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October 5 th , 2018 Faculty of Federal Advocates Denver, CO Presented by J. Christopher McKee

Checking the Compass: How Courts Handle Forensic Science and The Potential Impact of Forensic Science Reform. October 5 th , 2018 Faculty of Federal Advocates Denver, CO Presented by J. Christopher McKee Adjunct Professor of Law and Director of Experiential Learning,

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October 5 th , 2018 Faculty of Federal Advocates Denver, CO Presented by J. Christopher McKee

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  1. Checking the Compass: How Courts Handle Forensic Science and The Potential Impact of Forensic Science Reform October 5th, 2018 Faculty of Federal Advocates Denver, CO Presented by J. Christopher McKee Adjunct Professor of Law and Director of Experiential Learning, University of Colorado School of Law

  2. Forensic Evidence used in criminal cases has never experienced greater legal and scientific scrutiny than it does today. • Forensic bitemark identification: weak foundations, exaggerated claims, Saks et. al, Journal of Law and the Biosciences, 538 -575 (Nov. 2016)

  3. Presentation Outline • National Academy of Sciences (NAS) and President’s Council of Advisors on Science and Technology (PCAST) Reports • Forensic Science Reform • Legal Landscape • Why Should We Care?

  4. National Academy of Sciences • What is this entity? • Who makes up committees? • What do they do?

  5. NAS Committees • The NAS is a society of distinguished scholars tasked with advising the federal government on scientific and technical matters • Committees include leading scientists and a diverse group of interested parties (judges and lawyers, academics, stakeholder organizations, etc.) • Reports from the NAS are valuable because of their reputation for independent, objective and non-partisan advice • Hear Testimony and Review Documents • Collaborate with experts in the field

  6. NAS Reports • On the Theory and Practice of Voice Identification, National Academy of Sciences, National Academy of Sciences (1979) • The Polygraph and Lie Detection, National Academy of Sciences (2003) • Forensic Analysis: Weighing Bullet Lead Evidence, National Academy of Sciences(2004) • Ballistic Imaging, National Academy of Sciences (2008) • Strengthening Forensic Science in the United States: A Path Forward, National Academy of Sciences (2009) • Identifying the Culprit: Assessing Eyewitness Identification, National Academy of Sciences (2014)

  7. National Academy of Sciences Report (2009)

  8. General Findings • Forensic science disciplines are supported by “little rigorous systematic research to validate the discipline’s basic premises and techniques” • Research is needed to address accuracy, reliability and validity of the disciplines • Measures of uncertainty have not been quantified • There are no best practices; standardization • Error rates have not been established • Accreditation and certification are voluntary

  9. NAS Report Conclusion • “The forensic science system . . . has serious problems that can only be addressed by a national commitment to overhaul the current structure.” • Strengthening Forensic Science in the United States: A Path Forward, National Academy of Sciences(2009)

  10. Court Treatment of NAS Reports • DNA Wars in early 1990s – NRC I and NRC II • Melendez-Diaz v. Mass., 129 S.Ct. 2527 (2009)(Confrontation of lab analysis) • U.S. v. Rose (D.MD 2009)(Fingerprints) • U.S. v. Taylor (D.NM 2009)(Firearm Toolmarks) • U.S. v. Zajac, (D.UT 2011)(Adhesive comparison) • U.S.v. Lujan, (D.NM 2011)(Fiber analysis) • U.S. v. McCluskey (D.NM 2013)(Fingerprints) • U.S. v. Williams (DC COA 2016)(Firearm Toolmarks)

  11. President’s Council of Advisors on Science and Technology (PCAST) • What is this entity? • Who made up council? • What did they do in report?

  12. PCAST Committee • The PCAST Committee was assembled by the Executive Office of the President to advise the federal government on scientific and technical matters • Committee included leading scientists and engineers • Report intended to influence policy decisions across the Executive Branch, offering independent, objective and technical advice • Heard Testimony and Reviewed Documents • Collaborated with experts in the field • Responded with an Addendum in 2017 to criticisms of the report

  13. General Findings • Addressed question of when expert testimony based on a forensic feature comparison method should be deemed admissible in criminal courts • Feature-comparison methods in several forensic disciplines reviewed for validity and reliability • Error rates and individualization claims vary in validity across disciplines • More training is needed in the field • More empirically valid studies are needed • Forensic science is at a crossroads

  14. PCAST Report Conclusions • Foundational validity for Latent Fingerprint claims based on empirical studies • No foundational validity for Firearm Toolmark claims of individualization based on limited empirical studies • No foundational validity for Bitemark, Footwear and Microscopic Hair Comparison claims due to no empirical studies to support claims • Empirical studies exist within a limited range in support of claims of DNA analysis of complex mixtures

  15. Court Treatment of PCAST Report • 10th Circuit only one reference to Defense proffer of PCAST Report in challenge of compelled DNA sample (D. NM) (2018) • U.S. v. Gregory Chester et al, (N.D. Ill 2017)(firearm toolmark) • U.S. v. Bonds, (N.D. Ill 2017)(Friction ridge) • U.S. v. Pitts, (E.D. NY 2018) (Friction ridge) • U.S. v. Lundi (E.D. NY 2018) (Friction ridge)

  16. Forensic Science Reform • National Forensic Science Commission • OSAC Committees • Discipline stakeholder organizations • Crime Laboratories • State Forensic Science Commissions (Virginia and Texas) • Scientific and Academic Engagement

  17. Science Magazine, March 7, 2016 • Reversing the Legacy of Junk Science in the Courtroom, Kelly Servick, Staff Writer • Update on developments seven years after the publication of the 2009 NAS Report • Forensic Science is “grinding” towards reform

  18. Science Magazine, March 7th, 2016 • NIST and DOJ have expert working groups (OSAC) gathering and endorsing standards for collecting and evaluating different kinds of evidence • $20 million dollars to team of 30 statisticians and legal professionals to develop tools for analyzing the strength of an apparent match • Creation of Center for Statistics and Applications in Forensic Science (CSAFE) • Goal is to develop statistical methods that describe how strongly similar patterns might be linked to a common source

  19. Legal Landscape - Practical Implications of Reports and Forensic Science Reform • Discovery – Rule 16 • Admissibility Challenges – 702 and Daubert • Trial Challenges – Admissibility of the Reports and Experts • Post-Conviction Challenges

  20. Hon. Harry Edwards, DC Circuit and co-chair of the NAS Committee • The NAS Report on Forensic Science: What it Means for the Bench and Bar Speech, May 6, 2010 • “If courts blindly follow precedent that rests on unfounded scientific premises, this will lead to unjust results” • “When scientific methodologies once considered sacrosanct are modified or discredited, the judicial system must accommodate the changed scientific landscape” • Calls out Prosecutors for misrepresenting his own words • about the importance of the report. • To suggest that Judges would not consider the report in • assessing admissibility would be “absurd.”

  21. Why Should We Care?

  22. Presented by: J. Christopher McKee • Adjunct Professor of Law and Director of Experiential Learning, Colorado University School of Law at Boulder, 2009-Present • Co-Founder of Forensic Defense Strategies, LLP based in Boulder, Colorado • Former Special Counsel and Deputy Trial Chief at the Public Defender Service for the District of Columbia • Contact info: • Forensic Defense Strategies, LLP • 1881 9th Street, Suite 315 • Boulder, CO 80302 • (w) 303-459-4489 • (c) 202-253-2572 • E-mail: • chris.mckee@colorado.edu or jchristophermckee@gmail.com

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