Prosecutors, ethics, and expert witnesses

Fordham Law Review

Volumn 76, Issue 3, 2007, Pages 1493-1537

  Giannelli, Paul C ^a   McMunigal, Kevin C ^a  

^a CASE WESTERN RESERVE UNIVERSITY   (United States)

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EID: 39349105425     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (359)

1. Richard L. Flicker, Pathologist's Plea Adds to Turmoil: Discovery of Possibly Hundreds of Faked Autopsies Helps Defense Challenges, A.B.A. J., Mar. 1993, at 24, 24 (emphasis added) (internal quotation marks omitted);
2. see Paul C. Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, A Va. J. Soc. Pol'y & L. 439 (1997) (discussing expert misconduct, including Dr. Ralph Erdmann's cases);
3. see also Roy Bragg, New Clues May Be Dug from Grave; Furor Touches on Autopsies, Brains, Houston Chron., Mar. 28, 1992, at 1A ("[C]all him 'McErdmann,'.... He's like McDonald's-billions served.'" (quoting Dallam County District Attorney Barry Blackwell));
4. Chip Brown, Pathologist Accused of Falsifying Autopsies, Botching Trial Evidence, L.A. Times, Apr. 12, 1992, at A24 ("[F]ormer Dallas County assistant medical examiner Linda Norton was quoted as saying [Dr.] Erdmann routinely performs 'made-to-order autopsies that support a police version of a story.'").
5. Barry Scheck et al., Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted 246 (2000).
6. As of September 2007, there have been over 205 DNA exonerations. Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. (forthcoming Jan. 2008).
7. See Scheck et al., supra note 2, at 246.
8. The conduct of defense attorneys was also found to be less than exemplary. See infra text accompanying notes 229-32.
9. Scheck et al., supra note 2, at 246.
10. A subsequent review attributed 63% of the wrongful convictions to forensic science testing errors and 27% to false or misleading testimony by forensic experts. See Michael J. Saks & Jonathan J. Koehler, Review, The Coming Paradigm Shift in Forensic Identification Science, 309 Sci. 892, 892 fig.1 (2005).
11. A 2005 study identified 24 prosecutions in which forensic scientists committed perjury. Samuel R. Gross et al., Exonerations in the United States: 1989 Through 2003, 95 J. Crim. L. & Criminology 523, 543 (2005).
12. This study identified 340 exonerations, 196 of which did not involve DNA evidence. Id. at 524. The most recent study of 200 DNA exonerations found that expert testimony (present in 55% of the cases) was the second leading type of evidence (after eyewitness identifications, 79% of cases) used in the wrongful conviction cases.
13. Garrett, supra note 2.
14. A number of commentators examine the issue. See, e.g., Bennett L. Gershman, Misuse of Scientific Evidence by Prosecutors, 28 Okla. City U. L. Rev. 17, 17 (2003) ("The prosecutor's misuse of scientific evidence to charge and convict has not been sufficiently examined.");
15. Jane Campbell Moriarty, "Misconvictions, " Science, and the Ministers of Justice, 86 Neb. L. Rev. 1, 23 (2007) ("To date, the legal system and commentators have paid little attention to prosecutorial discretion in the use of unreliable expert testimony-despite mounting evidence that misconvictions have been based upon unreliable expert testimony.");
16. Michael J. Saks, Scientific Evidence and the Ethical Obligations of Attorneys, 49 Clev. St. L. Rev. 421, 421 (2001) ("What are the legal and ethical responsibilities of attorneys when offering scientific expert evidence to courts?" (internal quotation marks omitted)).
17. Some commentators have considered the ethical issues that arise in the use of experts in civil litigation. See Steven Lubet, Expert Witnesses: Ethics and Professionalism, 12 Geo. J. Legal Ethics 465, 466 (1999);
18. Joseph Sanders, Expert Witness Ethics, 76 Fordham L. Rev. 1539 (2007);
19. Dick Thornburgh, Junk Science-The Lawyer's Ethical Responsibilities, 25 Fordham Urb. L.J. 449 (1998);
20. Justin P. Murphy, Note, Expert Witnesses at Trial: Where Are the Ethics?, 14 Geo. J. Legal Ethics 217 (2000).
21. See infra text accompanying notes 117-18.
22. Joseph L. Peterson et al., The Uses and Effects of Forensic Science in the Adjudication of Felony Cases, 32 J. Forensic Sci. 1730, 1748 (1987);
23. see also Scott Bales, Turning the Microscope Back on Forensic Scientists, Litig., Winter 2000, at 51, 51 (commenting that "prosecutors, defense attorneys, and judges agree that scientific evidence can powerfully affect-and often determine-the outcome in criminal cases").
24. Justice Stephen Breyer wrote, "Scientific issues permeate the law. Criminal courts consider the scientific validity of, say, DNA sampling or voice prints, or expert predictions of defendants' 'future dangerousness,' which can lead courts or juries to authorize or withhold the punishment of death." Stephen Breyer, Science in the Courtroom, Issues in Sci. & Tech., Summer 2000, at 52, 53.
25. According to Judge Jack B. Weinstein, "Hardly a case of importance is tried today in the federal courts without the involvement of a number of expert witnesses." Jack B. Weinstein, Improving Expert Testimony, 20 U. Rich. L. Rev. 473, 473 (1986).
26. In 1985, Dr. Alec Jeffreys of the University of Leicester, England, recognized the utility of DNA profiling in criminal cases. Its first use in American courts came the following year. See Office of Tech. Assessment, U.S. Congress, Genetic Witness: Forensic Uses of DNA Tests 8 (1990) [hereinafter OTA Report]. The first appellate case, was reported in 1988.
27. See Andrews v. State, 533 So. 2d 841 (FIa. Dist. Ct. App. 1988) (holding DNA evidence admissible). By January 1990, forensic DNA analysis had been admitted into evidence "in at least 185 cases by 38 States and the U.S. military."
28. OTA Report, supra, at 14.
29. See generally Tom R. Tyler, Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction, 115 Yale L.J. 1050 (2006) (noting the uncertainty of the phenomenon);
30. Michael Mann, Comment, The "CSI Effect": Better Jurors Through Television and Science?, 24 Buff. Pub. Int. L.J. 211 (2006).
31. 509 U.S. 259 (1993).
32. Id. at 262.
33. See id. ("After three separate studies by experts from the Du Page County Crime Lab, the Illinois Department of Law Enforcement, and the Kansas Bureau of Identification, all of whom were unable to make a reliable connection between the print and a pair of boots that petitioner had voluntarily supplied, respondents obtained a 'positive identification' from one Louise Robbins, an anthropologist in North Carolina who was allegedly well known for her willingness to fabricate unreliable expert testimony.").
34. See id. at 272 (holding that "prosecutors are not entitled to absolute immunity for the claim that they conspired to manufacture false evidence that would link [Buckley's] boot with the bootprint the murderer left on the front door. To obtain this false evidence, petitioner submits, the prosecutors shopped for experts until they found one who would provide the opinion they sought.");
35. Giannelli, supra note 1, at 457-58 (discussing Robbins).
36. Barry Siegel, Presumed Guilty: An Illinois Murder Case Became a Test of Conscience Inside the System, L.A. Times, Nov. 1, 1992, (Magazine), at 19 (quoting former detective John Sam).
37. Edward Connors et al., Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial 44-46 (1996) (discussing the cases of Rolando Cruz and Alejandro Hernandez).
38. Siegel, supra note 14, at 19 (discussing the resignation of attorney Mary Brigid Kenney).
39. See Scheck et al., supra note 2, at 176-80;
40. see also Pam Belluck, Officials Face Trial in an Alleged Plot to Frame a Man for Murder, N.Y. Times, Mar. 9, 1999, at A19 ("In a case being closely watched by lawyers and investigators, a group of seven prosecutors and sheriffs deputies will go on trial on Tuesday, charged with conspiring to frame an innocent man.");
41. Eric Herman, Conspiracy Theory, Am. Law., Mar. 1998, at 75 (discussing the prosecution of the prosecutors and police officers involved in the alleged conspiracy before their trial).
42. See People v. Cruz, 643 N.E.2d 636, 644 (111. 1994) ("Seminal fluid recovered from the victim's body was DNA tested, excluding both of defendant's previous codefendants Alex Hernandez and Steven Buckley as possible sources, but not defendant or Brian Dugan, an individual convicted of several other sexual assaults and murders of young females, who indicated he alone killed Jeanine Nicarico.").
43. See Thomas Frisbie, Prosecution Tactics Drew Critics from the Beginning, Chi. SunTimes, Nov. 5, 1995, at 24 ("[P]rosecutors used the testimony of Louise Robbins, who used a scientifically unverified method of matching shoeprints to shoes through a 'wear pattern.' Robbins said her method showed Buckley kicked in the [victim's] front door, even though the pattern on the bottom of Buckley's shoes differed from the one on the door.").
