Sunday, January 17, 2010

Texas should strengthen standards for admitting forensic evidence

The Texas House Criminal Jurisprudence Committee hearing last week included an interesting debate on the subject of the proper standard for admitting forensic testimony into evidence. Committee Chairman Pete Gallego opened the hearing by declaring he was looking for a "milepost or guidance" for when and how forensic evidence is admitted that would "rebuild some of the faith, some of the credibility of the system."

UT Law professor Gary Wellborn was first up, and his testimony framed the debate for many of the speakers after him. Elaborating the case law governing admission of evidence, he noted the the Kelly standard used in Texas is essentially similar to the federal Daubert case, and our rules of evidence are also the same on the subject.

However, Daubert usurped an earlier 1923 case known as Frye which required that a forensic technology mush have reached "general acceptance" among scientists. Daubert used that as one part of a multi-pronged weighing test which also evaluated the "reliability" of forensic methods, an innovation praised by prosecutors as a more "flexible" (read: permissive) approach because they didn't have to wait until scientists agreed to use a new technology or forensic method.

Between 12 and 16 states (different numbers were given by different presenters at the hearing) still operate under the Frye standard, but those include most of the larger states, said Wellborn, so that a majority of the US population actually lives in jurisdictions where forensics can't come into court until they've achieved "general acceptance" among scientists. Generally, Frye is considered a somewhat stricter standard among legal scholars.

Texas operated under the Frye standard before 1992, and Wellborn suggested the Legislature consider reenacting it by statute. He said that though the same standards theoretically govern civil and criminal evidence, in practice evidence was vetted much more thoroughly in civil court because all parties have access to resources, whereas in most criminal cases (especially those with indigent counsel) only the state has access to forensic evidence, expert witnesses, etc.. Chairman Gallego lamented that the Court of Criminal Appeals seemingly doesn't apply the same level of "rigor" when evaluating evidence as civil courts.

Wellborn said he didn't consider enacting the Frye standard as the end-all-be-all of reform. The change "could make very little difference" in practice, he said, but it's something reasonable the Lege could try to tighten up the system. Since most of the US population already lives under this standard, he emphasized, the risk of serious unintended consequences is low.

Williamson County DA and Forensics Science Commission Chairman John Bradley testified later that he held the "opposite point of view" from Mr. Wellborn and that Frye is not the right test, but the reasons he gave for saying so don't hold up to scrutiny. Bradley told the committee that if the Frye standard had been in place, Texas courts would not have admitted DNA evidence for another 5-10 years compared to Texas' more permissive case law. He went so far as to suggest that innocent people would have been forced to sit in prison longer if Prof. Wellborn's suggestion were implemented.

That's an excellent argument and there's only one real problem with it: It's simply untrue. Just four years after Texas changed its standard, the National Research Council completed a comprehensive review of DNA forensics in a 1996 report, The Evaluation of Forensic DNA Evidence, which found the Frye standard had not delayed admission of DNA evidence: "To the best of our knowledge, no state or federal court has held that VNTR profiling is inadmissible on the grounds that it is not scientifically accepted or sound." What's more, in jurisdictions following Frye, they found, "The biological and technological principles underlying the forensic methods for characterizing DNA variations have generated little controversy in court."

Jeff Blackburn from the Innocence Project of Texas added an excellent point that IMO should receive just as much attention as Wellborn's idea of reenacting Frye. Blackburn suggested the committee should strengthen by statute the so-called Nenno standard, which further relaxed requirements for forensic testimony to eliminate expectations that "soft" sciences must be subjected to peer review or independent, external evaluation. Opined the court, "hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences." This ruling opened the door to all sorts of "soft" forensic testimony and has been the source of much mischief, as evidenced by the fiasco over faulty dog-sniff lineups.

For more background, see a good discussion in this CCA decision of the relationship between Frye, Kelly and Nenno under current Texas case law.

Whether Frye is the right standard, and it may well be the best approach, I certainly would like to see the Legislature step up to require greater rigor regarding forensic evidence admitted into criminal court, including for the "soft" sciences. Concerns that stronger standards might keep out genuinely probative evidence are either overblown or manufactured - that didn't happen with DNA and it won't happen with other legitimate scientific advances. But there has to be a way to distinguish between evidence like DNA and the guy who uses dogs to match scents to suspects. One is legitimate science, the other is backed by no science at all and finds its primary support in past use by Communist totalitarian police states.

Since the Court of Criminal Appeals overtly weakened standards by which Texas judicial gatekeepers judge forensic evidence, it's up to the Legislature to enact a stronger standard for them. I thought the discussion at the Criminal Jurisprudence Committee on Monday (see the archived video here) was a good first conversation about what that stronger standard might look like.


Anonymous said...

Bradley and prosecutors of his ilk are lying (insert bad name here).

