Tuesday, February 24, 2009

Much of "Forensic" Science Unreliable

Juries are awed by forensic science in the courtroom. Fingerprint comparison, DNA, handwriting analysis, ballistics, blood-splatter, shoe print comparison, etc. Prosecutors across the county depend upon this evidence to obtain convictions and juries are conditioned by television shows, like CSI, to expect it. However, a recent report from the National Academy of Sciences says much of what passes for forensic "science" does not meet minimal scientific standards. Yet, when forensic scientists testify in court they are often shamefully overconfident about their "scientific" findings.

Following are several significant problems identified by the study:

1. Bias: Forensic scientists are often exposed to information which fosters bias in their stated opinions. That is, forensic "scientific" tests are rarely performed "blind." The examiner knows what they are supposed to find in the samples, which effect the outcome of their testing. Contrast this with doctors who test a new medicine. They are not told which patients are taking the medication and which ones are receiving placebos. This is appropriate "blind" testing and eliminates bias.
2. Error Rates: Most forensic sciences lack good information about how often examiners make mistakes - a basic requirement of any good science. Experts testifying in court often claim error rates for their technique is zero. Preposterous! Even the best of scientific techniques have an error rate. Without objective information about a technique's rate of error a jury cannot properly assess the credibility of the information.
3. Over-claiming: The only forensic science making regular use of probabilities is DNA profiling in which experts testify to the probability of a match. None of the traditional forensic sciences (ballistics, fingerprints, fiber analysis, or handwriting) currently have the necessary statistical foundation to establish accurate probabilities. Adding insult in injury, experts who testify are allowed to claim their methods are 100% accurate. Again, preposterous.
4. Structural Independence: The cops and prosecutors employ and pay the experts who testify in court. Do you believe these experts might have difficulty maintaining their professional independence from police and prosecutors who put food on their tables? I dare to say, yes.

So what can be done to control this "out-of-control" system leading to the condemnation of thousands of accused persons each year?

First, judges presiding over trials in which forensic evidence is used must exercise their role as gatekeepers to protect the integrity of our criminal justice system. They do this by requiring higher standards for forensic science when used as legal evidence. They should prohibit experts from testifying to impossibilities like "zero" error rates. They should compel the experts to establish the reliability of their scientific techniques with peer review and other methods establishing the credibility of their testimony.

Second, the criminal defense lawyers who defend the accused must object to the use of forensic evidence until the proponent proves its scientific reliability. That means the defense lawyers must learn about the forensic methods being used, learn about the scientific pitfalls, and raise objections in court based on established case law requiring judges to make findings of reliability. Finally, they must hire their own defense experts to dispute the prosecutor's evidence and cast doubt upon its credibility.

Our justice system demands no less.

Tuesday, February 17, 2009

Texas Criminal Appeals

Several new appeals came into the office this year.  Fortunately, my clients possessed the presence of mind to call early in the appeal process to preserve as many of their rights as possible. The appellate timetable is unforgiving and must be complied with strictly to preserve one's right to review.  Criminal defense lawyers, and prospective appeal clients alike, must be familiar with the time limits applicable to criminal appeals in Texas. 

A plea bargain, where the trial judge does not exceed the punishment recommendation from the prosecutor, usually waives the defendant's right to appeal except for matters raised by written motion and ruled upon prior to the plea.  Motions to suppress evidence, for instance, are examples of such appealable matters.  Most appeals, however, result when a criminal case is contested and fought-out before the trial judge or jury. The defendant appeals the conviction itself and errors committed during the punishment phase of the trial. 

One's sentencing date is the key point in the appeal process.  Most time limits imposed upon the defendant in a criminal appeal begin to run on the day a person is sentenced. In general, the defendant has 30 calendar days in Texas to file a motion for new trial or to file a notice of appeal which vests jurisdiction in the appellate court. 

A motion for new trial is the best way to develop non-record claims such as ineffective assistance of counsel, disproportionate sentences, or juror misconduct.  Other possible claims raised in a motion for new trial include the denial of counsel, the misdirection of the jury, defense witnesses prevented from appearing in court, or evidence tending to establish a person's innocence being intentionally destroyed or withheld.  Also, any time the verdict is contrary to the law and evidence a claim can be raised in the motion for new trial. 

The notice of appeal must be filed within 30 calendar days of sentencing unless a timely motion for new trial was filed. This extends the deadline for perfecting appeal to 90 days after sentencing. After the appeal is perfected the "reporter's record" (i.e. transcript) must be requested and a "designation for material" (e.g. exhibits) filed with the clerk.  Although the request for the reporter's record and the designation are not subject to the 30 day deadline, it's a good idea to file these papers early to assure the ball is rolling and the appeal is proceeding in a relatively rapid fashion. 

After notice of appeal is filed the defendant may request an appeal bond, provided his sentence did not exceed ten (10) years confinement.  Granting an appeal bond is discretionary with the trial judge.  The judge may also order the defendant comply with bond conditions like regular reporting , a curfew, or other reasonable conditions.

If you have any questions about appealing a criminal case in Bryan|College Station, or other jurisdictions in Texas, please contact the Texas Criminal Appeal Attorney immediately to discuss your case. 

Tuesday, February 3, 2009

Defending a Child's Accusation of Sexual Abuse

Defending a child's allegation that Daddy or Uncle Bill "touched my private" or "made me touch his bottom" is an incredibly daunting task. Prosecutors, police, child protective services, and the general public believe young children rarely conjure-up these allegations out of nowhere. However, there's a reservoir of research showing young children are susceptible to suggestive interviewing techniques by local child advocacy center employees, or even the police, who question a child once an outcry of this nature surfaces.

Research on suggestive interviewing techniques has identified six types of interview behaviors associated with false outcries of sexual abuse. These interview behaviors are as follows:
1. Positive Consequences - Giving, promising, or implying praise, approval, agreement or other rewards to a child, or indicating the child could demonstrate desirable qualities like helpfulness or intelligence, by making a statement to the interviewer;
2. Negative Consequences - Criticizing or disagreeing with a child's statements, or otherwise indicating the statement was incomplete, unbelievable, dubious, or disappointing;
3. Other People - Telling the child the interviewer has already received information from another person regarding the topics of the interview;
4. Questions Asked and Answered - Asking the child questions already unambiguously answered in the immediately preceding part of the interview;
5. Inviting Speculation - Asking the child to offer opinions or speculation about past events or framing the child's task during the interview as using imagining or solving a mystery; and
6. Introducing Information - Introducing information not previously mentioned by the child. The new information in either an interviewer's statement or question represents a substantial addition or discontinuity with the child's previous statements.
These six suggestive interviewing techniques are by no means an exhaustive list of all the different ways a forensic interviewer might impose suggestive questioning on a child. However, these techniques are typically the primary focus of forensic analysis of child "victim" interviews.

Sexual assault defense lawyers need training to recognize a suggestive child interview. The better practice is to hire experts in the field to evaluate and critique an interviewer's questioning of a child. If necessary, the experts can testify at trial, or inform prosecutors, that an interview was tainted by poor methods and technique.