Free Webinar on Lab Accreditation and Analyst Certification

Stetson Law’s National Clearinghouse for Science, Technology and the Law is offering a complementary webinar for defense attorneys and prosecutors on Dec. 14, 2017 from 12-2 pm. Registration and program information is available here.

The program will explain the lab accreditation process and the certification of individual forensic science practitioners in specific disciplines. Panelists will discuss the purpose of accreditation and certification, quality assurance, lab standards, and how accreditation and certification may impact courtroom proceedings.

Panelists:

  • Kenneth Melson, Senior Advisor on Forensic Science Office of Legal Policy, U.S. Department of Justice
  • Laurel Farrell, Senior Accreditation Manager, ANAB Forensics Accreditation Program
  • Robert Garrett (Ret.), Director, Forensic Certification Management Board for the International Association for Identification (IAI)

CLE credit information is available through Stetson Law.

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Mass. Supreme Court Considers Relevance of FSTs for Marijuana Impairment

Any practitioner that handles driving while impaired charges knows the significance of field-sobriety tests (“FSTs”) to the investigation and prosecution of drunk driving. Scientific research supports the basic idea behind the tests — that test performance on FSTs is an indicator of alcohol impairment. What about when the impairing substance isn’t alcohol at all? Do FSTs remain relevant for marijuana impairment? That was the question before the Massachusetts Supreme Court in Commonwealth v. Gerhardt, 81 N.E.3d 751, 2017 (September 19, 2017).

Background

Marijuana is legal for all purposes in the Massachusetts for adults 21 and older, but driving while impaired on the substance of course remains a crime. Some states where marijuana is legal have enacted drug limits for purposes of establishing impaired driving. Washington, for instance, has settled on a per se limit of 5 nanograms of THC (the primary active ingredient in marijuana) per milliliter of whole blood for drugged driving cases, similar to the .08 blood alcohol content limit for alcohol. In Colorado, that same amount of THC in the blood creates a permissive inference of impairment. The District of Columbia, by contrast, has a zero tolerance policy: any amount of the substance in the body is sufficient to be charged with drugged driving. Massachusetts, like North Carolina, has no per se limit for drugged driving when it comes to marijuana; the government has to prove impairment. A chemical analysis, by itself, will generally not suffice to prove impairment without a per se statutory limit. In cases where there is no statutory limit for the permissible amount of the impairing substance in the blood (or where there is no chemical analysis at all), officers often use FSTs to try to prove impairment, as they would in alcohol impairment cases. FSTs are therefore frequently substantial evidence in many (if not most) impaired driving prosecutions, regardless of the type of impairing substance. Gerhardt is one of the first cases to take a hard look at the use of FSTs in the context of a marijuana-only impaired driving prosecution.

Facts

Gerhardt was charged with Operating Under the Influence (the equivalent of NC’s DWI offense) after being stopped for failure to burn rear headlights. The officer reported smelling recently burned marijuana, and Gerhardt admitted he had smoked around three hours earlier. Gerhardt performed the HGN test, the Walk and Turn test, and the One-Leg Stand test, and other non-standard tests. He had no cues of impairment during the HGN test or the non-standard FSTs, but the officer detected several cues on the Walk and Turn and One-Leg Stand. Marijuana and paraphernalia were found in the vehicle as well. The Commonwealth sought to introduce evidence of Gerhardt’s performance on the FSTs and the officer’s interpretation of them. Gerhardt challenged the admissibility of that evidence under the Daubert expert-testimony standards.

Court’s Opinion

The court began by observing that standard FSTs were “designed to detect alcohol impairment” and that they do so by “assess[ing] an individual’s balance, coordination, dexterity, ability to follow directions, and ability to focus on multiple subjects at the same time.” Id. at 756. The court noted that established scientific research supports the reliability of the tests in the context of alcohol impairment, but that the same was not true for marijuana: “A significant amount of research has shown that consumption of marijuana can impair the ability to drive. There is ongoing disagreement among scientists, however, as to whether the FSTs are indicative of marijuana impairment.” Id. at 757. The court cites several studies that demonstrate the conflicting research—some studies have found substantial correlation between FSTs and marijuana impairment; some have found no such correlation; yet others find correlation between certain FSTs and marijuana impairment, but not others.

That said, the court wasn’t inclined to rule the tests completely irrelevant. Noting that the bar for relevance is low: “To the extent they are relevant to establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer . . .” Id. at 751. Just like the officer can attest to observations of driving, the odors of the vehicle or driver, and the appearance and behavior of the driver, the officer can testify to what he observed during the FSTs as a lay witness. “That marijuana can cause impairment of skills necessary to driving . . . is within the common experience and knowledge of jurors.” Id. at 759.

