Garrett-authored amicus brief highlights need for improved judicial scrutiny of forensic expertise, evidence

August 2, 2018Duke Law News

Professor Brandon Garrett, a leading scholar of criminal justice outcomes, evidence, and constitutional rights, has submitted an amicus brief to the North Carolina Supreme Court that argues for stronger examination of the reliable application of fingerprint and other expert evidence.

Twenty-six leading forensic analysts, statisticians, and researchers also signed the brief, including Professor Nita Farahany JD/MA ’04 PhD ’06, who directs the Duke Initiative on Science and Society, and Pate Skene ’13, an associate research professor of neurobiology at Duke.

The brief was filed in a case in which testimony of a latent fingerprint examiner helped to convict the defendant. The N.C. Court of Appeals affirmed the conviction last year, but found error in the admission of the fingerprint testimony.

“The goal of the brief was to emphasize to the court that only expert work that is reliably applied to the facts should be admitted at trial,” said Garrett, the L. Neil Williams, Jr. Professor of Law. “Wrongful convictions can and have resulted when forensic methods are poorly applied in criminal cases.”

North Carolina rules of evidence require that forensic evidence presented in court be “the product of reliable principles and methods” and that an expert testifying about it “has applied the principles and methods reliably to the facts of the case.” However, the fingerprint examiner who testified in the case, North Carolina v. McPhaul, made “unequivocal statements” that the defendant was the source of prints found on certain pieces of evidence. Despite repeated questioning by the defense attorney, the prosecutor, and also the trial judge, the fingerprint examiner still could not explain what was done during the comparison process or how this conclusion was reached.

Garrett said the appellate court was correct in ruling that the fingerprint testimony should have been excluded at trial. “The reliability of a method like fingerprinting depends on the skill, experience, and the work done by the examiner,” he said. “North Carolina has adopted Rule 702 in the rules of evidence, following the federal approach. This ‘reliability rule’ asks the judge to ensure that the application of methods to the facts is itself reliable.  Even if the method itself is accepted, the person’s work in a given case must be reliable.”

Garrett, who joined the Duke Law faculty on July 1 from the University of Virginia, is leading an interdisciplinary project to examine criminal justice research and policy in North Carolina. He is also engaged in research and education projects on forensic science as part of the Center for Statistics and Applications in Forensic Evidence (CSAFE).  As part of that work, he wrote a piece in UCLA Law Review Discourse about the McPhaul case earlier this year.