Our bookstore is temporarily closed. Please check back soon.
January-February 2011

Forensic sciences under scrutiny

A comprehensive look at the state of forensic science and a starting-point resource for prosecutors with questions on the subject

John Stride

TDCAA Senior Appellate Attorney

It is fashionable to criticize forensic science evidence and, hyperbole aside, the criticism is not always unfounded.

For years, prosecutors have been challenging the admission of defense “expert” testimony, but, as prosecutors, we have not always been as careful as we should have been in presenting our forensic science evidence. Not all the evidence presented has been reliable or, at least, demonstrated as reliable. Also, the development of the various forensic science disciplines has not been parallel, and this unevenness has highlighted the strengths and weaknesses of the various forensic science disciplines. The reliability and value of DNA testing has far outstripped much longer-living forensic science disciplines and in some cases, such as microscopic hair comparisons, demonstrated their limitations. Coupled with the rapid growth of the actual innocence industry and identification of wrongful convictions, DNA testing has probably served as the catalyst for the current focus on forensic sciences. Now, the doors of the forensic science industry have been wedged open for the purposes of penetrating inquiries, analyses, and reports and, in these early stages of reflection, the feedback is frequently negative.

Currently, the courts, commissions, any number of law school innocence programs, and the media are sharply focused on the testimony and opinions of the State’s forensic experts. In the past, of course, courts scrutinized forensic science evidence when called upon to do so, and they will continue to. But of late we have learned that the State has presented unreliable testimony on future dangerousness1; relied too much on dog-scent evidence to secure a capital murder conviction2; and presented at trial arson investigation evidence that has since evolved.3 Inquiries have also been made as to whether the State has shown that the testimony it has offered as a valid or potentially valid science is sufficiently reliable. For example, courts have issued opinions declaring the State has failed to show the reliability of LIDAR4 and the testimony of a sexual assault nurse examiner (SANE) on anal dilation rates.5

Should the regular business of the courts be insufficient to examine forensic science evidence, in at least one case, a court of inquiry has also re-examined a criminal case. Because of the burgeoning interest in the forensic sciences, we must expect appellate courts to increase their scrutiny of such evidence. In response, trial courts can reasonably be expected to refine their approach to admitting it.

Scrutiny from many sides

Both nationally and locally, commissions have been established to examine and report on the forensic sciences. In 2009, the National Academy of Sciences (NAS) issued its report to Congress on the state of the forensic sciences in the United States. Also, the Texas Forensic Science Commission (TFSC)—currently chaired by Williamson County District Attorney John Bradley—and the Texas Criminal Justice Integrity Unit (TCJIU)—founded by Judge Barbara Hervey of the Court of Criminal Appeals—are actively examining the forensic sciences.

Further, many law schools around the nation have created innocence groups, including Barry Scheck’s Actual Innocence Project attached to the Benjamin N. Cardozo School of Law. While investigating and seeking to free those they believe are improperly incarcerated, these groups will thoroughly pick apart the State’s evidence and, to obtain their ends, are only too happy to highlight any dubious-looking forensic evidence. Under the microscope at this very moment is the reliability of eyewitnesses, arson investigations, fingerprints, autopsies, confessions, and future dangerousness testimony. The study of these sciences is spawning the study of other sciences.

In addition, the media—with the goal to be the first to report the news, with limited understanding, or with political agendas—rushes to print or broadcast stories indicating failings of the criminal justice system. And on top of that, various elements of society are all too willing to fuel the fires, fan their flames, and even blow smoke to pursue their agendas.

Finally, TV shows like “CSI,” which have fostered the so-called “‘CSI’ effect,” have unrealistically elevated public expectations in the forensic sciences. Viewers-turned-jurors want quick tests with dispositive results all lucidly explained. When the criminal justice system does not fulfill their expectations, they can be disappointed and can even take it out on the State’s case.

