Reliability & Forensic Science Paul Giannelli Weatherhead Professor of Law Case Western Reserve University

West Virginia: Fred Zain In re Investigation of W.Va. State Police Crime Lab., Serology Div. In re Investigation of W.Va. State Police Crime Lab., Serology Div. 438 S.E. 501 (W. Va. 1993) 438 S.E. 501 (W. Va. 1993) Chief serologist Chief serologist fabricated reports fabricated reports perjured testimony perjured testimony

Zain’s Acts of misconduct (1) overstating the strength of results; (1) overstating the strength of results; (2) overstating the frequency of genetic matches on individual pieces of evidence; (2) overstating the frequency of genetic matches on individual pieces of evidence; (3) reporting that multiple items of evidence had been tested, when only a single item had been tested; (3) reporting that multiple items of evidence had been tested, when only a single item had been tested; (4) reporting inconclusive results as conclusive; (4) reporting inconclusive results as conclusive; (5) repeatedly altering laboratory records; (5) repeatedly altering laboratory records;

Zain continued (6) failing to report conflicting results; (6) failing to report conflicting results; (7) failing to conduct or to report conducting additional testing to resolve conflicting results; (7) failing to conduct or to report conducting additional testing to resolve conflicting results; (8) implying a match with a suspect when testing supported only a match with the victim; and (8) implying a match with a suspect when testing supported only a match with the victim; and (9) reporting scientifically impossible or improbable results. (9) reporting scientifically impossible or improbable results.

Law Reviews Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. Soc. Policy & L. 439 (1997) Bernstein, Junk Science in the United States and the Commonwealth, 21 Yale J. Int’l L. 123 (1996) (discussing cases in Canada, Australia, New Zealand, and England)

W. Va. Lab: Later Problems “The trooper who discovered one of the more recent scandals at the State Police crime lab was placed on leave Tuesday pending an investigation of his own work.” “The trooper who discovered one of the more recent scandals at the State Police crime lab was placed on leave Tuesday pending an investigation of his own work.” Messina, State Police Lab Review Leaves Agency With Another Shiner, Charleston Gazette, Mar. 13, 2002, at P1A Messina, State Police Lab Review Leaves Agency With Another Shiner, Charleston Gazette, Mar. 13, 2002, at P1A

Justice Department I.G. Report on FBI Lab (1997) (1) seek accreditation; (1) seek accreditation; (2) require examiners in the Explosives Unit to have scientific backgrounds in chemistry, metallurgy, or engineering; (2) require examiners in the Explosives Unit to have scientific backgrounds in chemistry, metallurgy, or engineering; (3) mandate that each examiner prepare and sign a separate report instead of a composite report “without attribution to individual examiners”; (3) mandate that each examiner prepare and sign a separate report instead of a composite report “without attribution to individual examiners”;

I.G. Report continued (4) establish review process for analytical reports by unit chiefs; (4) establish review process for analytical reports by unit chiefs; (5) prepare adequate case files to support reports; (5) prepare adequate case files to support reports; (6) monitor court testimony in order to preclude examiners from testifying to matters beyond their expertise or in ways that are “unprofessional”; and (6) monitor court testimony in order to preclude examiners from testifying to matters beyond their expertise or in ways that are “unprofessional”; and (7) develop written protocols for scientific procedures. (7) develop written protocols for scientific procedures.

FBI - DNA Jacqueline Blake failed to use negative controls in DNA testing for 2 years in more than a 100 cases. Jacqueline Blake failed to use negative controls in DNA testing for 2 years in more than a 100 cases. Office of Inspector General, U.S. Department of Justice, The FBI Laboratory: A Review of Protocol and Practice Vulnerabilities (May 2004) Office of Inspector General, U.S. Department of Justice, The FBI Laboratory: A Review of Protocol and Practice Vulnerabilities (May 2004)

Bullet Lead Comparison “In a sworn affidavit, [Lundy] admitted that her trial testimony was untruthful and that the manufacturing batch was many times larger than she had suggested.... Lundy blamed her conduct partly on a sense of crisis in her work, fed by ‘new and repeated challenges’ to the validity of the science associated with bullet lead comparison analysis.” “In a sworn affidavit, [Lundy] admitted that her trial testimony was untruthful and that the manufacturing batch was many times larger than she had suggested.... Lundy blamed her conduct partly on a sense of crisis in her work, fed by ‘new and repeated challenges’ to the validity of the science associated with bullet lead comparison analysis.” Pillar & Mejia, Science Casts Doubt on FBI’s Bullet Evidence, L.A. Times, Feb. 3, 2003 Pillar & Mejia, Science Casts Doubt on FBI’s Bullet Evidence, L.A. Times, Feb. 3, 2003