44. See People v. Puluti, 174 Cal. Rptr. 597, 603 (Ct. App. 1981) (Robbins "had never before been qualified as an expert to testify about foot imprints left inside of shoes for purposes of identification" (emphasis omitted));
45. People v. Barker, 170 Cal. Rptr. 69, 72 (Ct. App. 1980) ("She considered herself the chief proponent of the 'unique shoeprint' concept, in that she was the only person presently working on this subject.");
46. Mark Hansen, Believe It or Not, A.B.A. J., June 1993, at 64, 65 ("But Robbins was alone in claiming that she could tell whether a person made a particular print by examining any other shoes belonging to that individual.");
47. Vicki Quade, If the Shoe Fits: Footprint Expert Testifies, A.B.A. J., July 1984, at 34, 34 ("By analyzing the soles of a shoe,... she can determine whether a specific person wore the shoes, based on impressions and wear patterns made by the bones of the foot").
48. In re W. Va. State Police Crime Lab., 438 S.E.2d 501, 510 & n.4 (W. Va. 1993).
49. Id. at 512 n.9. The American Society of Crime Laboratory Directors provided the team.
50. Id.
51. Id. at 512. Other examiners had similar experiences. "[Serologist Howard Brent] Myers also testified that after he had been unable to find blood on a murder suspect's jacket, it was sent to Texas, where [Fred] Zain found a bloodstain which tested consistent with the blood of the victim."
52. Id. According to Zain's replacement, "several prosecutors expressed dissatisfaction with the reports they were receiving from serology and specifically requested that the evidence be analyzed by Zain."
53. Id. at 512 n. 16.
54. Id. at 514 n.23 (internal quotation marks omitted).
55. Id. at 503.
56. Minutes: Right On, Fred Zain (CBS television broadcast Apr. 24, 1994).
57. See Mark Fuhrman, Death and Justice: An Exposé of Oklahoma's Death Row Machine 232 (2003) ("[Joyce Gilchrist] appears to have used her lab tests to confirm the detectives' hunches rather than seek independent scientific results. She also tried to control the results of her tests .... She treated discovery requests with contempt and kept evidence from the defense. She systematically destroyed evidence at the very time when she knew that much of that evidence might be retested.").
58. See McCarty v. State, 765 P.2d 1215, 1219 (Okla. Crim. App. 1988). In that case, the court observed, . . . [O]n December 14, 1987, Max Courtney, President of the Southwestern Association of Forensic Scientists, Inc., issued a prepared statement of the Board of Directors concerning allegations of professional misconduct lodged against Ms. Gilchrist. A certified copy of this statement, which was filed with this Court on January 4, 1988, concluded that Ms. Gilchrist had violated the ethical code, but interestingly she was not disciplined. That statement reads in relevant part: "Our Professional Conduct Committee thoroughly investigated the allegations against Ms. Joyce Gilchrist and ... communicated with [her] that she should distinguish personal opinion from opinions based upon facts derived from scientific evaluation .... We further conclude that, in our system of jurisprudence, undue pressure can be placed upon the forensic scientist to offer personal opinions beyond the scope of scientific capabilities."
59. Id.
60. Id. at 1217 ("Ms. Gilchrist's delay and neglect in not completing her forensic examination and report. . . was inexcusable, since she began her forensic examination in December of 1982."). In subsequent litigation, the court wrote, "[F]ollowing our decision in Petitioner's first trial, it can be safely said that the entire legal community was on notice that this Court was not particularly impressed with Ms. Gilchrist's hair comparison techniques and unscientific opinions in relation to Petitioner."
61. McCarty v. State, 114 P.3d 1089, 1093 (Okla. Crim. App. 2005).
62. McCarty, 765 P.2d at 1218 ("[T]he forensic report was at best incomplete, and at worst inaccurate and misleading.... Gilchrist admitted at trial, however, that she failed to include her conclusion... in the forensic report given to Mr. Wilson. This significant omission, whether intentional or inadvertent, resulted in a trial by ambush ...." (citations omitted)).
63. Id. ("We find it inconceivable why Ms. Gilchrist would give such an improper opinion, which she admitted she was not qualified to give.").
64. 779 P.2d 562 (Okla. Crim. App. 1989) (upholding a murder conviction and the death penalty).
65. See id. at 571 ("The lack of scientific weight of such a conclusion is apparent on reflection by those dealing with similar evidence on a regular basis. But to a lay jury, usually ill-equipped to assimilate hair analysis findings on their own, such an opinion may appear too substantial.");
66. id. ("Ms. Gilchrist admitted that an individual could not be positively identified by hair evidence. However, she went on to testify that, '[in] her opinion ... Mark Fowler and Bill Fox were in contact with John Barrier prior to death.'").
67. 786 P.2d 1255, 1261 (Okla. Crim. App. 1990).
68. Id. at 1263 n.8 ("Specifically, Appellant claims that it was error for Gilchrist not to set out in the report, her opinion that the attacker was a non-secretor."). At trial, Gilchrist testified that Jeffrey Todd Pierce was a nonsecretor, a person whose blood type cannot be determined through other body fluids, including semen. Twenty percent of the population falls into this category.
69. Paul C Giannelli & Edward J. Imwinkelried, Scientific Evidence § 17.09, at 959 (4th ed. 2007).
70. Id, at 1261.
71. A later Federal Bureau of Investigation (FBI) examination of Gilchrist's analyses in eight cases determined that she had misidentified hairs in six and fibers in another. See FBI, Summary of Case Reviews of Forensic Chemist, Joyce Gilchrist, Oklahoma City Police Department Crime Laboratory 1 (2001) ("The review of the laboratory notes revealed that they were often incomplete or inadequate to support the conclusions reached by the examiner. No documentation existed that would allow the examiner to identify textile fibers associated in one of the cases. No notations were present that would indicate a confirmation or review by another qualified examiner was undertaken, especially in the cases where hair evidence linked the suspect and victim."). One of the cases was Pierce's; the FBI found that none of the hairs taken from Pierce exhibited the same microscopic characteristics as those found at the crime scene.
72. Id. at 3 ("[T]hese [pubic] hairs do not exhibit the same microscopic characteristics as the suspect's known pubic hairs."). As a result, the Oklahoma City Police Department had the evidence retested by a private DNA laboratory. DNA testing was not available at the time of Pierce's trial in 1986.
73. See Pierce v. Gilchrist, 359 F.3d 1279, 1282 (10th Cir. 2004) (finding that Gilchrist does not have immunity).
74. 809 P.2d 1317 (Okla. Crim. App. 1991).
75. Id. at 1320 ("What is even more disturbing ... is the fact that Ms. Gilchrist's pretrial forensic report made absolutely no mention of her finding of a 'unique characteristic' concerning appellant's pubic hairs. However, in his opening argument, the prosecutor alerted the jury to the State's expert's finding of the 'unique characteristic' Clearly, this significant omission in Ms. Gilchrist's report, whether intentional or inadvertent, coupled with the State's extreme tardiness in complying with the discovery order, resulted in trial by ambush on a very critical piece of evidence.").
76. Id. at 1319-20 ("[I]t was approximately two weeks after the deadline ordered by Judge Owens that Ms. Gilchrist mailed the hair evidence to the appellant's expert. Thus, appellant's expert received the evidence six and one-half days before trial began.").
77. Scheck et al., supra note 2, at 87.
78. Lott v. State, 98 P.3d 318 (Okla. Crim. App. 2004).
79. James E. Starrs, The Forensic Scientist and the Open Mind, 31 J. Forensic Sci. Soc'y 111, 132-33 (1991).
80. Memorandum from Captain Byron Boshell, Lab. Servs., to Major Garold Spencer, Investigations Bureau (Jan. 16, 2001) (on file with author).
81. See also Fuhrman, supra note 27, at 71. Detective Bob Bemo claims that Gilchrist began giving the detectives test results that were so good "that he didn't believe [she] was doing proper lab work, because her results were 'too good.' Bemo says that now, but it didn't stop him and his partner Bill Cook from using Gilchrist's lab results in many of their cases."
82. Id. "Homicide detective Bill Cook had given Gilchrist the nickname 'Black Magic' because she was able to get results that no other chemist could. When Cook and other homicide detectives gave Gilchrist hair samples from a suspect, they would often let her know that this was the person they wanted to arrest."
83. Id. at 91.
84. See id. at 223 ("If [Gilchrist] were simply incompetent, her mistakes would have been all over the map. Instead, her mistakes benefited the prosecution.").
85. Minutes: Under the Microscope: Forensics Scientist Joyce Gilchrist's Lab Work Is Under Scrutiny (CBS television broadcast May 8, 2001).
86. Id.
87. Mareia Coyle, "Expert" Science Under Fire in Capital Cases, Nat'l L.J., July 11, 1994, at A1.
88. Mark Hansen, Out of the Blue, A.B.A. J., Feb. 1996, at 50, 50-51. Dr. Michael West estimates that he has testified about fifty-five times over the past decade. A third of these cases were capital prosecutions and he has only "lost" one case.
