Sunday, April 24, 2016

Forensics and The Law

Hello Readers,

In my last post I discussed Convicting the Innocent which discusses how false or misleading forensic evidence contributed in the first 250 DNA exonerations case. It discussed several types of forensic practices and how they can be twisted or how they can be just flat out bad “science.” This week I wanted to talk about some ways the law regulates these possibly unreliable practices and how we can keep lies from coming into our courtrooms.

So, first of all, almost all experts are paid for their testimony by the party who called them, whether they be for the defense or plaintiff. There may be a few good souls who do pro bono (free) work, but this is rare. This should not affect their testimony nor bias them in any way, and it is illegal to pay an expert to give a certain opinion. That being said, we can’t always be sure whether an expert is biased, and further most parties will choose experts who they expect to give a favorable opinion. It is the job of the opposing counsel to obtain testimony about whether the expert is being paid, whether the their payment is biasing their testimony, or whether any other factor is biasing their testimony. If this information isn’t brought out on the stand, the jury will never hear it. For prosecution’s witnesses in particular, many of the analysts called work for law enforcement, which also has the potential to affect their testimony. Analysts do not typically work blind, so if for example a suspect confesses, they may know that when they’re working, giving them an idea of what the “right” conclusion is supposed to be. Again, if this information is not brought out on the stand, the jury will never know whether the information they had about the crime affected their judgement.

The two big court cases that regulate expert testimony are Daubert v. Merrell Dow Pharmaceuticals and  Frye v. United States.
In Frye, the court considered the admissibility of a practice called the systolic blood pressure test, which is kind of like a polygraph test. As a result of this case, the court imposed a new burden on expert testimony: it must be “generally accepted” by the relevant scientific community. The big problem with this standard is its vagueness. What counts as generally accepted? Does a majority of the community have to accept it? A large percentage? Does it have to be unchallenged? How much research has to be done on a theory before it counts?  But then again, a lot of standards in law are kept vague in order to apply to a variety of cases. Something can sound nice and specific, and then we need to start making a million exceptions because unique situations come up where the standard just doesn’t work. But it also leaves a lot of room for interpretation. It also seemed to contradict Rule 702, which states that if scientific or technical knowledge will help the trier of fact (the judge or the jury) understand the evidence or decide the facts of an issue, a qualified expert may testify. It’s possible Rule 702 could allow a witness to testify, while the Frye standard says the evidence isn’t generally accepted. So which one should a judge prioritize?

Luckily, Daubert created a bit more clarity. First, it clarified that Rule 702 was the decider of admissibility for expert testimony. It also made the judge the “gatekeepers” when it comes to expert testimony relying upon scientific evidence, and they had to decide whether evidence is scientifically reliable. But this left judges confused as to which practices to apply Daubert. This led to the amending of Rule 702, which laid more specific guidelines for applying Daubert and more specific guidelines for what to consider regarding admitting expert testimony. These guidelines aren’t meant for the judge to decide whether an expert’s conclusions are correct, rather whether they were reached used scientifically valid evidence and practices. Unfortunately, judges are not scientists and may not have the knowledge to properly decide when to admit evidence. Therefore, faulty forensic testimony is often still allowed.

This is not meant to be a comprehensive list of every law regarding expert testimony, but these are the major cases that litigate the issue. I’ve also been working hard on my final presentation and product, and I’m very excited to talk about what I’ve learned.

Monday, April 11, 2016

March 28-April1: Convicting the Innocent

Hello Readers,

This week I’ve been working on a case in the federal habeas process. I’ve been reading old briefs, familiarizing myself with news articles and other media on the case, and researching information on the experts who testified in the trial and appeals process. I also sat in on a phone conversation between Colleen and the client. Those interactions are important to me personally because it’s a reminder that false convictions are not just statistics; they’re real people with real lives facing dire consequences for crimes they did not commit.

