Forensic Evidence in Court

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Forensic Evidence in CourtA Case Study Approach

SECOND EDITION

Christine Beck Lissitzyn

Marc Wm. Vallen

Carolina Academic PressDurham, North Carolina

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Copyright © 2018Carolina 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--dc23LC record available at https://lccn.loc.gov/2017024140

eISBN 978-1-53100-451-4

Carolina Academic Press, LLC700 Kent Street

Durham, NC 27701Telephone (919) 489-7486

Fax (919) 493-5668www.cap-press.com

Printed in the United States of America

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Contents

Table of Cases xvList of Figures xixAcknowledgments xxiIntroduction xxiii

Chapter 1 · Using Forensic Evidence to Prove Ultimate Issues 3Overview 3Chapter Objectives 4What Is Forensic Evidence? 5

How Is Forensic Evidence Used in Criminal Trials? 5Proof of Ultimate Issues 6Standard of Proof 7Identification 7Proving What Happened 7Individual vs. Class Characteristics 8Science vs. Junk Science 10Qualifications of the Forensic Expert and Freedom from Bias 10Eyewitness Identification 11Rules Governing Admitting a Forensic Expert’s Testimony 11Federal Rules of Evidence 703 and 705 12Chain of Custody 13The Expert “Opinion” 13Jury Instructions on Expert Testimony 14

Forensic Evidence Is Circumstantial Evidence 14Case Study in Circumstantial Evidence: The Richard Crafts Case 18

Were Helle’s Statements Admissible under the Hearsay Rule? 19Fingernail, Hair, Fiber, Tooth, and Tissue 20Standard of Proof Where One Inference Depends on Another 21

Circumstantial Evidence in the Grant Case 26The Handkerchief 27

Summary 28Discussion Questions 29

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Chapter 2 · The Court Process: Procedure, Law, and Rules of Evidence 31Overview 31Chapter Objectives 33The Rules of Evidence Govern the Admission of Evidence 33

State and Federal Courts Have Different Rules 33The Role of the Courts in Admitting Evidence 34

Motions 34Motions in the Grant Case 35

Grant’s Motion to Exclude DNA Evidence 35Grant’s Motion to Exclude His Statement to Police 35Grant’s Motion during Trial for a “Mistrial” 36

Grant’s Motion for New Trial 36General Principles of Law Applicable to Criminal Trials 36

The Effect of a Not Guilty Verdict 36More than One Trial Can Result from the Same Set of Facts 37Double Jeopardy Applies Only to Acquittal of the Same Crime 37

The Effect of the U.S. Confrontation Clause on Which Witnesses Must Testify 38The Meaning of Precedent 41The Jury Is the Finder of Fact 42

Rules of Evidence Governing What Evidence Can Be Admitted 42Pretrial Procedure 42Relevance 43Undue Prejudice 44Was a Prosecution’s DNA Testimony Unduly Prejudicial? 45Evidence of Prior Crimes Is Generally Not Admissible 45The Defendant Is Not Required to Testify 46Rules Relating to Forensic Expert Testimony 48Judicial Notice 48Appeals 49Federal Court System 49State Courts 50Harmless Error Rule and Abuse of Discretion Standard 51Possible Rulings on Appeal 51Habeas Corpus Appeals 52

Summary 54Discussion Questions 55

Chapter 3 · Crime Scene Investigation 57Overview 57Chapter Objectives 58How Forensic Evidence Is Processed 58

Locard’s Exchange Principle 59On-Site Investigation 59

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Laboratory Testing 61Do Juries Expect Forensic Evidence? 63Crime Scene Drawings 64

Chain of Custody 67The Chain of Custody in the Grant Case 70

Linking Forensic Evidence to Witness Statements 71Missing Evidence 72

Expert Qualifications 72No Experts for the Defense 73Claims of Ineffective Counsel Based on Crime Scene Experts 74

Summary 75Discussion Questions 76

Chapter 4 · The Scientific Method and “Junk Science” 77Overview 77Chapter Objectives 78What Is the Scientific Method? 79

Defining the Relevant Scientific Community 81Determining the Error Rate 81The “Science” of Inclusion, Exclusion, and Identification 82Replicability and Absence of Subjective Judgment 83

What Is the Scientific Hypothesis? 83Fingerprints 83DNA 85Eyewitness Identification 86

What Is Junk Science? 86Forensic Evidence that Lacks Sufficient Scientific Studies 88Firearms and Toolmarks 88Bite Marks 90Knife Prints 93Shoeprints 94Palmprints 95Lip Prints 95Polygraph 96Is “Neuroimaging” a More Scientific Form of Measuring Knowledge? 97Psychological Expert Testimony 100Post-Mortem Hair Banding 101Can Your Smell Identify You? 102Can a Computer Identify Your Handwriting? 102

Summary 102Discussion Questions 103

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Chapter 5 · The General Acceptance Rule and the Daubert Case 105Overview 105Chapter Objectives 106The General Acceptance Test 106The Daubert Rule 108

Remand of the Daubert Case 112Daubert Requires Gatekeeper Hearings 113The Gatekeeper Process 115How State Courts Reacted to Daubert 117Standard of Appellate Review Is Abuse of Discretion 118Kuhmo Extends Daubert to “Technical” Testimony 118Post-Daubert Issues 120

