In drafting an amicus brief in Maryland v. King, the case in which the Supreme Court is reviewing the constitutionality of routine collection of DNA before conviction, I decided it is important to clarify the term "junk DNA" if only because it gets tossed around in so many court opinions and briefs. The Department of Justice defines “junk DNA” as “[s]tretches of DNA that do not code for genes.” U.S. Dep’t of Justice, Nat’l Institute of Justice, DNA Initiative Training for Officers of the Court, Glossary, http://www.dna.gov/glossary/ (last visited Dec. 17, 2012). In scientific discourse, however, DNA does not “code for genes.” Rather, parts of genes encode proteins and RNAs. "Junk DNA" is not a synonym for the rest of the genome. It is a provocative and deprecated term for that "fraction of DNA that has little or no adaptive advantage for the organism." Sean R. Eddy, The C-value Paradox, Junk DNA and ENCODE, 22 Current Biology R898 (2012). Some of what NIJ thinks is "junk DNA" is important to fitness. It is not "junk."
NIJ's sloppy treatment of terms like "genes" and "junk" is unfortunate, but in the end I decided the awkward definition was not important enough to snipe at in the brief. On a blog, however, one can be more snippy.
Monday, 17 December 2012
Tuesday, 11 December 2012
Reconsidering the “Considered Analysis”: How Convincing Are the Cases Cited in the Stay Order in Maryland v. King?
For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In King v. State, 42 A.3d 549 (Md. 2012), however, the Maryland Court of Appeals reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Even before the Court could consider issuing a writ of certiorari, Chief Justice Roberts stayed the Maryland judgment. His chambers opinion signaled that "given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below."
Some thoughts on the lower court opinions and the issues the Supreme Court will confront are in press in the online Discourse section of the UCLA Law Review. The essay provides a more coherent, complete, and polished presentation than the scattered remarks in earlier postings on this blog. It briefly examines four sets of opinions—the early one from the Virginia Supreme Court in Anderson, the Third Circuit’s en banc opinions in Mitchell, the Ninth Circuit’s panel opinions in Haskell (vacated to make way for en banc review), and the Arizona Supreme Court’s opinion in Mario W. Building on these judicial efforts, the essay outlines the Fourth Amendment questions that a fully considered analysis must answer, identifies questionable treatments of “searches” and “seizures” in the four sets of opinions, and criticizes the creative compromise in Mario W. that allows sample collection but not DNA testing before conviction.
I do not think that there is much room for compromise on the constitutional question. Various opinions maintain (in dictum) that preconviction collection is acceptable after, but not before, an indictment or preliminary hearing. That's another compromise, of sorts, and the Maryland law (as the state has implemented it) postpones DNA collection until after a probable-cause-for-trial hearing. Thus, anything the Supreme Court will say in King on DNA collection as part of the booking procedure will be dictum. It seems to me, however, that once an individual is legitimately detained, either the Fourth Amendment permits the compulsory collection, analysis, and use of DNA—the whole ball of wax—as a biometric identifier for both authentication and criminal intelligence purposes or it does not. Thus, I am betting that the Court will write a broad opinion upholding DNA database laws at all points after arrest. But IMHO, it's a close question.
References
Some thoughts on the lower court opinions and the issues the Supreme Court will confront are in press in the online Discourse section of the UCLA Law Review. The essay provides a more coherent, complete, and polished presentation than the scattered remarks in earlier postings on this blog. It briefly examines four sets of opinions—the early one from the Virginia Supreme Court in Anderson, the Third Circuit’s en banc opinions in Mitchell, the Ninth Circuit’s panel opinions in Haskell (vacated to make way for en banc review), and the Arizona Supreme Court’s opinion in Mario W. Building on these judicial efforts, the essay outlines the Fourth Amendment questions that a fully considered analysis must answer, identifies questionable treatments of “searches” and “seizures” in the four sets of opinions, and criticizes the creative compromise in Mario W. that allows sample collection but not DNA testing before conviction.
I do not think that there is much room for compromise on the constitutional question. Various opinions maintain (in dictum) that preconviction collection is acceptable after, but not before, an indictment or preliminary hearing. That's another compromise, of sorts, and the Maryland law (as the state has implemented it) postpones DNA collection until after a probable-cause-for-trial hearing. Thus, anything the Supreme Court will say in King on DNA collection as part of the booking procedure will be dictum. It seems to me, however, that once an individual is legitimately detained, either the Fourth Amendment permits the compulsory collection, analysis, and use of DNA—the whole ball of wax—as a biometric identifier for both authentication and criminal intelligence purposes or it does not. Thus, I am betting that the Court will write a broad opinion upholding DNA database laws at all points after arrest. But IMHO, it's a close question.
References
- David H. Kaye, On the "Considered Analysis" of Collecting DNA Before Conviction, 60 UCLA L. Rev. Discourse (forthcoming 2013) (preprint)
- David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012) (preprint)
Wednesday, 7 November 2012
The Dictionary and the Database: Thoughts on State v. Emerson
Last week, the Supreme Court of Ohio held that the state may use, in a completely unrelated case, information derived from a DNA sample acquired pursuant to a search warrant without seeking a new warrant. This result is not novel—indeed, a contrary outcome would have departed from the law elsewhere.
Nevertheless, the opinion in State v. Emerson presents a new wrinkle. After Dajuan Emerson was acquitted of the 2005 rape of a 7-year-old girl, his DNA profile somehow resided in the state’s convicted-offender database. Then, in 2007, 37-year-old Marnie Macon was stabbed 74 times in her apartment. (Ludlow 2012). Police recovered blood from a door handle. The DNA profile from this crime-scene sample (often called a “forensic sample”) was run against the state database. It matched Emerson’s profile from 2005. After the trial court denied a motion to suppress this match, the case went to trial and the jury found Emerson guilty of aggravated murder (and tampering with evidence). An Ohio District Court of Appeals affirmed, and the state supreme court affirmed that judgment.
The obvious questions are why the 2005 profile entered the convicted-offender database and whether the Fourth Amendment’s exclusionary rule for unreasonable searches or seizures applies to the resulting cold hit. The Ohio Supreme Court’s analysis of these issues is a little odd. I shall quickly run through the opinion, indicating the oddities.
What is an allele?
The first peculiarity is ultimately of no moment, but I’ll mention it anyway because it shows the continuing inability of too many judges (or the recent law school graduates who are their clerks) to consult suitable scientific references. According to the opinion, “[a] DNA profile consists of a series of numbers that represent different alleles that are present at different locations on the DNA” and “[a]n allele is defined as ‘either of a pair of genes located at the same position on both members of a pair of chromosomes and conveying characters [sic] that are inherited in accordance with Mendelain [sic] law.’ Webster’s New World Dictionary, Third College Edition 36 (1988).”
