United States v. Council, 2011 U.S. Dist. LEXIS (E.D. Va. 2011)

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1 Page 1 SELECTED CASES CITING THE NAS REPORT 1 Steven D. Benjamin Betty Layne DesPortes Benjamin & DesPortes, PC Richmond, VA sdbenjamin@aol.com bldesportes@aol.com Melendez-Diaz v. Massachusetts, 129 S. Ct (2009) Nor is it evident that what respondent calls "neutral scientific 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 laboratory administrator 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 National Academy Report). And "[b]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, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency." Id., at S-17. United States v. Council, 2011 U.S. Dist. LEXIS (E.D. Va. 2011) Council's objections are not so substantial to render Dwyer's testimony inadmissible. His concerns about the emphasis he believes ACE-V places on the examiner's subjective judgment are overstated. It goes too far to argue that no objective standards dictated Dwyer's examination. To be sure, there is reason to seek out objective criteria in a field that relies heavily on examiners' trained observations. And ACE-V may allow for some marginal discretion on the part of the examiner, as is the case with all scientific or technical inquiry. 5 However, Dwyer's subjective judgments were cordoned off by objective standards shared by virtually the entire community of friction ridge analysts. See Crisp, 324 F.3d at 269. The community of friction ridge analysts applying ACE-V agrees on the characteristics relevant to a particular print's profile. Dwyer adhered to these widely accepted standards. Describing the process she undertook as "careful looking" unfairly suggests that a layperson not subject to those standards could effectively perform the same task. (Hr'g Tr. 107.) 5 For example, DNA profiling is considered the paragon of forensic inquiry. However, DNA profiling is not a mathematical exercise but rather involves a great deal of discretion and judgment. See Erin Murphy, The Art in the Science of DNA: A Layperson's Guide to the Subjectivity Inherent in 1 Selection is based purely on a subjective determination of cases offering an interesting or helpful analysis of the forensic science issues.

2 Page 2 Forensic DNA Typing, 58 Emory L.J. 489 (2008). Council's objections regarding the standards governing Dwyer's examination are also overblown considering the level of inquiry Daubert requires of the Court. Daubert requires the Court to ensure that Dwyer's examination was reliable. See509 U.S. at 589. Daubert does not, however, demand of expert testimony "such an extremely high degree of intellectual purity" that an underlying procedure must be "truly scientific in an intellectual, abstract sense" in order to be admitted. Baines, 573 F.3d at 989. Against this backdrop of controlling law, the Court is comfortable that Dwyer followed the standards that direct most other friction ridge analysts in the field. Hence, Council's remaining objections about standards governing Dwyer's examination go to the weight of Dwyer's testimony, rather than its admissibility. Additionally, Dwyer was sufficiently accountable to another expert in her examination to convince the Court of the examination's reliability. Among the factors the Supreme Court directs courts to consider under Daubert is whether an expert's method has been peer reviewed. See Daubert, 509 U.S. at As Dr. Mnookin explained, blind verification is not the same thing as peer review, which entails an expert analyzing another expert's method instead of an expert performing another expert's analysis on his own. Nonetheless, both blind verification and peer review aim to achieve independent, unvarnished oversight of an initial practitioner's analysis. Dwyer's examination of the latent print in this case did not occur in a vacuum. The VDFS instituted the policy of blind verification in 2008, well before the National Research Council recommended forensic labs adopt the practice. In this case, Childress-Sodano verified Dwyer's examination of the latent and known prints. She performed her own examination unaware of the latent print's source and Dwyer's conclusion, and came to a conclusion identical to Dwyer's. That Childress-Sodano undertook a procedure identical to the one Dwyer performed and reached an identical conclusion confirms for the Court the reliability of Dwyer's testimony. This is not to say Dr. Mnookin and the NRC report have not usefully pointed out areas in which standards governing friction ridge analysis should continue to develop. These critiques, however, are insufficiently penetrating to warrant the exclusion of Dwyer's testimony. For example, Dr. Mnookin pointed out that friction ridge analysis has not produced a generally accepted error rate. But Dwyer and Childress-Sodano stated for the Court that friction ridge analysis was susceptible to some error rate, since it is possible for a human examiner to misapply ACE-V. For her part, Dr. Mnookin confirmed the Government's assertion that harsh critics of friction ridge analysis suggest an error rate of three percent, a figure within the boundary of acceptability for purposes of admission under Rule 702. These and other objections from Council go to the weight of Dwyer's testimony and not its admissibility. As for the testing that supports Dwyer's method, the Government admitted that this factor was least helpful in establishing the reliability of Dwyer's testimony under Rule 702. Indeed, both Childress- Sodano and Dr. Mnookin recognized the need for more testing to determine the reliability of friction ridge analysis. Other courts have recognized that friction ridge analysis has "not attained the status of scientific law." Crisp, 324 F.3d at 268. See Baines, 573 F.3d at 990; Aman, 2010 U.S. Dist. LEXIS , 2010 WL , at *7-9. That being said, one of those courts has noted that the prominence of friction ridge analysis in one

