COUNTERING THE SO-CALLED “CSI EFFECT”

COUNTERING THE SO-CALLED “CSI EFFECT”
By Susan Jackson Balliet, Appeals Branch
This article suggests strategies for countering
irrelevant, inconclusive, cumulative, and otherwise
doubtful forensics evidence flooding our courts
supposedly to “counter CSI.”1
When viewers of CSI2 and other television shows that
overstate and glorify the power of forensic science serve as
jurors, they may be more critical and less persuaded by
forensic evidence than is commonly presumed.3 In fact there
may be no link at all between CSI and a demand by jurors for
more “scientific” evidence.4 But these days when
prosecutors tell trial courts they need to counter the “CSI
effect,” they are often allowed to present every preliminary,
questionable scrap of forensic evidence they can find –
relevant and probative or not—on the theory that without it,
CSI-tainted jurors won’t convict. By citing the CSI effect,
the Commonwealth is asking the court to take judicial notice
that such an effect exists, and to relax evidentiary standards
because of it. Defenders should demand Daubert5 hearings
to force the Commonwealth to prove the CSI effect exists.
Courts should not be allowed to grant a relevance, or Daubert
override, based on speculation about some popular
television show.
A Daubert, or KRE §§ 401, 403 override is the all-too-frequent
result when the Commonwealth cries “CSI.” For instance,
one Kentucky prosecutor recently spent a good twenty
minutes “countering the CSI effect” with detailed testimony
regarding the mapping, measuring, and detailed
photographing of dozens of red spots outside a crime scene,
all of which –it turned out—were paint. Proving the spots
were paint foreclosed any argument that the spots were the
victim’s blood. But since they were paint, it was irrelevant
under § 401 how big each spot was, how many spots there
were, and what the distance was between each spot. Under
§ 403 this additional forensics evidence wasted the time of
everyone in the courtroom. Except, of course, the prosecution
benefited by puffing and glorifying the thoroughness of its
investigation.
In the same case, the court allowed lengthy testimony and
photos of strings elaborately converging at the head of a
bed to prove “scientifically” that the victim’s head had been
crushed right where all the blood was. Plotting trajectories
of blood might conceivably have been helpful if the exact
point of attack had been in question. But it was not in
question, and the string trajectories had –at most—
cumulative value. Testimony and photos of a myriad strings
cross-webbing the room were impressive.6 And because
they were impressive, they were prejudicial, bolstering the
credibility of the police investigation, making the police look
oh-so-scientific.
Another Kentucky court recently allowed evidence of
unconfirmed sniffer dog “alerts” to prove arson despite the
fact that subsequent lab tests (which would have identified
ignitable liquids –had they been present— at the miniscule
level of 15 – 20 parts per million) were all negative. At the
Daubert hearing, the court stated that due to the “CSI effect,”
the Commonwealth would be “prejudiced” if the dog’s
opinion did not come in, and allowed the unconfirmed dog
evidence because the jury “expected the use of scientific
tools.”
This stuff fails to meet KRE §§ 401, 403, and 702.
Evidence like the tedious measuring and mapping of paint is
objectionable under §401, relevance, or under §403 on the
grounds that extensive evidence regarding mapping and
measuring paint will confuse and mislead the jury into
thinking the paint has significance, and will needlessly delay
the proceedings. The objection to evidence like the string
evidence is under §702, that no matter how scientific the
Commonwealth’s “string theory” might be, the jury needs
no assistance in figuring out where this attack occurred.
Under §403 the string evidence also constitutes “needless
presentation of cumulative evidence.” Unconfirmed dog
evidence is objectionable under §702, Daubert, and Kumho
Tire,7 because by definition it is too unreliable to pass muster.
An objection may not prevail,8 and in Kentucky it will
probably not prevail if the sole complaint is that the evidence
is cumulative.9 But the “CSI effect” has not been proved to
exist, and should not be accepted as the ticket to an automatic
relevance or Daubert override.
Preliminary tests are inadmissible under Daubert and
Kumho Tire.
Inconclusive, preliminary test results —including but not
limited to presumptive blood tests (including luminol and
preliminary breath tests), presumptive drug tests,
unconfirmed sniffer dog alerts, and –nowadays—
microscopic hair analysis—constitute a major category of
dubious, irrelevant forensic evidence prosecutors attempt
to introduce to “counter CSI.” This evidence should not
come in. The Kentucky Supreme Court has recognized that
preliminary, presumptive toxicology test results are properly
excludable because they are by definition unreliable, lack
probative value, and are highly prejudicial:
… the toxicology report did not confirm the presence
of cocaine …and therefore, the evidence of cocaine
was without probative value. …the expert could not
testify that it would have had any effect on [the victim’s]
ability to feel pain. As a result, the trial court found
that the oxycodone evidence was of little probative
value and that its admission would be highly
prejudicial….10
Kentucky courts also routinely exclude results of another
preliminary test, called the Preliminary Breath Test, or PBT.
After the enactment of KRS
189A.104 in 2000, though
mentioning a PBT at trial is
allowed, any testimony
regarding specific results of
a PBT or any breathalyzer
not specified in KRS
189A.104 as proven reliable
is inadmissible.11
Other courts have similarly
concluded that presumptive
tests are too unreliable to be relevant.12 Connecticut has
held that expert testimony based on a presumptive blood
test lacks the scientific reliability required to be admissible,
indeed, lacks all probative value, is irrelevant, and –when
admitted— results in prejudice.13 In addition, the Army Court
of Criminal Appeals has ruled that even though presumptive
luminol blood tests have been tested, peer reviewed, and
generally accepted as an investigative tool, they are
nevertheless per se too unreliable to be admissible under
Daubert. The Army Court reasoned that a luminol test is
reliable only to show “a presumptive positive presence for
blood and not to confirm the presence of blood.”14
Indeed, the problem with all preliminary, presumptive test
results is that they are reliable only for preliminary use, to
eliminate forensic samples with low probability of yielding
probative results, and select more likely samples for further,
definitive testing. Presumptive and preliminary test results
are admissible in pre-trial proceedings, like suppression
hearings, where the rules of evidence –and Daubert— do
not apply.15 But they are not reliable enough to meet Daubert
and should not be admitted at trial, not even to “counter
CSI.”
Microscopic hair analysis and sniffer dog alerts do not come
labeled as “preliminary” tests. They are nonetheless
preliminary in nature, because they are mere preludes to the
real, definitive tests that follow, like DNA testing for hair,
and lab testing to confirm whether a dog is correct. Any test
that is preliminary in nature –i.e., which by definition cannot
reliably pin-point-identify the substance or person it is
designed to identify— should be challenged and excluded
at trial.
Despite Johnson v Commonwealth,16 which held
microscopic hair analysis presumptively reliable and
admissible at trial under Daubert, in the eight years following
Johnson, microscopic hair analysis has proved unreliable.17
Microscopic hair analysis should be excluded from trials,
because –as the forensics community recognizes—
microscopic hair analysis is not reliable, and is purely
preliminary. Hairs collected at a crime scene are preliminarily
examined under a microscope to determine which hairs to
send for the real testing, the DNA testing, which is the only
testing that can reliably pin-point-identify whose hair it is.
Johnson should be challenged and overruled.
Dog alerts also fall into the
category of preliminary test
results, because sniffer
dogs are used to identify
items for the real testing,
not for pin-point-proving
that a suspected substance
is actually present. When
a sniffer dog “alerts,” or
“hits,” the subject item is
collected and then lab
tested. If the lab test proves positive for the substance,
only then should the test results be admitted at trial.
Unconfirmed sniffer dog results are like presumptive blood
tests. While admissible at preliminary, suppression
hearings—as acknowledged by Baldwin— they should be
inadmissible at trial.
As yet, there is no Kentucky case addressing the
admissibility of unconfirmed dog alerts at trial,18 and no case
