Amicus Curiae Brief — Jason Smith, Petitioner v. Arizona

No. 22-899

IN THE

Supreme Court of the United States

d

JASON SMITH ,

Petitioner,

—v.—

STATE OF ARIZONA ,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF ARIZONA, DIVISION ONE

BRIEF OF THE INNOCENCE NETWORK, FORENSIC

JUSTICE PROJECT, AND THE CENTER FOR

INTEGRITY IN FORENSIC SCIENCES, INC.,

AS AMICI CURIAE IN SUPPORT OF PETITIONER

JANIS C. PURACAL

BYRON C. LICHSTEIN

FORENSIC JUSTICE PROJECT

333 S.W. Taylor Street, Suite 400

Portland, Oregon 97204

(503) 664-3641

ANNA SORTUN

Counsel of Record

SAMANTHA TAYLOR

TONKON TORP, LLP

888 S.W. 5th Avenue, Suite 1600

Portland, Oregon 97204

(503) 802-2107

anna.sortun@tonkon.com

(Counsel continued on inside cover)

JAMIE T. LAU

CO-VICE PRESIDENT

INNOCENCE NETWORK

DUKE LAW WRONGFUL

CONVICTIONS CLINIC

210 Science Drive

Durham, North Carolina 27708

(919) 613-7764

LARA ZAROWSKY

CO-VICE PRESIDENT

INNOCENCE NETWORK

WASHINGTON INNOCENCE

PROJECT

P.O. Box 85869

Seattle, Washington 98145

(206) 636-9479

KATHERINE H. JUDSON

KEITH A. FINDLEY

CENTER FOR INTEGRITY IN

FORENSIC SCIENCES

33 East Main Street, Suite 400

Madison, Wisconsin 53703

(608) 736-2437

Counsel for Amici Curiae

i

Table of Contents

PAGE

Table of Authorities ..................................................... ii

I.

Interest of Amici Curiae....................................... 1

II.

Summary of Argument ........................................ 1

III. Argument .............................................................. 3

A. This Court has recognized the importance

of cross-examining the original forensic

analyst who performed the work.................... 3

B. Forensic evidence is uniquely powerful in

its ability to influence—and potentially

mislead—jurors and factfinders ..................... 4

C. Errors in forensic evidence, and the

various reasons for those errors, are now

well recognized ................................................ 6

D. Meaningful cross-examination can expose

problems .......................................................... 8

1. Cross-examination can expose fraud ...... 10

2. Cross-examination can expose

mistakes in the process ........................... 14

3. Cross-examination can expose bias ........ 17

IV. Conclusion .......................................................... 20

Appendix A: List of Amici Curiae ............................. 1a

ii

Table of Authorities

PAGE(S)

Cases

Bridgeman v. District Attorney for the Suffolk

District,

67 N.E.3d 673 (Mass. 2017) ................................. 10

Bullcoming v. New Mexico,

564 U.S. 647 (2011) .................................... 3, 14, 20

California v. Green,

399 U.S. 149 (1970) ................................................ 3

Committee for Public Counsel Services v. Attorney

General,

108 N.E.3d 966 (Mass. 2018) ............................... 10

Crawford v. Washington,

541 U.S. 36 (2004) .............................................. 3, 4

Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579 (1993) ................................................ 5

Davis v. Alaska,

415 U.S. 308 (1974) .............................................. 19

General Electric Co. v. Joiner,

522 U.S. 136 (1997) ................................................ 9

Matter of Investigation of W. Virginia State Police

Crime Laboratory, Serology Div.,

438 S.E.2d 501 (W. Va. 1993)......................... 12, 13

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) .................................... 4, 13, 18

People v. John,

52 N.E.3d 1114 (N.Y. 2016).................................. 17

iii

PAGE(S)

State of Oregon v. O’Key,

899 P.2d 663 (Or. 1995) .......................................... 8

Stuart v. Alabama,

139 S. Ct. 36 (2018) ................................................ 4

United States v. Frazier,

387 F.3d 1244 (11th Cir. 2004) .............................. 5

Constitutional Provisions

U.S. CONST. amend. VI ................................................ 3

U.S. CONST. amend. VI Confrontation Clause.... 1, 3, 4

Other Authorities

6,000 Drug Cases Linked to “Rogue Chemist” at

Mass. Crime Lab to be Dismissed, CBS NEWS

(Dec. 29, 2017) ...................................................... 10

N. Akpan, Genetic Genealogy Can Help Solve

Cases. It Can Also Accuse the Wrong Person,

PBS NEWS HOUR (Nov. 7, 2019) ............................. 7

R. Balko, Two FBI Officials Say the State of

Forensics is Fine. Here’s Why They’re Wrong,

WASH. POST, June 6, 2018 .................................... 13

M. Bernstein, Former State Police Forensic

Scientist Sentenced to 3 Years in Federal

Prison, THE OREGONIAN, Dec. 12, 2016 ............... 13

N. Bunkley, Detroit Police Lab is Closed After

Audit Finds Serious Errors in Many Cases,

N.Y. TIMES (Sept. 25, 2008) .................................. 15

iv

PAGE(S)

