A Texas Approach to the Intersection of Science and the Law

Training Concepts

Because the CCA is the court of last resort for criminal matters and is presently one of the busiest appellate courts in the country, it is in the position to see the most compelling issues dominating the landscape of the criminal justice system. And because the court oversees the education grant, it also has the unique opportunity to address those issues and see that they are examined, dissected, taught, and (hopefully) resolved. Ideally, problems should be addressed at the front end of the criminal justice process, but training and the willingness to learn and apply that education will be forever necessary. The best solution is collaboration, without finger-pointing, and education, education, education.

In a CSI world, much is expected of those who become engulfed in the pursuit of justice. This is particularly true because the public has an expectation that often does not differentiate fiction from reality. Lawyers have a responsibility to present information necessary to allow a fact-finder to properly resolve a case. But they also must be able to present forensic science in an understandable fashion and dispel the myths and inaccuracies of the sciences that are presented in the courtroom. The problem is that the lawyers are not scientists and the scientists are not lawyers. So, to achieve the ultimate goal of accuracy in the final outcome, and to reinforce public confidence in the criminal justice system, training about the intersection of law and science is a must. And because teaching does not necessarily denote learning, repetition and hands-on instruction are imperative, especially when individuals are faced with topics they do not readily grasp or have not been exposed to previously.

Training is also hindered by the fact that most professionals, already secure in their field of practice, find it difficult to immerse themselves in areas totally new or that call for learning a new skill. And, in a group of peers, it is often difficult to be the one person who wears the “I have no clue what they are talking about” face. A bit of private humor: I was privileged to attend a week-long training at a federal laboratory. They informed us that we would be performing a physics task during our stay. I laughed to myself, thinking this must be a joke; after all, I am a lawyer and I can barely spell “physics.” But we, in fact, did complete a physics problem, which was designed to teach lawyers how a scientist actually performs a problem-solving task. The most important, and yet basic, thing we learned was the scientific method. In addition, we observed a case study in which scientists gave mock testimony about a real scenario, and two lawyers skilled in that area of science questioned them. Those observing (like me) then asked follow-up scientific and legal questions. To me, this resulted in a true understanding of the intersection of science and the law.

CCA Delves into Scientific Education

The CCA’s first foray into the forensic science world came with allegations of “innocence” and “wrongful convictions.” Session after session, the legislature grappled with proposed laws suggesting wide-sweeping changes to Texas’s criminal codes. Eyewitness identification was one of the first areas of the law that was questioned. And despite the debate over whether eyewitness identification could even be classified as a “science,” changes were necessary to correct large numbers of mistakes throughout the country and prevent future ones.⁵ Many of the eyewitness-identification cases were cleared largely through DNA, a “hard” science that was already a trusted criminal justice tool.⁶

In the midst of debate, consternation, doubt, and reason, the CCA called on national experts, including Barry Scheck of the Innocence Project of New York and Gary Wells of Iowa State University, to educate the court about new eyewitness protocols and procedures. The CCA was then inspired to back efforts to educate on the topic and to support new legislation. The well-presented, well-researched, and well-documented information delivered to the court not only served to educate its members, but also has become a traditional method by which the CCA delivers introductory education on various criminal justice topics to other stakeholders. The court either directly, through collaboration with other stakeholders, or through its grantees has overseen a great deal of training on eyewitness identification. It gave $40,000 to the Bill Blackwood Law Enforcement Management Institute of Texas, which was the organization tapped to develop and implement training for law enforcement,⁷ and $7,000 to the Texas Police Chiefs Association, to likewise train its members.

Laws were implemented to address post-conviction challenges to existing convictions, many of which involved scrutiny of long-held ideas of “science” used in the courtroom. At the same time, the CCA received thousands of post-conviction writ applications, many containing allegations of questionable science, outdated science, or malfeasance in the application/analysis of science. The court is required to act on every writ application, and writ cases comprise the bulk of the court’s work. Thus, new challenges dictated additional education, not only about preparing and filing writ applications, but also for additional attention to the sciences so claims of false science, bad science, “junk science,” improper use of science, new science, and laboratory error could be reviewed and resolved. The CCA, together with the State Bar of Texas, hosted a comprehensive writ seminar in December 2016 to help practitioners navigate the complex waters of writ law in Texas, which is at best an arduous task.

Texas Criminal Justice Integrity Unit

In 2008, the CCA established the Texas Criminal Justice Integrity Unit (the Unit), an ad hoc committee composed of 14 members who represented a cross-section of criminal justice participants. The court was careful to select people dedicated to education in the sciences and the law and people who were not “bomb throwers.” Not only has the Unit supported successful legislative endeavors, such as amendments and additions to the Texas Code of Criminal Procedure for statutes governing eyewitness identification protocols⁸ and DNA, but it also has addressed videotaped confessions, arson, and various other laboratory issues. Unit meetings are held at the court and are open to the public. The court specifically targets grantee representatives from Fund 540, inviting them to attend so that they can see what new topics or areas of concern are before the court or other stakeholders in the system. The Unit’s presentations often involve new information in an evolving field of science. This educational tool gives a preview of future training events and allows the court to share the advantage of expert-speaker presentations, all of which can be taken back to the grantee’s constituent groups for additional training. The Unit was also responsible for the passage, through one of its legislative members, of a bill that called for the creation of a storage facility to barcode and store biological evidence for counties with a population of 100,000 or less.

