Wisconsin Lawyer
Vol. 83, No. 11, November 2010

Challenging Assumptions about Forensic Evidence

I am writing in response to the article “Challenging the Admission of Forensic Evidence” (Sept. 2010) by attorney Amelia Bizzaro. While there are any number of statements, assumptions, and inferences that merit a response, I wish to make four points.

First, the so-called “innocence projects” have waged a public policy campaign to challenge the reliability of forensic science and other types of evidence … except, of course, when they seek to use that same evidence to buttress their clients’ claims in court. Forensic evidence can be used to both convict the guilty and exonerate the innocent. When used by prosecutors to obtain convictions, criminal defense lawyers routinely argue that the science is unreliable and that the processes crime labs apply lack standards. However, these same defense counsel are quick to raise the specter of wrongful conviction anytime the same forensic evidence tends to exonerate their clients. It is unfair to argue that forensic science is unreliable in the hands of judges, juries, and prosecutors but a panacea for preventing wrongful convictions in the hands of defense lawyers.

Second, forensic science has never been exempt from challenge, and we should remember that forensic science doesn’t determine guilt or innocence. Juries do that, and our criminal justice system provides both parties with the opportunity to point out the strengths and weaknesses of the evidence in a given case. In every case where forensic evidence is offered by a prosecutor, the defendant and his or her counsel have at least three opportunities to contest the evidence. They can argue to the judge that the evidence is so unreliable as to be irrelevant, they can argue to the jury that the evidence lacks credibility and should not be believed, and they can offer their own scientific expert to testify that the evidence means something different than what the prosecution contends. If a jury relies on forensic evidence to convict a defendant, it does so only after a defendant has had every opportunity to challenge and disprove the evidence, but has failed to do so.

Put another way, forensic science doesn’t bestow labels like “innocent” or “exonerated.” People do that, based on how they interpret all the relevant evidence in a case. A prosecutor who doesn’t share a convicted defendant’s view of newly discovered evidence – forensic or otherwise – has the obligation to oppose requests for new trials or release from custody. That’s how the system works.

Third, contrary to the impression one might have watching CSI on television, forensic scientists at the Wisconsin State Crime Laboratories are not law enforcement officers. They are scientists. They have as their sole purpose the objective analysis of evidence that has been submitted for their expert review by submitters such as law enforcement, medical examiners, prosecutors, and defendants. Implications in the NAS Report that forensic analysts are, for example, subject to “confirmation bias” simply have no relevance in the Wisconsin model.

Fourth, the NAS Report referenced by Ms. Bizzaro recommends the creation of a federal agency to oversee the forensic science community. Such a step would strip Wisconsin of local control over its State Crime Laboratories, strip juries of their constitutional role in evaluating evidence, and lead to yet another federal bureaucracy deciding which forensic evidence state juries could or couldn’t hear. That’s unwise.

In every field of science, it is important that high standards be maintained and that the overriding goal be the discovery of the truth. In the field of law, it is important that evidence – including scientific evidence – be relevant, reliable, and credible. To that end, a public debate on the merits of forensic evidence is appropriate, and prosecutors who take their jobs seriously welcome that debate. However, this debate must begin with accurate assumptions and must avoid the type of sweeping generalizations and indictments touted by Ms. Bizzaro and others like her who defend people charged with committing crimes.

Atty. Steven P. Means

Deputy Administrator, Legal Services

Wisconsin Department of Justice

Response. I agree with Mr. Means that it is important that scientific evidence be relevant, reliable, and credible and that prosecutors and defense attorneys alike should welcome public debate on the topic. But, I respectfully disagree with his characterization of the Innocence Network and its members located throughout the country, including at the U.W. Law School, and his viewpoint about the NAS Report’s recommendation that a federal agency be created to oversee the development of credible and reliable forensic evidence.

In 2009 alone, the Innocence Network helped 27 wrongfully convicted people demonstrate their innocence, both factually and legally. (See The Innocence Network’s report, at www.innocencenetwork.org/report09.html.) The majority proved their innocence through the use of DNA evidence, which the article noted the NAS Report recognized as the “gold standard” by which other evidence should be measured.

It is not disingenuous or hypercritical for defense attorneys, charged with the constitutionally mandated responsibility of zealously representing their clients, to challenge questionable forensic evidence when the state seeks to use it against their clients and to use other types of more reliable forensic evidence to demonstrate clients’ innocence.

The NAS Report’s recommendation that the government create a central federal agency would not strip either analysts or juries of their role in the criminal justice system. Rather, it would promote independence, research, and reliability through standardization and accreditation, something we should welcome.

While Mr. Means and I may disagree, this is just the type of debate that benefits both prosecutors and defense attorneys. I believe the debate has begun with accurate assumptions and look forward to it continuing in a multitude of forums.

Amelia L. Bizzaro

Bizzaro Law LLC, Milwaukee

Know Your Client to Avoid Getting Scammed

I am writing in regard to the Managing Risk column “Lawyers Can Get Scammed, Too” (Sept. 2010).

In August, my office received email communication apparently from a Colorado business, referencing its office in Canada, attempting to collect a debt from a Wisconsin account. The nature of the request for legal services was similar to the description provided in the column: collect from a willing debtor and keep the contingency fee.

I suspected the solicitation was a scam. I attempted to contact the “client” by telephone but the voice mailbox was full. I then found the Colorado business on the Internet, called the chief executive officer, and received confirmation that the matter was a scam. I also explained to him that the scam was using both his name and his company’s name for fraudulent purposes.

I found information about the debtor on the Internet and called the debtor’s chief executive officer. We discussed the claimed debt; I explained to him that his company’s name also was part of the scam.

With virtually no prompting, the bogus debtor sent the bogus bank check. The face of the check said it was not valid without a watermark and no one in my office could find a watermark.

I explained to the bogus client (always by email) that I had received an apparently bogus bank check. I offered to send the check to the client, provided the client would first wire to me my contingency fee. Needless to say, communication ceased at this point.

I reported the scam to the office of the U.S. Attorney, Western District of Wisconsin. I thought that office would be interested in the project due to the wire communication across international lines. To date, no one from that office has returned my call.

The best protection against such scam attempts is for the attorney to know the client. Email communication is not sufficient. If the client is new, conduct your own independent investigation of the named parties and speak directly with your client by telephone. Do not let appeals to urgency overrule your common sense and regular attention to detail. If the project involves trust fund monies, then slavishly follow the trust fund procedures and do not release any monies until your bank confirms that the funds are collected. Finally, of course, if the project seems too good to be true, then maybe….

Walter R. Stewart

W.R. Stewart & Associates S.C., Madison

Wisconsin Lawyer