Thoughts on Criminal Defense and Forensics

Dr. Sliter’s presentation on forensics was both enlightening and thought-provoking. In addition to his advice that, as attorneys, we should be attuned to differences among laboratories with regard to instrumentation, DNA kits, and interpretation standards, it may be worth mentioning that defense attorneys should feel out whether there is any bias by lab workers or expert witnesses from the lab by virtue of a relationship with the DA’s office. Because it’s likely that the DA’s office will hire the same expert witness(es) time and time again, a relationship between the prosecutors and the expert witness can feasibly occur, which can potentially lead to bias against defendants or even misconduct. (The risk of this is obviously higher in smaller counties). In cross-examination, defense attorneys can and should explore this possibility before the jury if there is reason to do so. For example, the defense attorney can always ask the expert witness if he/she was ever told by the prosecutors what to say or do, specifically before trial or during recess.

On a more general note about bias, in the state of Texas, the Texas DPS Crime Laboratory System claims to consist of independent, accredited labs but also claim that it is a state system. Their webpage, which is part of the Texas Department of Public Safety’s website, explains that “[t]he Texas DPS Crime Laboratory system is the largest state system that has undergone this level of accreditation.” (Emphasis added). The laboratories work directly with law enforcement officers and prosecutors to have evidence worked. It could be argued that these laboratories are actually an arm of the state rather than independent entities in and of themselves, thus making the process fundamentally unfair to defendants.

Here’s a link to the Crime Lab site:

http://www.txdps.state.tx.us/CrimeLaboratory/index.htm

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2 thoughts on “Thoughts on Criminal Defense and Forensics

  1. It sounds like you doubt Dr. Sliter’s assertion that, even though the lab is state-funded, it is independent and objective. So simply physically separating the lab from law enforcement may be insufficient to achieve the asserted independence. It’s a bit of a double-edged sword, because, as it is, the lab often performs tests at lower costs than other commercial labs, and this benefits defendants who lack the funds for more expensive tests. Do you think there are other ways to keep costs low but ensure lab indepence and objectivity?

  2. Interestingly, I was in a position this summer to see this scenario play out in court. Based on some events there existed a reasonable suspicion of bias, so the defense attorney tried to have e-mails between the lab’s expert witness and the prosecutors subpoenaed. Ultimately, the attempt was unsuccessful due to work product doctine; however, nothing precluded defense counsel from exploring the potential bias on cross-examination to get around having been denied the e-mails.

    I agree completely that the state-accredited and state-funded lab issue is a double-edged sword. The State is shooting for effeciency in terms of cost and time, and that is absolutely necessary. Given the financial constraints, it is difficult to think of a better set up. Perhaps a non-monetary incentive for other labs to participate in questionable cases? Or maybe all that’s necessary is the awareness that (1) although they’re intended to be independent, the labs work very closely with law enforcement and DA’s offices; (2) people are people and the human element allows for even inadvertent bias; and (3) there are interests of several entities (the lab, prosecutors, defendant, State, etc.) involved. All I want to emphasize is that it cannot be assumed that this is a perfect design in which bias is an impossibility.

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