FORENSIC EVIDENCE: SCIENCE AND THE CRIMINAL LAW SECOND EDITION pdf

Chapter 2, Science and the Criminal Law provides an overview of the entire subject of the uses of forensic sciences in the investigation, prosecution,and defense of criminal cases in Ame

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This book is dedicated to the loving memory of my mother, Elizabeth Wolfe,and my step-father, John Wolfe

In investigations of every kind it is essential that a correct estimate

be made, of the kind and degree of assurance of which the subjectadmits

In the subjects of moral science, the want of appropriate words,and the occasional application of the same word to denote differ-ent things, have given occasion to much obscurity and confusionboth of idea and expression; of which a remarkable exemplifica-tion is presented in the words probability and certainty

William Wills: An Essay on the Principles

of Circumstantial Evidence (1838)

Forensic Evidence: Science and the Criminal Law (Second Edition), is

intended to serve as an introduction and guide to the appreciation andunderstanding of the significant historic, contemporary, and future relation-ship between the world of the forensic sciences and the criminal justicesystem This book is not intended to be a close study of forensic science, nor

was it ever conceived as becoming one It is devoted to a study of the judicial response to uses of forensic science in the investigation, prosecution, and

defense of a crime The audience to which this study is directed are thoseintimately or potentially involved in that relationship: police, forensic scien-tists, prosecutors, defense lawyers, and professors and students of the criminallaw It is meant to stand on its own but also to complement the growingnumber of excellent treatises and studies in the forensic sciences proper, many

of which are published in the CRC Press series in the area of forensic sciences.The book will focus on those cases questioning the legal acceptability

under a Frye or Daubert standard of the methodological basis of the forensic

science at issue However, equally, if not more important, will be the sions of the numerous cases where the courts, assuming the acceptability ofthe underlying methodology, have scrutinized and accepted or rejected a wide

discus-variety of investigative uses of the science under discussion, offered as proof

of one or more material facts in a criminal prosecution This latter area ofstudy is of equal, if not more central importance in understanding the place

of forensic science in the criminal justice system of the 21st century

It is time for another close look at both the body of claims and actualexpert opinions supplied to the criminal justice system as we enter the firstdecade of the new century The totally justified attention given rapid DNAdevelopments should not overshadow the ongoing judicial acceptance anduse of the more traditional body of forensic sciences such as hair, fiber,ballistics, or fingerprints, most of which have never been fully challenged.The contributions of forensic science to the criminal justice system have been,and remain, significant

This book is divided into 12 chapters, most of which, with the exceptions

of Chapters 1, Science, Forensic Science, and Evidence and Chapter 2, Scienceand the Criminal Law, address the legal profile of a specific forensic science

Chapter 1, Science, Forensic Science, and Evidence, briefly analyses the

historical and contemporary context in which legal arguments directed tothe adequacy of the findings of forensic science are conducted This is anecessary precursor to the more criminally focused discussion that constitutes

the bulk of this volume The framework of the Frye and Daubert standards

for the introduction of scientific opinion will be discussed here as well as thesignificant differences that exist when the legal challenge comes in a civil asopposed to a criminal law forum

Chapter 2, Science and the Criminal Law provides an overview of the

entire subject of the uses of forensic sciences in the investigation, prosecution,and defense of criminal cases in American courts Central topics addressedthere are the historical and contemporary relationship between forensic sci-ence and proof of crime, the fundamentals of the application of forensicscience disciplines to the investigation and prosecution of a criminal case,the function of probabilistic to that process and an extended discussion ofthe legal aspects of the modern crime scene A brief listing of those chaptersfollows:

Chapter 3, Hair Analysis, will discuss the court’s response to both class

and individual opinions as respects attempts to connect one or more hairsfound at a crime scene to an individual suspect This controversial subjectwill set the analytical framework for the discussions to follow on a wide range

of forensic science applications

Chapter 4, Fiber Analysis, will discuss the identification and use of a

wide variety of fiber materials from crime scenes and the processes used tolink any such materials to a suspect

Chapter 5, Ballistics and Toolmarks, will address the subjects of firearms

and projectile identification, the matching of bullets to a weapon, gunshot

residue and toolmark identification and attempts to match crime scene ations to a tool associated with a suspect

stri-Chapter 6, Soil, Glass, and Paint, discusses the nature of soil and glass

shard particle identification and the attempt to connect such materials with

an individual suspect

Chapter 7, Footwear and Tire Impressions, addresses the identification,

photographing, and or casting of footwear and tire impressions found at acrime scene to those associated with a suspect

Chapter 8, Fingerprints, discusses the subject of fingerprint

identifica-tion procedures and the recent Automated Fingerprint Identificaidentifica-tion System(AFIS)

Chapter 9, Blood Spatter Analysis, analyses cases involving the subject

of presumptive testing for blood products as well as the subject of blood stainpattern analysis and its importance in many key aspects of crime scenereconstruction efforts

Chapter 10, DNA Analysis, will analyze the court’s scientific conditions

for the acceptance of identification testimony arising from RFLP, PCR, STRDNA and mitochondrial (MtDNA) analyses, in addition to the small butgrowing number of cases and articles addressing nonhuman DNA testing, inparticular, dog, cat, and plant DNA testimony

Chapter 11, Forensic Anthropology and Entomology will briefly

exam-ine those decisions that utilize the methodologies and findings of these fields

as aides to the investigation and identification of human remains and viding time of death estimates

pro-Chapter 12, Epilogue, will provide a brief summary note on the subjects

not covered in this book and the major points sought to be made in theentire work

Terrence F Kiely is a professor of law and the director of the DePaul

Uni-versity College of Law’s Center for Law and Science

Professor Kiely graduated from Loyola University in Chicago (B.S.,humanities) in 1964, DePaul University College of Law (Juris Doctor) in 1967and also received an LL.M (foreign and comparative law) from New YorkUniversity School of Law in 1970 Professor Kiely is an expert in the area ofthe interaction between science and the civil and criminal law He is theauthor of five previous books:

Preparing Products Liability Cases (John Wiley & Sons, 1987)

Using Litigation Databases (John Wiley & Sons, 1989)

Modern Tort Litigation (John Wiley & Sons, 1990)

Forensic Evidence: Science and the Criminal Law (CRC Press, 2001) Science and Litigation: Products Liability in Theory and Practice (CRC

Press, 2002)

Professor Kiely has been a full time member of the DePaul UniversityCollege of Law faculty since 1972 He teaches in the areas of torts, productsliability, criminal law, evidence and forensic evidence During the academicyears 1995–1996 he was the Robert A Clifford Professor of Tort Law andPublic Policy His work with the Center for Law and Science involves themaintenance of a comprehensive law and science Web site and organizingand participating in forensic science and evidence seminars at the College ofLaw

