Editor's Comment: Science Is Golden - By Sarah Roland
Law lags science. Forensic sciences are a regular and reoccurring part of criminal cases. Jurors overwhelmingly tend to give scientific evidence more weight than other evidence presented in court. Our system is about seeking justice and finding the truth. With the passage of Article 11.073 back in 2013, our legislature recognized this, too. However, that 11.073 exists is never an excuse for bad and/or outdated science to be presented in a courtroom. A mentality or attitude of “this is the way we’ve always done this,” or “it can be fixed later,” or a “go along to get along” advocacy is simply not acceptable when it comes to scientific evidence.
What can we, as criminal defense lawyers, do to change that mentality and that type of (ineffective) advocacy? First, we have to be informed. That means we must continually seek out information. We have to be curious; we have to keep reading; we have to keep learning.
In January, I was fortunate to serve with Mark Griffith and Michael Mowla as a course director for TCDLA’s Junk Science seminar in Austin. We had experts from Texas to England on a variety of forensic science topics. They happily answered our questions and explained forensic science to us. Now, we know enough to know how little we know. Hopefully, TCDLA will continue having this seminar.
In our last issue, Walter Reaves wrote about the September PCAST Report on Forensic Sciences in Criminal Courts. Every lawyer and judge who practices criminal law needs to read this report. Every expert who testifies in one of the covered sciences should read, and be familiar with, this report. Every expert needs to be confronted with the report’s criticisms. It’s not long and it’s free to download, so there’s no excuse for not having read it. https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp.... Additionally, every court should readily take judicial notice of this report if requested.
Following the PCAST Report, Forensic Science Reform: Protecting the Innocent, edited by Koen and Bowers, was published in January 2017. The book surveys many forensic sciences, provides case studies and then input from a credible, leading expert in the field. Like the PCAST Report, topics examined and discussed include fingerprints, compositional bullet lead analysis, arson, shaken baby syndrome, microscopic hair comparison, DNA, bitemark, firearms identification, presumptive and confirmatory blood testing, crime scene reconstruction, and bloodstain pattern analysis. Coupled with the PCAST Report, this book is a tremendous resource for current issues in forensic sciences. Simply put, to try a case without the PCAST Report and Forensic Science Reform is to try the case handicapped.
Second, selecting a good expert is of paramount importance in cases involving forensic sciences. The Supreme Court of the United States has explicitly recognized this much: “[c]riminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence.” Harrington v. Richter, 562 U. S. 86 (2011).
Every forensic expert should be familiar with the PCAST Report and be able to respond to and/or discuss the critiques contained therein. Whether the expert is familiar with the PCAST report is a good litmus test in selecting an expert. Every credible expert should want to see as much as possible about the case before offering an opinion. The best experts are advocates for the science, not the side.
The next task is finding one of the experts. Experts should come from the literature in the field; that is, your expert should be actively engaged in the discourse in his or her field of study. For instance, many experts have either authored chapters, papers, etc., or are mentioned in the literature. Call the expert and ask for help. It won’t be the first time the expert has received a call from a defense lawyer. Many are willing to help, and if not are able to help direct the search for an available expert. The true experts who are advocates for the science are often willing to go above and beyond what is asked or expected to ensure good science is presented in a courtroom.
Except for the rare client, most criminal defendants do not have sufficient funds to hire the forensic science experts needed for an effective defense. Many of our clients are appointed. Forensic science issues don’t discriminate amongst our cases, though. Therefore, it is incumbent upon us to correctly petition the trial court for sufficient funds to employ an expert when necessary. Make sure all requests are done under seal and ex parte. In the request, make certain the trial court understands why a particular expert is necessary to an effective defense. Once funds are allotted, make sure the work is done and the funds aren’t squandered. When the money runs out—which often happens with an initial request—ask again. Even if a client has retained your services, a significant change in financial circumstances entitles an accused to expert help if necessary to an effective defense. Failing to do so could be deficient performance. See, e.g., Ex Parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)(retained trial counsel’s financial decision to stay on the case but not to fully investigate the case by obtaining a defense expert constituted deficient performance); Hinton v. Alabama, 134 S.Ct. 1081 (2014)(trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance).
Third, we need to request gatekeeping hearings on experts in every case every time. And we need to come to those hearings prepared and ready to make a record. There is no reason not to request such a hearing. That a particular subject matter is has always been considered reliable, that a particular person has always testified as an expert in a particular field or that the judge is sure to let the person testify as an expert are inadequate reasons to forego the hearing. It is important to remember that even though a trial court may find the underlying scientific theory to be valid, to be reliable, the technique applying the theory must have been applied properly on the occasion in question. Kelly v. State, 824 S.W.2d at 572–573. While the first few times are not likely to be successful in front of the trial court—and indeed, no attempt may ever be successful—it is incumbent upon us to make every effort to keep outdated/bad science out of courtrooms.
Finally, but importantly, let us be honest with ourselves. Let us honestly survey if we will devote the time and energy necessary to effectively defend a case with a forensic science component to ensure that bad and/or outdated science is not presented in court. If not, let us have the courage to withdraw or decline representation. Bad and/or outdated science will continue to be presented in courtrooms and will continue to directly contribute to convictions until we do something different. We, as defense lawyers, are also directly responsible for advancing science in the courtroom, and making sure the law does not lag science.Let us hold the line in courtrooms. Let us be advocates for the science.