post-Johnson re-assessing Kentucky’s position regarding
microscopic hair analysis.19 For now, defenders are left to
argue against these, and similar, unaddressed preliminary
tests, under the general principles in KRE §§ 401, 403, 702,
Daubert, Kumho Tire, and the 5th, 6th, and 14th Amendments
to the United States Constitution, as well as §§2, 3, 10 and 11
of the Kentucky Constitution.
Daubert review can be short and sweet.
Discovery should reveal what the Commonwealth might raise
that is subject to Daubert, allowing time for full-blown pretrial
hearings.20 But the Commonwealth rarely gives notice that it
intends to raise the CSI effect. If CSI or any other Daubert
issue arises suddenly mid-trial, defenders should approach
the bench and ask for a full Daubert hearing, or at least an
abbreviated hearing. In an emergency, a Daubert objection
can be preserved in a bench conference, with no experts.
This is true because a KRE §702 Daubert assessment does
not require a formal hearing:
The assessment does not require a trial court to hold a
hearing on the admissibility of the expert’s testimony.
Presumptive and preliminary test results are
admissible in pre-trial proceedings, like
suppression hearings, where the rules of
evidence –and Daubert— do not apply.15 But they
are not reliable enough to meet Daubert and
should not be admitted at trial, not even to
“counter CSI.”
[Although] a trial court should only rule on the
admissibility of expert testimony without first holding
a hearing “when the record [before it] is complete
enough to measure the proffered testimony against
the proper standards of reliability and relevance.”21
Once an objection is raised,22 the trial court has an obligation
as gatekeeper to research the issue legally and factually in
order to have some basis for allowing the evidence.23
If the court is unwilling to stop and conduct a full Daubert
hearing, under Christie and Simpson the court should at
least take a short break to identify and consult all the
appropriate scientific treatises, case law, and other legitimate
sources that counsel will rush out, collect, and provide.
Trial courts can consider almost anything.
In determining Daubert admissibility, under KRE § 104(a)
the trial court “is not bound by the rules of evidence except
those with respect to privileges.” This means that in a
Daubert review, full-blown or otherwise, a trial court can
consider textbooks, learned treatises, scientific articles, law
review articles, or internet materials without worrying
whether they are hearsay, best evidence, sworn, certified, or
whatever.24 Get certified copies or sworn affidavits if
possible. And for internet materials, be sure to identify the
source of the information and provide an accurate uniform
resource locator (URL) website address.25 But keep in mind
that under KRE § 104(a) (which governs Daubert hearings)
these “extras” are not required. In making a Daubert
determination, a trial court can consider just about
anything.26 Make sure to place all matters the court considers
or relies on in the record.
Don’t Blow it.
If you succeed in keeping evidence out under §§ 401, 403,
and Daubert, be careful not to open the door and let it in
through careless cross-examination. Don’t ask the police
officer, “Why did you send this off to the lab to be tested,”
because the answer will be, “The dog hit on it.” Don’t ask
the lab tech, “Why did you wait four days before testing
this item for DNA,” because the answer will be “We had to
wait for confirmation on the microscopic hair analysis.” Don’t
fish for information and end up eliciting the response you
just succeeded in suppressing, or preserving for appeal.
And watch what you give your experts. The prosecutor will
almost surely ask the expert, “What did you review in
preparation for your testimony today?” You don’t want
your expert to answer, “All the preliminary tests given to me
by counsel.”
We should be leading this fight.
In criminal cases, the overwhelming bulk of expert evidence
is offered by the government against our clients. Yet, while
the civil bar has been vigorous in mounting Daubert
challenges, by comparison criminal defense lawyers have
been standing by and failing to raise any objection to
evidence that would be fought tooth and nail in a civil case.27
The true “CSI effect” is an ever-increasing avalanche of
irrelevant, junk science raining on our clients’ heads. The
stakes are higher for our clients. Daubert is our battle. We
need to step up and lead the Daubert fight.