Is “Science” Developed Specifically for Litigation Suspect? 120Is General Acceptance Alone Sufficient for Admissibility? 122

How Well Do Trial Judges Understand Science? 123Post-Daubert Decisions 124

Summary 125Discussion Questions 126

Chapter 6 · Fingerprint Analysis 129Overview 129Chapter Objectives 130The Evolution of Fingerprint Identification 131The Process of Fingerprint Identification 134

Obtaining the Crime Scene Print 134Getting Prints from a Suspect 135Comparing Ridge Characteristics and Minutiae 135

The ACE-V Method of Fingerprint Comparison 137Analysis 137Comparison of Prints 138Evaluation 139Verification 139Opinion 139

Automated Fingerprint Identification System (AFIS) Matching 140Isolating the Print 140Identifying the Ridge Characteristics 141The Computer Search 141

History of Use of Fingerprints in Court 144The Llera Plaza Case in 2002 146Whether the Theory or Technique Can Be Tested 147Peer Review 148Rate of Error 148Controlling Standards 149General Acceptance 149

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Cases on Fingerprints after Llera Plaza and before the NRC Report 150The NRC Report in 2009 151Changes in Fingerprint Identification Technology 153Fingerprint Identification Mistakes 155Fingerprints in the Grant Case 158

Should One Fingerprint Have Been Corroborated? 158Summary 161Discussion Questions 163

Chapter 7 · DNA 165Overview 165Chapter Objectives 166The Process of DNA Profile Analysis 167

What Is DNA? 167DNA Typing — A Quickly Changing Technology 167The Principles of DNA Testing 167Restriction Fragment Length Polymorphism (RFLP) Testing 169DNA Testing Improves with Short Tandem Repeats (STR) 170Polymerase Chain Reaction (PCR) “Copies” Small DNA Samples 170

The Role of Statistics in DNA Profiling 171DNA Testing of Degraded Samples 172

The Use of DNA Testimony in Court 173Early 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 174The Expert Opinion in Court on a DNA “Match” 175Avoiding the “Prosecutor’s Fallacy” 175“Cold Hit” DNA 177

DNA Evidence in the Grant Case 178Porter DNA Hearing in Grant Case 181

Challenges to New DNA Technologies 182Touch DNA Evidence 182Rapid Testing DNA 187

Daubert Hearings on Mitochondrial DNA 188Making an Argument that DNA Was “Planted” 190Objections Based on Poor Laboratory Procedures 191

The Confrontation Clause and the Right to Examine DNA Testers 192What Objections Are Left to Refute DNA Profiles? 197Summary 199Discussion Questions 200

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Chapter 8 · Firearms and Toolmarks 203Overview 203Chapter Objectives 203Case Study 204Firearms 204

Class Characteristics 205Sub-Class Characteristics 205Individual Characteristics 206Characteristics Based on Wear 206Bullets 206Casings 207

NIBIN 209The State of the Law 210Other Firearms-Related Forensics 220Gunshot Residue 221Toolmarks 223Summary 226Discussion Questions 226

Chapter 9 · Computer and Digital Forensics 227Overview 227Chapter Objectives 227Case Studies 228State v. Lasaga; U.S. v. Lasaga 228Connecticut’s Most Expensive Divorce 229

Types of Cases 230Types of Data 231

Location Data and Identification Data 231IP Addresses 231EXIF Data 232

Substantive Evidence 233Internet Searches 233Private Browsing 234Contraband 234Other Crimes 235CMOS Data 235Evidence of Destruction 235

Obtaining the Data 236Legal Requirements 236Forensic Recovery 237

A Word about Computer Operations 237Authentication 239Acquiring the Data 240First Responders 241

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A Word about ROM and RAM 242Cell Phone Data 243

Substantive Evidence 243Identification Data 243Location/GPS Data 244Pictures 248EXIF Data 248

Legal Issues 249Authentication of Data 249Search and Seizure 250Relevance 251

Electronic Discovery 252Federal Rules of Civil Procedure 253Methods 254

Summary 255Discussion Questions 255

Chapter 10 · Eyewitness Identification 257Overview 257Chapter Objectives 259Why Is Eyewitness Testimony Unreliable? 260Eyewitness Errors in Exoneration Cases 260The Historical Legal Standard for Eyewitness Identification 262Jury Instructions 269Problems with Lineup Procedures 270Proposed Lineup Reforms 271Are There Enough Experts on Eyewitness Error to Testify? 271Admissibility of Composite Sketches 271The Modern Approach after Daubert 272

The “Special Master” Approach 273The “Study Group” Approach 275

How Memory Works 276Variables Affecting Memory 277

Juror Understanding 280Addressing Issues in Eyewitness Identification 281

Jury Instructions 281Cross-Examination 286Pretrial Hearings 287Expert Witnesses 287Closing Argument 292Disallow 292In-Court Identification for the First Time 292

The Future of Eyewitness Identification 295Facial Recognition Technology 295

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Summary 297Discussion Questions 297

Chapter 11 · Blood Spatter Analysis 299Overview 299Chapter Objectives 300What Is Blood Spatter? 300

Blood Spatter Analysis — What Is the Scientific Hypothesis? 301Methods of Determining Patterns 303

Is Blood Spatter Expert Testimony Reliable? 304Reliability Rulings 304Bloodstain Analysis in Crime Reconstruction 306Does a “Hypothetical Opinion” Solve the Problem? 308