They routinely fight to PREVENT innocence claims from being vetted by DNA or other methods. Now he says innocent people would have stayed in jail longer without it?


Ryan Paige said...

It's an interesting juxtaposition seeing Bradley talk about the innocent people who might have been stuck in prison under a stricter admissibility standard after a federal judge “questions (Bradley's) rationale for rejecting the plaintiff's offer to conduct DNA and other testing at their own expense, particularly in light of (his) duties to uphold the Constitution and seek and provide fair and impartial justice."

He's been fighting potentially exculpatory DNA testing in this specific case for five years. I don't know how that squares with his stated position in front of the Legislature.

Anonymous said...

So, Grits, are you also ready to keep out those "soft" sciences that are being used by defense attorneys to argue for their clients? Eyewitness identification and psychiatry are the softest of sciences, posing social claims that can't be measured by your beloved error rates. Yet, every day some soft-headed social scientist gets to claim the defendant is innocent or not worthy of punishment because of such sloppy science.

Once again you reveal your liberal hypocrisy. Anything that helps the defendant must be good. Anything that helps the prosecution must be bad. That's not science. That's just bias. When will you start being honest?

Gritsforbreakfast said...

Actually, 1:26, to answer your question, yes, I am absolutely for applying the stronger standard to defense experts. What's good for the goose is good for the gander. I'm arguing for a higher standard that applies to BOTH sides, not just the prosecution. If for some reason you think I meant otherwise, that says more about the biases you bring to the discussion than it does than anything I've written.

Also, just for the record, please name a single case where either expert testimony critical of eyewitness identification or from a psychiatrist got someone out of prison on actual innocence grounds? I know of plenty of DNA exonerations, but I'm unaware of any innocence cases that fit the description you lay out. But I'm sure you can educate us, right?

On mitigation, too, I'm fine with a higher standard for both sides, even if it keeps out certain pro-defense testimony. To the extent that's true, it would also cut the other direction. States representing most of the US population get along fine with the stronger Frye standard, and I'm sure Texas would too.

Williamson Native said...

Bradley is not the person our Criminal Justice should be consulting for any reason. There are too many well known facts about the man:

1) Bradley handling of the discovery process within his own county. There is no discovery process without a trial.
2) Bradley has made no secret about his desire to destroy all evidence in a case immediately following a guilty plea or conviction.
3)Should a defendant file an appeal to withdraw a plea of guilty, Bradley will convict that individual of "aggravated perjury" This includes individuals who were 17 and had very poor legal counsel, a 17 year old with the mentality of a 10 to 12 year old, individuals who were manipulated by the prosecutor through the defendant's own attorney.
4) Means of obtaining pleas are questionable.
5) Bradley refuses to test and/or turn over DNA/fingerprints for testing from 2 separate but remarkably similar crime scenes. One crime unsolved and the other while it is considered solved, the man has always maintained that he is innocent of having murdered his own wife. Testing of the DNA could at least help solve the unsolved crime.
6)Bradley made excuses for not prosecuting Jimmy Fennell, former Georgetown cop for aggravated sexual assault.

It is obvious to me that Bradley has no regard for truth and justice, or humanity for that matter.

Anonymous said...

01:26 Grits wants them back on the street and will promote any argument that will achieve that end.

Gritsforbreakfast said...

4:59, it's sorta pathetic to respond in agreement to your own anonymous comments, particularly when you ignore direct reactions to what you wrote before.

In any event, if the standard would apply to the defense as well as the prosecution, why would it necessarily put anyone "back on the street"? Particularly if as 1:26 says, " those "soft" sciences that are being used by defense attorneys to argue for their clients?" To the extent it would undercut such defense tactics, did you ever think a higher standard might put MORE people away?

Anonymous said...

The trouble with the Frye standard was its potential for excluding novel but valid science. The strength of the Daubert/Kelly approach is its use of a series of criteria to assess the admissibility of the evidence, with the touchstone being reliability. It was because Kelly would have precluded some of the wackier prosecution experts, specifically those making psychiatric predictions of future dangerousness, that the CCA spawned Nenno. Interested readers should call in the CCA archives and read the record in Nenno, then look at the way that Keller misrepresents the qualifications of the FBI pseudo-scientist in that case in order to validate her decision. She's done many a shameful thing in her time, but the Nenno decision is a real stand-out.

Anonymous 01:26 doesn't seem to understand his/her own terminology: is s/he attacking or defending the use of eyewitness ID? In any event, weak eyewitness evidence is far more likely to result in the imprisonment of the innocent, than the challenges to its use, which are based on empirical studies of the human brain's ability to make accurate observations. Likewise, the "psychiatrists" that the prosecution pays to predict "future dangerousness" have been shown time and again to be unable to make accurate predictions. But since challenges to eyewitness ID and future dangerousness speculation are disfavored by prosecutors, the courts have resisted them.

