A new book by Brandon Garrett is a deep dive into the misuse of forensic evidence in criminal courtrooms. To borrow from its description, Autopsy of a Crime Lab: Exposing the Flaws of Forensics “is the first book to catalog the sources of error and the faulty science behind a range of well-known forensic evidence, from fingerprints and firearms to forensic algorithms.” Professor Garrett has also recorded video lectures to accompany the information in the book. Together with Indigent Defense Services and the SOG, we are pleased to announce a new online CLE course based on the book and video series. Read on for more details. Continue reading
Tag Archives: forensics
New Online CLE based on Autopsy of a Crime Lab: Exposing the Flaws of Forensics
Sherlock Holmes and Modern Forensics
My recent criminal justice class involved forensics so, being in London, it seemed only fitting to take a look at Sherlock Holmes and his methods. What was the impact of Arthur Conan Doyle’s fictional character on the development of forensics? What can we learn from Holmes more than 130 years after his first appearance in the classic A Study in Scarlet? Continue reading →
In State v. Cooper, issued last week, the Court of Appeals reversed the defendant’s conviction for first-degree murder of his wife and ordered a new trial. The case has drawn considerable media attention; recent news reports indicate that the State intends to petition the state Supreme Court for review. This blog post focuses on one aspect of the decision by the Court of Appeals—the constitutional limits on discovery sanctions against the defendant, which previous North Carolina decisions had not closely examined.
In Taylor v. Illinois, 484 U.S. 400 (1988), the U.S. Supreme Court considered the appropriateness of sanctions against the defendant for discovery violations. The Court recognized that the Compulsory Process Clause of the Sixth Amendment gives defendants the right to present a defense. The Court then found that preclusion of a defense witness’s testimony as a sanction for a discovery violation may violate this right (rejecting the State’s argument that a discovery sanction would never violate the right to present a defense) but that preclusion is not automatically a violation (rejecting the defendant’s argument that preclusion would never be an appropriate sanction). The Court declined to announce a “comprehensive set of standards to guide the exercise of discretion in every possible case” (id. at 414), but it provided some direction about when preclusion, perhaps the most drastic sanction against the defense, may be permissible. In upholding the sanction imposed by the trial court, the Court stated that this “case fits into the category of willful misconduct in which the severest sanction is appropriate.” Id., 484 U.S. at 417.
In Cooper, the appropriateness of discovery sanctions against the defendant arose in connection with evidence obtained from the defendant’s laptop computer. Forensic examiners for the State testified that they had recovered temporary internet files from the defendant’s laptop, which showed that the day before his wife’s death someone had conducted a Google map search from the defendant’s home to the place where his wife’s body was later found. In response, the defendant attempted to call an expert to testify that the internet files had been planted, but the State objected that the expert did not have sufficient training and experience to give this opinion and the trial court allowed the expert to give only general testimony about the ease with which computer files could be altered or planted. The defendant immediately located a second computer expert, who reviewed the first expert’s work and was prepared to give a similar opinion. The State objected to the second expert, however, arguing that the defendant had violated the discovery statutes by failing to list the second expert on his witness list and failing to provide a copy of the second expert’s report and qualifications to the State before trial. The trial court agreed and precluded the second expert from testifying as a sanction for the discovery violation. As a result, the defendant was unable to present any expert testimony that the Google map files were corrupted or tampered with. The Court of Appeals reversed, finding among other things that the trial court erred by precluding the second expert from testifying as a discovery sanction. (The Court of Appeals also found merit in the defendant’s arguments that the trial court erred by limiting the first expert’s testimony and by denying the defendant’s motion to compel information about FBI computer protocols used in analyzing the defendant’s computer.)
Relying on Taylor v. Illinois and other decisions, the Court of Appeals in Cooper recognized that the sanction of preclusion against the defendant should be reserved for the most serious discovery violations. The Court found that the defendant sought out a second expert only after the State objected, for the first time at trial, to the qualifications of the defendant’s first expert. The defendant was not seeking a tactical advantage, and the record showed no willful misconduct. In finding the preclusion sanction disproportionate to the alleged discovery violation, the Court considered the fundamental nature of the right to present a defense, the importance of the excluded testimony to the issues in the case, and the minimal prejudice to the State by a lesser sanction, such as a continuance or recess. The Court concluded that the trial court abused its discretion in imposing the “harsh sanction” of preclusion. The Court found in the alternative that the sanction violated the defendant’s rights under the United States and North Carolina constitutions.
Some North Carolina decisions, without discussing constitutional considerations, have taken a similar approach in assessing the appropriateness of sanctions, examining the seriousness of the violation and weighing it against other interests. For example, in State v. Lane, 365 N.C. 7 (2011), in which the court upheld the trial court’s exclusion of the defendant’s expert testimony, the defendant failed to provide a report of his expert to the State despite repeated requests, orders by the court, and extensions of time to produce the report. The trial judge also found that the expert’s testimony was irrelevant. In State v. McDonald, 191 N.C. App. 782 (2008), the court upheld the trial court’s exclusion of two of four defenses for the defendant’s failure to give any notice of defenses despite repeated motions by the State. The defendant’s counsel, who had substituted into the case, professed not to have been served with any of the motions, but the State produced four or five motions, some of which had been served on counsel. The court found that the two excluded defenses would have required substantial, unanticipated preparation by the State. In State v. Gillespie, 180 N.C. App. 514 (2006), aff’d as modified, 362 N.C. 150 (2008), the Court of Appeals found that the preclusion sanction imposed against the defendant exceeded constitutional limits, but on appeal the Supreme Court reversed the sanction on statutory grounds and found that it was unnecessary for the Court of Appeals to have reached the constitutional issues.
