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 See Also: Mental Surveillance & Brain Fingerprinting

This is a copy of the amicus brief filed by the inventor of brain fingerprinting in the Harrington case.


 

    F I L E D

            MAR 04 2002

CLERK SUPREME COURT

(accepted by the court)

IN THE SUPREME COURT OF IOWA

No. 01-0653

APPEAL FROM

IOWA DISTRICT COURT FOR POTTAWATTAMIE COUNTY

 

District Court Case No. PCCV 073247

Decision of the Hon. Timothy O’Grady,

District Judge

 

TERRY J. HARRINGTON,

APPELLANT,

V.

STATE OF IOWA,

APPELLEE

BRIEF OF AMICUS CURIAE

DR. LAWRENCE A. FARWELL

IN SUPPORT OF APPELLANT

TERRY J. HARRINGTON

 

Thomas H. Makeig

JE #0007824

Thomas H. Makeig, P.C.

500 N. Third St., Ste. 213

P.O. Box 931

Fairfield, Iowa 52556-0931

Voice: (641) 472-2235

Facsimile: (641) 472-6347

Email: Tmakeig@iowabar.org

 

ATTORNEY FOR AMICUS CURIAE

DR. LAWRENCE A. FARWELL

 

 
 

TABLE OF CONTENTS

 

TABLE OF CASES, STATUTES AND OTHER AUTHORITIES 

 

CITED .......................…………………………..…………............. 3

STATEMENT OF ISSUES PRESENTED FOR REVIEW…....... 5

STATEMENT OF THE CASE ............……………………........... 6

SUMMARY OF ARGUMENT ................………………….….... 16

ARGUMENT ........................………………………………......... 17

CONCLUSION ......……………………………….................…... 27

 

 

 

TABLE OF CASES, STATUTES AND OTHER AUTHORITIES

CITED

Cases

 

Bluffs Development Co. v. Board of Adjustment,

499 N.W.2d 12 (Iowa 1993)……………………...........................……….6

 

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993)……………………………...……….…......…….19, 22

 

Frye v. United States, 293 F. 1013(D.C.  Cir. 1923.................................…22

 

Leaf v. Goodyear Tire and Rubber Co., 590

N.W.2d 525 (Iowa 1999)…………............................................….18, 19, 20, 22

 

Mastland v. Evans Furniture, Inc., 498 N.W.2d

682 (Iowa 1993)......................................………………….…..……….23, 26

 

Mensink v. American Grain & Related Indus.,

564 N.W.2d 376 (Iowa 1997).....…………………….……………..…….18                         

State v. Hall, 297 N.W.2d 80 (Iowa 1980) ……….…………..…..…....….22 

Whitsel v. State, 525 N.W.2d 860 (Iowa 1994) ...……………....…......….17

Statutes

Iowa Code §822.2(4) ………………………..…….....…..………...…….18 

Iowa Code §822.7 ......…….............…..…………………..…….…….17, 23 

Rules

I.R. App. P. 4 …………..………………………………….…..…..…….6, 17

I.R. Evid. 702 ……………….……………………………............……….19

STATEMENT OF ISSUES PRESENTED FOR REVIEW
  1. WHETHER THE P300 TEST RESULTS ARE  NEWLY DISCOVERED, MATERIAL EVIDENCE THAT COULD NOT HAVE BEEN PRESENTED AT THE TRIAL.
LIST OF CASES, STATUTES AND OTHER AUTHORITIES

Whitsel v. State, 525 N.W.2d 860 (Iowa 1994)

Iowa Code §822.2(4)

Iowa Code §822.7

I.R. App. P. 4

I.                 WHETHER DR. FARWELL’S REPORT AND TESTIMONY ON HARRINGTON ARE ADMISSIBLE AS EXPERT SCIENTIFIC EVIDENCE.

 LIST OF CASES, STATUTES AND OTHER AUTHORITIES

 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)

Leaf v. Goodyear Tire and Rubber Co., 590 N.W.2d 525 (Iowa 1999)

Mensink v. American Grain & Related Indus., 564 N.W.2d 376 (Iowa 1997)

State v. Hall, 297 N.W.2d 80 (Iowa 1980) Iowa Code §822.7

I.R. Evid. 702

II.              WHETHER THE WEIGHT OF THE P300 EVIDENCE IS SUFFICIENT TO HAVE CHANGED THE VERDICT.

LIST OF CASES, STATUTES AND OTHER AUTHORITIES

Bluffs Development Co. v. Board of Adjustment, 499 N.W.2d 12 (Iowa 1993) 