The alleles used in modern DNA databases are not parts of genes. (Well, some of them are meaningless variations within introns, but even those do not “convey characters” as the classical definition from Webster’s would require.) Perhaps judges should not be criticized for thinking that the word “allele” always refers to genes. To denote variations in DNA sequences that are not the allelotypes of genes, forensic scientists themselves borrowed from the terminology for genes, inviting such confusion. (Kaye 2010). But there are many reasonably accurate explanations of forensic STR “alleles” in the legal and forensic science literature. Consequently, there is little excuse using the inapt dictionary definition. Fortunately, this error does not affect anything else in the opinion.
How did Emerson’s DNA profile get into a CODIS database?
The justices evinced little concern about the statutory violation that led to the fateful match in the case. In fact, the unanimous opinion prominently denies that putting the profile of someone who was not convicted into the state and national databases (SDIS and NDIS) for future trawls departed from Ohio’s convicted-offender law.
The court reached this counter-intuitive result by relying on Black’s Law Dictionary:
The court’s theory that the Ohio legislature used the phrase “forensic casework” to cover every sample and profile “[u]sed in or suitable to courts of law or public debate” is astonishing. A convicted-offender database system has one set of so-called “forensic” profiles (that could link perpetrators to crimes) and another set of convicted-offender profiles (who might be found to be the perpetrators of the unsolved solves). The “forensic” profiles come from the unknown perpetrators of the crimes. They can be matched, if possible, against the convicted offenders’ profiles (and among one another to identify serial crimes). Neither they nor the convicted-offender database was intended to house profiles from specific suspects who never were found guilty of a qualifying crime. Thus, the state had no convincing legal basis for uploading Emerson’s profile to SDIS and NDIS—and the court should not have approved of such misconduct.
Nonetheless, the statutory violation does not justify excluding the cold hit under the Fourth Amendment. The U.S. Supreme Court has not been kind to the exclusionary rule in recent years. As Emerson observes, it has held that a violation of a state statute does not make a search constitutionally unreasonable.
Did Emerson lack standing to complain of a Fourth Amendment violation?
The Emerson opinion contains a third error. The court holds “that a person does not have standing to object to the retention of his or her DNA profile or to the profile’s use in a subsequent criminal investigation.” This misrepresents the meaning of “standing.” In the Fourth Amendment context, the standing requirement bars “attempts to vicariously assert violations of the Fourth Amendment rights of others.” United States v. Salvucci, 448 U.S. 83, 86 (1980). Thus, in Salvucci, police searched an apartment rented by a defendant’s mother and found checks that her son had stolen from the mails. In his prosecution for possession of stolen mail, the son lacked standing to complain the search violated the mother’s interest in the privacy of her apartment.
In Emerson, the defendant never argued that the cold hit violated someone else’s rights. He argued that it violated his right to be free from unreasonable searches because he had a legitimate expectation of privacy in his DNA profile retained by the state. He surely had standing to raise that claim, and the court references to “standing” are superfluous and confused.
Was the retention of the profile and the trawl of the database a search or seizure?
At last, we come to the dispositive issue in the case—was any Fourth Amendment interest of Emerson’s violated by the retention of his profile and the trawl of the database? The court held—correctly, I believe—that Emerson had no such interest. The state acquired the DNA sample in 2005 pursuant to a search warrant of unchallenged validity. Laboratory analysis of the sample was not a separate search, but the very reason for the search warrant. Simply keeping the identifying profile and looking to see whether it matched new profiles in the “forensic index,” as the FBI calls them, does not rise to the level of new search. Once the government legitimately acquires information pursuant to a search warrant, it need not toss out and forget about that information if it cannot secure a conviction. In later investigations and prosecutions, it can use what it finds in the fully authorized and entirely legitimate search.
Obviously, the situation would be otherwise if the original search were unreasonable. Then the evidence should be excluded to vindicate the defendant’s right to be free from unreasonable searches and seizures. But it would be worse than pointless to exclude, on constitutional grounds, legitimately acquired evidence of guilt. This is the sound core of the reasoning in Emerson. Whether the defendant was acquitted in the case that generated the search warrant, whether he was convicted then, or whether he never was prosecuted in that case makes no difference. There is no constitutional reason to exclude evidence from a reasonable search.
In Boroian v. Mueller, a case that Emerson overlooks, the U.S. Court of Appeals for the First Circuit held that continued trawls of a database may continue even after an offender has completed his sentence. Emerson extends the reasoning of Boroian to an individual whose DNA profile should not have been in the database in the first place. But because the objection in that respect is entirely statutory, it does not change the result.
Of course, one can question the conclusion that trawling a database is not a separate search, and some commentators as well as some recent opinions on the constitutional of pre-conviction DNA sampling, analysis, and trawling have spoken of different steps in the process as if they were independent searches, each of constitutional magnitude. For reasons stated in Kaye (2011), however, I doubt that these claims are tenable. Despite the terminological and conceptual flaws in the opinion in Emerson, the Ohio Supreme Court reached the correct result.
United States v. Salvucci, 448 U.S. 83, 86 (1980)
Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010)
State v. Emerson, No. 2011-0486 (Ohio Nov. 1, 2012) (Slip Opinion No. 2012-Ohio-5047)
FBI, Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA Index System, http://www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet.
David H. Kaye, The Double Helix and the Law of Evidence (2010)
David H. Kaye, DNA Database Trawls and the Definition of a Search in Boroian v. Mueller, 97 Va. L. Rev. in Brief 41 (2011)
Randy Ludlow, Ohio Suspects' DNA Can Be Saved for Later Cases, Court Rules, Columbus Dispatch, Nov. 6, 2012
Cross-posted to The Double Helix Law Blog.
Nevertheless, the opinion in State v. Emerson presents a new wrinkle. After Dajuan Emerson was acquitted of the 2005 rape of a 7-year-old girl, his DNA profile somehow resided in the state’s convicted-offender database. Then, in 2007, 37-year-old Marnie Macon was stabbed 74 times in her apartment. (Ludlow 2012). Police recovered blood from a door handle. The DNA profile from this crime-scene sample (often called a “forensic sample”) was run against the state database. It matched Emerson’s profile from 2005. After the trial court denied a motion to suppress this match, the case went to trial and the jury found Emerson guilty of aggravated murder (and tampering with evidence). An Ohio District Court of Appeals affirmed, and the state supreme court affirmed that judgment.
The obvious questions are why the 2005 profile entered the convicted-offender database and whether the Fourth Amendment’s exclusionary rule for unreasonable searches or seizures applies to the resulting cold hit. The Ohio Supreme Court’s analysis of these issues is a little odd. I shall quickly run through the opinion, indicating the oddities.
What is an allele?