I’ve also been reading some of Brandon L. Garrett’s Convicting the Innocent. This book explores the first 250 DNA exonerations in the United States and asks the question “What went wrong?” So far, I’ve only read the chapters relevant to my project, but it’s so interesting that I might just have to get my own copy and read the whole thing. The chapters I’ve read so far are his Introduction and his chapter titled Flawed Forensics. In the introduction, Garrett overviews all the mistakes made in the 250 exonerations. The mistakes he delves into are false confession, wrongful identification by victims or eyewitnesses, flawed forensics, criminal informants, and ineffective defense counsel.  

His chapter Flawed Forensics specifically explores what went wrong with the forensics in the relevant exonerations. One thing he says that particularly resonates with me due to the cases I’ve been working on with AIP was that he expected the analysts to do the best they could with the science and technology that they had. He expected the flawed results to merely be unavoidable mistakes due to unsophisticated science or limited technology. Afterall, these exoneration cases are decades old. But he was shocked to learn that “even by the standards of the 1980’s...forensics analysts should have know the evidence they presented was unsound.” This is also what I’ve found working at AIP.  In the case I spent all of February working on, the analyst who testified to the damning “scientific” practice that convicted AIP’s client had published work showing the practice to be unreliable. He knowingly hid this information at trial and testified to evidence he knew to be scientifically baseless. In the case I’m currently familiarizing myself with, the prosecution’s trial expert also has published work that contradicts the testimony he gave at trial against AIP’s client. Garrett goes into stories about forensics evidence that was “simply false.” It’s infuriating to think that some analysts taking the stand are knowingly distorting evidence, because by doing so not only are they putting the wrong people in jail, they are often protecting the guilty party.

Furthermore, many of these forensic practices have no scientific definition of consistent, meaning there is no agreed upon way to test or examine them and therefore they are completely subjective and based on the opinion of the individual analysts rather than scientifically sound evidence.  An example of this is bite mark comparison, which is a method formerly used to compare bite marks found on victims to teeth molds of suspects. Two years ago, I went to see Ray Krone speak, a man who spent ten years on death row for a murder that DNA later showed he did not commit. Bite mark comparison was the forensic evidence used to connect him to the crime. The problem with this practice is that whether the bite marks look alike, and how alike they appear to be, is completely up to the individual analyst. In fact, the prosecutors met with an analyst who said that the teeth molds from Ray Krone were distinctly different from the bite mark on the victim. This analyst was not called to testify at trial, and his opinion was not disclosed to the defense. Because of cases like Ray Krone’s, bite mark comparison can now only be used to exclude suspects (for example, if a bite mark on a victim had more teeth than a suspect, then that information could be used to show that suspect definitely is not the perpetrator.) It’s great that this progress is being made, but it came at the cost of Ray Krone and others spending decades in prison. And there are practices that are equally as subjective still being used today.

Even scientifically sound evidence is never completely infallible. The TED Talk I posted a few weeks ago goes into the mistakes that can lead to flawed DNA evidence (linked here: In his book, Garrett says that in 3 out of the 250 cases DNA wrongfully showed guilt. In these cases, one analyst did not finish this testing (which later showed the exoneree’s innocence), another analyst misrepresented the statistics, wrongfully saying the DNA found uniquely identified the defendant, and the other involved a laboratory error. That is not to say that DNA is not a highly sophisticated science; DNA is very important and it is much more likely that it will reveal the truth than cause a false conviction. In every single one of the exonerations discussed in this book, DNA ultimately freed these inmates. This is just a reminder that no evidence is perfect.

I think false convictions are often viewed as highly rare and the sacrifice we need to make to put the “bad guys” away. But this book offers insight into systemic problems that are certainly not uncommon and have most definitely affected more people than the 250 exonerees that this book covers. This is a complex topic that I will need more than one blog post to discuss. If you want to know more, please continue to follow my blog and consider checking out this book. Until next time.


Garrett, Brandon. Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Cambridge, MA: Harvard UP, 2011. Print.

