Thursday, March 5, 2015

The (Lack of) Meaning of the Supreme Court's Disposition of Raynor v. State

Yesterday, Popular Science reported that “Recent Refusal by the Supreme Court Means That Involuntary DNA Collection Isn't Unconstitutional.” This will come as a surprise to the Justices who voted to deny a writ of certiorari to the Maryland Court of Appeals in Raynor v. State, 99 A.3d 753 (Md. 2014).

Raynor is one of many cases in which courts have concluded that the prohibition in the Fourth Amendment to the U.S. Constitution against “unreasonable searches and seizures” does not apply to acquiring and testing naturally shed DNA to see if matches DNA from a crime scene or victim. Two years after a reported rape, the victim told police that she suspect Glenn Raynor had attacked her. Raynor agreed to come to a police station to answer questions. At the interview, he declined to provide a DNA sample, but police took swabs of the armrests of the chair in which had sat. The trial court denied his motion to suppress evidence of the incriminating match that followed, noting that “if he was so concerned about it, he should have worn a long sleeve shirt.” A conviction and a 100-year sentence of imprisonment followed.

According to the Popular Science article,
Raynor appealed the decision, saying the DNA evidence shouldn't have been used because it was collected without his consent. The appeal made it all the way up to the Supreme Court, which on Monday, the court announced [sic] that it would not hear the case. The Supreme Court did not comment on the denial—and to be fair, they get requests to hear a whole lot of cases every year and have to deny a majority of them—their refusal to hear the case means they stand with the lower court’s majority opinion:
We hold that DNA testing of the 13 identifying junk loci within genetic material, not obtained by means of a physical intrusion into the person’s body, is no more a search for purposes of the Fourth Amendment, than is the testing of fingerprints, or the observation of any other identifying feature revealed to the public—visage, apparent age, body type, skin color.
In fact, the Supreme Court denies not just a majority, but about 97% of the petitions it receives from private parties. Any first year law student knows that denying one of these 7,000 or so petitions does not mean that the Court “stand[s] with the lower court’s majority opinion.” It merely means that, for any number of possible reasons, four of the nine Justices did not vote to re-examine the case. In short, although police have been doing such testing time and again over the last twenty years or so, the U.S. Supreme Court has yet to approve — or disapprove — of the constitutionality of the practice.

References
Related posting

Tuesday, February 24, 2015

Genetic Determinism and Essentialism on the Electronic Frontier

The latest bit of what, in the scientific world, is discredited genetic determinism, comes from the Electronic Frontier Foundation (EFF). This is not the first time the EFF has strayed from electronics to genetics, where it seems inclined to overstate scientific findings. 1/ Now the organization wants the Supreme Court to decide whether it is an unreasonable search or seizure for police, without probable cause and a warrant, to acquire and analyze shed DNA for identifying features that might link a suspect to a crime. That is a perfectly reasonable request, although, in the unlikely event that the Court takes this bait, making the case for a Fourth Amendment violation will not be easy.

What is less reasonable, indeed, what many geneticists and bioethicists regard as ill-advised, is to portray DNA as a map of “who we are, where we come from and who we will be.” 2/ My DNA is not who I am. It determines some things about me — my blood type, for example — but not my occupation, my interests, my skills, my criminal record, or my political affiliation. Yet, rather than simply point out that people have legitimate reasons to want to maintain the confidentiality of certain traits or risks that DNA analysis could reveal — such as an inherited form of Alzhiemer’s Disease — the EFF is concerned that “[r]esearchers have theorized DNA may also determine race, intelligence, criminality, sexual orientation, and even political ideology.” 3/

Of course, researchers have “theorized” almost everything at one time or another. And the prospect that police will collect DNA from a suspect surreptitiously to find out if he is a liberal Democrat or a conservative Republican seems a tad silly. Still, I was curious: Is there really a theory of how genes “determine ... political ideology”?