G. Cooper & V. Meterko, Cognitive Bias Research

in Forensic Science: A Systematic Review,

297 FORENSIC SCI. INT’L 35 (2019) ....................... 19

Court Approves Single Largest Dismissal of

Convictions in U.S. History, CBS NEWS

(Apr. 20, 2017) ...................................................... 10

I. Dror, Cognitive and Human Factors in Expert

Decision Making: Six Fallacies and the Eight

Sources of Bias, 92 ANAL. CHEM. 7998 (2020) ..... 19

C. Garvie, Garbage In, Garbage Out,

GEORGETOWN LAW CENTER ON PRIVACY &

TECHNOLOGY (May 16, 2019) .................................. 7

P. Giannelli, Scientific Fraud, 46(6) CRIM. L.

BULLETIN 1313 (2010) .......................................... 12

M. Godsey & M. Alao, She Blinded Me with

Science: Wrongful Convictions and the “Reverse

CSI Effect,” 17 TEX. WESLEYAN L. REV. 481

(2011) ...................................................................... 5

M. Hansen, Crime Labs Under the Microscope

after a String of Shoddy, Suspect and

Fraudulent Results, A.B.A.J., Sept. 1, 2013 ........ 13

S. Hsu & K. Alexander, Forensic Errors Trigger

Reviews of D.C. Crime Lab Ballistics Unit,

Prosecutors Say, WASH. POST,

Mar. 24, 2017 .................................................. 14, 15

Innocence Project, Forensic Problems and

Wrongful Convictions (Feb. 18, 2009) .................... 8

G. LaPorte, Wrongful Convictions and DNA

Exonerations: Understanding the Role of

Forensic Science, NIJ J. 279 (Apr. 2018) ............... 8

v

PAGE(S)

T. Matthews, State Drug Lab Scandal: DA to Drop

Convictions, Charges for Thousands of Cases

Tied to Chemists Annie Dookhan, Sonja Farak,

MASSLIVE (Mar. 22, 2021) .................................... 11

Michigan State Police Forensic Science Division,

Audit of the Detroit Police Department Forensic

Services Laboratory Firearms Unit (Oct. 28,

2008)...................................................................... 15

J. Moore, Sweeping Report Urges DC to Review

Every Case Handled by Firearms, Fingerprint

Units at Troubled Crime Lab, WTOP NEWS,

Dec. 14, 2021 ................................................... 14, 15

M. Mulvihill, More Cases Tied to Scandal-Plagued

Drug Lab Could be Tossed in ‘Nightmare

Scenario’ for State’s Criminal Justice System,

THE BOSTON GLOBE (Mar. 26, 2021) .................... 11

NAT’L RESEARCH COUNCIL, STRENGTHENING

FORENSIC SCIENCE IN THE UNITED STATES: A

PATH FORWARD, 4 (2009) (“NAS Report”) ..... passim

PRESIDENT’S COUNCIL OF ADVISORS ON SCI. AND

TECH., FORENSIC SCIENCE IN CRIMINAL COURTS:

ENSURING SCIENTIFIC VALIDITY OF FEATURECOMPARISON METHODS 25 (2016)

(“PCAST Report”) .......................................... passim

J.M. Smith, Forget CSI: A Disaster is Happening

in America’s Crime Labs, BUSINESS INSIDER

(Apr. 30, 2014) ...................................................... 11

T. Tyler, Viewing CSI and the Threshold of Guilt:

Managing Truth and Justice in Reality and

Fiction, 115 YALE L.J. 1050 (2006) ........................ 5

vi

PAGE(S)

R. Underwood, Evaluating Scientific and Forensic

Evidence, 24 AM. J. TRIAL ADVOC. 149 (2000)........ 5

N. Valencia & S. Almasy, Florida Crime Lab

Chemist Arrested on Charges of Selling Stolen

Drug Evidence, CNN (Feb. 4, 2014) ..................... 11

J. Weinstein, Rule 702 of the Federal Rules of

Evidence Is Sound; It Should Not Be Amended,

138 F.R.D. 631 (1991). ............................................ 4

1

I. Interest of Amici Curiae

Amici curiae are a broad group of organizations

dedicated to ensuring the integrity of our criminal

legal system by preventing and correcting wrongful

convictions related to the misapplication or

misinterpretation of forensic evidence. Amici have

specific experience examining the causes of wrongful

convictions and documenting the role that the

misapplication of scientific evidence has played in

producing miscarriages of justice. Amici have a

particular interest in the reliability of forensic

evidence and in ensuring that courts faithfully apply

the rigor demanded by the Confrontation Clause, an

interest directly implicated by Petitioner Jason

Smith’s case. Crime lab scandals, scientific reviews

by esteemed bodies such as the National Academy of

Sciences and the President’s Council of Advisors on

Science and Technology, and exonerations across the

country have exposed the fallibility of forensic

evidence and the importance of a critical eye. A

complete list of each amicus participant is attached

as Appendix A. 1

II. Summary of Argument

Forensic evidence is often at the center of criminal

prosecutions, but it is well-established that forensic

evidence can be both powerful and misleading. Like

all other sources of evidence, forensic analysts are

vulnerable to error, exaggeration, bias, and outright

1 Pursuant to Sup. Ct. R. 37.6, counsel for Amici authored this

brief in whole; no party’s counsel authored, in whole or in part,

this brief; and no person or entity other than Amici and their

counsel contributed monetarily to preparing or submitting this

brief.

2

fraud. Moreover, forensic evidence can have an

outsized effect on jurors. Forensic experts, therefore,

must be subject to the same time-honored safeguard

applied to all other forms of evidence: crossexamination. As the following sections will explain,

the cross-examination must involve the analyst who

actually performed the forensic analysis, not a

surrogate.