Some North Carolina decisions have upheld preclusion sanctions for what appear to be lesser violations, but the results may be explainable by other aspects of those cases. See State v. Pender, ___ N.C. App. ___, 720 S.E.2d 836 (2012) (defendant not entitled to jury instruction on involuntary manslaughter based on imperfect self-defense where defendant did not provide State with notice of intent to assert self-defense; appellate court concluded in alternative that evidence was insufficient to support an instruction so any error in precluding defense was harmless); see also State v Leyva, 181 N.C. App. 491 (2007) (trial court did not abuse discretion in denying defendant’s request to allow him to call expert on reliability of confidential informants whom defendant failed to include on witness list; appellate court rejected defendant’s claim that he needed expert because of officers’ testimony about reliability of informant, finding that potential testimony was not required by interest of justice).
Ultimately, the best protection against discovery sanctions for both the defendant and the State is to use their best efforts to comply with discovery requirements. The cases suggest an additional caution for defense counsel. If the trial court is considering discovery sanctions against the defendant, defense counsel should raise any constitutional issues with the trial court; otherwise, the appellate court may decline to consider those issues on appeal. See State v. McDonald, 191 N.C. App. at 785 (so ruling).
The CSI Effect
I may be the only person in America who has never seen an episode of CSI: Crime Scene Investigation. Nonetheless, I am interested in the so-called CSI effect. As The Economist explains in this succinct article, jurors who have been exposed to television crime dramas may have unrealistic expectations about the ability of forensic science to provide complete certainty about who perpetrated a given crime. In other words, jurors may expect a scientific “match” — or a scientific exclusion — even when such an expectation is unfounded.
I say “may” because there is considerable controversy about whether there is a CSI effect; the extent of any such effect; and which side is benefited by any such effect. See generally State v. Cooke, 914 A.2d 1078 (Del. Super. Ct. 2007) (summarizing studies on both sides). I’m not well-informed enough to have reached any firm conclusions about those questions, and I’ll keep my speculation to myself. Instead, I’ll focus on the concrete steps that some prosecutors, judges, and others have taken to address the CSI effect.
1. Some prosecutors are asking jurors about CSI during voir dire. For example, in Goff v. State, 14 So.3d 625 (Miss. 2009), the prosecutor asked prospective jurors whether they watched CSI; whether they “can separate what they see on TV from what [they] see in the courtroom”; and whether they would decide the case based on the evidence presented without speculating about evidence that was not presented. During closing arguments, the prosecutro reminded the jurors about what they had said in voir dire. On appeal, the Supreme Court of Mississippi found no error.
2. Some courts are attempting to use jury instructions to prevent the CSI effect from taking root. In Ohio, the state bar association recently promulgated a new standard jury instruction, which reads in pertinent part as follows:
WARNING ON OUTSIDE INFLUENCE. The effort to exclude misleading outside influences [and] information also puts a limit on getting legal information from television entertainment. This would apply to popular TV shows such as Law and Order, Boston Legal, Judge Judy, older shows like L.A. Law, Perry Mason, or Matlock, and any other fictional show dealing with the legal system. In addition, this would apply to shows such as CSI and NCIS, which present the use of scientific procedures to resolve criminal investigations. These and other similar shows may leave you with an improper preconceived idea about the legal system. As far as this case is concerned, you are not prohibited from watching such shows. However, there are many reasons why you cannot rely on TV legal programs, including the fact that these shows: (1) are not subject to the rules of evidence and legal safeguards that apply in this courtroom, and (2) are works of fiction that present unrealistic situations for dramatic effect. While entertaining, TV legal dramas condense, distort, or even ignore many procedures that take place in real cases and real courtrooms. No matter how convincing they try to be, these shows simply cannot depict the reality of an actual trial or investigation. You must put aside anything you think you know about the legal system that you saw on TV.
It isn’t clear to me how widely the instruction will be used; apparently the bar association jury instruction committee is “independent of the Ohio Judicial Conference Ohio Jury Instructions Committee.”
3. On the other side of the coin, in Commonwealth v. Seng, 924 N.E.2d 285 (Mass. 2010), a somewhat similar instruction was criticized. The defendant in Seng was charged with murder, and defended the case on the theory that the police had focused on him after an inadequate investigation. CSI was mentioned briefly at several points during the testimony. After the close of the evidence, the trial judge instructed the jury that “this is real life and not CSI. . . . It’s been observed across the country that people who’ve watched that particular program and similar programs tend to think that life is all that sort of science fiction and it’s not.” The reviewing court found no prejudicial error, but made clear that it did not endorse the instruction and was not certain that the CSI effect is real. The court suggested that when CSI or similar programs are mentioned during the course of trial, an immediate cautionary instruction is appropriate, but that no instruction should normally be given at the end of the case.
4. Finally, the CSI effect may have an impact on how relevancy issues are determined. For example, it may suggest that the prosecution should be given considerable leeway in explaining why forensic evidence is not available or is inconclusive. Cf. United States v. Fields, 483 F.3d 313 (5th Cir. 2007) (“In this age of the supposed ‘CSI effect,’ explaining to the jury why the Government had little in the way of physical or scientific evidence was arguably critical to the Government’s case.”); Cooke, supra (concluding that, especially in light of a possible CSI effect, “the State should be allowed to show, up to a point, the ‘exhaustiveness’ of its investigation,” including tests that were inconclusive). In an appropriate case, the same leeway should presumably be given to the defense.
I’m not aware of any cases or other authorities in North Carolina regarding the CSI effect. If you are, or if you’ve had an interesting encounter with the CSI effect in court, please post a comment or send me an email. My guess is that lawyers and judges are grappling with this issue on an ad hoc basis now, and we might be able to learn from one another’s efforts.