Download Campbell Law2015

The State of Things Six Years after the
NAS Report
March 23, 2015
© 2015 Diane MB Savage, Atty at law, Pres. NCAST
Lisa Miles, Atty at law
How It All Started For Me
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Heroin Case in DC
Analyst Was Guessing
at Results
Cases Dismissed
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Interest in George
Goode’s Case
Interest in
Challenging Forensic
Evidence
TRUST BUT VERIFY
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A simple idea underpins science
Trust but Verify
Results should always be subject to
challenge
Problem with Modern Science
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Success can breed complacency
Modern Scientists doing too much trusting
and not enough verifying
This to the detriment of the whole of
science and of humanity.
Half of Published Research
Cannot be Verified
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Some say it’s more!
A group at Bayer could repeat just one
quarter of 67 similarly important papers.
In 2000-2010, 80,000 patients took part in
clinical trials based on research that was
later retracted because of mistakes or
improprieties. (The Economist 10/19/13)
So Where Does That Leave
Us?
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FIX IT!
Transparency
Make Protocols Available in Advance
Data should be open for others to inspect
Tighten Peer Review
Post Publication Review with appended
comments. (has worked well in
mathematics and physics)
(Economist, 10/19/13)
Forensic Science – In Trouble!
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NAS report exposed various disciplines in
forensic science that had very little
scientific foundation.
Real problem is “things haven’t moved on
since then”. (Nature 2/15/15)
JUSTICE DEMANDS
GOOD SCIENCE
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Courts cannot now blindly follow
precedent that rests on unfounded
scientific premises.
This will and has led to unjust results.
Costly to taxpayers.
Why Aren’t Things Changing?
The great number of exonerations and
crime lab scandals has increased
recognition of deficiencies with
forensic evidence. Forensic evidence
presented in court is at times based on
speculative research, subjective
interpretations, and inadequate quality
control procedures.
NAS REPORT
Still Under the Radar?
On February 18, 2009, the
National Research Council (NRC)
of the National Academy of
Sciences (NAS) issued a report
to Congress sharply critical of
the forensic science system in
the U.S., finding an inconsistent
system rife with “serious
deficiencies.”
Problems Here and Everywhere
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What’s wrong with the SBI crime lab and
many forensic crime labs in general?
What’s been done about it?
What can we do about it?
See list of Crime Lab and Forensic
Scandals www.nacdl.org
Prison for Chemist
Annie Dookhan
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Declared drug samples positive that she
didn’t bother to test.
Tampered with evidence.
Forged signatures.
Lied about her credentials.
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NY Times 11/22/13
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Pled Guilty to 27 Counts
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Obstruction of Justice
Perjury
Tempering with Evidence
3-5 years Prison term
2 years Probation
What about the Audit?
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An audit of her work in 2010 found
NOTHING WRONG!
What does that say about audits?
Who audits the lab in NC?
Head in Sand Attitude
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Problems that plague the forensic science
community have been well understood for
quite some time by scientists – not so
much by the legal community, or have
they?
Call For Help Long Ago
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Congress passed legislation in 2005
directing the National Academy of
Sciences to create an independent
committee to study the forensic science
community.
NAS Report
Now 6 years old
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Except for Nuclear DNA, 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.
NAS Report S-5
February, 2009
NAS RECOMMENDATIONS
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Remove all public forensic labs and facilities
from the control of law enforcement
agencies or prosecution offices
Establish independent federal entity
National Institute of FS
Purpose - independent accreditation and
oversight of forensic scientists and forensic
labs
Hon. Harry T. Edwards
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Little research to confirm the validity and reliabilty of forensic
disciplines
Little research programs on human observer bias and sources of
human error in forensic examinations
Lack of autonomy of crime laboratories
Absence of rigorous mandatory certification requirements for
practitioners
Absence of uniform mandatory accreditation programs for labs
Failure to adhere to robust performance standards
Failure of forensic experts to use standard terminology in reporting
on and testifying about the results of forensic science investigations
Lack of effective oversight
Gross shortage of adequate training and continuing education of
practitioners
Carol Henderson
past president of the American Academy of Forensic
Sciences to AAFS members
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“We have been presented with an
opportunity to make forensic science serve
justice even more reliably and effectively.”
January 10, 2014
DOJ and NIST
National Commission on
Forensic Science
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Members
15 police, prosecutors, judges
10 academics
6 others include 2 NIST and the
Director VA Dept. of Forensic
Science
0 Independent Defense lawyers
(3 PD types)
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Bottom line – 1% representing
defense
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Work to improve practice
of forensic science
Develop guidelines re:
intersection s between
FS and CJ system
Develop uniform codes
for professional
responsibility
Requirements for formal
training and certification
The White House
Sub-Committee Report – 5/14
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http://aafs.org/sites/default/files/2015/
NonMeeting/WHITE_HOUSE%20SUB_COMMIT
TEE_FS_REPORT.pdf
SWECKER REPORT
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This report raises serious issues about laboratory
reporting practices from 1987-2003 and the potential
that information that was material and even favorable to
the defense of criminal charges filed was withheld or
misrepresented.
The factors that contributed to these issues range from
poorly crafted policy; lack of objectivity, the absence of
clear report writing guidance; inattention to reporting
methods that left too much discretion to the individual
Analyst: lack of transparency; and ineffective
management and oversight of the Forensic Biology
Section from 1987 through 2003.
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A series of Findings and Recommendations were
made to address these issues including an
immediate notification to the appropriate District
Attorney to review the listed cases and notify
any convicted defendants who may have been
adversely impacted; a legal review of the Lab’s
reporting methods; enhanced training; more
transparency in the Lab’s policies and
procedures and the designation of an
Ombudsman position to review and quickly act
on information regarding potential laboratory
issues and errors.
North Carolina’s response
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Lab Accreditation/New Lab Procedures
State Crime Lab (SBI lab) – new procedures went into
effect Sept. 17, 2012
http://www.ncdoj.gov/About-DOJ/State-Bureau-ofInvestigation/Crime-Lab/ISO-Procedures.aspx
 Request lab procedures in discovery!
 Put into place without review by NC Forensic Science
Advisory Board
Have been updated many times since Sept. 17, 2012
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Recommendations
1.
2.
3.
4.
5.
6.
Select a team or a person in the office to be the
“forensic experts”.
Train them in the various disciplines.
Have them available for consultation on specific cases.
Update training materials as needed.
Begin to formulate motions to challenge forensic
evidence routinely and to educate judges about the
NAS report and the Swecker report.
Identify and educate DAs who don’t want to use bad
forensic evidence in their cases (or strive to be one
yourself).
DON’T BE SCARED
- LEARNING THIS WON’T HURT YOU
- NOT LEARNING THIS WILL HURT OR
WORSE YET, KILL YOUR CLIENT
- SCIENCE IS LIKE BAKING – IT MUST BE
PRECISE
Not learning can kill your client
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325 DNA Exonerations Nationwide
154 Improper or Unvalidated Forensic
Science (Innocence Project.org)
KNOW THE BASICS: THINGS
CAN AND DO GO WRONG
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HUMAN AND TECHNICAL ERRORS
MISLABELING
MISRECORDING
MISREPRESENTATIONS
CASE MIX UPS
CONTAMINATIONS
INTERPRETIVE ERRORS
FALSE POSITIVES
FALSE NEGATIVES
PROBLEMS WITH INSTRUMENTS
PROBLEMS WITH ANALYST AND /OR METHODS
How to get the info
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Discovery/ Brady
Subpoena deuces tecum
Freedom of Information Act request
Public Record Request
Online Sources/ Libraries
THE STATE’S RESPONSE
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Too Burdensome
-How much time will it take?
Not a public document
Privacy Issues/ Official Privilege/Specific
privilege
Overbroad
The Documents Do Not Exist
-Why not? Is there another name for the
document?
Questions to ask
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Is it an ethical violation for prosecutors to
offer evidence with a statement of
individualization given the NAS report and
the Swecker report?
Are we as defense attorneys ineffective if
we do not have the knowledge necessary
to effectively litigate the scientific issues in
the case?
What Must Be Done
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Learn the science for each discipline
Find an expert to consult and assist
Make sure you have complete discovery
Evaluate the evidence carefully
Plan your strategy
Challenge admissibility pre-trial
Challenge the testimony of the forensic scientist
Present expert testimony
LAB REPORTS ALONE ARE
USELESS: MUST GET
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BENCH NOTES
PROTOCOLS
PROCEDURES
TRAINING MANUALS
QUALITY CONTROL MANUALS
CRIME LAB DIRECTIVES
PROFICIENCY STUDIES
VALIDATION STUDIES
CHAIN OF CUSTODY LOG
LOG OF CHEMICALS/DATES EXPIRATION
CONCLUSIONS NOT ENOUGH
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POSITIVE FOR THE PRESENCE OF BLOOD
Must find out scientifically:
STEP 1
STEP 2
STEP 3
STEP 4
–
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COULD IT BE BLOOD?
IS IT BLOOD?
IS IT HUMAN BLOOD?
DNA TO INDIVIDUALIZE
(DNA EXTRACT FROM SEMEN, BLOOD, TEETH, BONE, SALIVA,
SKIN CELLS, HAIR, URINE)
- DNA MATCH – Not enough info
WHY?
FALSE POSITIVES
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HORSERADISH, TOMATO, TURNIP,
JERUSALEM ARTICHOKE, POTATO,
CUCUMBER
SOME FRUIT EXTRACTS
SOME METALLIC SUBSTANCES
BACTERIA
WRONG RESULT
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IF PINK AFTER ADDITION OF
PHENOLPHTHALEIN BUT BEFORE ADDITION OF
HYDROGEN PEROXIDE
REACTION OCCURS 5 SECONDS AFTER
ADDITION OF HYDROGEN PEROXIDE
REACTON AFTER 5 SECONDS N.G.
NO REFRIGERATION
AREAS TO CROSS EXAMINE
ANALYST
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EDUCATION
TRAINING AND EXPERIENCE
BIAS
LAB PROBLEMS
HANDLING OF SPECIMENS
STANDARDS AND CONTROLS
INTEGRITY OF SAMPLES
RECORDING OF THE DETAILS
DNA IS NOT A BLOOD TEST
DEOXYRIBONUCLEIC ACID
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NO DNA TEST CAN TELL YOU
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TIMING OF DNA DEPOSIT
IDENTIFICATION OF CELL SOURCE
CIRCUMSTANCES HOW DNA WAS
DEPOSITED
STATE V. GEORGE GOODE
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POST CONVICTION
STATE WANTS TO UPHOLD CONVICTION
USES DNA 12 YRS. LATER TO TRY
NO BLOOD ON MR. GOODE
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1993
TWO TESTS ON COVERALLS NEGATIVE
LOOKING FOR “INVISIBLE BLOOD ON BOOTS”
SOLES OF BOOTS NEGATIVE
TOP OF LEFT BOOT “POSITIVE FOR THE
PRESENCE OF BLOOD”
MENTIONS “BLOOD” OVER 20 TIMES
“THINK ABOUT THE BLOOD ON THE BOOTS”
DOESN’T MENTION
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PRESUMPTIVE TEST ONLY ON BOOTS
“VERY SLIGHT LEFT BOOT, CAN’T SEE
ANY SPOTS”
NEVER DID A CONFIRMATORY TEST TO
IDENTIFY “SUBSTANCE” WAS ACTUALLY
BLOOD
HOW TO MAKE CONVICTION
STICK
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2004
SBI AGENTS SAY SEE A PHANTOM STAIN
ON COVERALLS
PROSECUTOR SAYS PROBABLY BLOOD
NOW LAB CAN DO DNA
LET’S DO IT
THE PLOT THICKENS
A PICTURE IS WORTH A
THOUSANDS WORDS
IF IT ISN’T OBVIOUS
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CO-MINGLED CLOTHES OF VICTIMS AND
THREE DEFENDANTS
BLOODY TAILGATE IN BIN
NOT INDIVIDUALLY PACKAGED
RE-PACKAGED
DISINTEGRATED BAGS
HANDLING BY NUMEROUS PEOPLE W/O
GLOVES AND W/O CHANGING GLOVES
SHAKING CLOTHES
Evidence will be returned
un-worked if:
The items were improperly packaged or
preserved.
