August 01, 2017

Capital Litigators Crime Scene to Courtroom Forensics Training

By Carol Henderson and Eileen Fynan

As other articles in this issue demonstrate, attorneys desperately need more training in forensic science. Capital litigators, especially, have an acute need for such training. In the United States, 31 of the 50 states have the death penalty. When trying capital cases, both prosecutors and defense counsel need special knowledge to determine which scientific evidence is crucial and incorporate it strategically.

It is not the norm for a lawyer to graduate law school having attained adequate knowledge of forensic science.1 Only 25 percent of U.S. law schools offer courses in scientific evidence; courses may not be offered each semester and may be open to very few students.2 Thus, attorneys are sorely in need of specialized training in this area to ensure the proper administration of justice. Recent reports of forensic science failures highlight the importance of attorney training in forensic science. In 2015, the FBI acknowledged that its microscopic hair comparison analysis review revealed that in 268 cases where forensic examiners provided testimony to inculpate defendants, erroneous statements were made in 96 percent of the cases.3 Defendants in 35 of the cases received the death penalty, and errors were identified in 94 percent of those cases. Nine of the defendants were executed, and five died of other causes while on death row. Scientific evidence education for capital litigators can prevent such miscarriages of justice.

In 2015, the National Clearinghouse for Science, Technology and the Law (NCSTL) at Stetson University College of Law was awarded a federal grant (award 2015-CP-BX-K006) from the Bureau of Justice Assistance at the Department of Justice Office of Justice Programs to develop and deliver Crime Scene to Courtroom Forensics Training for prosecutors and defense lawyers representing indigent clients in death penalty cases as part of the Capital Litigation Initiative.

Through a series of six in-person conferences and 16 webinars, NCSTL offers various forensic science training topics and techniques, including Forensic Science 101, Forensic Report Wording and Statistics, Digital Forensic Technologies, Challenging Evidence—Methodologies and Development of Optimal Strategies, Forensic Science Research, Forensics after the NAS Report, Discovery Material, Expert Witnesses, and Preparing for Trial.

The conferences and webinar training series feature well-known speakers in the scientific, legal, and criminal justice communities. Many of the speakers are ABA members, including death penalty expert and Temple University Professor of Law and Director of Advocacy Programs Jules Epstein; Stetson University College of Law Professor Carol Henderson, Director of NCSTL and Co-Chair of the ABA Science and Technology Law Section Life and Physical Sciences Division; and Matt Redle, Chair of the ABA Criminal Justice Section and County and Prosecuting Attorney for Sheridan, Wyoming.

The training and education section of NCSTL’s website (http://www.ncstl.org/education) provides in-depth information about the Crime Scene to Courtroom Forensics Training series and future training opportunities. Attending a live webinar session allows participants to submit questions to guest speakers. The “Essentials of . . .” webinar series includes the most current information on crime scene investigation, crime laboratory processing and procedures, and forensic pathology, with additional timely topics planned for future release.

On-demand videos, training materials, and reading lists are available for those unable to attend a live webinar training. CLE credit is available to all participants whether attending a live session or viewing the webinar at a later date. In addition, the NCSTL forensic database (http://www.ncstl.org/search/keyword), a collection of thousands of bibliographic records for forensic and criminal justice–related information, is a valuable resource for researching the nexus between science, technology, and the law.

NCSTL’s goal is to enhance the fair administration of justice by providing training in forensic science and expert testimony to prosecutors and defense attorneys who represent indigent defendants in state capital cases. NCSTL believes that lawyers must be able to understand science and the ways it could and should be presented in the courtroom. Attorney training in scientific evidence and the use of expert witnesses is essential to improve legal representation and ensure reliable outcomes in capital cases. The Crime Scene to Courtroom Forensics Training series offers much-needed interdisciplinary education in this critical area. u

Endnotes

1. Nat’l Research Council, Nat’l Acad. of Scis., Strengthening Forensic Science in the United States: A Path Forward 234–39 (2009).

2. Mara Merlino et al., Science in the Law School Curriculum: A Snapshot of the Legal Education Landscape, 58 J. Legal Educ. 190 (2008).

3. Press Release, FBI, FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review (Apr. 20, 2015), https://www.fbi.gov/news/pressrel/press-releases/fbi-testimony-on-microscopic-hair-analysis-contained-errors-in-at-least-90-percent-of-cases-in-ongoing-review.

By Carol Henderson and Eileen Fynan

Carol Henderson (Henderson@law.stetson.edu) is the director of the National Clearinghouse for Science, Technology and the Law (NCSTL) and a professor of law at Stetson University College of Law. Eileen Fynan is the director of technology and distance education for NCSTL.