I agree with Grits' basic premise - bad science has no place in the courtroom. The real problem is getting the CCA to grow some and stand up to the prosecutors, rather than bending their own rules to make garbage admissible in order to uphold convictions and sentences.

Anonymous said...

Well I'll admit I am confused. I was under the impression that Daubert was a stricter standard in that reliability and validation or the ability to validate were requirements. That would seem much more important that the general acceptance test. Is Daubert being misapplied? Has the process been bastardized?

Gritsforbreakfast said...

I think 8:53 hit it on the head, 10:16. The problem may not be with the Kelly/Daubert standard but the outcome-oriented approach of the sitting CCA.

I'd encourage you to listen to the law prof quoted in the story - he's the first witness up at the hearing, a/v for which is linked at the end of the post - for an explanation of why he thought Frye was stricter. Importantly, he advocated leaving Kelly as is, but requiring Frye-type general acceptance as a pre-requisite to a reliability analysis, not relying on Frye exclusively.

Curious52 said...

Forensic Standards?
Yes, I have to agree. SOMEONE needs to oversee the 'standards' of the forensic evidence, ESPECIALLY when there is none to make a ruling of suicide!
Dr. Reade Quinton/Southwestern Inst. of Forensic Science/Dallas, mistakenly ruled my son's death a suicide by hanging. However, he also told me that there was NO evidence of strangulation! (Joshua Robinson) Attached documents within the story, click on the underlined phrases.
Please sign the attached petition.

TDCJ EX said...

Why do some anonymous individuals believe that any one wants to let every one out of prison ?no one has ever said that . Some guilty people might be released if their convictions are overturned due ot misconduct and or constitutional violations by the cops,prosecutor or judge . That would be the fault of the cops , Prosecutor and judge who engaged misconduct .for what ever reason they had . For the uninformed the Constitution protects all of us including those who are accused and even found guilty of crimes from the state . it does not give any one any extra rights that is a myth and outright ignorance our Constitution a sad statement if you think about it

What good does convicting , incarcerating and possibly executing a innocent person do ? It does means the guilty party is free to do what ever it is they do . A innocent person has waste year so of their life and in some cases possibly lost their lives at the hands of the state . The idea of “finality” over justice and convicting the actual guilty party is frightening . That -pole would so easily give up their hard won rights so a person assumed guilty or “found guilty” in the media in the media can be easily convicted and then incarcerated or worse executed . That sounds like human sacrifices on the alter of revenge not justice .

The CCA in it's current make up will find”harmless errors” in the most blatant prosecutor misconduct or constitutional violations so long as their is a conviction all is well in the CCA . Innocence, guilt and those “annoying pest” we call Constitutional rights are not important to them . Not is not a technicality when the state violates your rights and yes it can happen to any one
.Usually it is easy to predict a CCA ruling the state is always right even when it is wrong the convicted is always wrong even if they are right , innocent or both .Keep in mind the CCA find “harmless errors” in the most blatant and obvious misconduct if it committed by the prosecution The same CCA with a openly pro prosecution chief justice

All evidence should be held to a very high standard . All so called “forensic sciences” should be tested and peer reviewed in the same way we test and review other science including soft sciences. Try passing a college course with the junk science methods used by forensic scientist you will fail (Maybe not in the misnamed liberty university founded by Jerry Falwell ) . Out side if DNA and now arson that would be such fields as chemistry and engineering not soft sciences at all Most forensic science is junk so far there is little evidence any of it is any good . Most of it has never been tested to see if it is valid. A good example is the lead bullets be worthless . Any one accused should be able to challenge both the “ forensic sciences”and the “forensic scientist “ in court . The Daubert standards is often misapplied by as Grits rightly calls them out come oriented courts to uphold a conviction at all costs including actual innocence

We also could do a better job at educating people about our Constitution and why we have it as well as what is and what is not science . Unlike what you see on CSI type shows . There are not cool gadgets that spit out a name,photo ,phone number/s age and of course the immediate location of any one .

Until more people realize that they could easily be convicted , incarcerated and possibly executed for something they did not do on nothing more than lies and junk science . These problems will continue to go on .

Anonymous said...

It is interesting that Kelly and Daubert are being described as more permissive standards. I seem to recall that when they were announced it was in response to "junk science" testimony being admitted under Frye. Anything that excludes voodoo, psychs, pshrinks, so called "eye witness ID" experts, and WHORES (witness having other reasonable explanation) that applies to both sides ought to work just fine.

Gritsforbreakfast said...

Just to be clear, 8:55, as mentioned above, Prof. Wellborn "advocated leaving Kelly as is, but requiring Frye-type general acceptance as a pre-requisite to a reliability analysis, not relying on Frye exclusively."

IOW, he's not for reverting to Frye, but essentially suggesting use of the strongest parts from both standards.