 The items appear to have been
contaminated.
 The evidence was examined by another
agency or lab prior to submission.
 Stardard needed for comparison is not
submitted.
NC Crime lab PPT slide - 1/13/14
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THE ONION AND THE CAKE
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CONTAMINATION
CONTAMINATION
CONTAMINATION
CLEAN UP PRCEDURE TECHNICAL PROCEDURE MANUAL: DNA
UNIT DECONTAMINATION AND CLEAN UP
PROTOCOL
CHAIN OF CUSTODY
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NO CHAIN OF CUSTODY UNTIL WELL
AFTER MAR FILED (STARTS 9/98)
TRIALS IN 1993 AND 1994
EVIDENCE COLLECTED 1992
NO CONFIRMATION BLOOD
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AGENT SAID CHEMICALS OUT OF DATE
AND CAN’T REPORT
DIDN’T TRY AGAIN
TRACE EVIDENCE LOOKS
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70 X MICROSCOPE
STAINS ON COVERALLS
STILL NO CONFIRMATION
CUTS OUT AND CO-MINGLES
STAINS ON BOTTOM OF BOOT
CUTS AND CO-MINGLES
AGENT CLAIMS “BLOOD” DEPOSITED AT TIME
OF CRIME
“I KNOW BLOOD WHEN I SEE IT”
SBI CONDUCTS DNA
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LAB GETS RE-PACKAGED EVIDENCE
AGENT DOESN’T INFORM LAB HOW EVIDENCE
WAS KEPT
GEL ELECTROPHORESIS (Validated for over a
year)
FAILED TO GIVE RESULT (No DNA bands)
CAN SEE EXTRA BANDS IN STANDARD
(Indicative of Contamination)
DIDN’T END THERE
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CAPILLARY ELECTROPHORESIS
3100 – 16 SAMPLES AT A TIME; 20-30 MINUTES TO DO A RUN
(sensitive to .5 nanogram of DNA; .1 nanogram can give full profile
using known samples)
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Gels use 1 nanogram compared to .5 nanogram on 3100
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SEE EXTRA PEAKS – JUST DILUTE THEM OUT. (DILUTED 1:10 TO
GET RID OF SMALLER PEAKS)
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BECAUSE LESS DNA WAS ADDED TO THE SAMPLE, SMALL PEAKS
GONE
CHANGE THE REPORT IF THE
FIRST DOESN’T SUIT
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5/28/04 The DNA profile obtained
from the cuttings from the coveralls is
consistent with a mixture. The DNA
profiles obtained from the standards
submitted for the victims cannot be
excluded as a contributor to the
mixture. Additional bands were
present which cannot be
accounted for by the standards
submitted. No population frequency
data were generated for this item.
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The DNA profile obtained from the left
boot matched the DNA profile
obtained from the male victim.
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6/16/04 The DNA profile
obtained from the cutting from
the coveralls is consistent with
a mixture. The DNA profiles
obtained from the standards
submitted for the victims
cannot be excluded as a
contributor to the mixture. No
population frequency data
were generated for this item.
