Forensics Edition of the Advocate Now Available

The December edition of The Advocate features forensic related articles 

• The Reliability and Admissibility of Forensic Science Evidence in Kentucky by Andrea Kendall 
• Extraordinary Bedfellows: The Hair Microscopy Project by Linda Smith

Annotated Version
Mailing Version without annotations

The Biological Evidence Preservation Handbook: Best Practices for Evidence Handlers

by the National Institute of Standards and Technology and the National Institute of Justice 

The Biological Evidence Preservation Handbook: Best Practices for Evidence Handlers, created by the Technical Working Group on Biological Evidence Preservation, offers guidance for individuals involved in the collection, examination, tracking, packaging, storing and disposition of biological evidence.

This may include crime scene technicians, law enforcement officers, healthcare professionals, forensic scientists, forensic laboratory managers, evidence supervisors, property managers, storage facility personnel, lawyers, testifying experts, court staff members and anyone else who may come in contact with biological evidence. 

While many of the recommendations relate to the physical storage, preservation, and tracking of evidence at the storage facility, this handbook also covers the transfer of the material between the storage facility and other locations and discusses how the evidence should be handled at these other locations. 

Full text:

• Adobe Acrobat File

KYSC - Meskimen - Statements & Hair Comparison

In Meskimen v. Commonwealth, 2011-SC-000709-MR (rendered 4/25/13) (to be published)

The Court considered Meskimen’s motion to suppress a series of pre-trial statements, and held that the defendant’s request to be taken to the hospital during the initial questioning did not clearly and unequivocally invoke his right to remain silent.  Nor was the defendant “so intoxicated as to reach the point of mania or give an unreliable statement,” such that the Court would consider his statement involuntary.  Nor did the Court consider the actions of the police in refusing to take the defendant to the hospital, even though his skull was fractured so badly as to require four days of hospitalization, two of which were in the ICU, to be coercive.

In addition, the Court did not consider the failure of the trial judge to hold a Daubert hearing on the reliability of hair comparison evidence to be an error in this case, relying on its earlier holding in Johnson v. Commonwealth, 12 S.W.3d 258, 261 (Ky. 1999).  The Court cautioned, however, “[E]ven though case law may be in acceptance of a certain method of analysis, it is the trial court's duty to ensure that method is supported by scientific findings, or at least not seriously questioned by recent reputable scientific findings, before taking judicial notice of its acceptability.”

The issues were preserved by Shannon Brooks-English, of the Fayette County Trial Office.  Tom Ransdell was the appellate attorney.

Contributed by Kathleen Schmidt 

A Simplified Guide To Forensic Science

ForensicScienceSimplified.org, a new website created by NFSTC and funded by the Bureau of Justice Assistance, makes it easy to understand the what, why and how of forensic science.
Developed with noted experts, this straightforward guide walks non-scientists through the key disciplines that are crucial to today’s investigative and judicial process.

The name of the website says it all. From firearms examination to video enhancement, the site provides simple, easy-to-understand explanations of 11 different forensic disciplines (with more in the works). Each section presents the principles behind the techniques, approaches for discovering and collecting evidence, and an overview of how it’s enhanced and processed once it gets back to the lab.


The Simplified Guide also clears up common misconceptions about what the science can and can’t accomplish. This free online resource is a valuable guide for police officers, attorneys, educators and the general public.

“In today’s courtroom, where jurors increasingly expect forensic evidence to be presented, it’s helpful for officers of the court and other non-scientists to have a trusted, free resource that explains the basics of forensic science in easily understood terms,” said Kevin Lothridge, CEO of NFSTC.
To make it easy and enjoyable to navigate, the site is built using “responsive” web design that automatically adjusts to your smartphone, tablet or desktop computer.

Try out the site! www.ForensicScienceSimplified.org

NIJ - Understanding What Happens in an Erroneous Conviction

From the National Institute of Justice - 

Why are innocent people wrongfully convicted in certain cases yet acquitted in others? Research is starting to uncover what happens. A new study, "Predicting Erroneous Convictions: A Social Science Approach to Miscarriages of Justice" compared cases where innocent defendants were wrongfully convicted to "near misses" – cases in which an innocent defendant was acquitted or had charges dismissed before trial. They found 10 significant facts that could lead to a wrongful conviction:

• A younger defendant
• A defendant with a criminal history
• A weak prosecution case
• Prosecution withheld evidence
• Lying by a non-eyewitness
• Unintentional witness misidentification
• Misinterpreting forensic evidence at trial
• A weak defense
• Defendant offered a family witness
• A "punitive" state culture

