NIJ Study of Near Misses and Wrongful Convictions

The National Institute of Justice recently released their study Predicting Erroneous Convictions which examines why some innocent people are wrongfully convicted while others are acquitted, using a case comparison method rather than a traditional “case study” method. Researchers at American University who compared a group of 260 cases that occurred between 1980 and 2012 where an innocent defendant was exonerated only after conviction with a control group of 200 cases where an innocent defendant was acquitted or had charges dismissed before trial.

Unlike prior studies which have focused on what causes an innocent defendant to be charged, this study’s results can be used to determine what is preventing the innocent defendant from being acquitted or having charges dismissed once in the system. This is a helpful distinction, as it allows a greater focus on criminal defense, forensic practices, and prosecutorial discretion.

A Mixed Method Approach

The study’s quantitative analysis yielded 10 primary factors that led to a wrongful conviction rather than the “near miss” dismissals and acquittals:

• A younger defendant
• A criminal history
• A weak prosecution case
• Prosecution withheld evidence
• Lying by a non-eyewitness
• Unintentional witness misidentification
• Misinterpreting forensic evidence at trial
• A weak defense
• Defendant offered a family witness
• A “punitive” state culture

A qualitative analysis of the data followed in which a panel of criminal justice experts analyzed 39 cases to determine how the ten factors were connected and whether “tunnel vision” (when law enforcement professionals focus more on building a case against one suspect at the expense of ignoring contradictory evidence) played a role.

The final report offers recommendations to prevent future wrongful convictions, including recommendations on defense practice, exculpatory evidence, eyewitness identification, false confessions, forensic error, police misconduct, weak prosecution evidence, systemic failures and tunnel vision. The report emphasizes that the interactions of these factors as much as the individual factors themselves are to blame for systemic breakdowns leading to erroneous convictions. This type of interaction requires a comprehensive approach to reform in order to prevent future errors.

Traditional Wrongful Conviction Factors

Factors that have traditionally been suggested as sources of erroneous convictions, such as false confessions,  witness misidentification, and racial bias, appeared at statistically similar rates in both sets of cases. Thus, these factors likely only increase the chance that an innocent suspect will be charged but not the likelihood that the charge will result in conviction rather than dismissal or acquittal.

Forensic Error as a Primary Factor in Wrongful Convictions

As one would expect, this study revealed that errors in forensic evidence were correlated with an increased likelihood of erroneous conviction. However, this study’s results suggest a new perspective on how forensic error impacts case outcomes. Errors in forensic testimony, rather than errors in the actual testing were the most common source of forensic error.  Forensic testimony errors include: not providing the jury with key forensic information, overstating the inculpatory nature of evidence, use of inaccurate statistics, and misstating the certainty of results and forensic techniques. The implication is that an emphasis on quality control at the interpretation and testimony stages should be added to previous policy recommendations that have focused on improving quality of forensic lab procedures.

While DNA is a widely respected as a forensic tool, this study found that the prohibitive cost of DNA testing often renders it a tool of last resort, with other less accurate forensic tools like fingerprinting, hair comparison analysis and serology testing being used first.

Recommendations for Improving Forensic Error

• Timeliness: Forensic investigation, especially DNA testing, should be conducted early in a case to rule suspects in or out, rather than later once an investigation gains steam and there is a danger of it being used more to confirm or check what police/prosecutors already believe.
• Training/Education: Prosecutors and defense attorneys need more education about forensic testing techniques and should get clarifications about results if they do not fully understand a report. Police officers in more jurisdictions need to be trained in crime scene investigation and should then be present when technicians are collecting evidence to help direct and expand the search.
• Supervision: Forensic labs should be more closely supervised and have procedures that are peer reviewed. There should be discussions of “near miss” cases, which could follow, for example, in the vein of the morbidity and mortality conferences that the medical community holds to discuss mistakes in patient care.

For more information, watch the forthcoming recording of the Wrongful Convictions seminar given by the report’s authors, found here.

Forensics@NIST 2012 videos available online

The National Institute of Standards and Technology (NIST) is a non-regulatory federal agency dedicated to advancing measurement science, standards, and technology. NIST manages grants for technological research, works with employers and private contractors, and maintains a laboratory for in-house research in a wide variety of fields, including forensic science.

Each year, NIST holds a conference to showcase its ongoing research in forensic science. The most recent conference, Forensics@NIST 2012, featured three days of presentations on developments in DNA analysis, firearms and tool mark analysis, fire research, fingerprints, biometrics, multimedia forensics, and other techniques. The agenda, which lists all of the presentations, can be found here. The event was broadcast live on the web, and NIST recently posted videos of all the presentations on its website. The videos are short, ranging from 10 to 20 minutes each, and are mostly accessible to a lay audience.

These videos are a good resource for attorneys interested in learning about the development of new forensic techniques. NIST researchers presented research and recommendations on a variety of new techniques, including rapid DNA typing, 3D topography for matching bullets, facial recognition software, and enhancing latent fingerprints. Some of these techniques may be used by forensic practitioners in the near future.

