Author Archives: Sarah Rackley Olson

Are you a gun nut?

If you are a criminal defense attorney working on serious felony cases, you need to have a good understanding of firearm function so that you can make sense of the forensic evidence in your case. The tutorials described below can help you gain the information that you need.

The University of Utah Health Sciences Library has several firearms tutorials posted which cover information about the different types of firearms and how they work, ballistics (the science of the travel or a projectile in flight), patterns of tissue injury, laboratory methods, and examination of gunshot residue.

The tutorials provide basic information, kind of like Firearms 101, as well as more technical information about trajectory, examination of firearms, and injuries caused by firearms.

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Hemp or Marijuana?

Your client is charged with possession of marijuana. They tell you they possessed hemp – not marijuana. Industrial hemp is not visually distinguishable from illicit marijuana. Is that a defense? I would say yes, if your client is a licensed industrial hemp farmer growing industrial hemp in compliance with all regulations. But, if your client is not a licensed grower, the argument is less straightforward.

Cultivation of industrial hemp is now permitted as part of a pilot program in North Carolina. The program is permitted under federal law. The N.C. General Assembly enacted statutes governing industrial hemp and the N.C. Industrial Hemp Commission develops rules for the industry.

Marijuana and industrial hemp are different varieties of the same plant species, Cannabis sativa L. The two species are identical in appearance, but industrial hemp is required to have less than 0.3 percent THC. See Industrial Hemp FAQs. 0.3 percent THC would not cause psychoactive effects if ingested. Marijuana typically contains 3-15% THC. See Industrial Hemp FAQs

The N.C. General Statutes define “marijuana” as all parts of the plant of the genus Cannabis. However, mature stalks and sterilized seeds and their oils are exempted from the statutory definition of “marijuana.” See N.C. Gen. Stat. § 90-87(16). Also, for licensed farmers, cannabis sativa can be possessed and cultivated, so long it contains a delta-9 tetrahydrocannabinol (THC) concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis. N.C. Gen. Stat. § 106-568.51.

Industrial hemp farmers use the stalks and seeds to make a variety of products that are legal for consumers to possess. Statute defines hemp products as “[a]ll products made from industrial hemp, including, but not limited to, cloth, cordage, fiber, food, fuel, paint, paper, particleboard, plastics, seed, seed meal and seed oil for consumption, and certified seed for cultivation if the seeds originate from industrial hemp varieties.” N.C. Gen. Stat. § 106-568.51. Presumably, under state law, it is lawful for consumers to possess these products because they are made from the part of the plant that is exempted from the statutory definition of marijuana; and, therefore both growers and consumers can possess them.

The amount of THC contained in these products is very low and these products are difficult to ingest in large amounts. For example, it would be impossible to ingest enough hemp rope to experience psychoactive effects.

Cannabis sativa leaves with low amounts of THC are a by-product of industrial hemp production. It’s not clear to me whether they have any industrial use in NC, though they can be used to produce cannabidiol (CBD) oil, which is a form of hemp extract which has no psychoactive effects and is used as a treatment for intractable epilepsy. Like the stalks and seeds, the leaves contain very low amounts of THC; and, like the stalks and seeds, it would not be possible to get high from ingesting the leaves.

Though the leaves of low-THC industrial hemp does not cause any psychoactive effect, they are not exempted from the statutory definition of marijuana and cannot be legally possessed by anyone other than a licensed hemp grower. See N.C. Gen. Stat. § 90-87(16). The only other exemption for a hemp product in the General Statues is an exemption for use or possession of hemp extract for certain medical purposes. See N.C. Gen. Stat. § 90-94.1.

So, if the leaves do not pose a public health threat, why is it illegal to possess them? One could argue that leaves that are visually identical to marijuana could be sold as a counterfeit controlled substance, so there is a public policy interest in their possession remaining illegal. However, given that these leaves are incapable of causing any psychoactive effects when ingested or consumed, from a public health perspective, it seems that possessing the leaves is as innocuous as possessing hemp rope. Given that low-THC Cannabis sativa leaves are not impairing or psychoactive, one could argue that a possession charge should be dismissed in the interest of justice. If the person is charged with the Class I felony for possession of marijuana, counsel could argue that the defendant should be allowed to plead to the Class 1 misdemeanor of tampering with an industrial hemp crop established by N.C. Gen. Stat. § 106-568.57 rather than the felony.

I’m interested to hear from readers about how courts have handled cases involving possession of hemp leaves as this is a new topic for me given the recent introduction of industrial hemp in North Carolina.

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Scientific Terminology Explained

If you’d like to learn more about scientific terminology, Duke Law student Logan Johnson interviewed toxicologist Dr. Jay Gehlhausen about terminology that attorneys might encounter when reviewing scientific evidence. Have you ever wondered what the difference is between reproducibility and repeatability? What is the difference between accuracy and precision? What are blanks and controls?

Please take a look at the short video below to learn more about scientific research and methodology for ensuring the accuracy of results.

