Brandon L. Garrett

Forensic bitemark identification: weak foundations, exaggerated claims

Abstract Several forensic sciences, especially of the pattern-matching kind, are increasingly seen to lack the scientific foundation needed to justify continuing admission as trial evidence. Indeed, several have been abolished in the recent past. A likely next candidate for elimination is bitemark identification. A number of DNA exonerations have occurred in recent years for individuals convicted based on erroneous bitemark identifications. Intense scientific and legal scrutiny has resulted. An important National Academies review found little scientific support for the field. The Texas Forensic Science Commission recently recommended a moratorium on the admission of bitemark expert testimony. The California Supreme Court has a case before it that could start a national dismantling of forensic odontology. This article describes the (legal) basis for the rise of bitemark identification and the (scientific) basis for its impending fall. The article explains the general logic of forensic identification, the claims of bitemark identification, and reviews relevant empirical research on bitemark identification—highlighting both the lack of research and the lack of support provided by what research does exist. The rise and possible fall of bitemark identification evidence has broader implications—highlighting the weak scientific culture of forensic science and the laws difficulty in evaluating and responding to unreliable and unscientific evidence.

Aggregation in Criminal Law

This Article considers aggregation in criminal law. In criminal law, fundamental constitutional rights to an individual day in court sharply limit the occurrence of procedural aggregation, such as joinder, during trials. By way of contrast, in civil cases, courts permit a range of aggregate litigation, including consolidation and class actions. Nevertheless, the boundaries between civil and criminal law approaches to aggregation are more permeable than conventionally understood. Courts now aggregate criminal cases, and they do so without violating constitutional rights, by joining cases only before trial and during appeals. I present five case studies examining novel aggregative procedures that courts employed to remedy systemic criminal procedure violations such as the lack of proportionality in death sentencing, wrongful convictions, forensic fraud and inadequate indigent representation. Second, I frame due process safeguards to structure future aggregation in criminal law. Finally, I develop a possible second wave of institutional reform that could flow from intermediate models that do not aggregate but accomplish similar goals, using innocence commissions, prosecutorial case review, special masters, and two-tier models of judicial review. I conclude that appropriate use of aggregation can potentially transform criminal adjudication, by providing an avenue to vindicate criminal procedure rights, and by encouraging efforts to create a more efficient, accurate, and fair criminal justice system.

Comparing Categorical and Probabilistic Fingerprint Evidence

Fingerprint examiners traditionally express conclusions in categorical terms, opining that impressions do or do not originate from the same source. Recently, probabilistic conclusions have been proposed, with examiners estimating the probability of a match between recovered and known prints. This study presented a nationally representative sample of jury‐eligible adults with a hypothetical robbery case in which an examiner opined on the likelihood that a defendants fingerprints matched latent fingerprints in categorical or probabilistic terms. We studied model language developed by the U.S. Defense Forensic Science Center to summarize results of statistical analysis of the similarity between prints. Participant ratings of the likelihood the defendant left prints at the crime scene and committed the crime were similar when exposed to categorical and strong probabilistic match evidence. Participants reduced these likelihoods when exposed to the weaker probabilistic evidence, but did not otherwise discriminate among the prints assigned different match probabilities.

Resolving latent conflict: What happens when latent print examiners enter the cage?

Latent print examination traditionally follows the ACE-V process, in which latent prints are first analyzed to determine whether they are suitable for comparison, and then compared to an exemplar and evaluated for similarities and differences. Despite standard operating procedures and quality controls designed, in part, to mitigate differences between examiners, latent print processing and review are inherently subjective. The ACE-V process addresses subjectivity, and the possibility of error, in the verification stage in which a second examiner repeats the analysis, comparison, and evaluation steps in a given case. Other procedures outside the ACE-V framework, such as consultation and conflict resolution, provide further opportunity to understand how differences between latent print examiners emerge. Despite the growing body of research on latent print examination, questions have emerged about how these procedures work in practice. This study reviews case processing data for two years of casework at the Houston Forensic Science Center (HFSC). We describe these data as cases proceed through each step of the ACE-V process, with a particular focus on verification, consultation, and conflict resolution. We discuss trends in these processes regarding modal types of disagreements, modal outcomes, and roles of the examiners involved. Results reveal implications for improving the practice of latent print examination.