Any negative feedback about forensic sciences has serious consequences. If the State’s evidence is unreliable, not only does it risk undermining the particular conviction, but it also raises the much more dangerous specter of eroding public confidence in the criminal justice system. But if forensic science evidence is reliable, we are making our own work harder if we do not defend and promote it for the value it affords us in resolving criminal cases.

As prosecutors who offer forensic evidence to support our cases at trial, we need to take heed and actively assist in developing the forensic science disciplines and resolving the arising issues.

What disciplines are “forensic sciences?”

The National Institute of Justice, the research, development, and evaluation agency of the U.S. Department of Justice, has categorized the forensic sciences as including 13 disciplines:

  • general toxicology,
  • firearms/toolmarks,
  • questioned documents,
  • trace evidence,
  • controlled substances,
  • biological/serology screening (including DNA analysis),
  • fire debris/arson analysis,
  • impression evidence (e.g., fingerprints and shoe and tire prints),
  • blood pattern analysis,
  • crime scene investigation,
  • medicolegal death investigation, and
  • digital evidence.6

Of this broad spectrum, DNA analysis provides the most advanced—and some of the most reliable—evidence and has set the bar for the other disciplines. DNA analysis has also received heightened scrutiny and funding. But DNA analysis comprises only about 10 percent of case work.7 Thus, significantly more work needs to done for the greater number of forensic disciplines.

National Academy of Sciences Report

Congress authorized the National Academy of Sciences (NAS) to conduct a study on forensic sciences in 2006. Senate Report 109-272, recognizing the plethora of analysis on DNA and the dearth of analysis on other disciplines, triggered the study.

Among other items, the NAS study proposed to:

  • assess the present and future resource needs of the forensic science community,
  • make recommendations for maximizing the use of forensic technologies and techniques,
  • identify potential scientific advances to assist law enforcement,
  • make recommendations for programs that will increase the number of qualified forensic scientists and medical examiners, and
  • disseminate best practices and guidelines for collection and analysis of forensic evidence to ensure its quality and consistency.

The NAS committee acknowledged that the value of DNA as a reliable science is inestimable in securing convictions but observed that using other forensic sciences has provided less certain results. At worst, imperfect testing and results have resulted in wrongful convictions and, at best, resulted in misleading evidence admitted at trial.

In preparing the report, the committee consistently heard that, for example, “The forensic science system, encompassing both research and practices, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country.”8

The committee found that:

  • there are enormous disparities of staffing, funding, equipment, and qualification between existing forensic science operations at national, state, and local levels;
  • the term “forensic sciences” encompasses a broad range of disciplines with significant variability in those sciences;
  • the forensic sciences lack mandatory standardization, certification, and accreditation;
  • there is a diversity of interpretation between disciplines and within disciplines;
  • a body of research is required to establish limits and measures of performance; and
  • the judicial framework cannot adequately discover the “scientific truth.”

Based on its findings, the committee concluded that the forensic science disciplines operate within a greatly “fragmented system.” Therefore, it proposed the creation of a new federal agency, the National Institute of Forensic Sciences (NIFS), with funding to oversee the development of forensic sciences. The committee recommended that the NIFS should be empowered to:

  • establish standard terminology for reporting and testifying on forensic sciences,
  • fund peer-reviewed research,
  • allocate incentive funds to state and local jurisdictions so that administrative control of forensic science laboratories becomes independent of law enforcement,
  • encourage research on human observer bias and sources of human error,
  • work with and fund the National Institute of Standards and Technology,
  • establish a national code of ethics for all forensic science disciplines,
  • attract students (with funding) to the physical and life sciences to pursue graduate studies in forensic sciences,
  • allocate funds to state and local jurisdictions to establish medical examiner systems to replace coroners,
  • launch (with funding) a nationwide fingerprint data interoperability, and
  • work with and fund the Centers for Disease Control and Prevention, the FBI, forensic scientists, and crime scene investigators for purposes of homeland security.

In addition, the committee recommended mandatory accreditation of laboratories and certification of forensic science professionals, and quality assurance and quality control procedures for laboratories.

