It's evident

April, 2006

2009-07-29 15:18:05

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson

Time sure flies – it is spring and time to publish the second issue of the NCSTL e-Newsletter! NCSTL staff has been very busy in the first quarter of 2006. Here’s what’s new:

NCSTL.org's “one-stop-shop” database which has grown to over 35,000 records and continues to develop and consolidate forensic-based information;
NCSTL representatives attended and presented at the AAFS meeting and other conferences to inform our constituency – law enforcement, legal professionals, scientists, engineers, educators, and technologists of NCSTL’s work;

NCSTL representatives have authored material and received significant media coverage, including features on national and local television and radio stations;

The 2006 Law, Science, and Technology Lecture Series was held at Stetson University College of Law. DVDs, pod casts, and web casts of “The Impact of DNA Evidence In Addressing Human Rights Issues in the Philippines and Other Uses of DNA Worldwide” and “Terrorists, Hurricanes and Viruses: What’s Next?” are in production;

Law 101, an interactive education program, designed to educate non-lawyers who are going to serve as expert witnesses, is in development;

Law students at Stetson and other universities satisfy pro bono hours and earn directed research credit while continuing to expand the database;

Save the Date! The second NIJ/NCSTL Conference for Science, Technology and the Law is being planned for November 2-5, 2006 at the Vinoy Hotel in St. Petersburg, FL.

We, at NCSTL, anticipate a very active year and continued growth and look forward to your attendance at the Conference for Science, Technology and the Law in November.

Stay tuned …

April, 2006

MEDIA HIGHLIGHT
A Criminal Flush: Playing Cards and Solving Cases
Brittan Mitchell, Staff Researcher

What do cold cases, war tactics, and poker have in common? A community-based group in Florida is hoping that the commonality, a deck of cards, will be the newest resource for local law enforcement leads.

CASE STORY
Post-Conviction DNA Testing
Elizabeth Fitterman, Staff Researcher

This spring, Florida, Massachusetts, Ohio and several other states will review their statutory standards covering post–conviction testing – particularly DNA testing – to test biological evidence using modern scientific technology or biological evidence not available at the time of a defendant’s original trial or conviction. Several motivations factor into the states’ increased interest in post–conviction testing, from funding to ideology. This article briefly revisits a few compelling cases and reports on recent events possibly associated with these motivations.

FUN WITH FORENSICS
Unscramble
Catherine Guthrie, Staff Researcher

FROM THE RESEARCH DESK...Database and Reference Collection
Diana Botluk, Director of Research

Located on the Gulfport campus of Stetson University College of Law, NCSTL offers a number of different avenues by which Stetson law students can explore their enthusiasm for forensic science and the law. Find out more...

TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director Technology & Distance Education and Publisher of It's Evident

The NCSTL website at www.ncstl.org continues to be modified and developed to be more easily navigable and more informative. Details include ...

NCSTL ACTIVITIES and PRESS: Find out where NCSTL staff has been and what we’ve been doing, as well as information about our publications, professional associations, and the press coverage we have received.

April, 2007

2009-07-29 15:16:37

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson

NCSTL is pleased to announce its new COLD CASE TOOLKIT, available at www.ncstl.org/education. To commemorate this new section of our website, this issue of It’s Evident focuses on issues surrounding cold cases. Here’s what’s new:

NCSTL.org's “one-stop-shop” database has grown to over 45,000 records and continues to develop and consolidate forensic-based information;

NCSTL's Cold Case Toolkit contains the best links and resources about Cold Cases that can be found on the web. For more information on the Toolkit see FROM THE RESEARCH DESK in the next column;
Hot Topics and other HOT Bibliographies and proceedings of the 2006 and 2005 National Conferences on Science, Technology and the Law were uploaded to NCSTL website;
Dr. Kathy Reichs, producer of the hit TV series Bones and award winning novelist of nine books in the Temperance Brennan series, and Dr. Robert Dorion were NCSTL’s 2007 Lecture Series presenters in the Great Hall at Stetson College of Law in Gulfport on February 5, 2007. Their talk was titled: Forensic Anthropology: From Crime Scene to Crime Fiction and Forensic Dentistry. The Hall was filled to capacity and the event was broadcast live and received significant media attention;
NCSTL produced web-based programs presented by: Drs. Baden and Dean, Dr. James Young, and Drs. Reichs and Dorion;
To inform NCSTL’s constituency which includes law enforcement agents, legal professionals, scientists, engineers, educators, and technologists, NCSTL representatives attended conferences nationally and internationally. In February, NCSTL’s Director of Outreach and I made several presentations at the AAFS Annual Meeting, San Antonio, TX.

We, at NCSTL, are geared up for a busy 2007!

Stay tuned …

April, 2007

RESEARCH FOCUS
Emerging Forensic Identification Technologies: Heat Shock for Cold Cases
Marian Daggett, Research Attorney

Locating and identifying missing persons remains one of the most challenging aspects of forensic investigation. Part of the challenge lies in finding remains, while the much greater challenge involves identifying the remains and matching them to an actual person. Full Paper

RESEARCH EXTRA
Killing Time: The Application of John Doe Indictments to Keep Cases Warm
Catherine Guthrie, Research Attorney

One of the greatest frustrations associated with cold cases is that, thanks to statutes of limitation, the mere passage of time can place guilty individuals safely beyond the reach of law. Specifically, "a statute of limitations reflects a …" Full Paper

TECHNOLOGY CORNER
Using Computer Technology to Solve Cold Cases
Dr. Susan Zucker, Director Technology & Distance Education

Computer technology is used in forensics to solve crimes in a variety of ways. In addition to online databases devoted to DNA profiling, many other electronic databases and resources are important in solving cold and old cases. Full Paper

FROM THE RESEARCH DESK...NCSTL Cold Case Toolkit
Diana Botluk, Director of Research

Over the past three months, NCSTL researchers have been scouring the Internet to pull together the best links and resources about cold cases. Find out more

TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker is Director Technology & Distance Education and Publisher of It's Evident

Lots of new information has been added to the NCSTL website and some changes have been made during the first quarter of 2007. Find out more

April, 2008

2009-07-29 15:13:00

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson

This issue of It’s Evident finds the staff at NCSTL as busy as ever. Here’s what’s new:

NCSTL.org's “one-stop-shop” database has grown to over 64,000 records and continues to develop and consolidate forensic-based information;
The NCSTL receives regular media coverage. On January 17, 2008 I was interviewed on the Montel Williams Live Show; the show was called “True Crime: Body of Evidence”.
I participated in the AAFS 60th Annual Scientific Meeting on February 18 - 23, 2008 and was installed as President of the organization. It is an honor and a privilege to serve as president. My theme for the 2009 AAFS meeting is Forensic Science: Envisioning and Creating the Future. The text of my acceptance speech is here and the audio file will soon be posted.
Articles written by NCSTL staff members are published regularly in various journals. This quarter, Dr. Susan Zucker, Director of Technology & Distance Education wrote “Cyber Forensics: Part II” for the January, 2008 issue of It’s Evident. The article was accepted for inclusion in the IACP database in January.
To inform NCSTL’s constituency, which includes law enforcement, legal professionals, scientists, engineers, educators, and technologists, NCSTL representatives make presentations and offer training on a multitude of topics. NCSTL Law and Science fellow, Angela Lack, presented “All about Forensics”, at the Elderhostel Program at Eckerd College, FL, on February 5 and March 5, 2008.
Of special note, the NCSTL is working on the President’s DNA Initiative training for defense counsel who handle cases involving biological evidence. To achieve this goal, the NCSTL, led by Director of Research, Anjali Swienton, is working closely with the National Institute of Justice (NIJ) and an expert Advisory Group to develop training to provide defense attorneys with general knowledge of the uses of DNA evidence in judicial proceedings as it pertains to discovery and ethics, proper closing arguments, case assessment, etc. The proposed training complements other forensic DNA evidence resources developed by NIJ, e.g., the “Officers of the Court” CD-ROM, which focuses on foundational understanding of the science, technology, statistics, and other non-advocacy topics. The Technical Working Group (TWG) assembled and met in October, 2007 and on January 28 - 29 and March 31 - April 1, 2008.

The next issue of It's Evident will be published in July, 2008. Until then …

April, 2008

RESEARCH FOCUS
Ghosting: … grave robbery for the 21st century
Kevin Paget, Researcher

During 2005, roughly 8.3 million Americans acknowledged that they were victims of identity theft. Identity theft can take on many different forms: from current checking and credit accounts being hijacked to social security numbers being stolen and new accounts created. But identity theft is not just a problem for the living anymore. One of the newest offshoots of this ever growing problem is called “ghosting”. Full Paper

RESEARCH EXTRA
Getting Personal: Identity Thieves May Be Closer Than You Think
Catherine Guthrie, Research Attorney

With an estimated 8 to 9 million American victims each year and a recent surge in media coverage, most of us are familiar with the concept of identity theft. This crime occurs when someone uses another person's personally identifying information, like their name, credit card number, Social Security number, or driver's license, without permission. The stolen data is then used for any one (or more) of a variety of fraudulent activities, nearly all of which are designed to financially benefit the perpetrator. Full Paper

SPOTLIGHT ON IDENTITY THEFT
Year of Preventing Identity Crime: It Can Happen to Anyone—Even Chiefs
William Berger, Chief of Police, Palm Bay, Florida; IACP Past President and NCSTL Advisory Council Member
Linked directly to Police Chief Magazine where this article was published.

Seldom do we, in the law enforcement profession, carry the mantel of crime victim. However, that is exactly what happened to this author; I am one of the millions of victims of identity crime. Read more

FROM THE RESEARCH DESK...
Diana Botluk, Director of Research

The past few months have brought many changes to the Research Department. Find out more.

NCSTL's BOOKS & SPECIAL COLLECTIONS
Visit the NCSTL's Book Collection @ Stetson College of Law and the NCSTL's Special Collections. Borrow from the collections.

TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director Technology & Distance Education and Publisher of It's Evident

During the first quarter of 2008, many elements were added to the NCSTL Education and Training section. Find out more

April, 2009

2009-10-18 22:50:15

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson

The NCSTL staff has been very busy during the first quarter of 2009 as you will see in this issue of It’s Evident. Here’s some of what’s new:

NCSTL.org's “one-stop-shop” database has grown to over 79,611 records and continues to develop and consolidate forensic-based information including the addition of webcasts, podcasts, vodcasts, blog links, and training materials which focus on science, technology and law topics;
NCSTL receives regular media coverage. On January 21, 2009, Director of Outreach, Anjali Swienton, was interviewed on the Scott Farrell radio show. On January 27, I participated on a webcast: "Key Issues Facing Forensic Scientists & How to Solve Them" hosted by Val-Pierre Genton of BrightTALK and on February 18, 2009, I was interviewed by Nell Greenfield Boyce from NPR for the program “All Things Considered”. On March 10, 2009, my remarks to the U.S. House Subcommittee on Technology & Innovation were broadcast on C-SPAN 1. Articles mentioning my testimony ran in Healthcare Finance, Tax & Law Weekly; Biotech Week; Medical Verdicts and Law Weekly; Medicine and Law Weekly; Lab Law Weekly; Health Business Week; Law & Health Weekly; Healthcare Mergers, Acquisitions and Ventures Week; FNS Daybook; Pharma Investments, Ventures and Law Weekly; Lab Business Week; House Science and Technology Committee The Washington Daybook; The Frontrunner; Congressional Quarterly Inc.; and Federal Information and News Dispatch Inc. Also, on March 10, 2009, David Coffey at McClatchy Newspapers interviewed me regarding the state of forensic science in the U.S. I was interviewed by The Graveyard Shift Blog and was also mentioned in Dr. Katherine Ramsland: The Forensic Resource You Need to See in March;
On February 16-20, 2009, Director of Outreach, Anjali Swienton, Director of Research, Diana Botluk, Director of Technology & Distance Education, Susan Zucker, and Research Attorney, Catherine Guthrie Bailey, and I participated in the AAFS 61st Annual Scientific Meeting in Denver, CO;
To inform NCSTL’s constituency, which includes law enforcement, legal professionals, scientists, engineers, educators, and technologists, NCSTL representatives make presentations and offer training on a multitude of topics. On January 22-23, 2009, Director of Outreach, Anjali Swienton, presented “The NCSTL: Resources for DNA Post-conviction Case Management” in Palm Harbor, FL and on March 19, 2009 she presented “Ethics in Forensic Science” at the Actual Innocence Conference in Austin, TX. On January 26, 2009, I presented “Digital Forensics as a Forensic Science” at the 5th Annual IFIP in Orlando, FL. Research Attorney, Catherine Bailey, presented project updates to the ABA's Section of Science & Technology Law at the ABA Midyear Meeting in Boston, MA on my behalf on February 13th, 2009 and on March 21, 2009, she presented “Digging Up Dirt: Dissecting and Analyzing the Expert Witness” at Cedar Crest College in Allenton, PA. At the 61st AAFS Annual Meeting in Denver, CO on February 16-21, 2009, Director of Research, Diana Botluk, Research Attorney, Catherine Bailey, and NCSTL Advisory Council member, Cynthia Holt, presented “Forensic Research Resources” and Director of Technology and Distance Education, Dr. Susan Zucker, and NCSTL Advisory Council member, Dr. Vahid Majidi, presented “YouTube, Facebook, Chat Rooms, and Blogs: A Fertile Classroom for Illicit Activities”. On March 10, 2009, I presented "Strengthening Forensic Science in the United States: A Path Forward," before the U.S. House Subcommittee on Technology and Innovation. At the Actual Innocence Conference in Austin, TX, I presented “Legal Issues” on March 19, 2009.

The next issue of It's Evident will be published in July, 2009.

All the best,
Carol

April, 2009

RESEARCH FOCUS
National Academy of Sciences (NAS) Report: A congressionally mandated report from the National Research Council finds serious deficiencies in the nation's forensic science system and calls for major reforms and new research. (http://www8.nationalacademies.org/ onpinews/newsitem.aspx?RecordID=12589)

Committee on Identifying the Needs of the Forensic Sciences Community

Subcommittee on Technology & Innovation Hearing on Strengthening Forensic Science in the United States: The Role of the National Institute of Standards and Technology Committee on Science, March 10, 2009
Catherine G. Bailey, Research Attorney

Purpose: To review the scientific and technical issues raised by the National Academies (NAS) report Strengthening Forensic Science in the United States: A Path Forward, including those related to accuracy, standards, reliability, validity and the role of NIST. Full summary

Senate NAS Report Hearing: Hearing before the House Subcommittee on Technology & Innovation (House Committee on Science & Technology), March 18, 2009
Leeanne Frazier, Research Attorney

Opening remarks by Senator Leahy spoke to conclusions from the NAS report and salient facts about the capacity of forensic labs generally. Full summary

SPOTLIGHT ON “Dealing with DNA”
A Primer for Lawyers
Christine Funk is a member of the Trial Team in the Office of the Public Defender for the State of Minnesota. She has been working towards making scientific evidence understandable to lawyers and lay people everywhere since her first DNA case in 1994. She serves on the NIJ-NCSTL Technical Working Group for DNA for Defense Attorneys, is a member of the Forensic Laboratory Advisory Board in Minnesota, and is on the Board of the Minnesota Innocence Project. Christine is also an adjunct professor at William Mitchell College of Law, where she teaches Criminal Law, Trial Advocacy, and Wrongful Convictions.

A few months ago I got a call from an attorney in another state who was going to be arguing a DNA case in front of her Court of Appeals the next day. She was wondering if I could point her in the right direction. This is my second most frustrating phone call. The absolute most frustrating phone call, which I’ve gotten more than once, is the one that sounds like this ... Full paper

FROM THE RESEARCH DESK...
Diana Botluk, Director of Research

In the past three months, the NCSTL research staff has been working hard to bring you information about the recently released NAS Report, Strengthening Forensic Science in the United States: A Path Forward. We have added many resources to our NAS Report page http://www.ncstl.org/links/NAS in the http://www.ncstl.org/'s Related Links section. There you will find links to the report itself and the informational pages on the NAS's Committee on Identifying the Needs of the Forensic Science Community as well as links to many other resources about the report. Find out more

NCSTL's BOOKS & SPECIAL COLLECTIONS
Visit the NCSTL's Book Collection @ Stetson College of Law and the NCSTL's Special Collections. Borrow from the collections.

TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director Technology & Distance Education and Publisher and Editor of It's Evident

The NCSTL website redesign is well underway and will debut in May, 2009! It will provide a more efficient search database interface, showcase new media elements, and help our viewers find information more easily. Oh, and the NCSTL is on Facebook and Twitter ... become a fan and a follower! Find out more

April, 2009 ResearchFocus Bailey

2009-07-12 09:15:22

Back

U.S. House of Representatives NAS Report Hearing

March 10, 2009 - Subcommittee on Technology & Innovation Hearing on Strengthening Forensic Science in the United States: The Role of the National Institute of Standards and Technology Committee on Science
Catherine Guthrie Bailey, Research Attorney

Chairman: David Wu (OR)

Representatives that posed questions: Adrian Smith (NE), Paul Broun (GA), Donna Edwards (MD)

Witness Panel: Mr. Pete Marone, Ms. Carol Henderson, Mr. John Hicks, Mr. Peter Neufeld, and Dr. J.C. Upshaw Downs

Purpose: To review the scientific and technical issues raised by the National Academies (NAS) report Strengthening Forensic Science in the United States: A Path Forward, including those related to accuracy, standards, reliability, validity and the role of the National Institute of Standards and Technology (NIST).

Chairman Wu's Opening Remarks:

Although the NAS Report recommended creating an entirely new department to govern forensics issues and work with NIST, it may be economically prudent to build upon and improve existing federal capabilities rather than trying to create a whole new government structure.
The speaker fully supports the end goal of the report to improve forensic science in the United States.
The television show Crime Scene Investigation has raised public awareness and expectations of the role of forensic science; however its depiction of forensics is far different than the reality. This hearing is thus a "first step" in moving from entertainment to reality.

Representative Smith's Opening Statement:

Forensics is a key factor in our justice system, and its importance has only risen over the past years.
Continued improvement is needed, as suggested by the report.
The core finding of the report, that many forensic disciplines are in need of scientific validation, is serious and requires full and immediate attention, BUT it does not mean that these disciplines are unreliable.

Representative Smith introduced a letter from NDAA into record without objection.

Witnesses introduced and identified. Each witness shared their prepared statements, and then answered questions posed by the subcommittee panel.

Statement of Pete Marone:

The Senate Appropriations Committee, with encouragement from the crime lab community, requested that the National Institute of Justice sponsor a study of forensics because – until this report - the federal government has primarily focused on the single discipline of DNA.
The challenges in forensics that the NAS report identified can be categorized in four classes: resources, research, standardization, and education.
- RESOURCES: State and local Crime Labs and the Medical Examiner community have not been receiving the funds they need even though their case loads are exponentially increasing because (1) States are in a fiscal crisis and (2) Federal government has focused overwhelmingly on DNA, which is not the largest caseload.
- RESEARCH: Certain forensic disciplines, especially those that are experience-based rather than based on biological or chemical analysis, need further research to better establish the underlying validation for (1) their methodologies and (2) the basis of statements about reliability and precision. Research is also needed on the effects of context and examiner bias.
- STANDARDIZATION & EDUCATION: Though most in the forensic science community have started to move towards accreditation, there are still concerns about the lack of mandatory requirements for professional certification and laboratory accreditation, as well as the variability in the way forensic science results are reported in courts.
There are several indications that NIST does not have expertise to play the governance role that forensic science needs. It does not offer the "complete package." The strongest reason for establishing an entirely new independent entity, as called for by the report, is that it would be created solely according to the report's vision, thus avoiding bureaucracy or biases caused by the existing organization's prior knowledge and experience. The issue requires new, fresh thinking.

Statement of Carol Henderson:

The "forensic overhaul" called for by the NAS report requires the collaboration of all stakeholders from scientific, technological and legal fields.
To make the best use of available resources and create sound and lasting systems a three step approach should be used.
- FIRST: Immediately address the need for scientific standards with existing Federal resources, specifically those available from NIST. NIST made significant advances in forensics in regards to DNA analysis, the AFIS system, and firearm comparisons.
- SECOND: In the interim create an organized, focused program to carefully analyze forensic policy issues, including: moving forensics outside of the law enforcement community, accreditation and certification requirements, and strategic planning for research and education efforts. Note that education efforts should be directed at attorneys and judges, as well as forensic practitioners. Note also that there are few to no papers on forensic science policy, and no forensic think tank akin to that of the Aspen Institute. There needs to be a bridge, not a band aid, built to address these issues.
- THIRD: Eventually achieve the long-term goal of creating the National Institute of Forensic Science (NIFS) as envisioned by the NAS Committee, keeping in mind the length of requisite planning and consultative processes.
The forensic community needs to challenge itself and respond to the voices of all its stakeholders, especially the legal population.
There is great hope for the future of forensic science and the NAS report has been welcomed by forensic associations such as the AAFS.
Forensics faces a difficult but achievable goal that can be attained through clear objectives and strategic planning, much like America's race to the moon.
Identifying innovative approaches comes not just from infrastructure but also from a profession's culture, and it is a key strategic issue as is open communication.

Statement of John Hicks:

The recommendations found in the NAS report fall into four categories: (1) methods development and standardization; (2) laboratory accreditation and quality assurance; (3) research and training; and (4) resource needs.
DNA technology has already benefitted from congressionally authorized programs. Non-DNA forensics received similar congressional support with the passage of the Paul Coverdell Forensic Science Improvement Program in 2000. These agendas should receive continued support.
DNA's "robust" underlying research and method validation outpaced that of other forensic disciplines because congressional support allowed scores of scientists and academic researchers to assess, validate, and optimize DNA testing.
There is now concern over the lack of systematic research to validate premises and techniques for forensic disciplines; particularly that rely on pattern recognition such as fingerprints, tool marks and handwriting. Thus such disciplines should be subject to empirical studies, which can then become the basis for appropriate standards.
NIST is particularly well suited for the aforementioned task, as exampled by its work with individual markers used in DNA identification, large data systems such as the Automated Fingerprint Identification System (AFIS) and the National Integrated Ballistics Identification Network (NIBIN), and laboratory reference materials.
Expanding NIST's role is the most effective and efficient way to bring about needed improvements in the forensic science community and to assure appropriate focus in the development of new technology opportunities now and in the future.

Statement of J.C. Upshaw Downs:

This speaker's remarks primarily address the discipline of Forensic Pathology and medicolegal death investigation.
The focus of the entire “status of forensics” comes down to uniformity and best practices.
The National Association of Medical Examiners (NAME) developed and implemented Forensic Autopsy Performance Standards in 2006 so that technical aspects of the performance of the forensic autopsy were consistent from jurisdiction to jurisdiction.
In general, the scientific underpinnings of forensic disciplines are there - but they will benefit from a more formal structured review.
In addition to the obvious impact Forensic Pathology has on the justice system, Medical Examiners have important and sometimes under-recognized duties in public health, medical research, and homeland security/mass disaster preparedness, such the recognition of potentially infectious diseases.
Quality is a goal, not a destination, and to this end the NAS report demands certification and accreditation.
Both Medical Examiners, as physicians, and lab systems should have certain basic credentials – and limiting federal funds to offices that have achieved, or are actively pursuing, accreditation is a good incentive to encourage compliance.
Forensic pathologists are strong proponents of education and research and as physicians are required to comply with continuing education requirements.
Specialty scientific journals present the latest advances in the field, however ongoing research is both sorely needed and underfunded.
The proposal of nationwide Medical Examiner system acknowledges that the mission of medicolegal death investigation has changed over the years and signifies a move towards improving the existing system; however to advance the field in this manner one must also understand underlying issues such as the difference between Coroners and Medical Examiners.
Resources, which can be expensive, are needed to (1) attract new people to the field, (2) train forensic pathologists, (3) solve staffing shortages, and (4) convert to a nationwide Medical Examiner system. However the report did not address "how to pay" for these needs.
Independence is also an important consideration inasmuch as death investigation often falls under the umbrella of law enforcement.
An important distinction should be made between conventional science and forensic science because in the latter case the data must be available for courtroom presentation.
Though it may be tempting to find a quick fix to the issue of oversight for the forensic sciences by placing it under existing entity, such action is not in line with the spirit of the report which recognized that the stated goals will take time and consultation to achieve.
The creation of a new, independent governing entity would elude the dangers of an institutionalized mindset, and could be based on models such as Australia's National Institute of Forensic Science (NIFS).
NIST's continued efforts to improve forensics will remain beneficial, though NIST does lack an established history with regard to the complexities and intricacies of the interaction of law enforcement, legal, and governmental issues so vital to forensics. There is also likely to be a lack of "buy in" from forensic practitioners if NIST were to become more involved in accreditation and certification efforts. Such efforts have been undertaken by others and there is no need to reinvent the well.

Statement of Peter Neufeld:

233 Americans have been exonerated through DNA analysis thanks to the work of the Innocence Project.
Unvalidated / improper forensics contributed to approximately 50% of the aforementioned wrongful convictions, and there is a notable contrast between the careful evolution and thorough regulation of DNA testing, and that of non-DNA forensics which lack similar validation and reproducibility.
Such non-DNA forensic disciplines were generated in the context of law enforcement and include (1) Hair Comparisons, as exampled by the exoneration of Jimmy Bromgard, (2) Bite Mark Comparisons, as exampled by the exoneration of Kennedy Brewer, (3) Fingerprint Comparisons, as exampled by the exoneration of Brandon Mayfield, (4) Shoe Print Comparisons, and (5) Fiber Comparisons, and (6) Other Pattern/Impression Evidence. The Innocence Project agrees with the NAS report regarding what is needed in terms of validation for these disciplines.
Forensic shortcomings have real world consequences and are not limited to one analyst, lab or jurisdiction. The 233 exonerations are just the tip of the iceberg.
Many non-DNA forensics are used solely for investigation, prosecution and conviction in a law enforcement context and thus have not been subjected to the rigors of the scientific process.
The need for reform is urgent since non-DNA forensics continue to be used daily in investigations, prosecutions and convictions across the country despite their potential to mislead police, prosecutors, judges and juries away from the real criminal perpetrators.
The Innocence Project whole-heartedly supports the primary recommendation of the report to create a federal NIFS and suggest that the NIFS should:
- focus on research, assessment of validity and reliability, and also quality assurance, accreditation, and certification,
- be a non-partisan, independent agency,
- coordinate all existing and future federal functions, programs, and research related to forensics,
- have mandatory oversight as well as enforcement mechanisms,
- be a permanent program in order to ensure ongoing evaluation, review and leadership, and
- receive adequate resources from Congress.
- The Innocence Project also supports the report's recommendation that NIST would make a sensible partner for setting standards.
Table of cases listing DNA exoneration cases where unvalidated / improper forensic science contributed to the underlying wrongful conviction is attached to this statement.

Questions and Topics of Discussion posed to, and answered by, the witness panel:

Chairman Wu: Is there disagreement among witness about current state of forensic science? This issue speaks to that of whether a practice is "evidence-based." Could the panel please discuss concerns over whether there is a sound scientific basis for many of the forensic testing that we rely on? Do we need to do something more dramatic?
- Neufeld: It was the NAS report, which was created by some of the best minds in science, that said such disciplines were lacking, and we can't ignore that.
- Downs: The model of evidenced-based medicine is a good one. There is good science behind the testing that we do, we just go ahead of it and never went back to check it because it came through law enforcement and teh courts, which never asked for such basis.
Chairman Wu: What kind of difference would it make if we subjected these forensics to more scientific and analytical rigor rather just have an experience-based basis for them?
- Downs: There is not a set number of points of identification required for a fingerprint "match" – that is that has been based on experience in the past. But if we were to apply standards used in medicine we would have a set metric, and that is what we are trying to get to.
- Marone: We need additional research. Prior research has been done by the practitioners. Firearms comparisons provide good examples of this. But the studies were not broad enough, weren't statistically analyzed, and didn't answer all the related questions. Such studies can and should be improved upon to get the requested scientific basis. Note that there is no indication that the prior research in these fields is improper; nor is there any indication that improving the studies cannot be done. We can't assume something is empirically wrong just because there is no validation.
- Neufeld: (1) Burden to show science has sufficient basis falls on the proponent of the evidence. (2) The standards that have been used in forensics would not work in medicine – you can't have ten pathologists disagree over whether a cell is malignant or benign.
Wu's interjection: In his experience disagreement can occur in medicine; analysts over time become better at analyzing patterns. Though you would not to have 20 different conclusions, you can get, say, 2 very different opinions.
- Neufeld continued: (3) there has never been freestanding research of forensics, and we need this to validate old studies and inspire new discoveries.
Representative Smith (NE): What stands out to you as the highest priority technical recommendation from the report? What will it cost?
- Marone: There is not one, they are all level. If you can look at what can be achieved first (but note not easiest) the answer may be accreditation and certification. There are already good programs out there that address this. Accreditation in particular needs attention. Then education, and then resources. But we need them all and they can and should be done in parallel. Labs are swamped – and there is no quick fix. As for cost, it is unknown, though we can look at what has happened with DNA for some guidance. Be sure to look specifically at what money made it to the labs. He is hesitant to throw out a figure because then everyone will then run with it. Bottom line: it is large figure.
- Henderson: We need a strategic plan to define our priorities. The report does not set forth a specific plan. Research though is critical, in part because forensics is multidisciplinary. We don’t know how much it will cost – but we should look at what is existing and work from there.
- Downs: We have to validate pattern evidence because courts are relying on it now (that evidence is in process as we speak).
- Hicks: Much of the information is there, it just needs to be reviewed. And we need to acknowledge the history of these forensic disciplines. Many have evolved in police departments, first from investigators and then scientists. NIST can be helpful here in the interim in terms of quickly looking at what data has been developed, identifying gaps, and filling them in.
- Neufeld: It's been said there is scientific data out there; it just has not been collected. Using odontology as an example, one can conclude that "it won't be okay" and we need a single agency to coordinate and govern forensics. Once it is up and running then you can prioritize.
Representative Edwards: Would like to hear directly from NIST in the future about their role, and appreciates Neufeld's work. In terms of funding, what is the estimate of the amount of resources already being spent in forensic sciences across federal agencies? In terms of coordinating among these agencies, how can we look at the work ahead and build on our current capacities rather than create a separate federal agency?
- Henderson: Forensics is done in / by NIST, NIJ, Dept of Homeland Security, and the DOD. There are many pockets out there, and they don't necessarily communicate well among themselves. We do need to identify what is available now, avoid duplicative efforts, and be cognizant of our economy. Then we need to see what it will take to get people to the table.
Representative Broun: In light of the fact that some say NIST cannot offer the full package, raise your hand if you propose a new national bureau. (Henderson, Marone, Neufeld, Downs – raised their hands. Hicks – did not raise his hand) Of the four that raised their hands, why can't we do this in the private sector or the states / let market forces drive this? Wouldn't this help maintain independence?
- Hicks: You could turn it over to the private sector, which is where NIST could come in since they do work with the private sector. And as things develop we may see more areas where we could bring in the private sector.
- Neufeld: Agrees that the private sector can play a big role in this, BUT whatever changes do happen need to occur upstream of the courtroom. Lawyers and attorneys don’t do the best job of separating our good and junk science.
Representative Broun: Raise your hand if you have read and studied the Constitution of the United States. (4 or 5 witnesses raised their hands.) Could you show me where in the Constitution it says we need to develop this new bureau?
- Henderson: Neufeld may say that we should look in the shadows of a Constitutional amendment to find something that says we have the right to do this to protect people's rights.
Representative Broun:Unless you look at a perverted version of the Constitution you will NOT find authorization to create this new NIFS agency. As a scientist and doctor he is interested in finding the truth. However with a government-based governing body in charge of forensics there may not be the necessary freedom to do what is needed. This should be considered carefully. Also there is a lack of funding, so everyone should seriously consider the existing capabilities and future possible roles of NIST.
Chairman Wu: Considering the constitutional issue, most look to article 1, section 8 to get their authority. This issue of Constitutional authority rises frequently. And one must note there is no textual authority for NASA or the Air force in the Constitution either.
Representative Broun: In response, the government now seems to be working on a perverted view of the Constitution, and national defense is provided for in the Constitution. There is always debate in the scientific community over issues, and that debate is good. However such debate can be hindered by federal government oversight; and this oversight / creation of a new agency is unconstitutional.
Chairman Wu: There is shared concern over whether to create a new forensic agency. But let’s return to the core issue – where is the science behind forensic science? What difference does it make? In sum it seems as if DNA analysis was created independently and then eventually it found a forensic application, while non-DNA forensics was developed in the law enforcement context and – though there is some underlying scientific research – remains partly based on experience. Is this correct?
- Hicks: Yes, that is exactly right.
Chairman Wu: What kind of difference would it make if we subjected these forensics to more scientific and analytical rigor rather just have an experience-based basis for them? Neufeld gave a graphic example of this issue by discussing DNA exonerations and the fact that about 100 real criminal perpetrators were loose on the streets while these people were wrongfully incarcerated.
- Henderson: Only 2-4% of cases get to trial, so many of these issues go unchallenged.
Chairman Wu: Are most of the problems focused on the pattern evidence? Do you agree that things like toxicology analysis are more "settled" procedures with less doubt? Even where there is "more science" are there additional concerns about accuracy of procedures, certification of tests, and formats?
- Yes, it's really the pattern evidence that received a lot of attention in this report, and you can't really get statistics in some of these areas.
- Neufeld: Yes, Biggest problems are in the pattern disciplines, but there are other types of problems in forensics such as: lack of national standards for lab reports.
- Downs: Reports do need to be understandable and there still needs to be standards for even "sound" sciences.
- Henderson:Lawyers have little scientific background and thus previously did not challenge such forensics (fingerprints, toxicology). There are more challenges now as lawyers get educated in this field. For example fingerprints were challenge din a recent robbery case. So these fields that were developed in the context of law enforcement are only now facing request for scientific rigor because lawyers have started to challenge them. The rigor needs to be imposed in "traditionally accepted pattern evidence" – and that's what the report says.
Chairman Wu: Do we have problems when we ask question about whether a match is really a match in terms of fingerprints, etc.? In fields where there are actually guidelines, how many forensic tests actually meet those guidelines?
- Hicks: It is experience based. There are problem with getting full evidence, a full fingerprint – that does not always happen. You do need a review / confirmation process, and errors can happen. SWGs do make relevant recommendations for these kinds of matching tests. He is reluctant to make a guess in response to the second question. Again NIST can play a role here.
Chairman Wu: There is a paradigm shift from science, where you don’t make a conclusion until the process has to get to a certain point, over to law, where there is a deadline for decisions.
Representative Smith: Are scientific progress and the criminal justice system keeping up with each other? If we applied today's practices to older cases, would we see progress?
- Neufeld: Yes, in terms of cases resolved through DNA. But there are few cases where DNA will come into play. Many of the forensic disciplines that gave rise to the wrongful convictions are still practiced today in the same way that they were practiced 5-15 years ago. There was no initiative to make changes. Hair comparison is offered as an example. So in a way it is sill problem and it is not getting better in the courts.
- Hicks: In hair comparison cases there was a disclaimer that it was not an absolute means of identification. Fiber cases – such as the Wayne Williams Atlanta murder case wherein several different fibers were involved - offer similar examples. Forensic evidence is not always found in full at crime scenes. Also forensics can be used to corroborate or invalidate eye witness testimony – it should always be looked at in the context of the whole case. Going back to hair analysis, today they may tend to use it only to identify which hairs would be good candidates for DNA analysis.
- Neufeld: The NAS report specifically says there are no studies on the reliability of combining hair and DNA analysis. FBI analysts have offered on hair analysis statistics without basis. But the underlying issue is that if you say something "is more likely than not" you are still making a probabilistic statement, and you should not make such a statement unless you have supporting empirical data. The disclaimer is not enough.
- Henderson: There have been cases before where a "match" was declared but nowadays that is not allowed. Going back to the issue of problematic forensic disciplines, there was an article in the Journal of Forensic Sciences (Peterson) on 20+ years of proficiency testing. It showed that in terms of (especially hair and fiber) testing examiners got it wrong 50% of the time.
- Marone: Proficiency testing is designed to assess the competency of the specific examiner and the lab's operating process. Exampled in the drug chemist community. Part of the proficiency testing is to figure out why the person came to the wrong conclusion.
- Henderson: the 50% incident is in terms of the proficiency testing, not in terms of evidence that made it to court. More proficiency testing is now being done than ever before. Things have improved, people are not perfect, and proficiency testing should be encouraged.
- Neufeld: We use proficiency testing because there is no way to know whether the conclusion that evidence at a crime scene connects to an individual is correct, there is no control. Proficiency testing is a substitute. So you would want a national agency to come up with a good program of proficiency testing. There are 4 kinds of such testing now.
  
