ABA Resolution concerning forensic evidence

The ABA House of Delegates approved a Resolution in 2012 urging judges to consider several factors when determining the manner in which expert testimony is presented in criminal trials. The Resolution and its accompanying report urge attorneys and judges to seek “innovative solutions” to help jurors understand the significance and limitations of scientific evidence, such as altering trial structure to allow expert witnesses for both parties to testify consecutively and  avoiding declaring a witness to be an expert in front of the jury.

The ABA Resolution and report draw heavily from other ABA standards and from the 2009 NAS Report on the state of forensic science in the United States. More information on the landmark NAS Report can be found here.

The ABA report also critiques trial attorneys’ lack of substantive knowledge regarding scientific evidence and their ability to effectively challenge misleading forensic testimony. “Until an elevation in the knowledge base of trial attorneys is achieved,” the ABA report warns, “the adversarial system will continue to falter with respect to the proper presentation of forensic scientific evidence.”

The ABA Resolution lists several areas of concern for testimony by forensic experts. Highlights include:

Use of Clear and Consistent Terminology

The Resolution urges judges to consider “whether expert witnesses use clear and consistent terminology in presenting their opinions.” The report warns that terms such as “match,” “consistent with,” “similar in all respects tested,” and “cannot be excluded as the source of” have no accepted definition or standardized meaning in the scientific community.

Limitations of Forensic Techniques

The Resolution urges judges to consider whether experts present testimony in a way that accurately conveys any limitations in the forensic techniques they employ. The report points out that experts in disciplines such as microscopic hair analysis sometimes exaggerate the reliability of subjective techniques with misleading phrases like “zero error rate,” claiming that these methods are error-free when performed “correctly.” The report also criticizes the use of phrases with no accepted scientific meaning, such as “reasonable scientific certainty.”

Avoiding Claims of Uniqueness

The Resolution also advocates precluding experts from offering explicit or implied claims of uniqueness unless their findings are supported by empirical research. The report notes that fields such as firearms comparison and handwriting analysis often rely on subjective comparison by analysts with no empirical research to validate their techniques. Testimony by such experts gives jurors an impression that such “matches” represent absolute identification. In particular, the report recommends prohibiting experts from testifying that a match has been made “to the exclusion of all others” unless the experts’ methodology has been validated by empirical statistical research.

Although most judges are unlikely to exclude evidence solely on the basis of the ABA Resolution, attorneys may attempt to use the Resolution to limit the scope and impact of expert testimony in their cases. It isn’t clear how much weight individual judges will give the ABA Resolution, or whether they will interpret the Resolution as placing a higher burden on parties seeking to use expert testimony than already required under North Carolina law. Nevertheless, the Resolution provides strong support for attorneys trying to preclude experts from offering misleading testimony about the significance of their findings, and it calls on judges to monitor the presentation of forensic evidence more closely.

Bad Science

This infographic is a good reminder that  scientists aren’t immune from pressures to exaggerate results and present false research. Anyone working on cases involving expert testimony or complex scientific evidence should keep this in mind when considering what evidence to present or what evidence to challenge.

This infographic was created by the folks at Clinical Psychology.

Guide to Working With Experts – Now Available Online

Attorneys can now access the “Guide to Working with Experts” on the IDS Forensics website.  The guide was created as an additional tool to assist attorneys in effectively vetting experts and offers tips on productive communication with experts.  You can access the guide here.

Additionally, attorneys can use the American Board of Medical Specialties website to search for an MD who is certified in a particular practice area.  The website is also a helpful tool for researching whether an expert you are considering is certified in the necessary practice area for your case.  You can access the website here. The searches are free and it takes just a few moments to sign up.

New Forms for Requesting Expert Funding

New versions of the forms you must use to request expert funding in non-capital criminal and non-criminal North Carolina cases at the trial level are now available on the AOC website. The revised versions of both forms are dated 6/12. The changes to the forms are minor, but one change that attorneys should be aware of is that the form gives the Court the option to allow the motion and order to be sealed and retained in counsel’s file while the case is pending and be filed in the court file within 30 days of final disposition at the trial level.

• AOC-G-309 (“Application and Order for Defense Expert Witness Funding in Non-Capital Criminal and Non-Criminal Cases at the Trial Level”):  This form must be used to request expert funding in any non-capital criminal or non-criminal case at the trial level and must be accompanied by a supporting motion.  The form contains the approved expert hourly rate schedule.
• AOC-G-310 (“Defense Petition For Expert Hourly Rate Deviation in Non-Capital Criminal and Non-Criminal Cases at the Trial Level and IDS Approval or Denial”):  This form must be used to ask the IDS Director to grant a deviation from the applicable standard expert rate in extraordinary circumstances.

These forms can be used now and should be used for all court orders or deviation requests dated July 1, 2012 or later.

There are also new forms for the appointment of experts in capital cases that are available through the IDS website:

• Trial form
• PC form

Attorneys who have questions about the mechanics of getting an expert can refer to the Experts page of the IDS Forensics website for information about experts, sample motions, and forms and policies.