Oklahoma City: Joyce Gilchrist “[T]he forensic report was at best incomplete, and at worst inaccurate and misleading.” “[T]he forensic report was at best incomplete, and at worst inaccurate and misleading.” “We find it inconceivable why Ms. Gilchrist would give such an improper opinion, which she admitted she was not qualified to give.” “We find it inconceivable why Ms. Gilchrist would give such an improper opinion, which she admitted she was not qualified to give.” McCarty v. State, 765 P.2d 1215, 1218 (Okla. Crim. App. 1988) McCarty v. State, 765 P.2d 1215, 1218 (Okla. Crim. App. 1988)

Gilchrist continued “Ms. Gilchrist thus provided the jury with evidence implicating Mr. Mitchell in the sexual assault of the victim which she knew was rendered false and misleading by evidence withheld from the defense.” “Ms. Gilchrist thus provided the jury with evidence implicating Mr. Mitchell in the sexual assault of the victim which she knew was rendered false and misleading by evidence withheld from the defense.” Mitchell v. Gibson, 262 F.3d 1036, 1044 (10th Cir. 2001) (withheld exculpatory DNA report) Mitchell v. Gibson, 262 F.3d 1036, 1044 (10th Cir. 2001) (withheld exculpatory DNA report)

Gilchrist continued “[I]n her missionary zeal to promote the cause of the prosecution she had put blinders on her professional conscience so that the truth of science took a back seat to her acting the role of an advocate.” “[I]n her missionary zeal to promote the cause of the prosecution she had put blinders on her professional conscience so that the truth of science took a back seat to her acting the role of an advocate.” Starrs, The Forensic Scientist and the Open Mind, 31 J. Forensic Sci. Soc’y 111, (1991) Starrs, The Forensic Scientist and the Open Mind, 31 J. Forensic Sci. Soc’y 111, (1991)

Okla. City P.D. Report (1) missing evidence in numerous cases, (1) missing evidence in numerous cases, (2) contamination issues due to evidence being “stacked all over the chemist’s area,” (2) contamination issues due to evidence being “stacked all over the chemist’s area,” (3) systematic destruction of rape evidence before statute of limitations expired, (3) systematic destruction of rape evidence before statute of limitations expired, (4) lack of peer review in many cases, and (4) lack of peer review in many cases, and (5) lack of proficiency testing although such testing had been paid for. (5) lack of proficiency testing although such testing had been paid for. Memo from Captain Byron Boshell (Jan. 16, 2001) Memo from Captain Byron Boshell (Jan. 16, 2001)

FBI Review 8 cases: misidentified hairs in 6 & fibers in 1 8 cases: misidentified hairs in 6 & fibers in 1 “The review of the laboratory notes revealed that they were often incomplete or inadequate to support the conclusions reached by the examiner. No documentation existed that would allow the examiner to identity textile fibers associated in one of the cases.” “The review of the laboratory notes revealed that they were often incomplete or inadequate to support the conclusions reached by the examiner. No documentation existed that would allow the examiner to identity textile fibers associated in one of the cases.” Special Agent Deedrick, Summary of Case Reviews of Forensic Chemist, Joyce Gilchrist (April 4, 2001) at 1 Special Agent Deedrick, Summary of Case Reviews of Forensic Chemist, Joyce Gilchrist (April 4, 2001) at 1

Montana: Arnold Melnikoff Erroneous hair evidence in the trial of Jimmy Ray Bromgard, who spent 15 years in prison before being exonerated by DNA. Erroneous hair evidence in the trial of Jimmy Ray Bromgard, who spent 15 years in prison before being exonerated by DNA. Liptak, 2 States to Review Lab Work of Expert Who Erred on ID, N.Y. Times, Dec. 19, 2002, at A24 Liptak, 2 States to Review Lab Work of Expert Who Erred on ID, N.Y. Times, Dec. 19, 2002, at A24

Melnikoff continued Melnikoff: “[T]he odds were one in one hundred that two people would have head hair or pubic hair so similar that they could not be distinguished by microscopic comparison and the odds of both head and pubic hair from two people being indistinguishable would be about one in ten thousand.” Melnikoff: “[T]he odds were one in one hundred that two people would have head hair or pubic hair so similar that they could not be distinguished by microscopic comparison and the odds of both head and pubic hair from two people being indistinguishable would be about one in ten thousand.” State v. Bromgard, 862 P.2d 1140, 1141 (Mont. 1993) State v. Bromgard, 862 P.2d 1140, 1141 (Mont. 1993)

Melnikoff continued “egregious misstatements” & a “fundamental lack of understanding” of hair comparisons: “egregious misstatements” & a “fundamental lack of understanding” of hair comparisons: “The witness’s use of probabilities is contrary to the fact that there is not – and never was – a well established probability theory for hair comparison.... If this witness has evaluated hair in over 700 cases as he claims in his testimony, then it is reasonable to assume that he had made many other misattributions.” “The witness’s use of probabilities is contrary to the fact that there is not – and never was – a well established probability theory for hair comparison.... If this witness has evaluated hair in over 700 cases as he claims in his testimony, then it is reasonable to assume that he had made many other misattributions.” Innocence Project, Peer Review Report Innocence Project, Peer Review Report

Houston - DNA “[T]he validity of almost any case that has relied upon evidence produced by the lab is questionable.” “[T]he validity of almost any case that has relied upon evidence produced by the lab is questionable.” Rodney Ellis, Editorial, Want Tough on Crime? Start by Fixing HPD Lab., Houston Chronicle, Sept. 5, 2004 (state representative). Rodney Ellis, Editorial, Want Tough on Crime? Start by Fixing HPD Lab., Houston Chronicle, Sept. 5, 2004 (state representative).

