Special 

Science and the Law: 2001 and 2002 National Conferences 

U.S. Department of Justice 

Office of Justice Programs 

MAY 04 

National Institute of Justice 

REPORT 
U.S. Department of Justice 

Office of Justice Programs 

810 Seventh Street N.W. 

Washington, DC 20531 

John Ashcroft 

Attorney General 

Deborah J. Daniels 

Assistant Attorney General 

Sarah V. Hart 

Director, National Institute of Justice 

This and other publications and products of the U.S. Department 

of Justice, Office of Justice Programs, National Institute of Justice 

can be found on the World Wide Web at the following site: 

Office of Justice Programs 

National Institute of Justice 

http://www.ojp.usdoj.gov/nij 
MAY 04 

Science and the Law:


2001 and 2002 National Conferences


2001 and 2002 Conference Cosponsors 

National Institute of Justice, U.S. Department of Justice 

American Bar Association, Criminal Justice Section 

American Academy of Forensic Sciences 

National Center for State Courts 

In Collaboration With 

The National Academies 

The American Association for the Advancement of Science 

NCJ 202955 
Sarah V. Hart 

Director 

Findings and conclusions of the research reported here are those of the conference presenters 

or attendees and do not reflect the official position or policies of the U.S. Department of Justice 

or any of its offices, cosponsors, or collaborators. This summary of discussion is not a verbatim 

transcript; questions concerning details of the research or presentations should be directed to 

the speakers. 

The National Institute of Justice is a component of the Office of Justice Programs, which also 

includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the Office of Juvenile 

Justice and Delinquency Prevention, and the Office for Victims of Crime. 
Executive Summary 

The annual National Conference on 

Science and the Law brings scientists, 

attorneys, and academicians together to 

examine issues that arise at the intersection of the scientific and legal professions. 

The two professions take distinctly different approaches and do not speak each 

other’s “language.” The need for them to 

communicate better becomes more 

imperative with further advances in science and technology. 

Third Annual Conference 

on Science and the Law, 

October 4–6, 2001 

The third conference, held in Miami, Florida, 

took place shortly after the September 11 

terrorist attacks on the United States. An 

overall theme was how scientists can convey complex information to juries. Other 

themes included the development of standards for collecting and managing digital 

evidence, the use of law enforcement personnel as expert witnesses, and the roles 

of court-appointed expert witnesses. 

Keynote Speaker Addresses Use 

of Forensic DNA 

Christopher Asplen, Executive Director of 

the National Commission on the Future of 

DNA Evidence, spoke about the intersection of science and the law as it affects 

the use of forensic DNA. Advances similar 

to those in DNA evidence are likely to 

take place in other criminal justice-related 

technologies. An example is genetic profiling, which could be used to track down 

terrorists. Expanded use of technology is 

possible because there are experts who 

know when such uses are and are not 

appropriate. 

Reports on Science and the Law 

Some of the major advances in the sciences, including medicine and genetics, 

were cited. Legal developments in the 

past year included the application of the 

Daubert ruling to contexts different from 

the original, medical one; the large number of challenges to forensic science 

expert testimony; and unresolved issues 

in forensic psychology and psychiatry. 

Reports of Conference Sponsors 

Each conference sponsor explained steps 

it is taking to bridge the science-law gap. 

As the use of expert witnesses increases, 

the courts have been slow to comprehend 

changes in technology. Aids are becoming 

available to help judges and attorneys 

understand scientific matters. An attempt 

is being made to bring new standards of 

objective examination and validity to the 

forensic sciences. The American Association for the Advancement of Science 

noted it has a pilot program to help judges 

appoint qualified scientists as experts. The 

National Academies bring the science and 

security fields together to address such 

issues as foreign students and scholars. 

Tutorials for Scientists and Legal 

Professionals 

Tutorials for scientists and legal professionals offer each an understanding of the 

other’s field. For attorneys and others in 

the legal profession, information was presented on the basics of the scientific 

method, including such concepts as the 

robustness of data and statistical inference; an overview of the history of forensic science; and the use of computerized 

databases. Tutorials for scientists included 

an overview of the current state of expert 

iii 
witness testimony (covering the Frye and 

Daubert standards) and presented information on how expert witnesses are 

different from ”fact witnesses,” the preparation and trial use of scientific evidence, 

the role of the forensic scientist in the 

legal setting, and the judge’s role when 

science-based evidence is submitted. 

Conference Sessions 

Forensic Fraud 

Falsified evidence, which may result in 

culpable misconduct, is different from 

flawed evidence. Scientists are not to 

blame for a wrong conviction based on 

flawed evidence, but the public expects 

them to make no mistakes. Convictions 

overturned by DNA and other forensic evidence indicate that law enforcement must 

pay close attention to evidence collection 

to avoid flawed evidence. With respect to 

falsified evidence, laboratory protocols can 

insulate people from bias and the incentives for it. 

Use of Court-Appointed Experts and 

Advisors 

Federal Rule of Evidence 706 authorizes 

judges to appoint scientific experts to 

either testify or help the court decide what 

evidence is admissible and who should 

testify. But opposite conclusions can be 

reached with the same set of facts, and 

some issues are unresolved; for example, 

States differ over whether indigents must 

be provided with experts. A registry of 

scientific legal advisors, now in the experimental stage at a major university, contains lists of experts available to the 

courts. More than half of Federal judges 

who had used a court-appointed expert did 

so only once, and most of those who had 

not used one said they would do so only 

if the adversarial process was failing and 

they needed more information. Although 

a judge may want to consult an expert, 

the parties to the case may not want the 

judge to do so. One study revealed that in 

almost all cases in which an expert was 

used, the court followed the expert’s 

advice. 

Law Enforcement Officers as Experts 

in Court 

Police are often called on to testify on 

such matters as drug recognition, the criminal’s modus operandi, profiling of drug 

couriers, and police practices. Because 

their expertise is based on their experience in their official duties, experience as 

well as training and other qualifications 

should be considered when selecting 

police as experts. Recent trends indicate 

juries do not necessarily view these 

experts favorably. Police credibility has 

been challenged by recent instances of 

alleged misconduct. 

Eyewitness Evidence: Can Memory 

Be Improved? 

Eyewitness evidence is often the most 

influential factor in criminal proceedings, 

but it can produce wrongful convictions. 

The police receive little training in collecting eyewitness evidence. Memory can be 

distorted in the criminal justice process by 

the use of leading questions, for example. 

Eyewitnesses tend to want to make a 

judgment even if they are not certain 

rather than make no judgment at all, but 

blind testing can help correct this. New 

techniques for improving memory, based 

on cognitive psychology, can improve 

eyewitness identification. The “cognitive 

interview” recognizes the interaction of 

interviewer and witness and tries to recreate the original context by asking questions that let the witness take the lead. 

This method has been found to elicit more 

information but only slightly more accurate 

information. More research on memory is 

needed to improve juror decisionmaking. 

iv 
Presentation of Papers Selected 

From the Open Call 

The following papers were presented: 

■	 “Interdisciplinary Collaboration: The Key 

to Improving Medical Documentation of 

Domestic Violence for Use as Legal 

Evidence,” by V. Pualani Enos. 

■ “‘Task at Hand’ Principle of Kumho Tire 

v. Carmichael, 526 U.S. 137 (1999),” by 

Michael Risinger. 

■	 “Recent Defense Challenges to Forensic 

DNA Evidence,” by William C. Thompson. 

Mock Trial on Use of Digital 

Evidence 

Electronic (digital) evidence is an emerging 

area of forensics. To convey the complexity of cases involving this type of evidence, 

a mock trial was held. The mock trial was 

based on a real murder case in which the 

victim was found beside a computer. The 

key issue was whether the prosecution’s 

expert testimony was reliable and thus 

admissible. Contamination issues arose 

because the first responder examined the 

files before the computer recovery expert 

arrived. The defense contended that the 

first responder unwittingly altered the files 

and that obtaining information from the 

suspect’s computer violated privacy laws. 

The reliability of CaseView, a program 

used by law enforcement to copy files, 

was called into question by the defense. 

Despite the defense objections, the judge 

decided that the prosecution’s evidence 

was admissible. 

Keynote Address on Jurors’ 

Comprehension of Scientific 

Evidence 

Professor Lawrence Solan from Brooklyn 

Law School described a study that examined jurors’ understanding of scientific evidence. The results indicated that jurors 

give more weight to evidence presented in 

lay terms, but they also give more weight 

if the language is incomprehensible but 

the presenter has impressive credentials. 

Jurors also tend to react unfavorably to 

paid experts. 

Fourth Annual Conference 

on Science and the Law, 

October 3–5, 2002 

The theme of the 2002 conference, held 

in Miami, Florida, was emerging trends in 

scientific evidence, including new issues 

in forensic DNA, ethical issues facing 

forensic scientists, how attorneys can 

interpret scientific reports, genetic research, the role of scientists in counterterrorism, digital evidence, and the 

reliability of fingerprint evidence. 

Preconference Workshops 

Interpretation of Scientific Analytical 

Reports (for Lawyers) 

The workshop was intended to help attorneys interpret scientific analyses in reports. The analyses often follow certain 

standard models to guide data gathering 

and interpretation. It is essential that the 

report specify the analytical method used. 

Both the writer and the reader of the 

report are responsible for interpreting it 

correctly. However, conclusions, particularly ”inconclusive” results, can be interpreted differently. Attorneys must ascertain 

that the laboratories issuing the reports 

are accredited. Laboratories that prepare 

DNA and serology reports should have 

“toolkits” that include sets of guidelines 

and procedures manuals. A hierarchy of 

terminology on probability is being developed for use in the preparation of document examination reports. Mental health 

assessment reports must identify forensic 

issues and legal questions; they are not 

intended for therapy. 

v 
Brady and Other Ethical Issues Facing 

Forensic Scientists 

Much evidence acquired by prosecutors 

may be material to the defense. The 1963 

Brady v. Maryland decision requires them 

to turn over potentially exculpatory information to the defense. Brady is sometimes seen as asking the prosecutor to 

aid the accused. It has produced more 

Freedom of Information Act discoveries by 

defense and more attempts to find out 

about misleading evidence. One presenter 

noted that defense counsel needs adequate breadth of discovery to obtain scientific evidence. On the other hand, Brady 

has in some cases led to large additional 

areas of discovery for information that is 

only circumstantial. 

Can DNA Be the Magic Bullet? What 

DNA Can (and Cannot) Do 

Issues in the use of DNA evidence continue to emerge. Among them are whether 

there is a right to postconviction relief 

based on DNA, the scientific limitations 

of DNA testing, and the inability of many 

crime laboratories to work every case that 

involves DNA evidence. Analytical problems persist even though information 

expands. Computer-assisted data interpretation can help reduce laboratory backlogs. 

One presenter noted that the common 

assumption that DNA evidence wins the 

case could be dangerous. Defense attorneys sometimes do not ask for independent DNA testing because problems like 

contamination can arise. Although the 

Daubert decision required assessing evidence for its admissibility, courts still 

have not decided how to treat mixed-DNA 

evidence. 

Keynote Address on DNA and 

Genetics: A Challenge for 

Lawyers and Judges in the 

New Millennium 

In science, there is a distinction between 

“error” and “mistake”; in the law, there 

is no such distinction. When a mistake 

occurs in a scientific experiment, the 

experiment can be conducted again. 

Errors in experiments need only be documented. In the law, an error is the same as 

a mistake because it may overturn a decision. Exoneration via DNA has become fairly frequent, but DNA databases remain 

controversial. As genetics research continues to shed light on these issues, it is likely to have more influence on the law. The 

discovery of genetically caused diseases 

may raise issues of privacy and classification of people by their DNA. Medical information is already being used to make some 

hiring, firing, and promotion decisions. 

Reports on Science and the Law 

Daubert is not the only evidentiary standard, and the sky may not be falling as a 

result of it. Peer review is a standard, 

although one on which not too much 

emphasis should be placed in the legal 

context. Changes in technical fields affect 

testimony, including police officers’ testimony and clinical medical testimony. The 

Kumho Tire decision illuminated the issue 

of rigor in a variety of technical fields, 

causing, for example, handwriting evidence and fingerprints to be increasingly 

challenged. Typically, police are not asked 

to explain the basis of their experience 

when they testify, but scientific experts 

are asked to do so. Certain issues have 

created essentially a scientific revolution 

in the courts. The current confusion over 

litigation-sponsored science is likely to 

promote more research that will resolve 

issues now in conflict. 

vi 
Tutorials for Scientists and Legal 

Professionals 

Three tutorials were presented: basic rules 

for using expert evidence, preparing 

expert testimony, and toxic torts. 

Expert Evidence: Basic Rules and 

Contemporary Controversies 

Daubert and Kumho Tire require judges to 

ascertain that scientific evidence is relevant and reliable. How do they affect the 

analysis of fingerprint, handwriting, and 

trace evidence? Daubert criteria have been 

used almost as a definitive checklist. 

Daubert and Frye have asked the courts 

to be less deferential to scientists on the 

basis of their credentials alone. As a result 

of these two cases, pretrial hearings and 

hurdles for admissibility have sometimes 

increased. But many forensic sciences have 

not come out of a university-based research 

tradition of controlled experiments. 

Investigating, Evaluating, and 

Preparing Experts 

The credentials of the expert need to be 

verified in view of documented misconduct by expert witnesses. This documentation has led to increased scrutiny and 

accusations of negligence, fraud, or even 

criminal malfeasance. Judges and jurors 

are becoming more mistrusting of expert 

witnesses and peer review standards, and 

many more hearings are being held on 

expert witness evidence. For these reasons, it is incumbent on attorneys to prepare experts for trial. 

Toxic Torts 

Scientists often feel ill at ease in legal proceedings because they are not familiar 

with adversarial situations and feel reluctant to support only one side of an issue. 

The law, however, avoids ambiguity. In 

torts involving chemicals, scientists may 

legitimately differ on how they rate the 

health effects of a toxic substance. Risk 

assessment is increasingly used in court 

cases, as in government regulations. 

Plenary Panels 

Plenaries were presented on science and 

counterterrorism, the manipulation of 

digital evidence, and jurors’ weak grasp 

of statistics. 

Counterterrorism 

Science has a role in securing the homeland against terrorism. A proposal now 

before Congress would create a national 

research and development enterprise 

focused on homeland security that would 

involve many fields, including chemistry, 

physics, and the life sciences. Some scientific developments will be used in security 

measures; biometrics will affect travel document verification, for example. Another 

example is the development by the Federal Government of new diagnostics to 

detect pathogens affecting humans, animals, and plants and new vaccines to prevent infections from these pathogens. 

When Is Evidence Considered 

Manipulated? A Close Look at 

Digital Evidence 

Nearly every kind of case now has some 

connection to digital evidence. Computers 

can be crime victims, crime instruments, 

or crime evidence. In the absence of eyewitnesses, chatroom and e-mail files, for 

example, can be used to establish a connection to a crime. Until recently, however, 

little training has been available in investigating computer crime. Skillful image 

manipulation is very hard to detect; it is 

often difficult to distinguish manipulation 

from normal anomalies in files. Defense 

often seeks exclusion of computer evidence as hearsay, but courts will admit 

exceptions if the evidence is generated as 

a result of the ordinary course of business. 

vii 
Juries’ Understanding of Statistics 

Jurors are neither overawed by nor dismissive of expert testimony, according to a 

study of the videotaped deliberations of 

juries in civil cases. Jurors frequently discussed the experts and focused on the 

content, plausibility, and “expertness” of 

their testimony. They disliked obfuscation. 

Jurors are unlikely to understand statistics, 

at least not as well as are undergraduates 

who take statistics courses and have backgrounds in mathematics. Study design is 

an important concept to convey to juries, 

as it determines the reliability of the conclusions. But one study indicated that only 

about half the jurors understood problems 

with a nonrandomized study. 

Presentation of Papers Selected 

From the Open Call 

The following papers were presented: 

■	 “The Role of Meta-Analysis in the Legal 

System,” by Jeremy A. Blumenthal. 

■ “Voodoo Science by Default,” by Peter 

R. DeForest. 

■	 “Inconsistency in Eyewitness Testimony: 

What Does It Really Tell Us?,” by Ronald 

P. Fisher. 

■	 “Jurors’ Comprehension of Contested 

DNA Evidence: A Case Study,” by 

William C. Thompson. 

Fingerprints: Making Sense of 

Forensic Science—Plenary and 

Roundtable Discussion 

Current court treatment of fingerprint evidence may be a keystone for treatment of 

other kinds of forensic evidence. Despite 

challenges to fingerprint evidence, much 

of it is admitted on the basis of experts’ 

statements. Courts should be better able 

to filter out statements that are not based 

on sound research. Lack of research could 

threaten forensic scientists’ credibility. The 

main issue is reliability, but science is not 

reliable; rather, it has rules for the reliability of testing. Thus, fingerprint evidence 

might be admitted as technical expertise, 

not as science. Daubert recognized the 

limitations of science. A requirement for 

scientific evidence at all times would 

handicap the courts. However, it is difficult 

to know what nonscientific, technical standards should be used for trace evidence. 

Keynote Address on Knowledge, 

Power, and the Evolving Role of 

Scientific Evidence 

The Honorable Gerald T. Wetherington 

elaborated on the mental struggles of 

juries, judges, and expert witnesses as 

they try to make the right decision. In the 

murder case he cited as an example, an 

overheard telephone conversation was 

presented as evidence. Overhearing conversations can be illegal, which raises the 

question of whether the evidence is 

admissible. Another issue is subjective 

factors that can influence a decision. 

Expert witnesses need to confront their 

own observer bias and scrutinize their 

motives for testifying. 

How Much Can the Hair Tell? 

Microscopic Examination 

In a mock legal scenario, a defense motion 

not to accept hair as evidence was denied. 

The defense challenged on several bases. 

An expert witness provided an overview of 

the value of hair as evidence, explaining 

how unknown and known hairs are compared microscopically to try to match 

them. However, hair evidence is not easily 

quantifiable or digitized and reliability and 

validity are not as readily achieved as for 

DNA evidence. Another expert spoke in 

favor of mitochondrial DNA (mt-DNA) testing of hair. If microscopic comparison produced a match with the defendant’s hair, 

mt-DNA testing might produce a different 

result. 

viii 
Contents 

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Third Annual Conference on Science and the Law,


October 4–6, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1


Thursday, October 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 

Welcome and Opening Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Keynote Address: So, Tell Me, Is DNA Really That Good? . . . . . . . . . . . . . . . 2

Annual Reports on Science and the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Annual Reports of Sponsors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Tutorial: “Law 101”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tutorial: “Science 101” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


Forensic Fraud: Who’s Taking the Fall? Roundtable . . . . . . . . . . . . . . . . . . . . 14


Friday, October 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 

Court-Appointed Experts and Advisors: Panel. . . . . . . . . . . . . . . . . . . . . . . . . 17


Law Enforcement Personnel Testifying as Experts: Panel. . . . . . . . . . . . . . 21

Eyewitness Evidence: Panel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Call-for-Papers Presentations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Saturday, October 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 

Digital Evidence—Virtual Reality 


in the Real-World Classroom: Mock Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Keynote Address: Jurors’ Comprehension of 


Scientific Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 

Digital Evidence—Virtual Reality 


in the Real-World Classroom [continued] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Closing Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

ix 
Fourth Annual Conference on Science and the Law,


October 3–5, 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41


Thursday, October 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 

Preconference Workshop I: Interpretation of 


Scientific Analytical Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Preconference Workshop II: Brady and Other 


Ethical Issues Facing Forensic Scientists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Preconference Workshop III: Can DNA Be the Magic 


Bullet? What DNA Can (and Cannot) Do. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Welcome and Opening Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Keynote Address: DNA and Genetics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Annual Reports on Science and the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Scientific and Legal Tutorials 


(formerly “Science 101” and “Law 101”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Friday, October 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 

Counterterrorism: Plenary Panel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

When Is Evidence Considered Manipulated? 

A Close Look at Digital Evidence: Plenary Panel . . . . . . . . . . . . . . . . . . . . . . 56

Jury Understanding of Statistics: Plenary Panel . . . . . . . . . . . . . . . . . . . . . . 58

Call-for-Papers Presentations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Saturday, October 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 

Fingerprints—Making Sense of Forensic Science:


Plenary and Roundtable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Keynote Address: Knowledge, Power, and the 


Evolving Role of Scientific Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Case Scenario Involving Hair Evidence: 


Microscopic Examination—How Much Can Hair Tell? . . . . . . . . . . . . . . . . . . 70

Closing Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

x 
Third Annual Conference on Science 

and the Law, October 4–6, 2001 

Thursday, October 4 

Welcome and Opening 

Remarks 

Sarah V. Hart, Director, National Institute 

of Justice (NIJ), Office of Justice Programs (OJP), U.S. Department of Justice 

(DOJ), opened the conference by reviewing NIJ’s work for the participants: researching policy issues for public safety 

and law enforcement, staging demonstration projects on promising approaches 

against crime, and developing science and 

technology for justice programs. Following 

the disastrous events of September 11, 

2001, NIJ’s Office of Science and Technology (OST) arranged to have scientists 

in the field in New York City to help with 

rescue efforts using the newest available 

technology, such as miniature cameras 

strapped to rescue dogs searching in the 

rubble. There was a great sense of mission as DOJ staff, Federal Emergency 

Management Agency (FEMA) personnel, 

and State and local rescue workers struggled to save the people they could reach. 

Ms. Hart said debate is inevitable when 

the disciplines of science and the law are 

placed together. Both the rule of law and 

the protective technology that supports it 

are necessary for society. This timely conference generates ideas for common 

goals to ensure both public safety and 

essential liberties. She quoted Benjamin 

Franklin, signer of the Declaration of 

Independence, who said, “They that can 

give up essential liberty to obtain a little 

temporary safety deserve neither liberty 

nor safety.”1 She said we must use 

technology to its greatest potential without interfering with fundamental fair 

process. Science and the law have somewhat conflicting approaches. Science, as a 

profession, values change and innovation— 

”thinking outside the box.” The legal profession often takes an opposite approach, 

encouraging stability and reverence for 

rule of law. The law typically is not designed to encourage innovation by courts 

or judges. 

New requirements in the changing world 

challenge both of these disciplines. An 

example is the procedure of requesting 

wiretap orders from a judge. Previously, 

this required law enforcement officials to 

seek a warrant using both a phone number and a name. In the case of terrorists, 

however, cell phones or disposable 

phones often are used, and there is no 

ability to respond quickly. Under new legislative proposals that warrants can now 

be obtained using only a name, the law 

enforcement officials still must make a 

case to a judge for an impartial determination. Newer technologies continue to raise 

these debates about how the law should 

change to accommodate legitimate law 

enforcement needs while still protecting 

constitutional rights. 

The Supreme Court, during its last term, 

found against the prosecution’s use of a 

technology that sees through walls to find 

“hot spots” (e.g., possibly marijuana 

plants). The Court would not allow law 

enforcement to perform this kind of 

search without a warrant, concluding that 

it invaded basic privacies. Members of the 

1 
SPECIAL REPORT / MAY 04 

Court were very divided over the issue. 

Ms. Hart said that scientists and lawyers 

particularly need to resolve communication issues and understand each other 

better. 

David G. Boyd, Deputy Director, NIJ, and 

Director of NIJ’s Office of Science and 

Technology, said the previous National 

Conference on Science and the Law focused on admissibility of evidence when 

complex scientific technology was 

involved. This year’s conference adds the 

aspect of talking to juries. Lawyers and 

scientists both use special languages, and 

juries speak neither language. In addition, 

lawyers and scientists may be interacting 

only in an adversarial situation. How can 

this rift between science and law in such 

a setting be bridged to increase necessary 

understanding? The conference sessions examine cutting-edge issues in science 

and law, such as the development of 

rational standards for the collection and 

management of digital evidence, the use 

of experienced law enforcement personnel as experts, and the roles of courtappointed expert witnesses. 

Keynote Address: So, Tell 

Me, Is DNA Really That 

Good? 

Christopher H. Asplen, Executive 

Director, National Commission on the 

Future of DNA Evidence, said the Commission’s work has promoted public discussion and has provided an open forum for consideration of the issues related to 

the increasing use of DNA evidence. The 

process has helped foster better policy 

decisions that affect the provision and use 

of the resources for both the development 

of DNA technologies and the protection of 

society through the justice system. Mr. Asplen pointed out that science and law 

have an uncomfortable, “unnatural” relationship, but the need to integrate these 

different viewpoints has accelerated at a 

breakneck pace. 

In the last 4 or 5 years, DNA technology 

has developed and been integrated for 

investigative purposes at a rate that is 

“beyond the wildest dreams” of even the 

professionals who presented at the First 

International Conference on Science and 

the Law in San Diego. Three years ago, 

presenters spoke about using DNA to 

solve rape cases and suggested that there 

may be errors in existing convictions. At 

that time, listeners’ jaws dropped in 

shock. Now, postconviction DNA testing 

has legislative support in 25 States. 

Similarly, only 3 or 4 years ago, the FBI 

alone used computer databases containing DNA information to investigate homicides and sex crimes. Last spring, more 

than 115 pieces of legislation in States 

across the country expanded development 

of DNA databases for convicted offenders. There is still a substantial problem with 

providing supporting resources to the 

States, where large sample backlogs exist. 

However, last year Congress approved 

$170 million for backlog reduction in the 

States, and outsourcing laboratory analysis 

of crime evidence has become a working 

solution for about half of the backlogged 

samples. As databases continue to improve, the power of this DNA technology is 

being used more routinely to investigate 

cases that were previously unsolvable. 

Genetic profiles are becoming more reliable, and law enforcement personnel now 

sometimes file “John Doe” criminal warrants based on them. Arbitrary statutes of 

limitations have been set aside in circumstances in which DNA analysis 10 or 15 years after the crime was able to prove 

innocence. 

Mr. Asplen said we should expect similar 

acceleration in other technological ad­ vances. There will be new ways to track 

down terrorist crimes, and an open forum 

to inform broad criminal justice policies is 

2 
SCIENCE AND THE LAW 

needed for those technologies as well. 

Consider, as an example, the progress 

in tracing allele sequences in genetic 

profiles, which enables the investigator to 

discover the geographic background of the 

person tested (such as ethnic/biological 

connections to Asia, Ireland, or the Middle 

East). Should we think of this, asked Mr. Asplen, as a pitfall or an advantage? What 

if there were a warning call about an explosion, and DNA was recovered from 

the phone from which the call came? 

Should we use the DNA results for allele 

sequencing? He asked listeners to think 

about the time, money, and anguish that would be saved in responding to and 

investigating large disasters as missing 

persons are located and identified. Mr. Asplen said we can talk about expanded 

police powers and use of technology 

(such as wiretaps, Internet search capacity, and interception of cell phone communications) particularly because we have 

people who will “put the brakes on” when 

appropriate. Attention to the Constitution 

and protection of people’s rights reasonably balance such initiatives. 

Annual Reports on 

Science and the Law 

Anticipating Science Impacts— 

Updates on the Last Year and the 

Next Decade 

Martin A. Apple, President, Council of 

Scientific Society Presidents, discussed 

scientific advances. The scientific associations represented by Dr. Apple’s council 

publish millions of scientific articles. He 

suggested to attendees that his discussion could only touch on some of the 

most rapid advances. He offered to extrapolate to some provocative, possible 

future scenarios. People who occupy leadership roles today must be lifelong learners, he said, because the application of 

science (with rapidly changing areas of 

knowledge) to crimefighting is like “hitting 

a moving target.” Revolutionary innovations that would have been unbelievable 

in the first half of the 20th century have 

become accepted and even necessary 

(e.g., synthetic hormones, antibiotics, 

manned space stations, cracking the 

human genetic code, babies conceived in 

test tubes, electricity without resistance, 

and crossing the ocean in 2 hours). The agricultural demand for food production to support world population has required capturing most usable real estate 

on the Earth, Dr. Apple said. Genetic 

engineering has made possible a greatly 

increased food supply. In a recent example, researchers at University of California– 

Davis altered plants to enable them to 

grow in even high-salt environments. 

