Forensic evidence

Terrence F. Kiely

FORENSIC

EVIDENCE:

SCIENCE AND THE

CRIMINAL LAW

Boca Raton London New York Washington, D.C.

CRC Press

©2001 CRC Press LLC

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Printed in the United States of America 1 2 3 4 5 6 7 8 9 0

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Library of Congress Cataloging-in-Publication Data

Kiely, Terrence F.

Forensic evidence : science and the criminal law / Terrence F. Kiely

p. cm.

Includes bibliographical references and index.

ISBN 0-8493-1896-3 (alk. paper)

1. Evidence, Expert--United States. 2. Forensic sciences--United States. I. Title.

KF8961 .K54 2000

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©2001 CRC Press LLC

If any Man be delighted in History, let him read the Books of Law, which are nothing

else but Annals and Chronicles of Things done and acted upon from year to year, in

which each Case presents you with a petit history; and if Variety of Matter doth most

delight the reader, doubtless, the reading of those Cases, (which differ like Men’s

Faces), tho like the Stars in Number, is the most pleasant reading in the World.

—Giles Duncombe

Trials per Pais, or the Law of England Concerning Juries by Nisi Prius (1725)

. . .

For without Victory at the Trial, to what Purpose is the Science of the Law? The

Judge can give no Sentence, no decision without it, and must give Judgement for

that Side the Trial goes; therefore I may well say, tis the chief Part of the Practice

of the Law. And if so, to whom shall I offer this Treatise, but to you the Practisers?

—Giles Duncombe

Trials per Pais, or the Law of England Concerning Juries by Nisi Prius (1725)

©2001 CRC Press LLC

Preface

Forensic Evidence: Science and the Criminal Law is intended to serve as an intro￾duction and guide to the appreciation and understanding of the significant historical,

contemporary, and future relationship between the world of the forensic sciences

and the criminal justice system. This book is not intended to be a close study of

forensic science, nor was it ever conceived as becoming one. It is devoted to a study

of the judicial response to uses of forensic science in the investigation, prosecution,

and defense of a crime. The audience to which this study is directed are those

intimately or potentially involved in that relationship: police, forensic scientists,

prosecutors, defense lawyers, and professors and students of the criminal law. It is

meant to stand on its own but also to complement the growing number of excellent

treatises and studies in the forensic sciences proper, many of which are published

in the CRC Press series in the area of forensic sciences.

The book focuses on those cases questioning the legal acceptability under a

Frye or Daubert standard of the methodological basis of the forensic science at

issue. However, equally, if not more importantly, the focus is on the discussions of

the numerous cases where the courts, assuming the acceptability of the underlying

methodology, have scrutinized and accepted or rejected a wide variety of investiga￾tive uses of the science under discussion, offered as proof of one or more material

facts in a criminal prosecution. This latter area of study is of equal, if not more

central, importance in understanding the place of forensic science in the criminal

justice system of the 21st century. It is time for another close look at both the body

of claims and the actual expert opinions supplied to the criminal justice system as

we enter the new century. The totally justified attention given rapid DNA develop￾ments should not overshadow the ongoing judicial acceptance and use of the more

traditional body of forensic sciences, such as hair, fiber, ballistics, and fingerprints,

some of which have never been fully challenged. The contributions of forensic

science to the criminal justice system have been, and remain, significant.

This book is divided into 12 chapters, most of which, with the exceptions of

Chapters 1, Science, Forensic Science, and Evidence, Chapter 2, Science and the

Criminal Law, and Chapter 12, Epilogue, address the legal profile of a specific

forensic science.

Chapter 1, Science, Forensic Science, and Evidence, briefly analyzes the histor￾ical and contemporary context in which legal arguments directed to the adequacy

of the findings of forensic science are conducted. This is a necessary precursor to

the more criminally focused discussion that constitutes the bulk of this book. The

framework of the Frye and Daubert standards for the introduction of scientific

opinion are discussed here, as well as the significant differences that exist when the

legal challenge comes in a civil law forum as opposed to a criminal one.

©2001 CRC Press LLC

Chapter 2, Science and the Criminal Law, provides an overview of the entire

subject of the uses of forensic sciences in the investigation, prosecution, and defense

of criminal cases in U.S. courts. Central topics addressed are the historical and

contemporary relationship between forensic science and proof of crime, the funda￾mentals of the application of forensic science disciplines to the investigation and

prosecution of a criminal case, the function of probabilistic analysis to that process,

and an extended discussion of the legal aspects of the modern crime scene.

Each of the next nine chapters discusses a specific forensic science discipline:

Chapter 3, Hair Analysis, discusses the court’s response to both class and individual

expert opinions in respect to attempts to connect one or more hairs found at a crime

scene to an individual suspect. This controversial subject sets the analytical frame￾work for the discussions that follow on a wide range of forensic science applications.

