NAS Report on Forensic Science Jane Campbell Moriarty Professor of Law University of Akron School of

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NAS Report on Forensic ScienceJane Campbell
MoriartyProfessor of LawUniversity of Akron
School of LawVisiting ProfessorCase Western
Reserve University School of LawMarch 19, 2009

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Daubert v. Merrell Dow Pharms., Inc. (S.Ct. 1993)

• A reliability-based standard, applied to all
  scientific evidence. A multi-factor test
• (1) whether the theory or technique can be or has
  been tested (2) subjected to peer review and
  publication (3) the potential or known rate of
  error of the theory or technique when applied
  (4) the existence and maintenance of standards
  controlling the techniques operation and
  (5) general acceptance in the relevant scientific
  community
• observations by the Supreme Court
• Flexible test
• Focus on methodology used, not conclusions
  generated
• Applies to all scientific evidence, not just
  novel evidence
• Trial court is the gatekeeper to assure that
  expert testimony possesses trustworthiness or
  evidentiary reliability

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Joiner v. General Electric (S.Ct. 1997)

• Abuse of discretion is the standard for reviewing
  decisions concerning admission/exclusion of
  expert evidence
• Conclusions and methodology not entirely
  distinct. Nothing requires a district court to
  admit opinion evidence connected to the existing
  data by the ipse dixit of the expert. There may
  simply be too great an analytic gap between the
  data and the opinion proffered to admit the
  testimony.

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Abuse of Discretion Standard

• Described by one court as follows appellants
  who challenge rulings under this standard are
  like rich men who wish to enter the Kingdom
  their prospects compare to those of camels who
  wish to pass through the eye of the needle. US
  v. Coleman, 179 F.3d 1056, 1061 (7th Cir. 1999).

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Kumho Tire v. Carmichael (S. Ct. 1999)

• Kumho Tire v. Carmichael (US S.Ct. 1999)(applying
  the reliability based standard to all expert
  testimony, not just traditional scientific
  evidence)
• Up to the trial court whether and how to apply
  Dauberts factors
• seeks to make certain that an expert, whether
  basing testimony upon professional studies or
  personal experience, employs in the courtroom the
  same level of intellectual rigor that
  characterizes the practice of an expert in the
  relevant field.

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Kumho Tires implications, cont.

• An important limitation
• While a trial judge must have considerable
  leeway in deciding whether particular testimony
  is reliable, . . . a trial court should consider
  the specific factors identified in Daubert where
  they are reasonable measures of reliability of
  expert testimony.
• What should this mean to forensic science?

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Variability of Admissibility standards,
post-Daubert

• Some states use a general acceptance standard
• Federal Courts and many states use a reliability
  standard (but there is still focus on Frye)
• Some states using general acceptance have woven a
  reliability requirement into their test (e.g.,
  theory generally accepted as reliable in relevant
  field (Kansas))
• Great variability in how Frye is applied (AZ only
  applies it to novel scientific evidence FLA
  grandfathers in long-standing science Minn.
  excludes Frye in behavioral sciencejust the
  helpfulness test) and
• Many courts use the generally accepted by other
  courts test.

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Kansasthe outer limit

• Kansas limits Fryes application, by exempting
  pure opinion testimony, which the KS SCT
  defined as an expert opinion developed from
  inductive reasoning based on the experts own
  experience, observations or research. State v.
  Patton (2005).

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Post-Daubert Challenges

• Fingerprints
• Hair
• Handwriting
• Photographic comparison
• Toolmarks
• Bitemarks

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Fingerprints

• US v. Haarvard (7th Cir. 2001
• US v. Llera Plaza (ED Pa. 2002)
• US v. Crisp (4th Cir. 2003)
• Commonwealth v. Patterson

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US v. Havvard

• The methods of latent print identification can
  and have been tested. They have been tested for
  roughly 100 years. They have been tested in
  adversarial proceedings with the highest possible
  stakes-liberty and sometimes life. US District
  Court, affd on appeal (7th Cir. 2001).

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US v. Llera Plaza, First Opinion, January 7th
2002

• The governments fingerprint comparison methods
  do not meet Daubert 's testing, peer review, and
  standards criteria, and information as to its.
  . . rate of error is in limbo.
• Excluding the testimony would put at naught a
  century of judicial acquiescence in fingerprint
  identification processes-and would be
  unwarrantably heavy-handed.
• Governments witnesses may (1) describe how
  fingerprints were obtained, (2) magnify
  fingerprints to show to jury (3) point out
  observed similarities (and differences) between
  prints
• Expert witnesses may not testify as to their
  opinion. . . that a particular latent print is
  in fact the print of a particular person.
  

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After Llera Plaza I vacated, new opinion

• In short, I have changed my mind.
• Court allows government witnesses to testify as
  to the conclusion about fingerprint matches.
• Relying in part on Scotland Yard witness
  testimony in the rehearing, the court said If it
  is sufficiently reliable for an English court,
  it should satisfy FRE 702.

