Minnesota Supreme Court Criminal Blog

In the period leading up to the Court’s decision in State v. Hull, the forensic science issues –  challenges to the reliability of fingerprint and handwriting analysis; the background rumbling of the National Academy of Science’s seismic forensic science report — attracted plenty of notice, including mine.  But in the end, State v. Hull makes mainly a great whooshing sound, as the Court’s opinion lets most of the air out of the case.  The facts of Hull are gruesome and chilling — not necessarily the best carrot with which to entice the Court out onto the law’s ledge.  Still, Hull leaves room for future Frye I challenges to fingerprint and handwriting evidence, and it exposes some interesting crevices in confrontation doctrine.

Real Life Noir

Justice Paul Anderson’s majority opinion spends 13 pages describing the facts, which have a made-for-tv feel.  Jeremy Hull killed Lewis Wilczek, burned and buried Wilczek’s body and stole the dead man’s identity.  Hull worked out the details of the crime in advance in a writing that came to be known as “the plan.”   The defense moved before trial for a Frye-Mack hearing on the state’s fingerprint and handwriting evidence.  The trial court denied the request for a prong one or Frye or general acceptance hearing; however, the evidence on prong two, the Mack or foundational reliability hearing, was capacious–the testimony took up three days.  The trial court ruled against the defense on prong two, and at trial, the state’s experts identified the fingerprints and handwriting on “the plan” (and other objects) as Hull’s.

After Hull was convicted, the National Academy of Sciences issued its landmark report on forensic science.  The parties in Hull agreed that the Court could take note of the report in its consideration of the case.  The NAS report raised similar criticisms of forensic fingerprint analysis and document analysis as had been raised by the defense at the Mack hearing:  lack of sufficient validation studies, examiner bias, scientifically unsubstantiated claims of individualization.

The evidence at trial also included testimony about certain of Wilczek’s statements.  One was a statement that Wilczek made the day he went missing.  He told a friend that he had plans to meet Hull, and if the friend did not hear from Wilczek by a certain time, then something had gone wrong and the friend should call 911.  The second statement involved Wilczek’s report to the police, some months prior to his death, regarding a theft from his business.  On cross examination by Hull’s counsel, the testifying officer conceded that the suspect Wilczek named at the time of the theft was someone other than Hull.  On re-direct, the prosecutor asked the officer if Wilczek had mentioned Hull’s name as well.  The officer agreed that Hull’s name had “come up.”

Hull Freezes Over

The majority concludes that dark, creepy facts trump shaky science.   The Court declines to say whether the trial court blundered in denying Hull a prong one hearing because any error in admitting the forensic evidence was miniscule when measured against the mountain of other evidence damning to Hull.  The part of the majority’s Hull analysis that is likely to continue reverberating is tucked away in footnote 3:

“We agree with the position taken by Justice Meyer in her concurrence that ‘lengthy use of a method by law enforcement, and even lengthy unquestioning acceptance by courts, does not [by itself] exempt expert evidence from scrutiny under the first prong of Frye-Mack,’ but we need not decide the issue of whether the district court erred, because, as explained below, any such error was harmless.“

At the oral arguments in Hull, the state asked the Court to adopt a rule that only novel, or new, scientific techniques should be accorded a prong one Frye hearing.  The Court’s answer is an unequivocal no.  The critics of the ACE-V fingerprint methodology, and every method of handwriting analysis, live to fight another day.

When they pick up the fight, they will doubtless gird themselves with the language of Justice Meyer’s Hull concurrence.  Justice Meyer would have reached what she calls the case’s “substantive issue”:  whether the trial court erred in denying Hull a full Frye-Mack hearing.  She concludes that it did.  The evidence that Hull was permitted to present on prong two, writes Justice Meyer, raises “serious doubts” whether ACE-V fingerprint analysis and handwriting analysis can meet prong one’s reliability requirement.  She quotes at length, and to devastating effect, from the NAS report, including that body’s lament that courts “appear to be loath to insist on [sound] research as a condition of admitting forensic science evidence in criminal cases, perhaps because to do so would likely demand more by way of validation than the disciplines can presently offer.”

After Hull, no defense lawyer worth his or her salt will fail to request a full-blown Frye-Mack hearing in any case where fingerprint or handwriting evidence is pivotal.

Confrontation Convolutions

The first of the confrontation issues involves Wilczek’s comments to a friend about his plans to meet Hull.  The controversy is readily resolved–the statement was not testimonial under Crawford.   A parenthetical issue is actually more interesting.  At trial, Hull objected on hearsay but not confrontation grounds to the friend’s testimony.  Minnesota’s courts have not yet  decided whether a hearsay objection is sufficient to preserve a confrontation clause objection on appeal.  Hull’s appellate counsel apparently assumed that it was not, and that the standard of review would be plain error — the heightened standard applicable when no objection has been made at trial.  Maybe, maybe not, says the Court, but since no one has raised the standard of review on appeal, we will apply plain error analysis.  So, practitioners, take note:  the ball is still live, but you are well advised to make separate hearsay and confrontation objections.

The second confrontation issue involves the testimony of the police officer who investigated the theft from Wilczek’s business.  The State contended that Hull opened the door to the officer’s re-direct testimony by eliciting on cross that Wilczek did not suspect Hull at the time of the theft.   The majority pokes holes in this this argument, pointing out that it was the prosecutor who introduced the evidence about the theft report in the first place.  Moreover, says Justice Anderson, even if Hull could be said to have opened the door, the Court has not yet decided whether a defendant’s opening the door to a constitutionally inadmissible statement operates to waive his confrontation right.  Once again, the Court does not actually get to the issue, since any error in admitting the testimony was insignificant in light of the overwhelming evidence against Hull.

Chief Justice Gildea, joined by Justice Dietzen, writes in concurrence to say that she would have reached this issue.  She concludes that Hull opened the door to the evidence that hurt him.  Justice Gildea reviews a split in the federal circuits on the question whether a defendant’s opening the door waives his confrontation protection, and declares herself on the side of the circuits which hold that it does.  Otherwise, she explains, a defendant could mislead a jury by introducing only parts of an out-of-court statement and employ the confrontation clause to keep the more damaging bits away from the jury.

In Short

So that is State v. Hull, in which many interesting things percolate, and not not much gets decided (unless, of course, you are Mr. Hull).  In spite of this, it is likely that we will be talking about Hull footnote 3 for some time to come.

As we’re able, we’re going to take a look at cases that were argued prior to our launch but that have not yet been decided by the Court.  The principal issue in State v. Hull was whether the trial court should have permitted the defense a first prong Frye-Mack hearing on the general acceptance of forensic fingerprint and handwriting evidence.  The facts are complicated and gruesome; Jeremy Hull killed Lewis Wilczek, burned and buried Wilczek’s body and stole the dead man’s identity.  The state claimed that Hull had worked out the details of the crime in advance in a writing that came to be known as “the plan.”  For additional details, check here and here. At trial, Hull conceded causing Wilczek’s death but denied that the killing was premeditated or intentional.  The case is before the Court on direct appeal.

Even though the trial court nixed a prong one hearing, the evidence on prong two, the Mack or foundational reliability hearing, took up three days.  On fingerprints, the state called Joshua Bergeron and Glenn Langenburg of the BCA and Cedric Neumann, Ph.D. The defense called Simon Cole, Ph.D. On handwriting, the state called Lisa Hanson of the BCA and the defense called Seton Hall law professor Mark Denbeaux.  After Hull was convicted, the National Academy of Sciences issued its landmark report on forensic science.  The NAS report raised similar criticisms of forensic fingerprint analysis and document analysis as had been raised by the defense at the Mack hearing:  lack of sufficient validation studies, examiner bias, scientifically unsubstantiated claims of individualization.

