Category Archives: Resources

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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A Guide to Using the UIDDA

The Uniform Interstate Depositions and Discovery Act (UIDDA) is a useful way to request discoverable documents which are located in another state via subpoena duces tecum. While most states have adopted some form of UIDDA, others lag behind. As of February 2017, Massachusetts, Maine, Connecticut, Florida, Missouri, Nebraska, Texas, Wyoming and Puerto Rico have not enacted it. Some other states (such as Massachusetts) have rules which permit foreign states to request documents and other information in-state but do not use UIDDA language and may not be as complete as UIDDA. Legislation has been introduced in Arkansas.

Where the party that maintains the record is a corporation with a registered NC agent, see the 2014 Formal Ethics Opinion about subpoenaing those records.

HOW TO USE IT

  1. Determine if the state where the record is located has adopted the UIDDA. See this list.
  2. If so, prepare a NC Subpoena using the AOC-G-100 form. State on the NC subpoena that it is not enforceable but is being provided for the purpose of obtaining a UIDDA subpoena. A request for the issuance of a subpoena under the UIDDA does not constitute an appearance in the courts of the state in which the record is maintained.
  3. Send the NC subpoena, a draft subpoena which complies with the other state’s rules of discovery, and a letter to the clerk of court where the record is maintained requesting that they issue the subpoena. Some states also have an application to submit along with those documents. The subpoena should contain the names, addresses, and phone numbers of all counsel of record and any party not represented by counsel. A clerk’s office will usually have a web page explaining its forms and procedures that should be consulted in preparing the draft subpoena.
  4. Remember that any motion directly affecting the subpoena (to quash, enforce, modify) is governed by the rules of the state where the subpoena will be issued. Additionally, there is a presumption that the rules of discovery of the state where the subpoena is to be issued apply, though some states reverse this presumption.
  5. Receive the requested documents.

Again, it is important to understand that the subpoena submitted to the out-of-state clerk’s office in the jurisdiction complies with their rules. A copy of the UIDDA is here and should be read in its entirety along with any statutes or local rule of the issuing state related to the adoption of the UIDDA.

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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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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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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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