Juvenile criminal court works at warp speed utilizing days and weeks instead of months and years. This is especially true with serious cases that, in the adult system, may take a year or two from the date of offense to trial. In juvenile courts, the length of time between arrest and adjudication, even in the most serious of cases, can be less than 4 months. This shortened time makes sense when looking at the courts as a rehabilitative system that provides services to a child as quickly as possible; as well as the limited jurisdiction, until age 19, that the Juvenile Court has. However, this short timetable is a major obstacle in determining the path of a case and properly preparing a defense if the case will be contested. The problematic nature of the abbreviated pending case life is especially egregious when forensic evidence is involved.
Forensic crime laboratories tend to work on 4-9 month backlogs as a matter of course. Some forensic disciplines involving highly specialized analysis, like complex DNA, can take upwards of 18 months to process. Even simple controlled substance and dangerous drug analysis can be several months from lab submission to the final report. A juvenile case with a resolution of six to nine months of total supervision and no collateral consequences could be completed before any laboratory analysis reaches the court. With these two disparate timelines, it becomes even more imperative that the attorney be able to determine a reasonable timeline for the evidence to be available, understand the expected outcomes of forensic analysis, and then decide whether the forensic examination delay is to the client’s benefit.
Forensic Analysis Timeline
Forensic analysis all begins the same way: with the submission of possible evidence to experts for their analysis. For some items, the lab receives the evidence within hours of the alleged offense by a crime scene technician who collects the evidence and submits it to a laboratory. For controlled substances, this may be a Police Department evidence technician mailing or dropping off evidence on a weekly or even monthly basis. For technology and data, this introduction of evidence occurs after a search warrant or subpoena is signed and the data is provided to the technical expert. The first consideration for an attorney regarding the expected timeline is the discovery that has been provided by the State. This can be enhanced through further advanced discovery requested through your discovery motion practice. This advanced discovery should include all documents relating to the cause at issue, including the laboratory submission sheets, the chain of custody, any correspondence with laboratory or technical experts, and photographs of the evidence itself. This discovery will show the exact date and time that the evidence entered the forensic analysis channels.
The second step is to use the historical knowledge of the specific laboratory or expert who has accepted the evidence. Every lab will have some differences in its backlog and evidence handling, but most labs follow the same general analytical procedures. The time needed to conduct analysis is inconsistent with the laboratory’s actual case output time. In the best-case scenario, in which a lab had no backlog and no administrative hurdles or issues, the following are the timelines from evidence submission to final report release (the timeline within parentheses is the current average turnaround time for Texas labs):
- Controlled Substance: 1 day (3-6 months)
- Toxicology: 1 day (4-8 months)
- Latent Prints: 1 day (3-6 months)
- DNA: 5 days (9-18 months)
- Digital Media Analysis: 1 day (1-3 months)
These timelines vary greatly from lab to lab and region to region. As an example, Houston Forensic Science Center is currently working on a 10-day controlled substance turn-around time, while the TX DPS Laboratory in Garland is at 9 months (227 days) for the same analysis. In other instances, digital media analysis is sometimes handled by investigators and “experts” from within District Attorney Offices and Police Departments for faster turnaround once the data is received.
The final issue that may alter or extend the timeline is the complexity of the analysis. This information can be gleaned from discussions with the client, as well as the nature of the offense. Clients typically know if an item was passed around and will have a mixture of DNA or if it was wiped clean. Clients typically know if the drug was a standard street drug or if it was a new designer drug that would require additional testing. Clients typically know if they have an Instagram/Snapchat/Facebook profile that contains hundreds of messages, or on the other hand if it has tens of thousands of messages.
Setting Realistic Expectations
The forensic laboratory is limited by the quality of the evidence it receives, the protocols and instrumentation available, and agreements with local prosecuting agencies. Lab analysts are bound by scientific principles while working in a high throughput environment in which getting the best result is secondary to getting the most reports sent out and evidence submissions closed. High throughput forensic laboratories are more similar to the McDonald’s business model of maximizing the number of customers with adequate quality than they are to a fine dining establishment in which there is time and money available to focus on the absolute best quality, using the most cutting-edge techniques, for a small number of customers. This analogy is especially evident with DNA analysis. When a box of items comes in for DNA analysis, the first step is not to sample all the items to ensure that all the possible DNA contributors are identified. Rather, the laboratory looks at the agreement it has with the submitting agency to determine if the nature of the offense even qualifies that item for analysis. If it does qualify, then a single item, maybe two or three, is selected for initial screening for biological material. This screening can be as simple as visually analyzing the item for hairs, stains, and other possible biological material. Many, if not most, of items collected are never scientifically analyzed or even inspected; instead, they are merely inventoried. If the initial screening results in biological material that may be relevant to the case, then those screening samples proceed for actual scientific analysis using instruments. When the standard protocols and analysis result in a weak or incomplete DNA profile, then a secondary analysis may be done on a small subset of cases to better identify those DNA profiles present. However, most cases end laboratory analysis at this point with less than specific results. Although there are significantly more sensitive and accurate instrumentation and protocols used around the country in DNA analysis, those practices are rarely, if ever, used in a forensic DNA laboratory. This is because the lab does not focus on getting the single most accurate result on one specific case since it may hamper the throughput, increase the cost, and cause a longer turnaround time on hundreds of other cases. This is the exact reason why only a fraction of the collected evidence will be screened, only a fraction of that screened evidence will be analyzed, and only a fraction of that analyzed evidence results in complete DNA profiles.