Sophisticated surgical procedures like 

heart bypass that require specialized training and experience can now be conducted 

at great distances using robotic systems. Recently, a New York surgeon was able to 

remove a gall bladder from a patient in 

Salzburg, Austria, using such technology. 

Other notable advances include the following: 

■	

The discovery in Boston of a human 

gene that confers longevity; confirmation of a “learning enhancement gene” 

in mice. 

■	

The invention of switches and circuits 

that use photonics (photons instead of 

electrons), enabling the construction of 

a “quantum computer” with unimaginable speeds. 

■	

The development of fuel cells that will 

use hydrogen (perhaps by splitting water molecules) in a process that has water as an end product (no net change 

and no net pollution). 

■	

The results of studies of the exact cell 

receptors for medical drugs that are 

making the drugs many times more 

potent and will result in fewer side 

3 
SPECIAL REPORT / MAY 04 

effects; however, studies will be needed 

to monitor the environmental impact of 

excreted biological agents from such 

designer or “miracle” drugs. 

■	

The use of stem cell research to speed 

up the development of several anti-AIDS vaccines (now in trial). The next stage 

will be the growth of replacement 

organs. 

■	 MIT’s recent design of a modular “pebble bed” nuclear reactor that controls 

just enough fuel to start the chain reaction but cannot accumulate a dangerously large amount in one place. 

■	

The development of new ultrasecurity 

locks that use a nanoscale maze that 

jams in the case of any error. 

■	

The synthesis of high-temperature 

plastic-ceramic materials that can replace many conventional hard materials. 

Dr. Apple pointed out that society has no 

consensus or guidelines concerning the 

moral or religious implications of many of 

these advances. Strange social questions 

could arise in the new scientific contexts 

(for example, Is a reproductive clone a person’s sibling or son/daughter?). 

Annual Report on Science and 

Law 

David Faigman, Professor, Hastings 

College of Law, University of California, 

spoke about recent courtroom use of expert testimony and referred to a survey 

of 700 Federal cases involving the Federal Rules of Evidence and the Daubert decision.2 Although the substantive area 

(expert testimony) is complicated in itself, 

some major issues also transcend the 

subject. Courts are starting to use Daubert 

in an administrative context, i.e., as a style 

of evaluating expert witness testimony. Federal Rule of Evidence 702, which was 

supposed to codify Daubert, actually 

introduced new elements. The idea, for example, that the data must have sufficient “fit” for the inferences being drawn 

obliged the Court to screen expert testimony both for sufficient factual basis and 

applicability to the facts of a given case. 

In a similar situation, but in a clinical medical context, the idea of “differential diagnosis” has been important. In a medical 

case, such as an allergy, doctors are interested in the cause for research (not just in 

treating the symptom), so differential diagnosis is accepted. Courts have been reluc­ tant to generalize from the specific 

symptom or disease event to the general 

etiology or root cause, but sometimes this 

is done implicitly. Differential diagnosis has 

also become important for studying cause 

in an engineering context. The revolution 

brought about by Daubert relates to introducing the same sophistication to other forensic sciences. Base rates, probabilities, regression analysis, and error margins 

are now brought up in consideration of 

such different questions as “battered woman syndrome” or traces of bite 

marks. 

In a court case, however, it must be clear 

what question is being asked: Some 

courts give value to temporal proximity, 

but how far should that be relied on in the 

question of the cause of a crime? How 

much epidemiology is really necessary to 

give “sufficient data”? Many women with 

tissue and autoimmune disorders pursued 

the class action case involving silicone 

implants. Is it enough to go to a jury with 

just clinical anecdotal information? Engineers have faced the greatest difficulty 

in recent cases because they have often 

been met with expectations that they 

should be able to rule out alternative explanations, explain methodology, know 

effects of “confounding variables,” and so forth. Courts must be innovative enough 

to examine different areas in different expert contexts. 

4 
SCIENCE AND THE LAW 

Professor Faigman said there is currently 

a surfeit of challenges to forensic science expert testimony. He quoted Oliver Wendell Holmes, who said, “No facts 

make bad law.” Some evaluation of forensic technical work has been badly done in 

such areas as fingerprinting. There is also 

still a wide range of unresolved issues in 

psychology and psychiatry. The Supreme 

Court often delegates matters dealing 

with science, child witnesses, and polygraphs to specialists. “For my part,” said Professor Faigman (considering Daubert), 

“if a doctor used a stethoscope to diagnose cancer, you could say it was a valid 

method but that method would not apply 

properly to the case in hand.” Judges 

have a responsibility to examine both 

methods and conclusions, not just to 

“trust experts.” The court has to ask, 

“How did you examine it? Explain how the 

premises compel or support your conclusion.” He noted that for centuries, medical expertise supported the use of leeches, 

but scientific experience grew beyond 

that. Professor Faigman said he considered the challenge to convince mainstream scientists to research mainstream legal issues 

as most important. Primarily, there has 

been neither enough prestige nor financial 

support. Why, for example, are researchers 

not looking at polygraph testing? In the 

case of police expert testimony, the courts 

have not been too good at determining 

the basis for conclusions. They need to do 

somewhat better than simply asking, “In your experience, do drug dealers carry 

guns?” The district courts now have to 

supply reasons for either admitting or 

excluding expert testimony. Standard 

appellate review may remedy the lack of 

appropriate expert testimony or may raise 

questions that transcend the local dispute. There is now a tremendous pressure on 

the appellate courts to settle scientific evidence disputes. 

Open Discussion 

One participant asked why courts often 

ignore methods that are “clear rules” in 

scientific procedure. In the Van Wyk case, 

for example, the court admitted as evidence threatening letters said to be from a 

defendant, even though there had been no 

discussion of validated linguistic techniques, error rates, peer review, and so forth.3 Professor Faigman noted that we 

are in a revolution or transition period, and 

many examples exist on both sides. Some 

courts are “without a clue.” Hopefully, 

with time, this will change. He agreed 

with other comments that law schools are 

not teaching enough about hypothesis 

testing and scientific methods. 

Another participant, who said he was a 

judge and former scientist, noted a failure 

to communicate fundamentals of science 

that would enable lawyers to distinguish 

“pseudoscience” and “quasi-science” 

(such as a police officer discussing fingerprints). Very seldom does legal education 

offer instruction in statistics or information 

on how to extrapolate data. 

Dr. Apple mentioned ongoing disputes in 

the scientific world, such as disagreements about the dose of ionizing radiation 

that would be dangerous, and said scientists do ask for government priorities. 

However, dictating the direction of scientific research does not give the best 

results either. The group discussed limitations of the current adversarial system. Professor Faigman said the jury system is usually 

cited as the component that gives rise to 

the adversarial system. Many rules limit 

what the jury sees. Too many judges and 

lawyers consider this form to be sacred. Rather than preserving impartiality, the 

attitude often prevents intelligent use of 

science and technology. Insights could 

come from a “civil factfinding” or “inquisitorial” model. Jury trials are an aspect of 

5 
SPECIAL REPORT / MAY 04 

the system that has possibly grown out of 

control and may need overhaul. Professor Faigman noted that the real revolution of 

Daubert, however, is the mandate to collect the data. 

Annual Reports of Sponsors 

National Center for State Courts: 

Assisting Courts in the 21st 

Century 

Judge B. Michael Dann, formerly a trial 

judge in Maricopa County, Arizona, and 

now Visiting Fellow for the National Center for State Courts (NCSC), spoke about 

assisting courts in the 21st century. Courts 

have been slow to adapt to changes in 

technology and in the nature of caseloads. 

In the present era, a court case that is 

“worth litigating” can be expected to bring 

two or three expert witnesses to 

the stand. NCSC has launched an online 

resource center for judges to help them 

consider expert witnesses, including 

material compiled for the Federal Judicial 

Center and the National Judicial College. The site is organized to be friendly to 

judges, lawyers, and law clerks. Articles 

are included on scientific methods, cul­ ture, statistics, and surveys, and links to 

an online encyclopedia and annotated treatises on science and law (Westlaw) are 

provided. The center is also discussing a project 

with Duke University, which would use the 

university’s Registry of Independent 

Scientific and Technical Advisors (part of 

Duke’s Private Adjudication Center [PAC]). Judge Dann said that a sitting judge does 

not have time to surf the Internet for 

research sources, and States often cannot 

pay to send their judges to special training. The new project’s concept would 

develop on-call “mentors” in particular 

fields to tutor judges in background science 

and provide quick answers for certain technical questions. 

Judges have been reluctant to interfere in 

party control of litigation or to stimulate a 

“satellite litigation” concerning experts. 

Guidelines could clarify which tasks are 

to be performed by experts, what to tell 

the jury about the status of the technical 

master, and what to do with the report. 

Experts may also tutor the judge in a scientific area to provide the judge with background information before the judge hears 

an expert witness. Typically, State trial 

judges do not even have law clerks to help 

with research. Much remains to be studied on scientific and technological issues 

that are affecting the courts. 

American Academy of Forensic 

Sciences: Building the Bridge 

Between Forensic Science and 

the Law 

Mary Fran Ernst, President, American 

Academy of Forensic Sciences (AAFS), 

and Director, Medicolegal Education, St. Louis University Medical School, said her 

umbrella organization represents more 

than 5,000 professional forensic scientists 

in more than 18 specialties. One of their 

important activities has been establishing 

independent forensic science accreditation boards to bring new standards of 

objective examination and validity to these 

disciplines. The association also works a great deal in 

the field of science education. Ms. Ernst 

referred to recent studies that show 

declining scores in mathematics and science for American children of middle 

school and (particularly) high school age. 

Her organization has a grant to bring forensic science into high school classrooms 

to engage the students. AAFS participates 

in a DOJ Technical Working Group for 

educational standards of people entering 

the forensic field. 

AAFS produces a world-class journal, Ms. 

Ernst said, that offers bimonthly information on new work in the field of forensic 

6 
SCIENCE AND THE LAW 

science. The association’s annual meeting 

is attended by more than 2,500 scientists working in forensics. Ethical issues, Internet use, and computer forensics were 

among the interesting panel topics at the 

last membership meeting in Seattle. The 

upcoming year’s theme will be accreditation, education, and professional integrity. 

American Association for the 

Advancement of Science: Law 

and Science Initiatives 

Mark S. Frankel, Director, Program on 

Scientific Freedom, Responsibility and 

Law, American Association for the Ad­ vancement of Science (AAAS), described 

his organization as the largest multidisciplinary scientific association in the world. It 

publishes Science, a peer-reviewed weekly 

journal. Current initiatives include the following: 

■	 Improving science education at the K–12 

level in schools. 

■	 Helping scientists in the former Soviet 

Union develop a competitive research 

funding system. 

■	 Establishing ethical guidelines for further 

developments in science. 

AAAS recommends witnesses to Congress, issues statements to the public, 

and works in many collaborative efforts. 

Since 1974, it has participated in a joint 

committee with the American Bar Association (ABA) to examine the intersection of science and the law. Some 

activities of the joint committee include 

providing recommendations for a legal 

framework for the Internet, establishing 

regulations that affect research misconduct, and assessing advances in such 

areas as genetics research. AAAS also 

hosts the Court-Appointed Scientific 

Experts (CASE) project, a 5-year pilot 

project to help Federal judges appoint 

qualified scientists, engineers, and health 

professionals as court-appointed experts. 

In the pilot approach, the judge is provided 

two or three names to use for a case. The expert fills out conflict-of-interest forms 

and is advised about what to expect in 

the legal arena. The CASE project has 

been endorsed by Supreme Court Justice 

Breyer and is funded by two private foundations. Additional important work of the association includes an upcoming summit conference on future directions of science and 

criminal law. This meeting will bring together scientists, attorneys, and key State 

and Federal policymakers to develop research agendas for the forensic sciences. 

Many areas could benefit from more rigorous research, evaluation, and peer review 

as such issues as admissibility of evidence 

are confronted. 

The National Academies: 

Science, Technology, and Law 

Program 

Anne-Marie Mazza, Director, Science, 

Technology, and Law Program, The 

National Academies, Washington, D.C., 

told attendees that the National Academies incorporate the National Academy of 

Sciences (NAS), the Institute of Medicine, 

and the National Research Council. This 

nonprofit research group was founded in 1863 by Abraham Lincoln and carries out 

its work through studies and workshops, 

using members and thousands of volunteers. The Panel on Science and Law was formally established in 1999 and particularly examines science in the courtroom and 

its effects, and how law and judicial use of 

science and technology in turn affect 

research. The panel also addresses ethics for experts, access to research data, and Federal funding support for research. 

NAS officials convene small meetings of 

leaders in security, science, and technology to address concerns about international 

scientific communication and national 

7 
SPECIAL REPORT / MAY 04 

security. A variety of questions have been 

asked about foreign students and scholars. 

NAS encourages a free flow of ideas and 

information. Draft legislation is circulating 

about visas and scholarships for scientific 

students. Further information can be 

viewed at http://www.nas.edu/stl in the 

coming months. 

The American Bar Association: 

Criminal Justice Section 

Thomas C. Smith, Director of the American Bar Association’s Criminal Justice 

Section, spoke about the structure and 

membership of the section. He said that 

judges and lawyers (both prosecution and 

defense) are represented among its membership, in addition to court administrators, 

law professors, law enforcement personnel, and justice administrators. He emphasized that associate memberships are 

available for persons who are not lawyers 

but who work in the criminal justice field. 

He gave some examples of the ways nonlawyer associate members can be active 

in the ABA Criminal Justice Section. He 

noted that the section regularly publishes 

articles from nonlawyer authors in its 

award-winning magazine, Criminal Justice, 

and that it has a book publishing program 

that may be of interest to nonlawyers who want to publish a book on a contemporary 

criminal justice topic. Generous royalty 

arrangements are made with authors who 

publish under this program. 

He said that the section is eager to form 

collaborative relationships with persons of 

scientific ability. He pointed out that, in the 

past, the section has been the sponsor of 

study projects carried out by researchers. 

In such instances, he said the researchers 

conduct their studies independently and 

that the section takes care not to influence 

the integrity of their work and the conclusions of the studies. One recent valuable 

study examined “no-drop” policies in 

prosecutors’ offices that handle domestic 

violence cases. The study found that with 

the no-drop policy, which required that the 

case be prosecuted once a complaint was 

filed, regardless of whether the complainant continued to want the complaint 

pursued, alleged victims lodged significantly fewer complaints. Incident reporting 

also declined; partners chose to be silent 

rather than to allege abuse because abused 

partners knew that if charges were filed 

they could not later withdraw the complaint 

on which the charges were based and the charges would be prosecuted. 

Mr. Smith also gave some current examples of projects being undertaken by the 

section that might be of interest to persons in the scientific community. These 

include Electronic Surveillance Standards 

and Technologically-Assisted Physical 

Surveillance Standards, Guidelines for the 

Fair Treatment of Child Witnesses in Cases 

Where Child Abuse Is Alleged, and The 

Child Witness in Criminal Cases. He also 

referenced the May 2002 National 

Conference on Cybercrime, expected to 

include panelists from scientific disciplines 

and the legal community. 

The National Institute of Justice: 

Structure and Support 

Anjali R. Swienton, Senior Forensic 

Analyst, ACS Defense, Inc., Contractor, 

Investigative and Forensic Sciences 

Division, Office of Science and Technology, NIJ, spoke about NIJ’s structure and 

the Office of Science and Technology. NIJ 

is one of five Bureaus of the Office of Justice Programs and operates as the 

research organization of the U.S. 

Department of Justice. Although there are 

no laboratories at NIJ, it interacts with laboratories around the country. OST administers Technical Working Groups (TWGs) on 

important current areas of scientific 

research. There has recently been a TWG 

publication on digital evidence and an 

interactive video prepared for emergency 

first responders. Other topics studied 

8 
SCIENCE AND THE LAW 

include teleforensics, databases for pattern recognition, and entomology for post 

mortem interval identification. 

In response to the terrorist attack in New York, NIJ deployed staff to supervise integration of technology, contacted grantees 

who had technologies that might be useful, and arranged technical assistance to 

the site within 24 hours. NIJ, together 

with the Armed Forces DNA Identification 

Laboratory, is still giving systems support 

to New York State to analyze samples for 

identification of victims. This process is expected to take years. For some of the 

new technologies that are still being tested, the event represented “trial by fire.” 

Court challenges might be expected in connection with aspects of their use after the 

disaster. Tutorial: “Law 101” 

Law of Expert Witnesses 

Professor Michael J. Saks, College of 

Law, Arizona State University, provided an 

overview on the law related to expert witnesses. He discussed the differences 

between fact witnesses and experts. Fact 

witnesses are qualified by their personal 

knowledge. In essence, they provide a 

description. In contrast to the fact witness, an expert witness can give an opinion or draw inferences. The expert also 

must pass a higher threshold to testify as 

to his or her opinion. The expert witness 

could be helpful to the factfinder but could 

also be misleading. The fact witness does 

not have the same level of expertise as an expert witness and thus cannot evaluate expert information independently. Professor Saks also provided a brief history of the use of expert testimony in the 

courtroom. In the pre-Frye era, the courts 

used the marketplace test.4 In other words, 

they considered whether consumers of 

the expertise believed that the experts 

were able to do what they claimed. Under 

the Frye standard, the test was whether 

producers of the expertise believed that 

they were able to do what they claimed. 

Under Daubert, the test has shifted to 

whether or not judges find that the experts can do what they claim. Daubert 

also provides a new range of criteria for expert screening, including rate of error, 

standards, and general methodology testing. Professor Saks provided a handout on 

questions that expert witnesses should be 

prepared to answer under a Daubert hearing. Examples include the following: What 

are the essential theories on which this 

field stands? What studies have been 

done? What is the evidence that these foundations are valid? What reliability and validity of data are associated with the expert’s diagnosis and analysis in this 

case? Professor Saks also indicated that the 

courts have not applied rigorous screening 

tests to such traditional areas of technical expertise as analysis of fingerprints, handwriting, and bite marks. 

Preparation and Trial Use of 

Scientific Evidence 

George “Woody” Clarke, Deputy District 

Attorney, Office of the District Attorney, 

San Diego, California, talked about the 

preparation and trial use of scientific evidence. He advocated a pretrial conference 

between the attorneys and the forensic 

scientist. The attorney needs to understand the scientist’s methods, procedures, 

sampling techniques, and results. The 

attorney must help the scientist prepare for direct testimony and cross examination. The attorney also should work 

together with the scientist on using presentation technology for courtroom 

testimony (e.g., PowerPoint slides). The 

adage that one picture tells a thousand words is very true before a jury in a courtroom setting. 

9 
SPECIAL REPORT / MAY 04 

Epistemology of Science and 

the Application of Scientific 

Principles José R. Almirall, Director, Forensic 

Science Graduate Program, Assistant Professor, Department of Chemistry, 

Florida International University, discussed 

the background of the application of scientific principles in a court of law. He described how the basic sciences relate to forensic science. He noted that forensic 

science takes theories of the sciences 

and applies them to the law. He briefly 

reviewed the history of forensic science 

and noted that the field has become much 

more standardized in its methodologies 

and interpretation of results. This evolution 

has been aided by guidelines from scientific working groups. 

In recent years, more forensic scientists 

have become certified (e.g., American Board of Criminalists), and crime laboratories have become accredited (e.g., with 

the American Society of Crime Laboratory 

Directors). Dr. Almirall also noted that the 

use of DNA technology continues to 

improve and to lead to advancement in 

the forensics field. He noted that there 

must be significant improvements in the 

collection, transportation, and storage of evidence for DNA testing. Function of the Judge and Jury 

and Burden of Proof 

Judge Ronald S. Reinstein, Superior 

Court of Arizona, and Judge B. Michael Dann, Visiting Fellow, National Center for 

State Courts, delivered this presentation 

on the functions of the judge and jury and 

burdens of proof when using experts. The 

judge’s role is to be the gatekeeper and 

decide what jurors can hear. The judge 

also must help qualify the expert and ask 

whether the testimony is reliable. Will the 

testimony assist the jury in understanding 

the evidence and in their deliberations? The jury’s role is to decide whether the 

evidence is credible and reliable and to 

give it weight in the present case. It is still 

unknown, however, whether juries give 

too much weight to expert evidence. Judge Dann noted that evidentiary hearings have to be scheduled well before trial 

to decide whether to admit expert testimony. Many attorneys need far more education and training to be able to use forensic evidence properly and to their 

clients’ advantage. Experts often talk 

“over the heads” of jurors. It may come 

across as if the attorney and the expert 

are having a rehearsed conversation just 

between themselves. Tutorial: “Science 101” 

Barry A.J. Fisher, Director, Scientific 

Services Bureau, Los Angeles County 

Sheriff’s Department, introduced and moderated the session on science. Currently, 

court examiners of facts are concerned 

about reliability of procedures and distinguishing which issues need the help of a forensic expert. Defense counsel often want to know how certain the expert is in 

terms of numbers and probabilities. 

Differing Cultures of Practice: 

Science, Law, and the Judicial 

Gatekeeping Role 

Sophie Gatowski, Assistant Director, 

Research and Development, Permanency 

Planning for Children, National Council 

of Juvenile and Family Court Judges, 

discussed last year’s findings on State 

court judges’ understanding of scientific expert testimony, which were published in 

Law and Human Behavior. 5 A representative sample of 400 State trial court judges 

from various geographical areas and 

bench practices was given a 55-minute 

telephone interview followed by a written 

questionnaire. The survey gathered the 

judges’ views of the value and intent 

of the Daubert case ruling on scientific 

10 
SCIENCE AND THE LAW 

evidence and tested their understanding 

of the scientific concepts of falsifiability, 

error rates, peer review/publication of scientific theory, and general acceptance. The 

survey informed the development of a 

judges’ benchbook on the basic philosophies and methods of science (see 

www.unr.edu/bench). 

Of the judges surveyed, 205 were from 

Daubert States and 195 came from nonDaubert States. About 91 percent believed 

that the gatekeeping role for the trial judge was appropriate. Those judges who objected to the role noted that they lacked sufficient training in science and scientific 

methods to perform the gatekeeping function as articulated by Daubert. The majority 

of the judges surveyed reported that the 

idea of falsifiability was useful in relationship to expert scientific evidence, but 

about 35 percent did not understand the 

idea clearly. Most also said that the concepts of probability and error rates were valuable, but only about 4 percent had a 

clear understanding of these concepts. Peer review and general acceptance in the 

field were well-understood concepts 

among the judges. 

Shirley Dobbin, Assistant Director, Research and Development, Permanency 

Planning for Children Department, National 

Council of Juvenile and Family Court Judges, provided an overview of some of 

the fundamental concepts and processes 

of the scientific method and hypothesis 

testing. To ensure that judges and attorneys are critical consumers of the expert evidence proffered in courtrooms, Dr. 

Dobbin underscored the importance of 

ensuring that they have a working knowledge of scientific methods and principles. The scientific method seeks to organize 

information about the world systematically 

and, in so doing, discovers relationships 

among natural phenomena; scientific 

research endeavors to explain why phenomena occur and how they are related; 

and scientific explanations must be formulated in a way that makes them subject to 

empirical testing. It is important for judges 

and attorneys to recognize that systematic 

observation and testing can be accomplished using a wide variety of methods 

and that the scientific method involves a 

wide array of approaches and is better 

seen as an overall perspective rather than 

a single, specific method. Scientific 

research projects typically involve either 

quantitative or qualitative research 

designs. 

Quantitative research is an inquiry into an 

identified problem, based on testing a 

theory, measured with numbers, and analyzed using statistical techniques. The goal 

of quantitative methods is to determine 

whether the predictive generalizations of 

a theory hold true. Quantitative methods 

usually involve either experimental or 

quasi-experimental research designs. 

Experimental designs are characterized by 

random assignment of subjects to experimental conditions and the use of experimental controls. Quasi-experimental 

studies share almost all the features of experimental designs except that they 

involve nonrandomized assignment of subjects to experimental conditions and the 

researcher has less control over the 

research environment. With quantitative methods, the experimenter frames the research question in a 

clear description of the target population 

and a logical connection to the experimen­ tal questions, testing the “null hypothesis” 

(no casual relationship between the studied elements). Subsample selections must 

be properly representative, and controls 

have to match the sample as closely as 

possible. Quantitative studies are subject 

to both type I errors (the null hypothesis is 

rejected although it is actually true; the 

researcher claims that there is a causal 

relationship between variable A and variable B when, in fact, there is not) and type 

II errors (the experimenter fails to reject 

11 
SPECIAL REPORT / MAY 04 

the null hypothesis; the researcher claims 

that there is no causal relationship when, 

in fact, there is one). Both kinds of error 

have calculated confidence intervals that 

indicate the certainty of the conclusion. 

Attempts to decrease one type of error 

result in an increased likelihood of making 

the other type of error. 

Qualitative research is grounded in a philosophical tradition that is broadly interpretivist; the focus is on how the social world 

is interpreted, understood, experienced, or 

produced. It is based on methods of data 

generation and collection that are flexible 

and sensitive to the social context within 

which the data are produced and on methods of analysis and explanation building 

that involve understandings of complexity, 

detail, and context. 

Separating Science From “Junk 

Science”—Call for Empiricism 

and Rational Explanation 

Bert Black, Counsel, Diamond McCarthy 

Taylor and Finley, said the so-called scientific method actually refers to a number of 

different concepts and methods. Trial 

judges have been asked to determine the 

reliability of scientific methods used in expert evidence and the validity of conclusions as related to the matter at trial. According to the Kumho Tire decision, 

standards used in expert evidence should 

match those “accepted in the field” and 

possibly would pertain to such technical experts as police as well as scientists.6 

Newtonian scientific thinking began with 

ideas of mechanistic materialism, the “billiard ball” idea of the universe, and events 

that were certain or predictable. Empiricism has dominated scientific thinking 

since that period, as researchers learned 

by observing patterns, collecting data, and 

organizing information. Explanation of 

results, however, has been given less consideration or guidance in this course of 

development. Later, quantum mechanics 

counteracted the idea that “certainty” was 

necessarily available. The theory of relativity then altered the idea that time could be 

held as a constant. 

In recent psychological studies, theory has 

been shown to affect perception (what a 

person thinks will affect what he or she 

perceives). Finally, Mr. Black quoted Karl Popper, who said theories are never 

absolutely proven, only well corroborated 

by attempts at falsification. Science itself 

is only a “constant dialogue between explanation and experiment.” 

Normal scientific discourse would incorporate empirical support, rational explanation, and some fit with other concepts of 

science. However, science works within 

paradigms that change, and any set of 

data can support different theories. Some 

key scientific experiments never used the 

null hypothesis approach, such as Benjamin Franklin’s discovery of electricity or 

Fleming’s discovery of penicillin, which was established by one overwhelmingly 

successful test application of the drug. For lawyers, the “explanation side” of science is important. The famous physicist Wolfgang Pauli, once reviewing a proposed scientific document, said that it 

“wasn’t good enough to be wrong.” This 

kind of pseudoscience is that which 

Daubert means to exclude from court. Testing and falsifiability relate to the quality of empirical support behind a proposed 

idea, and peer review indicates the current 

range of scientific discourse on that topic. 

Error rates are applicable to specific 

techniques used in a process. All of these, 

for the decider of fact, are intended as descriptive and not prescriptive. In day-to-day forensic science activity, error rates for 

specific techniques may be an important 

consideration because the science of DNA 

analysis is not at issue. False positives, 

which could mean wrongful conviction, are 

most highly undesirable. 

12 
SCIENCE AND THE LAW 

Trajectory of Forensic Sciences Victor W. Weedn, M.D., J.D., Director 

of Biotechnology and Health Initiatives, Principal Research Scientist, Carnegie 

Mellon University, described the history 

and direction of the forensic sciences. 