89. Id. One of the authors also wrote about him.
90. See Giannelli, supra note 1 ;
91. Paul C. Giannelli, Op-Ed., When the Evidence Is a Matter of Life and Death, N.Y. Times, Aug. 21, 1994, at E15.
92. Hansen, supra note 51, at 53.
93. "West's proclaimed expertise is not limited to bite marks. In fact, he has created a comfy niche, mostly as a prosecution expert, matching not only bite marks with teeth, but also wounds with weapons, shoes with footprints and fingernails with scratches, even spills with stains." Hansen, supra note 51, at 51;
94. see Howard v. State, 853 So. 2d 781, 800-01 (Miss. 2003) ("During a hearing, Dr. West stated that he has testified seventy-five times ... forty-one murder trials; thirty-two times as a wound pattern expert; one time as a trace metal expert; three times as an expert regarding gun shot residue; three times as an expert in gunshot reconstruction; three times as a death investigator expert; two times as a County Coroner; six times in child abuse trials; three times as a crime scene investigator; and one time as a blood splatter expert. He also asserts that he has made 600 dental I.D.'s and 300 bite mark I.D.'s.").
95. See State v. Van Winkle, 658 So. 2d 198, 200 (La. 1995) (conviction overturned) ("Other forensic evidence was provided by Dr. West, a dentist and controversial 'wound pattern analyst' from Hattiesburg, Mississippi. He testified that markings on Patrick's stomach were consistent with the soles of tennis shoe hiking boots seized from Patricia's bedroom. A defense expert, Dr. Singer, contested this, finding there was no reasonable correlation between Patrick's bruise pattern and the boot in Patricia's room.").
96. Hansen, supra note 51, at 53;
97. see also Davis v. State, 611 So. 2d 906, 910 (Miss. 1992). "[West] concluded that the wound was a bite mark consistent with having been inflicted approximately three weeks previously."
98. Id. Dr. Richard Souviron, a forensic odontologist from Miami, Florida, "testified that the wound on Davis' arm was not a bite mark, but even if it were, it was inconsistent with Mrs. Davis' teeth."
99. Id.
100. Van Winkle, 658 So. 2d at 200.
101. In State v. Maxwell, a capital murder case, West testified that a butcher knife blade "indeed and without doubt" caused skin wounds on two victims and a slash mark on a door. Moreover, the broken handle of the knife "indeed and without doubt" caused bruises on the accused's hand. This testimony was virtually the only evidence connecting Maxwell to the murders.
102. See State v. Maxwell, No. 5139 (Miss. Cir. Ct. dismissed Apr. 24, 1992). In another capital case, State v. Oppie, West conducted a fingernail/scratch mark comparison, reporting that "indeed and without doubt" the scratches on the accused were made by the victim's fingernails.
103. State v. Oppie, No. 90-10,600(3) (Miss. Cir. Ct. 1990). He acknowledged, however, that he had failed to (1) make test marks with the fingernail, (2) evaluate its class and individual characteristics, and (3) establish the reproducibility of such marks. Am. Acad, of Forensic Sciences Ethics Comm., Case No. 143, at 2 (1994) [hereinafter AAFS Comm.].
104. West used long wave ultraviolet blue light to visualize this phenomenon on the defendant's hands ten days after the murders. The knife had a wooden handle, one side of which was missing and thus exposing three rivets.
105. Coyle, supra note 50 (referring to Edward J. Castain, who represented Anthony Keko, for the murder of his estranged wife).
106. See Keko v. Hingle, No. Civ. A. 98-2189, 1999 WL 508406, at *1 (E.D. La. July 8, 1999) ("After serving two years and one month of his sentence, Keko was released from jail and granted a new trial based on the court's determination that the prosecution had withheld information regarding the qualifications of its chief witness, Dr. West.... On January 13, 1998, the State dismissed all charges against Keko. Keko filed the present action on July 27, 1998."), aff'd, 318 F.3d 639 (5th Cir. 2003) (rejecting West's claim of absolute immunity for his pretrial conduct in Keko's prosecution).
107. AAFS Comm., supra note 57, at 3. The committee recommended that West, a fellow in the odontology section, be expelled.
108. See also Steven C Batterman, President, Am. Acad, of Forensic Sciences, Letter to the Editor, AAFS Did Not Deny Due Process to Dr. West, Nat'l LJ., Nov. 7, 1994, at A20.
109. Am. Bd. of Forensic Odontology Ethics Comm., Complaint 93-B (1994).
110. Id. The committee recommended a one-year suspension, which was accepted by the American Board of Forensic Odontology Board of Directors on May 18, 1994. West appealed this decision. The appeal was denied.
111. When informed of this development, West resigned. Letter from Kenneth B. Zercie, Chairman, Crime Scene Certification Bd., to John Holdridge, Att'y, Capital Trial Assistance Project (Aug. 16, 1993) (on file with author).
112. 725 So. 2d 711 (Miss. 1997).
113. See id. at 713-14.
114. Id. at 716.
115. 748 So. 2d 736 (Miss. 1999).
116. "If expert testimony regarding bite-mark evidence is allowed by the trial court, the defense should be given the opportunity to present evidence that challenges the reliability of bite-mark comparisons ... ." Id. at 739.
117. Id. at 748 ("In Harrison v. State, 635 So. 2d 894, 897 (Miss. 1994), West testified that the victim's body was covered in teeth marks inflicted by the defendant. On appeal, Dr. Mincer gave an affidavit to the effect that the marks appeared to be ant bites.
118. In Davis v. State, 611 So. 2d 906, 910 (Miss. 1992), West concluded that 'the wound was a bite mark consistent with having been inflicted approximately three weeks previously.' But Dr. Richard Souviron, a forensic odontologist from Miami, Florida, 'testified that the wound on Davis' arm was not a bite mark, but even if it were, it was inconsistent with Mrs. Davis' teeth.'").
119. Id. at 750 ("West seems to have difficulty in keeping up with evidence. In the instant case, he lost the [sic] not only the mold to Brooks's lower teeth but also the mold of another suspect's teeth. In [Banks], this Court was forced to reverse where West testified that the defendant's teeth correlated to marks in a sandwich left at the crime scene but failed to preserve the sandwich so that the defense could make its own comparisons.").
120. Id. at 750 n.4 ("A Westlaw search reveals that Michael West is apparently the only person testifying about the 'science' of'wound pattern analysis.'").
121. Id. at 750 (citation omitted).
122. The attorney, Christopher J. Plourd, represented Ray Krone, who had been convicted of capital murder and sentenced to death based on the testimony of a forensic dentist. In State v. Krone, 897 P.2d 621, 622-23 (Ariz. 1995), two experienced experts concluded that the defendant had made the bite mark found on a murder victim: "The bite marks were crucial to the State's case because there was very little other evidence to suggest Krone's guilt."
123. Id. at 622. The defendant, however, was later exonerated through DNA testing.
124. See Mark Hansen, The Uncertain Science of Evidence, A.B.A. J., July 2005, at 48, 49-50 (discussing Krone).
125. Affidavit of Christopher J. Plourd at 5, State v. Brewer, No. 5999 (Miss. Cir. Ct. Sept. 15, 2005) (quoting West's video report) (affidavit and video report on file with author). West also stated, "I feel very confident that there are enough points of unique individual characteristics in this study model to say that these teeth inflicted this bite mark."
126. Id.
127. Minutes: Forensic Evidence: Skepticism Surrounding Dr. Michael West's Use of Bite Mark Analysis in Murder Cases (CBS television broadcast Feb. 17, 2002) [hereinafter 60 Minutes: Forensic Evidence].
128. 853 So. 2d 781 (Miss. 2003).
129. Id. at 799.
130. Id. at 801.
131. 845 So. 2d 656 (Miss. 2003).
132. Id. at 670.
133. Hansen, supra note 51, at 51-52.
134. Id. at 54 (quoting James Maxwell, Assistant District Attorney, Jefferson Parish, Louisiana).
135. See Brewer v. State, 725 So. 2d 106 (Miss. 1998).
136. See Shaila Dewan, Despite DNA Test, Prosecutor Is Retrying Rape-Murder Case, N.Y. Times, Sept. 6, 2007, at Al ("The state's star witness was Dr. Michael West... who had become a controversial expert in the identification of bite marks. Dr. West's findings have been contradicted by DNA evidence in at least two other cases.");
137. Minutes: Forensic Evidence, supra note 76.
138. Andrew Murr, A Dentist Takes the Stand, Newsweek, Aug. 20, 2001, at 24. "But his performance as an expert witness has long been controversial. Defense lawyers call him a 'snake-oil salesman' peddling 'junk science' to credulous judges and juries."
139. Id.
140. 448 N.E.2d 857 (Ill. 1983).
141. Id. at 862 ("In fact, the transcripts show that Michaelson had a record of extremely low scholarship; that he had been suspended on several occasions for his lack of academic diligence; and that he had not received an academic degree from any of the schools.").
