To defend against “junk science, ” it’s vital to ferret out all possible information, then meet with prosecution “experts” to explore matters fully. See Brady v. Maryland, 373 US 83, 83 SCt 1194, 10 LEd2d 2d, 205 (1963); State v. Cunningham, 108 N.C. App . 185, 423 S.E.2d 802 (1992); Morris, 52 MJ 193 (1999)[in discovery cases, military courts give the benefit of any reasonable doubt to the accused]. When specifically-requested evidence is not provided by the Govt, it is automatically considered material unless the Govt can show otherwise. Adens, 56 MJ 724 (ACCA 2002).
What to Request?
DC should request the following:
- A complete copy of the case file.
- Any and all scientific conclusions the Govt intends to rely upon.
- Bases for such scientific conclusions – together with all SOPs, protocols, checklists, or other procedures the government expert used to reach his/her conclusions.
- All procedures and tests used to reach those conclusions. See Figueroa, 55 MJ 525 (AFCCA 2001)
- All data generated by the procedures.
- Protocols used – or normally used — to reach such conclusions.
- Protocols used in the laboratory in similar cases.
- The complete record of how all evidence was obtained and developed — and by whom.
- All bench notes concerning this evidence.
- All quality assurance documents.
- All training SOPs, internal standards, and guidelines.
- The complete chain of custody record, including time/date and name of custodian.
- A list of all automated and manual processes used.
- A copy of the quality manual[s] in effect at the time the samples were tested.
- A complete hard copy of all raw data recorded.
- A copy of all licenses or other certifications of Govt personnel involved.
- All certifications held by the Govt lab.
- Information as to whether any samples underwent reruns.
- A complete resume or CV of each individual involved in the collection, observation, and analysis of the evidence. Qualifications of all personnel — including their degrees and information as to whether they are now working in the area of their degree.
- Copies of certification exams, including results, for each individual.
- A list of continuing training for each individual in his/her specialty.
- All documentation related to corrective actions taken in regard to all lab personnel.
- All documentation as to any corrective actions taken for flaws or errata at the lab.
- Copies of any unexpected results.
- All documents revealing contamination, negative controls, or unexpected events.
- Sufficient data to allow the defense to conduct an independent analysis of the raw data.
- All correspondence between the lab and any law enforcement, prosecutorial, or other government officials.
- All documents regularly kept regard to this case, including those kept in a place other than the case file.
- Any other pertinent information in Govt possession, including copies of all evidence the Govt holds regarding this case.
- The three most recent internal audits of the lab.
- All SOPs in use now or in the past three years.
- The precise parameters of the technology addressed which the lab used in this case — to include any unorthodox or unique aspects.
- Identification of overseeing individuals who ensure that the scientific program and instrumentation used is valid.
- Full information as to who reviews the analysts’ work in the lab.
- Full information as to how the testing devices are calibrated.
- Maintenance history for the equipment.
- Laboratory maintenance log[s].
- If the lab runs current proficiency tests, copies of all such documents. Information as to any peer review elsewhere.
- Any/all evidence beyond immediate Govt or prosecution files, to include: [a] files of law enforcement agencies participating in any similar investigation; [b] files held in any related case; and [c] other files involving the specified type of data, responsive to the defense discovery request . Williams, 50 MJ 436 (1999).
- If Govt testing response to this request would destroy the only evidence available, the time and place this will occur and permission for the defense to attend See Garries, 22 MJ 288 (1986).
What to Do Next
Push Discovery hard! Particularly at the start of a court-martial, chances are the Govt [absent very unusual circumstances] will resist authorizing an initial defense “expert”. See Freeman, 65 MJ 451 (2008). Bottom line: Defense counsel will need to dig for themselves. However, what they find could well trigger a renewed — and successful — motion for a defense expert. This is especially true when challenging ‘junk science.’
- Use the law: For a general description of the defense right of access, and the Govt obligation to provide evidence, see California v. Trombetta, 467 US 479 (1984).
- Don’t forget to carefully check the resumes of these individuals — there’s a world of evidence on Google.
- If you discern serious problems, consider:
- A 39a motion, challenging , whether the testing performed rests upon a scientifically reliable foundation . See Frye v US, 293 F. 1013 (D.C. Cir. 1923). State v. Roman Nose, 649 NW.2d 815, 818 (Minn. . 2002).
- A motion in limine, arguing that the individual is not a “true” scientific expert.
- Instructions cautioning the members about the “science” involved.