The different ways forensic analyses can go awry

have been documented in real-life examples and

studied exhaustively by prestigious scientific

organizations. The misapplication of forensic science

is one of the leading causes of wrongful convictions,

present in 24% of proven exonerations. National

Registry of Exonerations Database. 2 The types of

faulty and misleading forensic evidence present in

the exoneration cases runs the gamut from firearms

to bitemarks to toxicology and many others. The

errors discovered in those cases are merely the tip of

the iceberg, meaning there are undoubtedly many

more forensic errors that have led to other wrongful

convictions, overcharging, over sentencing, and

tainted plea decisions.

Apart from the real-life examples in cases, two

major federal agency reports authored by leading

scientists have described the numerous problems that

affect many forensic disciplines. The problems are

described in detail below and include: fraud by

individuals and laboratories; mistakes due to

incompetence, lack of training, and lack of standards;

and bias stemming in part from close connection to

law enforcement and prosecutors.

https://www.law.umich.edu/special/exoneration/Pages/about.

aspx (all Internet materials as visited Nov. 15, 2023).

2

3

While no single tool can completely ameliorate all

of these problems, cross-examination is the

historically recognized tool for exposing these same

issues.

And as this Court has recognized, the

prospect of facing cross-examination creates

incentives for forensic analysts to perform their work

honestly, transparently, and accurately. Foregoing a

cross-examination requirement of the original analyst

prevents the criminally accused from being able to

reveal the fraud, bias, or error that may have tainted

the evidence against them, and insulates dishonest,

incompetent, and error-prone analysts from having to

defend the quality of their work.

III. Argument

A. This Court has recognized the importance of

cross-examining

the

original

forensic

analyst who performed the work.

Cross-examination has long-been recognized as

“the greatest legal engine ever invented for the

discovery of truth.” California v. Green, 399 U.S. 149,

158 (1970) (quoting 5 Wigmore § 1367).

The

Confrontation Clause of the Sixth Amendment

affords the accused in criminal prosecutions the right

“to be confronted with the witnesses against” them.

U.S. CONST. amend. VI. As a result, this Court, in

Crawford v. Washington, insisted upon crossexamination and rejected the notion of a judicial

determination of reliability for absent witnesses. 541

U.S. 36, 54 (2004).

There is no forensic evidence exception to the rule.

See Bullcoming v. New Mexico, 564 U.S. 647, 658

(2011) (citing Melendez-Diaz v. Massachusetts, 557

U.S. 305, 317–21 (2009)). The Court was unequivocal

4

in Melendez-Diaz, a case involving forensic evidence:

“[t]his case involves little more than the application

of our holding in Crawford v. Washington.” 557 U.S.

at 329. Confrontation of the forensic analyst can

expose or deter an inaccurate or fraudulent analysis,

weed out an incompetent examiner, or reveal the

analyst’s lack of proper training or deficiency in

judgment. See id. at 318–320. To ensure all of these

things are possible, the Confrontation Clause

promises the right to cross-examine the original

testing analyst. The Court affirmed the constitutional

guarantee again in Bullcoming.

That guarantee is eroded when a surrogate analyst

is allowed to testify in place of the original testing

analyst. See Stuart v. Alabama, 139 S. Ct. 36, 36

(2018) (Gorsuch, J., dissenting from the denial of

certiorari). While cross-examination of the original

analyst can expose bias, mistakes, and even outright

fraud in the analysis, the same is not true of a

surrogate analyst whose lack of personal knowledge

about the testing process may insulate the opinion

from challenge. Our criminal legal system depends

on adversarial testing and cross-examination to

guard against “mischief and mistake and the risk of

false convictions they invite.”

Id.

A newer

understanding of forensics highlights the need for

confrontation in all forensic disciplines.

B. Forensic evidence is uniquely powerful in

its ability to influence—and potentially

mislead—jurors and factfinders.

“Expert evidence can be both powerful and quite

misleading because of the difficulty in evaluating it.”

J. Weinstein, Rule 702 of the Federal Rules of

Evidence Is Sound; It Should Not Be Amended, 138

5

F.R.D. 631, 632 (1991). Indeed, this Court (and many

others) have cautioned about the outsized influence of

“scientific” evidence. See, e.g., Daubert v. Merrell

Dow Pharms., Inc., 509 U.S. 579, 595 (1993); United

States v. Frazier, 387 F.3d 1244, 1263 (11th Cir.

2004) (“[E]xpert testimony may be assigned

talismanic significance in the eyes of lay jurors.”).

The power of flawed forensics to mislead juries—

this presumption of infallibility—has been echoed by

numerous scholars and studies. For example, studies

have found that jurors give outsized weight to

forensic evidence. See R. Underwood, Evaluating

Scientific and Forensic Evidence, 24 AM. J. TRIAL

ADVOC. 149, 166 (2000); see also T. Tyler, Viewing

CSI and the Threshold of Guilt: Managing Truth and

Justice in Reality and Fiction, 115 YALE L.J. 1050,

1068 (2006) (“[W]idespread evidence [indicates]

people already overestimate the probative value of

scientific evidence.”). Indeed, as one study put it,

“jurors in this country often accept state forensic

testimony as if each prosecution expert witness is the

NASA scientist who first put man on the moon.” M.

Godsey & M. Alao, She Blinded Me with Science:

Wrongful Convictions and the “Reverse CSI Effect,” 17

TEX. WESLEYAN L. REV. 481, 495 (2011).