142. Id. at 865;
143. see also id. at 865-66 ("Moreover, it is obvious that every party, including the State, has an obligation to verify the credentials of its expert witnesses. It is only on the basis of these credentials that experts are permitted to offer their professional opinions concerning the factual issues disputed in the criminal proceeding. This type of purportedly objective opinion testimony may have considerable influence on the jury, and the rules for qualifying expert witnesses are designed to ensure that only genuine experts will offer it").
144. In Imbler v. Craven, 298 F. Supp. 795, 807 (C.D. Cal. 1969), aff'd per curiam, 424 F.2d 631 (9th Cir. 1970), the court held that reckless use of highly suspicious false testimony violates due process. Due process of law does not tolerate a prosecutor's selective inattention to such significant facts.... It imposes as well an affirmative duty to avoid even unintentional deception and misrepresentation, and in fulfilling that duty the prosecutor must undertake careful study of his case and exercise diligence in its preparation, particularly where he is confronted with facts tending to cast doubt upon his witness' testimony.
145. Id. at 808-09;
146. see also Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1118 (9th Cir. 2001) ("[A prosecutor's due process duty] requires a prosecutor to act when put on notice of the real possibility of false testimony. This duty is not discharged by attempting to finesse the problem by pressing ahead without a diligent and a good faith attempt to resolve it. A prosecutor cannot avoid this obligation by refusing to search for the truth and remaining willfully ignorant of the facts."). In Part IV, we propose a similar rule as an ethical standard for prosecutors.
147. See Weatherford v. Bursey, 429 U.S. 545, 559 (1977) ("There is no general constitutional right to discovery in a criminal case ....").
148. See infra text accompanying notes 133-37.
149. Model Rules of Prof 1 Conduct R. 3.8(d) (2007).
150. There can also be late disclosure of exculpatory evidence. See infra text accompanying notes 138-42.
151. Fed. R. Crim. P. 16 advisory committee's note. See generally Paul C. Giannelli, Criminal Discovery, Scientific Evidence, and DNA, 44 Vand. L. Rev. 791 (1991).
152. Standards for Criminal Justice: Standards Relating to Discovery and Procedure Before Trial Standard 2.1, at 66 (Approved Draft 1970).
153. Nat'l Research Council, DNA Technology in Forensic Science 23 (1992);
154. id. at 146 ("The prosecutor has a strong responsibility to reveal fully to defense counsel and experts retained by the defendant all material that might be necessary in evaluating the evidence.");
155. see also id. at 105 ("Case records-such as notes, worksheets, autoradiographs, and population databanks-and other data or records that support examiners' conclusions are prepared, retained by the laboratory, and made available for inspection on court order after review of the reasonableness of a request.");
156. Nat'l Research Council, The Evaluation of Forensic DNA Evidence 167-69 (1996) ("Certainly, there are no strictly scientific justifications for withholding information in the discovery process, and in Chapter 3 we discussed the importance of full, written documentation of all aspects of DNA laboratory operations. Such documentation would facilitate technical review of laboratory work, both within the laboratory and by outside experts.... Our recommendation that all aspects of DNA testing be fully documented is most valuable when this documentation is discoverable in advance of trial.").
157. President's DNA Initiative: Principles of Forensic DNA for Officers of the Court (National Institute of Justice, U.S. Department of Justice, CD-ROM, n.d.) (on file with author).
158. See Giannelli & Imwinkelried, supra note 35, § 3.03 (discussing discovery provisions relating to scientific reports).
159. 848 F.2d 1059 (10th Cir. 1988).
160. 244 F.3d 666 (8th Cir. 2001).
161. Id. at 671 ("Because the government has not given any explanation for the delay, it is difficult, if not impossible, to assess whether the government had any justification for the delay.").
162. Id.
163. E.g., United States v. Cardales, 168 F.3d 548, 555-56 (1st Cir. 1999). In this case, during direct examination of a prosecution witness, "the witness disclosed for the first time the existence of a laboratory test showing that the [ship's] carpet tested negative for the presence of marijuana."
164. Id. The court held that a mistrial was not required because defense counsel "effectively cross-examined the government witness who disclosed the report, and used the test results in its closing argument."
165. Id.;
166. see also United States v. Longie, 984 F.2d 955, 958 (8th Cir. 1993) ("Because the government did not learn of this evidence [medical report and photographs] until a late date and acted expeditiously to deliver it to the defense, we conclude that the government did not act in bad faith in failing to disclose the evidence sooner.");
167. United States v. Edmonson, 962 F.2d 1535, 1545-46 (10th Cir. 1992) (holding that a fingerprint report prepared a month after trial commenced but promptly provided to defense at that time demonstrated good faith);
168. Commonwealth v. Montgomery, 626 A.2d 109, 112 (Pa. 1993) (finding that results of a semen test conducted on the first day of trial and promptly turned over to defense did not violate discovery rules unless the results were deliberately withheld).
169. See United States v. Johnson, 228 F.3d 920, 926 (8th Cir. 2000) ("Our prior cases indicate that a district court must substantiate a
170. United States v. Charley, 189 F.3d 1251, 1262 (10th Cir. 1999) ("We note that the sanction requested by Defendant-exclusion of the witnesses' expert testimony-is almost never imposed 'in the absence of a constitutional violation or statutory authority for such exclusion.'" (citation omitted)).
171. Wicker, 848 F.2d at 1061.
172. See Ayres v. State, 436 A.2d 800, 803 (Del. 1981) ("The State contends that its offer of a continuance to defendant (on the eve of trial and before receipt of the report) and defendant's decline of the offer bars assertion of a suppression contention. We consider that to have been a 'Hobson's choice' in view of the prior continuance of four months that was granted the State for the express purpose of obtaining an analysis of the State's physical evidence and presumably for arrangements to be made for an expert witness to testify as to the report's findings." (citation omitted)).
173. Davis, 244 F.3d at 673.
174. See Miller v. State, 809 P.2d 1317, 1319-20 (Okla. Crim. App. 1991) ("[I]t was approximately two weeks after the deadline ordered by Judge Owens that Ms. Gilchrist mailed the hair evidence to the appellant's expert. Thus, appellant's expert received the evidence six and one-half days before trial began.");
175. Pierce v. State, 786 P.2d 1255, 1261 (Okla. Crim. App. 1990) ("Instead of following either the letter of the Order or taking steps to have the Order changed or clarified by the court, she took it upon herself to determine the portions of the Order with which she wished to comply. This was not her decision to make.");
176. McCarty v. State, 765 P.2d 1215, 1217 (Okla. Crim. App. 1988) ("Ms. Gilchrist's delay and neglect in not completing her forensic examination and report . . . was inexcusable, since she began her forensic examination in December of 1982.").
177. Fed. R. Crim. P. 16(a)(1)(G). The Rule states, At the defendant's request, the government must give to the defendant a written summary of any testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial. If the government requests discovery under subdivision (b)(1)(C)(ii) and the defendant complies, the government must, at the defendant's request, give to the defendant a written summary of testimony that the government intends to use under Rules 702, 703, or 705 of the Federal Rules of Evidence as evidence at trial on the issue of the defendant's mental condition. The summary provided under this subparagraph must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications.
178. Id.
179. Fed. R. Crim. P. 16 advisory committee's note.
180. Controversies concerning the amount of disclosure also soon developed. See United States v. Jackson, 51 F.3d 646, 651 (7th Cir. 1995) (holding that the prosecution "barely" met the minimum requirements and cautioning, "[W]e strongly encourage the government to offer more specific descriptions of the opinions of the witnesses, foundations for their testimony, and their qualifications.").
181. 153 F.R.D. 7 (D. Mass. 1994).
182. Id, at 8.
183. First, it is hard to imagine a situation in which the government would not learn of the need for expert testimony until the trial is underway except as rebuttal testimony. The Rule, by its explicit terms, does not require disclosure of any experts to be called in rebuttal. Rather, disclosure is limited to experts to be called by the government during its case in chief. Id.
184. 420 F.2d 26 (2d Cir. 1969).
185. Id. at 29;
186. see also United States v. Barrett, 703 F.2d 1076, 1080-81 (9th Cir. 1983);
187. United States v. Boney, 572 F.2d 397, 403 (2d Cir. 1978) (involving a drug report);
188. United States v. Bockius, 564 F.2d 1193, 1197-98 (5th Cir. 1977) (involving a polarimeter test);
189. Scipio v. State, 928 So. 2d 1138, 1142 (Fla. 2006) (holding that when a medical examiner investigator realized that he had been mistaken in his deposition testimony, but this information was not given to defense prior to the trial, "the State also had an obligation to disclose any material change in that statement");
190. State v. Wilson, 507 N.E.2d 1109, 1110-12 (Ohio 1987) (holding that the failure to update a neutron activation analysis report resulted in "trial by ambush");
191. Acevedo v. State, 467 So. 2d 220, 224 (Miss. 1985) (finding that the state violated its continuing duty to disclose regarding a gunshot residue test).
