Under the North Carolina discovery statutes, defense attorneys do not have to disclose to the State which experts they consult or hire unless they intend to call the expert to testify at trial. N.C. Gen. Stat. § 15A-905. However, when the defense intends to call an expert to testify, that expert’s report must be made available to the State through pre-trial discovery and the expert will be subject to cross-examination by the State, if called to testify by the defense.

The issue of whether to allow the State to subpoena non-testifying defense experts was decided in State v. Dunn, 154 N.C. App. 1 (2002). In Dunn the defense retained experts to conduct independent lab tests on a suspected controlled substance found in the defendant’s possession but ultimately did not introduce the results of the tests or call the experts to testify. Instead, the State compelled the experts previously retained by the defense to testify to their findings on the State’s behalf. The Court of Appeals ordered a new trial on the grounds that the trial court erred in allowing the State to compel testimony from experts hired by the defense. In doing so, the Court of Appeals stated that “the trial court infringed upon the defendant’s Sixth Amendment right to effective assistance of counsel, and unnecessarily breached the work-product privilege.” Id. at 17.

Sixth Amendment Right to Effective Assistance of Counsel

If the State could subpoena non-testifying defense experts, the Sixth Amendment guarantee of the right to effective assistance of counsel would be severely impaired. Undeniably, consulting with experts is critical to an attorney’s ability to be effective counsel. As noted in State v. Dunn, to be effective counsel, an attorney must enjoy a certain degree of privacy when preparing for a case. Attorneys must be able to consult with experts to gather information, determine the relevant facts, and prepare a case theory without the concern of these experts testifying on their opponent’s behalf. If defense attorneys were aware that the experts they hire could be subpoenaed by the State, attorneys could be less likely to disclose information that is harmful to their client’s case. An atmosphere in which defense attorneys are apprehensive about sharing crucial but incriminating information with their experts can be detrimental because experts will be operating based on incomplete facts and data. This practice could foster a system in which experts reach false or partially false opinions due to incomplete data.

Furthermore, if the State were allowed to subpoena non-testifying defense experts, this could be devastating to defense attorneys’ ability to effectively prepare for trial. Defense attorneys would be forced to choose between consulting with experts to obtain a complete and unbiased assessment of the State’s evidence on one hand, and the fear of creating a potential government witness on the other. As expressed in State v. Dunn, the concern is that defense attorneys may avoid hiring certain experts that do not substantially contribute to their client’s case. Or defense attorneys may be motivated to only hire experts they believe are likely to lean their way.

Work-Product Protection

The work-product doctrine, codified in N.C. Gen. Stat. §§ 15A-904-906, protects the material prepared in anticipation of trial, including the reports and potential testimony of non-testifying experts, from discovery by opposing counsel. Through its application, the doctrine also serves to increase the amount of evidence heard by the jury by allowing defense attorneys to do their own investigative research beyond what was obtained by the State during discovery.

However, the Court of Appeals notes limitations in the work-product doctrine in State v. Dunn, labeling it as a “qualified privilege, not an absolute one” in which the State can discover non-testifying experts’ reports and compel testimony if it can show a special need for the testimony of the defendant’s expert and the defendant’s Sixth Amendment right to effective assistance of counsel is not overrun. Id. at 15.

Attorneys should be aware, however, that experts may not enjoy the same level of protection at sentencing, given the relaxed rules of evidence in sentencing hearings.  In State v. Warren, 347 NC 309 (1997), the North Carolina Supreme Court permitted the State to compel discovery of the defendant’s non-testifying expert’s report on the defendant’s prior bad acts for use in a capital sentencing hearing. The Supreme Court held that “even when the statutes limit the trial court’s authority to compel pretrial discovery, the court may retain inherent authority to compel discovery of the same documents at a later stage in the proceedings.” Id. at 325.

In conclusion, allowing the State to subpoena at trial the non-testifying experts hired by the defense would be devastating to defense teams. Defense attorneys should be aware of State v. Dunn and prepared to object on Sixth Amendment and work-product privilege grounds if the State does attempt to subpoena a defense expert to testify. Defense attorneys should also discuss this restriction with the experts they hire to avoid problems in instances where that expert is not called to testify by the defense and is contacted instead by the State.

The article specifically criticizes the LX4000 model which is manufactured by Lafayette Instrument Company, as having a “glitch” that can mean the difference between passing and failing the lie detector. Ten federal agencies, 27 states, including North Carolina, and many local police departments currently use or have relied on the LX4000 to test whether tens of thousands of people are being truthful.