Visit the wrongful convictions webpage and study summary
Read the full study (434 pages)
Watch a video interview with lead researcher Dr. Jon Gould

On Nova - Forensics on Trial

Airing October 17 - Check your local listings

Program Description

There is a startling gap between the glamorous television world of “CSI” and the gritty reality of the forensic crime lab. With few established scientific standards, no central oversight, and poor regulation of examiners, forensics in the U.S. is in a state of crisis. In "Forensics on Trial", NOVA investigates how modern forensics, including the analysis of fingerprints, bite marks, ballistics, hair, and tool marks, can send innocent men and women to prison—and sometimes even to death row. Shockingly, of more than 250 inmates exonerated by DNA testing over the last decade, more than 50 percent of the wrongful convictions stemmed from invalid or improperly handled forensic science. With the help of vivid recreations of actual trials and cases, NOVA will investigate today’s shaky state of crime science as well as cutting-edge solutions that could help investigators put the real criminals behind bars.

NOVA page on the show

Justice Department to review forensic evidence used in thousands of cases - Washington Post

The Justice Department and the FBI have launched a review of thousands of criminal cases to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence, officials said Tuesday.

The undertaking is the largest post-conviction review ever done by the FBI. It will include cases conducted by all FBI Laboratory hair and fiber examiners since at least 1985 and may reach earlier if records are available, people familiar with the process said. Such FBI examinations have taken place in federal and local cases across the country, often in violent crimes, such as rape, murder and robbery.

The review comes after The Washington Post reported in April that Justice Department officials had known for years that flawed forensic work might have led to the convictions of potentially innocent people but had not performed a thorough review of the cases. In addition, prosecutors did not notify defendants or their attorneys even in many cases they knew were troubled.

Read the complete story

DNA for the Defense Bar

by The National Institute of Justice

DNA for the Defense Bar is the newest addition to a series of NIJ guides that aims to improve the use of forensic DNA in the criminal justice system. Designed specifically for criminal defense lawyers, it:

• Offers a primer on the science of DNA, from collection at a crime scene to laboratory analysis and findings.
• Provides general discussions on working with a criminal defense client and preparing a defense, including the testimony of a DNA expert witness and cross-examining prosecution DNA witnesses.
• Offers guidance regarding trial issues (for example, jury selection and opening and closing statements) and includes an in-depth discussion of the statistics with respect to CODIS match probabilities.
• Include a discussion of post-conviction DNA testing.

Full text:

• Adobe Acrobat File

Gunshot Residue Analysis

Gunshot residue is actually a compound containing either two or three particles commonly found in gunshot residue or primer residue.  Examiners will say that particles with  lead, antimony and barium present are indicative of gunshot residue while particles with two of the three particles are consistent with primer residue.  The report issued by Hamilton County’s laboratory will state that two element particles “are found in primer residue, but also may originate from other sources.”  For this reason, the use of gunshot residue is no longer accepted by many crime scene laboratories and forensic scientists.[1]

The possibility of transfer of particles resulting in the contamination of the hands or clothes tested creates another area for challenge.  All particles containing lead, antimony, or barium are very large.  Additionally, these particles persist almost indefinitely.  Furthermore, because the particles are rather large, they can easily transfer from hands, firearms, and furniture to clothing.[2]  If particles consistent with gunshot residue are found on hands, it indicates the person (a) had discharged a firearm, (b) had been near a discharged firearm, or (c) had come into contact with something that had gunshot residue on it.  If particles are found on clothing, it indicates that the item (a) had been worn while a person discharged a firearm, (b) had been near a discharged firearm, or (c) had come into contact with something that had gunshot residue on it. 

---

[1] Bykowicz, Lawyers Call City Analysis of Gunshot Residue Flawed, Baltimore Sun, Mar. 5, 2005; Orrick, Anoka Judge Rejects Gunshot Residue Evidence, St. Paul Pioneer Press, July 13, 2006 (quoting Judge Hall: “This court is not convinced that the relevant scientific community has a generally accepted standard for interpreting what conclusions can be drawn from GSR testing and analysis. . . . It is clear that significant questions exist . . . Concerning how many particles are required for there to be a positive test.”)

[2] See Summary of FBI Laboratory’s Gunshot Residue Symposium, May 31-June 3, 2005 available at http://www.fbi.gov/about-us/lab/forensic-science-communications/fsc/july2006/research/2006_07_research01.htm  (last visited Nov. 21, 2011)

Contributed by Andrea Kendall

Innocence Project Blog on latest issue with forensic experts

Forensic Practitioners' Credentials Come Under Fire

Through a joint project of PBS’ Frontline, ProPublica and the UC Berkeley School of Journalism, a Berkeley graduate student in journalism discovered that she was able to receive certification as a forensic consultant from the American College of Forensic Examiners International (ACFEI) after taking a single, open-book, multiple-choice exam online.

Several former ACFEI employees call the group a mill designed to churn out and sell as many certificates as possible. They say applicants receive cursory, if any, background checks and that virtually everyone passes the group’s certification exams as long as their payments clear.

  Some forensic professionals say the organization’s willingness to hand out credentials diminishes the integrity of the field.

The joint project, which investigates several shortcomings of the forensic science system, follows a landmark 2009 National Academy of Sciences report that challenged the scientific basis and rigor of forensics. The report’s chief recommendation, that a national entity to establish and enforce higher standards in the forensic sciences, has not yet been implemented.
 
Read the full article “No Forensic Background? No Problem”
 
Read additional coverage, including an interview with the former co-chair of the National Academy of Sciences, Harry T. Edwards who discusses the need for a national forensic science entity.
 
For more about the National Academy of Sciences report.

New Resource on Latent Prints from U.S. National Institute of Standards and Technology (NIST)

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Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach

Fingerprints have provided a valuable method of personal identification in forensic science and criminal investigations for more than 100 years. The examination of fingerprints left at crime scenes, generally referred to as latent prints, consists of a series of steps involving a comparison of the latent print to a known (or exemplar) print.

In addition to reaching correct conclusions in the matching process, latent print examiners are expected to produce records of the examination and, in some cases, to present their conclusions and the reasoning behind them in the courtroom. In recent years, the accuracy of latent print identification has been the subject of increased study, scrutiny, and commentary in the legal system and the forensic science literature. In December 2008, the U.S. National Institute of Standards and Technology

(NIST) convened The Expert Working Group on Human Factors in Latent Print Analysis to conduct a scientific assessment of the effects of human factors on forensic latent print analysis and to develop recommendations to reduce the risk of error. This report documents their findings and recommendations, addressing issues ranging from the acquisition of impressions of friction ridge skin to courtroom testimony, from laboratory design and equipment to research into emerging methods for associating latent prints with exemplars. It provides a comprehensive discussion of how human factors relate to all aspects of latent print examinations including communicating conclusions to all relevant parties through reports and testimony.

Click here to retrieve PDF version of paper (11631 K)

ABA Resolution regarding expert testimony

Urges Judges’ Consideration Presenting Expert Testimony to Jurors

RESOLVED, That the American Bar Association urges judges and lawyers to consider the following factors in determining the manner in which expert testimony should be presented to a jury and in  instructing the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings:

1.      Whether experts can identify and explain the theoretical and factual basis for any opinion given in their testimony and the reasoning upon which the opinion is based.

2.      Whether experts use clear and consistent terminology in presenting their opinions.

3.      Whether experts present their testimony in a manner that accurately and fairly conveys the significance of their conclusions, including any relevant limitations of the methodology used.

4.      Whether experts explain the reliability of evidence and fairly address problems with evidence including relevant evidence of laboratory error, contamination, or sample mishandling.

5.      Whether expert testimony of individuality or uniqueness is based on valid scientific research.

6.      Whether the court should prohibit the parties from tendering witnesses as experts and should refrain from declaring witnesses to be experts in the presence of the jury.

7.      Whether to include in jury instructions additional specific factors that might be especially important to a jury’s ability to fairly assess the reliability of and weight to be given expert testimony on particular issues in the case.

Proposed Resolution and Report

Resolution

Featured Case - Lukjan

Court of Appeals, 2010-CA-001509-MR

Susan Lukjan v. Commonwealth

Audra J. Eckerle, Judge, Jefferson County

To be Published Opinion, Reversing and Remanding

** ** ** ** **

Before: Taylor, Chief Judge; Acree and Vanmeter, Judges.