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- Henderson: Immediate action includes using NIST's capacities and evaluating what we need and what is already out there. Then we need interim action including evaluating strategic policy decisions and strategies. Then go t the long term action. It has to be a 3 step plan.
- Chairman Wu believes this issue is important, but still doesn't fully grasp the role of bringing scientific vigor to bear on forensics which has been an experience-based field for awhile. For example, how will it impact conviction rates?
Chairman Wu: If you are going to ask for more resources, we want to know how much more? What are the costs, the measurable inputs? We need that before we can take meaningful action.
- Marone: We need more people. How many? We don't know yet without assessment. Where are we going to get these people? How are we going to incentivize entering forensics considering there are no scholarship programs? It is a public service. It needs to start at that level.
- Downs: In regards to medical examiners, we need to replace lay coroners with qualified, board certified forensic pathologists. The graduation rate is not there yet though, as noted by Chairman Wu. The numbers break down approximately as follows:
- 37 residents graduate in forensic pathology
- 400 practicing active medical examiners full time
- 800 practicing medical examiners are needed
- The cost to get this is $3-$5 per citizen, which equals between 1 and 2 billion dollars, and that excludes infrastructure concerns such as brining facilities up to code / CDC standards and there is also the issue of dealing with about 3,000 counties with coroner systems, and a good start would be helping those coroners improve.
Chairman Wu: Do we have the infrastructure in place to do the amount of research that Henderson recommends?
- Henderson: There are some existing programs in universities and labs that can do the research, and if funded we could also look to other "hard science" facilities to perform research in forensics. The capacity is there, but will require money. There has been a movement to support research as seen in stipends that were given to forensic graduate students from the Forensic Science Foundation (they would eventually present their findings in a peer reviewed setting).
Chairman Wu: Would it be constructive to have departments of forensic science, or a federal agency, to handle forensic science - considering that forensics brings together so many sections of science? Would it be a "meaningful" addition? It seems that this is a field tailor-made for a research university structure where multiple disciplines are studies.
- Henderson: There are existing institutions that provide funding for forensic research (NIJ, NIST). Perhaps better coordination among entities would work; creating a new entity is not always the best plan.
- Neufeld: Echoes recommendation #3 in the NAS report. A coordinator is needed to decide how to tap into finding, etc. There is currently no strategic plan, and we need one. Some feel that NIJ is a poor location for locating forensic research because (1) there is the perception of conflicts of interest related to law enforcement, and (2) history shows that almost all of their prior research money has earmarked / tied to particular institutions. Having a "quarterback" that oversees forensic research would help push certain initiatives such as having the NIH assist forensic pathologists.
Chairman Wu: Does anyone disagree and feel that having a "quarterback" agency is not a good idea?
- Hicks: The difficult practical aspects of implementation are a downside. There needs to be some connection between the academic and forensic community. There have been other federal initiatives to support problems in forensics, and perhaps those should continue. Also research can be directed at some of the gaps / issues mentioned earlier, and this can possibly be addressed by existing organizations.
Chairman Wu thanked the hearing's participants.

Hearing was adjourned.

April, 2009 ResearchFocus Frazier

2009-07-12 09:14:51

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March 18, 2009 - Senate Judiciary Hearing: The Need to Strengthen Forensic Science in the United States: The National Academy of Science's Report on a Path Forward
Leeanne Frazier, Research Attorney

Senate Members Present: Committee Chairman Leahy and Committee Member Durbin

Testifying Witness: The Honorable Harry T. Edwards, D.C. Circuit Court of Appeals

Opening remarks by Senator Leahy spoke to conclusions from the NAS report and salient facts about the capacity of forensic labs generally. Those remarks included the following:

reality of forensic practice in America is nothing like TV depictions of forensic technicians visiting crime scenes and fully funded crime labs with state-of-the-art equipment
lack of funding compromises the reliability of the work coming from labs as evidenced by recent lab shutdowns in Detroit and Houston due to faulty test results
as of 2005, 350,000 pieces of evidence were backlogged due to inadequate training, staff and equipment
1 out of every 5 labs in the U.S. do not qualify for accreditation by ASCLD
Forensic science is important to both criminal justice and homeland security
Glaring example of non-standardized interpretation of evidence is fingerprint comparison, as exampled by the FBI misidentifying an Oregon attorney as the suspect in the Madrid train bombing in 2004

Judge Edwards began his testimony by reviewing the key findings of the NAS report. The most important of these include:

Federal oversight needed to solve problems plaguing the forensic science community
The quality of forensic practice varies widely due to the absence of research establishing the reliability of forensic disciplines and quantifiable measures of uncertainty in conclusions. An example is the lack of research on human observer bias and the sources of human error
No research on new technology
Lack of lab autonomy
Shortage of training programs
Absence of certification requirements and lab accreditation
No standard terminology to describe testing results
Lack of effective oversight

The primary solution offered to cure inadequacies in the forensic fields is interdisciplinary, peer-reviewed scientific research to determine the accuracy and reliability of present forensic practices and additional research to achieve technological advancements. Additional changes necessary to support the effectiveness of the research include - upgrading organization structures, establishing educational programs, adopting uniform and enforceable practice standards, mandating practitioner certification and lab accreditation and ensuring operational autonomy of labs.

Present system lacks adequate governmental structures to address systemic weaknesses and consequently need an independent federal agency to regulate and reform the system.

Questions and topics of discussion posed to Judge Edwards:

Coroner System: Why do such systems still exist when their abolishment was recommended in 1928 due to lack of standard death investigation training requirements? There is no clear answer but possibilities include political inertia and state law codifying a coroner system. This is good example of change that will happen if the federal government is involved in regulation. However, having a forensic science degree does not mean one is qualified to perform forensic testing, which is why educational standards are needed, including garnering interest among universities in interdisciplinary forensic science studies. At present, no such research or dedicated education programs exist.
Expert Qualifications: Wouldn't law enforcement want better training to prevent attacks by defense attorneys on expert qualifications? Lack of adequate training and education is easier to expose if mandatory certifications are in place because it then becomes easier for judges to determine who is qualified. Presently, experience in a particular area is enough to qualify under Fed. Rule 702 and certifications are not necessary. However, experience does not prove one is qualified if present practices are deficient.
New Federal Oversight: Example of botched ballistics testing from Detroit crime lab resulting in necessary review of 147 cases used to inquire whether an existing organization has the ability to oversee forensic science in this country, like the National Science Foundation. No, it lacks the expertise and organization necessary to address problems and ensure that forensic science is not reliant on law enforcement. A new entity with people from multiple disciplines and no agenda is needed. The Key to improvement is scientific research, along with resource sharing among jurisdictions to get the best resources distributed. Additionally, labs need autonomy to perform reliability research.
Fingerprints: General discussion about why fingerprints generally accepted as infallible. Fingerprints have a long history and results have long been presented as having a zero error rate, a scientific impossibility. While testing methods for fingerprints are more reliable than those used by other disciplines, no research exists that shows accuracy in hard cases and examiners cannot quantify the certainty of their results. San Jose Mercury News reported on fingerprint examiners directed not to testify in court if they could not certify a match. This highlights why national standards for reporting requirements and the information included in forensic lab reports are needed.
Educational Programs: Justice for All Act up for reauthorization this year and the NAS report should guide Congress about funding and training. A federal entity is needed to get schools interested in research to support the forensic disciplines. While there are some adequate programs, they are not enough to more forward in the direction needed to bring all forensic practices into line. This can only come from interdisciplinary research and training because training within singular forensic fields does not address whether the field is valid and reliable.

April, 2009 ResearchUpdate

2009-07-12 09:15:12

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From the Research Desk: Update
Diana Botluk, Director of Research

In the past three months, the NCSTL research staff has been working hard to bring you information about the recently released NAS Report, Strengthening Forensic Science in the United States: A Path Forward (http://books.nap.edu/openbook.php?record_id=12589&utm_source=WID%653411916520090401121030&utm_medium=Widgetv3&utm_content=12589&utm_campaign=Widget&utm_term=homeview). We have added many resources to our NAS Report page (http://www.ncstl.org/links/NAS) in the Related Links section of our website. If you visit that page you will see not only links to the report itself and the informational pages on the NAS's Committee on Identifying the Needs of the Forensic Science Community, but also links to many other resources about the report.

We provide links to the House and Senate committee hearings, prepared testimony from those hearings, and summaries of the hearings prepared by NCSTL researchers Leeanne Frazier and Catherine Bailey. You will also see a link to a bibliography of articles and other media coverage about the report. On the bottom of that page you will see a link to be able to view all the resources the committee considered while studying the issue and preparing the report.

Some NCSTL researchers also attended the AAFS annual meeting in February, where Research Attorney Catherine Bailey, Advisory Council member Cynthia Holt and I presented (http://www.ncstl.org/education/Presentations) at the Young Forensic Scientists' Forum on how to use various research resources to keep up to date on issues surrounding scientific evidence. Law and Science Fellow Kevin Paget could also be found working hard at the AAFS meeting creating videos of professionals in the forensic sciences who wanted to share their insight.

We are currently very busy creating an upgrade of our database, and I am looking forward to sharing those changes with you in the next newsletter!

April, 2009 SPOTLIGHT Funk

2009-07-12 09:14:36

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Dealing with DNA: A Primer for Lawyers
Christine Funk, Esquire

PART 1

I. Introduction

A few months ago I got a call from an attorney in another state who was going to be arguing a DNA case in front of her Court of Appeals the next day. She was wondering if I could point her in the right direction. This is my second most frustrating phone call. The absolute most frustrating phone call, which I’ve gotten more than once, is the one that sounds like this: “The lab scientist is testifying this afternoon. Can you fax me the questions?”

Dear defense bar, while some lab scientists are willing to write up questions for prosecutors to ask on direct, there is no corollary for the defense. It’s like calling and saying, “I have a constitutional issue. Can you fax me the questions?”

That said, DNA isn’t hard, it’s just a very big topic. One that even after 13 years of handling DNA cases, is still presenting interesting and new issues in my practice. So where does one start? This article seeks to offer attorneys – both prosecution and defense – with a manageable starting point. It’s not the end point, of course, but should provide you with a road map to assist you in beginning.

II. Before the Beginning

Speaking of starting, start early. I cannot stress this enough. You will not get up to speed the day before trial. It is unlikely that you will be able to locate a competent expert even a month before trial. Your expert will need time to review the evidence – and will likely, upon review, tell you of other documents they’d like to review that you haven’t yet received. Further, if you decide to call the expert at trial, there are more likely to be scheduling conflicts the closer you are to trial. Finally on this topic, it doesn’t matter how smart you are or how much you think you have an open and shut case, it’s going to take a while to get up to speed on this topic. Give yourself the gift of time. Now let’s begin!

III. Read the Report

I’ll say that again. Read the report. Seriously. Earl Washington, Jr. spent 17 ½ years in prison on a rape and murder he didn’t commit. Back in those days, they were still relying on serology testing. The sperm on the blanket tested ABO – A and PGM 1. Now before you decide you don’t know what that means and stop reading, let me tell you that Earl Washington’s ABO type was O and his PGM type was 2-1. Notice those two types don’t match. In other words, they didn’t come from the same source. Neither the prosecutor nor the defense attorney mentioned this to the jury at trial. Ouch.

IV. Consider the Significance of the Report

Take some time to really think about the significance of the report. I once had a prosecutor tell me my client’s DNA profile from sperm cells observed on the knee area of an alleged victim’s blue jeans was proof that he raped her. Wrong. At best, it’s proof that my client’s semen landed on a pair of her jeans (whether they were on or off, I couldn’t tell you. . . ) at some point during the 3 days they stayed together with several other teenage runaways at a flophouse where booze, sex, and marijuana were all in ready supply.

Speaking of the significance of the report, it should go without saying that if the defense to a rape charge is consent, the presence of the defendant’s DNA in the rape kit is really of no consequence. A cigarette butt at the bus stop may put the defendant at the scene, but is hardly a smoking gun. Likewise, the defendant’s DNA in the defendant’s home – even if it’s apparent blood, really isn’t of any consequence. We all have bled in our homes at one time or another.

Did you see how I just said ‘apparent blood?’ Most (but not all) preliminary tests are presumptive. While saliva, vaginal fluid, and blood have presumptive tests, there is no definitive test for any of these. You can get a DNA profile from saliva, blood, skin cells, mucous, semen, sweat, tears, even urine. Because presumptive tests aren’t definitive, you cannot say for certain where the DNA came from. Further, you can’t put date or time stamp on this DNA.

Another thing, when dealing with ‘wearer DNA’ understand the ‘major donor’ may or may not be the ‘major wearer’ of the item of clothing in question. People shed their DNA at different rates, so the amount of DNA present on clothing is not a fair indication of the amount of time the clothing was worn by the person with the matching DNA profile. Nor is it an indication of how recently it was worn by that person.

V. Get the Rest of the File

I can’t tell you how many times I’ve asked the prosecutor for ‘the rest of the file’ only to be told I have everything. The truth is, I have everything the prosecutor has, but that’s not everything. The lab has an extensive file which, in my experience, is not disclosed unless specifically asked for. Ask for it. If this request is denied, ask for it more loudly. This is the information upon which the conclusions are based. You are entitled to review it. I would submit you are committing malpractice if you don’t review it. Not obtaining and reviewing the file is tantamount to reading a police officer’s summary of a defendant’s taped confession, but not bothering to watch the tape.

If you are uncertain what to ask for, or if you practice in a jurisdiction where getting discovery is a battle unto itself, hop on the web. Most experts have discovery demands honed after years of experience battling for all the documents. In addition to a detailed list of items requested, there is typically a line demanding ‘everything else pertaining to the file, that has not been specifically requested.’ Several DNA experts have been kind enough to post their discovery demands on the web for you to use without charge. Just make sure to take a moment to assure yourself you are using the appropriate request. The 3 most common types of DNA testing are STR, Y-STR, and mitochondrial DNA testing. Make sure your discovery demand is for the type of DNA testing you actually have in your case.

Once you receive the file, do yourself a really big favor. I have to tell you, if you take nothing more from this article, do this one thing. It’s brilliant. Really. I wish I would have thought of this myself. Instead, I practiced DNA defense for years before I learned this trick. I’m going to make this its own paragraph – it’s that important.

Make a copy of the file and put the original on a shelf.

You’ll thank me later, I promise. Bates stamp the copy of the file, but leave the original clean. This will assist you at trial, as you will have a clean copy of the file, should you wish to introduce any part of the file into evidence or to use as an exhibit. On another note, the Bates stamp will assist you when talking to your expert. If your expert wants to talk to you about the extraction set up, you can simply ask for the Bates stamp page number, rather than engage in insipid conversations that go like this:

Expert: I’d like to talk to you about the extraction set up. Can you go to that page?

You: Ummmmm. . .

Expert: It’s about a third of the way up from the bottom of the stack.

You: Okaaayyyyyyyyy.

Long pause with the sound of you rifling through the file.

You: Is it by the page with a bunch of columns on it?

Expert: No.

You: Where is it in relation to those pages that look like an EKG?

Expert: *soft sigh* Much closer to the back than those pages.

You: Is it near the page that looks like a bingo card, kind of?

With a Bates stamp, your expert can just ask you to turn to page 0036 and you can go from there.

Of course you want to read the rest of the police reports in conjunction with the lab reports. How was the DNA collected? What items were collected? Take a look at police photos of the scene. Do you see any beer bottles? Cigarette butts? A half eaten ham sandwich? All of these are potential sources of DNA profiles. Another concern is contamination. Could contamination of evidence have occurred during collection? You may find this information in the police reports or you may find it in the underlying file from the lab.

VI. Read the File

Oh, yes, I did say that! Read the file. You really can do this. You won’t likely understand all of it your first time through, but you’ll understand more than you might think. For example, imagine if you read the following:

Item 1 is a brown paper bag containing a sweatshirt said to be from the victim, a pair of underwear said to be from the victim, a pair of blue jeans said to be from the defendant, and a pair of underwear, said to be from the defendant.

“A DNA test result which indicates the presence of 2 or more individuals, wherein the victim and the defendant cannot be excluded,” is actually the result you would expect just by virtue of the items being in the same bag. (Now be careful, defense attorneys! Read the WHOLE file! If there are sperm cells microscopically observed in the crotch of the victim’s panties, a ‘wearer DNA’ transfer argument is going to be less persuasive. . .)

In addition to checking the packaging, check ‘time and space issues.’ The lab has forms for every step of the process. Look at when they extracted blood and salvia samples. (This is documented on a form with a catchy title such as “Extraction of Blood/Saliva Samples.”) You can see the case number, the item number, the amount of the sample used, and any additional information. Questioned samples should all be processed before known samples.

Communications matter. You may see notes, either hand written or entered into a system within the laboratory, or an email documenting communications between the scientist and the prosecutor, law enforcement, or amongst scientists. This may give you an idea as to what information the scientist had going into the testing. Could this information bias the examiner? Does it set the scene to limit what the scientist was looking for? Did it dictate what evidence was or was not examined?

Finally, check the work. Locate the defendant’s DNA profile, and compare it to the evidence sample they say matches the defendant. Recall Earl Washington, Jr.? No one looked at his serology test results. (At least, I’d like to believe that the prosecution didn’t proceed to ask for the death penalty when they knew the serology didn’t match. I’d further prefer to believe the defense attorney also was unaware of the non-match, rather than simply fail to point out that inconsistency.)

PART 2 will be published in July, 2009 and contains sections on "Moving Beyond the Case File", "Get an Expert", "The Mary Kay Standard".

April, 2009 TechUpdate

2009-10-18 22:11:00

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TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director of Technology and Distance Education

The NCSTL website is being redesigned and will debut in May, 2009. That is the biggest news to report. This is being done to provide a more efficient search database interface, to better showcase new media elements, and to help our viewers find information more easily. We are very excited about the changes!

The www.ncstl.org Calendar provides a compilation of events, nationally and internationally, in forensic science, law, technology, and education. People regularly consult the NCSTL Calendar to learn of events. If you have an event you would like listed, please write to: watson@law.stetson.edu

It's Evident, NCSTL's quarterly e-newsletter, features articles on all things forensics. Guest writers are featured in the newsletter regularly along with staff submissions. It's Evident is very popular with our readers. Check out the latest issue of It's Evident and the archived issues, too.

NCSTL and Social Media: NCSTL now has a Facebook page - NCSTL Facebook as well as a presence on Twitter. NCSTL invites you to become a fan on Facebook and a follower on Twitter ...

During the first quarter of 2009 there were many additions to the site:

Ethics Workshop footage and materials in the Education & Training section
Educational Media links in the Education & Training Section showcase interesting interviews. See and listen
FDIAI (Florida Division of the International Association for Identification) newsletters from 1985 - 2002 which are located in Special Collections in the Education & Training section;

Presentations: Advisory Council member, Dr. Vahid Majidi, and I presented YouTube, Facebook, Chat Rooms, and Blogs: A Fertile Classroom for Illicit Activities at the American Academy of Forensic Science in Denver, CO in February. There were over 300 attendees present. This month, I will be in DC presenting Computer Forensics and the NCSTL at the Computer Forensics Show. Director of Outreach, Anjali Swienton, and I will run an exhibit at the show. In May, Director of Research, Diana Botluk, and I will be the luncheon speakers at the Capital Litigation Training in Tampa, FL on May 22. Many other presentations are scheduled this year.

April08 NCSTLActPubPress

2009-07-12 11:39:13

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PROFESSIONAL ACTIVITIES:

Law and Science fellow Angela Lack presented “All about Forensics”, Elderhostel Program at Eckerd College, FL, February 5, 2008.
Director participated in AAFS 60th Annual Scientific Meeting February 18-23, 2008.
Law and Science fellow Angela Lack presented “All about Forensics”, Elderhostel Program at Eckerd College, FL, March 5, 2008.

NCSTL MEDIA COVERAGE:

Director interviewed at Montel Williams Live Show, “ True Crime: Body of Evidence”, January 17, 2008.
“Cyber Forensics: Part II”, written for the January, 2008 issue of It’s Evident by Dr. Susan Zucker, Director of Technology & Distance Education, was accepted for inclusion in the IACP database in January, 2008.
Director interviewed at Montel Williams Live Show, “True Crime: Body of Evidence”, January 17, 2008.
Cyber Forensics: Part II, written by Dr. Susan Zucker, Director of Technology & Distance Education, was accepted for inclusion in the IACP database in January, 2008.
Director interviewed by David Kurley from ABC on Roger Clemens Case.
Interview by Herbert Bauernedel US Correspondent Austria Daily on 4 Hostages in Iraq “DNA-Decomposed Fingers”
An editorial mention regarding Director named as President of the American Academy of Forensic Sciences appeared in the East Bay Business Times, FL, March 13, 2007.
An editorial mention regarding Director named as President of the American Academy of Forensic Sciences appeared in the Tampa Bay Business Times, FL, March 13, 2007.

April08 ResearchExtra

2009-07-12 11:43:21

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GETTING PERSONAL: IDENTITY THIEVES MAY BE CLOSER THAN YOU THINK
Catherine M. Guthrie, Research Attorney

With an estimated 8 to 9 million American victims each year and a recent surge in media coverage, most of us are familiar with the concept of identity theft.¹ This crime occurs when someone uses another person's personally identifying information, like their name, credit card number, Social Security number, or driver's license, without permission. The stolen data is then used for any one (or more) of a variety of fraudulent activities, nearly all of which are designed to financially benefit the perpetrator.

As the problem has grown, so has the legal community's response. There are now both federal and state laws criminalizing such conduct, thus allowing judges and juries to convict ID con artists and scammers. For example the Identity Theft and Assumption Deterrence Act of 1998, one of the first federal laws on the issue, explains that it is a federal crime when someone "knowingly transfers or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, any unlawful activity that constitutes a violation of federal law, or that constitutes a felony under any applicable state or local law."²

Equally valuable in the fight against this crime is the initial deterrence of identity theft. Thousands of articles, books, courses, and websites offer information about how to protect oneself from falling victim to such predators.³ Specific tips include shredding financial documents, providing Social Security numbers only when absolutely necessary, and using anti-virus software on home computers. The underlying assumption is that it is necessary to safeguard personal data from strangers. In other words, it is often presumed that the criminal contact will come from an outsider unknown to the victim. However, "contrary to what most consumers believe, in cases where the thief is found out, over half of the time the fraud operator turns out to be a coworker, neighbor, in-home employee, friend or family member."⁴ The following case summaries are illustrative of this issue.

Good Fences Make Good Neighbors⁵

Michelle Bogan and her friend, Delphine Coleman, opened a Michigan bank account under the name of Sonya Stubbs. Sonya was Michelle's mentally handicapped neighbor. Delphine actually pretended to be Sonya, and the bank's employees failed to confirm her story with photo identification. As a result the criminal duo was able to obtain car loans, vehicles, and money orders in the victim's name. Eventually police interviewed Sonya, the fraud was exposed, and Michelle was convicted on one count each of identity theft and financial institution fraud. On appeal Michelle argued that she was entitled to a reduction in her offense level because she had accepted responsibility for the crime. Under the relevant sentencing guidelines such behavior would indeed mitigate her punishment. However the facts of the case, which included Michelle's repeated attempts to justify her unlawful conduct to investigators, indicated that she had not actually and honestly accepted liability for her illicit acts.

After an unexplained increase in her car insurance rates in 2003, victim Shyla Dashiell discovered that someone had received a traffic ticket in her name and failed to appear at the related court hearings. As a result her driver's license had been suspended and there was an outstanding warrant for her arrest. The true perpetrator was eventually identified as Shyla's former friend and neighbor, Melissa Presba. Melissa had provided Shyla's birth date, address, maiden name, and social security number when she was pulled over by a State Trooper. Melissa tried unsuccessfully to have her identity theft conviction reversed on the grounds that, inter alia, she should have been charged instead with "criminal impersonation" crimes. After analyzing the content and legislative history of the relevant statutes the appellate court disagreed, holding that identity theft was in fact the correct and applicable charge.

Bad for Your Health⁶

Constance Occident worked as a nurses' aide at INOVA Alexandria Hospital from 1999 to July 2005. During this time she surreptitiously acquired personal identifying information from both patients and co-workers. The information was then passed along to a co-conspirator, Beurn Daphne Ferdinand, in New York where it was used to create new credit card accounts, access existing accounts, and obtain replacement cards. All together the pair amassed nearly $250,000 worth of luxury items using the stolen data. Occident defended her actions at trial by claiming that (1) she had believed Ferdinand was only using the victim's names as references for job applications, and (2) Ferdinand used voodoo to make her comply with the scheme. The trial court was equally unimpressed with both arguments and Constance was convicted of a myriad of charges, including aggravated identity theft. Her convictions were affirmed on appeal.

In 2002 Patricia Morris pled guilty to multiple charges, including one count of identity theft. As part of her plea agreement Patricia admitted to taking personal data from three elderly persons. Patricia had worked for each of these victims as a home health care aide. Their information was used to apply for unauthorized credit cards, which in turn were used for various purchases and cash advances. Patricia was sentenced to nearly four years in jail, a lengthy period time based in part on the fact that she abused her position of trust, victimized particularly vulnerable people, and had a significant criminal history. She contested the sentence, primarily claiming that her lawyer provided ineffective assistance. Specifically, Patricia argued that her lawyer failed to properly investigate and mitigate her criminal history. The court did not find grounds to support her allegations and denied her motion for relief.

All in the Family ⁷

When New Yorkers Theresa Vandermuelen and her husband, Wayne Vandermuelen, expended over $150,000 from bank accounts held jointly with Theresa's elderly grandmother, Helen Palko, the court held the couple guilty of larceny. However the charges did not stop there. Since the pair also opened a credit card in Helen's name with Helen's identifying information and made multiple charges on the account, Theresa and Wayne were convicted of third degree identity theft. On appeal the Vandermuelens argued that, among other things, they were entitled to open the credit card account under a power of attorney (POA) for Helen. This claim failed because neither the credit card application, nor bank witness's testimony, indicated that the card was obtained pursuant to the POA, or on Helen's behalf.

Janet Mallett obtained over $4500 in cash advances and purchases using a newly issued credit card. She also had one of her friends authorized to use the same account. The problem? The card was obtained under Janet's mother's name, Anthony Mallet. These nefarious acts were accomplished using Anthony's place of employment, maiden name, social security number, and date of birth. They were detected when Anthony received information about her account in the mail. Janet was convicted of identity theft by an Iowa jury and her subsequent appeal, which rested partly on the interpretation of an ambiguity in the applicable ID theft statute, was unsuccessful.

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¹http://www.ftc.gov/bcp/edu/microsites/idtheft/consumers/about-identity-theft.html and http://www.privacyrights.org/ar/idtheftsurveys.htm. Note that estimates on the number of victims per year vary by source. For media coverage, see for example: Michelle Andrews, Medical Identity Theft Turns Patients into Victims, U.S. News & World Report (Feb. 29, 2008); Christopher Helman, Fowl Play, Forbes, Page 42, Vol. 181, No. 3 (Feb. 11, 2008); William Kresse, Business Schools: A New Ally in the Fight against Identity Crime, The Police Chief, Page 14, Vol. LXXV, No. 2 (Feb. 2008); Bill Brubaker, Government Sites May Be Identity Thief's Best Friend: Millions of Social Security Numbers Are Easy to Find, Houston Chronicle, Page A29 (Jan. 2, 2008); Freeze, Id Thief!, Newsweek, Page 66, Vol. 150, No. 13 (Sept. 4, 2007). For more resources on Identity Theft, see: Sabrina I. Pacifici and Catherine M. Guthrie, Identity Theft: An Annotated Bibliography of Federal, State, Consumer and News Resources, http://www.llrx.com/features/idtheft.htm (last updated on Sept. 17, 2006).
²http://myfloridalegal.com/usc1028.pdf; P.L. 105-318, Enacted H.R. 4151, October 30, 1998, 112 Sat. 3007, codified at 18 U.S.C § 1028.
³See for example: Kyo Suh, Preventing Identity Theft, Criminal Justice, Page 563, Vol. 22, No. 2 (Summer 2007); Terri Cullen, The Wall Street Journal Complete Identity Theft Guidebook: How to Protect Yourself from the Most Pervasive Crime in America (Three Rivers Press, 2007); courses offered by the Office for Victims of Crime Training and Technical Assistance Center, https://www.ovcttac.gov/; and the Federal Trade Commission Identity Theft Information website at http://www.consumer.gov/idtheft.
⁴The Javelin 2007 Identity Fraud Survey Report: Consumer Version: How Consumers Can Protect Themselves, (Feb. 2007), http://graphics8.nytimes.com/images/blogs/freakonomics/pdf/Javelin%20Report%202007.pdf
⁵The following summaries are derived from: State v. Presba, 126 P.3d 1280 (Wash. Ct. App. 2005) and United States v. Bogan, 166 Fed. Appx. 205 (6th Cir. 2006), respectively.
⁶The following summaries are derived from: United States v. Occident, 243 Fed. Appx. 777 (4th Cir. 2007) and United States v. Morris, No. CRIM. 3:02ER53(SRU), 2005 WL 80881 (D. Conn. Jan. 12, 2005), respectively.
⁷The following summaries are derived from: People v. Vandermuelen, 42 A.D. 3d 667 (N.Y. App. Div. 2007) and State v. Mallett, No. 02-1906, 2003 WL 22901008 (Iowa Ct. App. Dec. 10, 2003), respectively.

April08 ResearchFocus

2009-07-12 11:43:42

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Ghosting … grave robbery for the 21st century
Kevin Paget, Contractor

During 2005, roughly 8.3 million Americans acknowledged that they were victims of identity theft.¹ Identity theft can take on many different forms: from current checking and credit accounts being hijacked to social security numbers being stolen and new accounts created.² But identity theft is not just a problem for the living anymore. One of the newest offshoots of this ever growing problem is called “ghosting”.⁴ Ghosting occurs when the identity of a deceased person is stolen. This problem becomes more visible when a celebrity is affected. On March 6, 2008, Courtney Love reported to a London newspaper that the social security number of her husband, Curt Cobain, had been used to purchase a $3.2 million home in New Jersey.⁵ This clearly is a problem since Cobain, the former lead singer of Nirvana, committed suicide nearly 14 years ago. According to Love, con men have been using her late husband’s social security number to defraud her of millions of dollars.⁶ Although this is only one example, it serves to illustrate the point that identity theft is everywhere and no one is immune from its effects.

Ghosting begins when an individual dies and the obituary is published in a newspaper. Identity thieves learn the full names and addresses of the deceased they plan to “ghost”⁷ from the obituaries. A variety of methods are used to obtain social security numbers and costs range from $45 to absolutely free. The Social Security Administration runs a Master Death Index, which is a searchable database that allows users to enter a name and receive social security numbers of deceased persons that match their search.⁸ The price to use the Master Death Index database – absolutely free! And if this free search does not give the identity thief the information they are looking for, there are sites such as www.secret-info.com. The site advertises that if you “supply a name & address or previous address, we will supply a social security number” for only $20 - $45 per search.⁹ Kwezeta Butler of Albany, GA, used these types of services to secure social security numbers of deceased people from five different states, then later sold the names and social security numbers to individuals with bad credit for up to $600 a piece.¹⁰ As of February 2008, the Indiana Bureau of Motor Vehicles had records of over 100 active licenses registered to deceased persons.¹¹ These kinds of ghosting scams alone have resulted in over $1 million worth of fraud, and are still ongoing throughout the country.¹²

There are several things people should know to address ghosting. First, there is nothing in place to automatically notify financial institutions that their customer is deceased.¹³ In fact, the account of a deceased person will remain active until they receive proper notification of the death from either the Social Security Administration or the individual’s family.¹⁴ These accounts can remain open for up to 10 years without any activity.¹⁵ And it is for this reason that identity thieves target the recently deceased.

Action Steps

At least one state has proposed legislation that would require federal agencies to report deaths to the credit reporting agencies (CRAs), thereby alleviating the burden placed on the families of the recently deceased. A bill like this would result in much faster reporting which would cut down the possible 10 year post mortem account activity.¹⁶

Families of the recently deceased are encouraged to immediately notify the Social Security Administration about the death and to contact all three CRAs.¹⁷ In addition, CRAs should be supplied with copies of the death certificate. The deceased survivors should request that the deceased’s account be flagged with a message saying, “Deceased. Do not issue credit.”¹⁸ These measures hasten the process of deactivating accounts of the recently deceased and help to eliminate at least one avenue that identity thieves use to secure stolen identity data. If identity theft of a deceased family member is suspected, one should immediately contact the CRAs and request a credit report in order to check activity on these accounts.¹⁹ If there is indeed any unauthorized activity, both the police and interested creditors should be notified immediately.²⁰

In addition, when publishing an obituary several pieces of information should be omitted. This can reduce identity theft or at least make it harder for the thief to glean necessary information. One source recommends that full addresses and full birth dates not be published in the obituary as these are critical pieces of information that an identity thief uses in securing these stolen identities.²¹

Becoming aware of the problem of ghosting is just the first step in being able to detect wrongdoing by identity thieves before lasting damage is done. Individuals who follow these steps when a family member dies can greatly reduce the chance that their loved one will be a victim, and greatly reduce the headache that comes along with identity theft.

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¹FTC, Federal Trade Commission – 2006 Identity Theft Survey Report 11, http://www.ftc.gov/os/2007/11/Synov ateFinalReportIDTheft2006.pdf (Nov. 2006).
²Id.
³Identity Theft Victim’s Support Group of North America, ID Theft Victim’s Support Group of North America, Identity Theft Realities, http://www.identitytheft-victims-support-group-of-north-america.org/home.html (Last accessed March 10, 2008).
⁴Id.
⁵Philadelphia Inquirer, Courtney Love: Smell’s Like N.J .Identity Theft, http://www.philly.com/philly/news/2008 0310_Courtney_Love__ Smells_like_N_J__identity_theft.html (Last accessed March 10, 2008).
⁶Id.
⁷MSNBC, Grave Robbery: Stop Identity Theft of the Dead, http://www.msnbc.msn.com/id/18495531/ (Last accessed March 10, 2008).
⁸10 News.com, San Diego News, Identity Thieves Preying on the Deceased, http://www.10news.com/news/ 9331792/detail.html (Last accessed March 10, 2008).
⁹Secret-Info, Secret-Info.com, Our Online Searches and Search Fees, http://www.secret-info.com/searchcosts.html (Last accessed March 10, 2008).
¹⁰Supra n. 7.

April08 ResearchUpdate

2009-07-12 11:44:10

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From the Research Desk: Update
Diana Botluk, Director of Research

The past few months have brought many changes to the Research Department. We have said goodbye to Research Attorneys Elizabeth Fitterman and Marian Daggett. Elizabeth resigned in December to pursue a private law practice. Marian will be resigning at the end of April to spend more time with her family, especially her newborn son! Both were invaluable members of the NCSTL team, and we will miss them, but wish them all the best in their new pursuits.

If you've been perusing the website's Related Links recently, you may have noticed some additions. we have added a linked list of FEPAC-approved educational programs in forensic science. We also provide an information page about the National Academy of Sciences' Committee on Identifying the Needs of the Forensic Sciences Communities. This page describes the project and links to the agendas for each of the meeting dates. It also links to database records describing all the publicly available resources considered at the meetings.

Finally, we'd like to congratulate Research Attorney Catherine Guthrie on her recent marriage to Chris Bailey, son of FDLE Commissioner Gerald Bailey.

April08 TechUpdate

2009-07-12 11:44:17

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TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director of Technology and Distance Education

During the first quarter of 2008, many elements were added to the NCSTL Education and Training section of the website. These include: 1) Archived issues of the FDIAI (Florida Division of the International Association for Identification’s) newsletter to the Special Collections of this section. Issues from 1990-91 and 1999-2002 are currently available, with much more to come. 2) Video footage of Professor Carol Henderson's Digging Up Dirt On Experts presentation has been uploaded.

Two more video elements will be added soon. These are segments from NAS (National Academy of Sciences) lectures and a talk by Senator Joe Biden when he addressed the AAFS (American Academy of Forensic Sciences), a multi-disciplinary professional organization that provides leadership to advance science and its application to the legal system.

Additionally, development of Law 101: Legal Guide for the Forensic Expert and DNA for the Defense are in production. Information on both have been added to the Education and Training section.

DaggettApril07

2009-07-12 11:44:37

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Emerging Forensic Identification Technologies: Heat Shock for Cold Cases
Marian Daggett, Research Attorney

Locating and identifying missing persons remains one of the most challenging aspects of forensic investigation. Part of the challenge lies in finding remains, while the much greater challenge involves identifying the remains and matching them to an actual person. Many times the remains are not properly collected or processed before disposal, and most often, the information collected involves a tedious process of accurate input into a database system. Once uploaded, the information sits indefinitely unless cross-referenced through diligent searches of submitted parallel evidence. A single sample of DNA collected from human remains, for example, must be matched to another separately-collected reference sample of DNA from a close family member; each of these pieces of biological evidence must be carefully analyzed in the laboratory and recorded properly into the database. These same procedures are undertaken for the comparison of fingerprints, photographs, skeletal remains, written descriptions, dental records, and other biological samples.

In a recent article written about the prevalence of cases involving missing persons, the following statistics were noted: "On any given day, there are as many as 100,000 active missing persons cases in the United States. Every year, tens of thousands of people vanish under suspicious circumstances. Viewed over a 20-year period, the number of missing persons can be estimated in the hundreds of thousands. … More than 40,000 sets of human remains that cannot be identified through conventional means are held in the evidence rooms of medical examiners throughout the country. But only 6,000 of these cases—15 percent—have been entered into the FBI’s National Crime Information Center (NCIC) database." ¹

Considering the arduous task of databasing information on missing persons, it is no wonder that so many missing person files go unsolved. One ambitious laboratory, however, has excelled at creating a successful human identification program. The Center for Human Identification has streamlined the process of identifying DNA, providing a model for future development and growth in forensic identification technologies.

