October 5 th 2018 Faculty of Federal Advocates Denver CO Presented by J Christopher McKee Adjunct Professor of Law and Director of Experiential Learning University of Colorado School of Law ID: 1009646
Download Presentation The PPT/PDF document "Checking the Compass: How Courts Handle ..." is the property of its rightful owner. Permission is granted to download and print the materials on this web site for personal, non-commercial use only, and to display it on your personal computer provided you do not modify the materials and that you retain all copyright notices contained in the materials. By downloading content from our website, you accept the terms of this agreement.
1. Checking the Compass: How Courts Handle Forensic Science and The Potential Impact of Forensic Science Reform October 5th, 2018 Faculty of Federal AdvocatesDenver, CO Presented by J. Christopher McKee Adjunct Professor of Law and Director of Experiential Learning, University of Colorado School of Law
2. Forensic Evidence used in criminal cases has never experienced greater legal and scientific scrutiny than it does today.Forensic bitemark identification: weak foundations, exaggerated claims, Saks et. al, Journal of Law and the Biosciences, 538 -575 (Nov. 2016)
3. National Academy of Sciences (NAS) and President’s Council of Advisors on Science and Technology (PCAST) ReportsForensic Science ReformLegal LandscapeWhy Should We Care?Presentation Outline
4. What is this entity?Who makes up committees?What do they do?National Academy of Sciences
5.
6. The NAS is a society of distinguished scholars tasked with advising the federal government on scientific and technical mattersCommittees include leading scientists and a diverse group of interested parties (judges and lawyers, academics, stakeholder organizations, etc.)Reports from the NAS are valuable because of their reputation for independent, objective and non-partisan adviceHear Testimony and Review DocumentsCollaborate with experts in the fieldNAS Committees
7. On the Theory and Practice of Voice Identification, National Academy of Sciences, National Academy of Sciences (1979)The Polygraph and Lie Detection, National Academy of Sciences (2003)Forensic Analysis: Weighing Bullet Lead Evidence, National Academy of Sciences (2004)Ballistic Imaging, National Academy of Sciences (2008)Strengthening Forensic Science in the United States: A Path Forward, National Academy of Sciences (2009)Identifying the Culprit: Assessing Eyewitness Identification, National Academy of Sciences (2014)NAS Reports
8. National Academy of Sciences Report (2009)
9. Forensic science disciplines are supported by “little rigorous systematic research to validate the discipline’s basic premises and techniques”Research is needed to address accuracy, reliability and validity of the disciplinesMeasures of uncertainty have not been quantifiedThere are no best practices; standardizationError rates have not been establishedAccreditation and certification are voluntaryGeneral Findings
10. “The forensic science system . . . has serious problems that can only be addressed by a national commitment to overhaul the current structure.” Strengthening Forensic Science in the United States: A Path Forward, National Academy of Sciences (2009)NAS Report Conclusion
11. DNA Wars in early 1990s – NRC I and NRC IIMelendez-Diaz v. Mass., 129 S.Ct. 2527 (2009)(Confrontation of lab analysis)U.S. v. Rose (D.MD 2009)(Fingerprints)U.S. v. Taylor (D.NM 2009)(Firearm Toolmarks)U.S. v. Zajac, (D.UT 2011)(Adhesive comparison)U.S.v. Lujan, (D.NM 2011)(Fiber analysis)U.S. v. McCluskey (D.NM 2013)(Fingerprints)U.S. v. Williams (DC COA 2016)(Firearm Toolmarks)Court Treatment of NAS Reports
12. What is this entity?Who made up council?What did they do in report?President’s Council of Advisors on Science and Technology (PCAST)
13. The PCAST Committee was assembled by the Executive Office of the President to advise the federal government on scientific and technical mattersCommittee included leading scientists and engineers Report intended to influence policy decisions across the Executive Branch, offering independent, objective and technical adviceHeard Testimony and Reviewed DocumentsCollaborated with experts in the fieldResponded with an Addendum in 2017 to criticisms of the reportPCAST Committee
14.
15. Addressed question of when expert testimony based on a forensic feature comparison method should be deemed admissible in criminal courtsFeature-comparison methods in several forensic disciplines reviewed for validity and reliabilityError rates and individualization claims vary in validity across disciplinesMore training is needed in the fieldMore empirically valid studies are neededForensic science is at a crossroadsGeneral Findings
16. Foundational validity for Latent Fingerprint claims based on empirical studiesNo foundational validity for Firearm Toolmark claims of individualization based on limited empirical studiesNo foundational validity for Bitemark, Footwear and Microscopic Hair Comparison claims due to no empirical studies to support claimsEmpirical studies exist within a limited range in support of claims of DNA analysis of complex mixturesPCAST Report Conclusions
17. 10th Circuit only one reference to Defense proffer of PCAST Report in challenge of compelled DNA sample (D. NM) (2018)U.S. v. Gregory Chester et al, (N.D. Ill 2017)(firearm toolmark)U.S. v. Bonds, (N.D. Ill 2017)(Friction ridge)U.S. v. Pitts, (E.D. NY 2018) (Friction ridge)U.S. v. Lundi (E.D. NY 2018) (Friction ridge)Court Treatment of PCAST Report
18. National Forensic Science CommissionOSAC CommitteesDiscipline stakeholder organizationsCrime LaboratoriesState Forensic Science Commissions (Virginia and Texas)Scientific and Academic EngagementForensic Science Reform
19. Reversing the Legacy of Junk Science in the Courtroom, Kelly Servick, Staff WriterUpdate on developments seven years after the publication of the 2009 NAS ReportForensic Science is “grinding” towards reformScience Magazine, March 7, 2016
20. NIST and DOJ have expert working groups (OSAC) gathering and endorsing standards for collecting and evaluating different kinds of evidence$20 million dollars to team of 30 statisticians and legal professionals to develop tools for analyzing the strength of an apparent matchCreation of Center for Statistics and Applications in Forensic Science (CSAFE)Goal is to develop statistical methods that describe how strongly similar patterns might be linked to a common sourceScience Magazine, March 7th, 2016
21. Discovery – Rule 16Admissibility Challenges – 702 and DaubertTrial Challenges – Admissibility of the Reports and ExpertsPost-Conviction ChallengesLegal Landscape - Practical Implications of Reports and Forensic Science Reform
22. The NAS Report on Forensic Science: What it Means for the Bench and Bar Speech, May 6, 2010“If courts blindly follow precedent that rests on unfounded scientific premises, this will lead to unjust results” “When scientific methodologies once considered sacrosanct are modified or discredited, the judicial system must accommodate the changed scientific landscape” Calls out Prosecutors for misrepresenting his own wordsabout the importance of the report.To suggest that Judges would not consider the report in assessing admissibility would be “absurd.”Hon. Harry Edwards, DC Circuit and co-chair of the NAS Committee
23. Why Should We Care?
24.
25.
26.
27.
28.
29. J. Christopher McKeeAdjunct Professor of Law and Director of Experiential Learning, Colorado University School of Law at Boulder, 2009-PresentCo-Founder of Forensic Defense Strategies, LLP based in Boulder, ColoradoFormer Special Counsel and Deputy Trial Chief at the Public Defender Service for the District of ColumbiaContact info:Forensic Defense Strategies, LLP1881 9th Street, Suite 315Boulder, CO 80302(w) 303-459-4489(c) 202-253-2572E-mail:chris.mckee@colorado.edu or jchristophermckee@gmail.comPresented by: