Ethically Litigating Forensic Science Cases: Daubert, Dna and Beyond
What are the shared responsibilities of the analyst, prosecutor ,defense attorney and judge when dealing with forensic science cases? This lecture also covers DNA evidence and focuses on discovery and litigation issues.
Ethically Litigating Forensic Science Cases: Daubert, Dna and Beyond
FORENSIC SCIENCE CASES
Thank you !
• Sarasota Chapter FACDL -- HOST
• Manatee Chapter FACDL -- Sponsor
• Connie Mederos-Jacobs -- Sponsor
Dana Moss Matt Sandburg Nancy Smith
• Lawyers who are members of professional
organizations have fewer ethical violations.
• County Bar Associations
• FACDL Statewide and local
Preamble: Florida Rules Professional
• In all professional functions a lawyer should
• prompt, and
Barriers to Competent Representation
• Excessive workload “A lawyer’s work load
must be controlled so that each matter can be
• Case complexity
• Lack of Time and Resources
RULE 4-1.1 COMPETENCE
• A lawyer shall provide competent
representation to a client.
Competent representation requires
the legal knowledge, skill,
thoroughness, and preparation
reasonably necessary for the
Legal knowledge and skill
• In determining whether a lawyer employs the
requisite knowledge and skill in a particular
matter, relevant factors include the relative
complexity and specialized nature of the matter,
the lawyer's general experience, the lawyer's
training and experience in the field in question,
the preparation and study the lawyer is able to
give the matter, and whether it is feasible to refer
the matter to, or associate or consult with, a
lawyer of established competence in the field in
What is Required?
• A lawyer need not necessarily have special
training or prior experience to handle legal
problems of a type with which the lawyer is
• A lawyer can provide adequate representation in
a wholly novel field through necessary study.
• Competent representation can also be provided
through the association of a lawyer of established
competence in the field in question.
Thoroughness and preparation
Competent handling of a particular
matter includes inquiry into and
analysis of the factual and legal
elements of the problem, and use of
methods and procedures meeting the
standards of competent practitioners.
It also includes adequate preparation.
• Is the evidence what it purports to be?
• Does the evidence support the conclusions
• Were relevant witnesses identified and
• Are there alternative explanations?
• RULE 3-4.2 RULES OF PROFESSIONAL
CONDUCT Violation of the Rules of
Professional Conduct as adopted by the rules
governing The Florida Bar is a cause for
4.4 LACK OF DILIGENCE
• The following sanctions are generally appropriate
in cases involving a failure to act with reasonable
diligence and promptness in representing a client:
• Disbarment is appropriate when:
• a lawyer knowingly fails to perform services for a
client and causes serious or potentially serious
injury to a client; or
• a lawyer engages in a pattern of neglect with
respect to client matters and causes serious or
potentially serious injury to a client.
“Timely Justice Act” 2013
• Prohibits counsel found by the court to have
twice provided constitutionally deficient
representation resulting in relief from taking
on new cases for a 5-year period.
• The court must report each instance of
constitutionally deficient representation to
The Florida Bar for discipline.
LACK OF COMPETENCE
Disbarment is appropriate when a lawyer's
course of conduct demonstrates that the lawyer
does not understand the most fundamental
legal doctrines or procedures, and the lawyer's
conduct causes injury or potential injury to a
In many jurisdictions defense counsel are
routinely provided only one- or two-line reports on
forensic examinations and conclusions. It may have
been standard practice in the past to proceed to
trial based on such reports without examining the
underlying laboratory notes and data.
It may now constitute ineffective assistance of
counsel, or even malpractice.
Go Look at the Property!
• Unlike the extremely well-litigated civil challenges, the
criminal defendant’s challenge is usually perfunctory.
• “Regardless of the Daubert standard, without zealous
investigation and cross-examination of the proffered
expert evidence, many improper and even fraudulent
uses of scientific data are not exposed. “
• In not one of the half-dozen most sensational forensic-
science scandals of the last 20 years, involving serial
fraud and gross misconduct, were the transgressions of
‘experts’ revealed by defense counsel at trial.”
