CONTINUED CHALLENGE FOR FORENSICS

Transcription

1 CONTINUED CHALLENGE FOR FORENSICS The PCAST Report DONNA LEE ELM i n 2009, the National Research Council (NRC) of the National Academy of Sciences (NAS) produced what was hailed as a sea change report on forensic science. Variously referred to as the NRC Report and the NAS Report, it was in fact titled Strengthening Forensic Science in the United States: A Path Forward (NRC Report). It sent shockwaves through the criminal practice and courts, and was lauded as pioneering, a watershed, a scathing critique, and a milestone. The press jumped on it as well with headlines like Science Found Wanting in Nation s Crime Labs. (Paul C. Giannelli, The 2009 NAS Forensic Science Report: A Literature Review, 48 Crim. L. Bull. 378, (2012).) Conferences and training seminars were held across the country, and lawyers began to gear up for widespread Daubert and Frye litigation. One commentator trumpeted it as a blockbuster, but followed that immediately with the caveat and reasons to be pessimistic. (Jonathan J. Koehler, Forensic Science Reform in the 21st Century: A Major Conference, a Blockbuster Report and Reasons to Be Pessimistic, 9 Law, Probability & Risk 1 (2010).) That warning was well taken. A CENTURY OF USING SCIENCE TO IMPACT LAW The NAS is the highly respected bastion of science. DONNA LEE ELM is the federal defender for the Middle District of Florida. She has been an assistant federal defender in Phoenix and chief trial deputy in Maricopa County Public Defender. She can be reached at donna_elm@fd.org. 4 Over the past century, it has been called upon to review public agencies work and recommend ways to make their science better. It was first tasked in 1928 to investigate the work being done in murder autopsies. It issued a harsh opprobrium against the system of elected coroners, urging in their place the more scientific model of medical examiners. (Oscar T. Schultz & E.M. Morgan, The Coroner and the Medical Examiner, 64 Bull. Nat l Res. Council (1928).) Though this led to greater use of medical examiners, today over half the states still elect coroners. (David H. Kaye, The Good, the Bad, and the Ugly: The NAS Report on Strengthening Forensic Science in America, 50 Sci. & Just. 8 (2010).) A half century later in 1979, the NRC issued a critique of voice identification expertise being used in courts at the time. Much like the 2009 report, the NRC concluded that this field of expertise was far short of science, and that the underlying premise that every voice was unique was not borne out by objective facts. (Nat l Research Council, On the Theory and Practice of Voice Identification (1979).) This led courts to reject voice print testimony, though some continued to rely on it. (Kaye, supra.) With DNA becoming the forensic tool de jour in the early 1990s, the NRC issued a pair of reports criticizing how DNA was being used in court. The first exposed flaws in the lab work and statistical theories applied to DNA forensics; the second proposed how to issue scientifically accurate probabilities to bolster DNA testimony. (Nat l Research Council, DNA Technology in Forensics Science (1992); Nat l Research Council, The Evaluation of Forensic DNA Evidence (1996).) CRIMINAL JUSTICE n Summer 2017

2 Lawyers used these in litigation extensively, with law enforcement overhauling the lab work and courts curtailing the testimony. This revolutionized DNA practice so that it is the gold standard of forensics today. The DNA reports made the legal community recognize that science could significantly influence the practice of law. (Kaye, supra.) In 2003, Congress asked the NAS to evaluate polygraph reliability, resulting predictably in a finding of unreliability. (Nat l Research Council, The Polygraph and Lie Detection (2003).) As a result, some agencies discontinued their use of polygraphs. In 2004, the NRC condemned bullet lead analysis, leading to the FBI abandoning the practice and issuing letters advising that the forensics may have been wrong in cases where it had been used. (Nat l Research Council, Forensic Analysis: Weighing Bullet Lead Evidence (2004).) Over the next few years, scandals where forensic science misidentified suspects were headlines news. By 2008, the Innocence Project produced DNA exonerations of 200 (now 342) individuals whose convictions relied primarily on flawed forensics including blood serology, hair evidence, soil comparison, early DNA tests, bitemark evidence, fingerprints, dog sniffs, spectrographic voice identification, shoeprints, and fiber comparisons. (Barry Scheck et al., Actual Innocence: Five Days to Execution, and Other Dispatches from the Wrongfully Convicted (2000); Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55 (2008).) The Houston police chief called a moratorium on executions in 2004 until they could review their questionable forensic practices. Problems surfaced in labs in Baltimore, Cleveland, Chicago, Ft. Worth, Los Angeles, and Oklahoma City among many. (Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 N.C. L. Rev. 163, (2007).) In 2008, the Department of Justice (DOJ) asked the NAS to review ballistics analysis to try to establish a national database. (Nat l Research Council, Ballistic Imaging (2008).) That could provide greater foundation for scientifically valid expert testimony. But in assessing the current situation, it concluded the underlying premise that toolmarks are unique (so could help identify the weapon that was fired) was unsupported. (Id. at 1, 3.) These high-profile failings prompted Congress to take action to assess and correct forensic testimony. It offered funding for crime labs meeting accreditation standards, and directed the NAS to conduct a study of the forensic sciences. On the heels of its recent successes and the public outcry over wrongful convictions, the NAS must have anticipated that its 2009 broad critique would have a similar positive impact on the proper use of science in the institution of law. THE 2009 BLOCKBUSTER NRC REPORT Indeed, the 2009 NRC Report was expected to shake the current forensic practices to their core. It found that the current state of the field was seriously wanting. It suggested that many fields of forensic science are under-researched, under-regulated, and oversold. (Kaye, supra, at 8.) Most of the problems lay in individualization, that is, forensics used to identify a given piece of evidence (such as a blood drop, a shell casing, a tire track, or a fiber) as belonging to a given person, gun, car, or rug. That is, of course, the lion s share of what constitutes forensics today. For instance, toolmark identification in gun cases was based simply on correlations between marks on a shell casing and those left on other casings fired by a given gun. However, there was zero science establishing the underlying presumption that such marks would be unique to a given gun. Unlike DNA reporting, there was no statistical evidence that could show how unlikely it was that the bullet with that marking could have been fired by a different gun. (NRC Report, supra, at ) Similarly, no scientific evidence supported testimony concerning how unlikely it is that a particular defect found in a tire track would only belong to the suspect s tire perhaps a manufacturing defect produced that flaw in half the tires that company made. Without sound scientific testing and analysis, the correlations could be erroneously used to convey a match. (Id. at ) Except for DNA and certain chemical drug testing, the NRC Report found that none of those methods can consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source. (Id. at 7.) It reached the damning conclusion that the interpretation of forensic evidence is not always based on scientific studies to determine its validity. (Id. at 8.) From this outcome alone, one would imagine that a proliferation of Daubert litigation would successfully ensue. The NRC posited that the key to correcting forensics shortcomings lay in improving the crime labs and law enforcement. To that end, its overarching recommendations were first for structural reform, placing an independent body in charge of the research to validate or invalidate forensics, and to develop research to either support or debunk forensic disciplines appropriately with real science. Second, crime labs should be independent of law enforcement. It also repeatedly called for enforceable standards and greater education, training, and certification. Of telling import, the NRC Report also thought that the institution of justice may not embrace needed changes. The principal difficulty, it appears, is that many [forensic science] techniques have been relied on for so long that courts might be reluctant to rethink their role in the trial process.... In many forensic areas, effectively no research exists to support the practice. (Id. at 110 (alteration in original).) The NRC Report concluded that while the adversarial process may be designed to find legal truth, it may not be well-suited to the task of finding scientific truth. (Id.) Indeed, Judge Nancy Gertner (who had been frustrated in trying to champion science in her courtroom) criticized courts for turning to precedent rather than science-based innovation: because the flawed forensic testimony had been deemed admissible before, it was upheld. In fact, courts shirked their gatekeeping responsibilities, refusing Daubert hearings to rely on stare decisis. She lamented that courts often reversed the burden of proof in Daubert hearings, conflated general acceptance by the forensic community with general acceptance by courts, and relegated fundamental questions of validity to issues of weight instead of admissibility. She explained that CRIMINAL JUSTICE n Summer

