Happy National DNA Day!

If you handle cases involving DNA evidence and don’t know the story of Lukis Anderson, stop what you are doing and take a few minutes to observe National DNA Day by reading this great article by Katie Worth of The Marshall Project.

Mr. Anderson was a homeless man living in San Jose, CA whose DNA was found on the fingernail of murder victim Raveesh Kumra. As a result of the DNA match, Mr. Anderson was charged with murder and spent several months in jail on that charge before the innocent explanation was uncovered for his DNA being on a murder victim who was unknown to him.

Both Mr. Anderson and Mr. Kumra were attended to by the same team of paramedics on the night of the crime. After Mr. Anderson was transported to the hospital, the paramedics responded to the scene at Mr. Kumra’s home. Had Mr. Anderson not had an airtight alibi established in his medical records, showing he was in the hospital at the time that Mr. Kumra was murdered, it is likely his case would have had an outcome other than dismissal.

The Marshall Project article explains the phenomenon of DNA transfer that Mr. Anderson’s case illustrates. There has been scientific research on DNA transfer showing that 1 in 5 of us walk around with someone else’s DNA under our fingernails. People shed 50 million skin cells a day, and research has demonstrated how easy it is for DNA to be transferred to an object that a person has never touched. Because techniques for analyzing DNA have become more and more sensitive, it is possible now to develop a profile with a small number of cells – cells which are easily transferred.

If you’d like additional information about DNA transfer or the challenges of interpreting very small amounts of DNA, please contact me (Sarah.R.Olson@nccourts.org) and I’d be happy to discuss further and share some articles with you.

 

 

National Forensic College 2018 announced

The 5^th annual NACDL and Cardozo School of Law National Forensic College (NFC), presented in collaboration with the Administrative Office of the U.S. Courts, Defender Services Training Division, will take place Sunday, June 3 through Friday, June 8, 2018 in New York City.

The goal of the college is to train experienced litigators in state and federal defender offices, both trial and post-conviction, to litigate complex forensic science issues strategically and with the support of the nation’s leading law firms and experts. Afterwards, attendees are expected to train legal professionals in their jurisdictions in these areas and work with fellow lawyers to develop successful litigation strategies to address forensic issues.

Topics for 2018 will include: False Confessions, Pattern Evidence, Digital Evidence, DNA (including an advanced track), Eyewitness Identification, Toxicology, plus instruction on statistics in forensics and an update on ligation using the PCAST report.

Attendance is by invitation only, but private attorneys can apply to attend. The cost to attend for private attorneys is $999 for the week, plus the cost of housing. The application and additional information is available here.

Royal Society Forensic Primers

Both experienced and newer attorneys should be aware of two primers, released by The Royal Society, on forensic DNA analysis and forensic gait analysis, available here. Although these reports were intended for use by courts in the UK, they provide important information for attorneys in the United States. This blog post intends to give a brief overview of notable sections of the primers.

Within the DNA analysis primer, attorneys may find the information on Y chromosome DNA analysis and mitochondrial DNA analysis helpful. Y chromosome DNA analysis (p. 11) is a technique that is useful when there is a mix of male and female DNA, such as in sexual assault cases. Mitochondrial DNA analysis could be helpful in cases where DNA evidence is small or breaking down, for example in a cold case or post-conviction case (p.12). Mitochondrial DNA is present in a cell greater amounts than nuclear DNA. Mitochondrial DNA is passed down from mother to child, and is nearly identical in maternal relatives, and the Y chromosome is nearly identical in paternal relatives, so it should be noted there are greater odds of multiple people matching a mitochondrial or Y-STR profile by chance or due to relatedness.

Another section of the primer that may be of interest is the discussion of contamination (p.32) and DNA transfer (p. 46). Contamination is “the introduction of DNA, or biological material containing DNA, to a sample after a (trained) responsible official has control or the crime scene.” (p.32). To prevent contamination, precautions should be taken such as following the international standard for DNA-free items.

