This presentation was given at "Life Over Death" in Naples, Florida in September 2013.

1. Litigating Flawed Forensic Science at
Every Stage of the Case.

2. NACDL
• 4th Annual Post-Conviction Conference
• “Evolving Science and Faulty Forensics: Legal
Theories for Advancing Innocence Claims”
• Charlotte, N.C. April 18, 2013

3. BIBLIOGRAPHY
• National Research Council of the National
Academies, Strengthening Forensic Science in
the United States: A Path Forward 86 (2009)
• 8 STANFORD J. C.R. & C.L. ___ (forthcoming)
‘SHIFTED SCIENCE’ AND POST-CONVICTION
RELIEF BY: CAITLIN PLUMMER & IMRAN SYED

4. Bibliography continued
• SHAKEN BABY SYNDROME, ABUSIVE HEAD
TRAUMA, AND ACTUAL INNOCENCE: GETTING IT
RIGHT Keith A. Findley, Patrick D. Barnes, David A.
Moran, and Waney Squier* 12 Hous. J. Health L. &
Policy 209 (2012)
• A Daubert Analysis of Abusive Head Trauma/Shaken
Baby Syndrome:
Narang, Melville, Greeley, Anderst, Carpenter and
Spivac.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2
288126

5. Bibliography continued

6. Bibliography Continued
• JUDICIAL GATEKEEPING OF SUSPECT
EVIDENCE: DUE PROCESS AND EVIDENTIARY
RULES IN THE AGE OF INNOCENCE
• Keith A. Findley*
• GEORGIA LAW REVIEW Vol. 47:723
• April, 2013

7. RESOURCES
• National Clearinghouse for Science, Technology
and the Law http://www.ncstl.org
NCSTL provides a forensic research database;
newsletter, resource pages, bibliographies.
• National Institute of Justice: “Legal Guide for the
Forensic Expert.”
http://nij.gov/training/courses/law-101.htm
• http://www.daubertcounsel.com

8. RESOURCE LIST:
• Law 101: Legal Guide for the Forensic Expert
• http://www.ncstl.org/education/Law%20101
•
• Digging up Dirt on Experts
• http://www.ncstl.org/education/Digging%20Up%20Dir
t%20for%20Experts
•
• Forensic Resources on the Web
• http://www.ncstl.org/education/Finding%20Forensic%
20%3CBR%3EResources%20on%20the%20Web
•

9. Problem for Juries and Defendants
• Lay jurors tend to give considerable weight to
“scientific” evidence when presented by
“experts” with impressive credentials. We have
acknowledged the existence of a misleading aura
of certainty which often envelops a new scientific
process, obscuring its currently experimental
nature... Scientific proof may in some instances
assume a posture of mystic infallibility in the eyes
of a jury…” People v. Kelly, 549 P.2d 1240 (CAL
1976)

10. FRYE v. DAUBERT
• FRYE: “General acceptance in relevant
scientific community”
• DAUBERT:
(1) The testimony is based upon sufficient facts
or data;
(2) The testimony is the product of reliable
principles and methods; and
(3) The witness has applied the principles and
methods reliably to the facts of the case.

11. What does DAUBERT require?
• (1) “*A+ key question to be answered in determining whether a theory or
technique is scientific knowledge that will assist the trier of fact will be whether it
can be (and has been) tested.” Daubert at 593.
• (2) “*W+hether the theory or technique has been subjected to peer review and
publication.... submission to the scrutiny of the scientific community is a
• component of ‘good science,’ in part because it increases the likelihood that
substantive flaws in methodology will be detected.” Id.
• (3) “*T+he court ordinarily should consider the known or potential rate of error...
and the existence and maintenance of standards controlling the technique’s
operation....” Id. at 594.
• (4) “Finally, general acceptance can yet have a bearing on the inquiry. A reliability
assessment does not require, although it does permit, explicit identification of a
relevant scientific community and an express determination of a particular degree
of acceptance within that community.... Widespread acceptance can be an
important factor in ruling particular evidence admissible, and a known technique
which has been able to attract only minimal support within the community, may
properly be viewed with skepticism.”

12. DAUBERT APPLIED
• In Kumho Tire v. Carmichael the Court
explained the proper application of the rule in
Daubert. First the Court held that application
of the rule in Daubert is not limited only to
cases where an expert “relies on the
application of scientific principles”. The rule
also has application where an expert relies “on
skill- or experience-based observation.”

