Cross-Examining Forensics

The Supreme Court says that forensics analysts can be cross-examined...for now.

Radley Balko | August 10, 2009

On June 25, in a late-term, 5-4 ruling marked by unconventional alliances and sharp disagreement between the justices, the U.S. Supreme Court decided in Melendez-Diaz v. Massachusetts that the Sixth Amendment's Confrontation Clause requires forensic experts whose reports are admitted into evidence to be made available for cross-examination. You might have already thought that you had the right to challenge a witness who offers powerful evidence of your guilt. But until six weeks ago, that wasn't the case in many states.

Defense attorneys and critics of the forensics system were celebratory, but they might want to check next term's docket. Just before it recessed, the Court agreed to hear a case from Virginia with very similar issues at stake. The unusual move has some Court watchers speculating that the minority in Melendez-Diaz may see former prosecutor and new Associate Justice Sonia Sotomayor as an ally. Her vote could give them a majority for a reversal or a significant limitation of last term's ruling.

Melendez-Diaz v. Massachusetts allows defense attorneys to question the authors of forensics reports about their methodology and to probe those authors' testimony for possible errors. A faceless analysis that cites a 99 percent or higher probability of a forensics match can lose some of its punch if the author can be questioned in front of a jury about the possibility of bias or human error.

The basic problem with courtroom forensics is that there's too much bias and prejudice in the analysis for it to be classified as science. Peer review, for example, forms the very foundation of scientific inquiry, but it's mostly absent from forensic analysis. Scientists go to great lengths to insulate themselves from bias, such as conducting double-blind studies. Forensic analysts, on the other hand, routinely meet with the attorneys for whom they'll be testifying before conducting their examination. One 2006 study by researchers at Britain's University of Southampton found that fingerprint analysts were twice as likely to find false matches when they were given extraneous information about the case.

In a recent cover story on forensics, Popular Mechanics summed up the problem: "Forensic science...was not developed by scientists. It was created by cops—often guided by little more than common sense—looking for reliable ways to match patterns from clues with evidence tied to suspects. What research has been done understandably focuses on finding new techniques for putting criminals in jail." In other words, where science is about process, forensics tends to be more concerned with outcomes.

Yet in courtrooms forensic evidence is usually presented as hard science, giving it a false authority that can have a powerful influence on jurors (particularly those who watch the various CSI series on television, where the well-funded, high-tech labs always identify the killer by the end of the hour). A congressionally commissioned report published earlier this year by the National Academy of Sciences found that across all forensic specialities, from medical examination to fingerprinting to hair and fiber analysis, not only does the methodology often lack scientific rigor, examiners commonly exaggerate the certainty of their findings on the witness stand, or testify to findings that have no basis in science at all. The Innocence Project estimates that half of all wrongful convictions are at least partly due to faulty forensic science.

The Melendez-Diaz decision recognized these problems. "A forensic analyst responding to a request from law enforcement may feel pressure—or have an incentive—to alter evidence in a manner favorable to the prosecution," Justice Antonin Scalia wrote in the majority opinion, adding, "Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well."

The decision didn't mandate that states change the underlying systemic problems with forensics that give rise to bias and improper incentives in the first place. It merely gave defendants the opportunity to raise these issues in court. But even that modest reform has the old guard up in arms. Last month, the Washington Post reported that all across the country, Melendez-Diaz "has prosecutors and judges shaking their heads in disgust," issuing dire warnings that "murderers could walk free" and "drunken driving cases could be dismissed." Lab workers just don't have time to traipse off to court to defend their results, the officials complain.

That's too bad. But the Bill of Rights protects us from government overreach. To say we should suspend constitutional protections because keeping them in place would prove inconvenient to the government rather misses the point. If there aren't enough analysts to both work the lab and testify in court, states will either have to budget more money for forensic analysis, or prosecutors will have to start prioritizing cases with the budgets they have. If the criminal justice system has adapted to new technology in a way that doesn't pass constitutional muster, it simply needs to change.

For example, the Post notes that an amicus brief written for the Melendez-Diaz case by a group of state attorneys general explained that the vast majority of crime-lab work involves testing for drug cases, and warned that a decision mandating confrontation could mean that more of those cases come to trial. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," the brief warned. Perhaps, then, prosecutors should stop devoting so many resources to consensual crimes. That would free up analysts to work on crimes that have actual victims.