In scientific communities, however, there has been

a growing skepticism about the supposed infallibility

of some forensic evidence, its handling in crime

laboratories, and its interpretation in the courtroom.

See NAT’L RESEARCH COUNCIL, STRENGTHENING

FORENSIC SCIENCE IN THE UNITED STATES: A PATH

FORWARD, 4 (2009) (hereinafter “NAS Report”) 3;

PRESIDENT’S COUNCIL OF ADVISORS ON SCI. AND TECH.,

https://nap.nationalacademies.org/catalog/12589/strengtheningforensic-science-in-the-united-states-a-path-forward

3

6

FORENSIC SCIENCE IN CRIMINAL COURTS: ENSURING

SCIENTIFIC VALIDITY OF FEATURE-COMPARISON

METHODS 25 (2016) (hereinafter “PCAST Report”). 4

Those concerns, as discussed below, heighten the

need for meaningful cross-examination.

C. Errors in forensic evidence, and the various

reasons for those errors, are now well

recognized.

In 2009, the National Academy of Sciences (“NAS”)

issued a congressionally mandated report that was

highly critical of a number of forensic disciplines used

in the criminal legal system. NAS Report at 1. The

committee that authored the report consisted of

members from the forensics community, legal

experts, and a variety of independent scientists. Id.

at v. The committee heard expert testimony from a

broad array of scientific and forensic experts, and

reviewed voluminous published materials, studies,

and reports. Id. at 2.

The NAS Report concluded that, with the exception

of nuclear DNA analysis, “no forensic method has

been rigorously shown to have the capacity to

consistently, and with a high degree of certainty,

demonstrate a connection between evidence and a

specific individual or source.” Id. at 7. The NAS

Report made clear that “problems, irregularities, and

miscarriages of justice [could not] simply be

attributed to a handful of rogue analysts or

underperforming laboratories.” PCAST Report at 4

(summarizing the NAS Report). The NAS Report,

https://obamawhitehouse.archives.gov/sites/default/files/micro

sites/ostp/PCAST/pcast_forensic_science_report_final.pdf

4

7

instead, found that the problems are systemic and

pervasive. Id.

In 2016, the President’s Council of Advisors on

Science and Technology (“PCAST”) issued another

groundbreaking report about forensic sciences, again

highlighting major systemic problems.

PCAST

Report at 7. PCAST reviewed “six forensic featurecomparison methods: (1) DNA analysis of singlesource and simple-mixture samples, (2) DNA analysis

of complex-mixture samples, (3) bitemarks, (4) latent

fingerprints, (5) firearms identification, and (6)

footwear analysis.” Id. at 7. While the NAS Report

cast significant doubt on many of these forensic

disciplines seven years earlier, the PCAST Report

confirmed the potential for errors as applied in all

six. Id. PCAST found that, while DNA analysis of

single-source and simple-mixture samples remains

the gold standard for objective methodology, the other

forensic areas rely fundamentally and unavoidably on

subjective judgments made by individual analysts

who often have little-to-no standards to guide those

judgments. Id. Even DNA has subjective components,

as discussed below. Id.

The PCAST Report (and the NAS Report before it)

make clear that the criminal legal system cannot

presuppose the reliability of forensic evidence. The

methods found problematic in those reports continue

to taint convictions, and the same pattern is

repeating itself with newer technologies such as

facial recognition and genetic genealogy. See, e.g., C.

Garvie, Garbage In, Garbage Out, GEORGETOWN LAW

CENTER ON PRIVACY & TECHNOLOGY (May 16, 2019) 5;

N. Akpan, Genetic Genealogy Can Help Solve Cases.

5

https://www.flawedfacedata.com

8

It Can Also Accuse the Wrong Person, PBS NEWS

HOUR (Nov. 7, 2019). 6 The right to meaningful crossexamination before the jury is essential given the

myriad problems with forensic disciplines and the

mistaken presumption of infallibility.

D. Meaningful cross-examination can expose

problems.

The devastating impact of erroneous and

incompetent expert testimony cannot be overstated.

The danger is not simply that jurors may overvalue

expert testimony; it is that jurors may surrender

their critical thinking because scientific-sounding

evidence “associates ‘science’ with truth.” See State of

Oregon v. O’Key, 899 P.2d 663, 672 n.6 (Or. 1995)

(quoting State ex rel. Hamilton v. City Court of City of

Mesa, 799 P.2d 855, 859 (Ariz. 1990)).

As a result, faulty and misleading forensics are one

of the leading causes of wrongful convictions across

the country. Innocence Project, Forensic Problems

and Wrongful Convictions (Feb. 18, 2009). 7 To date,

the National Registry of Exonerations documents

3,420 exonerations in the United States since 1989.

National Registry of Exonerations Database. 8

Approximately 24 percent of those innocent

individuals were wrongly convicted, at least in part,

as a result of faulty and misleading forensic evidence.

See G. LaPorte, Wrongful Convictions and DNA

https://www.pbs.org/newshour/science/genetic-genealogy-canhelp-solve-cold-cases-it-can-also-accuse-the-wrong-person

7 https://innocenceproject.org/forensic-problems-and-wrongfulconvictions/

8 https://www.law.umich.edu/special/exoneration/Pages/about.

aspx

6

9

Exonerations: Understanding the Role of Forensic

Science, NIJ J. 279 (Apr. 2018). 9 Beyond wrongful

convictions, false forensics have also led to overcharging

and over sentencing, resulting in incarceration of

disproportionate length, especially in cases involving

drug testing such as this one, as well as plea

decisions tainted by the influence of false forensic

evidence.

