Defending in a New Era of Forensics

Transcription

1 Defending in a New Era of Forensics Memphis, TN, December 13, 2012 Anthony S. Haughton Associate Director ECI-TMSL (713) ASHaughton@tmslaw.tsu.edu

2 Sinking feeling Dallas Sheetrock Case, January 2002, Original 18 defendants were charged with possessing more than 700 lbs of cocaine Many pled guilty One attorney Christine Barbare believed her client kind of Had drugs tested ground up sheetrock After review more than 80 convictions tossed out See:

3 DNA cases

4 Tennessee IP Cases 2 DNA cases Lawrence Mckinney Clark McMillan

5 Forensic? Yes, but is it really science? Most Forensic Sciences are rooted in eyeball comparisons based on little more than subjective opinions of the range of similarity between two objects

6 Todd Willingham case Documentary: Incendiary Book: The Skeptical Juror

7 TW ctd

8 Facts of case December 1991 two fire investigators in Corsicana, Tex., found evidence of arson that led to the arrest, trial, and execution of Cameron Todd Willingham in Prosecution theories: kids had been severely abused and were in the way of bowling night Arson investigator fire burned fast and hot = accelerant (charcoal fluid) = arson Snitch too Offered a life sentence in exchange for a guilty plea 13 Years later, a nationally recognized expert (Gerald Hurst) examined the trial, that evidence was largely debunked. (Even Texas standards had changed, suggesting that the forensic findings in the case were based more on folklore than on science.) Yet the state judicial system and oversight panels did not accept those new conclusions.

9 TX - - FSC Chicago Tribune / NY IP no valid evidence Set up to review state of forensic sciences in TX Hosted by Williamson Co. DA Bradley Ended with report on Oct, 31, 2011 Found irregularities in Willingham case

10 Step 1 Hire an Expert Hire an Expert consulting / testifying ABA NACDL Innocence Project John J. Lentini / Simon Cole Remember we have an underlying responsibility to find, develop and present favorable evidence

11 Step 2 discovery Engage in aggressive Discovery If you don t do discovery? May only get a report Usually short / conclusive / little useful information beyond findings Report filled with jargon/technical scientific terms Nothing about the shortcomings of the science, let alone the basis of the opinions in your case

12 Discovery Requests In writing and should cite: 1. Rule 16 of the Tennessee Rules of Criminal Procedure provides what the Government has to provide: The Defendant's Oral Statement. Defendant's Written or Recorded Statement. The Codefendants Discovery. Defendant's Prior Record. Certain Documents and Objects Reports of Examinations and Tests. Applicable Case law Applicable Constitutional Provisions: 5 th and 6 th Amendments Brady Request

13 A rose by any other name Think outside of the box 1) boilerplate motion for discovery; 2) motion for discovery and preservation of specific evidence; 3) motion requesting prosecution to file a list of physical evidence; 4) motion for duplicate photographs; 5) motion for discovery and preservation of specific canine evidence relating to canine search; 6) specific motion for exculpatory and mitigating evidence (Brady material); 7) request for notice of state s intention to use certified copies of official documents or business records; 8) comprehensive request for notice of state s intention to introduce evidence under rules of evidence and criminal procedure; 9) motion to list state s witnesses [all persons contacted]; 10) motion for discovery of criminal records of all state s witnesses; 11) motion to produce witness statements; 12) motion to require police / arson investigators to maintain personal notes; 13) motion requesting disclosure of expert witnesses; 14) designation of expert witness; 15) motion for voir dire of expert witness and for pretrial ruling on admissibility of expert testimony; 16) motion for approval of expert witness funds, motion for independent forensic testing; motion banks / forms which includes PDS

14 use ABA stds for Crim J sec 4.1 it is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and the degree of guilt or penalty. The failure to investigate, develop and use evidence is iac e.g Dugas v. Coplan, 428 F.3d 317, 328 (1 st Cir. 2005) (iac where counsel inspected scene himself, interviewed state s experts, read up on arson, spoke with other defense counsel still failed to adequately investigate an available no arson defense).

