Wednesday, December 23, 2009


"Forensic methods have been developed over time, guided more by law enforcement than by scientists. A wrongful conviction based on flawed evidence is a life thrown away, a family destroyed. The American system of justice must have the integrity that the Constitution demands by elevating the quality of forensic science to the professional level every citizen deserves."



BACKGROUND: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.


"Forensic evidence is fundamental to the foundation of much of the U.S. criminal justice system," the release from the law office of Patrick J. McLain, issued on December 11, 2009, under the heading "Forensics Evidence in Texas: A Foundation Shattered" begins.

(A sub-heading tells us, "Forensics is part of the foundation of our criminal justice system. Recent developments, though, have shaken the foundation of much of the forensic evidence used in criminal trials.")

"Scientific analysis of physical evidence of crime has produced evidence that has put many citizens behind bars, and exonerated others," the timely release continues.

"From fingerprint identification, bullet studies, blood spatter patterning, firearms analyses and autopsies, to laboratory tests that identify white powders or the causes of fires, there is no evidence that can be more damning, or vindicating. Significant recent developments, however, have shaken the foundation of forensic evidence in criminal trials.

On the national level, a blue-ribbon panel has called into question the reliability of today's forensic science. A U.S. Supreme Court case has given defendants in criminal cases the right to confront as witnesses the lab technicians and other scientists who perform forensic testing and make conclusions that can tip the balance between guilt and innocence in the courtroom. In Texas, the poor quality and inconsistent methodology of major forensic laboratories is coming to light.

National Research Council Study

In February 2009 the National Research Council, affiliated with the National Academy of Sciences, released a congressionally commissioned report entitled Strengthening Forensic Science in the United States: A Path Forward. This landmark study, a report over 300 pages long, was conducted by an impressive committee of national experts in law, medicine, science and research.

The report contains startling findings and recommendations:
-The national forensic science system is in disarray
-Forensic tests lack uniform standards
-Forensic scientists need more rigorous certification and educational programs
-Forensic methodology is not supported by careful scientific research
-Forensic laboratories are not adequately funded and managed
-The only highly reliable forensic process is DNA testing
-Labs should be independent from law enforcement and prosecutors' offices to diffuse inherent bias; those performing forensic analyses should not know details about related cases
-Forensic labs vary in methodology, funding and standards among various levels of government
-Ethical standards and quality control are inconsistent or lacking

The report recommends that Congress create an independent National Institute of Forensic Science to undertake the work to upgrade the forensic science system.

Melendez-Diaz v. Massachusetts

Four months after the ground-breaking study was published, it was cited by the U.S. Supreme Court in the landmark Melendez-Diaz case. The Constitution's Confrontation Clause requires that a criminal defendant have the right to confront witnesses against him. The Melendez-Diaz Court found that a written certificate of the weight and identity of a powdered substance constituted a testimonial statement that triggered the right to confront the certificate's author as a witness. Historically such certificates or affidavits of forensic findings had been largely admitted into evidence without the appearance in court of those involved in making the conclusions.

Citing the National Academy report, the Court emphasized that those conducting forensic tests are subject to time pressure and coercion from law enforcement and prosecution to make particular findings, sometimes sacrificing rigorous scientific methods. The Melendez-Diaz Court hoped that the specter of being cross-examined in court about their findings would make forensic personnel more careful and neutral in their work.

The Texas Problem

Texas has conducted investigations of the integrity of its crime labs, and the results were alarming. The leaky roof of the Houston Police Department Crime Laboratory contaminated DNA evidence. Labs have closed in Fort Worth, San Antonio and Austin due to serious scientific concerns. In 2005, the Texas legislature created the Forensic Science Commission to accept complaints of and investigate forensic lab misconduct and negligence. The new Commission has already been rocked with controversy; Governor Rick Perry recently replaced all four of his commission appointees, in the middle of a review of the arson testing methods that produced evidence in the conviction and 2004 execution of Cameron Todd Willingham.

Impact on Criminal Defense

Across the nation and in Texas, criminal defense attorneys are sitting up and taking notice of the important right their clients were granted in Melendez-Diaz to cross-examine those making forensic conclusions about evidence that could support criminal convictions. Coupled with the inherent doubt cast upon such evidence by the National Research Institute report and substandard conditions at forensic laboratories, real opportunities to fight for citizens accused of crimes are emerging.

The release can be found at: