Author Archives: Sarah Rackley Olson

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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SWGFAST Sufficiency Graph

The Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST) has a sufficiency graph for fingerprint comparison that may be useful for attorneys to use when discussing fingerprint comparisons with experts.sufficiency-graph

The sufficiency graph reflects the interplay between quality and quantity of minutiae. Minutiae are small details that are used in comparing one print to another, such as ridge endings, bifurcations, and dots. These may also be called points of comparison or features of a print. This interplay between quality and quantity determines the level of complexity of a latent fingerprint. By using this graph, a fingerprint examiner should be able to explain her determination of whether a latent print could be individualized to a source.

In the graph above, the solid curve in the graph defines the lower limit of the sufficiency of friction ridge details below which, in area marked A, an individualization decision is not warranted. The dotted curve indicates the boundary between complex and non-complex prints. In area marked B in the graph, the examination is considered as complex and an individualization may be warranted. In area marked C, the examination is considered as non-complex and an individualization is warranted. See SWGFAST, Document #10, Standards for Examining Friction Ridge Impressions and Resulting Conclusions § 6.4.1.1 and § 6.4.1.5 (quotations omitted). Available here.

Additionally, the rarity of the features is factored into the examiner’s analysis and may adjust the position on the graph upward or downward on the graph between the zones.

An attorney could use this graph to discuss a comparison with a fingerprint examiner and arrive at a more concrete understanding of the level of complexity of the comparison. This graph was generated based on the collective experience of members of SWGFAST, not based on any scientific study. So, the curve is not intended to set a fixed requirement about number of points/minutiae, but it might be a starting point for a conversation. For example, if the print has 2 minutiae and low quality, the examiner would have some explaining to do about any individualization made to the source of the print. But, if the print is in a border area, then the examiner and the attorney could discuss why the examiner reached a certain conclusion or not.

Attorneys should read the entire SWGFAST Standards document for a better understanding of how examiners compare latent prints and make decisions about individualization. An understanding of the SWGFAST procedures and the procedures of the examiner’s own lab will improve communication between an attorney and an examiner and will help an attorney evaluate the forensic evidence in the case.

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NACDL Releases Primers on Surveillance

With a focus on Fourth Amendment concerns, the National Association of Criminal Defense Lawyers (NACDL) recently began a series of surveillance primers. The first primers in the series provide information on Automated License Plate Readers, Cell Phone Location Tracking, and Cell Site Simulators. NACDL will periodically release more primers on surveillance technologies. These documents are available to members and non-members here.

Each primer describes what the technology is designed to do, how it is used, and suggested defense strategies to identify and challenge the use of these technologies. The primers discuss law enforcement justifications for their use and provide lists of resources to aid in further research. These are a great starting point to further one’s understanding of these technologies, including determining if they were used in a case.

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Using the PCAST Report in the Courtroom

The President’s Council of Advisors on Science and Technology (PCAST) report on Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods was released on September 20, 2016. (Available for free download here.) The PCAST report gives an in-depth look at the current state of certain forensic science disciplines. It makes recommendations as to the use of forensic science evidence in court, improvements to be made in research and improvements to be made in forensic science in general. This report will be very useful in the courtroom, as it uses a framework to assess scientific validity that mirrors the NC Rule of Evidence 702, which governs the admissibility of expert testimony.

The report evaluates whether eight areas of forensic evidence are foundationally valid and validly applied, which are equivalent to prongs two and three of Rule 702 (whether the testimony is the product of reliable principles and methods (prong 2) and whether the witness has applied the principles and methods reliably to the facts of the case (prong 3)).

The summary for each discipline examined is as follows:

  • DNA analysis of single-source and simple-mixture samples: Foundationally valid, but examiners should undergo rigorous and relevant proficiency testing, should routinely disclose in reports and testimony whether he or she was exposed to any facts of the case that might have influenced the conclusion, and should disclose upon request all information about quality testing and issues in the lab.
  • DNA analysis of complex-mixture samples: Objective analysis based on probabilistic genotyping is new but promising; more research by independent scientists pertaining to accuracy in different scenarios is needed. Some methods may be valid for use in certain situations (e.g., an adequate sample with up to 3 sources and at least a 20% contribution of the smallest contributor).
  • Bite mark analysis: Bite mark analysis as used to identify a source of a bite mark or to establish whether an injury is due to a human bite mark is scientifically unreliable, and additional research in this area is not warranted as it is unlikely to be developed into a reliable and accurate methodology.
  • Latent print analysis: Has a foundationally valid subjective methodology, but the false-positive rate is substantial and likely to be higher than expected by many jurors. Conclusions need to be accompanied by accurate information about reliability and false positive rates. Several steps should be taken to further strengthen latent finger print analysis, including blinded proficiency testing incorporated into regular casework, limiting an examiner’s access to potentially biasing information and applying a “linear” analysis (examining and documenting features of the unknown sample before comparing them to a known sample). All of these factors should be considered when determining whether the techniques were validly applied in the case at hand.
  • Firearms analysis: PCAST concluded that the foundational validity of firearm analysis had not been established: only one study was found that examined accuracy and reliability (and that met the criteria for how such a study should be designed and conducted). The false positive rate was 1 in 66 examinations (upper 95th percentile confidence limit 1 in 46 cases). PCAST recommended additional studies using representative samples to establish accuracy and the creation of databases to establish prevalence of features.
  • Footwear analysis: Foundational validity has not been established, as no properly designed empirical studies to evaluate accuracy in associating a shoe print to a specific shoe have been conducted. Additional research should also include creation of databases to establish prevalence of features.

The PCAST report did not do a comprehensive evaluation of microscopic hair analysis, but did review the Department of Justice’s (DOJ) recently released proposed Uniform Language for Testimony and Reports, and its Supporting Documentation, for this discipline. PCAST noted that DOJ’s statement that “microscopic hair comparison has been demonstrated to be a valid and reliable scientific methodology” is not supported by the available studies. The report specifically noted an FBI study from 2002 comparing microscopic hair analysis to DNA analysis in 170 samples, in which a false positive rate of 11% was found.

The PCAST report also gives suggestions as to how to improve research in forensics fields. To this end, it calls upon the National Institute of Standards and Technologies to take on the task of determining if new and current fields are foundationally valid as defined by the document. It also recommends that more unaffiliated scientists be consulted by the Organization of Scientific Area Committees. The report calls for the creation of a Metrology Resource Committee which it suggests be made up of independent scientists. This committee would review the OSAC’s standards with an eye towards their reliability and validity.

Also included in the report are suggestions for improving the use of forensic evidence in court. The report calls on the U.S. Attorney General to direct attorneys appearing on behalf of the USDOJ to ensure expert testimony meets the standards for scientific validity (p. 140-141). Furthermore, it provides guidance to judges in determining the scientific validity as a foundation for expert testimony. The report suggests that judges review false positive rates, the method’s sensitivity, the sufficiency of validation studies, the appropriateness of proficiency testing, adequacy of procedures used and documentation and whether appropriate limits on reporting language were employed. It also recommends that best practices materials and training on scientific evidence be made available for judges (p. 145).

The PCAST report also recommends that for each field, the proponent of the forensic evidence

  • Demonstrate the capability of the analyst through routine, blinded proficiency testing.
  • Demonstrate that the techniques were reliably applied in the case by providing a complete description of the procedures, results and laboratory notes.
  • Utilize comprehensive and accurate reporting and testimony, including information from the empirical studies of false positive rates and sensitivity, information on the comparability between the types of samples used in these empirical studies and the sample(s) available in the particular case, and an accurate portrayal of the probative value of the observed features (i.e., how common or rare the features are, based on empirical studies).

This report will be useful for attorneys considering a challenge to testimony by forensic experts, as it explains in an accessible way what must be shown to demonstrate reliable principles and methods and reliable application of those principles and methods in a particular case. It is a worthwhile read for every criminal advocate as it suggests a framework for making a rigorous challenge to the admissibility of expert testimony.

The National Association for Public Defense is offering a webinar entitled, Denuding the Emperor: Understanding and Using the PCAST Forensic Science Report at 1:00 pm on Dec. 2, 2016.  Andrew Northrup, Assistant Public Defender in the Maryland Office of the Public Defender will discuss how the PCAST report can be used in the courtroom. The program is free of charge for NAPD members and $20 for non-members.

I would like to thank Glinda Cooper, Director of Science and Research for the Innocence Project for her contribution to this post.

 

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