Challenges to Expert Qualifications 310Blood Spatter “Experiments” Inadmissible 312Case Study: The Sam Sheppard Case — Blood Spatter in a Brutal Killing 315Blood Spatter in the Grant Case 319Summary 319Discussion Questions 320

Chapter 12 · Handwriting and Questioned Documents 323Overview 323Chapter Objectives 324The Traditional Handwriting Analysis Process 325

Traditional Handwriting Analysis Is a Subjective Process 326The Role of Training and Experience 327Is Handwriting Analysis a Reliable “Science”? 327Is There Any Proof That Handwriting Is Unique? 328What Characteristics Are Most Useful in Distinguishing Handwriting? 329Are More Common Characteristics Required in Identifying the

Source of Disguised Writing? 329Gathering Exemplars 330Examine Pictorial Similarities 330Look for Individuating Characteristics 330Forgeries 330Disguise 331The Handwriting Expert’s Opinion 331

What Characteristics Do Experts Look For? 331The Admissibility of Handwriting Expert Testimony 332

Handwriting Analysis after Daubert but before Kuhmo 332Admissibility after Kuhmo 334Disguised Writing 335Rejections Based on Lack of Expert Qualifications or

“Common Knowledge” 336

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Expert May Point Out Differences, but Not Give an Opinion 336Reliability and Error Rate 341

Handwriting Testimony Found to Meet Daubert as Reliable 344Does Scholarly Disagreement Show Lack of General Acceptance? 347

Court Decisions after the NRC Report 348Will Computer Handwriting Analysis Meet the Daubert Test? 351Ransom Notes — From Lindberg to JonBenét 353

Who Wrote the JonBenét Ramsey Ransom Note? 355Summary 362Discussion Questions 363

Chapter 13 · Exonerations of the Wrongly Convicted 365Overview 365Chapter Objectives 366The Innocence Project 367

Who Are the Exonerated? 367Laws to Preserve DNA Evidence 368What Is the Process Leading to Exoneration? 369

Getting the Conviction Reversed 373One State’s Approach 373Federal Law 374

The Role of Eyewitness Misidentifications and Reform Efforts 375Are the New Statutes Too Little, Too Late? 376

Claims Based on Failure to Test DNA Evidence 376House v. Bell — A Reversal Based on Improper Blood Testing 380Exoneration and Post-Conviction Mitochondrial DNA Testing 383Can Exonerees Sue for Money for Wrongful Imprisonment? 384How Does the Exoneree Return to Society? 386

James Tillman 387Summary 388Discussion Questions 389

Appendix · The Grant Case Study and Record 391Overview 391

The Investigation 392The Trial and Appeal 392

Detailed Record 397Theory of the Case 397Semen 398Suspects 398Eyewitness Reports 399

Forensic Evidence 399The Weapon 399Fingerprints 400

CONTENTS xiii

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Blood Spatter 400Crime Reconstruction 401Blood Testing 402Fingerprint Testimony 404DNA 405Eyewitness Testimony 406Composite Sketch 408Grant’s Character 408No Alibi Evidence 409Press Coverage of the Trial 409The “Lost” Evidence 410Written Statements Read at Trial 410Lack of Motive 411How the Fingerprint Got on the Box 411

Motions 412Motion to Exclude DNA Results 412Motion to Exclude Statement Made by Grant to Police 412Motion During Trial for a “Mistrial” 413

Closing Arguments 413Overview 413The Prosecution’s Initial Closing Argument 414The Defense’s Closing Statement 417The Prosecution’s Rebuttal to the Defense’s Closing Argument 426Objections Made in Closing Arguments 428

Jury Instructions 428Conviction 432Post Trial Motions 433Appeal 433

The Grounds for Grant’s Appeal 434Wrongful Admission of Statement by Grant to Police 435Prosecutorial Misconduct 435The State’s Response 435

Appeal Denied 438Comments from the Jury 439

Index 441

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Table of Cases

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Abreu, United States v., 145Adame, United States v., 245Booth v. Kit, 99Brower v. Secretary for Dept. of Cor-

rections, 66, 74Brown, United States v., 118Brown, United States v., 334Bullcoming v. New Mexico, 193, 197Campbell, State v., 161Campbell, United States v., 152Carey, United States v., 237Carver, State v., 182Chimel v. California, 250Chischilly, United States v., 177Coleman (Parent) Holdings v. Morgan

Stanley, 252Coleman v. State, 308Cooper, State v., 204Council, U.S. v., 94, 95Crafts, State v., 19, 21, 28Crawford v. County of Dauphin, 300,

313Crawford v. Warden, Warren Correc-

tional Institution, 311Crisp, United States v., 345, 342, 343Cromedy, State v., 282Da Silva Moore v. Publicis Groupe,

254Dale, U.S. v., 153, 348, 362Daubert v. Merrell Dow Pharmaceuti-

cals, Inc., 11, 12, 41, 65, 77, 78,

80, 81, 86, 89, 91, 93–98, 100–103, 105–127, 129–131, 137, 138,145–147, 149, 150, 153–155, 162,163, 165, 173–175, 181, 182, 185,186, 188, 199, 203, 210–214, 216,220, 224, 226, 259, 262, 272, 276,288, 290, 292, 293, 296, 297, 305,308, 311–314, 324–327, 332–335,337–346, 348, 349, 351, 361, 363,364, 383, 384

