NACDL Press Release and Prelim. Position on NAS

[L.J.Steele]

NACDL's Preliminary Postion on the National Academy Report came out today....

You can find it off the main page -- www.nacdl.org
Or directly at http://www.nacdl.org/public.nsf/NewsRel ... enDocument

The report is linked from the press release
or directly at http://www.nacdl.org/public.nsf/NewsRel ... _Final.pdf

I'd love to hear what you think either here or off-list if you prefer.

(Also, I'm at NEDIAI in Freeport, so say "hi" if you are at that meeting as well.)

[sharon cook]

[Boyd Baumgartner]

Certainly, the arrogance in the previous post is part of the perceived problem and speaks directly to the NACDL's desire to have a culture of science. I may have overlooked something, but "This is an Individualization because Democrats are in power" is not a basis for any rational conclusion that I've seen published anywhere.

Office culture is an often overlooked yet an important part of a Quality Assurance environment. To illustrate this, I point to the OIG report on Mayfield: http://www.justice.gov/oig/special/s0601/Chapter4.pdf page 49 which states:

Several members of the International Panel suggested that the verifications of Green's identification by Massey and Wieners were "tainted" by
a mindset in which "[t]o disagree was not an expected response. '' Several panel members also called into question the "independent nature of the
verification employed by the LPU. " This appears to be a reference to the fact that verifiers are made aware that an identification has already been made by a prior FBI examiner at the time they are requested to conduct the verification, contributing to the expectation that the second examiner will concur with his colleague. Several members of the Panel recommended that the FBI Laboratory do more to foster independent verifications in which the second examiner feels free to challenge an identification. At least one expressed concern that a "bench-level" verifier might not feel comfortable disagreeing with a supervisor's identification.

Instead of a 'My science can beat up your science' mentality, I think a more constructive approach would be to at a minimum consider the NACDL's positions, and scrutinize them rationally and scientifically for a more balanced response. For instance, I would bring up the fact that forensic science is often used as an investigative tool, developing suspects. In this regard, forensic science does work for a particular entity, namely Law Enforcement and it is important to remain as trasparent as possible so that as much information can be collected and analyzed by both sides.

[sharon cook]

[Charles Parker]

I am working my way through the document slowly when I have some time, but for today I am asking for some clarification with the following: (My Emphasis Added)

Recommendation 2: (B) Certification

1. Develop certification programs and standards (alone or in conjunction with other agencies) that shall be required for all forensic laboratory examiners;
2. ………
3. ensure that, in contrast to forensic laboratory scientist, those scientist and experts who have specialized knowledge and expertise and/or conduct research and teach in academic and private institutions but who do not perform routine laboratory casework are not required to be certified in order to consult with legal professionals and to testify in court based upon their expertise; 4. ……..
5. ……..

Am I understanding that correctly in that those that work in a forensic laboratory MUST be certified while those that are hired by the defense because the are a scientist OR have specialized knowledge OR conduct research OR teach in academic and private institutions DO NOT HAVE TO BE CERTIFIED.

My emphasis to get my point across. To make it simple those that work in labs that work for prosecution (generally) have to be certified but the defense can bring someone in to rebut the testimony and that person is not certified.

That is an interesting concept. One group is held to a higher standard than a different group.

[L.J.Steele]

Am I understanding that correctly in that those that work in a forensic laboratory MUST be certified while those that are hired by the defense because the are a scientist OR have specialized knowledge OR conduct research OR teach in academic and private institutions DO NOT HAVE TO BE CERTIFIED.

My emphasis to get my point across. To make it simple those that work in labs that work for prosecution (generally) have to be certified but the defense can bring someone in to rebut the testimony and that person is not certified.

That is an interesting concept. One group is held to a higher standard than a different group.

Not speaking in any sort of official capacity...

IMHO, the idea is to distinguish between say, a PhD statistician and a DNA analyist testifying in a DNA case. The DNA analyist would be certified (defense or prosecution) in that field. A PhD statistician would not be certified because he or she isn't testifying about the DNA analysis, but only about interpreting the statistical significance of the result.

[Charles Parker]

Ms Steele, well I certainly do not speak with any authority either. I understand about the DNA Scientist and the Statistician, but the way it is written is to include those with specialized knowledge and expertise (what type of knowledge) and conduct research and teach in academic or private institutions. I could be wrong in my understanding but IMHO those words certainly open it up to more than DNA Scientist and Statistician's. Do you agree that the way it is written that it could open the door to people that are not qualified?

3. ensure that, in contrast to forensic laboratory scientist, those scientist and experts who have specialized knowledge and expertise and/or conduct research and teach in academic and private institutions but who do not perform routine laboratory casework are not required to be certified in order to consult with legal professionals and to testify in court based upon their expertise;

[L.J.Steele]

I understand about the DNA Scientist and the Statistician, but the way it is written is to include those with specialized knowledge and expertise (what type of knowledge) and conduct research and teach in academic or private institutions. I could be wrong in my understanding but IMHO those words certainly open it up to more than DNA Scientist and Statistician's. Do you agree that the way it is written that it could open the door to people that are not qualified?

Could it? Anything can happen. Question is what's the logical interpretation.

Problem may be with how to define things so as to get certification whenever feasible, without making folks like the statistician go thru a certification process that isn't relevant to their testimony. Another example might be having a psychologist testify about how confirmation/context bias might affect a forensic conclusion without having to be certified as a forensic expert. The psychologist has to be qualified in that field, but not in the forensic field under discussion -- he or she isn't offering a conclusion about does X (recovered evidence) match Y (suspect sample).

As I recall, the position paper talks elsewhere about certification encompasing folks like the retired experts who are typically the folks consulted by the defense. Personally, I want to make sure the folks I hire for my cases have the training and expertise to give me correct advice and certification seems to be the way to do that. The problem is not defining certification requirements in a way that keeps out the statistician or the psychologist because they aren't a certified X examiner.

[Charles Parker]

Ms Steele IMHO I do not think that logic is the driving factor here but the application of what has been definied. The bigger question for me is how is it going to be applied as the interpretation is pretty straight forward.

I am not worried nor do I wish to keep out of the court room those experts who have something to contribute to the case being discussed or tried but my concern are those that are admitted to testify as experts in a discipline and they only have a 40 hour class but have never worked in that environment and are now going to testify on their beliefs instead of any empirical evidence.

You are right in that defining what is certification is and when it should be applied and when it will not is going to be tough. IMHO I do not think the NACDL has achieved that yet in their document.

Bottom line is to let the forensic people, and those experts who have something to contribute to the fact finder to testify and keep out the charlatans and soothsayers. Sounds like a 'Gatekeeper' function to me.

On a side note I thought it was interesting in that fingerprints (and forensics) has been taking a hit on the science issue (it is not science---they should not testify--etc), and yet in the NACDL document they talk about 'Specialized Knowledge' just like FR 702. My meaning is that you do not have to be a scientist to testify as an expert in a court of law-----just specialized knowledge.

Does that mean the NACDL is going to relax their stance that expert testimony must be scientific based, and are now going to open it up to 'specialized knowledge' as well? Just curious!

[L.J.Steele]

On a side note I thought it was interesting in that fingerprints (and forensics) has been taking a hit on the science issue (it is not science---they should not testify--etc), and yet in the NACDL document they talk about 'Specialized Knowledge' just like FR 702. My meaning is that you do not have to be a scientist to testify as an expert in a court of law-----just specialized knowledge.

Does that mean the NACDL is going to relax their stance that expert testimony must be scientific based, and are now going to open it up to 'specialized knowledge' as well? Just curious!

As I said, you've pointed out a problem with the language as drafted. Best that can be done is to call this thread to the attention of the powers-that-be at NACDL and what comes in subsequent position papers.

Any other comments?

[Charles Parker]

Ms Steele, I am still reading it and digesting it but I want to thank you for being up front with your view point. I really do not have any other comments or questions right now and will probably wait until I have read all of it very slowly with notes.

One thing I will say about the NACDL piece is that it has given me good practice on the Critical Reasoning class I am trying to get through. In particular a concept called framing. For those that might not know what it means I am using it in the following context.

Framing, a term used to describe the selective infuence over the individual's perception of meanings attributed to words or phrases. A frame defines the packaging of an element of rhetoric in such a way as to encourage certain interpretations and to discourage others.

I think a lot of us would get a lot out of studying the social and psychology concept of 'Framing' and how much it really is used in this world by certain groups or complete some peoples agenda's.

Perhaps some of your collegues would be interested in the concept of framing to go along with their investigation into Bias and how people react to information. Good Stuff.

[Pat A. Wertheim]

Am I understanding that correctly in that those that work in a forensic laboratory MUST be certified while those that are hired by the defense because the are a scientist OR have specialized knowledge OR conduct research OR teach in academic and private institutions DO NOT HAVE TO BE CERTIFIED.

Hi Charles,

I think there needs to be a distinction made between a witness who testifies to a conclusion in a trial (an "expert") and a person who raises questions in an evidentiary hearing (no requirement to be an "expert"). The rules are different between a hearing and a trial. You and I testify as experts at trial and thus the NAS recommendations apply to us. The defense in major challenges hires non-experts who have nonetheless studied what we do, and who raise questions that we should be able to answer in pre-trial hearings such as Daubert and Frye hearings if we are truly "experts" and our science is truly "science." Those non-experts are allowed to testify in hearings but could easily be disqualified in trials by a rigorous line of voir dire questioning from the prosecutor. Still, the court considers it proper for them to raise questions in pretrial evidentiary hearings.

