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Forensic Evidence in Court Lissitzyn Vallen 2E 00 Auto Cases F2.Qxp 12/11/17 2:23 PM Page Ii Lissitzyn Vallen 2E 00 Auto Cases F2.Qxp 12/11/17 2:23 PM Page Iii lissitzyn vallen 2e 00 auto cases f2.qxp 12/11/17 2:23 PM Page i Forensic Evidence in Court lissitzyn vallen 2e 00 auto cases f2.qxp 12/11/17 2:23 PM Page ii lissitzyn vallen 2e 00 auto cases f2.qxp 12/11/17 2:23 PM Page iii Forensic Evidence in Court A Case Study Approach SECOND EDITION Christine Beck Lissitzyn Marc Wm. Vallen Carolina Academic Press Durham, North Carolina lissitzyn vallen 2e 00 auto cases f2.qxp 12/11/17 2:23 PM Page iv Copyright © 2018 Carolina Academic Press, LLC All Rights Reserved Library of Congress Cataloging-in-Publication Data Names: Lissitzyn, Christine Beck, author. | Vallen, Marc Wm., author. Title: Forensic evidence in court : a case study approach / Christine Beck Lissitzyn and Marc Wm. Vallen. Description: Second edition. | Durham, North Carolina : Carolina Academic Press, LLC, [2017] | Includes bibliographical references and index. Identifiers: LCCN 2017024140 | ISBN 9781531002237 (alk. paper) Subjects: LCSH: Evidence, Expert--United States. | Forensic sciences--United States. | Evidence, Criminal--United States. Classification: LCC KF9674 .L55 2017 | DDC 363.25--dc23 LC record available at https://lccn.loc.gov/2017024140 eISBN 978-1-53100-451-4 Carolina Academic Press, LLC 700 Kent Street Durham, NC 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America lissitzyn vallen 2e 00 auto cases f2.qxp 12/11/17 2:23 PM Page v Contents Table of Cases xv List of Figures xix Acknowledgments xxi Introduction xxiii Chapter 1 · Using Forensic Evidence to Prove Ultimate Issues 3 Overview 3 Chapter Objectives 4 What Is Forensic Evidence? 5 How Is Forensic Evidence Used in Criminal Trials? 5 Proof of Ultimate Issues 6 Standard of Proof 7 Identification 7 Proving What Happened 7 Individual vs. Class Characteristics 8 Science vs. Junk Science 10 Qualifications of the Forensic Expert and Freedom from Bias 10 Eyewitness Identification 11 Rules Governing Admitting a Forensic Expert’s Testimony 11 Federal Rules of Evidence 703 and 705 12 Chain of Custody 13 The Expert “Opinion” 13 Jury Instructions on Expert Testimony 14 Forensic Evidence Is Circumstantial Evidence 14 Case Study in Circumstantial Evidence: The Richard Crafts Case 18 Were Helle’s Statements Admissible under the Hearsay Rule? 19 Fingernail, Hair, Fiber, Tooth, and Tissue 20 Standard of Proof Where One Inference Depends on Another 21 Circumstantial Evidence in the Grant Case 26 The Handkerchief 27 Summary 28 Discussion Questions 29 v lissitzyn vallen 2e 00 auto cases f2.qxp 12/11/17 2:23 PM Page vi vi CONTENTS Chapter 2 · The Court Process: Procedure, Law, and Rules of Evidence 31 Overview 31 Chapter Objectives 33 The Rules of Evidence Govern the Admission of Evidence 33 State and Federal Courts Have Different Rules 33 The Role of the Courts in Admitting Evidence 34 Motions 34 Motions in the Grant Case 35 Grant’s Motion to Exclude DNA Evidence 35 Grant’s Motion to Exclude His Statement to Police 35 Grant’s Motion during Trial for a “Mistrial” 36 Grant’s Motion for New Trial 36 General Principles of Law Applicable to Criminal Trials 36 The Effect of a Not Guilty Verdict 36 More than One Trial Can Result from the Same Set of Facts 37 Double Jeopardy Applies Only to Acquittal of the Same Crime 37 The Effect of the U.S. Confrontation Clause on Which Witnesses Must Testify 38 The Meaning of Precedent 41 The Jury Is the Finder of Fact 42 Rules of Evidence Governing What Evidence Can Be Admitted 42 Pretrial Procedure 42 Relevance 43 Undue Prejudice 44 Was a Prosecution’s DNA Testimony Unduly Prejudicial? 45 Evidence of Prior Crimes Is Generally Not Admissible 45 The Defendant Is Not Required to Testify 46 Rules Relating to Forensic Expert Testimony 48 Judicial Notice 48 Appeals 49 Federal Court System 49 State Courts 50 Harmless Error Rule and Abuse of Discretion Standard 51 Possible Rulings on Appeal 51 Habeas Corpus Appeals 52 Summary 54 Discussion Questions 55 Chapter 3 · Crime Scene Investigation 57 Overview 57 Chapter Objectives 58 How Forensic Evidence Is Processed 58 Locard’s Exchange Principle 59 On-Site Investigation 59 lissitzyn vallen 2e 00 auto cases f2.qxp 12/11/17 2:23 PM Page vii CONTENTS vii Laboratory Testing 61 Do Juries Expect Forensic Evidence? 63 Crime Scene Drawings 64 Chain of Custody 67 The Chain of Custody in the Grant Case 70 Linking Forensic Evidence to Witness Statements 71 Missing Evidence 72 Expert Qualifications 72 No Experts for the Defense 73 Claims of Ineffective Counsel Based on Crime Scene Experts 74 Summary 75 Discussion Questions 76 Chapter 4 · The Scientific Method and “Junk Science” 77 Overview 77 Chapter Objectives 78 What Is the Scientific Method? 