The court and its grantees have addressed a broad range of topics, such as wrongful convictions, Brady, expert witnesses, false confessions, and, of course, forensic sciences and the law.⁹ With respect to forensic sciences, there are a number of important areas that deserve attention.¹⁰

Interaction with Texas Forensic Science Commission

The court has developed a standing relationship with the Texas Forensic Science Commission and stays abreast of their investigations and reports on the scientific advances and changes in the world of science. The Commission also tracks court decisions dealing with the sciences. The CCA often collaborates with the Commission on training projects, including hosting joint conferences on forensic science open to all and free of charge. Any funds needed to reimburse speakers have often been paid through the court’s grant. Currently, the CCA and Commission are planning another “across the board” joint conference—focusing on collection, preservation, and storage of evidence—for the near future. Representatives of the CCA also attend Commission meetings to ensure the court stays well informed about evolving issues in science, and also to keep open communication with other state and national forensic training entities and to share ideas for training, funding, systemic concerns, breaking news in science, and the impact of science in the law.

The CCA has worked with crime laboratories on many occasions to provide both general and topic-specific training assistance. Both virtual and in-person tours of laboratories are important to gain an understanding of just how intricate the work of scientists is. One seemingly small, but very important, training opportunity provided by the Texas Department of Public Safety (DPS) was training court personnel around the state about the proper separation and storage of evidence after trial.¹¹ Even though Texas law appeared to account for the return of guns and drugs to law enforcement after trial, we found many instances of biological evidence being stored in places like hot Texas attics or improperly refrigerated facilities. DPS scientists thus gave presentations around Texas to criminal justice stakeholders on this important issue.

CCA Approach

The court’s most successful endeavors, however, result from “across the board” training bringing together as many stakeholders as possible from all over the criminal justice system. This includes law enforcement, laboratory technicians and analysts, subject matter experts, attorneys, judges, legislators, academicians, scientists, statisticians, members of the public, exonerees, and other interested parties. The CCA develops curricula based on several different sciences and enlists multiple presenters. As part of such training, hypothetical scenarios are developed for demonstrative purposes based on the sciences and the prospect of introducing or excluding the scientific information in the courtroom. Many are based on actual cases that have been disposed of, thus giving a “real life” depiction of the intersection of law and science. These examples require an examination of the rules of evidence, applicable legislation, and a general knowledge of the roles to be played by the judge as gatekeeper, the advocates, and the ultimate fact-finder. A general understanding of basic scientific principles and the need for statistical- and data-driven support also is required. The CCA believes that this method of training keeps everyone on the “same page” and allows for the free exchange of ideas and questions at the end of the conference. The court has found that an open dialogue between the stakeholders brings forth a basic understanding of the roles everyone plays and the limitations, expectations, and responsibilities of all involved. It encourages constructive dialogue of the different methods employed by various actors in the criminal justice system (e.g., judges, prosecutors, defense attorneys, etc.).

Lawyers should want to know what a forensic laboratory can and cannot do and why. They should understand the processes and protocols of laboratories. They should know what the scientists report, know why the scientists report what they do, and know why they do not report everything. They should want to know about oversight and training for the scientists. Attorneys should know the protocols of the laboratories, the qualifications of the technicians, and the reason they should ask for and why they may need an entire case file versus only a report.¹² Critically, attorneys also should know how to read the reports, how solid the science is, and whether statistics support the science. They also should know how to examine an expert witness about a particular science and the best method for delivering the information to the trier of fact. They should want to know how to challenge witnesses, among other topics, and what the other stakeholders in the criminal justice system are prepared to present, rule upon, or decide.

Despite many suggestions to isolate the various stakeholders and educate them separately, we have had much success training “across the board.” However, the “across the board” training never impedes the individual grantee training groups from educating their own constituents how they see fit, but the court believes that, if it is science, it is science for everyone, just as if it is law, it is the law for all. But like the law, science is always evolving and so continual training is necessary. What the individual constituent groups teach their own about what to do with what they have learned is their forte. Traditionally, when the court offers this type of training, it is recorded for posterity to be posted on the Internet to be viewed free of charge, and when the training is at the state capitol, it also can be viewed through the internal television network so anyone in the capitol, including legislators, can contemporaneously watch the live training.¹³ This type of training is often inexpensive.

