It Really Isn’t Rocket Science – Forensics Discovery
Mishandling of DNA Evidence Is Found in Over 50 Cases at Crime Lab, Chemist Pleads Guilty In Massachusetts Crime Lab Scandal, Former SFPD Lab Tech Sentenced for Drug Possession, North Carolina’s Crime Lab Scandal Remains Unaddressed are just a few of the recent headlines from news sources across the country. Law enforcement crime lab scandals have become increasingly common despite efforts by some of the best and brightest in this country including the National Academy of Science and more recently the federal government to improve the quality of forensic science and the delivery of services by law enforcement labs. Not only are most of these same crime labs still in business processing crime scene evidence used to prosecute our clients, but it has become increasingly clear that defense attorneys are often the last to find out about widespread problems within them our local labs. Typically we find out by chance, not as a result of our own aggressive, effective, lawyering efforts. This needs to change.
There may be many reasons we do not discover this information and many reasons why defenders fail to aggressively litigate issues dealing with forensic science evidence. Indeed it was necessary for Justice Scalia to remind some of his colleagues in Melendez-Diaz v. Massachusetts that “forensic evidence is not uniquely immune from the risk of manipulation. The majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency. And because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency. A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.” The point here is that many of these disciplines are grounded not in science, but in law enforcement. People with strong backgrounds in science will tell you that most of forensic science has never been shown to be scientifically valid. Unfortunately too many lawyers are put off by science and in fact some will tell you they became lawyers to avoid science.
We can’t continue to consider science a foreign language. Basic scientific principals and concepts are not difficult to learn. By applying the tools we regularly use in investigating and litigating our cases we will be able to show courts and jurors that not only is this not CSI, but many of the forensic disciplines are not even well-grounded in science.
So where do we begin? Investigating crime lab analysts and examiners is not very different from the types of investigations we routinely perform on any witness who will be called by the prosecution. We need to interview these folks. Find out what they did and why they did it. Have them walk through the steps of their analysis or examination. Did they follow a protocol or manual? Did they deviate from the protocol in anyway? Why? Get a copy of the manual or protocol. How many times have they conducted an analysis like this one? Was there anything unusual about this evidence sample, this result or the way this test was performed?
Ask for the examiner’s resume. What is the examiner’s background and training? Where did she go to school? What degrees did she obtain? Is she certified? By what entity? Has she ever tried to become certified? Who trained her and when? Does she attend continuing education courses?
Additionally, there are also a number of documents maintained by the lab which are important for us to discover. Virtually every law enforcement lab in the United States is accredited. Most are accredited by the American Society of Crime Lab Directors Laboratory Accreditation Board (ASCLD-LAB). One of the requirements of accreditation is that a lab be audited by a group of external auditors once every five years. Following these audits reports are prepared and labs are notified of any corrective actions that must occur in order for the lab to maintain its accreditation. Copies of these reports and corrective action requests are maintained by the labs.
Next various members of various units in the lab must undergo annual proficiency testing. While these proficiency tests do not mirror actual case work and analysts know they are being tested, some analysts fail these tests and must be re-trained. Labs must maintain copies of the proficiency test files and results. Other documents describing retraining are generally maintained in the quality assurance section of the lab.
Another important set of documents generally maintained by a lab in its quality assurance unit is a log of unexpected results and corrective action logs for each discipline or unit. These logs detail errors that occur, mistakes that are made, instances of contamination and other anomalous results. There should be a corrective action document that corresponds to each error, mistake or unexpected result. The corrective action document should describe the root cause of the error or anomalous result and what action was taken to prevent the error from occurring in the future. In addition to interviewing the witnesses and gathering documents it is almost always important to consult with an expert retained or appointed by the defense confidentially. This expert will help identify issues with the analysis, the interpretation of the results and how the results are reported. The expert should have a background in science so that she may discuss with you existing studies and research in the discipline in issue in the case. Ideally such an expert will be able to provide you with information that you may use to cross-examine the prosecution’s expert at trial. Finally, in some cases you will also need a testifying expert who has a strong background in the particular area that is the focus of your defense. For example, you may need an expert who has a background in statistics in order to be able to explain why the claims being made by the forensic practitioner are not supported by the research that exists. Examiners in pattern impression disciplines often state either explicitly or implicitly that crime scene evidence matches your client and no one else without the scientific research to support the claim.
Of the first 225 wrongful convictions overturned by DNA evidence, more than 50|PERCENT| of them involved unvalidated or improper forensic science. Many of these case involved experts over-stating the results of their analysis. Investigating these issues in the same way we investigate all the issues in our cases will go a long way to preventing wrongful convictions based on faulty forensic science in the future and may even lead to crime labs improving their procedures.