The first peculiarity is ultimately of no moment, but I’ll mention it anyway because it shows the continuing inability of too many judges (or the recent law school graduates who are their clerks) to consult suitable scientific references. According to the opinion, “[a] DNA profile consists of a series of numbers that represent different alleles that are present at different locations on the DNA” and “[a]n allele is defined as ‘either of a pair of genes located at the same position on both members of a pair of chromosomes and conveying characters [sic] that are inherited in accordance with Mendelain [sic] law.’ Webster’s New World Dictionary, Third College Edition 36 (1988).”
The alleles used in modern DNA databases are not parts of genes. (Well, some of them are meaningless variations within introns, but even those do not “convey characters” as the classical definition from Webster’s would require.) Perhaps judges should not be criticized for thinking that the word “allele” always refers to genes. To denote variations in DNA sequences that are not the allelotypes of genes, forensic scientists themselves borrowed from the terminology for genes, inviting such confusion. (Kaye 2010). But there are many reasonably accurate explanations of forensic STR “alleles” in the legal and forensic science literature. Consequently, there is little excuse using the inapt dictionary definition. Fortunately, this error does not affect anything else in the opinion.
How did Emerson’s DNA profile get into a CODIS database?
The justices evinced little concern about the statutory violation that led to the fateful match in the case. In fact, the unanimous opinion prominently denies that putting the profile of someone who was not convicted into the state and national databases (SDIS and NDIS) for future trawls departed from Ohio’s convicted-offender law.
The court reached this counter-intuitive result by relying on Black’s Law Dictionary:
Appellant is correct that R.C. 2901.07 does not support the inclusion of his profile in CODIS. However, the same cannot be said for R.C. 109.573. The superintendent of BCI is empowered to “establish and maintain a DNA database.” R.C. 109.573(B)(1)(b). “DNA database” is defined in part as “a collection of DNA records from forensic casework.” R.C. 109.573(A)(3). “Forensic” is defined as “[u]sed in or suitable to courts of law or public debate.” Black’s Law Dictionary 721 (9th Ed.2009). In this case, the police lawfully obtained the DNA sample in the course of the 2005 rape investigation. Therefore, the profile obtained from the sample is a record from forensic casework and is properly maintained in CODIS. Moreover, we note that neither R.C. 109.573 nor 2901.07 require that the state, on its own initiative, remove the DNA profile of a person who was acquitted at trial.Again, the failure to consult relevant sources for the actual terminology in the field is a gross mistake. Ohio Revised Code § 109.573(3) defines “DNA database” as
a collection of DNA records from forensic casework or from crime scenes, specimens from anonymous and unidentified sources, and records collected pursuant to sections 2152.74 and 2901.07 of the Revised Code and a population statistics database for determining the frequency of occurrence of characteristics in DNA records.(This is the current version. I am assuming the words are the same as they were in 2007.) The “records collected” under the enumerated sections pertained to “adjudicated delinquents” and to convicted offenders—not to mere suspects. The phrase “forensic casework or crime-scene samples” refers to DNA of unknown origin—from vaginal swabs, clothing, property, etc. As the FBI explains, “the DNA data that may be maintained at NDIS [consists of profiles from] convicted offender, arrestees, legal, detainees, forensic (casework), unidentified human remains, missing persons and relatives of missing persons.” (FBI, undated). There is no authorized category for sundry individuals whose DNA profiles have become known to the police for miscellaneous reasons. Ohio did not take DNA samples from arrestees or detainees until 2011. Under the Emerson court’s peculiar reading of the statute, police in Ohio could use the “abandoned DNA” ploy to acquire a profile from a person even without a warrant and upload it to the state and national databases.
The court’s theory that the Ohio legislature used the phrase “forensic casework” to cover every sample and profile “[u]sed in or suitable to courts of law or public debate” is astonishing. A convicted-offender database system has one set of so-called “forensic” profiles (that could link perpetrators to crimes) and another set of convicted-offender profiles (who might be found to be the perpetrators of the unsolved solves). The “forensic” profiles come from the unknown perpetrators of the crimes. They can be matched, if possible, against the convicted offenders’ profiles (and among one another to identify serial crimes). Neither they nor the convicted-offender database was intended to house profiles from specific suspects who never were found guilty of a qualifying crime. Thus, the state had no convincing legal basis for uploading Emerson’s profile to SDIS and NDIS—and the court should not have approved of such misconduct.
Nonetheless, the statutory violation does not justify excluding the cold hit under the Fourth Amendment. The U.S. Supreme Court has not been kind to the exclusionary rule in recent years. As Emerson observes, it has held that a violation of a state statute does not make a search constitutionally unreasonable.
Did Emerson lack standing to complain of a Fourth Amendment violation?
The Emerson opinion contains a third error. The court holds “that a person does not have standing to object to the retention of his or her DNA profile or to the profile’s use in a subsequent criminal investigation.” This misrepresents the meaning of “standing.” In the Fourth Amendment context, the standing requirement bars “attempts to vicariously assert violations of the Fourth Amendment rights of others.” United States v. Salvucci, 448 U.S. 83, 86 (1980). Thus, in Salvucci, police searched an apartment rented by a defendant’s mother and found checks that her son had stolen from the mails. In his prosecution for possession of stolen mail, the son lacked standing to complain the search violated the mother’s interest in the privacy of her apartment.
In Emerson, the defendant never argued that the cold hit violated someone else’s rights. He argued that it violated his right to be free from unreasonable searches because he had a legitimate expectation of privacy in his DNA profile retained by the state. He surely had standing to raise that claim, and the court references to “standing” are superfluous and confused.
Was the retention of the profile and the trawl of the database a search or seizure?
At last, we come to the dispositive issue in the case—was any Fourth Amendment interest of Emerson’s violated by the retention of his profile and the trawl of the database? The court held—correctly, I believe—that Emerson had no such interest. The state acquired the DNA sample in 2005 pursuant to a search warrant of unchallenged validity. Laboratory analysis of the sample was not a separate search, but the very reason for the search warrant. Simply keeping the identifying profile and looking to see whether it matched new profiles in the “forensic index,” as the FBI calls them, does not rise to the level of new search. Once the government legitimately acquires information pursuant to a search warrant, it need not toss out and forget about that information if it cannot secure a conviction. In later investigations and prosecutions, it can use what it finds in the fully authorized and entirely legitimate search.
Obviously, the situation would be otherwise if the original search were unreasonable. Then the evidence should be excluded to vindicate the defendant’s right to be free from unreasonable searches and seizures. But it would be worse than pointless to exclude, on constitutional grounds, legitimately acquired evidence of guilt. This is the sound core of the reasoning in Emerson. Whether the defendant was acquitted in the case that generated the search warrant, whether he was convicted then, or whether he never was prosecuted in that case makes no difference. There is no constitutional reason to exclude evidence from a reasonable search.
In Boroian v. Mueller, a case that Emerson overlooks, the U.S. Court of Appeals for the First Circuit held that continued trawls of a database may continue even after an offender has completed his sentence. Emerson extends the reasoning of Boroian to an individual whose DNA profile should not have been in the database in the first place. But because the objection in that respect is entirely statutory, it does not change the result.
Of course, one can question the conclusion that trawling a database is not a separate search, and some commentators as well as some recent opinions on the constitutional of pre-conviction DNA sampling, analysis, and trawling have spoken of different steps in the process as if they were independent searches, each of constitutional magnitude. For reasons stated in Kaye (2011), however, I doubt that these claims are tenable. Despite the terminological and conceptual flaws in the opinion in Emerson, the Ohio Supreme Court reached the correct result.
References
United States v. Salvucci, 448 U.S. 83, 86 (1980)
Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010)
State v. Emerson, No. 2011-0486 (Ohio Nov. 1, 2012) (Slip Opinion No. 2012-Ohio-5047)
FBI, Frequently Asked Questions (FAQs) on the CODIS Program and the National DNA Index System, http://www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet.
David H. Kaye, The Double Helix and the Law of Evidence (2010)
David H. Kaye, DNA Database Trawls and the Definition of a Search in Boroian v. Mueller, 97 Va. L. Rev. in Brief 41 (2011)
Randy Ludlow, Ohio Suspects' DNA Can Be Saved for Later Cases, Court Rules, Columbus Dispatch, Nov. 6, 2012
Cross-posted to The Double Helix Law Blog.
Sunday, 4 November 2012
Lies/Fibs, Damned Lies, and Experts/Statistics
Perhaps the most famous quotation about statistics is the most annoying—the one that Mark Twain mistakenly attributed to Benjamin Disraeli: “There are three kinds of lies: lies, damned lies, and statistics.” This tripartite classification of mendacity is quoted with great frequency (I won’t give a statistic) by writers criticizing some dubious statistic or other. For example, one self-styled “critical thinker” uncritically accepts the 19th-century British Prime Minister as the originator of the aphorism. [1]
According to Yale Law Librarian Fred Shapiro, “the first known use of the famous words ‘lies, damned lies, and statistics’ was quoted in the Leeds Mercury, June 29, 1892. The source was a speech by Arthur Balfour—yet another prime minister.” [2] But comparable words, often with “experts” in place of “statistics” appeared in print before then, and Balfour referred to it as “an old saying.” [3] The results of more sleuthing can be found on a webpage maintained at the University of York’s mathematics department’s website.
References
According to Yale Law Librarian Fred Shapiro, “the first known use of the famous words ‘lies, damned lies, and statistics’ was quoted in the Leeds Mercury, June 29, 1892. The source was a speech by Arthur Balfour—yet another prime minister.” [2] But comparable words, often with “experts” in place of “statistics” appeared in print before then, and Balfour referred to it as “an old saying.” [3] The results of more sleuthing can be found on a webpage maintained at the University of York’s mathematics department’s website.
References
- Jim Baird, How Statistics Can Lie: Are You Impressed by Remarkable Claims in Product Ads? Here's Why You Might Want to Be Skeptical, http://turf.unl.edu/extpresentationspdf/BairdStats.pdf
- Fred R. Shapiro, You Can Quote Them, Yale Alumni Mag., Sept.-Oct. 2012, at 56.
- Peter M Lee (?), Lies, Damned Lies and Statistics, July 19, 2012,http://www.york.ac.uk/depts/maths/histstat/lies.htm
Thursday, 1 November 2012
Who Is Nelson Acosta-Roque? (Part IV)
Despite a brief from 39 “Scientists and Scholars of Fingerprint Identification as Amici Curiae” questioning the telephonic testimony of a fingerprint analyst, the U.S. Court for the Ninth Circuit recently allowed a deportation order based on that testimony to stand. The unpublished per curiam opinion frames the issue as "whether substantial evidence supported the BIA's [Board of Immigration Appeals'] finding 'by clear and convincing evidence' that Mr. Acosta-Roque and Mr. Pecheca-Aromboles [who was convicted in 1991 of delivery of a controlled substance in Pennsylvania] are the same person." The brief opinion concludes that "Mr. Acosta-Roque has not shown that 'no reasonable factfinder' would find that the government proved by clear and convincing evidence that he was a criminal alien under [8 U.S.C.] § 1182(a)(2)."
The reasoning sandwiched between these statements is brief:
References
The reasoning sandwiched between these statements is brief:
[S]cientists and courts have regarded such evidence as reliable for upwards of a century. See United States v. Calderon-Segura, 512 F.3d 1104, 1108-09 (9th Cir. 2008). When, as here, the fingerprints “were exemplars taken under controlled circumstances and were complete, not fragmented,” fingerprint evidence is in fact highly reliable. Id. at 1109. Although the fingerprint examiner in this case may have been less than cautious in her testimony, the immigration judge and the BIA did not err in relying upon it, given the examiner’s experience and the fact that another technician corroborated the findings.The examiner in the case was unclear about how complete her identification was. How can the court conclude that an examination "is in fact highly reliable" just because an examiner says that the prints match? In effect, the court applied a presumption of reliability to the testimony--or at least enough of a presumption to make a cursorily presented but unquestioned opinion "substantial."
References
- Acosta-Roque v. Holder, No. 11-70705 (Oct. 24, 2012), http://www.ca9.uscourts.gov/datastore/memoranda/2012/10/24/11-70705.pdf
- http://for-sci-law-now.blogspot.com/2012/03/who-is-nelson-acosta-roque-part-i.html
- http://for-sci-law-now.blogspot.com/2012/06/who-is-nelson-acosta-roque-part-ii.html
- http://for-sci-law-now.blogspot.com/2012/06/who-is-nelson-acosta-roque-part-iii.html
Wednesday, 31 October 2012
Florida Trial Court Excludes the Opinion of a Latent Fingerprint Examiner — Maybe
Last week, Miami-Dade Circuit Court Judge Milton Hirsch issued an “order” stating that when the time comes in a burglary case, he will exercise his “common sense” to fulfill his “gatekeeping function” for scientific evidence under Florida law to prevent “excessive and unsupportable claims made by fingerprint examiners.” Order on Defendant's Motion in Limine, State v. Borrego, Nos. F12-101 & F12-7083, at 16 (Fla. Cir. Ct. Oct. 25, 2012) [cited as ODMIL]. One would not think that this promise would be horribly out of line.
Yet, the Miami Herald reported that outraged prosecutors now “vow to appeal” this “rare and controversial legal move.” David Ovalle, Miami-Dade Judge Rules Fingerprint Evidence Should Be Restricted, Miami Herald, Oct. 28, 2012. So what, exactly, is the shocking legal move here? Reviewing the three documents filed so far in the case, the judge's "order" looks more like a vague campaign pledge than a concrete judicial order amenable to interlocutory review.