The full report of the NAS, “Strengthening Forensic Science in the United States: A Path Forward,” is available from the National Academies Press.9

It will take considerable dedication, time, and money to accomplish the NAS’ recommendations. Meanwhile, other Texas organizations are aware of the recommendations and are analyzing the forensic sciences within the state, but their roles are more limited in scope.

The Texas Forensic ­Science Commission10

The Texas Forensic Science Commission (TFSC) was created in 2005 by enacting Code of Criminal Procedure art. 38.01 through House Bill 1068. Two years later, funds for the TFSC were appropriated to Sam Houston State University to provide administrative support to the commission. The university houses the TFSC’s office in Huntsville.

The TFSC’s mission is to strengthen the use of forensic science in criminal investigations and courts by:

  • developing a process for reporting professional negligence or misconduct,
  • investigating allegations of professional negligence or misconduct,
  • promoting the development of professional standards and training, and
  • recommending legislative im-provements.

But the TFSC has a very limited role in comparison to that proposed for the NIFS. For the most part, the TFSC investigates complaints that allege professional negligence or misconduct by a laboratory, facility, or entity that has been accredited by the director of the Texas Department of Public Safety (DPS) that would substantially affect the integrity of the results of a forensic analysis, but it does not investigate complaints involving any laboratory or forensic scientist lacking DPS accreditation.

Moreover, the TFSC reaches only some of the commonly recognized forensic science disciplines. The term “forensic analysis,” as used by the TFSC, means a medical, chemical, toxicological, ballistic, or other examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action. The term does not include latent fingerprint examinations, a breath test specimen, or the portion of an autopsy conducted by a medical examiner or licensed physician. The TFSC, then, largely provides a grievance procedure with a narrow field of operation.

The TFSC has three standing committees: Complaint Screening, Forensic Development, and Legislative. The Complaint Screening Committee reviews complaints, conducts preliminary investigations, and makes recommendations for disposition. If the TFSC accepts a complaint for investigation, it creates a panel to coordinate an investigation into the complaint. This panel recommends whether to dismiss the complaint or to proceed with a full investigation. If a full investigation is conducted, the panel prepares a full report for the TFSC, which is available to the public.

The Forensic Development Committee develops, subject to the approval of the full TFSC, plans to strengthen the use of forensic science in criminal courts in Texas. Such plans include implementing a reporting system through which accredited laboratories, facilities, or entities are required to report professional negligence or misconduct. Such plans may also include the collection and dissemination of funding opportunities for forensic science, support for training and the development of professional standards, and the collection of information that supports programs for strengthening forensic science.

The Legislative Committee studies the ongoing work of the TFSC and is prepared to monitor legislation and testify on the application of statutes within the TFSC’s purview. The committee also reviews and recommends a legislative appropriations request to the full TFSC and monitors the appropriations process as it affects the commission.

The TFSC website references the NAS report and comments that the efforts of the NAS committee “are recognized and applauded by the Texas Forensic Science Commission. As an independent body created by the Texas Legislature, the commission remains steadfast in its commitment to promote justice through science and is encouraged by the recommendations set forth in the report.”

As most of you are aware, the TFSC is currently investigating and preparing a report on the arson investigation in the Todd Willingham death penalty case. On the same case, a Travis County district judge has also held a court of inquiry under the auspices of Code of Criminal Procedure art. 52.01. At the time of writing, however, the latter proceedings were put on hold by the Third Court of Appeals in a mandamus proceeding filed by Navarro County District Attorney Lowell Thompson.11 In a 2-1 decision, the intermedicate court ruled that Judge Baird had to either recuse himself or refer the motion to the local administrative judge.12

Texas Criminal Justice Integrity Unit13

In June 2008, Judge Barbara Hervey of the Texas Court of Criminal Appeals created an ad hoc committee called the Texas Criminal Justice Integrity Unit (TCJIU). The TCJIU was created to review the strengths and weaknesses of the Texas criminal justice system. Furthermore, the TCJIU’s purpose is to bring about meaningful reform through education, training, and legislative recommendations. It is not a forum for any particular group, nor does it embrace the plan of one particular political party.