Most convictions are still based on selfconfessions and eyewitness testimony. 

Early forensic science grew out of legal 

medicine. The first recorded forensic 

autopsy was performed in A.D. 1302, 

although there is reference to medicolegal 

autopsies much earlier. Toxicology also found early application, as poisoning was 

a common means of homicide. With the 

Industrial Revolution came the rise of 

police forces and investigation techniques. The first crime laboratories were established in Europe during the middle to late 19th century. Microscopy was a basis for 

much of this “police science.” In the 

United States, the Lindbergh baby kidnaping case gave an impetus to the establishment of the FBI laboratory. However, the 

most significant changes were brought 

about by the Law Enforcement Assistance Administration (LEAA), which provided 

block grant programs to States and local 

jurisdictions during the 1970s. Many crime 

laboratories and university programs were 

established at that time. The second half 

of the 20th century witnessed much of 

the professionalization of the forensic scientific disciplines. Forensic organizations were expanded and others were established, Scientific Working Groups and 

Technical Working Groups were impaneled, standards and guidelines were developed, and certification and accreditation 

programs began. DNA technology was 

introduced and led to increased recognition and funding as well as to broad 

philosophic paradigm shifts within the forensic sciences. Particularly, the use of 

computerized databases has transformed forensic laboratories into investigatory 

tools, identifying suspects without the 

need for conventional police investigation. Progress in the forensic sciences has also 

meant growing intrusiveness of law 

enforcement, invasion of privacy, cynicism 

about the justice system, and ever more 

regulation. Forensic laboratories are 

becoming more independent, but they still 

need a great deal of government support 

to deliver the promised impact against 

crime. 

The Gatekeeper Role: Judicial 

Management of Expert Evidence 

Judge André Davis, U.S. District Court, Baltimore, Maryland, said the revolutions 

occurring in biology and technology have 

made a significant departure from the 

past. Judges today have greatly increased 

adjudicatory responsibilities. Judges must 

remain skeptical of assumptions that scientific advances will, with conscious and 

deliberate shaping, protect values of 

equality and fairness. The privacy implications of technological advances are large, 

and a wide range of protections developed 

after the 1964 civil rights legislation are at 

stake. Many legislative initiatives worked 

against discrimination, but often they were 

not well defined. The scientific support for 

genetic differences among people, a good example, creates a challenge to the protection of their equality and fair treatment 

under the law. A new and foreboding 

responsibility has been thrown on judges 

in reference to specialized and scientific evidence. Judge Davis mentioned the value of courtappointed experts. He said he recently 

received a challenge to fingerprint evidence 

in one of the government’s current cases. 

He told the group that he would be looking 

to AAAS for help. Judges have an independent duty to prepare for their assigned 

roles and are usually eager to do this. 

Constituents, advocates, and especially 

jurors are entitled to expect guidance from 

judges, he said. 

He said he considered that judges had 

two options: seek extrajudicial educational 

13 
SPECIAL REPORT / MAY 04 

opportunities for heightened scientific literacy (“tutoring” in a pertinent area) or 

rely on court-appointed experts. Judge 

Davis said he would like to see both of 

these, especially greater use of courtappointed experts. He views the gate- keeping role as consistent with the fifth 

and seventh amendments to the U.S. 

Constitution. 

In response to an audience question on 

properly defending indigents, Judge Davis 

said judges must do everything they can 

to see that the field is evenly balanced. Juries have to be advised to look for 

“unexamined assumptions” and the reliability of the evidence presented. The judge 

and jurors members are all playing roles to 

discover the truth, he said, and the evidence is supposed to assist us. 

Mr. Fisher noted that use of expert witnesses brings up many new support 

issues. How can funding be developed for 

this “academic component” in trial practice? Crime laboratories are often significantly underfunded. Perhaps nonprofit 

academic research could begin to answer 

fundamental questions on “reliable 

demonstration” and acceptable error 

rates. 

Forensic Fraud: Who’s Taking 

the Fall? Roundtable 

Sheri H. Mecklenburg and Michael P. 

Monahan, both Assistant Corporation 

Counsels, Department of Law, City of 

Chicago, discussed the implications of 

convictions overturned due to DNA exclusions. Their department has been examining cases that were overturned on the 

basis of forensics, preparing a critique of 

the process, and trying to see where 

improvements can be made. 

Biological matter left at a crime scene is 

not necessarily from the perpetrator. 

Errors may occur in the handling and use 

of DNA evidence, eyewitness testimony, 

and other forensic tests. Serology in the 1980s was regarded with great confidence, but later knowledge showed it to 

be very inexact. What changes in the 

future may change legal conclusions 

drawn on the basis of today’s knowledge? Will the original trials be affected? Civil 

lawsuits often follow as the released 

inmate looks for a source of blame for his 

or her imprisonment. 

Law enforcement must give more attention to the collection of evidence. Some 

departments do not even use gloves. In 

some publicized cases, witnesses have 

been coerced or other faulty actions have 

occurred. Under the civil court standard, 

this can appear to be like a vendetta. If 

such a case is overturned, a defendant 

(who may have plea-bargained to a lesser 

offense) may claim to have been coerced 

by law enforcement. The prosecutor and 

crime laboratory could be sued as coconspirators. On the criminal defense side, 

attorneys are often targeted for ineffective 

assistance of counsel when possibly 

newly available scientific tests are per­ formed postconviction. 

Scientists are expected to make no mistakes in this society. They are often 

brought into the litigation by an employer 

or organization with “deep pockets.” To 

establish a claim of forensic fraud, however, there must be “deceitful practice with 

intent to deprive another of a right or valuables.” It is important to establish review 

processes for systemic problems in the 

public arena. Police and other government 

agencies are typically anxious to avoid 

blame. Mr. Fisher said that, from the perspective of a large laboratory operation, 

employees will occasionally do something forgetful or “stupid.” If the act is reprehensible (such as falsifying evidence), they 

have to be dealt with seriously. But the challenge is to find an appropriate forum for less grievous systemic issues. Police, 

prosecutors, and courts have ignored 

14 
SCIENCE AND THE LAW 

some legitimate claims of problems from 

the defense bar. Failure to use a test that 

did not previously exist, however, is quite 

different from failing to perform required 

work. If people use such terms as “unethical conduct” and “fraud” in a cavalier fashion, the perceptions of jurors will be 

tainted. This also may prevent juror and 

judicial trust of professional opinions, productive scientific dissension, and professional relations between laboratories. 

Ms. Mecklenburg said her project wanted 

to look at whether a scientist can be held 

culpable for results that were inconclusive. 

Currently, about 9,000 forensic science 

laboratories are needed to eliminate the 

national forensic evidence backlog. The 

laboratory scientist is not more to blame 

for an erroneous conviction than the prosecutor, but the public considers crime laboratory staff to be scientists. The jury will 

hold them equally responsible whether 

they hold a Ph.D. or a professional technical license. A confidential laboratory 

employee review process with protected 

peer review is needed. During case processing, better communication between 

prosecutor and judge could help, but both 

parties need equal access to the scientist 

witnesses. 

Open Discussion 

Fingerprint and firearms examination are 

not subjects for Ph.D. degrees, noted 

Dr. Fisher. But these are given as expert 

evidence topics and are under rules of evidence. Methodologies for firearms examination, handwriting, or fingerprinting ought 

to be reliable, even though these experts 

are not “traditional scientists.” Dr. Apple 

said that all scientific societies (forensic 

sciences, too) have standards of ethics. If, 

however, no protocol existed to do a certain test, the person missed doing that 

test, and the test would have exonerated 

the defendant, this would be improper use 

of the term “fraud.” 

A participant asked about the scope of the 

problem of forensic fraud. It is incorrect, 

the person noted, to assume that jurors 

consider DNA infallible. In a set of interviews with prospective jurors in King 

County, Washington, only about 1 in 15 

thought that DNA was infallible. 

Professor Risinger commented that there 

could be culpable misconduct if the scientist/technician is swept up in team and role 

planning with investigators and prosecutors. They receive too much “extradomain” knowledge. The situation requires 

adoption of blinding protocols in the laboratories to insulate persons from bias and 

remove incentives for bias. Even careful 

practitioners cannot always “will themselves to resist” non-domain-specific 

knowledge; it has an irresistible effect. 

Another participant agreed that in U.S. 

jurisdictions, the scientists “play too 

closely” with law enforcement. 

15 

Friday, October 5 

Court-Appointed Experts 

and Advisors: Panel 

Margaret A. Berger, Suzanne J. and 

Norman Miles Professor of Law, Brooklyn 

Law School, New York, said this year was 

the centennial of an article of Judge 

Learned Hand from 1901: “Historical and 

Practical Considerations Regarding Expert 

Testimony.”7 In the last decade, expert testimony has taken on a new importance, 

and it would be helpful for courts to eliminate some of the problems in using this 

kind of testimony and make more courtappointed technical advisors available. 

The Federal framework for using courtappointed experts, Rule 706, applies in 

both civil and criminal cases. The court can 

appoint an expert on its own motion, or 

the party showing cause can submit nominations from which the court selects an 

expert. This rule of evidence contemplated 

that court-appointed experts would testify 

at trial, but experts now are used more 

and more to help the court make preliminary decisions about what evidence to 

admit at trial and who should testify. In 

criminal cases, Federal courts often have 

funds for these procedures, but State 

courts may have fiscal problems. State 

courts have interpreted constitutional obligations differently in many situations as to 

when indigents must be provided with 

experts. Rule 706 has been upheld to give 

power to judges to appoint experts to gain 

additional information. Such new situations 

have no procedures spelled out and raise 

many issues. Should parties have access 

to such experts? To what extent may the 

judge communicate directly with the experts? The speakers today offer much 

experience with scientific and technical 

evidence at trial and selection of courtappointed experts. 

Court Experts 

Ronald S. Reinstein, Judge, Superior 

Court of Arizona, told the group about 

three kinds of experts he often appointed. 

One is an expert in “custody evaluation”; 

for example, in family court, each party 

can submit three names and strike one 

from the other side’s list. Second, risk 

assessment experts may be used for violent crimes, such as sexual assault. Third, 

experts may be appointed in scientific 

areas, such as groundwater evaluations for 

an environmental case, computer issues, 

or admissibility of testing methods for evidence involving DNA analysis. 

In 1995 Judge Reinstein was asked to conduct a Frye hearing (admissibility of evidence) for 20 consolidated pending cases 

involving the use of DNA analysis. Both 

sides presented experts on scientific 

issues, population genetics, and laboratory 

testing methods (restriction fragment 

length polymorphism). Two years later, 

attorneys came back with another consolidated hearing for 15 to 20 cases concerning polymerase chain reaction testing for 

DNA analysis. In the hearings, experts 

often said opposing things. When another 

hearing for a DNA testing method was 

considered, Judge Reinstein said he 

17 
SPECIAL REPORT / MAY 04 

thought additional Frye hearings were 

unnecessary and asked the attorneys if 

they would agree to a neutral court expert 

selected from a list the court would put 

together. They agreed to this, and soon 

many judges throughout Arizona were 

adopting Judge Reinstein’s findings concerning DNA testing. Both sides save 

money this way, and there are no accusations of “hired guns.” Judge Reinstein has 

advised counsel to watch carefully for 

case-specific issues, but usually the 

admissibility findings are accepted by 

counsel. All agreed that the results are 

good for circulating information and sharing or questioning positions. 

An existing evidence rule tells the judge to 

obtain permission of the parties before 

speaking to an expert in advance of proceedings. Judge Reinstein recommended changing this canon because for certain types of issues (for example, those requiring computer expertise) the judge will 

have “no clue.” The court needs an oppor­ tunity to speak to the expert or to call an 

adviser, such as a local university professor, concerning basic understandings in 

such cases. This is an example of a weakness in the 

adversarial system; opposite conclusions 

can be reached with the same set of facts. Some concern exists that the jury 

will give too much credibility to the court’s expert when a case goes to trial. However, 

jurors do not need to be advised that the 

court has chosen this expert. A trial is supposed to be a search for truth, and whatever a judge can do to promote this, 

including appointment of experts, is productive and should be considered. 

Being a Court-Appointed Expert 

Rebecca Klemm, President and Technical 

Director, Klemm Analysis Group, Inc., said 

the work of an expert in a large civil case 

is both complicated and exciting. Especially in a Rule 706 situation, no protocols 

exist for how the expert should assist the 

decisionmaker. Dr. Klemm does independent statistical analysis, reviewing reports 

and testimony of opposing experts and 

setting out the data in a manner that 

shows the impact of different scenarios 

(or questions raised). She is usually 

brought into a case by both parties, jointly 

appointed. She worked recently in a large 

employment discrimination case during 

the staging process to help the court 

determine when it should go forward with 

specific issues. As the court-appointed expert, she never spoke directly with attorneys of either side, only with her own work team and the court. Periodically, 

however, all groups met and shared questions. At the end, Dr. Klemm gave an extensive report and presentation and 

accepted questions from both sides about 

her analysis. 

She has reported in medical matters concerning the effects of lost wages, medical 

care, and other impacts. She may take a 

group of expert reports, annotate them, 

and display them in tables showing the 

positive or negative cost impacts suggested in the material. In a major telecommunications case for which she consulted, 

the conflict involved parity of service and 

opening a market for services. She reviewed long reports by diverse experts, 

compared them as to detail in the generated formulas, and explained what cost 

aspects would matter in particular future 

situations. 

Dr. Klemm said her analytical process is 

very open. She feels the public gains from 

this work, and her finished report is in the 

public domain so people can call about it 

and receive clarification. She said key lessons learned in her work as an expert 

adviser include the following: 

■	

Keep in mind that the expert’s role is 

that of adviser, not decisionmaker. 

■	 Remember that even the “very smart 

judge” needs help to determine relevant 

18 
SCIENCE AND THE LAW 

and salient questions, whether a particular “expert” is needed or not. 

■	

Present material in a manner that is 

easy for the decisionmaker and write 

plainly. 

■	 Consider what kind of “domain expertise” is needed, depending on the types 

of questions. 

■	 Provide details of selection procedures, 

show credibility, alleviate biased comments, and use tabular comparisons. 

■	 Show the best aspects of each expert’s work. 

Dr. Klemm described herself as a methodologist or statistician. She plans good ways to make comparisons. Fairness, 

equity, and parity are essentially the same 

topic in different domains. Areas to be 

addressed, independent of the actual 

domain questions, include database 

issues, modeling estimation, and experimental design. In situations where she 

has been jointly appointed, Dr. Klemm 

sets up audits for certain decisions in a 

legal proceeding. She has developed a 

protocol for questions that arise that has 

been used in many cases to avoid a trial. 

Registry of Independent 

Scientific and Technical Advisors: 

A Judicial and ADR Resource 

Corinne Anderson Houpt, Registry 

Director, Private Adjudication Center (PAC), 

Duke University, described the Registry 

of Independent Scientific and Technical Advisors of Duke University and the Private Adjudication Center, a nonprofit 

subsidiary of Duke. Sometimes judges or 

alternative dispute resolution (ADR) practitioners need specific, quick answers to 

technical questions. The registry was 

established about 2 years ago to provide 

a list of well-qualified experts, recruited 

from a variety of fields, who would be 

willing to advise courts. At present, about 

50 technical advisers participate in the 

registry, mostly from the clinical/medical 

fields (genetics, clinical, toxicology) and 

environmental disciplines. The process of recruiting the registrants 

has been worked out using a network of 

deans and department chairs of various 

universities. Good experts are often identified promptly, and PAC has attempted to 

enlist persons who are also good communicators. Registrants adhere to a code of 

conduct designed to ensure public confidence. PAC helps to avoid conflicts of 

interest by checking funding support information and potentially conflicting commitments. They avoid including any 

“adversarial” experts (i.e., those who regularly testify for the same side in court 

proceedings). The experts receive reasonable reimbursement for time spent but 

not a large amount. They undertake this work as a public service for courts, arbitrators, government agencies, or parties who 

agree to an independent opinion. 

Although the project is still somewhat experimental, experts already have been 

referred for eight court cases involving age 

discrimination, environmental science (two 

cases), economic expertise, and criminal 

law (DNA identification) and have worked 

on several facilitations or mediations. All 

communications are channeled through 

the registry; the judge does not speak to 

the expert directly. This gives greater confidence to the lawyers and parties involved. The standard service includes a written 

opinion responding to questions framed by 

the judge. In an environmental cleanup 

case, the community also received help in 

evaluating cleanup options. Depending on 

how the expert is appointed, the expert 

may be deposed or may testify. The registry is a work in progress and intends to 

respond to practical needs of the courts. It 

may also simply provide a “nonadversarial 

read” on a scientific or technical case 

issue. 

19 
SPECIAL REPORT / MAY 04 Federal Courts’ Reluctant 

Embrace of Appointed Experts Joe S. Cecil, Senior Research Associate, Federal Judicial Center, said judges have 

certain real difficulties in using a courtappointed expert in the context of partypresented evidence. In a recent study of 

about 100 Federal judges, more than half 

who had used a court-appointed expert 

said they did it only one time. Most of the 

judges who had not used an expert said 

they would use one if they felt the adversarial process was failing and did not 

have the information to make a reasonable 

decision. 

Timing of the appointment often forms a 

practical stumbling block. The judge may 

not realize until too late that he or she is 

“in trouble” with respect to certain information. On the eve of trial, after the end of 

discovery, the parties are reluctant to pay for an opinion that may hurt their case. The 

problem of finding an appropriate expert 

has improved in recent years, with the 

efforts of Duke University’s Registry and 

the American Association for the Ad­ vancement of Science (AAAS) CASE project. However, another significant problem 

involves ex parte communications by the 

judge. The judge may be strongly inclined 

to discuss certain issues with the expert, 

but the parties may oppose this. The judge 

can, as an alternative, arrange for the parties to sit in and have communication on 

the record. 

In 56 of the 58 cases studied in which the 

court reached a decision on the merits 

after receiving an expert’s opinion, the 

court followed the expert’s advice. This 

proportion gives one pause about the 

power given to such an expert. 

Using a panel of neutral experts (as done 

in the silicone gel breast implant cases) 

can be helpful for very large, complex 

cases, especially when limited research 

has been conducted in the area. In that example, Judge Sam Pointer decided to 

appoint a neutral panel representing 

rheumatology, epidemiology, medical toxicology, and other disciplines. It is hard to 

attract the right people to serve on this 

kind of panel for the court. The professional rewards are limited, and colleagues in 

many fields even look unfavorably at such 

service. A judge who departs from the 

adversarial process must be willing to 

“put up with the storm” that grows from 

the significant public policy considerations. 

Open Discussion Professor Berger noted that the group 

was actually looking at several different 

models of expert advice: tutorial for the 

judge, a responder to parties’ questions, 

and a panel of experts to render a decision. At what point is the expert best 

utilized? How should information be integrated? Should the jury be told that the 

court appointed the expert, or does that 

give too much prominence to the expert’s 

opinion? What works with these difficult 

practical issues? 

Dr. Cecil said the court can require the parties to nominate the expert or the judge 

can make the appointment from the 

bench. The CASE project of AAAS grew 

from discomfort among members of the 

scientific community who were disturbed 

by the negative view of colleagues who 

testified in court. The result was that some 

of the best scientists refused to testify 

because doing so would not further their 

professional goals. Professor Berger 

agreed that many experts are “horrified” by 

the experience of being cross-examined, 

but lawyers know the experts have to be 

prepared for the questions they are likely to 

receive. One participant suggested that 

courts could attract more scholarly help by 

offering research opportunities within the 

judicial system as a kind of “quid pro quo.” 

Dr. Klemm noted that the professional 

communities’ values are changing. 

Scientists have been public speakers 

20 
SCIENCE AND THE LAW 

much less often than lawyers. Cross- examination puts specialized knowledge 

on the line and makes the person see 

what he or she does not know as a scientist. It is valuable, however, for society. 

Law Enforcement Personnel Testifying as Experts: Panel 

Carole E. Chaski, Visiting Fellow, Office 

of Science and Technology, National 

Institute of Justice, introduced and moderated the panel, replacing Professor James 

Fyfe, who was unable to attend. 

Challenges Facing Law 

Enforcement Personnel Testifying 

as Experts 

Carol Henderson, Professor of Law, 

Shepard Broad Law Center, Nova Southeastern University, said that law enforcement professionals are taking the witness 

stand as expert witnesses more and more 

often and they face many challenges. The 

fields in which they are frequently called 

include drug recognition, criminal modus 

operandi, digital evidence, police practices, profiling, and accident procedures. 

Experts (serologists, pathologists, fingerprint experts, forensic dentists, toxicologists, and professionals in other fields) 

have been accused of fraud and negligence and, sometimes, “systematic cor­ ruption,” so investigation of their 

qualifications is becoming increasingly 

thorough. 

It is important for attorneys to research the experts chosen and look at their qualifications, including education, employment, 

publications, awards, and professional 

associations. Although lawyers are increas­ ingly using computer resources and 

Internet case research, only a small percentage of law schools teach courses in 

science and the law. According to a congressional study, more than 500,000 

Americans are employed on the basis of 

fraudulent credentials. For example, some 

“board certifications” are given simply on 

the basis of points for attending meetings.8 Attorneys need to become educated 

regarding the bases on which various 

organizations grant board certification. Transcript summaries posted by WestLaw, 

NetCourt, and Medical Malpractice Expert Witnesses also are invaluable in weeding 

out witnesses with fraudulent credentials. 

Law enforcement witnesses often expect 

the jury to view them positively, but recent 

trends do not necessarily support this 

view. In a survey (Saks) of jurors’ perceptions of trustworthiness, nurses, physicians, chemists, and firearms specialists 

ranked high, and polygraph specialists, 

police, and handwriting experts ranked 

low. Among the younger generation, many 

lack trust toward authority figures and 

react favorably toward competent, automated presentations in court (PowerPoint, 

video). Confidence in crime laboratories 

has been shaken since the Joyce Gilchrist 

scandal; about 84 percent of those surveyed thought that Jeffrey Todd Pierce, 

who was wrongly incarcerated as a result 

of Gilchrist’s forensic testimony, should be 

financially compensated. Judges, too, have become more distrustful 

of experts and have excluded their testimony more frequently. Neither credentials 

nor peer review have alleviated judicial 

concern about bias. Judges’ understanding of current principles in the psychology 

field is mixed. In the Kovera study, 17 

percent of the judges “admitted into evidence” statistically flawed studies.9 The 

trend toward accreditation in the forensic 

field is favorable, but the justice system 

cannot ignore the popular culture and 

mindset. Poor communication techniques, 

lack of visual aids, and unclear language form major obstacles to juror receptivity. Training workshops for technical staff 

serving as expert witnesses are very 

helpful. Improved communication skills 

21 
SPECIAL REPORT / MAY 04 

through the use of moot court, speakers 

groups, review of transcripts, and studies 

about communication can help prepare 

for appearances in the court setting. The 

expert should never exceed his or her 

qualification and expertise. Presenters 

need to know how to use the current 

technology, including enhanced photos, 

animation, and virtual reality. These techniques are more likely to attract the attention of today’s jurors. 

Police as Expert Witnesses 

Philip J. Cline, Chief of Detectives, 

Chicago Police Department, told the attendees that police are often called to testify 

in both civil and criminal trials. A police 

officer qualified in gang crime, for example, may testify on the significance of 

words, the evidence of motivation in a 

gang shooting, or the background of one 

gang’s relationship to another. Police also 

testify on estimation of the value of street 

narcotics to indicate the amount of profit 

involved in a criminal transaction. The 

qualifications and experience of the individual police expert must be looked at 

carefully, considering education, years of 

experience in a particular occupational 

area, and specialized training. Chief Cline 

said, for example, that he would not himself qualify as an expert in matters relating 

to traffic because he had only about 10 

traffic cases in his 30 years of policing. 

Police officers have to keep up their professional development, expertise, and 

education; time on the job is no longer 

enough. DNA has been a “double-edged 

sword.” Police want to “put the right people in jail,” but they have to be properly 

prepared for new kinds of investigation. 

Quite a few recent cases have been 

seriously unfavorable to police credibility, 

such as the “Chicago 7” officers who 

were convicted of operating a drug ring. 

Chief Cline said efforts to use new technology on the street, videotaping over a 

6-month period to show citizens how the 

police were working, began to swing public opinion back in favor of the Chicago 

police. 

Law Enforcement Personnel as 

Experts 

Bruce M. Lyons, attorney, Lyons and 

Sanders, Fort Lauderdale, Florida, said the 

use of experts has been important to 

defense attorneys and has strongly affected decisions in court. The impartiality of a 

paid expert is always a concern. His law 

practice has benefited from meetings on 

new technologies and calls made to pathologists and experts such as Professor 

Imwinkelreid or Professor Henderson, who 

were willing to engage in dialogue. In postcase analyses, 70 percent of judges and 

lawyers found scientific evidence more 

credible and scientific experts more persuasive than in the past. The expert’s role 

has to include helping the court to understand the evidence and how it is being 

applied. Testifying as an expert, a law 

enforcement officer who says that one 

ounce of cocaine is more than “for personal use only” may have a devastating effect 

on the defense. Defense counsel will have 

to look into other statements of the officer 

to check consistency. 

Police experts are frequently used to fill 

in possible explanations for missing evidence (e.g., to explain why no fingerprints 

were found on a large quantity of marijuana 

brought into the courtroom as evidence). 

The judge and jury may need to be educated about the evidence. An “old fashioned” 

judge might be prepared to admit objectionable handwriting evidence just 

because he “usually does.” Some police 

witnesses are admitted to testify as lay witnesses, but the jury still treats them as 

experts. This is especially true with relationship to fingerprints, handwriting, modus 

operandi/criminal profiles, crime scene 

reconstruction, and narcotics values. 

22 
SCIENCE AND THE LAW 

Police need to be careful now about this 

kind of expert testimony. In the past, 

police have often described general practices of criminals in court, such as how a 

drug courier drives on the highway, following trucks slowly, etc. Such profiles are 

sometimes no longer admitted. Police 

often give evidence on street slang, but 

this can also be tricky and is sometimes 

rejected on appeal. The court can also use 

jury instruction to point out to jurors that 

some claims are technical rather than scientific and to try to limit the impact of the 

witness’s testimony on the jury. 

Eyewitness Evidence: Panel 

Moderator Sandra I. Rothenberg, Judge, 

Colorado Court of Appeals, noted that she 

had been one of the State trial judges tested during the survey referred to earlier in 

the conference. She said, “Let us not 

compound errors by punishing innocent 

people.” Eyewitness testimony will always 

be important evidence, and new techniques for memory, using cognitive psy­ chology, can improve eyewitness 

identification. She asked everyone to think 

about how eyewitness evidence affected 

the work of the justice system and courts. 

Getting the Lawyers to Listen 

James M. Doyle, Attorney, Carney and Bassil, Boston, Massachusetts, said eyewitness evidence is the oldest form of evidence, and it has been an old battle to get 

social sciences into the court. He referred 

to a 15-year-old reference book, Eyewitness Testimony, Civil and Criminal, which is still 

not often read.10 Hugo Munsterberg studied applied psychology and challenged the 

idea that humans are equipped with permanent memory faculty (contradicting the 

idea that a person might forget but would 

not remember the wrong person). A 

response in the Illinois Law Review examined 149 articles on eyewitness psychology.11 It accused Munsterberg’s approach of 

“libeling the legal profession” and casting 

all questions of science as “only for the expert.” The discussion highlighted the 

differences in the types of knowledge 

sought by lawyers in contrast to psychologists. The scientist’s focus of interest is 

the probability that the result is correct 

(e.g., will it be correct 8 out of 10 times?). The lawyer, however, wants to know 

whether this specific case is “one of the 

eight” (most frequently occurring) or “one 

of the two?” In other words, the different 

professions are looking for a different 

kind of “reliability,” one statistical and one 

diagnostic. 

