Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.

A great advantage of NACDL’s office location in Washington, D.C., is that various reports that receive scant attention around the nation garner significant attention inside the Beltway. Occasionally, these reports can be an invaluable tool for the criminal defense lawyer, replete with all kinds of useful information that can help shape defense strategy and inform cross-examination. Two such reports were recently released.

The DEA’s Paid Informants

The Department of Justice, Office of the Inspector General (OIG), recently completed a study of how the Drug Enforcement Administration (DEA) oversees its confidential informants. It is not a pretty picture. The OIG report, Audit of the Drug Enforcement Administration’s Management and Oversight of its Confidential Source Program, is nothing less than an eye-popping exposé that documents pervasive misuse of confidential informants.¹ The scope of the DEA’s “Confidential Source Program” is breathtaking, and the extent to which it is subject to fraud, waste, and abuse exceeds the underlying suspicions of even the most skeptical criminal defense attorney. In terms of its scope, consider these statistics: between October 1, 2010, and September 30, 2015, the DEA had nearly 19,000 active confidential informants in its domestic offices, with over 9,500 of the sources receiving approximately $237 million in payments.² When one considers that this staggering network of informers is under the aegis of just one of many government agencies that employ informants, it evokes thoughts of the massive informer network that existed behind the Iron Curtain during the age of Soviet control. Beyond its scope, the report finds that the DEA program is run with woefully inadequate oversight.

One aspect of the review focused on a program that involved the use of employees in the travel and parcel industries with access to passenger information, as well as Amtrak and Transportation Security Administration employees. Among the findings is a systemic failure to track confidential source activity, the failure to document proper justification for payments, inadequate safeguarding of traveler information, and an inability to examine the reliability of confidential information, including whether the information led the DEA to regularly approach innocent civilians for questioning.³ These findings should concern everyone, but there were also findings that are especially pertinent for the defense bar.

Defense attorneys have always recognized that the use of paid informants (whether they are paid in cash or paid with leniency for criminal behavior) is an invitation to perjury. NACDL President Barry J. Pollack reacted to the report, telling The Washington Post that “[t]he government should not sponsor testimony from paid informants. If a defendant paid a fact witness, he would be charged with committing obstruction of justice, a federal felony. The credibility of paid informants is always suspect.” Thanks to this new OIG report, it is now certain that this concern is not defense hyperbole. The report noted that, unlike other agencies, the DEA does not have an independent validation or review process to assess the reliability, authenticity, integrity, and overall value of a source.⁴ As a consequence, the DEA used sources whose criminal history reports included arrests for providing false information to law enforcement, allegations of drug trafficking, and battery.⁵ Amazingly, the report uncovered a situation in which a confidential source, who had been previously deactivated for providing false testimony in trials and depositions, was reactivated. During the period of reactivation, which lasted five years and during which the source was used by 13 DEA field offices, the source again provided false statements to a prosecutor during an investigation – but nevertheless received more than $400,000 during the period of reactivation.⁶ And, even after the second deactivation for having been labeled “unsatisfactory,” the DEA paid the source an additional $61,000.⁷ 

These highlights barely scratch the surface of the OIG report. For lawyers who handle cases involving DEA sources, or perhaps for all those who deal with the use of informants by any federal or state law enforcement agency, the report will surely contribute to more insightful case analysis and creative examination. When information from a paid informant results in law enforcement action, the OIG audit should trigger countless areas of inquiry concerning oversight and verification of reliability.

A New Critique of Forensic Science

It has been seven years since the National Research Council of the National Academies (NAS) published its groundbreaking report, Strengthening Forensic Science in the United States: A Path Forward.⁸ That report exposed pervasive weaknesses in the scientific underpinnings of a number of forensic disciplines used to prosecute accused persons. It instantly became an essential reference tool for defense lawyers confronting questionable forensics. Now there is another tool available. In September, the President’s Council of Advisors on Science and Technology (PCAST) issued a report to the president titled Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (The PCAST report).⁹ 

This latest report, which was produced by an array of the nation’s leading scientists, affirms many of the earlier conclusions in the NAS report. Most notably, it concludes that many pattern-matching forensic disciplines need additional support to establish that they are scientifically valid and reliable. As stated in the transmittal letter to President Obama, “PCAST concluded that there are two important gaps: (1) the need for clarity about the scientific standards for the validity and reliability of forensic methods and (2) the need to evaluate specific forensic methods to determine whether they have been scientifically established to be valid and reliable.”¹⁰ These concerns are more commonly referred to as “foundational validity” and “validity as applied.” From a legal perspective, these concepts correlate directly to the requirement under the Federal Rules of Evidence (Rules 702(c) and (d)) that expert testimony be based on “reliable principles and methods” that have been “reliably applied” to the facts of a case. While it is up to the courts to make that legal determination, the report recognizes that “[i]t is the proper province of the scientific community to provide guidance concerning scientific standards for scientific validity[.]”¹¹ 

It is beyond the scope of this column to delve into the essential points that must be considered to establish foundational validity and validity as applied, but the report presents a remarkably clear and concise explanation that is wholly accessible to the lay reader. With respect to foundational validity, it addresses such core concepts as whether there is an empirical basis for conclusions based upon whether a practice is repeatable and reproducible,¹² and whether there is a valid assessment of error rates. With respect to validity as applied, the report tackles the fundamental issue of whether a forensic examiner is capable of reliably applying a method and actually does so, and whether the assertion of probative value is scientifically supported and takes account of the false-positive rate.

While the principles set forth in the report may be applied uniformly to all “feature-comparison” methods, i.e., pattern matching forensic disciplines wherein an examiner purports to determine whether a piece of crime scene evidence may be linked to a suspect, the PCAST report specifically focuses on six feature-comparison methods: (1) DNA analysis of single-source and simple-mixture samples, (2) DNA analysis of complex-mixture samples, (3) bitemarks, (4) latent fingerprints, (5) firearms identification, and (6) footwear analysis.¹³ The report offers a compendium of recommendations and refined processes directed to various scientific entities, as well as the Department of Justice (DOJ), the Federal Bureau of Investigation (FBI), and the judiciary.¹⁴ 

For a defense lawyer who anticipates that the prosecution will offer evidence against a client based on any of these disciplines, and there is even a slight chance that such evidence will be material to the outcome of the case, PCAST is an essential read. It is a road map that will enable counsel to challenge the underlying methodology and expose inherent flaws in each of these disciplines. The report will inform case preparation, will enable litigators to conduct far more focused voir dire of proffered witnesses, and may lead to evidence preclusion depending upon local rules. The recommendations directed to the judiciary, standing alone, provide invaluable guidance on how counsel should approach pattern-matching evidence. Most importantly, the report will inform a trial lawyer’s efforts to educate the trier of fact to the inherent limitations of the purported scientific discipline, and minimize the risk of wrongful conviction based upon flawed or exaggerated claims as to the probative value of the evidence.

Readers should note that the PCAST report was not greeted with great glee by the Department of Justice or the Federal Bureau of Investigation. Attorney General Loretta Lynch reportedly stated that “the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”¹⁵ In comments released on Sept. 20, 2016, the FBI expressed disagreement “with many of the scientific assertions and conclusions of the report.”¹⁶ So this report will by no means change practices overnight. But that is all the more reason why the defense bar should up its game when confronting questionable forensic evidence. The PCAST report will be a big help in that effort.

Notes

1. U.S. Dep’t of Justice, Office of the Inspector General, Audit of the Drug Enforcement Administration’s Management and Oversight of Its Confidential Source Program, available athttps://oig.justice.gov/reports/2016/a1633.pdf#page=1 [hereinafter OIG Report].
2. OIG Report, at 8.
3. Id. at ii, 10-23.
4. Id. at 31.
5. Id. at 38.
6. Id. at 39.
7. Id.
8. National Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009) [hereinafter NAS Report]. A copy of the report is available as a free download at http://www.nap.edu/catalog.php?record_id=12589.
9. President’s Council of Advisors on Science and Technology, Forensic Science in the Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (2016) [hereinafter PCAST Report]. The report is available at https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf.
10. PCAST Report, at x, 1.
11. Id. at 4.
12. As used in the report, “repeatable” means that, with known probability, an examiner obtains the same result when analyzing samples from the same sources. “Reproducible” means that, with known probability, different examiners obtain the same result when analyzing the same samples. Id. at 47.
13. Id. at 7. The report also reviews previously available material related to hair analysis, but did not undertake a full evaluation of that discipline. Id.
14. Id. at 14-20.
15. http://www.wsj.com/articles/white-house-advisory-council-releases-report-critical-of-forensics-used-in-criminal-trials-1474394743.
16. https://www.fbi.gov/file-repository/fbi-pcast-response.pdf.

About the Author 

Norman L. Reimer is NACDL’s Executive Director and Publisher of The Champion.

Norman L. Reimer
NACDL
Washington, DC 20036
202-465-7623
www.nacdl.org
@NACDL
nreimer@nacdl.org 

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