UNIVERSITY OF NORTH TEXAS CENTER FOR HUMAN IDENTIFICATION

The Center for Human Identification at the Department of Pathology & Anatomy of the University of North Texas specializes in "the examination of biological evidence and determining its source."² The laboratory programs combine a group of identification initiatives including resources for paternity testing, forensic analysis, and missing persons cases. Through the analysis programs of the center, the scientists have already processed more than 680 unidentified human remains and 1600 family reference samples.³

Specifically, the DNA Identity Testing initiatives serve the following purposes: "to determine parentage with a high degree of precision, forensic analysis of evidentiary samples to help solve crimes, in identification of missing persons and human remains, and identification and ticks carrying a variety of communicable diseases."⁴ Two main laboratory services analyze human DNA for the center: paternity testing and forensic testing. The Paternity Testing program⁵ offers website resources for attorneys, instructions on specimen collection, and detailed descriptions of the types of paternity testing. Simultaneously, the Forensic Testing program⁶ offers descriptive summaries of the body identification process and cases involving criminal paternity, as well as instructions for submitting cases and samples.

The DNA Identification Laboratory uses Polymerase Chain Reaction (PCR) to analyze DNA samples, found both in the nucleus of human cells and in the cellular mitochondria. DNA derived from the nucleus, or nuclear DNA, has been traditionally tested in forensic analysis. Mitochondrial DNA, a newer component of forensic analysis, can be used for smaller or limited samples. Mitochondrial DNA has been applied most recently in the Genographic Project to trace ancestry through maternal lineage.⁷

The ability of the laboratories at the Center for Human Identification to analyze both nuclear DNA and mitochondrial DNA is incredible. With these capabilities, even trace amounts of biological, odontological, and skeletal evidence can be used for analysis and identification.

Once the samples of DNA are analyzed, they are uploaded as DNA profiles in the Texas Missing Persons DNA Database⁸ and the Combined DNA Index System (CODIS)⁹ database. These databases can be accessed online throughout the state of Texas and around the country, connecting law enforcement officers to the latest recorded information on DNA samples submitting to the laboratory.

The DNA Identification Laboratory offers several additional resources, including a flow-chart of the human identification process,¹⁰ and the free disbursement of DNA sample collection kits for family reference samples and for collecting human remains.¹¹ The laboratory also specializes in diagnostic pathogen testing programs, specifically on vector-borne tick diseases¹² , which have future potential for applicability to DNA analysis programs using microbial forensic testing.

The Center for Human Identification was recently filmed for a PBS television show, scheduled to air in the season starting April 8, 2007.¹³ The segment featuring the laboratory is entitled "Skeletons in the Closet" as part of the series "State of Tomorrow," a locally-broadcast program offered by PBS.¹⁴ In the program, the laboratory analysts describe the current research of the two components of the University of North Texas Center for Human Identification: the DNA Identity Lab and the Laboratory of Forensic Anthropology and Human Identification.

STATE IDENTIFICATION PROGRAMS

Similar state laboratories and programs for DNA identification follow this same model of the University of North Texas Center for Human Identification. Two state programs – Florida and New York – are highlighted below, although several more states continue to implement initiatives to increase forensic identification processes.

One human identification initiative was implemented in the state of Florida by the Florida Department of Law Enforcement (FDLE). This program, Florida's Unidentified Deceased Initiative,¹⁵ hosts a website that includes links to the following resources: the Federal Bureau of Investigation (FBI) Crime Laboratory and Florida Highway Patrol contacts, a letter to District Medical Examiners, strategies and available resources for use in solving unidentified deceased person cases, the FDLE Unknown Deceased Fingerprint Identification Request Form, the FBI National Missing Person DNA Database Submission Guidelines, a survey on unidentified persons casework for medical examiners, as well as lists of forensic odontologists in the Florida Medical Examiner System, forensic artists for the state of Florida who can provide forensic composites and skull reconstruction, and forensic anthropologists and physical anthropologists currently being used by Florida District Medical Examiners.

Collaborative identification efforts in the state of Florida also include the Florida Unidentified Decedents Database.¹⁶ This site provides a searchable database for the family and friends of missing persons. The online database provides all collected information, pictures, and descriptions of people found dead in the state of Florida.

Similar to the programs in Florida, the state of New York has implemented programs to identify missing persons. The state recently published a Missing Person Data Collection Guide.¹⁷ The guide provides resources for collecting and analyzing evidence related to missing persons. New York also hosts a Missing and Exploited Children Clearinghouse.¹⁸ Although the website resource is primarily for the identification of children, the site links to several helpful law enforcement tools for solving missing persons cases, such as training, guidelines, technology, and criminal records.

Lastly, a model state policy for implementing missing person identification programs was published by the National Institute of Justice in 2005.¹⁹ Several states – Texas, California, Kansas, Nevada, New Mexico – have written laws implementing identification programs, while numerous other states – Alabama, Arizona, Hawaii, Illinois, Maryland, Ohio, Washington – were inspired by the model policy to draft bills proposing procedures for solving human identification cases.

FEDERAL IDENTIFICATION PROGRAMS

On a wider scale, several federal programs have implemented procedures, guidelines, law enforcement tools, and resources for solving missing persons cases. A few main programs are summarized below, including CODIS, NDIS, NCMA, NCIC, and IAFIS.

The Combined DNA Index System (CODIS), a program of the Federal Bureau of Investigation (FBI), serves as an online law enforcement tool, enabling laboratories across the country to exchange and compare DNA profiles.²⁰ Under CODIS, the National DNA Index System (NDIS) provides a searchable resource to link crime scenes with offenders.²¹ This online tool was created as a combination of two separate national databases – a forensic index of crime scene biological evidence and an offender index – in an effort to coordinate nationwide identification of DNA evidence.

Another federal program designed to aid in the identification of missing persons is the website "Using DNA and Other Resources To Identify Missing Persons"²² offered by The President’s DNA Initiative. The President’s DNA Initiative, a federal program created from the Justice for All Act of 2004²³ , ensures proper collection, prompt access to testing, and accurate laboratory analysis of DNA evidence²⁴. Through the human identification resources of the President’s DNA Initiative, the program has offered two training conferences on missing persons plus a strategy meeting on identifying the missing²⁵, links to DNA sample analysis services²⁶, and descriptions of research and development projects involving missing person identification²⁷.

Similarly, the National Center for Missing Adults (NCMA)²⁸, a program that coordinates efforts with the Office of Justice Programs of the Department of Justice's Bureau of Justice Assistance, sponsors a database of collaborative resources for identifying missing adults. This program enables coordination across the country between law enforcement agencies by facilitating the sharing of resources and information on missing persons.

Additionally, the National Crime Information Center (NCIC)²⁹ hosts a Missing Person File that compiles information on yearly statistics and case records of missing persons. The FBI issues reports on annual missing person statistics as reported under the NCIC program³⁰.

Finally, the Integrated Automated Fingerprint Identification System (IAFIS)³¹ hosted by the FBI, provides an online electronic database of fingerprint evidence and services. The search functions of this site allow law enforcement agencies to submit and compare evidence leading to identification by fingerprint analysis.

The federal human identification resources described above, while not exhaustive, can be supplemented further by exploring the comprehensive list of cold case resources in the Cold Case Toolkit, detailed in the section below.

COLD CASE TOOLKIT

The latest advances in technology used to solve cold cases can be found through a newly-compiled toolkit of cold case resources created by the National Clearinghouse for Science, Technology and the Law (NCSTL) at Stetson University of Law³². The Cold Case Toolkit³³, an interactive component of the NCSTL website, includes a series of links to cold case resources in the following categories: NIJ Resources, Law Enforcement Technology Used in Investigating Cold Cases, Police Department Websites that Solicit Information from Visitors About Cold Cases, Cold Case Forms, Cold Case Investigation Training Opportunities, Psychological and Medical Resources for Families, Regional Cold Case Web Resources, General Cold Case Web Resources, and a Cold Case Bibliography. Each of the resources listed in the Cold Case Toolkit includes a direct website link to the resource, as well as a short description of the content of the resource and its applicability to solving cold cases.

With new advances in DNA research, increasing expertise in forensic laboratories, the capacity for instantaneous international information sharing, and continual discoveries in law enforcement technology, the number of identification programs on state and national levels is rising steadily. With any hope, the emergence of new forensic technologies will soon surpass the growing rate of unsolved identity cases.

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¹ Nancy Ritter, Missing Persons and Unidentified Remains: The Nation’s Silent Mass Disaster, NIJ Journal No. 256, January 2007, available at http://www.ojp.usdoj.gov/nij/journals/256/missing-persons.html
² DNA Identification Laboratory, University of North Texas Health Science Center, available at http://www.hsc.unt.edu/departments/pathology_anatomy/dna/index.htm
³ Nancy Ritter, Missing Persons and Unidentified Remains: The Nation’s Silent Mass Disaster, NIJ Journal No. 256, January 2007, available at http://www.ojp.usdoj.gov/nij/journals/256/missing-persons.html (Statistics current as of July 2006)
⁴ DNA Identity Testing, DNA Identification Laboratory, http://www.hsc.unt.edu/departments/pathology_anatomy/dna/identitytesting.htm
⁵ Paternity Testing, DNA Identification Laboratory, http://www.hsc.unt.edu/departments/pathology_anatomy/dna/paternity.htm
⁶ Forensic Testing, DNA Identification Laboratory, http://www.hsc.unt.edu/departments/pathology_anatomy/dna/forensic.htm
⁷ The Genographic Project, funded by the National Geographic Society, IBM, the Waitt Family Foundation, available at https://www3.nationalgeographic.com/genographic/
⁸ Texas Missing Persons DNA Database, available at http://www.hsc.unt.edu/departments/pathology_anatomy/dna/tmpd.htm
⁹ FBI, Combined DNA Index System, available at http://www.fbi.gov/hq/lab/codis/index1.htm
¹⁰ How Missing Person Identification is Made, DNA Identification Laboratory, available at http://www.hsc.unt.edu/departments/pathology_anatomy/dna/howitworks.pdf
¹¹ Forensic Testing, DNA Identification Laboratory, www.hsc.unt.edu/departments/pathology_anatomy/dna/forensic.htm
¹² Tick-borne Research Laboratory, DNA Identification Laboratory, http://www.hsc.unt.edu/departments/pathology_anatomy/dna/tbrl.htm
¹³ Our DNA Experts Will Be Featured in a New PBS Show, 'Skeletons in the Closet', Campus Connection, University of North Texas Health Science Center, February 16, 2007, available at http://www.hsc.unt.edu/news/Connections/20070216Connect/Links/TopStory08_Feb16_07.html
¹⁴ Public Broadcasting Service (PBS), available at http://www.pbs.org/
¹⁵ Florida's Unidentified Deceased Initiative, available at http://www.fdle.state.fl.us/cjst/mec/identifyingunidentifieddeceased/identifyingdeceased.html
¹⁶ Florida Unidentified Decedents Database, available at http://www.fluiddb.com/
¹⁷ Missing Person Data Collection Guide, New York State Division of Criminal Justice Services, March 2007, available at http://criminaljustice.state.ny.us/missing/graphics/missingpersondataguide122006.pdf
¹⁸ Missing and Exploited Children Clearinghouse, New York State Division of Criminal Justice Services, available at http://criminaljustice.state.ny.us/missing/
¹⁹ Model State Missing Persons Statute, National Institute of Justice, 2005, available at http://www.ncjrs.gov/pdffiles1/nij/210740v2.pdf
²⁰Combined DNA Index System (CODIS), available at http://www.fbi.gov/hq/lab/codis/index1.htm
²¹ National DNA Index System (NDIS), available at http://www.fbi.gov/hq/lab/codis/national.htm
²² Using DNA and Other Resources To Identify Missing Persons, The President’s DNA Initiative, available at http://www.dna.gov/uses/m_person/
²³ Justice for All Act of 2004, H.R.5107, available at http://thomas.loc.gov/cgi-bin/bdquery/z?d108:h.r.05107:
²⁴ The President’s DNA Initiative, available at http://www.dna.gov/info
²⁵ Training and Assistance on Using DNA To Identify Missing Persons, The President’s DNA Initiative, available at http://www.dna.gov/uses/m_person/outreach
²⁶ Analysis of Remains and Biological Samples, The President’s DNA Initiative, available at http://www.dna.gov/uses/m_person/analysis
²⁷ Using DNA To Identify Missing Persons: Research and Development, The President’s DNA Initiative, available at http://www.dna.gov/uses/m_person/research
²⁸ National Center for Missing Adults (NCMA), available at http://www.theyaremissed.org/ncma
²⁹National Crime Information Center (NCIC), available at http://www.fbi.gov/hq/cjisd/ncic.htm
³⁰ National Crime Information Center (NCIC) Missing Person File, available at http://www.fbi.gov/hq/cjisd/missingpersons.htm
³¹ Integrated Automated Fingerprint Identification System (IAFIS), available at http://www.fbi.gov/hq/cjisd/iafis.htm
³² National Clearinghouse for Science, Technology and the Law (NCSTL) at Stetson University of Law, available at http://www.ncstl.org/
³³ Cold Case Toolkit, NCSTL, available at http://www.ncstl.org/education/Cold%20Case%20Toolkit

OPINION: DNA (Daggett)

2009-07-12 11:54:02

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Opinion: DNA
Marian Daggett, Law & Science Fellow

The advances in DNA technology that have come to fruition in the past ten years are incredible. Not only have we seen the thirteen-year genome project complete the sequencing in 2003 of the three million base pairs composing human DNA,¹ but DNA technology continues to alter and advance forensic evidence examination in the following ways:

tools have been designed to amplify and analyze strands of degraded DNA;²
an international collaborative project is underway to complete the mapping of DNA single nucleotide polymorphisms and to find genetic correlations within typical genome sequence nucleotide variations; ³
successful analyses of remains from large-scale national disasters have expanded the parameter of DNA forensics applications; ⁴
laboratory analysts have discovered the increasingly accurate capabilities of mitochondrial DNA;⁵
a national DNA database system, Combined DNA Index System, CODIS,⁶ enables the coordination between state DNA database collection, while nearly every state has created a complex set of DNA database legislation, allowing for the forensic collection of DNA; ⁷
a federal initiative, originating from the Justice for All Act of 2004,⁸ ensures fairness throughout the judicial processes via proper collection, prompt access to testing, and accurate laboratory analysis of DNA evidence.⁹

In the very same last ten years, since the brutal murder of the delicate beauty queen, six-year-old JonBenet Ramsey in Boulder, Colorado,¹⁰ DNA tests have become so decisive that the guilt or innocence of a suspect can be resolved with a single swab. If viable DNA evidence is available to submit to laboratory analysis, then prosecutors have a much better chance of supporting the charges in a case.¹¹ Innocent people are no longer sentenced to death on false testimony, their lives traded in a legal game of plea-bargains and conjured stories.¹²

But in the case of John Mark Karr, the desire was to turn back time and stop scientific discoveries dead. It is tempting to dismiss the ease of DNA identification as an unnecessary piece of evidence in this case despite the rapidity of advancing technological and scientific forensic analyses. How convenient it would have been to disregard DNA evidence and take the freely-offered murder confession of a known sexual deviant- the man who taught vulnerable children,¹³ ¹⁴ the same man who fled charges of child pornography in California - and put him away for the rest of his life.

Why did he confess to such a notorious crime? Was it for "fifteen minutes of fame"? People with psychological problems and delusions of grandeur often have the need for public gratification through notoriety, and what better way than to be the focus of international news across the globe.¹⁵ ¹⁶ Not only did he draw the attention of media around the world, but John Mark Karr cost the legal system in Boulder, Colorado, almost ten-thousand dollars to bring him back from Thailand. This was billed as the most expensive DNA test in the state’s history.¹⁷ The reporters exerted so much energy on this case that they went so far as to debate who would defend him. It would have added insult to injury if Colorado spent thousands more dollars to use its legal defense system to defend this hoax of a defendant.¹⁸ After two weeks of media frenzy, his confession merely took the legal system and the press for a ride – a roller-coaster filled with hope and anxiety that the ten-year-old case would be closed.¹⁹ If only the confession could have been taken on its merits, then the family would have been able to move on, and the public would have resolved the tedious crime investigation that continues to stretch over a decade.

Now what with the exoneration of John Mark Karr? DNA evidence did not prove his guilt.²⁰ ²¹ ²² This case could be viewed as a legal embarrassment for years to come.²³ If found guilty of child pornography charges, anything short of conviction and a long prison term will be a disgrace to the integrity of the legal system in the United States and around the world.

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¹U.S. Department of Energy Office of Science, Human Genome Project Information (available online at Human Genome Project) Genome Programs, Office of Biological and Environmental Research, U.S. Department of Energy (available online at U.S. Department of Energy Office of Science)
²P. Grubwieser et al, A New 'MiniSTR-Multiplex' Displaying Reduced Amplicon Lengths For The Analysis Of Degraded DNA, 120 INT'L J. LEGAL MED. 115, Issue 2, March 2006 (available online at SpringerLink)
³International HapMap Project Christen Brownlee, SNPs Ahoy!, 168 SCIENCE NEWS 277, No. 18, Oct. 29, 2005, (available online at Science News)
⁴Leslie G. Biesecker et al, Epidemiology: DNA Identifications After the 9/11 World Trade Center Attack, 310 Science 1122, Issue 5751, Nov. 18, 2005 (available online at Science Magazine); DNA Identification in Mass Fatality Incidents (available online at DNA Identification in Mass Fatality Incidents)
⁵Paul Gianelli, Mitochondrial DNA, 19 CRIM. JUST. 54, No. 4, Winter 2005, (available online at Mitochondrial DNA); V. Castella et al, Forensic Identification of Urine Samples: A Comparison Between Nuclear and Mitochondrial DNA Markers, 120 INT'L J. LEGAL MED. 67, Issue 2, March 2006 (available online at SpringerLink)
⁶FBI, Combined DNA Index System (available online at Combined DNA Index System )
⁷ASLME, Special Report: Survey of DNA Database Statutes, April 2006 (available online at Special Report: Survey of DNA Database Statutes)
⁸Justice for All Act of 2004, H.R.5107 (available online at Justice for All Act of 2004)
⁹The President’s DNA Initiative(available online at The President’s DNA Initiative)
¹⁰Ralph Blumenthal & Dan Frosch, Suspect in Ramsey Killing Returns to the U.S., N.Y. TIMES, Aug. 21, 2006, at A10 (available online at NY Times)
¹¹Editorial, Duke and DNA Evidence, N.Y. TIMES, Aug. 29, 2006, at A18 (available online at NY Times)
¹²Leonard Pitts, Hanged With a Rope of Poor 'Evidence': So I Read in the Paper Where Another Man is About to be Lied to Death, FT. WORTH STAR-TELEGRAM, Aug. 22, 2006, at B9 (available online at FT. WORTH STAR-TELEGRAM)
¹³Randal C. Archibold, Brenda Goodman, Kirk Johnson, Carolyn Marshall, Suspect in Ramsey Killing Agrees to Colorado Transfer, N.Y. TIMES, Aug. 23, 2006, at A17 (available online at NY Times )
¹⁴Andrew Murr, Jennifer Ordonez, Paul Tolme, Melanie Lasoff Levs, Frederick Burger, Evidence of Obsession: New Clues About Karr's Lurid Fascination with the Murder of JonBenet, NEWSWEEK, Sept. 4, 2006, at 51 (available online at Newsweek)
¹⁵Jill Porter, Media Technology: Quick to Judge & Exonerate: Let the Self-Flagellation Begin, PHILA. DAILY NEWS, Aug. 30, 2006, at 8 (available online at PHILA. DAILY NEWS)
¹⁶Katherine Ramsland, Grim Fantasies Could Be a Sign, PHILA. INQUIRER, Sept. 2, 2006, at C07 (available online at PHILA. INQUIRER)
¹⁷Staff Writer, DA Defends JonBenet Arrest, PITTSBURGH POST-GAZETTE, Aug. 30, 2006, at A3 (available online at PITTSBURGH POST-GAZETTE)
¹⁸Associated Press, Who Will Defend Karr Still Not Clear, NEWSDAY, Aug. 23, 2006, at A27 (available online at Newsday)
¹⁹Associated Press, And in the End, Karr Takes Everyone For a Ride: Just as Before, Law Enforcement Proved Overeager, NEWSDAY, Aug. 29, 2006, at A04 (available online at Newsday)
²⁰Kirk Johnson, DNA Tests Torpedo JonBenet Charges, PITTSBURGH POST-GAZETTE, Aug. 29, 2006, at A1 (available online at Post-Gazette)
²¹Jeff Kass, Case Fails on DNA Match, NEWSDAY, Aug. 29, 2006, at A04 (available online at Newsday)
²²Kirk Johnson, Katie Kelley, Carolyn Marshall, Suspect Cleared in Ramsey Case After DNA Tests, N.Y. TIMES, Aug. 29, 2006, at A1 (available online at NY Times)
²³Julie Bosman, Reflection and Red Faces after the Ramsey Storm, N.Y. TIMES, Aug. 30, 2006, at E2 (available online at NY Times)

Evident Archive from homepage

2009-10-19 11:52:50

FittermanOctober07

2009-07-02 14:21:22

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Electronic Control Devices: Legal Aspects Overview
Elizabeth Fitterman, Research Attorney

Introduction
A report by the U.S. Government Accountability Office (GAO) released in 2005 reported the use of TASER® electronic control devices by over 140,000 police officers in the field representing 7,000 of the 18,000 law enforcement agencies across the country. Recently, TASER International, Inc., the same source referenced in the GAO’s report, estimated that the number of agencies deploying the use of their electronic control devices (ECDs) had increased substantially to include more than 11,500 agencies, or about 70 percent of all law enforcement agencies in the United States. Further, possession and use of some type of ECD is lawful by both public agencies and private citizens in nearly all jurisdictions. The trend favoring the use of ECDs inevitably calls to mind the legal implications associated with ECD usage for which this article presents an overview.

Electronic control devices are intended to instantly but temporarily incapacitate an individual by delivering an electric shock either through a wire tethered to barbed projectiles fired from up to 21 feet away or by holding the weapon directly against the person. “Tasers” or “stun guns” are the terms most commonly associated with the weapons. However, the seemingly ubiquitous term “taser” is actually an acronym for “Thomas A. Swift’s Electric Rifle,” and a trademark brand name appropriately reserved only for the types of ECDs marketed by TASER International, the company that dominates the ECD market. Similar devices and their terms and acronyms include electro-muscular disruption device (EMD), conducted energy device (CED), dart-firing stun gun, STINGER®, a four-dart stun gun introduced by Stinger Systems, Inc., and the LEA Stun Pistol® by Law Enforcement Associates, Inc. All TASER devices are promoted by the company as “non-lethal” as defined by the Joint Concept for Non-lethal Weapons (U.S. Marine Corps), and other manufacturers also claim non-lethal status for their devices through independent testing and studies. Courts have generally held that the use of TASER devices, ECDs and EMDs is a form of less-lethal or non-deadly use of force.¹

Despite their non-lethal status, more than 150 deaths have occurred after exposure to an ECD, with many cases highly publicized. Widely varying reports from numerous sources attempt to attribute or absolve the EMD device exposure as the cause of death in the cases. Amnesty International examined 72 mortality cases and reported that in no case was the use of an ECD indicated or implicated as the specific cause of death although use of the device could not be ruled out absolutely as a possible factor contributing to death. Other contributing factors, however, were identified including pre-existing morbidity like heart disease, and additional significant factors such as recent and excessive drug ingestion and the application of more traditional forms of physical force (for example, use of a baton or restraints).

Indeed, the majority opinion across diverse public and private international, national and local associations, organizations and agencies tend to conclude that electronic control devices represent a “tremendous benefit and tool for use by law enforcement” in which “injuries (both sides) and a reduction in the use of deadly force have occurred.”² However, when the use of an ECD is alleged to cause an injury or death, law enforcement and other government agencies are subject to civil lawsuits for damages. Further, individual government agents, specifically law enforcement officers, may face both civil liability and criminal prosecution. Most lawsuits against law enforcement agencies or officers alleging an ECD-related injury claim that the injury occurred because the officer involved used the ECD in a manner or under circumstances that violated the suspect or individual’s constitutional rights under the Fourth (4th) or Eight (8th) Amendment of the United States Constitution. If a violation has occurred, the officers or agency may lose their protection from liable ordinarily afforded by the doctrine of qualified immunity.

4th Amendment Application
Each ECD deployment is a “use of force” issue potentially subject to legal scrutiny under the 4th Amendment (Search and Seizure). The right to make an arrest or investigatory stop and “some degree of physical coercion or threat” to effect the stop is detailed in a landmark Supreme Court case, Graham v. Connor³. The measure of “some degree” of force is analyzed under a “test of reasonableness” also detailed in Graham, in which the Court stated that reasonableness “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”⁴ Further, Graham provided four circumstances that an officer may face in which the use of force is reasonable, any one of which will suffice to meet the test.⁵ Conversely, use of force determined excessive or unreasonable, including excessive or unreasonable use of an ECD, is misuse and unlawful conduct that violates the 4th Amendment. A second Supreme Court use of force case underscored the important distinction between misuse and lawful use when it noted that the 4th Amendment “addresses ‘misuse of power,’ not the accidental effects of otherwise lawful conduct.”⁶

Since Graham, lower courts have defined additional factors to determine whether an officer’s use of force is objectively reasonable including:

whether the force applied resulted in injury

the number of officers compared to the number of suspects involved, or the age or physical condition of the officers and suspects

whether the suspect had a violent history with the officer or a violent history known to the officer

the suspect’s mental history if known to the officer or the apparent use of alcohol or drug use by the suspect

the presence of innocent parties who could be harmed without the intervention of force

Courts have allowed reasonable use of ECDs to compel compliance with an officer’s commands, noting that pointing with a firearm does not gain compliance but pointing with a TASER device usually does. For example, an officer’s use of a TASER device to accomplish the arrest of a belligerent and confrontational driver was found reasonable under the totality of the circumstances after a verbal command failed to obtain compliance and an attempt to handcuff the suspect might have escalated into a serious physical struggle. By contrast, use of an ECD to compel a crying, handcuffed suspect off the ground and into a patrol car after a traffic stop was disproportionate, unreasonable and therefore unlawful.

8th Amendment Application
Claims of ECD misuse under the 8th Amendment apply only to the use of the devices on convicted and incarcerated persons. Generally, the use of ECDs on inmates to quell disturbances or to compel obedience to orders, including orders to be handcuffed or searched, must have a nexus with a reasonable security purpose or the use of the device violates the 8th Amendment. ECDs cannot be used to punish prisoners. Unjustified shocking of shackled prisoners has been termed by courts as “maliciously and sadistically” applied force.⁷ Similarly, a deputy used unlawful force when he deployed a TASER device on a pretrial detainee for adamantly, but without any threat of physical violence, refusing to comply with the deputy’s order. No security purpose existed because the other inmates were closed in their cells and the detainee was not physically violent.

Qualified Immunity Under 41 U.S.C. § 1983
Under the doctrine of qualified immunity, a government officer, employee or agency, such as a law enforcement officer or police department, is shielded from lawsuits and liability for injuries or death that might occur in the line of duty. The importance of this shield to law enforcement officers and agencies cannot be understated. In the absence of qualified immunity, a government agency, officer or employee may be personally financially liable for damages including the plaintiff’s attorneys’ fees and punitive damages assessed to further punish the wrongdoer. In addition to catastrophic financial liability, an individual defendant such as a police officer may also be subject to disciplinary actions and criminal prosecution.

Qualified immunity can be lost if the government agency or officer violates an individual’s constitutional rights. In cases alleging injury from the use of an ECD, the claims are generally that the officer used excessive force in violation of a suspect’s 4th Amendment right or used an ECD to punish an incarcerated individual in violation of the inmate’s 8th Amendment right.

To determine whether the protection of qualified immunity should apply, courts use a two step test articulated by the Supreme Court that largely favors the officer or agency involved. For example, in a case alleging excessive force associated with the use of an ECD, a court must first address whether the officer’s conduct violated a constitutional right analyzed under the 4th Amendment’s objective reasonableness standard discussed above, that is, whether the officer acted reasonably under the circumstances at the moment, not in 20/20 hindsight. Only if the court finds that the officer in fact violated the suspect’s 4th Amendment right does the court move to the second step of the analysis which seeks to determine whether immunity should still operate to shield the officer from liability. Under the second step, to ultimately deny the officer qualified immunity, the court must find that it was clear to the officer that his conduct was unlawful. Thus, the doctrine of qualified immunity is broad in scope and serves to protect all “except the plainly incompetent or those who knowingly violate the law.”⁸

Mitigating ECD Liability
The number of injuries and deaths occurring in conjunction with the use of an electronic control device prompted law and policy makers at all levels to seek input from local citizens, advisory groups and special studies regarding the implementation and continued use of ECDs particularly by law enforcement agencies. As a result, many insights into the development of sound policies, procedures, and training curricula for the use of ECDs have evolved and warrant consideration by all agencies as methodologies to promote sound and safe practices in the use of ECDs, but also as measures to prevent or dissuade litigation alleging ECD related injuries.

Comprehensive and documented training programs and procedures are key defenses against qualified immunity challenges and civil liability aimed at agencies. An officer well-trained in how and when to use an ECD is less likely to run afoul of a suspect’s constitutional rights. Policy makers are advised to seek opportunities to educate the public regarding the use of ECDs and promote their agency’s commitment to the safe and prudent use of the devices. Medical experts have articulated recommendations for consideration such as limiting the number of ECD “doses,” avoiding usage against high-risk individuals like the elderly, young and pregnant women and implementing training to help law enforcement officers identify and manage high-risk individuals.

Individuals diagnosed as suffering from “excited delirium” have been identified as particularly high-risk individuals. Policies and training directing law enforcement officers to immediately contact EMS if an ECD is used on a high-risk person have proven effective in preventing subsequent injury or death. For example, in October 2006, Miami-Dade Fire Rescue implemented a pilot program implementing an “electronic control device protocol” to provide special medical attention to people under the effect of drug-induced “excited delirium” or subjects exhibiting signs of a stimulant overdose when shot by electronic stun guns. Medical treatment might include administration of a fast-acting sedative spray to calm the subject if still agitated before injecting iced saline solution to lower body temperatures—often as high as 108º—an effect of the ingested drug, not the EMD device, and sodium bicarbonate to counteract acids released by tensed muscles. Since implementation through June 2007, the protocol has been used at least 17 times with no resulting deaths.

Additionally, law enforcement agencies should utilize the substantial experience of numerous organizations and benefit from the experience of other agencies. By example, the International Association of Chiefs of Police (IACP) in collaboration with the Montgomery County Maryland Police Department and with grant support from the National Institute of Justice, has developed “Electro-Muscular Disruption Technology: A Nine-Step Strategy For Effective Deployment,” a brief that includes assistance to law enforcement in developing policies, procedures, and training curricula for EMD device use. Similarly, the Less Lethal Working Group (LLWG) maintains a website created to assist local, state and federal law enforcement agencies in developing, implementing and enhancing the use of all less lethal technologies. Sound policies and programs detailing the appropriate and proper use of electronic control devices protect law enforcement agencies and officers and the public they serve.

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FOOTNOTES
¹See Ewolski v. City of Brunswick, 287 F.3d 492 (6th Cir. 2002); Russo v. Cincinnati, 953 F.2d 1036; Parker v. City of South Portland, NO. CIV 06-129-P-S, 2007 U.S. Dist. WL 1468658, at *21 (D.Me. May 18, 2007).
²“TASERS: Deadly Force?” Final Report of the Miami-Dade County Grand Jury, February 2, 2006, available at http://www.miamisao.com/publications/grand_jury/2000s/gj2005s.pdf, last viewed June 10, 2007.
³Graham v. Conner, 490 U.S. 386, 396 (1989).
⁴Graham, 490 U.S. at 396.
⁵“the test of reasonableness . . . requires careful attention to the facts and circumstances of each particular case, including: (1) the severity of the crime at issue; (2) whether the suspect poses an immediate threat to the safety of the officers or others; (3) whether he is actively resisting arrest; or (4) whether he is attempting to evade arrest by flight.” Graham, 590 U.S. at 396 (emphasis added)
⁶Brower v. County of Inyo, 489 U.S. 593, 596 (1989) (emphasis added).
⁷Shelton v. Angelone, 183 F.Supp. 2d 830 (W.D. Va. 2002)
⁸Couden v. Duffy, 446 F.3d 483, 501 (3d Cir.2006) (Weis, J., dissenting) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).

REFERENCES
Government Accountability Office (GAO), “Taser Weapons: Use of Tasers by Selected Law Enforcement Agencies,” June 27, 2005, available at: http://www.gao.gov/htext/d05464.html, last viewed July 10, 2007.
Paulette H. Simms, Florida Department of Law Enforcement, “An Overview of Electronic Control Devices and Their Use in Florida,” available at: http://www.fdle.state.fl.us/cjst/Publications/ECDoverviewAndFLuse.pdf, last viewed July 10, 2007.
TASER International, Inc., available at: http://www2.taser.com/Pages/default.aspx, last viewed July 10, 2007.
International Association of Chiefs of Police, “Electro-Muscular Disruption Technology: A Nine-Step Strategy for Effective Deployment,” available at: www.iacp.org/research/rcdcuttingedgetech.htm, last viewed July 10, 2007.
Less-Lethal Working Group, available at: http://less-lethal.org/web/home.-aspx, last viewed July 10, 2007.
“TASERS: Deadly Force?” Final Report of the Miami-Dade County Grand Jury, February 2, 2006, available at: http://www.miamisao.com/publications/grand_jury/2000s/gj2005s.pdf, last viewed June 10, 2007.
Richard Willing, “Stun Gun Salve in Miami Cuts Risk of Death,” May 17, 2007, available at: http://www.usatoday.com/news/nation/2007-05-17-stun-gun-miami_N.htm, last viewed July 10, 2007.
Eric Edwards, “Electronic Control Device Legislation-General Themes,” 2005, available at: http://www.aele.org/ecdlegislation2005.html, last viewed July 10, 2007.

CASES
Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004).
Hernandez v. Terhume, not reported in F.Supp.2d, 2000 WL 1847645 (N.D. Cal. 2000).
Williams v. Schueler, No. 04-C-65, 2006 WL 3469597 (E.D. Wis. Nov. 29, 2006).
Preston v. Pavlushkin, slip copy, 2006 WL 686481 (D. Colo. March 16, 2006).
Bazan v. Hidalgo County, 246 F.3d 481 (Cal. Ct. App. 2001).
Ewolski v. City of Brunswick, 287 F.3d 492 (6th Cir. 2002).
Russo v. Cincinnati, 953 F.2d 1036 (Ct. App. 6 1992).
Parker v. City of South Portland, NO. CIV 06-129-P-S, 2007 U.S. Dist. WL 1468658, at *21 (D.Me. May 18, 2007).
Sharrar v.Felsing, 128 F.3d 810 (3d Cir. 1997).
Martin v. Gentile, 849 F.2d 863 (4th Cir. 1988).
Deorle v. Rutherford, 272 F.3d 1272 (9th Cir. 2001).
Krueger v. Fuhr, 991 F.2d 435 (8th Cir.).
Dean v. Worcester, 924 F.2d 364 (1st Cir. 1991).
Pino v. City of Sacramento, No. Civ.S-052080WBSDAD, slip op. 2006 U.S. Dist. WL 193181 (E.D. Cal. Jan. 19, 2006).
U.S. v. Ackerman, No. 8:05-CR-144-T-27TGW, slip op. 2006 U. S. Dist. WL 224028 (M.D. Fla. Jan. 30, 2006). Buckley v. Haddock, No. 5:06cv53-RS slip op. 2007 U.S. Dist. WL 710169 (N.D. Fla. March 6, 2007).
Carswell v. Borough of Homestead, 381 F.3d 235 (3rd Cir. 2004).
Sheehan v. United States, 822 F. Supp. 13 (D.C. Cir. 1993).

Methamphetamine: A New Tiger to Tame

2009-07-12 11:56:05

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Methamphetamine: A New Tiger to Tame
Leeanne Frazier, Staff Researcher

The media has labeled the rise of production methamphetamine and use (or meth in the common vernacular) as the new drug epidemic of the early 21st century.¹ It was cocaine in the 70s, crack in the 80s and ecstasy in the 90s. Every decade in recent years seems to bring a new drug du jour, and meth is the latest in that line. In addition to being another drug in the panoply of abusive substances to invade human society, meth presents new challenges and issues for law enforcement officials and the public because of the hazardous and toxic conditions produced by meth manufacturing laboratories, the fact that these labs can be setup in essentially any location, and the long-term physical and psychological damage any use of the drug can cause.²

Many states have responded to this crisis with a three-pronged approach that promotes the following aims: educate the public about the destructive nature of meth, stop the sale of meth-producing products prior to manufacture, and regulate cleanup procedures after meth labs are discovered and shutdown. To facilitate these goals partnerships among law enforcement, commercial retailers and the public have grown to separately and collectively deal with this ongoing struggle. Additionally, the White House, through the Office of National Drug Control Policy, has implemented measures at the federal level to address issues unique to meth manufacture and ingestion. This article provides an overview of state programs designed to combat meth locally and briefly touch on some federal efforts addressing methamphetamine issues nationally.