13. For the TRIAL Lawyer
• OBJECT if an opposing party seeks to introduce ANY
evidence which is testable under Frye (formerly) or
Daubert (now), or seeks to offer ANY expert
opinion, including “pure” opinion, on ANY subject. Cite
Ch. 2013-107 as the basis for the objection, and
request a Daubert hearing.
• Likewise if you intend to offer ANY opinion by an
expert on ANY subject, move before trial to admit the
opinion testimony, call the expert as a witness at the
motion hearing, and PROFFER THE EVIDENCE at the
motion hearing
• Look to Civil Cases for authority

14. Science v. Forensic Science
• “Science” = “Can we disprove this
hypothesis?” Data Driven; Verifiable
• “Forensic Science” = “Can we answer a
particular question?” Results
Driven, “experiential”

15. NAS REPORT (2009)
• WHAT MAKES GOOD SCIENCE?
• --SCIENTIFIC METHOD
• --RELIABLE –consistent, repeatable results
• --ERROR RATE—”measuring uncertainty”
• --VALIDATION- independently verified?
• CONCLUSION: Other than DNA, nearly all
forensic individualization sciences fail to
possess the most basic attributes of science.

16. DISCOVERY ISSUES
• use NAS as blueprint
• Ask for SOPs (testing and quality control)
validation studies.
• Ask for any scientific literature the expert bases
opinion upon.
• Any communications between analysts and
police.
• Any information on proficiency testing.
• Specific questions about procedures.

17. Use Daubert to Litigate Ake Claims
• Daubert requires gatekeeping by trial
court, therefore an adversarial process.
• Special responsibilities of counsel in a capital
case.
• Avoid “breakdown of the adversarial process.”

18. LITIGATION STRATEGIES
• Motions in limine to limit the language of the
expert. Semantics matter.
• Cross Examine on failure to follow scientific
method.
• Defense case:
-call expert on the scientific method
-Establish NAS Report as a learned treatise
Jury Instructions: “In assessing scientific
testimony, you should consider …

19. Systemic Forensic Science Problems
• Institutional bias—discipline wants to protect its
members
• Observer Bias, contextual bias, confirmation bias
• Mistaken interpretation
• Overstatement of interpretation (Exaggeration)
• Ineffective Assistance of Counsel
• Scientific knowledge changed rendering previous
opinions false.

20. Specific Problem Areas of Forensic
Science
• Arson-”The extreme susceptibility of the field of arson science to
wrongful convictions”
• Bitemark Evidence: “the poster child of unreliable forensic science."
The NAS found that the discipline is almost completely
incompatible with the most fundamental principles of science.
• Hair: A FBI review of more than 21,000 cases has revealed 27 death
penalty cases in which the FBI's forensic experts may have
exaggerated the scientific conclusions that could be drawn from
their testimony, mistakenly linking defendants to crimes they may
not have committed.
• “Shaken Baby Syndrome”-thousands of people were convicted or
pled guilty in the face of allegedly irrefutable “science” during the
dark ages of shaken baby science.

21. DNA-The Next Generation of Wrongful
Convictions?
• What Will They Look Like?
• Complex mixtures
• Degraded samples (Partial Profile
• DNA Database Hits)
• Touch DNA (Low Copy Number (Template) DNA)
• CODIS: There is no general acceptance by the
relevant scientific community as to an
appropriate methodology for assessing the
statistical significance of a cold hit DNA match.

22. What if “Science” Changes?
• What if Science is false or discredited?
• What if science now considered inconclusive?
• What if new scientific evidence appears to
exonerate the Defendant?

23. Is New Science “Newly Discovered
Evidence?”
• Jones v. State, 591 So. 2d 911, 915 (Fla. 1991).
• “Thus, we hold that henceforth, in order to
provide relief, the newly discovered evidence
must be of such nature that it would probably
produce an acquittal on retrial. The same
standard would be applicable if the issue were
whether a life or a death sentence should have
been imposed. We note that this is the standard
currently employed by the federal courts.”

24. CASE LAW VICTORIES
• State v. Edmunds, 308 Wis. 2d 374 (Wis. App. 2008). “There is a
reasonable probability that a jury, looking at both the new medical
testimony and the old medical testimony, would have a reasonable
doubt as to Edmunds's guilt.” [vacating conviction based on the
shift in mainstream medical opinion concerning “shaken baby
syndrome,” even though “the new evidence does not completely
dispel the old evidence”
• Han Tak Lee v. Glunt, 10-4133, 2012 WL 247993 (3d Cir. Jan.
27, 2012) (in due process challenge to arson conviction, appellate
court remanded for an evidentiary hearing in the federal trial court
stating that even though the state courts denied relief, habeas relief
may be warranted if petitioner can show that “new developments
in fire science [prove] that the fire expert testimony at [his] trial was
fundamentally unreliable.”)