192. See Amended Findings of Fact, Conclusions of Law and Order of Discipline at 20-24, N.C. State Bar v. Nifong, No. 06 DHC 35 (Disciplinary Hearing Comm'n of the N.C. State Bar Jul. 31, 2007). He was subsequently found in contempt by the trial judge in the case.
193. See Day in Jail for Ex-Duke Prosecutor, N.Y. Times, Sept. 1, 2007, at A9.
194. For an indepth discussion and analysis of the Duke lacrosse case, see Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice, " 76 Fordham L. Rev. 1337 (2007).
195. Revised Rules of Prof'1 Conduct of the N.C. State Bar R. 3.4(c) (1997). He also violated Rule 3.3(a)(1) (prohibiting false statements of material fact or law to a tribunal) and compounded this error by falsely representing to the court and opposing counsel that he had provided all discoverable information. Rule 4.1 (prohibiting false statements of material fact to a third person in course of representing a client); Rule 8.4(c) (prohibiting conduct involving dishonesty, fraud, deceit or misrepresentations). An additional violation of Rules 3.3(a)(1) and 8.4(c) occurred at a December 15, 2006, hearing. He also lied to the Grievance Committee investigating his conduct.
196. See Revised Rules of Prof 1 Conduct of the N.C. State Bar R. (1997).
197. McCarty v. State, 765 P.2d 1215, 1218 (Okla. Crim. App. 1988) (citations omitted).
198. Id. (citations omitted);
199. see also Miller v. State, 809 P.2d 1317, 1320 (Okla. Crim. App. 1991) ("What is even more disturbing... is the fact that Ms. Gilchrist's pretrial forensic report made absolutely no mention of her finding of a 'unique characteristic' concerning appellant's pubic hairs. However, in his opening argument, the prosecutor alerted the jury to the State's expert's finding of the 'unique characteristic' Clearly, this significant omission in Ms. Gilchrist's report, whether intentional or inadvertent, coupled with the State's extreme tardiness in complying with the discovery order, resulted in trial by ambush on a very critical piece of evidence.").
200. Sometimes the crucial information is omitted from the laboratory report, and the prosecutor is left in the dark along with the defense counsel. For example, in Jones v. City of Chicago, a Chicago crime lab technician, after talking to detectives, intentionally deleted an exculpatory conclusion from her report in a murder case. 856 F.2d 985, 988-93 (7th Cir. 1988);
201. id. at 988 (calling the deletion "a frightening abuse of power by members of the Chicago police force"). The court also noted, "[P]olice laboratory technician Mary Furlong .. . discovered that [defendant] George Jones had different semen and blood types from the types found in [the victim's] vagina.
202. Furlong failed to include this information in the lab report . ..." Id. at 991.
203. Sometimes the information is favorable, which raises Brady issues as discussed below. See infra notes 133-37.
204. 635 So. 2d 894 (Miss. 1994) (en banc).
205. See id. at 898.
206. Id. at 900.
207. "The evidence withheld from the defense was in the form of expert opinion testimony, and was the only proof offered on the issue of rape, a necessary element of the offense charged in the indictment." Id. at 896.
208. 507 N.E.2d 1109 (Ohio 1987).
209. Id. at 1112.
210. Douglas M. Lucas, The Ethical Responsibilities of the Forensic Scientist: Exploring the Limits, 34 J. Forensic Sci. 719, 724 (1989).
211. See People v. Brown, 600 N.Y.S.2d 593, 594 (App. Div. 1993) (upholding conviction). Rejecting a postconviction discovery request, another court later wrote, "In the instant case DNA testing was available at the time of investigation and trial but the defendant failed to avail himself of such procedures."
212. People v. Brown, 618 N.Y.S.2d 188, 190 (Cayuga County Ct. 1994). Dr. Levine's opinion could also be characterized as Brady material.
213. See infra text accompanying notes 133-37.
214. Fernanda Santos, Evidence from Bite Marks, It Turns Out, Is Not So Elementary, N.Y. Times, Jan. 28, 2007, at WK4 ("At the time of his conviction, Mr. Brown, 46, was missing two front teeth. The bite marks, meanwhile, had six tooth imprints.").
215. Fernanda Santos, With DNA from Exhumed Body, Man Finally Wins Freedom, N.Y. Times, Jan. 24, 2007, at B5.
216. Some jurisdictions have discovery provisions that cover this subject. See, e.g., Ohio R. Crim. P. 16(B)(1)(f).
217. As discussed below, the constitutional duty to disclose is a trial, not pretrial, right. Moreover, in contrast to the constitutional duty, the ethical rule and discovery provisions do not contain a "materiality" requirement.
218. 373 U.S. 83, 87 (1963) ("We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.").
219. In United States v. Stifel, 433 F.2d 431 (6th Cir. 1970), the prosecution charged Orville Stifel with murdering his former girlfriend's fiancé by sending a bomb through the mail. Crucial prosecution evidence involved neutron activation analysis performed on bomb debris (vinyl tape, metal cap, cardboard mailing tube, and paper gummed label) and similar items obtained from Stifel's place of employment. The prosecution expert testified that the label and cardboard tube were "of the same type and same manufacture."
220. Id. at 436 (internal quotation marks omitted). The metal cap and tape were "of the same manufacture" and from the "same batch"-one day's manufacturing production.
221. Id. (internal quotation marks omitted). After his conviction, Stifel filed a request under the Freedom of Information Act.
222. See United States v. Stifel, 594 F. Supp. 1525, 1528 (N.D. Ohio 1984). The Freedom of Information Act material revealed the existence of another suspect in the bombing and discrepancies about the background tests on the tape.
223. Id. As a result, Stifel filed a postconviction petition, alleging a Brady violation. He argued that the expert, when cross-examined, had failed to disclose that additional tests had been performed on the tape. The court disagreed that the expert had misrepresented the facts on this issue, but noted the misleading character of this information in granting relief: "[H]ad the defense known of the November 1968 tests performed by [the expert] on tape obtained from Plymouth Rubber Company, it could have used this evidence to further impeach the credibility of [the expert's] scientific methods."
224. Id. at 1543;
225. see also Giannelli & Imwinkelried, supra note 35, § 3.12, at 184 (listing cases).
226. 516 F.2d 1344, 1346 (6th Cir. 1975). In an unreported opinion overturning Lilly Hilliard's first conviction, the Tennessee Court of Criminal Appeals noted that the blood on Hilliard's jacket was '"[o]f quite devastating impact.'"
227. Id. at 1351. After spending a year in prison, Hilliard was acquitted in a retrial in which the FBI report was admitted into evidence.
228. 790 F. Supp. 374 (D.R.I. 1992).
229. Id. at 375 n.1. The vice in this case was not the request for a second opinion but rather the failure to disclose the opinion contained in the FBI report.
230. 5 Wayne R. LaFave et al., Criminal Procedure § 24.3(b), at 487 (2d ed. 1999).
231. 943 S.W.2d 461 (Tex. Crim. App. 1996) (en banc). "The State had an obligation to be forthcoming when the Brady motion was heard and granted in March. Instead, it chose to suppress MacDonell's exculpatory evidence until its hand was forced by the trial judge only days before trial, and, in so doing, the State denied Applicant due process."
232. Id. at 465 (internal quotation marks omitted).
233. Fredda "Susan" Mowbray was acquitted on a retrial. See Mowbray v. Cameron County, Texas, 274 F.3d 269, 278 (5th Cir. 2001) (noting that no case has extended Brady liability to laboratory technicians).
234. Ex parte Mowbray, 943 S.W.2d at 463 (emphasis omitted).
235. Id. at 464.142.
236. Id. at 465 (quoting habeas judge);
237. see also United States v. Scarborough, 128 F.3d 1373, 1376 (10th Cir. 1997) ("The late disclosure of this exculpatory information [negative fingerprint report] is troubling, and it highlights the need for vigilance by prosecutors in ensuring that government agents are informed of and respect Brady requirements.");
238. Ayres v. State, 436 A.2d 800, 803 (Del. 1981) (finding a Brady violation in a rape case). In Ayres, the court held, "We also conclude that the State's delay in submitting the entire package of physical evidence to the FBI was the probable cause of the late delivery of the report and the unavailability of an FBI witness to testify as to its findings."
239. Id.
240. United States v. Hauff, 473 F.2d 1350, 1354 (7th Cir. 1973).
241. Norris v. Slayton, 540 F.2d 1241, 1243-44 (4th Cir. 1976).
242. In Sadler v. State, the prosecution's failure to turn over an "inconclusive" DNA report did not violate Brady. 846 P.2d 377, 383 (Okla. Crim. App. 1993).
243. Patler v. Slayton, 503 F.2d 472, 479 (4th Cir. 1974) (involving an FBI lab report on shoeprint, soil sample, hair sample, murder weapon, and clothing).
244. 820 F. Supp. 780, 786-87 (S.D.N.Y. 1993), aff'd, 17 F.3d 390 (2d Cir. 1993).
