Litigating Flawed Forensic Science at Every Stage of the Case.

NACDL

• 4th Annual Post-Conviction Conference• “Evolving Science and Faulty Forensics: Legal

Theories for Advancing Innocence Claims”• Charlotte, N.C. April 18, 2013

BIBLIOGRAPHY

• National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 86 (2009)

• 8 STANFORD J. C.R. & C.L. ___ (forthcoming) ‘SHIFTED SCIENCE’ AND POST-CONVICTION RELIEF BY: CAITLIN PLUMMER & IMRAN SYED

Bibliography continued

• SHAKEN BABY SYNDROME, ABUSIVE HEAD TRAUMA, AND ACTUAL INNOCENCE: GETTING IT RIGHT Keith A. Findley, Patrick D. Barnes, David A. Moran, and Waney Squier* 12 Hous. J. Health L. & Policy 209 (2012)

• A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome: Narang, Melville, Greeley, Anderst, Carpenter and Spivac. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2288126

Bibliography continued

Bibliography Continued

• JUDICIAL GATEKEEPING OF SUSPECT EVIDENCE: DUE PROCESS AND EVIDENTIARY RULES IN THE AGE OF INNOCENCE

• Keith A. Findley*

• GEORGIA LAW REVIEW Vol. 47:723 • April, 2013

RESOURCES

• National Clearinghouse for Science, Technology and the Law http://www.ncstl.org

NCSTL provides a forensic research database; newsletter, resource pages, bibliographies.

• National Institute of Justice: “Legal Guide for the Forensic Expert.” http://nij.gov/training/courses/law-101.htm

• http://www.daubertcounsel.com

RESOURCE LIST:

• Law 101: Legal Guide for the Forensic Expert• http://www.ncstl.org/education/Law%20101• • Digging up Dirt on Experts• http://www.ncstl.org/education/Digging%20Up%2

0Dirt%20for%20Experts• • Forensic Resources on the Web• http://www.ncstl.org/education/Finding%20Forens

ic%20%3CBR%3EResources%20on%20the%20Web•

Problem for Juries and Defendants

• Lay jurors tend to give considerable weight to “scientific” evidence when presented by “experts” with impressive credentials. We have acknowledged the existence of a misleading aura of certainty which often envelops a new scientific process, obscuring its currently experimental nature... Scientific proof may in some instances assume a posture of mystic infallibility in the eyes of a jury…” People v. Kelly, 549 P.2d 1240 (CAL 1976)

FRYE v. DAUBERT

• FRYE: “General acceptance in relevant scientific community”

• DAUBERT: (1) The testimony is based upon sufficient facts or data;(2) The testimony is the product of reliable principles and methods; and(3) The witness has applied the principles and methods reliably to the facts of the case.

What does DAUBERT require?• (1) “[A] key question to be answered in determining whether a theory or technique is

scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested.” Daubert at 593.

• (2) “[W]hether the theory or technique has been subjected to peer review and publication.... submission to the scrutiny of the scientific community is a

• component of ‘good science,’ in part because it increases the likelihood that substantive flaws in methodology will be detected.” Id.

• (3) “[T]he court ordinarily should consider the known or potential rate of error... and the existence and maintenance of standards controlling the technique’s operation....” Id. at 594.

• (4) “Finally, general acceptance can yet have a bearing on the inquiry. A reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that community.... Widespread acceptance can be an important factor in ruling particular evidence admissible, and a known technique which has been able to attract only minimal support within the community, may properly be viewed with skepticism.”

DAUBERT APPLIED

• In Kumho Tire v. Carmichael the Court explained the proper application of the rule in Daubert. First the Court held that application of the rule in Daubert is not limited only to cases where an expert “relies on the application of scientific principles”. The rule also has application where an expert relies “on skill- or experience-based observation.”

For the TRIAL Lawyer

• OBJECT if an opposing party seeks to introduce ANY evidence which is testable under Frye (formerly) or Daubert (now), or seeks to offer ANY expert opinion, including “pure” opinion, on ANY subject. Cite Ch. 2013-107 as the basis for the objection, and request a Daubert hearing.