3 the bench s approach to scientific expertise was not evenhanded. Civil practitioners, unlike their criminal brethren, are permitted to fully explore expert evidence. She noted that the criminal trial playing field is even less level, with prosecutors routinely getting CSI effect voir dire, whereas the defense can be denied even a hearing on the admissibility of individualization evidence. (Nancy Gertner, National Academy of Sciences Report: A Challenge to the Courts, 27 Crim. Just., no. 1, Spring 2012.) The NRC Report exposes the soft underbelly of a range of technologies, the organizational problems with the institutions that generate forensic science evidence, and the timidity of the courts in pushing for better science. (Kaye, supra, at 10.) Thus, placing the impetus for change in an independent federal agency with oversight authority and funding incentives was recommended. The NRC Report declined to urge that the courts reconsider admissibility until the science was better substantiated, expecting that forensic institutions would again welcome opportunities for improvement. RESPONSE TO THE NRC REPORT The academic response was strong and immediate. Arizona State, Cleveland State, and UCLA put on conferences, and the Utah Law Review and Fordham Urban Law Journal published symposia. Articles discussing the NRC Report multiplied. Lawyers and judges began contemplating how to address litigation. However, the response from the forensic community and law enforcement was tepid at best. Neither group embraced the idea of removing crime labs from law enforcement departments or ceding their oversight to a federal agency, and no overarching agency was created. (Kaye, supra.) DOJ finally formed its own National Commission on Forensic Science. The FBI and DOJ reviewed over 3,000 cases where hair analysis testimony had been offered, concluding that FBI examiners had provided scientifically invalid testimony in 90 percent of the cases! (Press Release, FBI, FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review (Apr. 20, 2015), Still, other individuals undertook earnest scientific research to bolster their forensic field with true scientific validity. After the Madrid railway bombing led to the erroneous fingerprint match with attorney Brandon Mayfield, the FBI initiated strict scientific studies to research confirmation bias on fingerprint opinions, resulting in changes in protocols. (President s Council of Advisors on Sci. & Tech., Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature- Comparison Methods 88 (2016) [hereinafter PCAST Report].) But overall, the forensics and law enforcement communities did not embrace the NRC Report s baseline principle that most fields of forensics being used at that time were not scientifically valid or reliable. The Supreme Court took note of the NRC Report. Within three months of its publication, the Court handed down Melendez-Diaz, a confrontation clause case in the Crawford line holding that another available lab tech cannot be substituted to admit and discuss forensic testing. Justice Scalia in part relied on the NRC Report s finding that [s]erious deficiencies have been found in the forensic evidence used in criminal trials, which supported the need for confrontation. The opinion also considered, in light of bias findings, that forensic technicians are not as neutral as the state had claimed. (Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, (2009).) That nod to the NRC Report represented the first (and almost last) case law citing it with favor to date. Two concurrences would have relied on the report. In State v. Hull, although the majority found a violation of the Frye test to be harmless, Justice Meyer would have granted a full Frye hearing regarding both handwriting and fingerprint expert testimony, and would not have held that the state met its burden in light of the findings in the NRC Report. (788 N.W.2d 91, (Minn. 2010).) In Williams v. United States, Judge Easterly was more incensed at the majority s disinterest in the report s findings when allowing expert testimony that the bullet came from the defendant s gun without any doubt. (130 A.3d 343, 351 (D.C. 2016).) The majority had relied on precedent (which had never barred such rhetoric). Judge Easterly retorted that though precedent had not, it should. (Id.) Noting the 2008 NRC report regarding ballistics, as well as the 2009 NRC Report regarding forensics, found no scientific basis to support individualization, he