The Defendant’s Motion
The defense asked for a specific ruling. It filed a pretrial motion for an order limiting the examiner’s testimony “to the similarities and dissimilarities he observed.” Defendant’s Motion in Limine, State v. Borrego, Nos. F12-101 & F12-7083 (Fla. Cir. Ct.) [cited as DMIL]. The ghost of U.S. District Court Judge Pollak’s perceptive (but then disowned) initial opinion in United States v. Llera Plaza rises just in time for Halloween. Andy Newman, Judge Rules Fingerprints Cannot Be Called a Match, N.Y. Times, Jan. 11, 2002.
In addition, the public defender asked for a series of “thou shalt nots. One would think that these would have been superfluous if the court made the first ruling. Nonetheless, the defense wanted an order prohibiting the analyst from speaking of a “match” or “identification,” and from stating his “level of confidence in his own testimony,” and from revealing or suggesting that a second examiner verified the match. DMIL at 2.
The defense did not rely on the general acceptance standard for scientific evidence that Florida follows. It could have. The Florida Supreme Court has applied the standard in a manner that resembles the direct inquiry into scientific validity mandated for federal courts in Daubert v. Merrell Dow Pharmaceuticals, and even a long history of use in police laboratories is not conclusive proof of general acceptance when a broader cross-section of the scientific community expresses doubts. David H. Kaye et al., The New Wigmore on Evidence: Expert Evidence (2d ed. 2011).
Instead of raising this threshold objection, however, the defense contended that a good fingerprint examiner is no better than a juror in forming a categorical opinion on the basis of the similarities and differences between an exemplar and a latent print DMIL at 2-3. This claim in highly problematic. Existing research may not be extensive, but it does support the view that trained examiners can outperform the laity. See Fingerprinting Error Rates Down Under, June 24, 2012.
Also implausibly, the defense argued that “match” necessarily means “absolute certainty” and somehow reached the conclusion that in recommending an end to testimony of “a source attribution to the exclusion of all others in the world,” DMIL at 4, the NIST report on latent fingerprinting supported the contention that no testimony about a “match” should be allowed. See Government-sponsored Report on Latent Fingerprint Work in Criminal Investigation and Prosecution, Feb. 18, 2012.
The defense advanced several other peculiar arguments. It maintained that the expert was unqualified to attribute a print to Borrego, even tentatively, because he lacked training or education in “population statistics or probabilities.” DMIL at 5. This qualifications argument has no force of its own. The real argument in this part of the public defender's memorandum is that fingerprint examiners do not follow the practice of DNA analysts of reporting probabilities “based on established scientific principles.” Id. at 6. A course in statistics and probability would not solve this problem. The gravamen of the complaint is not really the education of examiners. It is the practice of using personal judgment instead of a generally accepted statistical model.
Finally, the defense suggested, with no legal analysis, that “due process” and the “constitutional right to trial by jury, rather than trial by ‘expert’” justified “an order limiting Womack’s testimony to the parameters [sic] described herein.” Id at 8. In light of the normal opportunity to challenge excessive or dubious claims before a jury, however, the Fifth and Sixth Amendments do not add much, if anything, to the evidentiary argument.
The Prosecutor’s Reply
Rather than respond to any of these overblown arguments, the prosecution filed the State’s Motion to Disqualify Judge, State v. Borrego, Nos. F12-101 & F12-7083 (Fla. Cir. Ct. Oct. 15, 2012) [SMDJ]. (With unintended humor, the Miami Herald’s website refers to this as a “motion to rescue Judge Hirsch from the case.”) The motion stated that Judge Hirsch, in another case, had suggested that the prosecutor read his writings on fingerprint evidence and then said he would recuse himself if the state moved for his disqualification. On this basis, the prosecutor wrote that she entertained “a reasonable belief that Judge Hirsch will not be fair and impartial in ruling on any motions on fingerprint testimony.” SMDJ at 2.
Judge Hirsch was not swayed. He summarily denied the request. His Order Denying Motion to Disqualify Judge, State v. Borrego, Nos. F12-101 & F12-7083 (Fla. Cir. Ct. Oct. 25, 2012), is unedifying. But then again, the state’s theory that a judge must or should disqualify himself because he has written something on a subject or has stated a willingness to recuse himself in another case seems flimsy. These statements do not mean that a judge is incapable of making a fair ruling. Still, the state’s argument, if raised on appeal, might gain more traction if (as the Miami Herald reported) “Hirsch issued his order Thursday before prosecutors could write their reply to Borrego’s defense request to restrict the testimony of the fingerprint expert.”
The Order on the Fingerprint Testimony
The Order on Defendant’s Motion in Limine stretches across 17 pages. The court prepared and issued this sprawling “order” without a reply memorandum from the state. For that matter, neither does the document discuss the defendant’s argument about the education of the expert in probability and statistics. It surveys the history of science and scientific evidence, Florida’s adoption and application of the standard of general acceptance for such evidence, and a judge’s role in excluding evidence.
Then it turns to fingerprinting in literature and law. The court states that no problem arises when a fingerprint analyst merely displays the similarities and differences between two images. ODMIL at 13. This might be so if the examiner did not present himself as a forensic scientist, did not speak of the “science” of fingerprinting, did not refer to “the scientific method,” and insisted that he was present as little more than a photographer of images with no more skill than any juror to make the comparison. But even with all these fangs removed from the expert testimony, the admissibility of such testimony on ordinary relevance grounds is open to question. What intelligent use can jurors who know nothing about the variability of impressions of fingerprint features make of the images that are said to coincide sufficiently to be incriminating? Kaye et al., supra. Yet, the court seems to regard it as axiomatic that “[w]hen blow-ups, photographs, or other reproductions of fingerprints are admitted into evidence, the truth-seeking function of trials is advanced.” ODMIL at 14-15.
The Order castigates the most extreme testimony that fingerprint examiners once provided. Testimony that an identification can be made “to the exclusion of every other fingerprint in the history of the world” is “unsupportable.” Id. at 14. Testimony that “the error rate associated with their work, or with fingerprint examination in general, is zero” is“worse than wrong.” Id. Yet, the ensuing discussion of error rates from “human imperfections” is itself rather confused. The Order defines “error rate” as “false positives plus false negatives over total population.” ODMIL at 14. Whatever this means, it is not an “error rate” suitable for presentation to a jury. Kaye et al., supra. Moreover, contrary to the implication in the Order, it is not the “measurable error rate” used in “DNA analysis, the gold standard in forensic evidence.” Id. at 14. Like fingerprint examiners, DNA analysts do not normally present a rate of errors from “human imperfections,” and few of them would claim that human errors are impossible or never occur.
