OSAC-approved Testimony

According to the charter of the Department of Commerce's Organization of Scientific Area Committees for Forensic Science, better known as OSAC (but not to be confused with the Department of State's Overseas Security Advisory Council, also known as OSAC), "[t]he aims of the OSAC are to:

• populate the OSAC Registry of Standards
• promote the use of OSAC-endorsed standards by the forensic community, accreditation and certification bodies, and by the legal system
• provide insight on each forensic science discipline’s research and measurement standard needs
• enlist stakeholder involvement from a broad community; and to [sic]
• establish and maintain working relationships with other similar organizations. 1/

OSAC is not a regulatory agency, and it does not review the work of forensic science laboratories or practitioners. Yet one court thought otherwise. In United States v. Lang, 2/ the defendant moved to exclude testimony from "the Government's firearms and toolmark expert—M.L. Cooper." The government wanted "Mr. Cooper ... to testify about what latent prints and DNA are and the factors that influence whether a latent print or DNA are left on a surface." Evidently, the point of the testimony was to explain the absence of fingerprint and DNA evidence in the case because of "the difficulty in obtaining latent prints and DNA from ammunition and the low rate at which such types of trace evidence are recovered."

Senior Judge Raymond L. Finch of the District Court of the Virgin Islands (formerly the court's Chief Judge) denied the motion. His unreported opinion on his pretrial ruling states that

On direct examination, Mr. Cooper testified that he reviewed a Crime Scene Evidence Report prepared by VIPD Officer Don Peter, photographs of the five buckshot shotgun shells recovered from Defendant's apartment, and photographs of the black garbage bag that contained the shells. He also testified that he confirmed his resulting opinion with OSAC (emphasis added).

This was not all that Mr. Cooper, and hence the court, had to say about OSAC. Judge Finch wrote that "Mr. Cooper is currently a member of the Association of Firearms and Toolmark Examiners—an organization that according to Mr. Cooper deals with the recovery of trace evidence—and maintains contact with the Organization of Scientific Area Committees ('OSAC')" (emphasis added). The nature of Mr. Cooper's "contact" with OSAC--or is it AFTE's "contact"--was left unstated, but the court thought it was important enough to add the footnote that "OSAC coordinates the 'development of standards and guidelines for the forensic science community to improve quality and consistency of work in the forensic science community.'"

Relying on an OSAC-approved standard for an opinion is one thing. But there are no standards on how to ascertain from a "review of the Crime Scene Evidence Report and photographs" that police would not be expected to recover a latent fingerprint or an adequate quantity of DNA to analyze, and being in "contact with" OSAC does not tell the court anything about the expertise of a witness or an organization.

Other parts of the opinion are more comprehensible (but not necessarily correct). The court wrote that the testimony "satisfies the reliability test under Daubert" just because it "will be based upon his more than thirty years of experience working in the field of forensic science." Experience can be a good thing, but it is not the scientific validity discussed in Daubert. More plausibly, the court moved away from its equation of experience to science. It stated that Mr. Cooper's methodology did not have to satisfy Daubert after all. "Rather than [applying] a methodology that satisfies the requirements of Daubert," Mr. Cooper would do little more than recount his personal experience with "the recovery of trace evidence" That much, the court insisted, "is entirely appropriate under Rule 702. See United States v. McNeil, 2010 U.S. Dist. LEXIS 290, at *8, 2010 WL 834667 (M.D. Pa. Jan. 5, 2010) ('To the extent that the expert has knowledge of the frequency of firearms without latent prints, the expert [can] testify to that knowledge.')."

NOTES

1. OSAC Charter and Bylaws, Sept. 26, 2019, Version 1.6.
2. Crim. Action No. 2015-0013, 2016 WL 1734087 (D. V. I., Apr. 28, 2016).