- Conduct an independent investigation of the FBI Laboratory protocols, practices and procedures to determine how this occurred and why it was allowed to continue for so long.
- Continue aggressive measures and review the process to determine whether additional steps could be taken to secure the transcripts and/or lab reports and review the hundreds of remaining cases that may contain invalid scientific statements.
- Strongly encourage the states again to conduct their own independent reviews where its examiners were trained by the FBI.
The Innocence Project, NACDL and Winston & Strawn LLP are assisting the Department of Justice as it works to locate and notify defense counsel of the results of this review - especially critical in the cases of each person where error was identified in accordance with the protocols established for the review. NACDL is working to ensure that all individuals who were defendants in affected cases will have access to a volunteer lawyer to review this new evidence, advise them on how it may impact their conviction, and challenge convictions based on the invalid evidence in appropriate cases. The legal groups are not releasing the names of the defendants affected at this time, leaving it to the defendants and their lawyers to determine what to do with the information and whether to disclose the error to the press.The FBI has agreed to provide free DNA testing where there is either a court order or a request for testing by the prosecution. Additionally, in federal cases, DOJ will not raise procedural objections, such as statute of limitations and procedural default claims, in response to defendants' petitions seeking a new, fair trial because of the faulty evidence. But the majority of the FBI examiner testimony was provided in state court prosecutions, and it will be up to the individual states to determine if they will follow DOJ's leading in permitting these cases to be litigated.Before mitochondrial DNA testing was used to analyze hair in criminal cases, prosecutors throughout the country routinely relied on microscopic hair comparison to link a criminal defendant to a crime. The practice was deemed "highly unreliable" in the 2009 National Academy of Sciences report on forensic science, Strengthening Forensic Science in the United States: A Path Forward. Nevertheless, some jurisdictions continue to use hair analysis where mitochondrial DNA testing is deemed too expensive, time consuming or is otherwise unavailable. According to Innocence Project data, 74 of the 329 wrongful convictions overturned by DNA evidence involved faulty hair evidence.Over the course of 25 years, the FBI conducted multiple two-week training courses that reached several hundred state and local hair examiners throughout the country and that incorporated some of the same scientifically flawed language that the FBI's examiners had used in some lab reports and often in trial testimony. In response to the FBI/DOJ review, the Texas Forensic Science Commission has already begun a review of cases handled by analysts at state and local crime labs. Similar audits are needed in most other states.
Monday, April 20, 2015
NACDL press release: FBI Testimony on Microscopic Hair Analysis Contained Errors in at least 90% of Cases in Ongoing Review
NACDL press release: FBI Testimony on Microscopic Hair Analysis Contained Errors in at least 90% of Cases in Ongoing Review
- Conduct an independent investigation of the FBI Laboratory protocols, practices and procedures to determine how this occurred and why it was allowed to continue for so long.
- Continue aggressive measures and review the process to determine whether additional steps could be taken to secure the transcripts and/or lab reports and review the hundreds of remaining cases that may contain invalid scientific statements.
- Strongly encourage the states again to conduct their own independent reviews where its examiners were trained by the FBI.
The Innocence Project, NACDL and Winston & Strawn LLP are assisting the Department of Justice as it works to locate and notify defense counsel of the results of this review - especially critical in the cases of each person where error was identified in accordance with the protocols established for the review. NACDL is working to ensure that all individuals who were defendants in affected cases will have access to a volunteer lawyer to review this new evidence, advise them on how it may impact their conviction, and challenge convictions based on the invalid evidence in appropriate cases. The legal groups are not releasing the names of the defendants affected at this time, leaving it to the defendants and their lawyers to determine what to do with the information and whether to disclose the error to the press.The FBI has agreed to provide free DNA testing where there is either a court order or a request for testing by the prosecution. Additionally, in federal cases, DOJ will not raise procedural objections, such as statute of limitations and procedural default claims, in response to defendants' petitions seeking a new, fair trial because of the faulty evidence. But the majority of the FBI examiner testimony was provided in state court prosecutions, and it will be up to the individual states to determine if they will follow DOJ's leading in permitting these cases to be litigated.Before mitochondrial DNA testing was used to analyze hair in criminal cases, prosecutors throughout the country routinely relied on microscopic hair comparison to link a criminal defendant to a crime. The practice was deemed "highly unreliable" in the 2009 National Academy of Sciences report on forensic science, Strengthening Forensic Science in the United States: A Path Forward. Nevertheless, some jurisdictions continue to use hair analysis where mitochondrial DNA testing is deemed too expensive, time consuming or is otherwise unavailable. According to Innocence Project data, 74 of the 329 wrongful convictions overturned by DNA evidence involved faulty hair evidence.Over the course of 25 years, the FBI conducted multiple two-week training courses that reached several hundred state and local hair examiners throughout the country and that incorporated some of the same scientifically flawed language that the FBI's examiners had used in some lab reports and often in trial testimony. In response to the FBI/DOJ review, the Texas Forensic Science Commission has already begun a review of cases handled by analysts at state and local crime labs. Similar audits are needed in most other states.