Thus, only this much of the Order is clear: The expert may not state that there is no chance at all that someone other than Radames Borrego left the fingerprints, that the association between Mr. Borrego and the latent prints is absolutely certain, or that mistakes are impossible. But beyond these limitations—which should be part of the profession’s own standards anyway—the Order is incredibly murky. It states that
The Bottom Line
So what do the 17 pages mean for the “thousand nuances and gradations” of testimony that are the subject of allusion rather than analysis? Would a description of relevant features followed by a qualitative statement of likelihoods be acceptable? Cf. Going South with Shoeprint Testimony, July 14, 2012. How about a statement that Mr. Borrego cannot be excluded as the source, although most people could be? Would the judge's "common sense" allow the observation that the prints in question are far more consistent with each other than randomly selected ones? May the examiner opine that the prints “match” as that term is used in the field, while adding that this match does not mean no one else in the world also might have a finger that would produce a matching image? Cf. Who Is Nelson Acosta-Roque? (Part III).
The operative part of the Order is not helpful here. It reads, “Defendant's motion in limine is respectfully GRANTED only to the extent of the foregoing order” ODMIL at 16. It is fine to enliven opinions with poetry, as this one does, but some precision in evidentiary rulings would be more useful to the parties.
Yet, the Miami Herald reported that outraged prosecutors now “vow to appeal” this “rare and controversial legal move.” David Ovalle, Miami-Dade Judge Rules Fingerprint Evidence Should Be Restricted, Miami Herald, Oct. 28, 2012. So what, exactly, is the shocking legal move here? Reviewing the three documents filed so far in the case, the judge's "order" looks more like a vague campaign pledge than a concrete judicial order amenable to interlocutory review.
The Defendant’s Motion
The defense asked for a specific ruling. It filed a pretrial motion for an order limiting the examiner’s testimony “to the similarities and dissimilarities he observed.” Defendant’s Motion in Limine, State v. Borrego, Nos. F12-101 & F12-7083 (Fla. Cir. Ct.) [cited as DMIL]. The ghost of U.S. District Court Judge Pollak’s perceptive (but then disowned) initial opinion in United States v. Llera Plaza rises just in time for Halloween. Andy Newman, Judge Rules Fingerprints Cannot Be Called a Match, N.Y. Times, Jan. 11, 2002.
In addition, the public defender asked for a series of “thou shalt nots. One would think that these would have been superfluous if the court made the first ruling. Nonetheless, the defense wanted an order prohibiting the analyst from speaking of a “match” or “identification,” and from stating his “level of confidence in his own testimony,” and from revealing or suggesting that a second examiner verified the match. DMIL at 2.
The defense did not rely on the general acceptance standard for scientific evidence that Florida follows. It could have. The Florida Supreme Court has applied the standard in a manner that resembles the direct inquiry into scientific validity mandated for federal courts in Daubert v. Merrell Dow Pharmaceuticals, and even a long history of use in police laboratories is not conclusive proof of general acceptance when a broader cross-section of the scientific community expresses doubts. David H. Kaye et al., The New Wigmore on Evidence: Expert Evidence (2d ed. 2011).
Instead of raising this threshold objection, however, the defense contended that a good fingerprint examiner is no better than a juror in forming a categorical opinion on the basis of the similarities and differences between an exemplar and a latent print DMIL at 2-3. This claim in highly problematic. Existing research may not be extensive, but it does support the view that trained examiners can outperform the laity. See Fingerprinting Error Rates Down Under, June 24, 2012.
Also implausibly, the defense argued that “match” necessarily means “absolute certainty” and somehow reached the conclusion that in recommending an end to testimony of “a source attribution to the exclusion of all others in the world,” DMIL at 4, the NIST report on latent fingerprinting supported the contention that no testimony about a “match” should be allowed. See Government-sponsored Report on Latent Fingerprint Work in Criminal Investigation and Prosecution, Feb. 18, 2012.
The defense advanced several other peculiar arguments. It maintained that the expert was unqualified to attribute a print to Borrego, even tentatively, because he lacked training or education in “population statistics or probabilities.” DMIL at 5. This qualifications argument has no force of its own. The real argument in this part of the public defender's memorandum is that fingerprint examiners do not follow the practice of DNA analysts of reporting probabilities “based on established scientific principles.” Id. at 6. A course in statistics and probability would not solve this problem. The gravamen of the complaint is not really the education of examiners. It is the practice of using personal judgment instead of a generally accepted statistical model.
Finally, the defense suggested, with no legal analysis, that “due process” and the “constitutional right to trial by jury, rather than trial by ‘expert’” justified “an order limiting Womack’s testimony to the parameters [sic] described herein.” Id at 8. In light of the normal opportunity to challenge excessive or dubious claims before a jury, however, the Fifth and Sixth Amendments do not add much, if anything, to the evidentiary argument.
The Prosecutor’s Reply
Rather than respond to any of these overblown arguments, the prosecution filed the State’s Motion to Disqualify Judge, State v. Borrego, Nos. F12-101 & F12-7083 (Fla. Cir. Ct. Oct. 15, 2012) [SMDJ]. (With unintended humor, the Miami Herald’s website refers to this as a “motion to rescue Judge Hirsch from the case.”) The motion stated that Judge Hirsch, in another case, had suggested that the prosecutor read his writings on fingerprint evidence and then said he would recuse himself if the state moved for his disqualification. On this basis, the prosecutor wrote that she entertained “a reasonable belief that Judge Hirsch will not be fair and impartial in ruling on any motions on fingerprint testimony.” SMDJ at 2.
Judge Hirsch was not swayed. He summarily denied the request. His Order Denying Motion to Disqualify Judge, State v. Borrego, Nos. F12-101 & F12-7083 (Fla. Cir. Ct. Oct. 25, 2012), is unedifying. But then again, the state’s theory that a judge must or should disqualify himself because he has written something on a subject or has stated a willingness to recuse himself in another case seems flimsy. These statements do not mean that a judge is incapable of making a fair ruling. Still, the state’s argument, if raised on appeal, might gain more traction if (as the Miami Herald reported) “Hirsch issued his order Thursday before prosecutors could write their reply to Borrego’s defense request to restrict the testimony of the fingerprint expert.”
The Order on the Fingerprint Testimony
The Order on Defendant’s Motion in Limine stretches across 17 pages. The court prepared and issued this sprawling “order” without a reply memorandum from the state. For that matter, neither does the document discuss the defendant’s argument about the education of the expert in probability and statistics. It surveys the history of science and scientific evidence, Florida’s adoption and application of the standard of general acceptance for such evidence, and a judge’s role in excluding evidence.
Then it turns to fingerprinting in literature and law. The court states that no problem arises when a fingerprint analyst merely displays the similarities and differences between two images. ODMIL at 13. This might be so if the examiner did not present himself as a forensic scientist, did not speak of the “science” of fingerprinting, did not refer to “the scientific method,” and insisted that he was present as little more than a photographer of images with no more skill than any juror to make the comparison. But even with all these fangs removed from the expert testimony, the admissibility of such testimony on ordinary relevance grounds is open to question. What intelligent use can jurors who know nothing about the variability of impressions of fingerprint features make of the images that are said to coincide sufficiently to be incriminating? Kaye et al., supra. Yet, the court seems to regard it as axiomatic that “[w]hen blow-ups, photographs, or other reproductions of fingerprints are admitted into evidence, the truth-seeking function of trials is advanced.” ODMIL at 14-15.
