1. Forensic Science “Paradox” Paul Giannelli Weatherhead Professor of Law Case Western Reserve University

2. Early Cases Fingerprints: People v. Jennings (1911) Fingerprints: People v. Jennings (1911) Firearms (“ballistics” ) Identifications Firearms (“ballistics” ) Identifications Sacco & Vanzetti (1927) Sacco & Vanzetti (1927) Burchett v. State (Ohio App. 1928) Burchett v. State (Ohio App. 1928) St. Valentine’s Day Massacre (1929) St. Valentine’s Day Massacre (1929) Handwriting Comparison Handwriting Comparison Lindbergh Kidnapping Trial (1936) Lindbergh Kidnapping Trial (1936)

3. Lindbergh Case Bruno Hauptmann’s conviction in the Lindbergh case “created landmarks in scientific crime detection, in the utilization of forensic scientists, and in the courtroom presentation of scientific and demonstrative evidence.” Bruno Hauptmann’s conviction in the Lindbergh case “created landmarks in scientific crime detection, in the utilization of forensic scientists, and in the courtroom presentation of scientific and demonstrative evidence.” Baden, 28 J. Forensic Sci. 1035 (1983). Baden, 28 J. Forensic Sci. 1035 (1983).

4. Lindbergh Case Albert Osborn, one of the handwriting experts in the trial, “became a kind of public hero, and the validity of ‘scientific’ handwriting identification when practiced by a ‘competent’ practitioner became public knowledge....” Albert Osborn, one of the handwriting experts in the trial, “became a kind of public hero, and the validity of ‘scientific’ handwriting identification when practiced by a ‘competent’ practitioner became public knowledge....” Risinger et al., 137 U. Pa. L. Rev. 731, 738 (1989) Risinger et al., 137 U. Pa. L. Rev. 731, 738 (1989)

5. Sacco & Vanzetti Expert’s affidavit: repeatedly told the prosecutor that “he would have to answer in the negative if he were asked whether he had found positive evidence that the fatal bullet had been fired from Sacco’s pistol.” Expert’s affidavit: repeatedly told the prosecutor that “he would have to answer in the negative if he were asked whether he had found positive evidence that the fatal bullet had been fired from Sacco’s pistol.” Trial Testimony: “My opinion is that it is consistent with being fired by that pistol.” Trial Testimony: “My opinion is that it is consistent with being fired by that pistol.” Joughin & Morgan, The Legacy of Sacco & Vanzetti 15 (1948). Joughin & Morgan, The Legacy of Sacco & Vanzetti 15 (1948).

6. Development of Crime Lab 1923L.A. Crime Lab 1923L.A. Crime Lab August Vollmer; Berkeley Criminology Depar’t August Vollmer; Berkeley Criminology Depar’t 1930 L.A. Sheriff’s Lab 1930 L.A. Sheriff’s Lab 1931California State Lab 1931California State Lab 1929Northwestern Law School 1929Northwestern Law School Calvin Goddard & John Henry Wigmore Calvin Goddard & John Henry Wigmore 1938 Chicago Crime Lab 1938 Chicago Crime Lab 1933F.B.I. Crime Lab 1933F.B.I. Crime Lab

7. Crime Labs as Reform Frankfurter, The Case of Sacco and Vanzetti 30 (1927) (“What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy.”). Frankfurter, The Case of Sacco and Vanzetti 30 (1927) (“What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy.”). Brown v. Mississippi (U.S. 1936) (due process violated by beating a confession out of a suspect). Brown v. Mississippi (U.S. 1936) (due process violated by beating a confession out of a suspect).

8. Pres. Johnson’s Crime Comm. “[T]he great majority of police department laboratories have only minimal equipment and lack highly skilled personnel able to use the modern equipment now being developed.” “[T]he great majority of police department laboratories have only minimal equipment and lack highly skilled personnel able to use the modern equipment now being developed.” President’s Comm’n on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 255 (1967) President’s Comm’n on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 255 (1967)

9. Pres. Nixon’s Crime Comm. “Too many police crime laboratories have been set up on budgets that preclude the recruitment of qualified professional personnel.” “Too many police crime laboratories have been set up on budgets that preclude the recruitment of qualified professional personnel.” National Advisory Comm’n on Criminal Justice Standards and Goals, Report on Police 304 (1974) National Advisory Comm’n on Criminal Justice Standards and Goals, Report on Police 304 (1974)

10. Proficiency Testing (1978) 200 crime laboratories 200 crime laboratories blood test: 71% blood test: 71% paint samples: 51.4 % paint samples: 51.4 % soil examination: 35.5 % soil examination: 35.5 % firearms identifications: 28.2 % firearms identifications: 28.2 % Wide variability in labs Wide variability in labs