If the Court significantly narrows the scope of Melendez-Diaz next term, the complaining judges and prosecutors may yet get their way. That's good news if you're merely concerned with efficiency. It's less reason to celebrate if your concern lies with the Constitution, or with ensuring a fair trial.

Radley Balko is a senior editor at Reason magazine.

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William|8.10.09 @ 3:02PM|#

Radley, my boy, you should bring the same high standards to the global warming issue. Who's that Danish non-scientist "expert" you libertarians are so fond of?

|8.10.09 @ 3:06PM|#

I can't recall, William, just like I'm drawing a blank on the name of the plus-sized expert from Tennessee who lectures all over the world about climate change and the apocalypse.

|8.10.09 @ 3:11PM|#

I think you should put "from Tennessee" in quotes. Like I just did.

Tennessee Tuxedo|8.10.09 @ 3:12PM|#

"I can't recall, William, just like I'm drawing a blank on the name of the plus-sized expert from Tennessee who lectures all over the world about climate change and the apocalypse."

You leave Chumley out of this.

|8.10.09 @ 3:14PM|#

That picture remids me of the olden days, when i still read the NYT.

|8.10.09 @ 3:15PM|#

Who's that Danish non-scientist "expert" you libertarians are so fond of?

I don't know. I know of a statistician that gets cited a lot, though. I know too many biologists to trust them to understand statistics.

|8.10.09 @ 3:32PM|#

Wow, what a bunch of political mumbo jumbo!@

RT
www.anon-web-tools.net.tc

LOL, the Supreme Kangaroo Court, what a pathetic joke they are.

RT
www.anon-web-tools.net.tc

Xeones|8.10.09 @ 3:33PM|#

Anonymity guy is tweaking. Somebody calm him down.

Wicks Cherrycoke|8.10.09 @ 3:40PM|#

Interestingly, Souter voted with the 5-4 majority in Melendez-Diaz, so Sotomayor could affect the result next term in the Virginia case.

Spartacus|8.10.09 @ 3:42PM|#

"Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," the brief warned.

We must take pity on law enforcement for their oppression. I say we should just do away with this whole "trial" nonsense and go straight from arrest to sentencing.

|8.10.09 @ 3:43PM|#

The upper case "O"'s in his name just make me want to kill him more. A lot more. THEY'RE TAUNTING ME

Federal Dog|8.10.09 @ 3:59PM|#

I do not think that the Post article represents the issue in Briscoe correctly. It's not so much whether a notice and demand statute is unconstitutional (Melendez-Diaz does not rule that out). It's whether the state can be relieved of its burden of producing the analyst for cross by allowing the defendant to call that person as his own witness.

The distinction is important. If the defendant demands the right to cross-examine the analyst, and the state is obliged to produce the analyst for that purpose, any delay is attributable to the state. For that reason, undue delay in producing the analyst for trial can, past a certain point, offend speedy trial guarantees.

If, by contrast, the defendant is obliged to call the analyst as his own witness, any delay is attributable to the defendant. No matter how long that delay is, since the defendant is causing it, there is no violation of his rights to a speedy trial. That guy can languish indefinitely in prison while waiting for the analyst -- or simply opt to waive the substantial defense of subjecting that analyst's evidence to adversarial testing.

That sound you hear is the world's tiniest little violin playing for the prosecution. They want to prosecute every minute drug case -- usually with an eye to grabbing up assets via forfeiture proceedings -- and are whining that they are now expected to actually put key witnesses on the stand.

Well, cry me a river. This is not about their bloody convenience or profit. They've gotten away for a very long time with promiscuous and indiscriminate prosecution, and they didn't even have to produce the key witness -- just file a piece of paper. Now they're sniveling at the thought of actually having to mount a case.

Ratdog|8.10.09 @ 4:50PM|#

Generally speaking, we Americans have become some the most scientifically retarded people in the world. It's a little surprising we've come to a point where the authority of junk science pushers is unquestioned by so many, given the attitudes of suspicion towards science that was being pushed in media when I was born in the middle of the last century, when scientists were often portrayed as evil men using scary science to try to either enslave or destroy the world. Today Americans generally pay no mind to legitimate science, yet are willing to enslave us all in the name of their junk science religion of global warming, or just as equally willing to take someone's freedom or even their life on evidence provided by pseudo-scientific crime labs. Man, it's just so easy when it's someone else dying or having their life jerked away from them, huh.

|8.10.09 @ 4:50PM|#

If, by contrast, the defendant is obliged to call the analyst as his own witness, any delay is attributable to the defendant.