Chapter 4, Fiber Analysis, discusses the identification and use of a wide variety of

fiber materials from crime scenes and the processes used to link such materials to

a suspect. Chapter 5, Ballistics and Tool Marks, addresses the subjects of firearms

and projectile identification, the matching of bullets to a weapon, gunshot residue,

tool mark identification, and attempts to match crime scene striations to a tool

associated with a suspect. Chapter 6, Soil, Glass, and Paint, discusses the nature of

soil and glass-shard particle identification and the attempt to connect such materials

with an individual suspect. Chapter 7, Footprints and Tire Impressions, addresses

the identification, photographing, and/or casting of footwear and tire impressions

found at a crime scene, and their association with a suspect. The chapter ends with

a listing of bite mark cases. Chapter 8, Fingerprints, discusses the subject of finger￾print identification procedures and the recent Automated Fingerprint Identification

System (AFIS). Chapter 9, Blood Spatter Analysis, analyzes cases involving the

subject of presumptive testing for blood products as well as the subject of bloodstain

pattern analysis and its importance in many key aspects of crime scene reconstruction

efforts. Chapter 10, DNA Analysis, analyzes the court’s scientific conditions for the

acceptance of identification testimony arising from RFLP, PCR, mitochondrial DNA,

and STR DNA analyses, in addition to the small but growing number of cases and

articles addressing nonhuman DNA testing, in particular, dog, cat, and plant DNA

testimony. Chapter 11, Forensic Anthropology and Entomology, briefly examines

those decisions that utilize the methodologies and findings of these fields as aides

to the investigation and identification of human remains and providing time-of-death

estimates. And, finally, Chapter 12, Epilogue, provides a brief summary note on the

subjects not covered in this book and the major points sought to be made in the

entire work. The book ends with an appendix containing an extensive primer on

how to conduct forensic science and forensic evidence research.

©2001 CRC Press LLC

Acknowledgment

I wish to thank Dean Terri Foster of the DePaul University College of Law, for her

gracious and ongoing support during the research and writing of this book. I also

owe a great debt to friend and colleague James J. Ayres, Adjunct Professor of

Computer Law and my cocreator and codirector of the Center for Law and Science

at DePaul University College of Law. I also wish to express my gratitude to DePaul

students Richard Battle, David Becker, and most recently, Maria Vathes and Laura

Pieper, for their research skills, friendship, and untold hours at the final stages of

this book. Many thanks to Harvey Kane and Becky McEldowney of CRC Press.

Harvey had the faith in the project and Becky has gotten me through it with consistent

friendliness, patience, and good humor. Special thanks must go to my editor, Michele

Berman, for her great help in smoothing out the rough edges of this book.

My greatest debt is to my students in Forensic Evidence over these past 5 years,

for their interest and patience as I developed the content and structure of this book.

It goes without saying that my true reason for accomplishing anything is, as

always, my wife Sidni. Thanks again for everything, not the least of which was

keeping our Newfoundland Beau and our pitbull Buster from trashing my office and

consuming the final draft of this work.

