Article Bank # A-97
Challenging Prosecution Forensic Evidence
Michael N. Burt
Office of the Public Defender
555 Seventh Street
San Francisco, California 94103
415-553-9650
michael.burt@prodigy.net
Editor’s Note:
Michael’s tremendous article on Challenging Prosecution Forensic Evidence is included on the CD-rom and is essential reading for anyone facing any kind of prosecution forensic evidence. Among the important topics are the following:
I. Introduction
–the meaning of Daubert and how it is more demanding than Frye
–the use of Daubert criteria to make sure evidence is admissible under Frye
–revisiting the admissibility of a particular type of forensic evidence under Kelly–Frye even after its general acceptance has been previously established
II. An A-Z List of Some Recent Successful Challenges to prosecution forensic evidence:
Ballistics
Bias
Bitemark Evidence
Blood Testing
Blood Splatter Testimony
Bullet Lead Compositional Analysis
Child Abuse Experts
Confrontation
Dog Sniffing
Dying Declarations
DNA
Earprints
False Confessions
False Credentials
Fingerprints
Footwear Impression Evidence
Gunshot Residue
Hair Comparison
Handwriting
Judicial Comments on Reliability
Malingering
Pathology
Psychological Disorders
Semen Identification and Testing
Sex Offender Profiles
Sudden Infant Death Syndrome
Time of Death
Toolmarks
Challenging Prosecution Forensic Evidence
Michael N. Burt
Office of the Public Defender
555 Seventh Street
San Francisco, California 94103
415-553-9650
michael.burt@prodigy.net
I. Introduction
Recently, a federal district court judge in United States v. Horn, 185 F. Supp 530, 554 (D. Md. 2002) provided a very insightful summary of where we should be in our thinking about challenges to shaky prosecution forensic evidence:
Under Daubert, the parties and the trial court are forced to reckon with the factors that really do determine whether the evidence is reliable, relevant and “fits” the case at issue. Focusing on the tests used to develop the evidence, the error rates involved, what the learned publications in the field have said when evaluating it critically, and then, finally, whether it has come be generally accepted, is a difficult task. But, if undertaken as intended, it does expose evidentiary weaknesses that otherwise would be overlooked if, following the dictates of Frye, all that is needed to admit the evidence is the testimony of one or more experts in the field that the evidence at issue derives from methods or procedures that have become generally accepted. Wright & Gold, 29 Federal Practice and Procedures §§ 6266 (“Daubert’s focus upon multiple criteria for scientific validity compels the lower courts to abandon long existing per se rules of admissibility or inadmissibility grounded upon the Frye standard.”).
Daubert’s challenge is unmistakable. While courts may be skilled at research and analysis, the task of deciding the admissibility of new or difficult scientific or technical evidence involves subject matters that are highly specialized, and there is a risk that the court, forced to resolve an issue without the luxury of unlimited time to reflect on it, will get it wrong. This is especially true because judges do not determine the reliability of scientific or technical issues in the abstract but rather in the context of deciding a specific dispute.
The principle shortcoming of Frye was that it excused the court from even having to try to understand the evidence at issue. 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, §§ 702.05[1] (2d ed. 1997) (Under Frye “[t]he court itself did not have to comprehend the science involved … [it] only had to assure itself that among the people involved in the field, the technique was acceptable as reliable.”). Further, given the impact of the stare decisis doctrine, once a court, relying on Frye, had ruled that a doctrine or principle had attained general acceptance, it was all to easy for subsequent courts simply to follow suit. Before long, a body of case law could develop stating that a methodology had achieved general acceptance without there ever having been a contested, detailed examination of the underpinnings of that methodology. The admissibility of SFST evidence illustrates this hazard, as a review of the state cases reveals that, despite more than sixteen years of case law relating to this evidence, the number of instances where there have been factually well-developed and detailed challenges to the reliability and validity of the tests is extremely small.
Following the Kumho Tire decision and the December 2000 changes to Rule 702, a detailed analysis of the factual sufficiency and reliability of the methodology underlying expert testimony is required for all scientific, technical or specialized evidence, not just “novel scientific” evidence. This has required, at times, a reexamination of the admissibility of evidence that long has been admitted under the Frye test, which may result in exclusion of evidence that for years routinely has been admitted. See, e.g., United States v. Llera Plaza, 179 F.Supp.2d 523 (E.D.Pa.2002) (excluding aspects of evidence of latent fingerprint identification evidence on the basis of Daubert/Kumho Tire and Rule 702 analysis). As lawyers and courts become fully aware of the relatively recent additional requirements of Kumho Tire and revised Rule 702, this process of reexamination can be expected to continue. It may mean, in a very real sense, that “everything old is new again” with respect to some scientific and technical evidentiary matters long considered settled. Alarmists may see this as undesirable, envisioning courtrooms populated by mad scientists in white lab coats and overzealous judges in black robes, busily undoing established precedent. The more probable outcome is that judges, lawyers and expert witnesses will have to learn to be comfortable refocusing their thinking about the building blocks of what truly makes evidence that is beyond the knowledge and experience of lay persons useful to them in resolving disputes. The beneficiaries of this new approach will be the jurors that have to decide increasingly complex cases. Daubert, Kumho Tire, and now Rule 702 have given us our marching orders, and it is up to the participants in the litigation process to get in step.
This passage may suggest to some that the “new approach” will be strictly confined to Daubert jurisdictions. And even there, any attempt to exclude traditional forms of prosecution forensic science will not be easy, as evidenced by Judge Pollack’s radical change of heart in first excluding and then admitting fingerprint evidence. See, United States v. Llera Plaza, 179 F. Supp. 2d 492 (E.D. Pa. Jan. 7, 2002) (excluding, in part, expert testimony comparing fingerprints), vacated, 188 F. Supp. 2d 549, 576(E.D. Pa. Mar. 13, 2002) ( ” I have concluded that arrangements which, subject to careful trial court oversight, are felt to be sufficiently reliable in England, ought likewise to be found sufficiently reliable in the federal courts of the United States, subject to similar measures of trial court oversight. In short, I have changed my mind.”). Still, Judge Pollack’s reference to “careful trial court oversight” opens up a whole new field of challenges grounded on the requirement of recently amended Rule 702 that correct procedures be followed as a pre-condition to admissibility. See e.g., United States v.Cruz-Rivera (D. Puerto Rico 2000) ___F. Supp. 2d. __, 2002 WL 662128 (“Whether the principles for sound fingerprint identification analysis laid out in Judge Pollak’s opinion have been followed in a particular identification is a separate question. Here, the critical police witness was unavailable at the scheduled evidentiary hearing because he was testifying at other trials. As a visiting judge about to leave the jurisdiction, I must therefore return that question to the Magistrate Judge originally assigned to the motion for the testimony. I observe the following, however. The ultimate question is the following: can the defendant establish that the Puerto Rico Police fingerprint identification practices followed in this case are so deficient under the standards described by Judge Pollak that the testimony must be excluded altogether; or is this simply a matter for cross-examination so that the jury can assess how much weight to give to the purported identification in this case?”). See also, United States v. Allen, 207 F. Supp. 2d 856, 869 (N.D. Ind. 2002) (same analysis applied to footwear impression evidence).
Even in Frye jurisdictions like California there is a new sensitivity to the pitfalls of prosecution forensic evidence and the courts have certainly provided us with the legal tools to mount successful challenges. For instance, iIn People v. Venegas (1998) 18 Cal.4th 47 the Court excluded previously accepted RFLP-DNA testing conducted by the F.B.I. because that agency had not followed correct scientific procedures. The Court concluded that regardless of whether a particular methodology has been accepted in the relevant scientific community, a showing must be made in each case that correct scientific procedures have been followed. More recently, in People v. Soto (1999) 21 Cal. 4th 512, 540-541 n. 31 , the Court emphasized that “in a context of rapidly changing technology, every effort should be made to base [the decision] on the very latest scientific opinions…” See also, People v. Allen (1999) 72 Cal. App. 4th 1093, 1101 (“The issue is not when a new scientific technique is validated, but whether it is or is not valid; that is why the results generated by a scientific test once considered valid can be challenged by evidence the test has since been invalidated.”); People v. Smith (1989) 215 Cal.App.3d 19, 25 [263 Cal.Rptr. 678] [in determining whether a particular technique is generally accepted “defendant is not foreclosed from showing new information which may question the continuing reliability of the test in question or to show a change in the consensus within the scientific community concerning the scientific technique”].)
In Ramirez v. State 810 So. 2d. 2d 836, 2001 WL 1628609, the Florida Supreme Court recently reversed a capital murder conviction for the third time because of the trial court’s erroneous admission under the Frye standard of a toolmark examiner’s opinion that the defendant’s knife caused the fatal injury to the exclusion of all other knives in the world. In reaching this result, the Court applied many of the same reliability factors utilized in the Daubert opinion and placed particular emphasis on the fact that “the final deduction is in the eyes of the beholder, i.e., the identification is a match because the witness says it is a match.” Id. at 7. Echoing many of the criticisms recently leveled against fingerprint examiners, the Court held that the expert’s subjective testing procedure ” possesses none of the hallmarks of acceptability that apply in the relevant scientific community to this type of evidence. This is particularly true in light of the extraordinarily precise claims of identification that Hart makes under his testing procedure–i.e., he claims that a ‘match’ made pursuant to his method is made with absolute certainty. Such certainty, which exceeds even that of DNA testing, warrants careful scrutiny in a criminal–indeed, a capital–proceeding.” Id. at 9. More broadly, the court proclaimed that:
In sum, Hart’s knife mark identification procedure–at this point in time– cannot be said to carry the imprimatur of science. The procedure is a classic example of the kind of novel “scientific” evidence that Frye was intended to banish–i.e., a subjective, untested, unverifiable identification procedure that purports to be infallible. The potential for error or fabrication in this procedure is inestimable. In order to preserve the integrity of the criminal justice system in Florida, particularly in the face of rising nationwide criticism of forensic evidence in general, our state courts–both trial and appellate–must apply the Frye test in a prudent manner to cull scientific fiction and junk science from fact. Any doubt as to admissibility under Frye should be resolved in a manner that minimizes the chance of a wrongful conviction, especially in a capital case.
Id. at 11.
In what follows, I have attempted to provide summaries of recent developments in several areas of forensic science of relevance to capital cases. The areas are not exhaustive of the current challenges being litigated across the country and I have included references to some cases that are unpublished or have been reversed. The idea here is to stimulate thought and to provide a current reference point for the several fields of forensic science that are most vulnerable to challenge. This A-Z listing of successful recent challenges will hopefully grow in the years ahead.
II. An A-Z List of Some Recent Succesful Challenges
Ballistics
Steele, All We Want You To Do Is Confirm What We Already Know”: A Daubert Challenge to Firearms Identifications, 38 Crim L. Bull. 1 (July/August 2002) http://forensic.to/links/pages/Forensic_Sciences/Field_of_expertise/Firearms/ “Widespread acceptance, in the absence of critical scientific testing, is an insufficient guarantee that a method is sufficiently accurate to be introduced in a criminal trial. Recent challenges to latent fingerprint analysis and hair and fiber comparisons should alert attorneys that the science underlying firearms identification likewise needs to be critically re-examined under Daubert.” (Excellent overview with suggested cross examination questions.)
State of Florida vs. Jerry Lane Rogers (May 10, 2002), in limine motion to exclude bullet and cartridge case comparisons on Daubert grounds, http://afte.org/swggun/resources/Florida%20vs%20Rogers.pdf
1.Request of James Hamby, April 10, 2001, afte.org: “I am requesting that those examiners that have received the 10 barrel test complete same and forward the information to me for inclusion in the ongoing study. We (the field) can expect a Daubert challenge in the near future and the more data that we have, the better to present in court. To date, some 112 examiners have completed the test. Additionally, I am still requesting the ‘history’ of who trained you, who you trained, et al., to create a flow chart for historical purposes.”
Gates v. City of Memphis, 2000 WL 377343 (6th Cir.) Upholding the trial court’s exclusion of expert testimony from a former police officer who had become a “forensic consultant.” In particular, he was proffered as an expert on the subject of trajectory analysis. Citing Joiner, Daubert, and Kumho, the appellate court held that in “light of the fact that [the expert] had never received formal training in trajectory analysis, . . . had no post-secondary education in physics, anatomy or physiology, and . . . had made no measurements, and had done no scientific testing on this particular shooting scene, the district court did not abuse its discretion in excluding [his testimony].”
Paul Giannilli and Edward Imwinkelreid, Scientific Evidence: The Fallout From Supreme Court’s Decision In Kumho Tires 14-WTR Crim. Just. 12(Winter, 2000): “Another traditional technique now coming under fire is firearm identification (ballistics). Such evidence has been accepted as a matter of course by courts since the 1930s. However, in People v. Hawkins, 42 Cal. Rptr. 2d 636 (Cal. 1995), cert. denied, 517 U.S. 1193 (1996), the defendant attacked the scientific basis of firearm identification evidence. The prosecution experts ‘conceded that ballistics identification is not an exact science. Rather, ballistics experts develop proficiency by microscopically observing a large number of bullets known to have been fired from the same gun, and from different guns, so that they acquire knowledge of when the similarities of the bullets’ striations are sufficient to establish that the bullets were discharged from the same firearm.'” In rebuttal in Hawkins, the defense introduced two articles by Alfred Biasotti that call for the reform of firearm identifications by developing a statistical database. One expert ‘conceded that ballistics identification was to some extent more of a skill than a science, an intuition informed by extensive experience.’ (Id.) Although the Hawkins court upheld admissibility under Frye, this marks one of the first attacks on firearm identification evidence in half a century, and the opinion was rendered before Kumho was handed down. After Kumho, a prosecutor cannot deflect a defense attack simply by arguing that his or her expert is testifying on the basis of “skill [rather] than science.” In short, Kumho will likely encourage the defense to attack firearm identification testimony.”
Benjamin Bachrach, Ballistics Identification: How Sure are we that a Match is a Match ?, AFTE Conference 2000, afte.org: “The subjective nature of current ballistic identification criteria poses a serious problem for the use of ballistic evidence evaluations in court. Perhaps the most compelling evidence of the need for a quantifiable methodology for Firearms identification comes from the Daubert decision.”
National Institute of Justice, Forensic Sciences: Review of Status and Needs (Feb. 1999), http://www.ncjrs.org/pdffiles1/173412.pdf: “Examiners do not routinely reference the available literature when testifying to these identifications, and there are some ‘gaps’ in the knowledge set with respect to the relative frequency of–and therefore importance to be assigned to–particular types of microscopic features from various tools and weapons. Extension of the available knowledge is necessary to provide more formal support for these identifications.”
National Institute of Justice, Forensic Sciences: Review of Status and Needs (Feb. 1999), http://www.ncjrs.org/pdffiles1/173412.pdf: “Current algorithms for characterizing microscopic striae principally map the image in two dimensions (x- and y-). While these algorithms may provide adequate information for some applications, improvements are still needed. This is especially the case for impressions made on nonplanar surfaces (such as bullets). The depth of the striation provides an additional dimension that is currently ignored in the image-capture systems, primarily because the imaging equipment is not designed for such determinations. Incorporation of this third dimension for characterizing striae would provide much greater discriminating power to the algorithm.”
Paul Giannelli and Edward Imwinkelried, 1 Scientific Evidence (1998), p. 374: “The Crime Laboratory Proficiency Testing Program raised questions about the competence of some firearms identification examiners. In one test 5.3 % of the participating laboratories misidentified firearms evidence, and in another test 13.6 % erred. These tests involved bullet and cartridge case comparisons….A third test required the examination of two bullets and two cartridge cases to identify the ‘most probable weapon’ from which each was fired. The error rate was 28.2 %”
Biasotti, The Principles of Evidence Evaluation as Applied to Firearms and Tool Mark Identification, 9 J. Forensic Sci. 428 (1964): “From the number of texts devoted exclusively to the subject of firearms and toolmark identification, it might appear that this specialized area of physical comparison is a highly developed science with well defined criteria for evidence evaluation. On the contrary, a review of the literature reveals a very superficial treatment of this basic problem of evaluating results and establishing identity.”
Bias
D. Michael Risinger, Michael J. Saks, William C. Thompson, Robert Rosenthal, The Daubert/ Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 Cal. L. Rev. 1 (2002)
Bitemark Evidence
Crider v. Oklahoma, http://www.state.ok.us/~oids/coca/CriderBH.pdf (October 11, 2001) A forensic odontologist’s testimony should have been excluded because it involved a method wholly lacking validity under existing standards of the profession. Also, the court holds that a bitemark expert may not testify unless his conclusions are at least “probable,” as opposed to “possible.”
Keko v. Hingle, 1999 WL 155945 (E.D. La. 1999) This is a civil case in which the plaintiff sued several law enforcement officers who had arrested him for the murder of his wife. He had been convicted, based in part on bitemark evidence from a dentist (Michael West) who was disciplined by two professional societies for his unconventional and untested method. In this case he had looked at photographs of the wife’s body and reviewed autopsy results, from which he claimed to see bitemarks that matched the plaintiff’s (then defendant’s) teeth. One reason the plaintiff’s conviction had been reversed had been because this evidence did not pass muster under Daubert. In this decision the court reviewed the foregoing history and denied the defendants’ motion to dismiss.
Blood Testing
State v. Fukusaku, 946 P.2d 32 (Haw. 1997) The court affirmed the trial courts decision to exclude testimony based on luminol and phenolphthalein tests for blood stains. Positive test results were properly excluded, and negative results properly admitted by the trial court.
United States v. Hill, 41 M.J. 596 (A. Ct. Criminal App. 1994) The appellant in this case had been identified as the attacker in an attempted murder based in part on detecting blood on his clothing using a “luminol” test. The appellate court held this evidence should not have been admitted under Daubert because there had been no proper follow-up to confirm the initial indication of blood on the clothing.
Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), deciding an issue of first impression, reversed the lower court and held that the results of luminol tests done without follow-up procedures were unreliable to prove the presence of human blood or that the substance causing the reaction was related to the alleged crime, and were therefore inadmissible. The court, noting that the Frye v. U.S., 293 F. 1013, 34 A.L.R. 145 (App. D.C. 1923), standard had not been adopted in Arkansas, applied a standard based on the relevancy approach of the Uniform Rules of Evidence Rule 702 to determine the admissibility of the novel scientific evidence. Under that standard, a preliminary inquiry must be conducted to first, determine the reliability of the novel process used to generate the evidence; second, examine the possibility of confusing or misleading the jury if the evidence is admitted; and third, examine the connection between the proffered evidence and the disputed factual issues in the particular case. Applying this standard, the court held that, because luminol testing can return false-positive results by reacting with substances other than human blood, and because luminol testing is not time-specific, luminol test results are not relevant per se and their admission without additional factors that relate that evidence to the crime would confuse a jury.
State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990), the court, reversing the lower court, held that where a test sample was too small to perform a conclusive test, a presumptive test for blood had no probative value whatsoever. Applying a relevance test, the court stated that the presumptive test alone did nothing toward establishing the likelihood of the presence of human blood and was therefore entirely irrelevant.
People v. Coleman, 46 Cal. 3d 749, 251 Cal. Rptr. 83, 759 P.2d 1260 (1988) The court held that the testimony of a crime laboratory inspector was insufficient to permit introduction of evidence regarding a “hemostick” test for blood at the murder scene, where the inspector was not an expert on blood or blood tests, nor did he otherwise have a scientific basis on which to testify about the reliability of test, and where there was no information about what type of presumptive test the “hemostick” was.
Admissibility of results of presumptive tests indicating presence of blood on object, 82 A.L.R.5th 67(2000)
Blood Splatter Testimony
Peter J. Diaczuk., Zvi Herschman, Peter A. Pizzola and Peter R. De Forest, A New Experimental Model for Evaluating Mechanisms of Gunshot Spatter, http://www.cacnews.org/sp2002abstracts/cacspring2002meetingabstracts.aspx Casework experience and theoretical considerations have suggested that widely accepted beliefs about bloodspatter resulting from gunshot wounds are simplistic and often simply wrong. We have observed “expert” testimony founded on such false premises, which may have led to miscarriages of justice.
State v. Blem, 610 N.W.2d 803 (S.D. 2000) The defendant in this murder case claimed he had acted out of fear for his life and in self-defense. On appeal he argued that the prosecution had improperly stricken jurors, and that expert testimony on blood spatter analysis should not have been admitted. The South Dakota Supreme Court reversed on both points. With regard to the expert, the court was particularly concerned that he had not been disclosed to the defense. Daubert was cited in noting that the defendant had questioned the expert’s qualifications, and that he had requested a Daubert hearing and had not waived the admissibility issue.
Bullet Lead Compositional Analysis
State v. Noel, 697 A.2d 157 (N.J. App. Div 1997), reversed 157 N.J. 141, 723 A.2d 602 The defendant in this case was convicted of murder, based on highly questionable eyewitness testimony and on the fact that he was found in possession of bullets of the same make and brand as the bullets that killed the victim. A crucial part of the evidence was the testimony of an FBI expert regarding the chemical composition of the murder bullets and the bullets found on the defendant. He used coupled plasma atomic emission spectroscopy, and testified that the percentage of various trace impurities varied from batch to batch of lead, but he didn’t know how many bullets would be made from a batch. The prosecution focused on this expert evidence in summation. Under these circumstances, the appellate court found its prejudicial effect outweighed its probativeness. Daubert was cited in the context of an article on the problems of using “matching evidence” without any statistical background, and for the proposition that Rule 403 can sometimes play a role in determining admissibility.
Erik Randich, A Metallurgical Review of Bullet Lead Compositional Analysis, http://www.cacnews.org/sp2001abstracts/gen/AMetallurgicalReviewofBulletLeadCompositionalAnalysis.doc A comparison of minor and trace element analyses of bullet lead fragments found at the crime scene with bullets found in a suspect’s possession has been used to associate the suspect with the crime scene. Ongoing research in this area has shown that the validity of this method depends on two metallurgical assumptions that may not be valid. A critical review of the interpretation of the method in light of several years of lead alloy data for .22 caliber ammunition for two of the largest ammunition manufacturers is presented. Previous interpretation of data in criminal cases by law enforcement agencies is discussed to demonstrate the possible misinterpretation of results.