The Order castigates the most extreme testimony that fingerprint examiners once provided. Testimony that an identification can be made “to the exclusion of every other fingerprint in the history of the world” is “unsupportable.” Id. at 14. Testimony that “the error rate associated with their work, or with fingerprint examination in general, is zero” is“worse than wrong.” Id. Yet, the ensuing discussion of error rates from “human imperfections” is itself rather confused. The Order defines “error rate” as “false positives plus false negatives over total population.” ODMIL at 14. Whatever this means, it is not an “error rate” suitable for presentation to a jury. Kaye et al., supra. Moreover, contrary to the implication in the Order, it is not the “measurable error rate” used in “DNA analysis, the gold standard in forensic evidence.” Id. at 14. Like fingerprint examiners, DNA analysts do not normally present a rate of errors from “human imperfections,” and few of them would claim that human errors are impossible or never occur.
Thus, only this much of the Order is clear: The expert may not state that there is no chance at all that someone other than Radames Borrego left the fingerprints, that the association between Mr. Borrego and the latent prints is absolutely certain, or that mistakes are impossible. But beyond these limitations—which should be part of the profession’s own standards anyway—the Order is incredibly murky. It states that
a trial court must ... protect the integrity of the truth-seeking function from pollution and misdirection due to excessive and unsupportable claims made by fingerprint examiners. For a fingerprint witness to testify, "I direct the jury's attention to the arch appearing here, and the loop appearing here" is one thing; for a fingerprint witness to testify, "I have concluded that this fingerprint matches that of the defendant to the exclusion of all other fingerprints in the history of the world" is a very different thing. And in between these two very different things lie a thousand nuances and gradations of testimony. The trial judge must apply Frye, and Ramirez [a Florida Supreme Court case excluding testimony not generally accepted among toolmark analysts about the marks on cartilage], and his gatekeeping function, and his common sense, to each one of them when and as they are offered in evidence. [¶] And that is exactly what I intend to do at the trial of the case at bar.Id. at 16.
The Bottom Line
So what do the 17 pages mean for the “thousand nuances and gradations” of testimony that are the subject of allusion rather than analysis? Would a description of relevant features followed by a qualitative statement of likelihoods be acceptable? Cf. Going South with Shoeprint Testimony, July 14, 2012. How about a statement that Mr. Borrego cannot be excluded as the source, although most people could be? Would the judge's "common sense" allow the observation that the prints in question are far more consistent with each other than randomly selected ones? May the examiner opine that the prints “match” as that term is used in the field, while adding that this match does not mean no one else in the world also might have a finger that would produce a matching image? Cf. Who Is Nelson Acosta-Roque? (Part III).
The operative part of the Order is not helpful here. It reads, “Defendant's motion in limine is respectfully GRANTED only to the extent of the foregoing order” ODMIL at 16. It is fine to enliven opinions with poetry, as this one does, but some precision in evidentiary rulings would be more useful to the parties.
References
- Order on Defendant's Motion in Limine, State v. Borrego, Nos. F12-101 & F12-7083 (Fla. Cir. Ct. Oct. 25, 2012)
- Order Denying Motion to Disqualify Judge, State v. Borrego, Nos. F12-101 & F12-7083 (Fla. Cir. Ct. Oct. 25, 2012)
- Defendant’s Motion in Limine, State v. Borrego, Nos. F12-101 & F12-7083 (Fla. Cir. Ct.)
- State’s Motion to Disqualify Judge, State v. Borrego, Nos. F12-101 & F12-7083 (Fla. Cir. Ct. Oct. 15, 2012)
- David H. Kaye et al., The New Wigmore on Evidence: Expert Evidence (2d ed. 2011)
- David Ovalle, Miami-Dade Judge Rules Fingerprint Evidence Should Be Restricted, Miami Herald, Oct. 28, 2012, http://www.miamiherald.com/2012/10/28/v-fullstory/3071658/miami-dade-judge-rules-fingerprint.html
- Fingerprinting Error Rates Down Under, June 24, 2012, http://for-sci-law-now.blogspot.com/2012/06/fingerprinting-error-rates-down-under.html
- Going South with Shoeprint Testimony, July 14, 2012, http://for-sci-law-now.blogspot.com/2012/07/going-south-with-shoeprint-testimony.html
- Who Is Nelson Acosta-Roque? (Part III). http://for-sci-law-now.blogspot.com/2012/06/who-is-nelson-acosta-roque-part-iii.html
- Government-sponsored Report on Latent Fingerprint Work in Criminal Investigation and Prosecution, Feb. 18, 2012, http://for-sci-law-now.blogspot.com/2012/02/government-funded-report-on-latent.html
Acknowledgments: Thanks to Professor Joelle Moreno for calling the case to my attention.
Wednesday, 17 October 2012
More on Semrau: The Other Daubert Factors
In United States v. Semrau, the U.S. Court of Appeals for the Sixth Circuit upheld the exclusion of a defendant’s “unilateral” fMRI testing for conscious deception. Previously, I focused on the court’s discussion of error rates. Known error rates implicate admissibility under both Federal Rule of Evidence 702 and Federal Rule 703. (Rule 702 is the locus of the scientific validity standard adopted in Daubert v. Merrell Dow Pharmaceutics, and Rule 703 states the common law, ad hoc balancing test for virtually all evidence.) I do not think the opinion is as clear as it could have been on which error rate pertained to what. Nevertheless, it is encouraging that the court recognized that two parameters are necessary to describe the accuracy of a procedure that classifies items or people into two categories (liar or truth teller).
But Daubert's list of factors extends beyond error rates, and the Semrau court’s handling of the other Daubert subissues also merits a mixed review. First, the court suggested that fMRI lie detection satisfied Daubert’s criteria for testing and peer review. It referred to “several factors in Dr. Semrau's favor,” namely:
The court came closer to addressing the true Daubert issue of whether peer reviewed publications, considered as a whole, validate a technique or theory when it responded to defendant’s argument that the district court was overly concerned with the realism of validity studies. In that context, the court of appeals quoted the caveat in one fMRI study that:
Second, the court of appeals wrote that the “controlling standards factor” had not been satisfied because “[w]hile it is unclear from the testimony what the error rates are or how valid they may be in the laboratory setting, there are no known error rates for fMRI-based lie detection outside the laboratory setting, i.e., in the ‘real-world’ or ‘real-life’ setting.” But what does the realism of laboratory experiments have to do with the existence of a clear protocol for gathering and interpreting data? Naturally, if a test is not standardized, it is hard to ascertain its error rate—a point that has been prominent in debates over fingerprinting. And, if the tester departs slightly from the standard test protocol, the probative value of the test should be questioned under Rule 403. But the issue of external validity should not be confused with the issue of whether standards are in place for administering a test.