3 Page 3 hundred years of criminal prosecutions has, in a sense, tested the method. As the Tenth Circuit has explained, friction ridge analysis "has been subject to testing... in the world of criminal investigation, court proceedings, and other practical applications, such as identification of victims of disasters." Baines, 573 F.3d at 990. Friction ridge analysis is subject to testing every time an examiner excludes the owner of a known print as the owner of a latent print, a result that in turn prevents an innocent individual from standing trial for a crime he did not commit. The Court would effectively disallow this manner of testing if it awarded Council the relief he seeks. United States v. Hebshie, 2010 U.S. Dist. LEXIS (D. Mass. 2010)(counsel ineffective for failing to challenge arson evidence) Notably, in 2005 Congress passed legislation calling for a review of forensic evidence. See Science, State, Justice, Commerce, and Related Agencies Appropriations Act of 2006, Pub.L. No , 119 Stat (2005). 46 Even the popular press reported on the concerns raised by forensic evidence. The Chicago Tribune ran a series of such articles in 2004, "Forensics Under the Microscope." This series included an exposé on arson evidence. Def.'s Mem.Supp Pet. Mot.New Trial Ex. D (Maurice Possley, Arson Myths Fuel Errors, Chi. Trib., Oct. 18, 2004) (document #137-5) This legislation resulted in the 2009 National Academy of Sciences Report, "Strengthening Forensic Science in the United States: A Path Forward," that questioned the reliability of forensic evidence used in courts across the country. United States v. Aman, 2010 U.S. Dist. LEXIS (E.D. Va. 2010)(fire analysis, fingerprint analysis and explosives analysis): Defendant points out that in 2009, the National Research Council of the National Academy of Sciences published a report criticizing, among other forensic fields, arson investigation. See Nat'l Research Council, Strengthening Forensic Science in the United States: A Path Forward, at 173 (2009) ("NRC Report") (noting, inter alia, that "much more research is needed on the natural variability of bum patterns and damage characteristics and how they are affected by the presence of various accelerants"). As an initial matter, the NRC Report does not recommend barring fire investigators from offering opinions in court based on the use of the NFPA 921 methodology. Moreover, while an important contribution to the evaluation of numerous forensic fields, the report does not bind federal courts. In any event, although the NRC sensibly suggests that further development of the principles and methods of fire investigation would improve the precision of such experts' findings, the NRC's critique does not change the result that, for all of the reasons already stated, the NFPA 921 methodology is sufficiently reliable to withstand Daubert scrutiny. Accordingly, Robbins' testimony is admissible under Daubert and Rule 702, Fed. R. Evid., and defendant's various concerns about the NFPA 921 methodology and Robbins' application of it are properly reserved for cross-examination, and do not justify wholesale exclusion of Robbins' testimony. See Daubert, 509

4 Page 4 U.S. at 596. The absence of a known error rate, the lack of population studies, and the involvement of examiner judgment all raise important questions about the rigorousness of friction ridge analysis. To be sure, further testing and study would likely enhance the precision and reviewability of fingerprint examiners' work, the issues defendant raises concerning the ACE-V method are appropriate topics for cross-examination, not grounds for exclusion. Defendant's most significant criticism of the ACE-V method is that the process requires the exercise of judgment. Just as with fire investigation, the fact that ACE-V involves judgment does not render the method unreliable for Daubert purposes. See United States v. Mitchell, 365 F.3d 215, 241 (3d Cir. 2004) (finding that the subjective nature of fingerprint analysis weighs against, but does not bar, its admissibility under Daubert). As the Supreme Court has recognized, an expert's methodology may be admissible even though it "requires the exercise of judgment... that might be explored on cross-examination." Melendez-Diaz v. Massachusetts, -- U.S. --, 129 S. Ct. 2527,2537, 174 L. Ed. 2d 314 (2009). A contrary rule would effectively exclude vast amounts of expert scientific testimony. Judgment is, and must be, ubiquitous in science. Indeed, experts across various fields routinely must rely on the exercise of judgment in their work, and this fact alone does not prevent them from offering reliable, admissible opinions in court. United States v. Smallwood, 2010 U.S. Dist. LEXIS (W.D. Ky. 2010)(fire analysis and toolmark comparison) United States v. Zajac, 2010 U.S. Dist. LEXIS (D. Utah 2010) During the Daubert hearing, Zajac referenced a recent study done by the National Academy of Sciences ("NAS Study"). The NAS Study found problems with current forensic science standards in many areas. 