would have precluded that extreme testimony. (Id. at ) Though the government had conceded its testimony was regrettable, he found it alarming, a violation of ethics as well as due process. (Id. at ) He concluded: Our justice system can only function if it maintains the trust of the community. We rely on judges as the umpires in our adversarial system to prohibit the admission of evidence that is clearly without foundation. As matters currently stand, a certainty statement regarding toolmark pattern matching has the same probative value as the vision of a psychic: it reflects nothing more than the individual s foundationless faith in what he believes to be true. This is not evidence on which we can in good conscience rely, particularly in criminal cases, where we demand proof real proof beyond a reasonable doubt, precisely because the stakes are so high. (Id. at 355.) Judge Easterly s vehement concurrence, however, stood quite alone. Most prosecutors continued to seek admission of their forensic evidence in trials, and defense attorneys started new rounds of Daubert hearings based on the NRC Report. And nothing changed. Sometimes Daubert hearings were denied completely due to precedent. For instance, Findings made in numerous other federal cases provide the court with a welldocumented record regarding the proffered testimony and the methodology at issue. (United States v. Ashburn, 88 F. Supp. 3d 239, 244 (E.D.N.Y. 2015) (denying request for hearing regarding firearms toolmark identification); see also Spears v. Ryan, No. CV PHX-SMM, 2016 WL , at *3 (D. Ariz. Nov. 15, 2016) (noting courts continue to admit firearms identification evidence); United States v. Stone, 848 F. Supp. 2d 714, (E.D. Mich. 2012) (citing long history of accepting fingerprint testimony); Pettus v. United 6 CRIMINAL JUSTICE n Summer 2017

4 States, 37 A.3d 213 (D.C. 2012) (handwriting analysis).) In Frye jurisdictions, pretrial hearings were precluded because the science had already been established. Thus, criticism of forensics was relegated to trial and barred from pretrial admissibility challenges. (E.g., People v. Jones, 34 N.E.3d 1065, 1079 (Ill. App. Ct. 2015); People v. Luna, 989 N.E.2d 655, 673 (Ill. App. Ct. 2013).) In fact, even a Daubert hearing was denied regarding a DNA mixture, given both its historical acceptance and the NRC Report s favorable assessment of DNA profiling. (United States v. McCluskey, 954 F. Supp. 2d 1224, 1233, 1242 (D.N.M. 2013).) Attempts to raise faulty forensics in habeas corpus and appeal were evaded. Either the NRC Report did not relate back to previous claims or it was not treated as newly discovered evidence. (Spears, 2016 WL ) Alternatively, even if the forensics was flawed, there was ample other evidence to support the conviction. (See Rice v. Gavin, No. 15-CV- 291, 2016 WL , at *10 (E.D. Pa. Feb. 18, 2016) (firearms toolmarks); Abdul-Salaam v. Beard, 16 F. Supp. 3d 420, 467 (M.D. Pa. 2014) (fingerprints); Hull, 788 N.W.2d 91 (fingerprints).) At most, the defense was permitted to use the NRC Report in cross-examination. (E.g., United States v. Cerna, No. 08-CR-0730-WHA, 2010 WL , at *5 (N.D. Cal. Sept. 1, 2010).) There was one major battle over whether the report could be admitted as a learned treatise ; though the court concluded it could not, the report could be used in crossexamination. (See Gee v. United States, 54 A.3d 1249, 1268 (D.C. 2012).) The prosecutor in that case made some surprising arguments to support his win: that the NAS had not made an accurate representation of what the science is. (Id. at 1264.) When forced to grapple with the NRC Report, courts cast it as irrelevant to admissibility because it did not address forensics use in court: the report s scope did not include... admissibility of firearms-related toolmark evidence. (United States v. Otero, 849 F. Supp. 2d 425, 430 (D.N.J. 2012).) Similarly, the need for greater research does not mean that fingerprint evidence must be excluded. (United States v. Campbell, No. 1:11-CR AT-RGV, 2012 WL , at *5 n.6 (N.D. Ga. Apr. 19, 2012); Cerna, 2010 WL , at *7 (determining that the NRC Report does not automatically render the ACE-V theory unreliable under Daubert ).) The report findings regarding latent prints did not conclude such testimony was inadmissible. (Commonwealth v. Gambora, 933 N.E.2d 50, (Mass. 2010); see also State v. Langlois, 2 N.E.3d 936, 945 (Ohio Ct. App. 2013) (firearms toolmarks).) One court referenced the report as a mere critique of the science, not as any grounds to exclude it. (Pettus, 37 A.3d at 226.) Additionally, courts relied on a theory that scientific testimony need not in fact be so scientific. Hence, despite uncertainties of fingerprint forensics, Daubert, Kumho, and Rule 