Tag Archives: evidence

Hair evidence analysis is not so great

I came across this very interesting press release which stated that in many FBI cases hair analysis’ reliability was exaggerated when making a positive identification in FBI cases.  These include 27 capital cases.

According to the press release, the FBI labs reports have consistently asserted that hair analysis can’t be used to make a positive identification.  However, some FBI agents asserted that hair analysis led to near-certain matches.

In other words, the practice of using hair analysis was deemed “highly unreliable” by the National Academy of Science.  Even though it is possible to conduct hair microscopy and find similarities among various samples, “in many cases the FBI analysts were overstating the significance of these similarities, often leaving juries with the false impression that a hair recovered from the crime scene must have come from the defendant and could not have come from anyone else.” (italics and underline added).

The FBI and the Justice Department uncovered the cases in a review of more than 20,000 lab files that was undertaken in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers, the story says.  So far, about 15,000 files have been reviewed, turning up about 2,100 cases in which hair evidence was used and 120 convictions that could be problematic, including the 27 capital cases.

The Innocence Project Co-Director Peter Neufeld made the following statement:

The government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented.

The Justice Department will notify prosecutors, convicted defendants and their lawyers if a review panel finds FBI examiners made excessive claims. In such cases, the Justice Department will waive rules that restrict post-conviction appeals and will test DNA evidence upon the request of judges or prosecutors.

Advertisements

Leave a comment

Filed under civil rights, courts, discovery, federal, Privacy Rights

Evidence destruction leads to ruling U.S. was negligent

Under the civil rules of procedure, a sanction for the destruction of evidence would include an adverse finding.  In other words, if you are a party to a lawsuit and destroy evidence, the court may find that you were guilty of the allegations.

One of the reasons for this is that now, the court has no way of telling what the evidence said.  Would the evidence point to the party knowing about the problem?  Would the evidence show the party did nothing while it knew?  Would the evidence show nothing?

That is why it is so important to write a Spoliation Letter.  An Spoliation Letter is a letter that explains your duty to preserve evidence.  The letter explains that because there is a lawsuit (or there will be one), you now have to stop destroying evidence.

As an attorney, regardless of what side you are in, you have a duty to advise your client.  A big part of discovery is finding relevant evidence.  It would be against the idea of justice to go about destroying evidence.

This case highlights the importance of not destroying evidence.  In this case, in 2009, a 9-year old boy was at a mountain trail in Lassen Volcanic National Park when the retaining wall gave way.  Unfortunately, the boy died from this accident.

Court records show a complaint that the chief of maintenance shredded all of his documents, some of which dealt with visitor safety issues.  The documents were shredded sometime around December 2009 and January 2010.

As a sanction for destruction of evidence by the National Park Service in a wrongful death case, a federal judge in Sacramento, Calif., ruled Tuesday that the United States was negligent.

U.S. District Judge Nunley, held that the government was negligent “for all purposes in this case.”  The judge found that the government “purposely destroyed” the remains of the retaining wall, and that the park director and some staff knew the wall was unsafe, the newspaper says.

“What is less clear, although highly suspicious, is whether defendant [destroyed] evidence other than the wall,” U.S. Magistrate Gregory G. Hollows wrote in a previous decision.

Still undecided in the case and expected to be addressed at a June hearing is whether the government can assert a “discretionary function” defense under the Federal Tort Claims Act. The government argues that those in charge of the park had discretion to decide whether or not to repair the wall, and hence the government cannot be held liable for their decision-making.

via As sanction for destroying evidence, federal judge finds US negligent in wrongful death case – ABA Journal.

Leave a comment

Filed under courts, discovery, District Court, electronic discovery, legal decision, rules, sanctions

DNA collection of arrested individuals

This month, the Supreme Court will hear arguments on the issue of whether it is constitutional for the State to require DNA collection of arrested individuals.  The case is Maryland v. King.  The argument is set for February 26, 2013.

As way of background:

  • The federal government and at least 26 states (including California, Illinois, and Florida) take DNA samples from some or all who are arrested but not yet convicted of serious crimes.
  • Last month, President Obama signed into law the Katie Sepich Enhanced DNA Collection Act.  The statute will help pay the start-up costs for other states to begin testing people who are arrested.

So what does this issue mean?  The issue is whether the State, without a search warrant, can take a DNA swap of an arrested individual – who has not been convicted.

The Maryland Court of Appeals stated the 4th amendment, which bars unreasonable searches, protects people who haven’t been convicted from having to provide DNA evidence.  In addition, the court stated, “Although arrestees do not have all the expectations of privacy enjoyed by the general public, the presumption of innocence bestows on them greater protections than convicted felons, parolees or probationers.”