Tuesday, March 29, 2016

March 21-25: Things Are Changing Again

Hello Readers,

As you may have noticed, once again the title of my blog has changed to more accurately reflect my project. But it feels like things are actually coming together. The work I’m doing is fascinating, but after a month at AIP, it felt like my project needed more focus. Colleen made a suggestion that really pulled everything together and pinpointed the true similarity in the cases I’ve been working: faulty forensic evidence in innocence cases.

Forensic science is science as it applies to law. In criminal cases this can include ballistics, DNA, toxicology, fingerprinting, and much more. These can all testified to by experts in criminal trials. But not all forensic sciences are created equal, and often these methods have no grounding in science at all, and are thus now becoming more accurately referred to as forensic practices. Misuse of forensic practices can often lead to false conviction. Even more sophisticated forensics, such as DNA, which is very well grounded in science, are subject to human error at the cost of innocent people. This is what I’d like to explore more with my project.

So, what happens from here? Well, my project doesn’t actually change all that much. I’ll be doing what I’ve been doing, but I’ll be honing in more specifically on the evidence used to convict, which in many cases is misused or faulty forensic science. This week I’ll be reading some chapters from Convicting the Innocent by Brandon L. Garrett, which generally explains forensics and I’ll update on how that goes next week.

Friday, March 11, 2016

March 7-11: Why It's Important

Hello Readers,

This week Colleen got a very exciting phone call from the client whose case I was working on. Basically, he was thrilled with the brief Colleen wrote (the one I helped with)! He says he’s going to frame it and read it every day. Obviously all the credit goes to Colleen on that one for being a phenomenal lawyer and writer. But to play a part in that (after hours of reading and rereading trial transcript, checking citations, and suggesting new ones)—I can’t imagine a more rewarding feeling. It’s just absolutely mind-boggling that an innocent man had spent all this time in jail, thinking he was guilty because of false evidence, and that I had the honor of playing even a small part in helping him.

We still don’t have the ruling from the court, but giving a client a chance to tell his story honestly and to make him feel validated and believed is a very proud moment for me. I’m incredibly impressed by Colleen, not to mention Cheryl Anaya, our Senior Legal Assistant. With just a few weeks at AIP, I imagine it’s very tough. There are a lot of cases that AIP can’t do much for; even if we believe they’re innocent, some cases are just harder to work with, and AIP has to turn down people who need help. But I got to help a real, live person. Another human’s life is changed for the better and I got to help with that, and for me that’s enough to know this project and people like Colleen and Cheryl are important.

This week I also watched this video:
 a Ted Talk on DNA evidence. More specifically, how DNA evidence fails. I highly recommend it. It’s interesting because DNA is seen as so infallible, and while it is a sophisticated science that is continuously improving, it’s not perfect. Juries are often told not to rely on one piece of evidence alone, but when it comes to DNA, if there’s evidence against you, that’s usually it. Things are never that simple though; if they were it wouldn’t be law.

Monday, March 7, 2016

February 29-March 4: Understanding the Processes So Far

Hello Readers,

The brief for the case I’ve been discussing over the past few posts is due this week, so all the work on that has been done by Colleen. By the time you are reading this, the brief has already been filed and our work for this case is complete for now.
So what have I been up to? My work has been a little different this week. I’ve actually been working on case intake for two Spanish cases that AIP has received. AIP receives letters and documents for cases, and we have to look over and decide what we can do for them. To do this, we look over everything we have for them and fill out a form with as much information as we can find regarding their case. I’ve been doing intake for two Spanish-speaking cases. This has definitely been a challenge because I do not consider myself fluent. That being said, it’s been a great way to brush up on my Spanish, and the second case was definitely easier to read than the first. Luckily, at this stage, AIP doesn’t need a perfect translation—we’re just seeking to get an initial understanding of what the prisoner says happened and how that compares to the (English-language) court documents. It’s been interesting to read these people’s stories and learn about the process that AIP goes through to take their cases.
Meanwhile, at my job as an assistant in a local law office, we’ve been preparing one of our cases for trial. I thought the timing of the trial and the due date to file the motion for our case at AIP was a great opportunity to compare processes. So this week I want to go over in more detail the difference between trials, appeals, and post-conviction relief.

