1. UPDATE ON LEGAL ISSUES RELATED TO FORENSIC SCIENCE
Presented by:
Gary A. Udashen
Udashen | Anton
2311 Cedar Springs Rd., Suite 250
Dallas, Texas 75201
fax

2. T. R. EVID. 702
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

3. KELLY V. STATE, 824 S.W.2d 568 (Tex. Crim. App. 1992)
1. The underlying scientific theory must be valid; 2. The technique applying the theory must be valid; and 3. The technique must have been properly applied on the occasion in question.

4. MISAPPLICATION OF FORENSIC SCIENCE AND WRONGFUL CONVICTIONS
Misapplication of forensic science is the second most common contributing factor to wrongful convictions.
Contributory factor in 45% of DNA exoneration cases.

5. PROBLEMS Unreliable or invalid forensic disciplines.
Insufficient validation of forensic methods.
Misleading testimony from state’s witnesses.
Mistakes by forensic practitioners.
Misconduct by forensic practitioners.

6. STUDIES ON FORENSIC SCIENCE
Strengthening Forensic Science in the United States: A Path Forward
National Academy of
Sciences 2009
Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods
President Council of Advisors on
Science and Technology (PCAST)
2016

7. FORENSIC SCIENCE AREAS IN QUESTION
Eyewitness identifications
Hair and fiber comparisons
Bite mark comparisons
Child head injuries
Blood stain evidence
Fingerprints
Arson

10. CHANGING SCIENTIFIC EVIDENCE
Ex parte Robbins, 360 S.W.3d 446 (Tex. Crim. App. 2011), cert. denied May 14, 2012)
QUESTION: HOW SHOULD COURTS RESPOND TO CHANGES IN SCIENCE UNDERLYING CONVICTIONS

11. ROBBINS FACTS Child Death Case
Medical Examiner testified child died from asphyxia due to compression of chest and abdomen
Medical Examiner reconsiders her opinion and concludes cause of death is undetermined

12. ROBBINS MAJORITY
Despite all experts agreeing that Dr. Moore’s findings and testimony were incorrect, majority refused relief because none of the experts affirmatively proved that “Tristen could not have been intentionally asphyxiated.” Majority concluded Robbins did not “have a due process right to have a jury hear Moore’s re-evaluation.”

13. JUDGE COCHRAN DISSENTING
Discussed her “extremely serious concern” about the increased “disconnect between the worlds of science and of law” that allows a conviction to remain in force when the scientific basis for that conviction has since been rejected by the scientific community.
Judge Cochran said “[f]inality of judgment is essential in criminal cases, but so is accuracy of the result - an accurate result that will stand the test of time and changes in scientific knowledge.”

14. NEW STATUTE CONCERNING WRITS BASED ON NEW SCIENTIFIC EVIDENCE
Art Procedure Related to Certain Scientific Evidence.
(a) This article applies to relevant scientific evidence that:
(1) was not available to be offered by a convicted person at the convicted person’s trial; or
(2) contradicts scientific evidence relied on by the state at trial:
(b) A court may grant relief if :
(A) relevant scientific evidence is currently available and was not available at the time of the convicted person’s trial because the evidence was not ascertainable through the exercise of reasonable diligence by the convicted person before the date of or during the convicted person’s trial; and

15. ART
(B) the scientific evidence would be admissible under the Texas Rules of Evidence ; and (2) the court finds that, had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted. (c) For purposes of a subsequent writ, a claim or issue could not have been presented in a previously considered application if the claim or issue is based on relevant scientific evidence that was not ascertainable through the exercise of reasonable diligence by the convicted person on or before the date on which the original application or a previously considered application , as applicable, was filed.

16. ART
(d) In making a finding as to whether relevant scientific evidence was not ascertainable through the exercise of reasonable diligence on or before a specific date, the court shall consider whether the field of scientific knowledge, a testifying expert’s scientific knowledge, or a scientific method on which the relevant scientific evidence is based has changed since . . .

17. EX PARTE ROBBINS (ROBBINS II) 478 S. W. 3d 678 (Tex. Crim. App
EX PARTE ROBBINS (ROBBINS II) 478 S.W.3d 678 (Tex. Crim. App. 2014), rehearing denied (2016)
Robbins case reconsidered under Art and relief granted.