I turned to the news article in a 2012 issue of Nature cited by the EFF. 4/ But nothing in the article gives a theory of genetic determinism for political ideology. The article refers to twin studies that imply genetics plays some role in political behavior. There are some reports of candidate genes from studies that have “yet to be independently replicated.” 5/

As for a theory of how unknown genes might, to some degree, in some settings, influence political ideology, the theory is that some genes affect general attitudes or emotional reactions that could relate in some manner to political ideology. For example,
US conservatives may not seem to have much in common with Iraqi or Italian conservatives, but many political psychologists agree that political ideology can be narrowed down to one basic personality trait: openness to change. Liberals tend to be more accepting of social change than conservatives. ...

Theoretically, a person who is open to change might be more likely to favour gay marriage, immigration and other policies that alter society and are traditionally linked to liberal politics in the United States; personalities leaning towards order and the status quo might support a strong military force to protect a country, policies that clamp down on immigration and bans on same-sex marriage. 6/
This kind of theorizing is not a basis for a true friend of the Court to imply that political ideology might be a genetically determined phenotype. 7/

Notes
  1. See David H. Kaye, Dear Judges: A Letter from the Electronic Frontier Foundation to the Ninth Circuit, Forensic Science, Statistics and the Law, Sept. 20, 2012.
  2. Brief of Amicus Curiae Electronic Frontier Foundation in Support of Petitioner on Petition for a Writ of Certiorari, Raynor v. Maryland, No. 14-885, Feb. 18, 2015, at 2.
  3. Id. (note omitted).
  4. Lizzie Buchen, Biology and Ideology: The Anatomy of Politics, 490 Nature 466 (2012).
  5. Id. at 466.
  6. Id. at 468.
  7. For a critical discussion of factual errors and distortions in Supreme Court amici briefs generally, see Allison Orr Larsen, The Trouble with Amicus Facts, 100 Va. L. Rev. 1757 (2014).

Friday, February 20, 2015

Buza Reloaded: California Supreme Court Grants Review

Yesterday the California Supreme Court granted review in People v. Buza, No. A125542 (Cal. Ct. App., 1st Dist., Dec. 3, 2014), and ordered the Court of Appeal opinion "depublished." A depublication order "is not an expression of the court's opinion of the correctness of the result of the decision or of any law stated in the opinion." Cal. Rules of Court, Rule 8.1125(d) (2015). However, "an opinion of a California Court of Appeal ... that is not ... ordered published must not be cited or relied on by a court or a party in any other action" in California. Rule 8.1115(a).

The California Department of Justice issued a information bulletin advising all state law enforcement agencies that
By operation of state law, the Supreme Court’s order granting review removes the Court of Appeal’s opinion as published authority and prevents citation or reliance on that decision in any other action. As a result of the California Supreme Court’s grant of review of this decision, there is now no state precedent that precludes collection of DNA database samples from adult felony arrestees pursuant to Penal Code section 296.

Penal Code sections 296(a)(2) and 296.1(a) therefore are in full effect and mandate the collection of DNA database samples from all adults arrested for a felony or wobbler offense. All authorized arrestee samples that have been or will be received by the California Department of Justice DNA Data Bank program will be analyzed and uploaded to CODIS.

Closely related postings

Sunday, February 15, 2015

"Remarkably Accurate": The Miami-Dade Police Study of Latent Fingerprint Identification (Pt. 2)

A week ago, I noted the Justice Department’s view that a “study of ... latent print examiners ... found that examiners make extremely few errors. Even when examiners did not get an independent second opinion about the decisions, they were remarkably accurate.” 1/ But just how accurate were they?

The police who conducted the study “[p]resented the data to a professor from the Department of Statistics at Florida International University” (p. 39), and this “independent statistician performed a statistical analysis from the data generated” (p. 45). The first table in the report (Table 4, p. 53) contains the following data (in slightly different form):

Table 1. Classifications of Pairs
Examiner's
Statement
Nonmates (N) Mates (M)
953 235
+ 42 2547
? 403 446

Here, “+” stands for a positive opinion of identity between a pair of prints (same source), “–” denotes a negative opinion (an exclusion), and “?” indicates a refusal to make either judgment (an inconclusive) even though the examiner initially deemed the prints sufficient for comparison.

