D-R-A-F-T (not adopted; do not cite)

To: Council, Criminal Justice Section From: ABA Forensic Science Task Force Date: September 12, 2011 Re: Discovery: Lab Reports RESOLUTION: D-R-A-F-T (not adopted; do not cite) Resolved, That the American Bar Association urges federal, state, local and territorial governments to adopt pretrial discovery procedures requiring comprehensive and comprehensible laboratory reports, including the identification of (1) the procedures used in the analysis, (2) the results of the analysis, (3) the limitations of the procedure, (4) the identity, qualifications, and opinion of the analyst, and (5) the identity, qualifications, and contributions of others to the analyst s opinion. Task Force membership includes: Myrna Raeder (co-chair), Matt Redle (co-chair), Betty Layne DesPortes (defense attorney), Barry Fisher (retired lab director), The Honorable Ron Reinstein, and Paul Giannelli (reporter for this resolution). 1

REPORT Current ABA Discovery Standards provide for the discovery of expert testimony and scientific reports: Any reports or written statements of experts made in connection with the case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons. With respect to each expert whom the prosecution intends to call as a witness at trial, the prosecutor should also furnish to the defense a curriculum vitae and a written description of the substance of the proposed testimony of the expert, the expert s opinion, and the underlying basis of that opinion. 1 Although this Standard requires the disclosure of laboratory reports, it does not specify the content of the report. In contrast, the DNA Standards go much further and specify the contents of laboratory reports in detail and list types of discoverable materials. See Appendices A and B. This Resolution bridges the gap between the two standards. It applies whenever a lab report is required to be disclosed, including defense reports. Laboratory Reports Virtually all jurisdictions have comparable provisions. For example, Federal Rule 16(a)(1)(F) makes the results or reports of any physical or mental examination and of any scientific tests or experiments discoverable. Unfortunately, these rules do not specify the content of a laboratory report. 2 Melendez-Diaz v. Massachusetts illustrates the problem. According to the Supreme Court, the laboratory report in that case contained only the bare-bones statement that [t]he substance was found to contain: Cocaine. At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not 1 ABA STANDARDS FOR CRIMINAL JUSTICE, DISCOVERY AND TRIAL BY JURY Standard 11-2.1(a)(iv) (3d ed. 1996). 2 129 S. Ct. 2527 (2009). 2

have possessed. 3 In contrast, the Civil Rules require that the: report must contain: (i) a complete statement of all opinions the expert will express and the basis and reasons for them; (ii) the data or other information considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness s qualifications, including a list of all publications authored in the previous ten years; (v) a list of all other cases in which, during the previous four years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. 4 The bare-bones reports in criminal cases are a product of the adversary 5 system, not science. The Journal of Forensic Sciences, the official publication of the American Academy of Forensic Sciences, published a 6 symposium on the ethical responsibilities of forensic scientists in 1989. One article discussed a number of unacceptable laboratory reporting practices, including (1) preparation of reports containing minimal information in order not to give the other side ammunition for cross-examination, (2) reporting of findings without an interpretation on the assumption that if an interpretation is required it can be provided from the witness box, and (3) [o]mitting some 7 significant point from a report to trap an unsuspecting cross-examiner. 3 Id. at 2537 (citation omitted). Melendez-Diaz is important for another reason. The Court appeared to approve at least some types of notice-and-demand statutes. Such statutes require defense counsel demand the presence of the analyst, once notified that the prosecution intends to introduce a laboratory report. Defense counsel, however, cannot intelligently waive the presence of the analyst unless counsel understands details of the analysis. 4 FED. R. CIV. P. 26(a)(2)(B)(i)-(vi). 5 As one scientist has observed: For a report from a crime laboratory to be deemed competent, I think most scientists would require it to contain a minimum of three elements: (a) a description of the analytical techniques used in the test requested by the government or other party, (b) the quantitative or qualitative results with any appropriate qualifications concerning the degree of certainty surrounding them, and (c) an explanation of any necessary presumptions or inferences that were needed to reach the conclusions. Professor Anna Harrison, Mount Holyoke College, Symposium on Science and The Rules of Legal Procedure, 101 F.R.D. 599, 632 (1984). 6 Joseph L. Peterson, Symposium: Ethical Conflicts in the Forensic Sciences, 34 J. FORENSIC SCI. 717-93 (1989). 7 Douglas M. Lucas, The Ethical Responsibilities of the Forensic Scientist: Exploring the Limits, 34 J. FORENSIC SCI. 719, 724 (1989). Lucas was the Director, Centre of Forensic Sciences, Ministry of the Solicitor General, Toronto, Ontario. 3

