Forensics

Supreme Court Refuses to Extend Protections on Suggestive Eye Witness Identification

Jan/11/12 12:43

The Supreme Court has declined to extend constitutional safeguards against the use of some eyewitness testimony at criminal trials, ruling against a New Hampshire man who was convicted of theft. Perry v. New Hampshire, 10-8974.

The court voted 8-1 Wednesday to turn away Barion Perry's claim that courts should be able to exclude eyewitness testimony when identifications are made under suggestive circumstances, even when there is no evidence of manipulation by the police. Judges can already can bar testimony when the police do something to influence a witness to identify a suspect.

Justice Ruth Bader Ginsburg said in her opinion for the court that in cases with no police misconduct, juries can weigh the reliability of eyewitness testimony. Justice Sonia Sotomayor wrote a dissenting opinion. The decision may not be as awful as many members of the criminal bar first thought. While the Court refuses to move the due process clause to follow the science of bad eye witness identification, it does so only based on the notion of the lack of state action in that case. In cases involving state actors there is a little more hope. On p. 9, n. 5, the majority restates the 20 year old Neil/Manson factors. The good news is that it lists the five factors is non-exclusive. The Court makes it clear that the five traditional factors are among the 'factors to be considered.’” This seems to suggests that could could ask a Court to consider many more factors, such as the laundry list stated by other courts, particularly the recent decision of the New Jersey Supreme Court. The bad news is that the Court fails to address the scientific criticisms of the Manson factors, which the State is likely to read as implicitly reaffirming them. This was a lost opportunity to fix binding federal precedent which is unarguably scientifically flawed -- the states can follow Henderson and ditch the test as a matter of state constitutional law. Still, the Court ignored forty-five years of scientific research on the subject and that is troubling.

CBC's Fifth Estate Looks at Shaken Baby Syndrome

Jan/10/12 18:32

This Friday’s CBC’s news documentary “The Fifth Estate” focuses on Shaken Baby Syndrome and the problems with it. I found it troubling that Canada and the United Kingdom candidly acknowledge that this syndrome is flawed and that innocents have been swept up in it. Mean while on my side of the border, with the exception of the Edmunds decision out of Wisconsin, there is no standing higher level appellate court upholding the a Daubert challenge to the same. I have to wonder if the now discredited expert (Dr. Charles Smith) was testifying on my side of the border whether he would still be testifying to this “science.”

The "CSI Effect" Should Influence Jurors

Feb/07/11 08:37

Media outlets around the country are running two threads that are contradictory, but I doubt many papers have realized it yet. The first is the problem with the forensic labs, flakey experts, and shoddy investigations. The papers have been great about convicting the innocent. The papers, however, are also buying into the prosecutorial saw about the “CSI Effect.”

The argument goes something like this. Because jurors watch TV, they see all these tests which could have been run, but which are not. They are holding it against the State and wrongfully acquitting. This weekend’s NPR question whether there is any statistical proof behind this assertion. So far, the proof is rather thin. In a recent Fordham Law Review, the author question whether the “problem” was bad as prosecutors claim. I was particularly troubled by the quotes from one prosecutor that CSI made the jury demand “slam dunk” evidence before convicting a defendant and this was a problem. Apparently in that prosecutor’s mind, proof beyond a “reasonable doubt” was something less than a “slam dunk.”

I agree that there is no central computer that functions like it does on TV. On TV shows, police agencies pull up credit card records, cell phone records, and other records on the fly. In the real world, the police have to contact the respective providers, obtain investigative subpoenas or search warrants, and it takes time. This is a time compression tool which allows tv police to solve a complex crime in an hour (less time for commercials).

I disagree, however, with the fact that jurors should convict a defendant despite the fact that the police didn’t do as thorough an investigation as they could because they didn’t deem the case important. We are locking someone up as a result of that investigation and evidence around the country is proving that first impressions aren’t necessarily right. How would people feel if their doctor took such an approach with cancer treatment?