What do the numbers in Table 1 mean? As noted in my previous posting, they pertain to the judgments of 109 examiners with regard to various pairings of 80 latent prints with originating friction ridge skin (mates) and nonoriginating skin (nonmates). A total of 3,138 pairs were mates; of these, the examiners reached a positive or negative conclusion in 2,692 instances. Another 1,398 were nonmates; of these, the examiners reached a conclusion in 995 instances. Given that examiners were presented with mates and that they reached a conclusion of some sort, the proportion of matches declared was P(+|M & not-?) = 2,457/2,692 = 91.3%. These were correct matches. For the pairings in which the examiners reached a conclusion, they declared nonmates to match in P(+|N & not-?) = 42/995 = 4.2% of the pairs. These were false positives. With respect to all the comparisons (including the ones that they found to be inconclusive), the true positive rate was P(+|M) = 2,457/3,138 = 78.3%, and the false positive rate was P(+|N) = 42/1,398 = 3.0%. Similar reasoning applies to the exclusions. Altogether, we can write:

Table 2. Conditional Error Rates

Excluding inconclusives Including inconclusives
False + P(+ | N & not-?)
4.2%
P(+ | N)
3.0%
False – P(– | M & not-?)
8.7%
P(– | M)
7.5%


These error rates, which are clearly reported in the study, do not strike me as "remarkably small"—especially considering that they include the full spectrum of pairs—easy as well as difficult comparisons. Of course, they do not include blind verification of the conclusions, a matter addressed in another part of the study.

The authors report more reassuring values for “Positive Predictive Value” (PPV) and “Negative Predictive Value (NPV).” These were 98.3% and 92.4%, respectively. But these quantities depend on the proportions of pairs that are mates (69%) and nonmates (31%) in the test pairs. The prevalence of mates in casework—or the “prior probability” in a particular case—might be quite different. 2/

A better statistic for thinking about the probative value of an examiner’s conclusion is the likelihood ratio (LR). Are matches declared more frequently when examiners encounter mated pairs than nonmates? How much more frequent are these correct classifications? Are declared exclusions more frequent when examiners encounter nonmates than mates? How much more frequent are these correct classifications?

The LR answers these questions. For declared matches, the LR is P(+|M) / P(+|N) = 0.783 / 0.030 = 26. For declared exclusions, it is P(–|N) / P(–|M) = 9. 3/ These values support the claim that, on average, examiners can distinguish paired mates from paired nonmates. If all the examiners were flipping fair coins to decide, the LRs would be expected to be 1. The examiners did much better than that.

Nevertheless, claims of overwhelming confidence across the board do not seem to be justified. If examiners were presented with equal numbers of mates and nonmates, one would expect that a declared match would be a correct match in P(M|+) = 26/27 = 96% of the cases in which a match is declared. 4/ Likewise, a declared exclusion would a correct classification in P(N|–) = 9/10 = 90% of the instances in which an exclusion is declared. The PPV and PNV in the Miami-Dade study are a little bit higher because the prevalence of mates was 69% instead of 50%, and the examiners were cautious — they were less likely to err when making positive identifications than negative ones.

Suppose, however, that in a case of average difficulty, an average examiner declared a match when the defendant had strong evidence that he never had been in the room where the fingerprints were found. Let us say that a judge or juror, on the basis of the non-fingerprint evidence in the case, would assign a probability of 1% rather than 50% or 69% to the hypothesis of that the defendant is the source of the latent print. The examiner, properly blinded to this evidence, would not know of this small prior probability. An LR of 26 would raise the prior probability from 1% to 26%. Informing the judge or juror of the reported PPV of 98.3% from the study without explaining that it does not imply a “predictive value” of 98.3% in this case would be very dangerous. It would lead the factfinder to regard the examiner’s conclusion as far more powerful than it actually is.

