Litigating Forensic Evidence

In 1979, we were appointed as lead counsel in 80 consolidated cases in which people were charged with operating cars at excessive speeds, based solely on radar devices. We filed motions to exclude the radar results as too unreliable to support the charges.

Our office presented extensive testimony from numerous highly trained experts in multiple scientific disciplines to establish the inaccuracy of the radar devices. Our evidence included instances in which the radar devices registered roadside houses and trees speeding, and a telephone sitting on an attorney’s desk traveling at over 70 miles per hour.

Our motions to exclude the radar results were granted. The court found many errors were caused by inadequacies in the design and manufacture of the radar devices, and poor police training on the use of these devices. Our work on this case received widespread international news coverage and publicity.

As part of our continuing effort to eliminate junk science, we won the landmark capital case of Ramirez v. State, 810 So. 2d 836 (Fla. 2001). A police criminalist testified that he could tell a knife linked to the defendant was the only knife in the world that could have caused the victim’s wounds. He claimed this was a subjective judgment that could not be demonstrated to jurors or checked by outsiders.

The Supreme Court of Florida determined: “The procedure is a classic example of the kind of novel ‘scientific’ evidence that Frye was intended to banish—i.e., a subjective, untested, unverifiable identification procedure that purports to be infallible.” The Court reversed the murder conviction, and issued an opinion reestablishing that scientific rigor must be demonstrated before evidence will be admissible in Florida. Id. at 853.

We have challenged the reliability of fingerprint evidence in State v. Armstrong, 920 So. 2d 769 (Fla. 3d DCA 2006), which involved a burglary where the only evidence linking the defendant to the crime was a partial thumb print. The defense listed Dr. Simon Cole of the University of California at Irvine as an expert witness. Dr. Cole has written an award-winning book on the history of fingerprint evidence, in which he concluded that the reliability of fingerprint evidence had never been scientifically tested, and thus no error rate had ever been established for it.

At a Frye hearing, we argued that where fingerprint examiners routinely testify that they are 100 percent certain they have a match, the defendant has a right to present his own expert challenging the weight to be given to that testimony. We prevailed in the trial court. However, the state challenged this ruling in the appellate court which held that Dr. Cole’s testimony was not relevant because he would not be testifying about the actual fingerprints admitted.

Back in the trial court, however, the case fared better. The assistant public defender’s cross-examination of the fingerprint examiner brought out the unscientific nature of fingerprint “science,” and the jury acquitted. Since Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), courts have been stubbornly resistant to the many challenges to the reliability of fingerprint evidence that have been raised. In this case, a jury was more open-minded than most courts have been.

Florida law requires a citizen to blow into an Intoxilyzer breath-alcohol testing machine if the arresting officer believes that the person may have been driving under the influence of alcohol. The machine reports a breath-alcohol number, which the state can later introduce into evidence. These breath-alcohol numbers potentially lead to jail and the loss of a driver’s license.

Unlike an expert witness, however, a machine cannot be cross-examined to determine the methodology of arriving at that result. To prepare for trial, defendants must be given the opportunity to examine the machine’s operator manuals, maintenance manuals and engineering schematics, in the hope of uncovering the methodology used to arrive at a breath alcohol reading.

In March 2006, we joined with a group of defense attorneys led by two private attorneys in a motion to compel the state to produce the computer program for this machine. The court found that the state did not have the computer program that produces this number. We are continuing to seek the computer program in the courts by filing subpoenas for the production of the program and witnesses from the manufacturer.