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.