Scientific evidence is more probabilistic 

than diagnostic, dealing with what is “normal.” Testimony about what is normal 

“destabilizes” a great deal of existing case 

law. In one year, about 75,000 cases turn 

on eyewitness testimony. After DNA evidence became available, it was found that 

82 percent of wrongful convictions were 

based on eyewitness testimony. For 

judges, the “only for the expert” way of 

thinking is too debilitating. They become 

preoccupied with the jurors’ confidence 

levels and concerned that they will be 

overwhelmed by the material. It would be 

more useful to develop the confidence levels of the judge and attorneys, who often 

know as little as the jury members. The 

NIJ guidelines on eyewitness testimony 

bring forward preventive measures that 

can be taken. The key insight is that diagnostic work (not probabilistic) will have to 

be done in the courtroom. Memory evidence is trace evidence that may be subject to contamination. When or how evidence might have been contaminated 

must be considered. 

Improving Juror Decisionmaking 

With Scientific Research on 

Eyewitness Memory 

Ronald P. Fisher, Professor, Department 

of Psychology, Florida International 

University, said that police receive little 

23 
SPECIAL REPORT / MAY 04 

training in collecting eyewitness evidence. 

Often, they simply have a list of “facts” 

that they try to elicit, but the necessary 

skills for effectively interviewing witnesses are difficult to acquire. 

A typical law enforcement interviewer 

often interrupts the witness and takes a 

very active role rather than allowing the 

person to volunteer information. This does 

little to facilitate the witness’s memory. Leading questions may actually distort 

memory considerably. The device called 

the cognitive interview (developed in journalism and other fields) recognizes the 

social interaction between the interviewer 

and witness and is based on psychological factors (memory, social dynamics, communication). “Cognition” implies an effort 

to recreate the original context by asking 

the witness evocative questions. At any 

point in time, some facts may be more 

accessible to the witness than others (at 

least temporarily). The interviewer should not cause the witness to use mental resources for “something else” (side topics). Social dynamics 

most usefully follow the pattern that the 

witness is “knowledgeable” and the interviewer is “curious.” Witnesses may expect the interviewing officer to “act the 

star” and do most of the talking (they 

should be disabused of this idea). Police 

departments have noted that some personnel are more effective interviewers 

naturally, and departments can test to see 

which recruits are well suited for this. 

In a laboratory study of the cognitive interview, it was found that 30 to 70 percent 

more information can be collected using 

this technique. Accuracy, however, is only 

slightly higher (85 percent compared with 

82 percent). In one study, trained high 

school students using the cognitive interview technique collected almost 100 percent more information than police with 

15 years of experience. Metastudies are 

being conducted in England, Canada, and 

Germany. The United Kingdom trains all 

police officers in the cognitive interview 

technique. Additional benefits of this kind 

of interviewing include better retention of 

(more satisfied) witnesses, increased con­ fessions, and greater closure of cases. 

Eyewitness Identification: 

Scientific Research and 

Application 

Gary L. Wells, Distinguished Professor, 

Department of Psychology, Iowa State 

University, spoke about the collection of 

eyewitness evidence before it gets to 

court. After reviewing DNA-related exonerations, he started studying a scientific 

method for approaching eyewitnesses, 

using a trace evidence metaphor. He said 

the most pressing need in this area is for 

greater use of blind testing in law enforcement (police department lineups, etc.). 

More than 80 percent of initial identifications come from photographs (which 

could be out of date), and wrong identifications can be made. 

Dr. Wells recommended focusing on system variables, the elements most easily 

controlled, to increase accuracy. The perpetrator has left an image behind in the 

brain of one or more eyewitnesses. How 

this evidence is handled matters because, 

once it is contaminated, it is no longer 

trustworthy. A natural tendency exists to 

make relative judgments and “shift the choice to the closest next best” rather 

than to make no choice at all. For this reason, it is important to have no more than 

one suspect in any lineup and to select 

fillers who fit the description closely but 

are known innocents. Observations of the 

relative judgment problem led to the 

development of sequential procedures 

for identifying suspects. This procedure 

makes the witness “dig deeper” into 

memory and reduces the rate of mistaken 

identification. 

24 
SCIENCE AND THE LAW 

Blind testing is the most important principle to implement. The law enforcement 

tester must not know who the suspect is 

(or he/she may inadvertently communicate 

this to the witness). Strong verbal and 

nonverbal influences may affect the viewer 

through the lineup administrator. It is 

an interactive situation (e.g., the administrator might hint, “Be sure to look at 

everyone . . .” or “Did you pause at number 3?”). Body language displaying interest in a particular person in the lineup will 

also “give clues” to the witnesses. 

Changes are emerging in some jurisdictions. New Jersey has fully adopted the 

NIJ guide, including blind testing and 

sequential procedures. New York is exploring the use of the guide, as are Iowa, New 

Mexico, and Hawaii. 

Science and Eyewitness 

Evidence, Challenge for 

Law Enforcement 

Mark Larson, Chief Criminal Deputy, 

Criminal Division, Office of the Prosecuting Attorney, Seattle, Washington, said he 

had participated in a lot of multidisciplinary work with police officers. Police are the 

“forensic specialists” for eyewitness evidence, but they do not perceive work with 

eyewitnesses as a science. Too often, 

they are simply taught to follow a protocol 

and fill out forms. An opportunity exists 

here to apply scientific theory and principles to the highly dynamic fact patterns faced in the field. Mr. Larson said he 

hoped departments were working with 

the NIJ guide in their training protocols 

and practice. Legislative or political mandates (as in New Jersey) could bring 

about more careful handling of eyewitness 

testimony. 

Mr. Larson said he would like to encourage collaboration between law enforcement and social science to bring different 

professional communities closer together. The National Center for Eyewitness 

Evidence is a good example of what can 

be done to aid training, guide research, 

inform police, and improve work against 

crime. 

Open Discussion 

One participant asked whether other protocols for trace evidence could be applied 

to eyewitness evidence. Although nothing 

is wrong with using guidebooks, Mr. 

Larson noted, law enforcement has to use 

its judgment concerning situations in the 

field. Another attendee said State law in 

California does have qualifiers or prerequisite conditions for conducting one-on-one 

questioning. 

Dr. Wells responded to a question on controlling for cross-racial identifications or 

ethnic group variability. Research shows 

consistently that cross-racial identification 

is more difficult than identification within 

race; this is true between any variation of 

racial group and is not really a system factor. A useful system intervention might be 

to use additional fillers in a lineup and to 

be careful to use known innocents. 

Another person asked whether officers 

using the NIJ guide, in New Jersey for example, would continue to show photographs in the sequential methods after a 

person had been selected. Dr. Wells said 

photographs can be shown both ways, but 

he considered it to be better to set the 

procedure in advance rather than to stop 

when the person picks someone. Innocent 

“fillers” should resemble the perpetrator 

and the suspect but not be “clones.” Judge Rothenburg asked the panel 

whether it was good for judges to instruct 

the jury about dating of photos and similar 

areas of caution. She knew of one situation in Los Angeles in which jail inmates 

had simply been allowed to pick the lineup 

fillers. Dr. Fisher noted that, in mock jury 

cases, better results occurred when eyewitness guidelines were described for the 

jurors in advance. 

25 
SPECIAL REPORT / MAY 04 

Call-for-Papers Presentations 

Medical Records as Legal 

Evidence of Domestic Violence 

V. Pualani Enos, Assistant Clinical Professor, Domestic Violence Institute, 

School of Law, Northeastern University, 

said she realized how necessary factual 

medical documentation was for legal evidence in abuse proceedings when she 

noticed that professionals of all disciplines 

could not help wishing to avoid the uncomfortable topic of domestic abuse. Her 

study revealed some important shortcomings of current methods of documenting 

medical charts when they may become 

legal evidence. Dr. Enos found common 

goals among experienced health care 

workers and attorneys who are willing to 

work together to increase understanding 

in abuse cases. 

Change in the medical system’s response 

to domestic violence has been slower 

than the dramatic changes in the justice 

system, particularly in view of legislation 

during the last 5 years. As the consequences to batterers become more severe, 

the standards of proof that domestic violence has occurred are also rising. People 

in the health care setting are the most 

trusted by traumatized victims and are 

most likely to have observations and statements from the victim that cannot be 

located elsewhere. History, mechanism 

of injury, patterns, and consistency of 

statements can often be found in health 

care documentation. Attorneys have great 

difficulty obtaining access to such records. 

Lawyers often finally give up on getting 

this type of evidence admitted in court. 

People consider such evidence to be 

important to criminal cases, but it also 

may be important for immigration, housing, or even special education. 

The goal of the research was to encourage production of more accurate and 

comprehensive medical records to make 

available information relating to diagnosis 

and treatment of domestic abuse that 

might be needed in court. Health care 

providers should understand that a failure 

to document domestic violence completely when treating it will almost always convey a legal advantage to the abuser and 

constitutes poor preventive medicine. Dr. 

Enos studied cases in the context of evidentiary rules, some usually loosely 

applied and others usually strictly applied. 

Study subjects were recruited in the hospital and in court. In the course of 772 visits 

to the hospital, the research reviewed 96 

medical charts of 86 abused women that 

presented evidence of physical, sexual, 

and emotional abuse as well as stalking. 

The records came out of primary care, 

obstetric/gynecological care, and the 

emergency room. In 19 percent of the 

records, the perpetrators were indicated 

by relationship, but they were very seldom 

noted by name. About 20 percent gave 

some kind of psychiatric diagnosis but did 

not mention domestic violence. Nurses 

provided most of the documentation 

found in medical records. 

Health care workers are trained to be 

sparse in their descriptions. In an effort to 

be “neutral” regarding abuse situations, 

medical personnel may use language that 

could hurt the injured person’s legal case. 

If providers just use “patient states” or 

place quotes around a patient’s comments 

in documentation, these could then be 

admitted in court as “excited utterance” 

under evidentiary rules. An excited utterance may be admitted without the victim 

having to testify, if it is explicit about the 

event. As many as one-third of the notes 

from doctors or nurses were illegible, 

making them unusable for the victim’s 

court case. In most cases, the health 

record notes were also too vague. Records 

would be improved by using photographs 

routinely, noting the time and date of an 

injury, and describing the patient’s 

demeanor. 

26 
SCIENCE AND THE LAW 

When a case involves “injury by a stranger,” the record tends to include a lot more 

detail than when a partner is involved. The 

legal and medical professions hold many 

misperceptions of each other’s roles. It 

is particularly undesirable for medical 

providers to use legal-type wording, such 

as “alleges,” “assault,” or “perpetrator.” 

The meaning of this language is very specific in a court context and can raise 

doubts about who created the injury. Most 

providers fear going to court and want to 

reduce any time the health care provider 

staff would have to be on the witness 

stand. 

The project’s effort to access records continued for more than 12 months and 

proved to be very expensive. Many confidential topics, such as HIV or sexual 

assault, were addressed. The study has 

been able to develop training for doctors 

and nurses in better documentation of 

abuse cases and has evaluated the incorporation of medical documentation into litigation. Dr. Enos highly recommended that 

legal organizations and medical records 

departments collaborate in areas of risk 

management. 

Kumho Tire and the “Task at 

Hand” 

D. Michael Risinger, Professor, School of 

Law, Seton Hall University, South Orange, 

New Jersey, said that although Daubert 

was intended to make admissibility of scientific testimony more rigorously controlled, nonscientific evidence has been 

handled in varied ways. Daubert standards 

were too often made into a “mechanical 

checklist,” as courts often failed to grasp 

that under Kumho Tire, reliability of evidence cannot be judged “globally” but 

must be judged specifically as applied in 

each case. In Kumho, the plaintiffs’ vehicle’s tire blew out. They argued that the 

tire was defective because tread separation occurred. It was uncontested that a 

nondefective tire would not separate as a 

result of normal driving, but a certain form 

of tire abuse stemming from long-term 

underinflation was claimed. The tire failure 

analyst, Dennis Carlson, said that any tire 

subject to such abuse would show tread 

wear on the edges of the tire greater than 

in the center of the tire, a groove worn on 

the tire’s bead (rim of wall), discoloration 

on the wall, and marks on the flange itself. 

At issue concerning this evidence was not 

the use of visual inspection, but the reasonableness of using that approach for the 

specific (not general) question before the 

court. There was no general acceptance in 

the community of Carlson’s kind of analysis; acceptance in a Daubert hearing cannot show reliability where the discipline 

itself lacks reliability. Professor Risinger 

supported the use of varying levels of 

“foundational reliability” for expert evidence when criminal guilt (liberty or life) 

was at stake. Proper task-at-hand analysis 

identifies the evidence variable specifically 

(e.g., a specific example of handwriting in 

context). The court is allowed considerable leeway for determining reasonable 

reliability for the task at hand and is not 

required to meet the same threshold in 

every context. 

Mere experience as basis for the reliability 

of an expert witness is sufficient only 

when the person plays a “summarizational” role for the court, such as describing 

an industry based on many years working 

in that field. Professor Risinger said 

dependability of evidence might be a better phrase than reliability, which has not 

been clearly defined in Supreme Court 

cases. He referred to a judge’s rejection 

of handwriting “expert” testimony in a 

recent questioned-document case as a 

good example of “case in hand” analysis. 

According to Professor Risinger, a judge 

excluded technical handwriting testimony 

when the context of writing styles 

involved printed (not cursive) script and 

originally non-English-speaking individuals.12 When reliability does not depend 

27 
SPECIAL REPORT / MAY 04 

on the expert’s experience, it would be 

irrational to use that experience as a basis for admitting evidence. 

Recent Defense Challenges to 

Forensic DNA Evidence 

William C. Thompson, Professor, 

Department of Criminology, Law, and 

Society, University of California, Irvine, 

told participants that he had reviewed a 

number of defense challenges to DNA 

casework in recent years. In some cases, 

ambiguities, limitations, or problems were 

not disclosed in laboratory reports, and 

many difficulties were related to poor scientific practices in the forensic laboratory. 

In particular, the failure to use blind procedures sometimes cast doubt on interpre­ tation of forensic laboratory results. 

Scientists interpreting the tests are often 

involved in the case investigation. In addition, the technician’s laboratory notes may 

reveal partiality for or against a suspect 

(e.g., “. . . want to connect this guy to 

the scene” or “keeps skating . . . never 

serves time”). From psychological studies, 

he said, we know that people with strong expectations as they approach ambiguous 

data will tend to disregard interpretations 

that differ from the one they expect. 

Expectations may lead them to resolve 

ambiguous data in a manner consistent 

with those expectations or miss or disregard evidence of problems and alternative 

interpretations for data. 

Most attacks on DNA evidence claim that 

the evidence was compromised by handling/processing errors, inadvertent trans­ fer of DNA, biased interpretation of 

results, or exaggerated (or misleading) statistics. Even the newer technologies can 

be ambiguous in some cases. Moreover, 

although a person’s DNA is found at a 

crime scene, it may be unclear how it got 

there. Inadvertent transfer of DNA from 

an individual to an object or another person is possible and occurs more easily 

than previously thought. C. Ladd and 

colleagues have investigated the potential for and effects of DNA transference.13 

Even a minor contact, such as a towel 

touching a face, can transfer DNA in measurable amounts. Quantities as small as 15 

cells can be detected in tests. 

Statistical interpretations have often been 

biased against the accused, overstating 

the likelihood of a match, especially when 

the evidence is a mixture of different 

DNAs. Technicians are often willing to 

declare two profiles a “match” even when 

they do not match perfectly. Thompson 

presented examples from actual casework 

in which technicians had declared a match 

despite differences between the DNA profiles of the evidentiary sample and the 

defendant. The differences were attributed 

to a variety of phenomena, such as degradation, artifacts, and allelic dropout. Because the standards for declaring a 

match are vague and flexible, it is difficult 

to estimate the true likelihood that a laboratory will declare a match between profiles of different people. 

Sample-handling errors have also 

occurred. In one rape case in Philadelphia, 

the laboratory mixed up the reference 

samples of the victim and defendant. The 

laboratory reported that the defendant’s 

DNA profile was found in a vaginal swab. The defense investigation revealed that 

the vaginal DNA was actually that of the 

victim herself. False positives are particularly worrisome in “DNA dragnet” and 

“cold hit” cases where there is little reason (a priori) to expect a particular suspect 

to match. Statistical analysis shows that 

even a relatively low false-positive rate 

may significantly undermine the value of 

DNA evidence in such cases. And defendants in these cases face due process 

problems. Informing the jury of a “cold 

hit” in an offender database may bring up 

inadmissible prior crime evidence. Not 

informing them about it may cause the 

jury to overestimate the strength of the 

case. 

28 
Saturday, October 6 

Digital Evidence—Virtual 

Reality in the Real-World 

Courtroom: Mock Trial 

Introduction 

Susan M. Ballou, Program Manager, 

Office of Law Enforcement Standards, 

National Institute of Standards and 

Technology (NIST), explained that this session was a mock trial14 involving electronic 

evidence and crime scene investigation 

relating to computers. She noted that this 

was a “production” and not a real trial, 

intended as a demonstration of important 

factors in using computers and computer 

evidence in the justice system, a necessity that appears more and more often. Ms. 

Ballou introduced the “cast” of the production, consisting of judge, prosecutor, 

defense counsel, law enforcement investigator, State crime laboratory’s criminalist, 

and defense expert witness. The staged 

case was based on an actual murder case 

that involved computer evidence, with 

names and details changed for privacy. 

Trial Preparation [In Role] 

The judge [played by Judge Judith Ford, 

Alameda County Superior Court, Oakland, 

California] called the hearing into session 

and told the prosecution witness to take 

the stand. The prosecutor [played by 

Richard Murray, Assistant U.S. Attorney, 

Western District of Michigan] introduced 

the law enforcement investigating officer 

in charge of computer evidence recovery. 

The law enforcement investigator [played 

by Terry D. Willis, Officer-in-Charge, 

Computer Crime Unit, Los Angeles Police 

Department] said he had been called to 

assist police officers at the scene of a 

murder in which a computer, with the 

power on, was found beside the victim. 

The victim died from a knife wound in his 

apartment, which was located over a bar. 

The bar manager had found the body at 

2:30 a.m. The investigator said he contacted the State crime lab’s criminalist to 

examine the computer for clues relating to 

the murder. 

The victim (“Davidson”) was found to have 

a dialup Internet account, the type that 

uses a dynamic protocol account (which 

changes the computer identifier—server 

of the Internet service provider (ISP)—for 

each session). The victim’s computer had 

the Internet relay chat (IRC) software 

called MIRC, a popular communication 

protocol that links users on chat channels, 

similar to AOL’s Instant Messenger. Users 

can create their own chatrooms, and many 

universities allow this communication 

forum. The prosecutor’s questions made 

clear that no single person or company is 

in charge of this kind of Internet service; a 

chatroom participant could be an expatriate, a foreign citizen, or a member of an 

occupational association using the chatroom for low-cost communication. 

Using a warrant issued for the ISP, the 

State criminalist traced the IP address to 

another provider using a communication 

from “Hot4U” that was on the crime 

scene computer. The second computer 

had a cable modem account belonging to 

29 
SPECIAL REPORT / MAY 04 

the suspect, Mr. Doakes. This type of 

account is usually hard-cabled to a particular house, often using a television. The 

investigation located correspondence on 

Doakes’ computer and unopened e-mail 

that indicated Doakes had purchased a 

knife. The prosecution’s questions brought out 

that suspect Doakes had used an alias in 

the chatroom (“SeekingLuv”) and was 

having difficulties with his marriage. 

Chatroom logs had been found on victim 

Davidson’s computer indicating conversations between victim’s alias “Dawn” and 

“SeekingLuv.” Role-playing is a common chatroom activity, sometimes using sexually explicit language. Participants can create many names, share images, and 

purport to be separate individuals. The prosecutor asked the investigator 

about a theory of motive appearing through 

the chatroom logs. The investigator said 

the victim was suspected of using a female 

alias (“Dawn”) to entice the suspect 

(“SeekingLuv”) into sexually explicit con­ versation. Using another alias (“Capt. 

Dread”), the victim then threatened to 

show the logged conversation to Doakes’ 

wife and employer unless he was paid 

$5,000. Prosecution considered that suspect Doakes later used the “Hot4U” alias 

with “Capt.Dread” (the blackmail message sender) to locate the victim and 

murder him. The prosecution introduced several questions about the first responder at the murder scene. The officer first on the scene 

had looked at files on the victim’s computer, although he had not been trained in 

computer evidence handling. He was 

unsure whether he had “done something” 

on the crime scene computer before the 

arrival of Mr. Willis, the investigator specializing in computer recovery. The investigator told the prosecution he had pulled 

the power cord from the back of the computer when he arrived at the crime scene, 

rather than executing the standard shutdown procedure, which usually writes 

over certain current files and might 

obscure what was on the computer at that 

particular time. Law enforcement analyzed 

a specially created duplicate of the computer’s hard drive, using CaseView soft­ ware, to maintain integrity of the original evidence object. After gaining access to 

the suspect’s computer, the investigation found some material from a newsletter he 

published, evidence of a recent knife pur­ chase, and text fragments from deleted 

files concerning a plan to stop a blackmail. 

When the prosecution finished with the 

witness, the judge asked defense counsel 

[played by Robert S. Vance and Anthony Joseph, Johnston Barton Proctor and 

Powell, LLP, Birmingham, Alabama] if 

they wished to ask questions. Defense 

counsel stood to make a motion to suppress evidence. 

Mr. Vance said that information was 

obtained from suspect Doakes’ computer 

in violation of the Cable Act and the Privacy Protection Act. The suspect’s ISP 

should have been barred from disclosing 

personally identifiable information on subscribers; and defendant Doakes, as a 

newsletter publisher, had been denied an 

opportunity to contest the search warrant 

that gave government attorneys information from his computer (as the Cable Act would allow). He said the government would have been unaware of the knife pur­ chase had it not improperly taken and read 

the suspect’s unopened e-mail. Law 

enforcement had shown no clear search 

strategy, nor had they disclosed information to the magistrate about the items for 

which they were searching. Text fragments 

from Doakes’ computer and the map found on that computer were obtained illegally. The prosecution failed to provide 

clear and convincing information that subject had engaged in any criminal activity or 

that the computer evidence was material 

to this case. Mr. Vance added that there 

30 
SCIENCE AND THE LAW 

was no clear evidence that his client, Mr. 

Doakes, was involved with the murder, as 

12 or 14 other chat partners could also 

have been suspected. The prosecutor, Mr. Murray, conceded the facts as accurate but said that Congress 

had amended the Cable Act in 1992 to 

allow an exception when the government 

seeks digital evidence by court order in a 

criminal proceeding. He said the government considered evidence of the blackmail 

to be a convincing motive for the murder. Judge Ford clarified that the suppression 

of material on the computer was sought 

because of commingling of publishing 

products of the defendant. After listening 

to both arguments, Judge Ford denied the 

motion to suppress. She pointed out the 

amendment to the Cable Act and said the 

requirement to notify the Internet customer did not apply in a criminal investigation. She said the court saw the tension 

between the different statutes, but suppression of all evidence would be too drastic a measure; suppression of particular 

protected material could be accepted by 

the court. 

Open Discussion [Out of Role] The participants and audience considered 

whether digital evidence should be treated 

the same as physical evidence. The investigation considers these to be similar, 

especially in the absence of actual witnesses. Mr. Murray said the environment 

of computer evidence is changing so fast 

that some statutes are not in sync. Admission of evidence may be the centerpiece of a case. Excluding digital evidence, 

similar to discrediting physical evidence, would be a major step. Mr. Willis said he 

considered pulling the power cord of a Windows computer as an attempt to 

preserve physical evidence, something 

left in memory at a particular time. The question of commingling publishing work product with other types of electronic 

communication relates to a developing 

area of privacy law. Almost any person 

who puts up a Web page, said Mr. Murray, 

currently may be considered a “publisher.” 

In addition, many States, including New York, have not ruled about cable-provided 

services, but the Privacy Act repealed the 

requirement that subscribers be given 

notice of a warrant when a criminal investigation is involved. Judge Davis added that evidence issues will often be decided by 

magistrate judges, who handle court 

orders for evidence and search warrants. 

Mr. Vance reviewed recent developments 

in expert evidence rules in response to a 

question on applying changes within dif­ ferent State settings. In Frye, criminal 

defense had tried to introduce expert evidence regarding a crude polygraph procedure. The court, agreeing to exclude this, 

said that it had not “received general 

acceptance in the relevant scientific community.” Following that, the Daubert decision, relating to a claim that a prescription 

drug caused birth defects, held that the 

plaintiff had no scientific medical evidence 

that proved a causal link to the damages. The Supreme Court later said that Frye was too restrictive and formulated a standard that the expert evidence should be 

“sufficiently relevant and reliable to warrant admission.” This has emphasized the 

role of district courts as gatekeepers for expert evidence, an effort to prevent 

“pseudoscience” from influencing juries. 

Expert witness evidence has become 

increasingly important in both the Federal 

and State judicial systems, Mr. Vance continued. In recent years, the laws have changed again in relation to how courts 

must handle admissibility. The distinction 

between admissibility in State and Federal 

courts is based primarily on procedural 

aspects. State courts tend to be more 

“loose” about admitting evidence, but the Federal district courts repeatedly have 

been charged to be gatekeepers and to 

scrutinize evidence carefully. Concern 

31 
SPECIAL REPORT / MAY 04 

about proper methodology has been great 

since the case in which an Oklahoma prisoner (Jeffrey Todd Pierce) was released following a wrongful rape conviction. That 

State subsequently opened investigations 

into numerous cases involving testimony 

of the same crime laboratory chemist 

(Joyce Gilchrist). The judge must determine whether the expert evidence will assist the “trier of fact.” Factors to consider include the following: Can the evidence methodology be 

tested? Has it received peer review? Is 

there a known or potential rate of error? The focus is not on the conclusions of the expert but on the methodology used to 

arrive at the conclusions in evidence. The 

Supreme Court has also reaffirmed an 

“abuse of discretion” standard in relation 

to lower court decisions (that is, the higher 

court should not use a “more stringent 

standard of review”). Mr. Vance noted, 

however, that methodology and conclusions are not always easy to separate. 

A third consideration for expert witness evidence emerged through the Kumho 

Tire case. This concerned whether evidence coming from technical but nonscientific witnesses (e.g., an engineer or law 

enforcement officer) also came under 

Daubert. Witnesses giving technical evidence that relies on experience must be 

able to explain how conclusions are 

reached, why there is a basis for them, 

and how reliably they can be applied to 

the facts of the particular case. Mr. Vance 

said there is still considerable judicial 

uncertainty about interpreting recent Federal rules amendments applying to expert testimony. The newest advisory 

committee comments seem to introduce yet another change, in that they appear to 

impose a degree of quantitative inquiry, 

whether there are sufficient facts or data. 

One participant asked for advice about 

using PowerPoint and similar technologies 

in court. Judge Ford said PowerPoint 

presentations must be shown to opposing 

counsel and the court ahead of time as 

demonstrative evidence (similar to a chart) 

and should be consistent with foundations 

that have been laid. Judge Davis said his 

courtroom encourages these presentation 

technologies, and the systems department in Baltimore will tutor any lawyer 

who requests it. These presentations save 

time and the jurors like them very much. Judge Ford told participants that various 

materials prepared for the mock trial (written motions, search warrants, etc.) could 

be viewed on NIJ’s Web site. 

