In my May 2010 President’s Message in the Voice, I shared my view of forensic science in this state. I lamented the abysmal history of forensic science and that innocent individuals who have been incarcerated and that our Court of Criminal Appeals has been non-responsive. In my column, I stated:
It is a credibility problem. It is a problem caused by a lack of leadership. I believe that the Court has a duty to instill in the people confidence in the integrity of our judicial system. I believe that this Court must assume its ultimate role as the super gatekeeper of forensic science.
A lot has happened since that column was written. The Court of Criminal Appeals has, in a series of cases, acted in its “super” gatekeeper role. First, in Coble v. State, 330 S.W. 3d 253 (Tex. Crim. App. 2010), and Winfrey v. State, PD-0987-09 (Tex. Crim. App. 2010), the Court explained why trial courts should not have allowed experts to testify based on the methodology used to formulate their opinions. In Coble, supra at 279–280, the Court scrutinized the record and the scientific problems with the testimony of Dr. Richard Coons regarding future dangerousness in a death penalty case and stated:
Based upon the specific problems and omissions cited above, we conclude that the prosecution did not satisfy its burden of showing the scientific reliability of Dr. Coon’s methodology for predicting future dangerousness by clear and convincing evidence during the Daubert/Kelly gatekeeping hearing in this particular case.
The Court clearly emphasized the importance that an expert’s methodology be scientifically sound and subject to peer review.
In Winfrey, supra, the Court determined that dog sniff lineup identification evidence, in which a dog handler placed the accused at the scene of a murder, was insufficient to support a murder conviction. There, the Court stated:
Like our sister courts across the country, we now hold that scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. “Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups.” Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of Dog Scenting, 42 Hastings L. J. 15, 42 (1990) (explaining that drug detection canines need only determine whether a specific scent is present. Tracking dogs, on the other hand, have the benefit of using both vegetative scents and human scent, while canines performing scent lineups must find one specific scent among many competing, similar scents). The FBI agrees, noting that tracking canines use human scent and environmental cues to locate the track of an individual. Allison M. Curran, et al., Analysis of the Uniqueness and Persistence of Human Scent, 7 Forensic Sci. Comm. 2 (2005). Accordingly, we conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction. Like the Supreme Court of Washington, we believe that “[t]he dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence.” Loucks, 656 P.2d at 482. To the extent that lower-court opinions suggest otherwise, we overrule them and expressly hold that when inculpatory evidence is obtained from a dog-scent lineup, its role in the courtroom is merely supportive.
(Slip opinion at p.7)
In both Coble and Winfrey, the Court of Criminal Appeals clearly told trial courts that they most review the methodology of experts before opening the gate to the courtroom. Simply because a witness wears a white coat and is proffered by the State does not mean that the expert’s testimony is admissible.
Most recently, in Tillman v. State, PD-0727-10 (October 5, 2011), a unanimous Court of Criminal Appeals, in an opinion written by Judge Barbara Hervey, held that a trial court erred in prohibiting Dr. Roy Malpass, a defense expert on eyewitness identification, from testifying in a capital murder case. After reviewing the trial record and arguments presented, Judge Hervey clearly stated that the proponent of an expert witness must satisfy two things: (1) that the testimony is based on a reliable scientific foundation, and (2) that it be relevant to the issues in the case. Hartman v. State, 946 S.W.2d 60, 62 n. 4 (Tex.Crim.App.1997).
The opinion emphasized that:
the focus of the reliability analysis is to determine whether the evidence has its basis in sound scientific methodology such that testimony about “junk science” is weeded out. Jordan, 928 S.W.2d at 555. Expert testimony in the field of psychology pertaining to the reliability of eyewitness identifications is a “soft science.” See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). Consequently, to establish its reliability, the proponent must establish that “(1) the field of expertise involved is a legitimate one, (2) the subject matter of the expert’s testimony is within the scope of that field, and (3) the expert’s testimony properly relies upon or utilizes the principles involved in that field.” Id.; Nenno, 970 S.W.2d at 561. This analysis is “merely an appropriately tailored translation of the Kelly test to areas outside of hard science.” Nenno, 970 S.W.2d at 561.
The Court also made two additional points. Specifically, that expert testimony becomes relevant when the expert makes an effort to tie pertinent facts of the case to the scientific principles which are the subject of his testimony. And of more import, the Court noted that under TRE Rule 702, the question is not whether the jurors know something about this subject, but whether the expert can expand their understanding in a relevant way.
But the true importance of the opinion is that it points out the conflict between science and law. Our Court pointed out that since the Supreme Court’s decision United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), the “vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” The Court stated that:
Since then, eyewitness identification has continued to be troublesome and controversial as the outside world and modern science have cast doubt on this crucial piece of evidence. As Malpass pointed out in his testimony, eyewitness identification that is not properly conducted is a major factor behind wrongful conviction. The Supreme Court of New Jersey has articulated its concern for the current state of eyewitness identification:
[A] vast body of scientific research about human memory has emerged. That body of work casts doubt on some commonly held views relating to memory. Study after study revealed a troubling lack of reliability in eyewitness identifications. From social science research to the review of actual police lineups, from laboratory experiments to DNA exonerations, the record proves that the possibility of mistaken identification is real. Indeed, it is now widely known that eyewitness misidentification is the leading cause of wrongful convictions across the country. Henderson, 2011 N.J. LEXIS 927, at *14–16.
The Tillman decision sets the ground work for a challenge to the test for admissibility of eyewitness testimony.
The real value of Coble, Winfrey, and Tillman is that they highlight methodology, reliability, and relevance as preconditions to admissibility. Scientific testimony is not admissible unless the proponent of the expert testimony proves (1) that the field of expertise involved is a legitimate one, (2) that the subject matter of the expert’s testimony is within the scope of that field, and (3) that the expert’s testimony properly relies upon or utilizes the principles involved in that field. It is now abundantly clear that trial courts have a duty to even-handedly apply these principles no matter who sponsors the expert. Coble and Winfrey involved testimony of experts testifying for the State, whereas Dr. Malpass was a defense expert in Tillman. It appears change is on the horizon in Texas. The “super” gatekeeper appears awake, alive, and well. We will now have to wait and see if our trial courts understand the lessons the Court of Criminal Appeals has now given them.
