Christine Funk, JD, is a District of Columbia based writer and attorney. She has extensive experience in criminal law and procedure. She has written and presented on forensic science issues on 3 continents. Funk has been published by the National Clearinghouse for Science, Technology and Law; the Journal of the American Association for Justice; the Journal of Forensic Sciences; and Science. She has also authored chapters in three books; and a publication for the National Institute of Justice. She enjoys cooking, travel, and writing.
Jeffry Havard was convicted in 2002 of killing a child. At the time, the pathologist testified the child’s injuries were “consistent with a person violently shaking a child back and forth.” He further likened the injuries to those which might occur in a motor vehicle crash or a fall from a significant height. Mr. Havard’s conviction is currently being reviewed by a trial court, upon order of the Mississippi state Supreme Court. Mr. Havard obtained his review “because of shifting scientific beliefs on the syndrome.”
The original pathologist, Dr. Steven Hayne, has changed his position, acknowledging short falls can also cause serious
Subdural hematoma, once considered a hallmark of shaken baby syndrome, along with retinal bleeding and brain swelling, is no longer considered conclusive evidence of trauma.
injury. This new information is critical, as Mr. Havard has maintained he dropped the baby and she hit her head. While Dr. Hayne still believes the child was killed, Dr. Michael Baden, also a pathologist, pointed out a rather obvious and critical truth – where a child suffers what was once categorized as “shaken baby syndrome” but is now classified as “abusive head trauma,” it is quite simply impossible to determine if the injuries are from an accidental fall or an intentional push.
For decades, the triad of symptoms, blood collecting between the brain and the skull (subdural bleeding), bleeding in the back of the eye (retinal bleeding) and brain swelling were used to conclusively diagnose shaken baby syndrome. However, a series of studies in recent years have raised doubts about the syndrome. Dr. Hayne has acknowledged the medical community is now less certain shaking alone could generate enough force to cause such injuries.
Review of Prior Cases
While science and medicine generally advance and move forward, the law prefers finality. At least one state Supreme Court found this “significant dispute” within the medical community” rose to the level of newly discovered evidence and has granted a defendant post-conviction relief.
One might reasonably expect a nation-wide review of convictions is in order. Unfortunately, the criminal justice system doesn’t work that way. Instead, those convicted of murder and attempted murder based on these types of injuries are left to fend for themselves, relying on overburdened Innocence Projects to take up their cause.
While no one should be facing charges based on “shaken baby syndrome” in this day and age, not all medical examiners are up on the latest research. Further, some prosecutors may be unaware of advances in the field. Consequently, hiring an attorney experienced in abusive head trauma is critical to a good defense.
On Monday, August 7th, 2017, the Department of Justice Office of Public Affairs announced the appointment of Ted Hunt to the position “Senior Advisor on Forensics.”
Mr. Hunt is a long-time prosecutor with extensive experience handling forensic DNA evidence in criminal cases. Deputy Attorney General Rod J. Rosenstein announced this, along with the creation of a Forensic Science Working Group (FSWG) within the Department of Justice. In theory, this working group replaces the National Commission on Forensic Science, (NCFS) which ended in April of this year. Deputy Rosenstein stated the “first order of business will be to resume work on the Uniform Language for Testimony and Reports,” which provides standards regarding how forensic evidence is characterized in court. This work was previously being done by the NCFS.
Differences between NCFS and the FSWG
While the DOJ has created a new group working on the monumental task of determining the appropriate way of presenting forensic science evidence in court, there are stark differences between this group and its predecessor group. First, this group will be within the Department of Justice. The NCFS was a Federal Advisory Committee, developed as part of a partnership between the DOJ and the National Institute of Standards and Technology (NIST). NCFS meetings were broadcast live on the web, and their work product was a matter of public record. The FSWG, as an internal working group, is not held to the same standards. Rather, transparency is optional, according to DOJ spokesperson Lauren Ehrsam.
According to the archived NCFS page, the Commission “included federal, state and local forensic science service providers; research scientists and academics; law enforcement officials; prosecutors, defense attorneys and judges; and other stakeholders from across the country.” We do not yet know the make-up of the working group. Certainly, the group would benefit from similar variety in its members.