Erik Randich A Critical Review of Comparative Bullet Lead Analysis, http://afte.org/TrainingSeminar/AFTE2002/Summaries/afte2002_wed.aspx Comparison of the minor and trace element compositions of bullet lead alloys has been used by some forensic examiners to make definitive positive associations between bullets or lead fragments at a crime scene and samples of bullets linked to a suspect. Such conclusions have been based on the elemental analysis of small, isolated groups of bullets with no consideration of the metallurgical processes involved in the production and refining of the bullet lead alloys. No foundation has ever been established to show that “sources” of bullet lead alloys are unique or individualized enough to positively identify a single common “source” for various groups of bullets. An understanding of the metallurgy of lead refining shows that the elements quantified in the forensic analysis are carefully controlled in the refining process and that there is no reason to expect unique “sources” of bullet lead alloys. It also shows that there are logical reasons why some elements have been found to be more “discriminatory” than others. Data for lead alloys supplied to two major ammunition manufacturers confirm that multiple indistinguishable shipments of lead alloys from secondary lead refiners to the ammunition manufacturers are made each year and over a period of many years. The data also demonstrates that distinguishable compositions can come from the same melt or “source” of lead alloy. These results clearly indicate that bullets with indistinguishable compositions could have come from different lead “sources” produced in the same or different years. Furthermore, the observation that two bullets have a distinguishable composition does not necessarily mean that they came from a different source.The results show that the forensic examiner using a method of bullet lead alloy elemental analysis which quantifies up to six elements is restricted to concluding only that indistinguishable bullets might have come from the same “source”, not that they did come from the same source. In addition, it is quite reasonably possible that multiple bullets with similar but distinguishable compositions could have come from the same “source.” It is clear that there is no scientific validity to any conclusions more positive that attributing the possible association as to a common source among bullets from different samples. An understanding of the metallurgical principles operative in the melting/casting process, as well as the data acquired for this study, indicate that any forensic conclusions which associate unknown bullets with the “same source”, and/or “same box” should fail most or all Daubert criteria.
Child Abuse Experts
Gilson v. State, 8 P.3d 883, 907-08 (Okla.Crim.App.2000). Affirming trial court’s exclusion of expert witness, who was going to testify regarding child abuse interview techniques and competency of victims as witnesses, on Daubert grounds.
State v. Foret, 628 So.2d 1116, 1125 (La.1993). Declining to admit sexual abuse syndrome evidence to prove abuse because it had not attained scientific acceptance and thus failed a Daubert analysis, but recognizing that such evidence could potentially serve a “rehabilitative function” to explain victim behavior.
Confrontation
State v. Lehr, 38 P. 2d 1172 (Az. 2002). Credibility of protocol used by laboratory when analyzing DNA samples was within province of the jury, and thus defendant was erroneously denied confrontation right when his cross-examination of state’s expert regarding the protocol was limited and he was not allowed to present his own expert. “The state argues that any error was harmless because the defendant was not totally precluded from criticizing the DNA evidence before the jury. However, the mere fact that the defense was allowed to question the reliability of the DNA evidence on a limited basis does not cure the error in this case. We have previously noted that ” ‘science’ is often accepted in our society as synonymous with truth.” Bible, 175 Ariz. at 578, 858 P.2d at 1181 (quoting Morris K. Udall, et al., Arizona Practice: Law of Evidence §§ 102, at 212 (3d ed.1991)). This is particularly so in the case of DNA evidence, which has the potential to dominate a factfinder’s thinking.”
Dog Sniffing
United States v. $141,770.00 in United States Currency, 157 F.3d 600 (8th Cir. 1998). The expert issue in this civil forfeiture case was the trial court’s decision to exclude testimony from a forensic chemist regarding the percentage of U.S. currency that is contaminated with at least some drug residue. The money in question was found hidden in a camper vehicle in which the two defendants were travelling. A trained dog later indicated there were traces of drug residues on it. The Eighth Circuit affirmed, noting that the expert’s “methodology–to the extent that he can be said to have had one–does not bear any of the indicia of reliability articulated in Daubert.” The testimony also was irrelevant because the expert “was not prepared to testify as to the level of contamination which must exist before a drug-sniffing dog will alert to currency, or as to the percentage of United States currency which contains this requisite level of contamination.”
Dying Declarations
Brendan I. Koerner, Last Words: Why Are We So Sure that Death and Honesty Go Together? 2002-DEC Legal Aff. 33 “Rather than attacking a dead person’s moral fiber, defense lawyers would be better off calling into question the reliability of a traumatized brain. In an era of DNA analysis, courts are keener than ever to hear scientific evidence based on laboratory studies. And medical research is fairly unanimous in asserting that murder victims often lack the physical ability to think or communicate rationally.”
DNA
State v. Traylor, 641 N.W.2d 335, 340-41 (Minn.App.2002), review granted (Minn. May 14, 2002)(the Cofiler and Profiler Plus Kits used in PCR-STR DNA testing did not meet the Frye-Mack test because the kits were not developed in accordance with the standards promulgated by TWGDAM. Accord, State v. Oleynik, 2002 WL 51654991 (“Here, the BCA analyzed the DNA samples using PCR-STR technology and Cofiler and Profiler Plus test kits. Thus, following the holding in Traylor, we are compelled to conclude that the district court abused its discretion by admitting DNA evidence using the Cofiler and Profiler Plus test kits.”)
Murray v. Florida, 2002 WL 31191035 (Fl. 10/3/2002). Polymarker DNA testing was too flawed to be admissible and the trial court impermissibly denied the jury the opportunity to hear testimony relating to the prosecution expert’s attempt to influence a defense expert. “Not only did the initial analyst and his supervisor disagree as to the results of the tests, but the analyst failed to properly document the required controls of the test–another step which the experts agree is required within the scientific community. Specifically, the analyst failed to take a picture of one of the control strips which would have shown whether the tests had been contaminated.”
State v. Proctor (S.C. App. 2001) 2001 WL 1525344. “SLED (the South Carolina Law Enforcement Division ) takes the position that Agent Jeffcoat’s affidavit is sufficient. The French phrase “pas du tout” (Not at all, not so) is applicable. Are the court and defense counsel required to accept the self-serving assertion by the SLED examiner that he and the other DNA examiners passed all proficiency testing? Does the law allow any meaningful review of the background and qualification of a DNA examiner? Are all litigants in a DNA evidence scenario bound by the statement emanating from the DNA expert witness that he or she passed all proficiency rating testing? A commonsensical analysis compels this Court to conclude that a DNA expert, like all expert witnesses, is subject to scrutiny and query in regard to qualification and competency.”
State v. Lehr, 38 P. 2d 1172 (Az. 2002), supra, p. 12 (under “Confrontation”)
Thompson WC, Taroni F, Aitken CGG, How the probability of a false positive affects the value of DNA evidence, 48 Journal of Forensic Sciences 1, No. 1 (2003) Errors in sample handling or test interpretation may cause false positives in forensic DNA testing. This article uses a Bayesian model to show how the potential for a false positive affects the evidentiary value of DNA evidence and the sufficiency of DNA evidence to meet traditional legal standards for conviction. The Bayesian analysis is contrasted with the “false positive fallacy,” an intuitively appealing but erroneous alternative interpretation. The findings show the importance of having accurate information about both the random match probability and the false positive probability when evaluating DNA evidence. It is argued that ignoring or underestimating the potential for a false positive can lead to serious errors of interpretation, particularly when the suspect is identified through a “DNA dragnet” or database search, and that ignorance of the true rate of error creates an important element of uncertainty about the value of DNA evidence.
Wickenheiser RA, Trace DNA: A review, discussion of theory, and application of the transfer of trace quantities of DNA through skin contact, 47 Journal of Forensic Sciences 442, No. 3 (2002). Advances in STR PCR DNA profiling technology allow for the analysis of minute quantities of DNA. It is frequently possible to obtain successful DNA results from cellular material transferred from the skin of an individual who has simply touched an object. Handling objects, such as weapons or other items associated with a crime, touching surfaces, or wearing clothing, may represent sufficient contact to transfer small numbers of DNA bearing cells, or trace DNA, which can be successfully analyzed.