11. ASCLD/LAB (1981) American Society of Crime Lab Directors/Laboratory Accreditation Board Quality assurance programs: proficiency testing, technical reviews, audits, and corrective action procedures. Only 10% of labs pass on first inspection. Investigations: Fred Zain

12. Developments: 1988-1993 DNA Litigation DNA Litigation People v. Castro (1989) People v. Castro (1989) Daubert v. Merrell Dow Pharm. (1993) Daubert v. Merrell Dow Pharm. (1993) Supreme Court’s “junk science” decision Supreme Court’s “junk science” decision Lab Abuse Cases Lab Abuse Cases W. Virginia Crime Lab (Fred Zain) (1993) W. Virginia Crime Lab (Fred Zain) (1993)

13. DNA Admissibility “Wars” University science, not forensic science University science, not forensic science “Science culture” “Science culture” written protocols written protocols quality assurance/quality control quality assurance/quality control proficiency testing proficiency testing Open science vs. adversarial science Open science vs. adversarial science

14. DNA Gold Standard What DNA “Fingerprinting” Can Teach the Law About the Rest of Forensic Science? What DNA “Fingerprinting” Can Teach the Law About the Rest of Forensic Science? “forensic scientists, like scientists in all other fields, should subject their claims to methodologically rigorous empirical tests. The results of these tests should be published and debated.” “forensic scientists, like scientists in all other fields, should subject their claims to methodologically rigorous empirical tests. The results of these tests should be published and debated.” Saks & Koelher, 13 Cardozo L. Rev. 361 (1991) Saks & Koelher, 13 Cardozo L. Rev. 361 (1991)

15. DNA Identification Act (1994) Combined DNA Index System (CODIS). DNA Advisory Board (DAB) created to assist in promulgating quality assurance standards. P Proficiency testing for FBI analysts etc. New York established Comm’n on Forensic Science.

16. Garrett, Judging Innocence, 108 Colum. L. Rev. 55 (2008) 200 DNA exoneration cases 200 DNA exoneration cases Eyewitness identifications: 79% Eyewitness identifications: 79% Forensic evidence: 57% Forensic evidence: 57% Informants testimony:18% Informants testimony:18% False confessions:16% False confessions:16%

17. Forensic Evidence Pre-DNA serology:79 cases Pre-DNA serology:79 cases Hair comparison:43 Hair comparison:43 Soil comparison:5 Soil comparison:5 DNA analysis:3 DNA analysis:3 Bite marks:3 Bite marks:3 Fingerprints:2 Fingerprints:2 Dog scent ident.:2 Dog scent ident.:2 Voiceprints, shoe prints, fibers:1 each Voiceprints, shoe prints, fibers:1 each

18. Williamson v. Reynolds Expert: “microscopically consistent” Expert: “microscopically consistent” Expert: “[T]here … could be another individual somewhere in the world that would have the same characteristics.” Expert: “[T]here … could be another individual somewhere in the world that would have the same characteristics.” Williamson v. Reynolds, 904 F. Supp. 1529, 1558 (E.D. Okl. 1995) rev’d on this issue, Williamson v. Ward, 110 F.3d 1508, 1522-23 (10th Cir. 1997) (due process, not Daubert, standard applies in habeas proceedings) Williamson v. Reynolds, 904 F. Supp. 1529, 1558 (E.D. Okl. 1995) rev’d on this issue, Williamson v. Ward, 110 F.3d 1508, 1522-23 (10th Cir. 1997) (due process, not Daubert, standard applies in habeas proceedings)

19. Edward Honaker Expert: Crime scene hair sample “was unlikely to match anyone” other than the defendant. Expert: Crime scene hair sample “was unlikely to match anyone” other than the defendant. Another expert would later conclude: the “hairs were not comparable.” Another expert would later conclude: the “hairs were not comparable.” Exonerated by DNA. Exonerated by DNA.

20. State v. Bromgard Expert: “[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.” Expert: “[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)

21. Current Issues Empirical support for forensic techniques: Saks & Koehler, The Individualization Fallacy in Forensic Science Evidence, 61 Vand. L. Rev. 199 (2008). Regulation of crime labs: Regulation of crime labs: Giannelli, Wrongful Convictions and Forensic Science: The Need for Regulation, 86 N.C. L. Rev. 163 (2007). Giannelli, Wrongful Convictions and Forensic Science: The Need for Regulation, 86 N.C. L. Rev. 163 (2007).