Monthly Archives: March 2013

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.

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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.

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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:

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Filed under Crime Labs, Legislation

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.

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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.

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Filed under Crime Labs, DNA, Drug Analysis/Toxicology