18 minutes to read

Early yesterday, I posted an image to Twitter. It was a screenshot from a book on Forensic Testimony. The book is, as best I can tell, a compilation of articles on the subject. The first one, at least, is heavily footnoted. I haven’t yet read much of it, but, as you’d expect from the title, it covers forensic science testimony, and the part I have read so far discusses some problems inherent in the mostly-unsupported ways in which science is used in law.

I’ve always had an interest in this area, but I was pushed over the top by a number of things that have happened recently having to deal with—sorry to say it this rudely, but it’s the only way that really fits—frankly ignorant judges. Then, reading Radley Balko’s new book,The Cadaver King and the Country Dentist: A True Story of Injustice in the American South, gave me another shove.

Actually, I haven’t started reading it yet, although I have a hardback version: I’ve been listening to the Audible version in my car. [1]I do a lot of driving, because currently my criminal defense practice takes me all over central California from Kern County in the south to Merced County in the north. I have cases in all counties in between, as well: Tulare, Kings, Fresno, and Madera.

Also, other than some fingerprints and basic blood or DNA evidence, I haven’t had much occasion to dig deeply into forensics, although I expect that to change soon because of shifts in the types of cases I’ve been accepting lately.

That doesn’t mean I haven’t had to deal with “forensic testimony.” 

I had a hard time finding a cite for the phrase “forensic testimony.” One online source defines it as:

any testimony of expert scientific, engineering, economic or other specialized nature used to assist the court and the lawyers in a lawsuit or prosecution.

And that seems to fit pretty well with what I’ve experienced defending gang cases. Most of the cases in which I’ve encountered what I think should come under the label of “forensic testimony” involve gangs, and so-called “gang experts,” or, as they are more accurately known, “gang cops,” or even more honestly, “professional bullshitters.”

The United States District Court case of Aviles v. Archuletta gives the tightest connection—perhaps the only one—where a court actually compared the “expert” testimony of these kinds of officers to what we traditionally think of as a forensic expert:

There are cultures and subcultures, and street gangs are among them, that have rules, attitudes, expectations and standards of conduct which are not readily understood by the general population. Expert testimony can be of assistance to the jury in explaining the seemingly inexplicable conduct. See Generally, Masters v. People, 58 P.3d 979 (Colo. 2002) (forensic psychologist permitted to testify as to relevancy of defendant’s fantasy sexual homicides to assist jury in understanding defendant’s motivation in committing sexual murder. Indeed, in my experience, it is not uncommon in cases involving gangs for the prosecution to call police officers serving in gang units, or as investigating officers, to testify as experts on the organization, practices, attitudes and activities of street gangs. [2]Aviles v. Archuletta, Civil Action No. 06-cv-01329-CMA-BNB, 2010 U.S. Dist. LEXIS 7544, at *27-28 (D. Colo. Jan. 29, 2010).

These officers have virtually no knowledge, or training, in the areas in which they testify—hence my referring to them as “bullshitters.” Suggesting otherwise waters down the term “expert” to the point of meaninglessness.

Imagine, for example, that you needed someone to testify as an expert on the immense amount of plastic floating in the ocean. But real scientists who study such things are not so easy to find, or maybe they won’t testify in a way that really fits for what you want to do. So you go down to the local Department of Public Utilities, to the area that handles trash disposal, and you look for one of the guys who drives a garbage truck.

There’s your expert.

But, you say, I thought you wanted an expert on the immense amount of plastic floating in the ocean? How is a garbage truck driver in Fresno going to work? First of all, the closest ocean to Fresno is going to be the Pacific, a little over a two-hour drive away. Second of all, what kind of training does that garbage truck driver have that would make him an expert on plastic anywhere, let alone plastic in the ocean?


But if you were a prosecutor who needed such an expert, you would say,

This garbage truck driver picks up tons of plastic every year. This driver drives through all kinds of neighborhoods. This driver drives during all seasons of the year.

In some of those neighborhoods, the trash lids aren’t always closed right. And it rains.

When it rains, water gets into the garbage cans. The plastic gets wet. Sometimes it even starts to float.

Besides all that, this garbage truck driver has many opportunities, while driving through the city and county, to witness plastic floating in gutters alongside the road. While crossing over canals, there are swirls of plastic swirling in the swirly waters.

There’s your expert.

