One of the alarming trends I am seeing locally and even nationally is the employing of third party vendor laboratories to do forensic analysis. While I think it is a good idea to remove the forensic analysis from law enforcement per the NAS report recommendations, I fear that it is also done, in part, for the purposes of trying to remove any potential Brady and Giglio obligations that traditionally attach to the Office of the District Attorney. [If you are someone who does not know or understand Brady v. Maryland or Giglio v. United States, I suggest looking at the hypertext links that is embedded with their names.]
Case in point.
1. I have a case involving a private for-profit laboratory who did the analysis of the motorist accused’s blood.
2. One of our local DA’s office used to use the state’s crime laboratory for its analysis. It does not any more. Mostly due to a turf war where the state laboratory doesn’t want to give up data and the DA is sick of getting held accountable for their willful failure to comply as they are considered a state agency under the control of the Commonwealth, and specifically the District Attorney’s Office.
3. This local DA claims (justifiably so) that this private for-profit laboratory is a third party vendor who is not subject to our state’s discovery rules for the DA to turn over data or other material as the private for-proift laboratory is not an agency of the state. So as a result, they say (justifiably so per our rules) that this private for-profit is subject to subpoena for me to get these items.
4. This private for-profit laboratory sends a surrogate witness (a PhD usually who doesn’t do the physical chemistry/preparation/instrumentation) to testify who has only maybe looks at the electronic data files to render an opinion.
5. In this particular case, after a load of research I discovered who the particular witness is (the instrument operator) and that she had failed an out-of-state proficiency examination for the quantification of blood alcohol. For obvious reasons this is huge. What makes it even better for the defense is that the failure was for a true false positive (detected ethanol at 0.12 when there was no ethanol at all in the proficiency sample) and within the time frame of my motorist’s test.
6. This failure of the instrument operator was unknown by the DA as they were purposefully ignorant thanks to the outsourcing. Hence, their position is that there was no willful violation of Brady. And further, although I sent a detailed request for discovery to the DA seeking proficiency data, they claimed that they could not compel a third-party vendor to act and give up personnel file information. Finally, the total ignorance of this DA was that she took great joy in not understand “any of that science junk” and claimed (probably honestly) not to know what the significance of a proficiency test was.
7. The failure of the instrument operator would not be discovered even as Giglio material as again the DA’s choice of testifying witness themselves would not have had the impeachable material.
This combination of prosecutorial ignorance and outsourcing is what I fear the most. I feel as the clip below applies to a degree. There is a desire to steal baby justice and if it were not for my total blind luck in finding this very big exculpatory piece of information, no one would have been the wiser. I guess that they just weren’t quick enough in this case. And their response “Ahh. Ya Caught me” and then the laboratory discloses.
What I am concerned about is the willful insulation of the state’s traditional Brady and Giglio functions.
I see this happening more and more. I think you will too.
Some of my colleagues try to argue that Kyles v. Whitelyextends to the entire “prosecution team” and under basic agency law that even if the forensic services are outsourced, then it is their duty to fully investigate a private entity that is a commercial vendor of theirs. Does Kyles require the government to do a full and complete investigation into a third party commercial entity that provides evidence?
These are the questions we will be grappling with over the next decade.
About the author
Justin J. McShane
Harrisburg DUI attorneyJustin J. McShane is the President/CEO of The McShane Firm, LLC - Pennsylvania's top criminal law and DUI law firm. He is the highest rated DUI attorney in PA as rated by Avvo.com. Justin McShane is a double Board certified attorney. He is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc. He is also a Board Certified Criminal Trial Advocate by the National Board of Trial Advocacy, a Pennsylvania Supreme Court Approved Agency.
Justin McShane is the first and so far the only Pennsylvania attorney to achieve American Bar Association recognized board certification in DUI defense from the National College for DUI Defense, Inc.
Forensics expert and Pennsylvania DUI attorney Justin J. McShane presents an ongoing forensic science reference for DUI lawyers and criminal defense attorneys.
Attorney McShane is the Chairman/CEO of The McShane Firm, Pennsylvania's top DUI law office. Located in Harrisburg, PA, The McShane Firm specializes in using forensic science to defend citizens accused of a crime.
About the Author
Josh D. Lee is a Vinita, Oklahoma based criminal defense attorney. He is nationally recognized as a lawyer-scientist for his expertise on forensic science related topics. He has lectured well over 100 times in 18 diﬀerent states.
Mr. Lee has been invited to lecture at the American Chemical Society (ACS) as well as the American Academy of Forensic Science (AAFS). In 2011, Josh was elected Forensic Science Co-Chairman for the Chemistry and the Law Division of the ACS. He is also an “Assistant Chromatography Instructor” for the ACS.