These practices could be curbed, if not eliminated, by requiring comprehensive laboratory reports. Comprehensive Reports In general, the report should be sufficiently comprehensive so that an independent expert can identify the process used and the conclusions reached. The commentary to the DNA Standards explain: DAB and CODIS Standards require reports to include (1) a case identifier, (2) a description of evidence examined, (3) a description of the methodology, (4) the locus tested, (5) the results and /or conclusions, (6) an interpretative statement (either quantitative or qualitative), (7) the date issued, (8) the disposition of evidence, and (9) a signature and title, or equivalent identification, of the person(s) 8 accepting responsibility of the content of the reports. The commentary goes on to state that: ASCLD requires laboratory reports to include (1) an accurate summary of significant material contained in the case notes, (2) interpretive information as well as examination results wherever possible, and (3) identification of the analyst(s) and, if appropriate, the testing methodology. 9 The National Academy of Sciences 2009 report on forensic science commented on the issue: As a general matter, laboratory reports generated as the result of a scientific analysis should be complete and thorough. They should contain, at minimum, methods and materials, procedures, results, conclusions, and, as appropriate, sources and magnitudes of uncertainty in the procedures and conclusions (e.g., levels of confidence). Some forensic science laboratory reports meet this standard of reporting, but many do not. Some reports contain only identifying and agency information, a brief description of the evidence being submitted, a brief description of the types of analysis requested, and a short statement of the results (e.g., the greenish, brown plant 8 ABA STANDARDS FOR CRIMINAL JUSTICE, DNA EVIDENCE Standard 16-3.3 cmt. at 73. See also DAB Standard 11.1.2 (1998); CODIS Standards for Forensic DNA Testing Laboratories Standards 11.1.2. 9 DNA STANDARDS, supra note 8, at cmt. at 73. 4

Limitations material in item #1 was identified as marijuana ), and they include no mention of methods or any discussion of measurement uncertainties. 10 In addition, the report should contain an express statement of the limitations of the technique. A National Academies 2004 report on bullet lead addressed this issue: The conclusions in laboratory reports should be expanded to include the limitations of compositional analysis of bullet lead evidence. In particular, a further explanatory comment should accompany the laboratory conclusions to portray the limitations of the evidence..... Finally, measurement data (means and standard deviations) for all of the crime scene bullets and those deemed to match should be included. 11 The National Academy of Sciences 2009 report on forensic science also addressed this issue. Reports must include clear characterizations of the limitations of the analyses, including measures of uncertainty in reported results and associated estimated probabilities where possible. 12 Comprehensible The National Academies 2004 report on bullet lead noted that a section of the laboratory report translating the technical conclusions into language that a jury could understand would greatly facilitate the proper use of this evidence in the criminal justice system. 13 The DNA Standards contain a comparable provision. The commentary to Standard 16-3.3(c) explains: This Standard requires that a section of the laboratory report translate the scientific result into language that a nonscientist would understand. The purpose of forensic DNA testing is to assist the criminal justice system in fulfilling its function to convict the guilty and exonerate the innocent. Accordingly, participants in the system 10 NATIONAL RESEARCH COUNCIL, NATIONAL ACADEMY OF SCIENCES, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: THE PATH FORWARD 21 (2009) [hereinafter NRC FORENSIC SCIENCE REPORT] 11 NATIONAL RESEARCH COUNCIL, NATIONAL ACADEMY OF SCIENCES, FORENSIC ANALYSIS: WEIGHING BULLET LEAD EVIDENCE 110-11 (2004) [hereinafter WEIGHING BULLET LEAD EVIDENCE]. 12 NRC FORENSIC SCIENCE REPORT, supra note 10, at 21-22. 13 WEIGHING BULLET LEAD EVIDENCE, supra note 11, at 110-11. 5

need to understand the significance of the test results. Overworked prosecutors and defense attorneys do not always have time to sort through data in order to appreciate the probative value of the lab analysis. They will, in any case, find a comprehensible summary useful in consulting with and questioning persons with greater expertise than they possess. Jurors may also welcome a written summary that they can understand without translation by an expert. Nobody is in a better position to summarize the results for the participants than the examiners themselves. 14 Related ABA Policy This resolution does not address a number of other issues relating to expert testimony. First, a common complaint of experts is that attorneys do not sufficiently consult with them before trial. Both the ABA Mental Health 15 16 and DNA Standards contain provisions on an attorney s duty to prepare an expert for trial, and the Model Rules make competence the first principle of 17 professional representation, which implies such preparation. Second, trial attorneys should be permitted, if not encouraged, to interview all experts in advance of trial. ABA Model Rule 3.4(f) provides that [a] lawyer shall not:... (f) request a person other than a client to refrain from 18 voluntarily giving relevant information to another party unless.... Due 14 DNA STANDARDS, supra note 8, at Standard 16-3.3(c) cmt. at 75. 15 ABA STANDARDS FOR CRIMINAL JUSTICE, MENTAL HEALTH, Standard 7-3.14 (1989) ( An attorney intending to call an expert witness should assist the expert in preparing for trial. ). 16 DNA EVIDENCE, supra note 8, Standard 16-5.3(e) (3d ed. 2007). 17 See MODEL RULE S OF PROF L CONDUCT R. 1.1 (5th ed. 2003) ( A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. ). 18 Id. at R. 3.4(f). See also ABA STANDARDS FOR CRIMINAL JUSTICE, PROSECUTION FUNCTION AND DEFENSE FUNCTION 4 3-3.1(d) (3d ed. 1993) ( A prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel. A prosecutor should not advise any person or cause any person to be advised to decline to give to the defense information which such a person has the right to give. ). See also id. Standard 4-4.3(d) (defense counsel). 6