64 When discussing examination of paint and coatings evidence, however, it noted that it "requires microscopic and instrumental techniques and methods," and "follows an analytical process." 65 It further noted that "[e]xaminers involved with the analysis of paint evidence in the laboratory typically possess an extensive scientific background, because many of the methods and analyses rely heavily on chemistry." 66 In summing up its assessment, the study stated "analysis of paints and coatings is based on a solid foundation of chemistry to enable class identification." 67 While this case pertains to adhesives rather than paints, both are polymers that require microscopic examination, instrumental techniques and methods, and scientific knowledge for proper identification. Thus, the NAS Study is instructive here and lends support to the efficacy of Michaud's tests. In other words, the test for admissibility is not that Michaud had to conduct every conceivable test to determine consistency and absolute certainty. Instead, her tests had to be reliable rather than merely subjective and speculative. Michaud used four different instruments to determine consistency. While Michaud's tests may not go to the level of specificity that Zajac desires, even Whitehurst testified that the tests she performed are well-accepted and widely used. Daubert does not require a validation study on every single compound tested through these instruments. The instru-

5 Page 5 ments were designed to analyze many compounds and there is no evidence before the court that Michaud misapplied techniques or methods when she conducted her analysis. Consequently, the court concludes that the tests Michaud performed are both reliable and probative. The court further concludes that the tests were sufficient for Michaud to be able to opine on the visual, chemical, and elemental consistency between the adhesives on the Salt Lake City device and those found at Zajac's residence. Zajac also seeks to exclude Michaud's opinion that the adhesives could have come from the same source. As Michaud testified, she is not opining that the adhesives found on the bomb remnants came from the containers at Zajac's residence to the exclusion of all others. She acknowledges there likely are many containers that are consistent with the adhesives found at Zajac's residence. Because of the consistency, though, it is possible that they came from the same source. While this fact may be true, it is also possible that they could have come from different sources. Because Michaud is an expert in polymers, the jury may have a "tendency to give undue weight" to her testimony. 69 If she were permitted to opine that the adhesives could have come from the same source, there is an undue risk of prejudice that a jury will conclude they did come from the same source without fully considering that it is just as likely the adhesives came of a different source. Therefore, pursuant to Rule 403, the court concludes that Michaud may not state her final conclusion that the adhesives could have come from the same source. As stated above, Evans testified that the green lacquer on the tool found at Zajac's residence was consistent with that from a pyrotechnic fuse. This is the ultimate conclusion that Evans reached, but the court was provided with no evidence as to how Evans reached this conclusion. To determine if "an expert's testimony is reliable, the trial judge must assess the reasoning and methodology underlying the expert's opinion." 70 The government bore the burden of establishing "that the method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which satisfy Rule 702's reliability requirements." 71 Here, Evans testified in general terms about how she conducts an analysis. She uses a number of different instruments, which vary based on the type of analysis she is doing. 72 Evans testified at length about the particular instruments she used to identify double-base, blue dot smokeless powder. In contrast, she did not list one instrument or method that she used to find consistency between the green lacquer on the tool and the pyrotechnic fuse. Nor does the court have any information as to the type of consistency that she found. Hence, the court does not know if the green lacquer was visually, chemically, or elementally consistent. Consequently, the court cannot assess the reasoning and methodology underlying Evans' opinion. The court, therefore, excludes Evans' testimony that the green lacquer was consistent with the pyrotechnic fuse. United States v. Montalvo-Rangel, 2010 U.S. Dist. LEXIS (W.D. Tx. 2010)(fingerprint analysis)