One of the most prevalent prevention methods, employed by over a dozen states nationwide, involves the implementation of watch programs. Watch programs are aimed at reducing the theft and sale of products used in the manufacture of methamphetamine.³ This goal is accomplished through the cooperation of local retailers with law enforcement. Retailers typically adopt guidelines that govern product placement, post signs around the store about the watch program, limit the amount of suspect material that an individual could purchase in a single sale, and contact law enforcement if suspicious activity is observed. Retailers' are motivated to participate in these programs because they see a reduction from in the amount of theft of methamphetamine-related products and a reduction in the contamination of surrounding land due to meth manufacture, which is a particular concern for rural communities where small labs pop up everyday.⁴ Further, the ingredients needed to manufacture meth, unlike other illegal drugs, are readily available through local purchases. Thus, this program is an important link in the effort to eliminate the creation of meth.

The second approach utilized by many states involves containing the environmental impact of meth labs after discovery by law enforcement officers or members of the public. As stated above, meth labs create a highly toxic environment that can injure anyone exposed to the fumes created during production.⁵ The toxicity issue is new to drug enforcement, and in order to minimize the danger to law enforcement, programs are in place to train personnel to recognize and properly respond to evidence of detritus common to meth labs.⁶ Once this identification is made by on-site officials, the property must be quarantined and closed until a licensed decontamination contractor can assess and clean the location.⁷ This is the most dangerous aspect of meth, and programs such as these are vital for the health and safety of law enforcement and the surrounding community. These programs are especially important in light of the fact that there are many more small labs in rural communities than so-called "superlabs" around dense areas of population that lend themselves to ready identification.⁸ Without training law enforcement officers would unknowingly walk into lethal situations and likely miss signs of meth production. Ultimately, the efficient shutdown and cleanup of meth labs will enhance the ability of law enforcement to cutoff the supply of meth to established and new users.

The third major technique used to address the meth epidemic makes use of websites dedicated to educating the public about the effects of the drug on the users’ and loved ones’ lives, as well as, the permanent effect it has on users’ health from the first use.⁹ Statements from friends, families, and former addicts are posted on the websites and give a personal view of the devastating effects of this drug.¹⁰ Further, the websites provide an image of the meth user that differs from the stereotypical assumption of drug users as wealthy cocaine addicts or poor minority crackheads. Instead, the websites show that many meth users are middle class Americans. It is through this medium that, hopefully, the public's view of "what a drug addict looks like" will change to incorporate the understanding that anyone can become addicted to meth, including your son or daughter, best friend, or next door neighbor. This message is particularly essential to providing information a person would need to recognize signs of meth addiction in another. Moreover, it is an entirely new method of communicating with the public opened up with the Internet explosion of the past decade.

Finally, the White House issued a strategic plan last year which tackles methamphetamine production and use from several angles. First, the Administration is pushing for legislation to be enacted that would limit the amount of over-the-counter pseudoephedrine products, a mixture used in meth production, an individual could purchase. The Administration seeks to allow federal regulation and supervision of the distribution and sale of these products. Second, the Administration intends to provide prevention and treatment measures through the award of grants that will fund treatment programs for meth addiction, increase the number of prosecutions for methamphetamine production, and coordinate federal agencies investigative efforts. This includes the establishment of a forensic science training laboratory at the Justice Training Center. Third, it would like to provide educational resources on meth addiction to the general public, and lastly, fund projects and studies that will look into the effect meth addiction has on the children of abusers and new ways to cleanup damage to land around a meth lab.

All of the methods described above illustrate the multifaceted and complex techniques that are necessary to oppose the new concerns that are presented by meth. It seems that as we advance technologically we also find new and more dangerous ways to hurt ourselves. These recent additions to the arsenal against drug use represent the latest evolution in this ongoing battle. Hopefully, our ingenuity and our resources will continue to be enough to keep pace with the bad guys.

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¹ Some Examples - “Frontline: The Meth Epidemic” (PBS television broadcast, 2006); David J. Jefferson, “America's Most Dangerous Drug”, Newsweek, Aug. 8, 2005; “Nation: Study: Meth Epidemic Fueling Family Break Ups” (NPR radio broadcast, July 5, 2005).
²Dana E. Hunt, “Methamphetamine Abuse: Challenges for Law Enforcement and Communities ”, 254 National Institute of Justice Journal, (July 2006).
³Meth Watch Program(last visited September 19, 2006).
⁴Id.
⁵Hunt, “Methamphetamine Abuse”.
⁶Methamphetamine (Meth) Cleanup Program(last visited September 19, 2006; Oregon Drug Lab Cleanup Program (last visited September 19, 2006).
⁷A corollary issue that arises with meth lab contamination is the liability of landowners for the remediation of damaged property and the liability future purchasers for additional toxicity issues. See Brian Privett, Landowner Civil Liability for Meth Lab Contamination under Kentucky Law, 44 Brandeis L.J. 715 (2006).
⁸Oregon Drug Cleanup Program.
⁹This effect can be traced to the fact that methamphetamine stays in a person's system much longer than other drug types. See The Body – Frequently Asked Questions about Crystal Methamphetmaine (last visited September 19, 2006).
¹⁰Examples among hundreds - Methamphetamine: Stories and Letters of the Hidden Costs (last visited September 19, 2006); Meth Stories: Affecting Your Community (last visited September 19, 2006); Meth Madness Recovery (last visited September 19, 2006).
¹¹Office of National Drug Control Policy, Taking Action Against Methamphetamine, News and Public Affairs, Aug. 15, 2005.
¹²Id.

Caywood Collection

2009-07-13 16:04:36

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Historical Collection of Questioned Documents, Firearms and Ballistics Donated to NCSTL
Diane Gustafson, NCSTL Coordinator

The NCSTL Library Reference Collection was recently the recipient of a comprehensive set of books, documents, articles, photographs, reference materials and personal papers from the estate of Mr. Douglas A. Caywood. Mrs. Janet Caywood, his wife, generously donated this important and historical collection to the NCSTL for which the NCSTL is extremely grateful.

Mr. Caywood systematically collected a wealth of information regarding questioned documents, firearms and ballistics over the course of lifetime. Mr. Caywood entered military service as an Infantryman in 1941 and served overseas as an instructor with the Chinese National Army, In Yunnan Province, Free China. He briefly left the service to attend the University of Colorado then re-entered military service in 1946 and was assigned to Germany where he entered the Criminal Investigation Laboratory Service.

Upon completion of apprentice training in general criminalistics under the commander of the U.S. Army Crime Laboratory in Frankfurt, Germany, he presented the first Questioned Documents case before a U.S Military Government Court in September 1948. Mr. Caywood went on to serve with the Army Crime Laboratories in the United States and Japan as well as repeated tours of duty with the European Crime Lab. Mr. Caywood served as an expert witness in Questioned Documents before all levels of military courts for all U.S. forces, as well as Japanese Criminal Courts, from 1948 to 1970 and later served as a private consultant and expert witness.

GuthrieApril07

2009-07-12 11:45:25

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Killing Time: The Application of John Doe Indictments to Keep Cases Warm
Catherine M. Guthrie, Research Attorney

One of the greatest frustrations associated with cold cases is that, thanks to statutes of limitation, the mere passage of time can place guilty individuals safely beyond the reach of law. Specifically, "a statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict."ⁱ In general, the clock starts to run from the time the crime was committed and is tolled, or suspended, by the commencement of a prosecution.ⁱⁱ Commencement requires an indictment (or arrest warrant, depending upon jurisdiction) against a specific individual.ⁱⁱⁱ If a suspect is not identified and the deadline is not met, the accused becomes immune from action. It is hard to imagine a greater, and less deserved, reward for one's ability to remain anonymous.

Statutes of limitation were designed with multiple purposes in mind, all of which fall under the general goal of promoting justice through finality. The most commonly cited of these purposes include: (1) ensuring the use of fresh evidence, (2) encouraging prompt and efficient police work, and (3) generating closure and repose for both criminals and the community.^iv However such laws can also arguably denigrate justice by arbitrarily and unsympathetically allowing criminals to avoid capture and punishment. This is significant in cold cases because, by definition, months, years or even decades have passed since the criminal act occurred.

Lawmakers have utilized the advent of DNA technology to create an innovative and increasingly popular solution: the John Doe indictment. Unlike their traditional counterparts, John Doe indictments use DNA profiles instead of names to identify individual suspects. As a result crime scene evidence such as semen or hair samples can be used to hold a case open for years, until a viable suspect is identified.

One of the earliest examples of this approach is a 1999 rape/kidnapping case in Milwaukee. The Assistant District Attorney in the case, Norman Gahn, successfully stopped the clock by identifying the perpetrator as "'John Doe, unknown male' with matching DNA 'at genetic locations D1S7, D2S44, D5S110, D10S28 and D17S79.'"^v Other jurisdictions followed suit, as seen in both case law^vi and legislation.^vii While this trend is usually seen in sexual assault cases (where both biological evidence and statutes of limitation are more prevalent), one prosecutor even expanded the use of John Doe indictments to homicide.^viii

As with any new legal tactic, this trend is not without its critics.^ix Opponents claim the use of a DNA profile does not describe the accused with enough particularity as required by the Fourth Amendment.^x There is also concern about alleged due process and speedy trial violations.^xi Nonetheless the approach has survived on appeal, as seen in the June 2006 case of State v. Danley.^xii This case arose from a rape and robbery committed in 1998. The Danley court held that the state's warrant, filed in 2003, successfully tolled the applicable statute of limitation even though it only listed the suspect's DNA profile and gender. If this case is any indication, John Doe indictments will continue to grow as a popular tool in the investigation and prosecution of cold cases.^xiii

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ⁱStogner v. California, 539 U.S. 607 (2003), citing U.S. v. Marion, 404 U.S. 307 (1971)
ⁱⁱMeredith A. Bieber, Meeting the Statute or Beating It: Using “John Doe” Indictments Based on DNA to Meet the Statute of Limitations, 150 U. Pa. L. Rev. 1079 (January 2002)
ⁱⁱⁱ Id.
^iv Frank B. Ulmer, Using DNA Profiles to Obtain "John Doe" Arrest Warrants and Indictments, 58 Wash. & Lee. L. Rev. 1585 (2001)
^v David Doege, Novel Warrant IDs Suspect Only by DNA: Databank Evidence Used to Charge ‘John Doe’ in Rape, Milwaukee J. Sentinel, Sep. 2, 1999, at 1
^vi For example. see State v. Dabney, 663 N.W. 2d 366 (Wis. Ct. App. 2003)
^viiScott Akehurst-Moore, An Appropriate Balance? – A Survey and Critique of State and Federal DNA Indictment and Tolling Statutes, 6 J. High Tech L. 213 (2006); Jonathan W. Diehl, Drafting a Fair DNA Exception to the Statute of Limitations in Sexual Assault Cases, 39 Jurimetrics J. 431 (1999)
^viii Though the persecutor's goal involved arrest powers rather than statutes of limitation, the technique was the same. Sean Kelly & Marilyn Robinson, Killer is Still Nameless, but not Unknown, John Doe Warrants Based on DNA, Denver Post, Aug. 17, 2003, at A1
^ix See for example, James Herbie DiFonzo, In Praise of Statutes of Limitations in Sex Offense Cases, 41 Hous. L. Rev. 1205 (Winter 2004)
^xCorey E. Delaney, Seeking John Doe: The Provision and Propriety of DNA-Based Warrants in the Wake of Wisconsin v. Dabney, 33 Hofstra L. Rev. 1091 (Spring 2005)
^x1 Id. and Andrew C. Bernasconi, Beyond Fingerprinting: Indicting DNA Threatens Criminal Defendants' Constitutional Rights, 50 Am. U. L. Rev. 979 (2001)
^xiiState v. Danley, 853 N.E. 2d 1224 (Ohio Misc. 2006)
^xiiiFor more information on this issue, see: Lisa Schriner Lewis, The Role Genetic Information Plays in the Criminal Justice System, 47 Ariz. L. Rev. 519 (Summer 2005); and John Doe Warrant

GuthrieJan07

2009-07-12 11:45:49

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S.O.S. for S.B.S.? Not quite …
by Catherine Guthrie, Staff Researcher

Despite international controversy over the Shaken Baby Syndrome (SBS) diagnosis, recent cases illustrate that American courts are still willing to admit evidence of SBS through expert testimony and demonstrative exhibits.

The theory of SBS primarily grew out of two studies; C. Henry Kempe's “The Battered-Child Syndrome” in 1962 and John Caffey’s “The Whiplash Shaken Infant Syndrome” in 1974.¹ The syndrome occurs when a violent, shaking force causes an infant's head to rapidly accelerate and decelerate backwards and forwards in a whiplash motion. Abrupt "deceleration occurs when the victim's chin strikes the chest and subsequently when the occiput strikes the interscapular region of the back at the base of the neck."² This force results in telltale diagnostic signs, including: (1) subdural / subarachnid hematoma, (2) retinal hemorrhage, and (3) diffuse brain swelling. SBS commonly causes death, blindness or brain damage.

Three characteristics of SBS make it particularly appealing to prosecutors. First, the shaking motion generally does not result in external wounds. Thus SBS can be alleged even if there is no sign of other injuries such as bruising, abrasions or lacerations.³ Second, some have linked shaking behavior to normally loving adults that have simply "snapped" under the stress of parenting.⁴ This means that SBS can be proposed even if there is no history of prior abuse. Third, this syndrome involves scientific evidence, and fact finders may perceive such evidence as infallible.⁵ Therefore jurors and judges may too readily accept a suggestion of SBS without sufficiently considering the validity of the underlying medical principles.

It is thus not surprising that attorneys eagerly rely on SBS to explain injuries in child abuse and homicide cases. Alleged incidences of SBS are also used to justify custody determinations and to impose liability against child care facilities. As such the syndrome has become entrenched in American jurisprudence over the past decade.⁶ The issue even garnered international attention during the highly-publicized trial of British au pair, Louise Woodward, who was convicted in Massachusetts for the shaking death of an infant in her care.⁷

However, recent research suggests that the three indicia associated with SBS may also be unintentionally generated by a short-distance fall,⁸ apnea⁹, or vaccine reaction.¹⁰ Such claims cast doubt upon the certainty of SBS diagnoses, especially when based solely on identification of the triad of intracranial injuries. The impact of this research was perhaps best illustrated overseas when, in 2005, it led the Court of Appeal in England to review four SBS-based convictions.¹¹ Out of these four appeals, two convictions were overturned, one was reduced, and the other was unsuccessful. One commentator summarized the issue when he wrote, “[i]f one thing is clear now, it is that we do not understand the pathophysiology of infant brain injury nearly as well as we thought.”¹²

Despite these criticisms the number of SBS-related cases in American appellate courts has continued to rise, increasing from about fifty in 2000 to over eighty in 2006.¹³ For example, just this past year a Florida District Court of Appeal held that expert testimony about SBS was not subject to the heightened level of scrutiny normally applied to "new or novel" scientific principles. The court drew this conclusion in not one but two cases, both decided in the same week.

The first case, Johnson v. State, involved an appeal from a first-degree felony murder charge.¹⁴ The defendant, Johnson, argued that the medical examiner's expert statements about SBS should have been subjected to a Frye analysis. Under this analysis, proffered evidence must be accepted in the relevant scientific community to be admissible in court.¹⁵ Frye applies to evidence that involves new or novel scientific principles or methods. Johnson specifically used the controversy over SBS diagnoses to support his claim. At first the court seemed to agree with the defendant’s argument when it wrote: “Florida courts must conduct a Frye hearing if one has not previously been conducted… Shaken Baby Syndrome has not previously been subjected to a Frye analysis in Florida.” However the appellate court then held against Johnson, finding that the medical principles underlying SBS were neither new nor novel. The court based its opinion on precedent from multiple jurisdictions, including Florida, Minnesota, New York, Connecticut, and New Jersey. The court also noted that the testimony was an expert opinion based on personal experience and training, which is not normally reviewed under Frye. The same district court issued a strikingly similar opinion a few days earlier in Herlihy v. State.¹⁶ The defendant in this manslaughter case claimed that his attorney should have requested a Frye hearing for medical testimony about a diagnosis of shaken baby syndrome. Once again, the court held that a Frye analysis was not required for admission of the expert’s statements.

Expert testimony is not the only conduit for SBS evidence. In mid-2006 a Louisiana Court of Appeals directly upheld the admissibility of demonstrative evidence of shaken baby syndrome.¹⁷ The defendant in the case, Joe Galliano, was convicted of second degree cruelty to a juvenile after allegedly shaking his fiancées two-year-old son. Although the child survived, he sustained debilitating injury. Galliano appealed his conviction, arguing that the lower court should not have allowed a police officer to demonstrate how the victim was shaken. At trial the officer had left the witness stand, knelt down on the court floor, and aggressively shook a legal notepad “while the prosecutor counted up to 30 seconds in 10 second intervals.”¹⁸ Galliano claimed that this evidence represented the officer's own interpretation of events rather than the defendant’s taped explanation. Arguably this may have misled the jury and constituted reversible error. Nonetheless the appellate court held against Galliano on the issue. The court reasoned that (1) Galliano himself had also demonstrated how he shook the victim, and (2) the jury had heard Galliano's taped statement and could thus compare it to the officer’s demonstration. Other appellate courts have likewise upheld the admission of demonstrative SBS evidence in the form of computer animations, power point presentations and artistic renderings.¹⁹

These and other recent cases indicate the persistent popularity of SBS claims in the face of alleged scientific doubt. This attitude frustrates some medical professionals and legal scholars.²⁰ Such critics propose various cautionary solutions including interagency review of suspected abuse cases, improved training for pathologists, and heightened judicial scrutiny of “expert” evidence.²¹ Only time will tell whether these measures will be adopted.

————————————

¹Kempe’s study was published at 181 JAMA 17 and Caffey’s study was published at 54 Pediatrics 396
²Robert R. Kirschner, “The Pathology of Child Abuse,” at 271-72 in The Battered Child (Mary Edna Helfer et al. eds., 5th ed., 1997). For more information on the issue visit the National Center on Shaken Baby Syndrome (last viewed December 22, 2006)
³For example, see doctor’s testimony in State v. Schneider, Nos. L-84-214 and CR 83-7046, 1984 WL 3719 (Ohio Ct. App. Dec. 21, 1984) that, “[a]s is the case in most of the patients that I have treated, the child looked extremely healthy, well dressed, clean, absolutely no other signs of physical injury”
⁴For example, see In re Jordan L., No. C041916, 2003 WL 21384856 (Cal. Ct. App. June 17, 2003) wherein “both parents frequently and consistently displayed concern and love for [the victim… However o]ne can only imagine the frustration and pain these loving parents must have felt when faced with the nightmare of continuous medical mysteries this Child displayed. Unfortunately, at least one of these parents could not take that relentless pressure and snapped as a result. That is the nature of shaken baby syndrome”
⁵For example, see State v. Roscoe, 700 P.2d 1312 (Ariz. 1984), explaining “the fear that jurors will accord scientific evidence too much weight because of its ’aura of special reliability and trustworthiness’ and will fail to consider the possibility that evidence based upon the particular scientific principle in question may be incorrect”
⁶This is exampled not only through cases, but also in legislation, as seen in: Ind. Code § 16-41-40, Cal. Health & Safety Code § 24520 through 24522, M.S.A. § 245A.144, V.A.M.S. § 191.748, Neb. Rev. St. § 71-2102, McKinney’s Public Health Law of N.Y. § 2745, 11 P.S. Chapter 16A, T. C. A. § 68-143, RCWA 43.121.140, and W.S.A. 253.15
⁷Cmmw. v. Woodward, 694 N.E.2d 1277 (Mass. 1998)
⁸For example, see: J.F. Geddes & J. Plunckett, The Evidence Base for Shaken Baby Syndrome, 328 Brit. Med. J. 719 (2004); P.E. Lantz et al., “Perimacular Retinal Folds from Childhood Head Trauma,” 328 Brit. Med. J. 754 (2004); Michaelt T. Prange et al., “Anthropomorphic Simulations of Falls, Shakes, and Inflicted Impacts in Infants,” 99 J. of Neurosurgery 143 (2003); and John Plunkett, “Fatal Pediatric Head Injuries Caused by Short-Distance Falls,” 22 Am. J. Forensic Med. & Pathology 1, 8 (2001)
⁹J.F. Geddes et al., Neuropathology of Inflicted Head Injury in Children II: Microscopic Brain Injury in Infants, 124 Brain 1299, 1299, 1304 (2001)
¹⁰Steve P. Calandrillo, Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children? 37 U. Mich. J.L. Reform 353, FN 313 (Winter 2004) and C.A. Clemetson, "Elevated Blood Histamine Caused by Vaccinations and Vitamin C Deficiency May Mimic the Shaken Baby Syndrome," 62 Med. Hypotheses 533 (2004)
¹¹R. v. Harris, 85 B.M.L.R. 75 (Court of Appeal, Criminal Division, 2005)
¹²Brian J. Clark, Letter to the Editor, 125 Brain 677, 677-78 (2002)
¹³Numbers are approximate and based on December 8, 2006 Westlaw search.
¹⁴933 So. 2d 568 (Fla. Dist. Ct. App. 2006)
¹⁵Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). Note that SBS evidence has also recently survived challenges under the Daubert standard of admissibility for scientific evidence, as seen in State v. Leibhart, 662 N.W.2d 618 (Neb. 2003)
¹⁶927 So.2d 146 (Fla. Dist. Ct. App. 2006)
¹⁷State v. Galliano, No. 05-KA-962, 2006 WL 2482981 (La. Ct. App. Aug. 29, 2006)
¹⁸Id. at *13
¹⁹People v. Cauley, 32 P.3d 602 (Colo. Ct. App. 2001); State v. Adams, 124 P.3d 19 (Kan. 2005); State v. Torres, 121 P.3d 429 (Kan. 2005), respectively
²⁰For example, see: Genie Lyons, Shaken Baby Syndrome: A Questionable Scientific Syndrome and a Dangerous Legal Concept, 2003 Utah L. Rev. 1109 (Winter 2003); Mark Hansen, Why Are Iowa's Babies Dying?, 84 A.B.A. J. 74 (August 1998)
²¹For example, see: Id. and Joseph Hatina, Shaken Baby Syndrome: Who Are the Experts?, 46 Clev. St. L. Rev. 557 (1998)

GuthrieOctober07

2009-07-12 11:46:21

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ONE WITNESS, TWO HATS, THREE CASES
Catherine M. Guthrie, Research Attorney

It is well established that a police officer may testify as an expert witness in one case and a lay witness in another. However there has been some debate as to whether an officer can offer both kinds of testimony in the same trial; in other words, whether a policeman can wear "two hats" on the witness stand. The following case examples examine the issue as viewed by three different appellate courts.

The first case presents an interesting evolution in one court's view of dual testimony. The second case provides an in-depth assessment of the problems created when a law enforcement officer testifies as both an expert and a lay witness. Finally, the last example illustrates one of the most recent cases on the issue.

Eason v. United Statesⁱ

In the early 1990s defendant Anthony Eason was tried and convicted for second-degree murder. At trial Eason claimed to have shot his victim in self defense during a fight. However a police officer testified that blood spatter and other crime scene evidence showed that the victim was kneeling when she was killed. Specifically, "[t]he detective gave expert testimony on blood spatter analysis and also testified extensively as a fact witness to matters he had observed at the scene of the shooting." ⁱⁱ Based on this and other evidence, a jury chose to convict Eason.

Eason appealed the decision to a division of the District of Columbia Court of Appeals in 1996, ⁱⁱⁱ arguing that the officer should not have been allowed to testify both as an expert and as a lay witness. The Court of Appeals agreed with defendant because there was binding precedent from an earlier case to support his argument. In Beach v. United States, a 1983 drug prosecution, the same court had held that such dual testimony was inadmissible because "there was a substantial danger that appellant would be prejudiced because [the expert's] credibility as a lay witness was bolstered by his testifying as an expert."^iv The Beach court noted that giving a cautionary instruction to the jury would not abate this prejudice, however it also failed to set forth any authority for its decision. Despite this precedent, the error in Eason's case was deemed harmless because there was other evidence of his guilt, and his conviction was affirmed.

After Eason's appeal, the government filed a motion for a rehearing en banc. The motion was granted and the dual testimony issue was revisited in 1997 by a different division of the District of Columbia Court of Appeals. This court overruled Beach and held that there should not be a per se ban in criminal trials against dual expert and lay testimony from a single witness. Instead the court held "that the decision should be left to the trial court's discretion in each case whether the danger of jury confusion can be neutralized by lesser measures than exclusion of dual testimony altogether."^v

United States v. Dukagjini^vi

Approximately five years after Eason the United States Court of Appeals Second Circuit reviewed a drug conspiracy case wherein the defendants were convicted of charges related to a large scale heroin and cocaine operation. The incriminating evidence included recorded conversations about narcotics transactions. As is common in such cases, the conversations involved ambiguous and coded drug jargon.

At trial Drug Enforcement Agency Special Agent Richard Biggs testified extensively about the taped discussions. Biggs was the case agent for this investigation, as well as the government's expert witness for the use of disguised drug terminology. As a case agent Biggs offered testimony that was based on his own familiarity with the specific facts of the case. In other words, he testified as a lay witness and gave "general explanations of conversations between the targets of the investigation."^vii Additionally Biggs testified as an expert by explaining the meaning of words and terms used during the conversations; testimony that was based on his expertise and experience. For example, Biggs explained that the terms "B-licks" and "spider" refer to heroin.

The defendants subsequently appealed their case to the Second Circuit. Among other things they claimed that "Biggs's dual roles as case agent and as expert witness allowed him to serve as a summary witness, repeating and bolstering evidence previously received and thereby prejudicing the appellants."^viii In its analysis the appellate court reviewed some of the risks intrinsic in the dual role context:

The designation as an expert confers an aura of trustworthiness and special reliability upon the witness, which could cause the factfinder to give the witness's lay testimony unmerited credibility.
Attorneys may be reluctant to cross-examine a fact witness about their expert testimony because an unsuccessful impeachment attempt could actually bolster the credibility of the witness's lay testimony.
There is an increased risk that the expert will exceed the scope of permissible testimony and convey "sweeping conclusions" about the defendant, which would allow the government an additional summation and usurp the jury's function.
If a case agent acts as an expert witness, jurors may become confused as to whether he is either properly relying on reliable methodology and experience, or improperly relying on what he learned about the case as a lay person.
If the expert exceeds the scope of his expertise he may rely upon and confer hearsay evidence in violation of the Sixth Amendment Confrontation Clause.
Despite these dangers, the Second Circuit specifically declined to categorically prohibit the use of case agents as expert witnesses. Instead the court noted that the district courts could avoid the noted risks by acting as vigilant gatekeepers and properly applying discovery rules.

This analysis, coupled with the facts of the case, revealed that some of Biggs's testimony had been improper. However, as was the case in Eason, this error was not sufficient to overturn the lower court's holding and the convictions were affirmed.

United States v. Freeman^ix

In mid-2007 the Ninth Circuit of the United States Court of Appeals reviewed the prosecution of Kevin Freeman. At trial Freeman was sentenced to 240 months for crimes related to the manufacture and possession of cocaine base. The evidence against him included several recorded phone calls wherein disguised language was used to discuss drug transactions.

This evidence was de-coded in court through the expert testimony of Los Angeles Police Detective and Federal Task Force Officer, Bob Shin. For example, Shin stated that "wiggity" refers to high-quality cocaine. However Shin also explained the meaning of words and phrases that "were not encoded drug language, but rather ambiguous statements consisting of ordinary terms."^x In other words, he also offered lay testimony about language that the jurors could have understood without assistance.

On appeal the defendant argued that Shin should not have been allowed to testify as both an expert and a lay witness. To support his claim the defendant cited the dangers enumerated in Dukagjini. Thus the Ninth Circuit analyzed Freeman's claims in light of the five concerns listed above. The Ninth Circuit also reiterated the Second Circuit's decision not to categorically ban such dual testimony. The Ninth Circuit explained: "Testimony of this kind may save time and expense, and will not necessarily result in juror confusion, provided that the district court engages in vigilant gatekeeping… If jurors are aware of the witness's dual roles, the risk of error in these types of trials is reduced.”^xi

In its analysis the court noted that portions of Shin's testimony were erroneously admitted. This was because some of his statements were cumulative, speculative and based on hearsay. Nonetheless the error did not justify reversal and Freeman's conviction was affirmed.

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ⁱEason v. United States, 704 A.2d 284 (D.C. 1997)
ⁱⁱId. at 285
ⁱⁱⁱEason v. United States, 687 A.2d 922 (D.C. 1996)
^iv466 A.2d 862, 865 (D.C. 1983)
^vEason v. United States, 704 A.2d 284, 287
^viUnited States v. Dukagjini, 326 F. 3d 45 (2d Cir. 2003)
^viiUnited States v. Freeman, No. 05-50401, 2007 WL 2350657, at *6 (9th Cir. Aug. 20, 2007)
^viiiDukagjini at 51
^ixUnited States v. Freeman, No. 05-50401, 2007 WL 2350657 (9th Cir. Aug. 20, 2007)
^xId. at *4
^xiId. at *8

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2010-01-22 00:11:58

Jan08Lack

2009-07-12 11:46:33

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Elder Abuse: A Determination of Death
Angela Lack, Science and Law Fellow

Introduction

Every year, nearly 700,000 to 1.2 million elderly people are subjected to mistreatment or abuse.¹ People age 80 and older who are dependent on others for basic care, especially women, are particularly vulnerable to elder abuse.² Many factors lead to the mistreatment of the elderly including: elderly persons’ need for caregiving; dependency of people on the elderly; mental impairments; isolation; inadequate living arrangements; inability to perform daily functions; frailty; family conflict; poverty; alcohol or drug abuse of the caregiver; or other socioeconomic issues.³

Definition of Elder Abuse

Elder abuse is a problem throughout the United States. Each state has its own guidelines and laws. Elder abuse is defined as doing something or failing to do something that results in harm to an elderly person, including, but not limited to (1) physical, sexual and emotional abuse, (2) neglecting or deserting an elderly person, or (3) taking or misusing an elderly person's money or property⁴. Elder abuse is manifested through visible signs such as abandonment, physical abuse, exploitation, and neglect⁵. Behavioral signs of elder abuse may manifest in the elderly individual avoiding eye contact, sitting at a distance from the caregiver, cringing or backing off, startling easily, and allowing the caregiver to answer for them all the time⁶. When a caregiver is unable to handle the pressures of caring for the elderly person or is unable to handle the needs of the elderly person, the caregiver may react with some form of elder mistreatment⁷.

“The abuser is typically a family member - an adult child or a spouse” or a relative who lives with or near the elder⁸ or acquaintances. Abusers demonstrate three characteristics which are known risk factors: a history of mental illness and/or substance abuse; excessive dependence on the elder for financial support; and a history of violence within or outside the family⁹. They often are unmarried, unemployed, and approximately 35% have a substance abuse problem or have psychological disorders.¹⁰ Some are caregivers for those they abuse¹¹. “In institutions, such as nursing or group homes, professionals may be abusers.”¹²

Forensic Science Guidelines and Standards

Recently, the legal community raised concerns regarding the lack of research on the forensic aspects of elder mistreatment. This is due to the fact that the medical community lacks the ability and the information to easily determine whether injuries of the elderly are due to abuse, neglect, or natural effects of illness and aging¹³. Therefore, several jurisdictions have developed new methods to examine elder abuse and neglect, such as establishing “special elder abuse prosecution units, elder fatality review teams¹⁴, and the expansion and improvement of statutes that mandate abuse reporting for vulnerable adults.”¹⁵ The National Institute of Justice recently funded a study that “examined how medical examiners make determinations in cases of suspicious elder deaths and found that they rarely can differentiate symptoms of illness from signs of abuse in elderly decedents.”¹⁶ Signs of abuse in the elderly are usually missed and are rarely determined to be the cause of death; however, these signs are typically identified in younger decedents.¹⁷ Further research on these and other factors is required to determine abuse or neglect and to identify the forensic markers of mistreatment.¹⁸

Establishment of Forensic Markers of Abuse and Neglect

Forensic markers of elder abuse and neglect refer to factors used to determine whether an elderly person is suffering from age-related changes or other factors.¹⁹ The markers are being developed through the use of: (1) consistent, validated screening tools, (2) forensic centers, and (3) multidisciplinary teams.²⁰ Researchers in Arkansas created four categories of markers for investigators.²¹

Potential Markers to Identify Elder Mistreatment:

Physical Condition and Quality of Care

Documented but untreated injuries
Undocumented injuries and fractures
Multiple, untreated, or undocumented pressure sores
Medical orders not followed
Poor oral care, poor hygiene, and lack of cleanliness of resident (e.g., unchanged adult diapers, untrimmed finger and toenails)
Malnourished residents that have no documentation for low weight
Bruising on non-ambulatory residents; bruising in unusual locations
Family has statements and facts concerning poor care
Level of care for residents with non-attentive family members
Facility Characteristics

Unchanged linens
Strong odors (urine, feces)
Trash cans that have not been emptied
Food issues (cafeteria smells at all hours; food left on trays)
Past problems
Inconsistencies between —

Medical records, statements made by staff members, or what is viewed by investigator
Statements given by different groups
The reported time of death and condition of the body
Staff Behaviors

Staff members who follow the investigator too closely
Lack of knowledge or concern about a resident
Evasiveness, both unintended and purposeful, verbal and nonverbal
Facility's unwillingness to release medical records
Fourteen potential markers have been identified through research:²² These include: Abrasions and Lacerations; Bruises; Fractures; Sexual Abuse, Restraints; Decubiti;²³ Malnutrition; Medication Use; Burns; Dehydration; Cognitive and Mental Conditions; Hygiene; Financial Fraud and Exploitation.²⁴ The characteristics of these markers and the relationship between age-relatedness and abuse/neglect factors are discussed below.

Abrasions and Lacerations

Potential forensic markers include the presence of abrasions and lacerations but age-related changes may also account for them. As humans age skin thickness and elasticity decline making them more susceptible to trauma. Lacerations/skin tears generally occur on the forearms and occasionally on the legs, which usually occur no more than two at a time and usually heal completely without scarring.²⁵

One indication of abuse is when there are skin tears on the body in places other than arms and legs.²⁶ Multiple skin tears may also be signs of abuse.²⁷ Abrasions and lacerations heal with scarring and are the most common in cases of physical abuse and sometimes in caregiver neglect.²⁸ Health care professionals should document the abrasion pattern because it is an important way to identify the method of injury.²⁹

Abrasions generally occur in elderly persons with minor trauma because as humans age, their skin thickness and elasticity decline making them more susceptible to trauma. Lacerations/skin tears generally occur on the forearms and occasionally on the legs, which usually occur no more than two at a time and usually heal completely without scarring.³⁰ In one study of a large nursing home, the following statistics regarding the annual incidence of skin tears were that:
The majority of tears were approximately 0.75 inches in length, though nearly 6 percent were 1.6 inches or longer. Eighty-five percent of the lacerations occurred on the arms. A known cause was identified in less than half the cases (47 percent), and most known causes were attributed to falls or bumping into something; wheelchairs accounted for 30 percent of the injuries (Malone et al., 1991). In cases in which the cause was unknown (53 percent), the skin tears may have occurred accidentally and may not have been noticed or may have been forgotten by the elder, or they could have been due to rough handling or worse by staff members and others.³¹
Bruises

Bruising increases as people age, especially in women.³² However, bruising can be a sign of a serious abuse problem; bruising may occur at a site other than where the injury occurred.³³ Sometimes, medications such as aspirin, Coumadin, corticosteroids, and Plavix, and dietary supplements such as fish oil, ginkgo, ginger and garlic increase the risk of bruising, since these medications and supplements thin the blood.³⁴

While research exists on the site, patterns, and dating of bruising in children, research on the differentiation of bruising in the elderly population does not exist.³⁵ Therefore, the National Institute of Justice funded a study to examine bruising, one of the most common indicators of abuse and neglect.³⁶ A group of elderly individuals took part in a 16-month clinical study conducted by Laura Mosqueda, M.D.³⁷ which documented the occurrence, progression, and resolution of accidentally inflicted bruising.³⁸

Bruises are most commonly seen with physical abuse, but can be present in cases of neglect as well.³⁹ To determine whether bruising is the result of abuse or natural occurrences, researchers conducted examinations of individuals analyzing normal bruising patterns and differentiating them from suspicious bruising.⁴⁰ Mosqueda found that bruising followed patterns: (1) accidental bruises occurred in predictable patterns; (2) most accidental large bruises are located on extremities though 90% of all bruises are located on the extremities; (3) the initial color and appearance of bruises does not determine the age of the bruise and both change over time; (4) accidental bruising did not occur on the ears, neck, genitals, buttocks, or soles of the feet; (5) bruising is more severe in individuals on medications, and (6) individuals with compromised functional ability are more likely to have multiple bruises.⁴¹

A bruise lasts a shorter time in younger individuals than in elderly individuals.⁴² Generally, bruises keep the shape of the object which caused them.⁴³ The location of the bruise is also an indication of abuse;⁴⁴ bruising on the face, neck, chest wall, abdomen, soles of the feet, palms of the hands, and buttocks are considered signs of abuse rather than accidental injury.⁴⁵ However, bruising can also be an indication of falling; circumstances regarding the fall should be evaluated to determine if it is a result of neglect.⁴⁶

Fractures

The significance of the type of fracture and location requires more documentation and studies on the degree of impact to osteoporosis to determine the mechanism and degree of injury.⁴⁷ Such studies and published information would be useful to forensic pathologists testifying in court in criminal and civil cases.”⁴⁸

The bones of elderly persons are thinner and less dense due to poor nutrition, vitamin D deficiency, alcoholism, sex hormone deficiencies and bone diseases, causing bone to fracture more easily.⁴⁹ Persons over age 75 typically fracture hip bones and persons under age 75 typically fracture wrist bones.⁵⁰

While literature on fracture resolution in abused children exists, there is little or no data on fracture resolution in elders.⁵¹ Data pertaining to the resolution of fractures in children are invalid for older adults because their fractures heal much more slowly. Falls that lead to fractures should be analyzed along with an examination of the patient, their records, and/or their history before a determination of abuse is made.⁵² Indications of abuse include fractures on the head, spine, and trunk rather than limb fractures, sprains, strains, or musculoskeletal injuries,⁵³ and spiral fractures of a large bone with no history of gross injury.⁵⁴

Malnutrition

“Malnutrition often is a marker of caregiver neglect, especially in institutional settings.”⁵⁵ Many factors can lead to malnutrition including a decline in smell and taste and poor health, inappropriate prescribing of medications, caregivers failing to maintain oral hygiene, not acknowledging cultural food preferences in group homes, and neglect due to inadequate numbers of staff to assist patients appropriately who cannot feed themselves.⁵⁶

Sexual Abuse

Sexual assault is the most underreported, least perceived, least acknowledged, and least detected type of elder maltreatment. Due to the low rate of elder death investigation, sexual assault examinations are often not performed⁵⁷ despite the fact that thousands suffer from sexual abuse. Not surprisingly, most victims are women.

