Kansas Bill Allows Forensic Scientists to Avoid Proper Qualification and Subvert Due Process

by Brent E. Turvey, MS

This week, legislators in the State of Kansas passed a bill that would allow crime lab reports to be entered into evidence during court proceedings without need of courtroom testimony from those who wrote them (reported in Lefler, 2011). Kansas House Bill No. 2057, by the Committee on Corrections and Juvenile Justice, provides forensic scientists working for the state with not only a blanket presumption of credibility and expertise, it also sets in place a barrier to proper expert qualification.

There are several problems with this. First, it violates the defendant's Constitutional right to due process. Second, it ignores the U.S. Supreme Court's decision in Melendez-Diaz regarding the defendant's right to confront their accuser, requiring that forensic scientists be present when their report's are entered into evidence. Third, it provides a presumption of credibility of expertise that allows crime labs to shield inept or fraudulent examinations and examiners. And finally, it leaves the interpretation of forensic reports up to the one introducing it - likely a prosecutor. Let's consider each of these briefly.

DUE PROCESS

The Fourteenth Amendment to the United States Constitution provides that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." As discussed in Turvey and Petherick (2010), due process is essentially a fairness requirement. Any condition or treatment that tends to bias a judge, jury, or the process as a whole in favor of the state is considered in violation of due process. Ideally, citizens may only be tried and punished for crimes alleged by the state under the most impartial and unprejudiced conditions. Common examples include things like inadequate or incompetent defense counsel, access to legal counsel or private forensic experts, and failure to disclose exculpatory evidence or witnesses. In reality, the government has more money, more resources to draw from, and often benefits from a presumption of guilt held by ignorant and even partial jurors. Even under the best of conditions, due process is an ideal rather than a reality.

To abide the mandates of due process, scientists employed by the government must conduct forensic examinations in such a way as to be transparent in their methods and findings. As explained by the National Academy of Sciences (Edwards and Gotsonis, 2009; pp. 6–3):

"As a general matter, laboratory reports generated as the result of a scientific analysis should be complete and thorough. They should describe, at a minimum, methods and materials, procedures, results, and conclusions, and they should identify, as appropriate, the sources of uncertainty in the procedures and conclusions along with estimates of their scale (to indicate the level of confidence in the results).

Although it is not appropriate and practicable to provide as much detail as might be expected in a research paper, sufficient content should be provided to allow the nonscientist reader to understand what has been done and permit informed, unbiased scrutiny of the conclusion.

Some forensic laboratory reports meet this standard of reporting, but most do not. Some reports contain only identifying and agency information, a brief description of the evidence being submitted, a brief description of the types of analysis requested, and a short statement of the results (e.g., “The green, brown plant material in item #1 was identified as marijuana”). The norm is to have no description of the methods or procedures used, and most reports do not discuss measurement uncertainties or confidence limits. Many disciplines outside the forensic science disciplines have standards, templates, and protocols for data reporting. Although some of the Scientific Working Groups have a scoring system for reporting findings, they are not uniformly or consistently used.

Forensic science reports, and any courtroom testimony stemming from them, must include clear characterizations of the limitations of the analyses, including associated probabilities where possible. Courtroom testimony should be given in lay terms so that all trial participants can understand how to weight and interpret the testimony. In order to enable this, research must be undertaken to evaluate the reliability of the steps of the various identification methods and the confidence intervals associated with the overall conclusions."

In other words, notes and reports must be discovered to the defense in a timely fashion prior to trial. Scientists must willingly make themselves available to the defense for pretrial interviews about their methods and findings. They must not withhold, conceal, or distort their methods and findings—especially if their findings tend to exculpate or exonerate the defendant. And generally they must treat the prosecution and the defense equally—even if the police department or prosecutor’s office signs their paycheck.

But, as determined in the investigation of forensic science conducted by the National Academy of Science quoted above, most forensic science reports don't accomplish this. Consequently, the only way for due process to even have the chance of prevailing is for the forensic scientist to show up in court with their report in order to explain what's missing from it, and what it means. Science, it must be understood, cannot be taken at face value. It's reliability is found only in the details regarding procedures and methodology that are regularly omitted from such reports.

MELENDEZ-DIAZ

In Melendez-Diaz v. Massachusetts, the United States Supreme Court held that "Under Crawford, a witness’s testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination." It further held that forensic scientists, and their evidence examination reports, are not exempt from this requirement. If a forensic science report is to be admitted, it must be accompanied in court by the actual forensic scientist who wrote it so that they might be questioned as to issues regarding its origins and reliability. They cannot simply send a crime lab report to be accepted and believed without a real live person there to vouch for what's written in it.