Notes

  1. David H. Kaye, "Remarkably Accurate": The Miami-Dade Police Study of Latent Fingerprint Identification (Pt. 1), Forensic Science, Statistics, and the Law,  Feb. 8, 2015
  2. In addition, the NPV has been adjusted upward from 80% “[i]n [that] consideration was given to the number of standards presented to the participant.” P. 53.
  3. Removing nondeclarations of matches or exclusions (inconclusives) from the denominators of the LRs does not change the ratios very much. They become 22 and 11, respectively.
  4. This result follows immediately from Bayes' rule with a prevalence of P(M) = P(N) = 1/2, since P(M|+) = P(+|M) P(M) / [P(+|M) P(M) + P(+|NM) P(NM)] = P(+|M) / [P(+|M) + P(+|NM)] = LR / (LR + 1) = 26/27.

Sunday, February 8, 2015

"Remarkably Accurate": The Miami-Dade Police Study of Latent Fingerprint Identification (Pt. 1)

A week ago (Feb. 2, 2015), the Justice Department issued a press release entitled "Fingerprint Examiners Found to Have Very Low Error Rates." According to the Department:
A large-scale study of the accuracy and reliability of decisions made by latent fingerprint examiners found that examiners make extremely few errors. Even when examiners did not get an independent second opinion about the decisions, they were remarkably accurate. But when decisions were verified by an independent reviewer, examiners had a 0% false positive, or incorrect identification, rate and a 3% false negative, or missed identification, rate. ... “The results from the Miami-Dade team address the accuracy, reliability, and validity in the forensic science disciplines, ...” said Gerald LaPorte, Director of NIJ’s Office of Investigative and Forensic Sciences.
Inasmuch as the researchers -- latent print examiners and a police commander in the Miami Dade Police Department 1/ -- only studied the performance of 109 latent print examiners, it is not clear how many forensic science disciplines it actually addresses. Nor is it obvious what "validity" means (beyond "accuracy") in this one activity.

But let's put press releases to the side and look into the study itself. The authors assert that
The foundation of latent fingerprint identification is that friction ridge skin is unique and persistent. Through the examination of all of the qualitative and quantitative features available in friction ridge skin, impressions can be positively identified or excluded to the individual that produced it. 2/
This study does next to nothing to validate this foundation. The premise of uniqueness is very difficult to validate, and this study is limited to "80 latent prints with varying quantity and quality of information from [a grand total of] ten known sources." 3/ But, to its credit, the research does tell us about the ability of one large group of examiners to correctly and reliably pair these particular latent prints to the more complete known prints of the fingers that generated them. Let's see how much it reveals in this regard.

The Test Set

As for the prints used in the experiment, "[a] panel of three International of Association (IAI) certified latent print examiners independently examined and compared the 320 latent prints to the known standards and scored each latent print and subsequent comparison to their known standard according to a rating scale that was designed and used for this research; 80 were selected as the final latent prints to be used for testing purposes." 4/ The purpose of the three independent examinations was to rate the latent-known pairs on a difficulty scale "in order to present the participants with a broad range of latent print examinations that were representative of actual casework." 5/ Although the researchers may well have succeeded in fashioning a test set with pairs of varying difficulty, the report does not explain how they knew that this set was "representative of actual casework" and that "[t]he test sets utilized in this study were similar to the work that participants perform on a daily basis." 6/ Neither did they report how consistently the three uber-experts gauged the difficulty of the pairs.

The Examiners Who Were Tested

It seems that readers of the Miami-Dade report must take on faith the assertion that the test set is "representative of actual casework." In contrast, it is plain that the test subjects are not representative of all caseworkers. Rather than seek a random sample of all practicing latent print examiners -- which would be a difficult undertaking -- the researchers chose a convenience sample. Only "[l]atent print examiners in the United States who were an active member [sic] of the IAI received an email invitation from the MDPD FSB inviting them to participate in this study." 7/ Inasmuch as IAI certification is a mark of distinction, the sampling frame diverges from the population of all examiners. Departing from good statistical practice, the report does not state how large the nonresponse rate for IAI-certified invitees was. If it was high (as seems probable), the sample of examiners is likely to be a biased sample of all IAI-certified examiners.

