OSAC releases forensic science terminology tool

In March 2018, the Organization of Scientific Area Committees for Forensic Science (OSAC) created a Lexicon of Forensic Science Terminology to help facilitate communication across many disciplines. Attorneys can access the OSAC Lexicon to find definitions of forensic science terms that are agreed upon across various disciplines.

The terms and definitions come from the published literature, including documentary standards, specialized dictionaries, Scientific Working Group (SWG) documents, books, journal articles, and technical reports. Some definitions have been modified to reach consensus across disciplines. Going forward, the OSACs will use these terms and their definitions when drafting standards, unless there is a specific need for modification.

Adoption of standardized terminology is important to facilitate clear communication between scientists, legal professionals and other criminal justice stakeholders, and jurors.


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Forensics, Statistics and Law Conference

The Virginia Journal of Criminal Law and the Center for Statistics and Applications in Forensic Evidence will host a one-day conference entitled Forensics, Statistics and Law on Mar. 26, 2018 at the University of Virginia School of Law. This conference focusing on forensic evidence and its use in the courtroom will mark the 25th anniversary of the U.S. Supreme Court’s Daubert v. Merrell Dow Pharmaceuticals Inc. decision.

The program will focus on how to develop better forensic evidence, how to analyze it more accurately in the crime lab and how to present it more effectively in criminal cases. Judge Jed Rakoff of the U.S. District Court for the Southern District of New York will deliver the keynote address.

Pre-registration is not required for this program. A live stream of the conference will be available here.

Information about additional forensic evidence training programs is available on the IDS Forensic website.

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Rare medical condition, not shaking, caused baby’s death

Murder charges were dropped recently against a father in Randolph County charged with the death of his 11-week-old daughter. The baby’s treating physician indicated the death was caused by shaking or blunt force trauma. The defendant spent 158 days in jail prior to the charges being dismissed. The charges were dismissed when the forensic pathologist, Dr. Anna McDonald, reported to the Assistant District Attorney prosecuting the case that the child suffered from a rare medical condition causing blood clots to travel to her brain and heart. Diagnosing the rare condition that has symptoms similar to Shaken Baby Syndrome required extensive study of the child’s tissues. More information about the case is available here.

The defendant was represented by attorney Taylor Browne of Asheboro. Mr. Browne recognized the need for extensive investigation and expert assistance and consulted with medical and biomechanical experts. Attorneys representing clients in cases with shaken baby or abusive head trauma allegations should be aware that the triad of symptoms associated with these diagnoses (cerebral edema, retinal hemorrhaging, and subdural hematoma) may have other explanations. Some information about these cases and links to additional resources can be found here.  Attorneys in appointed cases should contact IDS Forensic Resource Counsel Sarah Olson for assistance in locating experts and other resources.

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Whiskey in the Courtroom: Evolving Trends in Forensic Science

NC Indigent Defense Services and the Duke Center for Criminal Justice and Professional Responsibility are sponsoring the 4th Annual Whiskey in the Courtroom CLE on March 9, 2018 at Duke Law School. The full-day program for defense attorneys and criminal defense investigators will focus on scientific advances in several fields of forensic evidence, including fire investigation, accident reconstruction, interrogations and false confessions.

The program will also feature scientific poster presentations. Participants can speak with experts about their work, including research on error rates, value-based decision making, admissibility of evidence under the Daubert standard, use of 3-D modeling, and police procedures.

Attendees will have the opportunity to learn about scientific advances from leading national and in-state experts. Speakers will address how this evidence should be used in court and how to challenge unreliable forensic evidence. Registration information and the full agenda is available here.

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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.


  • 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).


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.


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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