79 Defining the Relevant Scientific Community 81 Determining the Error Rate 81 The “Science” of Inclusion, Exclusion, and Identification 82 Replicability and Absence of Subjective Judgment 83 What Is the Scientific Hypothesis? 83 Fingerprints 83 DNA 85 Eyewitness Identification 86 What Is Junk Science? 86 Forensic Evidence that Lacks Sufficient Scientific Studies 88 Firearms and Toolmarks 88 Bite Marks 90 Knife Prints 93 Shoeprints 94 Palmprints 95 Lip Prints 95 Polygraph 96 Is “Neuroimaging” a More Scientific Form of Measuring Knowledge? 97 Psychological Expert Testimony 100 Post-Mortem Hair Banding 101 Can Your Smell Identify You? 102 Can a Computer Identify Your Handwriting? 102 Summary 102 Discussion Questions 103 lissitzyn vallen 2e 00 auto cases f2.qxp 12/11/17 2:23 PM Page viii viii CONTENTS Chapter 5 · The General Acceptance Rule and the Daubert Case 105 Overview 105 Chapter Objectives 106 The General Acceptance Test 106 The Daubert Rule 108 Remand of the Daubert Case 112 Daubert Requires Gatekeeper Hearings 113 The Gatekeeper Process 115 How State Courts Reacted to Daubert 117 Standard of Appellate Review Is Abuse of Discretion 118 Kuhmo Extends Daubert to “Technical” Testimony 118 Post- Daubert Issues 120 Is “Science” Developed Specifically for Litigation Suspect? 120 Is General Acceptance Alone Sufficient for Admissibility? 122 How Well Do Trial Judges Understand Science? 123 Post- Daubert Decisions 124 Summary 125 Discussion Questions 126 Chapter 6 · Fingerprint Analysis 129 Overview 129 Chapter Objectives 130 The Evolution of Fingerprint Identification 131 The Process of Fingerprint Identification 134 Obtaining the Crime Scene Print 134 Getting Prints from a Suspect 135 Comparing Ridge Characteristics and Minutiae 135 The ACE-V Method of Fingerprint Comparison 137 Analysis 137 Comparison of Prints 138 Evaluation 139 Verification 139 Opinion 139 Automated Fingerprint Identification System (AFIS) Matching 140 Isolating the Print 140 Identifying the Ridge Characteristics 141 The Computer Search 141 History of Use of Fingerprints in Court 144 The Llera Plaza Case in 2002 146 Whether the Theory or Technique Can Be Tested 147 Peer Review 148 Rate of Error 148 Controlling Standards 149 General Acceptance 149 lissitzyn vallen 2e 00 auto cases f2.qxp 12/11/17 2:23 PM Page ix CONTENTS ix Cases on Fingerprints after Llera Plaza and before the NRC Report 150 The NRC Report in 2009 151 Changes in Fingerprint Identification Technology 153 Fingerprint Identification Mistakes 155 Fingerprints in the Grant Case 158 Should One Fingerprint Have Been Corroborated? 158 Summary 161 Discussion Questions 163 Chapter 7 · DNA 165 Overview 165 Chapter Objectives 166 The Process of DNA Profile Analysis 167 What Is DNA? 167 DNA Typing — A Quickly Changing Technology 167 The Principles of DNA Testing 167 Restriction Fragment Length Polymorphism (RFLP) Testing 169 DNA Testing Improves with Short Tandem Repeats (STR) 170 Polymerase Chain Reaction (PCR) “Copies” Small DNA Samples 170 The Role of Statistics in DNA Profiling 171 DNA Testing of Degraded Samples 172 The Use of DNA Testimony in Court 173 Early Court Challenges to DNA Test Results 173 “Judicial Notice” of DNA Testing 173 A Daubert Hearing Is Not Required to Challenge Errors in a Particular DNA Test 174 The Expert Opinion in Court on a DNA “Match” 175 Avoiding the “Prosecutor’s Fallacy” 175 “Cold Hit” DNA 177 DNA Evidence in the Grant Case 178 Porter DNA Hearing in Grant Case 181 Challenges to New DNA Technologies 182 Touch DNA Evidence 182 Rapid Testing DNA 187 Daubert Hearings on Mitochondrial DNA 188 Making an Argument that DNA Was “Planted” 190 Objections Based on Poor Laboratory Procedures 191 The Confrontation Clause and the Right to Examine DNA Testers 192 What Objections Are Left to Refute DNA Profiles? 197 Summary 199 Discussion Questions 200 lissitzyn vallen 2e 00 auto cases f2.qxp 12/11/17 2:23 PM Page x x CONTENTS Chapter 8 · Firearms and Toolmarks 203 Overview 203 Chapter Objectives 203 Case Study 204 Firearms 204 Class Characteristics 205 Sub-Class Characteristics 205 Individual Characteristics 206 Characteristics Based on Wear 206 Bullets 206 Casings 207 NIBIN 209 The State of the Law 210 Other Firearms-Related Forensics 220 Gunshot Residue 221 Toolmarks 223 Summary 226 Discussion Questions 226 Chapter 9 · Computer and Digital Forensics 227 Overview 227 Chapter Objectives 227 Case Studies 228 State v. Lasaga ; U.S. v. Lasaga 228 Connecticut’s Most Expensive Divorce 229 Types of Cases 230 Types of Data 231 Location Data and Identification Data 231 IP Addresses 231 EXIF Data 232 Substantive Evidence 233 Internet Searches 233 Private Browsing 234 Contraband 234 Other Crimes 235 CMOS Data 235 Evidence of Destruction 235 Obtaining the Data 236 Legal Requirements 236 Forensic Recovery 237 A Word about Computer Operations 237 Authentication 239 Acquiring the Data 240 First Responders 241 lissitzyn
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