No doubt, anyone who is reading this has read about or seen news coverage of individuals being released from incarceration through the use of DNA evidence that exonerated that individual.  It is a true case of wrongful conviction and is becoming more common.  These cases raise the question of the reliability of scientific evidence presented at trial.  Within the past year, a Congressionally mandated report from the National Research Council found serious deficiencies in the nation’s forensic science system and called for major reforms and new research.   The report found that mandatory certification programs for forensic scientists are lacking, as are strong standards and protocols for analyzing and reporting on evidence. There is also a scarcity of peer-reviewed studies establishing the scientific bases and reliability of many forensic methods.  You can read an article about the report by clicking here http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12589

Essentially, the report determined the only reliable source of scientific evidence was DNA evidence.  Here we are, six months later, with a new report about DNA that could throw the NRC’s determination down the drain.  In Israel, a study was conducted to determine whether DNA evidence can be fabricated.  The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.  Bottom line, the Israeli study shows that even DNA can be altered in a crime scene.  To review the article, click here http://www.nytimes.com/2009/08/18/science/18dna.html?_r=2

These two articles taken together may have a devastating effect on the practice of law.  Lawyers should be challenging the physical evidence against criminal Defendants such as fingerprints, blood spatter, tire comparisons, and other forms of “science” that are introduced against them.  Since the studies are so new, it is unclear how the courts will rule on these issues, but they should, at the very least, be raised and tested.

This is the day of CSI and Law & Order.  Most jurors are seeking hard proof to the hard crimes for which they sit in judgment.  Perhaps the studies reflect that we, as citizens, seek more stringent regulation of the so-called “scientific proof” that is brought against individuals.

I notice over and over again that consumers have no concept of what they are purchasing when they buy limited tort insurance.   The fundamental difference between limited tort and full tort auto insurance is the right to sue for pain and suffering.  The insurance industry wants you to buy limited tort insurance because you give up your right to sue for pain and suffering in the typical auto accident.  And when you feel great and want to save money, that seems like a bargain.  Interestingly enough, the insurance industry is required to advise you in writing of the cost comparison between limited and full tort insurance.  Yet of all the cost comparison forms that I have reviewed for clients not one has had the cost figures filled out.  Instead there are blanks where the costs would go.  Why don’t they fill this out?  Because for a hundred, or maybe a couple hundred dollars more per year, the consumer would have the right to sue for pain and suffering, which can amount to as much as $50,000 or more.   So limited tort is a much safer bet for the insurance company.  Why else would they refuse to fill out the cost comparisons required of them by Pennsylvania State Law?  Think of this before you make that limited tort election, and if you made it blindly before, change your election to full tort now.   It is too late to do so when you have a herniated disk from a rear-ender and the insurance company is arguing that it was not a serious accident and trying to avoid paying anything besides the cost of repairing your car even though you can barely get out of bed.

New technology has allowed for new treatment methods for probationers, including the use of polygraph examinations.  When used appropriately, they can be a useful tool to help the reformation of offenders, especially sex offenders.  But, what happens when the polygraph examination goes too far?  What happens when it is simply a tool to gather information about past criminal conduct? 

The Pennsylvania Superior Court has issued an opinion in a case handled by Elizabeth L. Lippy that polygraph examinations that are used to gather information about offenses other than those that the Defendant has plead guilty to or been found guilty of are unconstitutional.  In other words, because the questions posed to Defendant were about his sexual history that did not pertain to the charge to which he plead guilty, the polygraph was unconstitutional.

The opinion is attached in a PDF format if you are interested in reading it in its’ entirety.  Should you have any questions about sex offender treatment, sex offenses, or other criminal offenses, please feel free to contact Fairlie & Lippy, P.C.

Opinion deeming polygraph unconstitutional