Another useful tool was put into play after the National Academy of Sciences (NAS) report¹⁴ was published in 2009. The court surveyed criminal judges in Texas and asked them such questions as whether they had read the NAS report or (at least) the summary. The judges were given citations so they could read at least the summary, but, more importantly, they were asked a series of questions designed to see just how much general “science” they knew, to determine whether they were aware of the new challenges involving science, and to evaluate their ability to properly perform as gatekeepers. With an approximate 23 percent response, judges candidly acknowledged that they were in great need of education, particularly regarding the intersection of science and the law and their gatekeeping role. As a result, judicial training grantees have targeted specific areas in need of immediate or repeat training.

But the most useful instrument in all of this has been the realization that small, steady, and oftentimes simplistic steps must be taken to move all the attorneys, including the judges, to a higher level of comfort in our CSI world. At the same time, the court must be forever cognizant of the need to have scientists understand the law and how to bridge the gap of knowledge between those two very important parts of the system. More time should be dedicated to working with those called upon to testify so they can understand the limitations of what they can testify about with sufficient statistical support. At the same time, attorneys must learn that scientists need the ability to fully explain their findings or opinions, and that they testify to facts, not necessarily a strategic endeavor.

Endnotes

1. Tex. Const. art. V, § 1.

2. Tex. Gov’t Code ch. 56.

3. Judicial & Court Personnel Training Fund, Tex. Court of Criminal Appeals, http://www.txcourts.gov/cca/judicial-court-personnel-training-fund (last visited July 31, 2017) (listing of current grantees). Current grantees are (1) Texas Association of Counties, (2) Texas Center for the Judiciary, (3) Texas Criminal Defense Lawyers Association, (4) Texas District and County Attorneys Association, (5) Texas District Court Alliance, (6) Texas Justice Court Training Center, (7) Texas Municipal Courts Education Center, and (8) the Center for American and International Law. Id.

4. Some of those entities include

• The Texas Legislature
• The Office of the Governor, State of Texas
• The National Center for State Courts
• The American Bar Association
• The State Bar of Texas
• The Texas Forensic Science Commission
• The National Commission on Forensic Science
• The U.S. Department of Justice
• The National Institute of Science and Technology
• The National Institute of Justice
• The Federal Bureau of Investigations
• The International Association of Chiefs of Police
• The Texas Department of Public Safety
• Stetson University
• The State of Arizona
• The Innocence Project of New York
• Various innocence projects throughout Texas
• Public and private forensic laboratories
• The Center for Statistics and Applications in Forensic Evidence
• The American Association for the Advancement of Science
• The Correctional Institutional Division of the Texas Department of Criminal Justice
• The University of Texas
• Bill Blackwood Law Enforcement Management Institute of Texas

5. National Registry of Exonerations, http://www.law.umich.edu/special/exoneration/Pages/about.aspx (last visited July 31, 2017).

6. Id.

7. The organization that was awarded the grant is called the Bill Blackwood Law Enforcement Management Institute of Texas (LEMIT). LEMIT, http://www.lemitonline.org (last visited July 31, 2017).

8. Tex. Code Crim. Proc. Ann. art. 38.20 (governing photographic and live lineup identification procedures).

9. Some of the topics covered include

• Funding
• Oversight of the use of science in the courtroom
• Virtual tours of forensic laboratories
• Laboratory quality-of-service protocols
• Licensing and certification requirements for forensic scientists
• How to interpret and use laboratory reports/case files
• Relevant terminology necessary to understand sciences used in the courtroom
• Biases (e.g., confirmation bias, etc.)
• The scientific method
• Statistics
• The forensic science reports from the National Academy of Science and the President’s Council of Advisors on Science and Technology
• Notification when there is an “irregularity” in the criminal justice system
• Rules of evidence
• Precedent
• Legislation
• How to effectively use scientific knowledge on direct and cross-examination
• Ethics
• Wrongful convictions
• False confessions
• Criminal informants
• Expert witnesses
• Brady/discovery
• Investigation
• Prosecutorial use of science
• Defense use of science
• Judicial gate-keeping
• Trial procedure

10. There are a number of important areas of forensic science that should be examined:

• Collection, preservation, and storage of evidence
• Toxicology
• DNA
• Firearms and tool marks
• Microscopic hair analysis
• Trace evidence
• Arson
• Fingerprints
• Footprints
• Digital and multimedia
• Laboratory accreditation
• Laboratory backlogs
• Bite marks
• Junk science
• Human factors
• Planning for the future

11. “The Department of Public Safety shall adopt standards and rules authorizing a county with a population less than 100,000 to ensure the preservation of biological evidence by promptly delivering the evidence to the Department of Public Safety for storage in accordance with Section 411.053, Government Code, and department rules.” Tex. Code Crim. Proc. Ann. art. 38.43(f).

12. A report is a summary of the forensic laboratory technician’s findings, and it is based on the case file, which contains all information regarding the case.

13. Texas Criminal Justice Integrity Unit, Meeting Materials, Tex. Court of Criminal Appeals, http://www.txcourts.gov/cca/texas-criminal-justice-integrity-unit/meetings (last visited July 31, 2017).

14. Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward (Nat’l Academies Press 2009).