Assistant State Public Defender Jodi Carlson asked the Court to retain jurisdiction of the case and remand for a prong one hearing, as had been done in State v. Roman Nose, 649 N.W.2d 815 (Minn. 2002).  She ran headlong into a thicket of skeptical Justices, who appeared impressed by the volume and weight of the entire evidence against Hull — 54 witnesses and 300 documents.  Even Justice Paul Anderson, who expressed some of the deepest misgivings about the forensic science, reminded Carlson that she had “been here many times on many first degree murder cases and I’m not going to belabor the record but it is a bad record.”   Justice Magnuson put the matter to Carlson squarely:  ”But counsel there’s also the horrific evidence of what your client did with the body afterwards, his admissions to his girlfriend, her testimony about her participation in it, I mean, the evidence . . . could be considered overwhelming without regard to the fingerprints and without regard to the handwriting.  In the circumstances, why should we engage in the kind of analysis that you want?  Isn’t it almost asking us for an advisory opinion?”

Justices Magnuson and Dietzen both seemed to be looking for some quantitative benchmark that fingerprint analysis is not widely accepted among scientists.  Justice Magnuson:  ”[Y]our claim is you should have had a hearing, at which point you would have presented certain evidence and what you’ve got is one expert’s opinion and he raises some questions but — I just want to make sure I’m not missing it — there is no evidence in the record in the form of an offer of proof that fingerprints are widely not accepted, correct?”  Justice Dietzen:  ”I didn’t see testimony as to whether there are 500 experts who say it produces scientifically reliable results and there’s 100 that say it doesn’t. Am I right that that is what the first prong test goes to?”

If the Justices pushed Carlson on harmless error, they pressed Parker to engage on the science.  Parker demurred. To get to a prong one Frye hearing, she insisted, the scientific technique involved must be novel, meaning new. Neither fingerprinting nor forensic document analysis is new.  Imperfections like those complained of by the defense can be addressed in a prong two Mack hearing.

Asked Justice Page:  ”Would your argument be different here if the NAS report had been available and submitted to the court?”

“Absolutely not,” said Parker.

Minnesota’s Frye-Mack case law — including, Parker pointed out, State v. Loving, 775 N.W.2d 872 (Minn. 2009), decided just this past December — speaks both of “novel” and “emerging” science to describe the threshold for a Frye hearing; Parker and the Justices debated the meaning of these terms.

Justice G. Barry Anderson:  ”We say ["novel"] but it’s also true that over the years we’ve had scientific evidence and then we’ve discarded it because it’s been proven to be unreliable . . . What the defendant here is arguing, it may not be novel in the traditional, classic sense but this issue of whether it’s accurate, that’s novel.”

Justice Meyer:  ”Isn’t it more correct to say it deals with emerging science?  Science is always changing and the Court has to be the gatekeeper on junk science.”

Some of the Justices appeared troubled by the state’s argument that, at this juncture, the novelty threshold precludes Minnesota courts from conducting a Frye hearing on fingerprints and handwriting.  Justice Paul Anderson:  ”[L]et me quote from the report . . . ‘merely following the steps of the ACE-V [fingerprinting procedure] does not imply that one is proceeding in a scientific manner or producing reliable results’ . . . I can understand you say, this is not the case.  I can accept that.  But I’m having a hard time with your broader argument, don’t worry about it.”

Justice Meyer:  ”Why should we not require a full evidentiary hearing on whether science has now evolved and changed, as we hope it does, to help us with evidentiary questions?  [The NAS report] is very disturbing to me.  For us to say it doesn’t matter because we’ve already accepted fingerprint analysis . . . just doesn’t answer the question. Should we still accept it . . . ?”

Justice Paul Anderson:  ”What’s emerging here is that what’s been used in the past, the validity and the reliability and the replicability of the technique, is now severely in question.”

Again quoting from the NAS report, Justice Paul Anderson: ” ‘[C]ourts appear to be loathe to insist on such research as a condition of admitting forensic evidence in criminal cases’ — talking about valid[ation] research — ‘perhaps because to do so likely would demand more by way of validation than the disciplines can presently offer.’  It’s an indictment of the courts for not standing up and having high standards with respect to scientific evidence . . . If not us, who?”

The Frye threshold has been, and should remain, novelty, or newness, Parker reiterated.  She predicted a rash of Frye challenges were the Court to endorse a different standard.  She asked the Court to adopt a rule, namely, that a party who concedes that a scientific technique is not novel is not entitled to a Frye hearing.