First day of Lethal Injection Trial

Lexington Herald Leader

Bench trial opens on Kentucky's execution

Eddie Lee Harper either suffered little and died peacefully or was still awake and possibly in pain when he was executed in May 1999.

Louisville Courier Journal

FRANKFORT, Ky. -- Calling it "an agonizing way to go," a public defender said yesterday that execution by lethal injection in Kentucky could leave an inmate conscious but paralyzed as a caustic drug is injected to induce heart failure.

Lethal InJection Trial Begins Today in Frankfort, KY

For Stories see

USA Today

By Richard Willing, USA TODAY
A Kentucky case that begins today is the latest legal challenge to lethal injection, the nation's most used but increasingly controversial form of execution.

Lexington Herald Leader



Lousiville Courier

FRANKFORT, Ky. -- The use of lethal injection to carry out capital punishment in Kentucky will go on trial next week.

The case, which opens Monday before Franklin Circuit Judge Roger Crittenden, was brought by two death row inmates who challenged the procedures used by the Corrections Department in administering lethal injections.

Susan Balliet, a Department of Public Advocacy lawyer, contends that lethal injection brings on a death "that is pure torture."

Public Defenders Seek More Funds

BIG CASELOADS THREATEN QUALITY OF WORK, THEY SAY
By Bill Estep
SOUTH-CENTRAL KENTUCKY BUREAU

SOMERSET - Public defenders pressed their case yesterday for more funding, saying large caseloads are threatening the quality of legal help for indigent people accused of crimes and causing great stress for attorneys who represent them

State: Hardin public defenders are ‘critically overloaded'

The Elizabethtown-based public defender's office took a spot on the state's list of 16 offices considered to be critically overloaded in 2004.

The office, which serves Hardin, LaRue, Hart, Meade and Grayson counties, averaged 519 cases per attorney for the year. The critical level by Kentucky Department of Advocacy standards is 500. The Elizabethtown office has 10 attorneys.

KY: Public defenders swamped

By Deborah Yetter
The Courier-Journal

Each public defender opens an average of 489 cases a year, more than the number recommended by the National Legal Aid and Defender Association, said Ernie Lewis, head of the Department of Public Advocacy. Kentucky public defenders handle a mix of misdemeanors, felonies and juvenile cases, he said.

The association recommends public defenders open no more than 400 misdemeanor cases a year, the simplest to represent, or no more than 150 felony or 200 juvenile cases per year. The association does not set a threshold for a mix of those cases.

Public defenders represent 85 percent of the people charged with felonies in Kentucky, including most of those charged in potential death penalty cases, Lewis said.
He said they represent all death row inmates.


Link to Lexington Herald Leader version of story

Link to Cincinnati Enquirer version

PA; Fayette public defender's office in need of more staffing, judge says

Fayette County's president judge and the head of the local district justice association have recommended that county officials find a way to increase staff in the public defender's office.

Virginia’s Indigent Defense System Under Microscope

Oct 20, 2004 -- A task force studying Virginia’s indigent defense system has recommended a list of wide-ranging reforms aimed at changing the way poor people charged with crimes are represented in this state that has been criticized by some for not taking the issue seriously.

Editorial From Appalachian News Express: In Defense of the Defenders

There’s a couch in the Department of Public Advocacy’s Pikeville office with two pillows and a blanket. On a table beside the couch is an iron and ironing board. There’s a stocked kitchen and bathroom.

The signs are everywhere, and not only do they show an overworked group of six attorneys. They also show the desperate need for help not only in Pike, but for public defenders all over the state.

In a recent press release announcing the newest data on caseloads for public defenders, State Public Advocate Ernie Lewis said something must be done to decrease the workloads of the state’s public advocates; not only for their sakes, but for the sake of the defendants.

“The people of the commonwealth want to believe that the quality of justice provided an accused does not depend upon the money available to pay a lawyer. These caseloads threaten that fundamental belief,” he wrote.

