SHOCKING RESEARCH PAPER BY NEUFIELD AND GARRETT: PART THREE; SUMMARY; THE MID-ATLANTIC PROJECT;

"IN THE CASE OF TIMOTHY DURHAM, WHO WAS WRONGLY CONVICTED OF RAPE AND ROBBERY, THE ANALYST SAID THAT THE SPECIFIC COLOR OF HAIR FOUND AT THE CRIME SCENE BELONGED TO “ABOUT 5 PERCENT OF THE POPULATION” WHEN IN REALITY NO EMPIRICAL DATA EXISTS ON THE FREQUENCY OF HAIR COLOR."

THE MID-ATLANTIC PROJECT;

-------------------------------------------------------------------------------

At a recent conference in Toronto which explored the nexus between "expert" forensic evidence and "wrongful convictions," Innocence Project co-founder Peter Neufeld referred to a research paper he had co-authored with Brandon L. Garrett called "Invalid Forensic Science Testimony and Wrongful Convictions" published in the March, 2009, issue of the Virginia Law Review;

Neufeld explained that he and Garrett had made the disturbing finding that
in 82 cases or 60% of the trials, forensic analysts provided “invalid” testimony, meaning they had presented conclusions that either misstated empirical data or that were entirely unsupported by empirical data.

This invalid testimony did not come from a small group of analysts –not just the “bad apples”–but from 72 different analysts from 52 laboratories, practices, or hospitals in 25 states.

This disturbing finding should also be of concern to Canadians - as well as people in jurisdictions throughout the world - because the expert opinions provided by so-called forensic pathologists have been shielded from close scrutiny for so many years.

-------------------------------------------------------------------------------

"In an article published in the March 2009 issue of the Virginia Law Review, Brandon L. Garrett and Peter J. Neufeld conclude that in the majority of trials of innocent people who were later exonerated by post-conviction DNA testing, forensic nalysts testifying for the prosecution provided invalid testimony at trial," the
summary, prepared by the Mid-Atlantic Project, begins;

"Garrett and Neufeld located and reviewed trial transcripts for 137 of the 156 DNA exonorees in whose trials forensic analysts had testified," the summary continues;

"They found that in 82 cases or 60% of the trials, forensic analysts provided “invalid” testimony, meaning they had presented conclusions that either misstated empirical data or that were entirely unsupported by empirical data. This invalid testimony did not come from a small group of analysts –not just the “bad pples”–but from 72 different analysts from 52 laboratories, practices, or hospitals in 25 states.

Garrett and Neufeld’s study revealed that the analysts’ invalid testimony fell into two basic categories. The first is “the misuse of empirical population data” by presenting non-probative evidence as inculpatory, by discounting exculpatory evidence, or by presenting inaccurate statistics. For example, in the case of Gary Dotson, who was wrongly convicted of rape and aggravated kidnapping, the analyst presented inaccurate statistics when he testified that Dotson was included in 11% of the population that could have been the source of the semen found on the victim, whereas in reality 100% of the population could have been the source of the semen. The second main type of invalid testimony is “making conclusions regarding the probative value of evidence that are unsupported by empirical data.” This includes the presenting of statistics or other statements without backing them up with data or making a conclusion that evidence originated from the defendant even if there is no empirical data to permit such a conclusion. In the case of Timothy Durham, who was wrongly convicted of rape and robbery, the analyst said that the specific color of hair found at the crime scene belonged to “about 5 percent of the population” when in reality no empirical data exists on the frequency of hair color.

In their study of the trial transcripts, Garret and Neufeld found that defense counsel rarely cross-examined analysts concerning invalid testimony and rarely retained their own experts, because funding is often denied for defense experts. Prosecutors presented the invalid accounts of forensic evidence during their closing arguments. If the defense challenged the evidence, judges seldom provided relief. Garrett and Neufeld believe that our criminal justice system is simply not well suited to preventing this kind of unscientific testimony. Based on the results of their study, they recommend that the scientific community issue nationally enforceable standards for written reports and testimony to ensure that forensic science in criminal cases is presented in a way that maintains the integrity and fairness of the criminal process."

Harold Levy...hlevy15@gmail.com;

SHOCKING RESEARCH PAPER BY NEUFIELD AND GARRETT: PART ONE; INVALID TESTIMONY BY FORENSIC ANALYSTS FOUND IN 60% OF CASES STUDIED;

At a recent conference in Toronto which explored the nexus between "expert" forensic evidence and "wrongful convictions," Innocence Project co-founder Peter Neufeld referred to a research paper he had co-authored with Brandon L. Garrett called "Invalid Forensic Science Testimony and Wrongful Convictions" published in the March, 2009, issue of the Virginia Law Review;

Neufeld explained that he and Garrett had made the disturbing finding that
in 82 cases or 60% of the trials, forensic analysts provided “invalid” testimony, meaning they had presented conclusions that either misstated empirical data or that were entirely unsupported by empirical data.

This invalid testimony did not come from a small group of analysts –not just the “bad apples”–but from 72 different analysts from 52 laboratories, practices, or hospitals in 25 states.

This disturbing finding should also be of concern to Canadians - as well as people in jurisdictions throughout the world - because the expert opinions provided by so-called forensic pathologists have been shielded from close scrutiny for so many years.

-------------------------------------------------------------------------------

I will be devoting several posts to this important paper which can be found in Volume 95, Issue 1, of the Virginia Law Review (2009); at 009, Volume 95, Issue 1

For a start, here is a description of the paper provided by the Law Review:

"This is the first study to explore the forensic science testimony by prosecution experts in the trials of innocent persons, all convicted of serious crimes, who were later exonerated by post-conviction DNA testing.