The Maryland Court of Appeals further explained that DNA samples “contain a massive amount of deeply personal information.”

 

Leave a comment

Filed under civil rights, Privacy Rights, waiver

D. Minn Court Holds Defendant in Contempt (ESI)

Multifeeder Tech. Inc. v. British Confectionery Co. Ltd., No. 09-1090 (JRT/TNL), 2012 WL 4135848 (D. Minn. Sept. 18, 2012)

In this case, the Magistrate Judge recommended that an adverse inference be issued, that Defendant be held in contempt and that significant monetary sanctions be imposed upon his determination that two of Defendant’s employees had intentionally spoliated evidence by deleting certain information and by failing to reveal the existence of encrypted data.  Upon the parties’ objections, the District Court adopted in part the Magistrate Judge’s recommendation, but increased the monetary sanctions imposed.

While the details provided in these opinions are somewhat complicated, the bottom line is simple: two of Defendant’s employees were found to have intentionally spoliated evidence.  The spoliation was discovered by a forensic investigator who had been appointed by the court following Plaintiff’s first motion for sanctions.  At the time of that appointment, pursuant to an ESI protocol crafted by the court, the parties were each ordered to bear a portion of the costs of further investigation.

Briefly, the relevant incidents of spoliation included the use of wiping software by Defendant’s Director of Quality Assurance and the deletion of a PST file by the Vice President of Sales and Marketing.  The Magistrate Judge also found that the Vice President’s failure to reveal the existence of encrypted data on his laptop despite an order requiring that Defendant provide the court-appointed forensic investigator with “reasonable access to personnel and facilities,” which encompassed the custodian’s computers, amounted to spoliation:

[He] knew that an encrypted and passwordprotected [sic] volume was installed and in use on his computer, and he failed to provide any notice that such a volume existed.  Encryption software exists so that—without notice and a password—entities like CFS are unlikely to find and access the ESI stored on encrypted volumes.  Thus, the failure to provide any notice of the encrypted volume until November 2011 violated the ESI Protocol Order and amounts to spoliation of evidence.

(CFS was the court-appointed forensic examiner.)

In light of Defendant’s spoliation, the Magistrate Judge recommended that an adverse inference be imposed at trial and that Defendant be held in contempt and required to pay $25,000 to the court and $475,000 to the plaintiff.  The Magistrate Judge’s order took into account Plaintiff’s “reasonable expenses” caused by Defendant’s actions, including the significant fees of the forensic examiner.

Both parties objected.  Upon review, the District Court adopted the recommendations of the Magistrate Judge, in part, but increased the amount of monetary sanctions to be paid to Plaintiff.  The court indicated that the amount was increased for several reasons, including to better compensate Plaintiff for the significant costs of the forensic investigator and its attorneys’ fees and in light of the court’s consideration of other circumstances, such as the “significant prejudice” suffered by Plaintiff (which the District Court determined could not be mitigated to the extent indicated by the Magistrate Judge) and the fact that this was not the first sanctions order in this case.

The District Court largely rejected Defendant’s assertion that Plaintiff was “at least partially responsible” for the investigator’s “ballooning costs” (Plaintiff initially estimated the cost of the investigation would be around $10,000 + travel) and that some portion of the fees were not reasonably attributable to Defendant because of Plaintiff’s failure to timely inform Defendant or the Court that the fees would be far greater than expected.  Despite acknowledging the disparity between the estimated and final cost and that Plaintiff should have disclosed the “exploding” costs sooner, the court ultimately determined that it was largely Defendant’s conduct that resulted in the extensive fees: “It is no fault of Multifeeder that documenting the extent of British’s drive wiping was extremely time consuming.”

Accordingly, the court raised the sanction to $600,000, an amount which “represents reasonable expenses and attorneys’ fees because it encompasses much of CFS’s current unpaid invoices, at least some past paid amounts by Multifeeder to CFS, and reasonable legal fees and expenses in litigating this discovery dispute.”  The court also ordered Defendant to pay the recommended $25,000 to the court.

Indicating its reluctance to modify the previously imposed ESI protocol which ordered Plaintiff to pay a portion of the investigator’s costs, but recognizing that the fees owed could financially devastate Plaintiff absent receipt of the payment ordered from Defendant, the court ordered Defendant to make staggered payments to Plaintiff and that Plaintiff in turn pay the investigator its fees within a time certain.

A copy of the Magistrate Judge’s order is available here, a copy of the District Court’s order is available here.

via For Spoliation, Court Holds Defendant in Contempt, Orders $600,000 to be Paid to Plaintiff, $25,000 to be Paid to the Court : Electronic Discovery Law.

Leave a comment

Filed under District Court, electronic discovery, legal decision, sanctions, technology