• Criminalistics (the field of forensic analysis)
“has as its primary objective a determination
of physical facts which may be significant in
legal cases.” (Barnett, 2001) Therefore, an
ethical analyst has an obligation to the truth—
and as such, they have an obligation not to
mislead the jury, defense, or the state when
testifying before the court, or when preparing
their reports relating to their analyses of
Six types of Invalid Testimony
Evidence that was non-probative presented as probative;
Discounting exculpatory evidence;
Inaccurate presentation regarding statistics or frequency;
Providing statistics without supporting empirical data;
Non-statistical statements made without supporting empirical
Conclusion of evidence originating from the defendant
without supporting empirical data.
False Evidence Duty to Disclose
• A lawyer shall not knowingly:
• (1) make a false statement of material fact or law to a tribunal;
• (2) fail to disclose a material fact to a tribunal when disclosure is
necessary to avoid assisting a criminal or fraudulent act by the
• (3) fail to disclose to the tribunal legal authority in the controlling
jurisdiction known to the lawyer to be directly adverse to the
position of the client and not disclosed by opposing counsel; or
• (4) permit any witness, including a criminal defendant, to offer
testimony or other evidence that the lawyer knows to be false. A
lawyer may not offer testimony that the lawyer knows to be false in
the form of a narrative unless so ordered by the tribunal. If a lawyer
has offered material evidence and thereafter comes to know of its
falsity, the lawyer shall take reasonable remedial measures.
RULE 4-3.4 FAIRNESS TO OPPOSING
PARTY AND COUNSEL
• A lawyer shall not:
• (a) unlawfully obstruct another party's access to
evidence . . . nor counsel or assist another person to do
any such act.
• (b) fabricate evidence, counsel or assist a witness to
testify falsely, or offer an inducement to a witness
(c) knowingly disobey an obligation under the rules of a
tribunal except for an open refusal based on an assertion
that no valid obligation exists.
• (d) in pretrial procedure, make a frivolous discovery
request or intentionally fail to comply with a legally
proper discovery request by an opposing party.
Prosecutorial misconduct with regard
to scientific testimony:
• Intentional presentation of knowingly false
• Prosecutor fails to correct testimony she
knows is false or on the failure to correct an
overstatement of an expert.
• Prosecution made no effort to investigate
evidence where there was great reason to
believe it was false.
• Gatekeeper function=Responsibility
• Should be sensitive to Defense funding
• Realize forensic science is based on human
• Consider special instructions to juries who
must consider technical forensic science.
Problem for Juries and Defendants
• Lay jurors tend to give considerable weight to
“scientific” evidence when presented by
“experts” with impressive credentials. We have
acknowledged the existence of a misleading aura
of certainty which often envelops a new scientific
process, obscuring its currently experimental
nature... Scientific proof may in some instances
assume a posture of mystic infallibility in the eyes
of a jury…” People v. Kelly, 549 P.2d 1240 (CAL
NAS REPORT (2009)
• WHAT MAKES GOOD SCIENCE?
• --SCIENTIFIC METHOD
• --RELIABLE –consistent, repeatable results
• --ERROR RATE—”measuring uncertainty”
• --VALIDATION- independently verified?
• CONCLUSION: Other than DNA, nearly all
forensic individualization sciences fail to
possess the most basic attributes of science.
Systemic Forensic Science Problems
• Institutional bias—discipline wants to protect its
• Observer Bias, contextual bias, confirmation bias
• Mistaken interpretation
• Overstatement of interpretation (Exaggeration)
• Ineffective Assistance of Counsel
• Scientific knowledge changed rendering previous
Specific Problem Areas of Forensic
• Arson-”The extreme susceptibility of the field of
arson science to wrongful convictions”
• Bitemark Evidence: “the poster child of unreliable
forensic science." The NAS found that the
discipline is almost completely incompatible with
the most fundamental principles of science.
• Hair: A FBI review of more than 21,000 cases has
revealed 27 death penalty cases in which the
FBI's forensic experts may have exaggerated the
• “Shaken Baby Syndrome”
Other Problem Areas
• Toolmark comparison
• Forensic Pathology
• Institutional deficiency in labs—lack of
supervision, competence, proficiency.
• Criminal convictions should only be based
upon reliable evidence.
• Attorneys have a responsibility to investigate
forensic science conclusions.
• There are potential ethical consequences for
• Everyone in the court system has a shared
• General understanding
• Necessary Investigation
• Areas to be cautious
• Some litigation strategies
DNA a Few Basics:
• Living creatures leave DNA everywhere.
• Blood, hair, skin, sweat, saliva, semen, urine,
touch -- are all possible sources of DNA.