The DNA profile obtained from
the left boot matched the DNA
profile obtained from the male
victim.
DID I MENTION – ANALYST NOT
PROFICIENT?
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FREEMAN NOT PROFICIENT AT TIME OF TEST
NEVER GIVEN A BLIND PROFICIENCY TEST
ONLY ONE OF THREE MACHINES “VALIDATED”
(MONTH BEFORE)
MANUAL WRONG – SAID 80%VARIATION,
MEANT 20% (MANUAL NOT EVEN COMPLETED)
DISGUSTING, BUT NOT
SURPRISING
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DNA MATCH ON BOOTS
DNA MIXTURE ON COVERALLS
STATE CLAIMS DEAVER MUST HAVE BEEN
RIGHT – EVEN THOUGH SUBSTANCE ON
BOTTOM OF BOOT HAD NOTHING TO DO
WITH TOP OF BOOT
IF IT LOOKS LIKE A DUCK
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AND QUACKS LIKE A DUCK
IT’S A DUCK
“UP TO HIS ANKLES IN BLOOD”
CLAIMS THE STATE
IN SCIENCE
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IF IT LOOKS LIKE A DUCK AND QUACKS
LIKE A DUCK
YOU MUST PROVE IT IS A DUCK
EXPERT COMPLAINS
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WRITES TO ASCLD-LAB
SO SCIENTIFICALLY INAPPROPRIATE
HIGHLY RECOMMEND COMPLETE
INVESTIGATION
INTO ALL CASES AGENT PERFORMED TESTING
ON ITEMS WITH NO SUPPORTING SEROLOGY
REPORTS
CASE HAS APPEARANCE WHERE EVIDENCE WAS
SLANTED OR MANUFACTURED TO SUPPORT
PROSECUTING ATTY’S CASE
Judge Howard’s Order
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falsely portrayed to the jury that he conducted a
test for blood which indicated blood, not some
substance which might be blood,
Further, the prosecutor reinforced the
misleading testimony by arguing during closing
in listing the evidence of petitioner's guilt for the
jury to "think about the blood on the boots.
his misleading testimony is imputed to the State.
agreed with the attorneys' characterization of
the substance as blood without clarifying the
limits of the test.
OF COURSE THERE’S MORE
SBI HAS A PROBLEM
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CATAWBA COUNTY – STATE V. LABOY
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SBI REFUSED PROTOCOLS AND
ELECTRONIC DATA W/O COURT ORDER
NEVER ALLOW ON SITE INSPECTION
BEAL SUPPRESSED DNA EVIDENCE
lab said sperm came from female
 tests showed male client was female
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STILL MORE
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STATE V. LESLIE LINCOLN
- SBI Erroneously identified the victim’s
DNA as Leslie Lincoln’s DNA
- Prosecutor still wouldn’t give up and forced
Ms. Lincoln to trial. Verdict NG!
Darryl Hunt,
Gregory Taylor,
Michael Peterson,
others
Freed!
VIRGINIA LAB
NOW UNDER A CLOUD
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GOVERNOR ORDERS REVIEW OF MORE
THAN 150 CAPITAL MURDER
CONVICTIONS INVOLVING DNA
EVIDENCE
LAB PROBLEMS NOT NEW
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UNCOVERED IN CRIME LABS IN 19
STATES AND COUNTING AND THE FBI
CRIME LAB
- faulty blood analysis
- flawed hair comparisons
- contamination of evidence in DNA
testing
FBI ANALYST PLEADS GUILTY
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FBI ANALYST, JACQUELINE BLAKE,
PLEADED GUILTY TO A MISDEMEANOR
CHARGE OF MAKING FALSE STATEMENTS
ABOUT FOLLOWING PROTOCOL IN SOME
100 DNA ANALYSIS REPORTS
Conclusion
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Do not accept any forensic results,
including DNA, at face value
Information now more readily available
than ever
You can learn this, and you have to learn
it