The videos may also be useful for attorneys seeking to understand the limitations of current forensic methods. NIST’s research is geared toward improving current forensic techniques, and as such serves as commentary on the limitations of those techniques. For example, NIST researchers presented on the development of a standard for bullet and casing comparisons in firearm analysis, in part out of concern that the lack of a standardized control prevented reliable comparisons across laboratories.

Finally, some of the videos provide useful background information for attorneys looking for an overview of the forensic techniques currently in use. For example, a presentation from the first day titled “Overview of Firearms Projects” includes a short primer on the methodologies used in bullet and firearm comparison.

Dogs – 1, Defendants – 1

 

Today, the U.S. Supreme Court decided the second of two dog sniff cases before it this term. In Florida v. Jardines, the Court held that taking a drug-sniffing dog on the front porch of a house is a search for purposes of the Fourth Amendment. The Court held that the front porch is within the constitutionally-protected curtilage area of the house and that a general invitation to approach a house’s front door does not include an invitation to bring a dog onto the porch to conduct a search for drugs. The majority did not decide whether the dog sniff also violated the suspect’s reasonable expectation of privacy.

In February 2013, the Court decided Florida v. Harris, another dog sniff case which sheds new light on appropriate ways of challenging the adequacy of probable caused based a drug dog’s alert. Jeff Welty’s Criminal Law Blog provides a full summary of the case, its holding, and the issues it raises.

In Harris, a Florida police officer searched a motorist’s truck after the officer’s dog alerted to the presence of narcotics in the vehicle. The officer’s search revealed materials used in the production of methamphetamine, but no controlled substances. Although the dog had completed several training programs, the police kept no records of its performance in the field. The defendant argued that a drug dog cannot provide probable cause unless it has been shown to be reliable in the field, as opposed to controlled environments. The Florida Supreme Court agreed and suppressed the evidence from the search.

The U.S. Supreme Court reversed, unanimously rejecting an inflexible rule requiring records of a dog’s performance in the field to establish probable cause. The Court held that the adequacy of a dog’s alert for the purposes of probable cause must be evaluated under the totality of the circumstances. The Court considered the dog’s completion of a “bona fide” training program to be sufficient to create a presumption of reliability. Because the defendant had no evidence to rebut that presumption, the Court agreed with the trial court that the officer had probable cause to search the truck.

The Court’s opinion in Harris may provide new opportunities for attorneys seeking to challenge probable cause in drug dog cases. The Court’s totality-of-the-circumstances approach, combined with its insistence that defendants be able to contest the state’s evidence, should open the door to discovery on all aspects of a drug dog’s training and performance. In addition to evidence of a dog’s performance in the field, attorneys should request discovery on the dog’s performance in training, as well as the general effectiveness of the training program the dog completed. Use of independent experts may also be necessary to evaluate such evidence and effectively contest the state’s evidence.

BBC Knowledge Explainer DNA

Here is a 3-minute video that explains the basics of DNA’s form and function. It’s part of the BBC’s online Explainer documentary series. Though the focus of this short animated film is not forensic DNA analysis, it gives important information that attorneys or jurors need to understand before attempting to understand forensic DNA analysis. Attorneys should watch the video for their own information and also to think about whether this information is being communicated effectively to jurors by DNA experts.

Accreditation of local crime labs

For those of you who have been tracking the provision in the Forensic Sciences Act of 2011 that requires local crime labs to become accredited, a bill has been introduced to extend the time for local crime labs to become accredited to July 1, 2020. Below are links to the relevant legislation:

Forensic Sciences Act – Signed into law by Governor Beverly Perdue on March 31, 2011. Sections 1-5 and 7-11 are effective when the act became law. Section 6 (Ombudsman position) is effective on July 1, 2011.

• Session Law 2011-307 – Section 9 of this law extends the time for local forensic science labs (other than the North Carolina State Crime Laboratory) to become accredited to October 1, 2012.
• Session Law 2012-168 – Section 6 of this law extends the time for local forensic science labs (other than the North Carolina State Crime Laboratory) to become accredited from October 1, 2012 to July 1, 2013. Section 6.1 clarifies which State Crime Laboratory employees are required to become certified.
• Senate Bill 200 – this bill extends the time for local forensic science labs (other than the North Carolina State Crime Laboratory) to become accredited from July 1, 2013 to July 1, 2020. Introduced March 5, 2013.

Lab accreditation is important because it requires labs to have and follow a set of written procedures. Accredited labs must have quality assurance procedures in place and a plan for addressing problems that may arise in a lab, including contamination, unexpected results, or analyst failure to comply with the written procedures. Though problems can still occur in an accredited lab, accreditation is an important step in ensuring valid results.

North Carolina is not the only state working to ensure that all forensic laboratories become accredited. This article describes a bill in Minnesota that would require all forensic laboratories to become accredited in the wake of a major lab scandal related to drug analysis in the unaccredited St. Paul police crime lab. Minnesota legislators are considering requiring that labs apply for accreditation by a certain deadline and complete the accreditation process by a later deadline. This change would address the backlog of labs waiting to be inspected and accredited by the limited number of accrediting bodies.

