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FORENSIC EVIDENCE: SCIENCE AND THE CRIMINAL LAW Terrence F. Kiely CRC Press Boca Raton London New York Washington, D.C. '2001 CRC Press LLC Library of Congress Cataloging-in-Publication Data Kiely, Terrence F. Forensic evidence : science and the criminal law / Terrence F. Kiely p. cm. Includes bibliographical references and index. ISBN 0-8493-1896-3 (alk. paper) 1. Evidence, Expert--United States. 2. Forensic sciences--United States. I. Title. KF8961 .K54 2000 345.73′067−−dc21 00-037856 This book contains information obtained from authentic and highly regarded sources. Reprinted material is quoted with permission, and sources are indicated. A wide variety of references are listed. Reasonable efforts have been made to publish reliable data and information, but the author and the publisher cannot assume responsibility for the validity of all materials or for the consequences of their use. 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Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation, without intent to infringe. © 2001 by CRC Press LLC No claim to original U.S. Government works International Standard Book Number 0-8493-1896-3 Library of Congress Card Number 00-037856 Printed in the United States of America 1 2 3 4 5 6 7 8 9 0 Printed on acid-free paper '2001 CRC Press LLC If any Man be delighted in History, let him read the Books of Law, which are nothing else but Annals and Chronicles of Things done and acted upon from year to year, in which each Case presents you with a petit history; and if Variety of Matter doth most delight the reader, doubtless, the reading of those Cases, (which differ like Men’s Faces), tho like the Stars in Number, is the most pleasant reading in the World. —Giles Duncombe Trials per Pais, or the Law of England Concerning Juries by Nisi Prius (1725) . . . For without Victory at the Trial, to what Purpose is the Science of the Law? The Judge can give no Sentence, no decision without it, and must give Judgement for that Side the Trial goes; therefore I may well say, tis the chief Part of the Practice of the Law. And if so, to whom shall I offer this Treatise, but to you the Practisers? —Giles Duncombe Trials per Pais, or the Law of England Concerning Juries by Nisi Prius (1725) '2001 CRC Press LLC Preface Forensic Evidence: Science and the Criminal Law is intended to serve as an introduction and guide to the appreciation and understanding of the significant historical, contemporary, and future relationship between the world of the forensic sciences and the criminal justice system. This book is not intended to be a close study of forensic science, nor was it ever conceived as becoming one. It is devoted to a study of the judicial response to uses of forensic science in the investigation, prosecution, and defense of a crime. The audience to which this study is directed are those intimately or potentially involved in that relationship: police, forensic scientists, prosecutors, defense lawyers, and professors and students of the criminal law. It is meant to stand on its own but also to complement the growing number of excellent treatises and studies in the forensic sciences proper, many of which are published in the CRC Press series in the area of forensic sciences. The book focuses on those cases questioning the legal acceptability under a Frye or Daubert standard of the methodological basis of the forensic science at issue. However, equally, if not more importantly, the focus is on the discussions of the numerous cases where the courts, assuming the acceptability of the underlying methodology, have scrutinized and accepted or rejected a wide variety of investiga- tive uses of the science under discussion, offered as proof of one or more material facts in a criminal prosecution. This latter area of study is of equal, if not more central, importance in understanding the place of forensic science in the criminal justice system of the 21st century. It is time for another close look at both the body of claims and the actual expert opinions supplied to the criminal justice system as we enter the new century. The totally justified attention given rapid DNA develop- ments should not overshadow the ongoing judicial acceptance and use of the more traditional body of forensic sciences, such as hair, fiber, ballistics, and fingerprints, some of which have never been fully challenged. The contributions of forensic science to the criminal justice system have been, and remain, significant. This book is divided into 12 chapters, most of which, with the exceptions of Chapters 1, Science, Forensic Science, and Evidence, Chapter 2, Science and the Criminal Law, and Chapter 12, Epilogue, address the legal profile of a specific forensic science. Chapter 1, Science, Forensic Science, and Evidence, briefly analyzes the historical and contemporary context in which legal arguments directed to the adequacy of the findings of forensic science are conducted. This is a necessary precursor to the more criminally focused discussion that constitutes the bulk of this book. The framework of the Frye and Daubert standards for the introduction of scientific opinion are discussed here, as well as the significant differences that exist when the legal challenge comes in a civil law forum as opposed to a criminal one. '2001 CRC Press LLC Chapter 2, Science and the Criminal Law, provides an overview of the entire subject of the uses of forensic sciences in the investigation, prosecution, and defense of criminal cases in U.S. courts. Central