Seminar: Ethically Litigating Forensic Science Cases: Daubert, DNA and Beyond

Making Mitigation Work at Every Stage of the Case

My powerpoint presentation delivered at "Death is Different" in Orlando, Florida on March 7th, 2014, can be found here.

A Texas law allows defendants to fight bad forensic science.

Scientific evidence can be the most convincing element of a criminal trial. But sometimes it's wrong—and for the first time, a state's justice system has recognized that and adjusted accordingly.

Important decision on impact of flawed forensic science and ineffective assistance of counsel

This United States Supreme Court decision is rather straight forward but the overall discussion provides
insights into the development of flawed forensic science claims during post-conviction relief focused on ineffective assistance of counsel.

Forensic Science Training in Florida

    I was fortunate to attend the “Daubert Litigation Training for Florida Criminal Defense Attorneys” held January 31, 2014 in Orlando. The seminar was sponsored by the Innocence Project of Florida, the Florida Association of Criminal Defense Lawyers, and the Florida Public Defender Association.

   Seth Miller put together this seminar in a creative manner. First speaker Joe Sanders is a Plaintiff’s consumer attorney who has litigated Daubert issues in a variety of contexts. His presentation contained a wealth of useful material. Keith Findley, Director of the Wisconsin Innocence Project, gave a comprehensive history of the rise and fall of the “Shaken Baby Syndrome.”  Carrie Sperling from Wisconsin had many helpful pointers about what should be included in a Daubert motion and hearing. And Ernie Chang knocked ballistics and firearms evidence out of the park. The litigation that he described sets the new standard for effective assistance of counsel in any case where firearm or tool mark identification is at issue.

    When we think about the three sponsoring organizations we tend to focus on the day to day defense of individual clients. This conference showed how influential our work is to overall criminal justice reform. So called experts have been testifying to made up “facts” and unproven theories for too long. I really appreciate that we now have an opportunity to meaningfully challenge false forensic science evidence.

Do Police Interrogation Techniques Produce False Confessions?

In “The Interview” (p. 40), Douglas Starr examines the Reid Technique of interrogation, and investigates whether it can prompt innocent people to confess to crimes they didn’t commit. The Reid Technique, Starr writes, “has influenced nearly every aspect of modern police interrogations, from the setup to the interview room to the behavior of detectives.” Police forces, the military, the F.B.I., the C.I.A., the Secret Service—“almost anyone whose job involves extracting the truth from those less than willing to provide it”—have been trained in the method. John E. Reid & Associates, named for the method’s founder, claims that its trainees can get suspects to confess eighty per cent of the time. “A growing number of scientists and legal scholars, though, have raised concerns about Reid-style interrogation,” Starr writes. “Of the three hundred and eleven people exonerated through post-conviction DNA testing, more than a quarter had given false confessions—including notorious cases, such as the Central Park Five.” The full extent of the problem is unknown—there is no national database of wrongful convictions. “But false confessions, which often lead to these convictions, are not rare,” Starr writes, “and experts say that Reid-style interrogations can produce them.” 

The Reid Technique begins with an interview based on the questioning style of polygraph testing. If a suspect is thought to be lying, the interrogator proceeds to the method’s second phase, in which he seeks to present the accused’s guilt—bluffing about evidence, if need be—to garner a confession. The leading expert on false confessions, Saul Kassin, “believes that the Reid Technique is inherently coercive,” Starr writes. “The interrogator’s refusal to listen to a suspect’s denials creates feelings of hopelessness,” and the confession becomes an escape hatch. One former homicide detective, who used the Reid Technique for years, began to doubt its credibility after he led an investigation that resulted in an innocent woman confessing to being an accomplice to murder. He was mystified, but when he reviewed the tapes later he discovered ways in which he and his partners fed incriminating details to the suspect. His subsequent research into false confessions led him to an alternative to Reid-style interrogations, called the PEACE technique, widely used in Britain, which instructs police not to seek confessions at all but, rather, to gather evidence and information, almost as a journalist would. Bluffing is prohibited. “I think the Reid Technique was a child of its time,” one of the psychologists who developed the PEACE technique says, noting that science has moved on. Starr reports that “some American law-enforcement officers are trying to develop approaches similar to PEACE.” While Kassin—who has spoken to many police departments and prosecutors’ offices—notes that interrogation can be improved in the U.S., he holds out little hope that it can be overhauled entirely. Starr writes, “The culture of confrontation, he feels, is too embedded in our society.” Please see this link; A PDF is attached: http://nyr.kr/Ik2gxp

How DNA contamination can affect court cases

How DNA contamination can affect court cases is the title of this important article published in 2012.