According to press reports at the time of its creation, the TCJIU intends to focus on issues relating to wrongful convictions, including:

  • improving the quality of defense counsel available for indigent defendants;
  • implementing procedures to improve eyewitness identification;
  • making recommendations to eliminate improper interrogations and to protect against false confessions;
  • reforming the standards for collection, preservation, and storage of evidence;
  • improving crime lab reliability;
  • improving attorney practices and accountability;
  • adequately compensating the wrongfully convicted;
  • implementing writ training; and
  • establishing local, “home rule” protocol for the prevention of wrongful convictions.

Thus, the TCJIU also anticipates that it has a role to play in the development of the forensic sciences. But the TCJIU lacks a legislative mandate, so in many ways serves more as a think-tank.

State appellate courts

Recent cases from our state appellate courts demonstrate that the State should be taking extra care when introducing forensic science evidence. Of course, many cases with forensic science evidence become final without any challenge to that evidence, but even a pattern of a few cases—especially high profile death penalty cases—can skew perception.

Future dangerousness and Coble v. State14

In 1990, the State retained Dr. Richard Coons, a forensic psychiatrist, to testify about Coble’s future dangerousness. On appeal, however, the trial court’s judgment was overturned. Eighteen years later, Dr. Coons testified at the retrial. Once again, although he had lost his notes from an earlier face-to-face interview with Coble, had no independent memory of the interview, and relied solely on information provided by the DA’s office, he opined that Coble was a future danger. He dismissed Coble’s absence of any intervening prison disciplinary reports as a function of an inmate’s incentive to behave while his case is pending on appeal. In response, Coble put on the testimony of a number of witnesses who related his compliance with and contributions to the prison environment. He also presented a forensic psychologist, Dr. Mark Cunningham, who testified that Coble had a low probability of committing acts of violence while in prison.

But before Dr. Coons even testified, the trial court conducted a Daubert/Kelly hearing. Dr. Coons explained his qualifications and extensive experience in the field of psychiatry. He testified that he employed psychiatric principles in evaluating a defendant’s future dangerousness but used his own specific methodology of five overlapping factors. He did not know whether others in his field relied on the same method and was unaware of any written authorities that used his factors or any peer studies on the accuracy of long-term future dangerousness predictions or error rates. Moreover, he had never reviewed the accuracy of his own predictions. And, on cross-examination, he admitted unfamiliarity with a list of articles on the topic.

The Court of Criminal Appeals held that, while an expert may well be able to testify on the topic of future dangerousness, the prosecution had failed to satisfy its burden of showing the scientific reliability of Dr. Coons’ methodology. Nevertheless, the erroneous admission of the testimony was harmless, and the lower court’s judgment affirmed.15

Canine scent-discrimination lineups and Winfrey v. State16

Deputy Sheriff Keith Picket was brought in by the Texas Rangers to perform a dog scent-discrimination lineup three years after a murder. The test involved “pre-scenting” the dogs on the victim’s clothing worn at the time of his death, then putting the defendant’s clothing and that of five other males in separate containers. As they walked along the line of containers, all three of Deputy Picket’s bloodhounds alerted on the container holding the defendant’s clothing. During his testimony, however, Deputy Picket acknowledged that this test demonstrates only that there is some relationship between the scent and the objects and does not necessarily indicate person-to-person contact.

The Court of Criminal Appeals, acknowledging that dog scent-tracking evidence is of a superior caliber, did not reach the reliability of dog scent-discrimination lineup evidence.17 Indeed, finding that dog scent-discrimination testing has been questioned, it held that such evidence alone, or as the primary evidence, is never enough to support a conviction. The Court of Criminal Appeals reversed the judgment of the intermediate court and entered a judgment of acquittal. If you don’t understand from the opinion that the court has serious reservations about dog scent-discrimination lineup evidence on grounds of its reliability, take another look at Judge Cochran’s concurrence. She highlighted that, because Winfrey did not object at trial, the evidence’s admissibility had not been reviewed under Kelly/Nenno, but, even if it had been held admissible, the evidence would still have been legally insufficient to support the conviction. Surely the only reason to write the concurrence was to alert readers that any future proffer of dog scent-discrimination evidence requires no less than a fully developed hearing on its reliability. And, given the analysis of this type of evidence referenced in the lead opinion, the outcome does not look promising.