Harolyn Howard, directing attorney for the Department of Public Advocacy’s Pikeville office, said the attorneys in the Pike office, which also covers Floyd County, have seen their caseloads increase by 10 percent. Instead of the recommended 350 cases per year, the six attorneys are averaging 477.3.

And in recent years, the addition of drug, family and other courts, combined with a known drug epidemic that is driving more and more people to commit crime, the numbers don’t seem to be slowing down.

Besides the toll this takes on the individual attorneys, defendants also are on the losing end, whether it be by having to wait longer to go to court or by not getting all the attention they would naturally get if the defender had more time.

With all the ails Kentucky has financially, this should rank near the top of the list of things that need fixed. And the only way to fix it is the have more public defenders.Everyone is guaranteed the right to a speedy trial and to competent counsel. Anything less is unconstitutional and simply shouldn’t be accepted.

Kentucky: Attorney: Public defenders are stretched too thin

Regardless of how much money they have, who they are or what they’re charged with, defendants in criminal cases have a legal right to an adequate defense. A local public defender says an “ever-increasing” caseload has begun to compromise that right across the state, including Pike and Floyd counties.

Harolyn Howard, directing attorney for the Department of Public Advocacy’s Pikeville office, said that, in the last year, the six attorneys working the Pikeville office that covers Pike and Floyd counties have seen their caseloads rise from an average of 426.3 cases per attorney to 477.3, a more than 10 percent increase.

LA: legal aid cost estimated at $55 million

The head of a group that is suing over the way the state provides attorneys to poor defendants said Thursday that a legally sound system could cost taxpayers $55 million per year.

Otherwise, more lawsuits could be filed, said Barry Scheck, president of the National Association of Criminal Defense Lawyers.

San Fran: Public Defender’s Clean Slate program reaches out to BVHP residents

San Francisco Public Defender’s office created the “Clean Slate” program to help persons who were convicted of crimes clear their criminal record. Since the program was introduced in 1999, the office has helped over 1,000 people expunge their criminal records.

La: Lawyers Want To Revise Indigent Defense

A recently filed class-action lawsuit claims that the Indigent Defender Program in Calcasieu Parish is woefully under funded.

The lawsuit contends that the program can't provide the constitutional right to adequate legal counsel when poor people face criminal charges.

GA: Study Shows Need For More Court Lawyers

The Supreme Court of Georgia's 26-member Commission on Indigent Defense recently completed a report that shows courts around Georgia are giving suspended jail sentences to indigent defendants without providing free legal representation in violation of the 2002 U.S. Supreme Court ruling in "Alabama v. Shelton." And the report also shows that those people are not being made aware of the risks of not having an attorney.

See report here

Articles regarding Caseload Crisis

The Kentucky Post
Report: State's defenders overtaxed

Snitch
Cranking up the caseload
"The title of 'Most Overworked Public Servant' is hotly contested."

Press Release: Is Justice Being Jeopardized in Kentucky?

(Frankfort, KY, September 27, 2004) Forty years ago, in the landmark case of Gideon v. Wainwright, the United States Supreme Court declared “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.” As the justices said, “This seems an obvious truth.” Yet decades later has the promise of Gideon been fulfilled in Kentucky?

The Kentucky Department of Public Advocacy (DPA) represents over 120,000 citizens each year in Kentucky's trial and appellate courts. The staff of the Kentucky's statewide defender program protects what we value most - our liberty and our lives. Every day in Kentucky’s 120 counties public defenders stand up for citizens who are accused by the Commonwealth of having committed a crime. Defenders insure the criminal justice process is fair, the result reached by jurors and judges is reliable, and that individual liberty is protected.