Legislative Change Regarding Expert Testimony

By Alyson Grine, UNC School of Government Defender Educator

In S.L. 2011-283 (H 542), the General Assembly revised North Carolina Evidence Rule 702(a). Rule 702(a) guides the trial court in serving a gatekeeper function with regard to expert testimony; the trial court must make a preliminary determination as to whether a witness has the qualifications to testify as an expert, and if so, whether the expert’s testimony is admissible. S.L. 2011-283 was enacted as a part of new limits in civil tort actions; however, the amended rule applies to criminal cases as well as civil. Thus, criminal defenders are asking: to what extent has the framework for determining the admissibility of expert testimony changed?

The amendments to Chapter 8C, Rule 702(a) read:

(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion.opinion, or otherwise, if all of the following apply:

(1) The testimony is based upon sufficient facts or data.

(2) The testimony is the product of reliable principles and methods.

(3) The witness has applied the principles and methods reliably to the facts of the case.

The legislation does not alter the language pertaining to the qualifications of an expert. Instead, the legislation adds the above subparts to impose restrictions on the admissibility of expert testimony. The subparts are lifted verbatim from Federal Rule of Evidence 702 as amended in 2000, which was intended to codify the criteria for the admissibility of expert testimony established in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Daubert established the modern standard for admitting expert testimony in federal trials; the Court set out five factors for trial judges to use as a measure of reliability in making a preliminary determination about the admissibility of scientific evidence:

1. Is the evidence based on a testable theory or technique;
2. Has the theory or technique been subjected to peer review and publication;
3. Does the technique have a known error rate;
4. Are there standards controlling operation of the technique; and
5. To what degree is the theory or technique generally accepted by the scientific community? Id. at 593-94.

In Howerton v. Arai Helmet, Ltc., 358 N.C. 440 (2004), the North Carolina Supreme Court rejected the federal standard for determining the admissibility of expert testimony. “North Carolina is not, nor has it ever been a Daubert jurisdiction.” Id. at 469. Instead, North Carolina has used the three-part inquiry set forth in Howerton: “(1) Is the expert’s proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert’s testimony relevant?” Id. at 458, relying on State v. Goode, 341 N.C. 513, 527-29 (1995) (internal citations omitted). The first prong of the Howerton test includes a requirement that the expert’s method of proof be reliable, much like the second restriction in amended Rule 702(a). Unlike amended Rule 702(a), however, the Howerton test does not explicitly require that experts have sufficient facts and data for their opinions, or that they apply their methods reliably to the facts. Arguably, these were implicit requirements under Howerton as they are components of reliability. Some North Carolina decisions have recognized that experts should have sufficient facts and data for their opinions and should apply their methods reliably. See, e.g., State v. Grover, 142 N.C. App. 411, aff ’d per curiam, 354 N.C. 354 (2001). Amended Rule 702(a) makes it clear that trial judges must apply those requirements before allowing expert testimony before the jury.

The approach that North Carolina adopted in Howerton was “less mechanistic and rigorous than the exacting standards of reliability demanded by the federal approach.” Howerton, 358 N.C. at 464 (internal citations omitted); see also Robert P. Mosteller et al., North Carolina Evidentiary Foundations at pp. 10-15 to 10-17 (2d ed. 2006). Amended Rule 702(a) may or may not mandate the precise approach required by Daubert, but by adopting the language of Federal Rule 702, the General Assembly has raised the bar (or better stated, “the gate”), thereby requiring greater scrutiny of expert testimony than the former North Carolina rule and the cases interpreting it. Court actors should not presume that a method of proof that was deemed sufficiently reliable under the former North Carolina rule and Howerton will be admissible under the amended rule. The subparts added by S.L. 2011-283 are not a codification of Howerton, and it may no longer be good law. See Daubert, 509 U.S. at 586-87 (holding that the “general acceptance test” of Frye v. United States,54 App. D.C. 46 (1923) was superseded by the adoption of the Federal Rules of Evidence). In response to the legislative changes, defenders should be prepared to conduct more rigorous scrutiny of experts to determine admissibility, which will require probing discovery, motions, and voir dire practices to determine whether the expert’s testimony complies with the amended requirements.

As mentioned above, the amendments to Rule 702(a) are part of the “An Act to Provide Tort Reform for North Carolina Citizens and Businesses.” Possibly, the General Assembly did not have an eye to the impact the amendments would have on criminal practice in North Carolina. However, recent cases reveal growing concerns about unreliable expert testimony in criminal cases.  See State v. Ward, 364 N.C. 133 (2010) (expert’s testimony was not based on sufficiently reliable method of proof where expert identified substances based on a visual examination rather than a chemical analysis); State v. Davis, __ N.C. App. __, 702 S.E.2d 507 (2010) (expert’s testimony was not based on sufficiently reliable method of proof where expert relied on odor analysis to conduct retrograde extrapolation of defendant’s blood alcohol concentration at time of accident); State v. Meadows, __ N.C. App. __, 687 S.E.2d 305 (2010) (expert’s testimony was not based on sufficiently reliable methods of proof where expert relied on the results of the NarTest machine). Thus, amended Rule 702(a) may be viewed as a timely reform in the criminal context.

Note: A later bill (SL 2011-317) makes the revised rule applicable to actions arising on or after October 1, 2011. For criminal cases, the rule likely applies to cases in which the offense occurred on or after that date.