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Although we now employ forensic techniques of unprecedented power such as DNA typing, proficiency studies continue to reveal a substantial margin of error in expert analyses. However, there is a simple explanation. While the contemporary attorneys and judges can capitalize on the best expert methodologies ever available, those techniques must be applied by fallible human beings � scientists and technicians who are sometimes harried and overworked. Flaws possible when expert is overworked When an expert conducting a test is overworked or rushed, the expert will often reach a flawed conclusion simply because he or she erred in applying the technique. The proficiency studies suggest that improper test procedure is the Achilles heel of expert testimony. Some of the studies followed up and endeavored to determine the cause of the error. In the 1970s, the Law Enforcement Assistance Administration sponsored the Laboratory Proficiency Testing Program, involving 240 of the leading crime laboratories. The Project Advisory Committee prepared samples and submitted them blind to the participating laboratories. The committee has already determined the data that a proper forensic analysis of the samples would yield. The committee compared the participating laboratories’ reports against that data. Some of the findings were startling. Test 3 concerned blood analysis. Only 60% of the laboratories testing for the MN system reached the correct finding. Project Advisory Committee, Laboratory Proficiency Testing Program, Supplementary Report � Samples 1-5, at i (1975). Test 8 was another blood analysis. On that test, only 37.4% of the laboratories correctly concluded that the two bloodstains could have had a common origin. The committee traced many of the mistakes to improper test procedure. Peterson, Fabricant & Field, Crime Laboratory Proficiency Testing Research Program, 203-06, 223, 230, 239, 258 (1978). In the 1980s, the Centers for Disease Control and Prevention supported proficiency testing of laboratories conducting immunoassay drug analysis. Hansen, et al., “Crisis in Drug Testing: Results of CDC Blind Study,” 253 J. Am. Med. Ass’n 2382 (1985). After concluding that mistakes were so common that the situation amounted to a “crisis,” the researchers pointed to unsound test protocol as a cause of erroneous test results. Given the importance of improper test procedure as a cause of flawed expert opinion, one might think that the courts would uniformly require proof of proper protocol as an element of the foundation or predicate for introducing expert opinion. State v. Rimmasch, 775 P.2d 388, 398 n.7 (Utah 1989). However, at common law there was a split of authority. “The Debate in the DNA Cases Over the Foundation for the Admission of Scientific Evidence: The Importance of Human Error as a Cause of Forensic Misanalysis,” 69 Wash. U. L.Q. 19, 23 (1991). Moreover, the Daubert decision strengthened the argument that deficiencies in test procedure cut only to the weight of expert testimony. In Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), the Supreme Court held that the traditional general-acceptance test for the admissibility of scientific evidence was no longer good law in federal practice. The court reasoned that Federal Rule of Evidence 402 impliedly overturned the traditional view. Rule 402 provides that logically evidence is admissible unless it can be excluded under the Constitution, federal statute, a provision of the Federal Rules of Evidence, or a provision of other rules adopted pursuant to statutory authority such as the Federal Rules of Civil Procedure. The Daubert court concluded that Rule 402 sweeps away uncodified restrictions on the admissibility of relevant testimony. The court approvingly quoted Professor Edward Cleary’s statement that “[i]n principle, under the Federal Rules no common law of evidence remains.” Id. at 588. The general-acceptance test was a creature of case law. Since the federal rules contained no language that could bear the interpretation that it codified the general-acceptance standard, the rules superseded the common-law standard. Like the general-acceptance test, the requirement for a showing of proper test procedure was a case law creation; the Federal Rules were devoid of any language incorporating that requirement. With some success, proponents of expert testimony began contending that Rule 402 repealed any foundational requirement that they show that their expert followed correct test protocol. Harmon, “How Has DNA Fared? Beauty Is in the Eye of the Beholder,” 1 Expert Evid. Rep. 149 (Feb. 1990). However, in recent years that incipient trend has been reversed. Some states which had vacillated on the issue reaffirmed the requirement. In a 1989 decision, People v. Farmer, 765 P.2d 940, 956 (Calif.), cert. denied, 490 U.S. 1107 (1989), the California Supreme Court had stated that “[c]areless testing affects the weight of the evidence and not its admissibility.” However, the court in 1998 announced a general rule that trial judges must determine “whether the procedures actually utilized in this case were in compliance with” accepted methodology. People v. Venegas, 954 P.2d 525 (Calif. 1998). Furthermore, in 2000 an amendment to Federal Rule of Evidence 702 took effect. In part, the text of the amendment mandates that the proponent establish that the expert “has applied the principles and methods reliably to the facts of the case.” The accompanying Advisory Committee Note explains that the trial judge must ensure that the “principles and methods have been properly applied” in the instant case. In a jurisdiction enforcing this requirement, the proponent cannot be content with the expert’s testimony that the expert followed the procedure that he or she prefers. The proponent will want to show that the protocol is a well accepted, recognized one. Where can the proponent find such standards? One source is the American Society for Testing and Materials. The ASTM has promulgated more than 15,000 standards for various scientific and technical procedures. Some standards are specifically designed for forensic tests. Another helpful source is the standards developed by various scientific working groups. In Daubert, Justice Harry Blackmun remarked that one of the hallmarks of a validated scientific technique is “the existence and maintenance of standards controlling the technique’s operation.” 509 U.S. at 594. In part in response to that remark, the public and private sectors have collaborated to form several scientific working groups to formulate standards for certain forensic disciplines. For instance, the Scientific Working Group for the Analysis of Seized Drugs has released standards on the following topics, among others: methods of analysis/drug detection, validation of analytical methods and quality-assurance general practice. In addition to proving which procedures the proponent’s expert in fact employed, the proponent will want to establish that those procedures are accepted, recognized protocol. Doing so is a simple matter when the proponent merely wants to submit the information to the judge ruling on the admissibility of the expert’s testimony. That ruling is usually governed by Federal Rule of Evidence 104(a) reading, “In making its determination [the court] is not bound by the rules of evidence except those with respect to privileges.” However, in the typical case the proponent will also want the jury to hear the testimony establishing that the procedures represent accepted protocol. In that event, the proponent cannot rely on Rule 104(a). How can the proponent surmount objections such as authentication and hearsay? When the proponent can invoke Federal Rule 902(2) When the standards in question have been promulgated by a government agency, the proponent can invoke Federal rules 902(2) and (4). Under those provisions, the attachment of an attesting certificate from the agency can render a copy of the standards self-authenticating; that is, they are admissible without live sponsoring testimony. Until 2000, the proponent could not use that simple procedure for private documents. That changed in 2000 when Federal Evidence Rule 902(11) took effect. Domestic records can now be treated as self-authenticating if they are accompanied by the proper type of declaration. In some instances, the proponent can introduce the standards without laying the foundation for a hearsay exception. Suppose, for example, that the standards take the form of a set of instructions for conducting the test. The hearsay definition codified in Rule 801(a) includes only assertive statements. Instructions and orders are nonassertive. U.S. v. Aspinall, 389 F.3d 332, 340-41 (2d Cir. 2004). When the standard is assertive, the proponent may be able to resort to the learned treatise exception in Rule 803(18). The courts have liberally applied Rule 803(18) to a variety of codes and standards, including Underwriters Laboratory standards, road building standards and safety codes promulgated by private organizations. The provision applies to “standards and manuals published by government agencies and industry or professional organizations.” C. McCormick, Evidence � 321, at 393 (6th ed. 2006). In many cases, the cause of an erroneous expert conclusion is the expert’s failure to observe proper procedure in applying a powerful scientific technique. Post-2000, the federal courts now demand that the proponent demonstrate that the expert dotted the i’s and crossed the t’s of correct test protocol. The practical questions facing the practitioner are where and how: Where do I find such standards, and how do I introduce testimony about the standards at trial? Hopefully, this column has both highlighted those questions and suggested some answers. Edward J. Imwinkelried is the Edward L. Barrett Jr. Professor of Law at the University of California, Davis. He can be reached at [email protected].

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