Wednesday, April 8, 2015
by James Eckert, Monroe County Assistant Public Defender
The Court of Appeals, Fahey, J. writing for the court, held: "as a matter of state evidentiary law, that evidence of a defendant's selective silence generally may not be used by the People as part of their case-in-chief, either to allow the jury to infer the defendant's admission of guilt or to impeach the credibility of the defendant's version of events when the defendant has not testified." (People v Williams, 2015 NY Slip Op 02866 [4/7/15]) Thus, if a defendant waives Miranda, speaks to police about rape accusations, but refused to answer whether he had sex with the complainant, his refusal to answer could not be used to imply consciousness of guilt (the prosecution said the defendant "did not deny" having sex with the complainant) or to cast doubt on his other statements about the incident. "A defendant who agrees to speak to the police but refuses to answer certain questions may have the same legitimate or innocent reasons for refusing to answer as a defendant who refuses to speak to the police at all." The defendant's DNA was found in the complainant, he testified at the Grand Jury that sex was consensual, but did not testify at trial.
While this is merely an extension of the general rule that a defendant's silence cannot be used against him, it is important to have it clarified. The court noted that there are unusual circumstances in which silence will be admissible (People v Rothschild, 35 NY2d 355 [1974] [defendant police officer had a duty to report to his supervisors if he was taking the bribe money as part of a "sting"]; People v Savage, 50 NY2d 673 [1980] [defendant told police he shot victim during an altercation, properly cross-examined on his failure to make claim that victim was trying to rob him, as he testified at trial]).
The primary difference was that those two cases involved cross-examination, not introduction of the defendant's silence as part of the prosecution's case in chief, "In those cases, the People used conspicuous omissions from the defendants' statements to police during cross-examination of the defendants, in order to impeach the credibility of the exculpatory testimony provided by the defendants at trial. Here, by contrast, the People introduced, as part of their case-in-chief, evidence regarding defendant's failure to tell the detective during custodial interrogation that he and the victim had consensual sex." The prosecution claimed that they were, effectively, cross-examining the defendant's grand jury testimony. However, as the court pointed out, the prosecution chose to introduce this testimony itself. "The People may not introduce evidence that they deem favorable to defendant on their direct case and impeach that evidence, also on their direct case, with evidence of defendant's silence." The court also noted that they introduced the selective silence before the grand jury testimony.
Therefore, the rule in New York is that "Evidence of a defendant's selective silence therefore generally may not be used by the People during their case-in-chief and may be used only as 'a device for impeachment' of a defendant's trial testimony in limited and unusual circumstances".
Two judges would have held the error harmless.
by James Eckert, Monroe County Assistant Public Defender
The Court of Appeals, Fahey, J. writing
for the court, held: "as a matter of state evidentiary law, that evidence
of a defendant's selective silence generally may not be used by the People
as part of their case-in-chief, either to allow the jury to infer the defendant's
admission of guilt or to impeach the credibility of the defendant's version
of events when the defendant has not testified." (People v Williams, 2015 NY Slip Op 02866 [4/7/15]) Thus, if a defendant waives Miranda, speaks to
police about rape accusations, but refused to answer whether he had sex
with the complainant, his refusal to answer could not be used to imply
consciousness of guilt (the prosecution said the defendant "did not
deny" having sex with the complainant) or to cast doubt on his other
statements about the incident. "A defendant who agrees to speak
to the police but refuses to answer certain questions may have the same
legitimate or innocent reasons for refusing to answer as a defendant who
refuses to speak to the police at all." The defendant's DNA
was found in the complainant, he testified at the Grand Jury that sex was consensual,
but did not testify at trial.
While this is merely an extension of
the general rule that a defendant's silence cannot be used against him,
it is important to have it clarified. The court noted that there
are unusual circumstances in which silence will be admissible (People v
Rothschild, 35 NY2d 355 [1974] [defendant police officer had a duty to
report to his supervisors if he was taking the bribe money as part of a
"sting"]; People v Savage, 50 NY2d 673 [1980] [defendant told
police he shot victim during an altercation, properly cross-examined on
his failure to make claim that victim was trying to rob him, as he testified
at trial]).