245. Id. at 786-87 (citation omitted).
246. United States v. Bagley, 473 U.S. 667, 682 (1985).
247. See Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. Tex. L. Rev. 685, 689-90 (2006) ("The most pernicious consequence of the judiciary's radical reconstruction of the concept of materiality has been to afford prosecutors an extraordinarily wide berth to conceal favorable evidence from the defense in the completely rational expectation that the suppression either will not be discovered or, if discovered, will be found by a reviewing court to not be material.").
248. E.g., Bonnell v. Mitchell, 301 F. Supp. 2d 698, 726-27 (N.D. Ohio 2004) ("Regarding the negative test result of the gun nitrates on the defendant's jacket, there is no
249. reasonable probability that the outcome of the trial would have been different had this test result been admitted. As the forensic scientist in this case testified regarding another matter, a negative test result does not make a positive finding."). But see People v. Salazar, 3 Cal. Rptr. 3d 262, 279 (Ct. App. 2003) ("[W]hile there is sufficient evidence in the record to affirm the conviction, we cannot be confident in the jury's verdict because of the Brady violation. Had the jury been aware of Dr. Ribe's credibility problems, which would have cast doubt on the prosecution's investigation, the case would have been cast in a different light with a reasonable probability of a different result.").
250. 405 S.E.2d 250 (Ga. 1991).
251. Id. at 252. Scheck and his colleagues provide this vignette: Analyst Maria Pulling reported that Reynolds matched none of the trace evidence. She signed the report and forwarded it to the front desk of the lab for delivery to the prosecutor and the defense. But the exculpatory report was never delivered to the defense. Ten years later, the volunteer counsel... obtained DNA exonerations of both men .... That was when Pulling first learned the case had gone to trial. When she found out that her report had been concealed, she was astonished. Scheck et al, supra note 2, at 174 (discussing Donald Reynolds's case).
252. Kyles v. Whitley, 514 U.S. 419, 438 (1995) ("[I]t may be said that no one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that 'procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant information on each case to every lawyer who deals with it.' Since, then, the prosecutor has the means to discharge the government's Brady responsibility if he will, any argument for excusing a prosecutor from disclosing what he does not happen to know about boils down to a plea to substitute the police for the prosecutor, and even for the courts themselves, as the final arbiters of the government's obligation to ensure fair trials.").
253. In re Brown, 952 P.2d 715, 719 (Cal. 1998).
254. Id.
255. Charles v. City of Boston, 365 F. Supp. 2d 82, 89 (D. Mass. 2005). But see Villasana v. Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004) (stating that extending Brady to lab personnel is "unsound"); Mowbray v. Cameron County, Texas, 274 F.3d 269, 278 (5th Cir. 2001) (noting that no case has extended Brady liability to laboratory technicians).
256. Model Rules of Prof 1 Conduct R. 3.8(d) (2007) (special responsibilities of a prosecutor). One would think "timely" would mean at least in time to make use of it at trial. But what about in time for use in considering a guilty plea? Or making a motion to dismiss? Or conducting an investigation?
257. Standards for Criminal Justice: Discovery and Trial by Jury Standard 11-2.1(a)(viii) (3ded. 1996).
258. See Revised N.C. Rules of Prof 1 Conduct R. 3.8(d) (1997); supra notes 118-19 and accompanying text.
259. See Gershman, supra note 149, at 687 ("Brady is insufficiently enforced when violations are discovered, and virtually unenforceable when violations are hidden."); Joseph R. Weeks, No Wrong Without a Remedy: The Effective Enforcement of the Duty of Prosecutors to Disclose Exculpatory Evidence, 22 Okla. City U. L. Rev. 833, 934 (1997) ("We should not continue to permit the almost total lack of meaningful sanctions to enforce the command of Brady to constitute our own sanction for the misconduct of our prosecutors.");
260. Ellen Yaroshefsky, Wrongful Convictions: It Is Time to Take Prosecution Discipline Seriously, 8 UDC/DCSL L. Rev. 275, 281-82 (2004).
261. Richard A. Rosen, Disciplinary Sanctions Against Prosecutors for Brady Violations: A Paper Tiger, 65 N.C. L. Rev. 693, 742 (1987). Furthermore, whether Brady applies to posttrial exculpatory information is not clear.
262. See Roma Khanna & Steve McVicker, Fingers Pointed at HPD Crime Lab in Death Row Case, Houston Chron., Apr. 24, 2003, at 1A ("[T]he attorneys handling his appeal discovered that before Rousseau's trial, HPD's ballistics lab had matched the bullet that killed [the victim] to bullets from another killing ... [and] about one month after Rousseau was sentenced the police crime lab matched bullets from both shootings to a gun found on Juan Guerrero, who was convicted of the other murder. Prosecutors never turned over the crucial findings that would have supported Rousseau's innocence as required, his attorneys said.").
263. The Standards cover a wide range of topics, including provisions on (1) the collection, preservation, and retention of DNA evidence; (2) pretrial disclosure; (3) defense testing and retesting; (4) the admissibility of DNA evidence; (5) postconviction testing; (6) charging persons by DNA profile; and (7) DNA databases. See generally Standards for Criminal Justice: Standards on DNA Evidence (2006).
264. The Standards mandate (1) laboratory accreditation every two years; (2) written policies, including protocols for testing and interpreting test results; (3) quality assurance procedures, including audits, proficiency testing, and corrective action protocols; (4) procedures designed to minimize cognitive bias when interpreting test results; and (5) timely reports of credible evidence of lab misconduct or serious negligence. Id.
265. See id. Standard 3.1 (testing laboratories), Standard 3.2 (testing and interpretation of DNA evidence).
266. See id. Standard 3.3 (laboratory reports).
267. See id. Standard 4.1 (disclosure in pretrial proceedings).
268. See Kevin C. McMunigal, Disclosure and Accuracy in the Guilty Plea Process, 40 Hastings L.J. 957 (1989) (discussing the importance of Brady disclosure during plea negotiations). But see United States v. Ruiz, 536 U.S. 622 (2002) (rejecting this view).
269. Giglio v. United States, 405 U.S. 150, 154 (1972) (finding a Brady violation even though the prosecutor who tried the case was unaware of the deal made by another prosecutor). See generally Goldstein v. City of Long Beach, 481 F.3d 1170 (9th Cir. 2007) (holding that the failure of a district attorney to promulgate policies regarding the sharing of information about informants and the failure to adequately train and supervise deputy district attorneys on this subject was not protected by absolute immunity in a civil rights action).
270. ABA Criminal Justice Section's Ad Hoc Innocence Comm. to Ensure the Integrity of the Criminal Process, Achieving Justice: Freeing the Innocent, Convicting the Guilty 99 (Paul Giannelli & Myrna Raeder eds., 2006) [hereinafter Achieving Justice].
271. Model Rule 3.3(a)(3) prohibits an attorney from "offer[ing] evidence that the lawyer knows to be false." Model Rules of Prof 1 Conduct R. 3.3(a)(3) (2007). The ABA Standards for Criminal Justice also state that it is unprofessional conduct for a prosecutor to "knowingly offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses." Standards for Criminal Justice: Prosecution and Defense Function Standard 3-5.6(a) (3d ed. 1993).
272. Model Rules of Prof 1 Conduct R. 3.3(a)(1) (candor toward the tribunal).
273. Id. R. 8.4(c) (misconduct).
274. Standards for Criminal Justice: Prosecution and Defense Function Standard 3-5.8(a).
275. See Napue v. Illinois, 360 U.S. 264 (1959); Alcorta v. Texas, 355 U.S. 28 (1957); Pyle v. Kansas, 317 U.S. 213 (1942); Mooney v. Holohan, 294 U.S. 103 (1935).
276. 386 U.S. 1 (1967).
277. Id. at 2.
278. Id. at 3-4.
279. Id. at 5-6. A later investigation established that the stains were both blood and paint. See The Vindication of a Prosecutor, 59 J. Crim. L. Criminology & Police Sei. 335, 335 (1968).
280. Miller, 386 U.S. at 6.
281. Id. at 7.
282. See Michael J. Saks, Accuracy v. Advocacy: Expert Testimony Before the Bench, Tech. Rev., Aug.-Sept. 1987, at 43, 44-45 ("[E]xperts [are] vulnerable to the possibly distorting influence of lawyers. Long before the expert and lawyers arrive in court, a bond has formed between them. The influence of the lawyer is considerable.");
283. John I. Thornton, Uses and Abuses of Forensic Science, A.B.A. J., Mar. 1983, at 288, 292 ("The evidence will be selected or rejected with only those items that conform to the arguments of one side actually being submitted for examination. A distinct possibility exists that the results of the examination by the forensic scientist will be skewed.... These situations represent potential sources of mischief.... The danger is that conflicts easily arise between scientist and lawyer-the former attempts to describe the evidence as it actually is, while the latter attempts to describe it in the most favorable light.").