The primer notes that once there is an appropriately-handled DNA sample, the forensic scientist should interpret the DNA evidence sample first, document the findings, and then the scientist should compare it to known samples of DNA (p.34). The process should be done in that order to avoid confirmation bias. The primer also contains an explanation of DNA statistics that may be useful for attorneys.

Lastly, The Royal Society also released a notable primer on forensic gait analysis.  Forensic gait analysis evaluates a person’s manner and mannerisms in their walk and compares it to a recorded video to determine if it is the same walk and as such the same person. This type of evidence is more common in the UK where video surveillance is more prevalent. However, the primer’s assessment of this type of evidence is interesting as the assessment could be applied to other novel techniques. While the primer notes that there are accepted clinical uses for gait analysis by various types of health professionals, that doesn’t mean that the technique has a validated forensic use. The primer finds that there is not enough scientific evidence to determine one’s identity solely from their walk because it is not certain that people don’t share walk patterns, there is no known error rate or standardized methodology, and there are no published black-box studies on the technique’s reliability and repeatability.

 

The Myth of the Reliability Test

UVA Law Professor Brandon Garrett and Innocence Project Director of Strategic Litigation M. Chris Fabricant wrote a law review article in the Fordham Law Review in March 2018 that examines whether Rule 702 is in fact functioning as a reliability test. The article is available for free download here. They looked at hundreds of state court criminal cases and found that “courts have largely neglected the critical language concerning reliability in the Rule.”

The article has a useful table that lists all 229 cases where admissibility of expert testimony was challenged under the 2000 revisions to Rule 702 in state courts. The table includes the type of evidence, whether the evidence was admitted, and which party was the proponent of the evidence. For North Carolina, 14 case are listed.

In the majority of the cases cited, courts ruled that the evidence is admissible based on prior rulings admitting that type of evidence or the qualification of the expert. In many cases, courts found that the defendant did not adequately preserve reliability-related objections at trial. Thirty-four cases affirmed the exclusion of defense expert testimony. Sixteen cases ruled prosecution witnesses should have been excluded.

For attorneys who are considering making a challenge to expert testimony, this article gives the lay of the land for these types of challenges and makes the case for defense counsel needing to sufficiently preserve the record so these decisions are reviewable on appeal.

Uniform Language for Testimony and Reporting for Fingerprints

At the February 2018 American Academy of Forensic Science meeting, DOJ Deputy Attorney General Rod Rosenstein announced the Uniform Language for Testimony and Reporting (ULTR) document for fingerprints. The purpose of the document is to standardize language used by Department of Justice fingerprint examiners in their reports and testimony. While the document does not apply to examiners in state or local laboratories, it is important for legal practitioners to understand what standards exist in the field. While the new language makes some advances by limiting some past overstatements (such as prohibiting examiners from saying “two friction ridge prints originated from the same source to the absolute exclusion of all other sources;” using terms like “individualize” or “reasonable degree of scientific certainty;” expressing 100% certainty; or implying that fingerprint examination has a zero error rate), it still goes beyond what the data support.

The American Association for the Advancement of Science (AAAS) CEO Rush Holt responded by stating in a letter to Deputy Attorney General Rosenstein,

There is no scientific basis for estimating the number of individuals who might have a particular pattern of features; therefore, there is no scientific basis on which an examiner might form an expectation of whether an arrangement comes from the same source. The proposed language fails to acknowledge the uncertainty that exists regarding the rarity of particular fingerprint patterns. Any such expectations that an examiner asserts necessarily rest on speculation, rather than scientific evidence. As there is no empirical basis for examiners to estimate the frequency of any particular pattern observable in a print, the term identification or, in your proposed language source identification, should not be used.

The AAAS comments rely on the Forensic Science Assessments – A Quality and Gap Analysis: Latent Fingerprint Examination report published in September 2017 which addressed the validity and reliability of latent fingerprint examinations.