Dengler, Pennsylvania v., 101Dickenson, State v., 293Dracz v. American General Life Insur-

ance Co., 336Edmonds v. Mississippi, 101Ege v. Yukins, 115Emerick, State v., 225Franco v. Texas, 306, 320Fricosu, United States v., 251Frye v. United States, 91, 93, 96, 100,

101, 105–110, 112, 117, 118, 123–127, 173, 177, 181, 266

Fugate v. Kentucky, 173Fultz, U.S. v., 66General Electric Co. v. Joiner, 118Gimenez v. J.T. Ochoa, 74Ginardi, State v., 272Giordano, State v., 37Giordano, United States v., 37Glynn, United States v., 215Gomes, Commonwealth v., 275, 278

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Gonalez-Perez v. Gomez-Aquila, 65Gorny, U.S. v., 64Grant, State v., 70, 181, 391, 397Gray v. Gelb and Coakley, 63Green, United States v., 211Griffin, Connecticut v., 101Griffin, Washington v., 194Guilbert, State v., 288Halake, Tennessee v., 309, 310Hauptmann, New Jersey v., 353–355Havvard, United States v., 151Henderson, New Jersey v., 272–280,

282, 287, 290, 292 Hernandez, United States v., 335Hines, United States v., 337–341Hinton v. Alabama, 74Holmes v. Texas, 305, 306House v. Bell, 69, 380, 382In the Matter of The Decryption of a

Seized Data Storage System, 251Jakobetz, United States v., 49Jennings, People v., 129, 144Johnson, People v., 175, 178Johnsted, U.S. v., 349Joines v. Moffitt, 65Karr, People v., 362King, Kentucky v., 251Kogut, New York v., 101Kuhmo Tire Co. v. Carmichael, 118Lasaga, State v., 228, 249Lasaga, United States v., 228Lauder, United States v., 154, 163Ledbetter, State v., 258, 269Legrand, New York v., 109, 264–269Lewis, United States v., 335, 341Link v. Luebbers, 73Lloyd, United States v., 242M.F., People v., 40, 196Maher v. Quest Diagnostics, 48Mahone, United States v., 9Manson v. Brathwaite, 263Mapp v. Ohio, 250McClendon, State v., 289McCluskey, U.S. v., 185

McDaniel v. Brown, 176Meija, U.S .v., 67Melendez-Diaz v. Massachusetts, 38Mincey v. Arizona, 60, 250Mitchell, United States v., 146–148Monteiro, United States v., 215Monzo, State v., 161Moore, State v., 303Morgan, U.S. v., 184, 185Moua, Minnesota v., 90Mustapha, United States v., 151N.J. v. Moore, 101Neil v. Biggers, 263Otero, United States v., 203, 210Pappas, State v., 188Payne, State v., 160Pizarro, People v., 169, 173Porter, State v., 97, 106, 117Prime, United States v., 346Prince, People v., 173Ragland v. Kentucky, 90Ramirez v. Florida, 93Rasmussen v. The City of New York,

311Ratliff v. Alaska, 94Reddick v. Florida, 370Reid, State v., 189, 190, 384Reynolds, United States v., 247Riley v. California, 250Rogers, Idaho v., 304, 306Schmerber v. California, 251Schneckloth v. Bustamonte, 251Seay v. Snyder, 65Shea, United States v., 49, 174Sheppard, Ohio v., 15–16, 300, 315–

319Sheppard v. Maxwell, 316Smallwood, U.S. v., 93Smith v. Virginia, 308–309Smithers, United States v., 258, 281Starks v. City of Waukegan, 91Starzecpyzel, United States v., 327Swinton, State v., 91, 225Tauck v. Tauck, 229

xvi TABLE OF CASES

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Washington v. Green Haven Correc-tional Facility, 192

Weisgram v. Marley, 120

Williams v. Illinois, 39, 166, 193Wolf v. Ramsey, 357Zubulake v. UBS Warburg, 252

TABLE OF CASES xvii

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List of Figures

Fingerprint Patterns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

Ridge Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

AFIS Screens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

AFIS Printout . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

Madrid Railroad Bomber Misidentification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Grant’s latent and inked fingerprint comparison, exhibit 55.1 . . . . . . . . . . . . . . . 159

Grant’s inked fingerprints, exhibit 218 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

Locations of DNA and MtDNA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168

Grant DNA report, trial exhibit 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

Grant electropherogram, trial exhibit 84 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180

Figure 8.1 Comparing striations in a subject bullet to a test-fired bullet in a Leeds Forensic Systems LCF3 comparison microscope. . . . . . . . . . . . . . . . . . 207

Figure 8.2 Firing pin comparison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

Figure 8.3 Breech mark comparison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 208

Figure 8.4 Using a Leeds Forensic Systems LCF3 comparison microscope to compare breech marks of a known casing to exemplar casing. . . . . . . . . . . . . 209

Figure 8.5 GSR test at 3" (left) and at 15" (right). . . . . . . . . . . . . . . . . . . . . . . . . . 222

Figure 8.6 Toolmark comparison. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

Figure 9.1 EXIF data, as viewed using Microsoft Windows Photo Viewer. . . . 233

Figure 9.2 Example of recovery of search term, using ProDiscover 7 Basic. . . . 233

Figure 9.3 Evidence of “wiping.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 236