LIDAR in Hall v. State18

A Venus officer used a Light Detection and Ranging device (LIDAR) as the sole basis to establish a vehicle was traveling 11 miles per hour over the posted speed of 65 mph. He pulled over the vehicle and, after the observing the usual symptoms of intoxication on the FSTs, charged the driver with DWI.

At a pretrial suppression hearing, the officer testified that when he turned on the LIDAR, it performed a self-test and indicated it passed all functions. To operate the LIDAR, the officer lines up the sight to place a red dot on the target vehicle. When he presses the trigger, a laser is emitted and reads the vehicle’s speed. The officer also explained that he was not certified to use the LIDAR, and he was uncertain whether anyone maintained it to ensure its reliability and accuracy.

The trial court denied Hall’s motion to suppress. The intermediate court, holding that the trial court should have conducted a Rule 702 hearing and that the State had failed to prove the reliability of LIDAR technology, reversed.

The Court of Criminal Appeals agreed, although it also noted that the intermediate court improperly required the application of Rule 702 during the suppression hearing. The court found there was no evidence establishing that 1) the LIDAR was used to confirm the officer’s independent, personal observation that Hall was speeding, or 2) using LIDAR technology to measure speed supplies reasonably trustworthy information or that the trial judge took judicial notice of this fact, including his basis for doing so. Accordingly, the State failed to establish that the officer relying on LIDAR alone had probable cause to stop the defendant. Note that the court does not foreclose the State from establishing the reliability of LIDAR in the future.

SANE testimony in Escamilla v. State19

In Escamilla, America Garza, a sexual assault nurse examiner (SANE) testified that upon examining a 2-year-old girl, she discovered a tear close to the child’s anus and wide dilation of the child’s anus within seven seconds after retraction of the child’s buttocks. In her opinion, both findings are consistent with sexual abuse.

The majority of the appellate court, addressing the rapid dilation evidence, concluded that the State had established Garza’s qualifications and Garza could explain her methodology. Nevertheless, Garza was unable to “elaborate on the extent to which the underlying scientific theory and technique are accepted as valid; … could only make vague references to the literature supporting her underlying scientific theory and technique; and did not appear to understand the concept of the potential rate of error of the technique.” When asked to explain the reasoning or methodology she employed in reaching her opinion about the rate of dilation constituting sexual abuse, she simply replied “based on my training,” “my readings and stuff,” the conferences she attended, and “research and the peer reviews.” To her, peer reviews meant SANE nurses sharing information. On inquiry about the known or potential rate of error for the application of the theory on anus dilation, she responded, “We base ourselves on what the patient tells us, the history, and our findings.” Although she asserted that she based her opinion on literature by Dr. Nancy Kellogg, she was unable to name a specific article or study by Dr. Kellogg. Fortunately, the improper admission of the testimony was harmless and the trial court’s judgment was affirmed.

In his dissenting and concurring opinion, Justice Steven Hilbig (former Bexar County District Attorney) took issue with the majority’s conclusion that the State had failed to establish adequate foundation for the reliability of Garza’s opinion. After a far more comprehensive recitation of the testimony, he opined that given the testimony and the flexibility of the reliability inquiry here (which should be more akin to that for a latent print rather than DNA), the trial court did not err in admitting Garza’s testimony.

Offering forensic science evidence in court

A trial court must serve as a “gatekeeper” when a party proposes to offer expert testimony. The Court of Criminal Appeals laid out the duties of the gatekeeper in Kelly v. State,20 and the Supreme Court of the United States did something similar in Daubert v. Merrell Dow Pharmaceuticals.21 The framework in these cases replaced the more demanding framework formerly controlling in Frye v. United States,22 which required proof that the scientific community had accepted the evidence as reliable.

