Transcripts of the Attorney General's Initiative on DNA Laboratory Backlogs (AGID-LAB) Working Group

Tuesday, October 22, 2002

TRANSFORMING PRACTICE THROUGH COMPETENCY BUILDING

MR. SCHMITT: If you will turn to your agenda, you will see that the next item on our schedule this morning is another block of discussion on substantive issues. This one we have entitled transforming practice through competency building, which fits nicely with what the FRN folks are talking about. I would like to call your attention to the first paragraph in your handout on discussion topics and draft recommendations under this topic heading where we discuss a training tool on forensic DNA evidence for officers of the court.

This is one of those where we call it a progress report rather than a draft recommendation, but I do want to use this as a stepping off point for discussion to help refine this because this is in the early stages. As you can see there, Sarah has asked the Forensic Resource Network to convene a group of subject matter experts to develop a CD ROM on forensic DNA evidence for officers of the court, the idea being that we've done some good work in the past on preparing materials for what every law enforcement officer ought to know about DNA, but we need to now broaden that and think of the entire criminal justice spectrum, and the next obvious stage in that progress are prosecutors, defense attorneys, and perhaps mostly important judges on what DNA is; importantly, what it is not, what it cannot do; the differences between nuclear and mitochondrial; collection issues; and the other items that you see there in that paragraph.

We are hopeful that we will be able to convene these working groups, come up with materials, and have it out the door within the next two years. I would like to solicit any reaction to this from the folks who are here at the moment and, in particular, any areas that they would care to suggest ought to be emphasized in these materials perhaps based on your own experience testifying in court on these issues.

MS. FORMAN: I'll start the ball and say that when I've testified as an expert, I find it frustrating when both sides aren't equally prepared, that it feels like I'm not serving the criminal justice system if one or the other side rolls over without even taking the time to understand what the evidence means, what it is, what it's about so that the trier of fact has a full understanding from both sides. So I guess I would hope that a product of this type would be a way of at least providing the information so that all of the officers of the court could be equally prepared.

MR. CLARKE: I can tell you that when Lisa testifies, it's a delight, having experienced that several times.

There are a lot of dynamics, as all of us know, going on at this particular stage of the process, and I think we have to remember it's an adversarial system. It's not a system like some of the criminal justice systems in other countries. That being said, and my comments are going to assume a certain threshold level of competency. Maybe that assumption is a dangerous one. I don't mean a specialist in scientific evidence, but a certain level of competency from both sides.

At trial I don't think there are anywhere near the challenges to these forms of evidence that there used to be. I think we have reached - and I made a comment about this yesterday - a different era in that now jurors fully anticipate this evidence. They want to know why it wasn't there in a particular case. What is scary is when it's a robbery case and there is no biological evidence. But we hear time and again jurors saying that.

I'm going to digress for a moment if that's okay to a kidnap-murder case of the 7 year old child that I just mentioned. When we selected a jury in May of this year, we sent out questionnaires. The questionnaires dealt with a lot of topics. The most interesting part and the reason I want to bring it up dealt with their views on the death penalty, for what types of crime would a juror consider imposing the death penalty. Aside from the answer murder, which is the most common we see, the second most common one was cases with DNA evidence.

That's telling us a lot. That was in a good 10 to 15 percent of the questionnaires that were perhaps 300 or so, so we're talking about a lot of people saying this is what I want to consider imposing the death penalty. Had that same question been asked ten years ago, I would venture to say one or fewer might have answered that question in that particular manner.

The reason I bring that is up is jurors truly do expect this. They see it being used to exonerate people. The flip side of that is that it's a wonderful tool for prosecutors. That means okay, this is telling us this is the type of technology we will consider the most serious punishment being available.

That being said, what does it do in the courtroom? I think it's just another piece of evidence now as opposed to some new tool that everyone is distrustful of. That doesn't apply to every case, but I think it has become much more the norm rather than the exception.