• Forensic DNA is lots of copies—very sensitive
• Forensic DNA looks at measurements, not
characteristics. Consistent or inconsistent.
• True power is in exclusion.
• Inclusions as possible contributor to sample.
DNA Discovery and Litigation
• DNA is primarily a discovery issue
• Start with the scene and the evidence
collected or not examined.
• Lab or analyst is not qualified
• Observer Bias
• Contamination problems
• Statistics exagerated
At the Scene
• All that is needed to collect DNA are some
sterile cotton swabs, distilled water and small
envelopes that allow the swabs to air dry.
• Think of the evidence not examined.
• People who live together get their DNA all
over everything “Of course his DNA was
• Or someone left their DNA but it wasn’t
collected: “Why didn’t you check?”
At the Property Department
• Where was it kept?
• What was it packaged with?
• Was the package opened? Why or Why not?
• What was sent to the lab? (Or Not)
Defendant’s Right to DNA Discovery
• NRC II, p 167-169: “The Defendant's Right to
• ‘’All data and laboratory records generated by
analysis of DNA samples should be made freely
available to all parties,’ this includes original
materials, data sheets, software protocols, and
information about unpublished databanks’
• ..Our recommendation that all aspects of DNA
testing be fully documented is most valuable
when this documentation is discoverable in
advance of trial.”
ABA STANDARDS ON DNA DISCOVERY
The prosecutor should be required, within a reasonable time
prior to trial, to make available to the defense the following
information and material relating to DNA evidence:
• (i) laboratory reports as provided in Standard 3.3;
• (ii) if different from or not contained in any laboratory report, a
written description of the substance of the proposed testimony of each
expert, the expert’s opinion, and the underlying basis of that opinion;
• (iii) the laboratory case file and case notes;
• (vii) the chain of custody documents specified in Standard 2.5;
• (ix) reports of laboratory contamination and other laboratory problems
affecting testing procedures . . .and corrective actions taken in response;
(x) list of collected items that there is reason to believe contained DNA
evidence but have been destroyed or lost, otherwise become unavailable;
• (xi) laboratory information or material, that would tend to negate the
guilt of the defendant or reduce the punishment of the defendant.
Also Ask For
• “All correspondence between any
law enforcement agency, including
the State Attorney’s Office, and the
laboratory, concerning the subject
matter of the testing.
Correspondence includes any e-mails
on the case.”
Watch Out For
• Geralds v. State, 601 So.2d 1157 (Fla.
1992)(defense not entitled to field notes by crime
• Terry v. State, 668 So.2d 954 (Fla. 1996) (based on
Geralds and discovery rule, defense not entitled
to notes written in lab)
These cases are wrong in light of our ethical
obligations, nature of DNA, and switch to DAUBERT.
Hill v. St. 535 So.2d 354 (5th 1988)
One factor which deprived appellant of a fair trial was a due
process violation regarding the introduction of critical DNA test
results. At 5:00 p.m. on the Sunday before the Monday trial
appellant was for the first time permitted the right to interview
and depose the expert witnesses who had performed the tests
to determine whether a DNA match could be obtained. On the
morning of trial appellant asked for a continuance of the trial in
order to try to form a defense, if he could, to the expert
testimony. The denial of that motion for continuance was error
because fairness, state and federal constitutional due process
rights and the Florida Rules of Criminal Procedure require that
witnesses be disclosed and made available to a defendant in a
criminal case in sufficient time to permit a reasonable
investigation regarding the proposed testimony.
• 3,000 DNA Test Results To Be Reviewed At
Columbus Crime Lab
• Report Details the Extent of a Crime Lab
Technician’s Errors in Handling Evidence:
“Disputes over the accuracy of the DNA
analysis were never acknowledged in the case
report shared with the district attorney, much
less the defense lawyers” (New York City)
• use NAS as blueprint
• Ask for SOPs (testing and quality control)
• Ask for any scientific literature the expert bases
• Any communications between analysts and
• Any information on proficiency testing.
• Specific questions about procedures.
Use Daubert to Litigate Ake Claims
• Ake = financial resources to investigate
• Daubert requires gatekeeping by trial court,
therefore an adversarial process.
• Defense needs resources to examine evidence
• Avoid “breakdown of the adversarial process.”
• Defense scrutiny will assist trial couirt
What kind of Expert do I need?