However, the court placed considerable limits on the use of such testimony, given the status of the science surrounding the use of FSTs in this context. The officer may not testify to whether the test was passed or failed and cannot testify that the results of the FSTs show marijuana impairment. Such testimony “improperly implies that the FST is a definitive test of marijuana use or impairment.” Id. at 759-760. Further, the officer should not call FSTs in a marijuana impairment case “tests”, as that signifies to the fact-finder that the FST is scientifically valid for the purpose of detecting marijuana impairment. The FSTs in this context should be referred to only as “roadside assessments.” Id. at 760. Perhaps most importantly, the lack of a scientific correlation between marijuana impairment and a defendant’s performance on FSTs means that the FST results, standing alone, are insufficient evidence to sustain a conviction. “The fact that FSTs cannot be treated as scientific ‘tests’ of impairment means that evidence of performance on FSTs, alone, is not sufficient to support a finding that a defendant’s ability to drive was impaired due to the consumption of marijuana, and the jury must be so instructed.” Id. (emphasis added). The court attached to its opinion a proposed jury instruction tracking that mandate. Finally, the officer also cannot offer a lay opinion that the driver was “high” on marijuana (although an expert opinion would be admissible). Because the effects of marijuana on individuals vary significantly, and because there is a lack of scientific evidence demonstrating common signs of marijuana impairment, a lay opinion that a defendant was intoxicated due to marijuana consumption is improper.

Impact in NC

So what’s the takeaway for practitioners? The case notes several studies on the connection between FSTs and marijuana impairment, which may be useful in a challenge to the use of FSTs in marijuana impairment cases. Because the studies are inconsistent, reference to them may support a finding that FSTs simply are not reliable in the context of marijuana impairment cases. Defense attorneys may point to Gerhardt as persuasive authority and argue for evidentiary limits on FST testimony in a marijuana impairment case similar to those imposed by the Gerhardt court, as well as for a similar jury instruction. Having the jury instructed on the fact that FSTs are not scientific evidence of impairment in this context would presumably be a powerful instruction. Likewise, preventing the officer from testifying that the defendant was impaired as a result of FST performance, that the defendant passed or failed the FSTs, that the officer’s lay opinion was that the person was impaired on marijuana, or from referencing the FSTs as “tests” at all, would be significant rulings in a DWI case with the potential to dramatically impact how the evidence of the case is presented to the finder of fact.  When confronted with a marijuana-only impaired driving case, defense counsel is encouraged to consider filing a pretrial motion in limine addressing the expert testimony and relevance concerns of this evidence in the context of the case. The logic of Gerhardt may also support extending the same limitations to other impairing substances—where the scientific research does not conclusively link the defendant’s performance on FSTs to impairment on the substance at issue, there is a strong argument to be had that the testimony should be similarly limited.

Despite the ubiquitous nature of FSTs in impaired driving cases, their use in a non-alcohol impaired driving prosecution should not be accepted by the defense without a challenge seeking to properly contextualize their efficacy in this area. Further, even where the trial court allows the evidence over defense objection, many of the points that an attorney would raise in a voir dire hearing on the admissibility of FSTs would also go to the weight of that evidence before the jury. One can imagine a fruitful cross of the officer on many of the points raised in the opinion. We’ll have to wait and see how NC courts address these concerns. In the meantime, Gerhardt is an indication that FSTs are properly treated as having less probative value in a marijuana case than in the more-routine alcohol case, and that the defendant is entitled to certain protections limiting the way that evidence is presented, at least as long as the science remains uncertain.

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NIST urges caution in use of likelihood ratio

The National Institute of Standards and Technology (NIST) released an article last week calling into question the use of the likelihood ratio to present evidence in court. NIST states that there is uncertainty about the appropriate use of the likelihood ratio. An expert’s subjective opinion may affect the calculation of the likelihood ratio, potentially distorting the evidence. More information is available here.

Attorneys who see a likelihood ratio in a lab report should consider the NIST report and  investigate further prior to trial. Many labs are moving toward implementation of the likelihood ratio for interpretation of DNA analysis. To my knowledge, the NC State Crime Laboratory and the Charlotte-Mecklenburg Police Department do not employ the likelihood ratio in their interpretations of DNA evidence, though it could be adopted at some point in the future. The likelihood ratio is used by some private laboratories, such as NMS Laboratories.