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Commonwealth v. Patterson (Mass. 2005)

• No single fingerprint could be matched, but
  latent print examiners matched four impressions
  based upon cumulative similarities. Examiner
  claimed all four finger impressions were made at
  the same time by the same hand.
• SJC upheld the exclusion of such testimony, but
  also held that the theory and methodology of
  matching a single fingerprint to be generally
  accepted and sufficiently reliable to be
  admitted.
• Noted that the trial court ACE-V defies easy
  testing because it does not require a minimum
  number of similarities, but rather operates on a
  subjective sliding scale.

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Handwriting Comparison

• United States v. Mooney (1st Cir. 2002)
• United States v. Prime (W.D.Wash. 2002), vacated
  and remanded on other grounds, subsequently
  affirmed on this issue, (9th Cir. 2005).
• United States v. Crisp (4th Cir. 2003)
• Several US District Court cases allow experts to
  compare points of similarity disallow
  conclusions about a match

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US v. Mooney (1st Cir. 2002)

• Finding the Daubert factors relevant to his
  evaluation of the reliability of the expert's
  testimony, the judge noted that all the factors
  were met in this case. The judge also found
  persuasive the historical acceptance of
  handwriting testimony. . . .
• Court of Appeals found no abuse of discretion.

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United States v. Prime

• US Dist.Ct
• Where a technique has been repeatedly applied
  and tested by law enforcement and courts for over
  a century, the court does not believe the absence
  of scientific data, without more, should sound
  the death knell for such testimony.

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US v. Prime (Ct. App.)

• Professor Srihari of SUNY Buffalo testified that
  handwriting is individualistic. Court found
  her training credentials in the Secret Service as
  well as her certification by the American Board
  of Forensic Document Examiners impeccable.
• Error rate of approximately 13 not problematic.
  Focus on methodology not conclusions. As long
  as the process is generally reliable, any
  potential error is for cross exam and competing
  testimony.
• The Court reasonably concluded that any lack of
  standardization is not in and of itself a bar to
  admissibility in court.
• General acceptance Used extensively by the FBI,
  CIA and Postal Service. Also met the generally
  accepted by other courts standard.

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US v. Crisp (4th Cir. 2003)(fingerprints and
handwriting)

• The principles underlying fingerprint
  identification . . .bear the imprimatur of a
  strong general acceptance, not only in the expert
  community, but in the courts as well. . . . Put
  simply, . . . no reason . . . to believe that
  this general acceptance of the principles
  underlying fingerprint identification has, for
  decades, been misplaced. Accordingly, the
  district court was well within its discretion in
  accepting at face value the consensus of the
  expert and judicial communities that the
  fingerprint identification technique is reliable.
  
• Dissent The government did not establish . . .
  that this evidence is reliable. It. . . has had
  ten years to comply with Daubert. It should not
  be given a pass in this case.

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Photographic Comparison to declare a Match

• US v. McKreith (11th Cir. 2005)
• Court held no error in allowing forensic analyst
  to compare a shirt owned by defendant with a
  shirt worn in a surveillance photograph,
  upholding testimony that shirt matched the class
  characteristics of the shirt, that the black bag
  was indistinguishable and that there were
  similarities in the shape of nose, mouth and
  chin of defendant to the picture in the photo.

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Toolmarks

• US v. Green (D. Mass 2005)
• US v. Glynn (S.D. NY 2008)

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US v. Green (D.Mass. 2005)

• Trial court found a wealth of shortcomings in the
  testimony of the toolmark examiner (matching
  marks on bullets found at scene with test-fired
  bullets from defendants weapon)
• Examiner not certified by any professional
  organization
• Not proficiency tested
• Training consisted of observing his mentor and
  applying best practices
• Could not cite any error rates for him, his lab,
  or indeed, the profession
• No proof that markings are unique to each weapon
• Shell casings in question did not match exactly
• Great deal of subjective judgment in declaring a
  match
• No statistical probabilities concerning the
  likelihood of a coincidental match (unlike DNA
  profiling)

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US v. Green

• Trial court allowed governments expert to
  testify about the points of comparison, but would
  not allow him to testify that the bullets matched
  to the exclusion of every firearm in the world.
• Admitting such evidence because of its
  longstanding history of courtroom use runs the
  risk of grandfathering in irrationality,
  arguably ignoring the mandate of the Supreme
  Court.

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US v. Green

• I reluctantly come to the above conclusion
  because of my confidence that any other decision
  will be rejected by appellate courts, in light of
  precedents across the country, regardless of the
  findings I have made. . . . When liberty hangs
  in the balance-and, in the case of the defendants
  facing the death penalty, life itself-the
  standards should be higher than were met in this
  case, and than have been imposed across the
  country. The more courts admit this type of
  toolmark evidence without requiring
  documentation, proficiency testing, or evidence
  of reliability, the more sloppy practices will
  endure we should require more

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US v. Glynn

• Court disallows expert from testifying that a
  bullet and shell casing came from defendants
  firearm to a reasonable degree of ballistics
  certainty.
• However, did allow him to testify that it was
  more likely than not from defendants firearm,
  citing FRE 401.