Figure 9.4 Forensic acquisition of an Apple Mac using a write-blocker (located in front of the Mac). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237

Figure 9.5 Text displayed in regular text, in hexadecimal format and in binary format. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238

xix

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Figure 9.6 Partially over-written picture file. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239

Figure 9.7 Two picture files with one pixel changed will result in entirely different hash values. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240

Figure 9.8a Recovering deleted files using ProDiscover Basic 7. . . . . . . . . . . . . . 241

Figure 9.8b Recovery of an internet search in temporary internet files usingProDiscover Basic 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241

Figure 9.9 Forensic recovery of cell phone data. . . . . . . . . . . . . . . . . . . . . . . . . . . 244

Figure 9.10 Cell tower array seen from below. . . . . . . . . . . . . . . . . . . . . . . . . . . . 245

Figure 9.11 Using Clustify to cull documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255

Figure 11.1 Low velocity blood spatter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301

Figure 12.1 Cedar-Fox computer handwriting analysis image. . . . . . . . . . . . . . . 352

Figure 13.1 Attorney Karen Goodrow, of the Connecticut Innocence Project,James C. Tillman, exonerated after 18 years for a crime he did not commit, and author Christine Lissitzyn. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 387

Crime Schematic, Temple St. Parking Garage, New Haven, CT . . . . . . . . . . . . . 395

Latent Print on Tissue Box with Detective’s Initials, Bottom, Trial Exhibit 2.21 . . 393

Car with Tissue Box on Back Floorboard (Boxed), Trial Exhibit 2.3 . . . . . . . . . 393

Tissue Box with Blood Closeup, Trial Exhibit 2.19 . . . . . . . . . . . . . . . . . . . . . . . . 393

Penney Serra, Trial Exhibit 3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393

Handkerchief, Trial Exhibit 6.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394

Latent Print on Tissue Box, Trial Exhibit 244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394

Selman Topciu, Trial Exhibit 1067 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396

Photo of Grant with Composite Drawings, Trial Exhibits 222.1, 208, 216, and 41.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396

Lineup Photo, Trial Exhibit 207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 396

xx LIST OF FIGURES

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Acknowledgments

Thank you to the University of Hartford, where I first developed the course inforensic evidence in court, from which this text is developed. I am grateful to mycolleague, Marc Vallen, who generously accepted my request to lend his expertise indigital forensics to the preparation of this second edition, and who later agreed toupdate our chapter on eyewitness identification and add a chapter on firearms andtoolmarks. And I wish to thank Lawrence Lissitzyn, my husband and an attorney,who read and re-read chapters, researched Confrontation Clause issues, and washelpful in innumerable ways.

—CBL

I wish to thank, first and foremost, my darling wife Erica, who in addition toproviding much needed moral support, tolerated me throughout this project,particularly as deadlines approached. Much gratitude to my children, Marc, Olivia,and Tessa, each of whom is an inspiration in their own way. Many thanks to myfriend, colleague, and co-author, Christine Lissitzyn, for asking me to be involved inthis project. My friend and colleague Gary Blake provided much needed assistanceand support. Judge Holly Abery-Wetstone kindly shared her time and experiences,and helped me put a realistic slant on some otherwise esoteric subject matter. I amindebted to the National Computer Forensics Institute for all their assistance ineducating me on the topics at hand, and to the Connecticut Forensic ScienceLaboratory, particularly Jill Theriault in the Firearms and Toolmarks section for her,and their, invaluable assistance. Finally, thanks to all those who kindly allowed theuse of their photography, without which a much more lackluster presentation wouldobtain.

—MWV

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Introduction

This textbook is designed to examine the process by which forensic evidence isused in the court system through case studies and the case law that has resultedwhen forensic evidence has been introduced. The text is designed for any studentof law, criminal justice, or political science who wishes to understand both the powerand the limitations of forensic evidence. The primary focus will be on criminal trials,in which forensic evidence is frequently introduced to prove one of two criticalissues: (1) is the defendant the perpetrator of the crime, or (2) what happened atthe crime scene?

As you will see, forensic evidence is frequently more reliable in excluding adefendant as the perpetrator (for example, the fingerprint on the weapon is not thedefendant’s or the blood at the scene is not the defendant’s) than in positivelyidentifying the defendant (for example, the hair sample or shoeprint at the scene is“consistent with” a class of individuals that includes the defendant but also manyother individuals).

You will also learn how the rules of the U.S. court system limit the ways forensicevidence may be introduced in a trial, the types of expert “opinions” that may beoffered in evidence, and the limitations on the ability of an appellate court to use itsown judgment in deciding whether forensic evidence should have been introducedor excluded.

The public fascination with forensic evidence was captured with the advent ofDNA testing. DNA evidence was introduced in 1995 in the trial of O.J. Simpson, inwhich a jury failed to convict Simpson of the murder of his wife, Nicole, and RonGoldman, a waiter, despite a mass of DNA evidence pointing to his guilt. Due inpart to the introduction of evidence that some DNA evidence may have beendeliberately planted and testimony about a racist detective, the jury concluded therewas “reasonable doubt” about Simpson’s guilt. A different jury, in a subsequent civiltrial, on virtually the same evidence, found based on a “preponderance of the evidence”that Simpson was liable in monetary damages for killing Nicole and Ron Goldman.This may be due in part to the fact that the standard of proof that a criminal juryuses requires a higher level of proof than that of a civil jury.