Understanding clearly what the laboratory will find or not find is paramount in deciding if it is prudent to wait for the forensic analysis report. Reaching out to an expert in the forensic field of the case is a great way to set this realistic expectation. If there is a firearm found in the grass a month after an alleged incident being sent in for fingerprints, that will probably not lead to harmful evidence against the client. If that same firearm was recovered immediately after being pulled from the client’s waistband and thrown to the ground and was submitted for DNA analysis, then the likelihood of additional harmful evidence against the client being in a forensic report is much higher. A few rules of thumb to start the calculation are:
- The longer someone holds and touches something, the more likely he/she will be transferring DNA to the item
- The more people that touch an item, the lower the likelihood that the client’s DNA will be singled out
- Latent prints are much more likely to be probative if found on a smooth, clean, dry surface
- Toxicology tends to be one of the most accurate overall analyses
- Common Controlled Substances are very accurately identified; dilutions/mixtures do not matter
- Digital media (i.e. Cloud, Snapchat, Instagram, phone dumps) have vast amounts of information that can create very specific timelines of communication, location, and identity
Using these rules of thumb, an attorney can have productive conversations with the client to determine whether the lab report will benefit in negotiation or trial preparation; or conversely, if the case would result in a more beneficial ending should the case be adjudicated before the lab report being issued. The client can provide that worst-case scenario regarding the incident with directed questioning that allows the attorney to understand the type and quality of forensic evidence left behind. Begin by asking questions like: where did you place your hand? What did your finger touch? Where did you dispose of the soda can? Did you ejaculate, and if so, where? Where did specific items come from? Who else may have contacted said items?
Regarding digital media, many times the attorney can complete their own analysis of the evidence at issue by reviewing the client’s cloud and social media accounts with his/her consent. A clear understanding of whether there are or are not harmful posts and communications can dictate the path of the case, even before the subpoena returns are done.
The final issue when setting expectations is staying relevant on the legal factors affecting forensic science. This was seen in 2015 when the FBI notified laboratories that their population statistics were in error for the previous 15 years, and most laboratories either slowed or stopped DNA analysis for a while. More recently, the passage of Texas House Bill 1325 legalizing hemp has led to almost no forensic laboratory in the State able to differentiate legal hemp from illegal marijuana.
Assessing the Client’s Interest in the Forensic Delay
Ultimately, the delay in forensic analysis can be positive when dealing with the Juvenile Court’s short timetable. If the attorney has looked at the reasonable timeline and set realistic expectations for the forensic analysis outcomes, they can decide if the results will be beneficial or harmful to the case. If they will be beneficial, then it is an easy calculus: does the time waiting for those results outweigh the delayed result of the case? In serious cases, this answer is typically a clear yes; this is because a lower charge, less incarceration/supervision, or a sealable criminal record are worth a few months extra on pretrial conditions of release. However, in less serious cases, that wait for forensic analysis, even analysis in the client’s favor, may prolong the juvenile’s time in the court system given the multitude of deferred prosecutions and non-plea options available. With these cases, the threat of a harmful lab report for the State may be enough to negotiate a slightly better result.
The more complicated issues emerge when the forensic analysis is expected to result in a harmful final report for the client. In these cases, there is a decision to be made: to move fast or move slow. To resolve quickly, the attorney can utilize the delay in forensic analysis and push the court to an exclusion of evidence if it is completed by the time of the contest. Many juvenile courts would prefer to hold contested hearings as quickly as possible, even without all the evidence available. If the State is not in agreement to exclude the evidence, then there is the option of stipulations and agreements to what is known or expected to be known. These could range from simple pretrial agreements that no party will mention that forensic evidence was even collected (removing any issue of positive or negative inference of what that delayed analysis would have shown), to stipulations that items were collected but no analysis was completed on them and no inferences to be made. An additional option for moving fast is to utilize the months-long delay in the forensic analysis as a bargaining chip if the case will be resolved outside of contest. Many juvenile prosecutors are more willing to negotiate when the alternative is a months-long delay and drawn-out technical proceedings.
If the plan is to move slowly, then there needs to be an intent to fully and completely litigate the scientific issues that a harmful forensic laboratory report can bring forward. If the intention is to wait for the completed analysis, the attorney must begin the discovery process of the full laboratory case file, a background of all analysts and technicians, as well as build an understanding of the scientific principles at hand. Having an expert review the analysis places additional pressure on the Prosecutor to also learn the science, protocols, and laboratory issues at hand. If the analysis includes anything but the most routine established analysis, then there is the possibility to push for evidentiary hearings and Daubert hearings. Depending on the case and the age of the client, this may be a positive resolution for the case if the clock runs out, leaving little to no jurisdiction over the client regardless of the case outcome. Finally, it is important to remember that if the forensic analysis makes it to contest, the client still retains the clear right to confront the analyst who did this specific analysis. (Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 564 U.S. 647 (2011)). These confrontation clause issues are especially important for those attorneys practicing in rural areas that may require the State to fly in experts from Austin, Houston, or Dallas, depending on where the analysis was completed. Ultimately, a choice to move slowly on a case with delayed forensic analysis could add months or even a year to the path of the case, but the results can be substantial, even with an unfavorable lab report.
Jurors may see forensic science as the gold standard of evidence, but the extensive delay in completing that forensic analysis can be utilized for your juvenile client’s benefit regularly. It is vital for an attorney to know the expected timeline, realistic laboratory outcomes, and then maximize the options even though months and years of scientific delay do not fit the weeks and months of Juvenile Court focus on the client.