More information about the lab accreditation and analyst certification process is available in this 3-part series on accreditation and certification:

• Part 1: What’s the difference between accreditation and certification?
• Part 2: The Lab Accreditation Process
• Part 3: ISO and the NC Forensic Sciences Act of 2011

Failed Evidence: Why Law Enforcement Resists Science

Professor David A. Harris of the University of Pittsburgh has published an interesting book entitled Failed Evidence: Why Law Enforcement Resists Science.  His 2012 book looks at problems with the traditional investigative tools in order to understand why wrongful convictions occur.  Harris asks why law enforcement and prosecutors are resistant to changing the techniques they have long relied on, including interrogations and eyewitness identifications. He describes techniques that scientists use to ensure valid results and discusses how they could be applied to forensic examinations and why law enforcement resists applying techniques like blind verification and proficiency testing.

Because this book examines the barriers to adopting new techniques, it is important for anyone working to improve forensic practices. The first chapter can be downloaded for free here. Professor Harris also has a blog where he posts regularly on issues related to forensic evidence, wrongful convictions, and improving police practices.

Thousands of cases compromised due to faulty forensic analysis

In recent months, faulty forensic analysis has been exposed in several labs across the country. The failure of a handful of lab analysts to correctly perform forensic analysis has compromised thousands of cases. In each situation the failures are different, but they expose a lack of oversight of analyst performance in the affected labs. The following are several of the most serious failures:

Annie Dookhan

A Massachusetts chemist was accused of faking test results at the state lab and tampering with drug evidence while she tested suspected controlled substances in criminal cases. Authorities declared that Dookhan tested more than 60,000 samples involving 34,000 defendants during her nine years at the Department of Public Health lab. Over 200 convicted defendants have been released from custody while their cases are being reviewed due to Dookhan’s involvement, according to this article. One of the red flags that lead to Dookhan’s misconduct being detected was the fact that she was highly efficient at her job; she was handling an astounding number of samples compared to an average chemist. Investigators allege that Dookhan was able to accelerate her work by “dry labbing” or reporting results for analyses that she did not actually perform. Dookhan has been indicted on 27 charges, including 17 counts of obstruction of justice, eight counts of tampering with evidence, perjury and falsely testifying that she held a degree from a college or university.

Sonja Farak

Another Massachusetts chemist that worked in the state crime lab in Amherst was arrested in January and charged with evidence tampering and possession of controlled substances from the lab, according to this article. The Boston Globe reported that Farak was discovered when her supervisors were making a routine check of tested substances and found that certain substances tested by Farak had been replaced with counterfeit substances. Attorney General Martha Coakley said that both Farak and Dookhan had begun their career at the Hinton lab in Jamaica Plain. Unlike in Dookhan’s case, supervisors noticed that Farak had had a drop in her productivity. Authorities have stated said that Farak’s misconduct was quickly detected by her supervisors, limiting the scope of its impact.

Jonathan Salvador

A forensic scientist who worked as a controlled substances analyst at the Texas Department of Public Safety (DPS) was suspended when it was discovered that he issued a fraudulent report about a batch of pills, according to this post in the Grits for Breakfast blog. The report was issued without testing the pills and instead, substituted data from another sample. The DPS characterized Salvador’s work as deficient prior to this incident. Case supervisors were aware of Salvador’s poor performance and knew that he appeared not to understand the science of the work he was assigned. However, his performance was tolerated and he would often volunteer for unwanted tasks in the lab. In its internal investigation, the DPS found several additional cases where Salvador misreported results. According to Grits for Breakfast “hundreds of convicted defendants may end up having their cases overturned, either freeing them from prison or ending their probation terms.” It was reported that hundreds of samples tested by Salvador during his six years at the DPS were being retested.

Iowa analyst fired over mishandling of fingerprint evidence

A state police crime lab analyst in Iowa was fired in January due to errors in reports related to fingerprint analysis, according to this article. The lab reviewed the analyst’s 2012 cases and found at least nine cases contained errors where the analyst had incorrectly classified fingerprint evidence as unusable. The analyst’s errors were discovered in a routine internal review of cases. The investigation of the analyst’s casework continues. The analyst had been employed by the lab for sixteen years.

Mishandling of DNA Evidence in Rape Cases

The New York City Medical Examiner’s Office is reviewing over 800 cases worked by a lab technician who resigned in 2011. According to this New York Times article, reviewers have found so far that the technician failed to detect biological evidence in 26 cases when in fact existed. Additionally, in 55 cases, the lab technician failed to upload evidence from crime scenes into the state’s DNA database. The mishandling of DNA evidence led sex-crime investigators to not have available evidence that was could have been used to develop cases against rape suspects.  Supervisors also discovered sixteen pieces of evidence that had been placed in the wrong rape kits. The majority of the misplaced items were swabs sealed in paper envelopes.  This mixing of items from different cases raises concerns about cross-contamination and whether other lab protocols were ignored.

Additional cases of lab analyst misconduct are detailed in this NACDL News Release.

In sum, it is important for the attorneys to be aware of the risks of not reviewing the lab reports, including the underlying data, in all of their cases. Although the majority of labs endeavor to monitor the work of individual analysts through case reviews, the cases above indicate that supervision cannot completely deter deficient performance by individual analysts.