Because forensic evidence may not always be

reliable, the criminally accused must be afforded

every constitutional guarantee to defend themselves

against faulty or misleading forensics, and, at a

minimum, that includes the right to cross-examine

the analyst who conducted the testing. As discussed

below, confrontation is essential to permit the

criminally accused the opportunity to test the state’s

evidence through the adversarial method. Crossexamination will expose fraud, mistakes or

incompetence, or judgment that consists of nothing

more than the ipse dixit of the analyst. General

Electric Co. v. Joiner, 522 U.S. 136, 146 (1997)

(“[N]othing in either Daubert or the Federal Rules of

Evidence requires a district court to admit opinion

evidence that is connected to existing data only by

the ipse dixit of the expert.”). More broadly, crossexamination provides the jury with information

necessary to assess the weight, if any, to give the

forensic opinion, and a requirement of confrontation

serves to encourage scientific rigor as a general

matter.

https://nij.ojp.gov/library/publications/wrongful-convictions-anddna-exonerations-understanding-role-forensic-science

9

10

1. Cross-examination can expose fraud.

Not all errors in forensic testing are inadvertent.

There have been many documented cases of

fraudulent testimony, unlawful tampering with

evidence, and “drylabbing,” where an analyst claims

results without actually performing the lab work.

The number of exonerations cited above from the

National Registry does not include the tens of

thousands of cases in which misconduct at

government-run labs has led to reversals and

dismissals en masse due to lab scandals across the

country.

For example, in 2017, the Massachusetts Supreme

Judicial Court ordered the dismissal of more than

20,000 convictions after state drug lab chemist Annie

Dookhan was caught tampering with evidence and

falsifying test results. Bridgeman v. District Attorney

for the Suffolk District, 67 N.E.3d 673 (Mass. 2017);

Court Approves Single Largest Dismissal of

Convictions in U.S. History, CBS NEWS (Apr. 20,

2017). 10 Thousands more convictions were dismissed

later that year after another chemist, Sonja Farak,

was caught stealing drugs and tampering with

evidence. Committee for Public Counsel Services v.

Attorney General, 108 N.E.3d 966 (Mass. 2018); 6,000

Drug Cases Linked to “Rogue Chemist” at Mass.

Crime Lab to be Dismissed, CBS NEWS (Dec. 29,

2017). 11

In 2021, the Suffolk County District

Attorney announced that she would be dropping

charges in tens of thousands of cases because of a

10 https://www.cbsnews.com/news/more-than-21000-drug-convic

tions-officially-thrown-out-after-chemists-tampering/

11 https://www.cbsnews.com/news/6000-drug-cases-linked-to-roguechemist-at-mass-crime-lab-to-be-dismissed/

11

decade of misconduct by the lab analysts, and the

Middlesex County District Attorney moved the

Supreme Judicial Court in Massachusetts to

investigate. T. Matthews, State Drug Lab Scandal:

DA to Drop Convictions, Charges for Thousands of

Cases Tied to Chemists Annie Dookhan, Sonja Farak,

MASSLIVE (Mar. 22, 2021) 12; M. Mulvihill, More Cases

Tied to Scandal-Plagued Drug Lab Could be Tossed

in ‘Nightmare Scenario’ for State’s Criminal Justice

System, THE BOSTON GLOBE (Mar. 26, 2021). 13

The scandal in the Massachusetts lab is one of the

largest drug lab scandals in history, but it does not

stand alone. In Houston, a government lab technician

fabricated results in drug cases, and it was estimated

that about one out of every three reports he

submitted was flawed. J.M. Smith, Forget CSI: A

Disaster is Happening in America’s Crime Labs,

BUSINESS INSIDER (Apr. 30, 2014). 14 In Florida, a

government lab analyst was arrested for stealing

drugs and tampering with evidence in thousands of

cases. N. Valencia & S. Almasy, Florida Crime Lab

Chemist Arrested on Charges of Selling Stolen Drug

Evidence, CNN (Feb. 4, 2014). 15

Toxicology is not the only area that has seen

scandal. One of the earliest forensic lab scandals

https://www.masslive.com/news/2021/03/state-drug-lab-scandalda-to-drop-convictions-charges-for-thousands-of-cases-tied-to-chem

ists-annie-dookhan-sanja-farak.html

13 https://www.bostonglobe.com/2021/03/26/metro/more-cases-tiedscandal-plagued-drug-lab-could-be-tossed-nightmare-scenariostates-criminal-justice-system/

14 https://www.businessinsider.com/forensic-csi-crime-labs-disaster2014-4?op=1

15 https://www.cnn.com/2014/02/04/justice/florida-chemist-pre

scription-drug-evidence/index.html

12

12

involved a serologist at the West Virginia State Police

Crime Laboratory whose misconduct tainted nearly

200 criminal cases. P. Giannelli, Scientific Fraud,

46(6) CRIM. L. BULLETIN 1313 (2010). Suspicion arose

in 1992 after DNA evidence exonerated Glen Woodall,

who was serving two life sentences without parole

plus 203–335 years in prison for a double rape

conviction in 1987. Id. at 1314. Woodall was convicted

largely on the strength of testimony provided by

serologist Fred Zain. Id. In 1993, the Supreme Court

of Appeals of West Virginia appointed a special judge

to supervise an investigation into the state

laboratory’s Serology Division. Matter of Investigation

of W. Virginia State Police Crime Laboratory,

Serology Div., 438 S.E.2d 501, 503 (W. Va. 1993).

