Wisconsin Criminal Justice Study Commission
Summary of Commission meeting held on 11/30/06. The meeting was held at the
Alumni Student Union at Marquette University.
Commission Members present: Mike Malmstadt (chairman), Suzanne O’Neill, Cheri
Maples, Kelli Thompson, Emily Mueller, Fred Fleishauer, Dan Blinka, Bob Donohoo,
Noble Wray, Ken Hammond, , Penny Beerntsen, Keith Findley, Gerry Mowris, Brian
O’Keefe (for Nanette Hegerty), Jerry Buting, Chad LaLor (for Floyd Peters),
Also present: Mike Roberts (Administrator, Division of Law Enforcement Services,
Wisconsin Department of Justice)
Not present: John Charewicz, Dan Bach, Steve Glynn, Enrique Figueroa, Gerard Randall,
Bill Grosshans, Scott Horne
Staffed by: Byron Lichstein
Presentation by Peter Neufeld
The meeting began with a presentation by Peter Neufeld, the Co-Director of the
Innocence Project at Cardozo University and a leading expert on forensic science (2).
Neufeld began by discussing the case of Brandon Mayfield, an Oregon man who
was wrongly arrested for a terrorist attack in Spain because of a false fingerprint
identification (2). The FBI has recently acknowledged that the fingerprint match was
wrong.
He discussed several cases in which microscopic hair analysis (the process of
microscopically comparing hair found at a crime scene to a suspect’s hair) produced a
supposed “match” and led to the conviction of a suspect, only to later be proven wrong
by DNA testing (3). Neufeld said that, in many hair analysis cases, examiners testified to
statistical probabilities (“there is a 1 in 100 chance that this hair matches by
coincidence”) without any basis for reaching statistical conclusions. In some of the hair
comparison cases, re-examination of the hair evidence after DNA testing demonstrated
that the hairs never matched in the first place.
Neufeld discussed forensic odontology (a method for matching a victim’s bite
marks to a suspect’s teeth) (3-4). He cited several cases in which odontologists testified
that a defendant’s teeth “matched” bite wounds found on a victim, only to be proven
wrong by DNA testing that excluded the defendant and identified the real perpetrator (3).
Neufeld discussed bullet lead analysis (a method for determining whether a bullet
found at a crime scene matches bullets connected to a defendant) (4). He stated that the
National Academy of Sciences reviewed bullet lead analysis and determined that it had
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no scientific basis, after which the FBI ceased using the method and initiated a review of
cases in which it was used to convict a defendant (4).
He discussed serology (otherwise known as blood-typing) (4). He noted that, in
many of the DNA exoneration cases, serologists greatly exaggerated the statistical
significance of a particular serological finding.
Neufeld said that, although DNA has become the gold standard, most cases lack
DNA evidence. This makes it very important to ensure that the other forensic sciences
have the same certainty, reliability, and rigor as DNA (5).
Neufeld discussed a recent case he worked on with the Forensic Science
Commission of New York, in which the Commission discovered that a fingerprint analyst
had missed fingerprints in dozens of cases, preventing police from identifying the
perpetrators of crimes (5).
He then discussed the reasons for our recent problems with forensic science (6).
He said that, more than 100 years ago, medical schools created methods for validating
certain kinds of sciences in order to ensure their reliability. In addition to validation,
governmental entities started requiring accreditation for people performing certain
scientific methods (6). The problem with forensic sciences is that they were never
validated in the same manner as academic sciences (6-7). The reliability and validity of
most forensic sciences has never been established.
Neufeld stated that another problem with forensic sciences is the misuse of
statistics (7-8). He said that forensic scientists in many disciplines often testify that a
particular hair (or footprint or bitemark) is “consistent” with the suspect’s characteristic.
Neufeld said that this kind of testimony is not probative unless you also know how
frequently the suspect’s characteristic appears in the general population. Such knowledge
about the frequency of a particular characteristic in the general population is only
possible if you have a database, which almost all of the forensic sciences lack (8).
Neufeld discussed ways to address the problem. He said that most lawyers and
judges are poorly equipped to litigate the reliability of forensic science, because most
lawyers lack scientific knowledge (8). He also noted differences between the civil
system and the criminal system. Challenges to forensic evidence in civil cases are much
more likely to succeed than challenges brought by defense attorneys in criminal cases
(due to institutional biases against criminal defendants and limited funding for defenseside experts). Furthermore, due to broader discovery rules in civil cases, civil attorneys
have much broader access to the notes and work product underlying a forensic scientist’s
conclusions than do criminal defense attorneys (9).
Neufeld said that, because he does not believe we can fix the problem by
educating lawyers, judges, and juries after the fact, the best way to fix the problem is on
the front end, by ensuring the reliability of forensic science (10).
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Neufeld stated that one solution to some of the problems with forensic science
would be “double-blind” testing, which is a technique for ensuring that a scientific
analysis is not tainted by extraneous information (10). With forensic sciences, the person
conducting the forensic analysis is usually aware of the suspect’s identity and is often
aware of other evidence against the suspect. Neufeld stated that studies show that such
extraneous information often produces “confirmation bias” in the examiner and can
produce unreliable results. He cited a study of fingerprints which dramatically illustrated
the potential impact of confirmation bias (10-12).