Mastland v. Evans Furniture, Inc., 498 N.W.2d 682 (Iowa 1993) Iowa Code §822.7 I.R. App. P. 4

 

STATEMENT OF THE CASE

A. HARRINGTON’S TRIAL.

Petitioner Terry Harrington was accused in the murder of night watchman John Schweer that occurred near a car dealership lot on the night of July 22, 1977. District court’s findings of fact and conclusions of law. App. 755-56 (“Ruling”). At his trial, Harrington testified that he had not been present at the crime scene. App. 771 (Ruling). Harrington also presented alibi evidence and several witnesses placing him at a concert many miles from the crime scene. App. 764 (Ruling)

The jury convicted Harrington of first degree murder on August 4, 1978. Harrington is serving a life sentence without possibility of parole. App. 756.

            B. PETITION FOR POST-CONVICTION RELIEF.

Harrington filed a petition for post-conviction relief on July 24, 1997, alleging several grounds for vacation of his conviction. On March 3, 2000, Harrington amended his petition proposing to include, inter alia, newly discovered evidence consisting of the results of a recently developed scientific test known as “Brain Fingerprinting.”

Amicus Lawrence A. Farwell, Ph.D., is a Harvard- and University of Illinois-trained cognitive psychophysiologist with expertise in electroencephalography (“EEG”). App. 269, Tr. 4, lines 6-7, 24; App. 522-27. Dr. Farwell invented the brain fingerprinting test at issue here and is a co-discoverer of some of the underlying science. App. 271, Tr. 6, line 10 to App. 272, Tr. 7, line 3.

Dr. Farwell administered his test on Harrington on April 18 and 25, 2000, submitted a report and supplemental report to the district court and testified at the hearing in this matter.

This amicus brief examines only the brain fingerprinting evidence and its impact on Harrington’s request for a new trial.

 C. BRAIN FINGERPRINTING/P300 AND ITS APPLICATION TO HARRINGTON.

1. What is brain fingerprinting? Brain fingerprinting is an EEG test of a subject’s

“guilty knowledge” related to a specific remembered event or circumstance such as a crime scene. App. 760 (Ruling) . It can also probe for exonerating knowledge, for example, details relating to an alibi. App. 764-65 (Ruling). 

2. Dr. Farwell’s qualifications. For more than 16 years, Dr. Farwell has conducted original EEG research examining guilty knowledge and related memory processes. App. 269, Tr. 4, line 14 to App. 270, Tr. 5, line 1. Dr. Farwell has performed this research at leading institutions (Harvard and the University of Illinois) (App. 269, Tr. 4, lines 18-21; App. 522-27) and his research has received financial support from the U.S. Government. App. 269, Tr. 4, lines 14-17; App. 279, Tr. 14, line 2 to App. 280, Tr. 15, line 3. His findings have been published in peer-reviewed publications. App. 270, Tr. 5, line 24 to App. 271, Tr. 6, line 6; App. 522-27.

Dr. Farwell’s peers recognize him as a leader in his field. App. 491, Tr. 225, line 24 to App. 492, Tr. 226, line 3 (testimony of Dr. Emanuel Donchin); App. 455, Tr. 189, lines 7-11 (testimony of Dr. William Iacono). Dr. Farwell’s co-authors and collaborators have included psychophysiologists and forensic scientists employed in the FBI Laboratory and FBI Behavioral Sciences Unit, the U.S. Navy and intelligence services, and leading universities. App. 506, 507, 522-27.

3. Accuracy of Dr. Farwell’s test. To date, Dr. Farwell has conducted brain fingerprinting tests on 170 subjects in both lab-simulated and real-life circumstances. App. 555. In 163 of these cases, his test produced an accurate result, and in the other seven cases the test result was “indeterminate” so that no result was offered. App. 555. This means that in tests prior to the Harrington test, Dr. Farwell’s test has not produced a single incorrect result. App. 555.

Dr. Farwell does not claim a 100% accuracy for his test. App. 296, Tr. 31, lines 1-9. Instead, his analytical techniques, using statistical methods accepted in the relevant

scientific community, produce high statistical confidence levels for each determination. App. 278, Tr. 13, lines 18-24. An important reason for this high degree of statistical confidence is that Dr. Farwell’s analytical tools contain filters that produce an indeterminate result whenever statistical confidence falls below a pre-determined minimum. App. 295, Tr. 30, lines 11-25. For this reason, to date his test has given an indeterminate result in approximately 3% of cases. App. 295, Tr. 30, lines 11-25 (6 of

about 170 cases). Dr. Farwell’s tests on Harrington yielded determinate results. App. 548-49.