Television shows such as CSI depict detectives processing forensic evidence andgetting a “hit” on a suspect. In most jurisdictions, the personnel who process forensic

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1. 509 U.S. 579 (1993).

evidence hold degrees in chemistry or other scientific studies and work separatelyfrom the police force. Several types of forensic evidence, such as DNA and fingerprints,are either processed by commercial laboratories, as in the case of DNA, or areprocessed in part by computer systems that yield reports that must be read andevaluated by a fingerprint expert before a “match” can be declared. DNA, in particular,is almost never processed overnight and the DNA backlogs in many states have ledto substantial questions about the justice system’s ability to render a speedy verdict.

However, juries may expect forensic evidence and this expectation, sometimescalled the “CSI effect” may present problems at trial, similar to earlier tendencies ofjuries to simply accept as fact the opinion of an expert witness due to the “WhiteCoat Effect.” Today juries are sophisticated enough to realize that both the prosecutionand the defense pay for their expert witnesses, who often give conflicting reports.However, many defendants who rely on public defenders may not be able to affordto pay an expert witness, which presents another access to justice issue.

In 1993, the use of forensic evidence in court was radically changed by the U.S.Supreme Court in a civil case involving whether a drug caused birth defects. Thiscase, Daubert v. Merrell Dow Pharmaceuticals,1 stated that in deciding whether toadmit scientific testimony under the Federal Rules of Evidence, the party proposingto offer the evidence must show that it meets certain tests that demonstrate that itis based on the scientific method, tested, and reliable. This test subsequently wasincorporated into a revised federal rule of evidence and subsequently adopted inmost state rules of evidence. Therefore, it applies in almost all federal and statecriminal cases today. This inquiry often requires attorneys and judges to understandthe scientific method and statistics, which many do not.

Although Daubert was a civil case, the language of the Supreme Court opinionapplies to any case — civil or criminal — in which forensic evidence is proffered. Andit set off thousands of subsequent court hearings on admissibility and appeals basedon convictions where the defendant contended that the evidence either should orshould not have been admitted under the Daubert standard.

One important issue we will examine is the Supreme Court’s “alternate test” thatscientific evidence can also be admitted if it is “generally accepted” in the scientificcommunity. This has led to a dispute over defining the scientific community. Is itcomposed of academics or law enforcement? Another dispute is whether “generallyaccepted” is the same thing as “generally admitted.” As you will see when we examinehandwriting analysis, expert opinions as to who wrote a questioned document havebeen admitted routinely for years (for example, in the trial of the Lindbergh babykidnapping in 1935) but that does not mean that handwriting analysis has ever beensubjected to the scientific method. It has been generally admitted (and continues tobe) but it is not generally accepted as scientifically reliable.

Forensic evidence almost always requires an “expert witness,” someone who eitherprocessed the evidence and testifies to what he or she concluded, or an expert hired

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2. 557 U.S. 305 (2009).

to evaluate the work or report of a forensic laboratory and give an opinion aboutwhat the test results mean. The expert witness must be qualified by training and/orexperience before he or she can testify, which is another battleground we will examine.

The language of the opinion permitted by courts varies based on history and theability of a jury to look at the evidence and draw their own conclusions. For example,historically, fingerprint experts have been permitted to declare that a fingerprint theyhave examined is a “match” to the defendant’s fingerprint and that it was made bythe defendant and no one other than the defendant. Yet DNA experts typically givean opinion, for example, that the chance a DNA sample taken from a rape kit matchesanyone other than the defendant is 1 in 300 million. Why this difference? You willsee that in part it is because fingerprint experts were permitted to give their “match”opinion long before DNA evidence was available. The other reason is that fingerprintevidence is not used for anything other than criminal investigations, whereas DNAevidence resulted from rigorous scientific studies as the human genome was mapped.Finally, a jury is frequently shown a picture of the crime scene fingerprint and thedefendant’s fingerprint. They can see for themselves the similarities. Of course, thecrime scene print is frequently smudged and incomplete, so the ability of a jury tomake a meaningful comparison is often impaired.

We will also look at areas of forensics that are considered “junk science,” ratherthan true science. Junk science is a term used for a type of forensic evidence that hasnot been subjected to scientific testing and validation. As we will see, the question ofhow much testing is sufficient is not a bright line. Polygraph, for example, is generallyviewed as reliable in measuring blood pressure and sweat. But can these physicalmeasurements correspond to truthfulness? Does the fact that polygraph reliabilityvaries widely based on the training and experience of the person who formulates thequestions mean that it is not science because it cannot be replicated by anyone?Bitemark analysis is an example of something that sounds like science, but has neverbeen tested. Can bitemarks conclusively identify a person? Unlike fingerprints, whichhave been subjected to a test (albeit flawed) of 50,000 fingerprints, bitemarks havenever been tested at all. Can a person be identified by his smell? This is another topicthat may or may not be reliable. Do MRIs of certain areas of the brain indicate thedefendant is violent or dangerous? We will examine these and similar contentions.

