in civil contexts, such as product liability. Additional standards, particularly in DNA, continue to be developed through the Scientific Working Group on DNA Analysis Methods, a predecessor group to the OSAC.
As a standards repository, the OSAC Registry is an ideal starting place for lawyers to get a bird’ s eye view of what standards are available( and what standards aren’ t), and the trial bar as a whole should be familiar with it.
Why They Matter
The importance of standards to the legal system cannot be in doubt to any lawyer who engages with scientific or technical expert evidence. The Supreme Court itself made that clear in Daubert v. Merrell Dow Pharms., Inc., when it held that“ the existence and maintenance of standards controlling [ a ] technique’ s operation” is one factor courts should ordinarily consider in determining admissibility of scientific evidence. Frye courts, too, have looked to standards in admissibility determinations. Standards— both those that exist and those that don’ t— play a key role in the admissibility of expert evidence, and lawyers would be wise not to neglect that.
But their utility is not limited to admissibility. There are forensic standards on highly litigated topics like method validation, testimony, training, and many other critical areas of forensic science, many of which can play key roles in direct and cross examination, post-conviction litigation, expert qualification, and more. Obviously, virtually every forensic science standard may be of potential interest to criminal defense counsel, and the criminal defense bar should accordingly be broadly familiar with the playing field. For the civil plaintiff’ s bar, some OSAC subcommittees which may be of more particular interest include:
• Fire and Explosion Investigation
• Ignitable Liquids, Explosives, & Gunshot Residue
• Forensic Toxicology
• Medicolegal Death Investigation
Some of these standards are already regularly appearing in civil litigation. For example, the National Fire and Protection Association Guide for Fire and Explosion Investigations 921(“ NFPA 921”) has regularly been raised and been widely accepted by courts in insurance disputes involving fires. More recently, ANSI / ASB Best Practice 037, Guidelines for Opinions and Testimony in Forensic Toxicology(“ ANSI / ASB 037”), a document which outlines“ inappropriate” and“ appropriate” testimony for forensic toxicologists, has also appeared in civil litigation. Plainly any lawyer who either puts on or is in a position to challenge a forensic toxicologist should be aware of a standard which states certain conclusions“ are considered to generally be inappropriate opinions and / or testimony for a toxicologist to offer, as they currently lack consensus within the scientific community or are generally beyond the scope of the toxicologist’ s expertise.”
These are only some examples of the kinds of standards currently in use today. Ultimately, whether they are used by or against a party, all litigators need to be aware of the potential applicability of these standards to their cases.
Resources
Making use of forensic science standards begins with understanding them— a sometimes-tall order given their novelty to many lawyers, to say nothing of the often-highly technical nature of these documents in the first instance. Luckily, there are a number of excellent resources that can help.
Standards Implementation Legal Community. As part of its website, OSAC maintains a robust FAQ for lawyers, which walks through the standards process and elucidates key points for lawyers. This is an incredibly useful starting place for litigators new to the world on forensic standards.
Standards Walkthroughs. There are guides to both ASTM and ASB standards available on the OSAC website. These documents highlight different sections of standards and what they contain. They can serve to help lawyers break down what can often be complex and technical documents and help ensure the documents are being read as intended.
Factsheets. AAFS has created a onepage fact sheet for almost every standard on the OSAC Registry that breaks down each one into plain language. While these are not substitutes for the standards themselves, they can be a very helpful starting place.
Implementation Checklists. These documents, created by AAFS, break down standards on the OSAC Registry into component parts, identify whether they are requirements, recommendations, or informational; and provide space for labs to internally identify objective evidence of compliance. While completed checklists( which can be sought and potentially received in discovery) are obviously the most useful, even the blank checklists can help lawyers ensure they know what each part of a standard means.
Process Maps. These NIST-produced documents offer a graphical representation of the critical decision points and steps taken in a number of forensic disciplines. Currently, there are process maps available for: Fire Investigation, Seized Drugs, Human Forensic DNA Analysis, Footwear & Tire Examination, Firearms, Friction Ridge, Handwriting, and Speaker Recognition. These documents can help lawyers not only understand a forensic process better but also help contextualize where and how a standard fits into that process.
Conclusions
Whether it’ s loved or feared, embraced or challenged, lawyers must get on talking terms with science. For forensic science, an important step in building the necessary literacy— and if needed, gaining the necessary tools to put forward scientific evidence or challenge it— is learning about forensic science standards and finding out how best to make use of them.
Citations available on request.
The Trial Lawyer 27