Mismatch Calls DNA Tests Into Question, USA TODAY, February 8, 2000, p. 1(“Great Britian’s national DNA database, the world’s largest crime-solving computer system, has mistakenly matched an innocent man to a burglary-a one-in-37 million possibility that American experts call ‘mind-blowing'”).
State v. Roth, 2000 WL 970673 (Del. Super. 2000) One of the defendants in this murder case moved to exclude DNA evidence from a mixed sample that included blood from several people. Citing Daubert, the court granted the motion. The evidence would be unduly prejudicial because only about half the population could be excluded by the test results. “A result which includes 50 percent of the population as possible donors, is not a conclusive result.”
Earprints
State v. Kunze, 1999 WL 1017935 (Wash. App. 1999) The defendant in this case was convicted of a murder based largely on an “earprint” found at the crime scene. He appealed, arguing that under Washington’s Frye rule, this kind of evidence was not generally accepted. The Washington Court of Appeals reversed, holding that evidence of an earprint match could be admitted, but not expert testimony about the print necessarily coming from the defendant. The case is particularly interesting because the court explored a number of problems with unvalidated matching techniques. One issue emphasized by the court was the crime lab’s efforts to make the defendant’s “earprint” look like the latent print. As one witness said of the efforts to make the prints look alike, “we don’t do that in science . . . [b]ecause we’re not trying to make them look alike.” The court rejected the argument that comparing impressions was a standard, generally accepted technique, and that the crime lab had really done nothing unusual in this case. The lack of peer review also was noted. There was extensive discussion of how forensic science differs from other science–one focuses on individualization, the other on generalization–and of whether this evidence was even properly classified as scientific, technical, or specialized knowledge. The court noted that the general principle that things don’t repeat themselves in nature “cannot be substituted for a systematic and thorough investigation of a physical evidence category.” The court cited Kumho for the proposition that at “least in some instances, there is no meaningful distinction between scientific knowledge on the one hand and technical or specialized knowledge on the other.”
False Confessions
Boyer v. State , 825 So. 2d 418 (Fla. App. 2002) Exclusion of expert witness testimony concerning phenomena of false confessions was not harmless beyond reasonable doubt.
False Credentials
Mark Hansen, Checking Credentials: New Board Plans to Accredit Forensic Groups, 1 NO. 16 A.B.A. J. E-Report 4 April 26, 2002 “A year or two from now, if all goes according to plan, it should be easier to tell whether the witness who calls himself a forensic expert really is one. That’s when the Forensic Specialties Accreditation Board expects to begin accrediting the forensic organizations that approve experts’ credentials.”
Paul C. Giannelli, False Credentials, 16-FALL Crim. Just. 40 (2001)
Mark Hansen, Inexpert Witness: Lies, Resumé fraud take down “expert” before he takes stand again, 87 ABA J. 20 (Feb. 2001).
Commonwealth v. Mount, 257 A.2d 578, 579 (Pa. 1969). Death sentence vacated after it was discovered that a prosecution expert, who had testified in many cases, had lied about her professional qualifications as a lab tech.
People v. Cornille, 448 N.E.2d 857, 865 (Ill. 1983) Unique situation of expert witness lying about his qualifications as expert witness for State created additional indicia of state action which, when linked to involvement of State’s adjudicatory processes, made his conduct a violation of due process, even under the more restrictive approach of the federal courts, and same was true though State’s use of perjured testimony was not knowing use of perjured testimony.
Imbler v. Craven (C.D.Cal.1969), 298 F.Supp. 795, aff’d per curiam (9th Cir.1970), 424 F.2d 631, cert. denied (1970), 400 U.S. 865, 91 S.Ct. 100, 27 L.Ed.2d 104. A key government witness falsely testified that he had earned college degrees in both industrial relations and engineering. The witness had a history of felony convictions and State mental hospital commitments and had testified that he had earned the second college degree only one year after his release from prison. The court held that this “reckless use of highly suspicious false testimony” violates due process.
Fingerprints
David L. Faigman, Is Science Different for Lawyers? Science 2002 July 19; 297: 339-340. “On the difficulties of studying the phenomenon of fingerprint identification, consider the following hypothesis: There is a vanishingly small statistical likelihood that some set of ridge characteristics (say eight, ten or twelve) on a given fingerprint will be found in a random sample of the population. This hypothesis depends on the factually testable question of what proportion of the population (or relevant sub-populations) has particular ridge characteristics…. But the most basic work has yet to be done. The other forensic sciences, including bite-mark analysis, handwriting identification, firearms analysis, and so on, are similarly amenable to test. Unfortunately, like fingerprints, most have not been seriously tested.”
David L. Faigman, David H. Kaye, Michael J. Saks & Joseph Sanders, 3 Modern Scientific Evidence: The Law and Science of Expert Testimony , Fingerprint Identification: Legal Issues § 27-1.0 at 347(2002 ed.) (“(S)urprisingly little conventional science exists to support the claims of the fingerprint examination community….Today, a thoughtful and scientifically literate proponent of expert fingerprint identification testimony, compelled by a thoughtful and scientifically literate opponent to demonstrate the validity of fingerprint identification claims in front of a thoughtful and scientifically literate judge, would face a number of serious difficulties”)
Dr. David Stoney, Fingerprint Identification: Scientific Status, in 3 Modern Scientific Evidence: The Law and Science of Expert Testimony § 27-2.1.2 at 378 (David L. Faigman et al. eds., 2002) (“In fingerprint comparison, judgments of correspondence and the assessment of differences are wholly subjective: there are no objective criteria for determining when a difference may be explainable or not.”). See also, § 27-2.1.2 at 379 (“The process of fingerprint examination and comparison has recently been articulated by Ashbaugh and his terminology has gained some acceptance within the forensic community.”); § 27-2.1.2 at 381 (“From a statistical viewpoint, the scientific foundation for fingerprint individuality is incredibly weak”.); Id. at § 27-2.3.1 at 388 (“[T]here is no justification [for fingerprint identifications] based on conventional science: no theoretical model, statistics or an empirical validation process.”).
United States v. Llera Plaza, 179 F. Supp. 2d 492 (E.D. Pa. Jan. 7, 2002) (excluding, in part, expert testimony comparing fingerprints), vacated, 188 F. Supp. 2d 549, 576(E.D. Pa. Mar. 13, 2002) ” I have concluded that arrangements which, subject to careful trial court oversight, are felt to be sufficiently reliable in England, ought likewise to be found sufficiently reliable in the federal courts of the United States, subject to similar measures of trial court oversight. In short, I have changed my mind.”
Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint “Science” is Revealed, 75 Southern California Law Review 605 (2002) “Recently… some of the leading voices in the forensic science community have begun to question the scientific foundation of the fingerprint field and suggest that latent fingerprint identifications may not be nearly as reliable as people have long assumed.”
Jessica M. Sombat, Note, Latent Justice: Daubert’s Impact on the Evaluation of Fingerprint Identification Testimony 70 Fordham L. Rev. 2819 (May, 2002)
Jennifer L. Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 Brook. L. Rev. 13, 31-32, 36 (2002)
Carrie C. Coppage, The Revolution of the Admissibility of Scientific Evidence with Print Identification as a Model, 24 Am. J. Trial Advoc. 609 (2001)
Steve Berry, Pointing a Finger at Prints, L.A. Times, Feb. 26, 2002, at A1, 2002 WL 2457000 (explaining that, over the past twenty-five years, fingerprint examiners have incorrectly matched the fingerprints of criminal defendants with fingerprints found at crime scenes several times).