topics addressed are the historical and contemporary relationship between forensic science and proof of crime, the funda- mentals of the application of forensic science disciplines to the investigation and prosecution of a criminal case, the function of probabilistic analysis to that process, and an extended discussion of the legal aspects of the modern crime scene. Each of the next nine chapters discusses a specific forensic science discipline: Chapter 3, Hair Analysis, discusses the court’s response to both class and individual expert opinions in respect to attempts to connect one or more hairs found at a crime scene to an individual suspect. This controversial subject sets the analytical framework for the discussions that follow on a wide range of forensic science applications. Chapter 4, Fiber Analysis, discusses the identification and use of a wide variety of fiber materials from crime scenes and the processes used to link such materials to a suspect. Chapter 5, Ballistics and Tool Marks, addresses the subjects of firearms and projectile identification, the matching of bullets to a weapon, gunshot residue, tool mark identification, and attempts to match crime scene striations to a tool associated with a suspect. Chapter 6, Soil, Glass, and Paint, discusses the nature of soil and glass-shard particle identification and the attempt to connect such materials with an individual suspect. Chapter 7, Footprints and Tire Impressions, addresses the identification, photographing, and/or casting of footwear and tire impressions found at a crime scene, and their association with a suspect. The chapter ends with a listing of bite mark cases. Chapter 8, Fingerprints, discusses the subject of fingerprint identification procedures and the recent Automated Fingerprint Identification System (AFIS). Chapter 9, Blood Spatter Analysis, analyzes cases involving the subject of presumptive testing for blood products as well as the subject of bloodstain pattern analysis and its importance in many key aspects of crime scene reconstruction efforts. Chapter 10, DNA Analysis, analyzes the court’s scientific conditions for the acceptance of identification testimony arising from RFLP, PCR, mitochondrial DNA, and STR DNA analyses, in addition to the small but growing number of cases and articles addressing nonhuman DNA testing, in particular, dog, cat, and plant DNA testimony. Chapter 11, Forensic Anthropology and Entomology, briefly examines those decisions that utilize the methodologies and findings of these fields as aides to the investigation and identification of human remains and providing time-of-death estimates. And, finally, Chapter 12, Epilogue, provides a brief summary note on the subjects not covered in this book and the major points sought to be made in the entire work. The book ends with an appendix containing an extensive primer on how to conduct forensic science and forensic evidence research. '2001 CRC Press LLC Acknowledgment I wish to thank Dean Terri Foster of the DePaul University College of Law, for her gracious and ongoing support during the research and writing of this book. I also owe a great debt to friend and colleague James J. Ayres, Adjunct Professor of Computer Law and my cocreator and codirector of the Center for Law and Science at DePaul University College of Law. I also wish to express my gratitude to DePaul students Richard Battle, David Becker, and most recently, Maria Vathes and Laura Pieper, for their research skills, friendship, and untold hours at the final stages of this book. Many thanks to Harvey Kane and Becky McEldowney of CRC Press. Harvey had the faith in the project and Becky has gotten me through it with consistent friendliness, patience, and good humor. Special thanks must go to my editor, Michele Berman, for her great help in smoothing out the rough edges of this book. My greatest debt is to my students in Forensic Evidence over these past 5 years, for their interest and patience as I developed the content and structure of this book. It goes without saying that my true reason for accomplishing anything is, as always, my wife Sidni. Thanks again for everything, not the least of which was keeping our Newfoundland Beau and our pitbull Buster from trashing my office and consuming the final draft of this work. '2001 CRC Press LLC Dedication This book is dedicated to the loving memory of my mother Elizabeth Wolfe and my step-father John Wolfe '2001 CRC Press LLC Table of Contents Chapter 1 Science, Forensic Science, and Evidence I. Science and the Legal Process II. Litigation as History III. Law and Science IV. Science and the Supreme Court A. Supreme Court Cases 1. Frye v. United States 2. Daubert v. Merrell Dow Pharmaceuticals 3. General Electric v. Joiner 4. Kumho Tire v. Carmichael B. Science Advisory Boards V. Conclusion Research Note Endnotes Chapter 2 Science and the Criminal Law I. Introduction II. Science and the Criminal Law: Overview III. Forensic Science and Legal History IV. Forensic Science and Circumstantial Evidence A. 18th and 19th Century CaseAnalyses V. Forensic Science and Forensic Evidence VI. Forensic Science, Probability, and the Law VII. Forensic Science, Forensic Evidence, and the Modern Crime Scene VIII. Forensic Science and the Criminal Law:A Case Study A. The Facts B. The Prosecution’s Forensic Evidence: Hairs and Fibers andTireTracks C. The Court’sAnalysis: Hairs and Fibers andTireTracks IX. Conclusion Research Note Endnotes Chapter 3 Hair Analysis I. Introduction II. Recent Case Discussions III. Conclusion Endnotes '2001 CRC Press LLC