Proficiency Test: Fingerprints “[T]he FBI examiners got very high proficiency grades, but the tests they took did not.... [T]he proficiency tests are less demanding than they should be.” “[T]he FBI examiners got very high proficiency grades, but the tests they took did not.... [T]he proficiency tests are less demanding than they should be.” New Scotland Yard examiner: “It’s not testing their ability. … And if I gave my experts these tests, they’d fall about laughing.” New Scotland Yard examiner: “It’s not testing their ability. … And if I gave my experts these tests, they’d fall about laughing.” U.S. v. Llera Plaza, 188 F. Supp. 2d 549, 558 (E.D. Pa. 2002) U.S. v. Llera Plaza, 188 F. Supp. 2d 549, 558 (E.D. Pa. 2002)

Proficiency Test: Handwriting “Mr. Cawley testified that he achieved a 100% passage rate on the proficiency tests that he took and that all of his peers always passed their proficiency tests. Mr. Cawley said that his peers always agreed with each others’ results and always got it right. Peer review in such a ‘Lake Woebegone’ environment is not meaningful.” “Mr. Cawley testified that he achieved a 100% passage rate on the proficiency tests that he took and that all of his peers always passed their proficiency tests. Mr. Cawley said that his peers always agreed with each others’ results and always got it right. Peer review in such a ‘Lake Woebegone’ environment is not meaningful.” U.S. v. Lewis, 220 F. Supp. 2d 548, 554 (S.D. W.Va. 2002) U.S. v. Lewis, 220 F. Supp. 2d 548, 554 (S.D. W.Va. 2002)

Regulate Crime Labs Accreditation of labs Accreditation of labs E.g., New York, Oklahoma, Texas, Virginia E.g., New York, Oklahoma, Texas, Virginia Certification of examiners Certification of examiners Proficiency testing Proficiency testing Standardization of procedures Standardization of procedures Published protocols Published protocols

Federal Legislation “Justice for All” Act “Justice for All” Act Requires states to have an investigative entity Requires states to have an investigative entity DNA Identification Act DNA Identification Act Requires accreditation of DNA labs within 2 years Requires accreditation of DNA labs within 2 years

Defense Experts Ake v. Oklahoma, 470 U.S. 68 (1985) (due process right to defense expert for indigents). Ake v. Oklahoma, 470 U.S. 68 (1985) (due process right to defense expert for indigents). Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L. Rev (2004). Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in a Post-Daubert, Post-DNA World, 89 Cornell L. Rev (2004). Defense expert not appointed in a DNA case “because of a shortage of county funds.” Defense expert not appointed in a DNA case “because of a shortage of county funds.” Prater v. State, 820 S.W.2d 429, 439 (Ark. 1991). Prater v. State, 820 S.W.2d 429, 439 (Ark. 1991).

State v. Huchting “[W]e disagree with [accused’s] contention that the average attorney is ill-equipped to defend against [DNA] evidence. To the contrary, law libraries – i.e., law journals, practitioners’ guides, annotated law reports, CLE materials, etc – are teeming with information and advice for lawyers preparing to deal with DNA evidence trial.” “[W]e disagree with [accused’s] contention that the average attorney is ill-equipped to defend against [DNA] evidence. To the contrary, law libraries – i.e., law journals, practitioners’ guides, annotated law reports, CLE materials, etc – are teeming with information and advice for lawyers preparing to deal with DNA evidence trial.” 927 S.W.2d 411, 420 (Mo. Ct. App. 1996) 927 S.W.2d 411, 420 (Mo. Ct. App. 1996)

ABA Resolutions (2004) 1. Crime laboratories and medical examiner offices should be accredited, examiners should be certified, and procedures should be standardized and published to ensure the validity, reliability, and timely analysis of forensic evidence. 1. Crime laboratories and medical examiner offices should be accredited, examiners should be certified, and procedures should be standardized and published to ensure the validity, reliability, and timely analysis of forensic evidence. 2. Crime laboratories and medical examiner offices should be adequately funded. 2. Crime laboratories and medical examiner offices should be adequately funded. 3. The appointment of defense experts for indigent defendants should be required whenever reasonably necessary to the defense. 3. The appointment of defense experts for indigent defendants should be required whenever reasonably necessary to the defense.