18. ROBBINS II MAJORITY OPINION
Majority held Medical Examiner’s reconsideration of her opinion was new scientific evidence that contradicted scientific evidence relied upon by the state at trial.

19. EX PARTE HENDERSON, 246 S.W.3d 690 (Tex. Crim. App. 2007)
Child dies of head injury.
Henderson says she dropped child.
Medical Examiner testified that it was impossible for child’s brain injuries to have occurred in the way Henderson stated.
Medical Examiner says child’s injuries resulted from a blow intentionally struck by Henderson.

20. EX PARTE HENDERSON
Henderson submits evidence that recent advances in biomechanics suggest that it is possible that child’s head injuries could have been caused by an accidental short-distance fall. Additionally, Medical Examiner submitted an affidavit which recanted his testimony.
Court majority held that Medical Examiner’s re-evaluation of his opinion is a material exculpatory fact and ordered the trial court to further develop the evidence.

21. EX PARTE HENDERSON, 384 S.W.3d 833 (Tex. Crim. App. 2012)
Court finds new scientific evidence shows that a short distance fall could have caused the head injury.
Court finds new scientific evidence did not establish that Henderson was actually innocent but that it did establish a due process violation.

22. THEORY OF SHAKEN BABY SYNDROME
Theory is that the following factors prove a child was shaken:
The triad:
Subdural hematoma
Retinal hemorrhages
Brain swelling
Absence of any other explanation or an explanation deemed inconsistent with the injuries.

23. THE CHANGING SCIENCE
Scientific advances have disproven the claim that nothing can cause the triad except shaking
Biomechanical research has disproven the hypothesis that shaking alone can cause serious brain injury and death with SDH and RH
Scientific advances have undermined the hypothesis the last person with the child must have been the abuser - the injuries cannot be timed
Scientific advances have disproven the claim that the injuries had to have been caused by force equal to a multi-story fall or car crash

24. FLAWED CONVICTIONS “Shaken Baby Syndrome” and the Inertia of Injustice
By Deborah Tuerkheimer
“The ‘triad’ is a myth,” declared a leading child abuse specialist and advisory board member of the National Center on Shaken Baby Syndrome in “No trained pediatrician thinks that subdural hemorrhage, retinal hemorrhage and encephalopathy [brain damage] equals abuse.”
We can trace the undoing of classical SBS to the rise of evidence-based medicine, a movement that urged doctors to “critically appraise” the information relief upon for diagnosis, in order to ensure its “validity (closeness to truth).” With this shift in the late 1990s toward “enlightened skepticism,” accepted medical dogma became subject to new scrutiny. By a reasonably objective measure of the quality of evidentiary support for the diagnosis, one that ranked the evidence by accepted levels of scientific rigor, SBS did not fare well.

25. COURTS HAVE FOUND THAT NEW SCIENCE UNDERMINES THE SCIENTIFIC BASIS FOR SBS
Ex Parte Henderson, 384 S.W.3d 833 (Tex. Crim. App. 2012) (capital murder case reversed based on finding that serious child head injuries can be caused by short distance falls)
Wisconsin v. Edmunds, 746 N.W. 2d 590 (Wis. 2008) (conviction vacated based on advances in medical science concerning shaken baby syndrome)
Del Prete v. Thompson, 10 F.Supp. 3d 907 (N.D. Ill. 2014) (setting aside conviction based on new evidence concerning the medical approach to evaluating abusive head trauma in claimed shaken baby syndrome cases; states “a claim of shaken baby syndrome is more an article of faith than a proposition of science.”)

26. EX PARTE SPENCER, 337 S.W.3d 869 (Tex. Crim. App. 2011)
“We will consider advances in science and technology when determining whether evidence is newly discovered or newly available, but only if the evidence being tested is the same as it was at the time of the offense. Thus, the science or the method of testing can be new, but the evidence must be able to be tested in the same state as it was at the time of the offense.”

