Category Archives: Crime Labs

Language Matters: USDOJ’s Reporting Language and Testimony Guidelines

Forensic scientists are tasked with the job of explaining often complex scientific data to judges, jurors, and attorneys who may have little understanding of the science underlying the forensic analysis in a case.

Revelations in recent years that hair analysts provided testimony that had no scientific validity has highlighted the importance of using correct language to convey information about forensic analysis and its limitations. Several wrongful convictions have been overturned based on faulty testimony about hair evidence and a massive review of hair cases is ongoing.

In an effort to improve expert testimony, the U.S. Department of Justice has released proposed guidelines called the Uniform Language for Testimony and Reports. These guidelines, once finalized, will apply to all USDOJ personnel who issue reports or provide expert forensic testimony, and they will probably be viewed as best practices for the entire forensic community. The guidelines are currently accessible at https://justice.gov/dag/forensic-science, with the public comment section running through July 8, 2016.

Attorneys should be aware of these guidelines and be prepared to object to any lab report language or testimony that does not comply. For example, the Uniform Language for Testimony and Reports for the Forensic Latent Print Discipline provides the following guidance on what experts cannot say about their evidence: (1) they cannot state that two prints originate from the same source to the absolute exclusion of all other sources; (2) they cannot state that there is any statistical level of certainty attributed to their determination; (3) they cannot testify that their science is infallible. Similarly, for the testing of bodily fluids, analysts may not state or imply that a level of numerical certainty is calculated to support the identification of blood or semen (i.e., they cannot say they are 95 per cent confident that the stain contained blood or there is a one in a hundred chance that the stain was something other than semen) and may not state or imply that the methods used in performing serological examinations have error rates of zero or that they are infallible. For drug analysis, the guidelines specify that when no sampling plan was used and no reasonable assumption of homogeneity of an item was determined, the examiner may not report or state an opinion that the conclusions apply to the entirety of an item (or a percentage of the item). This limitation is important in pill cases where only one pill is tested.

So, if you have any suggestions about appropriate limitations for expert testimony, or the language they should use in reports, please take the time to provide feedback on these documents.

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Crime Laboratory Essentials Webinar

Take a tour inside a state-operated crime lab with Professor Carol Henderson, Director of Stetson’s National Clearinghouse for Science, Technology, and the Law (NCSTL); Ann Talbot, the director of the Metro Nashville, Police Department Crime Laboratory; and Christine Funk, a criminal defense attorney with over 20 years of practice experience.

Crime Laboratory Essentials is a webinar provided by the Capital Litigation Initiative: Crime Scene to Courtroom Forensics Training series funded by the US Department of Justice. This seminar follows all the steps of forensic analysis for the five core disciplines of Forensic Science: latent fingerprint analysis, firearms, forensic biology (DNA analysis), drug identification, and toxicology. The free archived version of the webinar is available via the link above.

Using evidence from a mock crime to show the lab procedures and machinery used, this webinar takes you step by step through how each of these five sorts of evidence is tested. The panelists also provide additional information about each of the techniques by responding to questions from the audience. If you have a question about how a lab operates, from chain of custody, to testing, to post-trial evidence storage, this webinar has answers.

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New Research on “Touch” DNA

As the sensitivity of DNA analysis increases, scientists are able to develop profiles from ever-smaller samples of DNA. This has lead to testing of a wider array of samples collected from crime scenes, including window panes, bullets, hats and other clothing, cigarette butts, and many other items.

Attorneys sometimes ask me about the likelihood of obtaining a useful DNA profile from certain items of evidence. A study from six European forensic laboratories may give some idea of how likely it is to find a DNA profile on items commonly found at crime scenes. This article contains an interesting chart that lists the item and the likelihood of finding a full profile, usable partial profile, possibly usable partial profile, or no profile. It seems best to use this type of information as a rough guide, but it is interesting nonetheless.

It is important to keep in mind that as labs are able to analyze smaller amounts of DNA, the possibility of developing partial profiles and complex DNA mixtures increases. Where very small amounts of DNA are involved, the sample may have been deposited by secondary transfer. Here’s an interesting article on secondary transfer and “touch” DNA.

Attorneys should be aware that forensic laboratories may have case submission guidelines that limit the number and type of items that may be tested by the lab. To understand why and how an item was tested (or not), it is important to read the lab’s policies and guidelines. Here is a link to the North Carolina State Crime Lab’s Evidence Guide. There is information about Touch DNA testing on p. 52.

