POST: "The Jed Rakoff and Matt Redle, co-chairs, Sub-Committee on reporting and testimony memo," by Justin J. McShane published on his superb Blog "The Truth About Forensic Science," on January 29, 2015.
GIST: Justin McShane performs a huge public service by making available on a crucial area of forensic evidence that rarely comes under public scrutiny: Pre-trial disclosure: The need for forensic science experts testifying on behalf of the Government to make considerably fuller disclosure of their data, methodology, experience, and results than is presently disclosed. The need to prevent trial by ambush on forensic matters. The joint-memorandum he refers to, by two extremely well qualified authors, contains a slate of suggestions which are a blueprint for reform - mot just in the U.S. criminal justice system, but in criminal justice systems around the world. (Publisher's note: Many of the wrongful convictions detailed in this blog over the past seven years would most likely have been avoided if these proposed reforms were in place. HL);1. Pretrial disclosure of forensic evidence should be comprehensive and reciprocal — subject to the U.S. Constitution and the law of privilege. The prosecution’s disclosure obligation should apply whether or not the information will be used at trial. The defense obligation should apply to evidence that is intended for use at trial, including the opinions of testifying experts who have not performed any testing. 2. The results of all forensic examinations and all expert opinions should be recorded; oral reports should be reduced to writing. The results of examinations and expert opinions should be recorded at the time the examination is conducted or an opinion is formed — or promptly thereafter. 3. The results of all forensic examinations, expert opinions, and related case documents (e.g., bench notes, graphs, electropherograms, calibration reports, etc.) should be subject to disclosure. 4. An expert witness’s qualifications should be subject to disclosure, including a list of publications authored and a list of recent cases in which the witness testified as an expert at trial. 5. Disclosure should be timely, although all items need not be disclosed at the same time: a. Disclosure of initial laboratory reports should occur as soon as practicable after completion of the examination so that counsel has sufficient time to consult with an expert — which may require applying for funds to retain an expert — and to permit retesting. b. Disclosure of all other items should occur as requested and no later than 90 days before the scheduled trial date. 6. There should be a continuing duty to disclose throughout the trial until sentencing. For exculpatory evidence, the duty to disclose should apply after sentencing.4 7. Information, such as laboratory testing protocols, quality assurance procedures, accreditation and audit reports, proficiency testing results, and internal validation studies, should be readily accessible — preferably by posting on the internet or electronically upon request. 8.Forensic evidence should be preserved both before and after trial — until appeals are exhausted and sentences served. Jurisdictions should promulgate procedures concerning the preservation and retention of evidence. Evidence should not be unnecessarily consumed during testing, and consumptive testing should not be done without notice to the defense if a defendant has been charged. 9. The defense has the right to inspect and retest forensic evidence that is under the custody or control of the prosecution. The prosecution has the right to inspect and retest forensic evidence that is under the custody or control of the defense and that the defense intends to use at trial." (Publisher's note: As Justin McShane notes, "Who in their right mind can object to any of this? HL);
The entire post can be found at:
GIST: Justin McShane performs a huge public service by making available on a crucial area of forensic evidence that rarely comes under public scrutiny: Pre-trial disclosure: The need for forensic science experts testifying on behalf of the Government to make considerably fuller disclosure of their data, methodology, experience, and results than is presently disclosed. The need to prevent trial by ambush on forensic matters. The joint-memorandum he refers to, by two extremely well qualified authors, contains a slate of suggestions which are a blueprint for reform - mot just in the U.S. criminal justice system, but in criminal justice systems around the world. (Publisher's note: Many of the wrongful convictions detailed in this blog over the past seven years would most likely have been avoided if these proposed reforms were in place. HL);1. Pretrial disclosure of forensic evidence should be comprehensive and reciprocal — subject to the U.S. Constitution and the law of privilege. The prosecution’s disclosure obligation should apply whether or not the information will be used at trial. The defense obligation should apply to evidence that is intended for use at trial, including the opinions of testifying experts who have not performed any testing. 