UNEARNED CREDIBILITY AND EXPERTISE

One of the necessary safeguards for incompetent or inexpert testimony is expert voir dire. Before a forensic expert may give testimony in court regarding any expert findings or opinions, they must first be qualified by the court as an expert, based on their education, training, or experience (and then their testimony must deemed properly admissible, which is strictly a legal question). During voir dire, the forensic expert is presented to the court by the side that has called them to testify; they are asked questions regarding their qualifications in direct examination; they are then challenged regarding their qualifications under cross-examination by opposing counsel and the court. This is true whether one is testifying on behalf of the prosecution or the defense.

Now,it is a well known fact that judicial rulings regarding who is, and who is not, an admissible expert are generally biased in favor of the prosecution, as discussed in Moreno (2004):

"Judges routinely admit expert testimony offered by prosecutors, but frequently exclude expert testimony offered by the defense. A review of federal criminal court cases reveals that 92% of prosecution experts survive defense challenges while only 33% of defense experts survive challenges by federal prosecutors. A recent study of federal appellate criminal cases found that more than 95% of prosecutors’ experts are admitted at trial, while fewer than 8% of defense experts are allowed to testify. Why do judges consistently fail to scrutinize prosecution experts? Maybe it is the uniform. The most common prosecution expert witness is a police officer or a federal agent. In state and federal criminal trials, law enforcement experts are routinely permitted to testify to opinions and conclusions derived from their on-the-job experience and personal observations. Prosecutors rely on police officer experts most frequently in narcotics cases. In drug cases, law enforcement experts are often asked to interpret ambiguous words or phrases used by the defendant and/or his coconspirators. The purpose of, and problem with, this expert testimony is that it tells jurors precisely which inculpatory inferences they should draw from the factual evidence."

While this might not seem immediately relevant in the Kansas decision, we should pause to note that many of the forensic scientists working in that state are in fact employed directly by law enforcement agencies. In any case, Kansas House Bill No. 2057 provides absolute cover from the voir dire safeguard by fast-tracking the admission of state sponsored expert findings. Like a stack of blank arrest or search warrants that have pre-signed by a judge, the problem of pre-endorsing expertise assumes too much and would encourage the worst practices. It assumes unbiased competence, as well as proper levels of education and expertise, on the part of state employed forensic scientists.

The ability to confront forensic scientists about their qualifications has uncovered enough outright state sponsored fraud that it must be protected as an invaluable tool for justice - not discarded for the sake of expediency. Frankly, this level of confidence has not been earned by the current forensic science community. As found in Turvey (2003), when forensic fraud occurs it is generally on behalf of the state (85% of the time); and as the many crime lab scandals have taught us, notions of forensic competence are often misplaced in what is widely regarded as a biased and broken forensic science system (Edwards and Gotsonis, 2009). To be very clear, presuming that those employed by the prosecution are inherently credible further tips the balance of the courtroom against the defendant, and slaps the notion of fairness across the face.

OPEN TO INTERPRETATION

Forensic science reports often contain language or findings that require explanation in order to be meaningful in a given case. This can include terms of art, or limitations of methodology, or opinions that may not be made perfectly clear in the report itself. Submitted and accepted without explanation, such reports can be extremely dangerous, and may even be abused. In the absence of a forensic scientist in court to explain the meaning of findings to judges and juries, the interpretation is left for attorneys to argue. Or worse, for prosecutors to craft and elicit from non-scientist witnesses, proving an improper veneer of authority. Anyone who argues against this point has not spent any time in court paying attention to how forensic findings are used against witnesses and in opening and closing statements. Misrepresenting findings, misstating them, and worse are quite frankly common place.

Given these issues, it hardly seems likely that Kansas House Bill No. 2057, or any similar legislation, should have been drafted at all. That it was put on paper and then passed Senate approval suggests a deep ignorance of forensic science related law and the current culture of problems in the forensic science community. It most certainly will result in challenges, and is likely to result in a multitude of overturned cases at appeal if trial judges abide. Ultimately, such a waste of the appellate court's time will cost far more than the resources that 2057 was allegedly intended to save.

REFERENCES

Edwards, H. and Gotsonis, C. (2009) Strengthening Forensic Science in the United States: A Path Forward, National Academies Press, Washington D.C.

Lefler, (2011) "Bill lets forensic experts report in writing, skip testifying," The Wichita Eagle, March 10.

Moreno, J. (2004) "What Happens When Dirty Harry Becomes an (Expert) Witness for the Prosecution?" Tulane Law Review, Vol. 79, November; pp.1–54.

Turvey, B. (2003) “Forensic Frauds: A Study of 42 Cases,” Journal of Behavioral Profiling, 4(1).

Turvey, B. and Petherick, W. (2010) "Cognitive Ethos of the Forensic Examiner," in Forensic Criminology, San Diego: Elsevier Science.