Finally, the court implied that without realistic field testing, there could be no general scientific acceptance of a method of lie detection in the forensic setting. This may be true, but all empirical studies pertain to particular times, places, and subjects. Deciding what generalizations are reasonable or generally accepted depends on understanding the phenomena in question. Can laboratory experiments alone show that certain factors tend to affect the accuracy of eyewitness identifications? For years, many experimental psychologists seemed willing to accept forensic applications of laboratory results that lacked complete realism. The ability of fingerprint examiners to match true pairs of prints and exclude false pairs of prints can be demonstrated in laboratory studies with artificially created pairs. Applying the error rates from such laboratory experiments to actual forensic setting could well be hazardous, but the experiments still prove that there is information that analysts can use to make valid judgments. In that situation, it is doubtful that raising the stakes of a judgment will render the technique invalid.
The Semrau court does not pinpoint the source of its discomfort with pure laboratory experiments. As we have just seen, a court should not assume that laboratory experiments never can establish validity of a technique as applied to casework. However, in the case of fingerprint identification, it seems clear enough that the prints do not change depending on whether they are deposited in the course of a crime or produced at another location. The fMRI data might well be different when generated under fully realistic circumstances. As a result, proving that there is detectable brain activity specific to conscious deception under low stakes conditions might not establish that the same pattern arises under high stakes conditions. Without a generally accepted theory of underlying mechanisms to justify extrapolations to the usual conditions of casework, low stakes laboratory findings may not suffice show general acceptance of validity under those conditions.
In sum, Semrau should not be read as establishing that the existence of testability carries any significant weight in favor of admission, that publication in a peer reviewed journal necessarily demonstrates validity, that a lack of complete realism in laboratory studies proves that there are no “controlling standards” in practice, or that only field studies can establish general acceptance.
These concerns about the wording of the opinion notwithstanding, the problem of generalizing from the laboratory studies to the conditions of the Semrau case are substantial, and the court’s conclusion is difficult to dispute.
But Daubert's list of factors extends beyond error rates, and the Semrau court’s handling of the other Daubert subissues also merits a mixed review. First, the court suggested that fMRI lie detection satisfied Daubert’s criteria for testing and peer review. It referred to “several factors in Dr. Semrau's favor,” namely:
“[T]he underlying theories behind fMRI-based lie detection are capable of being tested, and at least in the laboratory setting, have been subjected to some level of testing. It also appears that the theories have been subjected to some peer review and publication.” Semrau, 2010 WL 6845092, at *10. The Government does not appear to challenge these findings, although it does point out that the bulk of the research supporting fMRI research has come from Dr. Laken himself.The suggestion that these factors favor the defendant treats Daubert’s references to testing, peer review, and publication rather superficially. That a scientific theory is “capable of being tested” tells us almost nothing about the validity of the theory. The theory that in the year 2075, the moon will turn into a blob of green cheese is capable of being tested, but that does not help validate it today. Likewise, the mere existence of peer reviewed publications means nothing without examining the content of the publications and the reactions to them in the scientific literature.
The court came closer to addressing the true Daubert issue of whether peer reviewed publications, considered as a whole, validate a technique or theory when it responded to defendant’s argument that the district court was overly concerned with the realism of validity studies. In that context, the court of appeals quoted the caveat in one fMRI study that:
This study has several factors that must be considered for adequate interpretation of the results. Although this study attempted to approximate a scenario that was closer to a real-world situation than prior fMRI detection studies, it still did not equal the level of jeopardy that exists in real-world testing. The reality of a research setting involves balancing ethical concerns, the need to know accurately the participant's truth and deception, and producing realistic scenarios that have adequate jeopardy.... Future studies will need to be performed involving these populations.But even this mention of the content of one study does not explain why the experiments are inadequate to demonstrate validity. Why would it be harder to detect a lie that has grave consequences to the subject of the laboratory experiment or field study than one that has more trivial consequences?
Second, the court of appeals wrote that the “controlling standards factor” had not been satisfied because “[w]hile it is unclear from the testimony what the error rates are or how valid they may be in the laboratory setting, there are no known error rates for fMRI-based lie detection outside the laboratory setting, i.e., in the ‘real-world’ or ‘real-life’ setting.” But what does the realism of laboratory experiments have to do with the existence of a clear protocol for gathering and interpreting data? Naturally, if a test is not standardized, it is hard to ascertain its error rate—a point that has been prominent in debates over fingerprinting. And, if the tester departs slightly from the standard test protocol, the probative value of the test should be questioned under Rule 403. But the issue of external validity should not be confused with the issue of whether standards are in place for administering a test.
Finally, the court implied that without realistic field testing, there could be no general scientific acceptance of a method of lie detection in the forensic setting. This may be true, but all empirical studies pertain to particular times, places, and subjects. Deciding what generalizations are reasonable or generally accepted depends on understanding the phenomena in question. Can laboratory experiments alone show that certain factors tend to affect the accuracy of eyewitness identifications? For years, many experimental psychologists seemed willing to accept forensic applications of laboratory results that lacked complete realism. The ability of fingerprint examiners to match true pairs of prints and exclude false pairs of prints can be demonstrated in laboratory studies with artificially created pairs. Applying the error rates from such laboratory experiments to actual forensic setting could well be hazardous, but the experiments still prove that there is information that analysts can use to make valid judgments. In that situation, it is doubtful that raising the stakes of a judgment will render the technique invalid.
The Semrau court does not pinpoint the source of its discomfort with pure laboratory experiments. As we have just seen, a court should not assume that laboratory experiments never can establish validity of a technique as applied to casework. However, in the case of fingerprint identification, it seems clear enough that the prints do not change depending on whether they are deposited in the course of a crime or produced at another location. The fMRI data might well be different when generated under fully realistic circumstances. As a result, proving that there is detectable brain activity specific to conscious deception under low stakes conditions might not establish that the same pattern arises under high stakes conditions. Without a generally accepted theory of underlying mechanisms to justify extrapolations to the usual conditions of casework, low stakes laboratory findings may not suffice show general acceptance of validity under those conditions.
In sum, Semrau should not be read as establishing that the existence of testability carries any significant weight in favor of admission, that publication in a peer reviewed journal necessarily demonstrates validity, that a lack of complete realism in laboratory studies proves that there are no “controlling standards” in practice, or that only field studies can establish general acceptance.
These concerns about the wording of the opinion notwithstanding, the problem of generalizing from the laboratory studies to the conditions of the Semrau case are substantial, and the court’s conclusion is difficult to dispute.
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