That said, there are defense experts who are true experts and who reexamine cases and are qualified to testify at trial, if necessary. Because I occasionally do such exams for defense attorneys outside my jurisdiction, I have become familiar with some of the inequities in the system. One is the wide disparity in funding that handicaps the defense in cases involving large amounts of forensic evidence. Another is the lack of defense oriented laboratories. That lack of resources results in the proliferation of charlatans hanging out their shingles as experts (another current thread on this chat board discusses that aspect). A third is the fact that many police laboratories are less than "transparent." Working as a defense expert, I have wildly mixed results asking for police notes and photographs. Some labs welcome me in and share everything with me. Others throw up roadblock after roadblock and make it impossible to asses what they have done, even though in the US I have never found a police error significantly in favor of the defense while working as a defense expert.

There is another big problem, though, and that is the fact that many police departments see their laboratories solely as tools of the prosecution not subject to generally accepted scientific principles. For example, this week I have been emailing privately with an examiner whose ID Unit is managed by a sworn officer with no scientific training. This manager has decided that verification of identifications is an impediment to investigations and should be discontinued. An examiner making an identification should report it immediately to the manager and/or the investigator. No arguments of science have swayed the manager. I know of other police latent print examiners who do not have their results verified and even testify to idents without verification. Some labs may not have a prosecution bias, but many do. For that reason, I support the idea of a separation of forensic sciences from police control.

I hope no readers of this forum believe that experts working for the police are always right. Most defense attorneys only want an honest evaluation of the evidence so they know how to defend a case or whether they should try and negotiate a plea agreement. Of course, just as the manager I mentioned above wants to run his lab contrary to good science practices, some defense attorneys want any old excuse to attack a good case. To be honest, I have not thoroughly studied the NACDL statement. Is it free of defense bias? I doubt it! But I know that some of the police organization replies to the NAS report were not completely free of bias, either.

I just think that we need to realize that there really are two opposing sides to this issue (biased police and biased defense) and the best place for us is above that fray as objective practitioners of fingerprint science.

[Charles Parker]

Pat, you are so right and I was focusing on the guilty innocent phase of the trial I overlooked the different types of hearings (preliminary, suppression, evidentiary, etc), and yes the rules are different. You and I have testified on a few of them over the years. I like the current method myself and the form of testimony in hearings to determine if something is probative, reliable and related to the crime. Not sure I agree with you that the NAS recommendations only apply to us (experts) but I thought it was directed at forensic science in general (I guess I will have to study on that one some more). The other point I want to make is that the NACDL does not differentiate in its documents between hearings and court testimony. Also the wording indicates will testify and not may testify.

Over the years I have met a number of defense experts (some good and some bad) and I have walked down that road myself since 1985. I have actually been stiffed by a couple of defense attorneys and some of them I have known have talked me into doing cases ‘Pro Bono’. You are probably not aware but I have always been a fan of truth and justice.

I cannot argue with handicaps in funding, experts and most importantly defense oriented laboratories. While the lack of funds might contribute to some mountebanks I have to say I agree with Ms Steele in that she prefers her experts with the training, education, certification and background of the discipline she is checking out. If any attorney has doubt about the background of the expert they are dealing with----then don’t hire them. Part of the responsibility lies with the court system hiring them.

“A third is the fact that many police laboratories are less than “transparent.”

When you say police laboratories that would also include Sheriff, State, Federal and private laboratories? I have had state labs lose, misplace, misnumber and cold lab evidence, so IMHO I would include them as well. In my PPOV laboratories are like football teams. Even the best team can lose a game on their worst day.

I have to say in my travels I have never experienced the road blocks you have. They might not have offered me coffee or pulled up a chair but not the problems you describe, but then again I confine myself to one state.

“that is the fact that many police department see their laboratories solely as tools of the prosecution not subject to generally accepted scientific principles.”

I can remember a few years ago at a state lab one of the assistant managers was upset about the backlog in the Latent Print Section. In a loud voice he stated in front of several of us that if the LPS could not reduce the backlog to just quite doing the latent prints and send it back out to the PD’s it was all voodoo magic anyway. Has your state managers always been receptive to what you think is right? In the past 3 months I have had supervisors from 4 police departments contact me about obtaining everything from training standards to SOP’s as they are exploring accreditation. We can exchange stories all day long depicting the 'Good, the Bad, and the Ugly'" between PD's--State Labs--Federal Labs. Everybody has their own problems. Some are cool and friendly, some are cold and arrorgant.

I am sure you are right that some PD’s do not have the sense to do the right thing but call me naïve but I think the majority of them do want to do what is right. I also think that state and federal labs are not saturated 100% with Johnny and Jane Do-The-Right-Thing.

I have not seen enough of the negative things from local, state, and federal labs that override the good things for me to support the idea of the separation of the forensic science discipline from the criminal justice system at this time.

I hope no readers of this forum believe that experts working for police, sheriff, state, federal and private labs are always right. You are right, most defense attorneys I know are very conscientious people and they are not the people I am concerned with but those pseudo experts.

If the experts expertise is necessary for the case---no problem. If the expert’s position is to confuse and befuddle---then I have a problem.

I have not read the complete NACDL and I have to admit I am slow with it as I am breaking it down sentence by sentence. When you finish it, I would like to know what you think.