The resulting report, written in conjunction with the

American Society of Crime Laboratory Directors

(ASCLD), found that Zain’s misconduct included:

(1) overstating the strength of results; (2)

overstating the frequency of genetic matches

on individual pieces of evidence; (3)

misreporting the frequency of genetic

matches on multiple pieces of evidence; (4)

reporting that multiple items had been

tested, when only a single item had been

tested; (5) reporting inconclusive results as

conclusive; (6) repeatedly altering laboratory

records; (7) grouping results to create the

erroneous impression that genetic markers

had been obtained from all samples tested;

(8) failing to report conflicting results; (9)

failing to conduct or to report conducting

additional testing to resolve conflicting

results; (10) implying a match with a suspect

when testing supported only a match with

13

the victim; and (11) reporting scientifically

impossible or improbable results.

Id. at 503. Over the years following Zain, reports

document notorious cases of lab misconduct in

California, Massachusetts, Minnesota, New York,

North Carolina, Oklahoma, Oregon, and West

Virginia, among others. See, e.g., M. Hansen, Crime

Labs Under the Microscope after a String of Shoddy,

Suspect and Fraudulent Results, A.B.A.J., Sept. 1,

2013 16; R. Balko, Two FBI Officials Say the State of

Forensics is Fine. Here’s Why They’re Wrong., WASH.

POST, June 6, 2018 17; M. Bernstein, Former State

Police Forensic Scientist Sentenced to 3 Years in

Federal Prison, THE OREGONIAN, Dec. 12, 2016. 18

Each of the lab scandals across the country has

revealed weaknesses in the government lab

infrastructure that was once thought beyond

reproach. Even before the unprecedented fraud in

Massachusetts and elsewhere, this Court, in the 2009

Melendez-Diaz decision, recognized that crossexamination may detect, or even deter, fraud.

Melendez-Diaz, 557 U.S. at 319.

Justice Scalia

explained: “Like the eyewitness who has fabricated

his account to the police, the analyst who provides

false results may, under oath in open court,

reconsider his false testimony. And, of course, the

prospect of confrontation will deter fraudulent

analysis in the first place.” Id. (citations omitted).

https://www.abajournal.com/magazine/article/crime_labs_under_

the_microscope_after_a_string_of_shoddy_suspect_and_fraudu/

17 https://www.washingtonpost.com/news/the-watch/wp/2018/06/

06/two-fbi-officials-say-the-state-of-forensics-is-fine-heres-whytheyre-wrong/

18 https://www.oregonlive.com/portland/2016/12/former_oregon_

state_police_for.html

16

14

Surrogate testimony, as Bullcoming acknowledged,

cannot “expose any lapses or lies on the certifying

analyst’s part.” 564 U.S. at 661–62.

At a minimum, courts cannot guard against

widespread abuse by subjecting forensic evidence to

less scrutiny or by insulating analysts from crossexamination.

2. Cross-examination can expose mistakes

in the process.

Forensic analysts are not immune to mistakes and

incompetence. Confronting an expert on his or her

process and training are traditional areas that are

ripe for cross-examination. Scientific and academic

experts have documented the subjective nature of

many forensic disciplines, NAS Report at 185–86, and

the criminally accused must be entitled to crossexamine the person exercising that subjective

judgment.

Mistakes and incompetence in that exercise are not

uncommon. In 2021, the D.C. Department of Forensic

Sciences lost its accreditation after a casework review

triggered by a failed proficiency test by a firearms

examiner launched multiple audits. See S. Hsu & K.

Alexander, Forensic Errors Trigger Reviews of D.C.

Crime Lab Ballistics Unit, Prosecutors Say, WASH.

POST, Mar. 24, 2017 19; J. Moore, Sweeping Report

Urges DC to Review Every Case Handled by Firearms,

Fingerprint Units at Troubled Crime Lab, WTOP

https://www.washingtonpost.com/local/public-safety/forensicerrors-trigger-reviews-of-dc-crime-lab-ballistics-unit-prosecutorssay/2017/03/24/2d67cdcc-0e75-11e7-ab07-07d9f521f6b5_story.html

19

15

NEWS, Dec. 14, 2021. 20 The audits revealed that

three separate firearms examiners had committed

misidentifications of cartridge casings relevant to an

ongoing murder prosecution. Hsu, Forensic Errors

Trigger Reviews of D.C. Crime Lab Ballistics

Unit, Prosecutors Say, supra. Following the loss of

accreditation, the laboratory fired all of its firearms

examination personnel, and D.C. began efforts to

review every case completed by the unit over the last

decade. Moore, Sweeping Report Urges DC to Review

Every Case Handled by Firearms, supra.