Remember that court I quoted above?

There are cultures and subcultures, and street gangs are among them….

And cops, well, they see these cultures and subcultures. They arrest people from these street gangs. They talk to them. They ask them questions. They come to understand the gangs, and the individual gang members—and their victims, too!

Now, in the real world, this would never count as making anyone an expert on these topics. Anthropologists study cultures, and subcultures. Sociologists, also, study groups of people. Psychologists, and psychiatrists—and to some extent (though not nearly to the same degree), social workers, family therapists, and people in related fields, with specialized training for it—study individuals with regards to their motivations, wishes, feelings.

You can sit at the mall every day, all day, for decades, and you’re not necessarily [3]Unless you’re a trained sociologist, or anthropologist, or something of the like. going to be an expert on the cultures and subcultures of mall-goers, or on how groups of mall-goers structure their interactions, or on what motivates individuals who go to the mall, why and how they do what they do.

Without the appropriate background (i.e., training in the field of study), you’re not going to know what to look for; the ways your observations can mislead you; nor what might count as something unique to the group you’re studying, and what simply constitutes generic human behavior.

So why do courts allow these various “experts,” and gang cops in particular, to testify in criminal cases?

If you’ve read Radley Balko’s book—and if you haven’t, I have to ask “why not?”—you’ll understand that there was one overriding reason why the “experts” in Mississippi’s travesty of justice were allowed to testify. “They get convictions.”

And they did not get those convictions because of their forensic science skills. Some of what they did was arguably scientific. After all, Steven Hayne  actually had a medical degree, and until about 2008, he performed 80% or more of the autopsies done in the state of Mississippi—allegedly more than 1,500 per year.

So, it’s entirely possible that some of what he testified about was actually based on science. Mostly. Maybe.

On the other hand, in one case where Hayne testified,

Hayne’s testimony was critical in securing Maye’s conviction. Hayne said he could tell from the damage to Jones’ body the trajectory the bullet took as it entered the officer. Based on that trajectory, he speculated that Maye was standing when he shot Jones, not lying on the floor, as Maye testified. Hayne’s testimony seriously damaged Maye’s credibility with the jury.

But according to a post-trial review by an actual, board-certified forensics expert whom Maye’s new legal team hired, it would be impossible to project the bullet’s trajectory based on the tissue damage in Jones’ corpse, because Jones might have been crouching, rolling, or prone when he was hit. Furthermore, the hole created in the bedroom door frame by one of the three bullets Maye fired that night clearly slants upward, from about shoulder height. The prosecution ignored a bullet hole in a fixed object that was consistent with Maye’s account of the raid and instead pushed Hayne’s testimony about the supposed trajectory of a bullet that struck a moving object.

In another case, forensic-board-certified Dr. Hayne—damn that sounds official!—testified that from his examination of a exhumed corpse that had been buried for three days, comparing it to some notes he had made before the burial, he could tell the size and gender of the hand of the person whom he alleged had strangled the poor child.

As another doctor, who wasn’t planning to testify anywhere about the case, put it:

“I saw a very similar case like that on ‘Law & Order: SVU,’ ” said Dr. Andrew M. Baker, the president of the medical examiners’ association and chief medical examiner for Hennepin County, Minn. “I’ve never heard of it in real life.” Dr. Baker said not only was the technique unheard of but so was the ability to speculate from those sorts of wounds about hand size or gender.

Dr. Hayne was fond of working with another “expert,” by the name of West.

Michael West was a dentist, basically. However, over a period of years testifying as an “expert” on the non-science of bite mark analysis, he became “a rock star in the world of forensics.”

West claimed to have developed techniques that he and only he could perform. According to West, those techniques could both identify bite marks on human skin that no other medical specialists could see, and then match those marks to one person, to the exclusion of everyone else on the planet.

But West’s claims—and testimony—of expertise went much farther than this.

He soon expanded his repertoire, and became an expert witness in a variety of forensic specialities, including a few he claimed to have invented. In addition to bite mark analysis, West also testified over the years as a a trace metals expert, wound pattern expert, gun shot residue expert, gunshot reconstruction expert, a crime scene investigator, blood spatter expert, “tool mark” expert, fingernail scratch expert, “liquid splash patterns” expert, and “video enhancement expert.” He once claimed he could match the bite marks in a half-eaten bologna sandwich found at the crime scene to the teeth of the primary suspect. Not DNA, mind you — the tooth marks in the bread. In another case, West even offered the jury his expertise about how lesbian couples resolve conflict.