The test for admissibility is more stringent for soft sciences. The differences between the two are illustrated thusly:

Hard sciences23: precise measurement, calculation, and prediction; examples include mathematics, calculation, prediction, physical science, earth science, and life science.

Soft sciences24: based on experience and training; examples include psychology, economics, political science, anthropology, and sociology.

To admit any expert testimony, the trial court must find that 1) the expert’s testimony is relevant, 2) the expert is qualified, and 3) the expert’s testimony is reliable. This three-part test applies to all scientific evidence—whether novel or accepted.25

The steps below lay out the scope of the current gate-keeping inquiry.

Parts 1–3 (for hard and soft sciences)

1. Testimony must “assist trier of fact” (that is, be relevant).25 “Expert’s testimony must take into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue.”27

and

2. Expert must be “qualified” “by knowledge, skill, experience, training, or education.”28

  • “Is the field of expertise complex, how conclusive is the expert’s opinion, and how central is the area of expertise to the resolution of the lawsuit?”29
  • An expert must also have “sufficient background in a particular field, but a trial judge must then determine whether that background goes to the very matter on which the witness is to give an opinion.”30
and

3. The expert’s testimony or opinion must be reliable. The underlying scientific theory is valid; the technique applying the theory is valid; and the technique was properly applied on the occasion in question.31

Kelly provided the following non-exhaustive list of factors that can determine whether the reliability criteria are met:

  • the extent to which the underlying scientific theory and technique are accepted as valid in the relevant scientific community (if the relevant community can be determined);
  • the qualifications of the expert testifying;
  • the existence of literature supporting or rejecting the underlying scientific theory and technique;
  • the potential rate of error of the technique;
  • the availability of other experts to test and evaluate the technique;
  • the clarity with which the underlying scientific theory and technique can be explained to the court; and
  • the experience and skill of the person who applied the technique on the occasion in question.32

Part 4 (for soft sciences only)

The proponent must establish—in addition to the Daubert/Kelly test—that:
•    the field of expertise is a legitimate one;
•    the subject matter of the expert’s testimony is within the scope of that field; and
•    the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.33

Please note that the 2010–2012 edition of TDCAA’s Predicate Questions Manual authored by Williamson County District Judge Ken Anderson and Williamson County District Attorney John Bradley contains excellent sample scripts for various experts and a useful list of suggestions on how to handle defense experts.

What prosecutors should do now

  • Know the Kelly/Nenno/Daubert requirements. Coble and Escamilla sum them up.
  • Develop a checklist for the requirements of forensic science evidence.
  • Understand where the various disciplines fall within the spectrum of reliable scientific evidence (e.g., DNA, fingerprints, confessions, eyewitness testimony).
  • Do not take shortcuts in establishing reliability. Go all-out and remember that persuading the trial courts is only a start—the appellate courts grade their rulings.
  • If you can, introduce the record of an expert’s testimony from a previous trial where the expert’s opinion testimony was admitted after a Kelly/Nenno/Daubert hearing. It is too late to offer the prior record to support your expert on appeal.
  • That said, do not rely on the record in a previous case alone. Courts do not grandfather-in expert testimony simply because it has previously been admitted.
  • Avoid relying on tenuous sciences, at least as the primary evidence to secure convictions. Do not taint reliable evidence with unreliable evidence.
  • Have your expert identify the relevant literature—journals, articles, books, studies—and demonstrate their knowledge.
  • Have your expert identify other experts in the field.
  • Have your expert explain the principles upon which he relies.
  •  Show that the expert’s factors have been empirically evaluated.
  • Be alert to developments in the sciences: Studies, perspectives, and recommendations evolve. Encourage your expert to share his knowledge.
  • If you need a starting place, look at the TDCAA Predicate Questions Manual and the TDCAA user forum on experts. Communicate with each other.

