How to Use Daubert v. Merrell Dow Pharmaceuticals to Defend Forensics

This video describes the Daubert v. Merrell Dow Pharmaceuticals scientific and legal challenges to forensics in criminal court. It's the 2nd video in our series on utilizing science and law to defend against forensic evidence.

In this video, College Station criminal defense attorney Stephen Gustitis explains how to use the scientific and legal principles of Daubert v. Merrell Dow Pharmaceuticals to defend against forensics in the courtroom. This is video #2 in our series on forensic evidence. Steve is a Texas Board Certified Criminal Defense Lawyer practicing in Bryan-College Station, Texas. He has more than 28 years of experience in the field of criminal law and criminal defense in Brazos County. His videos cover a range of the best defense tactics and criminal defense strategies, including Daubert v Merrell Dow.

Forensic Evidence - Intersection of Science and Law

This video describes forensic evidence as the intersection of science and law. It begins a new series on using science and law to defend against forensic evidence in court. Visit https://www.gustitislaw.com for more information about forensic evidence and how to defend against forensics when charged with a crime in Bryan-College Station, TX.

In this video, criminal defense lawyer Stephen Gustitis introduces a new series on forensic evidence as the intersection of science and the law and how to use science and law to defend against forensics in the courtroom. Steve is a Texas Board Certified Criminal Defense Attorney practicing in Bryan-College Station, Texas. He has more than 28 years of experience in the field of criminal law and criminal defense in Brazos County. His videos cover a range of the best defense tactics and criminal defense strategies, including defending against forensic science in court.

DUI Defense Tactics - How Criminal Lawyers Defend DUI Blood Test Charges

The best DUI defense tactics include fighting the DUI blood test. Skilled criminal defense lawyers can challenge the DUI blood draw procedure to defend a DUI arrest. For more information on defending Bryan-College Station DWI charges, visit https://www.gustitislaw.com

Computer Forensic Experts

The spread of crime using computers was inevitable, even in the sleepy towns of Bryan|College Station, Texas. The ease with which people can access literally billion of documents and images over the internet has made computer "crimes" a hot area in law enforcement in recent years. Our question is how to defend against such charges by the government? One answer is using computer forensics, that is, utilizing a defense expert to preserve, analyze, and produce data from computer media storage.

When conducting an analysis in computer forensics, the “expert” uses tools (i.e., software) to examine and extract information pertaining to the alleged crime. However, a problem area is whether one can be considered an expert solely based on their ability to use a tool or software package to analyze the computer data, without the ability to clearly define how the tool works or reviewing the source code. The majority of the tools and software used by computer forensics experts is proprietary and copyrighted. This eliminates the ability to access the source code. Currently, this inability of the expert to test the code and understand how it works has not hindered the admissibility of an expert’s testimony. In Texas, criminal courts have found that an expert does not need to know the code of the software package nor the background processes. (see Williford v. Texas 127 S.W.3d 309) Questions arise concerning whether an expert who cannot attest to area three of Daubert qualifies as an expert.

The third criteria of Daubert states specific factors such as peer review, error rates, and acceptability in the relevant scientific community are important elements to consider when determining the reliability of a scientific test, including proprietary software programs used to analyze a computer hard drive. However, it's difficult to meet the third criteria due to a lack of error rates for most of the software used by the forensic experts. Additionally, there are no standards in the field or peer reviews of methods. The courts have found that an inanimate object (e.g. a software package) cannot be considered an expert. This does not mean the object (or results from that object) cannot be used for scientific testimony. The individual using the software package simply needs to testify regarding the procedures used.

A possible argument to be made in criminal court regarding the third criteria of Daubert is that the computer forensic community has accepted certain industry standard tools such as EnCase, a common program used by experts to analyze computers. The question, then, becomes whether it's justified to say that the "relevant scientific community" has accepted certain software packages? Currently, experts must qualify their educational background, which includes courses taken by corporate or federal agencies on how to operate software packages (like EnCase).

The bottom line is that computer forensic experts can be invaluable to the computer crime defense attorney. For court-appointed cases, the defense lawyer can use ex parte motions for expert assistance to obtain funds to hire such experts.

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.

