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.
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.
In March 2018, the Organization of Scientific Area Committees for Forensic Science (OSAC) created a Lexicon of Forensic Science Terminology to help facilitate communication across many disciplines. Attorneys can access the OSAC Lexicon to find definitions of forensic science terms that are agreed upon across various disciplines.
The terms and definitions come from the published literature, including documentary standards, specialized dictionaries, Scientific Working Group (SWG) documents, books, journal articles, and technical reports. Some definitions have been modified to reach consensus across disciplines. Going forward, the OSACs will use these terms and their definitions when drafting standards, unless there is a specific need for modification.
Adoption of standardized terminology is important to facilitate clear communication between scientists, legal professionals and other criminal justice stakeholders, and jurors.
Stetson Law’s National Clearinghouse for Science, Technology and the Law is offering a complementary webinar for defense attorneys and prosecutors on Dec. 14, 2017 from 12-2 pm. Registration and program information is available here.
The program will explain the lab accreditation process and the certification of individual forensic science practitioners in specific disciplines. Panelists will discuss the purpose of accreditation and certification, quality assurance, lab standards, and how accreditation and certification may impact courtroom proceedings.
- Kenneth Melson, Senior Advisor on Forensic Science Office of Legal Policy, U.S. Department of Justice
- Laurel Farrell, Senior Accreditation Manager, ANAB Forensics Accreditation Program
- Robert Garrett (Ret.), Director, Forensic Certification Management Board for the International Association for Identification (IAI)
CLE credit information is available through Stetson Law.
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.
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.