The North Carolina State Bureau of Investigation uses both the LX4000 and LX5000 polygraph models. It is likely that many agencies rely on the LX4000 because the newer model, the LX5000, is more expensive, ranging from $3,200 to $9,500. However, there are still questions that remain unanswered about the accuracy of the newer LX5000 model since the manufacturer, Lafayette, admitted that the new model has the same “potential” as the LX4000 for having troubling issues, according to McClatchy.

The “glitch” identified in the LX4000 relates to the measurement of the amount of perspiration being released by the person taking the polygraph test which is one factor that can indicate his or her level of truthfulness. The LX4000 can measure sweat either in manual mode or automatic mode. The manual mode directly measures the amount of sweat being secreted from the sweat glands. In contrast, automatic mode electronically filters the measurements of sweat, making the data more uniform and easier to interpret. Ideally, the results of the examination would be the same regardless of which mode were used. However, when switching between modes, an alarming 16-point difference has been noted by one veteran federal polygrapher, according to McClatchy. The reason 16 points is such a significant number is that, as Taylor notes, “one point can make a difference” in a polygraph test. Thus, in some circumstances, a person can be classified as a liar or a truth-teller depending on which mode is used.

The results of the LX4000 tend to be less accurate when the automatic mode is used, which is more commonly used by polygraph examiners since it is easier to use and produces more consistent results.

Even more alarming, it is reported that the manufacturing company has been aware of the problem for years. However, the glitch was apparently not shared openly as many polygraph examiners stated in Taylor’s article that they had no idea that their measurements can vary based on which mode they used. Further, since polygraph machines and their operators are not required to pass any certification tests, their potential for inaccurate results are higher than most other forensic equipment which is required to meet certain standards to ensure accuracy.

In response to the attack on its product, Lafayette Instrument Company released a statement two days after Taylor’s article was published. Lafayette assured its customers and colleagues that “there is nothing wrong with the LX4000” and that the LX4000 and LX5000 remain the “best technology available.” Lafayette also maintained that the article was based on “misinformation” and criticized it for alarming people and being misleading. In its response, Lafayette provided a link to the complete set of questions asked by Taylor and the company’s responses. Follow the link to read the correspondence between Taylor and Lafayette manufacturing during Taylor’s investigation in which Lafayette informs Taylor that her information is inaccurate and advises her to verify her sources.

Lafayette maintains that both the manual and automatic modes “have been shown to work satisfactorily.” Lafayette states that no single test item can produce reliable results without analyzing the remainder of the testing data. Perhaps most notably, when posed the question of how often the differences in results occur when manual mode is used instead of automatic mode, Lafayette responds that more research has to be done and it would be “irresponsible to attempt to guess.” However, Lafayette admits that while the results obtained from the two different modes are “in agreement most of the time,” there are “occasional differences,” according to Lafayette’s response.

In sum, attorneys should be aware that there is a potential problem with this particular machine. Many polygraph examiners are aware of this issue and will either use the manual mode of the Lafayette machine or another machine. This problem does not mean that attorneys should discontinue use of private polygraph examinations, but they should discuss this issue with the examiner prior to the exam.

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.

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.

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.

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

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.

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.

The NAS Report recommended an overhaul of the current forensic system, including urging the establishment of a independent federal agency, the National Institute of Forensic Science. The U.S. Department of Justice and the U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) announced Friday that they will create a national commission to strengthen and enhance the practice of forensic science.

Justice Department and NIST officials will lead the new 30-member commission. Among its members will be forensic scientists, researchers, prosecutors, defense attorneys and judges. Interested stakeholders can apply for appointment to the commission following an announcement of membership criteria in an upcoming Federal Register notice.

Groups of forensic science practitioners and academic researchers administered by NIST will develop discipline-specific practice guidance for federal, state and local forensic science laboratories. The commission will consider these practices and develop policy recommendations for the Attorney General. The commission’s work will help standardize national guidance for forensic science practitioners, develop uniform codes for professional responsibility, and establish requirements for training and certification.

According to a Washington Post article, experts have said NIST-administered guidance groups could replace the ad hoc groups of practitioners who currently establish the practices for each field of forensic evidence. These ad hoc groups have been criticized for not following standard practices, working in secret, and being too closely tied to law enforcement. Critics have said that these weaknesses result in inconsistency in the techniques used by individual crime labs and differences in how forensic examiners testify about results.

For more information, see these links:

• U.S. to commit scientists and new commission to fix forensic science, by Spencer S. Hsu, The Washington Post, 2/15/2013
• Department of Justice and National Institute of Standards and Technology Announce Launch of National Commission on Forensic Science, DOJ News Release, 2/15/2013
• American Academy of Forensic Sciences Supports New National Commission on Forensic Science, AAFS News Release, 2/15/2013
• Four Years On, No Action on NAS Forensic Science Report; Across the Nation, Crime Lab Scandals Abound, NACDL News Release, 2/15/2013