6 Page 6 United States v. Willock, 696 F. Supp. 2d 536 (D. Md. 2010); Objection overruled by, in part, Objection sustained by, in partunited States v. Willock, 2010 U.S. Dist. LEXIS (D. Md. 2010)(toolmark analysis) United States v. Rose, 672 F. Supp. 2d 723 (D. Md. 2009)(fingerprint analysis) United States v. Mouzone, 696 F. Supp. 2d 536 (D. Md. 2009),motions ruled upon byunited States v. Willock, 682 F. Supp. 2d 512(D. Md. 2010)(toolmark analysis) United States v. Taylor,663 F. Supp. 2d 1170 (D. N.M. 2009), motion denied by, stay denied byunited States v. Taylor, 663 F. Supp. 2d 1157 (D.N.M. 2009) According to a recent National Academies Report, "The validity of the fundamental assumptions of uniqueness and reproducibility of firearms-related toolmarks has not yet been fully demonstrated." Ballistic Imaging, Committee to Assess the Feasibility, Accuracy, and Technical Capability of a National Ballistics Database, National Research Council of the National Academies, 3 (2008). That report went on to state, "A significant amount of research would be needed to scientifically determine the degree to which firearms-related toolmarks are unique or even to qualitatively characterize the probability of uniqueness." Id. It is important to note that the Committee that generated that report was focused on the feasibility of a national ballistics database, and the Committee was careful to point out that its report was not meant to be an overall assessment of firearms identification as a discipline. However, the Committee also recognized that the question of the feasibility of a national ballistics database was inextricably intertwined with the question of "whether a particular set of toolmarks can be shown to come from one weapon to the exclusion of all others," and thus the Committee felt compelled to point out the weaknesses in that theory. Nonetheless, the Committee went on to say, "Not withstanding this finding, we accept a minimal baseline standard regarding ballistic evidence. Although they are subject to numerous sources of variability, firearms-related toolmarks are not completely random and volatile; one can find similar marks on bullets and cartridge cases from the same gun." Id. This conclusion is supported by a variety of studies that have been referenced before this Court demonstrating that the methods underlying firearms identification can, at least to some degree, be tested and reproduced. The AFTE Theory, thus, does not provide any uniform numerical standard examiners can use to determine whether or not there is a match and, indeed, Mr. Nichols indicated in his testimony that most AFT examiners do not use any numerical standard. Instead, the AFTE theory is circular. An

7 Page 7 examiner may make an identification when there is sufficient agreement, and sufficient agreement is defined as enough agreement for an identification. See Monteiro, 407 F.Supp.2d at 370. The conclusion that there is a match between a recovered bullet and a particular gun is, therefore, necessarily a subjective one, "... held in the mind's eye of the examiner and... based largely on training and experience in observing the difference between known matching and known non-matching impression toolmarks." Monteiro, 407 F.Supp.2d at (quoting Grzybowski et al., supra, at 213). A Committee of the National Academy of Sciences acknowledged this problem in a 2009 report. "AFTE standards acknowledge that these decisions involve subjective qualitative judgments by examiners and that the accuracy of examiners' assessments is highly dependent on their skill and training." Strengthening Forensic Sciences in the United States: A Path Forward, Committee on Identifying the Needs of the Forensic Sciences Community; Committee on Applied and Theoretical Statistics, National Research Council, 5-20 (2009). The Committee went on to say that, "a fundamental problem with toolmark and firearms analysis is the lack of a precisely defined process.... AFTE has adopted a theory of identification, but it does not provide a specific protocol." Id. at At one point the Committee concluded that, "[e]ven with more training and experience using new techniques, the decision of the toolmark examiner remains a subjective decision based on unarticulated standards and no statistical foundation for estimation of error rates." Id. at Even the Government concedes that "the field continues to rely on a subjective match standard." Govt. Resp. [Doc. 313] at 20.See also Monteiro, 407 F.Supp.2d at ("[O]ne critical problem with the AFTE Theory [of toolmark identification] is the lack of objective standards.... [T]here is no generally accepted standard for distinguishing between class, subclass, and individual characteristics."); United States v. Green, 405 F.Supp.2d 104, 114 (D. Mass. 2005) ("In effect, there are no national standards to be applied to evaluate how many marks must match."); United States v. Glynn, 578 F.Supp.2d 567, 572 (S.D.N.Y. 2008) ("[B]allistics opinions are significantly subjective. Moreover, the standard defining when an examiner should declare a match - namely "sufficient agreement" - is inherently vague."). The Court therefore concludes that the firearms identification testimony is admissible under Rule 702 and Daubert. Accordingly, Mr. Nichols will be permitted to give to the jury his expert opinion that there is a match between the caliber rifle recovered from the abandoned house and the bullet believed to have killed Mr. Chunn. However, because of the limitations on the reliability of firearms identification evidence discussed above, Mr. Nichols will not be permitted to testify that his methodology allows him to reach this conclusion as a matter of scientific certainty. Mr. Nichols also will not be allowed to testify that he can conclude that there is a match to the exclusion, either practical or absolute, of all other guns. He may only testify that, in his opinion, the bullet came from the suspect rifle to within a reasonable degree of certainty in the firearms examination field. Fleming v. State, 194 Md. App. 76; 1 A.3d 572 (2010)(toolmark analysis) Commonwealth v. Heang, 458 Mass. 827; 942 N.E.2d 927 (2011)(firearms

