Date of Publication: Spring 2018
Articles:
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Introduction: Twenty-five years ago, the U.S. Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals Inc., that federal judges must conduct a scientific gatekeeping inquiry before admitting expert evidence. That ruling reshaped how judges evaluate scientific and expert evidence. In 2000, Federal Rule of Evidence 702 was revised to comport with the Daubert ruling and many state courts adopted either the Daubert rule or the Federal Rule 702. The Daubert ruling coincided with a surge in scientific research relevant to criminal cases, including the development of modern DNA testing that both exonerated hundreds of individuals and provided more accurate evidence of guilt. At the same time, the scientific community increasingly raised questions concerning the validity of non-DNA forensic techniques, and called for basic scientific research and statistical rigor.
This volume explores the challenges and the changes in the law, research, and in the practice of forensic science in the years since Daubert was decided. The Virginia Journal of Criminal Law convened experts in forensics, statistics and the law for a conference at the University of Virginia School of Law on March 26, 2018. The conference was sponsored and made possible by the Center for Statistics and Forensic Evidence (CSAFE) collaboration, extending across four universities, including the University of Virginia, at which researchers have been working with generous support from the National Institute of Standards and Technology (NIST) to research these questions.
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Introduction: [The Committee on Identifying the Needs of the Forensic Sciences Community of the National Research Council put out a report entitled “Strengthening Forensic Science in the United States: A Path Forward” which] pointed out that many forensic disciplines lacked validation studies, and only DNA had a validated probability model from which errors and error rates could be estimated. Only with DNA do you have some concept of what an error rate means. The report also pointed out that claims of error rates being zero were not plausible, that pattern evidence disciplines in particular shared a lot of common issues in terms of the way they looked at images and the kinds of features that you might pick out, and yet these disciplines were totally distinct.
And so, there was no sharing of information, and I think that was partly cultural, in that they felt that they couldn’t share what they were doing because of confidentiality reasons and so forth. But, when you talk about doing research or trying to understand how to improve a discipline, you’re actually better off trying to get as much information as possible from related disciplines.
Focus on the Evolution of Forensic Evidence
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Introduction: My introduction to forensic science came in the form of brown paper bags sealed with red tape. I was in my last semester of high school, participating in a community service program that assigned me to administrative tasks at the local police department.
One afternoon, a police officer came in carrying those bags and asked me for the chain-of-custody form–a form and concept I had never heard of. He explained he needed it to submit his potential evidence to the State Crime Laboratory. There the items in the bag would be scientifically examined for clues that would link someone to the crime.
Statistics, Research, and Forensics
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Introduction: I have already mentioned that statistics has been very successful in many areas of science, and so I will just mention quickly that one of the many reasons why DNA is such a successful forensic method is that there are well-defined markers. It is more than just an examiner who goes in and says, “Well, let’s see, I think I’ll look at this marker, and this one, and this one …” Those markers–those features–have very high sensitivity and high specificity. Alicia talked about having bullets from the same source, so if I know I gave you two samples from the same source, there is a high probability of saying “yes, looks like the same source to me.” And again, if I gave you two bullets from different sources, or two samples that came from different sources, there is a high probability of saying “nope–don’t look the same to me.” Because they have high sensitivity and specificity, in the courtroom you don’t have truth, only the recording angel knows the truth–what you hope though is that there is high predictive value. This is so that if the expert comes in and says, “looks like a match to me,” there’s a high probability the recording angel has written down in her little book: “yes, there’s a match,” and vice versa if it looks like it’s not a match. So, we’re never going to be able to peek inside the recording angel’s book, but we do know that there’s a connection between high sensitivity and specificity and high predictive value.
Judging Forensics
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Introduction: It is very nice to be here with such a diverse audience and for such an interesting program. What I’d like to talk a little bit about is how judges deal, or fail to deal, with forensic science, how judges deal, or fail to deal, with statistics, and how judges deal, or fail to deal, with the interplay of forensic science and statistics. I should tell you at the outset that most judges know beans about science. I was an English major, most of my colleagues were either history majors or political science majors. Yes, we had to take that one required course freshman year in science. I took something that was popularly called “Physics for Poets.” The poetry was great. And then, of course, we all went on to law school, and that convinced us even more that the last thing we ever wanted to spend any time on was science.
Statistics in the Crime Lab
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Introduction: I am going to talk about blinds. I can drone on all day about all kinds of things that I am excited about at Houston, so hit me if I get carried away. Houston, for an example of scale, is fairly comparable as one laboratory to the [Virginia Division of Forensic Science] state system. We are one laboratory with about 200 employees, and we get about 30,000 requests a year. As a city laboratory, we receive annually about half the requests a state system such as Virginia gets. The other thing you have to keep in mind about Houston is a very real part of its history and that is a 2003 New York Times headline: “Is Houston the Worst Crime Laboratory in the Country?” That is part of Houston’s history and that is why I am President and CEO, not a director. The choice was made in 2012 to take the forensic operations out of Houston PD and roll them into a semi-privatized corporation. It’s called a local government corporation. I have an independent, separate board of directors made up of volunteer citizens. They are everything from exonerees to defense attorneys. That board is my boss. They can fire me if I am not doing my job correctly. They have fiduciary responsibility for the laboratory and are the ones who approve my budget. It’s a little bit of a different flavor of independence. There are a few different versions of independent around the country.
Statistics in the Crime Lab
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Introduction: I am the chief of the Latent Print Branch of the US Army Criminal Investigation Laboratory, which is a subordinate unit of the Defense Forensic Science Center, and our primary objective is to provide support for the criminal investigative mission of the Department of Defense. If you have seen the show NCIS, we support NCIS agents, OSI agents with the Air Force, and also CID agents with the Army. Before I begin, let me say that these are my own personal views and opinions. My comments are not necessarily official, or reflective of the views and opinions of the Department of Defense, Department of the Army, or any other affiliated entity of the federal government.
Speaking near two-thirds of the way through, I think it is clear to you that over the last several years the forensic science community has faced intensifying criticism and scrutiny, and this has led to a series of calls for reform. Not just once, not just twice, not even three times, but four times. I am slightly hearing impaired but I think I have gotten the message now, and I think it is starting to resonate with the rest of the forensic science community as well. Now although these recommendations and calls for reform have come from a variety of different scientific committees representing a variety of different scientific organizations, there is one thing that I would say transcends each one of these reports, and it is this issue: that the forensic practitioner serves as the center of the entire process.
Bringing Statistics into the Courtroom: Talking to Real People about Forensic Statistics
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Introduction: I’m going to speak about talking to real people about forensic statistics. But first I want to note that I am quite disappointed in the gentlemen before me because I wanted to see more equations, so I could make more fun of them. But just imagine them having lots of equations floating around their heads because that is what they really wanted to tell you about.
As we all know from listening today, from any psychology courses we might have ever taken, and from our lives in general–humans are very rational thinkers. We are great reasoners, we never forget anything, we consider all possible interpretations of events, and we are quite good at using the rules of formal logic. We can do complicated mathematics in our heads, and we think statistics is easy and obvious, right? We all know that? Okay, well maybe not. Decades of psychology research and decades of living have taught us all that maybe people, ourselves included, are not so good at all this stuff all the time.
Bringing Statistics into the Courtroom: The Nikumaroro Bones: How Can Forensic Science Assist Factfinders
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Introduction: “‘Data! data! data!’ he cried impatiently. ‘I can’t make bricks without clay.”’ Like the iconic Sherlock Holmes, today’s forensic scientists and technicians produce data that elude ordinary mortals and then evaluate them to reach penetrating conclusions. The analyst’s observations of features or properties of pairs of fibers, glass fragments, handwriting, fingerprints, DNA, and the like are the data. They are the clay that must be processed to become bricks–conclusions as to who or what is the source of the trace material or impressions.
But unlike Holmes, who always could supply a definitive and satisfying integration of all the facts of a case and never had to deal with trials and jurors, the modern criminalists who compare traces of unknown origin from crime scenes to traces from specimens of known origin are not expected to answer the ultimate whodunnit question. Instead, expert witnesses are supposed to assist judges or jurors by providing facts or evaluations about matters that these triers of fact cannot evaluate well on their own. On the narrow question of whether the two specimens have a common origin, they typically answer by presenting a firm opinion (based on certain data, theories, and assumptions) as to the source.