            4. How the test works: the “P300 effect.”

It is generally accepted among cognitive psychophysiologists that a characteristic brainwave pattern accompanies a person’s recognition of a stimulus in relation to a remembered context. App. 538-39; App. 294, Tr. 29, line 23 to App. 295, Tr. 30, line 7; App. 482, Tr. 216, lines 12-15 (Donchin). This pattern can be detected in real time by an EEG and is described as a “P300,” meaning an event-related potential occurring in the range of 300-800 milliseconds after the introduction of a stimulus. App. 537. See Figure 1: the P300 characteristically emitted by Harrington’s brain. 1

___________________

1.          Dr. Farwell has extended his P300 research to take account of other brain activity. Dr. Farwell calls the brain activity comprising the P300 and other activity a “MERMER” (memory and encoding related multifaceted electroencephalographic response). He has developed a new mathematical model that derives useful information from the MERMER. App. 760 (Ruling) . The district court held that, as of the date of its ruling, the MERMER and mathematical model were not sufficiently established in the relevant scientific community to merit admission into evidence. App. 763. 

The district court’s acceptance of the P300 as generally accepted and rejection of the MERMER and mathematical model as novel might appear to raise the question whether P300 findings can stand alone without reference to Dr. Farwell’s mathematical tools. Dr. Donchin and Dr. Iacono addressed this issue: 

Anybody can [use] the [math] technique. When Dr. Iacono wanted to duplicate our technique, he knew exactly how to run the [math technique]. There was no mystery to it. That is science. 

App. 491, Tr. 225, lines 12 to 15 (Donchin). See also, App. 487, Tr. 221, lines 2-14.

[T]he P300 approach to detecting guilty knowledge is relatively robust and that's

not affected by minor variations in [mathematical and test protocol] procedure, at

least to the extent that there are variations across [my and Farwell’s/ Donchin’s] studies. App. 441, Tr. 175, lines 8-11 (Iacono).

 

Figure 1.

The P300 Response Emitted by Harrington’s Brain to Known Information

 

In his supplementary report, Dr. Farwell presented an analysis of the Harrington test data based solely on the P300. App. 760 (Ruling). The court examined the evidentiary weight of the test results based on Dr. Farwell’s findings which were identical as between P300 and MERMER analyses. See App. 312, Tr. 47, line 11 to App. 313, Tr. 48, line 1; App. 549-50.

The P300 is the clearly visible positive voltage peak in the top left part of the figure. App. 303, Tr. 38, line 25 to App. 304, Tr. 39, line 1. The P300 is the brain’s signature indicating that it is engaging in context updating. App. 304, Tr. 39, line 15 to App. 305, Tr. 40, line 1; App. 537. In the same way that a personal computer emits a characteristic sound whenever information is being transferred to or from the hard drive, the human brain emits a P300 while the subject takes note of a stimulus and makes sense of it by placing it in the context of what he knows. App. 301, Tr. 36, line 24 to App. 302, Tr. 37, line 13.

            For example, when a person viewing a computer monitor is presented with words, phrases or pictures that he recognizes in the context of a crime scene with which he is familiar, his brain emits a P300. App. 540. Figure1 is Harrington’s averaged brain responses derived from 6 crime-scene-related stimuli that Harrington had confirmed he knew about. App. 547. The purpose of showing these “target” stimuli to Harrington was to measure and define his characteristic P300 response, to confirm that he did in fact show a characteristic P300 response to information that he knew about the crime scene, and to reinforce the remembered context – the crime scene – that the test was investigating. App. 548.

            5. Comparison to polygraph testing.2 The polygraph is a test that seeks to determine if a subject is lying in response to questions. The polygrapher monitors changes in the subject’s autonomic functions, such as electrical skin resistance, pulse rate and blood pressure as signs of stress which, it is asserted, in turn indicate deception or its absence.

            In contrast, the P300 effect is not related to any autonomic function and does not evaluate stress levels. Autonomic functions occur at levels of neural organization that are remote from the brain’s information-processing activity. Their correlation to stress, and any correlation of stress to deception, have never been demonstrated rigorously enough for polygraph results to merit admission into evidence. Additionally, reliable methods of defeating the polygraph have been thoroughly proven and are widely known, so that the utility of the polygraph for any purpose is marginal. In contrast, the P300 effect cannot be manipulated or suppressed. The P300 is the EEG signature of a core brain function by which the conscious mind interacts with its environment. If the brain did not continuously engage in the function of context updating that evokes P300 responses, the person could not be said to be sentient, able to interact in a meaningful way with his environment, or able to compare stimuli of any kind to any remembered context.