284. See Bank of N.S. v. United States, 487 U.S. 250, 258 (1988) (stating that "[t]he District Court further concluded that one of the prosecutors improperly argued with an expert witness during a recess of the grand jury after the witness gave testimony adverse to the Government");
285. Flynn McRoberts & Steve Mills, From the Start, A Faulty Science: Testimony on Bite Marks Prone to Error, Chi. Trib., Oct. 19, 2004, § 1, at 21 ('"You get pushed a little bit by prosecutors, and sometimes you say OK to get them to shut up.... I allowed myself to be pushed.'" (quoting a forensic dentist)).
286. See Scheck et al., supra note 2, at 31 ("Asked later if he was pressured to change his findings on Coakley, [Dr.] Shaler [the expert] said no. 'Most attorneys,' Shaler would also say, 'like to let you know what their opinions of the facts of the case are-irrespective of the scientific conclusions.'").
287. Standards for Criminal Justice: Prosecution and Defense Function Standard 3-3.3(a) (3d ed. 1993).
288. Id. at cmt. 59. The commentary further adds, "Nothing should be done by a prosecutor to cast suspicion on the process of justice by suggesting that the expert color an opinion to favor the interests of the prosecutor." Id.
289. John Grisham, The Innocent Man: Murder and Injustice in a Small Town (2006).
290. Williamson v. Reynolds, 904 F. Supp. 1529, 1534 (E.D. Okla. 1995), aff'd, 110 F.3d 1508 (10th Cir. 1997).
291. Grisham, supra note 186, at 121.
292. The examination of the hair evidence was also suspect. The first examiner found that the hair samples recovered at the scene were "consistent only with" the victim's hair. The case was then transferred to another examiner, who, after twenty-seven months, found that the crime scene samples were consistent with the defendants' hair. Id. at 179-80. For a further discussion of the case, see infra text accompanying notes 210-13.
293. Glen Gore, who testified against Ron Williamson, was later proved to be the actual killer through DNA evidence. Grisham, supra note 186, at 311, 346.
294. 667 F. Supp. 1456 (S.D. Fla. 1986), aff'd, 828 F.2d 670 (11th Cir. 1987).
295. Id. at 1458.
296. Id. at 1459.
297. Id.
298. Id.
299. Id.
300. Id. at 1459-60. The court also found David Troedel's counsel ineffective. Because defense counsel knew that the gunshot residue testimony was "critical," his "failure either to depose the State's expert witness or, more importantly, to consult with any other expert in the field, fell outside the scope of reasonably professional assistance." Id. at 1461.
301. 71 F.3d 701 (8th Cir. 1995).
302. Id. at 707. The defense counsel was also ineffective: [Whether the alleged murder weapon] had blood matching the victim's constituted an issue of the utmost importance. Under these circumstances, a reasonable defense lawyer would take some measures to understand the laboratory tests performed and the inferences that one could logically draw from the results. At the very least, any reasonable attorney under the circumstances would study the state's laboratory report with sufficient care so that if the prosecution advanced a theory at trial that was at odds with the serology evidence, the defense would be in a position to expose it on cross-examination. Id. at 709.
303. Id. at 707.
304. Id.
305. Id. at 708.
306. Id.
307. Connors et al., supra note 15, at 44-46. The case is also discussed supra text accompanying notes 10-20. Stephen Buckley was the third defendant.
308. Scheck et al., supra note 2, at 178.
309. See State v. Spencer, 216 N.W.2d 131, 134 (Minn. 1974) ("We are concerned... about the sweeping and unqualified manner in which [the expert's] testimony was offered.... An expert witness could be permitted to testify that in his opinion the chemicals present on defendant's hand may have resulted from the firing of a gun. He should not have been permitted to state, as he did, that this defendant had definitely fired a gun.");
310. Dennis S. Karjala, Comment, The Evidentiary Uses of Neutron Activation Analysis, 59 Cal. L. Rev. 997, 1024 (1971) ("[F]ew experts have used appropriate care in limiting their testimony ....").
311. See generally Paul C. Giannelli & Emmie West, Forensic Science: Hair Comparison Evidence, 37 Crim. L. Bull. 514 (2001) (discussing the DNA exoneration cases in which hair evidence was used to convict the innocent);
312. Clive A. Stafford Smith & Patrick D. Goodman, Forensic Hair Comparison Analysis: Nineteenth Century Science or Twentieth Century Snake Oil?, 27 Colum. Hum. Rts. L. Rev. 227, 231 (1996) ("If the purveyors of this dubious science cannot do a better job of validating hair analysis than they have done so far, forensic hair comparison analysis should be excluded altogether from criminal trials.").
313. Connors et al., supra note 15, at 58.
314. Harland Levy, And the Blood Cried Out: A Prosecutor's Spellbinding Account of the Power of DNA 153 (1996).
315. 904 F. Supp. 1529 (E.D. Okla. 1995), aff'd sub nom., Williamson v. Ward, 110 F.3d 1508, 1523 (10th Cir. 1997);
316. see also supra text accompanying notes 186-90 (discussing other aspects of the Williamson case).
317. Id. at 1554.
318. Id. (emphasis added). The defendant was later exonerated by exculpatory DNA evidence, and, as Scheck and his colleagues point out, "The hair evidence was patently unreliable." Scheck et al., supra note 2, at 146; see also id. at 134 ("Not until December 1985, three years after the murder, did the state finish its first report on the hair examination. A trained hair man named Melvin Hett concluded that thirteen hairs found around the victim's body appeared to have come from the head and pubis of Dennis Fritz [an alleged accomplice]. Another four hairs from the murder scene were linked to Ron Williamson. By itself, though, the hair report was not strong enough to prove capital murder.").
319. Grisham, supra note 186, at 179.
320. 884 P.2d 1186 (Okla. Crim. App. 1994).
321. Mitchell v. Gibson, 262 F.3d 1036 (10th Cir. 2001) (emphasis omitted). "The results thus completely undermined Ms. Gilchrist's testimony." Id. at 1064. As the court noted, An expert testified at the evidentiary hearing that the DNA testing performed by Agent Vick unquestionably eliminated Mr. Mitchell.... This expert reviewed Ms. Gilchrist's trial testimony ... and stated that the testimony was based on the use of test methods Ms. Gilchrist knew were less precise than the DNA tests which eliminated Mr. Mitchell. Moreover, he pointed out that one of the tests she performed in fact excluded Mr. Mitchell.
322. Id.; see also Gilchrist v. Okla. Employment Sec. Comm'n, 94 P.3d 72, 75 (Okla. 2004) ("Gilchrist's conduct in Mitchell, that is knowingly giving false and misleading testimony in a criminal case, constituted 'misconduct' sufficient to support the denial of unemployment benefits ....").
323. G. Louis Joughin & Edmund M. Morgan, The Legacy of Sacco and Vanzetti 15 (1948);
324. see also James E. Starrs, Once More unto the Breech: The Firearms Evidence in the Sacco and Vanzetti Case Revisited (pts. 1 & 2), 31 J. Forensic Sci. 630 (1986), 31 J. Forensic Sci. 1050 (1986).
325. Joughin & Morgan, supra note 216, at 15.
326. Williamson v. Reynolds, 904 F. Supp. 1529, 1557 (E.D. Okla. 1995) (alteration in original).
327. Id. (emphasis omitted).
328. See Gershman, supra note 5, at 36 (discussing misuse of the term "match" in the Central Park jogger case).
329. 566 N.E.2d 1355 (Ill. 1991).
330. Id. at 1359.
331. Connors et al., supra note 15, at 65 ("The State's expert on the hair examination testified that only 1 in 4,500 persons would have consistent hairs when tested for 40 different characteristics. He only tested between 8 and 12 characteristics, however, and could not remember which ones. The appellate court ruled on July 29, 1987, that this testimony, coupled with the prosecution's use of it at closing argument, constituted denial of a fair trial." (citation omitted)).
332. See Peter A. Joy, The Relationship Between Prosecutorial Misconduct and Wrongful Convictions: Shaping Remedies for a Broken System, 2006 Wis. L. Rev. 399, 400 ("[Prosecutorial misconduct is largely the result of three institutional conditions: vague ethics rules that provide ambiguous guidance to prosecutors; vast discretionary authority with little or no transparency; and inadequate remedies for prosecutorial misconduct, which create perverse incentives for prosecutors to engage in, rather than refrain from, prosecutorial misconduct.").
333. Gershman, supra note 5, at 17 (emphasis added).
334. Model Rules of Prof'l Conduct R. 1.1 (2007).
335. Id. R. 1.1 cmt. 1.
336. Achieving Justice, supra note 169, at 47.
337. Another quality control mechanism is the fact-finder - either judge or jury - who is trusted with ultimate responsibility for sorting out what is false and what is true, using judgment and reasoning to assess what has been presented by the lawyers. In a criminal case, the adversary system also relies on a high standard of proof-beyond reasonable doubt-as a quality control measure regarding prosecution evidence.
338. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (citing Rock v. Arkansas, 483 U.S. 44, 61 (1987)).