Case Presentation at Trial 

[In Role] The prosecutor, Mr. Murray, called the 

State crime laboratory criminalist [played 

by Doug Elrick, Criminalist, Crime 

Laboratory, Iowa Division of Criminal 

Investigation] to the witness stand. [Aside: Mr. Murray noted that the strategy for this case would rest very much on precision of discussion and interpretation of Federal rules. In law enforcement, there 

is currently no consensus and little cohesion on the idea that an agent must be an expert just to testify about computer evidence. Standards are localized and greatly varied. He recommended careful use of 

etiquette between opposing counsel (giving notice of expert or technical witnesses). If the government offers a witness 

with specialized knowledge, it should flesh 

out the basis of that specialized knowledge for the jury’s and court’s understanding. He said a trial that is lost before a jury 

may never get to appeal.] The prosecutor asked Mr. Elrick about his 

background in forensics. Witness Elrick 

said he had worked in computer evidence 

recovery for 12 years. Previously, he was 

a drug chemist in the crime laboratory. He 

had received specialized international training in computer recovery and completed a 

certification course. Mr. Elrick belongs to 

32 
SCIENCE AND THE LAW 

the International Association of Computer 

Information Specialists and has examined 

more than 1,000 computers in criminal 

investigations. 

Mr. Murray asked witness Elrick to explain 

what had been done with the computers 

in the present murder case. The witness 

said an inventory of the system was prepared, showing what components were 

installed (sound card, network card, etc.) 

and what software was found on the system. The hard drive was removed and put 

on a forensic computer to make an exact 

duplicate, which would be used for further 

analysis while preserving the integrity of 

original evidence. CaseView software was 

used to make this accurate representation 

of the hard drive and to view fragments found on the drive. The prosecutor asked Mr. Elrick if CaseView was a commercially available soft­ ware program (yes), and whether Mr. 

Elrick had received training in that soft­ ware (yes). Mr. Elrick said that he had personally been involved in the testing of the 

CaseView software. The law enforcement 

community had tested the software extensively, and it was reviewed by Computer 

Security magazine, which verified its functionality. No statistical analyses of the 

tests, however, were available. Mr. Elrick 

told the prosecutor that the software 

company had coded and upgraded the 

software on occasion to meet law enforcement requests as it was developed. 

Concerning interactions with operating 

systems, CaseView was not able to reveal 

source code for Microsoft operating systems and may experience difficulty finding 

out how file systems are laid out in that 

kind of system. Mr. Elrick said the field of 

computer forensics is trying to keep pace 

with changes in operating systems, including Linux and Unix. 

CaseView, said Mr. Elrick, makes a snapshot of the original hard drive and develops a proprietary file for examining copied 

contents of the disk. The software uses a 

mathematical formula known as MD5HASH 

to represent all data found on a specific 

drive. If any data are altered later, the 

mathematical process arrives at a different formula, revealing that something changed. 

MD5HASH is a validation measure also 

widely accepted outside law enforcement. 

Using the CaseView program on the victim’s (Davidson’s) computer, Mr. Elrick found MIRC software (for chatrooms) and 

said the chat logs were prepared automatically when the MIRC program was run. 

Mr. Murray asked a few questions about 

the nature of Internet Relay Chat (IRC) and 

the MIRC program. Individuals connect 

through the Internet through their respective ISPs, and each must have the client 

software on his or her PC. People often choose aliases and may change their name for different chatrooms. ISPs keep minimal 

records of names, checking only that they 

are unique as session identifiers. Mr. Elrick found a primary alias on the victim’s computer, “Dawn,” and a secondary alias, 

“Capt.Dread.” The chat logs are audit functions that can be toggled on or off. Logs 

can be created for chat events associated 

with a specific “named” participant, and 

the computer’s date/time function labels 

each new entry, which is then automatically appended to the named log. Mr. Elrick 

said that the victim’s computer had more 

than 100 log files, while the suspect’s 

(Doakes’) computer had no logs and the 

logging feature for the chat software was 

turned off. For the jury, Mr. Elrick briefly described the 

layout of a hard drive, with multiple platters made of concentric circles called 

tracks. These are broken into pie-shaped 

sectors, so each track will have “sector 1,” 

“sector 2,” and so forth. Writing a file to 

disk must be done in clusters; three or four clusters usually make up a page. 

Doakes’ computer used the Windows 95 

operating system, in which eight sectors 

per cluster would be recorded. Unused 

33 
SPECIAL REPORT / MAY 04 

parts of a sector will contain remnants of 

the previous content in that sector. When 

a file is deleted, the first character of the 

name is changed so it cannot be displayed, and the File Allocation Table is told 

the space is available for new material. 

But the older material is not actually gone 

and may be recovered with tools like 

CaseView software. The user cannot control these “remains” left in the unallocated 

disk space. Mr. Elrick said it was similar to 

“throwing away the card catalog but leaving the books on the shelf.” Mr. Elrick said 

he had found a number of logs on the victim’s computer but could not say whether 

all online conversations had been reported 

in the logs. 

Defense counsel, Mr. Vance, rose and 

asked for more details on the background 

of the State crime laboratory witness. 

Before his work for the police department, 

Mr. Elrick had not done any computer data 

recovery. His expertise was as an end 

user, originally with gaming software, 

rather than as a writer of code. Although 

he participated in the software’s testing, 

he had not been involved in the development of CaseView. Mr. Elrick did not have 

any specific information about the analysis 

of CaseView by Computer Security magazine. He believed they tested the imaging, 

copying of drives, and search features but 

admitted his knowledge came only from 

the magazine article. 

Mr. Vance asked him whether, in his experience, software programs often had 

“bugs” or errors in code that would not 

allow the program to work correctly. Mr. 

Elrick agreed that most programs went 

through a process in which newer versions 

corrected earlier problems with the program. Newer versions and upgrades of 

CaseView had been used prior to this trial, 

but Mr. Elrick said that no independent 

testing had been conducted on new 

versions of the software (which would 

have been very expensive). Mr. Elrick had 

no knowledge of independent testing by 

disinterested parties, nor did he know of 

organizations that would do such testing 

to promulgate standards for the software. The defense counsel asked when 

MD5HASH was performed, the mathematical verification for the hard drive duplication procedure of CaseView. Mr. Elrick 

said it was done on a routine basis simul­ taneously with the copying and resulted in 

a large hexadecimal number. If reverification is done, the new calculation must 

match the same number to indicate that 

original material is unchanged. With 

CaseView and MIRC, he was able to 

observe the chat logs and configurations. 

Defense counsel discussed shutdown procedures for computers with Mr. Elrick. 

Officer O’Neal had first access to the victim’s equipment, but Investigator Willis was the first trained person who viewed 

the computer. Mr. Elrick confirmed that 

Officer O’Neal had altered some files on 

victim’s computer. Mr. Vance asked 

whether pulling the plug was the preferable way to preserve evidence on the 

crime scene computer. At power-up or 

shutdown, Microsoft Windows operating 

system changes numerous files behind 

the visible screen. Witness Elrick said that 

normal shutdown may alter files and lose 

information from memory, so pulling the 

plug was the better choice between two 

imperfect alternatives. He agreed that he 

could not be certain that the copied hard 

drive was actually the same as the one on 

the machine at the time of the victim’s 

death. 

Ending the in-role activities for the morning conference session, Judge Ford dismissed the mock trial for the keynote 

plenary session. 

34 
SCIENCE AND THE LAW 

Keynote Address: Jurors’ 

Comprehension of Scientific 

Evidence 

Lawrence Solan, Professor, Brooklyn Law 

School, discussed juror comprehension of 

scientific evidence used in trials. A study was done to find out how well jurors 

understood the intended meaning of scientific evidence and, if they did not understand, what other factors affected their 

decisions in relation to the issues at trial.15 The study further looked into what might 

improve jurors’ understanding of difficult 

technical testimony. 

During a trial, jurors usually put together 

mental “stories of what might have happened.” A presentation of evidence is expected to fit somehow into such familiar 

stories. Dr. Solan described how he himself felt when a conference presenter displayed a picture of a hard disk, divided into 

sectors. He said his attention perked up 

because he was familiar with that image. 

He listened more to the narrative. This, he 

said, is the normal reaction; people will 

look for concrete instances that are familiar to them and will pay more attention to 

the person giving evidence at that point. 

A Princeton psychologist named Cooper 

conducted a mock jury trial using a video 

of “experts’ testimony” on a cancer-related 

issue. Half of the experimental group 

heard one “expert” who used plain, lay 

language, and the other half heard the 

second “expert,” who spoke with large 

medical-technical words, such as “pathological tumor induction.” Some of the experimental group were told the expert went to a prestigious university and had 

published lots of material while the other expert “went to a small State school and was now teaching at a State university.” The study found that when the jury understood the language, the credentials of the expert did not matter as much; but if they 

could not understand, more weight would 

be given to the expert who had “better 

credentials.” The study also examined the effect on 

juror attitude of different levels of payment to the expert. Half of them heard 

that the expert was being “paid a lot,” 

while the other group was told the expert 

“was not paid much.” Researchers found 

that, when the expert was not being paid 

much, then the credential did not matter 

significantly; but if the juror heard that the expert received a lot of money, they would be more favorable to the expert 

with the lower credentials. In other words, 

there was a strong unfavorable reaction 

among jurors to the idea of an expert as 

“hired gun.” They preferred that the expert be novice at testifying (not frequently in court) and that fees be modest 

and reasonable. Professor Solan discussed what had been found to be particularly hard for jurors. 

Statistical analysis has been shown to 

be difficult for both judges and juries, 

although they are “trainable” when steps 

of the analysis are clearly explained. 

Counsel has to tell stories that are related 

to experiences with which the jurors can 

identify. Particularly hard for lay jurors or 

the court is the idea of integrating “base 

rate information” in questions of how 

probable or reliable a certain event is. There is a tendency, in dealing with jurors, 

to avoid discussing base rate information 

altogether. 

Open Discussion 

Dr. Solan said people often do not understand liability issues in the same way. Judges and juries sometimes accept or 

reject evidence intuitively despite established analytical procedures in such areas 

as forensic handwriting analysis. The idea 

of causation is considered a prerequisite 

to assigning responsibility. For example, if 

someone hosts a party and a drunk person 

leaves, drives a car, and causes a serious 

35 
SPECIAL REPORT / MAY 04 

accident, is the party host liable for the 

damages? If someone leaves a key in the 

car ignition and a juvenile steals it, then 

causing an accident, is the car owner 

liable? Professor Solan said people are 

evenly divided about how to decide such 

things. If a person was only an “enabler” 

for a certain event, some liability, such as 

a fine, may be assigned but seldom would 

overall responsibility be assigned. Responding to a question about the effect 

of the entertainment industry on juries, he 

agreed that there was such an influence. For example, some type of “battle” may 

be portrayed in court cases, such as a 

rape case in which “lifestyle of the defendant” opposes “criminality of the attacker.” He recommended an interesting new 

book entitled When Law Goes Pop.16 The group discussed an experiment in jury 

trials that makes jurors more active, giving 

them the role of asking the witnesses 

questions themselves. This appears to 

increase the quality of jurors’ attention. 

Another participant asked about the possibility of bias introduced by the jury’s foreman. Dr. Solan said research by Steve Penman had indicated little influence in 

terms of changing votes. 

In summary, Dr. Solan suggested to the 

participants that juries could reach a better 

understanding of technical information if 

counsel does the following: 

■	 Makes it clear how the evidence fits into 

the story of what happened. 

■	

Reminds the jury of connections and 

introduces things they can identify with. 

■	

Trains juries about base rates, if this is 

important to the evidence. 

■	

Presents technical evidence in tabular form, which is easier for the jurors to 

compare. 

■	

Remembers, according to other psychological research, that people do better at 

drawing inferences about what did 

occur rather than about what did not 

occur. 

Digital Evidence—Virtual 

Reality in the Real-World 

Courtroom [continued] 

Scientific, Technical, or Other 

Specialized Knowledge [In Role] Judge Judith Ford called the court into 

session, and counsel for the defense 

called their expert witness to the stand 

[played by Charles Boncelet, Professor, 

Department of Electrical and Computer 

Engineering, University of Delaware]. Dr. Boncelet said he was a professor in electrical and computer engineering and had taught a variety of courses since 1984 in 

communications, signal processing, net­ works, and probabilities. He had written a 

number of articles in his field and had 

research experience. Dr. Boncelet said he was familiar with features of IRC and the 

MIRC program, although he had not used 

the program. It was a prominent application in computer networking. 

Defense counsel, Mr. Vance, asked him 

whether the MIRC logs were text files and 

therefore easy to alter. Dr. Boncelet said 

any text editor such as MS Notepad could 

do so. It would have been possible for a 

third party to access the victim’s computer 

and alter the log files to redirect suspicion 

and minimize the chance of being detected in the murder. With MS PowerPoint to 

display his computer actions, Dr. Boncelet 

showed participants how to delete or alter 

the date of entries in a log file using a simple text editor (MS Notepad). He reset the 

computer’s clock to change time stamps 

assigned to the log by the MIRC software. 

A third person (possibly the murderer) 

36 
SCIENCE AND THE LAW 

might have reset the computer’s clock, found and altered log entries, and left misleading “evidence” behind in only a few 

minutes. The prosecutor, Mr. Murray, cross- examined, asking Dr. Boncelet if this 

alteration of the logs could be done by a 

person who did not know enough to run 

batch files? Dr. Boncelet said yes, it would 

only take a little more time in that case. 

Mr. Murray also explored with him the 

idea of documents cached by the Windows operating system and then 

asked Mr. Elrick to return to the stand. 

Mr. Elrick described retrieving information 

from unallocated clusters on the hard 

drive. When a disk is formatted, all clusters are numbered. A file will be saved 

into one or more clusters. Each cluster is 

roughly a page of data, and two files cannot occupy the same cluster at the same 

time. When the file is deleted, the filename is changed and the space is registered as unallocated, but the content in 

the clusters is not actually changed. 

Defense counsel, in turn, asked Mr. Elrick 

what material retrieved by CaseView 

looked like. Mr. Elrick said it would be a 

text file, but it would also contain information from MIRC about the time the message was sent and who sent it. He agreed 

with Mr. Vance, however, that it was not 

necessarily possible to tell who the author 

of the fragment was. 

Summation [In Role] 

Mr. Murray told the jury to consider 

whether necessary standards of reliability 

had been met. The standards of reliability 

should be reasonable for the kind of soft­ ware discussed. CaseView has been designed and tested for law enforcement. It 

is currently used widely by law enforcement in the field. MIRC, however, has not 

been tested to the same degree. It is only 

one of several products of its type, and 

special testing of this kind of software has 

not been considered worthwhile. The mar­ ket speaks, said Mr. Murray. If law en­ forcement personnel are consistently 

buying and using CaseView, this supports 

the idea that it is a reliable tool. Juries 

should allow evidence gathered with 

CaseView, especially since it is not a 

“weight” standard (deciding guilt or innocence) but just a question of admissibility 

of evidence. It is preferable to have the 

greatest universe of evidence available at 

trial. He noted that prosecution did not 

object to the demonstration of altering 

MIRC log files because that, too, had a 

wider educational purpose. 

Mr. Vance, for the defense, asked that the evidence be excluded in its entirety. He 

said that the Federal Rules of Evidence 

and case law require a methodology that 

is relevant and reliable, especially when an 

individual’s liberty is at stake. The computer logs and files pertained to several people, not just the suspect. The government 

seeks to establish that the defendant 

communicated with the victim, that there 

is motive for murder (blackmailing), and 

that the defendant received information 

about the victim’s whereabouts, giving 

him an opportunity to commit the crime. 

However, serious weaknesses have been 

identified in the procedures yielding this evidence. The product CaseView is shockingly lacking, said Mr. Vance, in terms of 

independent testing; nor are there any 

standards, information on error potential, 

or evidence of peer review of the methodology (except for a magazine article). We 

know only, he said, that the government 

uses and likes it. Its reliability is called into 

doubt when the same people who benefit 

from it are those who also formally test it. 

Another serious weakness in the evidence 

is the fact that the first officer on the 

scene of the murder acknowledged making changes on the crime scene computer 

files. He could have changed configurations or many other things. Investigator 

37 
SPECIAL REPORT / MAY 04 

Willis said the safest way to handle an 

evidence computer of this kind is to pull 

the plug from the back. But that decision 

causes the loss of any open files. The 

prosecution expert, Mr. Elrick, admitted 

that he could not say with certainty 

whether the disk he copied and examined 

was the same as the computer disk at the 

time of victim’s death. A perpetrator with 

a modest amount of expertise in MIRC 

software and chat logs could have had the 

opportunity to access and alter the logs. 

Finally, the government’s use of CaseView 

to get portions of text from unallocated 

disk space fails to meet Daubert standards 

for reliability or methodology. The prosecution cannot know the author, source, or 

time these fragments were created. Defense asked the court to enter an order 

precluding entry of all this evidence. 

Judge’s Instructions [In Role] 

Judge Ford instructed the jury to decide 

whether the prosecution’s expert testimony had a sound foundation and should be 

admitted into evidence. It must be decided whether the evidence is sufficiently 

reliable to present in a real trial. She said 

they can take into account factors that bolster or weaken the reliability of the evidence. [Aside: Judge Ford also asked 

juror-participants to comment on approaches of the attorneys, testimony by the proffered experts, and court rulings.] 

Judge Ford noted that, since she is from 

California where Daubert is not used, she 

has no experience with these standards. 

If she were really on the bench, she would 

have to “take the matter under submission.” This kind of technology increasingly 

pervades everyday activity, and the judicial 

system must become ready for it. Counsel 

in the trial brought forward some interesting considerations, such as the cost and 

difficulty of standardized testing for software. Judge Ford said that mixed problems, such as authenticity issues and 

hearsay, affected this evidence. She asked 

the following: Should software that is a 

tool of law enforcement be required to 

meet different standards from other generally used software? Does software have 

to pass a higher bar for admission in criminal cases than in civil cases? 

Open Discussion 

Mr. Vance agreed that many issues were 

not technically Daubert issues, such as the 

problem of data from unallocated disk 

space. The defense took a “real world” 

approach to this, which would have 

attempted to “take a hit” at prosecution’s 

evidence wherever possible. 

One of the participants noted that many 

of the recent cases involving computers 

related to child pornography. Most of 

these have key evidence that consists of 

saved files, and these would not be affected by questions on reliability of the software. This murder case, however, 

presents timeline issues, questions about 

the accuracy of recovery software, and 

disputes about the context of the evidence. Mr. Murray noted that, when the 

plug was pulled on the crime scene evidence computer, any material in random 

access memory (RAM) would have been 

lost. The best method to document this 

would have been to do a “dump” of RAM 

before powering down, but the first 

responding officer was not qualified to 

do this. Auto-run programs, such as those 

intended to defragment the disk, could 

also have altered what was on the computer’s hard drive. 

One attendee asked about information 

that could be received from the ISP. Mr. 

Murray said ISPs, similar to telephone 

companies, do not track content. The 

prosecution did use the ISP to identify 

Doakes’ (the suspect’s) computer. The 

suspect’s computer (examined pursuant 

to a search warrant) had revealed fragments of text (erased files) that contained 

38 
SCIENCE AND THE LAW 

user names matching those found in the 

victim’s chat logs. Judge Ford agreed 

that there were both authentication and 

Daubert problems with the evidence presented in the mock trial. 

Jury Findings [In Role] 

The jury decided that the evidence was 

admissible. This decision was reached 

unanimously. The jurors emphasized, however, that admitting the evidence did not 

decide guilt or innocence of the defendant. The software used to develop the 

evidence had been tested by expert witnesses and the police department. There 

was a general acknowledgment that strict 

Daubert standards could not necessarily 

apply to software. The jury foreman 

[played by Judge André Davis, U.S. 

District Court, Baltimore, Maryland] commented that it was not completely clear 

to the jury whether the evidence satisfied 

“expert testimony,” hearsay, chain-ofcustody, or other authentication issues. 

Also, an inferential step was made by 

assuming that the defendant had access 

to the computer and had himself produced 

the material on the hard drive, although 

it would typically have been his own 

computer. 

Closing Remarks 

Dr. Chaski said this type of case appears 

in the courts often. She had recently been 

involved in a forensic linguistics problem 

relating to a suit against part of the U.S. 

military. There were disputed documents, 

and a computer expert testified to show 

that the documents indeed came from the 

network claimed by the party. Standard 

methods of authorship identification can 

be very hard to apply in the computer 

field. 

Ms. Ballou said that NIST is testing software tools and looking into methods to 

release reliability testing results without 

legal action from the software developers. 

Corporations often have newer versions 

that they are trying to quickly improve 

postrelease. Information from a nonbiased 

entity would be valuable. 

Lisa Forman, Director, Investigative and 

Forensic Sciences Division, OST, NIJ, 

noted that scientific technology continues 

to develop. Less reliable methods must be 

weeded out for many reasons, but scientific advances can help society find practical remedies to crime. She expressed 

appreciation to the participants for the 

interesting display of legal reasoning in 

these new areas, shown throughout the 

mock trial, and invited participants to offer 

suggestions for next year’s National 

Conference on Science and the Law. NIJ 

will be posting information and proceedings on its Web site and welcomes attendees’ responses. 

Notes 

1. Franklin, B., Historical Review of Pennsylvania 

(1759). 

2. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 

579 (1993). 

3. U.S. v. Van Wyk, 83 F. Supp. 2d 515 (D.N.J., 2000). 

4. Frye v. United States, 54 App. D.C. 46, 293 F. 1013 

(1923). 

5. Gatowski, Sophia I., Shirley A. Dobbin, James T. 

Richardson, Gerald P. Ginsberg, Mara L. Merlino, and 

Veronica Dahir, “Asking the Gatekeepers: A National 

Survey of Judges on Judging Expert Opinion in a 

Post-Daubert World,” Law and Human Behavior 25 (5) 

(October 2001): 433–458. 

6. Kumho Tire v. Carmichael, 526 U.S. 137 (1999). 

7. Hand, Learned, “Historical and Practical 

Considerations Regarding Expert Testimony,” Harvard 

Law Review 15 (1901): 40. 

8. Hansen, Mark, “Expertise to Go,” ABA Journal 86 

(February 2000): 44–53. 

9. Kovera, Margaret B., Bradley D. McAuliff, 

“Reasoning About Scientific Evidence Effects of 

Juror Gender and Evidence Quality on Juror 

39 
SPECIAL REPORT / MAY 04 

Decisions in a Hostile Work Environment Case,” 

Journal of Applied Psychology 84 (3) (June 1999): 

362–375. 

10. Loftus, Elizabeth, and James M. Doyle, 

Eyewitness Testimony, Civil and Criminal, Third 

Edition, Charlottesville, VA: Lexis Law Publishing, 

1997. 

11. Wigmore, John H., “Professor Munsterberg and 

the Psychology of Testimony,” Illinois Law Review 3 

(1909): 399–445. 

12. Risinger, D. Michael, “Defining the Task at Hand: 

Non-Science Forensic Science After Kumho Tire Co. 

v. Carmichael,” Washington and Lee Law Review 57 

(3) (Summer 2000): 767–800. 

13. Ladd, C., M.S. Adamowicz, M.T. Bourke, C.A. 

Scherzinger, and H.C. Lee, “A Systematic Analysis of 

Secondary DNA Transfer,” Journal of Forensic 

Sciences 44 (6) (1999): 1270–1272. 

14. A “jury” of 12 audience members was selected 

at random from volunteers who submitted business 

cards for a drawing. This would not be a typical jury 

because it consisted of three judges, several crime 

laboratory directors, Ph.D.-level researchers, and 

criminal attorneys. 

15. Vidmar, Neil, and Shari Seidman Diamond, “Juries 

and Expert Evidence,” Brooklyn Law Review 66 (4) 

(2001): 1121–1180. 

16. Sherwin, Richard K., When Law Goes Pop: The 

Vanishing Line Between Law and Popular Culture, 

Chicago: University of Chicago Press, 2000. 

40 
Fourth Annual Conference on Science 

and the Law, October 3–5, 2002 

Thursday, October 3 

Preconference Workshop I: 

Interpretation of Scientific 

Analytical Reports 

Elements and Interpretation of 

an Analytical Chemistry Report 

José R. Almirall, Director, Forensic 

Science Graduate Program, Assistant 

Professor, Department of Chemistry, 

Florida International University, noted that 

responsibility for correct interpretation of 

scientific analytical reports lies both on the 

writer, who must write an understandable 

report, and on the reader, who must do 

the background work to understand the 

language. Language is the crucial element 

in any disconnection between the writer 

and reader. Scientists and attorneys alike 

have their own languages with specific terminologies. Additionally, reports are not 

always clear, and the reader may not be 

prepared to understand the material. The 

clarity and completeness of reports is 

important: Were conclusions reached? Do 

examinations and results warrant the conclusions? Does the scientific community 

agree? 

A good report will include identification 

marks (agency, date, examiner who conducted the analysis, etc.), a description of 

the items examined, a description of the 

examinations conducted, and an interpretation of the results. For example, in analytical chemistry, a measurement science, 

the correct methodology/tools for qualitative and quantitative analysis must be 

shown. In choosing samples for analysis, 

which requires determining what to analyze and how much to analyze, procedures 

must support the interpretation of data 

and offer feedback for decisions. 

Standard terms in scientific reports 

include the following: 

■	 Precision. How closely measurements 

of the same quantity come to each 

other. 

■	 Accuracy. How close experimental 

observations are to the true value. 

■	 Uncertainty. Reporting of numerical 

values (including random error value). 

■ Bias. Systematic errors related to 

accuracy. 

■	 Detection limits. Smallest quantity that 

can be detected and reported. 

■	 Quantification limit. Smallest amount 

that can be quantitatively measured. 

Dr. Almirall showed two examples of controlled substance analysis reporting, with 

correct examination procedures, interpretation of data, and reports discussed in 

the guidelines and standards of the 

American Society of Crime Laboratory 

Directors (ASCLD) and ISO 17025 as well 

as the recommendations of the Scientific 

Working Group for the Analysis of Seized 

Drugs (www.swgdrug.org). He indicated 

that controlled substance analysis should 

include qualitative identification of the 

compound, purity, weight, uncertainty of 

measurements, all methodology, and 

41 
SPECIAL REPORT / MAY 04 

resulting data. He also described reporting 

on other trace evidence analysis and the 

use of the Fire Debris Evidence Guidelines 

of the American Society for Testing and 

Materials in seeking to identify accelerants 

in complex mixtures. When seeking to 

identify accelerants like gasoline, the 

report should show extraction samples 

from the matrix, analytes, and peaks that 

could be expressed. Interpretation should 

consider where the samples were found. The Scientific Working Group on Materials 

Analysis (SWGMAT) works on cases 

involving other trace evidence, such as 

glass transfer (e.g., when a window is bro­ ken during the commission of a crime, the forensic examiner may look for glass in 

clothing that may match the window 

onsite). In a two-tiered approach, analytical chemistry first looks for a “match” for the 

sample, then calculates how common or 

uncommon the material would be in the 

location where the sample was found. 

Scientists interpret evidence using their experience, knowledge, statistical 

research, and literary documentation. A 

lawyer should check to make certain that a 

laboratory has received ASCLD accreditation and follows accepted standards and 

procedures. A “match” found through analytical chemistry means something different from the term “match” that is used 

when comparing evidence in court. In an evidence report, descriptive words such as 

“consistency” and “distinguishable” are 

preferable to “match.” Usually, forensic 

scientists are given the flexibility to choose among methods, and the report for court is a summary rather than a compilation of all procedures. 

Interpretation of DNA Reports 

Jack Ballantyne, Associate Professor of 

Chemistry, University of Central Florida, 

said that laboratories preparing DNA and 

serology reports need a documentation 

toolkit containing the following publications and guidelines: 

■	 DNA Advisory Board, Quality Assurance 

Standards for Forensic DNA Testing 

Laboratories. (http://www.fbi.gov/ 

congress/congress02/forensicstd.htm) 

■	 Scientific Working Group on DNA 

Analysis Methods (SWGDAM), Short Tandem Repeat (STR) Interpretation 

Guidelines. (http://www.fbi.gov/hq/ 

lab/fsc/backissu/july2000/strig.htm) 

■	 National Research Council II, Evaluation 

of Forensic DNA Evidence: Update on 

Evaluating DNA Evidence, National Academies Press, 1996. (http://www. 

nap.edu/books/0309053951/html) 

■	

John M. Butler, Forensic DNA Typing: 

Biology and Technology Behind STR 

Markers, San Diego: Academic Press, 

2001. (Not available online.) 