8 Page 8 comparison and gunshot residue analysis) Commonwealth v. Gambora, 457 Mass. 715; 933 N.E.2d 50 (2010)(fingerprint analysis) Commonwealth v. Vasquez, 456 Mass. 350; 923 N.E.2d 524 (2010)(drug identification) State v. Hull, 788 N.W.2d 91 (Minn. 2010)(fingerprint and handwriting analysis) State v. McGuire, 2011 N.J. Super. LEXIS 48 (2011)(toolmark comparison) Defendant's criticism of tool mark analysis is extrapolated from commentary in a report by the National Research Council of the National Academy of Sciences titled Strengthening Forensic Science in the United States: A Path Forward (2009) ("NAS report"). The NAS report was issued in 2009, after defendant's trial. It contains some criticism of tool mark analysis, including lack of information about variances among individual tools, lack of a clearly defined process, and a limited scientific base of knowledge. Id. at 5-18 to But the NAS report does not label the discipline "junk science." It acknowledges that tool mark analysis can be helpful in identifying a class of tools, or even a particular tool, that could have left distinctive marks on an object. Id. at The report concludes that development of a precisely specified and scientifically justified testing protocol should be the goal of tool mark analysis. Ibid. Since the NAS report was issued, at least two courts have refused to exclude forensic evidence based on criticism contained in that report. See United States v. Rose, 672 F. Supp. 2d 723, 725 (D. Md. 2009) (fingerprint analysis); Johnston v. State, 27 So. 3d 11, (Fla.) (fingerprint and footwear analysis), cert. denied, U.S., 131 S. Ct. 459, 178 L. Ed. 2d 292 (2010). As noted in those cases, the purpose of the NAS report is to highlight deficiencies in a forensic field and to propose improvements to existing protocols, not to recommend against admission of evidence. See Rose, supra, 672 F. Supp. 2d at 725 (quoting Hon. Harry T. Edwards [co-chair of committee], Statement Before U.S. Senate Judiciary Committee (March 18, 2009) ("nothing in the [NAS] Report was intended to answer the 'question whether forensic evidence in a particular case is admissible under applicable law'")). State v. Ward, 364 N.C. 133; 694 S.E.2d 738 (2010)(visual inspection of pills insufficiently reliable for identification): Recently, the field of forensic science has come under acute scrutiny on a nationwide basis. When

9 Page 9 articulating the right of a criminal defendant under the Sixth Amendment of the United States Constitution to confront forensic analysts as witnesses at trial, the Supreme Court of the United States in Melendez-Diaz v. Massachusetts was quick to recognize the significance of a landmark report issued in 2009 by the National Academy of Sciences.... Relying on the National Academy Report in part, the Court commented that "[f]orensic evidence is not uniquely immune from the risk of manipulation," id. at, 129 S. Ct. at 2536, and "[s]erious deficiencies have been found in the forensic evidence used in criminal trials," id. at, 129 S. Ct. at The funding for the National Academy Report came from Congress in 2005 when it provided $ 1.5 million. H.R. Rep. No , at 121 (2005) (Conf. Rep.). As a result, a diverse committee of forensic experts, scientists, and members of the legal community, conducted several years of research and concluded that the pervasive sentiment was that "[t]he 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 Preface, at xx (Emphasis omitted). Among its many findings, the committee noted that forensic scientists "sometimes face pressure to sacrifice appropriate methodology for the sake of expediency." Id. Summary, at 24. The committee further found that "[t]here are many hard-working and conscientious people in the forensic science community, but [] under-resourcing inherently limits their ability to do their best work." Id. at 15. In arguing for the reliability of a visual inspection methodology, the State emphasizes Special Agent Allcox's professional experience and contends that "Micromedex is a well-established method that has been used by the crime lab for 35 years and is also used by doctors and pharmacists." The State submits that any shortcomings inherent to the visual identification process should be measured by the jury only when considering the weight of the evidence. We disagree. Special Agent Allcox's credentials are not disputed; he appears to be eminently qualified as an expert witness in forensic chemistry. He has worked over thirty-four years with the SBI, including twenty-four years as a forensic chemist, and he handles pharmaceuticals on nearly a daily basis. The prosecutor at trial referred to him as "supremely qualified." However, the issue here concerns the reliability of his method of proof, which is a "preliminary, foundational inquiry." Howerton, 358 N.C. at 460, 597 S.E.2d at 687. "Once the trial court has determined that the method of proof is sufficiently reliable as an area for expert testimony, the next level of inquiry is whether the witness testifying at trial is qualified as an expert to apply this method to the specific facts of the case." Goode, 341 N.C. at 529, 461 S.E.2d at 640 (emphasis added) (citing N.C. R. Evid. 702). 