Tulsa Attorney BlogHow Changes in Forensic Science May Affect McGirt Retrials

Forensic Science Has Led to Improvements

Video Transcribed: How changes in forensic science may affect McGirt retrials. I’m Oklahoma Lawyer James Wirth, and that is the topic that we’re discussing today. McGirt of course is the July 2020 decision that found that most of northeast Oklahoma is still reservation land tribal territory, where the state of Oklahoma lacks jurisdiction to prosecute crimes committed by or against Native Americans.

As a result of that, many cases have been, convictions, sentences overturned, and many of those are being retried. Some of these cases are recent. Some of them are very old. So it becomes relevant, what changes have there been in forensic science since then? If we’re trying a case again now in 2022 that was originally tried in 1980, how is that evidence going to be evaluated differently?

The information I’m getting is actually from a Bar journal article. That’s in the Oklahoma Bar Association Journals written by Brian Gestring. He talks about different types of forensic science and how they’ve evolved a little bit over the years, and it’s very interesting.

What he notes is that there are some improvements in some areas. For instance, for DNA testing, now they’re able to handle if there’s multiple DNA in the mixture, current forensic science can handle that much better. It was not possible to do that before.

Also, if we’re talking blood, semen, and saliva, a smaller amount of samples can provide results now than could before, and that may be relevant for having better evidence, which could help the prosecution, could be exculpatory, depending on the circumstances of the case.

Assuming it was a rightful conviction in the first place, then you assume presumably, that would help the prosecution. Obviously, not every conviction is always completely accurate, which leads to the possibility the results could turn out differently now.

But what’s more interesting, perhaps more disturbing is that a lot of the forensic science that was good or thought to be good, at least by the court system in the past, where they’d bring in experts that would testify as experts and say this must be the case because of this turned out to be not that accurate, sometimes faulty, sometimes misleading to the extent that now in 2022, that type of evidence would not even be allowed in. So if we’ve got a case from 1980 that brings in that type of evidence, a retrial in 2022 may be difficult if the conviction was based on that.

The types that he’s talking about in his article are gunshot residue. What he says about that is that gunshot residue on the hands of suspect shooters has largely fallen out of favor, not really utilized, not really believed to be all that helpful.

Also talking about lead bullet lead analysis, that’s where you analyze a bullet and you look for marks on it that are tried to be matched to the gun, saying that this bullet can be matched to this gun. What he notes about that is that the FBI ceased performing bullet lead analysis in 2005, after the National Research Council questioned the FBI’s statistical interpretation of the results. Essentially it was not found to be reliable, so they stopped using it.

Now ideally, they would determine reliability ahead of time and the court requires them to prove reliability before you’re able to bring in an expert to testify to it, but in forensic science and criminal prosecution, we’ve seen over the years, this happens over and over again, where the courts allow in this pseudoscience, and ultimately it’s disproven later after conviction, sometimes after death penalties.attorney in Oklahoma

The next one is bite marks and hair analysis. He notes there that it’s fallen out of favor. As far as to bite mark analysis and microscopic analysis of human hair, studies demonstrated that examiners have trouble identifying a patterned injury, even in a bite mark, and they demonstrated inconsistency.

So essentially there’s no reliability in those as far as experts go. And although that was allowed in previously as good evidence, perhaps enough evidence to convict somebody, in 2022, it’s much more scrutinized, much less likely that you’re going to be able to get in an expert to testify as to those things.

So, that could mean that these cases can be more difficult to prosecute. It could mean that in the future with better forensic science and the bad forensic science not being utilized, hopefully, we’d have fewer wrongful convictions, but that’s just interesting to think about how these cases were tried in the past and are being tried again, although it’s the same case, may be very different trials.

All right. If you’ve got any questions about any of this or a criminal case that is pending in Oklahoma, you’re going to want to talk to an attorney about that privately, confidentially. To get that rule with somebody at my office, you can go online to makelaweasy.com.

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