The U.S. Constitution bears on a number of important issues relating to forensicevidence. A major issue is whether a defendant has the right to confront and cross-examine the individual who processed a forensic sample. In the case of DNA, forexample, the prosecutor generally offers a report conducted by an outside laboratoryand asks an independent expert to explain its significance. The issue arose in 2009 ina case called Melendez-Diaz v. Massachusetts,2 in which the U.S. Supreme Court heldthat a criminal defendant has a constitutional right to confront the lab technician whoran a forensic test used as evidence against him. The particular facts related to a testof a white substance found on the defendant and identified by a laboratory report

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3. Brandon L. Garrett and Peter J. Neufeld, “Invalid Forensic Science Testimony and WrongfulConvictions,” Virginia Law Review 95, no. 1 (2009): 14.

4. Melendez-Diaz, supra at 321.5. Bullcoming v. New Mexico, 564 U.S. 647 (2011).6. 132 S. Ct. 2221 (2012).7. The National Academies Press, Washington, D.C., www.nap.edu.

entered into evidence as cocaine. In this case, the results of the report were admittedto prove a fact in issue — that the powder was cocaine — but the defendant was notable to cross-examine the analyst who tested the powder to determine what test wasperformed or whether the analyst used any judgment in interpreting the results.

The Supreme Court stated that forensic evidence is not immune frommanipulation, particularly by scientists who may feel pressure from a law enforcementofficial to alter evidence in a manner favorable to the prosecution. It cited acommentator whose research showed over 60% of overturned criminal convictionsinvolved invalid forensic testimony.3 Finally, it said that the ability to confront andcross-examine the analyst could expose incompetent analysts:

Contrary to respondent’s and the dissent’s suggestion, there is little reasonto believe that confrontation will be useless in testing analysts’ honesty,proficiency, and methodology — the features that are commonly the focusin the cross-examination of experts.4

This case could have far-reaching implications for an already-overburdened forensiclaboratory system if individual lab technicians must leave work to testify in court.Following Melendez-Diaz, the Supreme Court has held that the Confrontation Clausealso requires the analyst who tests blood alcohol levels5 to be present for cross-examination, but rejected the argument that the analyst who tests a DNA sample atan outside laboratory must appear. Although the U.S. Supreme Court in Williamsv. Illinois6 later held in a plurality opinion that DNA test results were not “testimonial”and therefore did not trigger the Confrontation Clause, at least one court has restrictedthat opinion to its unusual facts and declined to follow it, holding that at least certainpersonnel involved in DNA testing must be present to testify. This issue can beexpected to have widespread implications in the future.

In 2009, the National Research Council of the National Academies released areport entitled Strengthening Forensic Science in the United States: A Path Forward(referred to in this text as the NRC Report).7 The report resulted from a congressionalmandate to the National Academy of the Sciences to study both research and thetechnical practice of the forensic science community. It was influenced, no doubt,by a widely reported decision by a federal court in Philadelphia that banned afingerprint expert on the ground that fingerprint matching was not sufficientlyscientifically reliable. Although the opinion was later withdrawn, calls for researchabout fingerprinting promptly ensued.

The NRC Report stated that fingerprinting and 11 other areas of forensic evidence(other than DNA) had not been sufficiently scientifically validated. It also concluded

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8. NRC Report, p 8.9. A detailed case record appears in the Appendix to this text.

that testing and training in forensic examination varied widely among the states. Itmade 13 recommendations, including the creation of a federal agency to “establishand enforce best practices for forensic science professionals and laboratories,” to becalled the National Institute of Forensic Science. It called for standardized laboratoryreports and terminology and the development of quantifiable measures of uncertaintyin the conclusions of forensic analyses.

The report highlighted a “major problem” in the forensic science community:

The simple reality is that the interpretation of forensic evidence is not alwaysbased on scientific studies to determine its validity. This is a serious problem.Although research has been done in some disciplines, there is a notabledearth of peer-reviewed published studies establishing the scientific basesand validity of many forensic methods.8

Substantial funds will have to be found to conduct peer-reviewed scientific studies,studies that may be of use only to the crime enforcement community. Without supportfrom the academic scientific community, it may be difficult to achieve the type ofscientific testing this board recommended.

Subsequent to this report, Congress established an Office of Forensic ScienceImprovement and Support (OFSIS) to direct forensic science-related research andstandard-setting. The Department of Justice is to direct accreditation, certification,and compliance enforcement of the standards set by OFSIS. As of June 26, 2014, theDepartment of Justice and the U.S. Commerce Department’s National Institute ofStandards and Technology had named 17 academic researchers and forensic scienceexperts to a Forensic Science Standards Board. And by May 2016, this board hadissued some standards for public comment as well as a number of calls for researchstudies, including one for Forensic Document Examination Friction Ridge(fingerprint) analysis, and Firearms and Toolmarks.

This text will present a number of case studies in which forensic evidence waspresented and contested in court. Some, such as the O.J. Simpson case, the AmandaKnox case, and the JonBenét Ramsey case may be familiar to you. Others, such asthe kidnapping and murder of the Lindbergh baby, the Sam Shepherd murder trial,and the Richard Crafts “wood-chipper murder” took place before DNA profiling,yet involved forensic issues such as blood spatter analysis, crime reconstruction, andhandwriting analysis. We will also refer frequently to a Connecticut “cold case,” Statev. Edward Grant, in which Grant was convicted of murdering Penney Serra twenty-five years after the crime. The arrest and conviction were triggered by a routine runof fingerprints in cold cases through the AFIS computer fingerprint matching system.