702 do not require absolute certainty. (United States v. Love, No. 10cr2418-MMM, 2011 WL , at *4 (S.D. Cal. June 1, 2011); see also United States v. Rose, 672 F. Supp. 2d 723, (D. Md. 2009) (finding fingerprint forensics sufficiently reliable ).) Some dodged the question by finding that the relevant scientific community (for general acceptance purposes) was the forensic sciences rather than the greater body of scientists; to no surprise, forensic sciences resoundingly accepted their discipline as valid science. (See State v. Dixon, 822 N.W.2d 664, 674 (Minn. Ct. App. 2012); Gee, 54 A.3d at 1264 (no trained fingerprint expert would testify to [the NRC Report] being an authoritative treatise on science ); State v. McGuire, 16 A.3d 411, 435 (N.J. Super. Ct. App. Div. 2011).) One court explained that although toolmark forensics might no longer be considered science, it nonetheless is sufficiently plausible, relevant, and helpful to the jury to be admitted in some form. (United States v. Willock, 696 F. Supp. 2d 536, 568 (D. Md. 2010).) This outcome seems to relegate forensic science to lay expert status without confronting the CSI effect that the jurors will consider it well-established science regardless. Another court similarly held that even presuming that firearms toolmark examination was not a science, it is a useful tool to the jury and so can be admitted under general (nonscience) evidence. (Jones, 34 N.E.3d at 1082.) There have been occasional inroads in testimony couched in terms of absolute certainty, with one court allowing testimony of more likely than not rather than match. (United States v. Glynn, 578 F. Supp. 2d 567 (S.D.N.Y. 2008).) However, despite resounding condemnation of match claims as insupportable, some courts continued to allow it. (E.g., United States v. Mouzone, 687 F.3d 207, 216 (4th Cir. 2012).) When a firearms expert testified in language of absolute certainty that the bullet had been fired by the defendant s gun, that did not violate any precedent. The government had a policy not to admit such rhetoric, but that resulted in its policy violation, not in a violation of law. (Williams, 130 A.3d at ) Within a few years of its release, the excitement over forensics challenges generated by the NRC Report had been neutralized. THE 2016 PCAST REPORT In 2015, President Obama tasked his science advisors to determine if additional steps could be taken to strengthen the validity of forensics now. The President s Council of Advisors on Science and Technology (PCAST) concluded that we still need to: (1) clarify scientific standards for the validity and reliability of forensic methods, and (2) evaluate some forensic methods to determine if they have in fact been scientifically established to be valid and reliable. (PCAST Report, supra, at 1.) They selected feature comparison disciplines for the second undertaking. Feature comparison evaluates features of one piece of evidence against an identified source or person, to determine if there are sufficient correlations to match the piece of evidence to the source (the NRC Report had referred to this as individualization ). The PCAST chose seven fields to study: simple DNA, complex mixed DNA, bitemark, latent fingerprint, firearm toolmark, footwear, and hair analysis. The PCAST Report appears intended to fill a void left in the wake of the NRC Report. The 2009 report had taken a hands off approach to the admissibility of forensic evidence relegating it fully to the bench. As noted above, courts have largely ignored the science, continuing to allow less than scientific forensic testimony into trials. The NRC Report instead had sought to change forensic practitioners and lab practices to increase the science basis of their methods and testimony. 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5 A critical NRC Report proposal was the creation of a federal body to continue the Report s work. As a result in 2013, the National Commission on Forensic Science (NCFS) was created within DOJ to advise the attorney general. Its goals were to recommend standards and policies, develop guidance for experts, make recommendations about the intersection of forensics and the courtroom, and assess future needs for forensics. The NCFS s current term ended April 23, 2017, and Attorney General Sessions just ordered its closure. (Spencer Hsu, Sessions Orders Justice Dept. to End Forensic Science Commission, Suspend Review Policy, WASHINGTON POST (Apr. 10, 2017).) In particular, DOJ suspended efforts to create uniform standards for forensic testimony and had not decided whether to disband efforts to provide uniformity of examination/reporting of forensics. Whether this decision tolls a death knell for efforts to make forensics more reliable and