DPA has announced today its annual report of the numbers of cases and clients represented by public defenders during the last year. This report demonstrates that the quality of justice being provided by Kentucky’s public defenders is compromised by the continued significant increase in caseload. Findings of the most recent caseload report reveal:

· Overall cases rose to 131,094, up from 117,132 the previous year.
· Cases at the trial level increased by 12% during FY04.
· Cases have been steadily rising over the past four years. In FY2000, DPA had 97,818 cases. In FY 01, DPA had 101,847 cases. This increased to 108,078 in FY02, and again to 117,132 in FY03.
· Public defenders began FY04 with an average caseload of 484. DPA used additional revenue during FY04 to hire 10 new caseload reduction lawyers and placed them in offices with the heaviest caseloads.
· Public defenders ended FY04 averaging 489 new cases annually. Despite the hiring of the new caseload reduction lawyers in FY04, the average caseload has risen by 1.1%. DPA’s average caseload for its trial attorneys is 185% of the recognized National Advisory Commission’s national standards.
· In its 1999 report, the Blue Ribbon Group on Improving Indigent Defense for the 21st Century recommended that until funding was available to meet national standards, rural Kentucky public defender offices should carry no more than 350 cases per lawyer, while urban offices should carry no more than 450 cases per lawyer. DPA is now further away from meeting this interim goal.
· One office, Hazard, averaged in excess of 600 new cases per lawyer in FY04.
· Sixteen offices had average caseloads in excess of 500 new cases per lawyer.
· In the 1999 Blue Ribbon Group Report, it was found that the Department of Public Advocacy was near the bottom among all the states in per case funding. In FY 1998, the funding per case was at $187. In FY03, the funding per case was at $238. In FY04, per case funding declined 4.2% to $228.
· DPA represented 18,006 children and youth in FY04.
· Public defenders are now required to represent clients in drug court and family court in addition to circuit, district, and juvenile court. Defenders have received no new funding for their responsibilities in drug and family court.

In light of the Department’s most recent data, Public Advocate Ernie Lewis comments, “Is the quality of justice compromised when public defenders in Kentucky are being called upon to represent Kentucky accused citizens at 185% of nationally recognized standards? We are approaching that point when our public defenders are simply unable to perform their essential task of defending the accused due to these crushing caseloads. The people of the Commonwealth want to believe that the quality of justice provided an accused does not depend upon the money available to pay a lawyer. These caseloads threaten that fundamental belief.”

This Caseload Report will be presented to the Public Advocacy Commission at its meeting on October 1, 2004.

A full copy of the FY 2004 DPA Defender Caseload Report is available at the Department or Public Advocacy Website at www.dpa.state.ky.us .

Stories regarding La. lawsuit

La. sued for failure in legal aid

The lawsuit is just the opening shot of a war, backed by powerful legal interests, against the state's public-defender system.


Public defenders swamped, suit says
Prisoners, poor face long wait for lawyers

Louisiana is the only state in the country to rely on revenue from traffic tickets and other citations, which can be an unreliable source of money, as a way to pay for indigent defense, according to the legal aid report.

About $9 million from the state general fund is given to the Louisiana Indigent Defense Assistance Board, which doles out the money around the state. Another $23 million or so is raised through court costs at the local level, said Edward Greenlee, executive director of the board.

That amount is considered relatively low when compared to other states. For example, Kentucky also spends about $30 million on public defenders, but it has only about 30 percent of the number of cases Louisiana public defenders handle annually.

Grant County, Washington: Commissioners make first appearance in court

The 11 attorneys, some of whom volunteered and some who were conscripted, filed the action to compel the commissioners to pay their fees for service as determined by Grant County judges.

New York Times article regarding lethal injection in Kentucky

On Death Row, a Battle Over the Fatal Cocktail

More news from Mass

From Mass AG:Building a more effective public defender system

Under our Constitution we have a responsibility to provide counsel to indigent criminal defendants at the state's expense. That right is not in dispute. But the best way for the Commonwealth to fulfill this obligation is very much in question. It is always hard to fashion a long-term solution when faced with a short-term crisis. But that is what we must do. Before concluding that more resources should be devoted to this obligation, a few things must happen.

Lawyer shortage is seen easing
More answer call to defend poor

Justice Francis X. Spina said that judges in the county have informed him that more private lawyers have come forward to represent poor defendants since he held a hearing Aug. 23 about the shortage, which stems from an ongoing pay dispute.