Forensic Science

And Justice for All

“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.

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By P.Lameiro – Own work, CC By-SA 3.0, https;//commons.wikimedia.org/w/index.php?curid=21095250

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.

Forensic Science

The Importance of Understanding How Science Works

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 calibrationwritten-protocol 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.

Forensic Science

Eyewitness Identification

Eyewitness Identification Reform

On January 6, 2017, the U.S. Department of Justice’s Office of twillie_nelson_mugshot_-_1974he Deputy Attorney General issued new procedures for handling eyewitness identification.  These new eyewitness identification procedures take into consideration research on how to best avoid false identification.  It is a colossal step forward for a department still dragging their feet about acknowledging and addressing the inadequacies of forensic science.

DOJ Implements New Eyewitness ID Procedure

The Department of Justice hasn’t updated their eyewitness ID procedures since 1999.  During 2016, DOJ gathered a team of experts, including social scientists, law enforcement personnel, and prosecutors, to identify best practices.  (The failure to include any defense
attorneys on the panel reflects an ongoing blind spot, in this author’s view, to the value of the defense perspective at Justice.)    DOJ instructed all federal law enforcement departments to update their internal eyewitness identification procedures, consistent with DOJ’s new procedures.  The policy admonishes prosecutors to consider the procedures when evaluating whether to charge a case.  The memo notes, “It is important that prosecutors identify potential issues in the administration of a photo array early in an investigation and take any such issues into account when evaluating the overall strength of the evidence in their case.”

Eyewitness ID Updates

            Blind Administration

In recognition of cognitive bias, the new procedures encourage using someone not involved in the investigation to show the witness the photographic lineup.  Blind administration assures all involved the administrator won’t signal the “right” answer.  This can occur consciously, such as by saying, “We found your wallet in suspect 3’s apartment.”  It also can occur subconsciously, such as by leaning in, or otherwise using body language to encourage one choice over another.  The DOJ recognizes occasions where the use of a neutral is impractical.  In such a case, DOJ recommends using a “blinded procedure.” This occurs, for example, by displaying the photos on a computer screen, which the witness can view, but the administrator cannot.

            Instructions

Law enforcement instructions to witnesses include a disclaimer. “The group of photographs may or may not contain a photograph of the person who committed the crime.”  Additional statements which should make the process more objective, include the following:

  • “You may not recognize anyone. That is okay.  Just say so.”
  • “Whether or not you select someone, we will continue to investigate this case.”
  • “Do not assume that I know who committed this crime.”

Recording the Level of Confidence

When a witness makes an identification, the administrators of the ID are now instructed to ask witnesses to state how confident they are in their identification.  When witnesses provide vague answers, the policy encourages law enforcement officials to press for more detail.  Studies show the level of confidence at the time of identification is a far better indicator of reliability than their level of confidence at the time of trial.

            Recording the Identification

Law enforcement is now required to record the identification.  “Recording” is either accomplished via audio or video recording.  The new guidelines also allow for law enforcement to document the encounter by hand.  This practice is significantly less adequate, as the documenter’s own biases are now in play.  Whether someone “appears reluctant” or “confident” is reflected only through the prism of the law enforcement officer.  This person may well know the suspect identified is also the suspect arrested.  Video or audio recording is far more fair to the defendant.  This leaves judgements about the witness to the jury and the lawyers – where it should be.