Over the past year, news articles and scandals about ‘rogue’ crime labs all across the country have started to surface. The attached story about falsified or misleading analyst testimony supports suspect test results in court. These instances of deliberately falsifying or manipulating test results is shocking: think of all of the wrongful convictions made under faulty DNA or blood test results! A justice system that allows people to be convicted on unreliable or faulty evidence presented as fact, without thorough investigation or questioning, is a justice system in need of some serious overhaul.

DUI forensics at Biased crime labTake this recent story from Denver, Colorado (http://kdvr.com/2013/06/09/report-former-state-crime-lab-supervisor-involved-in-possible-cover-up/) where the supervisor of a police-run crime lab has preemptively resigned after the findings of an ongoing audit investigation were published last month. What the audit found was surprising, but not unique: the lab was often “biased in favor of prosecutors.” Further, the supervisor “may have tampered with or even lied about forensic tests in court.” Shockingly (mirrored almost identically with discovery of Brady material in the Scottsdale Crime Lab: http://www.azcentral.com/community/scottsdale/articles/20130510scottsdale-crime-lab-problems.html), is that these issues only came up when they were raised by the defense attorney community.

One of the first questions usually asked when news like this surfaces is who is responsible? Who is in charge of overseeing work performed by this lab, and if this has been going on for years, why wasn’t this noticed earlier? “Oversight groups” here in the United States, such as ASCLD/LAB, allegedly conduct periodic reviews of member laboratories. But with hundreds of member laboratories, resources are stretched thin. On-site reviews are said to be infrequent (once every five years), and rudimentary (data for review is picked out by the lab). This is a ripe scenario for missing serious issues like those in the Denver laboratory.

However, the prosecution has constant contact with the laboratory employees, and is more familiar with the workings of the laboratory. In DUI cases, witnesses for the State include police officers as well as laboratory analysts who tested the samples. Even further, it’s the State’s responsibility to investigate the evidence and work they will be introducing to court to make sure there are no serious issues that the Defense needs to be aware of. A defendant has the Constitutional right to know about exculpatory evidence (evidence favorable to the defense in a criminal case which clears or tends to mitigate guilt). Because the burden of proof is on the State, it’s the State’s responsibility to uncover this information and disclose it.

In the report released about the Denver laboratory, the article quotes lead defense attorney investigating the matter: “The D.A.’s may have known there’s been a problem with state lab and still sat on it. They’ve possibly blocked these disclosures and violated their responsibility by sitting on this information knowing it’s been affecting cases. They are constitutionally required to disclose this and we’ve had months of convictions and defendants taking pleas possibly without evidence being disclosed that could have freed them.” This requirement is set by the United States Supreme Court case of Kyles v. Whitley, 514 U.S. 419 (1995).

The prosecutor has a responsibility to learn about and disclose certain exculpatory information to the defense. A defendant has a right to know about serious testing or analytical issues, or faulty laboratory work that could affect the results in their case. The Sixth Amendment grants the right to cross-examine opposing witnesses, and this information can be used to conduct a meaningful cross-examination. Even when laboratory problems aren’t readily disclosed, it is still the prosecutor’s responsibility to communicate with the lab, and to be aware of what’s going on there. This is common practice in jurisdictions, and follows the Constitutional guidelines.

Amazingly, these basic practices aren’t happening in Denver or here locally. Prosecutors are not asking the “right” questions about what’s going on in the crime laboratory. Anything happening outside of a daily batch of tests, no matter how catastrophic, is considered irrelevant. Even when evidence of catastrophic problems and serious problems comes out elsewhere, prosecutors call it irrelevant. But results (such as a machine that switches vial information, stops mid-test, and drops information from results) cannot be relied on to produce good results. Science demands both accuracy and reliability: error-prone equipment should not be used to convict defendants. But without a knowledgeable attorney to ask the right questions and demand relevant documentation to uncover the truth, issues might go undiscovered and defendants may be illegally denied their Constitutional rights.