1. Science and the Criminal Law 1

I Science and the Legal Process 1

II Forensic Science Questions 2

III Forensic Science and Circumstantial Evidence 6

IV Forensic Science, Forensic Evidence, and the Modern Crime Scene 7

V Scientific Foundations and the Courts 8

VI Science and the Courts 10

VII Frye v United States 11

VIII Daubert v Merrell Dow Pharmaceuticals 12

IX General Electric v Joiner 16

X Kumho Tire v Carmichael 17

XI People v Sutherland: A Case Study 19

The Sutherland Case Facts 20

The Prosecution’s Forensic Evidence: The Tire Tracks 21

The Prosecution’s Forensic Evidence: The Hair Evidence 21

The Prosecution’s Forensic Evidence: The Fiber Evidence 22

The Court’s Analysis: The Hairs and Fibers 23

The Sutherland Case: The Court’s Analyses 25

Sutherland II Case 25

Sutherland Conclusion 28

Appendix: Daubert Progeny 28

Endnotes 33

2. Science, Forensic Science, and Evidence 41

I Introduction 41

II Forensic Science and Evidence 44

III Forensic Evidence and History 48

IV Forensic Evidence and the Crime Scene 50

V Forensic Evidence Basics 52

VI Forensic Evidence and Circumstantial Evidence 55

VII Forensic Science, Probability, and the Law 57

VIII Forensic Science and the Courts: Frye, Daubert, and Beyond 61

IX Basic Questions Related to Forensic Science and Forensic Evidence 64

Class and Individual Characteristics 65

X Laboratory Matches and Courtroom Rules of Evidence 66

XI Conclusion 69

Endnotes 70

3. Hair Analyses 79

I Introduction 79

II Hair Analysis Basics 81

III Discovery Issues 83

IV Matching Statements 84

V Recent Case Discussions: Qualifications 87

Prosecutorial Characterizations of Hair Testimony 95

VI Mitochondrial DNA [mtDNA] and Hair Analysis 106

VII The Evidence on the Petition for New Trial 119

VIII Conclusion 121

Endnotes 122

4. Fiber Analysis 135

I Introduction 135

II Fiber Evidence in the Courtroom 137

III Discovery 140

IV Wayne Williams Case 143

V Additional Fiber Cases 153

VI Fiber Persistence 158

VII Conclusion 166

Endnotes 167

5. Ballistics and Tool Marks 177

I Introduction 177

II Ballistics and Forensic Evidence 180

III Ballistics Experts: Qualifications 184

IV Weapon Identification 185

V Computer-Generated Animation of Crime Scenes 193

VI Bullet Ricochet 194

VII Angle of Shoot 194

VIII Bullet Matching 199

IX Bullet Lead Matching — ICP Methodology 208

X Incompetence of Counsel 212

XI Gunshot Residue 214

XII Suicide vs Homicide 221

XIII Tool Marks 222

XIV Conclusion 227

Endnotes 228

6. Soil, Glass, and Paint 241

I Glass, Paint, and Soil in the Courtroom 241

II Glass Analysis 241

III Glass in the Courtroom 244

IV Paint Analysis 257

V Soil Analysis 263

VI Soil and Cadaver Dogs 265

VII Soil and Forensic Archeology 270

VII Conclusion 272

Endnotes 272

7. Footprints, Tire Impressions, and Bite Marks 281

I Introduction 281

II Foot Impressions in the Courtroom 282

III Footwear Cases 293

IV Expert vs Nonexpert Opinion 293

V Barefoot Impression Evidence 296

Footwear Impression for Indigent Defendant 301

Footwear-Impression Testimony 304

VI Footwear Trails 311

VII Indirect Proof of Footwear Impression 312

VIII Tire Impressions 314

IX Bite-Mark Impressions 317

X Bite Marks: Enhanced Imaging and Overlays 321

Endnotes 327

8. Fingerprints 339

I Introduction 339

II International Working Groups 339

III Fingerprints: American Experience 342

IV Fingerprint Questions 347

V Fingerprint Foundations 349

VI Fingerprints: Daubert Challenges 350

VII Fingerprints: Digital Print Machines 354

VIII Fingerprints: Discovery of Automated Fingerprint System Printouts 355

IX Fingerprints: Absence of Fingerprints 356

X Time and Place Requirements 357

XI Lip Marks 365

XII Ear Impressions 368

Endnotes 379

9. Blood-Spatter Analysis 389

I Introduction 389

II Blood Spatter: Presumptive Tests for Blood 391

III Blood Spatter in the Courtroom 397

IV Blood Spatter: Expert Qualifications 398

V Blood Spatter: Crime Scene Dynamics 405

Endnotes 418

10. DNA Analysis 425

I Introduction 425

II DNA Research Resources 427

III DNA: International Standards 428

IV DNA: Questions for Lawyers 429

V DNA Methodologies: RFLP 431

VI PCR DNA Methodologies 436

VII STR DNA Methodologies 438

Project Summary 440

VIII DNA Mixture Cases 441

IX Mitochondrial DNA: MtDNA 443

X Nonhuman DNA 450

XI DNA Related Cases: Post-Conviction Testing and Mandatory Submission of DNA 451

XII Post-Conviction DNA Testing 451

XIII DNA Samples 454

XIV John Doe DNA Warrants 459

XV The Future of DNA Testing 461

Endnotes 462

11. Forensic Anthropology and Entomology 477

I Introduction 477

II Forensic Anthropology 478

III Forensic Anthropology Cases 479

IV Racial or Ethnic Identification 485

V Individual Identifications 486

VI Forensic Anthropology: Photography 486

VII Cultural Anthropology 489

VIII Forensic Entomology 492

IX Entomology Cases 493

X Conclusion 498

12. Epilogue 505Index 507

we, that have so many things truly natural which induce tion, could in a world of particulars deceive the senses if we woulddisguise those things, and labor to make them more miraculous.But we do hate all impostures and lies, insomuch as we haveseverely forbidden it to all our fellows, under pain of ignominyand fines, that they do not show any natural work or thing adorned

admira-or swelling, but only pure as it is, and without all affectation ofstrangeness

Francis Bacon: The New Atlantis (1626)

I Science and the Legal Process

The term science in the discussions that follow has little or no connection

to the use and understanding of that term as it is uniformly thought of by

the international scientific community John Horgan, former editor of entific American, in his excellent book The End of Science: Facing the Limits

leading philosophers of science — theoretical physicists, evolutionary ogists, mathematicians, astronomers, and chaos theorists — to get theirperspectives on whether “science” was at a close, with nothing significant left

biol-to be discovered This book is a superb survey of modern scientific thinkingacross a very wide variety of fields The contemporary legal question regarding

the adequacy of a scientific methodology to support an expert opinion islight years away from the type of scientific inquiry discussed by the scholarsHorgan interviewed Horgan notes the criticism by Nobel prize-winningchemist Professor Stanley Miller of scientific papers culled from otherpublished papers where no hard-won finding has resulted from extensivelaboratory work Professor Miller referred to such works as “paper chemistry.”

In the hard-fought, science-based civil cases, such as the breast-implantactions or the polychlorinated biphenyl (PCB) and cancer litigation, we canborrow the idea and refer to the use of previously published articles, byextrapolation in such cases, to claim or deny causation as “paper science,” acharge that may be made in part only about forensic science-based testimony

in criminal cases.2

The attempts to formulate an overarching answer to the question of

“What is science?” in the world of scientific endeavor and the American legalsystem are clearly distinct in overall goals, methodology, and practical appli-cations When the question is restricted to the area of law, the use of science

in civil tort cases and in criminal prosecutions is also based on significantlydifferent goals, methods, and practical effects The issues of whether long-term exposure to phencyclidine (PCP) can cause cancer in a products liabilitylawsuit are quite different from the forensic issue of whether hair or fiberexpert testimony can be used to link a defendant to a crime scene in ahomicide prosecution It is also important to understand the differencesbetween civil and criminal cases with respect to the performance of labora-tory work pursued to answer key factual issues in the cases Forensic scientists

in white lab coats are routinely involved in criminal prosecutions Their work

is used to shed light on the physical dynamics that created the crime scene,

to add significant information linking a defendant to a crime scene, and tomove toward the identification of the perpetrator Forensic scientists arerarely involved in answering the essential scientific causation issues at thecenter of modern products liability litigation

II Forensic Science Questions

Examining a set of rhetorical questions that revolve around our core inquiryabout the nature and value of forensic science can help to clarify the discus-sions that follow

examination of one or more physical items gathered at a crime scene?

• What value can be assigned to any factual estimation in a criminaljustice system where life and liberty and justice to a victim all play apart?

hairs or footprints, are or are not consistent with, or not dissimilar

or substantially similar to, another fiber, hair, or footprint?

to them if one set of exemplars was taken from a crime scene and theother exemplars belong to a suspected perpetrator?

long-held requirements that the elements of a crime must be proven beyond

a reasonable doubt? How does circumstantial evidence fit into ecutorial efforts designed to meet such a high bar of proof in a casepartially supported by hair or fiber evidence?

observation by eyewitnesses?

with scientific theory or recognized scientific methodology?

paint, or glass analysis; and how has that science changed as we enterthe 21st century?

theoretical underpinnings of the discipline, or because of its use ofmicroscopy and other processes that aid its essentially observationalnature?

simply a combination of experience and modern microscopy? Whatelse, from a forensic scientist standpoint, can be said about fiber, hair,footprints, fingerprints, or ballistics and their examinations and thefactual assumptions that result? Can more be found to give suchdisciplines as great or greater credibility than fingerprint impression,ballistics, tool marks, or deoxyribonucleic acid (DNA)?

The repetition of these recurring questions across the range of the forensicsciences discussed in this book indicates the great similarity of trace-evidenceanalysis, in both a class characteristic and especially in individualistic state-ments, that seeks to link a particular suspect to a crime scene In hair analysis;footwear and tire impressions; glass, paint, and soil analyses; bite-markimpressions, and most other, forensic science settings, we seek to discoverwhat general nonsuspect-related categories of information can be gleanedfrom the analysis of a datum, for example, fiber obtained at a crime scene

These class statements begin the sketch of the person or persons whowere present and are essential investigative links in the chain of circumstantialevidence pointing toward a particular suspect The success of such efforts,

of course, is directly related to the integrity of the crime-scene preservation.The sad results in the recent Jon Benet Ramsey murder investigation testify

to that simple fact

When speaking of law and science matters, there are two distinct areas

of legal practice involved On the civil side, science-related issues are typicallyinvolved in the area of product liability and its subset of chemical-basedinjuries, often referred to as “toxic torts.” A wide range of business-relatedlegal issues may involve scientific matters, from contracts, to patent infringe-ment, to antitrust, and so on On the criminal-law side, the science-basedissues cover considerable ground, ranging from proof offerings in the areas

of hair and fiber analyses; soil, glass, and paint identification; and a host offacts related to forensic pathology, toxicology, blood products, as well as thearea of ballistics and tool marks In these kinds of criminal cases, some science

is accomplished to generate material facts, such as DNA identifications orbullet or shell-casing matching, in the case at hand This use of science isdifferent from civil, product-liability-type cases that are centered in issues ofcausation, where not only no science is performed for the immediate case,but where published scientific articles, usually not precisely descriptive of the

Forensic scientists “in white lab coats” are routinely involved in forensicevidence-focused criminal prosecutions Their work is used to shed light onthe physical dynamics that created the crime scene and to add significantlinking information as to the identity of the perpetrator They are rarelyinvolved in answering the dispositive “scientific”-causation issues at the cen-ter of modern product-liability litigation, such as “Does migrating siliconefrom a ruptured breast implant cause autoimmune system damage?” Thesetypes of issues are the focus of recent and ongoing United States Supreme Courtdecisions that seek to finalize a “one-size-fits-all” definition of “science.”4

Forensic evidence involves the efficacy of information that has beenscientifically generated for a particular case, the validity of which is grounded

in past experiences in similar cases as evidenced in the forensic literature.Forensic evidence is a much more-real scientific application to the case at hand.Tort cases, on the other hand, present a radically different situation True

“science” questions are rarely central issues even in the most complex tortproducts-liability cases A clear cause-in-fact or causal-relation problem —seldom the central issue in these cases — the questions revolve almost exclu-sively around the issue of “science as business.” Most product liability cases

do not deal with “science” understood in the sense discussed in the world ofinternational science, at least not in any sense of the term as research scientists

understand it More often the focus is on one of the ways a manufacturingcorporation, utilizing complex but practical science to develop and marketproducts, designs it, or often publishes communications with regard to the

The historical hallmark of crime-scene investigation has always includedclose observation, well-paid attention, and the application of common senseand logic to solving the crime being observed These characteristic actionswere associated with crime scenes well before the current preoccupation ofthe courts and legal scholars with the precise relationship of law and science,especially in areas of tort causation in the civil law and the forensic sciences

in the criminal law The law brings little to the table with respect to developingacceptable scientific methodologies, theories, and opinions What it has pur-sued, especially at the very end of 20th century, is to craft legal doctrinedesigned to ensure that proffered scientific explanations and opinions com-port with the most credible scientific thinking about methods and conclusionsbased on such, in instances where expert opinion is offered in a civil orcriminal case

Recourse has always been to the scientific community involved for ance This guidance was viewed, however reluctantly, as an inevitable neces-sity in some form, from the earliest days of the common law In Spencer

courts and expert witnesses can be seen in the following exchange:

Dr Crell: “Now, my lord, I will give you the opinion of several ancient authors.”

Baron Hatsell: “Pray, doctor, tell us your own observations.”

Dr Crell: “My lord, it must be reading, as well as a man’s own experience, that will make anyone a physician, for without the reading of books of that art, the art itself cannot be attained to Besides, my lord, I conceive that in such a difficult case as this, we ought to have a great deference for the reports and opinions of learned men Neither do I see why I should not quote the fathers of

my profession in this case as well as you gentlemen of the long robe quote Coke upon Littleton in others.”

Baron Hatsell’s understandable reluctance to allow “testimony” ofauthors not subject to cross-examination notwithstanding, the common law’sdependence on the world of science and its experts remains

Modern criminal courts, post-Daubert, are feeling the increasing need

to comply with defense demands to delve into the scientific bases of the wholebody of the forensic sciences, not the least of which are the trace evidencestaples of hair, fiber, soil, and finger and footwear impressions What is coming

to the surface in these recent challenges are basic observational disciplinesaided by modern microscopy, without the existence of the minimal type ofcomparative statistical databases available in more science-based disciplines

such as DNA typing and population predictability The primarily tional base of a significant amount of forensic sciences’ contribution to thecriminal law may seem alarming, but close observation has always been thecase This reality does not detract from the increasingly modern scientificenvironment in which so much forensic work is achieved and its factual

III Forensic Science and Circumstantial Evidence

Circumstantial evidence, specifically, the subjects — traditional modes ofobservation and examining forensic practices and probability analyses — areseparate but intimately related aspects of historical and contemporaryattempts at truth seeking and truth finding in the criminal trial process.Contemporary forensic-evidence conferences and the forensic literatureexhibit considerable enthusiasm for the power and potential of twenty-first-century scientific advances for the investigation and solution of crimes, such

as DNA research and developments in laser-based technology It is oftenforgotten or overlooked, however, that the greater number of the traditionallyemployed forensic sciences are, in effect, based on and centered in closeobservation, aided by modern microscopy, and do not employ any additionalstatistics-based projections as to the potential accuracy of the laboratory

“match.”8 The term forensic is a very old word, always cast in terms of the

that forensic or rhetorical arguments merely taught methods for embellishingthe truth, the rejoinder, from Plato’s day, has, on the contrary, been that

An examination of American criminal cases from the earliest days of therepublic reveals several interesting observations about expert assistance inestablishing material facts in a prosecution for crime Initially, it is of value

to note just how few such cases there are that address the issue in any icant way Additionally, it is clear — as in the numerous science-based patentcases — that courts were generally willing to listen, even gratefully, to qual-ified experts, but given the basic observational and logical foundation forforensic-based testimony, were generally much more skeptical and, at times,demanding

signif-The beginnings of the legal response to information, based on studiedobservation, logic, and common sense, are to be found in the late 18thcentury and the second half of the 19th century The real history of forensicevidence and the criminal law does not begin with the increasingly impressiveapplications of science since the 1920s and 1930s Until that modern period,

there were a series of reported decisions employing what might be referred

to as forensic evidence before forensic science If the assumption is that forensic

science is basically and historically centered in observation and if

A long common-law history of attempts to solve crimes and successfullyprosecute the offender goes back well into the 18th, 19th, and early 20thcenturies The early evidence treatises by Jeremy Bentham,12 S M Phillipps,13

items of evidence left at a crime scene Books relating the tales of murdermost foul solved by close observation and common sense were extremely

is not only interesting reading, but also demonstrates that a great amount oftoday’s forensic science has as much in common with inferential, circum-stantial evidence theory as it does with modern scientific theory The provingpower of the tug of circumstance lies in the fact that the discussion offorensics is had in the context of crime-scene items linked to the defendant

A good recent example is the Indiana Supreme Court’s 1997 opinion in

found in the car where the victim was allegedly attacked and a pubic hairexemplar from the defendant Prior to releasing the state’s expert hair analyst,the court directed a telling series of questions to him:

COURT: (I)n regard to the examination It is simply a physical, visual examination of the hair?

ANALYST: Yes, sir.

COURT: You simply say that one hair looks like another one or it doesn’t look like another one?

ANALYST: I say it’s sufficiently similar to have come from that person or it

is dissimilar.

COURT: And if you say that it … (is) similar to come from that person … that doesn’t mean that it comes from that person.

ANALYST: It just simply means that it could have come from that person COURT: And you do not know the statistical percentages of how many people would have similar hair?

ANALYST: There are no statistics It’s hard to say.20

Modern case reports are increasingly filled with lengthy discussions of

trial court’s failure to supply indigents with adequate funding to hire theirown experts, courts are increasingly engaging in wide-ranging forensic sci-ence discussions A striking fact about such recent cases is that in most statesbefore the post-Daubert era, the bulk of the contemporary claims of scientificinadequacy were either not raised at all or given short shrift by the courts.Today, prosecutors, citing the years’ long use by police of these sciences, arguefor their unchallenged acceptance Defense counsels are increasingly seeking

to challenge the bases for forensic science, especially in the trace-evidencearea Admissions by the Federal Bureau of Investigation (FBI) of major mis-takes in the area of fingerprint examination and recent major disagreementsbetween traditional hair analysts and mitochondrial DNA (mtDNA) hairexperts are indications of the change in the unchallenged nature of forensicscience testimony Nonetheless, recent examination of cases seems to indicatethat a serious post-Daubert challenge to the scientific validity of the body of

V Scientific Foundations and the Courts

In civil as well as criminal cases, the parties seek to prove or disprove asufficiently strong connection between defendant’s act or omission and thedeath or injury in suit However, the “science” at issue in civil cases, oftencentered on questions of causation, normally consists of scientific peer-reviewed studies that may only be probative of any such connection byextrapolation Can this pharmaceutical cause cancer or birth defects? Suchtestimony, often by the use of inferential statistical analyses of epidemiolog-ical studies, does not provide the individualizing expert testimony typicallygiven by forensic scientists in criminal litigation In the criminal case, theuse of forensic science means that some form of laboratory work has been

While there are repetitive areas of scientific focus in civil cases, such aschemistry and pharmaceuticals, or biological, mechanical, or electrical engi-neering, much less opportunity exists to discuss the general outlines ofacceptable methodology The forensic sciences, traditionally associated with

the prosecution of crime, such as fiber comparisons, allow such broad odological reviews and accordingly are required to varying degrees by crim-inal courts Nonetheless, the legal concerns are basically the same Theevidence part of the concept of forensic evidence refers to a distinct set ofprocedures unique to the litigation process, separate and distinct from theprocesses of any particular forensic science that is the basis for the decision

meth-to admit or not meth-to admit evidence

It is important to recall the fundamentally different reasons for the duction of scientifically generated information in the civil and criminal liti-gation systems The use of the term litigation is important here because it is

intro-in the process of litigation that the issues discussed are brought out Distintro-inctfrom other contexts, the nature or acceptability of scientific methodologies

or opinions is at the center of the inquiry, such as grant requests, patents,contractual disputes, or publication in a scientific, peer-reviewed publication.Forensic information generated by one or more of the forensic sciencescomes to the law in one or both of two forms of expert witness opinion Thefirst is referred to as a class characteristic statement that speaks generally tosome aspect of the crime scene under examination Testimony that the pubichairs found on a rape-homicide victim came from a Caucasian male or thatshell casings found at the scene came from a certain make and model offirearm are two typical examples of this type of statement The second type

of potential testimony generated by a forensic science is known as individual

or matching statements, i.e., that serve to link some data found at the crimescene to a particular defendant Testimony finding that court-ordered pubichair exemplars obtained from the defendant is consistent in all respects tothe hair located on the victim, or that fibers found on the victim’s clothingare consistent with fibers from the defendant’s jacket, will serve as examples.24

This idea of class characteristic statements refers to the reality that manyconfident general conclusions about the dynamics of a crime scene may be

The context in which the science-based questions addressed in this bookarise is in the proffer of expert testimony in civil or criminal cases, whereone side, at a pretrial hearing or at trial, seeks to challenge the propriety ofthe other side’s experts testifying at all, or more frequently, to challenge thereliability or general acceptability of the methodology used by the expert informing an opinion For example, a lawyer in a civil product liability casewants his expert to testify that long-term exposure to PCBs caused cancer inhis client The company lawyers have their own experts, who will deny thecarcinogenic potential of PCBs In a criminal prosecution for sexual assaultand murder, the state wishes to present complex DNA, hair, and fiber testi-

According to tried and true evidence law theory, any such witness may

be challenged on four basic grounds First, the case may simply not call forexpertise at all and the jury may decide the disputed fact without the needfor lengthy (and often highly prejudicial) testimony Second, a particular expertwitness may be challenged on basic qualifications to give any opinion in thefield at issue because of insufficient background in education or experience

to have anything of value to offer on the fact at issue Third, either the odology utilized by the expert to support an opinion is not in fact scientificallysound, thereby not capable of supporting the proffered opinion, or the meth-odology is sufficiently scientifically sound to support an opinion, but thiswitness’ opinion based on such method is not sufficiently derived from such

the key objections at the center of the current state and federal controversyover the utilization of scientific opinion in America’s courts

VI Science and the Courts

You cannot separate, for trial purposes, forensic evidence from the testimony

of forensic experts Based upon this reality, many legal issues result, not theleast of which is a minimal understanding of the rules of criminal discoveryand the overarching rules of evidence themselves, which control the entirety

of the information flow in any trial, not just a trial for the prosecution of acriminal act Many important dispositive questions arise from the necessarypresence of forensic experts in criminal trials: What is science? Who qualifies

as an expert? Who must pay for these experts? How does criminal discoveryprovide for the exchange of scientific information between the prosecutionand defense?

The first question is “What are the appropriate standards of ‘forensic’science that can support a proffer of fact that can be used to establish amaterial fact in a case?” It cannot be overlooked that the term forensic scienceimplies the use of a scientific theory or methodology to generate facts in theinvestigation and prosecution of a crime The Daubert question is a prelim-inary question as to whether it is a reliable and fair way to generate a materialfact, let alone a particular fact that may be used in any particular prosecution.State and federal courts in both civil and criminal cases are increasinglyoccupied with cases centered on the need for an encompassing and practice-oriented definition of science and scientific method as an essential precursor

to the admissibility of opinions of experts based upon that science In thepast decade, the subject of the propriety and extent of expert testimony incivil and criminal cases has been attacked from both sides in an ongoingbattle as to what is a legally acceptable scientific foundation for the proffering

of expert opinion The following section examines the key federal cases thatset the current parameters for the introduction of science-based expert opin-ion in the nation’s courts.

VII Frye v United States

The Frye test had its origin in Frye v United States,28 a short and citation-free

1923 United States Court of Appeals decision concerning the admissibility

of evidence derived from a systolic blood-pressure deception test, a crudeprecursor to the polygraph machine In Frye, the defendant was convicted

of the crime of murder in the second degree In the course of the trial, defensecounsel proffered an expert to testify to the results of a “deception test” madeupon the defendant The test was characterized as a “systolic blood-pressuredeception test.” It was claimed that changes in blood pressure would becaused by changes in the emotions of the witness, and systolic blood-pressurerises were brought about by nervous impulses sent to the autonomic nervoussystem Scientific experiments, the defendant asserted, confirmed that fear,rage, and pain routinely produced an elevation of systolic blood pressure,and that conscious deception or falsehood, concealment of facts, or guilt ofcrime, accompanied by fear of detection when the person is under examina-tion, raised the systolic blood pressure in a curve, which corresponds exactly

to the struggle going on in the subject’s mind, between fear and attemptedcontrol of that fear, as the examination touches the vital points about which

The proffer was objected to by the government, and the court sustainedthe objection Counsel for defendant then offered to have the profferedwitness conduct a test in the presence of the jury, which was also denied.The defendant’s counsel agreed that no cases directly in point had beenfound The broad ground, however, upon which they based the case, wasthat the rule stated that the opinions of experts or skilled witnesses wereroutinely admissible in cases where the matter of inquiry is such that inex-perienced persons were likely to be incapable of forming a correct judgmentupon the matter, due to its subject being a matter of art or science with whichthey would be unfamiliar When the question involved did not lie within therange of common experience or knowledge, but required special experience

or knowledge, the opinions of witnesses skilled in that particular science, art,

Here, rather than questioning the expertise of defendant’s expert, thegovernment challenged the basic foundation for the methodology of any suchmachine Thus the court was required to construct a rule that would assist

it and future courts in determining the sufficient level of confidence that

should be reposed in a scientific methodology supporting any profferedopinion based upon it Such analysis was to be had as a precursor to theadmissibility of an opinion based upon it.

The court, speaking through Judge Van Orsdel, noted that the issue ofexactly when a scientific principle or discovery crosses the line between theexperimental and demonstrable stages was difficult to define:

Somewhere in this twilight zone, the court continued, the evidential force

of the principle must be recognized, and while courts will go a long way inadmitting expert testimony deduced from a well-recognized scientific prin-ciple or discovery, the thing from which the deduction is made must besufficiently established to have gained general acceptance in the particularfield in which it belongs We think the systolic blood-pressure deception testhas not yet gained such standing and scientific recognition among physio-logical and psychological authorities as would justify the courts in admittingexpert testimony deduced from the discovery, development, and experimentsthus far made.31

Thus the court, realizing that legal doctrine had nothing to supplant theviews of the scientists, took the position that if the methodology at issue wasgenerally accepted by the relevant scientific community that would be accept-able to the law

The general acceptability rule was thus born and continued to be therule for the next 70 years, until the decision by the United States Supreme

1993 The period of 1923 to1993 saw the gradual development and eventualexplosion of product liability law in the 1960s and 1970s

The major work of the nation’s courts in the products field was thecreation and refinement of the mass of principles involved in forming the

Merrell Dow Pharmaceuticals challenged the methodology of plaintiff ’sexpert in determining that the body of epidemiological studies established,according to his unique methodology, that the ingestion of the drug Bendec-tin was the cause of fetal malformations, that the sea change occurred

VIII Daubert v Merrell Dow Pharmaceuticals

In the Daubert decision, petitioners were minor children born with seriousbirth defects, alleged to have been caused by their mothers’ ingestion ofBendectin, a prescription antinausea drug marketed by defendant MerrellDow Pharmaceuticals The plaintiffs in Daubert were children and their parentswho claimed the children’s birth defects were caused by their mothers’ inges-tion of Bendectin, a drug prescribed to combat nausea during pregnancy

Merrell Dow, the marketer of Bendectin, moved for summary judgment,supporting its motion with the affidavit of an expert who stated that nopublished study of patients had found Bendectin to cause malformations infetuses The plaintiffs responded with the testimony of eight experts whoconcluded that Bendectin can cause birth defects, basing their conclusionsupon animal-cell and live-animal studies, pharmacological studies, and

consider-able discovery, Merrell Dow moved for summary judgment, contending thatBendectin does not cause birth defects in humans and that petitioners would

be unable to come forward with any admissible evidence that it did Insupport of its motion, Dow filed the affidavit of Dr Steven H Lamm, aphysician and epidemiologist, who was an experienced and solidly supportedexpert on the risks from exposure to various chemical substances Lamm saidthat he had reviewed all 30 published studies on both Bendectin and humanbirth defects, involving more than 130,000 patients, and stated that none hadfound Bendectin to be a substance capable of causing malformed fetuses.Doctor Lamm concluded that maternal use of Bendectin during the firsttrimester of pregnancy had not been proven to be a risk factor for humanbirth defects.35

Plaintiffs did not contest this portrayal of the birth defect literature, butcountered with the testimony of eight experts of their own, each of whomconcluded that Bendectin can cause birth defects Their conclusions werebased upon in vitro (test tube) and in vivo (live) animal studies that found

a link between Bendectin and malformations; pharmacological studies of thechemical structure of Bendectin that purported to show similarities betweenthe structure of the drug and that of other substances known to cause birthdefects; and the “reanalysis” of previously published epidemiological (humanstatistical) studies.36

The district court granted respondent’s motion for summary judgment,where, citing Frye, the court stated that scientific evidence was admissibleonly if the principle upon which it is based was sufficiently established to havegeneral acceptance in the field to which it belonged, concluding that peti-tioners’ evidence did not meet this standard The court held expert opinionthat was not based on epidemiological evidence was not admissible to establishcausation.37 The animal-cell studies, live-animal studies, and chemical-structureanalyses on which petitioners had relied could not, alone, establish a reason-ably disputable jury issue regarding causation Petitioners’ epidemiologicalanalyses, based as they were on recalculations of data in previously publishedstudies that had found no causal link between the drug and birth defects,were ruled to be inadmissible because they had not been published or sub-jected to peer review.38

The United States Court of Appeals for the Ninth Circuit affirmed,39

holding that expert opinion based on a scientific technique was unacceptableunless the technique was “generally accepted” as reliable in the relevantscientific community The court held that expert opinion based on a method-ology that significantly deviated from the procedures accepted by recognizedauthorities in the field could not be established to be generally accepted as areliable technique.40

The court stressed that other courts of appeals that had addressed thealleged dangers of Bendectin had declined to accept reanalyses of epidemio-

Those courts had indeed adjudged unpublished reanalyses exceptionallyproblematic in light of the great import of the original published studiessupporting Merrell Dow’s, all of which studies had been subject to closereview by the scientific community

The United States Supreme Court, speaking through Justice Blackmun,noted that in the 70 years since its formulation in the Frye case, the “generalacceptance” test has been the dominant standard for determining the admis-sibility of novel scientific evidence at trial, and that, while under increasing

including the Ninth Circuit Justice Blackmun observed that the merits ofthe Frye test had been much debated, and that the scholarship on its proper

agreed with Merrell Dow that the proper focus of such discussions shouldhenceforth be the provisions of the Federal Rules of Evidence, not the 70-year-old Frye decision The court was required to interpret the legislatively enactedFederal Rules of Evidence as they would any statute, and that Rule 401 and

used in these cases in conjunction with Rule 702, setting forth the basic

The court observed that nothing in the language of Rule 702 or the Rules

as a whole ingrain general acceptance as an absolute prerequisite to sibility and, indeed, would be at odds with the liberal thrust of the FederalRules of Evidence

admis-Having concluded that the Frye test was replaced by the Rules of dence, however, did not mean that there were no checks on the admissibility

Evi-of purportedly scientific evidence, and a trial judge was not disabled fromscreening such evidence Under the Federal Rules of Evidence, the trial judgewas required to warrant that any and all scientific testimony or evidence

obligation was Federal Rule of Evidence 702

When presented an offer of expert scientific testimony, a trial judge mustdetermine at the outset whether the expert was proposing to testify to scientific

knowledge that would assist the trier of fact to understand or determine afact in issue If so, a preliminary assessment was required of whether thereasoning or methodology underlying the testimony was scientifically validand of whether that reasoning or methodology properly could be applied tothe facts at issue.47

Several observations can help clarify with respect to the ruling in Daubert

A summary of the requirements for the admissibility of scientific expertwitness opinion under Frye and Daubert is included here Under eitherdecision, and regardless of what facts or factors are agreed to in a particularcase, courts could examine only a limited number of questions:

1 Are there any published peer-reviewed books or articles?

2 Is this methodology taught in universities or discussed in professionalscientific meetings or colloquia?

3 Can this methodology be tested for accuracy? Does it have a knownerror rate?

4 Is this methodology generally accepted in the relevant scientific munity where similar concepts are studied and used?

com-No other significant questions can be asked and the same questions arebasically asked under either Frye or Daubert In Daubert, in rejecting theFrye rule, the court essentially wrapped the above balancing criterion in aFederal Rules of Evidence package, with a stated preference to treat generalacceptability as only one, but not the essential, factor to receive attention.Hence the relevant and reliable standard of Daubert, rather than the generalacceptability rule of Frye, is functionally the same as far as its implementation

is concerned The Daubert relevancy standard simply means that the tific information that a party seeks to introduce into evidence has the ability

scien-to make some fact that is of consequence scien-to the action more probable or less

The Daubert decision has yet to be formally accepted by all state courts,many of which adhere to a Frye standard However, the greatest number ofstates has accepted Daubert’s more liberal, open analysis approach, makingthe real differences between the two models increasingly difficult to see TheDaubert case prompted another four years of decisions applying what wasperceived as its requirements in an extensive variety of scientific methodol-

gate-keeper could make a pretrial judgment about the opinion of an expert,arguably based on relevant and reliable methods, was not addressed in Daubert.This important point was resolved in the affirmative in the 1997 decision

of the U.S Supreme Court in the case of General Electric v Joiner,50 involvingthe question of whether long-term exposure to PCBs could cause cancer The

case also provides an extended discussion of the Daubert criterion, especiallywith regard to the importance of the presence or absence of peer-reviewedscientific articles on the questioned methodology.

This section and others present a series of key product-liability decisions

of the past decade All such cases involve common-law actions for damagesgrounded in products liability theory Otherwise, Daubert applies with fullforce to the numerous and extremely important science decisions made by

IX General Electric v Joiner

Robert Joiner began work as an electrician in the Water and Light ment of Thomasville, Georgia (City) in 1973 Joiner’s job required him towork with and around the City’s electrical transformers, which used a mineral-based dielectric fluid as a coolant Joiner often had to stick his hands andarms into the fluid to make repairs and the fluid would sometimes splashonto him, occasionally getting into his eyes and mouth In 1983 the Citydiscovered that the fluid in some of the transformers was contaminated withPCBs PCBs are widely considered to be hazardous to human health Con-gress, with limited exceptions, banned the production and sale of PCBs in

In an important concurring opinion, Justice Breyer addressed the ceived problem of the difficulty of the district court gatekeepers getting high-level, objective, expert support for its pretrial function in these cases Henoted that the trial judges would sometimes be required to make subtle andsophisticated determinations about scientific methodology and its relation

partic-ularly so in cases where the involved area of science was tentative or uncertain,

or where epidemiological or laboratory testing was offered to prove ual causation Amici had reminded the court of the dangers existent due to

individ-judge’s lack of scientific expertise and lack of opportunities for meaningfultraining.55 Justice Breyer was particularly impressed with the amici brief filed

by The New England Journal of Medicine and its editor-in-chief, Marcia Angell, M.D., in which the Journal writes: (A) judge could better fulfill this

gatekeeper function if he or she had help from scientists Judges should bestrongly encouraged to make greater use of their inherent authority … toappoint experts … Reputable experts could be recommended to courts byestablished scientific organizations, such as the National Academy of Sciences

concluded by stating his view that given this kind of offer of cooperativeeffort, from the scientific to the legal community, and given the various Rules-authorized methods for facilitating the court’s task, Daubert’s gatekeeping

The Joiner decision thus expands the prerogative of the trial court keeper to include rejecting an expert’s opinion, although admittedly based

gate-on acceptable or reliable methodology, if the court is of the view that such

The most recent major Supreme Court decision in the Frye-Daubert line,

important question of whether the Daubert guidelines apply to all expertwitnesses or exclude experts in applied technology or other forms of expe-rience-based expertise, thus depriving corporate defendants of pretrialopportunity to challenge expert witnesses

X Kumho Tire v Carmichael

This case arose from the explosion of a minivan tire resulting in death andinjuries Plaintiff expert Carlson concluded that the tire at issue was defective

in design, which defect led to the fatal explosion Carlson’s conclusion wasbased upon a number of factors, including his personal examination of thetire carcass Carlson concluded that the tire did not bear at least two of thefour “overdeflection symptoms,” nor was there any less obvious cause ofseparation; and because neither overdeflection nor the punctures caused theblowout, he surmised that either a manufacturing or design defect causedthe separation.60

Defendant Kumho Tire moved the district court to bar Carlson’s mony on the basis that his methodology for defect analysis was not reliableunder a Daubert standard Justice Breyer, speaking for the court, held thatthe primary issue here was whether the gatekeeping obligation imposed onfederal trial courts applied only to scientific testimony or to expert testimony

testi-of all types, cutting edge or familiar Justice Breyer and the court ruled that

the Daubert factors analysis was available to test all manner and forms ofexpert testimony, not just opinions arising out of cutting-edge science Thecourt stated that it would prove difficult, if not impossible, for judges toadminister evidentiary rules under which a gatekeeping obligation dependedupon a distinction between “scientific” knowledge and “technical” or “otherspecialized” knowledge There is no bright line that divides the one disciplinefrom another Engineering rested solidly on scientific knowledge, and so-called pure scientific theory itself often hinged for its emergence and evolutionupon observation and properly engineered machinery The court observedthat conceptual efforts to distinguish the two were unlikely to produce clear

In addition, Justice Breyer continued, there was no perceived need tocarve out any such demarcations between science and engineering: Neither

is there a convincing need to make such distinctions:

Experts of all kinds tie observations to conclusions through the use ofwhat Judge Learned Hand called “general truths derived from … specializedexperience.” (Citations omitted.) And whether the specific expert testimonyfocuses upon specialized observations, the specialized translation of thoseobservations into theory, a specialized theory itself, or the application of such

a theory in a particular case, the expert’s testimony often will rest “upon anexperience confessedly foreign in kind to (the jury’s) own.” … The trialjudge’s effort to assure that the specialized testimony is reliable and relevantcan help the jury evaluate that foreign experience, whether the testimonyreflects scientific, technical, or other specialized knowledge.62

The court answered in the affirmative when asked by the petitioners iftrial courts may consider the several specific reliability factors that Daubertsaid could bear on a gatekeeping determination:

The petitioners asked specifically whether a trial judge determining theadmissibility of an engineering expert’s testimony may consider several morespecific factors that Daubert said might “bear on” a judge’s gatekeepingdetermination Those factors include: (1) whether a theory or technique can

be (and has been) tested; (2) whether it has been subjected to peer reviewand publication; (3) whether, in respect to a particular technique, there is ahigh known or potential rate of error, and whether there are standardscontrolling the technique’s operation; and (4) whether the theory or tech-

The court, after emphasizing the elastic nature of the Daubert Rule 702criterion, observed that those factors did not all necessarily apply in a par-ticular case and that one or more could serve as the deciding factor or factors

in a particular instance

The court concluded that expert Carlson’s testimony here was not reliableunder the Daubert criteria, and would be barred There was no indication

in the record that other experts in the industry used Carlson’s two-factor test

or that tire experts such as he generally made the fragile distinctions aboutthe symmetry of shoulder tread wear that were necessary, if based uponCarlson’s own theory, to support his conclusions The court also emphasizedthat there was an absence of any peer-reviewed articles or papers that con-

no one had argued that Carlson himself, were he still working for Michelin,would have concluded in a report to his employer that a similar tire wassimilarly defective on grounds identical to those upon which he rested hisconclusion here