15 It is not enough To hire an expert Must be qualified Supervised Part of defense theory pick a theory ask for a hearing properly present expert

16 What you want to get: The Five P s Production of Materials Preservation of Materials Process Information Procedures Information Personnel and Lab Materials

17 Step 3 learning the area / science The following 14 slides give an overview of where arson investigation is now, where it was, and some red flags to look for in your reports

18 2010 NAS Report 2 year report released Feb 18, 2009, the National Academy of Sciences (NAS) report, Strengthening Forensic Science in the United States: A path forward. available at:

19 Historical / Anecdotal Fire Investigation Apprenticeship model no formal education required 2000 Survey of Fire Investigators (NCFS- TWGFEX) 67 % no college degree 23 % had a general degree 10 % had a science or related degree (1400 questionnaires repondees) Changes coming since 1960 Up until 1990 s most training and guidance was anecdotal Still no formal requirement across the country

20 Anecdotal Fire Investigation Aim to bring arsonists to justice and to determine the causes of accidental fires (criminal and civil origins) Witness accounts Trace evidence Gasoline cans Burn patterns (burn pattern analysis) Interpretations of burn artifacts Alligator-like appearance of wood char Spalling of concrete Crazed crackling glass Collapse or annealing of steel springs Flammable liquid pour patterns Hot and fast fires Unusual low level burning

21 Evidence of Arson? Crazed glass Spalled concrete Alligator Wood Annealled steel

22 The Science of Arson investigation How it works in a typical fire - - using metal indicators, Aluminum melts in all fires Copper, melted + floor level = arson (because floor level must have reached 2,000 deg f) Problem: 1. Everything ends up at floor level 2. Normal fires sufficient to melt copper

23 Is Steel different? probably not But nearly all fire investigators will react to melted steel, bc it indicates temperatures exceeding 2,100, 2,300, 2,500, 2,700 deg f temps they believe can only be reached with accelerants. Problem: 1. Flame temperature of burning combustible liquids is no higher than a normal wood fire (purpose of accelerant hotter or faster?) 2. Tests indicate that it is almost impossible to tell if steel has melted or oxidized by looking at it. (bedsprings - - sofa springs)

24 the problem Traditionally Arson Investigator / Firefighters believed hot and fast fires indicated arson Hotter because of the use of an accelerant. But although accelerants may allow a fire to start quicker, they do not raise the temperature temperature of a fire is primarily related to the amount of oxygen available ( think of Blacksmiths)

25 Post 1990 guidelines 1992, National Fire Protection Agency (NFPA) published first edition of NFPA 921, has generally gained acceptance Most recent version in Fire investigation must be based on adherence to the scientific method. Scientific method: investigation must collect information, analyze it, propose hypothetical reasons for where and how a fire started, and then test to validate his hypothesis. The most common failure - - is the failure to properly evaluate the hypothesis

26 Investigator accreditation Standardization - - Still all over the place Minimum for NFPA s standard Professional Qualification: remain current with investigation methodology, fire protection technology, and code requirements by attending workshops and other trainings, and,

27 1.3.8 shall maintain knowledge(beyond high school - - i.e., postsecondary level) on the following : Fire Science Fire Chemistry Thermodynamics Thermometry Fire dynamics Explosion dynamics Computer fire modeling Fire investigation Fire analysis Fire investigation methodology Fire investigation technology Hazardous materials, and Failure analysis and analytical tools

28 Other arson resources NIJ, Office of Justice Programs, Fire and Arson Scene Evidence: A Guide for Public Safety Personnel (2000) NIJ, A Guide for Investigating Fire and Arson (2009) University Fire Science Engineering Departments Online Resources CRC Press Literature on Arson Investigation Criminal Defense Forensic Science Resources

29 Arson Areas of Interest and Controversies Cause and Origin Conclusions Laboratory Testing Results Accelerant Detection Canine Handling Arson Related Injuries Education and Training

30 Red flags (Lentini) a mathematical calculation that a fire was set Accused are your (parents) age and have previously lived exemplary lives Defendant s first charge is arson Inconsistent accounts by neutral witnesses Defendant refused a good plea Arson call based on a fire that burned faster than normal Arson call on an unconfirmed canine alert Ruled out everything else

31 Accelerant Detection Canine Handling Designation as Accelerant detector is misleading Alerts to ignitable liquids (some very ordinary substances) Was location impacted by suppression efforts? Did chemical pre-date fire? Collection of samples alerted to Relationship between handler and canines Interpretation of behavior Animal Cognitive Behavior Journal False positives False negatives Multiuse canines

32 Step 4 Challenge Pretrial (Case law included below)

33 Step 5 Present your case Two Questions in Every Arson Case 1. Was there a fire that was intentionally set? (Has accident been ruled out?) 2. Was the accused the individual who set the fire? You should try to bifurcate these two issues

34 Finger Prints (Fp)

35 Everyone knows fingerprints are uniques, and, fingerprint identifications are accurate, so there can be a problem or is there?