In addition, the toolkit should include specific, maintained laboratory procedure 

manuals showing who conducted each 

analysis and guidelines for interpretation 

and report writing. A wide variety of report formats may comply, but he recommended routinely enumerating the significance 

of test results (attaching a number) and 

using additional interpretation elements 

that have been standardized and described 

by SWGDAM. 

DNA short tandem repeat (STR) typing is 

done with fluorescent STR kits, and separations are prepared with capillary electrophoresis. Genotyping is done by 

comparison of each locus, which has two 

alleles (inherited from mother and father). 

If the example is heterozygous, the alleles 

will be different sizes; if it is homozygous, 

they will be same size. The test measures 

relative fluorescence unit (RFU) values 

indicating the alleles and allelic ladder. A 

sample comes from a single source if 

each typed locus has only one or two 

42 
SCIENCE AND THE LAW 

alleles. The determination of exclusion or 

inclusion is based on all tests and observations made for that sample. When the analyst works with degraded results or starts 

with low quantities of DNA, observations 

are more open to question. 

Existing population databases list allele 

frequencies within the general population 

(Caucasian, Hispanic, African American). 

Statistics for known frequencies in population genetics can indicate genetic variation 

in general populations, frequency of 

homozygous or heterozygous DNA, and 

the occurrence of a particular genotype in 

the setting where a sample was found. 

Laboratory analysis conclusions about a 

questioned sample possibly containing 

the same genotype and a known sample 

are expressed to a reasonable degree of 

scientific certainty. Each laboratory sets 

its own keratin thresholds for empirical 

analyses, such as RFU of 150. The term 

“match” is used to qualify the comparison 

of samples (allelic comparison). The results 

obtained from a questioned sample are 

compared with the results from the 

known samples in the case; the determination of inclusions or exclusion is the 

responsibility of the analyst working the 

case. The analyst is required to list the 

loci that were tested. Exclusions are more 

clear than inclusions or inconclusive 

results. They will show a difference in at 

least one locus, although results may be 

inconclusive if threshold standards are not 

met at one or several loci. Presumptive tests determine the presence of blood, semen, saliva, etc., and 

definitive tests (blood type, presence of 

spermatozoa, etc.) may follow. If a mixture 

of DNA is present, there can be three, four, or more alleles at each locus rather 

than two. If a dominant profile can be 

determined in a mixed pattern, the laboratory report will state the major and minor 

contributors. Otherwise, the analysis 

calculates and reports frequency determinations for possible combinations. 

Dr. Ballantyne noted that the location and 

composition of the biological material can 

be as important as the DNA results 

themselves. 

Forensic Document Examiners 

Report: What Lies Within 

Gerald B. Richards, owner, Richards 

Forensic Services, said that handwriting examination is pattern recognition and 

relies on good comparisons. Often the forensic scientist, lawyer, juror, and judge 

understand certain terms differently. The 

Scientific Working Group for Forensic 

Document Examination (SWGDOC) is working on the following nine-level standard probability-related terminology for conclusions relating to questioned documents: 

■ Identification. 

■ Strong Probability. 

■ 

Probable. 

■ Indications. 

■ No Conclusions. 

■ Indications Did Not. 

■ 

Probably Did Not. 

■ Strong Probability Did Not. 

■ Elimination. Report formats include date and case 

information, a description of materials submitted (questioned, known, and specimen 

materials), a list of the questions being 

asked (what examinations are requested), 

the results of the examinations (the 

answers offered), and disposition of the 

submitted materials with any additional 

remarks. 

Mr. Richards gave demonstrations of good 

and bad document examination reports. The date on which the report was written, 

43 
SPECIAL REPORT / MAY 04 

the date of communication to the examiner, and the date on which the materials were received should be within a reasonable range of each other. Materials must 

be described so that each item can be 

individualized and identified by itself. 

Questions discussed in the report should 

be pertinent to the case. If a computer 

program is used as a primary document examination procedure, it should form part 

of the report. Technical jargon should be kept to a minimum, except to explain procedure. The results of the examination 

should clearly and concisely state what 

has been accomplished and provide additional information that might be valuable. 

Principles of Forensic Mental 

Health Assessment 

Kirk Heilbrun, Chair, Department of 

Psychology, Drexel University, noted that forensic mental health assessment, which 

is performed to assist the court in legal 

decisionmaking or is presented as evidence in a legal case, contrasts with therapeutic assessment, which is performed 

to assess a patient’s symptoms and guide 

the planning of mental health interventions on the patient’s behalf. The assessment report should first identify relevant forensic issues and legal questions to be 

cited. The mental health examiner should 

accept referrals only within his or her area 

of expertise and decline any referrals in 

which the examiner’s impartiality might be 

questioned. The examiner’s professional 

degree, licensure, board certification, curriculum vitae, and summary of qualifications must be available if requested. 

In the report, the role of the mental health 

evaluator should appear clearly as court 

appointed, attorney requested, or other 

consultant. Financial arrangements for the 

support of the evaluation should be clarified. A combination relationship (a clinician 

who serves as both therapist and forensic 

evaluator) is particularly undesirable. Such 

a blend would be proper only with explicit 

justification, advance planning, and clear 

notification to the individual being evaluated. Relevant historical and clinical guidelines 

and data sources support the assessment 

of clinical characteristics in reliable and valid ways. Using accepted elements of 

notification and consent, the expert gives 

appropriate notification of the purpose for 

the examination and obtains authorization 

before beginning. Forensic mental health assessment often follows certain models, such as the Morse 

Model, to guide data gathering, interpretation, and communication. The assessor 

determines whether the individual understands the purpose of the evaluation and explains the associated limits of confidentiality. He or she has to ensure that the 

conditions for the evaluation are quiet, pri­ vate, and distraction-free, noting any deviation and describing any outside impact on 

the data collected. The report uses valid 

data sources and places relevant historical 

information in a separate section to document the individual’s history and previous 

functioning in areas relevant to the current 

clinical condition. Third-party information 

can help in assessing response style 

when compared for consistency with selfreported information. The examiner has 

to assess legally relevant behavior and 

document the individual’s functional legal 

capabilities. The report shows scientific reasoning to 

assess the individual clinical condition, 

covering functional abilities and legal/ 

causal connections. Dr. Heilbrun cautioned 

that, during testimony, the mental health 

evaluator should describe the findings and 

their limits in such a way that the evaluator 

need not change testimony during cross- examination. The assessment presents 

conclusions about forensic capacities but 

does not address the larger legal questions. In testifying, the assessor bases his 

or her testimony on results of the selected 

44 
SCIENCE AND THE LAW 

instruments and relies on the contents of 

the report to guide that testimony, using 

plain language for lay listeners in court. 

Preconference Workshop II: 

Brady and Other Ethical Issues 

Facing Forensic Scientists The case of Brady v. Maryland1 points to a 

duty on the part of prosecutors (and their 

“law enforcement team”) to turn over evidence that is material to the defense. 

Moderator Barry A.J. Fisher, Director, 

Crime Laboratory, Los Angeles County 

Sheriff’s Department, noted that several 

questions are raised: What is material 

exculpatory evidence? Whose duty is it to 

find it? What is the crime laboratory’s 

responsibility? Watershed cases involving laboratory misconduct (Zain2 and the professional sanctions against Joyce Gilchrist3

) have caused 

people to ask what is the correct response 

to scientific misconduct. Responses have 

included employee discharges, civil litigation, and even attempts to prosecute for 

criminal perjury. Thus far, courts have interpreted the variety of questions raised by 

these cases conservatively, ruling that evidence that was allegedly tainted by laboratory misconduct must be “material” to the 

specific case in question. Prosecutors 

need to understand laboratory work better, 

and defense attorneys need more education in scientific areas and more open atti­ tudes toward discussion. In general, the 

Brady case has been an influence for better cooperation between adversaries in 

the process of forensic discovery. Paul C. Giannelli, Weatherhead Professor 

of Law, Case Western Reserve University, 

said Brady is sometimes seen as asking 

the prosecution to “hand over evidence 

and assist the accused.” Where the 

prosecutor really believes the accused is 

innocent, the case is likely to be soon 

dropped. In practice, the Brady responsibility on the part of the prosecution refers 

to evidence that would be “almost outcome determinative.” The decision has 

resulted in more discovery by defense 

attorneys under the Freedom of Information Act and more efforts to find out 

about misleading laboratory information. Professor Giannelli described many experiences of courtroom error, ranging from failures to use available DNA samples to forged fingerprints. He divided the rele­ vant issues according to courtroom role 

(prosecutor, expert, defense counsel) and type of problem (misleading credentials, 

missing evidence, misleading statistics or 

reports, late disclosure, pressured opinions, and exculpatory evidence in the prosecution’s possession). He said the 

decisions mainly targeted incompetent 

defense counsel, prosecutors who have 

not taken the “assume innocent” duty 

seriously, and laboratories that have a 

propolice orientation. The laboratory report is a scientific document and must clearly specify what tests were used, what results were observed, 

why the particular methods were chosen, 

and whether the results have limitations. 

Discovery of laboratory notes and graphs 

ordinarily would be expected. In a large 

jury case, laboratory reports and protocols 

have to be understandable to laypersons 

and would best be posted to provide both 

sides with easy access. A system should 

be designed so that an average prosecutor and average defense attorney with typical caseloads could use the material 

productively (an example would be making 

certain key documents available for examination via the Internet). 

Albert J. Krieger, Chair, Criminal Justice 

Section, American Bar Association, said 

the defense attorney typically has no specific scientific understanding and is confronted (sometimes immediately before 

trial) with prosecution’s expert scientific 

45 
SPECIAL REPORT / MAY 04 

witness. Mr. Krieger said, “You might call 

this ‘trial by ambush.’” The defense counsel needs an adequate breadth of discovery for scientific evidence, and it is not 

unreasonable to require the prosecution 

to share materially important evidence. 

Sometimes comparative studies on scientific materials say contradictory things 

about the same evidence. State money is 

well spent in such circumstances when it 

gives defense attorneys relief under Brady. 

A defense attorney’s gut reaction to 

charges against the defendant will be, 

“You have to prove it.” He or she has the 

right to explore any open questions in the 

interest of justice. The justice system 

requires candor and honesty from witnesses to arrive at court decisions that 

give closure in complex cases. Any kind 

of deliberate misstatement in court is inexcusable and criminal. The idea that a scientist would give testimony to “serve an 

agency” is an affront to the system. 

Haskell M. Pitluck, Retired Circuit Court 

Judge, Illinois 19th Circuit, reviewed codes 

of ethics in the context of forensic casework. Judge Pitluck, past president of the 

American Academy of Forensic Sciences 

(AAFS) and member of the Council of 

Scientific Society Presidents, said most 

such societies (similar to the AAFS) 

already have some kind of code requiring 

that members refrain from behavior 

adverse to the society, that they do not 

misrepresent any criteria for membership 

in the society, that they do not misrepresent study data, and that they obtain permission from the society before using its 

statements. Violating such guidelines is 

usually grounds for censure and expulsion. 

Should lawyers check the credentials of a 

potential expert witness? Yes: Most ethics 

cases are brought because an expert’s 

credentials have been misrepresented. 

Many professional organizations have 

procedures for hearings on violations. 

However, incompetence is not necessarily 

the same as unethical behavior. 

Rockne P. Harmon, Senior Deputy District 

Attorney, Alameda County, California, told 

the group that to say that prosecution 

decisions are “not reviewable” is inaccurate; prosecutors want to reach good decisions that will not be reversed. Photo 

lineup results, laboratory reports, witness 

statements, codefendants’ statements, 

and even evidence regarding weather may 

or may not be considered “material” to 

the defense counsel. The Maryland 

Supreme Court has affirmed the duty for 

disclosure under Brady only for a death 

penalty case. The keywords are “favorable” [to the defendant] and “material” [to 

the case]. The debate must be understandable, about case-specific critical evidence, 

not report-writing standards, etc. 

Forensic evidence discovery for cases is 

designed to ensure a fair trial according to 

the rules of law. The requirements under 

Brady have resulted in “game playing” 

among defense counsel, sometimes leading to large additional areas of discovery 

for secondary information that is circumstantial, such as high school or college 

transcripts of witnesses, complete proficiency testing details of a laboratory, or 

lists of every other time a witness has 

testified. 

The requests for reanalysis of tests or for 

credentials and accreditation information 

must have meaning in the specific case 

context and must be material to the guilt 

or punishment of the defendant. Many 

times, the prosecution (not only the 

defense counsel) will suggest retesting 

DNA evidence from the defendant, and 

defense may oppose this. Brady is a workable restriction, but it has been influenced 

too often by consideration of gray areas 

outside the scope of a specific case. 

46 
SCIENCE AND THE LAW 

Preconference Workshop III: 

Can DNA Be the Magic 

Bullet? What DNA Can 

(and Cannot) Do 

The Good, the Bad, and the Ugly: 

Realities of the Forensic DNA 

Laboratory 

Cecilia A. Crouse, Serology Section, Palm Beach County Sheriff’s Office, said that 

the good news is that crime laboratories 

have developed good, solid accreditation 

standards and many organizations (including the National Institute for Standards and 

Technology [NIST], National Research 

Council, and American Society of Crime 

Laboratory Directors) are now involved in 

ensuring quality forensic DNA testing. The 

bad news is that the laboratories are 

unable to handle all documentation and work every case. Interpreting and reporting DNA profiles requires specific qualifications. Official DNA guidelines now address 

planning and organization of the laboratories, personnel, documentation/manuals, 

equipment/facilities, evidence-handling 

procedures, analytical procedures, and 

casework documentation. Peer-reviewed 

professional journals (Journal of Forensic 

Sciences, Forensic Science International, 

and International Journal of Legal Medicine) are established. New standards 

require procedures for qualifying personnel, maintenance of technicians’ qualifications, and special requirements for 

supervisor/technical leader positions, examiner/analysts, and technicians. DNA 

manuals covering laboratory documentation rules and recommendations for validation, procedures, equipment handling, and 

technician qualifications have developed 

substantially since the end of the 1980s. 

Information on base populations has 

grown with the STR database and the 

ongoing work of the Scientific Working 

Group on DNA Analysis Methods, aided by 

FBI national standards and uniform audit 

documents. Remaining analytical problems involve microvariances, low copy 

number (small amounts of genomic DNA), 

and challenges in mixed samples. In mix­ ture cases, the analyst must ask, “Could 

this mixture include both parties based on 

the witnessed allele peaks?” Examination 

must identify the number of potential contributors, estimate the relative ratio of individuals contributing to the mixture, 

consider all potential genotype combinations, and compare to reference samples. 

Computer-assisted DNA data interpretation can offer caseworking laboratories a 

way to reduce backlogs. However, the 

sources of biological evidence and the 

sheer amount of evidence collected have 

become overwhelming for many laboratories. In a violent crime case, there may be 

about 5 submissions for analysis, 10 items 

screened, and 20 stains examined. STR 

kits have also changed as technology has 

developed. They now require validation 

testing, and up to several days may be 

needed for secondary review. Laboratories 

need expert software simply to manage 

the large case-processing backlog. 

DNA as a Magic Bullet 

Mark E. Windham, Head Deputy Public 

Defender, Los Angeles County Public 

Defender’s Office, and George “Woody” 

Clarke, Deputy District Attorney, San 

Diego, discussed the idea that DNA is a 

“magic bullet”: The odds for an STR DNA 

match are 1 in 1.78 quintillion people, for example, which can create an impression 

of overwhelming evidence against a 

defendant. Defense attorneys sometimes 

do not ask for independent DNA testing 

because faith in this evidence combines 

with occasional DNA test results that con­ tain serious errors, possibly due to micro- variants, mixture analysis issues, artifacts 

or “stutter” in the analysis, contamination, 

or employee misbehavior (as in the 

47 
SPECIAL REPORT / MAY 04 

Gilchrist and Zain cases). The common 

assumption that “DNA [evidence] exists 

so the case is over” might have dangerous 

results. 

New standards for evidence began to be 

applied after the Daubert4 decision, which 

required a preliminary assessment of evidence for admissibility. However, courts 

still have not decided about the best treatment of mixed-DNA evidence. Not all 

states have used the Frye5 standard for evidence (1923 rule on general acceptability of scientific evidence). In the Danielle van Dam case,6 DNA evidence removed 

lingering doubt among jurors; about 10 

percent of jurors indicated they would use 

DNA evidence to decide to impose the 

death penalty. Some States require “likelihood ratios” or statistics to be introduced 

in cases for which DNA evidence from a 

mixed specimen has been admitted. 

Statistics are required in any DNA case. Forensic analyst qualifications form another source of contention. Witnesses in 

court are not necessarily the bench analysts who have performed the tests. 

Single-source DNA is the most powerful 

and trusted evidence for identification, but 

increased sample collection has caused 

more use of mixed DNA samples. STRbased systems, used to separate mix­ tures, are perhaps less questioned since 

they are similar to the older polymerase chain reaction (PCR) testing that first successfully gained court admissibility. Juries 

are becoming more confident in evaluating 

testimony that includes frequency data, 

discussions of error rates, and consideration of the probable reliability of specific 

scientific tests. Most forensic laboratories keep statistics on their test findings and 

use agreed-upon standards. 

Welcome and Opening 

Remarks 

Sarah V. Hart, Director, National Institute 

of Justice, U.S. Department of Justice, welcomed attendees to the Fourth Annual 

Conference on Science and the Law, noting that NIJ’s mission of advancing science, technology, and program evaluation was primarily intended to serve State and 

local governments rather than the Federal 

Government. The capacities developed 

in criminal justice systems through the 

science of DNA have stimulated great 

debate not only in the laboratories but 

also among police, courts, trainers, law 

enforcement technical assistance personnel, and taxpayers. 

Director Hart said that information on the 

public benefits reaped from use of DNA evidence has not been well captured. From the perspective of a police chief’s 

investment, she asked, is the right information being made available? How much 

safer is the public because of the use of 

DNA evidence? Recently, the U.S. 

Attorney General committed significant 

funding for DNA research; this is evidence 

of the administration’s commitment, but 

research needs to determine whether 

technologies are being used to their maximum potential. Are the hard questions 

(e.g., those currently concerning use of 

fingerprints and other trace evidence) 

being addressed clearly, in a way that will 

benefit the courts and justice system? 

Keynote Address: DNA and 

Genetics 

Ming W. Chin, Associate Judge, California 

Supreme Court, San Francisco, noted that 

science and the law use different languages and have different objectives. In 

48 
SCIENCE AND THE LAW 

science, an error and a mistake are not the 

same thing. Scientists must include analyses of errors in their writeups of an experiment, but anyone may make mistakes and 

then simply clean up and try again. In law, 

an error (“mistake”) may mean overturning 

a decision, with large implications. Science 

is aiming at truth; the law is aiming at justice. Science can allow perpetual revision 

because it is not subject to time limits, 

while the legal world prefers a decision to 

be final and quick. However, much intersection and conversation occur between 

the fields. Both disciplines seek to arrive 

at rational decisions and to avoid the influence of self-interest. 

DNA evidence already plays an important 

role in criminal cases. Approximately 100 

death row inmates have been exonerated 

on the basis of DNA testing. More contro­ versial is the discussion of how, why, 

when, and for whom the DNA databases 

need to be maintained. States have 

approved these databases, but they are 

not uniform: Some States require DNA 

testing at the point of arrest, some on 

indictment, some for felons only, and 

some for sex offenses only. 

Genetics may be expected to have more 

influence on the law as research continues. Scientists have now developed about 

900 screening tests for genetically caused 

diseases. Great benefits and great problems must be considered in this scenario. Privacy loss and classification of people 

according to their DNA could lead to grave 

ethical risks. Fair employment practice, 

reproductive technology, and life itself may 

be challenged by these changes. 

Among Fortune 500 companies, 84 have 

admitted to using medical records to 

make hiring, firing, and promotional decisions. Insurance companies already use 

information for coverage decisions from 

the 900 available genetic tests, if they are 

able to find such results. On reproductive 

issues, California has declared that stem 

cell research offers great promise; in Washington, discussion has gone in exactly the opposite direction. 

We must have open minds to meet challenge and change, noted Judge Chin, so 

that conversations about genetics offer 

more understanding to justice system participants as they try to “catch up with the 

science.” We will be dealing with these 

conflicts for years. History teaches that 

scientific progress is inevitable and unrelenting. The more we prepare each other 

and discuss these issues, he noted, the 

more able we will be to find reasonable 

solutions. 

Annual Reports on 

Science and the Law 

Moderator Chief Justice Shirley S. 

Abrahamson, Wisconsin Supreme Court, 

noted that the theme of this conference is 

communication. Scientists, lawyers, 

judges, and other nonscientists must be 

able to understand each other. Many decisions made by legislators, administrators, 

and judges affect science and are influenced by science in turn. Laypeople must 

be able to make decisions from an educated standpoint. Post-Daubert: Is the Sky Really Falling? 

Donald Kennedy, editor-in-chief, Science 

magazine, American Association for the 

Advancement of Science, said there are 

many forms of science in addition to 

Daubert’s hypothetical view. Dr. Kennedy 

discussed the boundaries of what most 

people call science and the legal system’s 

treatment of clinical experience and scientific research in testimony. The use of DNA evidence in forensics has cast a strict scientific context on other kinds of trace evidence and extended the territory across 

which lawyers and scientists must communicate effectively. 

49 
SPECIAL REPORT / MAY 04 The nature of science fosters rapid change, but law works on precedent, 

requires more time, and has to try to 

resolve disparities. The Supreme Court has 

supported a number of evidentiary standards, including Frye, Daubert, and peer 

review. Dr. Kennedy urged that the courts 

refrain from placing too strong an emphasis on peer review. Also, he did not consider court-appointed experts to be good 

substitutes for experts brought by the parties (with full notifications and under 

judges’ discretion). Regarding litigation-sponsored science, Dr. Kennedy said that the current confusion 

will probably give way to a greater quantity 

of needed research that will lead to a disposition of issues that now create conflict. 

It would be unwise, he thought, to discourage incentives to use science. “We 

ought to have more research, not less,” he 

noted, “and such research should not be 

disqualified merely because it is proffered 

in litigation, if it passes other tests.” 

Recent Issues in the Courts 

David Faigman, Professor of Law, 

Hastings College of Law, University of 

California, gave an overview of recent 

issues that have created something like 

a “scientific revolution” in the courts. Procedural and substantive questions have 

been related to changes and increased 

rigor in technical fields that affect the testimony of police officers, clinical medical 

testimony, and other testimony. Courts 

have been experiencing changed powers 

of review and more use of court-appointed experts. The Kumho Tire7 case brought attention to 

the rigor in a variety of technical fields and 

their methodologies. For example, handwriting evidence and fingerprints have 

been receiving increasing challenges in 

the courts, and such areas as firearms 

identification methods and police field 

sobriety tests have been examined more 

closely. Engineering procedures have 

been rejected especially often with 

requests for explanations as to why 

alternative causes should be excluded. 

How should submissions be tested? What 

qualifications are needed in which context? Some theories, in psychology for example, are accepted therapeutically, 

but not in the court for forensic purposes. 

Typically, police or Federal law enforcement personnel are not asked to explain 

the basis of their experience when they 

testify about illegal drug trade or organized 

crime, but a handwriting expert’s testimony may be accepted in one jurisdiction and 

thrown out of a court in a nearby jurisdiction. More and more, Professor Faigman 

said, the appellate courts are being asked 

to “smooth out differences” and resolve 

such inconsistencies. 

Open Discussion 

During open discussion, the group considered statistical methods and how standard 

samples are created. Scientific validity and validity in a legal argument mean different 

things. Judge Abrahamson noted that 

some observers say scientists dislike 

cross-examination, and courts and juries 

are unable to deal with scientific evidence; 

therefore, special courts should be 

arranged. She asked the audience how 

many agreed with this view; a large majority of those attending the session favored 

the current adversarial system. Professor Faigman added that, in his view, science works better in the courtroom with more 

independent neutral experts and greater 

judicial control. The decision to admit evidence is a policy choice and has to be 

seen in the context of what practically 

may be tested and what is at stake (life or 

liberty?). “Daubert,” he said, “if it did nothing else, put the fear of God (gatekeeping 

judges) into the professional communities.” 

50 
SCIENCE AND THE LAW 

Scientific and Legal Tutorials 

(formerly “Science 101” and 

“Law 101”) 

Judge Ron S. Reinstein, Superior Court 

of Arizona, moderated this group of presentations. He said that many are uncom­ fortable with “unholy” partnerships 

among scientists, lawyers, and judges. 

Often people do not use helpful communication skills that are readily available. 

“Preparation is so important,” Judge Reinstein said. “Use of an independent 

scientist to conduct a short tutorial can 

assist in a complex case.” 

Expert Evidence: Basic Rules and 

Contemporary Controversies Jennifer Mnookin, Associate Professor, 

University of Virginia Law School, spoke 

about the meaning of Daubert and Kumho 

in relation to fingerprinting, handwriting, 

and trace evidence analysis. Trial judges 

have been given a greater obligation to 

see that scientific evidence is relevant and 

reliable. Evidentiary reliability is connected 

to concepts of “valid science.” The Daubert criteria have been used 

almost as a definitive checklist: testability 

or falsifiability, existence of standards, 

known or potential error rates, and rele­ vant peer review or publications. Under 

Frye, courts ask, is there general acceptance in the relevant technical community? The cases have invited courts to be less 

deferential to scientists solely on the basis 

of credentials and have pointed out the fairly large discretion judges could use to 

look at the science itself and to consider 

its validity. Since these cases, use of pretrial hearings and hurdles for admissibility 

in some areas have increased. The decisions have also brought more questions 

of causation into the civil trial context and 

reduced “junk science,” allowing courts 

to throw out weak cases at the summary 

judgment stage. The disadvantage for 

judges and other participants in the judicial 

process has been a lack of consistency 

among different courts and jurisdictions. Throwing out the right cases can protect 

the system from long expensive trials and 

troubling outcomes, but conflicts of experts have been a broad concern. Additionally, many forensic sciences have 

not emerged from the university-based 

research tradition where controlled experiments were performed. Epistemological 

issues have arisen: What should count in 

the court as expert knowledge? Questions 

increasingly arise in relation to handwriting 

analysis, psychiatric evaluations, clinical 

medical tests, and eyewitness evidence. 

In the past year, about 40 court challenges 

have been raised with regard to fingerprinting evidence. Some courts have even 

begun to exclude handwriting evidence 

automatically. 

Investigating, Evaluating, and 

Preparing Experts 

Carol Henderson, Professor of Law, Nova 

Southeastern University, spoke about the 

importance of avoiding the “inexpert witness.” A preliminary question must be 

considered: How do you know that the 

witness is who he says he is? Recently, 

the American Bar Association Journal has 

covered quite a few cases of misbehavior 

by expert witnesses, arousing increased 

scrutiny and accusations of fraud, negligence, or even criminal malfeasance. Of 

the 4,600 hair and fiber cases that Oklahoma City police chemist Joyce Gilchrist 

worked on, 23 were death penalty cases, 

which stimulated strong public criticism. Problems with forensic evidence have 

also occurred in other countries. In the 

United Kingdom, for example, a government inquiry has usually been held after 

the problem is found to try to fix it and 

neutralize its effects. Judges are becoming more mistrusting 

toward both the “expert witness” and 

51 
SPECIAL REPORT / MAY 04 

“peer review” as standards, noted Professor Henderson. Many more hearings are being held on expert witness evidence and such evidence is being 

excluded more frequently. Surveys of 

jurors confirm a similar trend among juries. 

In a 1998 survey, 50 percent of jurors 

believed that expert witnesses say only 

what they are paid to say. More disturbing, 

75 percent said they would cast aside a 

judge’s instructions about the law concerning expert witness testimony to hand 

in a verdict that they felt was right. Some 

kinds of evidence, notably probability evidence in DNA matters, are given less weight than they received previously due 

to jurors’ concerns regarding laboratory 

errors. Professor Henderson described the per­ fect expert witness as one with good credentials, no apparent bias, a pleasant 

personality, a presentation that is not overly long or complicated, and effective visual 

aids. American cultural aspects (pertaining 

to “Generation X” for example) have 

affected the courtroom. Particular obstacles to juror understanding include use of 

jargon, lack of visual aids, and juror preconceptions based on TV influences (such 

as “CSI Miami”), which give jurors the 

idea that they already know how forensic examination should be conducted. Recent 

studies indicate that the average attention 

span of Americans is 1.5 minutes. To be 

effective, expert witnesses (and attorneys 

and judges) must make a quick, effective 

impression on the jurors. Surveys have 

demonstrated that jurors evaluate witness 

credibility based on verbal skills, vocal 

skills, and appearance and body language. The latter carry the greatest weight with 

jurors. Professor Henderson discussed the concept of “expert shopping,” saying that it 

makes sense to check available databases, 

some of which are online, to investigate experts’ backgrounds. In one recent 

study, one in three people had falsified 

credentials or at least altered them in 

some way. Too many organizations now 

offer diplomas for sale or “checkbook credentials” that say nothing about real skills. 

She also recommended that attorneys check available transcript database resources to review the expert’s previous 

testimony. In Canada, Australia, and the 

United Kingdom, royal commissions also 

have begun to study problems relating to 

questioned evidence. 

A recent Federal Judicial Center study indicated that judges are more effective gate­ keepers in civil cases than in criminal 

cases. Attorneys have to prepare an expert for trial and meet with the expert. As she 

recommended pretrial meetings with an expert, Professor Henderson noted that expert witnesses often say they were 

called at the last minute and that the 

lawyer never met with them or reviewed 

their report until they were walking to the 

courtroom. If time allows, attorneys 

should conduct a mock cross-examination 

and bring up points likely to be raised. Tools to find the needed expertise and 

good preparation are the keys to successful expert testimony. Professor Henderson 

described a new online resource under 

development that pulls together law, science, and technology information for such 

areas as fingerprints and digital image 

enhancement. 

Toxic Torts 

Bernard Goldstein, Dean, Graduate 

School of Public Health, University of 

Pittsburgh, examined discomfort among 

scientists involved in the legal process. The legal approach is one-sided and adversarial by nature, while scientists experience ethical doubts about supporting only 

one side of an issue. Scientists also dislike 

being alone in their opinions and look to 

other scientists for consensus and credibility. He said that attorneys should be sure 

that scientists understand the rules under 

which they are “playing” in the courtroom. 

52 
SCIENCE AND THE LAW 

For example, the “truth” is only what has 

been specifically requested and what the 

judge will permit in the courtroom. Political 

and legal systems have difficulty with 

ambiguous, uncertain, or complex circumstances. Some key areas in defining an 

expert witness include educational background, work experience, publication 

record, professional memberships or fellowships, board certification, and service 

on national and international advisory 

committees. 

Causality in toxic tort cases may be generic (e.g., Can this chemical cause the 

effect?), or specific (e.g., Was this exposure more likely than not to cause the 

effect?). Dr. Goldstein said “dose makes 

the poison,” among humans as with other 

animals. Chemicals have specific effects 

in specific quantities, and scientists legitimately differ on how they rate the effects. 

Testifying in court, they take the weight of 

evidence and base their decision on a continuum of evidence. 

Criteria for judgment about health risks 

from possible exposure to toxic substances include strength of exposure, consistency, specificity, temporality, dose 

response, and biological plausibility. Risk 

assessment is increasingly used in government, regulatory organizations, and 

toxic tort cases. In toxic tort lawsuits, for 

example, claims may try to extrapolate 

from a dose that is known to cause 

leukemia to a dose to which the plaintiff 

knows he or she was exposed. Extrapolation techniques, time-dependent relationships, and possible cumulative risks 

are considered because society asks to be 

protected against low-level health risks. 

Cancer-causing chemicals (which might 

be threatening only in a high dosage) are 

treated differently than dangerous materials that accumulate and stay in the body, 

such as mercury. 

Juries have trouble understanding that statistical laboratory norms differ from clinical 

norms. To “get into court” with a postDaubert toxic tort case, support must exist 

for an inference of causation. In some 

courts, this requires a relative risk of 2.0 or 

greater in an epidemiology study. That is, 

it must be at least “as likely as not” that 

the cause of injury was what the plaintiff 

alleges. Shortcomings for establishing an 

odds ratio in occupational epidemiology 

cases include the healthy worker effect, 

inadequate exposure data, dilution of a 

high-risk group, and appropriateness of 

the time period. The “golden criterion” 

for scientific acceptability is replicability. 

Closing Remarks 

Lisa Forman, Director, Investigative and 

Forensic Sciences Division, Office of 

Science and Technology, National Institute 

of Justice, spoke about practitioners’ 

search, in both law and science, for facts 

and assumptions. The law wants “truth 

without ambiguity,” while science practitioners often see ambiguity (strengths and 

limitations of data) as truth itself. Appropriate control groups in tests, use of commercially prepared DNA as “molecular 

rulers,” and detailed protocols can validate 

methodology to the court. 

53 

Friday, October 4 

Counterterrorism: Plenary 

Panel 

Parney Albright, Senior Director for 

Research and Development, Office of 

Homeland Security, Washington, D.C., 

and Shana Dale, Chief of Staff and 

General Counsel, Office of Science and 

Technology Policy, Executive Office of the 

President, discussed how science fits into 

organizational efforts for homeland security and the effects these policies have for 

the scientific community. In the United 

States, science and technology skills represent an area of asymmetric advantage. 

The Office of Homeland Security is seeking coordination of companies, institutes, 

universities, government labs, and more 

to consolidate fragmented efforts for 

greater security. “Enhance the commonplace,” using a system perspective, will 

form a theme. Dr. Albright’s agency recognizes that it is difficult to sustain security 

efforts across the country if these efforts 

do not also enhance people’s everyday 

activities. 

According to the proposal before Congress, 

U.S. Department of Energy national laboratories, other Federal laboratories, universities, and the private sector will become 

part of a national research and development enterprise focused on homeland 

security issues that will be organized 

around portfolios relating to many kinds 

of research overseen by the Office of 

Homeland Security. People will interact on 

key research topics in chemistry, physics, 

life sciences, engineering, environmental 

science, social/behavioral sciences, space, 

and telecommunications. Scientists will 

pursue enduring core research and development activities and maintain relationships to port authorities, borders, and 

security agencies important to the Nation. 

Biometrically measured travel documents 

are planned as part of a new entry-exit 

initiative affecting foreign travelers. 

Biometrics will be taken as part of the 

visa application process, and applicant 

information will be checked against various 

“watch list” databases. The legitimate 

flow of traffic through borders and tourism 

will be affected as little as possible. A 

timely, quick way to check people at borders is planned. 

Ms. Dale spoke about heightened awareness of vulnerability to terrorists. Privacy 

rights have to be balanced against efforts 

to protect the Nation. In cases of students 

and visiting scholars, when sensitive 

knowledge could threaten the United 

States, the administration is implementing 

enhanced case-by-case review. Research 

efforts in human health and the agricultural 

sector (such as virus sequencing for animals and people) will be converging. The 

National Institutes of Health (NIH) and the 

Centers for Disease Control and Prevention (CDC) are developing new diagnostics 

and vaccines relating to human, animal, 

and plant pathogens. “Select agent” registration for about 60 substances or agents 

is in development, with corresponding laboratory security for dangerous microbial 

and biological materials and sequenced 

reference strains for each required 

55 
SPECIAL REPORT / MAY 04 

microbe. Appropriate available information for research and education as well as 

enforcement of proper use and transport 

methods for the lists of fungi, viruses, 

etc., make up part of this program. 

Considerable cooperation of State and 

local authorities is needed, noted Dr. 

Albright. Institutions and information struc­ tures must be designed to coordinate at 

every level. The fight against terrorist 

attacks actually takes place among State 

and local responders, who will be 

responding with new equipment and 

methods. Audience discussion introduced 

the need for greater support for State 

crime laboratories and their training. 

When Is Evidence 

Considered Manipulated? 

A Close Look at Digital 

Evidence: Plenary Panel 

Moderator Susan M. Ballou, Program 

Manager, Forensic Science Projects, 

Office of Law Enforcement Standards, 

National Institute of Standards and 

Technology, noted there has been a growing discipline connected to digital records 

and procedures for determining when 

images have been “tainted” for evidence 

purposes. John A. Boesman, Detective, Computer Forensic Unit, Prince George’s County Police Department, Maryland, spoke about 

requirements for first responders when 

dealing with digital evidence and what would be a “good seizure” of a computer 

involved in a crime. The first responder 

avoids letting the suspect or “bad guy” 

shut down the computer because evidence may be eliminated in that process. Wrong shutdown methods (or a bad floppy drive) may cause alteration of many 

files. The officer should then survey the 

scene for other media and preserve the 

integrity of the evidence until the time of 

seizure. To obtain a baseline for the laboratory, the evidence computer’s hard drive is 

“hashed” (i.e., a digital “fingerprint” of the 

hard drive is made to show that there has 

been no alteration since the time of 

seizure). The hashing makes a bit-stream 

image of the hard drive, revealing many 

sections of the drive where data and fragments are stored over which the user has 

no control. The police forensic unit then 

duplicates the evidence drive onto a clean 

second hard drive, allowing examiners to work from the copy for most procedures 

and touching the original as little as possible. 

Occasionally, the evidence computer has 

been unavoidably altered between seizure 

and presentation at court. The law en­ forcement computer analyst then has to 

be able to testify in detail about which 

computer files were altered, using a 

knowledge of the Windows environment 

or other platforms. 

Detecting Manipulation Artifacts 

in Digital Imagery 

Russell H. Rosenthal, Special Agent and 

Certified Forensic Examiner, Computer 

Analysis Response Team, Washington 

Field Office, Federal Bureau of Investigation (FBI), and Thomas Musheno, Forensic Examiner, Forensic Audio, Video, 

and Image Analysis Unit, Investigative 

Technologies Division, FBI, discussed 

recent work with computer evidence. A 

computer may be a “victim” (e.g., robbed 

of data, hacked), an instrument of crime 

(e.g., used to prepare a ransom note), or evidence in some other association (e.g., 

used to store data that provide geographic 

or time evidence). Computer evidence 

should be regarded as “latent” evidence, 

which is easily altered and requires special 

precautions (both tools and training) for its 

preservation. 

Special Agent Rosenthal said that nearly 

every kind of case, from bank fraud to 

terrorism, has some connection to digital 

56 
SCIENCE AND THE LAW 

evidence now, due to the prevalence of 

computer communications and record- keeping. Until recently, only a few special 

investigators were qualified for computer 

analysis in forensic investigations, and little formal training was available for investigators who deal with computer evidence. The FBI’s certified Computer Analysis Response Team (CART) agents receive 

training in the following: 

■	

Personal computer repair and troubleshooting. 

■ Net+ (Internet aspects). 

■	 Data recovery and analysis (West Virginia Crime Center). 

■	

Boot camp (FBI-specific procedures, 

with moot court presentations). 

These agents are required to recertify 

annually and receive mentoring and onthe-job training in their specialties. They 

can use and read data from various media. 

To preserve computer drive evidence, 

CART agents will hash the drive by per­ forming a math function that images the 

data stream. This process creates a 

“thumbprint” of the evidence drive that 

can be used in court to show that no tampering has occurred. FBI agents also use 

software called ILook, developed in the 

United Kingdom and purchased by the 

Internal Revenue Service (IRS), for data 

reduction and search. The program uses 

file extensions to organize files and folders. 

Mr. Musheno presented information on 

detecting image manipulation. Images that 

show scars, moles, tattoos, or other characteristic marks are often used to identify 

individuals. Pictures also locate people or 

things geographically at a certain point in 

time, revealing significant connections. 

Skillful image manipulation is very difficult 

to detect. The examiner of digital evidence 

tries to find bad pixels or other metadata 

that indicate manipulation. “Artifacts” 

(loss of pixel data caused by normal file 

compression in the communication 

process) create one of the biggest problems in distinguishing image manipulation 

from normal inherent anomalies. Camera 

identification offers another way to compare objects and locations. Irregular frame 

edges or dirty marks left from the roller 

are examples of particular camera patterns. The technician also watches for 

anomalies like wrong grain patterns in the 

film, incorrect shadowing, inconsistencies 

in size of relative objects, inconsistent 

degree of focus, or blurred edges. 

Agents working with child virtual image 

pornography can search a database of 

images from known cases that was established during the 1970s and 1980s, when child pornography was legal in some parts 

of Europe. In some recent pornography 

cases, defense counsel claimed that child 

pornography figures were not real children 

but “virtual persons” and that there was 

no actual victim. Experts in computer 

graphics have said it is impossible to create “perfect virtual children,” even with 

still images, much less moving ones. To 

create the animated figures for “Final Fantasy,” a computer game, the file cost 

$150 million and consisted of 140,000 

frames produced with custom-designed 

central processing units. Still, it was necessary for the filmmakers to use human 

models for the hands, face, and hair. 

Stacey A. Levine, Computer and Telecommunications Coordinator, Organized 

Crime Strike Force, U.S. Attorney’s Office, 

District of New Jersey, discussed the 

process of authenticating digital evidence 

during a trial. Prosecutors are seeing computer evidence in all kinds of cases, from child pornography to narcotics, kidnapping, 

and white-collar fraud. When agents are 

unable to find those who actually witnessed criminal activity, chatroom and 

e-mail files (although they are often anonymous) may authenticate a connection to a 

57 
SPECIAL REPORT / MAY 04 

suspect by means of circumstantial 

evidence. 

One common defense is to seek exclusion of computer evidence as “hearsay.” 

Generally, the court will admit an exception to this rule if the computer evidence 

is generated as a result of activities that 

are “relied on in the ordinary course of 

business,” such as telephone toll records 

or bank account withdrawal records. 

Records that have been admitted under 

this exception to the hearsay rule include 

login records, dialup access time, addresses associated with Internet accounts, and 

file transfer records. Computer evidence 

must be authentic and must originate from 

reliable software (that is, the program that 

created the records has to be trustworthy 

and not prone to error). 

Jury Understanding of 

Statistics: Plenary Panel 

Moderator Joe S. Cecil, Project Director, 

Division of Research, Federal Judicial 

Center, Washington, D.C., noted that 

there has been a rich debate concerning 

limits on the understanding of juries, especially when expert witness evidence is 

very complex. 

Jury Talk About Experts During 

Jury Deliberations 

Shari Seidman Diamond, Howard J. 

Trienens Professor of Law and Professor 

of Psychology, Northwestern University 

Law School, spoke about an Arizona study 

she has been conducting with her colleagues Neil Vidmar and Mary Rose, in 

which juror deliberations were videotaped 

in 50 civil cases. The trials that were 

videotaped reflected the general makeup 

of most State civil court dockets: Half of 

the trials involved motor vehicle torts, a 

third involved other torts, and the remainder were medical malpractice and contract 

cases. Awards varied from $0 to $2.8 million. More than 80 percent of the cases 

included at least one expert witness, and 

more than half involved opposing experts 

testifying on the same issue. Jurors were 

less interested in damage experts and 

more attentive to aspects of a decision 

that influenced a verdict or sentence. 

Claims are often made that jurors are overawed by or dismissive of expert testimony. The jury deliberations in cases that 

were videotaped provided no support for 

such claims. Jurors discussed the experts 

frequently. Their discussion focused primarily on the content and plausibility of 

the expert testimony and the witnesses’ 

apparent expertise and trustworthiness. 

Contrary to some expectations, jurors 

generally did not talk about the experts’ 

appearance or clothing. They discussed 

the clarity of the presentations and evaluated the experts’ credentials and relevant 

experience. In some cases, they commented on the amount that the expert was 

paid and offered negative comments about 

“hired guns.” Jurors also responded negatively to what they perceived as unnecessary obfuscation (e.g., “Witnesses should 

speak English”), and they were critical of 

presentations that were too repetitious. 

Jurors in Arizona are permitted to submit 

questions to witnesses through the judge. 

The judge first determines whether the 

question is legally permissible. Jurors submitted questions to nearly half of the 

experts. Their questions revealed substantial sophistication. For example, jurors 

asked the meaning of “reasonable psychological probability” in connection with 

a diagnosis of posttraumatic stress disorder. In response to engineering testimony 

that estimated the speed of a moving 

vehicle at the time of an auto accident, a 

juror asked: “What is the error in your 10 

mph estimate? Please give us a percentage or plus or minus number.” The opportunity to submit questions, like the 

deliberations, provides evidence that the 

58 
SCIENCE AND THE LAW 

jurors were engaged in serious efforts 

to understand and evaluate the expert 

testimony. 

Statistical Evidence Requires 

Translation (or Exorcism?) 

David A. Freedman, Professor of Statistics, University of California, Berkeley, 

discussed statistics in civil litigation and 

problems jurors have in understanding 

statistical evidence. He illustrated these 

problems using test results from undergraduate statistics courses at the University of California, where students typically have some mathematical preparation and receive 15 weeks of organized 

instruction. Jurors are unlikely to do better 

with the concepts than these students. 

One important topic is study design, 

which generally determines the reliability 

of conclusions that may be drawn from 

the data. In an experiment, the investigator chooses which subjects receive treatment, for example; the remaining subjects 

are controls. Responses of the treatment 

group and the control group can be compared to determine the effect of treatment. Often social circumstances do not 

allow experiments to be done, and obser­ vational studies must be used instead. In 

an observational study, the subjects themselves select the treatment or control 

conditions. The chief problem with observational studies is confounding (i.e., the treatment and 

control groups differ in some important 

way besides treatment). In that case, 

association does not necessarily imply 

causation. For example, an association exists between smoking and cirrhosis. 

Smokers have a higher rate of cirrhosis 

than nonsmokers, but smoking is not the 

cause. Alcohol consumption is the con­ founding variable: Smokers drink more on 

average than nonsmokers, and alcohol 

damages the liver. Statisticians recommend assigning subjects to treatment or 

control groups using a well-defined random mechanism rather than the judgment 

of the investigators, and this too is a difficult idea for students. 

Only about half the students understood 

the bias that would be caused by failure 

of randomization in a Canadian study of 

mammography (screening for breast cancer by x-rays). The idea is that screening 

leads to earlier detection and more effective treatment. In this study, death rates 

from breast cancer were compared in the 

treatment group—invitation to screening— 

and the control group. Apparently, nurses 

assigned high-risk women to the treatment group. This would bias the study 

against screening, but students think the 

bias goes the other way: Putting high-risk 

women into the treatment group allows 

screening to demonstrate its merits. The 

problem is that doctors cannot determine 

which women would have lived had they 

been screened—that is why experiments 

are needed in the first place. 

Another great mystery is hypothesis testing. Significance levels measure the likelihood of the data given the null hypothesis, 

not the likelihood of the null hypothesis 

given the data. Mixing up these two likelihoods is the “transposition fallacy,” called 

the “prosecutor’s fallacy” in the context 

of DNA identification. At best, the odds 

ratio answers the question, “If the defendant is innocent, what are the odds 

against getting a match?” The odds ratios 

cannot answer the real question, “What 

are the odds against the defendant being 

innocent?” 

Statistics Jurors Cannot Do 

Without 

Lawrence M. Solan, Director, Center for 

the Study of Law, Language, and Cognition, Brooklyn Law School, spoke about 

poorly understood probabilistic information 

in courts. Not only judges but also people 

in general misunderstand base rates. 

59 
SPECIAL REPORT / MAY 04 People tend to make decisions according 

to their own experience, regardless of 

research. For example, in a case involving 

handwriting, the author of a threat and the 

source of questioned handwriting made 

similar use of spaces and similar punctuation mistakes and spelling errors. However, no information was presented to 

the court about the general frequency of 

these characteristics in the New Jersey 

population. No baseline showed, for example, how many people usually make 

the same kind of punctuation errors. Jurors typically do not understand how to 

discount evidence based on a statistical 

base rate. Sometimes, a judge will allow 

an expert to point out similarities and dif­ ferences without expressing opinions 

about the evidence. The legal system 

must struggle with the concept because 

everyday reasoning does not “ask the 

baseline questions.” Psychiatric evidence 

is another example where baseline statistical information is critical both for adversaries in the court and for the jury. 

Bioengineering and probabilistic analyses 

are difficult material even for judges, who 

at least have recourse to the opposing 

attorneys to clarify issues. Since the 1970s, Dr. Solan noted, jury trials have 

declined in number, an effect probably 

related at least in part to the educational challenge posed by modern science 

issues in the courtroom. 

Call-for-Papers Presentations 

The Role of Meta-Analysis in the 

Legal System 

Jeremy A. Blumenthal, Psychology 

Department, Harvard University, discussed 

the common social science methodology 

of meta-analysis, which pools and statistically analyzes the results of all existing 

empirical studies in a research area. More 

than a simple recalculation of multiple 

studies’ data, meta-analysis can provide 

courts and legislators with the most current and thorough summary of the research through quantitative rather than 

narrative synthesis. Researchers or expert 

witnesses can weight each study for 

methodological quality, internal validity, 

sample size, and other factors and give a 

better indication of the state of research. 

By using the whole body of available 

research on a topic, meta-analysis increases statistical power and addresses methodological flaws in individual studies. 

Courts and policymakers receive more 

background for a decision than can be provided by discussions of single studies or 

citations to law review articles. 

By collecting current information, balancing presentations with opposing views, 

and addressing any limitations on the existing research, meta-analysis discovers 

the general state of knowledge in a research area. It highlights practical implications for courts and legislators, and it can 

empirically address assumptions made in 

the legal system. The analysis uncovers 

moderator variables and shows when 

empirical evidence “can be more than the 

sum of its parts.” Voodoo Science by Default 

Peter R. De Forest, Professor of Criminalistics, John Jay College of Criminal Justice, New York, discussed crime 

scenes as examples of “scientific problems” and said scientific expertise works 

to reconstruct, interpret, and (perhaps 

most important) integrate information at a 

crime scene. Forensic science programs 

have, in many areas, developed without formal standards, relying on laboratories’ 

quality assurance and on-the-job training. 

He noted that not only scientists use scientific methods; however, some organizations in the last decade have trained 

people to be “crime scene experts” 

without enough qualification to permit 

interpretation of evidence. An example 

could be some people trained through the 

60 
SCIENCE AND THE LAW 

many State-run fire academies. To understand fire scene evidence properly, a person needs a thorough background in fire 

dynamics and chemistry. Unfortunately, 

sometimes people who lack this background are hired as “experts” simply 

because they are persuasive speakers in 

the courtroom. 

Physical evidence at a crime scene records human interactions and different 

relations of energy and matter that “encode” information about the crime. Asking the right questions is a key element. Many times, people who do a routine job at a crime scene, just following 

protocols, lack the scientific knowledge 

needed to make specific hypotheses and 

frame the right questions. The process 

used to get the facts and information is 

the important thing, rather than certain 

accoutrements of a scientist. In court, expectations of certainty are often unrealistic. Science gives a “best answer” rather 

than a certain one, sometimes suggesting 

several interpretations that can be made 

of the available information. 

Inconsistency in Eyewitness Testimony: What Does It Really Tell Us? 

Ronald P. Fisher, Professor of Psychology, 

Florida International University, discussed 

his research on the accuracy of eyewitness testimony and the claim that eyewitness testimony should be discredited 

because of inconsistent witness memory 

of event components. This strategy 

assumes that correct memory of particular 

components of the event will predict accurate identification (of a suspect, for example). Attorneys typically believe that 

witnesses who give inaccurate information cannot be relied on to make correct 

identifications. A crime event, however, is 

complex and recorded in a “holistic” way. 

In Dr. Fisher’s study, a simulated crime 

event was witnessed, and witnesses were 

given tests to gather their knowledge of 

specific characteristics of the event. In the 

first set of results (as expected), statements given more consistently did predict 

more accuracy. The study then asked 

whether inconsistency in three or four 

statements would predict global inaccuracy. Here, the correlation was weak. 

Inconsistent witnesses were not much 

less accurate than consistent witnesses. 

Some other dimensions, such as the witness’s motivation to lie, may be essential 

considerations or more predictive of inaccuracy. Witnesses were tested twice and 

up to 2 weeks after the simulated event. 

Conventional investigations, in contrast, 

often continue for several months or even 

more than a year after a crime. Judges who instruct jurors to use consistency as a major factor to try to assess 

whether or not a witness is accurate are, 

in some ways, encouraging a juror to 

decide based on something invalid, at 

least in terms of research tests. Inconsistency does not seem to be a very good 

predictor of accuracy in identification. The research also showed that some factors have opposite effects on consistency 

and accuracy. For example, when time 

between the event and the test was varied, a longer period led to decreased accuracy but increased consistency. The 

memory “solidifies” but may be less accurate. This makes it clear that two different 

concepts are measured. Also, encouraging 

guesses clearly increases inaccuracy. But 

inconsistency in the witness’s memory 

alone should not discredit all testimony. 

Jurors’ Comprehension of 

Contested DNA Evidence: 

A Case Study 

William C. Thompson, Professor, Department of Criminology, Law, and Society, 

University of California, Irvine, described a 

southern California murder trial that turned 

on conflicting interpretations of DNA 

61 
SPECIAL REPORT / MAY 04 

evidence. Dr. Thompson had been cocounsel for one of two brothers accused of 

killing a convenience store clerk during a 

robbery. Two expert witnesses interpreted 

the DNA evidence in opposing ways, and 

the jury was asked to decide the case 

based on their testimony. Posttrial interviews revealed how the jurors had understood (and misunderstood) the disputed 

scientific evidence. 

A surveillance videotape showed the clerk 

grapple with one of the robbers before the 

other robber shot him. The shooter wore 

a white cap, which fell off when he departed. Tests revealed foreign DNA under the 

victim’s fingernails that matched neither 

defendant in the case. The defense 

argued this foreign DNA was from one of 

the robbers; the prosecution contended it 

was from an unknown person unrelated to 

the crime. DNA tests also found a mixture 

of DNA (profiles from more than one person) on the white cap. One defendant was 

“excluded” as a possible contributor to 

this mixture. The other defendant was 

also excluded if there were two contributors to the DNA on the hat but was included as a possible contributor if there were 

three or more contributors to the DNA on 

the hat. The prosecution contended that 

there were three contributors to the DNA 

on the hat, and hence that the DNA evidence incriminated the defendant; the 

defense contended there were two contributors and hence that the DNA exonerated 

him. 

At issue was the interpretation of electropherograms produced by the ABI 310 

Genetic Analyzer (currently used by about 

85 percent of crime laboratories). The 

prosecution expert argued that peakheight disparities in the electropherograms indicated the presence of three 

contributors. The defense expert contended that the peak height disparities were 

consistent with 2 contributors and argued 

that the theory of 3 contributors was 

implausible given the small number of alleles (3 or 4) detected at each of 13 loci. 

The defense expert presented likelihood 

ratios purporting to show that the observed results were 250 times more likely 

under the theory of 2 contributors than 3 

contributors. The defense expert also challenged the government’s random-match 

probabilities. The prosecution sought to 

discredit the defense expert because his 

experience primarily involved animal rather 

than human DNA. The defense attacked 

the prosecution expert on grounds that he 

lacked a 4-year college degree. 

