Notes

Outline

Using the NSA Report to “Junk” their “Science” Frank Godbold Federal Defender Office, Tampa

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“The law’s greatest dilemma in its heavy reliance on forensic evidence concerns the question whether – and to what extent – there is science in any given ‘forensic science’ discipline.”                                                  -- NSA Report at 3-2

Two very important questions should be answered before admitting and relying on forensic evidence in criminal trials:

Findings Include:

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The “Scientific Method”    A scientific method consists of the collection of data through observation and experimentation and the formulation and testing of hypothesis.    Scientific researchers propose hypothesis . . . and design experimental studies to test these hypotheses.                                                     -- Wikipedia

What is  “Junk Science?”

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The Daubert Factors Testing Error Rates Standards Publication and Peer Review General Acceptance by the Relevant Scientific Community

"Scientifically Valid" Scientifically Valid Not Scientifically Valid

Three Fields of “Junk Science” Fingerprints Handwriting Toolmarks/Firearms

“Junk Science” Is Often Based on the Same Untested Premise: Uniqueness” Everything in the world is unique.  Every fingerprint, everyone’s handwriting, every tool, every gun.

Junk Scientists Make the Same Claim: Because everything in the world is unique, we can make an identification to the exclusion of every other object in the world --  every finger with respect to fingerprints, every person with respect to handwriting, and every tool with respect to tool marks.

Our Goal: Expose each of these fields for the junk science that it actually is. Pre-trial Motion to Preclude    Convince the jury that they should have a reasonable doubt regarding these fields.

How are We Going to Do It? Learn the fields that we’re fighting.

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How Do We Fight It? Counter experts Fingerprints – Ralph Haber - humanfactorsconsultants.com Handwriting – Mark Denbeaux - denbeama@shu.edu; Michael Saks - michael.saks@asu.edu Toolmark’s – Adina Schwartz - aschwartz@jjay.cuny.edu

How Do We Fight It? Get Discovery! Get the demonstrative evidence for you and your experts Get the manuals of the crime lab Get the government expert’s bench notes

Challenging Fingerprint “Junk Science”

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Latent Print Training

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“[The] opinion as to whether there is sufficient uniqueness of detail present in the friction ridge print to eliminate everyone else in the world as a possible donor… is very subjective.” -- David Ashbaugh, The Premises of Friction Ridge Identification, 44 J. Forensic Identification 499 (1994).

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How Are We Going to Challenge These Fields? Learn the fields Hire experts Request discovery Hold the fields to the Daubert factors Standards

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Handwriting: Two Principles No two people write exactly the same way (inter-writer differences) No person writes exactly the same way twice (natural variation)

Different People Can Have Similar Handwriting

No Standards Handwriting “experts” have no standards for comparing handwriting and there is no standard for declaring an identification.

Challenging Toolmarks “Junk Science”

What is a “Toolmark?”

Toolmarks Change Over Time The marks that a tool will make will change as the tool is used as a result of wear, and/or damage and corrosion. What this means, for example, is that there will be significant dissimilarity between bullets fired from the same gun.

Different Toolmarks’ Similarity Different tools can leave marks that have significant similarity and we don’t know what the probability is of that occurring

No Toolmark Standards No standards for comparing toolmark impressions and no agreed upon identification standard for declaring a match

Testing Have these fields been tested?

Error Rates No testing – no error rates

Publication & Peer Review Purpose of publication and peer review Internal non-blind verification does not insure reliability

General Acceptance Relevant scientific community Must look beyond the practitioners of the field itself State of Maryland v. Bryan Rose, K06-0545 (Cir. Balt. Co. 2008) (“general acceptance of latent print identification by its practitioners does not constitute general acceptance by the ‘scientific community’ . . .”); United States v. Saelee, 162 F.Supp.2d 1097 (“Finally, the evidence does indicate that there is general acceptance of the theories and techniques involved in the field of handwriting analysis among the closed universe of forensic document examiners.  This proves nothing.”) Government has not and will not be able to produce anyone beyond law enforcement technicians

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“[T]he crux of the matter is not the individuality of the friction skin ridges but the ability of the examiner to recognize sufficient information for the disclosure of identity from a small distorted latent fingerprint fragment that may reveal only limited information in terms of quantity or quality”

One Last Thing to Do Expose the government’s expert for the  “salesman” that he is: “A fingerprint expert is a salesperson selling the identification to the jury.”

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National Research Council on Firearms Conclusions drawn in firearms identification should not be made to imply the presence of a firm statistical basis where none has been demonstrated.   Specifically, … examiners tend to cast their assessments in bold absolutes, commonly asserting that a match can be made ‘to the exclusion of all other firearms in the world.’

How Do We Challenge “Junk Science?” Learn the field Primary sources Literature of the field Hire experts Technicians Counter experts Get Discovery Bench notes Lab manuals Proficiency test file Hold the field to the Daubert factors Standards Testing Error rates Publication and peer review General acceptance Expose the lack of training and qualifications of the government’s experts Expose the logical fallacy of the uniqueness premise Expose the government’s expert for the used car salesman that he is Tailor our attack to the specific opinion that’s being offered

Can it Work? It already has Handwriting - United States v. Hines, 55 F.Supp.2d 62 (D. Mass. 19990; United States v. Santillan, 1999 WL 1201765 (N.D. Cal. 1999); United States v. Rutherford, 104 F.Supp.2d 1190 (D. Neb. 2000); United States v. Brown, No. CR-184ABC (C.D. Cal. Dec. 1, 1999); United States v. Fuji, 152 F.Supp.2d 989 (N.D. Ill. 2000); United States v. Saelee, 162 F.Supp.2d 1097 (D. Alaska 2001) Fingerprints - State of Maryland v. Bryan Rose, K06-0545 (Balt. Co. 2008); New Hampshire v. Langill, 05-5-1129 (Apr. 2, 2007 Sup. Ct. N.H.) Toolmarks - Ramirez v. State, 810 So.2d 836 (Fla. 2001); United States v. Green, 405 F.Supp.2d 104 (D. Mass. 2005)

The End!