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Sample Motion for Preservation of Forensic Evidence

This motion is designed to:

  • Preserve evidence for future testing by defense experts
  • Remediate situations in which State testing will consume the entire sample
  • Protect the client’s legal interests regarding the destruction of evidence

An order to preserve evidence should be sought at the outset of a case. Some preservation orders prohibit all testing or order labs to complete testing that is not within their protocols. I have drafted a sample motion that sets forth a procedure by which all parties provide input on how to move forward if lab testing will completely consume an evidence sample, thus preventing unnecessary delay in testing and protecting the defendant’s right to perform independent testing.

Attorneys can adapt this sample motion and order to their cases. If additional items not mentioned in this motion need to be preserved, those should be specified in the motion and order. When evidence will be consumed or destroyed during testing, the sample motion creates a procedure where both the defense and prosecution submit proposals to the court, with service to the lab, for how to proceed with the testing. The motion contains an appendix with ideas of how to move forward with testing if testing would consume the entire sample.

Here is a link to the motion and order.

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Draft Policy Recommendations by the National Commission on Forensic Science

The National Commission on Forensic Science has released six documents for public review and comment. The Commission’s recommendations, if adopted, will be recommendations to the Attorney General of the United States. However, they may become recognized as best practices for practitioners and courts dealing with forensic evidence.

Attorneys or others who wish to comment on these recommendations can follow the procedures here. Attorneys may be particularly interested in the recommendations on discovery and expert testimony.

The Draft Policy Recommendation on Discovery discusses the importance of bench notes, as well as access to laboratory testing protocols, quality assurance procedures, accreditation and audit reports, proficiency testing results, and internal validation studies. Attorneys can review this post to understand which documents the NC State Crime Laboratory provides through discovery. Other labs or forensic examiners in the state might not provide all of these items. The recommendation compares the discovery provided in civil cases with the unsupported conclusory reports sometimes provided in criminal cases that summarize the results of an unidentified test conducted by an anonymous technician. The recommendations may provide attorneys with additional arguments for access to complete lab reports. The recommendation on discovery also contains important information about the preservation, consumption, and retesting of evidence.

The Draft Policy on Expert Testimony contains important information about limitations that should be placed on expert testimony, including testimony about zero error rates, the statistical basis for a technique, and the use of the word “scientific” in describing non-scientific analysis. The recommendation also calls on courts to not declare a witness to be an “expert witness” in front of the jury because the court’s acknowledgement that an witness is an “expert” may unduly influence the jury’s opinion about that witness’s testimony.

The draft policy recommendations are available here:

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What is in a State Crime Laboratory Lab Report?

Many attorneys have asked me what should be included in a lab report from the State Crime Lab. Often in District Court DWI cases or through discovery, defense attorneys receive only a 1-2 page report called a Lab Report. For each case that is analyzed by the State Crime Laboratory, the lab produces a Case Record in Forensic Advantage (FA), the lab’s electronic information management system. The Case Record contains many items, including the lab report, chain of custody information, analyst CV, and information about tests performed. Under N.C. Gen. Stat. 15A-903, the lab provides this Case Record to the prosecution for disclosure to the defendant through discovery. If attorneys do not receive complete lab reports, they should request the items described below through discovery. This information is also available on the IDS Forensic website.

How are reports accessed by the District Attorney’s Office?

When the lab has completed its analysis and finalized its report, an email is automatically sent to the District Attorney’s office and the law enforcement agency that requested the analysis, notifying them that the Case Record is available. These offices can access the Case Record using a web-based program called FA Web. There are legal assistants or victim-witness coordinators in each DA’s office who are trained to use FA Web. They can access the Case Records using the emailed link (which remains active for seven days after the email is sent), or they can search for the report within FA Web even after the email link has expired. Some ADAs and DAs may also be trained in using FA Web, but typically it is a legal assistant who accesses the FA Web and downloads the Case Records.

Many defense attorneys are surprised to learn that a full Case Record is produced by the lab and sent to the DA’s office for each case that is worked, including District Court cases. Depending on whether they have been trained in the use of FA Web, ADAs may or may not know that the lab provides complete Case Records for each case worked, but the legal assistant in their office who is trained to use FA Web can access these full reports.

How long has this system been in place?

FA was adopted by the lab in 2008 as the lab’s electronic information management system. Since 2011, the lab has been providing Case Records to DA’s offices through FA Web. Since June 2013, DA’s offices have had the option to download and print partial “Ad Hoc” lab reports instead of printing the full Case Record.

What is included in a Case Record Full Packet?

