Author Archives: Sarah Rackley Olson

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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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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