36 Brandon Mayfield

37 FBI Mayfield s prints 100 % verified Before his arrest, Spanish authorities informed the FBI in a letter from April 13, that they reviewed the fingerprint on the bag as a negative match of Mayfield's fingerprint, [ though this letter was not communicated to Mayfield's attorneys. On May 19 the Spanish authorities announced that the fingerprints actually belonged to an Algerian national, Ouhnane Daoud; Brandon Mayfield was released from prison only after the international press broke the story the next day May 20, [

38 The fingerprints

39 End result?

40 How big is the problem Maybe as many as 1,000 fingerprint errors a year (most not caught) Errors may not lead to conviction But remember some might and without being tested challenged

41 Brief History of Fingerprinting China 300 bc Japan 700 ad, Modern era stems from 1850 s India, British required it for identification, Indians came to believe it made the contract more binding First trial , when a bloody handprint found at the scene of a stabbing death. Judge accepted print as the defendant s and then acquitted on other grounds Fingerprint use precedent was set Soon followed Indian Evidence Act, and courts thereafter freely admitted finger print evidence without serious challenge

42 Fp challenges in first 100 years? almost none and it quickly and widely became commonly accepted that: 1. Fingerprints are unique (universal rule of nature) 2. Latent print testing is error free Florida fingerprint scandal - - police rationale for fixing fingerprints everyone knows that no one challenges fingerprints.

43 Fingerprints update 2001 The David Valken Leduc case two bloody prints, later found to be the victims the examiner who made the examination was the chair of the International Association for (IAI) Certification board, the group responsible for certifying latent fingerprint examiners world wide. Simon Cole in cases in public record , NIST and NIJA new report by the National Institute of Standards and Technology (NIST) and the Department of Justice s National Institute of Justice (NIJ) has documented 149 potential sources of human error in the analysis of crime scene fingerprints.

44 How fingerprints are collected Latent fingerprints. Fingerprint ids in criminal cases are generally made from traces of fingerprint fragments detected at crime scenes, these fragments are commonly referred to as latent prints, word latent meaning hidden because the print is usually not readily visible to the naked eye Every ridge of the fingers, palms and soles bear sweat pores, a film or grease from face or other areas may be transferred to object touched leaving an outline of the ridges. Various powders and chemicals are used to develop the print to make it visible so that it may be preserved and collected. Once collected the latent print is compared to inked or digitally scanned fingerprints taken directly from suspects Since the late 70 s to 80 s started use of Automated Fingerprint Identification Systems, AFIS

45 FP process c/td Now examiners code the latent and enter it into AFIS AFIS shoots out Optical images fed into AFIS and sends out a good group of candidate matches, Systems are generally poor at moving beyond this, making an actual match requires that a FP examiner compares the latent or partial print from the scene to the ones generated by AFIS (Watch 48 hours and see it in action)

46 Current technique ACE-V Acronym for analysis, comparison, evaluation, verfication Analysis usu of a digital image of the latent print, looks to see if there is sufficient quantity and quality of detail Comparison. A visual comparison of the prints latent and known Evaluation* - - three results - - individualization, inconclusive, Exclusion (no match) Verification - - result okayed 2 nd fp examiner *(details compared include anatomical aspects, ridge flows, ridge counts, shape of the core, depth location and shape, lengths of the ridges, minutia locations and type, thickness of the ridges and furrows, shapes of the ridge, pore positions, crease patterns and shapes, scar shapes and temporary feature shapes

47 For your motion Three main issues: Uniqueness (not just of fp, but of the characters used for comparison from that latent) Individualization Zero error rate (You can find support for your motion in the NAS report as it undermines all three conclusions)

48 Problems in validating fingerprints No validation - - but IAI examiners claim a 100 percent certainty in individualizations Fingerprint examiners are expressly prohibited by the IAI from testifying probabilistically and are required to provide one of three conclusions: Individualization i.e. 100% match Inconclusive Exclusion 100 percent non match

49 Daubert - - Problem (J. Pollak) In the 1990s the Supreme Court deemed it the responsibility of federal judges to insist that expert witnesses testify about the reliability of a forensic-scientific method only if the method in question has been tested so that the range of its error rate is known. Fingerprinting experts have long claimed that their error rate in matching prints is zero but without any supporting evidence.

50 J Pollak c/td This claim is scientifically dubious, for two reasons. One is that many prints collected at crime scenes are so-called latent prints, meaning that it takes special chemical treatments, or illumination with ultraviolet light, to recover them. Such latent prints are often incomplete and indistinct, and might not produce unique matches. The other reason is that declaring a match between two prints generally requires a certain number of points of similarity between them. Different jurisdictions set varying standards for how many similar points are required, which makes this standard seem arbitrary. Even worse, in some jurisdictions declaring a match requires only an overall impression of similarity on the part of an expert.

51 Finger prints Problem: Comparing inked prints Comparing recovered prints A small stretching of the distance between two finger print features, or a twisting of angles, can result from either a difference between the fingers that left the print or distortions from the print impression process, therefore, analysis must rely on subjective judgments.