The “Case Record Full Packet” may be downloaded as one zip file or portions of the Case Record may be downloaded separately. The Table of Contents is the most important page for a defense attorney to review in order to determine if the complete packet has been provided through discovery. If items of evidence were analyzed in more than one section of the lab, each lab section will complete a separate Case Record for its analysis and Case Records will be numbered consecutively (for example, Record #1 may be from Trace Evidence, Record #2 may be from Forensic Biology and DNA, etc.) Some Case Records may not be needed once created, such as when an examination is redundant with another Case Record. These will be listed as “Terminated.”

The main PDF in the zip file Case Record Full Packet contains the Table of Contents. The Table of Contents will specify if it is a Case Record (Full), Ad Hoc or Officer. If an attorney sees on the Table of Contents that the packet is an Ad Hoc or Officer packet, the attorney will know that there were additional items provided by the lab that have not been provided to the defense. If the DA’s office downloads the Case Record Full Packet the entire packet will be paginated consecutively and state the total number of pages, such as Page 1 of 200. If only a partial Ad Hoc packet is downloaded, the portion that is downloaded will be paginated, such as Page 1 of 10.

The Case Record Full Packet will include the following items (though not necessarily in this order):

  • Table of Contents – lists all items included in the main PDF file of the “Case Record Full Packet” as well as additional items that are sent as separate files. Every packet (including partial Ad Hoc packets) that is downloaded from FA Web will have a Table of Contents. This Table of Contents has been annotated to describe its various parts. These links show sample Table of Contents for Digital Evidence (Audio Video and Computer), Drug Chemistry, Firearms, Toolmarks, Forensic Biology (Blood, DNA, and Semen) Latent Evidence (Footwear-Tire and Latent), Toxicology, and Trace Evidence (Arson,Explosives, Fiber, Glass, GSR, Hair, Paint, and Trace). Beneath each item listed in the Table of Contents will be an indented description of this item. Often the “description” just repeats the name of the document. Attorneys should know that indented description is not a separate or duplicate item, but is intended to describe the item listed above. The lab plans to remove the descriptions when it upgrades the FA Web program as they are mainly duplicative of the document name.
  • Lab Report – a 1-2 page document that states the analyst’s conclusions. It will not identify what test was performed or how the analyst reached her conclusions. This is the notarized document that is found in the court file in District Court DWI cases. Many attorneys think this is the only report that the lab produces, but it is just one part of the entire Case Record that the lab produces for each case.
  • Case Report – several pages that list the names of the analysts who performed the analysis and reviewed the case. If any problem is found when the case is reviewed by another analyst, the problem will be briefly described in this section in a written dialogue between the analysts.
  • Chain of Custody – shows the chain of custody of the item of evidence within the lab.
  • Request for Examination of Physical Evidence – a copy of the form that law enforcement submits to request that an item be analyzed by the lab.
  • Worksheets – as the analyst works, she records which test is performed and her observations, measurements, and results using an electronic form on her computer. The Lab Worksheets are printouts of these electronic forms. The Lab Worksheets are one place to look to see what tests were performed.
  • Quality Control/Quality Assurance and sample preparation documentation – this documentation will vary depending on the type of analysis completed, but many analyses will have documentation of calibration curves, positive and negative controls, instrument set-up, sample preparation, instrument results, etc. Attorneys can consult with Sarah Olson, their own expert, or the lab analyst for an explanation of these case-specific items.
  • Communication Log – includes details of case-related phone conversations, including communications from law enforcement, prosecutors, and defense attorneys, if any such communications occurred. If communication has occurred by e-mail or memo, the e-mail or memo will be provided as part of the main PDF file in the Case Record Full Packet.
  • CV of Analyst(s)
  • Messages Report – these are messages that can be sent from external users to the State Crime Lab via the FA system, such as rush requests or stop work orders. Analysts can also send messages to each other through the FA system that will be recorded here.
  • Publish History and Packet History – if this is the first publication of the packet, it will be noted here. If this is a subsequent publication of the packet, any information on previous publications, including downloads by FA Web users, will be listed.

Several additional items also make up the Case Record Full Packet. These items are listed in the Table of Contents but are not paginated with the previous documents.

  • Prior Versions of Worksheets and Lab Reports – various versions of one Worksheet may be saved during analysis as the analyst progresses through her work. If an analyst has to go back and amend something in a completed Worksheet, the previous and new versions will be saved. If an analyst changes something in a Lab Report, the previous and new versions will be saved. These worksheets and reports are paginated separately from the Case Record Full Packet.
  • Worksheet Resources – a list of all instruments, equipment, chemicals, reagents, kits, and other standards used in the analysis. The document also contains the maintenance history for the equipment and instruments used. This document is paginated.
  • All other items that cannot be made into PDFs, including images and some data files – images may be printed by the DA’s office, but attorneys should request them on a disc for better image quality. Raw data files cannot be printed and require proprietary software to open. Currently raw data files are being provided only in cases where DNA analysis was performed. These files can be opened by an expert who has the appropriate software to read this data.

How do I know if I received all documents that the lab has produced?

There are a number of steps that defense attorneys can take to ensure that they are receiving compete discovery:

  1. Review the Table of Contents – Attorneys should look for the Table of Contents in the Case Record Full Packet and check to ensure that the type of Case Record that the DA’s office downloaded was Full (rather than Ad Hoc) and that all documents listed in the Table of Contents are provided.
  2. Check pagination – The FA Web system paginates everything that is downloaded. If, for example, only pages 4 and 5 of 200 are provided, the defense attorney will know that she doesn’t have a copy of everything that the DA’s office downloaded. However, if the DA’s office chooses to only download a portion of the packet (Ad Hoc packet) rather than the Case Record Full Packet, only those downloaded pages will be paginated. For example, if the Case Record Full Packet has 200 pages but the DA’s office only downloads the Lab Report which is 2 pages, those pages will be paginated, 1 and 2 of 2.
  3. Request Forensic Advantage notification emails from the DA’s office – Whenever the lab updates a Case Record that has already been sent to the DA’s office, FA will send an email notifying the DA’s office that there has been a change and specifying which portion of the record is changed. Defense attorneys should request these emails from the DA’s office through discovery. The updated Case Record may appear to be a duplicate of the original Case Record that was provided (and may be hundreds of pages long). These emails can help identify which document was changed.
  4. Meet with the ADA – Defense attorneys may request to meet with the ADA assigned to the case to view all of the documents available on FA Web to ensure that everything has been downloaded and shared through discovery.
  5. Consult with the lab – After reviewing the discovery and checking that the DA’s office has provided everything available in the FA Web program to the defense, defense attorneys may consider scheduling a pre-trial meeting with the lab analyst if questions remain about reports. State Crime Lab analysts are available to meet with defense attorneys prior to trial and will answer questions about the analysis that was performed and what reports/documents were produced in the case. Defense attorneys may contact Lab Legal Counsel Assistant Attorney General Joy Strickland if there are issues with lab discovery that cannot be resolved with the ADA.

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Cognitive Bias and Forensic Anthropology

A study looking at how the conclusions of forensic anthropologists may be influenced by extraneous information highlights the importance of protecting all scientists from potentially biasing information.

Forensic anthropologists determine the gender, national origin, and age of a person at the time of death. In some cases this determination must be based solely on skeletal remains. A recent study introduced extraneous information to the scientists when remains were submitted for scientific analysis and found that background information can bias a scientist’s conclusions and result in mis-identifications across the board.

In this study, three test groups were assembled to analyze the remains of a nineteenth century female skeleton with strikingly neutral, or “ambiguous,” features which could allow a conclusion of either sex. An ambiguous environment is one that creates the greatest potential for cognitive bias. Cognitive bias occurs when contextual information influences a person’s thought process and may lead to inaccurate judgment. In this case, scientists relied on information that was submitted with the evidence, causing them to make conclusions validating or complementing the extraneous information.

Two of the three groups were given DNA profiles in addition to skeletal remains. The first group’s DNA profile indicated the skeletal remains belonged to a Caucasian male between 25-30 years of age. The second group was given a DNA profile indicating the same skeleton was an Asian female between 50-55 years of age. The third group, the control group, was given no supplementary information. Each scientist, ranging from master’s degree students to practicing PhDs in anthropology, was given up to an hour to examine the remains and make conclusions. In the first group, 72% concluded the remains were male and 100% of examiners in the second group concluded the remains were female. In the control group 31% of examiners concluded the remains were male and 69% concluded female.

Regarding ancestry, 100% of group one (who were told the skeleton was Caucasian) and 100% of the control group (who were given no extra information) decided that the skeleton was Caucasian. In group two, where the scientists were told the skeleton was of Asian ancestry, 50% concluded the skeleton was of Asian descent and 50% concluded Caucasian. The study attributes the bias in both group one and the control group to cognitive bias and bias generated from ancestrally-common characteristics described in anthropological textbooks.

This study showed that age at time of death is the least affected category by cognitive bias. Anthropologists in each group reached conclusions about age independent of the supplied information.

This study shows how biasing contextual information can affect a scientist’s ability to be impartial. The accuracy and credibility of a scientist’s conclusions depends upon blinding the scientist to any information that can be consciously or unconsciously biasing. Attorneys may be interested in reading similar studies that have looked at how contextual information can bias examiners in the fields of blood spatter interpretation, fingerprint comparison, and DNA interpretation.

 

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