Perpetrators of sexual abuse in nursing homes can include nursing home staff, other nursing home residents, and guests, but most sexual assaults occur at home. Trauma and stress from sexual abuse can lead to an untimely death.⁵⁸ Unfortunately, evidence of sexual assault can be difficult to collect due to the decreased mental status, delayed reporting, and/or fear of retribution of the elder.⁵⁹

An NIJ-sponsored study found that: (1) elderly sexual assault victims were not routinely evaluated to assess the psychological effects of an assault; (2) the older the victim, the less likelihood that the offender would be convicted of sexual abuse; (3) perpetrators were more likely to be charged with a crime if victims exhibited signs of physical trauma; and (4) victims in assisted living situations faced a lower likelihood than those living independently that charges would be brought and the assailant found guilty.⁶⁰

Further studies must be conducted to better recognize elder sexual abuse. Caregivers should be trained to identify the signs of assault-related trauma.

Other Forensic Techniques for Determining Elder Abuse or Neglect

Forensic Entomology

One area of forensic science, which has become useful in determining whether elder abuse exists, is forensic entomology. Forensic entomology is defined as the “use of the insects, and their arthropod relatives that inhabit decomposing remains to aid legal investigations.”⁶¹ In several cases, entomologists have helped determine whether or not insects attacked the elderly individual before or after death.

Forensic Psychiatry

Another area of forensic science that has become useful in determining elder abuse or neglect is forensic psychiatry. Forensic psychiatry focuses on the interplay between law and mental health.⁶² Forensic psychological and psychiatric autopsies have been used in suspected suicide cases, but have not yet been used in the investigation of elder deaths.⁶³ Autopsies can be critical tools in determining cause of death by looking at the associations of dementia, depression, and self-neglect to elder abuse and neglect.⁶⁴ The ability to understand “the degree of cognitive impairment or decision-making capacity, even retrospectively, may be critical in investigating and classifying a death.”⁶⁵ However, other limitations exist in classifying the death because the most important informants may be the person perpetuating the abuse or neglect, making them more likely to give false or subjective responses.⁶⁶

The Role of Medical Examiners

The medical examiner or coroner determines the cause and manner of death through a physical examination and/or autopsy and an extensive investigation, review of medical records, toxicology testing, and other testing such as radiology, cultures, or serology.⁶⁷

The medical examiner should examine the body for the potential markers of elder neglect and abuse just as they do in child abuse cases with regard to the location, extent, type and multiplicity of injuries which suggest repetitive abuse⁶⁸. Explanations of injuries from falls and abrasions and skin tears are necessary and the decedent’s record should also be examined.⁶⁹

After documenting an external examination of the body, the medical examiner conducts an internal examination to obtain additional evidence of abuse or neglect.⁷⁰ This exam should include evaluation of the state of nutrition and hydration, and evidence of natural disease” including neuropathology which accounts for cognitive deficit disorders.

Prosecutions of Elder Abuse

Medical examiners have faced significant difficulty in getting elder abuse/neglect cases⁷¹ prosecuted due to lack of knowledge, ageist attitudes, and concerns about the standard of proof in criminal cases.⁷² Medical examiners stated that many prosecutors do not understand the nature of nursing home abuse and neglect. Medical examiners and coroners indicated that there were three reasons for the lack of prosecution, (1) the prosecutors did not view premature death of persons with multiple chronic diseases as necessarily a significant or easily “provable” crime; (2) the prosecutors did not necessarily know how to present the evidence and cases; and (3) prosecutors had difficulty determining whom to charge⁷³ because up to 30 people may be involved in the care of the elderly person in a nursing home.⁷⁴

Ageist Attitude

Medical examiners have seen an ageist attitude from some prosecutors illustrating a different standard for crimes against the elderly and crimes against children.⁷⁵ One case involving the rape of a resident with dementia illustrates this double standard.⁷⁶ In this case, the perpetrator was not prosecuted because the woman was demented. However, if the rape occurred to a child, it most likely would have been prosecuted.⁷⁷ Additionally, the Attorney General’s office did nothing to rectify the situation, not even removing the known rapist from the nursing home.⁷⁸

Standard of Proof in Criminal Cases

The standard of proof in criminal cases is proof beyond a reasonable doubt.⁷⁹ Problems arise when the prosecution calls a witness to the stand and the witness must testify that something is possible. For example, “one forensic pathologist noted, when asked in court whether it was possible that the resident’s decline and death could have been caused by her underlying diseases, the pathologist had said that in her/his opinion, it was possible.”⁸⁰ Another problem that prosecutors face is that there are few expert witnesses that can testify and limited data to bolster their cases.⁸¹

Conclusion

Elder abuse and maltreatment are growing concerns in the United States. As the Baby Boomer generation gets older, elder abuse will become a more prominent issue. Several organizations help elderly persons suffering from elder abuse, including the Administration on Aging,⁸² the National Center on Elder Abuse,⁸³ and the National Institute on Aging.⁸⁴ Organizations such as the National Institute of Justice continue to fund studies to provide more information to medical examiners, coroners, doctors, and the legal community on forensic markers for detection of elder abuse and neglect for both the living and the deceased.

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¹American Geriatric Association, available at: http://www.healthinaging.org/agingintheknow/chapters_ch_trial.asp?ch=9, February 28, 2005. (Last accessed January 19, 2008)..
²Mayo Clinic Staff, http://www.mayoclinic.com/print/elder-abuse/HA00041/METHOD=print, January 12, 2007 (Last accessed January 19, 2008).
³Id.
⁴ Medline Plus, http://www.nlm.nih.gov/medlineplus/elderabuse.html (Last accessed January 19, 2008).
⁵ Abandonment will manifest as leaving the elderly person alone frequently. Physical abuse is generally detected with numerous trips to the emergency room, fractures or bruises (some old and some new), bruises on the inner thighs or inner arms, repeated falls, and unexplained loss of hair (possibly pulled out). Elderly people will also be exploited by the caregiver taking the elderly person’s possessions, lost Social Security or pension checks, sudden inability to pay for food, clothes, health care or other basic needs, or the caregiver’s unusual interest in the elderly person’s assets. Neglect is determined by unexplained skin rashes, irritations, or ulcers, inappropriate dress, no enegry or spirit, malnourishment, poor hygiene, being left in unsafe situations, and inability to get needed medication. MayoClinic Staff, supra at note 2. Other signs exhibited by the elderly person can include, exhibiting emotional distress such as crying, depression, or despair; nightmares or difficulty sleeping; a sudden loss of appetite that is unrelated to a medical condition; acts confused and disoriented (this may be the result of malnutrition); appears emotionally numb, withdrawn, or detached; exhibits regressive behavior; exhibits self-destructive behavior; exhibits fear toward the caregiver; or expresses unrealistic expectations about their care (e.g. claiming that their care is adequate when it is not or insisting that the situation will improve). National Committee for the Prevention of Elder Abuse, supra at note 8.
⁶The caregiver may also show the behaviors signs of elder abuse by acting nervous and fearful, or quiet and passive, by trying to prevent private conversation or examination of the elderly person, by providing explanations of elderly person’s injuries that don’t make sense, or by acting impatient, irritable, and make negative or demeaning statements about the elderly person. MayoClinic Staff, supra at note 2. Other signs observed in the caregiver/abuser include, expresses anger, frustration, or exhaustion; isolation of the elder from the outside world, friends, or relatives; obviously lacks care giving skills; is unreasonably critical and/or dissatisfied with social and health care providers and changes providers frequently; refuses to apply for economic aid or services for the elder and resists outside help. National Committee for the Prevention of Elder Abuse, http://www.preventelderabuse.org/elderabuse/neglect.html, March 2003 (Last accessed January 19, 2008)..
⁷American Geriatric Association, supra at note 1.
⁸Collins, Kim A., “Elder Maltreatment: A Review,” Archives of Pathology and Laboratory Medicine, Vol. 130, Issue 9, 2006 WLNR 15894522 (Last accessed January 19, 2008).
⁹Mayo Clinic Staff, supra at note 2.
¹⁰Collins, Kim A., supra at note 6.
¹¹National Committee for the Prevention of Elder Abuse, http://www.preventelderabuse.org/elderabuse/physical.html March 2003 (Last accessed January 19, 2008).
¹²Mayo Clinic Staff, supra at note 2.
¹³National Institute of Justice (NIJ), “Elder Abuse,” http://www.ojp.usdoj.gov/nij/topics/crime/elder-abuse/welcome.htm. (Last accessed January 19, 2008)
¹⁴The American Bar Association Commission on Law & Aging has published a manual for elder fatality review teams. Lori A. Stiegel, Elder Abuse Fatality Review Teams: A Replication Manual, American Bar Association, Washington, D.C., 2005 available at http://www.abanet.org/aging/publications/docs/fatalitymanual.pdf (Last accessed January 19, 2008).
¹⁵NIJ, supra at note 47.
¹⁶Id.
¹⁷Id.
¹⁸Id.
¹⁹Bonnie, Richard J., and Robert B. Wallace, Eds., Elder Maltreatment: Abuse, Neglect, and Exploitation in an Aging America, The National Academic Press, Washington, D.C., 2002, available at http://www.nap.edu/openbook.php?record_id=10406&page=183 (Last accessed January 19, 2008).
²⁰Bonnie, supra at 363. For more information on the Tools to identify forensic markers, see Bonnie, Richard J., and Robert B. Wallace, Eds., Elder Maltreatment: Abuse, Neglect, and Exploitation in an Aging America, The National Academic Press, Washington, D.C., 2002, available at http://www.nap.edu/openbook.php?record_id=10406&page=183 (Last accessed January 19, 2008).
²¹NIJ, supra at note 47.; see also, Lindbloom, E., J. Brandt, C. Hawes, C. Phillips, D. Zimmerman, J. Robinson, B. Bowers, and P. McFeeley, The Role of Forensic Science in Identification of Mistreatment Deaths in Long-Term Care Facilities, final report submitted to the National Institute of Justice, Washington, DC: April 2005 (NCJ 209334), available at www.ncjrs.gov/pdffiles1/nij/grants/209334.pdf (Last accessed January 19, 2008). A chart of individual markers and facility markers also portrays a list of markers to identify abuse and neglect in residential homes.
²²Id. at 344.
²³Decubiti are commonly known as bedsores. http://medical-dictionary.thefreedictionary.com/Decubiti (Last accessed January 19, 2008).
²⁴See Bonnie, supra at 340-376.
²⁵Id.
²⁶Id.
²⁷Id.
²⁸Id.
²⁹Id.
^{30Bonnie, 344-345.

^{31Id.

³²Bruising is generally caused by (1) aging capillaries, which over time, become more fragile and prone to rupture when the supporting tissues weaken; (2) thinning skin, which becomes thinner and loses some of the protective fatty layer that helps cushion the blood vessels against injury; or (3) excessive exposure to the sun. Mayo Clinic Staff, “Easy Bruising: Common as You Age,” http://www.mayoclinic.com/print/easy-bruising/HQ00355/METHOD=print, May 25, 2007 (Last accessed January 19, 2008).

³³Mayo Clinic Staff, supra at note 68.

³⁴Id.

³⁵NIJ, supra at note 47.

³⁶Id.

³⁷Laura Mosqueda, M.D. and her colleagues at the University of California, Irvine conducted the 16-month study. For more information on the NIJ-funded study on Bruising in the Geriatric Population, see Mosqueda, L., K. Burnight, and S. Liao, “Bruising in the Geriatric Population,” final report submitted to the National Institute of Justice, Washington, DC: June 2006 (NCJ 214649), available at www.ncjrs.gov/pdffiles1/nij/grants/214649.pdf (Last accessed January 19, 2008).

³⁶NIJ, supra at note 47.

³⁷Bonnie, supra at 346.

³⁸NIJ, supra at note 47.

³⁹Id.

⁴⁰Bonnie, supra at 346.

⁴¹Bonnie at 346.

⁴²Bonnie at 346.

⁴³Bonnie at 346.

⁴⁴Bonnie at 346.

⁴⁵Bonnie at 346.

⁴⁶Bonnie at 346.

⁴⁷Bonnie at 346.

⁴⁸Bonnie at 361.

⁴⁹Bonnie at 347.

⁵⁰Bonnie at 347.

⁵¹Bonnie at 347.

⁵²Bonnie at 347-348.

⁵³Bonnie at 348.

⁵⁴Bonnie at 348.

⁵⁵Bonnie at 350.

⁵⁶Bonnie at 350.

⁵⁷Collins, Kim A., supra at note 6.

⁵⁸Hawks, Robert A. at 175, supra at note 53.

⁵⁹NIJ, supra at note 47.

⁶⁰Bonnie, supra at 372.

⁶¹J.H. Byrd, “What is Forensic Entomology,” http://www.forensicentomology.com/definition.htm (Last accessed January 19, 2008).

⁶²W. Reid, “Frequently Asked Questions About Forensic Psychiatry,” http://www.reidpsychiatry.com/reidfaq.html#what1 (Last accessed January 19, 2008).

⁶³Bonnie, supra at 362.

⁶⁴Id. at 363.

⁶⁵Id.

⁶⁶Id.

⁶⁷Id. at 344.

⁶⁸Id. at 360.

⁶⁹Id. at 361.

⁷⁰Id.

⁷¹Lindbloom, supra at 38.

⁷²Id. at 39.

⁷³Id.

⁷⁴Id.

⁷⁵Id.

⁷⁶Id.

⁷⁷Id.

⁷⁸Id.

⁷⁹Id. at 40.

⁸⁰Id. at 40-41.

⁸¹NIJ, supra at note 47.

⁸²Contact the Administration on Aging at: Administration on Aging, Washington, DC 20201, Phone: 202 619-724 or visit the AOA online at http://www.aoa.gov (Last accessed January 19, 2008)

⁸³Contact the National Center on Elder Abuse at: National Center on Elder Abuse, c/o Center for Community Research and Services, University of Delaware, 297 Graham Hall, Newark, DE 19716, Phone: 302-831-3525, Fax: 302-831-4225, E-mail ncea-info@aoa.hhs.gov or visit the NCEA online at http://www.ncea.aoa.gov/ncearoot/Main_Site/index.aspx (Last accessed January 19, 2008).

⁸⁴Contact the National Institute on Aging at: National Institute on Aging, Building 31, Room 5C27, 31 Center Drive, MSC 2292, Bethesda, MD 20892, Phone: 301-496-1752, Fax: 301-496-1072 or visit the NIA online at http://www.nia.nih.gov/AboutNIA/ (Last accessed January 19, 2008).}}

Jan08NCSTLActPubPress

2009-07-12 11:46:58

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PROFESSIONAL ACTIVITIES:

NCSTL participates in scholarly activities and this accomplishment was not reported in the Spring, 2007 issue. Research Attorney, Catherine Guthrie, and Research Director, Diana Botluk, wrote articles for the Stetson Law Review: Center for Excellence in Advocacy Symposium. The law review was published in Spring 2007, Volume 36, Number 3. Ms. Guthrie's article, The Swinton Six: The Impact of State v. Swinton on the Authentication of Digital Images, is on page 661 and Ms. Botluk's article, The National Clearinghouse for Science, Technology and the Law: Supporting the Role of Forensic Science in the Administration of Justice, is on page 609.

Director participated in the ASCLD 35th Annual Workshop and Symposium held in Orlando, Florida, October 1-4, 2007.

Director participated in the IACP 114th Annual Conference & Exposition held at New Orleans, October 12-15, 2007.

Director participated in the 15th International Forensic Science Symposium, Lyon, France, from October 22-26, 2007.

Director participated in the Council of Scientific Society Presidents meeting, Washington, DC, December 1-4, 2007.

Director participated in the National Academy of Science Committee Meeting, “Identifying the Needs of the Forensic Science”, Washington, DC, December 6, 2007.

Director participated in the National Institute of Justice Forensic Policy Summit, Washington, DC, December 17-18, 2007.

PRESENTATIONS:

Director of Technology and Distance Education, Dr. Susan Zucker, presented “Podcasting: Friend or Foe” at the E-Learn Conference, Quebec City, Quebec on October 16, 2007.
Research Attorney, Jeff Chesen, presented “CSI Effect: Fact or Fiction” at the Florida Division of the International Association for Identification (FDIAI) Educational Conference 2007 on October 25, 2007.
Research Attorney, Betty Fitterman, presented “Digging up Dirt on Experts-Cross Examination of Expert Witness Workshop”, Bradenton, FL, October 26, 2007.
Director presented information on the NCSTL to Judges from the Bahamas, Nassau, Bahamas on December 14, 2007.
NCSTL MEDIA COVERAGE:

Director appeared on the Montel Williams Live Show, “True Crime: Deadly Deception”, November 1, 2007, and another appearance was scheduled for January 17, 2008.

Jan08ResearchUpdate

2009-07-12 11:47:22

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From the Research Desk: Update
Diana Botluk, Director of Research

Happy New Year!

NCSTL is growing by leaps and bounds. In 2007, NCSTL's third year online, it had almost three times as many visitors as in its first year. While the majority of NCSTL users hail from the United States, NCSTL has been visited by people in 116 countries since its inception in 2005.

The NCSTL research database contains close to 60,000 records. Over 17,000 people searched the NCSTL database in 2007. DNA, forensic psychology, and forensic pathology are the most popular topics in searching.

The NCSTL Reference Collection in the Stetson Law Library is also growing. It now contains over 1800 titles, up 200% since 2005. Researchers from around the United States utilize the interlibrary loan system to borrow NCSTL's books and journals.

Besides the growth of the database itself, the NCSTL website added several new pages of useful information for researchers in 2007. NCSTL launched its Cold Case Toolkit in February, with links to many resources related to cold case investigation and support. NCSTL researchers added several bibliographies to the online bibliography collection last year. Additionally, we presented several new Related Links pages, including links to expert testimony rules of evidence and links to innocence projects worldwide. NCSTL has also coordinated with DNA.gov to provide links to legislation and caselaw about DNA topics, with a seamless interface from their site to ours.

Take some time to explore our new features. We're sure you'll find the site even more useful than before!

Jan08ResearchUpdate

2009-07-12 11:47:40
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TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director of Technology and Distance Education

In the last quarter of 2007, the 2005 and 2006 NCSTL National Conferences were uploaded to www.ncstl.org/education. Included are video clips of a sampling of topics presented at the conferences with ADA compliant transcripts plus candid photos of the conferences.

Development of Law 101: Legal Guide for the Forensic Expert and DNA for the Defense are progressing. Both constitute NCSTL’s first instructional modules and they will both be web-based. Law 101 content will provide information on serving as expert witnesses to non-lawyers. DNA for the Defense will be produced online at DNA.gov. Its focus is to provide information on DNA primarily to defense lawyers. DNA information can be a powerful element in criminal cases.

The Director of Technology and Distance Education presented “Podcasts: Friend or Foe” at the international conference, E-Learn, in Quebec City, Canada in October. The talk was well-attended by approximately 60 people.

Looking forward to another productive and creative year with many additions to the NCSTL website, including a new graphic interface for the homepage. Welcome, 2008 …

Jan08Zucker

2009-07-12 11:48:45

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Cyber Forensics: Part II
Susan Zucker, Ph.D., Director Technology & Distance Education

Introduction

Cyberspace is the newest locus of criminal activity (Yar, 2005) and it is the location where cyber forensic investigations take place. Cyber activity has become a significant portion of everyday life.

The surge in virtual reality environments and computer mediated communications via web pages, online documents, email, news group archives, archived files, and chat rooms have introduced new forms of deviance, crime, and social control (McKenzie, 1996). Thus, the scope of criminal investigation has also been broadened (Casey, 2002).

The magnitude of the situation is exemplified by the following facts:

A microcomputer can have 60-GB or more storage capacity.
There are more than 2.2 billion messages sent and received in the U.S. per day.
There are more than 3 billion indexed web pages worldwide.
There are more than 550 billion documents online. (Marcella, et. al., 2002)

E-Commerce has become a new business model and 85% of business and government agencies detected security breaches. More and more facilities are directly controlled by computers. In the early 1990s, the threats to information systems were about 80% internal and 20% external but with the integration of telecommunications and personal computers into the internet, the threats seem to be approaching an equal split (Kovacich & Boni, 2000).

As society has become more and more dependent on computer and computer networks, computers and networks have become targets of crime activities. These include theft, vandalism, espionage, and even cyber war.

Vocabulary - cyberspace crimes

Cyber war or information warfare is the offensive and defensive use of information and information systems to deny, exploit, corrupt, or destroy, an adversary's information, information-based processes, information systems, and computer-based networks while protecting one's own. Such actions are designed to achieve advantages over military or business adversaries.

Cyber criminology is a new discipline that explains and analyzes crimes on the internet. It describes the interface between Computer Science, Internet Science and Criminology. Cyber criminology is defined as "the study of causation of crimes that occur in the cyberspace and its impact in the physical space” (Jaishankar, 2007).

This term really took hold and in January, 2007, a new journal, titled International Journal of Cyber Criminology (IJCC), was launched. The new journal publishes full-length articles of high quality and importance to cyber criminologists. The scope of the journal encompasses empirical and theoretical aspects of cybercrime, cyber criminal behavior, cyber victims, cyber laws and cyber investigations. The scope of the journal covers areas relevant to Internet Science, Computer Science and Criminology. The IJCC will develop and disseminate the knowledge of cyber crimes worldwide.

Online Fraud: Phishing and Pharming

The explosive growth of online fraud has made "phishing", and to a lesser extent "pharming" part of nearly every Internet user's vocabulary during 2005. Phishing and pharming are two popular forms of fraud that aim to dupe victims into believing they are at a trusted website such as their bank, when in fact they have been enticed to a bogus site that intends to steal their identity and drain their financial resources.

Crimeware: Bots, Trojans, & Spyware

While spyware has occupied center stage of late, it is but one of the tools behind today's rash of cybercrime. Deceptive Trojan horses, multi-purpose bots, and spyware programs form the crimeware arsenal of today's hackers and are regularly bought and traded on the black market. The price tag of crimeware is often based on their ability to steal sensitive data such as bank and credit cards while remaining undetected by the victim.

Computer forensics applies scientifically proven methods to gather, process, interpret, and use digital evidence to provide a conclusive description of cyber crime activities.

Cyber forensics consists of computer forensics and network forensics. Computer forensic science is the discipline of acquiring, preserving, retrieving, analyzing, reconstructing, and presenting data that has been processed electronically and stored on computer media including networks. This discipline relates to investigations by law enforcement agencies for use in a court of law. The methods used must be technologically robust to ensure that all probative information is recovered, that original evidence is unaltered, and that no data were added to or deleted from the original collection. Computer forensic science is an extremely hot topic and is widely used among all industries. It will continue to play a large role in society as computer technology continues to emerge. Cyber forensics includes making digital data suitable for inclusion in a criminal investigation (Webopedia).

The segregation of cyber forensics and cyber criminology is a new direction for criminology. The difference between cyber criminology and cyber forensics is that cyber criminology deals with the cause of cyber crimes. It was first named in 1998 by Dr. Andrzej Adamski, the Chair of Criminal Law & Criminal Policy, Nicholas Copernicus University, Poland, while cyber forensics deals exclusively with the investigation of cyber crimes.

Reporting Computer, Internet-Related, or Intellectual Property Crime

Like other crimes, Internet-related crime should be reported to law enforcement investigative authorities at the local, state, federal, or international levels, depending on the scope of the crime. Federal crimes should be reported to local offices of federal law enforcement.

The United States Department of Justice has two separate divisions to deal with computer crime reporting and intellectual property crime reporting. Primary law enforcement agencies that investigate domestic crime on the Internet include: the IC3, the Internet Crime Complaint Center, a division of the Federal Bureau of Investigation (FBI), The United States Secret Service, The United States Immigration and Customs Enforcement (ICE), The United States Postal Inspection Service, and The Bureau of Alcohol, Tobacco and Firearms (ATF).

Each law enforcement agency has a headquarters in Washington, D.C. and each has agents who specialize in particular areas. Each agency also has local offices in all states where crimes may be reported. Contact information for local offices is in local telephone directories. Generally, federal crimes may be reported to an appropriate law enforcement agency’s local offices by placing a phone call and requesting the "Duty Complaint Agent."

The FBI's cyber mission is four-fold: (1) to stop those behind the most serious computer intrusions and the spread of malicious code; (2) to identify and thwart online sexual predators who use the Internet to meet and exploit children and to produce, possess, or share child pornography; (3) to counteract operations that target U.S. intellectual property, endangering our national security and competitiveness; and (4) to dismantle national and transnational organized criminal enterprises engaging in Internet fraud. (FBI at: http://www.fbi.gov/cyberinvest/cyberhome.htm)

The Department of Justice and the FBI lead the nation in investigating and prosecuting cybercrime. A table created to guide residents on where to report cybercrime can be found at: Computer Crime & Intellectual Property Section United States Department of Justice (http://www.usdoj.gov/criminal/cybercrime/reporting.htm).

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References:

Bickers C. (2001). ”Cyberwar: Combat on the Web”, Far Eastern Economic Review.
Casey E. (2000). Digital Evidence and Computer Crime: Forensic Science, Computer and the Internet, Academic Press.
Casey E. (2002). Handbook of Computer Crime Investigation, Academic Press.
Federal Bureau of Investigation, http://www.fbi.gov/cyberinves/cyberhome.htm (Last viewed on January 19, 2008).
Kovacich, G.L. & Boni, W.C. (2000). High-Technology Crime Investigator’s Handbook, Butterworth Heinemann.
Lane C. (1997). Naked in Cyberspace: How to find Personal Information Online, Wilton, CT: Press.
Marcella, A.J. & Greenfield, R.S., (2002). Cyber Forensics, Auerbach Publications. Rivest, R. (1992) “Request for comments : 1321 (The MD5 Message-Digest Algorithm)”, MIT Lab. for computer science and RSA data security, Inc.
What is Crimeware? at: http://www.symantec.com/avcenter/cybercrime/index_page3.html (Last viewed on January 19, 2008).
United States Department of Justice Computer Crime & Intellectual Property Section at: http://www.usdoj.gov/criminal/cybercrime/reporting.htm#cc#cc (Last viewed on January 19, 2008).
United States Department of Justice - Computer Crime & Intellectual Property Section: http://www.usdoj.gov/criminal/cybercrime/reporting.htm#ip#ip. (Last viewed on January 19, 2008).
Webopedia at: http://www.webopedia.com/TERM/c/cyber_forensics.htm (Last viewed on January 19, 2008).
Yar M. (2006). Cybercrime and Society, Sage Publications, Thousand Oaks, CA.

Jan09 Bailey ResearchExtra

2009-07-12 11:49:02

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The 4nscs of Txt Msgs¹
Catherine G. Bailey, Research Attorney

Text messaging: it may have its critics but there is no denying its popularity. The appeal of this form of digital communication is primarily the speed at which information can be transmitted – after all who doesn't like a little instant gratification?² However there is now another, newly discovered benefit; busting alibis and catching criminals.

That's a Lot of Texting
With just a few clicks of the keypad mobile texters can enter contests for cash and prizes³, stay current on celebrity gossip⁴, cast votes for their favorite reality TV star⁵, order pizza⁶, get a weather report⁷, look up show times for movies⁸, donate to charity⁹, support a political candidate¹⁰ , and purchase almost anything from clothes to cars¹¹. Notwithstanding this plethora of applications, personal communication appears to remain the most popular use of texting.

In mid-2002 Americans were sending just about 12.2 million SMS text messages a month. In June 2005 that number was 7.2 billion, and by June 2008 the figure had skyrocketed to 75 billion. This latest figure suggests that subscribers are sending almost 2.5 billion texts per day.¹² Considering that teenagers and tweens are driving this trend, these numbers will probably only continue to rise.

Say What?
Text messages are limited to 160 characters. This "limitation and the somewhat cumbersome task of inputting text have led to the creation—by users—of an abbreviated language of their own."¹³ These truncated words and phrases are known collectively as text speak and include terms such as: OMDB for Over My Dead Body, LNGWIJ for Language, and FTR for For The Record. More examples can easily be found in texting dictionaries and "decoders" available online¹⁴ and in hard copy format.¹⁵

Critics of this trend claim that the prevalence of text speak is corroding the English language, particularly in terms of student writing. However not everyone agrees with this viewpoint. Author and linguist David Crystal published a book in 2008 on the issue titled "Txtng: The Gr8 Db8." In it he explains that texting actually helps, not hinders, youth literacy.¹⁶

While this claim is still under debate, one thing is clear. For better or for worse text messaging has generated a new language – a language that has forensic significance.

The Study of Slang
Linguistics experts in the UK have started studying text messages in an effort to identify authorship for forensic purposes. These professionals are essentially applying existing, traditional linguistic analysis to a new medium – text speak. As explained by a leader in the field:

          The key to determining authorship of messages or written documents is to identify patterns in style – spelling, punctuation and use of language, as well as the           spacing between words – and the frequency of functional words such as "of"-, "if" and "the". "What you need to demonstrate authorship is consistency in style           and distinctiveness in style."¹⁷

There are two characteristics that make texting lingo especially susceptible to forensic interpretation. First there are often many prior texts available for comparison. Secondly, "[t]he interesting thing about text messages is that they're very short, but because it's a new way of working, people partially make it up themselves. This makes text messages much more distinctive than other types of writing."¹⁸

A significant benefit of figuring out who wrote a particular text is that investigators can then also determine who did not write the message. This technique has already proved useful in at least two murder prosecutions in the UK.¹⁹

For Example…
In 2001 fifteen year old Danielle Jones disappeared while walking to a bus stop. Her body was never recovered and investigators determined she was the victim of foul play. Danielle's uncle, Stuart Campbell, was subsequently arrested and convicted in connection with the crime.²⁰ When police started to suspect Stuart he showed them text messages that he allegedly received from Danielle after she went missing. During trial a linguistic professor explained that Stuart had sent the messages to himself in a botched attempt to establish an alibi. This was evident because the texts included phrases that were not typical of how Danielle usually expressed herself. For example, the young girl used the phrase "WAT" to express the term "what", however in the suspect messages the term was spelled "WOT." The author also wrote out the phrase "at the moment" which the Danielle would have written as "AT THE MO."²¹

More recently David Hodgson, another British citizen, was accused and convicted of murdering his teenage girlfriend, Jenny Nicholl. Nine days after Jenny had disappeared, texts were sent from her cell phone to her schoolmates and family. During trial police explained that they never believed the messages were actually sent by the young woman.²² Instead it was more likely that Joe generated the messages to create an alibi and throw off the investigators. An expert linguist provided testimony about discrepancies between Jenny's writing style and that of the suspect texts. In addition to many differences in how letters were spaced, Jenny was known to use the abbreviations "FONE" and "CU" while the texts sent after she disappeared used "phone" and "cya."²³

If these cases are any indication, we are likely to see an increase in linguistic analysis of text messages. In fact researchers are developing a database of texts at the UK's Centre for Forensic Linguistics at Aston University.²⁴ As part of this project, over 7,000 text messages have been compiled to provide insight into message styles and variations between individuals and groups of individuals. This work helps establish "base rate information for certain features in texting language" ²⁵ and is ongoing.

Giving the 5-0 the 411
Police have an additional method for using texts to catch criminals - the text tipster line. Areas such as Los Angeles²⁶, New York²⁷ and Chicago²⁸ have implemented new cell phone text options that allow the public to send messages to police about possible criminal activity. Boston adopted this system in 2007 and the very first tip resulted in an arrest for a New Hampshire murder. From June 15, 2007 through June 15, 2008 "Boston police logged 678 text tips, nearly matching the 727 phone tips during the same period."²⁹ By mid-2008 over 100 communities had created text tip lines.³⁰

To assure senders' anonymity law enforcement agencies employ third-party application providers to receive the texts. These providers mask the data of any identifying data and forward the tip on to investigators.³¹ Specifically, the programs are usually internet-based and messages are run through non-police servers that encrypt cell phone numbers. The submission and encryption process takes mere seconds to complete and officers have no way of tracking the tips. Senders are encouraged to delete the texts from their mobile devices for their own safety and security.³²

Some systems do allow for two-way communication between texters and police personnel, but the conversations are still routed through third-party encryption and remain completely anonymous. In this situation tipsters first send in their tips. Then they receive a message explaining that police received the information. They also are given an identifying alias, such as T657. Police can then use this alias to reply to tipsters with follow-up questions.³³

Police are careful to point out that texting law enforcement with a tip is not the same as phoning 911. Therefore persons in emergency situations should still contact 911 for immediate assistance. 911 call centers are upgrading their systems to accept text messages, as exampled by "Vermont's emergency response community [which] switched to a new Internet protocol (IP)-based 911 telecommunications system" in 2007.³⁴

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¹ The Forensics of Text Messages
² Louis Menand, THUMBSPEAK: Is Texting Here to Stay?, New Yorker (10/20/08) at www.newyorker.com/arts/critics/books/2008/10/20/081020crbo_books_menand
³ Diana Dilworth, Mobile Text Contest Works for Atlanta-Area Radio Station, DM News (5/12/08) at www.dmnews.com/Mobile-text-contest-works-for-Atlanta-area-radio-station/article/110411
⁴ For example: www.usatoday.com/brand_marketing/sms/celeb/celebinfo.html
⁵ Britain's Reality TV Craze Fuels Text Message Voting, Cellular-News (3/7/06) at http://www.cellular-news.com/story/16397.php
⁶ For example: www.papajohns.com/sms/index.shtm
⁷ For example: www.weather.com/mobile/textmessaging.html
⁸ For example: http://www.411sms.com/movies
⁹ Katrin Verclas, Is Mobile Fundraising the Next Frontier for Charities?, MobileActive.org (11/29/07) at mobileactive.org/mobile-fundraising-next-frontier
¹⁰ For example: www.barackobama.com/mobile
¹¹ Shopping by Text, USAweekend.com (9/23/07) at www.usaweekend.com/07_issues/070923/070923fashion-shopping-by-text-message.html
¹² CTIA – The Wireless Association® Releases Latest Wireless Industry Survey Results, CTIA Press Release (9/10/08) at ctia.org/media/press/body.cfm/prid/1772
¹³ The Future of Text Messaging, SmartPhoneMag.com (Aug / Sep 07) at www.smartphonemag.com/cms/_archives/Aug07/textmessaging.aspx
¹⁴ For example: www.webopedia.com/quick_ref/textmessageabbreviations.asp
¹⁵ Evie Shoeman & Jack Shoeman, Text Messaging Survival Guide (Trafford Publishing 2007)
¹⁶ David Crystal, Txtng: The Gr8 Db8 (Oxford University Press 2008)
¹⁷ Richard Sadler, Criminals Beware … Texting May Lead the Police to Your Door, Scotsman.com (9/8/08) at news.scotsman.com/latestnews/Pioneering-branch-of-forensics-takes.4467224.jp
¹⁸ Owen Amos, The Text Trap, Northern Echo, page 18 (2/27/08) at www.thenorthernecho.co.uk/news/2076811.the_text_trap; See also: Crystal Deane, Experts Help Trap the Crooks by Text, Birmingham Mail, page 67 (5/30/08)
¹⁹ For an additional example of a convicted seller sending text messages to cover their tracks, see: Mobile Phone Records Show How Lover Sent Bogus Text Messages, Western Morning News, Page 6 (7/6/2006)
²⁰ Martin Wallace & Ian Hepburn, A Monster in the Family; Murdered by Her Uncle, The Sun, (12/20/2002); See also: Tania Branigan, Uncle Told Missing Girl's Mother 'She Will Turn Up', guardian.co.uk (10/11/02) at http://www.guardian.co.uk/uk/2002/oct/11/childprotection.society, and Danielle's Uncle Jailed for Murder, BBC News (12/22/02) at news.bbc.co.uk/2/hi/uk_news/england/2581739.stm
²¹ 'Errors' In Danielle Text Messages, BBC News, (11/12/02) at web.bham.ac.uk/forensic/news/02/danielle1.html
²² Amos, supra note 18; See also: Laura Davis, Txt Study Helps to Convict Criminals, Daily Post, page 8 (9/8/08), and Owen Amos, Murder, But Not as We Know It, Northern Echo, Page 8 (2/20/08)t news.scotsman.com/latestnews/Pioneering-branch-of-forensics-takes.4467224.jp
²³ Amos, supra note 18
²⁴ Txt Crimes, Sex Crimes and Murder: The Science of Forensic Linguistics, Science Daily (9/8/08) at www.sciencedaily.com/releases/2008/09/080908073841.htm; See also: Dick Ahlstrom, Linguistic Analysis Used to Identify Unsigned Texts, Irish Times, Page 6 (9/8/08)
²⁵ The Centre for Forensic Linguistics, www1.aston.ac.uk/lss/academicgroups/english/texting-study
²⁶ Los Angeles Police Department Anonymous Crime Tip Program Public Fact Sheet, www.lapdonline.org/get_involved/pdf_view/39390
²⁷ Anonymous Tips Can Now Be Posted on NYPD Web Site,, Staten Island Advance, page A03 (10/20/08); See also: cityroom.blogs.nytimes.com/2008/08/06/police-urge-crimefighters-to-text-their-tips
²⁸ Carols Sadovi, Chicago Schools, Police Officials Unveil Plans to Curb Student Violence, Chicago Tribune (9/8/08)
²⁹ AP, Police Invite Tips from Anonymous Text Messages, Washington Times (7/3/08) at www.washingtontimes.com/news/2008/jul/03/police-invite-tips-from-anonymous-text-messages
³⁰ Id.
³¹ Will Park, LAPD Launches Anonymous SMS Text Messaging Tipline, IntoMobile.com (9/18/08) at www.intomobile.com/2008/09/18/lapd-launches-anonymous-sms-text-messaging-tipline.html
³² Elaine Rundle, Police Encourage Citizens to Text Their Crime Tips, Government Technology (11/10/08) at www.govtech.com/gt/articles/424044
³³ Id.
³⁴ David Raths, 911 Systems Upgrade to Accept Text Messages and Video, Government Technology (8/4/08) at www.govtech.com/gt/365413

Jan09 Epstein SPOTLIGHT

2009-07-12 11:49:09

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Electronically Stored Information: A Primer - A Litigator's Guide
Jules Epstein, Esquire ¹

In less than a decade, the judicial attitude toward and the litigator’s reliance on electronically stored information (ESI) have changed dramatically. In 1999, judicial resistance to webpage evidence that might have been ‘hacked’ was so great as to exclude it outright; yet by 2007 its authenticity was deemed to be presumptively correct. The wealth and volume of data available from electronic sources are so great that concern is now being expressed that the costliness of discovery might limit access to the courts for many litigants. (See “The Big Data Dump,” The Economist, August 28, 2008).