52 Cognitive Bias / Emotions? Emotional Experiences and Motivating Factors Associated with Fingerprint Analysis, David Charlton et al., The same fingerprint examiner may not reach the same conclusion twice finger prints examiners are emotionally driven to find results for themselves and their employers, and are also influenced by more subtle factors such as a need for closure that exert leverage on the decision making process and may lead to erroneous conclusions.

53 Case Law Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579 (1993)\ Now the law in over half the states and the federal system Frye remains the rule in half a dozen states. Frye v. United States, 293 F (D.C. Cir. 1923), (allowed expert testimony where "the thing from which the deduction is made" is "sufficiently established to have gained general acceptance in the particular field in which it belongs." )

54 Daubert Facts: Two kids born with birth defects, parents filed suit claiming that the drug Bendectin caused their kids problems. Dow moved for SJ because their expert submitted documents showing that no published scientific study demonstrated a link between Bendectin and birth defects. Daubert submitted expert evidence of their own that suggested that Bendectin could cause birth defects. Daubert's evidence, however, was based on in vitro and in vivo animal studies, pharmacological studies, and reanalysis of other published studies, and these methodologies had not yet gained acceptance within the general scientific community. Ruling: (Frye superseded by 1975 FRE)

55 Daubert Ruling ctd. (FRE 702) (1975) Superseded Frye Rule 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise...

56 Ruling Ctd Three key provisions of the Rules governed admission of expert: Firstly, scientific knowledge, - - the testimony must be scientific in nature and must be grounded in "knowledge." Of course, science does not claim to know anything with absolute certainty; science "represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement." The "scientific knowledge" contemplated by Rule 702 had to be arrived at by the scientific method. Secondly, the scientific knowledge must assist the trier of fact in understanding the evidence or determining a fact in issue in the case. To be helpful to the trier of fact, there must be a "valid scientific connection to the pertinent inquiry as a prerequisite to admissibility." For example, although it is within the purview of scientific knowledge, knowing whether the moon was full on a given night does not typically assist the trier of fact in knowing whether a person was sane when he or she committed a given act. Thirdly, the Rules expressly provided that the judge would make the threshold determination regarding whether certain scientific knowledge would indeed assist the trier of fact in the manner contemplated by Rule 702. "This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." This preliminary assessment can turn on whether something has been tested, whether an idea has been subjected to scientific peer review or published in scientific journals, the rate of error involved in the technique, and even general acceptance, among other things. It focuses on methodology and principles, not the ultimate conclusions generated

57 Kuhmo Tires Co v. Carmichael, 526 U.S. 137(1999 Kuhmo, expanded Daubert to include technical opinions Tire blew out Tire engineer s opinion that it was tire failure because he could see no other reason for tire failure: Excluded, (not on Expert science vs. technical not the issue)but because only link for opinion, was his conclusion was not reliable enough to go before the jury Why? (See Also, Michigan Millers Mutual Insurance Company v. Janelle R. Benfield, 118 S.Ct. 512, 517, 139 L.Ed.2d 508 (1997). )

58 Cross Examination 10 rules of cross 1. Prepare 2. Have an objective 3. Take small steps 4. Lead 5. Be yourself 6. Know when to stop 7. Have what you need at podium 8. Remember the audience 9. Know rules of evidence 10. Know the judge

59 Cross for experts No real difference Test qualifications (Use a separate voir-dire outside presence of jury) Credibility issues Keep in control Keep flexible Keep it short Know the facts Know the science Financial bias questions Strategy with expert - - attack - - forego Keep your language simple

60 never never ever put an expert on the stand that you have not practiced both their direct and cross.

61 General areas of attack for an Expert Was the Scientific Method Used and/or Tested? How were the accidental sources ruled out? Are the tests reliable? Are the results accepted within the relevant scientific community? What are the Qualifications of the Expert?

62 NIST s final word on cognitive bias One type of cognitive bias, called confirmation bias, is perhaps the best known and most widely accepted notion of inferential error to come out of the literature on human reasoning. Confirmation bias connotes the seeking or interpreting of evidence in ways that are partial to existing beliefs, expectations, or a hypothesis in hand. It is a proclivity to search for or interpret additional information to confirm beliefs and to steer clear of information that may disagree with those prior beliefs. One may be selective in seeking or interpreting evidence that pertains to a belief without being deliberately so, or even necessarily being aware of the selectivity. Report available at:

63 Closing notes Good climate for challenge, because of innocence cases If you can t win on admissibility then argue weight to the jury Use historical mistakes that have been made by highly qualified examiners to show vulnerability of fingerprints.

64 Additional fingerprint resources Dr. Simon Cole Innocence project amicus in Patterson case ents/ /patterson_appeal_defense_amicu s_brief_sep05.pdf Pleadings / mtns / briefs (daubert / Frye) at: Mnookin see: See also: