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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Forensic Evidence Errors in Arson Investigations and Crime Scene Processing

Paul Bieber (Director at Arson Research Project: http://thearsonproject.org/research/) explores the misidentification of an accidental fire as an act of arson and how unreliable, quasi-scientific techniques led to the mistaken execution of an innocent man. On June 30th, join the UNC School of Government and the North Carolina Office of Indigent Defense Services for the seventh installation in the Evenings at the School of Government series, Beyond Willingham: Recognizing Errors and Crafting Solutions in Fire Investigations. The program provides one and a half (1.5) CLE credit hours and is designed to enhance the knowledge of all criminal law practitioners, not only in understanding the investigative techniques used, but in raising challenges to that evidence.

Location, Date, and Time: Thursday, June 30th, 2016 at the UNC School of Government room 2603. Sign-in begins at 5:15pm, the program begins at 5:30pm, and is set to conclude by 7:00pm.

RSVP: Registration is not required, but we ask that you RSVP via email to Monica Yelverton, at myelverton@sog.unc.edu.

Materials: Materials for this program are forthcoming and will be available on the program website http://www.sog.unc.edu/courses/evenings-school-government under the materials tab. Those who RSVP for this event will receive a confirmation email on June 23, 2016 with a link to the program materials. Please note that the materials will not be provided in hard-copy form at the program. We recommend that you either bring a laptop to access the materials electronically or bring a hardcopy.

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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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Reliability Concerns Regarding Probation Drug Screens

The NC Department of Public Safety (DPS) has begun relying on less accurate presumptive testing for urine screens for drugs for probation, prison, and DSS cases. The focus of this post will be probation cases, though the testing is the same for prison and DSS cases.

Testing Prior to 2014

Until February 2014, the Department of Public Safety maintained two laboratories with trained staff and EMIT analyzers (an immunoassay test) to run either initial testing or additional testing on urine that gave a positive result on an screening test. These labs tested approximately 125,000 samples per year. The North Carolina State Crime Lab uses similar equipment to the former DPS labs for presumptive toxicology testing.

Current Drug Testing Procedures

The DPS labs were closed in early 2014. On-site urine drug screening is now performed by probation officers using a presumptive test kit similar to the type of urine dip test that can be purchased over the counter at many stores. Currently, additional testing is completed by Norchem, a private lab in Arizona, only when the test subject immediately denies use of a controlled substance. If the test subject admits use, the urine specimen is discarded and a positive result is reported (See NC DPS Division of Adult Correction and Juvenile Justice – Community Corrections – Policy & Procedures – Chapter H – Section .0400 Substance Abuse Screening Program, available at https://www.ncdps.gov/div/CC/Publications/Policy.pdf, p. 367, subsection (i)). Because the urine sample is discarded, if the test subject later denies use, the sample cannot be re-tested using more reliable methods.

Reditest and the Need for Confirmatory Testing

The Reditest Panel Dip Test (“Reditest”) is the on-site screening test currently used by probation officers. The Reditest is one of many presumptive test kits which are intended to screen for drugs in urine. The Reditest package insert which describes how to use the product states in its “Limitations” section that the test “provides only a preliminary analytical test result. A secondary analytical method must be used to obtain a confirmed result.” The instruction card for a similar product can be found here. The instructions note that gas chromatography/mass spectrometry (GC/MS) is the “preferred confirmatory method.”

Reditest and Lack of Validation and On-Site Quality Assurance and Quality Control

Reditest recommends but does not provide “positive and negative controls to be tested as good laboratory practice to confirm the test procedure and to verify proper test performance.” Reditest kits are not being validated by the end user in North Carolina. If batches of test kits are not validated, there is no check on the accuracy of kits being used in the state. Immunoassay testing performed by the DPS labs prior to 2014 revealed that on several occasions the on-site test kits shipped to probation and other offices did not work as expected and yielded either inaccurate or uninterpretable results.

To administer the Reditest, a provider dips a portion of the card in a urine sample for 15 seconds. Five minutes later the results can be obtained. The card should have a control line appear in each testing area. If any line appears in the testing section (no matter how faint), the results are negative for that screen. If a line does not appear in the testing section, the manufacturer’s website explains how to send the sample to a laboratory for confirmatory testing. Administration of these presumptive tests by probation officers instead of individuals with scientific training further complicates the potential for incorrect results.