Correct me on this, but if the defense issues a subpoena for a witness, and the witness defies the subpoena by not showing, the witness can be jailed for contempt of court.

So I'm not seeing how the forensic analyst blowing off their court appearance and forcing the defense to waive cross examination is really much of an option here.

Federal Dog|8.10.09 @ 5:13PM|#

Well, if you can establish defiance, yeah, you might be able to get a sanction. But you will never be able to show that: They will show good cause for delay. They will simply argue that they have many other obligations to many other courts, they cannot be everywhere at once, and they will get to your case as soon as that is feasible.

So the guy waits. Or waives.

|8.10.09 @ 6:14PM|#

I see what you're saying, F-Dog.

It'll be interesting to see how this goes down. I guess the question is whether the judge is obligated to uphold a defense objection to authenticating the forensic evidence via affidavit, so that the only way the forensic evidence gets in is if the forensic witness takes the stand.

qwerty|8.10.09 @ 8:19PM|#

Let me guess: It was Scalia, Thomas, Ginsburg, Stevens, and Souter. These same 5 justices have made a lot of libertarian rulings when it comes to legal defence issues. Yeah, it does look like Sotomayor will rule with the other four. I'm no fan of Ginsburg, Stevens, and Souter, but at least they get these types of cases right. Sotomayor will rule the wrong way on every single case.

PS: I love the quote "Lab workers just don't have time to traipse off to court to defend their results, the officials complain." That says it all. They have the time to convict people, but not the time to prove that the convictions are legitimate. Here's an idea: take 0.01% of Obama's stimulus bill and hire more lab workers.

BruceM|8.10.09 @ 8:34PM|#

Sotomayor will side with the prosecution/state EVERY single time. It boggles my mind that Democrats would blindly support her nomination. This is the problem with identity politics. Women and hispanics can masturbate to glorious visions of progress while the actual principles of the Democratic party get flushed down the toilet. Surely someone could have found a lesbian, hispanic jew with a physical disability who is NOT a former prosecutor.... Then everyone could feel good.

|8.11.09 @ 1:10AM|#

In fairness, we don't know what Justice Sotomayor will do. Sen. Amy Klobuchar (D-MN) was the only one to bring up the issue at the hearing, and she did it in a "I'm sure you agree that Melendez-Diaz is terrible for prosecutions, will cause chaos, and should be reversed."

Sure, VP Biden is telling everyone that she'll be pro-prosecutor, but we really don't know.

Federal Dog|8.11.09 @ 7:43AM|#

"Here's an idea: take 0.01% of Obama's stimulus bill and hire more lab workers."

Here's an even better idea: Stop indiscriminately criminalizing completely consensual adult activity in the name of seizing assets to which the state has no legal or moral right. If the so-called "war on drugs" went the way of alcohol prohibition, getting lab technicians into court for other cases of legitimate legal concern (e.g., rape, murder, etc.) would be no problem.

|8.11.09 @ 8:41AM|#

I work as a computer forensic investigator in a lab that serves individual, corporate and government clients on both sides of the aisle in civil and criminal cases.

The nature of our work means that we will testify in virtually all cases that end up going to trial - and rightly so. I think that the general public has a great misconception regarding many types of "forensic evidence" submitted to the court.

If a lab technician submits a report stating: "Substance tested positive as cannibis" but that person has no idea how the test works, whether it's accurate, whether it was properly performed and so forth - then it should be given appropriate weight in the mind of the jury.

Under the current system, a lab report is a fact in the mind of the jury. This position is only strengthened when the defense attorney is diligently challenging every live witness but "accepts" lab reports by not challenging them.

This is a good and necessary change that moves us closer to the ideal of the adversarial justice system.

|8.11.09 @ 9:06AM|#

A dozen Supreme Court rulings won't have half the impact a single episode of any of the CSIs where the forensic team gets it wrong and convicts the wrong person.

|8.11.09 @ 9:11AM|#

billo|8.11.09 @ 9:51AM|#

Speaking as a forensic pathologist, I think this is great. As medical rather than traditional "forensic science" folk, we are almost always called to give expert witness on the cases we work on, and are often cross examined at length. For civil service pathologists, it's just part of the job. The only time this has been an issue has been when we change jobs.

