NACDL Releases Primers on Surveillance

With a focus on Fourth Amendment concerns, the National Association of Criminal Defense Lawyers (NACDL) recently began a series of surveillance primers. The first primers in the series provide information on Automated License Plate Readers, Cell Phone Location Tracking, and Cell Site Simulators. NACDL will periodically release more primers on surveillance technologies. These documents are available to members and non-members here.

Each primer describes what the technology is designed to do, how it is used, and suggested defense strategies to identify and challenge the use of these technologies. The primers discuss law enforcement justifications for their use and provide lists of resources to aid in further research. These are a great starting point to further one’s understanding of these technologies, including determining if they were used in a case.

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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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Center for Nursing Excellence International Releases Multidisciplinary Sexual Assault Glossary

It can be frustrating when a term means something to one discipline yet has a different definition when used in another discipline. Thus, together with the Forensic Technology Center of Excellence (FTCoE), the Center for Nursing Excellence International (CFNEI) has released a glossary of terms used in sexual assault cases.  The Multidiscipline Sexual Assault Glossary is a continuously updated searchable database compiled with the input of experts in several fields.

With this glossary, attorneys can ensure clear communication with jurors as well as experts consulted in the course of sexual assault cases.  As the definitions are FBI-compliant, one can be confident in their veracity and clarity.  The glossary will be available as a smartphone app in the future.

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Toxicology Testing by NMS Labs – FAQ

Many attorneys have asked us about blood-drug (and some blood-drug and alcohol) testing performed by NMS Labs. We have compiled the questions and our answers here. If you have additional questions, please post them in the comments and we will try to answer them as well. Let’s make this a living document!

The toxicology evidence in my case was analyzed by NMS Labs in PA. Why was it sent there?

The NC State Crime Laboratory currently is outsourcing blood-drug and blood-alcohol and drug cases in an effort to address their backlog. 43 counties are currently participating in the outsourcing program: Alexander, Beaufort, Bladen, Brunswick, Buncombe, Burke, Cabarrus, Caldwell, Catawba, Cleveland, Columbus, Duplin, Durham, Edgecombe, Franklin, Gaston, Greene, Guilford, Harnett, Hoke, Iredell, Lenoir, Lincoln, Johnston, Jones, Lee, McDowell, Mecklenburg, Moore, Nash, New Hanover, Onslow, Rockingham, Rowan, Rutherford, Sampson, Scotland, Stokes, Surry, Union, Vance, Warren, Wayne, and Wilson.

Who is the “Certifying Scientist” who signs the lab report and are there any potential problems with this?

NMS lab reports are not signed by the analyst who performed the tests, rather by a “Certifying Scientist,” who does not seem to have any interaction with the evidence itself, and possibly not even the data. Melendez-Diaz established an inescapably clear requirement that those people testifying as experts, must have formed their own opinion on the data that was generated from the testing. If the Certifying Scientist does not have an opinion, or lacks the qualifications to support those opinions, that person should not be testifying as an expert about the data in that lab packet. Additionally, NMS runs their analyses in batches. Multiple technicians work to process multiple samples at the same time. A Certifying Scientist who did not perform or observe the testing is not going to be able to guarantee every step of the process was error-free. For more in-depth discussion of these problems, please see: http://nccriminallaw.sog.unc.edu/the-nc-supreme-courts-recent-substitute-analyst-cases/

Does NMS have different procedures from the NCSCL?

Some of NMS’s procedures are different. NMS provides quantified results for their toxicology reports, estimating the amount of a substance found in the blood sample and, for a time, NMS witnesses opined about the impairing effects of substances which they found, but NCSCL has advised them not to do this. A Pharmacologist could look at this quantified data and say whether the dosage is commensurate with a therapeutic dosage or not, and even testify to the impairing effects. If the Certifying Scientist intends to give testimony about the impairing effects, per N.C. Gen. Stat. 15A-903 and Rule of Evidence 702, that opinion would need to be disclosed in their report and they would need to have pharmacological training to support that testimony.