27. EXPERT TESTIMONY ON RELIABILITY OF EYEWITNESS IDENTIFICATION PROCEDURES Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011)
The court held that psychology is a legitimate field of study and the reliability of eyewitness identification is a legitimate subject within the area of psychology

28. TILLMAN V. STATE
“Nationwide, 190 of the first 250 DNA exonerations involved eyewitnesses who were wrong. BRANDON L. GARRETT, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011). In Texas, reports indicate 80 percent of the first 40 DNA exonerations involved an eyewitness identification error. Innocence Project of Texas, Texas Exonerations – At a Glance (2011), Court of Criminal Appeals’ Opinion

29. ART. 38.20. PHOTOGRAPH AND LIVE LINEUP IDENTIFICATION PROCEDURES
Each law enforcement agency shall adopt, implement, and as necessary amend a detailed written policy regarding the administration of photograph and live lineup identification procedures in accordance with this article.

30. ART
Eyewitness Identification Policy Must: 1. be based on: (A) credible field, academic, laboratory research on eyewitness memory; (B) relevant policies, guidelines, and best practices designed to reduce erroneous eyewitness identifications and to enhance the reliability and objectivity of eyewitness identifications; and (C) other relevant information as appropriate;

31. ART
Eyewitness Identification Policy Must Include: (A) Procedures for selecting photograph and live lineup filler photographs or participants to ensure that the photographs or participants: (i) are consistent in appearance with the description of the alleged perpetrator; and (ii) do not make the suspect noticeably stand out;

32. ART
(B) instructions given to a witness before conducting a photograph or live lineup identification procedure that must include a statement that the person who committed the offense may or not not be present in the procedure; (C) procedures for documenting and preserving the results of a photograph or live lineup identification procedure, including the documentation of witness statements, regardless of the outcome of the procedure;

33. ART
(E) For a live lineup identification procedure, if practicable, procedures for assigning an administrator who is unaware of which member of the live lineup is the suspect in the case or alternative procedures designed to prevent opportunities to influence the witness; (F) For a photograph identification procedure, procedures for assigning an administrator who is capable of administering a photograph array in a blind manner or in a manner consistent with other proven or supported best practices designed to prevent opportunities to influence the witness;

34. DOG SCENT DISCRIMINATION
Winfrey v. State, 323 S.W.3d 875 (2010) “. . . scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction.” “. . .dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence.”

35. FALSE TESTIMONY ON TESTING REGARDING SEXUAL ATTRACTION TO CHILDREN
In the Matter of M.P.A., 364 S.W.3d 277 (Tex. 2012) 65% accuracy rate on Abel Assessment not sufficient reliability for admission in evidence.

36. POLYGRAPH EVIDENCE
Leonard v. State, ___ S.W.3d ____, 2012 WL (Tex. Crim. App. 2012),
rehearing granted
Court held that the fact that the defendant failed polygraphs was admissible in probation revocation hearing.
Dissent argued: “We should not permit or condone ‘trial by polygraph’ or ‘revocation by polygraph’”

37. LEONARD V. STATE, 385 S.W.3d 570 (Tex. Crim. App. 2012), on rehearing
Evidence of failed polygraphs found inadmissible.
Polygraph exams were not reliable and were not the sort of inadmissible evidence “reasonably relied upon” by experts.

38. EX PARTE SONIA CACY, 2016 WL 6525721 (Tex. Crim. App. 2016)
Cacy convicted of an arson murder based on false lab report that claimed there was gasoline on her uncle’s clothing.
Trial court finds Cacy is actually innocent.
Court of Criminal Appeals Agrees.

40. SAN ANTONIO FOUR Kristie Mayhugh Elizabeth Ramirez Cassandra Rivera
Anna Vasquez
Ex parte Mayhugh,
512 S.W.3d 285
(Tex. Crim. App. 2016)
Found actually innocent by Court of Criminal Appeals on November 23, 2016

41. SAN ANTONIO FOUR
Two young girls testified that the four women sexually assaulted them
One of the girls, now an adult, recants accusations
Recantation supported by expert testimony on validity of recantation and that the women were not sex offenders
State’s medical evidence, that one of the girls had physical signs of abuse, is recanted by doctor based on new science

