Forensic Evidence

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Defender Strategies When Confronted With “Scientific” Evidence

The history of forensic science dates back to as early as the 7th century, when China used fingerprints to identify documents and clay sculptures. Subsequently, in 1248 A.D. a groundbreaking Chinese book, Xi Yuan Ji Lu (洗冤集錄, translated into English as the Washing Away of Wrongs), described various physical differences between the bodies of people who died from natural or unnatural causes, specifically, how to tell the difference between a person who has drowned and a person who has been strangled; it is the first recorded application of medical knowledge as a legal tool to solve crimes. The book represented a significant advance in the field of forensic science, and offers advice that is still useful today.

A criminal defender can be confronted with many different types of evidence when defending a case: sometimes the evidence comes from people: incriminating statements/ confession from the client, statements by witnesses, victims, etc. You may also be confronted with physical (or material) evidence: tangible evidence (as a weapon, document, or visible injury), as well as the results of scientific tests or evaluations performed on that physical evidence. It is this type of scientific evidence that is the focus of this discussion.

OVERVIEW

In many criminal cases, science and technology can be useful in determining the facts and, subsequently, the truth about what occurred. The result of scientific research, tests and analysis can often be the difference between acquittal and a conviction in a court of law.

Forensics is the use of science and technology to investigate and establish facts in a court of law. In preparing for trial, defense counsel must investigate not only the statements of witnesses, documentary evidence and the statements of his client, but the presence or absence of physical evidence. Any physical evidence must then be evaluated to determine its relevance to the case. Physical evidence may be anything tangible: evidence so small that a microscope is needed to see it, or as large as a truck. It may be as subtle as traces of gas at a suspected arson or as obvious as a pool of blood at a homicide scene. There is an enormous range of potential material which qualifies: hair, fibers, blood, fingerprints, seminal and body fluid stains, alcohol, drugs, paint, glass, soil, flammables, tool markings, weapons and foot prints.

Forensic science is merely the application of a broad spectrum of sciences to answer questions of interest to the legal system. It is a multidisciplinary subject, drawing principally from chemistry and biology, but also from physics, geology, psychology, social science, etc.

Forensic evidence can be strong evidence of your client’s guilt or innocence in a criminal case, often the most powerful evidence of all. After all, victims and witnesses can be mistaken, or lying. They may have a bias against you client and want to see him harmed. And we know confessions can be obtained even from the innocent. Innocent clients can admit guilt as a result of coercion, confusion, or fear. Thus, forensic evidence can often be a more objective and reliable way of determining the facts of a case. When properly obtained and examined, physical evidence can answer such questions as "What happened?", “What was the cause of death?”, “What object may have caused the injury?”, and “Who was present at the crime scene?”

Basic Principles of Forensics

There are a few scientific concepts every defender must know about in order to begin to understand, effectively utilize and challenge forensic evidence. These ideas should be considered and reviewed as you evaluate the evidence against your client; they can be valuable tools in putting forth a strong defense, as will be shown in the information and Case Histories that follow.

Law of Exchange

The Law of Exchange principle forms the basis of much of forensic science. It was first proposed in the early 20th Century by Edmond Locard, who founded the Institute of Criminalistics at the University of Lyon in France. Essentially, the law is this:

When two objects come into contact, there is always an exchange

What this means is that every time an individual comes in contact with a place or another individual, something of that individual is left behind at the place, and something of that place is taken away with the individual. Every contact leaves a trace. So when you shake hands with someone, or hug your relative, or sit down on a chair, each contact will leave some piece, or trace, of evidence. This evidence could be fibers from clothes, hair that has fallen out, carpet fibers from shoes, dirt from the ground, skin flakes that fall off the body, etc.

Transfer/ Trace Evidence

This is the material that is left behind whenever there is a contact between two things. It can be a tiny particle of the object, or a hair, fingerprint, blood, etc.

Primary (Original) Transfer

This is the transfer of evidence that would have occurred during the crime itself, for example when the person who committed the crime left behind a fingerprint, or piece of hair. Often evidence used against our clients is alleged to be a primary transfer, and therefore proof of our clients guilt - because it associates them with particular locations, items of evidence or victims. In fact, often such evidence is the result of secondary transfer.

Secondary Transfer

The concept of secondary transfer refers to an exchange of evidence between objects or persons that occurs either before or after the primary transfer of evidence, and that is not necessarily associated with the commission of the crime itself. In some cases, defense counsel may successfully be able to argue that the physical evidence upon which the prosecution is relying in order to establish the client’s participation in the crime is evidence only that the client came into contact with the scene of the crime, evidence or victim at some unrelated point.

Examples of Primary vs. Secondary Transfers

  1. Late at night during a melee in which many people were involved, a criminal stabs a man and drops the knife. He leaves his fingerprints behind on the knife (primary transfer).
  2. After the stabbing, our client, who was also involved in the melee but not the stabbing, picks up the dropped knife. He leaves his fingerprints behind (secondary transfer).
  3. In beating a woman, a criminal has her blood on his hands from the assault (primary).
  4. After the assault, our client approaches the victim in an attempt to help her; he touches her body and as a result has the victim’s blood on his hands (secondary).