Concerns about the DOJ
During his announcement, at a meeting of the International Association of Identification in Atlanta, Deputy Rosenstein stated,
The Department of Justice has undertaken unprecedented efforts to examine and strengthen the reliability of forensic science and its use in the courtroom. We are committed to improving forensic science.
Improving forensic science, rather than simply insisting the status quo is perfectly acceptable, hasn’t always been the DOJ’s position. I can’t be the only person who recalls with dismay the response of the Department of Justice to the President’s Council of Advisors on Science and Technology (PCAST) recommendations of actions that should be taken to strengthen forensic science in September of last year (which the current White House has removed from their website). At the time, DOJ insisted status quo, rather than improvement, was the proper approach. The Washington Post reported at the time “the Justice Department had held a series of calls with prosecutors, law enforcement and lab officials, [assuring them] it . . . would provide ‘a packet of information to federal prosecutors regarding how to dispute this report in court.’”
Subsequently, the Justice Department commented on the PCAST report, stating, “The report took the position that unless a forensic discipline has been “scientifically validated”—in other words, unless a discipline has a known error rate—then judges should not allow the admission of expert testimony in that discipline.” This belief, that a “known error rate” is the equivalent of “scientifically valid” is at best naïve, and at worst, deliberately obtuse. Perhaps the lawyers at Justice, like most lawyers in the criminal justice system, do not have sufficient education in science to understand scientific validity. Happily, I believe Mr. Hunt has sufficient education and experience to know better.
Call me a Pollyanna (you wouldn’t be the first) but I am choosing at this moment to hope the Department of Justice is committed to transparency and accuracy in the presentation of forensic scientific evidence. Consider, for example, the Department actually took the step of hiring an outsider, rather than promoting one of their own, to fill the position of Senior Advisor on Forensics. Ted Hunt has extensive experience in forensic DNA evidence and the law. From where I sit, a generous estimate of the number of criminal lawyers in the United States with a comprehensive understanding of DNA evidence is, at best, in the hundreds. Narrow the field to prosecutors (as the Department of Justice tends to do) and you are lucky to find 50 that know how to pronounce the word “alleles,” let alone understand stochastic effects, allele stacking, and other intricacies relevant to the discipline and the presentation of evidence.
Rosenstein stated, “When subjected to informed cross examination, expert testimony can be tremendously probative and helpful to the jury.” I couldn’t agree more. I presume Deputy Rosenstein’s commitment to “informed cross examination” includes funding to educate the bar – both prosecution and defense, as to the abilities and limits of various forensic science disciplines. To which I say, “It’s about time.” Without the commitment of the federal government to provide resources to educate the bar, “informed cross examination” will continue to be merely a pie-in-the-sky ideal rather than a fundamental part of any competent representation.
Rosenstein also stated,
When the judicial system functions as intended, justice is advanced. Our adversarial system is based on the principle that the truth is most likely to emerge when opposing parties have the opportunity to cross-examine each other’s witnesses, and each party is able to call its own witnesses and introduce conflicting evidence.
Hooray! Finally, a Justice Department that supports the idea the defense should be able to call their own witnesses in pursuit of the truth. Of course, since most criminal defendants are poor, I can only assume this comment demonstrates the Department’s commitment to either providing funding or otherwise assisting the system in locating funding for defense experts in criminal cases. All too often, defendants are denied this opportunity to call their own witnesses due to lack of funding. I agree wholeheartedly with Deputy Rosenstein’s statement justice is advanced when the system functions as intended. This includes both lawyers educated in the finer points of forensic science and ready access to funding so the defense can consult with their own experts. In my experience, hiring a private forensic science consultant confirms the government’s conclusions as often as not. Whether the expert agrees or disagrees with the conclusions of the government lab, client representation is enhanced and justice is advanced when the defense consults their own expert.
Mr. Hunt has an exciting opportunity to be an agent of change, advancing the judicial system for both criminal defendants and victims of crime. No one wants the innocent convicted. No one wants the guilty to escape detection. Educating lawyers and providing experts will go a long way towards avoiding both.
 Mr. Hunt and I also serve together on the Legal Resource Committee (LRC) within the Organization of Scientific Area Committees (OSAC) for forensic science.
The Ninth Judicial Conference included several internationally known speakers on forensic science. The general message? Judges must be more vigilant, budget more time, and be more skeptical of forensic methods.