Scientific Terminology from Sarah Olson on Vimeo.

 

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Upcoming Programs on Facial Recognition Software and Surveillance Technologies

Attorneys frequently ask me questions about facial recognition software and about new surveillance technologies. NACDL is offering training programs on each of these topics.

On September 18, 2018, from 11:00 am to 12:30 pm, NACDL will host a free webinar about the practices, risks, and limitations of emerging facial recognition technology. With an increasing number of police departments across the country turning to unregulated, untested, and flawed facial recognition technology to identify suspects, it is vital that defenders understand the technology, its limitations, and how to challenge its use in their cases. This webinar will explore these issues with the Georgetown Law Center of Privacy and Technology’s Clare Garvie, Bronx Defender’s Kaitlyn Jackson, and computer scientist Joshua Kroll. This webinar is supported by Grant No. 2013-MU-BX-K014 awarded by the Bureau of Justice Assistance. For more information and registration details, click here.

On November 29-30, 2018, NACDL and the Berkeley Center on Law and Technology (BCLT) will co-sponsor a free CLE at the University of California Berkeley School of Law. Advanced technologies are revolutionizing how the government investigates, charges, and prosecutes criminal cases. What issues do they raise under federal law and the Fourth Amendment, and how can defense lawyers keep pace? “It’s Complicated: Combatting the Surveillance State in Criminal Proceedings” will equip defenders with the tools to recognize and defend cases involving digital searches, advanced surveillance tools, technologies, and programs. For more information and registration details, click here.

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Filed under Digital Forensics, Resources

Open Forum with the NC State Crime Laboratory

The NC State Crime Laboratory and NC Office of Indigent Defense Services will offer a free to attend CLE on Friday, Sept. 28, 2018, that is designed to enhance the knowledge of criminal defense attorneys and criminal defense investigators. The program will be held at the NC Judicial Center, 901 Corporate Center Drive, Raleigh, NC. Senior forensic scientists from the State Crime Lab will present updates and key information about the analysis of physical evidence in the disciplines of Forensic Biology (DNA), DNA Database, Firearms, and Latent Evidence.

Following these presentations, 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. Attendees may submit questions ahead of time using the registration form or by emailing sarah.r.olson@nccourts.org.

The program is approved for 2.5 hours of general CLE credit. Attorneys receiving CLE credit will be billed $3.50 per credit hour by the NC State Bar. Non-attorneys who wish to receive continuing education credit may use this program agenda to apply for their own credit.

Program agenda: http://www.ncids.com/forensic/resources/sept28.pdf

Registration: https://goo.gl/forms/20zNrZk7LuIHT0kp2

 

September 28, 2018

8:30-9:00 AM                     Sign-in (Coffee and light snack provided)

9:00-10:30 AM                   Presentations by the Forensic Biology (DNA), and DNA Database Sections of the NC State Crime Laboratory

10:30-11:30 AM                 Presentations by the Firearm and Tool Mark and Latent Evidence Sections of the NC State Crime Laboratory

Presenters:

  • John Byrd, State Crime Laboratory Director
  • David Freehling, Forensic Scientist Manager, Physical Evidence Section (Raleigh)
  • Jennifer Slish, Forensic Scientist Supervisor, Firearms Unit (Physical Evidence Section, Raleigh)
  • Zach Kallenbach, Forensic Scientist Manager, DNA Database Section (Raleigh)
  • Karen W. Morrow, Forensic Scientist Manager, Latent Evidence Section (Raleigh)
  • Jody H. West, Forensic Scientist Manager, Forensic Biology Section (Raleigh)

 

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Eyewitness Evidence in the Courts CLE

Tuesday, August 21, 12:30-1:30 p.m.
Duke Law School, Room 3043

Eyewitness testimony can be incredibly powerful in court. “There is almost nothing more convincing,” Justice William J. Brennan Jr. wrote in a 1981 dissent, “than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’” However, we now know that eyewitness memory is fragile and malleable. This panel, with leading scientists, lawyers, and judges, moderated by Professor Brandon Garrett, will first explore how eyewitness misidentifications can cause wrongful convictions. Second, the panelists will discuss scientific research on ways in which reliability of eyewitness identification might be improved. Third, the panelists will discuss how to address these questions in the courtroom, including through jury instructions.

Panelists will include:

  • Judge Theodore McKee, U.S. Circuit Judge on the U.S. Court of Appeals for the Third Circuit, and chair of a task force on jury instructions on eyewitness identification evidence.
  • Karen Newirth, Senior staff attorney of the Innocence Project, litigates eyewitness memory issues nationwide.
  • Tom Albright, Professor at the Salk Institute for Biological Studies, Co-chaired National Academy of Sciences report on eyewitness memory and law
  • Benjamin David, District Attorney, Fifth District (New Hanover and Pender Counties), North Carolina, and past president of the NC Conference of District Attorneys.
  • Jennifer Thompson, founder of Healing Justice, co-author, Picking Cotton, and national advocate for eyewitness identification reform

The event is sponsored by the Duke Law Center for Criminal Justice & Professional Responsibility and Wrongful Convictions Clinic. Lunch will be provided.