43. DNA
Art Code Crim. Proc.
(a) A convicting court may order forensic DNA testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition making DNA testing possible; and
(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect;

44. DNA
(B) there is a reasonable likelihood that the evidence contains biological material suitable for DNA testing; and (C) identity was or is an issue in the case; and

45. DNA
(2) the convicted person establishes by a preponderance of the evidence that:
(A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

46. SWEARINGEN V. STATE, 303 S.W.3d 728 (Tex. Crim. App. 2010)
“. . . no expert testimony or scientific data was presented to support the conclusion that DNA would necessarily be deposited through grasping with strong force. The trial court concluded there had been no showing that evidentiary items submitted for testing contained biological material The record is void of any concrete evidence that biological material existed on the evidence sought to be tested.”

47. DALLAS COUNTY DNA EXONERATIONS AS OF MARCH 29, 2018
Charles Chatman Cornelius Dupree Jerry Lee Evans Wiley Fountain Larry Fuller James Curtis Giles Donald Wayne Good Andrew Gossett Eugene Henton Raymond Jackson EK Johnnie Lindsey Thomas McGowan Steven Phillips
Johnny Pinchback
David Shawn Pope
Billy James Smith
Keith E. Turner
James Waller
Patrick Waller
Gregory Wallis
James Curtis Williams
James Lee Woodward
Billy Wayne Miller
Anthony Massingill
Michael Phillips
Ricky Wyatt

48. DNA AND FALSE IDENTIFICATION
EX PARTE PATRICK WALLER,
2008 WL (Tex. Crim. App. 2008)
Two men and two women kidnapped and taken to abandoned house where the women are sexually assaulted and men pistol whipped.
Three of the four victims identified Waller as assailant.
Fourth victim unable to make identification.
Waller cleared by DNA.
True assailant identified by DNA and confessed.

49. DNA AND FALSE IDENTIFICATION
Ex Parte Johnny Edward Pinchback,
2011 WL (Tex. Crim. App. 2011)
Two teenage girls sexually assaulted.
Girls later saw a man in apartment complex parking lot they thought was the assailant.
They picked Pinchback’s picture from photo lineup.
Pinchback convicted and received 99 years in prison.
DNA proved that Pinchback was innocent.

51. EX PARTE KUSSMAUL, 548 S.W.3d 606 (Tex. Crim. App. 2018)
Relief granted under to four defendants, three who pled guilty to sexual assault, and one who was convicted of capital murder
Y-STR DNA testing results were exculpatory to all four defendants and constitute new scientific evidence

52. EX PARTE KUSSMAUL
A showing by a mere preponderance of the evidence that an applicant would not have been convicted if exculpatory DNA results are obtained is not sufficient to warrant relief on the basis of actual innocence, but statute governing procedure on new scientific evidence (Art ) affords an avenue for relief under the preponderance standard.

53. FBI ADMITS FLAWS IN HAIR ANALYSIS OVER DECADES
“The Justice Department and FBI have acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.” Washington Post April 18, 2015

54. BITE MARK EVIDENCE
From the Texas Tribute, February 12, 2016: “The Texas Forensic Science Commission on Friday recommended that prosecutors temporarily stop using bite-mark evidence in criminal cases until questions are answered about its scientific validity.”

55. STEVEN MARK CHANEY
Steven Mark Chaney exonerated over bite mark science faults, by Jennifer Emily, October 12, 2015, Dallas Morning News
Steven Mark Chaney is a free man after spending 25 years behind bars after the faulty science of bite marks sent him to prison for murder.
Dentist Jim Hales told a Dallas County jury that there was a “1 to a million” chance that someone other than Chaney made the bite marks on John Sweek’s body. Now, Hales says the science used to convict Chaney has been discredited.

56. BLOOD SPATTER EVIDENCE

57. JOE BRYAN

58. FORENSIC VIDEO ANALYSIS

59. DNA MIXTURE INTERPRETATION
A problem has been identified in DNA mixture interpretation. The cases involved complex DNA mixtures, usually with difficult evidentiary samples such as gun swabs, steering wheel swabs, items of clothing, or other examples of “touch DNA” where multiple people may have contributed DNA to the sample.