• Likewise if you intend to offer ANY opinion by an expert on ANY subject, move before trial to admit the opinion testimony, call the expert as a witness at the motion hearing, and PROFFER THE EVIDENCE at the motion hearing

• Look to Civil Cases for authority

Science v. Forensic Science

• “Science” = “Can we disprove this hypothesis?” Data Driven; Verifiable

• “Forensic Science” = “Can we answer a particular question?” Results Driven, “experiential”

NAS REPORT (2009)

• WHAT MAKES GOOD SCIENCE?• --SCIENTIFIC METHOD• --RELIABLE –consistent, repeatable results• --ERROR RATE—”measuring uncertainty”• --VALIDATION- independently verified?• CONCLUSION: Other than DNA, nearly all

forensic individualization sciences fail to possess the most basic attributes of science.

DISCOVERY ISSUES

• use NAS as blueprint• Ask for SOPs (testing and quality control)

validation studies.• Ask for any scientific literature the expert bases

opinion upon.• Any communications between analysts and

police.• Any information on proficiency testing.• Specific questions about procedures.

Use Daubert to Litigate Ake Claims

• Daubert requires gatekeeping by trial court, therefore an adversarial process.

• Special responsibilities of counsel in a capital case.

• Avoid “breakdown of the adversarial process.”

LITIGATION STRATEGIES

• Motions in limine to limit the language of the expert. Semantics matter.

• Cross Examine on failure to follow scientific method.

• Defense case: -call expert on the scientific method -Establish NAS Report as a learned treatise Jury Instructions: “In assessing scientific testimony, you should consider …

Systemic Forensic Science Problems

• Institutional bias—discipline wants to protect its members

• Observer Bias, contextual bias, confirmation bias• Mistaken interpretation• Overstatement of interpretation (Exaggeration)• Ineffective Assistance of Counsel • Scientific knowledge changed rendering

previous opinions false.

Specific Problem Areas of Forensic Science

• Arson-”The extreme susceptibility of the field of arson science to wrongful convictions”

• Bitemark Evidence: “the poster child of unreliable forensic science." The NAS found that the discipline is almost completely incompatible with the most fundamental principles of science.

• Hair: A FBI review of more than 21,000 cases has revealed 27 death penalty cases in which the FBI's forensic experts may have exaggerated the scientific conclusions that could be drawn from their testimony, mistakenly linking defendants to crimes they may not have committed.

• “Shaken Baby Syndrome”-thousands of people were convicted or pled guilty in the face of allegedly irrefutable “science” during the dark ages of shaken baby science.

DNA-The Next Generation of Wrongful Convictions?

• What Will They Look Like? • Complex mixtures • Degraded samples (Partial Profile • DNA Database Hits) • Touch DNA (Low Copy Number (Template) DNA) • CODIS: There is no general acceptance by the

relevant scientific community as to an appropriate methodology for assessing the statistical significance of a cold hit DNA match.

What if “Science” Changes?

• What if Science is false or discredited?• What if science now considered inconclusive?• What if new scientific evidence appears to

exonerate the Defendant?

Is New Science “Newly Discovered Evidence?”

• Jones v. State, 591 So. 2d 911, 915 (Fla. 1991). • “Thus, we hold that henceforth, in order to

provide relief, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. The same standard would be applicable if the issue were whether a life or a death sentence should have been imposed. We note that this is the standard currently employed by the federal courts.”

CASE LAW VICTORIES• State v. Edmunds, 308 Wis. 2d 374 (Wis. App. 2008). “There is a

reasonable probability that a jury, looking at both the new medical testimony and the old medical testimony, would have a reasonable doubt as to Edmunds's guilt.” [vacating conviction based on the shift in mainstream medical opinion concerning “shaken baby syndrome,” even though “the new evidence does not completely dispel the old evidence”

• Han Tak Lee v. Glunt, 10-4133, 2012 WL 247993 (3d Cir. Jan. 27, 2012) (in due process challenge to arson conviction, appellate court remanded for an evidentiary hearing in the federal trial court stating that even though the state courts denied relief, habeas relief may be warranted if petitioner can show that “new developments in fire science [prove] that the fire expert testimony at [his] trial was fundamentally unreliable.”)