The event has been approved for 1.00 hours of CLE credit by the North Carolina Board of Continuing Legal Education. There is no need to register. Please contact Sarah Holsapple (sarah.holsapple@law.duke.edu) with any questions.

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NACDL’s Fourth Amendment Center Offers Direct Assistance to Defense Lawyers

NACDL’s Fourth Amendment Center now offers direct assistance to defense lawyers handling cases involving new technologies and tactics that may infringe on privacy rights of Americans. The Center’s staff is available to help members of the defense bar in bringing new Fourth Amendment challenges, providing a range of support from training and resources to expert consultation and direct litigation, all free of charge.

The Center is now available to provide litigation assistance in cases raising issues addressing new surveillance tools, technologies, and programs; including:

  • Searches and seizures of personal data held by “third-party” service providers (the “third-party doctrine”)
  • Overbroad searches and seizures of electronic devices or online accounts
  • Electronic location tracking, including cell site simulators (“Stingrays”)
  • Government hacking and use of “network investigative techniques”
  • New law enforcement technologies: predictive policing, facial recognition/biometric identification, and drone/aerial surveillance.

Defense lawyers with cases involving any of these or other issues are encouraged to contact NACDL’s Fourth Amendment Center. The Center assists attorneys who are members or non-members of NACDL. The Center is available to provide consultations and litigation resources as well as direct assistance in support of a defendant’s claims. Specifically, the Center may assist in motion practice, preparation for suppression hearings, as well as appellate strategy, brief writing, and oral argument. The Center also provides group trainings for defense lawyers around the country and upon request.

To request assistance or additional information, contact:

Jumana Musa, Director, Fourth Amendment Center: (202) 465-7658, jmusa@nacdl.org

Michael Price, Senior Litigation Counsel, Fourth Amendment Center: (202) 465-7615, mprice@nacdl.org

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Daubert in 12 Minutes

If you are working on a case where expert opinion testimony is anticipated, a quick primer on NC Rule of Evidence 702 and the Daubert standard is now available. Andrew DeSimone of the Appellate Defender’s Office has recorded Daubert in 12 Minutes which addresses the admissibility of expert testimony in North Carolina.

The primer discusses the 2011 changes to Rule 702 and the implications of those changes in criminal cases. DeSimone covers the relevance inquiry and “fit test,” the qualifications of the expert, and the 3-pronged reliability test from the federal rule and Daubert. DeSimone discusses the McGrady opinion’s application of the reliability test.

The program also is available for download on the Experts page of the IDS Forensic website.

Daubert in 12 Minutes with Audio from Sarah Olson on Vimeo.

 

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Houston in the Blind

Blind studies and procedures are the gold standard of evaluating the quality and reliability of scientific results. Unfortunately, this has long been lacking in forensic science. Fortunately, strides are being made to introduce blind testing to forensics, most notably in the Houston Forensic Science Center (HFSC).

Currently, forensic scientists are tested periodically on their knowledge and ability through proficiency tests. However, scientists typically are aware they are completing a proficiency test and not case work. This allows for the Hawthorne effect to play a role in the testing, or the phenomena of a person behaving differently when they know they are being observed. Blind testing in forensic science will allow for blind samples to be included with case work in a manner that scientists cannot distinguish between a blind and a real case. This will help distinguish whether or not a laboratory adheres to guidelines and whether best practices are used in a day-to-day setting, as opposed to simply during an anticipated exam.

This article describes the efforts of Dr. Peter Stout, the HFSC’s chief executive officer (and former member of the NC Forensic Science Advisory Board), to implement a “blinds program.” So far, 329 blind samples have been integrated into normal casework in the firearms, toxicology, DNA, fingerprint, and digital forensic sections of the lab. In 2018, the lab plans to grow the program to 800 blind tests per year, or 5 percent of the lab’s workload.

Disguising a blind as a case sample is not a simple task, as the Forensic Magazine article describes. In addition to the challenge of creating a case submission that appears authentic, another particularly challenging aspect has been determining whether the blind samples could be searched in databases like AFIS, NIBIN, and CODIS.

At the HFSC, no errors have yet been reported in the testing of a blind. Use of blind tests will allow the lab to begin reporting error rates and confidence intervals, which will strengthen the testimony of analysts and allow them to answer questions about reliability of their work.

If you’ve made it this far in the post and are still wondering about the title, “Houston, in the blind” refers to a phrase used by astronauts when they aren’t receiving any response from ground control. The phrase indicates that they will continue to communicate, not knowing if ground control is receiving their message. My hope for forensic science is that communications about blind testing will not be “in the blind.”

 

 

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Filed under Crime Labs, DNA, Drug Analysis/Toxicology, Fingerprints

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.

 

 

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