Commonly Held Beliefs about Forensic Science
Years of television entertainment such as CSI have led jurors to trust the infallibility of forensic science, said Jennifer Mnookin, dean of the UCLA School of Law. However, she cautioned judges, “Faulty forensic science is the second most frequently found contributing cause” to wrongful convictions, second only to eyewitness identification.
While fingerprints, bitemarks, and toolmarks are commonly admitted in criminal courts, due to their long-standing use, Mnookin specifically cautioned against the “We’ve always done it this way” line of argument for admitting forensic science evidence. “It must take scientific study to make a field scientifically reliable. . . Experience, no matter how extensive, could not be a substitute for scientific study.”
The PCAST Report, Revisited
In September of last year, the President’s Council of Advisors on Science and Technology (PCAST) released recommendations regarding actions the forensic science community should take to strengthen forensic science. (The full PCAST report can be found here. Commentary on the forensic science PCAST report here.)
Criminal defense attorney Jennifer Friedman reminded the judges the PCAST report was directed to the courts specifically. The report was intended “to discuss and explain the intersection of scientific validity and legal reliability.” Ms. Friedman noted the courts have the power to rein in forensic examiners during testimony. For example, forensic examiners shouldn’t be allowed to claim any of the following:
100 percent certainty in their conclusions;
A mistake free history as a practitioner; or
An error rate of zero for a given discipline.
A Perspective from the Bench
The Judges’ Obligation
Judge Alex Kozinski, of the Ninth Circuit, also spoke at the Conference. He praised the PCAST report as a step forward, “because after all, this is not a situation where we’re dealing with just technicalities but we’re dealing with the question of whether people are guilty or innocent.”
The Defense Bar’s Duty
Judge Kozinski also observed judges aren’t the only ones to question scientific evidence put on by the prosecution. “Many defense lawyers, like the rest of us, grew up with fingerprints, bitemarks and footprint evidence and simply accept it as being inherently valid and not worth challenging.”
It’s been five years since the Saint Paul Police Department Crime Lab closed its doors. In an opinion piece on the subject, the Saint Paul Pioneer Press wrote, “When your freedom depends on the reliability of testing performed by the government that’s attempting to convict you of a crime, and because you are innocent until actually proven guilty, you want the burden of proof to be sufficiently heavy.” Those words remain just as true today.
It is incumbent on judges, defense attorneys, and prosecutors to apply a healthy dose of skepticism to forensic evidence, regardless of its packaging.
Recently, it was reported Karlos Cashe spent 90 days in jail because powdered drywall was mistaken for cocaine. Both cocaine and powdered drywall are white. Both cocaine
and powdered drywall can take the form of a powder. And both cocaine and powdered drywall apparently test presumptively positive for cocaine using field test kits that screen for illegal drugs.
Understanding Presumptive Tests
Presumptive tests “presume,” but do not prove, the presence of certain substances. There are presumptive tests for blood, saliva, semen, and yes, there are presumptive tests for a host of different illegal substances, such as cocaine, heroin, methamphetamine, LSD, etc. While a presumptive test will generally provide a positive test result for the substance it is marketed for, (in Mr. Cashe’s case, cocaine), it will also yield a positive test result for other substances (in Mr. Cashe’s case, drywall).
In addition to drywall, there are any number perfectly legal, common items which yield a positive test result for illegal substances. By way of example only, a short list of substances previously yielding positive results for the presumptive presence of illegal drugs includes:
There is no precise known error rate. However, there is no question false positives occur with presumptive field drug tests. For example, in Florida, one lab found 21 percent of the evidence police submitted as “methamphetamine” was not actually methamphetamine.
It is not uncommon in Minnesota for the state to file charges based on a presumptive drug test result. The substance should then be sent to an accredited laboratory for confirmatory testing. In some parts of the country, such as Harris County, Texas, courts won’t accept a plea of guilty without a confirmatory drug test. This assures the courts innocent people aren’t swept up due to presumptive testing alone. Unfortunately, this does not address crime lab backlogs, and the amount of time defendants spend in jail, awaiting test results.
Recently, Wicklander-Zulawski & Associates announced it will stop training United States police departments on the Reid technique, a method of police interrogation, due to the risk of false confessions the technique presents. For those of us who have worked in the criminal justice system on behalf of defendants for more than about 5 minutes, this is welcome news. For those who are unfamiliar with how false confessions occur, some background is in order.
