This topic focuses around the larger area of what has become known as “junk sciences.” The point is to apply existing failures in fields such as Cell Site Location Information (CSLI) and Firearm Ballistic Markings towards investigation tools such as Roundup .
CSLI
While some court’s have repeatedly pushed back against the government for attempting to mislead people on the topic, the government shamelessly continues to push cell site location information (CSLI) as something unquestionably accurate. Yet another piece of ‘junk science’ pushed as being beyond contestation. Therefore, the only way to combat this is with knowledge.
The judge wrote that “multiple factors can affect the signal strength of a tower” and the FBI special agent’s “chosen methodology has received no scrutiny outside the law enforcement community.” As a result, the court concluded that the government had not demonstrated that testimony was reliable, Lefkow wrote in an Aug. 29, 2012, opinion and order.
“Lefkow also said that Raschke had offered no proof that the tracking technique works, other than his assurances that he and other FBI agents have successfully used it to find people both living and dead, and had done so with a “0 percent” rate of error.”
~ See Journal, A. B. A. “Prosecutors’ Use of Mobile Phone Tracking Is ‘junk Science,’ Critics Say.” ABA Journal, https://www.abajournal.com/magazine/article/prosecutors_use_of_mobile_phone_tracking_is_junk_science_critics_say . Accessed 18 Nov. 2020.
Likewise, other cases have expanded upon the above notion concerning bald assertions by the government. Such is the following.
“Granulization theory has not been subject to scientific testing or formal peer review and has not been generally accepted in the scientific community. These factors weigh against a finding of reliability.”
Other legal articles with references.
- https://www.garrettdiscovery.com/determining-location-mobile-phone/ .
- See Favor, Tipping the Scales in Your. Cell Phone Tracing Method Not Admissable in Court. 11 Sept. 2012, https://fairlielaw.com/cell-phone-tracing-method-not-admissable-in-court/ .
- See “Determining Radio Frequency Coverage in Criminal Cases.” Oklahoma Bar Association, 3 Jan. 2020, https://www.okbar.org/barjournal/jan2020/obj9101miletic/ . References to multiple cases on the same topic.
Firearm Ballistics Markings
Another well laid out article from a practicing lawyer, with references and quotations, comes from https://kmlawfirm.com/2020/03/10/cell-site-evidence-is-junk-science-and-a-recent-dc-opinion-could-help-keep-it-out-of-court/ .
There is a multi-point breakdown of a fine judgement made by the court as to the reliability of firearms ballistic markings/matchings, and why it was mainly useless. The author’s goal is similar to this article. To detail how the same credibility weaknesses of CSLI data would apply to every field.
The breakdown involves the Edelman ruling from UNITED STATES V. MARQUETTE TIBBS, No. 2016 CF1 19431, District of Columbia, Sep. 5, 2019. This 57 page ruling is an essential read for those combating any governmental “just trust us” arguments.
Additional articles concerning the same topic:
- https://sites.law.duke.edu/forensicsforum/2019/09/11/tibbs-ruling-on-firearms-testimony-a-cannot-exclude-limitation/
- https://www.kaiserdillon.com/takeaways-from-a-refreshing-rejection-of-junk-science/ .
Roundup, Torrential Downpour, et al
Many arguments over the years regarding the Roundup suite and it’s components include identical, or near identical verbage as used in other junk areas. Axioms such as the investigations being “100% accurate” or “0% failure rate”. Moreso with topics like Roundup, where to date no defense has ever been allowed to conduct an independent review away from manipulation by law enforcement. Various reasons are given. Succinctly that defendants simply don’t need to see it, or that allowing discovery would hinder investigations. These are simply lies from both a legal and technical perspective which will be addressed elsewhere.
Many of these “sciences” used in court suffer from the same basic failings. One being the usual lack of testing or verification outside the relevant communities for the fields. The people pushing these ’techniques’ or ‘sciences’ have personal and financial interests tied to having people accept their work as they say. Just as some people will say a defendant’s word is meaningless as they wish to avoid conviction, so too must that apply to ’experts’. Reality is simply that ’experts’ within fields which are challenged as pushing trash should have the heaviest burdens of proof.
At minimum it should be forefront as stated by Judge Edelman for all similar evidentiary hurdles (reviews de novo):
‘Our Court of Appeals has noted that “[t]here is no 'grandfathering' provision in Rule 702.” Motorola, 147 A.3d at 758. Yet, the case law in this area follows a pattern in which holdings supported by limited analysis are nonetheless subsequently deferred to by one court after another. This pattern creates the appearance of an avalanche of authority; on closer examination, however, these precedents ultimately stand on a fairly flimsy foundation.’
See UNITED STATES V. MARQUETTE TIBBS, No. 2016 CF1 19431, District of Columbia, Sep. 5, 2019. https://www.washingtonpost.com/context/context-card/9d780cc0-fb98-453e-9ccd-ace3e05fbd48/?itid=lk_inline_manual_13
This notion of an “avalanche of authority” is well stated. This is a large reason why things such as Torrential Downpour were allowed to persist for so long.