BFDE

Workshop Abstract

Many disciplines in forensic science require experts to make subjective judgments about whether two visual patterns are sufficiently similar to conclude that both originate from the same source. An extensive body of experimental research conducted by cognitive and social psychologists, as well as empirical data obtained from recent research and forensic casework studies, clearly demonstrates that perceptual and cognitive judgments made by forensic examiners performing comparative analyses of fingerprints, hair, toolmarks, bitemarks, handwriting, and even DNA typing are susceptible to biasing influences that can improperly taint and sway the examiner’s decision making process. Understanding these various sources of bias and learning how to limit or minimize their influence is essential for improving the reliability and accuracy of decisions made by forensic experts. The other participants in the administration of criminal and civil justice - lawyers and judges - likewise need to fully appreciate and comprehend the negative impact that biasing influences may have on the outcome of a forensic expert’s analysis of evidence. In our adversarial judicial system, trial lawyers need this knowledge in order to effectively expose potential biasing influences when cross-examining an opposing forensic expert, and judges need it to be more mindful of the critical role that bias plays in producing miscarriages of criminal and civil justice. All forensic scientists and law enforcement officials must be keenly aware of the potential for bias and the types of internal procedures and protocols that can and should be implemented to minimize the impact of bias in forensic investigations and casework.

In this workshop, a multidisciplinary faculty of distinguished psychologists, lawyers, and forensic scientists will provide attendees with a clear picture and concrete examples of how and why bias affects the outcome of forensic investigations. Attendees will learn about the various experimental research studies that reveal the susceptibility of investigations to the prospect of psychological error due to cognitive and motivational factors, including confirmatory biases, dynamic influences, group membership, role conflict, and escalation of commitment. The uniquely persuasive power of confessions — even false confessions that are recanted and contradicted by other evidence — will be discussed in the context of basic and forensic psychology research which indicates that confessions corrupt lay witnesses and forensic science examiners across a range of domains, thereby increasing the risk of wrongful convictions.

Attendees will learn about practices that should be avoided and followed in order to minimize potential biasing influences and will hear about the strategic, operational and political challenges of running a governmental crime laboratory independent of any law enforcement agency.

Examples from actual forensic casework in both criminal and civil cases will be used to illustrate the impact of bias on the outcome of forensic examinations and the manner in which such opinions are reported or expressed in court. Since Daubert, on remand to the 9th Circuit, implicitly recognized that cognitive bias on the part of experts in civil cases is a factor affecting admissibility, the means by which lawyers should seek to exclude proffered expert opinion that has been infected by the precursors of bias and to impeach expert testimony that may have been tainted by bias, will also be discussed.

An experienced trial judge with extensive knowledge of forensic sciences will provide the gatekeeper’s perspective, discussing how trial judges in both criminal and civil cases should deal with serious questions of cognitive bias on the part of forensic experts. Gatekeeper decisions about admissibility, the use of cautionary jury instructions when serious issues of cognitive bias on the part of forensic experts have been raised during the trial, and whether to allow expert testimony from qualified psychologists about the effect of cognitive bias on judgments made by forensic experts will be addressed.

Finally, a former state prosecutor who became a federal public defender will discuss the obstacles he faced as the criminal defense attorney representing Brandon Mayfield, the Oregon attorney wrongfully charged with the 2004 terrorist train bombings in Madrid, and the impact forensic bias had on him and his client.

This is the second workshop organized by Mr. Sulner and presented at AAFS annual meetings. The first, entitled "Flawed Forensics: Recognizing and Challenging Misleading Forensic Evidence and Disingenuous Expert Testimony" was widely acclaimed. For details, click here.

About Andrew Sulner
Andrew Sulner is a board certified forensic document examiner and attorney who earned a Master of Science degree in Forensic Science and a Juris Doctorate degree (with Honors) from George Washington University. The Sulner name is associated with three generations of document examiners, and Andrew Sulner has over 30 years of experience in examining questioned and disputed documents on behalf of major law firms, banks, insurance companies and financial institutions, as well as federal and state law enforcement and regulatory agencies. Mr. Sulner, who is also a certified fraud examiner and former state prosecutor, has been consulted nationally and internationally as an expert in determining the authenticity of documents, and his testimony as a forensic document examiner has been favorably cited in numerous federal and state court decisions. Mr. Sulner's state of the art forensic document laboratory is located in the heart of New York City.

In addition to being a Diplomate of the Board of Forensic Document Examiners (BFDE), Mr. Sulner is a Fellow of the American Academy of Forensic Sciences (AAFS) and a member of the Association of Forensic Document Examiners, the Association of Certified Fraud Examiners, the National District Attorneys Association, and the New York, Florida, California and District of Columbia Bars. Mr. Sulner currently serves as Chair of the Jurisprudence Section of the AAFS, Vice-President of the BFDE, and Chair of the BFDE Ethics Committee; he is a past President of the Society of Medical Jurisprudence and Forensic Sciences. Mr. Sulner continues to serve the forensic science community as an active member of ASTM's Committee E-30 on Forensic Sciences and as a member of the Editorial Board of the Journal of Forensic Document Examination.

About Barry C. Scheck
Barry C. Scheck is a Professor of Law at New York’s Benjamin N. Cardozo School of Law and Co-Director of the Innocence Project, an independent non-profit entity affiliated with the law school. For twenty years he has served as a Commissioner on New York's Forensic Science Commission, which oversees all the state's crime laboratories. He is also a partner in the civil rights law firm of Neufeld, Scheck, & Brustin, and has represented clients in many noteworthy and highly publicized criminal and civil cases. He is a Past President of the National Association of Criminal Defense Lawyers and last year, the National Law Journal recognized him as one of the 100 most influential lawyers in America over the last decade.

Prof. Scheck earned a B.S. degree from Yale University and J.D. and M.C.P. degrees from the University of California at Berkeley. Over the past several years, Prof. Scheck has advised and worked with Conviction Integrity Units in District Attorney offices across the country, helping them address the need to "de-bias" re-investigations and decision-making when miscarriages of justice are alleged. The importance of this topic is reflected in the American Bar Association’s recent adoption of Ethical Rules 3.8 (g) and (h) that mandate prosecutors to disclose post-conviction any "material" evidence of innocence and to take affirmative action to rectify matters when "clear and convincing" evidence of innocence is discovered.

About the Board of Forensic Document Examiners
The Board of Forensic Document Examiners was established to administer a professional certification program designed to evaluate the knowledge, practical skills and abilities of forensic document examiners. Its goal is to provide a meaningful credential that the legal community can confidently rely upon when selecting a forensic document examiner. Board certification is awarded to individuals who successfully pass the proctored written and performance examinations.

The BFDE is the first forensic document examiner certification board to be accredited by the Forensic Specialties Accreditation Board (FSAB), with the hallmark of being the only board for document examiners that proctors all phases of its certification testing. Initiated with a grant from the National Institute of Justice, the FSAB evaluates certification programs sponsored by the forensic specialties. Boards meeting the FSAB standards are awarded accreditation.

The BFDE certification program is on a voluntary basis and is open to any document examiner who meets the prerequisites for testing. The BFDE requires all of its certificate holders, known as Diplomates, to adhere to a prescribed Code of Ethics and Professional Responsibility.  

About the American Academy of Forensic Sciences
American Academy of Forensic Sciences is one of the world's largest and most renowned organizations of forensic scientists, with nearly 6,000 members in 57 countries. As the world's most prestigious forensic science organization, the AAFS serves as the focal point for public information concerning the forensic science profession. To learn more about the AAFS, visit http://www.aafs.org.