The jurors deliberated for 6 days before 

deadlocking 9 to 3 in favor of conviction. 

In posttrial interviews, jurors expressed 

anger at being asked to resolve such a 

difficult scientific issue. They were suspicious of the defense arguments because 

they had heard that DNA evidence is virtually infallible and definitive. They dismissed some defense arguments based 

on faulty assumptions. For example, they 

assumed that the foreign DNA under the 

victim’s fingernails was from hot dogs he 

was preparing before the crime (even 

though the experts had testified that the 

tests are human specific). And they mistakenly assumed that peak-heights correspond to the number of contributors, 

rather than the quantity of DNA (an 

assumption that supported the prosecution claim of three or more contributors). 

They did not remember or understand the 

defense argument about likelihood ratios. 

Most DNA cases are more clearcut, Dr. 

Thompson said, but when small and 

mixed samples are involved, there are 

often difficult interpretive issues that could 

be considered too complex for a lay jury. 

Jurors give so much credibility to DNA evidence that it is difficult for defense counsel to challenge it in cases where it is less 

than definitive. These findings argue for 

stricter admissibility standards to ensure 

that the DNA evidence that goes to the 

jury warrants the confidence jurors are 

likely to have in it. When such issues are 

62 
SCIENCE AND THE LAW 

litigated, Dr. Thompson recommended 

introducing more experts (a single one on 

each side seemed to encourage doubts in 

the jurors) and taking more time to educate jurors to the nature of technical problems that can occur. He also noted the 

importance of seating at least some jurors 

who have scientific backgrounds. Scientific evidence can contribute greatly to the 

accuracy of criminal trials but also has the 

potential to be misleading if not handled 

carefully. 

63 

Saturday, October 5 

Fingerprints—Making Sense 

of Forensic Science: Plenary 

and Roundtable 

Moderator David Faigman, Professor of 

Law, Hastings College of Law, University 

of California, San Francisco, said current 

treatment of fingerprint evidence in courts 

may form a keystone for other kinds of 

forensic science evidence, such as arson, 

firearms/toolmarks, trace evidence, handwriting, and more. 

Forensic Fingerprints 

Sandy Zabell, Professor, Department of 

Mathematics and Statistics, Northwestern 

University, spoke about the historical background of fingerprint use for identification 

of individuals. The Chinese have used fingerprinting for hundreds of years to verify 

documents, but the use of fingerprinting 

for personal identification arose in the context of mobile urban societies. A French 

police officer, Bertillon, developed a system of taking 11 different anthropomorphic measurements and photographs in 

1883 for the purpose of identifying individuals/suspects. Easily accessible records 

were kept on cards, but “uniqueness” 

was not considered an issue. A disadvantage to the system was that examiners 

needed careful training and oversight to 

take measurements correctly. Also, the 

system was calibrated for Parisians, which 

made it difficult to apply in other settings 

(for example, by the British operating in 

India during that time period). 

Other well-known identification systems 

were developed by William Herschel 

(1858); Henry Faulds (1889); Francis 

Galton (1889), who was famous for the 

first fingerprint classification system that 

used arches, loops, and whorls as marks 

of identification; and Edward Henry (1895), 

who first matched “clean sets” and 

whose classification system quickly 

became the standard. Recent questions 

about partial prints and the introduction of 

applied probability to the examination of 

fingerprint evidence have overshadowed 

the use of fingerprint identification for suspects in cases at law. 

Forensic Individualization of 

Images 

John R. Vanderkolk, Laboratory Manager, 

Fort Wayne Regional Laboratory, Indiana 

State Police, described the agency’s formal method of critical inspection, which is 

known as ACE+V: 

■	 A. Analysis determines essential details 

of the fingerprint: the surfaces involved, 

processing techniques used, and quality 

and quantity of detail in the images. 

■	 C. Comparison is made noting similarities or differences between the two 

images, recognizing that there are no 

perfect images; variations in appearance 

and distortions are noted. 

■	 E. Evaluation is the determination of the 

significance of the analysis and comparison. The standard used to determine 

agreement of detail is based on the 

65 
SPECIAL REPORT / MAY 04 

quality and quantity of the detail in the 

two images. 

■	 V. 

Verification is made: A second examiner repeats the process of ACE and 

determines whether he or she can replicate ACE and reach the same conclusion 

as the first examiner. 

Different levels of features can be observed on all friction ridge skin. Each latent 

print (image) represents a partial record of 

friction ridge skin. All images are partial. It 

is necessary to reach agreement of unique 

details in the images to determine that 

they came from the same source. At level 

one, the image is recognized as a fingerprint based on direction of ridge flow; at 

level two, it shows actual ridge path, 

length, division or bifurcation, and width; 

and at level three, it shows contour and 

texture of ridges and pore position. All levels of detail present in the images can be 

measured comparatively. The clearer the 

detail, the more power or significance that 

detail has. Mr. Vanderkolk emphasized 

the examiner’s need to understand the 

uniqueness and durability of the actual friction ridge skin or source of fingerprints. 

After that, the examiner needs to understand the relationship between quality and 

quantity of the levels of detail in the two 

images. As quality of the images increases, the requirement for quantity decreases. As quantity of the images increases, 

the requirement for quality decreases. Testing: Is It Reliable? 

William J. Tilstone, Executive Director, 

National Forensic Science Technology 

Center, Largo, Florida, said the main question to consider with reference to fingerprints and other trace evidence is whether 

the evidence is reliable. Daubert established a role for the judge in determining 

that material taken into evidence is both 

relevant and reliable. 

It is hard to explain what is scientific: Kuhn’s behavioral model describes the scientific method as a “discrete group [of 

qualified persons] following some rules 

and conducting experiments.” People 

make the mistake of confusing “scientific” with reliable. Academic degrees and 

publications are peripheral considerations; 

they do not always indicate expertise in 

scientific method and are sometimes fea­ tured too prominently. 

In the scientific method, the examiner 

seeks to find out how nature works, using 

a “test, refine, test again” cycle. Reliability 

is not the defining characteristic of science: Airplane pilots and bankers are reliable, but not necessarily scientists. The 

scientific community has definite rules 

about reliability of testing; these are well 

defined and articulated and should be 

addressed in debates about fingerprints. 

Laws of nature have emerged that withstand the test of time (for the court, this 

compares to a Frye rule test). 

Error rates become important because science is not exact. When “objective tests” 

are discussed, this means they are conducted with validly designed controls and 

documented (i.e., appropriately trained 

staff will obtain the same results within 

defined limits). Validation may also be 

made by comparison to certified reference 

materials (where available) and published 

standards from the scientific community. 

Debate on scientific evidence focuses 

more productively on ways to show adherence to standards, practitioner reliability 

testing, and development of certified reference materials. 

Appropriate Validation for 

Nonscientific Fingerprint 

Expertise 

Edward J. Imwinkelried, Professor of 

Law, University of California, Davis, said forensic fingerprint evidence should be 

admitted as technical expertise, not as a 

66 
SCIENCE AND THE LAW 

“science.” The Daubert standard recognizes the limitations of scientific enterprises. It would therefore be anomalous to 

make scientific testing the litmus test for 

the admissibility of all types of expert testimony. “If we prescribe a general ‘evidence rule’ requiring the proponent 

whenever possible to present scientific evidence,” said Professor Imwinkelried, 

“we handicap the court.” As regards questioned documents, for example, experienced document examiners have 

accurately identified sources with an error 

rate 13 times lower than that among 

laypeople. Barring questioned-document 

testimony will force the courts to rely on 

lay testimony, which is demonstrably less 

reliable. 

Although it is clear that forensic trace evidence should not be excluded from the 

court, it is much harder to figure out what 

nonscientific, technical standards should 

be used for this evidence. Professor 

Imwinkelried considered the example of 

an undercover agent’s knowledge of code words used in the illegal drug trade. Federal Rule of Evidence 702, he said, should 

not be construed in a narrow scientific 

sense but, rather, in a broader rationalist 

sense. Showing that a process produces 

an accurate result qualifies it as admissible, whether or not it is “science.” 

Even if the courts admit forensic science 

testimony, the opposing attorney can 

effectively attack the weight of the testimony by demonstrating the lack of supporting scientific research. The availability 

of that weight attack to the opponent 

helps keep forensic scientists honest and 

gives them an incentive to conduct better 

research. Currently, many evidence fields 

are “scrambling to collect data,” but some 

observers in the audience questioned 

whether, if no court requirement emerged, 

the field would go back to the pre-1993 

status quo. Imwinkelried added that to 

ensure that the jurors do not attach undue weight to nonscientific testimony, the 

judge can give the jury a cautionary instruction, advising them that the basis of 

the expert’s testimony is simply experience, not full-fledged science. Accuracy of 

the test or method’s results should be the 

most important consideration in determining the admissibility of evidence in court. The accuracy of FBI tests in Plaza8 was 

staggering. In the International Association 

of Identification certification tests, 58 percent of examiners had not made a single 

error. Their techniques accurately led to 

the inferences they claim they can make. The foundational showing was not a con­ ventional scientific demonstration, but 

case law, statute, and policy do not treat 

conventional science as the solitary criterion. The social “faith” in science is based 

on a huge body of results in society produced by scientific method. Professor 

Imwinkelried said, “In the microcosm of 

the courtroom as well, the focus should 

also be on results.” 

Why Testing, Good Testing, and 

the Results of Testing Are the Touchstones of Good Science 

and Good Judicial Gatekeeping 

Michael J. Saks, Professor of Law, 

Arizona State University, said Daubert asks 

judges to refrain from admitting evidence 

unless it is based on valid methods (i.e., 

the word of an expert alone is not sufficient). A judge should be able to see and 

evaluate serious research that empirically 

tests claims about expert fingerprint evidence. Challenges to fingerprint evidence 

have now been brought and judicial opinions have been written in about a dozen 

cases. Federal judges have concluded in 

all cases that the expert evidence was 

admissible. But if we read what the judges 

said in those opinions, we discover that 

not one of those courts actually found that 

the proponents of the expert testimony 

could satisfy the Daubert test. Instead, 

the opinions found various ways to evade 

Daubert and make sure the evidence was 

67 
SPECIAL REPORT / MAY 04 

admitted. For example, some courts just 

refused to hold a Daubert hearing, others 

reversed the burden of proof, and some 

just concluded they would admit the evidence without any explanation. All the 

courts so far have ignored the “task at 

hand” requirement. Some courts have 

relied on general acceptance, and others 

have applied the Kumho Tire decision as if 

it narrowed the ground for scrutinizing 

evidence. 

Professor Saks said he regrets that courts 

could not limit experts’ statements in 

more precise ways, rather than merely 

admitting or excluding them. Courts 

should be better able to welcome good 

science but to filter out statements that 

go beyond what has come to be known to 

be true through sound research. As more 

background research is conducted, statements in court will become tempered and 

accurate, rather than “merely believed.” 

That research is more likely to be done, 

however, if judges do the policing of 

expert evidence that is required of them 

by Daubert and Kumho Tire. 

Open Discussion 

Courts are not designed to thrash out scientific issues; the adversarial procedure 

prevents this. Too often, private industry, 

with a vested interest in selling particular 

equipment or methods, becomes involved 

in the testing issue. Professor Imwinkelreid said, however, that a lack of research 

could threaten the forensic science community’s credibility. The group discussed 

experts and evidence testing in connection with defendants who are indigent 

(85 percent). How can empirical studies 

address a lack of data in such cases? 

Judges usually cannot order general studies on better methodologies in the 

required time frames. 

Audience members brought up the lack 

of research budgets for local, public 

forensic science laboratories. Legislative 

representatives and public agencies need 

to understand that academic institutions 

will not conduct research without support. 

Similar questions have been raised concerning handwriting, footwear, firearms, 

and other pattern recognition evidence. 

Courts cannot “throw out the only available evidence” just because empirical 

studies of methods are not available. 

Funding for methods research competes 

with other administration priorities. In 

the United Kingdom, the Home Office 

destaffed an existing forensic research laboratory that published 30 studies a year to 

support the growing DNA database. In 

recent reviews of six States’ crime laboratories, research found the quality of service to be closely related to the level of 

government executive to whom the laboratory director reported. If the laboratory 

director reported to the State attorney 

general, the work tended to be well researched and documented; if, however, 

the laboratory director reported to a subordinate law enforcement official, problems 

were seen more often. Time pressure is a 

major factor as well; most laboratories 

would prefer to see money used to enable 

them to obtain speedier results for the justice process. 

Ms. Ballou mentioned that the National Institute of Standards and Technology offers 

publications on methodologies and images 

as well as a 12- to 15-year history of work 

on fingerprint evidence. Law enforcement 

would benefit from an effort to compile 

this reference material. Professor Saks 

said existing studies do not sufficiently 

address probability (i.e., the risk of coincidental matches). Assumptions about rarity 

or uniqueness are important for the scientific rigor of the comparison process. Use 

of careful (blind) protocols, as has been 

done recently for eyewitness evidence, is 

a specific step toward a more objective 

process. In casework, examiners need to 

68 
SCIENCE AND THE LAW 

receive only the information about the 

case that is necessary to perform their examination, with no extraneous information. At the Home Office in the United 

Kingdom, applications of Baysean or 

random-match software are used to evaluate some trace evidence decisions. Similar 

research methods can apply to signatures. The full meaning of “good testing procedures,” however, remains an open 

question. 

Keynote Address: Knowledge, 

Power, and the Evolving Role 

of Scientific Evidence 

Judge Gerald T. Wetherington, Vice 

President, Duke University Private Adjudication Center, and Partner, Wetherington, 

Klein & Hubbart, P.A., spoke about the 

mental struggles by juries, judges, and expert witnesses as they strive to reach 

the right decision in a complex case. He 

described an example of a murder case in 

which a coworker of the victim testified to 

hearing the defendant threaten to kill her 

when he called her at her place of employment. It was the second time he had 

called that day, and her coworkers observed that she was very upset from the 

incident of his first call. 

Florida has strict laws against listening to 

telephone conversations without consent 

of the parties, subject to particular exceptions. One exception concerns calls to 

business phone numbers related to matters of concern to the business. Judge 

Wetherington, after much thought, decided to admit the crucial evidence since 

the first call to the victim-employee had 

a large impact on her performance; the 

other employee, observing this, could 

then consider the second call to have an 

impact on the business. The State’s 

Supreme Court affirmed his decision, but 

he felt that, had he agreed to exclude the evidence, the matter would never have 

been reviewed because the defendant 

could not be placed in double jeopardy. Judge Wetherington quoted an inscription 

shown in the Miami-Dade courts: “We 

who labor here seek only the truth.” He 

noted that, as long as human beings 

(whether judges, jurors, or scientific experts) are involved in reaching a decision, there is bound to be a need to set 

aside subjective factors that may exercise 

an influence over that decision: “How will 

the decision be received professionally? Will it make me look good? Will it bring 

me more or better work? Or, will someone 

hate me for this decision?” Forensic and 

technical experts, like judges, take an oath 

to tell the truth, and, at a societal level, 

they play increasingly critical roles in the 

effort to influence the conduct of masses 

of people and to preserve social order 

while protecting individual rights. This is, 

he said, one of society’s most important 

functions. Valuation for objectivity in the search for 

truth, devised by the ancient Greeks who 

developed science, makes the “light” of expert witnesses seem determinative in 

a complex case and gives them great 

power. They are credited with perhaps 

“mysterious” knowledge beyond the common knowledge of the factfinders, so they 

must confront all factors that play a role in 

their decision, including observer bias. 

They, like the judge, must undergo internal 

scrutiny of their motives to reach a standard that is (quoting Justice Cardozo) 

“something stricter than the morals of the 

marketplace.” The expert has to ask himself or herself, “What is my duty? What or 

whom do I serve? And, am I a trustee for 

objective truth?” The only dependable protection is a commitment to principles of 

integrity regardless of adversity. 

69 
SPECIAL REPORT / MAY 04 

Case Scenario Involving Hair 

Evidence: Microscopic 

Examination—How Much 

Can Hair Tell? 

Judge André Davis, U.S. District Court, 

District of Maryland, moderated this 

scripted legal scenario on hair evidence. 

Rockne P. Harmon, Senior Deputy District 

Attorney, Alameda County, Oakland, 

California, played the role of prosecutor. 

Max M. Houck, Director, Forensic Science 

Initiative, West Virginia University, played 

the first expert witness. Barry C. Scheck, 

Professor, Benjamin N. Cardozo School 

of Law, New York, played the defense 

counsel. Terry Melton, President and 

Chief Executive Officer, Mitotyping 

Technologies, Pennsylvania, played the 

role of second expert witness. 

In the hypothetical case, the victim was 

found murdered in her own home, naked, 

on a carpeted floor. She was strangled; 

there were no indications of sexual 

assault. Neighbors heard screams at about 

2:30 a.m. A registered sex offender, J. 

Franklin, lived near the victim. Witnesses 

who were shown a photo lineup sequentially identified J. Franklin as the person 

they saw leaving the victim’s property 

near the time of the murder. Franklin 

denies knowing the victim or ever having 

been in her apartment. He has filed an 

alibi and has three witnesses. Franklin’s 

previous conviction was for sexual assault 

with choking. The judge has requested 

that the first expert witness give a neutral 

tutorial to the jury concerning hair evidence in the case. 

Defense counsel objected, for the record, 

to the lack of notes of test results given 

to the defense, to the lack of proficiency 

testing for the laboratory scientist, to the 

refusal to allow DNA testing, and to the 

lack of judicial opinion concerning rejection 

of the defense’s challenge to admissibility 

of hair evidence under the Daubert and 

Frye case standards. The expert witness 

took the stand and gave his oath. 

First Expert Witness: Trial on the 

Merits—Tutorial to Jury 

The expert witness, Mr. Houck, gave an 

overview of the hair examination processes. Anthropology, comparative biology, 

microbiology, and histology (human tissue 

study) all serve as bases for forensic hair 

evidence. Hair is significant because of 

the Locard exchange principle, which 

states that every contact leaves a trace. 

Direct or indirect transfers of hair indicate 

and connect persons and things in particular locations (crime scenes, for example). 

Transfer of hair from one person to another would be a direct transfer; transfer of 

hair to a car seat and then to another person would be indirect. Mr. Houck showed 

slides of the morphology of hair: cuticle, 

medulla, and cortex (the location of elongated cells containing pigment). Animal 

hair is very different from human hair 

through variation in pigmentation and 

banding, for example. The cuticles of animal hairs vary by species. Estimations of 

human ancestry (African, Asian, or European) from microscopic hair examinations 

are possible but are only estimations. 

Microscopic comparison is typically carried 

out only on human head or pubic hair. 

Examiners use a comparison microscope 

(two optically joined instruments with a 

split-screen view used to compare two 

samples side by side). To give a good representation, the sample must contain at 

least 25 to 50 hairs, both combed and 

plucked. Actively growing hairs look quite 

different from those that have been naturally shed. The comparison looks at the 

root, shaft, and tip in terms of all characteristics (diameters, structure, color). A 

point-by-point detailed comparison is 

made between the unknown and known 

samples. Of the samples found at the 

70 
SCIENCE AND THE LAW 

crime scene, in the instant case, six 

samples could have been from the defendant and the four hairs found on the victim’s back could not have been from the 

defendant (but were all from the same 

person). 

Defense counsel then questioned the witness about alternative hair extraction testing using mitochondrial DNA (mt-DNA). In 

9 of 80 FBI cases where there had been 

an association based on hair, mt-DNA testing resulted in an exclusion of the defendant. The witness agreed that, if DNA 

testing were done and Mr. Franklin was 

excluded, he could not be the source of 

the sample hairs. 

Examiners’ experience varies greatly: 

Some have seen thousands of samples 

and some have seen many fewer. State 

laboratories may have less time and expertise than larger commercial laboratories. The significance of an association 

between hair samples falls short of positive identification. When examiners disputed hair findings and an outside laboratory was commissioned to review the testing, 

defense counsel noted, in 50 percent of 

cases new findings and (ultimately) a conclusion to exclude the defendant resulted. 

Open Discussion [Out of Role] 

Hair evidence is not easily quantifiable or 

digitized. Length, thickness, and pigment 

patterns are hard to capture and standardize. As a result, proficiency testing for forensic hair analysis cannot be mass produced. Mr. Scheck noted that, in mt-DNA 

testing, reliability and validity can be more 

readily achieved. Tutoring a jury in the 

meaning of applicable analyses and tests 

may bring more understanding. Mr. 

Harmon noted that a prosecutor has to 

build on what is available; there may be 

obstacles to obtaining mt-DNA tests. 

Second Expert Witness: Postconviction Motion for DNA 

Analysis The second expert, Dr. Melton, described 

her background. She has published papers 

on mt-DNA population genetics, applied forensic uses of mt-DNA, and population 

histories in Southeast Asia, Taiwan, and 

Kenya. The human mt-DNA sequence has 

been known for about 19 years. Mt-DNA is 

an abundant molecule found in hair, bone, 

and other tissues (nuclear DNA is less 

abundant). The Armed Forces uses it to 

identify war dead and MIAs from Korea 

and Vietnam, and it has been used in 

anthropology to study origins and migrations of human populations. In medical 

genetics, the mitochondrion is also very 

important as the organelle that provides 

energy to the cell. A change in its mito­ chondrial DNA genes may result in a 

severe mitochondrial disorder. 

Defense counsel asked about validation 

studies for a DNA laboratory. Each laboratory must carry out validation studies for 

itself and look for limitations in its methods. Federal DNA advisory boards have 

established standards for laboratories handling DNA. Dr. Melton’s laboratory has per­ formed many hair extractions (this is 85 

percent of its business). Since 1999, she 

has participated in more than 300 cases 

involving about 1,200 samples. In 12 

admissibility hearings involving Dr. Melton, 

the courts decided to admit the mt-DNA evidence. 

Dr. Melton gave a brief tutorial on the mtDNA molecule and its analysis, including 

PCR amplification and DNA sequencing. 

She demonstrated DNA sequences that 

showed an exclusion, an inconclusive 

comparison, and a heteroplasmic position 

that would still result in a failure to exclude. Maternally related individuals will 

have the same mt-DNA sequence. Heteroplasmy, defined as the presence of more 

71 
SPECIAL REPORT / MAY 04 

than one type of mt-DNA in an individual, 

occasionally occurs and would still be 

interpreted as a failure to exclude in most 

cases. Use of microscopic comparisons 

on hair can narrow the field of samples to 

be submitted for DNA testing. Microscopy 

can make compelling evidence in combination with other things, but an investigator should not assume knowledge of a 

match based on microscopy, and mt-DNA 

testing of hairs is essential. 

Dr. Melton discussed the statistical significance of mitochondrial DNA matches. 

The FBI’s forensic database (about 4,800 

mt-DNA sequences) is used for North 

Americans. An examiner can search the 

database for a profile to estimate the frequency of a mt-DNA type, see how common or rare it is, and place a statistical 

value on it. If the type were not in the 

database at all, then 99.94 percent of 

North Americans would not be expected 

to have this mt-DNA type, with 95 percent 

confidence. 

Open Discussion [Out of Role] 

The group spoke about postconviction 

DNA cases. Mr. Scheck noted that 27 

States currently have statutes supporting 

postconviction testing. He described the 

difficulty of searching State transcripts to 

prepare an application for postconviction 

DNA testing. It may take 4 years to prepare evidence for such a case. In 75 percent of the cases, the evidence has been 

lost or destroyed, but where the evidence 

can be found, about half the time it turns 

out to be favorable. Currently, 112 postconviction DNA tests have exonerated 

people in prisons. 

Closing Remarks 

Lisa Forman, Director, Investigative and 

Forensic Sciences Division, Office of 

Science and Technology, National Institute 

of Justice, U.S. Department of Justice, 

noted that science and law share the goal 

of reaching sound conclusions based on 

what can be investigated effectively. 

Technical investigative methods are good 

complements to scientific procedure, but 

discussion too often focuses on contentions between disciplines. Fingerprints, 

digital images, eyewitness identification, 

firearms traces, and other evidence play 

critical roles in crime investigation and 

must receive research attention. Dr. 

Forman invited contact and asked participants to inform NIJ about research they 

viewed as necessary under the Daubert 

guidelines. She thanked all participants on 

behalf of Director Hart. 

Notes 

1. Brady v. Maryland, 373 U.S. 83 (1963). 

2. State v. Zain, 207 W. Va. 54, 528 S.E. 2d 748 

(1999). 

3. “Preliminary Gilchrist Reports,” Oklahoma State 

Bureau of Investigation, on work of police chemist 

Joyce Gilchrist. 

4. Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 

U.S. 579 (1993). 

5. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). 

6. Westerfield v. Superior Court of San Diego County, 

119 Cal. Retrial 588 (2002). 

7. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). 

8. United States v. Plaza, 179 F. Supp. 2d 492 (E.D. 

Pa), vacated, 188 F. Supp. 2d 549 (E.D. Pa. 2002). 

72 
About the National Institute of Justice 

NIJ is the research, development, and evaluation agency of the U.S. Department of Justice. 

The Institute provides objective, independent, evidence-based knowledge and tools to enhance 

the administration of justice and public safety. NIJ’s principal authorities are derived from the 

Omnibus Crime Control and Safe Streets Act of 1968, as amended (see 42 U.S.C. §§ 3721–3723). 

The NIJ Director is appointed by the President and confirmed by the Senate. The Director establishes the Institute’s objectives, guided by the priorities of the Office of Justice Programs, the 

U.S. Department of Justice, and the needs of the field. The Institute actively solicits the views of 

criminal justice and other professionals and researchers to inform its search for the knowledge 

and tools to guide policy and practice. 

Strategic Goals 

NIJ has seven strategic goals grouped into three categories: 

Creating relevant knowledge and tools 

1. Partner with State and local practitioners and policymakers to identify social science research 

and technology needs. 

2. Create scientific, relevant, and reliable knowledge—with a particular emphasis on terrorism, 

violent crime, drugs and crime, cost-effectiveness, and community-based efforts—to enhance 

the administration of justice and public safety. 

3. Develop affordable and effective tools and technologies to enhance the administration of 

justice and public safety. 

Dissemination 

4. Disseminate relevant knowledge and information to practitioners and policymakers in an 

understandable, timely, and concise manner. 

5. Act as an honest broker to identify the information, tools, and technologies that respond to 

the needs of stakeholders. 

Agency management 

6. Practice fairness and openness in the research and development process. 

7. Ensure professionalism, excellence, accountability, cost-effectiveness, and integrity in the 

management and conduct of NIJ activities and programs. 

Program Areas 

In addressing these strategic challenges, the Institute is involved in the following program areas: 

crime control and prevention, including policing; drugs and crime; justice systems and offender 

behavior, including corrections; violence and victimization; communications and information 

technologies; critical incident response; investigative and forensic sciences, including DNA; lessthan-lethal technologies; officer protection; education and training technologies; testing and 

standards; technology assistance to law enforcement and corrections agencies; field testing of 

promising programs; and international crime control. 

In addition to sponsoring research and development and technology assistance, NIJ evaluates 

programs, policies, and technologies. NIJ communicates its research and evaluation findings 

through conferences and print and electronic media. 

To find out more about the National 

Institute of Justice, please visit: 

http://www.ojp.usdoj.gov/nij 

or contact: 

National Criminal Justice 

Reference Service 

P.O. Box 6000

Rockville, MD 20849–6000 

800–851–3420 

e-mail: askncjrs@ncjrs.org 
NCJ 202955 

DOJ/NIJ *NCJ~202955* 

U.S. Department of Justice 

Office of Justice Programs 

National Institute of Justice 

Washington, DC 20531 

Official Business 

Penalty for Private Use $300 

MAY 04 

MAILING LABEL AREA (5” x 2”) 

DO NOT PRINT THIS AREA 

(INK NOR VARNISH) 

PRESORTED STANDARD 

POSTAGE & FEES PAID 

PERMIT NO. G–91