The NMS Labs also uses a different sort of spectrometer to analyze their samples. The NCSCL uses a Gas Chromatography Mass Spectrometer (GCMS), an instrument that passes an ion beam through a gas and detects the energy changes in the substances found in the gas taken from the sample. NMS Labs uses a Liquid Chromatography Mass Spectrometer (LCMS). The NCSCL also uses this instrument to perform some toxicology analysis. These techniques produce the same sort of data and are both considered confirmatory tests, but the procedures and instruments used are quite different.

Does NMS have to turn over their lab packet?

In some cases a 3-4 page summary report is turned over to the defense. This is not the entire lab packet. NMS Labs also produces a “litigation packet” that typically is several hundred pages long. The summary report does not contain sufficient information for counsel to understand what tests were performed and whether they were performed correctly. If the case is within the original jurisdiction of the Superior Court, the rules of discovery apply and you would be entitled to the lab packet through discovery. If the case is within the original jurisdiction of the District Court, you can ask the judge to order the prosecution to turn over a copy. If the witness relies on his or her report during testimony and it is not turned over until then, it would be extremely time-consuming for counsel to attempt to review it at that time. In some jurisdictions, the litigation packets are being turned over in District Court prior to trial.

This packet is huge and really hard to understand.

Yes, that does seem to be the way of things. It is hard to imagine that this packet was designed with the purpose of giving the reader easy access to the relevant information. Their reports typically spend a lot of time identifying the presence of many metabolites of a substance. These are just the indicators of the substance being present and metabolized, not additional substances. Additionally, metabolites can be active or inactive, meaning that some metabolites have no impairing effect, and could even indicate a lack of impairment.

If you have any concerns about how a drug is metabolized, or what a drug’s metabolites are, LabCorp has a rather comprehensive guide to the metabolites of Benzodiazepines and Opiates.

If you need a starting point for the effects of a certain substance on a human who has ingested it, the NHSTA has Drug and Human Performance Fact Sheets on 16 different commonly used drugs — including cocaine, cannabis, methadone, Valium and Ambien — prepared by pharmacologists to describe how average humans are impacted by drug usage. These models are based on normal, healthy humans, and any increased tolerances or other reasons why the model does not fit your client should be discussed with an expert.

It is highly advisable that, at this time, that you get an expert to review the data with you after you get the packet. One easy to spot problem is if the data representation where the x-axis is time and the y-axis is signal intensity, the peaks do not touch the bottom of the graph, that is a pretty serious problem. Since NMS provides the quantity of the substance, if they cannot accurately tell where the substance they are analyzing begins or ends, they cannot have much accuracy on the quantity they are saying is present.

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Free Workshop: Forensic Technology and the Impact on Frye and Daubert Standards

The Forensic Technology Center of Excellence (FTCoE) at RTI International, Duquesne University, and the Allegheny County Medical Examiner’s Office are holding a workshop in Pittsburgh, PA on August 9th & 10th, 2016. The workshop will focus on information a likely to show up in cases involving forensic evidence, the technologies behind that evidence, and the impact of the Frye and Daubert standards for admissibility of expert testimony.

The legal profession strives to have a better knowledge of the scientific principles and technologies employed in forensic evidence analysis. Forensic practitioners and scientists have been actively developing methodologies and innovative technologies to analyze evidence. In turn, professionals in the criminal justice system who are responsible for making legal decisions must have an understanding of these technologies and the impact of Frye and Daubert standards on the admissibility of testimony about these technologies.

Criminal court judges, prosecuting and defense attorneys, and legal academicians are encouraged to apply. Space is limited to 25 attendees and nominations are required. The deadline for nominations has been extended to July 22. The FTCoE will provide workshop registration, airfare, lodging, and per diem expenses for all attendees. A Certificate of Completion will be provided to document two days of continuing education.

For more information, please visit the Forensic Technology Center of Excellence website for the event.

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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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