19 process concerns are also implicated in this context. The opportunity to interview experts prior to trial is often necessary to pretrial preparation. Third, prosecutors have an obligation to ensure that crime laboratories 20 under Brady. ABA policy reflects this duty: Ensure that law enforcement agencies, laboratories and other experts understand their obligations to inform prosecutors about exculpatory or mitigating evidence. 21 Conclusion In addition to due process concerns, comprehensive discovery serves several other purposes. First, by ensuring that the examiner has followed the prescribed procedure and by permitting external review, full discovery is a quality control mechanism. Second, such discovery assists attorneys in preparing for trial and thus renders effective representation. Third, defense counsel s decision to seek appointment of a defense expert often requires a preliminary assessment by an expert. An expert might be willing to offer such an assessment, based upon the information contained in a comprehensive, without compensation. 19 See United States v. White, 454 F.2d 435, 438-39 (7th Cir. 1971) ( [W]itnesses to a crime are the property of neither the prosecution nor the defense and... both sides have an equal right and should have an equal opportunity to interview them.... ); Gregory v. United States, 369 F.2d 185, 188 (D.C. Cir. 1966) ( A criminal trial, like its civil counterpart, is a quest for truth. That quest will more often be successful if both sides have an equal opportunity to interview the persons who have the information from which the truth may be determined. ). 20 In Kyles, the Supreme Court wrote: [T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government s behalf in the case, including the police. 514 U.S. 419, 437 (1995). Other courts have explicitly extended the Brady obligation to crime laboratories. For example, the California Supreme Court has written: The prosecutor acknowledged the lab worked closely with the District Attorney s Office in assisting it in the prosecution of cases ; and there is no serious dispute that in these circumstances it was part of the investigative team. The prosecutor thus had the obligation to determine if the lab s files contained any exculpatory evidence, such as the worksheet, and disclose it to petitioner. In re Brown, 952 P.2d 715, 719 (Cal. 1998). Similarly, a federal district court has observed that an expert, as an experienced crime lab technician, must have known of his legal obligation to disclose exculpatory evidence to the prosecutors, their obligation to pass it along to the defense, and his obligation not to cover up a Brady violation by perjuring himself. Charles v. City of Boston, 365 F. Supp. 2d 82, 89 (D. Mass. 2005). 21 ABA House of Delegates adopted Resolution 111F at its August 2004 annual meeting. See REPORT OF THE ABA CRIMINAL JUSTICE SECTION S AD HOC INNOCENCE COMMITTEE TO ENSURE THE INTEGRITY OF THE CRIMINAL PROCESS, ACHIEVING JUSTICE: FREEING THE INNOCENT, CONVICTING THE GUILTY 99 (Paul C. Giannelli & Myrna Raeder eds. 2006). 7

Appendix A DNA Evidence Standard 16-3.3 Laboratory reports (a) A summary of all DNA testing and data interpretation should be recorded promptly in a report. (b) The report should be sufficiently comprehensive so that an independent expert can identify the process used and the conclusions reached. Specifically, the report should include: (i) what was tested, (ii) who conducted the testing, (iii) identification of the protocol used in the testing and any deviation from the protocol, (iv) the data and results produced by the testing or data interpretation, (v) the examiner s interpretation of the results and conclusions therefrom, (vi) the method and results of any statistical computation, and (vii) any additional information that could bear on the validity of the test results, interpretation or opinion. (c) A separate section of the report should explain the test results, interpretation and opinion in language comprehensible to a layperson. 8

Appendix B DNA Evidence Standard 16-4.1 Disclosure (a) The prosecutor should be required, within a specified and reasonable time prior to trial, to make available to the defense the following information and material relating to DNA evidence: (i) laboratory reports as provided in Standard 16-3.3; (ii) if different from or not contained in any laboratory report, a written description of the substance of the proposed testimony of each expert, the expert s opinion, and the underlying basis of that opinion; (iii) the laboratory case file and case notes; (iv) a curriculum vitae for each testifying expert and for each person involved in the testing; (v) the written material specified in Standard 16-3.1(a); (vi) reports of all proficiency examinations of each testifying expert and each person involved in the testing, with further information on proficiency testing discoverable on a showing of particularized need; (vii) the chain of custody documents specified in Standard 16-2.5; (viii) all raw electronic data produced during testing; (ix) reports of laboratory contamination and other laboratory problems affecting testing procedures or results relevant to the evaluation of the procedures and test results obtained in the case and corrective actions taken in response; and (x) a list of collected items that there is reason to believe contained DNA evidence but have been destroyed or lost, or have otherwise become unavailable; (xi) material or information within the prosecutor s possession or control, including laboratory information or material, that would tend to negate the guilt of the defendant or reduce the punishment of the defendant. (b) The defense should be required, within a specified and reasonable time prior to trial, to make available to the prosecution the information and material in subdivision (a)(i) through (ix) of this standard for each expert whose testimony the defense intends to offer. 9