Simon A. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification (2001) (discussing the absence of serious challenges to fingerprint evidence’s “fundamental reliability” since its acceptance by courts in the early 1900s).
Paul Giannelli and Edward Imwinkelried, 1 Scientific Evidence (3d. Ed. 2001 Supp )§ 16-9(D), p. 113 (“The issue is not whether persons have distinctive fingerprints. Rather, the question is the reliability of findings of matches given the size and clarity of the latent print found. Even if persons have unique fingerprints, the process of determining matches may be unreliable.”).
Government of the Virgin Islands v. Jacobs, 2001 WL 1735083 (D.Virgin Islands 2001) (“Although the government had notice that the hearing would be to determine the admissibility of the fingerprint evidence under Daubert, it did not present any evidence or even produce the proffered expert witness for examination by the defendant or the court….Under these circumstances, the trial court was virtually compelled by default to reject the government’s fingerprint identification opinion as unreliable, and thus inadmissible, under Daubert and Kumho Tire. In doing so, the trial court did not abuse its discretion, and the evidence was properly excluded.”)
Dr. John Thornton, Setting Standards In The Comparison and Identification,84th Annual Training Conference of the Calif. State Div. of IAI, May 9, 2000, http://www.latent-prints.com/Thornton.aspx. ” Identifications based on level three detail have yet to be rigorously tested either in a scientific venue or in court….In his book, Asbaugh takes pains to develop the basis of ridgeology. And I think he does a commendable job of doing so, but it’s an argument. You may think it’s a good argument. But it’s still an argument and argument is not proof.”
National Institute of Justice, Solicitation: Forensic Friction Ridge (Fingerprint Examination Validation Studies (March 2000) (“The participants in the [National Institute of Justice Fingerprint Research Advisory Panel] included practicing latent print examiners, researchers, and senior administrators from Federal, State, and private forensic science laboratories. They reached a consensus that the field needs…basic research to determine the scientific validity of individuality in friction ridge examination….”)
Dusty Clark, What Is the Point ?, http://www.latent-prints.com/id_criteria_jdc.aspx (“If the analysts do not quantify their analysis then their opinion of identity is strictly subjective. A subjective analysis without quantification makes the identification process as reliable as astrology. If one does not quantify, is it an ID when a warm and fuzzy feeling overwhelms you? What happens if my warm and fuzzy feeling is different that yours?”) (Dusty Clark is a California Department of Justice fingerprint expert).
James E. Starrs, Judicial Control Over Scientific Supermen: Fingerprint Experts and Others Who Exceed The Bounds, (1999) 35 Crim. L. Bull. 234, 243-246, Exhibit 9 (describing two cases in England in 1991 and 1997 in which misidentifications were made despite the fact that the British examiners insist on 16 points for an identification and triple check fingerprint identifications) (hereinafter “Scientific Supermen”)
David R. Ashbaugh, Quantitative-Qualitative Friction Ridge Analysis: An Introduction to Basic and Advanced Ridgeology 103 (1999). “The opinion of individualization or identification is subjective.”
Michael J. Saks, Merlin and Solomon: Lessons from the Law’s Formative Encounters With Forensic Identification Science, 49 Hastings L.J. 1069, 1106 (1998) (“A vote to admit fingerprints is a rejection of conventional science as a criterion for admission.”)
I. W. Evett and R.L. Williams, A Review of the Sixteen Point Fingerprint Standard in England and Wales, (1996) 12(1) The Print 1,4, http://www.scafo.org/library/120101.aspxl, (“Experts [in Britian] appeared to have a particularly poor regard for the fingerprint profession in the USA where there is no national standard. Cases of wrongful identification which had been made by small bureaus in the USA were cited as being symptomatic of a poor system and the dominant view was that such unfortunate events would not have occurred had there been a 16 points standard in operation”).
Latent Print Examination, Legal Challenges to Fingerprints, at http://onin.com/fp/daubert_links.aspxl
Montana v. Cline, 275 Mont 46, 55, 909 P. 2d 1171 (1996) “It must also be noted that we do not consider fingerprint evidence in general to be novel scientific evidence. However, in the present case the issue is whether it is possible to determine the age of a fingerprint utilizing magnetic powder. We apply the Daubert standard to this case because we consider fingerprint aging techniques in this context to be novel scientific evidence….In this case, the State established the necessary foundation regarding the issue of determining the age of fingerprints. Wieners referenced and quoted a number of scientific treatises on fingerprint technology.”
Footwear Impression Evidence
United States v. Allen, 207 F. Supp. 2d 856, 869 (N.D. Ind. 2002) “Under Daubert and its progeny, a party proffering expert testimony must show by a “preponderance of proof” that the expert whose testimony is being offered is qualified and will testify to scientific knowledge that will assist the trier of fact in understanding and disposing of issues relevant to the case, see Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. at 2796. Here, the Government has not met its burden at this time. While the court has held that the Daubert inquiry is satisfied as it relates to footwear impression evidence as a whole, this court cannot conclude with any certainty until trial whether Pitzen is qualified to offer an expert opinion or whether he has applied the principles and methods discussed herein reliably to the facts of the case. The ultimate question is: can the defendant establish that the footwear impression practices followed in this case are so deficient under the standards described by the Government’s witnesses that the testimony must be excluded altogether; or is this simply a matter for cross-examination so that the jury can assess how much weight to give to the purported testimony in this case? Such a conclusion will have to wait until after a supplemental Daubert hearing wherein the court has an opportunity to review Pitzen’s proposed testimony. At that time, the court may then be able to make an ultimate determination as to whether Pitzen may offer his expert opinion.”
State v. Jones (2001) 343 S.C. 562, 574, 541 S.E.2d 813 “In our opinion, it is premature to accept that there exists a science of ‘barefoot insole impressions’…. We find, therefore, that the trial judge erred in permitting expert testimony purporting to demonstrate that “barefoot insole impression” testing revealed [defendant’s] foot to be consistent with the impression made by the primary wearer of the … [crime scene] boot.”
State v. Berry (2001) 143 N.C. App. 187, 546 S.E. 2d 545 (same) Foot impression testimony excluded in part because there was no ” use of visual aids before the jury so that the jury is not asked to sacrifice its independence by accepting [the] scientific hypotheses on faith.”
Gunshot Residue
Powers v. Shanks, 1999 WL 100880 (10th Cir.) (unpublished) The prosecution admitted no evidence regarding the results of the Harrison primer residue test, making it unnecessary for effective defense counsel to call a witness to rebut the results. ” In any event, the residue primer test results were inconclusive, probably because soot, smoke, and water stemming from the fire that had been set at the crime scene contaminated the residue collected from the decedent’s hands. It is hard to imagine that any expert testimony regarding the primer residue test results, under these circumstances, would have assisted petitioner’s case. In fact, such testimony would likely have constituted pure speculation, making it inadmissable.”
Hair Comparison
Houck MM, Budowle B, Correlation of microscopic and mitochondrial DNA hair comparisons, 47 Journal of Forensic Sciences 964, No. 5 (2002). Human hairs submitted to the FBI Laboratory for analysis between 1996 and 2000 were reviewed. Of 170 hair examinations, there were 80 microscopic associations; of these, nine were excluded by mtDNA.
Rowe and Foran, “Is it Time to Stop Microscopic Hair Comparisons”, AAFS Annual Seminar (Feb. 2001) “Because of the serious problems with the microscopic examination of hair that have recently been revealed the authors make the following recommendations regarding these types of examinations: Mitochondrial DNA sequencing should be the preferred method for comparing both human and animal hairs. Microscopic examinations should be retained only as screening tools. The results of microscopic comparisons of hairs should not be presented in court unless verified by mitochondrial DNA sequencing.”