Opinion by Judge Acree

Lukjan was convicted of arson, burning personal property to defraud an insurer, and committing a fraudulent insurance act over $300, and sentenced to twelve years.  The COA reversed the conviction, and remanded for a new trial. Lukjan was denied a defense when the circuit court refused to allow the defense arson expert to testify on the ground that he wasn’t a licensed investigator as required by KRS 329A.015 and KRS 329A.010 (prohibiting an individual from holding himself out to the public as a private investigator).  On remand, the circuit court must judge Lukjan’s proffered experts based on KRE 702 and caselaw. Under those standards, licensure is not necessary to qualify as an expert, though it may be a factor. See Fugate v. Commonwealth, 993 S.W.2d 931 at 935.

 The COA also reversed the circuit court’s decision to admit the prosecution’s arson opinion evidence without either an adequate Daubert hearing, specifically without examining “the portions of the record which would have enabled the court to determine the reliability and relevance of the evidence.”

Practice note:    Consider carefully what is contained in the “certified business record” you are trying to get admitted.  The COA held that a lightning strike report wasn’t admissible as a business record under KRE 902(11), because the certification said the data was “detected and recorded by National Lightning Detection Network Sensors, and processed by “[h]ighly refined algorithms[.]”  The COA held the proffered report appeared to be scientific evidence whose admissibility is governed by KRE 702 and not a business record “as contemplated by KRE 803(6) and KRE 902(11).”  If the record you are trying to get admitted was not made by a human being, you may need to subpoena the custodian. 

Contributed by Susan Balliet

Spark of Truth: Can Science Bring Justice to Arson Trials? - Discover Magazine

Gregory Gorbett/Eastern Kentucky University

Also see the related article, "Seven Myths About Arson."

On a rainy spring morning in eastern Kentucky, Greg Gorbett prepares to commit arson. His target is a tidy but cheerless one-bedroom apartment with the kind of mauve-colored carpet, couches, tables, and lamps you would find in a cheap motel. Gorbett is not the only one eager to see the place burn. A handful of other fire scientists and grad students from Eastern Kentucky University (EKU) are checking equipment in the test room as well. They have gathered at the EKU fire lab, a concrete structure in an open meadow as close to nowhere as possible, to document in exacting detail the life cycle of a blaze.

Gorbett scans the setup one last time. A foil-covered wire studded with metal probes—a thermocouple array—crosses the ceiling and hangs down the center of the space; it will measure the temperature at one-foot intervals every two seconds. A radiometer shaped like a soup can will detect changes in radiant energy. Bundles of yellow wires will carry the data to a computer-equipped truck sitting out back. There is also a man lying on the floor: James Pharr, a former fire investigator from Charlotte, North Carolina, wearing a fire-resistant suit and oxygen mask, who will record the event with a thermal-???imaging camera.

read the rest of the article

Featured Case - Hurt - Improper Expert Testimony

Paul Hurt v. Commonwealth, 10-CA-343-MR, unpublished. 

While unpublished, this is an important case for two reasons.  Hurt was convicted of several counts of sodomy and sexual abuse against his step-daughter.  Even though there were no physical evidence of any abuse, the jury still convicted him based in part on the testimony of Dr. Sally Perlman.  Dr. Perlman examined the step-daughter after her allegations of sexual abuse and concluded there were no findings of sexual abuse.  However, Dr. Perlman was able to testify that the step-daughter, during the exam, laid “there like a wet noodle.”  Because the child was so relaxed during the examination, Dr. Perlman testified that she believed the child had been sexually abused.  According to the Kentucky Supreme Court, Dr. Perlman’s testimony should not have been allowed - it is improper to admit "evidence of a child’s behavioral symptoms or traits as indicative of sexual abuse . . . on grounds that this is not a generally accepted medical concept.”  Bell v. Commonwealth, 245 S.W.3d 738, 745 (Ky. 2008), overruled on other grounds by Harp v. Commonwealth, 266 S.W.3d 813 (Ky. 2008)." 

Because testimony that a child’s relaxed behavior was consistent with that of a child who had been sexually abused was inadmissible, trial counsel performed deficiently in failing to object to this testimony.  The Court of Appeals did not reverse Hurt’s conviction due to the Court’s belief that the detailed nature of the step-daughter’s testimony would not have changed the trial outcome, i.e., there was no prejudice.  Even so, chances of a defendant winning at trial should be improved by keep this inadmissible evidence out. 

Practice Tips:  1) use a Daubert hearing to prevent this type of behavioral expert from coming in; and 2) object if  “wet noodle” evidence does come in.