About a year ago, for instance, I moved into academe in NC from a more standard ME office in GA. Most states allow another pathologist from the office, ususally the Chief ME, to testify about the autopsy if the original prosector has moved away or died. The Georgia Supreme Court declared some years ago that it was necessary to produce the actual prosector. Thus, for every case GA wants to prosecute that I worked on, they have to fly me back to GA.

But even better, since I'm no longer a state employee, they have to pay me expert witness fees. Suddenly, I have a bunch of cases that are, essentially, private consults. It's great. And the university *has* to give me time off to do it because it's a subpoena and the Marshals will grab my ass if I don't show up.

Most non-medical forensic scientists and technicians are not private or contract employees, so forcing them to show up for trial (which is also standard in Georgia) is just part of their job. The cost of hiring a zillion more forensic scientists is nontrivial, but since we seem to think we have unlimited funds for unlimited things, I guess a few billion here or there won't matter.

There is a movement, however, to separate these labs from the goverenment altogether -- not just from law enforcement, but to make them contractors. In the ME world, for instance, Bruce Levy has been very successful transforming much of TN into contract work, and may be transforming MS similarly.

If forensic labs go private, then they will also be able to charge expert witness fees for testimony. It won't just be a matter of civil service salaries. Cha ching. But then, as Mr. Balko points out, money is no object, right? And if the government can't afford to prosecute a few murders here and there, then so be it.

As an aside, how does this ruling affect cases in which the examiner dies? If defense counsel can delay a trial long enough and something happens to an examiner, does the defendant get a pass?

Federal Dog|8.11.09 @ 9:53AM|#

parse:

The basic distinction is that on cross, the questions can be leading, while on direct they can't.

A leading question is basically counsel making a statement and asking the witness to either confirm or deny it. Example: "Isn't it true that you never saw Mr. Doe at the scene? Yes or no?"

On direct, the question would be: "What, if anything, did you see?"

Cross therefore allows counsel to get specific facts into evidence that are not favorable to the side that called the witness to the stand: Counsel is stating what he wants to get into evidence, and that fact enters into evidence via the witness's response. That way, even if the witness does not offer the information up on direct (because he controls the extent of information that he conveys), counsel can still force that person (absent perjury) to admit facts favorable to the defense.

The same kind of leading questions can be posed to a witness even on direct examination, but only if the court declares the witness "hostile." That is, even though counsel called that person to the stand, that person is clearly not cooperating by conveying evidence that counsel wants to get before the jury (as a witness normally would do on direct).

The witness would have to do something that openly signals that he is adverse to the party who called him (e.g. refuse to answer; state fragmentary information; etc.) before the court would do that and allow leading questions. If the court makes that declaration of hostility, questioning would proceed just like it does on cross, and counsel would simply state facts that he wants to get before the jury and force the witness to either confirm or deny them.

The basic question here is when the Sixth Amendment states that criminal defendants have the right to confront witnesses against them, is the state required to produce them for that confrontation?

Federal Dog|8.11.09 @ 10:01AM|#

"And if the government can't afford to prosecute a few murders here and there, then so be it."

This is preposterous. It simply means that the state, realistically, can no longer indiscrimately prosecute thousands of drug possession cases via ex parte affidavit. They'll just have to decide whether prosecution of murder, or of possession of a couple of joints, is a worthier use of scarce state resources.

I don't see much of a question there.

skr|8.11.09 @ 11:17AM|#

For some reason, I am thinking about the Law of Marginal Utility. Maybe there is a reason, besides the fear factor, for suggesting murderers will go free.

Police Chief: "As everyone knows, we are facing a budget crisis. And now the ME has to show up in court and defend their findings. This is going to cost some dough. The good news is that violent crime is down. So we can afford a slight uptick in the numbers without me losing my job. Thank goodness that we can roundup all those addicts and take their assets. Just last week we pulled in three mustangs. Now we can shift some of that money to salaries. So get out there today and make some money for the department."

Bill Turner|8.11.09 @ 12:12PM|#

This is an excellent article. One of the things that came to mind for me while I read it was that law enforcement also has a monopoly on the crime scene until they complete their investigation. This allows them to "sculpt" the view of the scene. I'm not suggesting that all cops are evil, but we humans tend to frame the world around us based on our experiences.