State v. Reid, 757 A.2d 482 (Conn. 2000). The defendant in this rape case argued on appeal that hair comparison evidence should not have been admitted against him at trial. The Connecticut Supreme Court affirmed, holding that Daubert was not applicable to physical comparison evidence, which although based on science is not a “matter of . . . scientific test or experiment.” The court cited a number of other jurisdictions that had held such comparison evidence not to be covered by Daubert. The decision does not address the question of the uniqueness of hair. That is, there is no discussion of the probability of a match occurring by chance. The court also addressed the fact that the expert had not compared all possible parameters, and held he had followed accepted procedures.
Williamson v. Reynolds (E.D. Okla. 1995) 904 F. Supp. 1529, 1558, rev’d on other grounds (10th Cir. 1997) 110 F. 3d 1523). Hair comparison evidence does not meet any of the requirements of Daubert.
Handwriting
Andrew Brownstein, Controversial Study Supports Admissibility of Handwriting 38-NOV Trial 91 Trial November, 2002 News & Trends. “In the July Journal of Forensic Sciences, computer scientist Sargur Srihari of the State University of New York at Buffalo throws the latest volley in a rancourous debate that is unlikely to end anytime soon. Srihari’s study–hotly contested by defense lawyers and many academics– asserts that with a reasonable writing sample, computers can accurately distinguish individual handwriting with 95 percent accuracy–100 percent with further work by a human analyst….Even though the study is relatively new, several courts–most notably a federal court in Pennsylvania–have accepted its results. (United States v. Gricco, ( 2002 WL 746037 )(E.D. Pa. Apr. 26, 2002).) The academic community, however, has not. “His claims to uniqueness are truly strange,” said Michael Risinger, a professor at Seton Hall University School of Law. “It’s a bizarre 19th-century notion.” He noted that even DNA researchers don’t make claims to uniqueness, relying instead on the probability of a match. And there are other criticisms: The sample size is too small, the participants too different to draw meaningful comparisons. The source document is too large–often, police or plaintiffs have nothing more than an address on an envelope. Perhaps most important, the study did not address forgery.”
United States v. Prime, 220 F. Supp. 2d 1203, 1212 n. 5 (W.D. Wash 2002). “The uniqueness or individuality of handwriting cannot be established simply by stating that different writers generate different algorithms. It is clear that individuality is an attribute that depends on the criteria used to judge the writing’s characteristics: the more thorough the examination, the more likely that writings will appear unique (even if written by the same person). Dealing with the uniqueness question in a particular situation requires determining the criteria used to determine uniqueness, whether such criteria are reliable and whether these criteria were in fact applied in the case.”
United States v. Brewer, 2002 WL 596365 (N.D. Ill. 2002) “(A)lthough the court is aware that handwriting analysis is the type of testimony that has often been permitted by courts in the past, the government has offered no argument or even a hint of the type of evidence that it would forward to prove the reliability of the handwriting comparison testimony. In the cases cited by defendant, the courts held hearings and generally concluded that handwriting analysis did not pass muster because the evidence showed that, despite its long history of acceptance, the validation studies are few (and those that have been done have been criticized as methodologically flawed), there has been no peer review by an unbiased and financially disinterested community of practitioners, the potential error rate is largely unknown, and the technique suffers from a lack of controlling standards. Although a hearing might be useful if the court were writing on a clean slate, the court’s review of these very recent handwriting analysis cases, and in light of the very similar type of testimony at issue here, leads it to conclude that unless some new studies have been conducted in the past six months, the government would be hard-pressed to establish that Seiger’s testimony would be sufficient under Daubert. Thus, the court grants defendant’s motion to exclude Seiger’s testimony.”
United States v. Saelee, 162 F.Supp.2d 1097 (D. Alaska 2001). Barring handwriting expert’s testimony as to conclusions and mere description of similarities and difference because, absent tested principles for making such comparisons, the testimony would be just as likely to mislead as to assist jury.
United States v. Fuji, 152 F.Supp.2d 939 (N.D. Ill. 2000) (barring handwriting expert’s testimony as to hand-printing)
United States v. Rutherford, 104 F.Supp.2d 1190 (D. Neb. 2000). Handwriting expert’s testimony meets the requirements of Rule 702 to the extent that he limits his testimony to identifying and explaining the similarities and dissimilarities between the known exemplars and the questioned documents. The expert is precluded from rendering any ultimate conclusions on authorship of the questioned documents and is similarly precluded from testifying to the degree of confidence or certainty on which his opinions are based
United States v. Hines (D. Mass. 1999) 55 F.Supp.2d 62 Barring testimony as to authorship of “stick-up” note but permitting testimony as to similarities between known handwriting and robbery note, but noting that this distinction would be difficult to enforce)
United States v. Santillan (N.D. Cal. 1999) 1999 WL 1201765 (same)
United States v. McVeigh, 1997 WL 47724 (D.Colo. 1997) (same)
United States v. Starzecpyzel (S.D.N.Y. 1995) 880 F. Supp. 1027, 1028 (“The Daubert hearing established that forensic document examination, which clothes itself with the trappings of science, does not rest on carefully articulated postulates, does not employ rigorous methodology, and has not convincingly documented the accuracy of its determinations.”)
United States v. Velasquez 64 F.3d 844, 852 (3rd Cir.1995) (overturning decision to exclude testimony of law professor critical of forensic document examination same law professor). But see, United States v. Paul, 175 F.3d 906, 912 (11th Cir.1999) (upholding district court’s decision to exclude testimony of same professor)
Judicial Comments on Reliability
State v. Leep, 569 S.E. 2d 669 (W. Va. 2002) “In addition to the special precautions trial judges should take in criminal cases, it is important, also, when scientific evidence is involved in such a proceeding, that the trial judge be especially careful to display an aura of neutrality. This is so because ‘[o]ne of the dangers inherent in expert testimony in regard to scientific tests is that the jury may not understand the exact nature of the test and the particular methodology of the test procedure and accord an undue significance to the expert testimony.’ State v. Clawson, 165 W.Va. at 621, 270 S.E.2d at 678. See also California v. Kelly, 549 P.2d 1240, 1245, 17 Cal.3d 24, 31, 130 Cal.Rptr. 144, 149 (1976) (“Lay jurors tend to give considerable weight to ‘scientific’ evidence when presented by ‘experts’ with impressive credentials.”). For this reason, then, we hold that a trial court judge should refrain from commenting to the jury upon the reliability of scientific evidence that has been admitted pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)….”
Malingering
Villalba v. Consolidated Freightways Corporation of Delaware, 2000 WL 1154073 (N.D. Ill.). The plaintiff in this automobile accident case sought to exclude expert testimony from a neuropsychologist regarding malingering. Citing Daubert the court rejected this challenge. The plaintiff had “not provided the Court with any information concerning how to evaluate a neuropsychologist’s opinions within the context of the four indices of reliability identified by the Supreme Court in Daubert.”
Coe v. State, 17 S.W.3d 193 (Tenn. 2000). This case involved the imposition of the death penalty on a man convicted of raping and murdering an eight year old girl. He argued he was not competent to be executed because he did not understand the fact of his impending execution and the reason for it. Numerous experts testified for both sides. The expert at issue was a psychologist who conducted tests that purported to show the condemned man was malingering and faking symptoms of schizophrenia. Though he had used standard tests, they had not been validated for a death row inmate. The Tennessee Supreme Court held it was not an abuse of discretion to consider this evidence. Under the state’s version of Daubert, the criticisms of the tests went to weight, not admissibility.
