The TwentyFvst Annual Kenneth J. Hodson Lecture Scientific Emdence in Criminal Prosecutions

AuthorPaul C. Giannelli
Pages04

It 1s an honor to have been invited to give the Kenneth J. Hodson Lecture in Criminal Law. I had the privilege of sewing under General Hodson while on active duty. My talk today is about scientific evidence, and it is based on my research in this area.

  1. Increased Use of Scientific Evidence

    Snentific and expert evidence is playing an ever-increasing

    and far more important role in criminal prosecutions than in the past.

    A Notorious "mls

    A quick look at well-publicized trials over the past decade illustrates this paint. In lus bwk on the Clams von Bulow proaecution, Alan Dershawitz wrote, "At bottom the case against Claus von Bulow was a scientific case. It would have to be refuted by scientific evidence."' Similarly, the trial of Ted Bundy, the send killer, involved the use of hypnotically-refreshed testimony and bite mark evidence.a Fiber evidence proved critical in the trial of Wayne Williams for the murder of two of the thirty young black males killed in Atlanta in the late 1970's.a Pathology and serology

    *Thm article ii a trannmpt of B lecture delivered by the author to membersof the Staff and Faculty, their diBth&ehed welt.. and offieera sttendmg the 40th Graduate Course and the 127th Judge Advoente Officera Bsarc Course. at The Judge Advoeate Generah Sehml, Charlstteadle, Virglmb, on March 16, 1992. The Kenneth J. Hodian Chair of Criminal Law 'PI eatabhhed on J u s 24, 1971 Major General Hodson WBLI The Judge Advocate General. U.S.

    Army, from

    1967 to 1971, and vas B member of the stiglnsl Staff and Faculty of The Judge Advocate General'k Sehml at CharistteanUe Vmmta.

    **Albert J. Weathsrhcad 111 and nishrrd W. Westherhead Rofesaor of

    'A Dem~orum, Rswaw OP F o x m : INSIDE m

    YON BVLOW CUE 105

    'Bund? Y Sate, 471 So. 2d 9, 18.19 @la. 19861, coil. Lnud, 479 US 894 11986): Bunds V. State, 466 So. 2d 330,348 (Fis 19.941, rert. L n d

    476 US. 1109

    MICUYD & H.

    WIRIESS 119831.(1886). .iSO n. LUISEN. BUNDI: w DELIBER*TE ST^^^^ (mei. s

    iWilliams V. State, 261 Cia 749, 312 S E.2d 40 (1964): see d d o Deadman.

    A~SWORTX,

    11986); nee o h

    State Y. V O ~

    Bulo~,

    475 A2d 995 (R.1 I, een. &mad, 469 US. 876

    LSW, cnae wsstem naaerve Univerdty ,>and>

    ,..-,.

    THE ONLY Lmc

    testimony played a pivotal role in the trial of Jean Hams for the murder of Dr. Tamower, the Scarsdale Diet dactor.4 The forensic analysis of physical evidence was "at the core of the ease'' agslnst Dr. Jeffrey MacDonald at Fort Brags.' In addition, "fingelprint, shoeprint, and ballistics evidence" was admitted in the 'Night Stalker" serial murder praseeutime

    More recent examples can be taken from the December 23, 1991, issue of Time magazine. One article an the assamination af Resident Kennedy, sparked by the m o w JFK, discussed the "magic-bullet" theory--a theory which questioned whether the same bullet could have struck both Resident John F. Kennedy and Texas Governor John CannaUy. The article states that "[nleutron activation tests indicate that the fragments in Connallv's wrist did come from the bullet in questian."V

    Another story in the same issue concerned the recent Flonda trial of William Kennedy Smith far rape. The article pointed out that dming the investigation, the victim "passed two polygraph tests and a voice-stress analysis."a That article, however, neglected to mention that most courts exclude polygraph evidence BB

    unreliable, and virtually every reported case on voice-stress analysis has rejected it as mvalid.9

    Fiber Ewdonei and lhs Woyiu Wdliama niol (Pati U. 53 F.B.I. L. ENFORCEMEW Bum. 12 (Mar 1963): Deadman, Ftber Evrdrnei and tho Wayne Williams Tiid fConelunonj, 53 F.B.I. L. E N P ~ R C E W ~

    Buu. 10 (May 19841

    'People Y. Hams,

    84 A.D.2d 63, 445 N.Y.S2d 520 11961). affd, 456 XN.Y.2d 694, 442 N.E.2d 1205 119821, cerl dennd. 460 U.S.

    1047 119631. Eight pathaloglavi testifled 20% of the tnal was devoted ta cutaneaua hiatalogy. See Aekerman, The Phymion 08 Ezprti Wiliuaa: la Peer Reurru NeiLd7, I Gsm~lcr 37, 52 tDec 1965) 1The role of CY~MOOYBhatolow rn the tnal of Jean Hama and ita implieationa for medime and the law-;n Amenca should be of ~oncarn to the commvnity ofphyamans"): TWE, Mar 1. 1962, at 90 ("At the tnal ofJean Hams last year Ithe expert1 tried to persuade tha jY~-Y='YrCerifully-th8f blwd mala jibed d t h Harria's claim that the ihwting of Dr. Herman Tarnower occurred aendentally dunng a struggle"); see d m S A m m m VERI MUCH A

    h r

    l'm Umam Smm OF JEAN H u w a *_) DR. HEW Tuurawsn 119631, JDAWD, SCUYDUE M-ER (19611.