Before D.C., a team from the Michigan State Police

Forensic Science Division conducted an audit in 2008

of the Detroit Police Department firearms unit,

including a random reanalysis of 250 real-world cases

and an additional 33 cases that were known to have

been prosecuted. See Michigan State Police Forensic

Science Division, Audit of the Detroit Police

Department Forensic Services Laboratory Firearms

Unit (Oct. 28, 2008) 21; see also N. Bunkley, Detroit

Police Lab is Closed After Audit Finds Serious Errors

in Many Cases, N.Y. TIMES (Sept. 25, 2008). 22 The

results of the audit were striking (enough to shutter

the unit): in ten percent (29) of the 283 cases

reanalyzed, firearms examiners from the DPD’s

firearms unit had committed serious errors (defined

as false identifications or false exclusions). Id. The

majority of those errors (24) fell into the category of

misidentifications. Id.

https://wtop.com/dc/2021/12/sweeping-report-urges-dc-to-reviewevery-case-handled-by-firearms-fingerprint-units-at-troubledcrime-lab/

21 https://www.sado.org/content/pub/10559_MSP-DCL-Audit.pdf

22 https://www.nytimes.com/2008/09/26/us/26detroit.html

20

16

Even otherwise reliable techniques involve human

judgment, making them subject to error in the

process that will not be apparent within the four

corners of the forensic report. For example, DNA

testing is not without its flaws. DNA testing involves

a number of steps to transform a mixture of biological

material collected through a criminal investigation

into a DNA profile that can be used as the basis for

identification. The analyst must first sample the

evidence by deciding which pieces of physical

evidence to swab, cut, or scrape to obtain DNA for

testing. The process proceeds with (1) extraction

(releasing the DNA from the nucleus of the cell), (2)

quantitation (determining how much DNA exists in

the sample), (3) amplification (producing multiple

copies of the DNA in order to characterize it), (4)

separation (separating amplified DNA to permit a

subsequent identification), and (5) analysis and

interpretation (quantitatively and qualitatively

comparing DNA evidence samples to known DNA

profiles for purposes of identification). Mistakes

during any one of those steps can result in

contamination, loss of important data, or errors in

identification.

Human judgment and decision-making during

testing can also lead to errors. For example, the

decision of what to include or omit from sampling will

shape what DNA profiles are generated in the

investigation. As another example, decisions about

what data to interpret as representing the DNA of

the contributor, as opposed to artifacts generated

during testing, will dictate the outcome of the test.

Even decisions about the number of contributors in a

mixed sample from multiple contributors requires the

analyst’s subjective judgment before that analyst can

17

rely on more sophisticated software systems to assess

those profiles.

As the New York Court of Appeals—the state’s

highest court—recognized in an opinion upholding

the right to confront the original analyst who

witnessed, performed, or supervised the generation of

a DNA profile, “[w]e will not indulge in the science

fiction that DNA evidence is merely machinegenerated, a concept that reduces DNA testing to an

automated exercise requiring no skill set or

application of expertise or judgment.” People v. John,

52 N.E.3d 1114, 1125 (N.Y. 2016). Instead, “the

sophisticated software programs require trained

analysts who engage in skilled interpretation of data

from the electrophoresis instrument, using the

computer software with its color images, particularly

as to the peaks in the graphs, to construct the DNA

profile.” Id. (emphasis added).

Cross-examination of the testing analyst increases

the likelihood that mistakes during the process are

exposed. The same is true for the many forensic

disciplines that rely on the analyst’s subjective

observations and judgment to arrive at a conclusion.

3. Cross-examination can expose bias.

Human

factors,

including

conscious

and

unconscious bias, can taint the results of any forensic

test. Biases are specific to the individual examiner

who conducted the test and of course are not included

in the forensic report. The biases of the original

analyst cannot be addressed by a surrogate analyst.

Unconscious bias, or “cognitive bias,” is a

fundamental part of all human decision-making,

especially in subjective matters. The PCAST Report

18

emphasizes “[s]ubjective methods require particularly

careful scrutiny because their heavy reliance on

human judgment means they are especially

vulnerable to human error, inconsistency across

examiners, and cognitive bias.

In the forensic

feature-comparison

disciplines,

cognitive

bias

includes the phenomena that, in certain settings,

humans may tend naturally to focus on similarities

between samples and discount differences and may

also be influenced by extraneous information and

external pressures about a case.” PCAST Report at 5.

The NAS Report, and the PCAST Report after it,

flagged a number of different types of cognitive bias

in forensic disciplines.

For example, analysts

working for labs operated and funded by state or local

governments may be subject to “motivational bias.”

NAS Report at 183; PCAST Report at 31. As the

NAS Report explained, “[t]he majority of [laboratories

producing forensic evidence] are administered by law

enforcement agencies, such as police departments,

where the laboratory administrator reports to the

head of the agency.” NAS Report at 183. And

“[b]ecause forensic scientists often are driven in their

work by a need to answer a particular question

related to the issues of a particular case, they

sometimes face pressure to sacrifice appropriate

methodology for the sake of expediency.” Id. at 23–

24. This Court recognized in Melendez-Diaz that “[a]

forensic analyst responding to a request from a law

enforcement official may feel pressure—or have an

incentive—to alter the evidence in a manner

favorable to the prosecution.” Melendez-Diaz, 557

U.S. at 318.

Forensic opinions may also be the result of

“confirmation bias” or “expectation bias.” Confirmation

bias arises when the analyst—consciously or

19

unconsciously—tends

to

seek

and

interpret

information in a way that conforms to the analyst’s

pre-existing beliefs or assumptions. See PCAST

Report at 31. Expectation bias occurs when the

analyst expects a certain outcome from testing and,

as a result, focuses on only the data that leads to that

outcome, discounting or discarding data that is

inconsistent with the expected result. See G. Cooper

& V. Meterko, Cognitive Bias Research in Forensic

Science: A Systematic Review, 297 FORENSIC SCI.