A police officer will view a restaurant in a completely different way than a food critic. Similarly, a scientist would view a crime scene in a completely different way than a police officer would. If you put a statistician on a crime scene, his assessment would be based on different set of criteria that many law enforcement officers wouldn't even think about considering.

Allowing the defense "complete" access to the facts is the only fair way to eliminate mistakes. I'm not suggesting that, for instance, we keep a convenience store closed until we find a suspect - of a shooting in it - to keep the crime scene pristine. That would be unfair to the store's owners.

But allowing a suspect to access all of the data collected in the convenience store at the crime scene is a fair outcome. Since most suspects can't fund a complete forensic analysis (as I would not be able to do), cross examining a state funded scientist is a fair idea.

Again, thanks for a thought provoking article (and true journalism).

Tom|8.11.09 @ 1:13PM|#

"Perhaps, then, prosecutors should stop devoting so many resources to consensual crimes."

There's the real reason for the author's delight in this decision, not the announcement of a confrontation right that somehow eluded the notice of the Supremes until these 5 "discovered" it.

But hey, if it might help us toke up a little easier, I'm all for it dude!

Federal Dog|8.11.09 @ 1:20PM|#

So, Tom, you're completely unfamiliar with Crawford v. Washington -- not to mention the Sixth Amendment?

Federal Dog|8.12.09 @ 9:21AM|#

If billo is still around, here is an excellent account of the promiscuous and indiscriminate squandering of scarce resources that I am talking about:

http://www.reason.com/blog/show/135365.html

The only reason they can get away with this is because up to now, they have not been obliged to produce witnesses necessary to make the charges stick -- all they've had to do is file a piece of paper.

Unfair. Unacceptable. Unconstitutional.

billo|8.13.09 @ 10:29PM|#

"If billo is still around, here is an excellent account of the promiscuous and indiscriminate squandering of scarce resources that I am talking about:"

Whatever. The State will spend its money on whatever it thinks is important. The war on drugs will stop when people vote for it to stop, and it will continue as long as being "tough on drug traffickers" is a vote-getter.

The bottom line is that all of this is predicated on the idea that process costs are irrelevant. All lawyers and judges think so. Government paying for prosecution is like government paying for health care -- when it's something you care about, cost is always irrelevant.

And don't get me wrong. I'm all in favor of high standards, all sorts of restriction on trade and testimony, the whole shebang. Set the standards high and require as much infrastructure and staffing as possible. Go for it.

It's money in my pocket. The last I heard, for instance, was that if the government required that board-certified forensic pathologists performed all medicolegal autopsies, it would require around a thousand or 1200 board certified MEs (that's off the top of my head and I can't cite the study). Since there are about 450 of us who are board certified and practicing, that kind of demand will do *wonders* for my salary.

They actually tried that in Texas -- a few years ago TX passed a law stating that all ME offices had to be staffed by board-certified FPs. There was a great sucking sound as TX started hiring all the board-certified folk in the nation. Salaries shot up. It was great. So they repealed the law. Bummer.

And the same thing's true when applied to more traditional forensic scientists. I agree with the folk at Reason -- this is no place for libertarian principles! The more government regulation and oversight the better!

Cha Ching!

billo|8.13.09 @ 10:42PM|#

"The same kind of leading questions can be posed to a witness even on direct examination, but only if the court declares the witness "hostile." That is, even though counsel called that person to the stand, that person is clearly not cooperating by conveying evidence that counsel wants to get before the jury (as a witness normally would do on direct)."

Actually, in my experience, counsel can get away with in on direct even with an expert witness not declared hostile as long as they are willing to take an objection. I've been in the position of not saying something counsel really wanting me to say, and having them play this game:

Q: And were there wounds other than the stab wound to the chest?

BILLO: There were incised wounds on the hands and forearms.

Q: And how do you normally describe those wounds.

BILLO: Er, incised.

Q: Any thing else?

BILLO: Er, sharp force injury?

Q: Dr. Billo, is it not true that these are commonly called defensive wounds?

Mr. A: Objection! Leading the witness!

Judge: Sustained.

Q: Rephrase the question, your honor. Dr. Billo, is there not some way forensic pathologists commonly describe these wounds in terms of how they were caused?

BILLO: Um, we often call them defensive wounds...

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