2. The results of all forensic examinations and all expert opinions should be recorded; oral reports should be reduced to writing. The results of examinations and expert opinions should be recorded at the time the examination is conducted or an opinion is formed — or promptly thereafter. 3. The results of all forensic examinations, expert opinions, and related case documents (e.g., bench notes, graphs, electropherograms, calibration reports, etc.) should be subject to disclosure. 4. An expert witness’s qualifications should be subject to disclosure, including a list of publications authored and a list of recent cases in which the witness testified as an expert at trial. 5. Disclosure should be timely, although all items need not be disclosed at the same time: a. Disclosure of initial laboratory reports should occur as soon as practicable after completion of the examination so that counsel has sufficient time to consult with an expert — which may require applying for funds to retain an expert — and to permit retesting. b. Disclosure of all other items should occur as requested and no later than 90 days before the scheduled trial date. 6. There should be a continuing duty to disclose throughout the trial until sentencing. For exculpatory evidence, the duty to disclose should apply after sentencing.4 7. Information, such as laboratory testing protocols, quality assurance procedures, accreditation and audit reports, proficiency testing results, and internal validation studies, should be readily accessible — preferably by posting on the internet or electronically upon request. 8.Forensic evidence should be preserved both before and after trial — until appeals are exhausted and sentences served. Jurisdictions should promulgate procedures concerning the preservation and retention of evidence. Evidence should not be unnecessarily consumed during testing, and consumptive testing should not be done without notice to the defense if a defendant has been charged. 9. The defense has the right to inspect and retest forensic evidence that is under the custody or control of the prosecution. The prosecution has the right to inspect and retest forensic evidence that is under the custody or control of the defense and that the defense intends to use at trial." (Publisher's note: As Justin McShane notes, "Who in their right mind can object to any of this? HL);
The entire post can be found at:
http://www.thetruthaboutforensicscience.com/jed-rakoff-matt-redle-co-chairs-subcommittee-reporting-testimony-memo/
See also the recent "The Truth About Forensic Science" post which reports how the U.S. Department of Justice attempted to block reform of the proposed pre-trial disclosure reforms by the National Commission on Forensic Science - and then retreated after an outcry in which committee co-chair Judge Jed Rakoff tendered his resignation in protest. "In a dramatic turn of events as covered here in Federal Judge resigns from National Commission on Forensic Science and The Jed Rakoff and Matt Redle, co-chairs, Subcommittee on Reporting and Testimony Memo, US Senior District Judge Jed Rakoff resigned in protest from the National Commission on Forensic Science over the DOJ veto wielded by James Cole (DAG) to promptly end all discussion on the broken discovery system in America when it comes to criminal law and in forensic science. ........Today, after the DOJ re-evaluated its position and announced that it would no longer veto talks on discovery in the National Commission on Forensic Science, Judge Rakoff has rejoined the commission. It is sad to see the tremendous amount of power that the DOJ has over this discussion. Even though DOJ ultimately withdrew its objection, it makes many wonder about how truly transparent, open and balanced any discussions are. If it takes the resignation of a federal judge to have DOJ listen what hope does another commissioner have?
http://www.thetruthaboutforensicscience.com/doj-180-puts-discovery-back-discussion-nistdoj-national-commission-forensic-science/
PUBLISHER'S NOTE:
Dear Reader. Keep your eye on the Charles Smith Blog. We are following this case.
I have added a search box for content in this blog which now encompasses several thousand posts. The search box is located near the bottom of the screen just above the list of links. I am confident that this powerful search tool provided by "Blogger" will help our readers and myself get more out of the site.
The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at:
http://www.thestar.com/topic/
Information on "The Charles Smith Blog Award"- and its nomination process - can be found at:
http://smithforensic.blogspot.ca/2013/12/the-charles-smith-award-presented-to_28.html
I look forward to hearing from readers at:
hlevy15@gmail.com.
Harold Levy; Publisher; The Charles Smith Blog;
