From October 7 through October 8, 2021, I had the pleasure of attending my first TCDLA Forensics Seminar. The seminar may be the most educational CLE event I have ever attended. What Philip Wischkaemper, E.X. Martin, and Larry Renner, along with Melissa and the folks at the home office, put together is an incredible event that every criminal defense attorney should try to make time to attend in the future. While I got my normal dose of camaraderie that I often feel when I attend TCDLA events and get to hang out with our brothers and sisters from across the State, the Forensics Seminar struck me as such an interesting difference from the norm because all of us attendees were primarily taught by non-lawyers for the entire seminar. Learning from the professionals who know the sciences, rather than from lawyers who have learned it from a professional, was a fascinating difference. Each of the scientific professionals who presented were wonderful and helped me, and I would hope others, understand at a deeper level each of their respective forensic sciences, including and maybe most importantly, the limitations.
In fact, that was a regular topic of conversation among many of the attendees. While we are generally trying to keep out many of these various fields of forensic science in our trials, we cannot forget that sometimes the fields of science can work to our benefit. While we should never allow the government to bring garbage dressed up as science in front of a judge or jury without a fight, we should not be unwilling to utilize forensic sciences to our benefit, even those forensic fields that may be considered on the fringe. We’ve all known forever that polygraphs are inadmissible in criminal courts in Texas, but that doesn’t mean we cannot utilize them to conduct our investigations into our clients. It also doesn’t mean that the best post-conviction lawyers we have among our members don’t utilize them all the time to help with the exoneration of their clients.
Similarly, blood spatter evidence should not be discarded by our members as junk without any potential merit. Let me be clear, I will never suggest that blood spatter evidence should always be admissible. What I am suggesting is that within the proper limitations of blood spatter evidence exists the potential exculpatory use of that forensic field. I have used evidence to my client’s benefit that I would probably fight tooth and nail to keep out or discredit if the tables were turned. Don’t let us box ourselves out from properly utilizing forensic sciences to our clients’ benefit simply because of our own disagreements with improper use of a certain field.
One of the other great presentations at the Forensics Seminar was by Mark Daniel. We all owe a debt of gratitude to Mark for the work that he has done on behalf of the criminal defense bar at the Forensic Science Commission. With Mark’s help, the Commission has made strides in limiting the use of junk science in criminal courts in Texas. Among those achievements is the licensing requirement for certain Forensic analysts in order for their forensic analysis of physical evidence . . . and expert testimony to be admissible in a Texas criminal court. See Tex. Code Crim. Proc. art. 38.35(d)(1). Although not every Forensic science has such a licensing requirement, there are many professed forensic sciences that have been excluded from the licensing requirement because they are unreliable. On the other hand, there are other forensic sciences that the Commission has simply not required licensing despite the general evidentiary admissibility of the field. Do not forget to review to article 38.35 of the Texas Code of Criminal Procedure. And you probably want to get a copy of Mark’s PowerPoint presentation that specifically lays out the sciences that require licensing and those that don’t.
There is no way I can summarize in one short column the information I learned at the Forensics Seminar. However, I can tell you that until we learn to work with experts in the various forensic fields and gain our own understanding of the proper application of the fields and the limitations, we are simply missing out on a benefit to each of our clients. Lucky for us, Philip Wischkaemper is planning to put on the Forensic Seminar again next year.