United States v. Gigante, 982 F.Supp. 140 (E.D. N.Y. 1997) The defendant in this Mafia case claimed he was mentally incompetent to stand trial. To prove his incompetence, he proferred the testimony of two experts. One of these experts based his opinions on the results of a positron emission tomographic (PET) scan, the other had put the defendant “through a battery of interactive, neuropsychological tests, including the Portland Digit Recognition Test, the Warrington Face Recognition Test, the Warrington Word Recognition Test, and the Rey 15-Word Test, that were designed to ascertain whether defendant was malingering.” Citing Daubert, the court found the opinions of these experts were unreliable and inconsistent with other evidence in the case. To the extent the experts had used controls, they had differed from the defendant in a number of important ways, including the fact they were not taking multiple medications like the defendant.
Pathology
People v. Martinez, 51 P.3d 1046, 2001 WL 1630083 (Colo.App. 2001). Trial court committed reversible error by admitting testimony of a pediatrician that the type of injury exhibited by the victim (subdural hematoma) was most often seen in falls from a multiple story building or a high speed accident. “The announced purpose of the testimony was to establish that the force necessary to cause a subdural hematoma was such that defendant must have acted ‘knowingly’ rather than ‘negligently;’ or ‘recklessly.’ For that purpose, the evidence was irrelevant, highly prejudicial, and, in addition, likely to confuse or mislead the jury. As presented and argued, the evidence was not probative of the force necessary to cause a subdural hematoma. Put another way, to determine how much force defendant must have inflicted on the child, it is the minimum force, however characterized, necessary to inflict a subdural hematoma that is relevant. The evidence presented through the pediatrician did not shed any light on that issue.”
State v. Young, 1998 WL 258466 (Tenn. Crim. App.). The defendant in this case was convicted of murder in the perpetration of a homosexual rape or attempted homosexual rape. The Tennessee Court of Criminal Appeals reversed because of the cumulative effect of a number of errors, one of which related to expert testimony from a coroner about the blood alcohol level in the victim’s blood. The victim had a very high level at the time of his death, and the coroner had been asked to speculate about how much higher the level may have been before he died. The witness had no idea, however, about exactly when or how much the victim had been drinking before his death.
Psychological Disorders
Greene v. Lambert, 288 F.3d 1081 (9th Cir. 2002) Decision to exclude all evidence of dissociative identity disorder from which defendant was allegedly suffering impermissibly infringed upon defendant’s constitutional right to present defense.
Semen Identification and Dating
Kerstin Gleim, Effects of Dry Cleaning on Semen Deposits, http://www.cacnews.org/sp2001abstracts/gen/EffectsofDryCleaningonSemenDeposits.doc The dry cleaning process does not remove semen deposits from rayon fabric; that is, it does not remove any of the target components that the forensic community uses to find and confirm the presence of semen. Therefore, a semen deposit on a garment that has only been cleaned by the dry cleaning process may not be “dated” by its cleaning schedule without further testing the particulars of the case.
Sex Offender Profiles
State v. Stevens, 78 S.W.3d 817, 835 (Tenn.2002) (holding that trial court did not abuse its discretion in excluding expert testimony that murder was a sexual homicide).
Earnest v. State, 805 So. 2d 599 (Miss. App. 2002). “[T]he trial judge determined that the opinions proffered by [the mental health experts]–that [the defendant] did not fit the profile of a sexual offender–were not derived from scientific principles generally accepted in their fields because there is no scientifically acceptable profile of a sex offender. The record reflects that the doctors even admitted as much, notwithstanding their testimony that the battery of tests they administered to the [defendant] are generally accepted and widely used in the fields of psychology and psychiatry. Based on these facts, we cannot conclude that the trial judge’s decision to not allow the expert testimony was arbitrary and clearly erroneous; therefore, we affirm him on this issue.”
Contra, Masters v. People, 2002 WL 31357276. Forensic psychologist’s expert testimony on the motivation, behavior, and characteristics of perpetrators of sexual homicides was reasonably reliable, as element for admissibility in prosecution for first-degree murder; the prosecution established that the evidence elicited from the psychologist was generally accepted within the forensic community, psychologist testified that there was a fairly extensive body of specialized literature dealing with sexual homicide as researchers had been studying the subject for over 100 years, and that the research had developed systematic comparisons of groups of sexual homicide perpetrators to control groups, and the psychologist, while admitting that research in the area of sexual homicide had not attained predictive capacity, testified that the ability to predict was not the only indicator of validity.
Sudden Infant Death Syndrome
Wilson v. State, 370 Md. 191, 803 A.2d 1034 (Md. 2002). The product rule should not have been used to calculate the likelihood that both of defendant’s children died of SIDS because it is not generally accepted in the medical field that SIDS deaths within a single family are independent. “We hold that the trial court erred in admitting expert testimony based on the product rule because a condition necessary to the proper application of the product rule was lacking: there was inadequate proof of the independence of Brandi and Garrett’s deaths. As evidenced by the authorities above cited, there is not general agreement in the scientific community as to the relationship between SIDS deaths within a single family. Stated another way, there is not general agreement in the medical community that multiple SIDS deaths in a single family are genetically unrelated. The literature continues to reflect a lively debate concerning the role of genetics in SIDS. Moreover, the recent study in the Journal of the American Medical Association suggests that there may well be a genetic component to SIDS.”
Time of Death
Schieber v. City of Philadelphia, 2000 WL 1670888 (E.D. Pa.). The plaintiffs in this case were the survivors of a woman who died after being attacked in her apartment. The Philadelphia police had responded to a report of a disturbance in the apartment, but had not forced entry. The survivors claimed that if the police had done so the victim would not have died. The defendants moved in limine to exclude the testimony of a forensic pathologist proffered on the question of whether the woman was alive at the time the officers knocked on her door. The court denied the motion, though it did hold the expert could not testify about why the victim was gagged, or about the relative frequency of rape/murder as opposed to rape. The parties agreed that “there is no scientific method to determine the precise time of death,” but that there “do exist some scientific methods for determining approximate time of death, such as analysis of rigor mortis, lividity, body temperature, eye fluid potassium levels, and autopsy examination of stomach contents.” Here, however, many of these tests had not been performed. The plaintiffs’ expert had therefore evaluated the circumstantial and environmental evidence surrounding the victim’s death. He based his opinions on “his review of the autopsy report, toxicology report, medical examiner file, crime scene photographs, autopsy photographs, transcripts of 911 calls, police reports, the complaint, [an order issued by the court], interviews with [the two police officers who had responded] and the initial responding neighbors, the [deposition of the doctor who performed the autopsy], and microscopic slides prepared from [the victim’s larynx].” The expert’s review was conducted “within scientifically based parameters,” namely the “generally accepted understanding of the length of time it takes for manual strangulation to cause unconsciousness, then brain death and finally, cessation of heart beat.”
Toolmarks
Sexton v. State, 2002 WL 31255412 (Tex.Crim.App.Oct 09, 2002). Theory that unfired shell casings could be identified by toolmarks was not shown to be reliable in aggravated assault trial, even though expert was qualified in firearms identification, toolmark theory with respect to fired bullets was widely accepted, two articles on which expert relied referenced magazine marks, technique was like fingerprint identification, and author of article that undercut theory was only amateur, where articles discussed magazine marks on fired bullets that also had marks made by firearms, opinion that magazine marking was 100 percent accurate was refuted by article, expert did not have magazine or magazines that allegedly made marks available for testing, and expert did not testify that he was familiar with magazine manufacturing process.
Ramirez v. State 810 So. 2d. 2d 836, 2001 WL 1628609. “In sum, Hart’s knife mark identification procedure–at this point in time– cannot be said to carry the imprimatur of science. The procedure is a classic example of the kind of novel “scientific” evidence that Frye was intended to banish–i.e., a subjective, untested, unverifiable identification procedure that purports to be infallible.”