In addition to soliciting participation from IAI-certified examiners, "[a]pplications were also made available to any qualified latent print examiner, regardless of affiliation with a professional organization." 8/ How this was done is not explained, but in the end, 55% of the subjects were not IAI-certified. 9/

Of course, these features of the sampling method do not deprive the study of all value. The experiment shows what a set of motivated examiners (volunteers) with high representation from IAI-certified examiners achieved when they (1) knew that their performance would be used in a report on the capabilities of their profession, (2) had an unspecified period of time to work, and (3) may not have always worked alone on the test materials. In the next posting on the study, I will describe these results.

Notes

  1. The only description of the authors in the report is on the title page, which identifies them as Igor Pacheco, CLPE (MDPD), Brian Cerchiai, CTPE (MDPD), and Stephanie Stoiloff, MS (MDPD)." The International Association for Identification lists the first two authors as certified latent print examiners as of Dec. 4, 2014. Mr. Cerchiai is also a, IAI certified tenprint examiner. The third author is a senior police bureau commander in the Forensic Services Bureau of the Miami-Dade Police Department (MDPD). In July 2012, she testified before the Senate Judiciary Committee on behalf of the International Association of Chiefs of Police that "[f]orensic science is not the floundering profession that some may portray it to be."
  2. Igor Pacheco, Brian Cerchiai & Stephanie Stoiloff, Miami-Dade Research Study for the Reliability of the ACE-V Process: Accuracy & Precision in Latent Fingerprint Examinations, Final Technical Report, Award No. 2010-DN-BX-K268, Dec. 2014 (abstract).
  3. Id. The latent prints were not just from fingers. Some were palm prints.
  4. Id. at 24.
  5. Id. at 27.
  6. Id. at 35.
  7. Id. at 34.
  8. Id. at 35.
  9. Id. at 51.
Related Postings
  • Reports on studies in mainstream journals can be found on this blog under the labels "fingerprint" and "error."

Saturday, January 31, 2015

Justice Department Reverses Decision on the Mandate of the National Commission on Forensic Science

The Justice Department reversed its position on the National Commission on Forensic Science's authority to recommend expansive criminal pretrial discovery of the opinions and information held by forensic scientists and criminalists who might testify for either the prosecution or the defense. The full remarks of Deputy Attorney General Sally Q. Yates and Judge Jed Rakoff, whose indignant resignation two days earlier, may have prompted her to reconsider the Department's position, are set out in an Appendix. So are statements from the Commissioners who spoke about the resignation.

According to Washington Post investigative reporter Spencer Hsu, an anonymous source in the Justice Department who "was not authorized to discuss the issue" "said the initial decision that pretrial evidence discovery rules were beyond the commission’s scope was made by Yates's predecessor, James Cole, before his departure Jan. 8." The short article does not explain why the Department did not convey Deputy AG Cole's decision to the judge or (it seems) anyone else on the Commission's Subcommittee on Reporting and Testimony until the eve of the Commission's fifth meeting.

The new decision led Judge Rakoff to rejoin the Commission and to continue as co-chair of the reporting and testimony subcommittee. With the discovery issue within its recognized purview, the subcommittee is free to submit a proposal for the full Commission to consider. In the end, the strongest proposal the Commission can make is a recommendation to the Attorney General.

References
Appendix

The following are excerpts from the transcript of the second day of the January 29-30 Commission meeting in Washington, D.C. I have edited them to correct misspellings, remove redundancies, etc. The full transcript is (or at least was) at http://www.captionedtext.com/client/ViewTranscript.aspx?EventId=2541437&ParticipantId=14469494-359b-4882-ad09-d1f77ab69e5e.

[Acting Deputy Attorney General Sally Q. Yates:] First, let me thank all of you for being so flexible today to adjust your schedule so that Judge Jed Rakoff and I could join you together this afternoon. I would like to welcome Judge Jed Rakoff back to the Commission. Late yesterday afternoon, Judge Jed Rakoff and I got to speak at great length, and I was able to hear his concerns about the scope of the responsibilities of the Commission. I will tell you that I believe that reasonable people can differ on whether or not discovery is within the scope of this Commission's charter. I was able to hear Judge Jed Rakoff 's views that he believes it is very much in the scope. I also heard from the Attorney General that the [view] that it is not in the scope was also reasonable. What I heard yesterday afternoon was a game changer. I learned that since the inception of this subcommittee that the subcommittee has been operating with the understanding that discovery was within the scope of the subcommittee's charter. And the subcommittee has been working almost for a year now on discovery and has been working very hard and has been very thoughtful in its approach to these issues. And so it seemed to me that given that it is at least arguable, I know you feel it is more than arguable, but if it is at least arguable that this is in the scope of the charter, and given that the subcommittee has openly been doing this for almost a year with everyone knowing about it and working on the discovery, it seemed fair to me that under the circumstances that this Commission should have an opportunity to hear the subcommittee's views on that issue and that this Commission could make its determination as to what information should be provided to the Attorney General.

And so that is the way that I would like for us to proceed. In connection with that, I have asked Andrew Goldsmith, who some of you may know who is the Department's national discovery coordinator, to be available to the subcommittee if the subcommittee so chooses, to be able to get his perspective on what the impact of what if some of these occasions [recommendations?] might be on the department's practices. Andrew is here with me today and available to talk with any of you -- not just today but when the subcommittee meets going forward.

I don't want us to be in this position again. And so I have directed my staff to get together with the various subcommittees here to make sure we all have a complete understanding of what is on the agenda for each of the subcommittees. And if the Department of Justice or any of you as Commissioners have a problem or believe that any of that is outside the scope of the charter of this Commission, then you should go ahead and say something now rather than waiting until after the subcommittee has done much of its work. That is something that we are going to be doing going forward, and I hope that we can work with you in that regard.

On the discovery issue, this is obviously a critically important issue to the Department. We take very seriously our obligation to ensure that defendants receive a fair trial, and they can only get that fair trial when they receive the appropriate discovery. And so we look forward to hearing whatever information the Commission wants to give us on your perspective on that issue. And so without further droning on, I will turn it over to Judge Jed Rakoff.

[United States District Judge Jed Rakoff:] I am glad to be back. I know you have been working very hard all of these last two days. I tried my best to get out of it, but I didn't fully succeed. [Laughter] It was close. [Laughter]

I wanted to thank Deputy Yates for having the open-mindedness to reconsider and reverse the decision previously made. Like the deputies from the old West, I have learned that she is a straight shooter, and it has been a real pleasure having the chance to interact with her over the last two days. The bad side for you folks is you are stuck with me again. Bear with me as best you can. What I look forward to is having this Commission now give the fullest consideration to discovery views, discovery recommendations if there are such. These are matters of great importance, but they need to be discussed on the merits. Now thanks to Deputy Yates, we will have the ability to discuss the merits. I am also glad that we now have Mr. Goldsmith on board as well to help us with that.

My subcommittee will be at least available telephonically and have the reviews available for the next meeting. This is one area. I feel very strongly about this area. I don't want to minimize that this wonderful Commission has so many important areas that it is working on, and so for me, it is a great pleasure for me to rejoin this Commission. I thank Deputy Yates for making this possible. [Laughter]

[Commissioner (John Fudenberg?):] Dr. Mae and Deputy Yates, thank you for your time and support. I'd like to begin saying something briefly that doesn't have to do with our subcommittee. It's important to be said. I wanted Judge Rakoff to be here. [Note: By this point, Judge Rakoff had left: "With some embarrassment, when I didn't think I would be attending this meeting, I scheduled some things in New York ... I'm going to have to get a plane back, so I apologize.] I don't know him well enough to insult him, so I'm trying not to. I am personally embarrassed by what has happened the last couple of days. I think if we have disagreement, whether or not we are working on something for a year or something for a week, I think we should be mature about it, and talk to each other about it, and have open communication rather than packing up quitting, and I don't think that's appropriate. I think we as Commissioners should take the time and take a deep breath and talk issues through rather than having, I understand, newspaper articles today, which I think is embarrassing to this Commission, and I'm sure embarrassing to the Department. It was disappointing, and I think we should rise above those petty issues, and we should as a Commission commit to each other that we are going to try to work through issues before we start quitting. I don't know that he went to the media about it, but somebody did. I think as a member of the Commission, I want to apologize because I'm embarrassed for that.

[Commissioner ?:] Given that John talked about the judge, I'd like to go on record that I supported Judge Rakoff's action in resigning at the committee. I was the chair of the legal group that worked for months and months and went through 10 different drafts that we shared with everybody. I think it would have been (?) resignations next week if this had [not been] resolved as well as (?)

[Commissioner ?:] I also have tremendous respect for what Judge Rakoff did. I'm confident none of us know all the communications that were delivered from the Commission to both your predecessor and to you, and I'm sure we don't all the communications that went back and forth, but I'm confident there were sources of misunderstanding, and I'm really impressed both sides came back together to address that, and I trust both sides did that in good faith.

It's not uncalled for (?) stand up for (?) what the judge did. Whether I would've done it or not, it was an act of principle. But having said that, I am truly committed. I so appreciate the commitment to go forward to respect our charter and our independence. I just want to say thanks.


[Commissioner (Hon. Barbara Hervey?):] I want to echo some of their comments. I respect your right to have an opinion. I don't appreciate an apology on behalf of the Commission because I am sure that everyone has their thoughts and reasons and beliefs. On behalf of the judge, he is not here to defend himself, I think he had some very principled ideas. I am just grateful that all of you would sit down and maturely discuss all of these decisions and come to some conclusions that were helpful to all of us. I appreciate that.

Thursday, January 29, 2015

"A Bump in the Road" for the National Commission on Forensic Science

Yesterday, U.S. District Court judge Jed Rakoff resigned from the National Commission on Forensic Science (NCFS). His resignation letter, placed on the web by the Washington Post, begins as follows:

Last evening, January 27, 2015, I was telephonically informed that the Deputy Attorney General of the U.S. Department of Justice has decided that the subject of pre-trial forensic discovery — i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court — is beyond the “scope” of the Commission’s business and therefore cannot properly be the subject of Commission reports or discussions in any respect. Because I believe that this unilateral decision ... reflects a determination by the Department of Justice to place strategic advantage over a search for the truth — I have decided to resign from the Commission, effective immediately.

According to Judge Rakoff,

The notion that improved discovery, going beyond what is minimally required by the federal rules of criminal procedure (which were drafted without any consideration of the difficulties unique to forensic science), is somehow outside the scope of the Commission’s work thus runs counter to both the mandate of the Commission’s Charter and the Commission’s overall purpose.

At today's Commission meeting, which is still in progress, several commissioners indicated frustration over this eleventh-hour ruling. Paul Giannelli, who drafted the "views" document for the subcommittee, noted that it went through some seven iterations with no indication from the Justice Department that it was beyond the "jurisdiction" of the NCFS and that the initial written instruction from a Department of Justice liaison stated that the subcommittee should consider “legal issues inherent in reporting and testimony, such as discovery.” (Emphasis added.) Peter Neufeld asked to see the internal memorandum to the Deputy Attorney General and noted the absence of any written statement from the Deputy AG.

My guess is that the topic of access to information from forensic science laboratories will not be deemed off-limits to the Commission but that no recommendations regarding possible amendments to the rules of discovery will be permitted. The Deputy Attorney General is expected to appear before the Commission tomorrow afternoon. The Department of Justice's co-chairman of the Commission referred to the matter as a bump in the road on which the Commission is traveling.

Postscript (added 1 Feb. 2015): My guess was wrong.See Justice Department Reverses Decision on the Mandate of the National Commission on Forensic Science, Jan. 31, 2015.

Reference: Spencer Hsu, U.S. Judge Quits Commission to Protest Justice Department Forensic Science Policy, Wash. Post, Jan. 29, 2015.