Do Heads Roll? An Empirical Analysis of CEO Turnover and Pay When the Corporation is Federally Prosecuted

Does the criminal prosecution of a corporation affect the CEO? Or do criminal actions directed at the organization itself pose few consequences for the individuals at the top, and the CEO in particular? While CEOs are rarely themselves prosecuted, organizations could discipline CEOs through paycuts or outright replacing the CEO in response to a criminal prosecution. We sought to examine whether and how that occurs. We focus our analysis on a dataset of public companies that settled criminal cases brought by federal prosecutors from 2000-2014. We compared those companies to the larger set of companies in the Execucomp database of S&P 1500 firms, focusing on CEO compensation and turnover during the same time period. We examined the time period before and after prosecution, and the year that the company resolved the criminal charges against the company. We found that in the year that the company settled its prosecution, through a guilty plea or a deferred or non-prosecution agreement, there was a significantly higher level of CEO turnover. However, we do not find evidence of CEO pay cut. Second, for the prosecuted firms that did not have CEO turnover after prosecution, there is no evidence of a reduction in compensation. Indeed, we observed a spike in CEO bonuses in the year of prosecution—confirming concerns expressed by judges, prosecutors, lawmakers, and academics that corporate prosecutions do not sufficiently impact high-level decision-makers like CEOs. For the prosecuted firms that did have CEO turnover after prosecution, there is some evidence of a pay cut, both to salary and bonus, prior to the replacement of the CEO. These results raise larger questions whether federal prosecutors targeting the most serious corporate crimes sufficiently incentivize accountability at the top.

The global evolution of corporate prosecutions

Corporations are now prosecuted for criminal violations across the world. In the space of 15 years, this globalization of corporate criminal prosecutions has changed the law and the practice of criminal law and corporate governance. Multinational corporations may be subject to criminal enforcement in several countries at once. Billion dollar fines, setting new records for criminal matters of any type, are now imposed on corporations with some regularity. Financial institutions are now prosecuted as well. This did not occur in the recent past. Most countries have not adopted strict standards for corporate criminal liability, and if they had any standard at all, it permitted liability only if higher-level corporate officers were involved in or tolerated the criminal behavior. In the United States, however, prosecutors have long benefitted from a rule potentially holding a corporation liable for the crimes of its agents, so long as they were committed in the scope of employment and at least in part to benefit the company. This respondeat superior standard, borrowed from tort liability, was ratified by the US Supreme Court in its 1909 decision in New York Central & Hudson River Railroad v. United States. Despite that broad standard, before the 1990s, corporate prosecutions were not particularly noteworthy in the United States. Corporate fines remained modest, until the adoption in 1991 of federal Sentencing Guidelines specifically designed for organizations. The most significant changes began to take form only beginning in 2003, when the US Department of Justice (DOJ) adopted a brand new approach to corporate prosecutions, following the prosecution of Arthur Andersen, and the resulting dissolution of the firm. The new approach, emphasizing out-of-court settlements, and the explosion in the size of penalties, would transform corporate criminal prosecutions in the United States. It is now impacting and influencing the law and practice of corporate prosecutions around the world, alongside other developments such as the OECD treaty and the Lisbon Treaty, and growing post-financial crisis concern with corporate violations. In this Article, I will describe those changes, data that I have collected analyzing patterns in US corporate prosecutions, and I will describe how countries have reacted to these developments, and what lessons can be learned from the evolving approaches towards corporate criminal prosecutions. B. The rise of corporate criminal settlements

Blinding Eyewitness Identifications

A lineup, or a police eyewitness identification procedure, is a type of experiment used to test the memory of a person who saw a crime occur. However, until recently, few police agencies have followed scientific methods when conducting lineups. One of the most important recommendations to improve lineups is to conduct them blind, so that the administrator does not know which is the suspect, or blinded, so that the administrator cannot see which images the eyewitness is looking at during the procedure. This chapter explores the pros and cons of this approach.