©2001 CRC Press LLC

Dedication

This book is dedicated to the loving memory of my mother

Elizabeth Wolfe and my step-father John Wolfe

©2001 CRC Press LLC

Table of Contents

Chapter 1 Science, Forensic Science, and Evidence

I. Science and the Legal Process

II. Litigation as History

III. Law and Science

IV. Science and the Supreme Court

A. Supreme Court Cases

1. Frye v. United States

2. Daubert v. Merrell Dow Pharmaceuticals

3. General Electric v. Joiner

4. Kumho Tire v. Carmichael

B. Science Advisory Boards

V. Conclusion

Research Note

Endnotes

Chapter 2 Science and the Criminal Law

I. Introduction

II. Science and the Criminal Law: Overview

III. Forensic Science and Legal History

IV. Forensic Science and Circumstantial Evidence

A. 18th and 19th Century Case Analyses

V. Forensic Science and Forensic Evidence

VI. Forensic Science, Probability, and the Law

VII. Forensic Science, Forensic Evidence, and the Modern Crime Scene

VIII. Forensic Science and the Criminal Law: A Case Study

A. The Facts

B. The Prosecution’s Forensic Evidence: Hairs and Fibers

and Tire Tracks

C. The Court’s Analysis: Hairs and Fibers and Tire Tracks

IX. Conclusion

Research Note

Endnotes

Chapter 3 Hair Analysis

I. Introduction

II. Recent Case Discussions

III. Conclusion

Endnotes

©2001 CRC Press LLC

Chapter 4 Fiber Analysis

1. Introduction

II. The Wayne Williams Case

III. Other Fiber Analysis Cases

Research Note

Endnotes

Chapter 5 Ballistics and Tool Marks

I. Introduction

II. Weapon Identification

III. Angle of Shot

IV. Bullet Matching

V. Incompetency of Counsel

VI. Wound Analysis and Ballistics

VII. Tool Mark Cases

Research Note

Endnotes

Chapter 6 Soil, Glass, and Paint

I. Introduction

II. Glass Analysis

A. General

B. Glass Analysis Cases

III. Paint Analysis

A. General

B. Paint Analysis Cases

IV. Soil Analysis

A. General

B. Soil Analysis Cases

Research Note

Endnotes

Chapter 7 Footprints and Tire Impressions

I. Introduction

II. Footprints

A. General

B. Footwear Cases

III. Tire Impressions

A. General

B. Tire Impression Cases

IV. Bite Mark Case Listing

Research Note

Endnotes

©2001 CRC Press LLC

Chapter 8 Fingerprints

I. Introduction

II. Fingerprint Cases

III. Lip and Ear Print Impressions

Research Note

Endnotes

Chapter 9 Blood Spatter Analysis

I. Introduction

II. Blood Spatter Cases

Endnotes

Chapter 10 DNA Analysis

I. Introduction

II. Questions Lawyers Need to Ask and Answer

III. DNA Cases

A. Postconviction DNA Testing

B. Samples Voluntarily Given Used in Other Cases

C. RFLP and the Product Rule

D. PCR and STR

E. STR DNA

F. mtDNA

G. Nonhuman DNA

Research Note

Endnotes

Chapter 11 Forensic Anthropology and Entomology

I. Anthropology

II. Forensic Anthropology Cases

III. Entomology: Cases

Endnotes

Chapter 12 Epilogue

Appendix A Primer on Researching Forensic Science

to Get to Forensic Evidence

I. Forensics and Crime Scene Bibliography and Research Sources

A. Overview and History

B. Standard Forensic Science Texts

C. Recommended Periodicals

II. Forensic Information on the Internet

A. Dialog/Westlaw Searching

©2001 CRC Press LLC

B. Forensic Science and Related Web Sites

1. Forensic Sciences

2. Law-Related Sites

3. Medicine-Related Sites

4. Science Sites

Table of Cases

©2001 CRC Press LLC

1 Science, Forensic

Science, and Evidence

A discarded theory remains a theory. There are good theories and bad theories￾theories currently regarded as true by everyone and theories that no one any longer

believes to be true. However, when we reject a matter of fact, we take away its

entitlement to the description: it never was a matter of fact at all.

— Steven Shaplin and Simon Schaffer

Leviathan and the Air Pump (1985)

I. SCIENCE AND THE LEGAL PROCESS

The desire to develop a model for the validation of scientific discoveries and meth￾odology has been a constant struggle since the very early period of modern scientific

thinking, in 17th-century England. Sir Francis Bacon, Lord Chancellor and one of

the fathers of modern scientific thinking, composed a work called the New Atlantis,

wherein he created a mythical institution called Saloman’s House or the College of

the Six Days Work. There, inhabitants were devoted to a serious and widespread

search for the identification of scientific discoveries and to developing rigorous

standards for testing their credibility. A complex system of experts was described

by Bacon whose duties were focused on strict examination of practical results to

serve as the basis for more generally applicable scientific principles.1

Robert Hooke, the early-17th-century inventor of the microscope and an asso￾ciate of the great experimentalist Sir Robert Boyle, along with Francis Bacon also

recognized the difficulty of finding adequate standards for the testing of scientific

validity, especially in cases of attempts to fashion one uniform set of constructs for

any such task:

[F]or the limits to which our thoughts are confined, are small in respect of the vast

extent of Nature itself; some parts of it are too large to be comprehended, and some too

little to be perceived, and from thence it must follow that not having a full sensation of

the object, we must be very lame and imperfect in our conceptions about it, and in all

the propositions which we build upon it; hence we often take the shadow of things for

the substance, small appearances for good similitudes, similitudes for definitions; and

even many of those, which we think to be the most solid definitions are rather expressions

of our misguided apprehension then of the true nature of the things themselves.2

This concern was at the forefront of efforts by early proponents of observational

science and has remained the core issue in modern science-based civil and criminal

litigation. As noted by authors Steven Shaplin and Simon Schaffer in their excellent

study of the origins of modern scientific thinking, Leviathan and the Air Pump:

©2001 CRC Press LLC

Hobbes, Boyle, and the Experimental Life,

3 English experimentalists of the mid-17th

century and afterward rapidly took the position that all that could be expected of

physical knowledge was “probability,” thereby removing the radical distinction

between “knowledge” and “opinion.” Physical hypotheses were provisional and

revisable; assent to them was not obligatory, as it was to mathematical demonstra￾tions; and physical science was, to varying degrees, removed from the realm of the

demonstrative:

The probabilistic conception of physical knowledge was not regarded by its proponents

as a regrettable retreat from more ambitious goals; it was celebrated as a wise rejection

of a failed project. By the adoption of a probabilistic view of knowledge, one could

attain to an approximate certainty and aim to secure legitimate assent to knowledge￾claims. The quest for necessary and universal assent to physical propositions was seen

as inappropriate and illegitimate. It belonged to a “dogmatic” enterprise, and dogmatism

was seen not only as a failure but as dangerous to genuine knowledge.4

Historically then, a central concern in such cases is how the courts fashion a set

of observational and linguistic guidelines to gauge the adequacy of a scientific

opinion that is offered to establish a material fact in a trial.