Mastery of ESI requires the knowledge and skillful adaptation of traditional evidentiary rules. To ensure admissibility, the capable litigator must focus on five issues: investigation; discovery; authentication; hearsay concerns; and the issue of “original writings” [known colloquially as the “best evidence” rule].

Locating electronic evidence will be dependent on several factors. If the investigator is a state official, her/his searches will be cabined by Fourth Amendment strictures, while private actors will be restricted by state privacy and electronic communications [wiretap] laws. Privacy principles will govern when one spouse ‘searches’ a partner’s computer, or when an employer checks that of an employee. The same is true when accessing e-mails or similar electronic communications. Once litigation has commenced, subpoena power and other discovery tools come into play. To this end, the Federal Rules of Civil Procedure have been amended, as one court explained:
        Federal Rule of Civil Procedure 26(a) requires a party to disclose all documents, including electronically stored information, that the party may use to support         its claims or defenses without awaiting a discovery request. Fed.R.Civ.P. 26(a)(1)(A)(ii).... Furthermore, Rule 26(b)(2) only limits the discovery of         electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. Fed.R.Civ.P. 26(b)(2)...²
Where the ESI is on the Internet sophisticated search tools such as the “wayback machine” can be utilized. This program, available through the “Internet Archive³,” permits the user to “[b]rowse through 85 billion web pages archived from 1996 to a few months ago...” and see the content of a page on a particular date. Where the ESI is on a computer’s hard drive, forensic software can search for particular types of files or content. One such program, EnCase, describes its capacities as including displays of “deleted emails, notes, contacts and calendar entries for PSTs, as well as copy/un-erase email messages to popular message formats for external reviews [and]...decod[ing] Web-browsing history and reveal[ing] cached HTML pages and associated images[.]”⁴

Often critical to a search of ESI are the discovery and interpretation of metadata. Essentially a hidden set of codes, metadata can reveal file dates (e.g., creation date, date of last data modification, date of last data access, and date of last metadata modification), and file permissions (e.g., who can read the data, who can write to it, who can run it).⁵ If a discovery order requires the disclosure of metadata, that information can be provided on disk along with the documents in question; otherwise, access to or a mirror copy of the data storage device (hard drive, flash drive, etc.) and the appropriate software can reveal the pertinent codes. The absence of metadata may show that “anti-forensics” software has been used to delete/destroy data.⁶ A related set of data is denominated “embedded information,” which may reveal a “blind copy” address in an e-mail.

Assuming the ESI has been located, three remaining evidentiary obstacles (beyond that of assessing relevance) must be overcome to ensure admissibility. First, the evidence (e-mail, webpage, digital photograph) must be “authenticated,” or shown to be the proof at issue “by evidence sufficient to support a finding that the matter in question is what its proponent claims.”⁷ This may be accomplished by calling a witness with knowledge who can identify the item(s); by establishing them as business records; by admission or stipulation in civil proceedings; or by showing the information was generated by/with a process that produces reliable results.⁸

Digital photographs are a case in point. Although easily subject to manipulation with readily available⁹ computer software programs, the evidentiary standard for admissibility is low. The photograph may be authenticated by the photographer or someone familiar with the scene depicted; and where the digital photo has been enhanced or is a converted image, testimony of an expert is an essential addition to explain the process used and the proven track record of generating reliable results.¹⁰

Two issues remain after authentication. First, the contents of the ESI will undoubtedly contain hearsay, i.e., statements being introduced for the truth of the matter asserted.¹¹ This concern may be obviated by application of any number of hearsay exclusions or exemptions - the statement may be an admission of a party opponent¹²; an excited utterance¹³ or present sense impression¹⁴ (consider, in this regard, instance messages, text messages, and e-mails); a declaration of state of mind¹⁵ or one made for purposes of medical diagnosis or treatment¹⁶; or a declaration against interest.¹⁷ Many ESI documents will be admissible as business records;¹⁸ others may be admissible as reports of government agencies.¹⁹

Two further cautionary notes apply regarding hearsay and ESI. Records generated by a system or process, such as a print-out of dialed telephone numbers or a toll booth receipt showing the date and time of payment, do not implicate the hearsay rule, as there is no assertion and there was no ‘person’ who originated the data. These records are the products of a process, and require authentication of the process’ mechanism and reliability.²⁰ Second, chatroom dialogues (often utilized in internet sexual enticement prosecutions) will contain assertions not only by the accused but by others in the exchange. The latter will not be hearsay, as they are not admitted to prove the truth of what the third parties stated, but to provide context to the defendant’s words.

After hearsay issues are resolved, the final evidentiary concern is the “original writings” [often termed the “best evidence”] requirement.²¹ Because the contents of the writing [the e-mail, the webpage] are at issue, this rule requires production of an original. As duplicates are approved under the rule²², however, this should rarely be a barrier to admission.²³

In sum, ESI offers a wealth of information. Its use depends on knowledgeable investigation and the recognition that introduction merely requires applying ‘old’ rules of evidence to new forms of proof.

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¹ Jules Epstein is Associate Professor of Law at Widener University School of Law, where he teaches Evidence and subjects in criminal law and procedure. Professor Epstein has worked with the National Institute of Justice and NCSTL on forensics projects and presentations. Thanks are due to Widener Adjunct Professor Richard Hermann, a partner at Morris James in Wilmington and a true expert in e-discovery, for his comments and assistance.
² Square D Co. v. Scott Elec. Co., 2008 U.S. Dist. LEXIS 54917 (W.D. Pa. July 15, 2008).
³ http://www.archive.org/web/web.php
⁴ http://www.guidancesoftware.com/law_enforcement/index.aspx
⁵ Scotts Co. LLC v. Liberty Mut. Ins. Co., 2007 U.S. Dist. LEXIS 43005 *11 (S.D. Ohio June 12, 2007)
⁶ S. New Eng. Tel. Co. v. Global NAPs, Inc., 251 F.R.D. 82, 89 (D. Conn. 2008).
⁷ Rule 901, Fed.R.Evid.
⁸ Rule 9901(b)(9), Fed.R.Evid.
⁹ See, e.g. http://www.photographyreview.com/cat/digital photography software/editing software/PLS_3078crx.aspx (last visited October 31, 2008; offering reviews of commercially available photography software).
¹⁰ Rule 901(b)(9). For an excellent discussion of this and other ESI evidentiary issues, see Lorraine v. Markel Am. Ins. Co., 241 F.R.D. 534, 562 (D. Md. 2007).
¹¹ Rule 801, Fed.R.Evid.
¹² Rule 801(d)(2), Fed.R.Evid.
¹³ Rule 803(2), Fed.R.Evid.
¹⁴ Rule 803(1), Fed.R.Evid.
¹⁵ Rule 803(3), Fed.R.Evid.
¹⁶ Rule 803(4), Fed.R.Evid.
¹⁷ Rule 804(b)(3), Fed.R.Evid.
¹⁸ Rule 803(6), Fed.R.Evid.
¹⁹ Rule 803(8), Fed.R.Evid.
²⁰ Rule 801(b), Fed.R.Evid., defines a declarant as a “person who makes a statement.”
²¹ Rule 1001, Fed.R.Evid.
²² Rule 1003, Fed.R.Evid.
²³ But see, United States v. Bennett, 363 F.3d 947, 953 (9th Cir. Cal. 2004) (original writings rule violated where agent testified to what GPS system showed without producing a printout).

Jan09 Mitchell ResearchFocus

2009-07-02 12:43:07

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Spoof Proof Biometrics & Revocable Tokens
◊ Brittan Mitchell, Esquire

With increasing frequency, individuals experience biometric technology for security and authentication in all sectors of society. Here are some examples:
Employees in both the public and private sectors use fingerprint and palm scanners to clock in and clock out.¹
Frequent flyers identify themselves through iris scans stored on smart cards.²
Test takers, in distance education programs, use remote proctors to confirm identity based on image, sound, and fingerprint scans.³
Home and business owners can purchase deadbolt technology that permits access based on fingerprint scans.⁴
Some states have incorporated biometric information into the standard driver’s license.⁵
The soldiers in the United States military use a biometric device called a Hand-held Interagency Identity Detection Equipment or “HIIDE” to “quickly input and access the name, age, address, religious sect, birthplace, fingerprints, retinal information, and facial photograph of any individual.”⁶

We rely on these technological advances to protect our homes, our bank accounts, and even our irreplaceable human identifiers. Confidence naturally declines after reading headlines that suggest fallibility: ‘Researchers crack biometric security with play-doh’⁷ or the ‘Privacy Rights Clearinghouse has documented over 251 million security breaches of records containing “sensitive personal information” in the last 14 years.’⁸ These two headlines pinpoint two of the main concerns with biometric technology. The play-doh finger illustrates the first problem—that an intelligent intruder can “spoof” the technology. The clearinghouse of privacy documents examples relate to the second problem—that the stored biometric information may be leaked or comprised.⁹

Cutting Edge “Spoof Proof” Biometrics:

This article highlights three biometric technologies that are on the cutting-edge of defeating the privacy and “spoofing” hurdles--eyeball reflexes, palm-vein patterns, and revocable biometric tokens. The focus is primarily on the “spoof proof” aspect of improving biometric technology and only minimally addresses the active debates over the privacy concerns.¹⁰ When an individual “spoofs” a biometric system he/she defeats the device’s security by using a phony sample.¹¹ Biometric researchers must be aware of these deficiencies and vulnerabilities and must strive to assure that the authentication process is reliable.¹²

EYEBALL REFLEXES:

Two Japanese scientists are working to tackle the spoofing and privacy hurdles by combining eyeball reflexes (saccade response) with unique ‘blind spot’ data points.¹³ The proposed development will not necessitate the secret storage of biometric information, and the researchers claim that the targeted biometric data is “spoof proof.”¹⁴

Their research indicates that “blind spots” alone are insufficient because of the potential to fraudulently copy a blind spot through complex surgery or high-tech contact lenses.¹⁵ However, the additional use of eyeball reflexes (saccade response) protects the identification system from replication.¹⁶ Specifically, the identification system places a visual target inside and outside the individual’s known blind spot. The system then seeks to track and record the resulting reflexes of the eyeball. These triggered reflexes in turn produce unique information that can identify and authenticate a particular user.¹⁷

Eyeball reflexes, are unique and are seemingly impossible for an imposter to copy since they are “beyond conscious control.”¹⁸ This research team is also experimenting with other potentially unique data sets involving the human eye—pupil contractions and vergence eye movements.¹⁹

PALM-VEIN PATTERNS:

In another measure to increase the reliability of the authentication process, some industries are moving from fingerprints to palm-vein patterns. This technology uses an infrared scan to examine the veins in an individual’s palm. ²⁰ Palm-vein patterns are unique to individuals, even individuals that share the same DNA. ²¹ In fact, an individual user will have unique vein patterns even between a left hand and a right hand. ²² Displaying confidence in the difficulty of “spoofing” someone’s unique vein pattern, one commercial developer claims that the key to security is “in the palm of your hand.”²³ This developer has successfully installed the palm-vein technology in ATM’s and is planning on integrating the technology for mobile phone security. ²⁴

Health care providers and hospitals are potentially a great target for this type of biometric identification. In 2007, a hospital in North Carolina installed these palm-vein scanners for identification of patients. ²⁵ Rather than storing a picture of the individual’s palm, the individual is assigned a unique identification number, thereby reducing privacy concerns from leaked information. ²⁶ The hospital administrators felt that the technology would increase patient security because it would minimize the potential for “leaking” private information (i.e. social security numbers) during the registration process of the patient. ²⁷

Competitive graduate admissions tests are also beginning to utilize this palm-vein scanning technology in the hope that this biometric system will reduce cheating. Fingerprint identification has not proved sufficiently “spoof proof” for takers seeking admission into top business schools.²⁸ Select testing locations utilized these biometric devices in late 2008 and worldwide use is expected by the summer of 2009. ²⁹ This application of the palm-vein biometric technology will store a digital image of the vein pattern. ³⁰ Proponents of the technology feel confident that these vein scans are significantly more difficult to spoof than the traditional fingerprint scan. ³¹ Regardless of the additional safeguards, privacy advocates argue that personal biometric information should only be stored for a set period of time, and then destroyed or revoked. ³² However, currently the palm-vein scans are intended to permanently remain in the student’s file. ³³ The proponents of the technology rebut the privacy argument by pointing out that you “can’t leave a vein pattern at a crime scene;” therefore, the risk that a governmental authority will improperly seize the biometric information and use it to connect the individual to a crime is inconsequential. ³⁴

REVOCABLE BIOMETRIC TOKENS:

The privacy advocates raised issues of revocability in the permanent storage of the palm vein patterns. These advocates and other prudent consumers care about revocability. Individuals, at their convenience, can typically open and close bank accounts, cancel credit cards, and change passwords and security protocols. However, in the realm of biometrics—revocability has not been the standard. Individuals cannot “easily” change their biometric identifiers: fingerprints, palm prints, gait, retina, etc.³⁵

The biometric industry is realizing that revocability must be incorporated into the technology as an additional safeguard for individual privacy. ³⁶ One approach to revocability is the use of “biotokens.” ³⁷ There are four reasons why these biotokens exhibit increased privacy: (1) a biotoken may combine multiple human identifiers (i.e. the combination of a fingerprint and an iris scan), ³⁸ (2) a biotoken may add a level of encryption to the authentication and storage process which “provides cryptographically strong protection of the original biometric data,” ³⁹ (3) a biotoken may be stored in an alternate location from the original biometric identifiers, ⁴⁰ and (4) the revocable nature of the biotoken may allow for the token to expire and a new token issued without the recollection of the original biometric identifiers. ⁴¹

A Colorado based company, Securics Inc., is exploring the benefits of biotokens; their unique biotokens are called ‘Biotope revocable identity tokens.’ ⁴² The company’s self proclaimed goals are to enhance security while protecting privacy. ⁴³ The website indicates that Securics offers the only commercially available revocable biotokens for face and fingerprint. ⁴⁴ The Biotope technology “transforms the original biometric signature into an alternative revocable form (the Biotope) that protects privacy while it supports a robust distance metric necessary for approximate matching.” ⁴⁵ The company describes some additional advantages to this technology as follows:

Network infrastructure is continually compromised by attacks involving man-in-the-middle key exchanges, dictionary attacks, and phishing. Standard biometrics and even secure ID tokens are not immune. Loss from these attacks is estimated to be as high as 3.2 billion dollars. Revocable Biotope tokens are impervious to these issues. At the core of our bio-cryptographic protocols is a Biotope token that is unique on a per transaction basis. This approach completely prevents known attacks; non-public transmitted data is never reused. The Biotope technology supports nesting, allowing stored tokens to be used to generate new tokens in real time — something no other privacy enhanced biometric technology can do. ⁴⁶

The initial commercial function for these biotokens is an authentication application for Web-based transactions; however, the company is hoping that the Biotope token will expandable for use in drivers’ licenses and passports.⁴⁷

Conclusion:

Eyeball reflexes, palm-vein patterns, and revocable biometric tokens are three examples of cutting edge biometric technologies each with a unique approach to spoof proofing and enhancing the privacy of the underlying data. Other approaches to making a biometric device more secure might include adding a password or an additional biometric device. ⁴⁸ Spoof proofing technologies is an underlying hope for the biometric industry. Many researchers hope to achieve this goal and to create such a technology. Other researchers assert that there is no technology that is spoof proof. ⁴⁹ These researchers insist that the key to security is to stay technologically ahead of bad guys. ⁵⁰
‘Staying ahead of the bad guys’ is the theme that is driving the biometric industry. Regardless of some of the existing biometric shortcomings, the industry, as a whole, is excelling in today’s economy. An FBI statement made while announcing a $1 billion dollar biometric contract illustrates this sentiment: "Due to the many issues associated with identity theft, lost and stolen documents, and the ability to spoof standard name-based identity management systems, coupled with the rapid advances in technology and the nation's focus on combating terrorism, there are increasing needs for new and improved identification services," ⁵¹ It’s evident that spoof-proof biometrics are crucial to the future of forensics!

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End Notes:

◊ Brittan Mitchell is a former NCSTL staff member. [LL.M. New York University (expected 2010); J.D. Stetson College of Law (2003); B.S. Accounting Florida State University (2000); B.S. Economics Brigham Young University (1999)].

¹ David Caruso, Fingerprint Scans Replace Clocking In, Mar. 27, 2008, Live Science, http://www.livescience.com/technology/080327-ap-fingerprint-scans.html.
² Registered Traveler Cards (rtGO cards) allow individuals to pay a fee for quicker security measures in airports. The identification is based on fingerprint and iris scans. See Registered Traveler Cards Take Flight at the Reno Tahoe International Airport, Contactless News, June 21, 2007, http://www.contactlessnews.com/2007/06/21/registered-traveler-cards-take-flight-at-reno-tahoe-international-airport/.
³ Distance education test takers can now use the remote proctor software with biometric fingerprint scans to authenticate test taker. See Proctor 2.0, INSIDE HIGHER ED, June 2, 2006, http://www.insidehighered.com/news/2006/06/02/proctor.
⁴ Tony Kontzer, Biometric Deadbolt Is Latest Assault on Keys, DVICE, 2007, http://dvice.com/archives/2007/05/biometric_deadbolt_is_latest_a.php.
⁵ “Incorporating biometrics into driver licenses was recently mandated in the “Minimum Standards for Driver’s Licenses and Identification Cards Acceptable by Federal Agencies for Official Purposes” issued by the Department of Homeland Security. A biometrically-enhanced driver license system aids in addressing the following key problems: (i) issuance of multiple licenses to a single driver; (ii) issuance of a single license to multiple drivers, and (iii) detection of counterfeited driver licenses.” BioLink Biometrics Incorporated into Hawaii Driver License Program, 1888 PRESS RELEASE, Mar. 3, 2008, http://www.1888pressrelease.com/biolink-biometrics-incorporated-into-hawaii-driver-license-p-pr-j94yh3g29.html; See also L-1 Finds $20M Order for HIIDE Biometric Devices, Oct. 13, 2008, http://www.masshightech.com/stories/2008/10/13/daily10-L-1-finds-20M-order-for-HIIDE-biometric-devices.html (suggesting that Massachusetts and Mississippi are incorporating a biometric component in their driver’s licenses).
⁶ Jeff Emanuel, SecuriMetrics HIIDE® Developed for the US DoD, Aug. 14, 2007, http://www.findbiometrics.com/article/420.
⁷ Robin Arnfield, Researchers Crack Biometric Security with Play-Doh, NEWSFACTOR, (Dec. 13, 2005), http://www.newsfactor.com/story.xhtml?story_id=03200000RJCW ; See also Interview of Dr. Boult on KOAA TV on biometrics and spoofing fingerprints, http://www.securics.com/links.html (showing a demonstration on the ease of “spoofing” fingerprint readers).
⁸ Privacy Rights Clearinghouse, http://www.privacyrights.org/ar/ChronDataBreaches.htm (updated Jan. 12, 2009).
⁹ Inderscience Publishers, Eyeball Reflexes: Security and Biometrics That Cannot Be Spoofed, Science Daily, Sept. 4, 2008, http://www.sciencedaily.com/releases/2008/09/080904102751.htm.
¹⁰ Many of the references cited within the footnotes explain the issues that arise in the privacy debates regarding biometric technology.
¹¹ Clarkson University, Clarkson Engineer and 'Spoofing' Expert Looks To Outwit High-Tech Identity Fraud, Science Daily, Dec. 20, 2005, http://www.sciencedaily.com/releases/2005/12/051216193022.htm.
¹² Id.
¹³ Inderscience Publishers, supra n. 9; See also Masakatsu Nishigaki & Daisuke Arai, A User Authentication Based on Human Reflexes Using Blind Spot and Saccade Response, 1(2) Int’l J. Biometrics 173 (2008) (DOI 10.1504/IJBM.2008.020143):
     The use of biometrics for user authentication has recently attracted attention. Biometrics makes it possible to authenticate a person accurately, but biometric information can easily be leaked and/or copied. It is therefore desirable to devise biometric authentication that does not require biometric information to be secret. This paper proposes a user authentication method that utilises human reflex responses. The expectation is that, even if a person's reflex characteristics are publicly known, it would be difficult for someone else to impersonate that person, since human beings are basically unable to control their own reflexes. In this paper, we demonstrate user authentication using blind spot position and saccade responses as the prototype of a system of authentication based on reflex responses, and also study the feasibility of such a system.
¹⁴ Nishigaki & Arai, supra n. 13; See also Terri Potratz, New Spy Gear: Reflex Biometric Technology, Nowpublic.com, Sept. 4, 2008 http://www.nowpublic.com/tech-biz/new-spy-gear-reflex-biometric-technology (providing pictures and slideshows of relevant technologies).
¹⁵ Inderscience Publishers, supra n. 9;
¹⁶ Nishigaki & Arai, supra n. 13 (explaining that the blind spot (scotoma) “is a fixed region on the retina of the eye where the optic nerve bundle and blood vessels pass from the eyeball into the brain and so no image can be produced here. Saccade response is the repeated, tiny, left-to-right movements made when our eyes track something moving right to left, and vice versa”); See also Saccade, Wikipedia, http://en.wikipedia.org/wiki/Saccade
¹⁷ Nishigaki & Arai, supra n. 13.
¹⁸ Id.
¹⁹ Id.
²⁰ High Tech Patient ID: Information Technologists Design System to Recognize Palm-vein Patterns, Science Daily, Oct. 1, 2007, http://www.sciencedaily.com/videos/2007/1009-high_tech_patient_id.htm. R&D, Fujitsu Palm Vein Technology, http://www.fujitsu.com/global/about/rd/200506palm-vein.html.
²¹ Id.
²² Id.
²³ Id.
²⁴ Id.
²⁵ High Tech Patient ID, supra n. 20.
²⁶ Id.
²⁷ Id.
²⁸ John Hechinger, Testing Firm Gets High-Tech ID Checks: Biometric Scans to Verify Students Taking GMATS, South Florida Sun-Sentinel, July 27, 2008, at 1-D.
²⁹ Id.
³⁰ Id.
³¹ Id.
³² Id.
^{33/sup> Id.

³⁴ Id.

³⁵ See generally Rebecca Tonn, Revocability Key to Secure Use of Biometrics, Colorado Springs Business Journal, May 9, 2008, http://findarticles.com/p/articles/mi_qn4190/is_/ai_n25423195 ; See also Wayne Heilman, Selling the Security of Biometrics, The Gazette, Sept. 19, 2007, http://www.gazette.com/articles/technology_27486___article.html/biometric_securics.html.

³⁶ Tonn, supra n. 35; See also T. Boult, W. Schdrer, & R. Woodworth, Revocable Fingerprint Biotokens: Accuracy and Security Analysis, Computer Vision and Pattern Recognition 1 (June 2007) (DOI: 10.1109/CVPR.2007.383110) (indicating that the “concept of revocable or cancelable biometric-based identity tokens (biotokens), if properly implemented, can provide significant enhancements in both privacy and security and address the biometric dilemma.”) (A link to this publication is available for download on the website of one the authors http://www.vast.uccs.edu/vast/walter.html).

³⁷ Tonn, supra n. 35.

³⁸ Id.

³⁹ Securics “Technology” http://www.securics.com/tech.html (2008); See also Heilman, supra n. 35.

⁴⁰ Securics “Technology, supra n. 39 ; See also Heilman, supra n. 35

⁴¹ Securics “Technology, supra n. 39 ; See also Heilman, supra n. 35.

⁴² Securics “Technology, supra n. 39 ; See also Heilman, supra n. 35.

⁴³ Securics “Technology, supra n. 39.

⁴⁴ Id.

⁴⁵ Terrance Boult & Robert Woodworth, Advances in Biometrics, 423 (Springer London, 2008) (DOI: 10.1007/978-1-84628-921-7_22; http://www.springerlink.com/content/vk10222wh1457163/).

⁴⁶ Securics “Technology, supra n. 39.

⁴⁷ Tom Olzak, Biotope Technology to Protect Personal Biometrics, Security Community, Sept. 28, 2007, http://it.toolbox.com/blogs/adventuresinsecurity/biotope-technology-to-protect-personal-biometrics-19373

⁴⁸ Robin Arnfield, Researchers Crack Biometric Security with Play-Doh, Newsfactor, Dec. 13, 2005, http://www.newsfactor.com/story.xhtml?story_id=03200000RJCW.

⁴⁹ Id.

⁵⁰ Id.

⁵¹ Lockheeed Gets $1Billion FBI Biometrics Contract, CommwebNews.com, Feb. 13, 2008; See also Ellen Nakashima, FBI Building $1B Biometric Database, Deseret Morning News , Dec. 23, 2007, at A02, http://findarticles.com/p/articles/mi_qn4188/is_20071223/ai_n21174309.}

Jan09 NCSTLActPubPress

2009-07-12 10:57:42

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NCSTL PROFESSIONAL ACTIVITIES:

Director presented Science, Technology and the Law at the International Convention on Legal Medicine and Forensic Science, San Remo Italy, October 1-4, 2008
Director of Technology & Distance Education, Dr. Susan Zucker, presented NCSTL: Its Function and Impact, at the annual meeting of the Federal Judges Secretaries Association, Albuquerque, NM, October 10, 2008
Director participated on panel: Fire Setters & Investigating Experts, at the 39th annual meeting of the American Academy of Psychiatry and the Law, Seattle Washington, October 22-27, 2008
Director participated in the NIJ General Forensics TWG meeting in Largo, Fl, November 19-20, 2008
Director travelled to Colorado Springs and Denver, Colorado in my capacity as President of the American Academy of Forensic Sciences in early December
Director participated in the Council of Scientific Society Presidents Symposium, Washington, DC, December 6-8, 2008
NCSTL MEDIA COVERAGE

WMNF interviewed NCSTL Guest Lecture panelists, Judge Robert Russell, Stetson College of Law professors, Rebecca Morgan and Michael Allen, on Emerging Issues: Returning Veterans, PTSD and Other Injuries, and Their Impact on the Criminal Justice System on October 31, 2008. WMNF News Story.
Director interviewed by Steve Simms – Chicago Tribune December 4, 2008
Director interviewed by Baufield & Ford Courtside for Tru TV about Caylee Anthony Case December 15, 2008
Director of Outreach, Anjali Swienton, interviewed at Scott Farrell radio show about DNA December 17, 2008
Director of Outreach, Anjali Swienton, interviewed at Bud Hedinger radio show about Caylee Anthony Case December 19, 2008

Jan09 ResearchUpdate

2009-07-12 10:58:15

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From the Research Desk: Update
Diana Botluk, Director of Research

Happy New Year!

NCSTL has exciting plans for the first quarter of 2008. Our database is being upgraded to allow an easier, more user-friendly search experience. It will be easier to limit your search to a particular part of a record, date and location searching will be easier, and you won't have to worry about whether your book title has punctuation when you search for it. Look for changes in the coming months.

The NCSTL database continued to grow in 2008. We added over 17,000 new records to the database in 2008, for a current total of more than 76,000 records. Last year, the NCSTL website had over 84,000 visitors who performed more than 19,000 database searches. Most visitors are from the United States, but we also got visitors from 113 other countries in 2008. 81% of our visitors link directly to us through a bookmark or by typing the URL into their browsers; however, 11% find us through search engines like Google, and 8% connect through a link they find on another website.

Then NCSTL Special Collection in the Stetson Law Library is the only special collection of its kind in any major law library. The collection was moved to a bigger section of the library in 2008. We added 349 new titles in 2008, and the collection currently boasts 2195 titles. Through the Interlibrary Loan system, these special materials are able to be borrowed by professionals and scholars from across the world.

In the past three months we have added many new pages and bibliographies to the Related Links and Education sections of the website, including varied topics such as DNA postconviction policy, PTSD, and expert witness testimony.

We are eagerly awaiting the improvements to be made with the new upgrade and will be looking for your feedback. Stay tuned for more information.

Jan09 TechUpdate

2009-07-12 11:27:31

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TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director of Technology and Distance Education

The biggest news to report is that www.ncstl.org is undergoing a facelift ... the pages are being redesigned to better showcase new media elements and the database will soon provide a more user-friendly search interface. This will help our viewers find information more efficiently. It is very exciting!

The NCSTL Calendar provides a compilation of national and international engagements in forensic science, law, technology, and education. Calendar 2009 is a work in progress but will be nearly complete before the end of January. The NCSTL Calendar is a very popular feature on this site!

It's Evident, NCSTL's well-written, well-read, quarterly e-newsletter, features articles on all things forensics. It receives lots of "hits". Check out the latest issue of It's Evident and the archived issues, too.

Being added to the website during the first two quarters of 2009:

Ethics Workshop footage and materials
New media - webcasts, vodcasts, podcasts, blog links, widgets, and RSS feeds

Additions to the www.ncstl.org/education website during the fourth quarter of 2008 included:

FDIAI (Florida Division of the International Association for Identification) newsletters from 1986 - 2002 which are located in Special Collections in the Education & Training section;

Two Guest Lectures were added to the Education & Training section:

Dr. Frances Rock's lecture Forensic Linguistic Examination of Evidence held at Stetson University College of Law on September 16 co-sponsored by the NCSTL, Legal Research and Writing, and International Programs

Panel presentation Emerging Issues: Returning Veterans, PTSD and Other Injuries, and Their Impact on the Criminal Justice System was held on October 31 in the Eleazer Courtroom on the Stetson University College of Law campus. Featured speakers were: Honorable Robert T. Russell, Presiding Judge Veterans Court, Buffalo, New York; Christopher M. Weaver, PhD, National Center for PTSD Veterans Administration; Donna Jacobs, Veterans Advocate California Statewide Veterans Collaborative and Founder, Not This Time Vets; Lt. Colonel David Rabb,U.S. Army Western Regional Medical Command VA Military Liaison; Michael P. Allen, Professor of Law Stetson University College of Law; moderated by Professor Rebecca Morgan, Boston Asset Management Chair in Elder Law & Director, Center for Excellence in Elder Law. WMNF interviewed Judge Russell and Professors Morgan and Allen. Listen ...

This presentation addressed commonly experienced physical and psychological injuries of returning veterans returning to civilian life from combat deployments; the resources available through the Veterans Administration and community programs; judicial response to the ever-growing defendant population of veterans; and military resources which help reserve and active duty personnel and dependents identify and respond to stresses when returning to civilian life.

Educational Media Links in the Education & Training Section to showcase interesting interviews. See and listen

I will be presenting YouTube, Facebook, Chat Rooms, and Blogs: A Fertile Classroom for Illicit Activities at the American Academy of Forensic Science in Denver, CO in February. In April and August, I will be presenting Computer Forensics and the NCSTL at the Computer Forensic Show.

Hope to see you there!
Susan

January, 2006

2009-07-29 15:20:04

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson
It is with pleasure that I write "From the Director’s Desk" for NCSTL’s first quarterly newsletter. NCSTL has come a long way since its inception in 2003. In this period of increased interest in crime scene investigation, NCSTL representatives travel nationwide to inform our constituency – law enforcement, legal professionals, scientists, educators, and technologists of NCSTL’s work.

NCSTL’s mission is to provide comprehensive scientific, technological and legal information, which will promote justice based on sound science and technology. To this end, I am pleased to report our accomplishments:

NCSTL.org's “one-stop-shop” database which has grown to over 30,000 records;

The first National Conference for Science, Technology and the Law was hosted in September, 2005. The next conference will be held November 2–5, 2006.

Works authored by NCSTL representatives are widespread, as is media coverage, including features on television and radio networks;

Educational guest lectures are being produced via digital media and include CD-ROMS, DVD-ROMS, web and pod casts;

An interactive education program entitled Law 101, which is designed to educate non-lawyers who are going to serve as expert witnesses, is in development;

Law students at Stetson and other universities satisfy pro bono hours and earn directed research credits by conducting research for the database.

Stay tuned to our website as NCSTL continues to grow, delivering ever more exciting opportunities for research and education in the fields of science, technology and law.

Happy New Year!

January, 2006

RESEARCH FOCUS
Virtual Autopsies: No Scalpel Required
Catherine Guthrie, Staff Researcher
Virtual autopsies are on the cutting edge of forensic science. They use computerized reconstructions of the deceased to determine cause and time of death. Find out more ...
CASE STORY
Special Project: Bioterror and the Physician
Leeanne Frazier, Staff Researcher
What is the likelihood that the avian flu sweeping Asia will be contracted by individuals and introduced into the West to deposit death and turmoil? Find out how physicians faced with an epidemic like this respond to patients with symptoms that indicate avian flu infection.
FUN WITH FORENSICS — Puzzle-Contest

FROM THE RESEARCH DESK...
Database and Reference Collection
Diana Botluk, Director of Research
In January, 2006 NCSTL had cause to celebrate, as the database reached its 30,000th record! Find out more about how NCSTL researchers are working hard to make the database the best resource it can possibly be, while providing the highest quality research tool.
TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director Technology & Distance Education and Publisher of It's Evident
To bring you the best possible service, the NCSTL website at www.ncstl.org continues to be modified and developed. Details include information on web/pod casting and an education update.

NCSTL ACTIVITIES and PRESS: Find out where NCSTL staff has been and what we’ve been doing, including information about our publications and the press coverage we have received.

January, 2007

2009-10-18 22:25:53

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson

This issue of It’s Evident marks the end of a year which has been very busy and very productive. Here’s what’s new:

NCSTL.org's “one-stop-shop” database has grown to over 44,000 records and continues to develop and consolidate forensic-based information;

To inform NCSTL’s constituency which includes law enforcement agents, legal professionals, scientists, engineers, educators, and technologists, NCSTL representatives attended conferences nationally and internationally and made two keynote addresses: Faux-N-Sics: Is CSI the Cause or the Effect? delivered at the New England School of Law’s Law Review Symposium in Boston Massachusetts and The People Speak: A Forum About Our World – A Discussion About Human Rights, Stetson College of Law, Gulfport, FL;

NCSTL staff engages in training activities. This quarter a workshop entitled How to Conduct Research on the NCSTL Database was conducted at the ASCLD (American Society of Crime Laboratory Directors) Conference in San Francisco, CA. Several information sessions were presented at many venues including: the U.S. Army Trial Defense Service, Regional Defense Counsel, Continental United States Conference, Orlando, FL at which the NCSTL and Expert Testimony was discussed; a delegation of Russian Judges at Stetson in Gulfport, FL was hosted and engaged in an NCSTL information session; the Forensic Resources and Program Update at the Northeast (NLECTC-N.E.), Rome, NY were presented with information on the NCSTL as was the Forensic Resources and Program Update at The Great American Teach-In, Boca Ciega High School, St. Petersburg, FL;

NCSTL hosted the second international conference on Science, Technology and the Law from November 2-5, 2006 at the Vinoy Hotel in St. Petersburg, FL. It was well attended. Proceedings from the conference are scheduled to be published on the NCSTL website in the first quarter of 2007.

