns, however, relating to the interpretation of the results of bullet lead examinations.

79 a report coauthored by [this expert] in 1991 One of the many findings of the report was that the composition of lead in some bullets was the same as that of lead in other bullets packaged many months later in a separate box

80 Had Kulbicki's attorneys investigated and discovered the 1991 Peele Report, they would have had a potent challenge to Agent Peele's conclusion Kulbicki v. State, 99 A.3d 730, 741(Md. 2014) Counsel did not perform deficiently by dedicating their time and focus to elements of the defense that did not involve poking methodological holes in a thenuncontroversial mode of ballistics analysis. Maryland v. Kulbicki, 2015 U.S. LEXIS 4693, *5 (U.S. Oct. 5, 2015)

81 Was there a curriculum vitae? No mention of a duty of a lawyer to read up on the discipline (at least as long as it s currently accepted) Here s what Maryland wrote: "[f]ailure to investigate the forensic evidence is not what a competent lawyer would do.

82 We recommend; Attorney General may adopt Education Discovery Inconsistent Terminology Root Cause Analysis Universal Accreditation Ensuring That Forensic Analysis is Based Upon Task-Relevant Information

83 Summarize the Commission s work Discuss ideas to maximize in litigation

84 Accreditation and Proficiency Testing Subcommittee Human Factors Subcommittee Interim Solutions Subcommittee Medicolegal Death Investigation Subcommittee Reporting and Testimony Subcommittee Scientific Inquiry and Research Subcommittee

85

86

87 forego use of these phrases when presenting forensic discipline testimony unless directly required; and assert the legal position that such terminology is not required and is indeed misleading. What do those words mean?

88 Records should be created during the examination and during the technical review that would allow another analyst or scientist to understand and evaluate all the work performed and to independently analyze and interpret the data and draw conclusions. Maintain a record where it s all kept Note that in the report Make SOPs and definitions available

89 the adversary party should be provided with access to the underlying items examined (if reasonably available) as well as with detailed information about the kinds of analyses conducted and methods used to evaluate those items; the testing conducted on those items; AND

90 the observations made; the opinions, interpretations, and conclusions reached; and the bases for those observations, opinions, interpretations, and conclusions.

91 the forensic science community should endeavor to make terminology more consistent within a particular discipline and across disciplines.

92 Modify U.S. Attorney practice to match civil Rule 26 discovery No vouching by judge for experts Report Content

93 The U.S. Attorney General should collaborate with FSSPs and FSMPs as well as experts in the field of Root Cause Analysis to establish guidelines

94 Once a report is issued and the adjudicative process has commenced, communicate fully when requested with the parties through their investigators, attorneys, and experts, except when instructed that a legal privilege, protective order or law prevents disclosure

95 Forensic scientists should rely solely on taskrelevant information when performing forensic analyses.

96 Forensic laboratories should take appropriate steps to avoid exposing analysts to taskirrelevant information through the use of context management procedures.

97 AAAS will fill this void by conducting a quality and gap analysis of ten forensic disciplines

98

99 FOR LATENTS: Drop zero error rate, to the exclusion of all others Keep identification

100 TIRES and FOOTPRINT Allow an identification when there are class characteristic parallels and one random characteristic.