In some cases where an attorney has been retained, the defendant may exhaust their funds and not be able to pay for expert assistance that is needed in the case. The ability for a defendant to access expert witness assistance is protected by the Due Process Clause of the Fourteenth Amendment, but attorneys for may be unsure about the process for obtaining funding for expert assistance when the client has become indigent during the course of the representation.
When defendants who have been able to hire counsel become indigent over the course of representation, they have to motion in order to be allowed the usage of state funds to hire investigators and expert witnesses. To help attorneys secure expert assistance on behalf of an indigent client, IDS has put together a template motion for indigency. The motion can be filed as a stand-alone motion or it can be incorporated into the motion for funding for an expert that is described below. The template can be accessed here.
In addition to the motion for indigency, counsel in non-capital cases must submit Form AOC-G-309 and an ex parte motion for the appointment of an expert in order to obtain funding for an expert for an indigent client. In potentially capital cases, Form IDS-028 must be submitted along with the motion for indigency to the Office of the Capital Defender. These forms and sample motions for the appointment of an expert can be found here.
IDS thanks Davis & Davis, Attorneys at Law for their assistance with this motion!
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.
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.
Federal district judge for the Southern District of New York Jed S. Rakoff delivered the keynote address, “Judging Forensics” during the Forensics, Statistics and Law conference at the University of Virginia School of Law on March 26, 2018. The address can be viewed online here.
Judge Rakoff’s presentation commemorated the 25th anniversary of the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals Inc. which reshaped how judges evaluate scientific and expert evidence. The presentation looked at how courts have considered the admissibility of testimony about scientific evidence and specifically forensic evidence. Judge Rakoff cited a study which found that in Daubert challenges between 1993 and 2001, defense proffers of expert testimony were rejected 92 percent of the time, whereas where the prosecution was the proponent of the evidence, expert testimony was admitted 95 percent of the time. Judge Rakoff examined some reasons for that disparity.
He addressed the NAS Report and PCAST Report and several examples of unreliable forensic science and statistical evidence, including a hair comparison case and a case where a mathematics professor improperly calculated the likelihood of a two suspects driving a specific car and was allowed to testify to that evidence. The question and answer session offered important insights into how these issues can be addressed.
Recordings of additional presentations and panels are available on the UVA Law YouTube channel (scroll down to “uploads”) or here. Attorneys may be interested in viewing Dr. Peter Stout’s presentation on the use of blinds at the Houston Forensic Science Center (at 27:50), Henry Swofford’s presentation on the use of statistical software in fingerprint comparisons at the Defense Forensic Science Center (at 1:12), and Dr. Alicia Carriquiry’s presentation on statistics and the evaluation of forensic evidence.
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).
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.
A recent meeting with a supposed forensic psychology expert reminded me of the importance of attorneys always vetting their own experts. This individual was referred to me by another trusted expert. After our initial meeting, I started looking in to his credentials and quickly learned that he did not have a Ph.D. and was not licensed to practice in North Carolina. His claim that he testified in a high-profile case was untrue, and he did not have the work experience that he claimed to have.
It only took a few phone calls to uncover this information, and it was a reminder of how important it is to verify the credentials of experts. Even if an expert comes recommended by a trusted attorney or expert, the attorney hiring the expert must vet the expert herself. Some attorneys think that experts listed in the IDS Database of Experts are approved by IDS. This is not the case. Indigent Defense Services simply does not have the staff to vet the hundreds of experts who are included in the database and continue to research these experts to monitor for any issues that may arise.
Below are a few steps that attorneys can take to verify the credentials of experts. Attorneys should discuss the questions below with the expert and verify the information independently. Additional information on researching experts is available on the IDS Forensic Website.
- Licensure: Is the expert licensed to practice in NC? By what board? When did he or she become licensed and are there any disciplinary issues currently or recently affecting his or her license? Attorneys can verify licensure of psychologists (NC Psychology Board) and medical doctors (NC Medical Board) online.
- Board Certification: Is the expert board certified as a specialist in the field? How long has he or she been certified? If certification, proficiency testing, or other exams have been attempted, what were the results? This website can be used to check to see whether an medical doctor is certified in any specialty.
- Education and publications: Does the expert have the educational degree they claim to have? Some universities will provide that information – others will refer attorneys to the National Student Clearinghouse. An expert’s name can be searched in PubMed to find a list of biomedical literature publications.
- Forensic training: what mentoring/supervision has the expert had regarding forensic work? Attorneys can call these mentors or supervisors to verify this information and learn more about the expert.
- Testimony: How many times has the expert testified as an expert witness? Has a court ever found the expert was not qualified to testify or limited the testimony? A search of LexisNexis or WestLaw will identify any published opinions addressing the expert’s testimony.
- Other issues: Is there any personal or professional information that could be used as impeachment material or to disqualify the expert? Does the expert have any criminal convictions or pending criminal charges, including DWI cases, in any state?
In addition to answering these questions, attorneys may need to verify additional information listed on the expert’s CV. Finally, attorneys may want to review transcripts of the expert’s prior testimony. Attorneys can contact Sarah Rackley Olson for assistance in locating such transcripts.
While following these step will not guarantee that the expert has nothing to hide, these are the minimum steps that an attorney should take to ferret out whether the expert is being forthcoming about his or her qualifications. This type of research also can be helpful in identifying weaknesses in the qualifications of the state’s expert witnesses.
Attorneys may need the services of a psychologist to evaluate whether a client is competent to stand trial, to present evidence regarding a mental health defense or mitigation, or to perform other psychological testing of a client. Attorneys have asked me whether a psychologist needs to be licensed in NC to perform these services. I’ll attempt to answer below.
In a capital case, if the defense seeks to establish that the defendant is mentally retarded, NC General Statutes require that the IQ test be administered by a licensed psychiatrist or psychologist. N.C. Gen. Stat. § 15A-2005 (2014).
For other types of psychological services, the N.C. Psychology Practice Act sets standards for practicing psychology in North Carolina, and includes requirements for education, examination, supervision, and licensing. N.C. Gen. Stat. § 90-270 (2013). The Act allows certain types of consultation and testimony to be provided by a non-licensed psychologist. For example, if testimony is needed regarding the characteristics of a particular mental health disorder, this type of general information could be provided by a non-licensed psychologist. N.C. Gen. Stat. § 90-270.4(a). However, if the case requires that the expert conduct any testing or evaluation of the defendant, the expert would need to be a licensed psychologist because this work would involve the provision of psychological services to an individual.
The Act includes an exemption that allows for psychologists licensed outside of North Carolina to practice within the state. Psychologists licensed in other states can apply for an exemption to practice psychology, including the provision of health services, in North Carolina for either five or 30 days in any calendar year. N.C. Gen. Stat. § 90-270.4(f). The psychologist should contact the North Carolina Psychology Board to apply for this limited right to practice in North Carolina.
Though there may be limited circumstances in which a psychologist who does not have a license may provide expert services in North Carolina, it is advisable for attorneys to use a licensed psychologist or to consult with the NC Psychology Board to determine whether the use of a non-licensed psychologist is permissible. Attorneys can visit the NC Psychology Board’s website to verify whether a psychologist has an active license in North Carolina and whether there are any disciplinary issues currently or recently impacting their licensure.
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:
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.