5 5 We note that although Special Agent Allcox's background is impressive in the field of analytical chemistry, he stated that he lacks a pharmaceutical degree or specialized training in pharmaceuticals. He testified that he holds a bachelor of science degree with a major in chemistry from North Carolina State University. While not the primary issue before us, we take this opportunity to note that "[c]aution should be exercised in assuring that the subject matter of the expert witness's testimony relates to the expertise the witness brings to the courtroom." Walker Jameson Blakey et al., North Carolina Evidence: 2010 Courtroom Manual 241 (2010). Beyond his routine use of Micromedex literature to visually identify substances, there is little indication in the record that Special Agent Allcox was better qualified to visually identify a tablet than the average juror with ordinary

10 Page 10 perceptive abilities who, if called upon, could compare a tablet to a photograph and other descriptive literature. Special Agent Allcox's remarkable credentials as a forensic chemist presents a particularly compelling need to halt his testimony when it is based on an insufficient method of proof. In State v. Grier this Court held that polygraph evidence is inadmissible at trial because of the inherent unreliability of polygraph tests. 307 N.C. 628, , 300 S.E.2d 351, (1983). As well, this Court was "disturbed by the possibility that the jury may be unduly persuaded" by the testimony of the polygraph examiner, which would likely "'be shrouded with an aura of near infallibility.'" Id. at 643, 300 S.E.2d at 360 (quoting United States v. Alexander, 526 F.2d 161, 168 (8th Cir. 1975)). This Court further noted that "'[t]o the extent that the polygraph results are accepted as unimpeachable or conclusive by jurors, despite cautionary instructions by the trial judge, the jurors' traditional responsibility to collectively ascertain the facts and adjudge guilt or innocence is preempted.'" Id. at 644, 300 S.E.2d at 360 (quoting Alexander, 526 F.2d at 168). The concern in the present context is that jurors may ascribe so much authority to such a noteworthy expert in forensic chemistry that they treat his testimony as infallible and automatically accept his opinion on the chemical composition of a substance, without properly appreciating--even with vigorous cross-examination and proper jury instructions--that the expert chemist never even performed a scientific, chemical analysis. Additionally, the length of time a method has been employed does not necessarily heighten its reliability or alleviate our concerns. The SBI's practice has been illuminated here due in part to the Supreme Court of the United States decision in Melendez-Diaz v. Massachusetts, in which the Court indicated that the Confrontation Clause of the Sixth Amendment to the United States Constitution applies to forensic analysts generating laboratory reports in criminal investigations because the reports are testimonial in nature. U.S. at, 129 S. Ct. at ; see also State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 293, (2009) (applying Melendez-Diaz to a forensic analyst's autopsy report). Forensic chemists are being called upon to testify as expert witnesses so that defendants have an opportunity for cross-examination. The practical effect of the Melendez-Diaz ruling is that through cross-examination more light is being shed on the procedures expert witnesses use to support their testimony. In some instances, when practices are illuminated "in the crucible of crossexamination," their shortcomings become apparent. See Crawford v. Washington, 541 U.S. 36, 61, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In this way, the Confrontation Clause gradually advances its "ultimate goal," which is to "ensure reliability of evidence." Id. Furthermore, the State notes that doctors and pharmacists utilize Micromedex literature in the health care industry. However, if health care professionals make mistakes there are established legal avenues of recourse for damages. The consequences at stake in a criminal prosecution make the present situation somewhat different. The reliability of an expert witness's method of proof should be addressed before a defendant is found guilty, stripped of his liberty, and serves a sentence of incarceration. Because the method of proof at issue is not sufficiently reliable for criminal prosecutions, we cannot conclude, as the State argues, that the deficiencies of Special Agent Allcox's visual identification process only affect the amount of weight the jury assigns to his testimony. Adopting that view would circumvent the fundamental issue at stake, that is, the reliability of the evidence, and would risk a greater number of false positive identifications.