Head Trauma Research

Several years ago I tried a felony assault case to a jury in Brazos County where my client allegedly caused a teacher serious bodily injury during a struggle in the College Station school system. The teacher was, in fact, injured by my client's behavior. But the jury also learned he suffered from several physiological problems which caused him to act impulsively and sometimes explosively. In the end they acquitted this young man, largely because they took into consideration facts and circumstances beyond his control that explained his behavior.

In this same vein, research is showing that hidden head trauma may be linked to behavioral problems in society. Thanks to John Niland, at the Texas Defender Service, for bringing our attention to some important research on hidden head trauma documented in the Wall Street Journal this week. This article written by Thomas M. Burton (tom.burton@wsj.com1) concluded that long forgotten head injuries may be a factor and may explain many problems in society.

Highlights of the study:

Researchers studying brain injury believe they've found a common thread running through many cases of seemingly unrelated social problems: a long-forgotten blow to the head . . .

New research indicates hidden traumatic brain injuries can cause social or educational failure, such as alcoholism or homelessness.
That severe head injuries can lead to cognitive and behavioral problems is widely accepted. The U.S. Centers for Disease Control and Prevention estimates 5.3 million Americans suffer from mental or physical disability that is due to brain injury . . .

Causes of brain injury can include bike and car accidents, sports concussions such as those suffered by professional football players, and abuse and falls that can date back to childhood. Doctors say about 85% of common falls in infancy don't produce long-term deficits, but that some do.

These types of findings are of great import to the Bryan criminal defense lawyer. Explaining a client's aberrant behavior is often our principle challenge. When the lawyer can explain behavior using facts and circumstances beyond the clients' control (like a head injury) and present credible research backing the claims, the client's cause is much improved and can lead to favorable results.

Smile for Your Camera-Phone

If you're going to take your own picture while committing a crime, or record often indisputable evidence of your involvement, then please do it with a smile. See this story about Morgan Kipper:

Last year, Morgan Kipper was booked on charges of stealing cars and reselling their parts. He declared his innocence, but his cellphone suggested otherwise: Its screen saver pictured Mr. Kipper behind the wheel of a stolen yellow Ferrari.

Mr. Kipper, 27, joined a growing group of camera-phone owners who can't seem to resist capturing themselves breaking the law. "As a criminal defense attorney, it's very difficult when a client proclaims his innocence but incriminates himself by taking photos of the stolen items," says William Korman, the Boston attorney who represented Mr. Kipper. The snap-happy chop-shop owner, who pleaded guilty in April, is now serving a sentence of two-and-a-half to five years and couldn't be reached for comment.

The forensic challenges related to obtaining incriminating evidence from a camera-phone are different than those related to obtaining it from a personal computer. However, companies now sell forensic software designed to help the police download data from camera-phones without corrupting the evidence. The article went on to say:

. . . camera-phones seem particularly well-suited to spontaneous self-incrimination. Unlike traditional cameras, cellphones are always brought along, increasing the temptation to snap a picture and boosting the likelihood the phone will be on or near the criminal upon arrest.

So don't succumb to the temptation of recording your misdeeds for old-time-sake. First, avoid trouble by obeying your federal, state, and local laws. And for goodness sake, use some common sense when deciding what to snap pictures of.

Real Life "CSI" Effects

I ran across a great article, here, in the News Virginian about the adverse effect shows like CSI (Crime Scene Investigation) have upon the real-life criminal justice system. Writing for the paper, Rob Seal states:

As crime shows focused on cutting-edge forensic investigative techniques have spread throughout the prime-time television landscape, prosecutors and defense lawyers have started to take note and respond.

During jury selection in high-profile criminal trials, it’s now commonplace for lawyers to ask potential jurors whether they watch a lot of TV police shows. The fear is that forensic crime-show connoisseurs selected for a jury could bring an unrealistic set of expectations to a real-life trial.

"It’s even got a name. They call it the ‘CSI effect,’" said Charlottesville defense lawyer Rhonda Quagliana.

I agree that TV shows have an effect upon potential jury pools. However, I believe the prosecutors have more to fear from "crime-show connoisseurs" than do the informed Texas criminal defense attorney.