Chain of Evidence/ Custody

Chain of custody refers to the sequence of events of a piece of evidence as it goes from the place where it is initially found (scene of the crime) up until the time it appears in court. Think of this as an actual chain, with pieces that are connected. Every part of the chain should be documented - from discovery at the crime scene, through evidence gathering, storage, lab analysis, return to storage, transfer to court, etc. The purpose of such documentation is to ensure that the evidence offered by the prosecution is the same thing the investigators seized, and that it has been in possession of, or secured by, a responsible person at all times. By thus evaluating the chain of custody, one can make certain of its integrity. Every link should be documented by date, time, person handling the evidence, what was done with the evidence by that individual, what tests were performed and where. In many cases there will be gaps in the chain of custody; if the evidence cannot be accounted for and documented in any one step of its journey from crime scene to court room you should argue the evidence has been contaminated and should not be relied on by the court. In so arguing, defense counsel should cite the Criminal Procedure Law which states that evidence must be reliable and sufficient (art. 162(1)) as well as relevant regulations that require chain of custody procedures to be followed in the collection and maintenance of evidence (see e.g., art. 1 of the Regulation of Forensic Science DNA Laboratory GA/T383-2002, “The object that will be tested [by the DNA laboratory] should be packaged separately, and there must be clear indication on the package of name, origin, amount, the date of collection, and the name of the people who collected it”)

Contamination

Contamination occurs whenever an outside force has an effect on a crime scene or the evidence found within it. When physical evidence has been altered prior to or during its collection and examination then contamination has occurred. For example, when police officers or witnesses enter a crime scene there is always a disruption of evidence. Other factors can include weather, time, decomposition of the body, insects, animals, etc. Potential contamination of physical evidence can also occur at the crime scene, during the packaging, collection and transportation of the evidence, and during evidence analysis and storage. Crime scene contamination results through the actions of the personnel at the crime scene. In general, the greater the number of personnel at the scene, the more likely it is that the scene/evidence will be severely contaminated. Public security officials or other investigators or individuals can deposit hairs, fibers or trace material from their clothing or destroy latent footwear or fingerprints. Footwear patterns can also be deposited by crime scene officers or anyone entering the scene. As the Law of Exchange has taught us, when two objects come in contact with each other they exchange trace evidence. Each time someone enters a crime scene, they not only leave trace evidence behind, but also take evidence away from the scene. Even if a reliable chain of evidence may be established by the prosecution at trial, physical evidence may have been altered prior to or during its collection and examination. A criminal defender should understand that there is usually some contamination of every crime scene; this fact should be argued whenever possible, and used to the clients’ advantage.

Case History #1

In April 2003, a woman was attacked with a knife in her home while she was sleeping, and suffered serious injuries. She was not able to identify her attacker(s). Initially she had claimed that three people had attacked her. However, at trial, the prosecution claimed that only one man had attacked the victim – the defendant. A few days after the incident the defendant was arrested for attempted murder. He became a suspect because his family had previously been involved in a civil case with the victim’s family, although his family had been successful in the civil case, and because he lived in the same apartment building as the victim.

On May 10, after several days of interrogation, the defendant confessed to attacking the victim while she was sleeping. A picture was taken on May 15 at the scene of the attack, which showed a left footprint of a particularly well known brand of shoe, approximately the same size as that of the defendant. The police search the defendant’s home, but could not find the shoes.

There had been no indication of a footprint at the scene prior to the defendant’s confession, and no explanation as to why the photograph was taken a month after the attack. The potential of contamination of the crime scene was very great, given the number of people that had access to the scene during the month after the attack.

The defendant was convicted, but the case has been appealed.

Investigation and Evaluation Procedures

The following are a description of select procedures that can be utilized to investigate, evaluate and test physical evidence for use in criminal cases.

Scene of Crime

Much of the physical evidence that is ultimately utilized in court is taken from the scene of the crime. While this information can be invaluable in ascertaining the truth in a criminal case, certain procedures must be followed in order to ensure the utility and integrity of this evidence. The validity of forensic evidence is only as good as the manner in which it was (1) collected, (2) preserved and transported, and (3) analyzed. It is critical that when crime scene evidence is presented, a defender investigate and challenge the way the evidence was obtained and tested. In major crimes like a homicide, investigators must gather evidence to determine:

  1. Who killed the victim?
  2. What exactly happened?
  3. When did it happen?
  4. How did it happen?
  5. Did it happen here or was another crime scene involved?
  6. Who is the victim?
  7. Why was this crime committed?
  8. What evidence is there to help prove the motive and the crime?

In a homicide case, the crime scene can provide significant information on which to base an investigation. For example, an investigation of the scene may reveal the identity of the victim, the approximate time of death, and important evidence and/ or clues to the circumstances of the death. Anything and everything may constitute evidence at the crime scene.

Overview of Crime Scene Investigation Techniques

The Collection of Evidence

Many times investigators will not take the proper precautions needed to insure the validity of forensic evidence. Remember the concept of contamination: Investigators who are at the crime scene can deposit hairs, fibers or trace material from their clothing or destroy latent footwear or fingerprints. Footwear patterns can also be deposited by crime scene personnel or anyone entering the scene. As the Law of Exchange tells us, when two objects come in contact with each other they exchange trace evidence. Each time someone enters a crime scene, they not only potentially leave trace evidence behind, but also take evidence away. Further, investigators may neglect to collect evidence that is essential to determine what actually occurred. That is why it is important to find out what steps investigators did (and did not do) in finding material evidence. The following is a detailed list of what investigators should do at a crime scene. If you discover that some of these steps were not taken, there is a possibility that evidence may have been neglected by investigators, contaminated, or otherwise distorted. If investigators do not adhere to best practices when investigating the scene of a crime you may argue the evidence gathered is unreliable and therefore should not be accepted by the court. On the other hand, if the prosecution does not introduce physical evidence that one would expect to find at the scene of the crime (examples: no blood where it should have been; no fingerprints or the presence of unknown fingerprints at the scene; fruitless searches of the suspect’s person, house or car), defense counsel may argue that the police thoroughly investigated and analyzed the crime: Physical evidence was not discovered as it did not exist. Other evidence such as witness statements or the client’s confession are unreliable as witnesses, or even the client, were mistaken, inaccurate or lied about what occurred. The client is innocent of the charges.