11 Page 11 Molina v. State, 2011 Tenn. Crim. App. Unpub. LEXIS 258 (2011)(postconviction challenge) On appeal, the Petitioner argues that this Court, based upon a recent publication on the subject, should find fingerprint comparison evidence to be unreliable and grant him post-conviction relief. The article to which the Petitioner refers is from the National Academy of Forensic Examiners ("Strengthening Forensic Science in the United States: A Path Forward") and was published in 2009, several years after the Petitioner's October 2004 trial. Relying on Tennessee Rule of Evidence 703 and McDaniel v. CSX Transportation, Inc., 955 S.W.2d 257 (Tenn. 1997), the Petitioner now asks this Court, in light of this new report, to grant postconviction relief and hold that fingerprint comparison evidence is scientifically unreliable. Because this is an evidentiary issue, not a constitutional issue, it is not a cognizable claim for post-conviction relief. See Tenn. Code Ann ("Relief under this part shall be granted when the conviction or sentence is void or voidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States."); see also Joseph Vermeal v. State, M CCA-R3-PC, 2008 Tenn. Crim. App. LEXIS 594, 2008 WL , at *9 (Tenn. Crim. App., Nashville, July 3, 2008). People v. Melcher, 2011 Cal. App. LEXIS 7222 (2011)(No error in admission of expert testimony on toolmark and firearm identification; form of expert s testimony, even if overstating the degree of certainty, not of sufficient prejudice to affect outcome of case) People v. Price, 2011 Cal. App. Unpub. LEXIS 4016 (2011)(Trial court did not abuse discretion in excluding testimony of Simon Cole that would explain to the jury that questions may exist with respect to the identification of a suspect through the use of fingerprints. Cole s conclusion that fingerprint evidence is not reliable was based on his inability to find fingerprint validation studies, and the contents of the prepublication of the NAS report.) Jones v. United States, 2011 D.C.App. LEXIS 524 (2011)(NAS Report not persuasive that pattern evidence as firearm and toolmark identification evidence no longer generally accepted; expert s testimony of 100% certainty and absolute cer-

12 Page 12 tainty excluding all other possible firearms, if in error, was harmless). People v. Mitchell, (dissent), 2011 Ill.App. LEXIS 835 (2011)(NAS Report referenced in explanation of ACE-V). Turner v. Indiana, 2011 Ind. LEXIS 858 (2011)(NAS Report referenced in explanation of tool mark; firearm identification testimony straddles the line between testimony based on science and experience; reliability challenge was argument for fact finder; expert testimony typically less significant to a trial judge than a jury). Ex Parte Robbins, 2011 Tex.Crim.App. LEXIS 910 (2011)(dissent)(NAS Report referenced in discussion of difference between science and law; prediction of future Supreme Court holding that unreliable scientific evidence deprives defendants of fair trial and due process). United States v. Love, 2011 U.S. Dist. LEXIS (2011)(Motion to exclude testimony of fingerprint examiner on argument of unreliability of latent fingerprint analysis denied; Friction ridge analysis is not foolproof, but it is also far removed from the types of junk science that must be excluded under Rule 702, Daubert, and Kumho. ).