Contributed by Robert Yang

"Getting it Right" Videos from The Innocence Project

The Innocence Project today launched a new multimedia resource on the central causes of wrongful convictions and proven reforms to prevent injustice.  "Getting it Right"  features videos, case studies and in-depth research on forensics, false confessions, eyewitness identification, informant testimony, defense representation and conduct by police and prosecutors.

New Resource on Fingerprints from the Scientific Working Group

"The dynamic and active nature of human information processing enables us to become experts but also makes us distort incoming data and make erroneous decisions. These vulnerabilities are not limited to fingerprint experts and apply equally to other domains. However, the importance of fingerprint evidence being reliable and unbiasable requires that these potential weaknesses be addressed." 

- Chapter 15, page 20

The Fingerprint Sourcebook

by Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST), et al. August 2011

SWGFAST, established in 1995, is one of several

Scientific Working Groups (SWG). The overall intent of Scientific

Working Groups is to improve forensic science practices and build

consensus amongst federal, state, and local forensic laboratories and

practitioners. The SWGs are a focal point for discussion on key issues

confronting various forensic science disciplines which will lead to the

establishment of guidelines and standards through consensus and general

acceptance. The guidelines and standards published by them are widely

recognized by the forensic community, the courts, and the forensic

laboratory accrediting bodies.

The membership of SWGFAST is comprised of a diverse

group of dedicated and professionally recognized individuals. This

includes not only friction ridge examination experts from law

enforcement agencies, but also defense experts, researchers,

instructors, academicians, laboratory managers, and others

The Fingerprint Sourcebook aims to be the definitive resource on the science of fingerprint identification. The Sourcebook was prepared by the International Association for Identification and topics covered include the anatomy and physiology of friction ridge skin (the uniquely ridged skin found on the palms and soles); techniques for recording exemplars from both living and deceased subjects; the FBI's Automated Fingerprint Identifications Systems (AFIS); latent print development, preservation and documentation; equipment and laboratory quality assurance; perceptual, cognitive and psychological factors in expert identifications; and legal issues.

Download:  

• The complete Fingerprint Sourcebook (pdf, 422 pages)
• Table of Contents and Preface (pdf, 6 pages)
• Chapter 1: History (pdf, 18 pages)
  By Jeffery G. Barnes
• Chapter 2: Anatomy and Physiology of Adult Friction Ridge Skin (pdf, 26 pages)
  By Alice Maceo
• Chapter 3: Embryology, Physiology, and Morphology (pdf, 26 pages)
  By Kasey Wertheim
• Chapter 4: Recording Living and Postmortem Friction Ridge Skin Exemplars (pdf, 18 pages)
  By Brent T. Cutro, Sr.
• Chapter 5: Systems of Friction Ridge Classification (pdf, 26 pages)
  By Laura A. Hutchins
• Chapter 6: Automated Fingerprint Identification System (AFIS) (pdf, 36 pages)
  By Kenneth R. Moses; Contributing authors Peter Higgins, Michael McCabe, Salil Probhakar, Scott Swann
• Chapter 7: Latent Print Development (pdf, 68 pages)
  By Brian Yamashita and Mike French
• Chapter 8: The Preservation of Friction Ridge Information (pdf, 21 pages)
  By Laura A Hutchins
• Chapter 9: Examination Methodology (pdf, 26 pages)
  By John R. Vanderkolk
• Chapter 10: Documentation of Friction Ridge Impressions: From the Scene to the Conclusion (pdf, 20 pages)
  By Alice V. Maceo
• Chapter 11: Equipment (pdf, 13 pages)
  By Julieanne Perez-Avila
• Chapter 12: Quality Assurance (pdf, 12 pages)
  By M. Leanne Gray
• Chapter 13: Fingerprints and the Law (pdf, 26 pages)
  By Andre A. Moenssens and Stephen B. Meagher
• Chapter 14: Scientific Research in the Forensic Discipline of Friction Ridge Individualization (pdf, 31 pages)
  By Glenn Langenburg
• Chapter 15: Special Abilities and Vulnerabilities in Forensic Expertise (pdf, 24 pages)
  By Tom Busey and Itiel Dror
• Appendices (pdf, 28 pages), includes:
  • Appendix A: Author and Reviewer Biographies
  • Appendix B: The Origin of the Scientific Working Group on Friction Ridge Analysis, Study and Technology (SWGFAST)
  • Appendix C: Members of SWGFAST
  • Appendix D: SWGFAST Standard Terminology of Friction Ridge Examination, Ver. 3.0