            In contrast to the polygraph, brain fingerprinting simply measures whether a person’s brain engages in context updating when he is presented with a stimulus that is related to a memory context.

            Dr. William Iacono, a cognitive psychophysiologist at the University of Minnesota who testified for Harrington, observed that

The P300 technique is one that has a solid scientific basis and foundation[:] conventional polygraphy doesn't. The P300 technique is designed to assess memory, and the conventional

__________________________________________

2              This section of the brief is derived from Dr. Farwell’s discussion of polygraphy in his supplementary report. App. 565-69.

 

polygraphy is designed to assess whether or not people are lying, and it doesn't do it very well.  App. 448, Tr. 182, lines 18-22. 

Dr. Iacono further stated that his own experiments with guilty knowledge testing, in which he is a leading expert [App. 479, Tr. 213, lines 17-19; App. 482, Tr. 216, lines 3-4 (Donchin testimony)], began to show a high degree of accuracy only when he began to employ EEG monitoring of the subject’s P300 response, rather than measures of autonomic functions such as sweating and blood pressure. App. 437, Tr. 171, lines 10-16 (Iacono testimony). 

            6.   What a non-P300 response shows. In brain fingerprinting, when a person is presented with a stimulus that he fails to place in a memory context, his brain does not emit a P300. App. 548; App. 483, Tr. 217, lines 5-8 (Donchin testimony). See Figure 2: Harrington’s non-P300 brain wave pattern. 

Figure 2.

Harrington’s Non-P300 Brain Wave Response to

Irrelevant Information (green) 

 

Figure 2 compares Harrington’s P300 (red) to his average brain response to 24 stimuli, called “irrelevants” (green) that Harrington had confirmed that he knew nothing about and that were in fact irrelevant to the crime scene. App. 548. In brain fingerprinting, the subject is shown irrelevants to establish a baseline for his characteristic non-P300 response.

            7.  Harrington’s test results. In the same manner that Dr. Farwell established (a) Harrington’s P300 response to the targets and (b) Harrington’s non-P300 response to the irrelevants, Harrington was exposed to 6 “probes,” meaning accurate, salient details of the crime scene that, immediately prior to the test, Harrington had asserted he did not know. For  example, Dr. Farwell asked Harrington whether he knew what had impeded the perpetrator’s progress while fleeing the crime scene behind a particular building. App. 546. The correct answer, “weeds and grass,” was used as a probe because prior to the test Harrington asserted that he did not know the answer. App. 546.

            Harrington’s average brain responses to the 6 crime-scene probes is shown as Figure 3.

Figure 3.

Harrington’s Average Brain Responses To The 6 Crime-Scene Probes

 

Harrington’s averaged response to the probes (blue) lacks a P300 and appears strikingly similar to his response to the irrelevants (green) and unlike the targets (red). Dr. Farwell’s analysis of the data, which was conducted automatically by computer processing of Harrington’s test data using well-accepted statistical methods [App. 491, Tr. 225, lines 12-15 (Donchin testimony)], confirms this result. App. 549. Accordingly, Dr. Farwell reported a definite finding of “information absent” for Harrington’s responses to the crime-scene probes. App. 549. The statistical confidence level was at least 99%. App. 549.

            8.   The alibi test. Dr. Farwell conducted a separate test of Harrington’s knowledge of information pertinent to his alibi. These targets, irrelevants and probes produced a definite finding of “information present” with a statistical confidence of 99%. App. 557. Figure 4 shows Harrington’s average responses to targets (red), irrelevants (green) and probes (blue) relating to the alibi. Note the prominent P300, a positive voltage peak at the upper left, in response to both the targets (red) and the probes (blue), indicating Harrington’s recognition of the alibi-relevant information contained in these stimuli.

Figure 4.

Harrington’s Average Responses To Targets (Red),

Irrelevants (Green) And Probes (Blue) Relating To The Alibi

 