False Positives with Reditest

Included on the package insert are a subset of clinical studies which demonstrate the preliminary nature of the test. Agreement with GCMS, a more accurate confirmatory test, ranged from 89%-99%. The numbers demonstrate the possibility for false positives. In tests such as these, a false positive is typically caused by a legal substance which the kit confuses with an illicit drug. Most commonly this involves over-the-counter medications. For example, some kits will register pseudoephedrine as methamphetamine. The FDA also notes that results from these types of tests can be affected by how the test was performed, how the urine was stored, what the person ate or drank before taking the test, and any other medications the person may have taken.

Admissibility of Screening Test Results

In State v. Carter, 765 S.E.2d 56 (N.C. App. 2014), the N.C. Court of Appeals held that field drug test kits, which are presumptive tests, are inadmissible due to their lack of reliability. The Court noted that for testing of controlled substances to be admissible, it “must be based on a scientifically valid chemical analysis[.]” To establish that a test is admissible, the party must present evidence that the test methods are sufficiently reliable. Results of these initial tests without confirmatory testing should not be admissible and should not be sufficient for the basis of revocation of probation.

Screening Tests and Workplace Testing

Use of the Reditest would not meet federal guidelines for workplace testing. The U.S. Department of Health and Human Services (HHS) 2015 Mandatory Guidelines for Federal Workplace Drug Testing requires that an initial drug test be an immunoassay or alternate technology, such as spectrometry or spectroscopy. (Section 11.9, Available at https://www.federalregister.gov/articles/2015/05/15/2015-11523/mandatory-guidelines-for-federal-workplace-drug-testing-programs#p-426) An HHS-certified laboratory must validate an initial drug test before testing specimens. (Section 11.9) Initial test results must be confirmed by an analytical method that uses mass spectrometric identification. Such methods include gas chromatography/mass spectrometry (GC/MS), liquid chromatography/mass spectrometry (LC/MS), GC/MS/MS, LC/MS/MS] or equivalent. (Section 11.12) Only specimens that yield a positive result on initial and confirmatory tests are reported as positive results. (Section 11.17)

In North Carolina, the testing used to allege a probation violation, revoke probation or remove a child from a parent’s custody would not qualify as even an initial test in the federal employment context.

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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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AAAS Responds to the NAS’s call for Research Backing Forensic Science

The American Association for the Advancement of Science (AAAS) announced that it will begin conducting an analysis of the scientific bases for ten forensic disciplines. Through funding from the Laura and John Arnold Foundation, AAAS plans to review the current scientific studies regarding the procedures and testimony of forensic experts. This analysis is a direct response to some members of the National Commission on Forensic Science’s comment that further study is needed to ensure that forensic science meets Daubert’s requirements for validity and reliability in expert testimony.

In 2009, the National Academy of Sciences released a report entitled Strengthening Forensic Science in the United States: A Path Forward which found that “forensic science disciplines suffer from an inadequate research base: Few forensic scientists have the opportunity to conduct research, few academics are positioned to undertake such research, and, importantly, the funding for forensic research is insufficient.” p. 187.

The AAAS analysis will be conduction quality and gap analysis of the following forensic fields in order to determine what existing research supports current practice as well as what additional research would strengthen the scientific foundation of each field:

  1. Bloodstain Pattern Analysis
  2. Digital Evidence
  3. Fire Investigations
  4. Firearms and Toolmarks/Ballistics
  5. Footwear and Tire Tracks
  6. Forensic Odontology- Bitemark Analysis
  7. Latent Fingerprints
  8. Trace Evidence- Fibers
  9. Trace Evidence- Hair
  10. Trace Evidence- Paint & Other coatings

This project poses a great opportunity to improve the quality of forensic science in the criminal justice system, ensuring greater confidence in the integrity of convictions. It will be important for attorneys to understand the findings of this analysis, as it may demonstrate whether admissibility of certain types of evidence should be re-examined. The AAAS analysis will be a solid step in addressing the flaws which the NAS noted in 2009, which the legal community has been trying to resolve since.

Additional information is available here.

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