The primary difference was that those
two cases involved cross-examination, not introduction of the defendant's
silence as part of the prosecution's case in chief, "In those cases,
the People used conspicuous omissions from the defendants' statements to
police during cross-examination of the defendants, in order to impeach
the credibility of the exculpatory testimony provided by the defendants
at trial. Here, by contrast, the People introduced, as part of their case-in-chief,
evidence regarding defendant's failure to tell the detective during custodial
interrogation that he and the victim had consensual sex." The
prosecution claimed that they were, effectively, cross-examining the defendant's
grand jury testimony. However, as the court pointed out, the prosecution
chose to introduce this testimony itself. "The People may not
introduce evidence that they deem favorable to defendant on their direct
case and impeach that evidence, also on their direct case, with evidence
of defendant's silence." The court also noted that they introduced
the selective silence before the grand jury testimony.
Therefore, the rule in New York is that
"Evidence of a defendant's selective silence therefore generally may
not be used by the People during their case-in-chief and may be used only
as 'a device for impeachment' of a defendant's trial testimony in limited
and unusual circumstances".
Two judges would have held the error
harmless.
Monday, April 6, 2015
Evidence as to what was said by an interrogating police officer during the interrogation, including testimony that officer told the suspect/defendant that he thought he was lying in denying committing the crime is arguably admissible as it tended to explain to the jury the circumstances of the alleged statements, thereby countering a claim that the statement was not voluntarily obtained (People v Walden, 148 AD2d 971 [4th Dept 1989]). However, in People v Pabon (--- AD3d ----, 2015 WL 1380113 [4th Dept 3/27/15]), the Appellate Division, Fourth Department, citing People v Kozlowski (11 NY3d 223 [2008]) has recently held that it is error for the prosecutor to elicit that, in fact, it was the officer’s opinion that the defendant lied during the interrogation when he denied committing the charged crimes or to explain why he believed that the defendant way lying.
In Kozlowski, the Court of Appeals explained what a witness may and may not say with respect to an opinion as to whether the defendant’s version of events is credible. (People v Kozlowski, 11 NY3d 223 [2008]). Witnesses are permitted to testify about facts, but not as to their opinion as to whether the defendant’s version of events was believable:
The line is crossed not when a witness relates facts that may be prejudicial, but when he or she conveys-either directly or indirectly-a personal opinion regarding the defendant's criminal guilt (citations omitted).... What was impermissible about the testimony was that its sole purpose was to bolster the testimony of another witness by explaining that his version of the events was more “believable” (citation omitted). It was thus the equivalent of an opinion that the defendant was guilty, which is impermissible.
(People v Kozlowski, 11 NY3d 223, 240 [2008].)
Police officer testimony that they believed that defendant lying in denying guilt is precisely of the type that the Court of Appeals described as improper. This is not a recent or novel rule. Previously, the Court held that where, as here, a prosecutor seeks testimony that the defendant’s version of events was not believable, the witness’s “. . . testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned (People v Williams, 6 NY2d 18, 23 [1959]; People v Higgins, 5 NY2d 607, 627-628 [1959]; People v Gradon, 43 AD2d 842 [2d Dept 1984]).” (People v Ciaccio, 47 NY2d 431, 439 [1979].)
Police officer testimony that they believed that defendant lying in denying guilt is precisely of the type that the Court of Appeals described as improper. This is not a recent or novel rule. Previously, the Court held that where, as here, a prosecutor seeks testimony that the defendant’s version of events was not believable, the witness’s “. . . testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned (People v Williams, 6 NY2d 18, 23 [1959]; People v Higgins, 5 NY2d 607, 627-628 [1959]; People v Gradon, 43 AD2d 842 [2d Dept 1984]).” (People v Ciaccio, 47 NY2d 431, 439 [1979].)
In People v Glover (195 AD2d 999 [4th Dept 1993]), the Court held that it was not improper for a police officer to describe what he had told the suspect prior to the suspect making a statement. The Court held that the officer’s statement to the suspect of the evidence of guilt “. . . was not hearsay because the testimony was not offered for its truth, but to establish the circumstances in which the statement was obtained, and to rebut defendant’s argument that the officer coerced or fabricated defendant’s statement.” People v Glover, 195 AD2d 999 (4th Dept 1993). By contrast, what is prohibited is for a prosecutor to elicit from the officer the officer’s opinion that the defendant was lying when he denied responsibility. That is the very type of testimony which this Court implied in Glover would be improper and should be precluded as it tends to usurp the factfinder’s function (People v Jennings, 33 AD3d 378 [1st Dept 2006]).
This rule parallels the rule which prohibits a prosecutor from expressing her personal belief to the jury that the defendant is a liar. (People v Grice, 100 AD2d 419, 421 [4th Dept. 1984] [prosecutor’s remarks improperly placed before the jury the prosecutor's personal belief that the defendant was lying]; People v Shanis, 36 NY2d 697, 699 [1975]).