Why Would Anyone Confess to a Crime They Didn’t Commit?
Fair question. And one prosecutors have been posing to juries in closing arguments since the dawn of time. The answer, if you’ve been following this blog for any length of time, should not surprise you. . . it’s based in data and research and, well, science. Studies have shown certain interrogation tactics increase the likelihood of a false confession.
Alternate Interrogation Techniques
Wicklander-Zulawski & Associates will now focus on other interrogation techniques, stating, “Confrontation is not an effective way of getting truthful information.” The Agency also credited a host of academic research which establishes other interrogation styles “are far less risky.” Instead, Wicklander-Zulawski & Associates will now address the Reid Technique only to “educate police on the risk and reality of false confessions.”
The Response from John E. Reid & Associates
Joseph P. Buckley, president of John E. Reid & Associates, which licenses the Reid Technique, offered the following in response:
The technique has consistently held up in court; and
That it is not “confrontational” except when evidence already suggests the suspect’s guilt.
The response from John E. Reid & Associates contains at least some misstatements or overstatements to support their position. For example, the response includes an assertion Steve Drizin and Laura Nirider gave a presentation for the National Association for Criminal Defense Lawyers, favorable towards the technique. Reid’s statement includes the sentence, “In their presentation they stated that Reid is the gold standard on proper procedures, and that they regularly review reid.com and our materials to establish best practices and to point out what other investigators did that was improper.”
One Response to the Response
The record should be very clear. This is, at best, a misunderstanding of the presentation. To correct the record, Steve Drizin and Laura Nirider have issued a statement of their own, found here. The short version of their response is twofold: 1. We do not endorse the Reid Technique, nor do we consider it a model for proper procedures or best practice;and 2. For more information on a juvenile interrogation protocol that we do consider to be a model for best practices, please visit the International Association of Chiefs of Police’s website.
The fact a technique or method has “consistently held up in court” is not proof a method works; is safe and fit for purpose; does not have an error rate; or the method was applied effectively in the case at hand. Our criminal justice system is rife with examples of methods “consistently held up in court” which have no basis in science. See, for example, hair analysis, comparative bullet lead analysis, and bitemarks. This is not a valid argument for the efficacy, suitability, or validity of a method.
The assertion the method is not confrontational “except when evidence already suggests that the suspect’s guilt” is dangerously deceptive. On its face, this seems to suggest a certain amount of caution, since they are “only” confrontational with people who are probably guilty. First, as a general rule, people don’t become suspects unless there is some evidence which suggests their guilt. Thus, by their own standards, confrontational methods are appropriate for everyone. Second, we know people who are guilty sometimes confess, and people who are not guilty sometimes confess. The use of confrontational techniques will yield both true confessions and false confessions.
By understanding false confessions are always a risk in an interrogation, and by seeking to teach methods less likely, according to scientific studies, to induce a false confession, Wicklander-Zulawski & Associates has taken steps which should keep all of us safer – safer from false confessions, wrongful convictions, and, by virtue of same, guilty people remaining on the streets, free to cause more damage to society.
“The intention of justice is to see that the guilty people are proven guilty, and the innocent are freed.” So Al Pacino famously said, in the classic 1979 movie, And Justice for All. Unfortunately, time and time again, the “intention of justice” has failed us, as individuals, as families, as communities, and as a society.
According to a recent report from the National Registry of Exonerations, 2016 marked the highest number of exonerations for a single year, at 166. False convictions are a very real part of the fabric of our everyday life. If you are reading this and thinking, “I don’t know what she’s talking about. False convictions don’t have an impact on my life, nor on the lives of my friends and family,” gently, I’d like to point out just because you aren’t aware of it, doesn’t mean it doesn’t impact you.
How Wrongful Convictions Impact All of Us
Increased Danger to Society
When the wrong person is arrested, and subsequently convicted of a crime, the right person isn’t. This means the guilty party remains amongst us in society, free to reoffend. No one wants that.
Loss for the Family Means a Loss for Society
Incarcerating the wrong person isn’t just bad “in theory.” Perhaps you don’t currently know anyone who is incarcerated. Perhaps, even if you do, you are confident they belong there (although your confidence you are right has no relationship to wheth
er or not you are actually right). Take a moment, however, and consider the very real cost to society when the system incarcerates the wrong person. This is somebody’s father, somebody’s child, somebody’s everything. Wrongful convictions result in children growing up without parents, parents missing out on the milestones of their incarcerated children, and untold lost potential. This harms us all.