NCSTL anticipates a very active new year and continued growth. We, at NCSTL, wish you a Happy and Healthy New Year!

Stay tuned ….

January, 2007

RESEARCH FOCUS
S.O.S. for S.B.S.? Not quite…
Catherine Guthrie, Staff Researcher
Despite international controversy over the Shaken Baby Syndrome (SBS) diagnosis, recent cases illustrate that American courts are still willing to admit evidence of SBS through expert testimony and demonstrative exhibits. Full paper

SPECIAL REPORT
Cyber Forensics: Part One
Dr. Susan Zucker, Director Technology & Distance Education

Advances in technology leading to greater data storage capacity, the development and popularity of the Internet, and the huge increase in the number of computer users have led to a plethora of cyber crime. Full paper

FROM THE RESEARCH DESK ... Database and Reference Collection
Diana Botluk, Director of Research

Happy New Year from the NCSTL Research Department! The last few months of 2006 were busy ones for the NCSTL research staff. The NCSTL database has grown to over 44,000 records …Find out more
TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker is Director Technology & Distance Education and Publisher of It's Evident
Happy New Year! The year 2006 finished up with a bang! More ...
NCSTL ACTIVITIES and PRESS: Find out where NCSTL staff has been and what we’ve been doing, as well as information about our publications, professional associations, and the press coverage we have received.

January, 2008

2009-07-29 15:13:20

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson

This issue of It’s Evident is the first issue in 2008! Holidays have come and gone and the new year is before us. Here’s what happened in the last quarter of 2007:

NCSTL.org's “one-stop-shop” database has grown to over 60,000 records and continues to develop and consolidate forensic-based information;

The NCSTL receives regular media coverage. Last quarter, I appeared on the Montel Williams Live Show, “True Crime: Deadly Deception”, November 1, 2007, and another appearance was scheduled for January 17, 2008.

The NCSTL participates in scholarly activities and this accomplishment was not reported in the Spring, 2007 issue. Research Attorney, Catherine Guthrie, and Research Director, Diana Botluk, wrote articles for the Stetson Law Review: Center for Excellence in Advocacy Symposium. The law review was published in Spring 2007, Volume 36, Number 3. Ms. Guthrie's article, The Swinton Six: The Impact of State v. Swinton on the Authentication of Digital Images, is on page 661 and Ms. Botluk's article, The National Clearinghouse for Science, Technology and the Law: Supporting the Role of Forensic Science in the Administration of Justice, is on page 609.

To inform NCSTL’s constituency, which includes law enforcement, legal professionals, scientists, engineers, educators, and technologists, NCSTL representatives make presentations and offer training on a multitude of topics, and attend conferences nationally and internationally. .

The past quarter was busy with meetings and conferences. I participated in: 1) the ASCLD 35th Annual Workshop and Symposium held in Orlando, Florida, October 1-4, 2007; 2) the IACP 114th Annual Conference & Exposition held at New Orleans, October 12-15, 2007; 3) the 15th International Forensic Science Symposium, Lyon, France, from October 22-26, 2007; 4) the Council of Scientific Society Presidents meeting, Washington, DC, December 1-4, 2007; 5) the National Academy of Science Committee Meeting, “Identifying the Needs of the Forensic Science”, Washington, DC, December 6, 2007; 6) the National Institute of Justice Forensic Policy Summit, Washington, DC, December 17-18, 2007.

On October 16, 2007, Director of Technology and Distance Education, Dr. Susan Zucker, presented “Podcasting: Friend or Foe” at the E-Learn Conference, Quebec City, Quebec; Research Attorney, Jeff Chesen, presented “CSI Effect: Fact or Fiction” at the Florida Division of the International Association for Identification (FDIAI) Educational Conference 2007 on October 25; Research Attorney, Betty Fitterman, presented “Digging up Dirt on Experts-Cross Examination of Expert Witness Workshop”, Bradenton, FL, October 26, 2007. I presented information on the NCSTL to Judges from the Bahamas on December 14, 2007.
The next issue of It's Evident will be published in April, 2008. Until then …

January, 2008

RESEARCH FOCUS
Elder Abuse: A Determination of Death
Angela Lack, Law & Science Fellow

Every year, nearly 700,000 to 1.2 million elderly people are subjected to mistreatment or abuse. People age 80 and older who are dependent on others for basic care, especially women, are particularly vulnerable to elder abuse. Many factors lead to the mistreatment of the elderly including: elderly persons’ need for care giving; dependency of people on the elderly; mental impairments; isolation; inadequate living arrangements; inability to perform daily functions; frailty; family conflict; poverty; alcohol or drug abuse of the caregiver; or other socioeconomic issues.

Elder abuse is a problem throughout the United States. Each state has its own guidelines and laws. Full Paper

TECHNOLOGY CORNER
Cyber Forensics: Part II
Dr. Susan Zucker, Director Technology & Distance Education

Cyberspace is the newest locus of criminal activity and it is the location where cyber forensic investigations take place. Cyber activity has become a significant portion of everyday life.

The surge in virtual reality environments and computer mediated communications via web pages, online documents, email, news group archives, archived files, and chat rooms have introduced new forms of deviance, crime, and social control. Thus, the scope of criminal investigation has also been broadened. Full Paper

Cyber Forensics: Part I was published in the January, 2007 issue of It's Evident and is part of the IACP (International Association of Chiefs of Police) database. Full Paper
FROM THE RESEARCH DESK...
Diana Botluk, Director of Research

Happy New Year! NCSTL is growing by leaps and bounds.

In 2007, NCSTL's third year online, it had almost three times as many visitors as in its first year. While the majority of NCSTL users hail from the United States, NCSTL has been visited by people in 116 countries since its inception in 2005. Find out more
TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director Technology & Distance Education and Publisher of It's Evident
Welcome, 2008 ...

In the last quarter of 2007, multimedia projects were uploaded to www.ncstl.org and lots of new information was added to the webstite. Find out more
NCSTL ACTIVITIES and PRESS: Find out where NCSTL staff has been and what we’ve been doing, as well as information about our publications, professional associations, and the press coverage we have received.

January, 2009

2009-07-29 15:11:24

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson

Happy New Year from the NCSTL! This issue of It’s Evident is the second consecutive issue which focuses on the Future of Forensics and reflects the activity of the very busy NCSTL staff during the last quarter of 2008. Here’s some of what’s new:

NCSTL.org's “one-stop-shop” database has grown to over 76,000 records and continues to develop and consolidate forensic-based information including the addition of webcasts, podcasts, vodcasts, blog links, and training materials which focus on science, technology and law topics;

The NCSTL receives regular media coverage. On October 31, 2008, WMNF interviewed NCSTL Guest Lecture panelists, Judge Robert Russell and Stetson College of Law professors, Rebecca Morgan and Michael Allen, on Emerging Issues: Returning Veterans, PTSD and Other Injuries, and Their Impact on the Criminal Justice System, WMNF News Story. I was interviewed on December 4, 2008, by Steve Simms of the Chicago Tribune and on December 15, 2008 I was interviewed by Baufield & Ford Courtside for Tru TV about Caylee Anthony Case. NCSTL’s Director of Outreach, Anjali Swienton, was interviewed on the Scott Farrell Radio Show about DNA with specific references to the Caylee Anthony case on December 17, 2008 and on December 19, 2008, Anjali was interviewed on the Bud Hedinger Radio Show about Caylee Anthony Case;

I participated on the panel Fire Setters & Investigating Experts at the 39th annual meeting of the American Academy of Psychiatry and the Law, Seattle Washington, October 22-27, 2008; on November 19-20, 2008 I participated in the NIJ General Forensics TWG meeting in Largo, Fl; in early December travelled to Colorado Springs and Denver, Colorado in my capacity as President of the American Academy of Forensic Sciences and on December 6-8, I participated in the Council of Scientific Society Presidents Symposium, Washington, DC;

To inform NCSTL’s constituency, which includes law enforcement, legal professionals, scientists, engineers, educators, and technologists, NCSTL representatives make presentations and offer training on a multitude of topics. This quarter, I presented Science, Technology and the Law at the International Convention on Legal Medicine and Forensic Science, San Remo Italy, October 1-4, 2008. On October 10, 2008, Director of Technology & Distance Education, Dr. Susan Zucker, presented NCSTL: Its Function and Impact, at the annual meeting of the Federal Judges Secretaries Association, Albuquerque, NM.
The next issue of It's Evident will be published in April, 2009.

Best regards,
Carol

January, 2009

RESEARCH FOCUS
Cutting Edge “Spoof Proof” Biometrics
Brittan Mitchell, Esquire, is a former NCSTL staff member

With increasing frequency, individuals experience biometric technology for security and authentication in all sectors of society. Examples include: using fingerprint and palm scanners to clock employees in and clock out; identifying frequent travelers through iris scans stored on smart cards ... Full Paper
RESEARCH EXTRA
The 4nscs of Txt Msgs
Catherine G. Bailey, Research Attorney

Text messaging: it may have its critics but there is no denying its popularity. The appeal of this form of digital communication is primarily the speed at which information can be transmitted – after all who doesn't like a little instant gratification? However there is now another, newly discovered benefit; busting alibis and catching criminals. Full paper
SPOTLIGHT ON Electronically Stored Information: A Primer - A Litigator's Guide

Jules Epstein, Esquire, is Associate Professor of Law at Widener University School of Law, where he teaches Evidence and subjects in criminal law and procedure.

In less than a decade, the judicial attitude toward and the litigator’s reliance on electronically stored information (ESI) have changed dramatically. In 1999, judicial resistance to webpage evidence that might have been ‘hacked’ was so great as to exclude it outright; yet by 2007 its authenticity was deemed to be presumptively correct. Now there is a concern that the costliness of discovery might limit access to the courts ... Full paper
FROM THE RESEARCH DESK...
Diana Botluk, Director of Research
Happy New Year! NCSTL has exciting plans to upgrade our database to provide more user-friendly search experiences. Find out more ...

NCSTL's BOOKS & SPECIAL COLLECTIONS
Visit the NCSTL's Book Collection @ Stetson College of Law and the NCSTL's Special Collections. Borrow from the collections.

TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director Technology & Distance Education and Publisher and Editor of It's Evident

The biggest news to report is that www.ncstl.org is undergoing a facelift as this issue of It's Evident is published ... Find out more

NCSTL ACTIVITIES and PRESS: Find out where NCSTL staff has been and what we’ve been doing, as well as information about our publications, professional associations, and the press coverage we have received.

July, 2006

2009-07-29 15:17:40

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson

This marks the first summer issue for It’s Evident, NCSTL’s newly named quarterly newsletter. The past few months have proven to be busy and the summer schedule is full, too. Here’s what’s new:

NCSTL.org's “one-stop-shop” database has grown to over 37,000 records and continues to develop and consolidate forensic-based information;

NCSTL representatives attended and presented at the AAFS meeting and other conferences to inform our constituency – law enforcement, legal professionals, scientists, engineers, educators, and technologists of NCSTL’s work;

NCSTL representatives have authored material and received significant media coverage, including features on national and local television and radio stations;

The 2006 Law, Science, and Technology Lecture Series was held at Stetson University College of Law. DVDs, pod casts, and web casts of “The Impact of DNA Evidence In Addressing Human Rights Issues in the Philippines and Other Uses of DNA Worldwide” and “Terrorists, Hurricanes and Viruses: What’s Next?” are in production;

Law 101, an interactive education program, designed to educate non-lawyers who are going to serve as expert witnesses, is in development;

Law students at Stetson and other universities satisfy pro bono hours and earn directed research credit while continuing to expand the database;

Save the Date! The second NIJ/NCSTL Conference for Science, Technology and the Law is being planned for November 2-5, 2006 at the Vinoy Hotel in St. Petersburg, FL.

We, at NCSTL, anticipate a very active year and continued growth and look forward to your attendance at the Conference for Science, Technology and the Law in November.

Stay tuned …

July, 2006

RESEARCH EXTRA
Canada’s Use of Expert Witnesses and Scientific Evidence Admissibility
Jeff Chesen, Senior Staff Researcher
Canadian courts, like their American counterparts, have been enthusiastic in their acceptance of expert testimony in most scientific areas. A series of cases have set forth the parameters for admission of expert evidence, holding that expert evidence must be based in science. Full paper ...
RESEARCH FOCUS
Does Contextual Information Affect Expert Opinions?: Recent Research
Angela Lack, Law and Science Fellow

Fingerprints have been used in forensic identification for a hundred years. The generally accepted method of latent print identification is ACE-V. Two questions arise when fingerprints are used for identification: Is the process objective? Does the context in which the analyses are made affect outcomes? Find out more ...
FUN WITH FORENSICS
Word Search Fun
Brittan Mitchell, Former Staff Researcher

FROM THE RESEARCH DESK...Database and Reference Collection
Diana Botluk, Director of Research
NCSTL researchers have been hard at work over the past quarter, not only developing the database, but also working on a variety of special research projects. Find out more...
TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director Technology & Distance Education and Publisher of It's Evident
The NCSTL website at www.ncstl.org continues to be modified and developed to be more easily navigable and more informative. Details include ...

NCSTL ACTIVITIES and PRESS: Find out where NCSTL staff has been and what we’ve been doing, as well as information about our publications, professional associations, and the press coverage we have received.

July, 2007

2009-07-29 15:13:53

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson

This issue of It’s Evident is the third issue in 2007. Here’s what’s new:

NCSTL.org's “one-stop-shop” database has grown to over 52,000 records and continues to develop and consolidate forensic-based information;

URL–based searches have been developed for www.ncstl.org. NIJ will use this feature to make it easier to share research findings with large groups.

NCSTL was responsible for organizing and convening a Community Acceptance Panel regarding Riot control agents as a Less Lethal Technology in April in Washington, D.C. Research Attorney, Marian Daggett, presented and Anjali Swienton, Director of Outreach, and I participated.

NCSTL Program and Grants Manager, Diane Gustafson, retired in June. She has been an integral part of the NCSTL team and is our colleague and a dear friend. She will be sorely missed by all of us at the NCSTL!

Ricardo Camacho Zapata recently accepted our offer to be the next NCSTL Program and Grant Compliance Manager. Ricardo brings with him a wealth of experience in grant writing and compliance. He has a Bachelors Degree in Chemistry and a Masters in Business Administration with a major in Human Resources. He has administered projects on science and technology. His most recent position was the Associate Director of the Science on Wheels Educational Center at the University of Puerto Rico.

To inform NCSTL’s constituency, which includes law enforcement agents, legal professionals, scientists, engineers, educators, and technologists, NCSTL representatives attended conferences nationally and internationally. In April, Research Attorney, Jeff Chesen, presented on a CSI Effect panel at the NIJ Court Technology Technical Working Group meeting, in Garden Grove, CA. Research Attorney, Catherine Guthrie, presented to a Forensic Entomology class, Entomology and Nematology Department, and to the Law Librarians at the University of Florida in Gainesville, FL. I was part of a CSI Effect panel at the Louisiana Judges Conference in Lafayette, LA and was a commentator at the National Academy of Sciences Forensic Commission Meeting, in Washington, D.C.

In May, I participated in a web conference in conjunction with Harvard University’s John F. Kennedy School of Government’s ASH Institute for Democratic Governance and Innovation. This program was entitled, “Fingerprint Analysis: The Role of Research in Fortifying the Forensic Sciences”. Diana Botluk, Director of Research, presented NCSTL information to the Northeast Regional Advisory Council of NCLECTC in St. Pete Beach, FL on May 15, 2007. In February, NCSTL’s Director of Outreach and I, made several presentations at the AAFS Annual Meeting, San Antonio, TX.
Stay tuned …

July, 2007

RESEARCH FOCUS
Pharmacological Overview of Calmatives
Marian Daggett, Research Attorney

Often termed interchangeably as chemical calmatives, calmative agents, calmative drugs, and chemical weapons, calmatives are a class of drugs that tend to produce a calming or sedative effect. These agents could be considered for law enforcement applications, such as dispersing a crowd, controlling a riot, or calming a non-compliant offender. This article discusses the science behind calmatives. Full Paper

RESEARCH EXTRA
Review of a Community Acceptance Panel
Leeanne Frazier, Research Attorney

On April 30, 2007, the NCSTL hosted a community acceptance panel (CAP). The topic of this CAP specifically examined the viability of using of less lethal chemical alternatives to control crowds. Full Paper
TECHNOLOGY CORNER
Less Lethal Technologies
Dr. Susan Zucker, Director Technology & Distance Education

Less lethal technologies or weapons are developed to assist law enforcement, military and corrections personnel when lethal force is not appropriate, justified, or available for backup. Less lethal technologies may subdue, confuse, delay, restrain, or incapacitate an aggressor in many different conditions such as prison disturbances, hostage rescues, and riots. Full Paper
FROM THE RESEARCH DESK...
Diana Botluk, Director of Research

NCSTL is pleased to announce a new feature for members that will enable them to share their search results with other interested researchers. To use the new Share Feature, simply log in with your user name, go to the database search page and set your search parameters, then save your search. Find out more
TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker is Director Technology & Distance Education and Publisher of It's Evident
During the last three months, my efforts have been spent developing various multimedia projects and brand new informational brochures for the NCSTL. Some of you may have seen these very handsome brochures which feature the NCSTL Cold Case Toolkit, the research database and other educational projects NCSTL produces. Find out more
NCSTL ACTIVITIES and PRESS: Find out where NCSTL staff has been and what we’ve been doing, as well as information about our publications, professional associations, and the press coverage we have received.

July, 2008

2009-07-29 15:12:43

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson

This issue of It’s Evident finds the staff at NCSTL as busy as ever. Here’s what’s new:

NCSTL.org's “one-stop-shop” database has grown to over 64,000 records and continues to develop and consolidate forensic-based information;

The NCSTL receives regular media coverage. On January 17, 2008 I was interviewed on the Montel Williams Live Show; the show was called “True Crime: Body of Evidence”.

I participated in the AAFS 60th Annual Scientific Meeting on February 18 - 23, 2008 and was installed as President of the organization. It is an honor and a privilege to serve as president. My theme for the 2009 AAFS meeting is Forensic Science: Envisioning and Creating the Future. The text of my acceptance speech is here and the audio file will soon be posted.

Articles written by NCSTL staff members are published regularly in various journals. This quarter, Dr. Susan Zucker, Director of Technology & Distance Education wrote “Cyber Forensics: Part II” for the January, 2008 issue of It’s Evident. The article was accepted for inclusion in the IACP database in January.

To inform NCSTL’s constituency, which includes law enforcement, legal professionals, scientists, engineers, educators, and technologists, NCSTL representatives make presentations and offer training on a multitude of topics. NCSTL Law and Science fellow, Angela Lack, presented “All about Forensics”, at the Elderhostel Program at Eckerd College, FL, on February 5 and March 5, 2008.

Of special note, the NCSTL is working on the President’s DNA Initiative training for defense counsel who handle cases involving biological evidence. To achieve this goal, the NCSTL, led by Director of Research, Anjali Swienton, is working closely with the National Institute of Justice (NIJ) and an expert Advisory Group to develop training to provide defense attorneys with general knowledge of the uses of DNA evidence in judicial proceedings as it pertains to discovery and ethics, proper closing arguments, case assessment, etc. The proposed training complements other forensic DNA evidence resources developed by NIJ, e.g., the “Officers of the Court” CD-ROM, which focuses on foundational understanding of the science, technology, statistics, and other non-advocacy topics. The Technical Working Group (TWG) assembled and met in October, 2007 and on January 28 - 29 and March 31 - April 1, 2008.
The next issue of It's Evident will be published in July, 2008. Until then …

July, 2008

RESEARCH FOCUS
The "CSI Effect" - There's No Such Thing as Questions, Just Hidden Answers
Jeff Chesen, Research Attorney

Television crime dramas in recent years have included increasing amounts of forensic science. As a result of this exposure, jurors may be under the mistaken belief that they are educated about forensic science and investigation procedures. They often expect forensic examinations similar to what is depicted on television, including techniques that may not exist in real life. Such jurors may interpret testimony from technologically unsophisticated investigations as the reasonable doubt necessary to acquit a defendant. Full Paper
RESEARCH EXTRA
Forensic Linguistics: Recognizing Individual Written and Spoken Word Usages and Characteristics
Angela Lack, Law & Science Fellow

Forensic linguistics provides two functions: determining what text means and who wrote it.¹ Experts in this field assist with investigations and have worked with attorneys in this capacity for over 20 years.² The 1993 Daubert decision holds that trial judges must conduct a two-pronged test of admissibility by evaluating proffered expert witness testimony to determine both relevancy and reliability. Since that decision, the need for forensic linguistic expert testimony has increased and has made it imperative to prove scientific reliability of forensic linguistic findings.³ These experts are now being called to the witness stand to analyze spoken words and handwritten or computer-generated documents. Full Paper
SPOTLIGHT ON LODIS
LODIS, a New Investigative Tool: DNA Is Not Just Court Evidence
William Berger, Chief of Police, Palm Bay, Florida, IACP Past President and NCSTL Advisory Council Member; Joe Chimera, General Manager and Laboratory Director, DNA Security, Inc., Burlington, North Carolina; and Major John Blackledge, Investigations Division, Palm Bay, Florida, Police Department

Linked directly to Police Chief Magazine where this article was published in April, 2008.

LODIS, a New Investigative Tool: DNA Is Not Just Court Evidence Anymore is collaboratively written. On December 2006, the Palm Bay, Florida, Police Department (PBPD) and DNA Security, Inc. (DNA:SI LABS), collaborated to develop a local agency databank of forensic DNA evidence for use on most crimes. The project was established to determine if mass collection of DNA from common crimes and subject reference samples, placed into a database, could be developed into an effective investigative evidence tool, identifying criminals and ... Read more

October, 2009

2010-01-18 08:57:43

It's Evident... NCSTL's Quarterly e-Newsletter

FROM THE DIRECTOR’S DESK... Carol Henderson

We are coming into the homestretch of 2009 – where does the time go? A great deal has been accomplished in the third quarter of 2009, including the launching of the NCSTL's new and greatly improved website.

Here’s some of what’s new:

NCSTL.org's “one-stop-shop” database has grown to over 89,249 records and continues to develop and consolidate forensic-based information including the addition of webcasts, podcasts, vodcasts, blog links, and training materials which focus on science, technology and law topics;

NCSTL has been receiving international invitations. I have been invited to make presentations in Italy in December, 2009 and in Hong Kong in January to both scientific and legal organizations, as well as universities;

NCSTL receives regular media coverage. On July 8, 2009 I was interviewed by the ABA Journal”s, Mark Hanson, about future articles: NAS Report; DNA; Future of Evidence book for the ABA. I was also interviewed by Rhonda Brown & Jackie Davenport regarding a book chapter on "Forensic Interrogation, Reporting & Professional Ethics" for high school students on July 15, 2009. On July 29, 2009, Director of Technology & Distance Education, Dr. Susan Zucker, and Director of Research, Diana Botluk, were interviewed by the Maddox Business Report on the NCSTL. I did a websedge interview at the 116th International Association of Chiefs of Police (IACP) Annual Conference and Exposition which was held from October 3-7, 2009 in Denver, CO. The interview was recorded by IACP TV and was broadcast throughout the Denver Convention Center and five main convention hotel systems;

NCSTL's 2009 Guest Lecture Series continues in fall and spring. On October 5 and 6, NCSTL co-sponsored the Judicial Seminar on Emerging Issues in Neuroscience along with the American Association for the Advancement of Science, the National Center for State Courts, and the Dana Foundation. The seminar was held at Stetson University College of Law in Gulfport, FL. Other talks will be announced shortly;

To inform NCSTL’s constituency, which includes law enforcement, legal professionals, scientists, engineers, educators, and technologists, NCSTL representatives make presentations and offer training on a multitude of topics. On July 9-15, 2009, NCSTL had a booth at American Library Association (ALA) Annual Conference. Director of Research, Diana Botluk, Research Attorney, Leeanne Frazier, and Science & Law Fellow, Kevin Paget, represented NCSTL at the conference in Chicago, IL. On August 17, 2009, Director of Outreach, Anjali Swienton, presented "Evidence Collection and Preservation" at the Center for American and International Law (CAILAW) Actual Innocence Conference in Plano, TX. She also presented "How To Prep Forensics For A Case" on August 18, 2009 at the Center for American and International Law (CAILAW) Actual Innocence Conference. She also presented, “Forensic DNA”, at the Widener Law School Actual Innocence Conference, Houston, TX, September 25, 2009. Director of Technology & Distance Education, Dr. Susan Zucker, presented "Social Media Sites Used to Commit Crimes" at the Center for American and International Law (CAILAW) Actual Innocence Conference in Plano, TX on August 18, 2009. On August 19, 2009, Director of Technology & Distance Education, Dr. Susan Zucker, presented “YouTube, Facebook, Chat Rooms, and Blogs: A Fertile Classroom for Illicit Activities” at the International Association for Identification (IAI) in Tampa, FL.

The next issue of It's Evident will be published in January, 2010. The theme will be "Technology and Government - A Year After the Election".

All the best,
Carol

October, 2009

RESEARCH FOCUS
Social Media
Wikipedia, Websites, WebMD: Are These WWW's Reliable as Evidence?
Part II - John A. Wirthlin and Brittan Mitchell, Esquire

John A. Wirthlin is a third year law student at University of Florida. He is currently working as a Summer Associate at Greenberg Traurig, LLP in Tampa, Florida. Brittan Mitchell is a former NCSTL staff member. She currently practices general civil transactional law in the areas of Taxation, Estate Planning, Adoptions, Wills, and Landlord/Tenant at The Law Office of Brittan L. Mitchell in Inverness, Florida.

Online sources supply litigants with a variety of easily accessible information. This article examines the potential hurdles of admitting these internet sources into evidence and offers strategies for litigants to use these sources effectively. Recent cases surrounding reliability challenges to Wikipedia and social networking websites were reported in the previous issue of It’s Evident. In this issue, WebMD, YouTube videos and corporate websites are reviewed. Full paper

RESEARCH EXTRA
The Ongoing Debate: Presenting Forensic Voice Comparison Evidence in Court
Kurt Lenz, Esquire

Kurt W. Lenz is a visiting assistant professor of legal skills at Stetson University’s College of Law. He has written on the subjects of expert testimony and forensic evidence, and is currently pursuing a graduate degree in applied linguistics at the University of South Florida.

U.S. Courts have been at best skeptical of forensic voice comparison evidence. This seems to be due to a pair of factors. First, judges perceive expert testimony about voice comparison as infringing on the province of the fact-finder because it involves comparing two voices to determine whether they sound alike¹; to many judges, any layperson can make that comparison by simply listening to the speech evidence. Second, a prominent voice comparison technique, spectrographic analysis, has been widely discredited as reliable evidence of speaker identity.² Full paper

SPOTLIGHT ON TECHNOLOGY
Social Media and the Law
Dr. Susan Zucker, NCSTL Director Technology & Distance Education

Social media is a fairly recent phenomenon which is changing human communication and socialization patterns.¹ Social media is defined as social Internet networks which comprise Web 2.0 and includes Facebook, YouTube, Twitter, MySpace, Linkedln, blogs, and many other Internet sites. These sites entice individuals to share personal information, experiences, and preferences with others. Another new media known as Citizens Media refers to content created by private citizens, or non-professional journalists.²

Sites such as Facebook, Twitter, and YouTube came into being within the past five years. These sites are increasing in popularity and have opened new avenues for criminal activity. Full paper

FROM THE RESEARCH DESK...
Diana Botluk, Director of Research

The past three months have seen some changes in the Research Department. NCSTL says farewell to ... More

Visit the NCSTL's Selected Books Added to the NCSTL Collection in the Stetson Library and the NCSTL's Special Collections. Borrow from the collections.

TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director Technology & Distance Education and Publisher and Editor of It's Evident

The new NCSTL website has been launched. Many new pages have been added; notably the archived audio casts of forensic experts speaking about various topics. Thousands of people have subscribed to NCSTL's RSS Feeds: Education & Training and It's Evident ... More

July, 2009 Jules Epstein SPOTLIGHT on NAS Report

2009-10-18 22:23:17

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The NAS Report: An Evidence Professor’s Perspective
Jules Epstein, Esquire

It is unlikely that the National Academy of Sciences intended that its February 18 report, "Strengthening Forensic Science in the United States," would provide a template or source for litigating admissibility claims in particular criminal cases. The Report’s focus was global - to call for systemic improvements to the forensic disciplines and sciences, with emphasis (inter alia) on the research needed to validate expert claims of individualization and identity.

Nonetheless, the Report’s findings call into question the degree of certainty testified to by practitioners of “soft” forensic disciplines, the subjective pattern matching of fingerprints, ballistics, handwriting, tool marks, and tire and shoe print treads. In particular, the Report found an across-the-board inability to validate claims that a correspondence of features between crime scene evidence and a known (e.g., between a latent print left at a burglary and the print of a suspect) proves that the suspect was the sole possible contributor.

As the Report emphasized, “[w]ith the exception of ... DNA, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” Absent from the traditional forensic disciplines was a “body of research...to establish the limits and measures of performance and to address the impact of sources of variability and potential bias...Such research ... seems to be lacking in most of the forensic disciplines that rely on subjective assessments of matching characteristics.”

For the Congress and other policy makers, these conclusions support an intensive research regime; but the findings present more immediate and pragmatic concerns for judges, prosecutors and defense attorneys in pending or soon-to-be-charged criminal cases. Do forensics experts continue to offer testimony that “this fingerprint came from this defendant to the exclusion of all others? Must courts await a new body of research; or do these findings require action now?

From an evidence perspective, the NAS report raises an abundance of questions and procedural issues. This Article proceeds with an outline of what legal and practical matters we can now expect to see raised in courtrooms.

In a Daubert Jurisdiction: Because the Daubert inquiry is fundamentally one of evidentiary reliability, there is no bar to asking a court to revisit prior decisions of admissibility. Thus, even where a court has previously approved “individualization” or source attribution testimony from a fingerprint or ballistics expert, there is no bar to seeking a new admissibility hearing.

At such a proceeding, the court will have to determine whether the NAS report warrants a reassessment of the qualifications threshold for individual experts.¹ Even if that threshold is identified and determined to be satisfied in a particular case, the court will have to determine under Daubert or under Rule 403² what degree of conclusion an expert may testify to:

that the fingerprints “match?”
that they have numerous similarities with no noticeable points of exclusion?
that they “probably” come from the same person?
This parsing of expert opinion began even before the NAS report. Illustrative is United States v. Glynn³ , which summarized an earlier holding:

Valenti could not testify that ballistics was a "science," nor could he claim that he reached his conclusions to any degree of "certainty," whether "ballistic certainty" or otherwise... The Court further ruled, however, that Valenti's methodology was sufficiently reliable that he could give an opinion that it was at least "more likely than not" that the bullet and casings came from the guns in question.
If a court were to permit the expert to testify as to a “science” that resulted in a “match,” the scope of a defense response would also require litigation. Under the seminal holding in Ake v. Oklahoma⁴, the indigent defendant is entitled to reasonable funds for expert assistance.⁵ Courts will have to decide whether this entitles an accused to an expert who can attack individualization testimony. As well, the admissibility of the NAS report, as a government report⁶ and/or as a learned treatise for cross-examination of the government expert.

In a Frye Jurisdiction: While many of the issues in a Frye state parallel those listed above, there are different threshold considerations. Frye courts examine whether the discipline or science has met with “general acceptance,” a standard that finds reliability in the accepted use of a practice rather than by examining its foundational bases. The fundamental questions that Frye courts will have to decide are:

Whether a court may revisit the issue of general acceptance for a discipline that has been deemed “accepted” for years or decades?⁷
Are fingerprints or similar disciplines actually “science” and thus subject to Frye assessment?
Should Frye permit revisiting of the admissibility question, who is in the relevant community to judge acceptance - all fingerprint experts, or the broader forensic science research community?
Again, once these fundamental issues are addressed, issues of the scope of such testimony, the application of Rule 403 principles, the nature of rebuttal evidence, the use of the NAS report, and the problem of financial resources for the indigent defendant will all have to be addressed.

The Special Problem of Capital Cases: Many members of the United States Supreme Court have iterated that “death is different.” What is clear is that decisional law of that Court imposes a “heightened reliability” standard in capital cases. As the Court stated in 1976,
the penalty of death is qualitatively different from a sentence of imprisonment...Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.⁸
While that language is arguably directed toward the punishment determination, that decision is in many ways inseparable from the guilt-innocence determination. Forensics evidence can address identity (is this defendant the killer) and/or role in the offense (which defendant fired more shots, or is otherwise more blameworthy). Clearly, the language calling for heightened reliability will be employed by capital case litigators to press for exclusion or limits on forensic evidence; and in Frye jurisdictions, the argument will be made that this Eighth Amendment demand for reliability ‘trumps’ Frye’s “general acceptance.”
In sum, the call to arms that the NAS Report directed to the forensic science community is also a call to judges, prosecutors and defense counsel to re-examine foundational issues on the reliability, admissibility and scope of forensic evidence (other than DNA).

Up

End Notes:

• Jules Epstein, Jules Epstein is Associate Professor of Law at Widener University School of Law (Delaware). He has written and lectured on forensics-related issues, and was one of the presenters at the 2009 training for capital case litigators sponsored by NCSTL and the Bureau of Justice Assistance, where he spoke about the implications of the NAS Report.

¹ The NAS Report remarks extensively on the lack of standardization and certification:
The fragmentation problem is compounded because operational principles and procedures for many forensic science disciplines are not standardized or embraced, either between or within jurisdictions. There is no uniformity in the certification of forensic practitioners, or in the accreditation of crime laboratories. Indeed, most jurisdictions do not require forensic practitioners to be certified, and most forensic science disciplines have no mandatory certification programs.
NAS Report, pp. S-4-5.

² Rule 403 principles allow a judge to exclude or narrow testimony that is unfairly prejudicial or likely to lead to juror confusion. Rule 403, Fed. R. Evid.
³ 578 F. Supp. 2d 567, 568 569 (S.D.N.Y. 2008).
⁴ 105 S.Ct. 1087 (U.S. 1985).
⁵ See, e.g., Giannelli, “The Right to Defense Experts,” 18 Criminal Justice 15 (Summer 2003).
⁶ Rule 803(8) of the Federal Rules of Evidence allows certain government reports to be admitted at trial for the truth of their contents.
⁷ See, e.g., Armstead v. State, 342 Md. 38 (1996) (“due process considerations require trial court to act, as guided by legal precedent, when science reveals that previously accepted methods are not reliable”); Simon Cole, Out of the Daubert Fire and into the Fryeing Pan? Self-Validation, Meta-Expertise and the Admissibility of Latent Print Evidence in Frye Jurisdictions, 9 Minn. J.L. Sci. & Tech. 453 (2008).

⁸ Woodson v. North Carolina, 428 U.S. 280, 305 (U.S. 1976).

July, 2009 Christine Funk SPOTLIGHT on DNA Part 2

2010-01-21 17:54:36

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NOTE: PART 1 was published in April, 2009 and contains the following sections: I. Introduction, II. Before the Beginning, III. Read the Report, IV. Consider the Significance of the Report, V. Get the Rest of the File, VI. Read the File

Dealing with DNA: A Primer for Lawyers Part 2
Christine Funk, Esquire

VII. Moving Beyond the Case File

Consider the bigger picture. It’s not just the evidence that may be called into question, think about the lab itself. Instruments need to be calibrated. Now before you stop reading, recall your first speeding trial? Or your first DWI case? Remember when someone gave you ‘the questions’ regarding calibration of the radar gun or the Breathalyzer machine? Just as those items need to be calibrated in accordance with the manufacturer’s instructions, so, too must the pipettes, the thermocycler, the machine that does the capillary electropheresis. Each of these calibrations must be documented.

Additionally, if the lab is accredited, there have been inspections. The ASCLAD/LAB inspection, for example, is done once every five years. It includes a preliminary report and a final report. Also documented is any ‘corrective action’ that should be or was taken, as well as areas which could be the subject of improvements. There are also internal inspections done in compliance with certification requirements every six months.

Another set of documents to examine are contained in the ‘unexpected results’ file. This file, kept in compliance with SWGDAM Quality Assurance Guidelines for Forensic DNA Testing Laboratories, keeps track of just what it says – unexpected results. Standard 14: Corrective Action reads as follows :

The laboratory shall establish and follow procedures for corrective action whenever proficiency testing discrepancies and/or casework errors are detected. The laboratory shall maintain documentation for the corrective action. Such documentation shall be retained in accordance with applicable Federal or state law.

This file can also be referred to as the ‘contamination log’ or the ‘corrective action’ file or some other name. For reasons unclear to me, many labs are resistant to the idea of disclosing this file. Thus, if you don’t ask for it by the correct name, you don’t get it. As such, I suggest the following language, “Please disclose the corrective action/contamination log/unexpected results file kept in compliance with SWGDAM Standard 14.1.1. If the laboratory does not comply with this Standard, a letter on letterhead stationery acknowledging this will suffice.”