This old debate has come full circle in the search by modern courts for a one￾size-fits-all definition of legally sound scientific methodology that will serve justice

in the increasing and predictably complex product liability and criminal cases of the

next century.

The basic inference-based argument used in modern trials, whether aimed toward

a proffered scientific result or a more routine establishment of an important fact,

has served the law as the primary historical method since the earliest days of legal

systems. The method of persuasion used by the great Roman lawyer and scholar

Cicero remains the primary method of convincing a jury to reach one version of

history rather than another. An argument by Cicero in a murder-patricide case in the

year 80 B.C. could be made today, centered in differing opinions of what the facts

were and how they are to be interpreted:

Sextus Roscius, you say, killed his father. Well, what sort of a person is he then?

Obviously he must be some degenerate youth, who has been corrupted by men of evil

character. On the contrary: he is over forty years old. Well, then, he must be a veteran

cut-throat, a ferocious individual throughly accustomed to committing murders. But

the prosecutor has never even begun to suggest anything of the kind. So I suppose he

must have been driven to his criminal act by extravagant habits, or huge debts, or

ungovernable passions. As regards extravagant living, Erucius himself has already

cleared him of that when he indicated that Sextus hardly ever even attended a party.

Debts? He never had any. Passions? Not much scope for these in a man who, as the

prosecutor himself critically remarked, has always lived in the country, devoting his

time to the cultivation of his lands.5

This will become important here as we discuss the current theory setting forth the

propriety of an expert witnesses opinion and its foundation and the utilization of a

wide variety of forensic sciences in the criminal justice system.

©2001 CRC Press LLC

As noted by the famous historian, Carl Becker:

Let us admit that there are two histories: the actual series of events that once occurred;

and the ideal series that we affirm and hold in memory. The first is absolute and

unchanged—it was what it was whatever we do or say about it; the second is relative,

always changing in response to the increase or refinement of knowledge. The two series

correspond more or less; it is our aim to make the correspondence as exact as possible;

but the actual series of events exists for us only in terms of the ideal series we affirm

and hold in memory. This is why I am forced to identify history with knowledge of

history. For all practical purposes history is, for us and for the time being, what we

know it to be.6

Becker’s observation could equally apply to any factual search in litigation, not the

least of which are efforts to establish scientific facts that will be determinative of

the central issues in contemporary environmental, product liability, medical mal￾practice, and criminal prosecutions. The subject of inference-, probabilistics-, sta￾tistics-, and extrapolation-based testimony will be discussed in depth later in this

book. Suffice to say here, that in the extensive area of causation theory and forensic

science and forensic evidence, the history question continues to be a major compo￾nent in any analysis of proof of scientific fact.

The ultimate goal of the legal process is not to find absolute truth. Any system

that allows a jury to reach a verdict of guilty or not guilty in such important matters

would appear to have something else in mind. The goal of the U.S. litigation system

is to provide the best context, the fairest context, the optimal context, for a jury to

find the truth. This goal of providing the best opportunity for a jury to find its version

of the truth is especially important to understand before entering into extended

discussion of the current preoccupation of the nation’s courts with the science

question.

What is generally acceptable or reliable methodology in various fields that would

justify any opinion, such as the cancer-causing potential of a certain commercial

product? Who determines the answers to this question? What is the scientific

standard to utilize in this inquiry? At what point in the history of a product or a

disputed event and its alleged victim are we to focus? Are civil and criminal cases

sufficiently different in terms of their goals and processes to require different

analyses? Is every opinion that is grounded in some aspect of science subject to

pretrial scrutiny to test the adequacy of the methodology used and the opinion based

upon such use?

Litigation involving questions of science or the nature of the validity of modes

of scientific inquiry has been part and parcel of our legal life since the start of our

national life, beginning in and primarily residing in cases brought up in the nation’s

patent system. In examining the U.S. background to the current preoccupation of

legal scholars and courts in respect to the meaning and application of the term

science in civil and criminal cases, one is struck by the absence of argument on that

point over most of our national life. It is also important to note that the patent laws

were among the earliest laws promulgated by the new U.S. Congress. Thomas

Jefferson was not only a fervent amateur scientist, as was Benjamin Franklin and a

©2001 CRC Press LLC