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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.

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Ethically Litigating Forensic Science Cases: Daubert, Dna and Beyond

  2. 2. Thank you ! • Sarasota Chapter FACDL -- HOST • Manatee Chapter FACDL -- Sponsor • Connie Mederos-Jacobs -- Sponsor Dana Moss Matt Sandburg Nancy Smith
  3. 3. Professional Organizations • Lawyers who are members of professional organizations have fewer ethical violations. • County Bar Associations • FACDL Statewide and local • NACDL
  4. 4. Preamble: Florida Rules Professional Conduct • In all professional functions a lawyer should be • competent, • prompt, and • diligent.
  5. 5. Barriers to Competent Representation • Excessive workload “A lawyer’s work load must be controlled so that each matter can be handled competently.” • Case complexity • Lack of Time and Resources
  6. 6. 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 representation.
  7. 7. 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 question.
  8. 8. 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 unfamiliar. • 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.
  9. 9. 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.
  10. 10. Dilligence • Is the evidence what it purports to be? • Does the evidence support the conclusions drawn? • Were relevant witnesses identified and interviewed? • Are there alternative explanations?
  11. 11. ETHICAL CONSEQUENCES • 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 discipline.
  12. 12. 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.
  13. 13. “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.
  14. 14. 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 client.
  15. 15. Defense Obligation 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!
  16. 16. CAUTION • 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.”
  17. 17. Analyst Ethics • 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 forensic evidence.
  18. 18. 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 data; Conclusion of evidence originating from the defendant without supporting empirical data.
  19. 19. 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 client; • (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.
  20. 20. 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.
  21. 21. Prosecutorial misconduct with regard to scientific testimony: • Intentional presentation of knowingly false testimony. • 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.
  22. 22. Judicial Obligation • Gatekeeper function=Responsibility • Should be sensitive to Defense funding requests. • Realize forensic science is based on human interpretation. • Consider special instructions to juries who must consider technical forensic science.
  23. 23. 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 1976)
  24. 24. Forensic Science Problems
  25. 25. 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.
  26. 26. Systemic Forensic Science Problems • Institutional bias—discipline wants to protect its members • Observer Bias, contextual bias, confirmation bias • Mistaken interpretation • Overstatement of interpretation (Exaggeration) • Ineffective Assistance of Counsel • Scientific knowledge changed rendering previous opinions false.
  27. 27. Specific Problem Areas of Forensic Science • 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 scientific conclusions. • “Shaken Baby Syndrome”
  28. 28. Other Problem Areas • Toolmark comparison • Ballistics • Fingerprints • Forensic Pathology • Institutional deficiency in labs—lack of supervision, competence, proficiency.
  29. 29. ETHICS CONCLUSION • Criminal convictions should only be based upon reliable evidence. • Attorneys have a responsibility to investigate forensic science conclusions. • There are potential ethical consequences for failing. • Everyone in the court system has a shared responsibility.
  30. 30. DNA Evidence • Goals • General understanding • Necessary Investigation • Areas to be cautious • Some litigation strategies
  31. 31. 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.
  32. 32. 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 • Mixtures • Statistics exagerated
  33. 33. 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 there” • Or someone left their DNA but it wasn’t collected: “Why didn’t you check?”
  34. 34. 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)
  35. 35. Defendant’s Right to DNA Discovery • NRC II, p 167-169: “The Defendant's Right to Discovery • ‘’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.”
  36. 36. 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.
  37. 37. 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.”
  38. 38. Watch Out For • Geralds v. State, 601 So.2d 1157 (Fla. 1992)(defense not entitled to field notes by crime lab analyst) • 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.
  39. 39. 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.
  40. 40. Lab Problems • 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)
  41. 41. DISCOVERY ISSUES • use NAS as blueprint • Ask for SOPs (testing and quality control) validation studies. • Ask for any scientific literature the expert bases opinion upon. • Any communications between analysts and police. • Any information on proficiency testing. • Specific questions about procedures.
  42. 42. 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
  43. 43. What kind of Expert do I need? • Crime Scene expert • Technical Expert • Statistical Expert • “Significance” expert • Retesting Expert
  44. 44. Motion for 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
  45. 45. 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 Bias/Observer effects) • Insufficient data to support testimony • Lab did not follow own protocols • Testimony is irrelevant or outweighed by prejudicial effect (403)
  46. 46. 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 and technique. A witness testifying about DNA evidence should be qualified by knowledge, skill, training, or education in those matters about which that witness testifies.
  47. 47. 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 based. 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 be admissible.
  48. 48. CONTAMINATION • STR testing is extremely sensitive. • Pay attention to sample integrity at every step. • Most labs keep “unexpected results” or contamination logs. • The strange case of the 'time travel' murder: environment-26324244
  49. 49. Observer Bias/Effects • 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.
  50. 50. DNA MIXTURES
  52. 52. Electropherograms
  53. 53. 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 in 555,000.” • “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 individuals.”
  54. 54. 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 problems.
  55. 55. DNA-The Next Generation of Wrongful Convictions? • 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.
  56. 56. OTHER LITIGATION STRATEGIES • Motions in limine to limit the language of the expert. Semantics matter. • Cross Examine on failure to follow scientific method. • Defense case: -call expert on the scientific method -Establish NAS Report as a learned treatise Jury Instructions: “In assessing scientific testimony, you should consider …
  57. 57. RESOURCES • Christopher Cosden ( weekly caselaw updates • Tebrugge Legal on Facebook: Legal/167661216631462 • Blog: • Sarasota FACDL blog: • Google Scholar
  58. 58. NAS REPORT • Strengthening Forensic Science: A Path Forward (2009) 91.pdf
  59. 59. RESOURCES • REFERENCE MANUAL ON SCIENTIFIC EVIDENCE: man00.pdf/$file/sciman00.pdf • DNA for the DEFENSE BAR: df
  60. 60. ABA Standards on DNA Evidence • (2007) • Covers collection of evidence, DNA testing, pretrial matters, trial, databases. • minal_justice_section_archive/crimjust_stand ards_dnaevidence.html
  61. 61. SWGDAM • Scientific Working Group on DNA Analysis Methods • Includes members from FBI, FDLE, other State Forensic Labs. •
  62. 62. RESOURCES • 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.” 101.htm
  63. 63. RESOURCE LIST: • Law 101: Legal Guide for the Forensic Expert • • • Digging up Dirt on Experts • Experts • • Forensic Resources on the Web • EResources%20on%20the%20Web • •