Trial transcripts were sought for all 156 exonerees identified as having trial testimony by forensic analysts, of which 137 were located and reviewed.

These trials most commonly included serological analysis and microscopic hair comparison, but some included bite mark, shoe print, soil, fiber, and fingerprint comparisons, and several included DNA testing.

This study found that in the bulk of these trials of innocent defendants—82 cases or 60 percent—forensic analysts called by the prosecution provided invalid testimony at trial—that is, testimony with conclusions misstating empirical data or wholly unsupported by empirical data.

This was not the testimony of a mere handful of analysts: this set of trials included invalid testimony by seventy-two forensic analysts called by the prosecution and employed by fifty-two laboratories, practices, or hospitals from twenty-five states.

Unfortunately, the adversary system largely failed to police this invalid testimony.

Defense counsel rarely cross-examined analysts concerning invalid testimony and rarely obtained experts of their own.

In the few cases in which invalid forensic science was challenged, judges seldom provided relief.

This evidence supports efforts to create scientific oversight mechanisms for reviewing forensic testimony and to develop clear scientific standards for report writing and testimony.

The scientific community can promulgate standards to ensure the valid presentation of forensic science in criminal cases and thus the integrity and fairness of the criminal process."

Harold Levy...hlevy15@gmail.com;

PETER NEUFELD'S MESSAGE FOR CANADA: SET UP AGENCY TO REGULATE WHAT "SCIENCES" BELONG IN THE COURTS;

"A LOT OF THESE DISCIPLINES CAME INTO COURT WITHOUT EVER BEING SCIENTIFICALLY VALIDATED," NEUFELD, WHOSE AGENCY HAS REPRESENTED MORE THAN 100 CONVICTED PEOPLE EXONERATED THROUGH DNA TESTING, TOLD LAWYERS, JUDGES AND SCIENTISTS GATHERED AT THE UNIVERSITY OF TORONTO.

"THEY'RE NOT NOVEL. THEY'VE BEEN AROUND AND UPHELD BY COURTS FOR 30 OR 40 YEARS AND, IN THE CASE OF FINGERPRINT ANALYSIS, FOR AS MANY AS 100 YEARS, AND EVERYBODY JUST KEEPS GOING AROUND AND SAYING `FINE.'"

REPORTER TRACEY TYLER: THE TORONTO STAR;

-------------------------------------------------------------------------------------

The conference exploring the links between expert forensic evidence and wrongful convictions sponsored by the Osgoode Hall Law School Professional Development Department and the University of Toronto's Centre for Forensic Science and Medicine, was everything I hoped for - and more!

Yesterday's conference will undoubtedly be grist for this Blog's mill over the next few days.

For now, here is Toronto Star Legal Affairs reporter Tracey Tyler's story on the address given by Peter Neufield, co-founder of the Innocent Project, which appeared under the heading "Ottawa urged to establish forensic watchdog, and the sub-heading "Standards must be set for `science' behind evidence, activist says."

"With a U.S. report throwing doubt on the validity of nearly every type of forensic evidence used in courtrooms, an expert on wrongful convictions is urging Canada to consider setting up a watchdog agency to regulate what is currently touted as "science," the story begins;

"You can't wait until evidence gets into a court of law to hope truth will prevail," Peter Neufeld, co-founder of the New York-based Innocence Project, told a conference in Toronto yesterday, the story continues;

U.S. lawmakers are expected to introduce a bill in Congress this summer to create a national institute to establish and rigorously enforce standards after a recent blockbuster report found no forensic method except DNA has been shown to be scientifically reliable.

That report, from the Washington-based National Academy of Sciences in February, put to rest any notion inspired by television shows such as CSI that forensic science is foolproof.

Whether it's fingerprinting or handwriting analysis, or evidence that purports to show a bullet came from a particular gun or that tire marks came from a certain car, most forensic methods have no body of research behind them to verify their ability to link a specific person to a piece of evidence or a crime, the report said.

"A lot of these disciplines came into court without ever being scientifically validated," Neufeld, whose agency has represented more than 100 convicted people exonerated through DNA testing, told lawyers, judges and scientists gathered at the University of Toronto.

"They're not novel. They've been around and upheld by courts for 30 or 40 years and, in the case of fingerprint analysis, for as many as 100 years, and everybody just keeps going around and saying `fine.'"

With judges often ill-equipped to assess the validity of what gets held up as science, U.S. legislators have begun moving to set up a national institute that would conduct research into various techniques and set qualification standards for experts.

"I would hope that at some point Canada can learn something from what the National Academy of Science has said ... and think about the possibility of some sort of national entity that can be set up here," Neufeld said.

Yesterday's conference, sponsored by Osgoode Hall Law School and the U of T's centre for forensic science and medicine, looked at forensic science lessons from the case of Steven Truscott – wrongly convicted of a 1959 murder – and the recent Goudge inquiry into pediatric forensic pathology in Ontario.

Dr. Michael Pollanen, Ontario's chief forensic pathologist, noted the province has moved swiftly with reforms to improve standards in forensic pathology after last fall's report by Justice Stephen Goudge into shortcomings that led to flawed child death investigations.

They include amendments to the Coroner's Act, which would allow for the creation of a registry of pathologists who are qualified to perform autopsies.

Pollanen said forensic science, like forensic pathology, is at a point where the knowledge behind it and its "institutional supports" need to be strengthened.

Harold Levy...hlevy15@gmail.com;