Errin Morris, Cognitive Biasl and Evaluation of Forensic Evidence, The Champion, NACDL, May 2012.

Remember, USACIL and all the others get a full brief sheet on why the evidence should be tested and lots of facts. The subsequent testing is not done in the blind.

1. Contemporaneous video’s and photos can provide vital evidence for both sides.

Nixon said he remembered Hasan because of “his stature and just how he composed himself — stoic.”

A video of this may have aided both sides. Was he stoic, or was that something else which might be relevant to a forensic health examiner. The demeanor certainly sounds damning. But could it be evidence or reflective of some other mental health disease or defect. For cases that happen on base or at a party or other event there is the potential for video and still photo evidence. Generally law enforcement doesn’t bother to collect it in most cases. As a defense counsel I’ve been able to use these contemporaneous photos to good effect. Defense counsel should always ask witnesses if there were photographs taken at an event. For example in the standard sexual assault case the event often starts at a party or a club. Digital cameras are ubiquitous and party-goers often take pictures. Those pictures may show the complaining witness or the accused at various times during the evening. If the issue is incapacitation, the complaining witness’ demeanor and actions, especially later in the evening, may be relevant. Or perhaps there’s a picture of the complaining witness kissing and cuddling with the accused on the couch, an event she denies, because it goes to a mistake or consent defense.

2. Eyewitness testimony is not as reliable as we believe. This is not a new topic. But we can see how eyewitnesses in stressful situations may not have an accurate, complete, or same memory of events. This raises a concern about post-event interviews of witnesses. The concern is how witnesses who are improperly interviewed may alter their memory to conform to facts learned from others. This is not necessarily deliberate but a psychological effect of being interviewed together with other witnesses or having their statement challenged by the investigator or being shown other statements by the investigator. There’s plenty of research on this. But here are the points from the AP article by Brown & Cracyk.

They have given similar accounts of how the rampage began, saying Hasan fired into a crowded waiting area and then walked around the building, shooting people as they hid under chairs and tables, pausing only to reload.

But have they? Later in the article the writers tell us that:

Only one witness has testified he saw two weapons. Others have said they saw one weapon, but descriptions about the gun have varied.

News reports on this have also varied. A minor difference you say. Maybe.

I’m not convinced as is Mr. McCarthy that this was a deliberate cover-up by the Army. Rather a silly mistake. That Soldier should have been ordered to turn over his cellphone as potential evidence. Once that is done the evidence can be put on an ECD by CID and retained as evidence. Sure the Soldier will be inconvenienced for a short while. But there are very good software programs and tools available to forensic computer examiners to quickly retrieve and preserve such “computer” evidence from the cellphone sim-card or SD card.

The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. . The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional. This, of course, was the point that I sought to establish in bringing the petition for certiorari; Melendez-Diaz made the point clear, and now the Virginia Supreme Court has drawn the obvious conclusion. The court held that the error was harmless in Briscoe’s case, but Cypress’s conviction was reversed. I expect his case will plead out.

Here are the SCOTUSWiki links on the Supreme Court litigation.

Preliminary Outline of Draft Forensic Reform Legislation – 5/5/10.

Thanks GR.

In addition, Innocence Project announces that:

The American Statistical Association announced today that it was endorsing the recommendations outlined in last year’s groundbreaking National Academy of Sciences report on forensic science.

It would appear that USACIL would be covered as being funded by an organization that takes federal money – a lot of federal money.

Paul C. Giannelli (Case Western Reserve University School of Law) has posted Microscopic Hair Comparisons: A Cautionary Tale on SSRN. Here is the abstract:

According to the National Academy of Sciences (NAS) Report on forensic science, “testimony linking microscopic hair analysis with particular defendants is highly unreliable.” This is a stunning conclusion because hair evidence has been admitted in numerous trials for over a century. The NAS Report was not the first to raise issues concerning hair evidence. In 1996, the Department of Justice issued a report discussing the exonerations of the first twenty-eight convicts through the use of DNA technology. This report highlighted the significant role that hair analysis played in a number of cases of these miscarriages of justice, including some death penalty cases. In 1998, a Canadian judicial inquiry into the wrongful conviction of Guy Paul Morin was released. His original conviction was based, in part, on hair evidence. The judge conducting the inquiry recommended that “[t]rial judges should undertake a more critical analysis of the admissibility of hair comparison evidence as circumstantial evidence of guilt.”

Paul C. Giannelli (Case Western Reserve University School of Law) (University of Illinois Law Review, Forthcoming, Case Legal Studies Research Paper No. 2010-6) has posted Daubert and Forensic Science: The Pitfalls of Law Enforcement Control of Scientific Research on SSRN. Here is the abstract: In 2009, the National Academy of Sciences published a landmark report on forensic science: Strengthening Forensic Science in the United States: A Path Forward. The Report represents one of the most important developments in forensic science since the establishment of the crime laboratory in the 1920s. Within months, Justice Scalia cited the report in Commonwealth v. Melendez-Diaz, noting that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials” and “[f]forensic evidence is not uniquely immune from the risk of manipulation.” After two years of studying fingerprints, handwriting, ballistics, and other common forensic techniques, the Academy concluded that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques.” Indeed, “only nuclear DNA analysis has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between an evidentiary sample and a specific individual or source.” The NAS Report’s centerpiece is a proposal to establish an independent federal agency, the National Institute of Forensic Science, to control funding and research in the field. This proposal, which is now before Congress, wrests control of forensic science from law enforcement and was attacked by government agencies before the Report was even released. While the Report made clear that the Department of Justice, through the FBI Crime Laboratory and National Institute of Justice, had failed in its obligation to improve forensic science, the Report did not provide details of this failure. This Article supplies those details, documenting how government agencies manipulated science at the expense of both science and justice. As the Report noted, basic research in the forensic sciences is weak. Yet, the only agency currently capable of funding that research, the Department of Justice, has hindered efforts to conduct independent scientific studies.

Full marks to CrimProfBlog for this!

Paul C. Gianelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias, to be published in the Utah Law Review.

One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 2002, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s recommendation. It also examines the counter arguments as well as alternative approaches, including additional measures that should protect forensic analyses from improper influence.

Paul C. Gianelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias, to be published in the Utah Law Review.

One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 2002, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s recommendation. It also examines the counter arguments as well as alternative approaches, including additional measures that should protect forensic analyses from improper influence.

Shaken baby syndrome itself is put on trial in Fairfax court

Shaken-baby syndrome at center of Fairfax trial

The New York State Police’s supervision of a crime laboratory was so poor that it overlooked evidence of pervasively shoddy forensics work, allowing an analyst to go undetected for 15 years as he falsified test results and compromised nearly one-third of his 322 cases, an investigation by the state’s inspector general has found.

New York Times reports.