Trial Law

Trial law is basically the first step in this whole process. I’ll be talking specifically about the criminal process because that’s what I’m familiar with. So, let’s say you are accused of a crime. A report is filed against you or a grand jury indicts you, and right away you have the option to plead guilty, not guilty, or sometimes, no contest. If you can’t afford a lawyer, you are provided a public defender or appointed lawyer. Then, most people choose to plead not guilty, at least initially. From there, your lawyer is going to start looking for all the information they can find that could show you are innocent or that could undermine the State’s evidence against you such that they cannot prove guilt beyond a reasonable doubt. Your lawyer will also be looking to make sure your constitutional rights were not violated and are not being violated. They’ll look for flaws in the arrest process, they’ll look for evidence of a culpable third-party, etc. Basically, they have to build a case from scratch. Meanwhile, the prosecution has already built their case against you, and may choose to continue to develop it further. Often, a defense lawyer will challenge the State at a preliminary hearing to prove that they at least have enough evidence to go to trial. This also allows the defense to get a preview of what the State’s evidence against them may be. If the case goes to trial, this will be the first time this case is presented to a jury.
However, most cases will not go to trial. Most people will take a plea agreement, which is when you agree to plead guilty to certain charges, usually in exchange for either lower charges or a lesser punishment.
But let’s say you and your lawyer and the prosecutor go through then entire process and you never plead out. You’ll go to trial, they’ll present all their evidence, and a decision of guilty or not guilty will be made either by a jury or a judge. That’s when the appeal process can start.

Direct Appeal

A direct appeal happens directly after a guilty ruling is made. When asking for a direct appeal, you’re basically asking to have a higher court re-examine the case in hopes that they will make a different decision about what evidence could be used against you, or whether the evidence against you was sufficient to convict you.
So, let’s say for whatever reason, you didn’t take a plea agreement and were handed a guilty verdict. Maybe you believe that with the evidence presented, the verdict was wrong. Or perhaps your issue is with the overly-harsh sentence rather than the verdict itself. Either way, you and your lawyers think something went wrong, and when convicted of a crime, you have the right to try and correct it.
In direct appeal, you are completely limited to whatever is on the record already from the trial process. You cannot bring in new evidence or take out evidence you don’t like, other than to argue that the trial judge illegally let certain evidence in or kept certain evidence out. For example, if an illegal stop and search came in through a trial judge, you could argue in appeals why the evidence used in the illegal search shouldn’t have been relied upon.You can make different arguments, such as saying the evidence used shouldn’t have been given credibility, but overall you’re very limited in what else you can say. Because of this, arguments made during appeals typically question the legality of various rulings or the sentencing, rather than the facts of the case. If, for example, you wanted to bring in a newly discovered DNA test, you would have to petition for PCR.

Post-Conviction Relief

PCR happens after the direct appeal process. The difference between appeals and post-conviction relief (PCR) is still a bit confusing to me, but my understanding is that PCR is a legal process that allows a convicted prisoner to bring in new evidence or to challenge the constitutionally of the process that convicted them (e.g., to argue that their lawyer didn’t adequately defend them, so their constitutional right to a lawyer was violated). So, if new information is found, if the law changes, if a credible claim that a defense lawyer was inadequate, etc., then an evidentiary hearing is held to present the new information. This is overseen by the original trial judge (not an appellate court) and that judge makes a ruling as to whether they will grant relief. Relief can include a new trial, release from prison, and more. It just depends on the circumstances.
In PCR, you have to create a new record, basically. The only evidence that can be used is the evidence from the PCR evidentiary hearing. From there, you can go through a new appeals process, but you can only use the record created by the evidentiary hearing to debate whether your PCR should have been granted (i.e., you can’t usually re-argue things from your direct appeal).

This is complex topic, and there’s so much more I could talk about, but these are my general understandings of the process for now. I hope this makes things easier when reading my blog and understanding my project. I’m excited to start work on other PCR and appeals cases next week.