Now lets talk about why you want this file. If the negative control yields a positive result, that would be ‘unexpected.’ This is documented and attempts are made to 1. identify the profile; 2. determine when or how the profile got into the sample. Was there a contamination in the lab? Was the test tube contaminated when it arrived in the lab? Were the test tubes inadvertently put in the wrong rack? Were the test tubes mislabeled?

This file is largely a collection of random events, but occasionally a pattern may emerge. Perhaps a certain scientist commits more contamination events that the others. Perhaps a scientist consistently ignores precautions. For example, if a scientist experiences a contamination event in May, wherein their DNA appears in a sample, the scientist may conclude in their report that they need to be more careful about wearing a face mask and gloves. If the same scientist has another contamination in June, and another in August, and each time the scientist documents that as a corrective action, they will be more careful about wearing a face mask and gloves, this may tell you something about the scientist’s habits regarding both face masks and gloves. A logical inference of this is that the scientist may disregard other protocols in the lab.

The unexpected results file is also a lovely illustration of how easily DNA can transfer. Recall, these people are specially trained in handling DNA samples. They only open one piece of evidence at a time. They spray down their work stations with a bleach solution. They put on a fresh pair of gloves for each sample they handle. They wear lab coats and masks. Still, their DNA will sometimes appear in samples. There will also be documented cases of one sample contaminating another sample in the lab. You will also see documentations of switched samples. In a crime scene sample, of course, whether or not there’s a mixture isn’t known. But when a sample is from a known individual, say a defendant, unless he’s recently had a blood transfusion, his DNA profile should contain no more than two alleles at each locus. The presence of three or more alleles (or markers) at two or more loci would generally indicate the presence of a mixture. You can expect to see documentation of known samples being contaminated with other samples. There have been documented instances of DNA profiles matching other employees in the lab appearing in casework – even some employees who haven’t had any known contact with the sample or the biology section.

Cautionary note: This does not mean you are dealing with a bad lab. It means you are dealing with a lab that does DNA testing, using very sensitive testing methods. Contamination happens. Labs that claim it doesn’t happen in their lab should be approached with caution and a healthy dose of skepticism.

Get a copy of the scientist’s resume and check it out. It is not unheard of for a scientist to either puff up their credentials, or even manufacture them out of whole cloth. Call the University and confirm the scientist 1. attended the school listed; 2. graduated from the school listed; and 3. graduated with the degree listed on the resume. Google is also a wonderful tool. Google the scientist to see what you can learn about them. Get copies of any publications the scientist may have written. The order in which authors are listed on publications is important to scientists. Make sure your scientist accurately represented the order on his resume. Read what the scientist has written. If you don’t understand what is written, ask someone. It is also a good idea to read transcripts of other times the scientist has testified. If you are a prosecutor, your lab may have a library of defense experts’ previous testimony. For the defense bar, your local public defender’s office likely has experience with scientists from the crime lab.

Scientists working at accredited labs are required to take proficiency tests every 6 months. Ask for the past 3 years of proficiency test results. Good news, prosecutors! Your scientist probably passed them all. That might impress the jury. Defense attorneys, if you think it is important, you should know that the truth is the tests aren’t hard. The scientists know they are being tested. The idea is to treat the test as though it was a real item of evidence. Most labs employ a second reader in case work. Thus, a second reader will review the proficiency test results before they are sent in for scoring. There have been some documented cases where the second reader catches an error before the test is sent in for scoring, and the original examiner corrects their work. That said, as easy as these tests are, sometimes the scientists fail these tests anyway, so it doesn’t hurt to ask.

VIII. Get an Expert

If you are a prosecutor, you already have an expert – the lab analyst that performed the testing in your case. Why not call the analyst and set up a meeting? Together, the two of you can go over each page of the file. The lab analyst will likely weep with joy to learn that you are interested. Many, if not most, prosecutors fail to do this. All too often, I see prosecutors presuming that because they have DNA evidence, the case is over. I just finished a trial where the prosecutor tried time and again to get the scientist to agree that the DNA on my client’s shirt came from the dead guy’s blood. She wouldn’t. See the presumptive testing discussion above.

Ask the scientist, “What do you think I should know?” If you have a theory about how DNA transferred to a certain item, run that theory by the scientist. Do not wait to attempt this during the trial.

Defense attorneys should get their own expert. What you do with your expert will depend on the case. You may wish for an expert to review the work done by the lab. This by far will be your most common purpose in hiring an expert. Much of the time, in my experience, the expert will review the file and tell me the state did every thing right. Some of the time, the expert will review the file and tell me that it probably wouldn’t help if they testified, but they’d be happy to assist me in formulating questions I can use in cross examination. Occasionally, after review, an expert will call me and explain problems with the case that are significant enough that I will call my own expert witness at trial.

Some states will allow a testifying witness to be present in court for consultation when the other side’s expert testifies. This is a really, really good idea in my experience. This will no doubt be easier for the prosecution, who can have someone from the lab sit in while the defense expert is testifying. The defense may have a more difficult time, as funding is always an issue. That said, everyone, including scientists, tend to be more careful about their words and how they present things when they are being observed by their peers. It is amazing how much more easily you will be able to get the opposing expert to agree with basic, fundamental concepts when another scientist is in the courtroom. Additionally, a scientist in the courtroom can assist you by taking notes and advising you on appropriate follow up questions that you may not have thought of on your own.

IX. The Mary Kay Standard

Finally, employ the Mary Kay Standard. Before proceeding with a DNA theory, make sure you run it by at least one other person. Regardless of whether you have handled a DNA case before, you simply must speak to another human being and relay your theory to them to determine first if you can convey the information and second if you can convey the information in a way that is understood by the lay person. This is what I refer to as the Mary Kay standard. Why the ‘Mary Kay’ standard? Mary Kay is my mom. If my mom can’t understand what I am saying, then as a general rule, neither can my jury. My mom isn’t stupid, mind you. She was a music teacher before she started having kids and stayed home to raise them, as all good mothers did in the late ‘60’s and early ‘70’s. Beyond assisting her 5 kids with their science homework while growing up, my mom’s not scientifically trained. Typically, neither are my jurors.

Remember when you first started law school, and there were all those latin words? Recall how overwhelming it felt that first semester? That’s how your jurors will feel if you start throwing around words like loci and alleles. Unlike you and law school, however, the jurors did not choose to be there, and don’t have a goal of succeeding to the extent you did that first semester of law school. Find other language that is already familiar to lay people when you can – but run them by your scientist before the scientist is on the stand. I have found that not all lab analysts appreciate ‘a chunk of the DNA molecule’ as a lay person’s definition of a locus. I have further found that it is the rare scientist will agree with me that the purpose of the amplification process is to make ‘a scrimillion copies of the target DNA.’ Most, however, will agree that an allele can also be properly termed a ‘marker.’ Your expert can assist you in coming up with proper comparisons. That said, I have yet to come up with a lay person’s term for ‘electropherogram,’ but I’m working on it.

July, 2009 Angela Lack RESEARCH FOCUS

2009-10-18 22:24:00

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Social Networking: Evidentiary Pot of Gold at the End of the Rainbow
Angela Lack, Esquire •

Social networking websites have become increasingly popular in the past several months. The most prominent are sites such as MySpace, Facebook, and Twitter, which are quickly becoming the largest source of social interaction in the United States.

Millions of people visit these sites on a daily basis to share pictures, comments, and search for long lost friends. While the total population of the United States is estimated at approximately 300 million people, the total number of accounts on Facebook, MySpace, and Windows Live Spaces combined surpasses 500 million. The number of users on Facebook exceeds the number of people in Russia and the 36 million users registered for LinkedIn exceeds the population of Canada.¹ The use of these sites is so pervasive among young adults that recent studies have linked the poor grades of college students to how much time they spend on social networking sites.² With the increasing number of users and information available online, attorneys have recognized these sites as a gold mine for useful pictures, content, and other information regarding their cases.

Attorneys in numerous areas of the law have begun searching social networking sites for any relevant information for their cases. In criminal cases, the prosecution can use the social networking sites to provide information on the defendant. In family law cases, attorneys search these websites for information regarding the husband or wife in a divorce proceeding or in a child custody proceeding. Attorneys have used these sites to prove that the opposing party has a significant other even though they claim they do not, that alcohol was consumed in DUI cases even after the claim was made that the defendant does not drink, and that illegal drugs were used. It is evident that social networking users post pictures and comments without realizing that others often access the information and use it against them. One click on a Facebook page may give an attorney information pertaining to the husband’s new girlfriend or even a picture of him with his new girlfriend in a bar consuming alcohol. In a custody proceeding for a husband, Attorney Joseph Cordell used Facebook to prove that a mother, who assured the court she had not been drinking, continued to drink and smoke because her Facebook page had a time and date stamped photo of her drinking and smoking.³

Facebook and MySpace not only have individual sites, but they have group sites that anyone can join. These sites, such as “I hate my ex-wife” and “I hate my ex-husband,” can add further insight to an ongoing divorce proceeding. Joining group sites to release stress and speak freely may be a client’s own worst enemy. Discussing details of their current social situation on a social networking page may harm their chance of recovery. For example, if a woman going through a divorce and a nasty custody proceeding decides to post on her profile that she is a single woman, with no kids, that information can seriously damage her credibility and honesty with the Court if her husband’s attorney presents it at trial.

Prior to the advent of social networking websites, an attorney for an insurance defense firm would typically hire a private investigator to perform surveillance on a person suspected of perpetrating fraud in a personal injury case. The process of videotaping the malingerer washing his car, playing outside with his children, or performing strenuous activities without a neck brace when he thought he was out of the public eye, became time consuming and costly. However, even a sole practitioner can conduct investigations via the internet without hiring an expensive computer forensics team simply by logging onto Facebook or MySpace.

Courts have begun to routinely enter photographs, comments, and other postings on the social networking sites into evidence. In April, a Canadian Judge rejected a plaintiff’s claim for $1.3 million in damages for pain and suffering due to two automobile accidents which occurred between 2001 and 2003. The plaintiff claimed that he significantly suffered from a diminished quality of life. The defendant provided a wealth of evidence obtained from the plaintiff’s Facebook page, which evidenced the plaintiff’s life of playing billiards at a local bar, smoking marijuana, drinking beer and frequent weekend vacations. Ultimately, the plaintiff received an award for damages in the amount of $40,000.⁴

While use of social networking sites and information may provide useful information to the opposing party, this type of evidence may often be used unfairly. For example, if a user uploads a picture of him drinking in a bar three years prior, it may be used as evidence against him and seriously damage the individual in a lawsuit.

In July, 2008, an 18 year old male ran a red light and collided with another car, killing one person and seriously injuring another. The driver admitted to police that he smoked marijuana, but told reporters that he does not drink. After a search of his MySpace page investigators found pictures of the teen drinking beer from a bottle. As a result, the 18 year old driver is currently awaiting trial for murder and suspicion of DUI.

Although social networking site users have the opportunity to make their page “private”, privacy settings on these accounts do not prevent sophisticated web crawlers used by search engines like Google from retrieving personal information from the social networking pages and post that information in the search results. Anyone can type in a person’s name and retrieve a myriad of personal information about the user. An article in PC World reported that 78% of social network users do not mark their profiles as “private”; therefore making the information visible in a Google search. The amount of discoverable electronic data available has dramatically increased with the increasing popularity of social networking sites.

The use of social networking sites will continue to provide evidence for both criminal and civil litigation cases and alter the way attorneys investigate and litigate cases. For example, in a criminal case subpoenas are easily issued to social network sites to retrieve log files for forensic analysis to determine the identity of the user. However, such is not the case for civil litigation. In a civil proceeding, a John Doe subpoena must be issued to the social networking site, demanding that the individual of interest’s internet service provider (ISP) be revealed. Then a second subpoena must be issued to the ISP hosting company, requesting the identity of the individual. The hosting company must then inform the individual of interest of the request. The individual will either give permission or decline; however, either way his or her identity is revealed. Social networking sites have become increasingly popular among all countries and a way to remain connected to distant friends and family. However, the best advice to all users is to be aware of the pictures and content posted on their social networking sites and the sites of their friends and family because one day, it may be used against them in a court of law.

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End Notes:

• Angela Lack is a former NCSTL staff member. [LL.M. in Elder Law Stetson (2008); J.D./ M.B.A. Stetson (2005); B.S. at Florida State University (2002)]. She currently practices Civil Litigation, Corporate Law, and Family Law with South Law Group, P.A., Valrico, FL.
¹ Battle of the sizes: Social network users vs. country populations, March 2009, http://royal.pingdom.com/2009/03/13/battle-of-the-sizes-social-network-users-vs-country-populations
² Hsu, Jeremy. Facebook Users Get Worse Grades in College. April 2009, http://www.livescience.com/culture/090413-facebook-grades.html
³ Luscombe, Belinda. Facebook and Divorce – Airing the dirty laundry, June 22, 2009, http://www.time.com
⁴ Facebook postings foil N.L. man's injury lawsuit, The Canadian Press. http://www.cbc.ca/canada/newfoundland-labrador/story/2009/05/11/facebook-lawsuit-cp-511.html

July, 2009 John A. Wirthlin & Brittan Mitchell RESEARCH FOCUS

2009-10-18 22:23:50

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Wikipedia, Websites, and WebMD: Are These WWW’s Reliable as Evidence? (Part I)
John A. Wirthlin • & Brittan L. Mitchell •

The determination of truth is a demanding task requiring competent use of reliable evidence. The truth-seeking process benefits as judges and litigants challenge the reliability of ‘www’ evidence. This article reviews recent cases that question the reliability of certain internet sources. It will appear in two parts: Part I addresses reliability issues with Wikipedia and Social Networking websites, and Part II (published in October) will address reliability issues with WebMD¹, YouTube ², and Corporate Websites ³.

WIKIPEDIA—THE FREE ONLINE ENCYCLOPEDIA

Many online resources contain legal disclaimers in their User Agreements and Terms of Use policies.⁴ The interesting commonality is the refusal to warrant the reliability of information. The following list contains a few examples of websites with language disclaiming the reliability and/or the accuracy of information: Encyclopædia Britannica Online ⁵, Encarta ⁶, Columbia Encyclopedia ⁷, Associated Press ⁸, New York Times⁹, The Wall Street Journal¹⁰, Oxford English Dictionary¹¹, FindLaw ¹², Wikipedia¹³, and WebMD¹⁴. Although these sources seem credible to avid Internet researchers, the outright statements disclaiming the reliability causes hesitation in the courtroom. This section will review some of the case law challenging the reliability of Wikipedia. Additionally, this section will discuss potential strategies to bolster the reliability of this online encyclopedia.

There are several hundred Wikipedia references in cases throughout the United States. The majority of these references used Wikipedia to define community standards, historical events, slang terms, medical definitions, human anatomy, and many other purposes.¹⁵ Even with these numerous supportive citations, there are the occasional reliability skeptics.¹⁶ These reliability concerns find root in the general disclaimers found on the Wikipedia website:
Wikipedia is an online open-content collaborative encyclopedia, that is, a voluntary association of individuals and groups working to develop a common resource of human knowledge. The structure of the project allows anyone with an Internet connection to alter its content. Please be advised that nothing found here has necessarily been reviewed by people with the expertise required to provide you with complete, accurate or reliable information. That is not to say that you will not find valuable and accurate information in Wikipedia; much of the time you will. However, Wikipedia cannot guarantee the validity of the information found here. The content of any given article may recently have been changed, vandalized or altered by someone whose opinion does not correspond with the state of knowledge in the relevant fields. . . . If you need specific advice (for example, medical, legal, financial, or risk management) please seek a professional who is licensed or knowledgeable in that area.¹⁷
The potential for information vandalism raises a red flag for many courts and litigants. The following cases demonstrate judicial concerns with Wikipedia.

In State v. Webb, the appellate court reprimanded the use of Wikipedia evidence.¹⁸ The Webb defendant argued on appeal that the trial court inappropriately allowed the defendant to represent himself.¹⁹ The defendant articulated that if the court had adequately inquired into the defendant’s understanding, then the court would have discovered that the defendant was Bipolar.²⁰ This disorder, along with the medication’s side effects, made it impossible to understand the consequences of waiving the right to counsel.²¹ The defendant’s appellate brief “repeatedly and extensively” quoted Wikipedia to define his medical condition and the side effects of the corresponding medications.²² The appellate court, obviously concerned about the defendant’s reliance on a source that “anyone can edit,” indicated that it “strongly caution[ed] against citing Wikipedia as an authority in an appellate brief, especially when there are other, more demonstrably reliable sources of authority available.”²³

Just a few months later, a different appellate court found reversible error for the reliance on Wikipedia.²⁴ In Palisades, the credit collection company attempted to prove that the defendant was liable for a particular uncollected debt.²⁵ To meet this burden, the plaintiff offered evidence from Wikipedia, and the trial judge took judicial notice that “banks are frequently purchased.”²⁶ The appellate court reviewed the Wikipedia policies and disclaimers, including the “anyone can edit” policy, and found that “[s]uch a malleable source of information is inherently unreliable and clearly not one 'whose accuracy cannot reasonably be questioned,' such as would support judicial notice.”²⁷ The appellate court, after purging “this inadmissible material,” found that the Palisades plaintiff failed to produce enough evidence to support its claim.²⁸

Reliability challenges for Wikipedia’s information will likely continue due to the disclaimers and the “anyone can edit” policy. These reliability challenges should not necessarily cause a litigant to forgo using Wikipedia in the research, pre-trial, and trial stages of litigation. However, if you are anticipating a challenge of a Wikipedia source, then consider the following tips to bolster the reliability of the reference. First, there is strength in numbers. Consider supplementing the Wikipedia evidence with other sources.²⁹ Second, demonstrate that many “reliable” sources have similar disclaimers. The list at the beginning of the article provides a few sources with similar disclaimers. Examine precedent cases in the particular jurisdiction, research the sources that the litigants used, and find parallels in any corresponding disclaimers. A third suggestion is to provide references to Wikipedia’s content policies, including the policies for verifiability,³⁰, no original research³¹, and neutral point of view³².

Finally, an important step in bolstering Wikipedia evidence is to contradict any potential risk of information vandalism. A tool such as the “Way Back Machine”34 might allow a litigant to create a time line that shows a non-bias history of the particular Wikipedia article.³⁵ Additionally, Wikipedia itself stores information about every edit.³⁶ This historical snapshot is available simply by clicking the “history” tab for the particular article.³⁷ “All . . . editable pages on Wikipedia have an associated page history, which consists of the old versions of the wikitext, as well as a record of the date and time . . . of every edit, the username or IP address of the user who made it, and their edit summary.”³⁸ Providing this historical snapshot and thoroughly explaining the editing techniques could mitigate the judicial concerns surrounding the “anyone can edit” policy. ³⁰ might allow a litigant to create a time line that shows the history of the particular Wikipedia article.³¹ Work on demonstrating that the article was not altered within the timeframe of the particular litigation. This final strategy could mitigate the “anyone can edit” concern.

SOCIAL NETWORKING WEBSITES

Not until the advent of the social networking boom did seemingly private personal information including, but not limited to, pictures, home videos, political and religious beliefs, hobbies, and work information become entertainment for a browsing audience to enjoy. These online tidbits of information are typically very probative and are surfacing in every facet of litigation.³⁹ Yet, while probative, introducing indecent pictures and “smoking gun” confessions from a party’s profile as evidence still requires the requisite level of authenticity. This section of the article reviews some of the case law surrounding social networking websites.

Many courts have found that the information posted on such websites to be sufficiently reliable to admit as evidence.⁴⁰ As a result, some litigants have experienced the harsh reality of uploading their “life story” for the judge, jury, and lawyers⁴¹ to meticulously dissect. For instance, photos taken from a Facebook page depicting the defendant wearing a “Jail Bird” shirt just two weeks after a drunk-driving accident were instrumental in the judge’s decision for a two year prison sentence.⁴² Likewise, in North Carolina, a plaintiff who was seeking millions of dollars in damages in a personal injury suit received a judgment for nothing after photos from her MySpace were brought before the jury.⁴³ What the jury found to be extremely convincing evidence was the depiction of the party-going plaintiff who claimed she suffered severe life-altering brain injuries.⁴⁴

Indeed, even in a murder trial can information from these social networking websites be a determining factor.⁴⁵ In Campbell v. State, the defendant appealed to the Nevada Supreme Court after the trial court allowed the prosecution to provide a MySpace video transcript for the jury.⁴⁶ The court held that providing the transcripts and showing the MySpace video was not overly prejudicial to justify reversal.⁴⁷

Nonetheless, as with other types of information that is easily accessible, courts are reluctant to allow parties to use photos, comments, and postings from these websites as evidence unless the offering party can substantiate the website and demonstrate that the information obtained is authentic. In particular, in A.B.v. State, the Supreme Court of Indiana criticized the party’s failure to substantiate the MySpace website itself.⁴⁸ This failure caused an evidentiary gap for the central components in the criminal harassment charge. In this case, the juvenile defendant wrote a “vulgarity-laced tirade” against the principal of her middle school on MySpace.⁴⁹ The Court focused on the fact that the juvenile’s statements were in a private setting amongst friends and unlikely to reach the principal’s awareness.⁵⁰ However, the Court had to do its own independent research⁵⁶ to understand MySpace since “the evidence presented at the fact-finding hearing was extremely sparse, uncertain, and equivocal regarding the operation and use of MySpace.com[.]”⁵²

Moreover, litigants offering social networking-type evidence may also confront authentication challenges.⁵³ For example, in State v. Bell, the criminal defendant filed a motion in limine to exclude certain MySpace communications.⁵⁴ The defendant challenged the authentication of the printed MySpace communications because there were no assurances that the chats were not altered communications, or created by someone who fraudulently accessed the defendant’s account.⁵⁵ The court, however, after analyzing the relatively low authentication standard, found that these communications may be authenticated through testimony that (1) the party has knowledge of defendant's e-mail address and MySpace user name, (2) the printouts appear to be accurate records of his electronic conversations with defendant, and (3) the communications contain code words known only to defendant and his alleged victims.⁴⁹

Yet, the defendant appealed this ruling and challenged that the MySpace information was not properly authenticated as a business record.⁵⁷ Simply put, no one from MySpace.com, as the custodian of all of the electronic conversations produced on the website, authenticated the user name, records, and printouts of the conversations in dispute.⁵⁸ But, the appellate court found that the communications were not business records and did not require authentication from the owners of the MySpace website.⁵⁹

Overall, as social networking websites continue to permeate through society, litigants must understand how to use this type of information to better advocate their position. First, it is imperative that litigants use reliable sources to explain specifically how certain websites operate, and why certain features may bolster or question an authentication argument. For instance, explaining to the court the meaning of “tagging a photo,” having a “private” profile, as well as any security sign-on protections will put any evidence a party seeks to introduce into the proper context. Second, after obtaining the compromising photos and “smoking gun” disclosures from these websites, litigants can undermine any potential reliability and authenticity attacks by demonstrating, among other things, how the information was accessed, when it was accessed, whether the information is still viewable, and a chain of custody. Finally, as with using information from Wikipedia, litigants should reinforce their social networking-type evidence with other generally reliable and complementary sources.

CONCLUSION

Wikipedia and social networking websites are sources that potentially provide litigants with probative information. Adding these valuable online tools to other more traditional forms of research will certainly strengthen the fact-finding stages of litigation. However, as these sources transition from research tools to probative evidence, it behooves the prudent litigant to prepare to defeat the many potential evidentiary challenges. Part I of this article reviewed many potential ways to bolster the reliability and to strengthen the authentication of Wikipedia and social networking evidence. Part II of this article will focus on similar issues for WebMD, YouTube, and company-owned websites.

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End Notes:

• John A. Wirthlin is a third year law student at University of Florida. He is currently working as a Summer Associate at Greenberg Trauig, LLP in Tampa, Florida.

• Brittan L. Mitchell is a former NCSTL staff member. Ms. Mitchell is a member of the Florida Bar and a graduate of Stetson University College of Law. She is currently working on her LL.M. in Taxation from New York University. She practices law in Inverness, Florida at Mitchell & Mitchell, PLLC.

¹ See e.g. Campbell v. Sec’y of Health and Human Serv., 69 Fed. Cl. 775, 781 (Fed. Cl. 2006).
² See e.g. United States v. Villanueva, 315 Fed. Appx. 845 (11th Cir. 2009); United States v. Boyd, No. 3:07-CR-003, 2007 WL 4244974 at *1, *1-2 (E.D. Tenn. Nov. 30, 2007).
³ See e.g. Victaulic Co. v. Tieman, 499 F.3d 227 (3d Cir. 2007) available at http://caselaw.lp.findlaw.com/data2/circs/3rd/072088p.pdf.
⁴ Non-Wikipedia Disclaimers, http://en.wikipedia.org/wiki/Wikipedia:Non-Wikipedia_disclaimers (last visited July 1, 2009) (listing disclaimers from a variety of online sources of information including many of the sources listed in this article).
⁵ Britannica Corporate Site, Usage Agreement, http://corporate.britannica.com/termsofuse.html (last visited July 2, 2009) (containing warranties about use of information).
⁶ Microsoft Service Agreement, Item 20 “We make no warranty,” http://help.live.com/help.aspx?project=tou&mkt=en-us (last modified May 2009).
⁷ Bartleby.com User Agreement , Disclaimers of Warranties & Limitation of Liability, http://www.bartleby.com/sv/terms.html (last visited July 2, 2009).
⁸ The Associated Press, Terms and Conditions of Use, http://www.ap.org/pages/about/terms.html (last visited July 2, 2009).
⁹ The New York Times, Terms of Service, Representations and Warranties, http://www.nytimes.com/ref/membercenter/help/agree.html (last visited July 2, 2009).
¹⁰ The Wall Street Journal, Subscriber Agreement and Terms of Use, Disclaimers of Warranties and Limitations on Liability, http://online.wsj.com/public/page/subscriber_agreement.html (updated April 8, 2009).
¹¹ The Associated Press, Terms and Conditions of Use, http://www.ap.org/pages/about/terms.html (last visited July 2, 2009).
¹² The New York Times, Terms of Service, Representations and Warranties,
¹³ Wikipedia General Disclaimer, http://en.wikipedia.org/wiki/Wikipedia:General_disclaimer (last visited July 6, 2009).
¹⁴ WebMD “Additional Information” http://www.webmd.com/about-webmd-policies/additional-info?ss=ftr (last visited July 2, 2009).
¹⁵ The following cases provide a few examples of the variety of Wikipedia citations: State v. Harris, 763 N.W.2d 560, ¶12 & n.5 (Wis. App. 2009) (unpublished table decision) (finding Wikipedia an appropriate tool to define the popular meaning of the slang term “baby mama”); Aubin v. Resid’l. Funding Co., 565 F.Supp. 2d 392, 397 (D. Conn. 2008) (allowing Wikipedia to serve as evidence “that the average consumer would believe that “business days” are confined to “Monday through Friday.”); Sanchez v. State, 275 S.W.3d 901, 905 & n.7 (Tex. Crim. App. 2009) (providing the definition for Promethazine in a criminal misdemeanor case); Murphy v. KMART Corp., 255 F.R.D. 497,509 & n. 4 (D.S.D. 2009) (citing Wikipedia references in an employment suit based on the “court’s independent research”); State v. Swope, 762 N.W.2d 725, 729 & n. 3 (Wis. App. 2008) (defining CSI and other crime dramas using Wikipedia articles as support for the examination of an FBI agent); Chaill v. Astrue, No. 07-CV-03432-NKL, 2008 WL 3978342, n. 8 (W.D. Mo. Aug. 25, 2008) (defining the medical term “Intravenous Immunoglobulin” in an appeal from a denial of a social security claim).
¹⁶ See e.g. Goodreau v. Williams, No. 3:08-0725, 2009 WL 819487, slip op. at 2 n. 1 (M.D. Tenn. Mar. 27, 2009) (skeptically citing Wikipedia for the definition of Chelaton Therapy: “While this encyclopedia is itself controversial, it does provide citation to a number of studies and articles on Chelaton Therapy.”)
¹⁷ Wikipedia General Disclaimer, supra n. 13 (emphasis in original text).
¹⁸ State v. Webb, No. COA08-186, 671 S.E.2d 71, *3 & n. 2 (N.C. App. Nov. 18, 2008) (unpublished table decision).
¹⁹ Id. at *1.
²⁰ Id. at *3.
²¹ Id
²² Id. at *3 & n.2.Id. at *1.
²³ Id
²⁴ Palisades Collection, LLC v. Graubard, No. A-1338-07T3, 2009 WL 1025176 (N.J. Super. App. Div. April 17, 2009) (per curiam), available at http://www.consumerlaw.org/unreported/content/Graubard.pdf.
²⁵ Id. at *1.
²⁶ Id. at *2.
²⁷ at *3.
²⁸ Id.
²⁹ See e.g. State v. Harris, 763 N.W.2d 560, ¶12 & n.5 (Wis. App. 2009) (unpublished table decision) (finding additional support for the definition of “baby mama” from other sources that confirmed the Wikipedia definition). See also Aubin v. Resid’l. Funding Co., 565 F.Supp. 2d 392, 397 (D. Conn. 2008) (finding additional support for the definition of “business days” from sources other than Wikipedia).
³⁰ Wikipedia: Verifiability, http://en.wikipedia.org/wiki/Wikipedia:Verifiability (last visited July 11, 2009) (stating that statements should be sourced to published reliable information).
³¹ Wikipedia: No Original Research, http://en.wikipedia.org/wiki/Wikipedia:No_original_research (last visited July 11, 2009) (stating that Wikipedia requires reliable sources as references to ensure that original thought and opinions will not be published).
³² Wikipedia: Neutral Point of View, http://en.wikipedia.org/wiki/Wikipedia:Neutral_point_of_view (last visited July 11, 2009) (indicating the policy to represent all published views on a particular topic without bias).
³³ Wikipedia: How to Edit a Page, http://en.wikipedia.org/wiki/How_to_edit (last visited July 11, 2009).
³⁴ Way Back Machine, http://www.archive.org/index.php (last visited July 2, 2009).
³⁵ However, the Way Back Machine might have its own evidentiary hurdles. See Tracey Rich, Find Evidence on Your Opponent’s Website, NAT’L L.J., (July 15, 2008), available at http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202422968612 (listing cases that challenged the Way Back Machine as hearsay and authentication issues).
³⁶ Wikipedia Help: Page History, http://en.wikipedia.org/wiki/Help:Page_history (last visited July 11, 2009).
³⁷ Wikipedia Help: Page History, supra n. 36
³⁸ Wikipedia Help: Page History, supra n. 36 (providing a step-by-step direction to interpreting the various edits made on a particular article).
³⁹ For a discussion on how lawyers use social networking websites to assist lawyers with jury selection and voire dire see Christopher B. Hopkins, Internet Social Networking Sites for Lawyers, TRIAL ADVOC. Q. (The Fla. Def. Law. Assoc. Spring 2009); Julie Kay, Social Networking Sites Help Vet Jurors, NAT'L L.J., (Aug. 13, 2008), available at http:// www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202423725315&rss=ltn (last visited July 6, 2009).
⁴⁰ See, e.g., Campbell v. State, No. 51021, 2009 WL 1424487 at *1 (Nev. Jan. 8, 2009) (holding that it was not an abuse of discretion for the trial court to allow a MySpace video and the corresponding transcripts into evidence).
⁴¹ For instance, during an interview, a partner at McDermott Will & Emery mentioned that he often used the various social networking websites for research and fact-finding. He provided an example of benefiting from social networking research: “in one case, a plaintiff claimed [his] client drove him out of business. The opposing counsel wanted to paint the plaintiff as a poor, loving family man. . . . [He] found on MySpace that the plaintiff collects antique Jaguar cars, and is president of a Jaguar club. [He} also saw compromising photos that showed the plaintiff is not the family man he claimed to be. The plaintiff also talked about the case and the judge on the site.” He continued, “I make it a practice to use as many sources as I can come up with to find information about the other side. . . .We used to run LexisNexis; we still do that. We always look at cases, and now we use the Internet, Google, and social networking sites.” Oliva Clark, Using the Web to Network, Chicago Lawyer (March 6, 2009) available at http://www.chicagolawyermagazine.com/2009/03/06/using-the-web-to-network/ (quoting an interview with Geoffrey Vance, a partner at McDermott Will & Emery).
⁴² D. Findlay, Tag! Now You’re Really “It” What Photographs on Social Networking Sites Mean for the Fourth Amendment, 10 N.C. J. L. & TECH. 171, 177 (Fall 2008).
⁴³ Id.
⁴⁴ Id. at 178 & n. 24 (citing Oldham v. Jackson and Smith Excavating, Inc., No. 06-CVS-642 (Chatham County Super. Ct., June 11, 2008).
⁴⁵ Campbell, 2009 WL 1424487 at *1.
⁴⁶ Id..
⁴⁷ Id.
⁴⁸ A.B. v. State, 885 N.E.2d 1223, 1224 (Ind. 2008).
⁴⁹ Id. at 1225.
⁵⁰ Id. at 1227.
⁵¹ Id. at 1224-1225 (providing a court-researched definition of the workings of MySpace and the difference between public and private posting forums).
⁵² Id.
⁵³ In St. Louis Univ. v. Meyer, No. 407CV01733 (E.D. Mo. Jan. 12, 2009), a Missouri lawyer argued in a memorandum in support of a motion in limine that the court should disallow certain Facebook evidence. Specifically, the defendant argued that any statements regarding “blog posting” or “facebook” were inadmissible hearsay evidence without any corresponding exception. The outcome of this particular motion is not yet available; however, it is likely that litigants will continue to challenge Facebook evidence on similar grounds.
⁵⁴ State v. Bell, 882 N.E.2d 502, 511-512 (Ohio C.P. 2008).
⁵⁵ Id.
⁵⁶ Id.
⁵⁷ Id.State v. Bell, CA2008-05-044, 2009 WL 1395857 (Ohio Dist. Ct. App. May 18, 2009).
⁵⁸ Id.
⁵⁹ Id.

July, 2009 ResearchUpdate

2009-10-18 22:23:30

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From the Research Desk: Update
Diana Botluk, Director of Research

The debut of NCSTL’s new website brings exciting upgrades in database searching. The new database offers researchers three different search options: Keyword Search, Quick Search, and Expert Search.

The Keyword search is the simplest search option. You can use it to perform an overall search for a word or phrase. You can also use it to see an entire list of records in one topic and/or resource type. For example, imagine you want to locate books about biometrics. On the Keyword Search page, first check the box next to Biometrics (Step 1), then check the box next to Books, Encyclopedias & Treatises (Step 2). The text box in Step 3 is optional, so you can leave it blank. Click Search and the entire list of holdings for books about biometrics will appear on your screen.

If you want to get a little more specific with your searching, you can try our new Quick Search interface. A Quick Search will allow everything a keyword search allows, but also provides a few more options. Quick Search lets you search for specific information like titles, author names, dates, conference venues, and more. It helps narrow your search because you can limit searching to results where words or phrases occur only in the fields you choose.

The final new search method for the NCSTL database is the Expert Search. Providing full Boolean capability, Expert Search is designed for researchers who are very familiar with online search construction. Expert researchers can manipulate Expert Search to put a search together from scratch, exactly the way they want.

Another change to the database will be the inclusion of records for multimedia resources. This feature is coming soon!

July, 2009 TechUpdate

2009-10-18 22:23:24

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TECHNOLOGY AND DISTANCE EDUCATION NEWS
Dr. Susan Zucker, Director of Technology and Distance Education and Publisher of It's Evident

The new NCSTL website has been launched and we are very excited about all the changes. I personally would like to thank the other members of our development team: Frank Gepfrich, Programmer and Principle of Gepcom, Inc., who personally guided us through this complex process and whose company programmed the new site; Theresa Hodges, graphic artist, whose creativity enlives the unique, digital presence of the NCSTL; and Diana Botluk, whose expertise guides the continual development of the NCSTL forensic database. I would also like to thank Ricardo Camacho, NCSTL Program and Grants Compliance Manager, who was responsible for managing the website funding, as well as all those who reviewed and critiqued the site before the launch. Lastly, thanks go to Carol Henderson, for without her ideas and unwavering support, this innovative website would not be possible.

The new site provides an efficient, non-subscription database interface to help users access and search more easily. New media elements are showcased, such as RSS Feeds, podcasts, and NCSTL’s social media presence on Facebook and Twitter.

The www.ncstl.org Calendar provides a compilation of events, nationally and internationally, in forensic science, law, technology, and education. People regularly consult the NCSTL Calendar to learn of events. If you have an event you would like listed, please write to: watson@law.stetson.edu

It's Evident, NCSTL's quarterly e-newsletter, features articles on all things forensic. Guest writers are featured in the newsletter regularly along with staff submissions. It's Evident is very popular with our readers. Check out the latest issue of It's Evident and the archived issues, too.

NCSTL and Social Media: NCSTL now has a Facebook page - NCSTL Facebook as well as a presence on Twitter. NCSTL invites you to become a fan on Facebook and a follower on Twitter ...

I hope you enjoy the new look of the NCSTL online! You are invited to email me your comments/suggestions at: szucker@law.stetson.edu

Sincerely,
Susan