Some Startling Statistics
According to the National Registry of Exonerations, 2016’s exonerations included 94 cases wherein crimes hadn’t actually occurred. Separately, 74 convictions were the result of a guilty plea, rather than a verdict by jury or judge. One might reasonably wonder how these things could occur.
Cases without Crimes
Classic examples of cases without crimes include expert conclusions which are wrong, such as when a forensic pathologist declares an incorrect cause and manner of death. Another example, which has received significant coverage in recent years, is also the result of forensic “evidence,” drug testing. Preliminary drug tests performed by law enforcement in the field are notorious for producing false positives. (So much so, the state of Texas has called for confirmatory laboratory testing in all drug cases.) Imagine the “evidence” “proves” the substance was an illegal substance. Imagine further the defense attorney fails to challenge the sufficiency of the evidence. In such a case, it is small wonder juries convict without question.
When Innocent People Plead Guilty
In order to keep the wheels of justice moving, prosecutors routinely offer deals to people charged with crimes. Prosecutors offer “deals” with the intent of obtaining a guilty plea. For a person charged with a first-degree drug crime, for examp
le, a prosecutor might offer a plea to a third-degree drug crime. Why would an innocent person do this? There is certainty in plea agreements. While there may be time to serve, in many cases, the offer includes less time than one might reasonably expect if they lost at trial. Every jury trial involves risk. Innocence does not guarantee a “not guilty” verdict.
Further, particularly in a case wherein the “expert” declares a particular cause and manner of death, or forensic evidence which “proves” one thing or another, an innocent person may feel compelled to “make the best of a bad situation.” Sometimes, this means pleading to something to get out of jail and move on with their lives. Unfortunately, once someone has a felony conviction, “getting on with their lives” gets a lot harder. There are long term negative consequences to such a decision.
In every case involving forensic science, it is critical both the prosecutor and defense attorney not only read the forensic file, but understand what the contents of the file mean – and don’t mean in the context of the criminal justice system.
Kudos to the Norwood, Massachusetts public defender’s office. They, along with attorneys from the private bar, successfully argued two years’ worth of alcohol breath test results were unreliable. The unreliability of the results, the defense argued, renders them inadmissible to criminally convict people. The court agreed, holding due to sloppy lab practices, one can never know the defendant’s actual blood alcohol concentration.
The Importance of Minimum Standards and Asking the Right Question
In testimony, the head of a Massachusetts state crime lab explained their office was unaccredited. Further, employees convey the protocols for maintaining and calibrating the Alcotest 9510 by “word of mouth.” Written protocols for maintenance and calibration do not exist. Accredited laboratories require written protocols. (Whether the protocols are scientifically supportable, as well as whether employees follow the protocols are separate questions.) It is an all too common error for unaccredited laboratories to use their lack of accreditation as an excuse for the lack of written protocols. This isn’t the first laboratory whose protocols – or lack thereof – were questioned by the defense bar. Nor will it be the last.
In this particular case, the judge correctly observed, “It cannot be assumed that any particular calibrator understood or routinely applied the proper standards in calibrating the device.” Consequently, according to the court (and good science), lacking “scientifically reliable” protocols renders the test results inadmissible “in any criminal prosecution.” The court’s order excludes all test results, from 350 machines, gathered between June of 2012 and September of 2014.
Asking a Different Question
We applaud the attorneys in Massachusetts for bringing this to light. Nonetheless, we must ask: “Why did it take so long?” The answer, most likely, is as common as dirt. In lab scandal after lab scandal, prosecutors have relied upon flawed forensic science work without asking enough questions. Additionally, most defense attorneys don’t have the proper background to handle forensic science casework.
In cases involving eyewitness identification, lawyers, or their investigators, commonly go to the alleged crime scene. They go at the same time of day, in the same conditions, to determine if a witness actually had a reasonable opportunity to witness the events in question. In cases involving witness statements, lawyers listen to the recordings, rather than relying on police summaries. The same amount of diligent double checking must occur in cases involving forensic science. Failure to do so runs the risk of ongoing bad lab practices, as well as wrongful convictions.