Prosecutor’s are weaving this approach into jury selection, jury arguments, and the defense bar is sitting back and largely tolerating the same. Reduced to its essence this is a plea to further dilute the reasonable doubt standard.

When I started practicing law, jurors were instructed that a reasonable doubt was evidence (or the absence of evidence) which would pause a person in making the most important of life decisions. A common example was “knowing the flaws that you know” about this hypothetical house you are looking at, “would it cause you to walk away from the transaction.” Now, most judges tell a jury that a doubt must be based on reason and that a fanciful or hypothetical doubt is not enough. Prosecutors are arguing that the jury must be able to identify the doubt.

Now, the butcher is being allowed to put his second thumb on the scale with this so-called “CSI effect.”

CNN Runs Report on North Carolina Forensic Scandal

Jan/29/11 17:32

CNN is running some interesting reports on the North Carolina Forensics Lab. The latest report deals with the lab’s withholding of exculpatory (Brady) evidence in more than 200 cases. These stories will be covered Sunday night at 8pm (January 30, 2010) on CNN’s Rogue Justice.

Senator Leahy Introduces Federal Bill to Reform Forensic Labs

Jan/26/11 17:35

Yesterday, Senator Patrick Leahy (D-Vt) introduced legislation designed to strengthen and improve the quality of forensic evidence routinely used in the criminal justice evidence. The bill is designed to increase the overall integrity of the evidence and take on many of the problems that have recently popped up around the country involving sloppy forensic evidence and wrongful convictions. The bill will establish federal oversight over the labs under the joint supervision of the Department of Justice and the National Institute of Standards and Technologies. The bill is inspired by a February 2009 National Academy of Sciences report which identified massive problems in forensic science. Senator Leahy chaired two Senate Judiciary Committee hearings in the last session of Congress focusing on the report’s finding. He heard testimony from the directors of various state forensic labs and heard testimony about the need for improvement in these forensic investigations. Source: Vermont Column

First Case of Fake Fingerprints Confirmed

Dec/10/09 06:27

Monday’s BBC confirmed the arrest of a Chinese woman in Japan with surgically altered fingerprints designed to fool biometric scanners. The woman had been previously deported for illegal entry into the country. To gain entry on a new passport, she paid $15,000 for a surgical procedure where fingerprints were grafted from one hand to another.

UK Police Arresting Suspects to Get DNA in System

Nov/25/09 07:51

Yesterday’s Guardian newspaper reported that UK police officers were routinely arresting suspects just to get their DNA in the UK’s national DNA database. The UK was one of the first countries to engage in comprehensive DNA collection. Many states (including Michigan) have copied many aspects of the UK program. Read More...

Macomb Circuit Court Grants 6.500 Motion in a Shaken Baby Syndrome Child Abuse Case. Court Finds Child Might Have Died from a Stroke

Nov/21/09 01:55

On November 20, 2009, the Macomb Circuit Court (Judge Biernat) granted post-conviction relief in People v Julie Baumer, Macomb Circuit No. 2004-2096-FH based on the ineffective assistance of her trial and appellate counsel in failing to seek to have a defense radiologist appointed to counter the State’s expert radiologist in first degree child abuse prosecution involving allegations of non-accidental trauma (“shaken baby syndrome”) inflicted within 12-24 hours of the images. The State’s experts testified that the injuries were the result of an intentional and very significant blunt force trauma. Defense counsel was aware of the need of a radiologist testimony to counter the state’s evidence, but couldn’t afford to call one. The Court found that defense counsel should have petitioned the Court to appoint an expert under MCL 775.15. The Court also stated that Ms. Baumer may be actually innocent, but that the Court did not need to reach this issue. To read the Macomb County Daily’s coverage of the evidentiary hearing, click here.

Israeli Researchers Prove that DNA Evidence Can Be Faked

Nov/20/09 15:32

Israeli researchers have successfully forged DNA evidence in a laboratory. The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person. “You can just engineer a crime scene,” said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics. “Any biology undergraduate could perform this.” Click here for the New York Times article; click here for the actual paper (registration required).