Post conviction Litigation in Non-DNA Cases NACDL Forensic Training Conference April 15, 2010 Atlanta, Georgia

Transcription

1 BLOOD PATTERN ANALYSIS Jodie English Indianapolis IN Post conviction Litigation in Non-DNA Cases NACDL Forensic Training Conference April 15, 2010 Atlanta, Georgia

2 The voice of thy brother s blood crieth unto me from the ground. Genesis 4:10

3

4

5

6 Who gets to generally accept? Astrologists? NAS? BPAS?

7 Scientific Knowledge Does Evolve Nor did Daubert grandfather or protect from Daubert scrutiny evidence that had previously been admitted under Frye. U.S. v. Williams, 506 F.3d 151, 162 (2d Cir. 2007). Daubert trilogy invites re-examination even of generally accepted, venerable, technical fields. U.S. v. Hines, 55 F. Supp. 2d 62, 67 (D. Mass. 1999) (handwriting comparison). Courts are now confronting challenges to testimony, as here, whose admissibility had long been settled. U.S. v. Hidalgo, 229 F. Supp. 2d 961, 966 (D. Ariz. 2002)

8 The uncertainties associated with blood stain pattern analysis are enormous. National Academy of Sciences, Strengthening Forensic Science in the United States: A Path Forward, 179 (2009).

9 In general opinions of BPAs are more subjective than scientific. Id. at 178.

10 In many cases interpretations are difficult or impossible. Id. at cites texts by Herbert MacDonell, Stuart James, Ross Gardner, Henry Lee.

11 Decries mere experience emphasis on experience over scientific foundations seems misguided, given the importance of rigorous and objective hypothesis testing and the complex nature of fluid dynamics. Id. at 178.

12 NO CONSENSUS GUIDELINES CONCERNING: QUALITY ASSURANCE OBSERVATION PROTOCOL CRITERIA TO DISTINGUISH MECHANISMS THAT CAN CAUSE SMALL BLOOD STAINS CRITERIA TO PERFORM EXPERIMENTATION NUMBER OF STAINS TO CREATE A PATTERN QUALIFICATIONS OF ANALYSTS

13 US v. Scheffer, 523 U.S. 303, 310 (1998): Error rates of either 50%; 95%. Cf. BPA: no known error rate

14 If it is science, it must have a scientific METHOD

15 Scientific METHOD

16 Workshops THE ONE WEEK WONDERS

17 Workshops THE ONE WEEK WONDERS 1. Workshops are not a substitute for experience AND EXPERIMENTATION. Id. at No substitute for degree in science 3. Workshops just teach fundamentals for issue spotting so cop can know when to call in an expert

18 NAS: Minimum requirements for crime scene reconstruction w/ BPA 1. An appropriate scientific education 2. Knowledge of terminology 3. Knowledge of limits of measuremt tools 4. Understanding of applied math 5. Understanding of physics of fluid transfer 6. Understanding of wound pathology 7. Understanding of patterns blood makes Id. at 177.

19 In sum, a scientist

20 Dr. Peter DeForest, John Jay CJ (Retired Prof) Numbers of individuals without scientific backgrounds have been trained [in BPA].these individuals have stepped beyond this important investigative role to offer scientific evidence as expert witnesses. The danger inherent in this development cannot be overemphasized. No amount of experience can supplement scientific knowledge and a thought process based on careful adherence to the scientific method. A Review of Bloodstain Evidence at Crime Scenes, J.Forens.Sci. 35: , Nov. 1990; quoted in Forensic Sciences, ed. Cecil Wecht, Bloodstain Pattern Interpretation, Herb MacDonell and Catherine Panchou, Chapter 37, Sec [b], p , Matthew Bender, 1992.

21 Science supports some of BPA but some experts extrapolate far beyond what can be supported. many experiments must be conducted to determine what characteristics of a bloodstain pattern are caused by particular actions during a crime and to inform the interpretation of those causal links and their variabilities. Id. at 178.

22 Science supports some of BPA but extra care must be given to the way in which the analyses are presented in court. Id. at 179. Id. at 179

23

24 Aha moment v. Scientific Method

25 Phil Spector case: Back spatter from him shooting vs. agonal breath/coughed blood

26 Highlights from the High-Speed Video Project Dr. Michael Taylor, Institute of Environmental Science and Research, NZ (some done with Laber & Epstein, Minnesota) The analysis of bloodstain patterns is used by criminal investigators to draw inferences about the events that gave rise to the formation of the pattern. The understanding of the dynamics of a blood transfer event is critical to the sound interpretation of the resultant bloodstain pattern. In this project, a systematic study of the formation of some of the common bloodstain patterns has been accomplished by using a high-speed digital video camera to record the blood transfer as it occurred. Over 500 individual high-speed digital video clips were made of common bloodletting events such as single blood drop formation, impact spatter, gunshot spatter, expiration, cast-off, projected and contact bloodstaining. A set of high speed video sequences has been chosen for distribution to the forensic science community.

27 David Camm DEFENSE ANALYSTS BART EPSTEIN -OVER 30 YEARS WITH THE MINNESOTA CRIME LABORATORY PAUL KISH -STRAIGHTFORWARD AND CONSERVATIVE IN OPINIONS PAULETTE SUTTON-WORKS 99% FOR THE PROSECUTION; 30 YEARS WITH THE MEDICAL EXAMINER STUART JAMES-CONSULTED IN 46 STATES AND MULTIPLE COUNTRIES vs. 4 gov t experts: including Bevel, Englert

28 THE BLOOD SPATTER ON Camm s SHIRT EIGHTEXPERTS DON T AGREE THE HVIS IS ONLY 8 DOTS BY THE HEM OF THE SHIRT A few drops do not a pattern make

29 The $250,000 Opinion in Camm

30 CAMM BLOOD STAIN PATTERN ANALYSTS & DAUBERT INADMISSIBLE UNDER 702(b) INADMISSIBLE UNDER DAUBERT THIS CASE DEMONSTRATES THAT THE METHODOLOGY TO DISTINGUISH HVIS FROM CONTACT STAINS ON FABRIC HAS NOT GAINED ACCEPTANCE IN THE SCIENTIFIC COMMUNITY

31 Subsequent Remedial Measures Evid.R. 407 Scientific Working Group on BPA, April Guidelines for Developing SOPs for Bloodstain Pattern Analysis 2. Recommended Terminology. (No more HVIS, etc.) 3. Guidelines re examples of equipment, reagents, etc. 4. Bibliography Project published April 30, 2009.

32 The International Association of Bloodstain Pattern Analysts does not provide proficiency certification. Membership in the IABPA does not constitute, an attestation to the ability or proficiency of an individual member.