accountable or will lead to genuine improvements remains to be seen. DOJ nonetheless sought comment on how to improve the operational management for forensics providers and improve the understanding of forensic science by practitioners. Written public comments were to be submitted by June 8, for lawyers to grasp. (See PCAST Report, supra, at ) Validity means that the subject matter in fact is based on real empirical evidence and studies representing bedrock science. Thus, DNA is valid science, whereas polygraph is not. Reliability means that using the same method produces the same results. Thus, studies showing that, at different times, hair examiners arrive at conflicting results on the same sample comparisons indicate that hair analysis is not a reliable science. (Id. at 119.) Suffice to say that there are methodological approaches to establishing scientific truth that are rigorous, require empirical facts, are designed to be objective or can adequately test subjective measures, and will yield the same outcome virtually every time with a trained person performing the tests. Ultimately, the PCAST Report concludes: Scientific validity and reliability require that a method has been subjected to empirical testing, under conditions appropriate to its intended use, that provides valid estimates of how often the method reaches an incorrect conclusion.... Without appropriate estimates of accuracy, an examiner s statement that two samples are similar or even indistinguishable is scientifically meaningless: it has no probative value, and considerable potential for prejudicial impact. Nothing not personal experience nor professional practices can substitute for adequate empirical demonstration of accuracy. The 2016 report, on the other hand, is more geared to influence the courts. Its very title refers to that goal: Forensic Science in Criminal Courts. One of the PCAST Report s mantras is that although the bench decides the admissibility of evidence, when it comes to scientific evidence, that decision must be informed by an intersection with science: The admissibility of expert testimony depends on a threshold test of whether it meets certain legal standards for evidentiary reliability, which are exclusively the province of the judiciary. Yet, in cases involving scientific evidence, these legal standards are to be based upon scientific validity. (Id. at 142.) The report thus calls for an important conversation between the judiciary and the scientific community. (Id.) Moreover, the 2016 report focuses on the abuses found primarily in criminal practice. This should come as no surprise. As Judge Gertner lamented, litigators in civil practice are much more likely to get extensive litigation and thoughtful consideration of their science testimony than litigators in the criminal arena. (Gertner, supra, at 11; see also D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 Alb. L. Rev. 99 (2000).) Moreover, it is in criminal cases that bad forensics have produced the most serious miscarriages of justice. The discussion about what is scientifically valid and reliable is necessarily detailed with science jargon and may be difficult (Id. at 143.) Thus, the PCAST Report reinforces the necessity of basing forensic testimony on real science, in contradistinction to the trend seen in trial courts since the NRC Report. Rather, it notes that while judges determine admissibility, the subject matter they must address in doing so is science. This, then, parts with the present practice of relying on precedent or a good enough for government work resignation. The PCAST Report insists that when new facts show that old presumptions (such as legal precedent) are wrong, courts should look afresh at science. (Id. at 144.) The PCAST expect that adherence to the scientific demands of the PCAST Report will cause some courts to reject some forensic methods that have inadequate scientific validity. (Id. at 122.) That in fact worked well to force DNA labs to correct their early forays into forensic testimony resulting in the scientifically well-established respect for DNA testimony today; rejecting unjustified forensics could similarly lead to scientifically accurate testimony in other fields in the near future. Indeed, this has been going on in the discipline of latent fingerprint analysis in the five years since the NRC Report. (Id.) Discussion of the PCAST Report s findings regarding those seven feature comparison fields, as well as the recommendations for national standards, research and development, the FBI lab, the attorney general, and the courts, will be taken up in the following two companion articles one from the defense perspective and one from the prosecution perspective.n 8 CRIMINAL JUSTICE n Summer 2017