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Open Forum with the NC State Crime Laboratory

On Friday, Oct. 13, 2017, the NC State Crime Laboratory and NC Office of Indigent Defense Services will offer a free CLE for criminal defense attorneys and criminal defense investigators. A Forensic Science Manager from each Section of the State Crime Laboratory (including Digital Evidence, DNA Database, Drug Chemistry, Firearm and Tool Mark, Forensic Biology, Latent Evidence, Toxicology, and Trace Evidence) will present an overview of the procedures for testing evidence in her Section of the lab. These presentations will address evidence submission procedures, what type of evidence is tested, what scientific techniques and instruments are used, and reporting/testimony language.

Following these presentations, there will be a panel discussion. The leader of each section will explain evidence preservation and the order of evidence processing. The presenters will discuss proficiency testing, quality control, and the limitations of the testing performed by their section.

In the final session, the speakers will address questions from attorneys. Due to the confidential nature of casework, questions about specific cases will not be answered. Attorneys can schedule a meeting at the State Crime Lab to discuss the case with the analyst. Attorneys may submit questions ahead of time using the registration form or by emailing sarah.r.olson@nccourts.org.

Attorneys receiving CLE credit will be billed $3.50 per credit hour by the NC State Bar. 2.5 hours of general CLE credit is anticipated. Non-attorneys who wish to receive continuing education credit may use this program agenda to apply for their own credit. The program will take place at the NC Judicial Center, 901 Corporate Center Drive, Raleigh, NC (http://www.nccourts.org/Courts/CRS/AOCAdmin/AOCMove/Directions.asp).

Program website: http://www.ncids.com/forensic/resources/oct13.pdf
Program registration is available here: https://goo.gl/forms/cVm3zFSB08fDH6L63

October 13, 2017

8:30-9:00 AM     Sign-in (Coffee and light snack provided)

9:00-10:00 AM   Presentations by each Section of the NC State Crime Laboratory

10:00-11:00 AM Panel Discussion with the NC State Crime Laboratory

11:00-11:30 AM Q&A with the NC State Crime Laboratory

Presenters:

  • Georgana Baxter, Western Regional Crime Laboratory, Forensic Scientist Manager, Drug Chemistry Section
  • Johnathan Dilday, Raleigh Crime Laboratory, Forensic Advantage Manager/Deputy Assistant Director
  • Ann C. Hamlin, Regional Crime Laboratory, Forensic Scientist Manager, Drug Chemistry Section
  • Joshua Hickman, Raleigh Crime Laboratory, Forensic Scientist Manager, Digital Evidence Section
  • Zach Kallenbach, Raleigh Crime Laboratory, Forensic Scientist Manager, DNA Database Section
  • Frank Wayne Lewallen, Triad Regional Laboratory, Forensic Scientist Supervisor, Drug Chemistry/Toxicology Section
  • Karen W. Morrow, Raleigh Crime Laboratory, Forensic Scientist Manager, Latent Evidence Section
  • Elizabeth Patel, Triad Regional Crime Laboratory, Forensic Scientist Manager
  • Jennifer L. Remy, Raleigh Crime Laboratory, Forensic Scientist Manager, Physical Evidence Section
  • Timothy Suggs, Raleigh Crime Laboratory, Forensic Scientist Manager (Quality Manager)
  • Jody H. West, Raleigh Crime Laboratory, Forensic Scientist Manager, Forensic Biology Section

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Digital Evidence Series: Part I – Cell Phone Location Evidence for Legal Professionals

The NC Office of Indigent Defense Services will offer a series of free presentations on digital evidence that are designed to enhance the knowledge of criminal defense attorneys. Available for CLE credit, these programs will occur at lunchtime in various locations around central North Carolina. Participants receiving CLE credit will be billed $3.50 per credit hour by the NC State Bar.

The first program in the series will begin at 12:15 pm on Friday, Nov. 3, 2017 at the Johnston County Courthouse in Smithfield, NC. Part II is planned for January in Alamance County and Part III is planned for February in Pitt County. Details will be posted about those programs when they are finalized.

During the first in the Digital Evidence Series, Larry Daniel will cover techniques for locating cell phones, including call detail records, drive testing, Google location services, E-911 Records, Phone Based Location, and Find my iPhone. He will cover how records are obtained and limitations of each technique. Information on how cell phones work will be covered to aid in understanding how cell towers are used to determine location. Case examples will be used to demonstrate the limitations to these techniques.