Neufeld discussed recent federal legislation requiring crime labs that receive
federal funding to select an independent auditing entity and to develop a process for
conducting audits when allegations of crime lab error or misconduct arise (12). Neufeld
said that, although Wisconsin has selected an auditing entity (the Division of Criminal
Investigations), to his knowledge Wisconsin has not developed a process for what will
occur if an allegation of error or misconduct arises (13).
Another potential solution is developing a forensic science commission, as has
been done in Texas, Virginia, and New York (13). Such commissions provide oversight
to ensure reliability and help law enforcement entities use forensic science to solve
crimes.
Neufeld suggested expanded access to post-conviction DNA testing for inmates.
In some cases, courts deny post-conviction DNA testing because the defendant cannot be
sure that the item sought to be tested contains the perpetrator’s DNA. In such cases,
although it is possible that testing will not produce probative results, it is also possible
that testing will produce a “cold hit” on a serial offender, thus providing highly probative
results (14). Neufeld suggested allowing testing in such cases.
Neufeld also suggested allowing expanded access to AFIS (the database of
fingerprints) for criminal defendants (14). In some of the DNA exoneration cases,
fingerprinting performed at the time of the initial investigation didn’t match the suspect,
and the examiner stated that the prints were inconclusive. After the exoneration, the
prints were run through AFIS, and matched the true perpetrator. Neufeld said that
defendants should have the opportunity to run unidentified prints through AFIS (15).
Neufeld then answered questions from the Commission members (15). The
Commission members discussed peer review, quality control, and blind testing (15-19).
Neufeld noted that he isn’t aware of any crime lab that currently does blind testing, but he
stated that our system needs to begin doing it in order to ensure reliability (19). Mike
Roberts said that the reason Wisconsin doesn’t do blind testing is a lack of resources (20).
Mike Roberts explained some of the existing quality control safeguards at the
Wisconsin Crime Laboratory (20). Roberts stated that the labs conduct random audits
and have a quality assurance person in each lab (20). He said that the labs are accredited
by ASCLD (the American Society of Crime Lab Directors) and also conduct internal
quality control audits in which, for instance, Madison lab employees go to the Milwaukee
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lab and observe procedures there. Roberts suggested that the Commission might consider
hearing a presentation from one of the quality control specialists at the Wisconsin State
Crime Laboratory.
Several commission members asked Neufeld about the use of techniques like tire
and tool mark analysis (21). Ken Hammond stated that the goal of such analyses is to
find unique characteristics, not to match patterns (21). Neufeld said that you can’t
evaluate the significance of a “unique characteristic” without having a database telling
you how often that characteristic occurs in the general population (22).
Several commission members questioned the need for the kind of validation
studies and database statistics noted by Neufeld (22-3). They stated that forensic science
has been used in courts for many years without such safeguards. Neufeld said that the
lack of such safeguards in the past does not justify perpetuating the lack of safeguards.
He said that, although forensic evidence is often presented with the trappings of science,
it is not “science” without validation studies and database statistics (23-6). Beerntsen
suggested that, if we allow “scientific” evidence that lacks validation and lacks statistical
databases, it seems doubly important that lawyers and judges are educated to adequately
scrutinize the evidence (28). Neufeld agreed, but stated that he does not believe
education of lawyers can be the only or most effective solution (28).
The Commission then took a break (28).
After the break, Mike Malmstadt introduced the subject of the DNA backlog (28).
He described his efforts to contact the incoming attorney general (28). He stated that we
should not publicize the DNA paper until we have discussed it with the AG-Elect’s
administration (29).
Gerry Mowris moved for approval of the latest draft as the Commission’s Position
Paper (29). Dan Blinka seconded the motion (30). The Commission then discussed
several changes to the Position Paper (29-41). Malmstadt said that, based on the
discussion, Byron will distribute a new draft (41). Assuming all approve of the new
draft, the next step will be for members of UW, Marquette, and the State Bar to meet with
members of the AG-Elect’s administration, in order to discuss the Position Paper before
distributing it (41-3). After giving the AG-Elect a chance to provide input on the Paper,
the next step is to provide it to those in charge of the budget process, primarily the Joint
Finance Committee (42-3).
The Commission then took a break for lunch (45).
After lunch, the Commission discussed its work product on false confessions (45).
First, the Commission agreed that Keith Findley should continue to pursue a study of
interrogation techniques based on reviewing recorded interrogations.
Second, the Commission discussed what recommendations would be appropriate
given the current empirical knowledge about false confessions (49-59). The Commission
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reached consensus that Byron will modify the draft “Report on False Confessions” so that
it can be used as an educational document for distribution to different criminal justice
entities, including police, prosecutors, defense attorneys, and judges. The document will
summarize the current knowledge about false confessions and suggest ways in which the
problem can be addressed. It will not mandate any particular procedures, and it will
focus on all participants in the false confession problem, not just police interrogators.
Once the Commission agrees on a document, we can submit it to different criminal
justice publications for distribution.
The Commission also discussed possible revisions to the jury instruction dealing
with confessions (61-67). The Commission agreed that Dan Blinka will take the lead on
drafting proposed revisions to Jury Instruction 180. The purpose of the revisions will be
to provide jurors with information (lacking in the current instruction) necessary to
evaluate the reliability of confession evidence. The draft will be circulated to the
Commission members prior to the next meeting.
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