That’s some expertise right there. Dude was good and woke.

Most of the world’s music is not, however, the output of rock stars. Go to any state, county, city, town, hamlet, and you’ll find people strumming their hearts out. Some, to be sure, may hope for stardom some day. Most are happy just to perform on karaoke night.

So it is with gang cops, or, as they’re more accurately known, “cops.” Cops who are assigned, temporarily, and possibly even for a long term, to arresting alleged gang members, and investigating crimes suspected to have been committed by alleged gang members.

Their primary gigs may involve crowing before a jury on occasion, but that’s only a small part of their repertoire, the necessary concomitant to busting down doors, breaking jaywalker’s heads, maybe shooting an unarmed person or two.

They have no more training for this than a garbage truck driver has for testifying as an expert on ocean-going plastics, a people-watcher at a mall has for the sociology of shoppers, or Michael West had for matching tooth marks in bread to the hapless target of a murder prosecution.

In theory, to testify as an expert in gang matters, one’s qualifications and testimony have to comport with the California Evidence Code. But as anyone who has ever had to fight a gang case can tell you, theory is one thing, and what actually happens in California courtrooms is another entirely.

In reality, this is just another flavor in the Baskin-Robbins of junk science from which all testifying “experts,” and the prosecutors whom they feed, double-dip. [4]First dip is to get the words that comprise the statute that will make their trick appear sanctioned by law. The second dip is to extract just those words that will allow them to hoodwink the judge—and sometimes themselves—into believing that the trick actually is legally sanctioned.

California Evidence Code section 720 says,

A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

Even more cool than this oddly-worded “qualify-if-he-has-sufficient-training-to-qualify” rule is what it takes to prove the qualifications to testify as an expert:

A witness’ special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.

Basically, the expert is an expert if the expert says the expert is an expert.

So long as the court believes this, of course.

Which is to say, as long as the witness is pro-prosecution: The briefest look through case law will show you that what it takes to get a court to believe is whether or not the expert can deliver convictions. For the more hard-core judges, it depends on whether the prosecutor says the dude (or dudette) is an expert—which the prosecutor will do only if the dude (or dudette) can deliver convictions.

Two further rules of California Evidence are supposed to limit things even further. Evidence Code section 801(a) requires that the opinion is:

Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact,

and Evidence Code section 801(b) says it must be,

Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

These rules, however, are stretched farther than the skin samples used in Michael West’s bite mark analyses. Only a judicial officer, or a prosecutor, could say with a straight face that they aren’t being broken every time a gang cop takes the stand.

Police Officers should not be in the position to testify as experts on the sociological behaviors of defendants at trial. An analysis of the relevant Evidence Code sections reveals several legal problems with this type of testimony. First, their opinions on motives and foreseeability are not beyond the common experience and therefore do not assist the trier of fact. Also, police officers are not sociologists, and have no training that could qualify them to offer expertise on sociological topics such as “gang sociology” or “gang culture.” The methods used by police officers to formulate their gang expert opinions are also unreliable, and have been widely criticized. Finally, the opinions offered by police officer gang experts introduce otherwise impermissible hearsay, character evidence, and profile evidence, and are more prejudicial than probative. [5]Ridley, Magdalena, Down by Law: Police Officers as Gang Sociology Experts (2015). Criminal Law Bulletin, Vol. 52, Issue 4, 2016, Forthcoming; Univ. of San Francisco Law Research Paper No. 2015-16. Available at SSRN: https://ssrn.com/abstract=2623694.

Sadly, and while this quote accurately states the problem, this is exactly why police officers who arrest gang members are allowed to testify as experts instead of—or sometimes for the purpose of trumping—those sociologists, anthropologists, and other properly-trained individuals. It’s not about getting it right; it’s about getting the conviction. To that end, the cop who is not trained in these things is better because of the things he is trained in: deciding on, and honing in, on a target; and knowing what is needed to get a conviction.

And, as I’ve said more than once already, that mostly requires dealing in bullshit, and knowing the best way to shape it to “prove” the case.