    'J MCGZ~MSS, FAT& Vrsro~ 264 11963). MasDonald "PI conncted for hlhng hn d e and two chldrsn. Sea United States V. MaeDonsld. 456 U.S. 1 11962): United States Y. MecDoosid. 686 F.2d 224 14th Cir. 19621. eirl danud, 459 U.S.

    1103 (19631, United State) Y MneDannld, 779 F 2d 962 14th Cir 19851, eert. dmkd. 479 US. 613 119861.

    'Harris, Night SBlkrr Convirted of 13 Murdrra. U.P.I.. Sept. 21, 1969 'Carhaa. Who Kdkd J F K ?, hnrs, Dee 23, 1991, BL 66. 8ee &o Wsiabvrg

    Y U.S Dep't of Justice, 438 F. Supp. 492. 499.503 1D.D.C. 1977) (Freedom of Information Ad reweit far Ish reavlti on KenoedY Bma~ernbtionldBmth. Palm Brsch T r d The Cme That Was Not Heard. RME, Dec 23,

    *See P G-TLLI & I~NI(GWED,

    1981. at 38.

    SC~ENT~~C

    E~DENCE,

    ch 6 119881

    1. Laek of Scientific Evidence

      Indeed, reliance on scientific proof has became so common that its absence in a particular case becomes noteworthy. A 1990 news account of the Central Park jogger case commented, "Among the defense's atmngest paints in attacking the prasecution's case was the surprising absence of physical evidence-no weapons, no blood stains, no strands of hair, no pieces of skin, no footprints link any of the teenagers to the crimes."'0

      Another illustration is the recent acquittal of El Sayyid Nosair for the assassination of Rabbi Meir Kahane, the founder of the Jewish Defense League. Apparently, nobody saw the actual shooting. Witnesses, however, saw the defendant with a gun in the mme rwm where the shoatmg occurred, heard at least one shot, and saw the defendant ru~lfrom the scene. When the defendant was shot and apprehended nearby, a gun WBB found next M him. All this occurred within minutes of the shooting. Most prosecutors would consider this a powerful case. An alternate juror explained the jury's reasoning as follows:

      [Two shots were heard1 but only one bullet was found and it was not tested for hair, blood or other indications that it had passed through the rabbi's neck, the fatal wound.

      ... [Tlhe prosecution had offered no evidence of Mr. Nosairs Sngerprints on the gun, no paraffin tests that might have shown Mr. Nosair tired It, and no evidence showing the bullet's trajectories."

    2. Variety of Techniqrres

      We are not only using scientific proof more, but also relying on a wider variety of techniques. Neutron activation, atomic absorption, electrophoretic blood testing, scannrng electron micros-copy, mass spectrometry, and gas chromatography are but a few of the techniques now used in criminal prosecutions. Other examples include sound spectrometry (voiceprints), psycholinguistics, remote electromagnetic sensing, and horizontal gaze nystagmus. Even fingerprint identification has moved intc the high-tech age with laser technology far visualizing latent prints and computers for far more oowerful searehinn eenabilitv. In addition. the last decade

      LLMcFaddcn,

      For Jurors, Eurdrnce m Kahane Cosr Wos Riddkd With Dopa, N.Y.m s ,

      Dsc. 23, 1SS1, at B1. e01. 2.

      has seen an increased reliance on social science research-fcen called syndrome endence. For example, evidence of battered wife syndrome, rape trauma syndrome, and child sexual abuse accommodation syndrome now frequently is adrmtted at mal.

      11. Reasons far This Development

      scientific evidence.

      Several factors may have contributed to this increased use of

      A Research Funding

      At one time, fundrng for forensic science research was substantial. The creation of the Law Enforcement kssistance Admimstration (LEA41 in 1968 undoubtedly played a sigaifieant role. In the 197O's, the LEA4 underwmte a number of research projects designed to encourage the forensic application of mientifie knowledge; the admissibility of some techmques can be traced directly to this research. Vaiceplint analysis 1s the best euample.12

      Other funded projects dealt with blood analysis,lB blood flight characteristies,'4 trace metal detection,ls and polygraphy.16 Cur-rently, the Federal Bureau of Investigation (FBI) is spending a considerable amount of remurce~ on the forensic application of deoxyribonucleic acid (DNA).

    3. Supreme Court lnfloenee

      Several witera have found a different reason. They attribute the expanded use or scientific evidence to Supreme Court decisions of the 1960% in which the Warren Court severely restricted the acquisition of evidence far criminal ca~ea via traditional crime-eolving techniques, such as rnterrogations and lineups.17 For examde. commentators have written "Mirando. Gldeon. Escobedo.

      and eeveral other cases of similar import, indirectly created an entirely new approach to criminal investigation. This has been particularly true with regard to the me and application of the various forensic sciences.. . ."la In 1972, an appellate juQe wrote, "In this day and age . . . where recent decisions of the United States Supreme Court establish stringent guidelines in the investigative, emtodial and prosecutional areas a premium is placed upon the development and use of scientific methods of crime detection."l9

      There is some suggestion in the Supreme Court's cases that supports thm view. For example, in one caae the Court wrote, 'modern commuaity living requires modem scientific methods of crime detection lest the public go unprotected."zo In Esmbedo the court wmte,

      We have learned the lesson of history, ancient and modern, that a Bystem of criminal law enforcement which comes to depend on the "confession" will, in the long m, be less reliable and more subject to abuses than a system which depends on extrinsic evidence...

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