MR. DIZINNO: I would just like to offer the services of the FBI and their training unit as the Forensic Research Network tries to develop a CD ROM. Jane Holmeyer, who heads the training unit, is developing a number of what we are calling distance learning modules for a number of forensic disciplines that will be available through the virtual academy, and these have either been put together already or are in the process of being completed.

I would just like to offer that service so that if this group is going to put together a CD ROM, there may be baseline information available to them through the virtual academy that they're certainly welcome to use in developing any further training.

MS. HART: I appreciate that. It's very thoughtful and helpful, and I'm looking forward to it, but I'm sitting here thinking that here we are both members of the Justice Department and the idea that they should be done separately does not really make a lot of sense in spending the money twice out of the same department. So I'm look forward to having Jane's help on this.

MR. SELAVKA: I just want to ask Joe to clarify. Am I correct in assuming that there is nothing that currently exists in the FBI training materials that is this thing?

MR. DIZINNO: My understanding is that the forensic biology module is complete for nuclear DNA and for mitochondrial DNA.

MR. SCHMITT: And it's designed for whom?

MR. DIZINNO: This is designed for scientists, so there is a little different audience here, but I'm sure there is some baseline material that could be applied to both.

MS. HART: What we're talking about here focuses on issues about how to get the evidence in the door and what the questions are, so it has to have a little different focus, and I think that ultimately my goal here is to make sure that we cover both sides of it so that it becomes a routine piece of evidence that the courts are comfortable with admitting and you don't have a lot of time being spent on issues that perhaps they don't need to be focusing on, especially when you're dealing with smaller counties that aren't as big as let's say San Diego. Smaller offices where they're not going to have the same level of competency, having something like this would certainly help people without the resources for more specialized training.

MR. SELAVKA: I was actually going to pose a question to Paul and other lab directors or those that have trained to train judges especially, it's like herding cats. They don't want to be trained in the first place or at least that's how they appear. Getting them to sit down and do something like this - we have been unable to create the proper forum in both New York and Massachusetts to launch an initiative for educating judges on things that we thought they would be interested in and wished they knew about.

So I'm not sure - I think it's easier with defense attorneys and prosecutors. They're more interested. They have an advocacy role that they have to have some proper accommodation for to do a good job, but the judges just don't seem to want the training. I don't know if it's just not understanding them well enough, the officers of the court not giving us appropriate access to the judges, or what.

Is your experience the same I'm wondering as mine has been in New York and Massachusetts?

MR. FERRARA: Interestingly, Carl, yes, we observed early on - we had a devil of a time trying to pin the judges down, but about five years ago the situation reversed itself whereas the Supreme Court in Virginia, which provides all of the training for the circuit and general district court judges and appellate court judges, came to us and said, hey, we want to include large units of time within our judicial training programs on an annual basis to the laboratory.

We had observed that same reticence for a long time, but that's going away quickly. We find that judges are hungry for this information, particularly circuit court and now appellate court judges, who want to know the ins and outs. To that end we ended up through our Institute of Forensic Science and Medicine with three-day programs designed, one specifically for prosecutors and one specifically for the judges, and the judges just raved about the program afterwards because they had finally an understanding of the ins and outs of the technology.

I suspect that trend will continue because they're being faced with these arguments and motions about admissibility, more so now which items of evidence should be tested and which should not as well as postconviction issues, and we covered all of those in the training.

MS. HART: If I could just follow up on that, I think one of the things that's very important when you do this is to also work with judicial organizations that provide training. Simply coming in from the outside and saying here, we'll tell you how to do it doesn't really sell them. At the science and the law conference we had Justice Ming from California, who has been very active in working to train other judges on science issues. So the idea behind this is to have something that's kind of easy, user friendly for those organizations to use and count on them encouraging their members to train.

If I could just follow up on one thing, Joe, Lisa passed me a note before she had to leave here about coordinating with Jane Holmeyer. Apparently there is coordination already going on, that NFSTC is already doing three of your modules here. So there have been efforts ahead of time. They're already working with Jane, so I'm sure that will be very productive.

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