• Crime Scene expert
• Technical Expert
• Statistical Expert
• “Significance” expert
• Retesting Expert
Defense testing and retesting
• (a) Upon motion, made with notice to the prosecution, a court
should permit the defense to inspect and test DNA evidence in the
prosecution’s possession or control. An affidavit in support of the
motion may be presented to the court ex parte.
• (b) The motion should specify the nature of any test to be
conducted, the name and qualifications of the expert designated to
conduct the test, the place of testing, and the evidence upon which
the test will be conducted.
• (c) The court should issue any orders necessary to make the
evidence to be inspected or tested available to the designated
expert and condition its order so as to preserve the integrity of the
material to be tested or inspected.
• (d) Prosecution monitoring of the preparation and testing should
not be permitted unless consumptive testing is involved
MOTION TO EXCLUDE DNA
• Expert is not qualified
• Expert did not actually do the testing
• Expert did not follow established protocols
• Expert knew expected results (Confirmation
• Insufficient data to support testimony
• Lab did not follow own protocols
• Testimony is irrelevant or outweighed by
prejudicial effect (403)
ABA DNA Standards for Trial
Expert testimony concerning DNA evidence,
including statistical estimates, should be admissible
if based on a valid scientific theory, a valid
technique implementing that theory, and testing
and interpretation properly applying that theory
A witness testifying about DNA evidence should be
qualified by knowledge, skill, training, or education
in those matters about which that witness testifies.
Presentation of expert testimony
An expert giving testimony concerning DNA
evidence should be asked to identify and explain
the theoretical and factual basis for any opinion
given and the reasoning upon which the opinion is
When DNA evidence is offered at trial, evidence
relevant to the reliability of that evidence, including
relevant evidence of laboratory error,
contamination, or sample mishandling, should also
• STR testing is extremely sensitive.
• Pay attention to sample integrity at every
• Most labs keep “unexpected results” or
• The strange case of the 'time travel' murder:
• Most Science uses “Blind” or “Double Blind”
• Analyst does not know which is key item
before giving interpretation.
• In DNA, analysts typically know the expected
outcome or result.
• This is particularly a problem with mixtures.
The Prosecutor’s Fallacy
• “A DNA profile was recovered from the fingernail
clippings that cannot be ruled out as being the
Defendant’s DNA. According to the report, the
chance that the DNA profile recovered from the
fingernail clippings not being the Defendant’s is 1
• “Assuming only two contributors, the chance
that an unrelated person, chosen at random
from the general population, matches this minor
DNA profile is approximately 1 in every 550,000
Lies, Damn Lies and Statistics
• Must be able to give significance to findings
• Is the analyst qualified to explain?
• The “relative” problem
• What if statistics are low, relevant?
• Statistics do not take into account the error
rate of the lab, contamination, database
DNA-The Next Generation of Wrongful
• What Will They Look Like?
• Complex mixtures
• Degraded samples (Partial Profile
• DNA Database Hits)
• Touch DNA (Low Copy Number (Template) DNA)
• CODIS: There is no general acceptance by the
relevant scientific community as to an
appropriate methodology for assessing the
statistical significance of a cold hit DNA match.
OTHER LITIGATION STRATEGIES
• Motions in limine to limit the language of the
expert. Semantics matter.
• Cross Examine on failure to follow scientific
• Defense case:
-call expert on the scientific method
-Establish NAS Report as a learned treatise
Jury Instructions: “In assessing scientific
testimony, you should consider …
• Christopher Cosden (firstname.lastname@example.org) weekly
• Tebrugge Legal on Facebook:
• Blog: http://at4h71.blogspot.com
• Sarasota FACDL blog:
• Google Scholar
• Strengthening Forensic Science:
A Path Forward (2009)
• REFERENCE MANUAL ON SCIENTIFIC
• DNA for the DEFENSE BAR:
ABA Standards on DNA Evidence
• Covers collection of evidence, DNA testing,
pretrial matters, trial, databases.
• Scientific Working Group on DNA Analysis
• Includes members from FBI, FDLE, other State
• National Clearinghouse for Science, Technology and
the Law. NCSTL provides a forensic research database;
newsletter, resource pages, bibliographies.
• National Criminal Justice Reference Service:
• National Institute of Justice: “Legal Guide for the
Forensic Expert.” http://nij.gov/training/courses/law-
• Law 101: Legal Guide for the Forensic Expert
• Digging up Dirt on Experts
• Forensic Resources on the Web