Another Victory

• Court of Criminal Appeals of Texas. Ex Parte Cathy Lynn HENDERSON. 384 S.W.3d 833 (Dec. 5, 2012) Habeas relief would be granted babysitter convicted of capital murder of child, and case remanded for a new trial, where medical examiner, who testified at trial that babysitter's position that child's death resulted from an accidental fall was false and impossible, testified at evidentiary hearing in habeas corpus proceeding that there was no way to determine with a reasonable degree of medical certainty whether victim's injuries resulted from an intentional act of abuse or an accidental fall.

Bad Case-law Losses

• Robbins v. State, 360 S.W.3d 446 (Texas 2011) Medical examiner reevaluates trial testimony and changes opinion but this did not “unequivocally establish the defendant’s innocence.” Since the testimony was not “false,” defendant did not have a due process right to have a jury hear the new testimony.

What are the best claims to raise in post-conviction?

• Daubert Challenge—Can we reevaluate the admissibility of the forensic science evidence?

• Sufficiency of the Evidence-if there was sufficient evidence to convict at trial, does shifted science change that?

• Ineffective Assistance of Counsel-how could counsel be ineffective for not anticipating future scientific developments?

Claims in Post-Conviction (continued)

• Brady violation? Does Brady extend to Post-conviction? No says District Attorney’s Office v. Osborne. 129 S. Ct. 2308, 2320 (2009)

• Prosecutorial Misconduct? Prosecutorial misconduct can come in several forms with regard to scientific testimony: The first is intentional presentation of knowingly false testimony. Misconduct might also occur if a prosecutor fails to correct testimony she knows is false or on the failure to correct an overstatement of an expert. Some courts have found misconduct existed where the prosecution made no effort to investigate evidence where there was great reason to believe it was false

Additional Claims

• NEWLY DISCOVERED EVIDENCE CLAIM--Argument: Shifted Science = Newly discovered evidence.

• Due Process claim: Han Tak Lee – if fire evidence fundamentally unreliable then the defendant is entitled to federal habeas relief.

• 13th Amendment claim: People may not be enslaved or held in involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.

New Litigation Strategies

• Look at Civil cases on expert witnesses: Patterson v. Tibbs, 60 So. 3d 742 (Miss. 2011)Denham v. Holmes ex rel. Holmes, 60 So. 3d 773 (Miss. 2011) Sherwin Williams Co. v. Gaines, 75 So.3d 41 (Miss. 2011) Dedeaux Util. Co., Inc. v. Gulfport, 63 So. 3d 514 (Miss. 2011) In each of these cases it was held that the expert testimony was wrongly admitted.

CAUTION

• Unlike the extremely well-litigated civil challenges, the criminal defendant’s challenge is usually perfunctory.

• “Regardless of the Daubert standard, without zealous investigation and cross-examination of the proffered expert evidence, many improper and even fraudulent uses of scientific data are not exposed. “

• In not one of the half-dozen most sensational forensic-science scandals of the last 20 years, involving serial fraud and gross misconduct, were the transgressions of ‘experts’ revealed by defense counsel at trial.”

Will Texas Lead the Way?

• “In the last legislative session, in the wake of dozens of exonerations in recent years based on advances in forensic science, Texas lawmakers approved Senate Bill 344. The first law of its kind in the nation, it allows courts to grant defendants new trials in cases in which forensic science has evolved.”

New York Times September 10, 2013

Texas Inmate Facing Execution Is First to Ask for Review Under New Law

Attorneys for Rigoberto Avila have requested an evidentiary hearing under a new law passed in Texas that allows defendants to challenge their convictions if they were gained through outdated forensic techniques. His case will be the first death penalty case in the state to be considered by the courts under this new legislation. Avila, a Navy veteran, was convicted of murder in El Paso in 2001 for the tragic death of a 19-month-old infant. He is scheduled to be executed on January 15, 2014. He has consistently maintained his innocence and wants to introduce a biomechanical analysis of the cause of death and the testimony of a forensic pathologist, tending to show that the infant's death was an accident. “Finality and certainty is important," said Cathryn Crawford, one of Mr. Avila’s lawyers, "but we have to also have a criminal justice system that is flexible enough to take into account when we have scientific advancements and to allow people like Mr. Avila to have their day in court.”