I once said that I could train someone to be a “gang expert” in about 15 minutes, or less. All that’s needed, really, is to figure out how to take something about your targeted victim, and make a statement that will appear plausible to a jury. If, along the way, you get caught up in a lie, or “make a mistake,” you spin it in a way that preserves your status as an “expert,” but refocuses the jury on your target’s rightful status as a target. What’s important is to remember your reason for being there.

[G]ang allegations and enhancements can multiply criminal penalties substantially. They are highly prejudicial and do great damage to the defense.

And no matter what happens, spin, baby, spin.

For example, in one California case, a gang cop testified that, among the other gang tattoos the defendant had was the tattoo “Brand.” This tattoo showed that the defendant was “in association with EME gang members.” Later, it turned out that the tattoo did not say, “Brand,” but “Brandy.”

And now the spin that diverts from the mistake, while preserving “expert” status, and refocusing on the intended target: This made more sense, since “Brand”—according to that same “expert,” so we may have to take this with a bucket or two of salt—”was connected with the Aryan Brotherhood.” Since the defendant also had a “Brown Pride,” tattoo, that was not a good match. [6]People v. Thomas, 130 Cal. App. 4th 1202, 1206 n.4 (2005). The actual tattoo, “Brandy,” by the way, was probably the defendant’s girlfriend’s name.

There’s your expert.

When you stop to think about it, the difference stated this way between what the cop does and fingerprint “science” quite similar. [7]The actual data is a bit more wishy-washy in behavioral areas, though. First, you “qualify” your expert. You tell the court, jury, or whomever needs to be convinced that the person who is going to testify to this has the proper training. For fingerprints, this means the fingerprint analyst will rattle off a list of official-sounding “schools” they attended, or “courses” they took, or “degrees” or “honorifics” they have. Maybe beef it up even more with the number of articles they’ve written, and possibly throw in a cool-sounding title or two.

Next, you lay a foundation. In fingerprint science, this includes information such as that everyone’s fingerprint is unique. There are no two fingerprints in the history of humanity that are alike. These fingerprints are stable across a person’s lifetime. A person trained to know what to look for can compare two fingerprints, and tell you whether the same person made both prints. [8]This is sometimes true. Except when it isn’t. This is so scientific that it can be done even with a small fraction of a full fingerprint.

In the “science” of determining if a gang member is a gang member, and is guilty of committing a crime because he is a gang member, you first spout a bunch of bullshit about the training and experience of the officer. The training will include official-sounding titles from organizations created by getting a bunch of police officers to become members. [9]By the way, just like the gang members they purport to study, they have cool monikers, symbols, etc. The California Gang Investigators Association, for example, has the Grim Reaper, with a gravestone engraved with RIP on it. There are other such organizations, with other such grisly gang insignia to identify themselves. These officers then write mostly-fictional stories, sometimes based on actual facts, about how gang sociology, culture, and psychology works. Forget that they aren’t trained in any of these things, the courses have official-sounding titles like “Outlaw Gangs and Organized Crime.”

And don’t forget, as the previously-linked-and-quoted article on Testifying in Court as a Gang Expert noted, to include classes you took long before you thought of becoming a cop. Did you take Introduction to Psychology in junior college? Add that to your list, because no one on the jury who went to junior college ever took that one. What about your high school Sociology class? See?! You’re trained in sociology!

After the judge rubber-stamps your qualifications, it’s time to talk about the “facts” about how gang members behave. Unlike ordinary human beings, they want respect. Unlike ordinary human beings, they become upset when they don’t get respect. Unlike ordinary human beings, they strike out at those who don’t give them that respect. They do this with guns. Gang members always carry guns (except when they don’t) because they’re gang members. And so on.

There’s your expert.

It’s science. No. Actually, it’s better than science: it’s forensic science.


1 comment:

  1. You should look at the way computer forensics are done by the prosecution. Someone from the police or the prosecutor’s office runs one of a few brands of commercial software that scans the disk or disks of a confiscated computer and produces a report with very little time spent to extract it. Anything that might be prejudicial to the defendant is shown to the jury, irrespective of its provenance (was it in spam? was the computer used by multiple people or available in a public place? part of a botnet, etc.) A defense expert has to spend many hours examining how the selected items could have gotten on the disk and finding exculpatory evidence of access by others. Naturally there isn’t much money available to pay for this. And my impression is that not very many skilled computer security professionals want to work for the defense of persons accused of distasteful crimes.

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