25. Another Victory
• Court of Criminal Appeals of Texas. Ex Parte Cathy Lynn
HENDERSON. 384 S.W.3d 833 (Dec. 5, 2012) Habeas
relief would be granted babysitter convicted of capital
murder of child, and case remanded for a new
trial, where medical examiner, who testified at trial
that babysitter's position that child's death resulted
from an accidental fall was false and
impossible, testified at evidentiary hearing in habeas
corpus proceeding that there was no way to determine
with a reasonable degree of medical certainty whether
victim's injuries resulted from an intentional act of
abuse or an accidental fall.

26. Bad Case-law Losses
• Robbins v. State, 360 S.W.3d 446 (Texas 2011)
Medical examiner reevaluates trial testimony
and changes opinion but this did not
“unequivocally establish the defendant’s
innocence.” Since the testimony was not
“false,” defendant did not have a due process
right to have a jury hear the new testimony.

27. What are the best claims to raise in
post-conviction?
• Daubert Challenge—Can we reevaluate the
admissibility of the forensic science evidence?
• Sufficiency of the Evidence-if there was
sufficient evidence to convict at trial, does
shifted science change that?
• Ineffective Assistance of Counsel-how could
counsel be ineffective for not anticipating
future scientific developments?

28. Claims in Post-Conviction (continued)
• Brady violation? Does Brady extend to Post-conviction? No
says District Attorney’s Office v. Osborne. 129 S. Ct.
2308, 2320 (2009)
• Prosecutorial Misconduct? Prosecutorial misconduct can
come in several forms with regard to scientific testimony:
The first is intentional presentation of knowingly false
testimony. Misconduct might also occur if a prosecutor fails
to correct testimony she knows is false or on the failure to
correct an overstatement of an expert. Some courts have
found misconduct existed where the prosecution made no
effort to investigate evidence where there was great reason
to believe it was false

29. Additional Claims
• NEWLY DISCOVERED EVIDENCE CLAIM--
Argument: Shifted Science = Newly discovered
evidence.
• Due Process claim: Han Tak Lee – if fire evidence
fundamentally unreliable then the defendant is
entitled to federal habeas relief.
• 13th Amendment claim: People may not be
enslaved or held in involuntary servitude “except
as a punishment for crime whereof the party
shall have been duly convicted.

30. New Litigation Strategies
• Look at Civil cases on expert witnesses:
Patterson v. Tibbs, 60 So. 3d 742 (Miss. 2011)
Denham v. Holmes ex rel. Holmes, 60 So. 3d 773
(Miss. 2011)
Sherwin Williams Co. v. Gaines, 75 So.3d 41 (Miss.
2011)
Dedeaux Util. Co., Inc. v. Gulfport, 63 So. 3d 514
(Miss. 2011)
In each of these cases it was held that the expert
testimony was wrongly admitted.

31. CAUTION
• Unlike the extremely well-litigated civil challenges, the
criminal defendant’s challenge is usually perfunctory.
• “Regardless of the Daubert standard, without zealous
investigation and cross-examination of the proffered
expert evidence, many improper and even fraudulent
uses of scientific data are not exposed. “
• In not one of the half-dozen most sensational forensic-
science scandals of the last 20 years, involving serial
fraud and gross misconduct, were the transgressions of
‘experts’ revealed by defense counsel at trial.”

32. Will Texas Lead the Way?
• “In the last legislative session, in the wake of
dozens of exonerations in recent years based
on advances in forensic science, Texas
lawmakers approved Senate Bill 344. The first
law of its kind in the nation, it allows courts to
grant defendants new trials in cases in which
forensic science has evolved.”
New York Times September 10, 2013

33. Texas Inmate Facing Execution Is First
to Ask for Review Under New Law
Attorneys for Rigoberto Avila have requested an evidentiary hearing
under a new law passed in Texas that allows defendants to challenge
their convictions if they were gained through outdated forensic
techniques. His case will be the first death penalty case in the state to
be considered by the courts under this new legislation.
Avila, a Navy veteran, was convicted of murder in El Paso in 2001
for the tragic death of a 19-month-old infant. He is scheduled to be
executed on January 15, 2014. He has consistently maintained his
innocence and wants to introduce a biomechanical analysis of the
cause of death and the testimony of a forensic pathologist, tending to
show that the infant's death was an accident.
“Finality and certainty is important," said Cathryn Crawford, one of
Mr. Avila’s lawyers, "but we have to also have a criminal justice system
that is flexible enough to take into account when we have scientific
advancements and to allow people like Mr. Avila to have their day in
court.”