Nationwide, Judges continue to admit disavowed “science”

The Santa Cruz Sentinel is reporting the disturbing trend nationwide of judges continuing to allow evidence unsupported by science.

Examples of judges continuing to allow forensic science which is not been properly validated into the court room include a case in Connecticut, where a judge allowed By Zalman992 - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=5300412prosecutors to present evidence about a footprint they felt was relevant. Testimony evidently involved representations of a forensic scientist that a specific shoe belonging to a man accused of the crime left of the relevant footprint. In Chicago, a federal court judge allowed experts to describe firearm and toolmark comparisons performed on bullets collected at crime scenes. In Pennsylvania, a judge ruled that prosecutors could elicit testimony about bite marks found on the body of a murder victim.


These rulings are troubling for several reasons. In Chicago, the federal court rationalized the testimony would be subject to cross examination by the defense attorneys.  This rationale seemingly ignores the fact defense attorneys can always examine the government’s witnesses, experts or not. Relevancy, whether a fact being testified to makes something more or less likely, is a separate judicial determination that should be made based on the facts and the evidence, not based on the availability of cross examination as a means to discredit the testimony.


The Connecticut judge’s determination about the “footprint evidence” ignores the findings of the President’s Council of Advisers on Science and Technology that such associations are “unsupported by any meaningful evidence or estimates of the accuracy.”   Finally, bitemark evidence has resulted in at least 29 documented wrongful convictions and arrests in United States in the last 17 years. It has been called into question by both the PCAST report and the National Academy of Sciences 2009 report on forensic science.


Interviewed by the Sentenial, Chris Fabricant, Director of Strategic Litigation for the Innocence Project in New York, observed, “At some point, we have to acknowledge that precedent has to be overruled by scientific reality.”

Not all judges, however, are allowing such evidence.  Missouri Judge Calvin Holden recently limited the testimony of a proposed ballistics expert, stating, “It remains a rather obvious notion that if forensic method lacks foundational validity, then a criminalist should not be heard in court to opine that ‘this bullet came from that gun. . . ‘”


Change on the Horizon?

Recently, the United States Seventh Circuit Court of Appeals ruled a wrongfully convicted defendant can sue two dentists who testified against him about bitemark evidence.   The Court found the dentists “were not entitled to absolute immunity.”  Mr. Stinson’s suit alleges the dentists “knowingly manipulated the bitemark evidence and Stinson’s dentition to appear to ‘match’ when there was in fact no correlation between Stinson’s teeth and the bitemarks inflicted on [the victim’s] body.”


Skepticism of Forensic Methods – A Call for Judicial Action

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.

By Jankaka (http://www.gk2-po.sk/heureka/) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0/)%5D, via Wikimedia Commons

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.

By Jankaka (http://www.gk2-po.sk/heureka/) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0/)%5D, via Wikimedia Commons

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.


The Consequences of False Positive Test Results

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

Photos of Chemical/Pharmaceutical Drugs
White Powder – Drywall? Cocaine? Something else entirely? By Rillke – Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=22833840

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).

False Positives

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:


Error Rates

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.

Criminal Charges

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.


Preventing False Confessions: A Step Forward

Confession_(1918)_-_1Recently, 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.

Here’s a full version of their response .

A Word of Caution

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 analysiscomparative 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.


Massachusetts Supreme Judicial Court Rules on “Dookhan Defendants”

Massachusetts Court Again Addresses Dookhan Defendants’ Plight

“We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute.”  So begins a recent opinion, referred to as “Bridgman II” issued by the Massachusetts Supreme Judicial Court.  The court is wading through the mess of 24,000 criminal convictions based on the test results produced by Annie Dookhan.

Ms. Dookhan intentionally and deliberately tampered with evidence, adding known

credit, By Jeff Dahl – Own work, CC BY-SA 3.0

controlled substances to samples which were otherwise not illegal.  Ms. Dookhan also created reports indicating the presence of a controlled substance without actually performing the test (a process known as “dry labbing”).  In 2013, Ms. Dookhan pled guilty to 27 counts, including tampering with evidence, filing false reports, and misleading investigators, while a drug analyst at the Hinton, Massachusetts Lab.  She has served 3 years in prison for her misconduct.


Prosecutors Resist Addressing the Problem

The state of Massachusetts continues to grapple with what to do with those convicted based on Ms. Dookhan’s lab reports.  Inexplicably, despite general consensus that Ms. Dookhan did indeed tamper with evidence in a number of ways, prosecutors resist requests to dismiss all cases worked on by Ms. Dookhan.  Over the years, prosecutors offered a variety of excuses for their failure to actively seek justice, including:

  • Prosecutors have no obligation to notify convicted defendants of their possible innocence;
  • Convicted defendants “might be too poor or busy dealing with more pressing issues”; and
  • Defendants lack interest in “reopening a closed chapter in their lives.”

The Massachusetts Supreme Judicial Court acknowledged, given the extent of the misconduct, “only poor alternatives” exist to remedy the situation.  The Court further expressed frustration with “the unacceptably glacial systemic response to date.” Additionally, the Court expressed dismay prosecutors failed to notify defendants many of them are entitled to a favorable legal presumption.  A previous court ruling entitles certain defendants to a presumption the analysis performed was “tainted by egregious government misconduct.”  The Court called upon prosecutors to dismiss with prejudice “a truly significant number” of the Dookhan cases.

A Method for Dealing with the Problem

The Court ordered District Attorneys to review all Dookhan cases individually.  Prosecutors must determine whether enough evidence exists to secure a conviction, in light of the Dookhan misconduct.  The Court declared mid-April the deadline for the review.  Of those cases wherein the prosecution maintains the belief a conviction is obtainable, they have 30 days to notify the defendant of certain rights.  These include:

  • The right to a new trial on the charge;
  • A promise not to recharge counts previously dismissed; and
  • The assurance of a sentence no longer or more severe than the original sentence, should the government prevail at trial.


A Caution

In a concurring opinion, Justice Lenk expresses frustration regarding the fewer than 2,000 cases addressed in the past 5 years.  “We cannot go on this way.”  People with drug convictions find themselves struggling to obtain jobs, housing, professional licenses, obtain student loans, attend college, receive government benefits they would otherwise be entitled to, and even face deportation.  Justice Lenk notes the measures announced by the majority appear “promising” but only if implemented in observance of the timelines put forth.   Further, Lenk called upon prosecutors to aggressively dismiss cases.  “At a minimum,” the concurrence called for dismissal of cases involving “simple possession” where defendants already completed their sentence.  “Only this will forestall the need for a ‘Bridgeman III’ and different measures.”