Here is a short summary of the case of State v. Grant.9 Edward Grant was convictedin 2002 for the 1973 murder of Concetta “Penney” Serra in a New Haven, Connecticut,garage. Serra had driven her car into the garage and parked on the top floor. At some

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point, her attacker got into her car, a fight ensued with a knife, and his blood, whichwas Type O, was left in the car (and in a trail throughout the garage, believed to havebeen left by the attacker as he looked on foot for his own car after the crime). Theblood was typed but DNA profiling was not yet invented. Serra then fled across thelot and tried to escape up a staircase, which was locked at the top. Her body wasfound stabbed at the foot of the stairs. She was not raped and nothing was takenfrom her car. Based on these facts, investigators believed the murder was a “crimeof passion” by someone Serra knew. They interviewed three former boyfriends andput them in a lineup for possible identification by some people who had been in thegarage. A prior boyfriend of the victim was identified the following day in a lineup,but he was ruled out based on his blood type. Another was arrested and charged withthe crime, but charges were dropped on the eve of trial when it turned out his bloodtype did not match the Type O blood trail either.

Investigators lifted one clear fingerprint from a tissue box on the floor behind thedriver’s seat. The print did not match any of the fingerprints on card files in NewHaven at the time. (The Automated Fingerprint Identification System, AFIS, was notyet in operation.) They also found a handkerchief four flights down in the garage,which they initially thought was unconnected to the crime. They later connected itbased on a blood trail in the garage, which they believed was the attacker’s as hesearched the garage trying to find his own car. Blood typing showed the victim’sblood type — A — was found where Serra was killed, but Type O blood, believed tobe the attacker’s, was present in the trail and in the car.

The case remained a “cold case” for almost twenty-five years until Chris Grice, afingerprint examiner in the Connecticut State Forensic Laboratory (who had beeninvolved as one of the investigators in New Haven twenty-five years prior), did acold case run of the fingerprint from the tissue box through AFIS. As we will see inthe “Fingerprint Analysis” chapter, the AFIS report was a series of numbers identifyingpeople. Grice then needed to pull actual prints and visually compare them. Ed Grantwas not number 1 on the list. However, Grice eliminated the higher numerical“matches” and identified Grant as the print on the box.

The Grant case is unique in that the defendant was convicted based on two piecesof forensic evidence and virtually nothing else. There was no evidence that he hadever met Penney Serra. No one saw the fight in the car, Penney’s flight to the stairs,or the stabbing. The few witnesses at the time — other drivers and the garage tickettaker — were inconsistent in their descriptions of a man driving erratically in thegarage. The ticket taker said he was handed a bloody parking ticket by a driver in acar that did not match any Grant ever owned and the man spoke with a foreignaccent. Grant had no accent.

Grant’s attorneys did not deny that the forensic tests were accurate, but arguedthat there was no evidence to prove that the fingerprint was impressed on the tissuebox at the time of the crime, so even if it was Grant’s, it didn’t prove he was in thecar the day Serra was murdered. Nor was there any testimony that proved thehandkerchief was Grant’s or that it was dropped at the time of the crime. They also

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10. 286 Conn. 499, 518, 944 A.2d 947, 962 (2008).

questioned how only one small spot of “blood” could have remained testable afteryears of investigators moving the handkerchief from place to place under conditionsthat deteriorated the rest of the spots beyond testing. None of these arguments werepersuasive to the jury.

Grant’s main argument on appeal was that his arrest warrant lacked probablecause because it was based on a fingerprint on a moveable object — the tissue boxin the car — and there was no proof that the fingerprint was placed on the tissuebox at the time of the crime. The court was not persuaded and denied Grant’sappeal:

In most of the cases relied on by the defendant, the courts held that fingerprintevidence with a possible innocent explanation was insufficient to support afinding of guilt beyond a reasonable doubt. The mere possibility of an innocentexplanation for evidence connecting a defendant with a crime does not,however, preclude a finding of probable cause.10

This text will examine the Grant case and many other court cases where forensicevidence has been contested in the following primary areas:

• DNA• Fingerprints• Firearms and Ballistics• Toolmarks• Computer Forensics• Eyewitness Identification• Blood Spatter• Handwriting

This text will also discuss these questions:• How does the way crime scene investigators handle evidence affect whether it

is admissible in court?• What is circumstantial evidence? Is it as good as direct evidence? Is forensic

evidence direct evidence or circumstantial?• Does a jury have to believe a forensic expert witness?• Why does an appeals court allow an evidence ruling of a trial court to stand,

even where the appeals court disagrees with the decision of the trial court?• How can a prisoner who believes he is innocent get access to crime scene DNA

for post-conviction testing?• Is the judge better than the jury in deciding whether scientific testimony is

reliable? Why not just let all forensic evidence in and let the lawyers cross-examine the opposing experts?

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• How does the Constitution apply to the defendant’s right to confront and cross-examine experts who tested forensic evidence?

• When does the possible prejudice to a defendant of introducing evidence justifyexcluding it?

• How does the fact that a forensic fingerprint examiner must use his subjectivejudgment in comparing fingerprint samples affect its admissibility?

• When must an expert simply present forensic evidence to a jury (such ashandwriting) and let the jury decide if it matches, rather than giving an opinion?

• How have evidentiary principles been applied to digital evidence?• Is firearm and toolmark evidence appropriate for expert testimony?• How have advances in psychological sciences affected the admissibility of both

eyewitness identification and expert testimony on eyewitness identification?

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