In sum, the court concluded, Rule 702 grants the district judge thediscretionary authority, reviewable for its abuse, to determine reliability inlight of the particular facts and circumstances of the particular case

XI People v Sutherland: A Case Study

Before investigating the individual forensic sciences and how they have beenresponded to by prosecutors, defense counsel and the courts, consider acomplex case study arising from the rape and murder of a 10-year-old child

in a rural Illinois community It demonstrates the complexity of a moderncrime-scene investigation in a case involving kidnapping, sexual assault, andhomicide The Sutherland case is essentially a circumstantial evidence case,that is, one without any direct evidence of the defendant’s participation inthe crime The case study is appropriate to our discussion here becausevirtually all the facts pointing toward defendant’s guilt was generated byexpert testimony based on several of the traditional forensic sciences Thiscase study is an excellent, current example of the process of using forensicsciences to generate forensic evidence for use at trial It sets the stage for thedetailed analyses of the various forensic sciences in later chapters The forensicsciences at the center of the state’s proof here are hair analysis, mitochondrialDNA (Mt DNA) hair analysis, fiber analysis, footwear impressions, and tire-tread impressions Nuclear DNA evidence was not tested given the fact that

at the time of the murder, which occurred in 1987, DNA testimony was notused in Illinois courts There were no witnesses to this horrible crime andthe sole evidence linking the defendant Cecil Sutherland to it was the testi-mony of a small number of forensic scientists The defendant’s convictionwas affirmed by the Illinois Supreme Court in 1993 In 2000, the same courtgranted the defendant a new trial, based on incompetency of counsel in hisfirst trial, as the result of a new appeal by new counsel The Sutherland casewas scheduled for a retrial in downstate Illinois in April or May 2004, 17 yearsafter the date of the murder of Amy Schultz

In People v Sutherland,65 decided by the Illinois Supreme Court in 1993,the defendant had been convicted of aggravated kidnapping, aggravatedcriminal sexual assault, and murder This conviction was based solely oncircumstantial evidence, most of which was generated by forensic science In

2001 the Illinois Supreme court reversed the conviction, based on a finding

of the interaction of forensic science with the preexisting and overriding body

of considerations that constitute the legal process

An oil field worker discovered the nude body of 10-year-old Amy Schultz.Her clothes — her shirt, shorts, underpants, shoes, and socks — were foundstrewn along the oil lease road Due to the lack of any eyewitnesses, the trialwas centered on the presentation of forensic evidence in the areas of forensicpathology, hair and fiber analysis, and tire-tread casting impression compar-isons The Sutherland case study is a clear example of the ongoing inter-relationship between the world of forensic science and the investigation andproof of crime Significant questions about justice are at the heart of prose-cutions, such as Sutherland, that are grounded in facts generated by one ormore of the forensic sciences discussed in this book

The Sutherland Case Facts

At 9 a.m on July 2, 1987, an oil field worker discovered the nude body of10-year-old Amy Schultz of Kell, Illinois The body was found lying on itsstomach covered with dirt approximately 100 feet from an oil lease accessroad in rural Jefferson County There were shoeprints on her back and severalhairs were found stuck in her rectal area In addition, a large open wound

on the right side of Amy’s neck exposed her spinal cord area A pool of blood

Amy Schultz’s shirt, shorts, underpants, shoes, and socks were foundscattered along the oil lease road Seventeen feet from the body, automobiletire impressions were found, and near the tire impressions, a shoeprintimpression similar in design to that on the body was found The police tookcasts of the tire and shoeprint impressions

Dr Steven Neurenberger performed an autopsy on July 3, 1987, wherein

he observed a 14.5 centimeter wound, running from the middle of Amy’sthroat to behind her right ear lobe, which cut through the neck muscles,severing the carotid artery and jugular vein, and cutting into the cartilagebetween the neck and vertebrae Amy’s right eye was hemorrhaged and therewas a small abrasion near her left eyebrow; her ear was torn off the skin atthe base of the ear and both her lips were lacerated from being compressedagainst the underlying teeth; there were also linear abrasions to the outer lips

of the vagina which demonstrated that force had been applied to the back,forcing the vagina against the ground

His search for internal injuries found three hemorrhages inside the skull,

a fractured rib, a torn liver and tearing of the rectal mucosa Amy’s vocalcords were hemorrhaged and her esophagus was bruised Dr Neurenbergerdeduced from these injuries that the killer had strangled Amy to unconscious-ness or death, anally penetrated her, slit her throat, and stepped on her body

to force exsanguination Dr Neurenberger placed the time of death between

The Prosecution’s Forensic Evidence: The Tire Tracks

Several months after the discovery of Amy’s body, the police at GlacierNational Park in Montana, notified Illinois authorities about Sutherland’sabandoned car, a 1977 Plymouth Fury At the time of the murder, Sutherlandhad been living in Dix, Illinois, in Jefferson County, on the county linebetween Dix and Kell Illinois police authorities ascertained that defendant’scar had a Cooper “Falls Persuader” tire on the right front wheel Deputiesand David Brundage, a criminalist, then traveled to Montana where theymade an ink impression of the right front wheel of Sutherland’s car IllinoisState Police Forensic Scientist David Brundage evaluated the plaster casts ofthe tire print impressions made at the scene of the crime and testified thatthe tire impressions left at the scene were consistent in all class characteristicswith only two models of tires manufactured in North America, the Cooper

plaster casts of the tire impression at the scene with the inked impression ofthe tire from Sutherland’s car, Brundage concluded that the tire impression

at the scene corresponded with Sutherland’s tire and could have been made

by that tire Brundage, however, was unable to exclude all other tires as havingmade the impressions due to the lack of comparative individual characteris-tics, such as nicks, cuts, or gouges.70

Mark Thomas, the manager of mold operations at the Cooper Tire pany, determined “mal” wear similarity, and hence Sutherland’s tire couldhave made the impression found at the crime scene Thomas also comparedblueprints of Cooper tires with the plaster casts of the tire impressions anddetermined that the “probability” was “pretty great” that a size P2175/B15tire — the same size as Sutherland’s Falls Persuader tire — had made theimpression preserved in the casts He admitted that there were a great number

The Prosecution’s Forensic Evidence: The Hair Evidence

Criminalist Kenneth Knight compared the two pubic hairs recovered fromAmy Schulz’s rectal area with Sutherland’s pubic hair He also made com-parisons with pubic hairs from members of Amy’s family as well as pubic