Just as a prosecutor exceeds the bounds of legitimate advocacy by expressing, as the prosecutor did in this case, a personal opinion on a defendant’s truthfulness (see People v Wlasiuk, 32 AD3d 674 [2006], lv dismissed 7 NY3d 871[2006]), she may not elicit the police officer’s opinions on a defendant’s truthfulness or guilt.
Evidence as to what was said by an interrogating police officer during the interrogation, including testimony that officer told the suspect/defendant that he thought he was lying in denying committing the crime is arguably admissible as it tended to explain to the jury the circumstances of the alleged statements, thereby countering a claim that the statement was not voluntarily obtained (People v Walden, 148 AD2d 971 [4th Dept 1989]). However, in People v Pabon (--- AD3d ----, 2015 WL 1380113 [4th Dept 3/27/15]), the Appellate Division, Fourth Department, citing People v Kozlowski (11 NY3d 223 [2008]) has recently held that it is error for the prosecutor to elicit that, in fact, it was the officer’s opinion that the defendant lied during the interrogation when he denied committing the charged crimes or to explain why he believed that the defendant way lying.
In Kozlowski, the Court of Appeals explained what a witness may and may not say with respect to an opinion as to whether the defendant’s version of events is credible. (People v Kozlowski, 11 NY3d 223 [2008]). Witnesses are permitted to testify about facts, but not as to their opinion as to whether the defendant’s version of events was believable:
The line is crossed not when a witness relates facts that may be prejudicial, but when he or she conveys-either directly or indirectly-a personal opinion regarding the defendant's criminal guilt (citations omitted).... What was impermissible about the testimony was that its sole purpose was to bolster the testimony of another witness by explaining that his version of the events was more “believable” (citation omitted). It was thus the equivalent of an opinion that the defendant was guilty, which is impermissible.
(People v Kozlowski, 11 NY3d 223, 240 [2008].)
Police officer testimony that they believed that defendant lying in denying guilt is precisely of the type that the Court of Appeals described as improper. This is not a recent or novel rule. Previously, the Court held that where, as here, a prosecutor seeks testimony that the defendant’s version of events was not believable, the witness’s “. . . testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned (People v Williams, 6 NY2d 18, 23 [1959]; People v Higgins, 5 NY2d 607, 627-628 [1959]; People v Gradon, 43 AD2d 842 [2d Dept 1984]).” (People v Ciaccio, 47 NY2d 431, 439 [1979].)
Police officer testimony that they believed that defendant lying in denying guilt is precisely of the type that the Court of Appeals described as improper. This is not a recent or novel rule. Previously, the Court held that where, as here, a prosecutor seeks testimony that the defendant’s version of events was not believable, the witness’s “. . . testimony is equivalent to an opinion that the defendant is guilty, and the receipt of such testimony may not be condoned (People v Williams, 6 NY2d 18, 23 [1959]; People v Higgins, 5 NY2d 607, 627-628 [1959]; People v Gradon, 43 AD2d 842 [2d Dept 1984]).” (People v Ciaccio, 47 NY2d 431, 439 [1979].)
In People v Glover (195 AD2d 999 [4th Dept 1993]), the Court held that it was not improper for a police officer to describe what he had told the suspect prior to the suspect making a statement. The Court held that the officer’s statement to the suspect of the evidence of guilt “. . . was not hearsay because the testimony was not offered for its truth, but to establish the circumstances in which the statement was obtained, and to rebut defendant’s argument that the officer coerced or fabricated defendant’s statement.” People v Glover, 195 AD2d 999 (4th Dept 1993). By contrast, what is prohibited is for a prosecutor to elicit from the officer the officer’s opinion that the defendant was lying when he denied responsibility. That is the very type of testimony which this Court implied in Glover would be improper and should be precluded as it tends to usurp the factfinder’s function (People v Jennings, 33 AD3d 378 [1st Dept 2006]).
This rule parallels the rule which prohibits a prosecutor from expressing her personal belief to the jury that the defendant is a liar. (People v Grice, 100 AD2d 419, 421 [4th Dept. 1984] [prosecutor’s remarks improperly placed before the jury the prosecutor's personal belief that the defendant was lying]; People v Shanis, 36 NY2d 697, 699 [1975]).
Just as a prosecutor exceeds the bounds of legitimate advocacy by expressing, as the prosecutor did in this case, a personal opinion on a defendant’s truthfulness (see People v Wlasiuk, 32 AD3d 674 [2006], lv dismissed 7 NY3d 871[2006]), she may not elicit the police officer’s opinions on a defendant’s truthfulness or guilt.
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