Going the extra mile

  • Put on in-house presentations with prosecutors with experience in a field.
  • Coordinate with other offices about the forensic science disciplines.
  • Participate in organizations reviewing forensic science evidence. Or create your own—be proactive.
  • Educate potential jurors, school children, and the public at large on the benefits and limitations of forensic science.

Make no mistake that the forensic science disciplines are under a microscope in a way that they have never been before. As prosecutors under a duty “not to convict, but to see that justice is done,” we must react accordingly, taking every opportunity to show the courts the reliability and relevance of the experts we put on the stand.

Editor’s note: This article was the basis for a presentation at TDCAA’s 2010 Elected Prosecutor Conference.

Endnotes

1 Coble v. State, No. AP-76,109, 2010 Tex. Crim. App. LEXIS 1297 (Tex. Crim. App. Oct. 13, 2010).
2 Winfrey v. State, 323 S.W.3d 875 (Tex. Crim. App. 2010).
3 In re Thompson, No. 03-10-00689-CV, 2010 Tex. App. LEXIS 10270 (Tex. App.—Austin Dec. 21, 2010, orig. proc.)(Judge Baird required to act on State’s motion to recuse filed during Willingham court of inquiry).
4 Hall v. State, 297 S.W.3d 294 (Tex. Crim. App. 2009).
5 Escamilla v. State, No. 04-09-00530-CR, 2010 Tex. App. LEXIS 8227 (Tex. App.—San Antonio, Oct. 13, 2010, no pet. hist.).
6 Status and Needs of Forensic Science Service Providers: A Report to Congress, 2006 National Institute of Justice. Available at www.ojp.usdoj.gov/ nij/pubs-sum/213440.htm.
7 Strengthening Forensic Science in the United States: A Path Forward at 38-41, 2009 National Academy of Sciences.
8 NAS Report at xx.
9 www.nap.edu.
10 The website for the Texas Forensic Science Commission is www.fsc.state.tx.us.
11 In re Thompson, No. 03-10-00689-CV, 2010 Tex. App. LEXIS 10270 (Tex. App.—Austin Dec. 21, 2010, orig. proc.)(Judge Baird required to act on State’s motion to recuse filed during Willingham court of inquiry).
12  As of the start of the year, Judge Baird is no longer a presiding judge in Travis County.
13 The website for the Texas Criminal Justice Integrity Unit can be found on the Courts Online website for the Texas Court of Criminal Appeals at: www.cca.courts.state.tx.us/tcjiu/tcjiuhome.asp.
14 In light of the successful challenges made to the State’s future-dangerousness experts such as Drs. Grigson, Coons, and Quijano, prosecutors should reflect carefully before sponsoring any expert’s testimony on future dangerouness.
15 No. AP-76,109, 2010 Tex. Crim. App. LEXIS 1297 (Tex. Crim. App. Oct. 13, 2010).
16 No. PD-0987-09, 2010 Tex. Crim. App. LEXIS 1167 (Tex. Crim. App. Sept. 22, 2010).
17 The opinion recognizes that there are at least three variations of dog scenting employed in forensic science: tracking, scent discrimination line-ups, and narcotics. I would add one other: explosives.
18 297 S.W.3d 294 (Tex. Crim. App. 2009).
19 No. 04-09-00530-CR, 2010 Tex. App. LEXIS 8227 (Tex. App.—San Antonio, Oct. 13, 2010, no pet. hist.).
20 824 S.W.3d 568 (Tex. Crim. App. 1992).
21 509 U.S. 579 (1993).
22 293 F. 1013 (D.C. Cir. 1923).
23 Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998).
24 Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000).
25 Hartman v. State, 946 S.W.2d 60, 63 (Tex. Crim. App. 1997).
26 Tex. Rules of Evidence 401.
27 Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996).
28 Tex. Rules of Evidence 702.
29 Rodgers v. State, 205 S.W.3d 525, 528 (Tex. Crim. App. 2006).
30 Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006).
31 Kelly v. State, 824 S.W.3d 568, 573 (Tex. Crim. App. 1992).
32 Kelly, 824 S.W.2d at 573.
33 Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).