Monday, April 20, 2015

NACDL press release: FBI Testimony on Microscopic Hair Analysis Contained Errors in at least 90% of Cases in Ongoing Review

(Washington, DC – April 20, 2015) The United States Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL) reported today that the FBI has concluded that the examiners' testimony in at least 90 percent of trial transcripts the Bureau analyzed as part of its Microscopic Hair Comparison Analysis Review contained erroneous statements. Twenty-six of twenty-eight FBI agent/analysts provided either testimony with erroneous statements or submitted laboratory reports with erroneous statements. The review focuses on cases worked prior to 2000, when mitochondrial DNA testing on hair became routine at the FBI. The DOJ, FBI, Innocence Project and NACDL have been working jointly on this review and share the same goal of ensuring the integrity of the American justice system in all respects. All of the parties are committed to addressing this situation properly and will continue to work together in a collaborative and professional manner.
"The Department has been working together with the Innocence Project and NACDL to address errors made in statements by FBI Examiners regarding microscopic hair analysis in the context of testimony and laboratory reports. Such statements are no longer being made by the FBI, and the FBI is also now employing mitochondrial DNA hair analysis in addition to microscopic analysis," said Amy Hess, Executive Assistant Director, Science and Technology Branch, FBI. "However, the Department and the FBI are committed to ensuring that affected defendants are notified of past errors and that justice is done in every instance. The Department and the FBI also are committed to ensuring the accuracy of future hair analysis testimony, as well as the application of all disciplines of forensic science. The Department and FBI have devoted considerable resources to this effort and will continue to do so until all of the identified hair cases are addressed."
"These findings confirm that FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecutions' case," said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. "While the FBI and DOJ are to be commended for bringing these errors to light and notifying many of the people adversely affected, this epic miscarriage of justice calls for a rigorous review to determine how this started almost four decades ago and why it took so long to come to light. We also need lawmakers in Washington to step up and demand research and national standards to prevent the exaggeration of results in reports and in testimony by crime lab analysts."
Norman L. Reimer, Executor Director of NACDL added, "It will be many months before we can know how many people were wrongly convicted based on this flawed evidence, but it seems certain that there will be many whose liberty was deprived and lives destroyed by prosecutorial reliance on this flawed, albeit highly persuasive evidence. Just as we need lawmakers to prevent future systemic failures, we need courts to give those who were impacted by this evidence a second look at their convictions."       
The FBI and DOJ agreed to conduct a review of criminal cases involving microscopic hair analysis after the exoneration of three men convicted at least in part because of testimony by three different FBI hair examiners whose testimony was scientifically flawed. The Innocence Project and NACDL, with its partners David Koropp, Partner at Winston & Strawn LLP, and his colleagues, and Michael R. Bromwich, Managing Principal of The Bromwich Group, who served as the Inspector General of DOJ from 1994-1999, worked with the FBI and DOJ in determining the scope and protocols for the review. The review encompasses cases where FBI microscopic hair comparison was used to link a defendant to a crime and covers cases in both federal and state court systems. It does not, however, cover cases where hair comparison was conducted by state and local crime labs, whose examiners may have been trained by the FBI. The FBI has trained hundreds of state hair examiners in annual two-week training courses. 
The government identified nearly 3,000 cases in which FBI examiners may have submitted reports or testified in trials using microscopic hair analysis. As of March 2015, the FBI had reviewed approximately 500 cases. The majority of these cases were trials and the transcript of examiner testimony was reviewed. Some of these cases ended in guilty pleas, limiting the review to the original lab report. In the 268 cases where examiners provided testimony used to inculpate a defendant at trial, erroneous statements were made in 257 - 96% of the cases. Defendants in at least 35 of these cases received the death penalty and errors were identified in 33 (94%) of those cases. Nine of these defendants have already been executed and five died of other causes while on death row. The states with capital cases included Arizona, California, Florida, Indiana, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee and Texas. It should be noted that this is an ongoing process and that the numbers referenced above will change. 
All but two of 28 FBI examiners provided testimony that contained erroneous statements or authored lab reports with such statements. The review has shown that the FBI Examiners testified in cases in 41 states.  
In light of these findings, the Department of Justice and FBI have committed to working with the Innocence Project and NACDL to take the following steps:      
  • 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

Selective Silence of Defendant Cannot Be Used in Prosecution's Case In Chief

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

Police Officers May Not Testify That They They Believe the Defendant is Guilty

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].)

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.