Registration available here: https://goo.gl/forms/LwCAumzp4LCrS21A2

Program website: http://www.ncids.com/forensic/resources/nov3.pdf

Contact Sarah.R.Olson@nccourts.org if you have questions.

 

November 3, 2017

12:15-12:30 PM   Sign-in (pizza lunch provided for registered participants)

12:30-2:00 PM     Cell Phone Location Evidence for Legal Professionals

CLE: 1.5 hours general credit

 

Speaker Bio:

Larry Daniel began performing computer forensics in 2001. He holds numerous certifications in computer, cell phone and GPS forensics including the Encase Certified Examiner (EnCE), Access Data Certified Examiner (ACE), Digital Forensics Certified Practitioner (DFCP), Blackthorn 2 Certified Examiner (BCE), the Access Data Mobile Examiner (AME), Certified Telecommunications Network Specialist (CTNS), Certified Wireless Analysis (CWA) and Certified Telecommunications Analyst (CTA).

Mr. Daniel has provided computer and cellular phone and cellular tower technology in hundreds of criminal and civil cases. Additionally, he has qualified and testified as a computer forensic expert, a cellular phone forensics expert, a GPS forensics expert and a cellular technology expert over 50 times in state and federal courts.

He has provided training via presentations and continuing legal education over 75 times for attorneys, prosecutors, judges, and law enforcement, as well as presenting at such conferences as the Department of Defense Cyber Crime Conference, the Computer Enterprise and Investigations Conference, the American College of Forensic Examiners and the National Association of Criminal Defense Lawyers. He is co-author of the book, “Digital Forensics for Legal Professionals, Understanding digital evidence from the warrant to the courtroom” 2011, Syngress. Larry’s latest book is “Cell Phone Location Evidence for Legal Professionals, Understanding Cell Phone Location Evidence From the Warrant to the Courtroom”, Academic Press.

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New Benchbook Chapter on Expert Testimony

School of Government Professor Jessie Smith has drafted a new chapter on Expert Testimony for the NC Superior Court Judge’s Benchbook. I’ve already heard one judge say from the bench that he had it open as he was considering a 702 challenge to expert testimony. Because this is a resource that judges look to, defenders should be familiar with it when preparing for 702/Daubert hearings regarding expert testimony.

Professor Smith references the President’s Council of Advisors on Science and Technology report, Forensic Science in the Courts: Ensuring Scientific Validity of Feature Comparison Methods, (hereinafter, PCAST Report) (available for free download here). The chapter uses the PCAST Report and other resources to note areas where there are questions about the reliability of certain types of forensic evidence. I have posted about the 2016 PCAST Report here, and I hope its being referenced in the Benchbook will lead to judges and other court actors taking a look at that landmark report on forensic evidence.

A significant portion of the chapter looks at each type of forensic evidence and summarizes the existing case law and mentions additional relevant considerations. Other sections of the chapter that defenders will want to take note of are the section on statements and terminology that the PCAST Report says are not scientifically valid (p. 54), the section on whether judges declaring a witness to be an expert in the presence of the jury inadvertently puts the court’s stamp of authority on a witness’s opinion (p. 22), and the discussion on best practices regarding the procedure for holding a 702/Daubert hearing (p. 21-22).

 

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AAAS Report on Fire Investigation

Attorneys who are handling cases involving arson allegations should be aware of the Forensic Science Assessments: A Quality and Gap Analysis – Fire Investigation publication that was released this month (July 2017). The report was produced by the American Association for the Advancement of Science (AAAS).

The report looks at the discipline of fire investigations and identifies which parts are well founded in science and where gaps in knowledge exist. The report identifies 25 areas in need of additional research. The report is divided into the topics of fire scene investigation and fire debris analysis. The report concludes that canine alerts should not be relied upon unless confirmed by laboratory analysis (pp. 7, 18, 30). The report notes that some research has found erroneous conclusions about point of origin in excess of 75% (p. 5 of plain language version). Additional research regarding error rates is needed. (pp. 7-8). The report also contains an in-depth discussion of cognitive bias, the role it plays in fire investigation, and recommendations for minimizing bias in fire scene investigation (p. 8, 13, 26).

The full report is available for free download. A “plain language” summary version is also available.

The report is the result of a Working Group consisting of an academic fire engineer, an analytical chemist, a cognitive psychologist, and a forensic practitioner. The work was guided by an Advisory Committee which included a law enforcement official, a social scientist, a cognitive psychologist, a law professor, a judge, a biomedical researcher, a forensic scientist, and a statistician.

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