Forensic Science Handbook, Volume I

Adam B. Hall, Richard Saferstein, Richard Saferstein, Adam B. Hall

• Publisher: CRC Press
• Year: 2020
• ISBN:
  9781351646246
• Edition: 3
• Topic: Law
• Subtopic: Forensic Science
• Index: Law

Originally published in 1982 by Pearson/Prentice-Hall, the Forensic Science Handbook, Third Edition has been fully updated and revised to include the latest developments in scientific testing, analysis, and interpretation of forensic evidence. World-renowned forensic scientist, author, and educator Dr. Richard Saferstein once again brings together a contributor list that is a veritable Who's Who of the top forensic scientists in the field. This Third Edition, he is joined by co-editor Dr. Adam Hall, a forensic scientist and Assistant Professor within the Biomedical Forensic Sciences Program at Boston University School of Medicine. This two-volume series focuses on the legal, evidentiary, biological, and chemical aspects of forensic science practice.

The topics covered in this new edition of Volume I include a broad range of subjects including:

• Legal aspects of forensic science

• Analytical instrumentation to include: microspectrophotometry, infrared Spectroscopy, gas chromatography, liquid chromatography, capillary electrophoresis, and mass spectrometry

• Trace evidence characterization of hairs, dust, paints and inks

• Identification of body fluids and human DNA

This is an update of a classic reference series and will serve as a must-have desk reference for forensic science practitioners. It will likewise be a welcome resource for professors teaching advanced forensic science techniques and methodologies at universities world-wide, particularly at the graduate level.

Chapter 1

Legal Aspects of Forensic Science

Gil I. Sapir, JD, MSc

Forensic Science Consultant and Attorney, Chicago, Illinois

Freedom is only a word until it is lost

Contents

Introduction

Role and Attributes of Experts

The Role of the Expert Witness

Qualifications of the Expert Witness

Ethics and Intellectual Honesty

Demeanor

Communication Skills

Observer Effects: Cognitive and Confirmation Bias

Pretrial Preparation

Trial

Trial Preparation

Voir Dire

Direct Examination

Cross-Examination

Maintaining Credibility During Examination

Discovery and Disclosure

Federal Rule of Civil Procedure - Rule 26: Discovery and Depositions

Preservation of Evidence: Spoliation

Subpoenas

Interrogatories

Depositions

The Law of Evidence

Authentication

The Admissibility of Scientific Evidence

Federal Rules of Evidence - Opinions and Expert Testimony

Significant Cases

Frye v. United States

Daubert v. Merrell Dow Pharmaceuticals, Inc.

Kumho Tire Co., Ltd. v. Carmichael

Right of Confrontation - U.S. Constitution, Sixth Amendment

National Academy of Sciences Report (2009)

Organization of Scientific Area Committees for Forensic Science (OSAC)

President’s Council of Advisors on Science and Technology (Pcast)

Department of Justice - Plans to Advance Forensic Science

Conclusion

Disclaimer

Appendixes

Appendix A - Jury Instructions: Expert/Opinion Witness

Appendix B - Qualifying Question Format for the Expert Witness

Appendix C - Metrological Discovery Checklist (Basic)

Appendix D - Cross-Examination: Debilitating Questions

Appendix E - Expert Witness Affidavit

Appendix F - Subpoena Duces Tecum

Appendix G - Basic (Initial) DNA Laboratory Report Subpoena

Appendix H - Department of Justice/Jeffery Butts Letter - Dec. 4, 2018

Appendix I - Protective Order - Trace Evidence

End Notes

The author acknowledges the contributions of Mark G. Giangrande (1951–2019), JD, MLIS, legal research specialist (retired) at DePaul University College of Law, Rinn Law Library, Chicago, IL.

Introduction

Today almost all scientific or professional disciplines provide scientific or technological evidence in court. This evidence is known as expert evidence. It encompasses both testimonial and non-testimonial evidence, such as demonstrative evidence presented by experts. The testimony offered by specialists is frequently couched in terms of opinions, conclusions, and evaluations, which themselves are not scientifically measurable.1

This chapter discusses essential, practical, utilitarian, and fundamental concepts of scientific evidence and expert evidence. It is intended to provide the constructs necessary for understanding the legal aspects of forensic science and being a successful consulting and testimonial witness. The overview presentation is applicable to both the novice and experienced occupational expert witness.

“The value of liberty is impossible to quantify, but liberty is clearly cherished by our society.”2 Our adversarial criminal justice system is designed to ensure the application of the principles set forth in the U.S. Constitution. The right to confront the prosecution’s critical evidence through independent testing and its purported analytical effect is a fundamental right that cannot be restricted.3

Forensic science is a resource of the adversarial justice system, not a product of scientific inquiry. It is an essential, integral aspect of the law enforcement and judicial systems. Forensic science is the application of science to law.4 Forensic science, at its best, is used to convict the guilty and to protect and exonerate the innocent.5 Typically, it is the most persuasive evidence. Attorneys seldom feel comfortable or confident in their ability to obtain, interpret, and understand scientific information. Hence, they rely on experts to provide them with scientific material relevant to the case.6 The law needs science to help it know about facts of the world in which legal policy and understanding must operate.7 The reverse is also true of the scientist’s understanding of the law. Without the legal system and attorneys, the vocation of consulting and testimonial experts would not exist.8

The practice of law is a business in a very competitive market. Attorneys attempt to distinguish themselves through marketing their accomplishments or specialization. The self-proclaimed moniker of “Lawyer-Scientist” creates and perpetuates improprieties. Issues of competency, validation, and ethical problems are inherent in the use of the term. The appellation incorrectly insinuates scientific competence that is most probably misleading. Attorneys advertising themselves as a “Lawyer-Scientist” invite professional sanctions.9

The use of experts is an important aspect of the adjudicatory process because science and technology can reduce uncertainty about particular facts, thereby facilitating the decision making process and resolution of a case. Louis Pasteur’s assertion that “there are no such things as applied sciences, only application of science” is particularly true in litigation.

Courts do not control how forensic science is practiced or regulated. Courts determine issues of admissibility of evidence. Experts control knowledge of their field within the legal system, while judges and attorneys control the case and what is made part of the case.

The primary function of forensic scientists or opinion witnesses at trial is to assist the trier of fact - the judge or the jury - in understanding methods used and conclusions reached in a discipline not within their general knowledge.10 A simplified restatement is that a qualified expert may give their opinion to 1) help the court to understand evidence, or 2) to establish a fact in issue.11 Scientists tend to perceive themselves as merely translators of findings into probabilities and not as educators. The forensic scientist must be able to impartially, credibly, and coherently communicate test results12 and explain the methods and processes used to reach those conclusions to the finder of fact. Scrutinization of test results conforming with the gold standard in quality o...