Post on new fees for forensic expert testimony

School of Government Professor Jessica Smith authored an informative post entitled Imposing Fees for Forensic Expert Testimony — Is It Constitutional? on the North Carolina Criminal Law blog this morning. The post looks at a new $600 fee imposed on defendants when a State Crime Lab or a local crime lab analyst testifies at trial regarding forensic analysis. Jessica Smith discusses whether this new fee is constitutional as applied to defendants exercising their Sixth Amendment confrontation right that was newly declared in Melendez-Diaz v. Massachusetts. Anyone considering challenging the imposition of this fee should take a look at the arguments for and against its constitutionality in this post.

New State Crime Lab limits on items of evidence to be tested

The North Carolina State Crime Lab has released new Evidence Submission Guidelines (See Special Notice #3, starting on p. 6 of 71), effective for items of evidence submitted on or after September 1, 2013. Of special note are new limits on the number of items of evidence that law enforcement may submit in cases. The limits were put in place to meet the lab’s goal of providing quality work in the most timely manner possible. Defense attorneys should be aware of these changes in order to understand why certain items of evidence are analyzed and others are not.

The number of items accepted by the lab for analysis depends on the charge. The limits are per type of examination requested. For example, five items could be sent for DNA analysis, firearms analysis, and latent evidence analysis each and still meet with a first submission limit of five items. Each piece of evidence is considered a separate “item” with the exception of two swabbings/cuttings collected from the same area with the intent to combine the two during testing. Otherwise when multiple swabbings are taken from a single piece of evidence (ex. 15 swabbings from a single firearm) they will be considered separate items under the guidelines.

Exceptions to these limitations may be permitted with the approval of the applicable Forensic Scientist Section manager with the Crime Lab Director having the final decision. 

 The specific limits for different crime categories are:

• Homicides
  • First submission: 10 items
  • Subsequent submissions: 5 items
• Sexual Assault Cases
  • First submission: sexual assault kit, one pair of underwear (if not in the kit), and a condom if applicable
  • Subsequent submissions: up to three items of clothing and/or bed linens
• Crimes Against the Person
  • First submission: 5 items
  • Subsequent submissions: 5 items
• Other Crimes
  • First submission: 5 items
  • Subsequent submissions: 5 items

 No evidence from misdemeanor cases (except toxicology evidence), residue amounts, or hypodermic syringes will be tested in the Drug Chemistry Section without prior approval by the lab. Evidence that has been improperly packaged or appears contaminated or has been previously tested by the submitting agency generally will not be tested and will be returned unworked.  If a standard needed for comparison is not submitted with the item of evidence, the evidence will not be accepted. Standards do not count toward the number of items that can be submitted.

If an attorney has a question about why a particular item of evidence was not analyzed or whether it is possible to analyze a particular item of evidence, the State Crime Laboratory Evidence Guide describes the specific requirements for evidence submission for each section of the lab. This information may help the attorney understand why a specific item of evidence was not tested, or was processed the way that it was.

Please note that these guidelines apply only to requests made by law enforcement. Defense attorneys considering whether to seek testing of additional items should note that while it is possible in some cases to have additional items tested at the State Crime Lab, the results of these tests are not confidential. With this in mind, using an independent lab for additional testing may be preferable. For more information regarding protections for defense experts see our post here. 

If a defense attorney would like to have an item tested by the State Crime Lab he/she must coordinate with the District Attorney or law enforcement office to have the items submitted or seek a court order. It is strongly recommended that attorneys speak with Assistant Attorney General Joy Strickland prior to drafting a proposed order for additional lab testing to ensure that the State Crime Lab will be able to comply with the language of the order. Frequently orders contain language that is ambiguous or specifies analysis that is scientifically impossible. If the lab is unable to immediately comply because of a scientific problem with the order, testing will be further delayed while the meaning of the order is clarified.

We will be posting more information soon about best practices for independent testing.

Brains on Trial with Alan Alda: How Neuroscience Could Change the Law

On September 11 and 18, PBS will air a two-part series which looks at the role neuroscience evidence may play in criminal trials. A trailer of the program is available here. The program will air from 10-11 pm on UNC-TV. The series uses a mock trial scenario in which a teenager is facing murder charges for a robbery gone bad. The first episode looks at the guilt phase of the trial and the second episode looks at the sentencing phase. The role of neuroscience in these two phases of trial is examined.

The program will look at topics including: the juvenile brain, how memories are formed, whether a brain scan can reveal guilty knowledge, what neuroscience can say about juror bias and decision-making, how judges use their brains, and what neuroscience can reveal about psychopathy, remorse, and recidivism.

The series consulted with leading neuroscientists, psychologists, and legal scholars, including several Duke professors. A viewing of the program will be held at the Nasher Museum Auditorium on September 11, 2013 from 4-5:30 pm. Program host Alan Alda will lead a panel discussion with Duke professors Nita Farahany, Scott Huettel, Walter Sinnott-Armstrong and Ahmad Hariri. More information about this event is available here.

Tune in to this program to explore role neuroscience may play in the courtroom in the near future and take a look at the website for videos of the interviews and additional resources.