I regularly hear prosecutors ask potential jurors whether they watch crime shows like CSI. But I also regularly hear able defense lawyers ask the jury, "where's the DNA?" And many times it works! Yes, it is sometimes used as a ploy to divert a jury's attention. But on other occasions it's a reasonable and reliable component of the "things not done" defense.

I don't mind if jurors reporting for duty come with an unrealistic set of expectations regarding forensic technology. It is easier to explain away DNA evidence from the defense side, than to explain to a demanding jury why the police did not test for the substance in the first place. Consequently, the majority of times the "CSI effect" is an advantage for the defender.

Remembering 1984

George Orwell's novel tells the story of Winston Smith, a member of the Outer Party living in the ruins of London, a chief city in the totalitarian super-state of Oceania. Winston keeps a journal of his negative thoughts and opinions about this totalitarian regime. If found, these thoughts would result in his torture and death by the Thought Police. The Thought Police have monitors in every Party household and public area, as well as hidden microphones and informers to catch potential thought-criminals who could endanger the security of the controlling Inner Party.

With this backdrop, here we learned that Law School Professor Hank Greely was part of a nationwide group of researchers centered at UC-Santa Barbara who recently received a $10 million grant from the MacArthur Foundation to study the ways in which neuroscience can be applied to the justice system:

“Advances in neuroscience and our understanding of how the brain functions have both immediate and long term implications for the legal system,” Law School Dean Larry Kramer told The Daily in an email. “As advances in neuroscience teach us to understand this better, we cannot help but change the way law deals with a wide variety of problems.”

Neuroscience has a number of applications to the law, mainly involving lie detection and personal responsibility for criminal behavior, which could raise serious ethical questions for judges and juries in the future.

San Diego-based startup No Lie MRI has developed a lie detector that employs MRI technology to detect lies with 90 percent accuracy. The possibility of foolproof lie detection could have far-reaching effects on the justice system, but experts are careful not to get carried away before the new technology has established itself as legitimate. Current constitutional protections were not written in anticipation of advances in neuroscience and would not offer much defense against the aggressive use of neuroscience in trials.

Greely argued that the First Amendment does not currently guarantee freedom of thought, and that the Fifth Amendment protection against self-incrimination only applies to testimony. MRI tests may be put under the same non-testimonial category as breathalyser tests, he said. If neurological advances occur in the near future, Greely warned that the Bill of Rights may not be expanded to address neuroscience.

Maybe Orwell's fiction was not as far from the truth as he might have imagined?

Staying on the Cutting Edge

Cathy Lynn Henderson is set for execution June 13, 2007 in the Texas death chamber for the murder of infant Brandon Baugh, of Austin, in 1994. Henderson claimed Brandon died in an accidental fall which resulted in a fatal skull fracture. Although Henderson had buried the child 60 miles away and had fled the State, new data interpreting Brandon's skull fracture could better support Henderson's claim Brandon's death was an accident.

Dr. Roberto Bayardo was the Travis County Medical examiner who originally testified against Henderson. Bayardo claimed Brandon's injuries were inconsistent with an accidental fall but recently, Bayardo reviewed the new scientific data and concluded he "cannot determine with a reasonable degree of medical certainty whether Brandon Baugh's injuries resulted from an intentional act, or an accidental fall."

Defense lawyers strive to stay on the cutting edge of forensic technology. The advent of DNA testing has resulted in the exoneration many imprisoned individuals. New research questioning the reliability of eye-witness identification has shed doubt on many convictions uncorroborated by other forensic evidence, like fingerprints or DNA. In the field of DWI defense, lawyers well-versed in the technology of intoxilyzers and field sobriety tests have successfully discredited criminal prosecutions against their clients and obtained acquittals. The best defense lawyers continuously education themselves on new technologies, or become well-versed in old technology, to better prepare themselves to challenge the prosecution's case.

Our system of criminal justice is adversarial - it is a battle between the government and the individual accused. Employing experts, reading articles, and associating with others in the defense field are the best ways the attorney stays on the cutting edge. More importantly, they are the best ways the attorney defends their precious clients from the power and resources of the State.

As a client, don't be afraid to invest your resources on expert evaluations or cutting edge technology. Follow the the lead of a well-informed defense lawyer when making these critical decisions about your defense. The dividends may pay-off handsomely.