339. See Scheck et al., supra note 2, at 246. Twenty-seven percent of the cases involved incompetent counsel. Id.; e.g., Glenn v. Tate, 71 F.3d 1204, 1209-11 (6th Cir. 1995) (finding ineffective assistance in the penalty phase of a capital murder case due to counsel's failure to present evidence of defendant's mental retardation/neurological impairment, counsel's acquiescence to prosecutor's suggestion that the experts requested by defense be treated as court-appointed rather than defense experts, and counsel's failure
340. "It is also clear that in case after case, defense counsel failed to review the case notes of the prosecution's forensic serologists. Even a layperson would have seen that Fred Zain's written reports and sworn testimony were contradicted by his case notes." Walter F. Rowe, Commentary, in Connors et al., supra note 15, at xv, xviii.
341. See generally Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in a Posf-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305 (2004) (discussing the need to bolster the accused's right to defense experts).
342. 509 U.S. 579 (1993). The Court followed with General Electric Company v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), to form what is now known as the Daubert trilogy.
343. Weisgram v. Marley Co., 528 U.S. 440, 455 (2000).
344. See Fed. R. Evid. 702. Indeed, some federal courts have read the Daubert trilogy as inviting a "reexamination even of 'generally accepted' venerable, technical fields." United States v. Hines, 55 F. Supp. 2d 62, 67 (D. Mass. 1999) (discussing handwriting comparison); see also United States v. Hidalgo, 229 F. Supp. 2d 961, 966 (D. Ariz. 2002). The court noted, "Courts are now confronting challenges to testimony, as here, whose admissibility had long been settled." Id. The court also noted that handwriting comparison is a well-settled field that is now being reexamined. Id. As a result, attacks have been launched against handwriting evidence, hair comparisons, fingerprint examinations, firearms identification, bite mark analysis, and intoxication testing. While most of these challenges have been unsuccessful in terms of admissibility, they have exposed the lack of empirical support for many commonly employed forensic techniques.
345. One commentator noted that "the heightened standards of dependability imposed on expertise proffered in civil cases has continued to expand, but... expertise proffered by the prosecution in criminal cases has been largely insulated from any change in pre-Daubert standards or approach." D. Michael Risinger, Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left on the Dock?, 64 Alb. L. Rev. 99, 149 (2000). An extensive study of the reported criminal cases found that "the Daubert decision did not impact on the admission rates of expert testimony at either the trial or the appellate court levels."
346. Jennifer L. Groscup et al., The Effects of Daubert on the Admissibility of Expert Testimony in State and Federal Criminal Cases, 8 Psychol., Pub. Pol'y & L. 339, 364 (2002). In contrast, a Rand Institute study of civil cases concluded that, "since Daubert, judges have examined the reliability of expert evidence more closely and have found more evidence unreliable as a result." Lloyd Dixon & Brian Gill, Changes in the Standards for Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision 25 (2001).
347. See, e.g., State v. Fukusaku, 946 P.2d 32, 44 (Haw. 1997) ("Because the scientific principles and procedures underlying hair and fiber evidence are well-established and of proven reliability, the evidence in the present case can be treated as 'technical knowledge.' Thus, an independent reliability determination was unnecessary."); McGrew v. State, 682 N.E.2d 1289, 1292 (Ind. 1997) (concluding that hair comparison is more a matter of observation by persons with specialized knowledge than a matter of scientific principles); Johnson v. Commonwealth, 12 S.W.3d 258, 262 (Ky. 1999) (noting that evidence of hair analysis by microscopic comparison has been admissible in that jurisdiction for many years).
348. Model Rules of Prof'1 Conduct R. 3.3(a)(3) (2007) (emphasis added).
349. Model Penal Code § 2.02 (2001). The Model Penal Code created four precisely defined mental states: (1) purpose, (2) knowledge, (3) recklessness, and (4) negligence. Recklessness has a subjective component, requiring awareness of the risk. See Joshua Dressler, Understanding Criminal Law § 10.07 (3d ed. 2001).
350. "If the attorney is prohibited only from offering false expertise when she knows it to be false, then ignorance is bliss for both the proffered expert and the attorney." Saks, supra note 5, at 427.
351. See Gershman, supra note 5, at 27 ("The well-known criminal law doctrine known as 'willful blindness' should apply equally to a prosecutor who regularly uses a scientific expert who is notorious for incompetence and dishonesty.").
352. Federal Rule of Evidence 601, dealing with the competence of witnesses, provides a useful comparison to Model Rule 3.3(a)(3) in terms of both favoring admissibility and reliance on the adversary system. The common law prevented witnesses from testifying on bases such as a witness's conviction of a crime and being a party to the litigation. The thinking behind these exclusions was that a witness's bad character and bias threaten the reliability of a witness's testimony. The modem approach reflected by the Federal Rules of Evidence does away entirely with these competence bans despite the fact that the Federal Rules still view character and bias as highly relevant to the assessment of witness credibility. Why, one might ask, does the modern view allow a biased witness or one with a prior perjury conviction to testify? The response is not that the Federal Rules deny that character and bias raise reliability issues. Rather, the idea here is that the task of monitoring witness reliability should be handled not by the judge as a gatekeeper enforcing categorical competence bans, but by opposing counsel wielding the tools of cross-examination and counterproof in addition to the fact-finder employing its judgment, its reasoning ability, and the standard of proof. In other words, Rule 601, when compared to the common law of evidence that preceded it, reveals a shift of power and responsibility away from the judge as gatekeeper and toward opposing counsel and the fact-finder as primary monitors of witness reliability. Model Rule 3.3(a)(3) reflects similar reasoning regarding lawyers as gatekeepers of evidence.
353. Model Rules of Prof'1 Conduct R. 3.3 cmt. 14 (2007).
354. Id.
355. Professor Jane Campbell Moriarty has recently proposed amending Model Rule 3.8 to prohibit the use of unreliable evidence: "The Prosecutor in a criminal case shall: make reasonable efforts to assure that only reliable expert evidence is admitted into evidence. A prosecutor shall not use evidence that she knows or reasonably should know is unreliable." Moriarty, supra note 5, at 28. She names hair evidence as a type of evidence that would be targeted by this proposal. Id. at 29. Professor Michael J. Saks cites handwriting. Saks, supra note 5, at 428. The weak scientific bases of hair analysis and some other forensic techniques have concealed expert misconduct in many cases. Yet, as long as courts admit these types of evidence - the overwhelming majority do - what is or is not reliable is subject to debate. It would be difficult to fault a prosecutor who used such evidence carefully - that is, ensuring that the jury understood its limitations. The argument over hair evidence may be academic, because mitochondrial DNA will probably replace it as the method of choice.
356. See Max M. Houck & Bruce Budowle, Correlation of Microscopic and Mitochondrial DNA Hair Comparisons, 47 J. Forensic Sci. 964, 966 (2002) ("Of the 80 hairs that were microscopically associated, nine comparisons were excluded by mtDNA analysis.");
357. see also Robert Aronson & Jacqueline McMurtrie, The Use and Misuse of High-Tech Evidence by Prosecutors: Ethical and Evidentiary Issues, 76 Fordham L. Rev. 1453, 1472 (2007) ("Although it has become widely available only in the last few years, mtDNA analysis has nonetheless proven an effective and highly reliable technique to definitively exclude (or include) an individual as the person who deposited one or more hairs at a crime scene." (footnotes omitted)).
358. Another analogous requirement is the one imposed on lawyers during cross-examination of a good faith basis for asking an impeaching question that implies the existence of an impeaching fact. See, e.g., Ohio R. Evid. 607(B) ("A questioner must have a reasonable basis for asking any question pertaining to impeachment that implies the existence of an impeaching fact.").
359. One way to qualify a gatekeeping obligation for the prosecutor might be to distinguish among the various categories found in Federal Rule of Evidence 702. Rule 702 essentially codifies the Daubert and Kumho cases and recognizes the trial judge's role as a gatekeeper regarding scientific evidence. Rule 702 recognizes three distinct prerequisites for admission of scientific evidence for the trial judge to monitor: (1) sufficiency of data, (2) reliability of principles and methods, and (3) reliable application to facts. Some commentators have argued that recognizing a gatekeeping role for lawyers would be too onerous since the principles and methods of science are often uncertain and in a state of flux. To address this problem, a new ethics rule for prosecutors might distinguish among the various categories recognized by Rule 702, imposing a more demanding affirmative duty regarding categories (1) and (3) and a less demanding duty regarding category (2). In a case involving serology, for example, the prosecutor would need to satisfy herself that the expert had in fact performed the tests he claims to have conducted and performed them in a way that minimizes the risk of corruption, such as blind testing. The prosecutor might satisfy this obligation in a number of ways. The prosecutor's office might insist on periodic auditing by outside experts and other measures aimed at reducing the risk of corruption. The prosecutor could also refrain from offering evidence provided by experts whose work has been revealed as lacking in reliability in earlier cases or when other circumstantial evidence raises a question of reliability.