Keeping out bad science: Forensics in the Courtroom

It is 8:00 am Saturday morning in downtown Chicago. I sit down with one of the great defenders of the Constitution, Justin McShane of Harrisburg, Pennsylvania. My head is full of new knowledge after just a few days at the American Academy of Forensic Sciences (AAFS) annual conference. I roll tape.

McShane co-authored the Amicus Curie brief filed by the National Association of Criminal Defense Lawyers (NACDL) in conjunction with the National College of DUI Defense (NCDD). He also lectured at the AAFS conference on the phenomenon of gastroesophogeal reflux disease (GERD) and how it impacts breath testing; he authored many articles and presentations; showed the courts of Pennsylvania and New Jersey why hospital blood tests are unreliable for use in criminal prosecutions and handled hundreds of cases through trial; many of which were favorable verdicts for his client. He is not formally educated in the sciences but he taught many lawyers and judges a lot about the science behind blood and breath testing.

I wonder as I sit across the table and hit record on my Dictaphone “how does this guy do it?” He reads and writes voraciously and keeps up with more in the law and the scientific developments around the country than about any lawyer I know. So, that is the question I am not going to end the interview without asking.

First, the Bullcoming case: since Crawford v Washington, the Supreme Court of the United States issued an opinion in Melendez-Diaz v Massachusetts, holding that an affidavit by a lab analyst about the results of a test of a substance was testimonial. Therefore, the analyst’s affidavit cannot be admitted without the live testimony of the analyst, giving accused citizens the opportunity to confront the analyst in order to protect their right to a fair trial under the 6th Amendment of the U.S. Constitution.

In Bullcoming, the New Mexico appellate court held that the supervisor of the analyst can testify instead of the analyst, who was on “administrative leave” from the lab. The issue before SCOTUS is whether the supervisor testifying in place of the analyst satisfies the 6th Amendment jurisprudence set forth in Crawford and its progeny, even though the supervisor did not test anything in the case.

The government’s position is that the sky will fall unless there is some way for them to get in analyst’s reports without actually having to bring the analyst in to be subject to confrontation because of the practical realities. The position asserted by Mr. Bullcoming is that the constitutional protections affording an accused person in a free society the ability to shed truth on the allegations through live testimony and cross examination, are far too important to surrender to the everyday challenges of running a government lab efficiently. The opinion in the case should be released by the end of the year.

The idea of confronting effectively a lab analyst brings up a whole bunch of questions. The first one might be: “how do you do that?” When the witness has specialized knowledge that you do not the natural reaction for many lawyers is “why bother?” I put the question to McShane: “what are the three things that a lawyer can do to be more effective when it comes to forensics in the courtroom?” Without hesitation his response was: “You need to specialize.” The top 3 things the each of us can do right now to be more effective:

1. Decide what specific practice area you want to do and then do it – get away from the general practice mode;

2. Become familiar with Google reader. “I monitor thousands of publications through the help of our friends at Google. It’s just really helpful to keep track and manage everything,” McShane says.

3. Find balance. McShane puts it this way: you can read all you want and consume everything there is about a practice area or the law but finding things, such as parenthood to make you “become a real person” as he puts it, “make me a better lawyer.”

The way to analyze a forensic issue in a case and prepare to present the issue or cross examine the witness on the issue is to become an expert. It does not have to be scary. Many lawyers avoided hard science classes in undergraduate school. McShane is no exception. The reason why a truly effective lawyer is the one who specializes is so that you can decide what you are going to specialize in and then immerse yourself in learning the applicable law and the underlying principles, whether that means learning science, computers, math or whatever applies: “last year was 653 hours of continuing education either teaching it or receiving it …” says McShane.

McShane agreed with my proposition that this is a great time to be a trial lawyer when it comes to forensic science. From the fact that the National Academy of Sciences has admonished forensic labs to develop a methodology for reporting uncertainty in the measurement and reporting process, to a renewed commitment to the right of the accused to confront witnesses including the scientists or technicians who analyze a substance to prove a fact in a case, there are new mandates on each of us who swore an oath to represent our client’s interests ahead of our own: even if that means getting your hands in the fertile dirt of learning some things about science. Those who do will be better equipped to make sure that the truth is revealed in the courtroom.

Mike Nichols, The Nichols Law Firm, PLLC, is co-chair of the Ingham County Bar Association Criminal Law Section. He specializes in defending those accused of driving while impaired by alcohol (OWI) or drugs (OWID). He is the author of the “Michigan OWI Handbook” for West Publishing, a member of the laws and rules committee of the Criminal Defense Attorneys of Michigan, a member of the National College of DUI Defense and the State Bar of Michigan Criminal Law Section. mnichols@nicholslaw.net