INT’L 35, 36 (2019).

Research confirms that the problem of bias in

forensic disciplines is compounded by task irrelevant

information provided to the analyst during the

process, such as police reports, background checks,

and even conversations with police or prosecutors. I.

Dror, Cognitive and Human Factors in Expert

Decision Making: Six Fallacies and the Eight Sources

of Bias, 92 ANAL. CHEM. 7998, 8001 (2020). Often,

cross-examining the analyst who conducted the tests

is critical and the only way to learn the full extent of

the biasing information to which that analyst may

have been exposed.

Expert witnesses are routinely subjected to crossexamination for bias. This Court recognized nearly

50 years ago that “[t]he partiality of a witness is

subject to exploration at trial, and is ‘always relevant

as discrediting the witness and affecting the weight

of his testimony.’” Davis v. Alaska, 415 U.S. 308, 316

(1974) (quoting 3A J. Wigmore, Evidence § 940 at 775

(Chadbourn rev. 1970)). The bias of the forensic

analyst is no different. Because so many forensic

disciplines rely on the subjective observations of the

forensic analyst, cross-examination on a surrogate

will not do. A surrogate analyst cannot effectively

20

respond to questions that will expose unconscious

bias that may have infected the original analysis.

*

*

*

The fallibility and importance of forensic evidence

in criminal prosecutions underscore the need for this

Court to ensure a meaningful right to confrontation.

“[T]he analysts who write reports introduced as

evidence must be made available for confrontation

even if they have the scientific acumen of Mme. Curie

and the veracity of Mother Teresa.” Bullcoming, 564

U.S. at 661 (quoting Melendez-Diaz, 557 U.S. at 317)

(internal quotation marks omitted).

IV. Conclusion

The judgment below should be reversed.

Dated November 20, 2023

Respectfully submitted,

ANNA SORTUN

Counsel of Record

SAMANTHA TAYLOR

TONKON TORP, LLP

888 S.W. 5th Avenue, Suite 1600

Portland, Oregon 97204

(503) 802-2107

anna.sortun@tonkon.com

JANIS C. PURACAL

BYRON C. LICHSTEIN

FORENSIC JUSTICE PROJECT

333 S.W. Taylor Street, Suite 400

Portland, Oregon 97204

(503) 664-3641

21

JAMIE T. LAU

CO-VICE PRESIDENT,

INNOCENCE NETWORK

DUKE LAW WRONGFUL

CONVICTIONS CLINIC

210 Science Drive

Durham, North Carolina 27708

(919) 613-7764

LARA ZAROWSKY

CO-VICE PRESIDENT,

INNOCENCE NETWORK

WASHINGTON INNOCENCE PROJECT

P.O. Box 85869

Seattle, Washington 98145

(206) 636-9479

KATHERINE H. JUDSON

KEITH A. FINDLEY

CENTER FOR INTEGRITY

IN FORENSIC SCIENCES

33 East Main Street, Suite 400

Madison, Wisconsin 53703

(608) 736-2437

Counsel for Amici Curiae

1a

Appendix A

List of Amici Curiae (in alphabetical order)

__________

•

Center for Integrity in Forensic Science

•

Forensic Justice Project

•

The Innocence Network, member organizations

include:

the Actual Innocence Clinic at the

University of Texas School of Law, After

Innocence, Alaska Innocence Project, Arizona

Justice Project, Boston College Innocence

Program, California Innocence Project, Center on

Wrongful Convictions, Committee for Public

Counsel Services Innocence Program, Connecticut

Innocence Project, Duke Law Center for Criminal

Justice

and

Professional

Responsibility,

Exoneration Project, George C. Cochran Innocence

Project at the University of Mississippi School of

Law, Georgia Innocence Project, Hawai’i

Innocence Project, Idaho Innocence Project,

Illinois Innocence Project, Indiana University

McKinney Wrongful Conviction Clinic, Innocence

Delaware, Inc., Innocence Project, Innocence

Project Argentina, Innocence Project at the

University of Virginia School of Law, Innocence

Project Brasil, Innocence Project London,

Innocence Project New Orleans, Innocence Project

of Florida, Innocence Project of Texas, Italy

Innocence Project, Justicia Reinvindicada Puerto

Rico Innocence Project, Korey Wise Innocence

Project, Loyola Law School Project for the

Innocent, Manchester Innocence Project, Michigan

Innocence Clinic, Mid-Atlantic Innocence Project,

Midwest Innocence Project, Montana Innocence

2a

Project, New England Innocence Project, New

York Law School Post-Conviction Innocence

Clinic, North Carolina Center on Actual

Innocence, Northern California Innocence Project,

Office of the Ohio Public Defender Wrongful

Conviction Project, Ohio Innocence Project,

Oklahoma Innocence Project, Oregon Innocence

Project, Osgoode Hall Innocence Project, Rocky

Mountain Innocence Center, Taiwan Innocence

Project, Thurgood Marshall School of Law

Innocence Project, University of Arizona

Innocence Project, University of Baltimore

Innocence Project Clinic, University of Baltimore

Innocence Project Clinic, University of British

Columbia Innocence Project at the Allard School

of Law, University of Miami Law Innocence

Clinic, Wake Forest University School of Law

Innocence and Justice Clinic, Washington

Innocence Project, West Virginia Innocence

Project, Wisconsin Innocence Project, and Witness

to Innocence