D.                 THE DISTRICT COURT HEARING ON HARRINGTON’S PETITION.

            The district court held an eight-hour hearing on the brain fingerprinting/P300 evidence on November 14-15, 2000. The court conditionally received Dr. Farwell’s test report and supplemental test report on Harrington and heard testimony from Harrington’s two witnesses, Dr. Farwell and Dr. Iacono. Dr. Iacono validated Dr. Farwell’s credentials (App. 455, Tr. 189, lines 7-11), the underlying science (App. 435, Tr. 169, lines 13-17) and Dr. Farwell’s test procedures. App. 449, Tr. 181, lines 5-6. In opposition the State offered the testimony of Dr. Emanuel Donchin, a cognitive psychophysiologist who co-authored Dr. Farwell’s first peer-reviewed study of the P300 techniques that now underlie brain fingerprinting. App. 477, Tr. 211, line 21 to App. 478, Tr. 212, line 8. Dr. Donchin validated Dr. Farwell’s skills as a cognitive psychophysiologist and EEG expert (App. 492, Tr. 226, lines 1-3; App. 492, Tr. 226, lines 20-22), and he validated the reliability of the science underlying Dr. Farwell’s test. App. 478, Tr. 212, lines 5-8; App. 482, Tr. 216, lines 12-15; App. 483, Tr. 217, line 23 to App. 484, Tr. 218, line 1.

            Also, though Dr. Donchin expressed concern that the selection of probes is inherently subjective, he conceded that probe selection as a practical matter can be reliably done by a skilled investigator: “[I]f you skillfully develop the probes[,] and the skillfulness depends on your art, you will get useful interpretation of P300.” App. 489, Tr. 223, line 25 to App. 490, Tr. 224, line 2. Dr. Donchin recognized Dr. Farwell as a skilled investigator. App. 491, Tr. 225, line 24 to App. 492, Tr. 226, line 3. 

E.         THE DISTRICT COURT’S DISPOSITION OF THE  P300 EVIDENCE.3

            1. Preliminary questions. The district court found that the P300 evidence was newly discovered and could not have been presented at trial, in view of the discovery and development of the P300 technique subsequent to the trial. App. 763, 773. The P300 evidence may also have been material to the outcome of the trial. – App. 763 (Ruling). Accordingly, the district court did not predicate its dismissal of the petition on any failure by the petitioner to meet these prerequisites to an examination of the newly discovered evidence. App. 763.

Admissibility of the P300 evidence. The district court also found that the P300 evidence was sufficiently reliable to merit admission into evidence. App. 763 (“the P300 effect is well-established.”)

3. Weight of the P300 evidence. Accordingly, the court proceeded to examine Dr. Farwell’s specific probes to determine what evidentiary weight to give them. App. 762-65.

The court found that 3 of the six crime scene probes were not helpful in determining whether Harrington was present at the crime scene: “across a street,” “parked cars” and “straight ahead.” App. 764. The court found that the other crime-scene probes required closer  evaluation in view of their specificity: “weeds and grass,” “drainage ditch” and “by trees.” App. 764.

However, the court discounted the weight to be given to even these latter crime-scene probes. App. 764-65. The court stated that,

Dr. Farwell conceded that if he cannot find specific details of the crime that are known only to the perpetrator and the investigators, then the “brain fingerprinting” technique is not applicable. Dr. Farwell acknowledged that “[i]f a suspect knows everything that we know or could discover about the crime,  from some other means than from committing the crime, then we cannot apply brain fingerprinting.” 

App. 761, quoting App. 543. The court invoked this remark in questioning the weight to be given to both Dr. Farwell’s “information present” finding with respect to the alibi probes and his “information absent” finding with respect to the crime-scene probes. App. 764-65. After considering Harrington’s P300 test results, the district court held that the findings relating to both the alibi and crime-scene probes, if presented at trial, would probably not have altered the verdict. App. 765. 

_____________

3 The district court held that the petition for post-conviction relief was timely and that the issues presented in, and the disposition of, prior appeals  had not precluded an evaluation of the petition’s merits. App. 763.

 

SUMMARY OF ARGUMENT

            I. The district court correctly determined that the P300 evidence was material, was newly discovered and could not have been presented at the original trial.

            II. The district court correctly determined that the P300 test results were sufficiently reliable to be admitted as expert scientific evidence.

            III. Regarding the evidentiary weight of the P300 evidence:

            A. The district court correctly concluded that the alibi probes, which yielded a finding of “information present,” could not be reliably determined to have their origin in Harrington’s presence at the alibi scene, rather than in subsequently acquired information.

            B. The district court erred in its analysis of the crime-scene probes: The court should have inferred from the finding of “information absent” in regard to the crime-scene probes that Harrington had no memory of the crime scene.

            Conclusion. Harrington’s P300 test results are highly probative and tend to show his lack of participation in the crime. 

ARGUMENT

I.          THE P300 TEST RESULTS ARE NEWLY DISCOVERED, MATERIAL EVIDENCE THAT COULD NOT HAVE BEEN PRESENTED AT THE TRIAL. 

            A. STANDARD OF APPELLATE REVIEW.

            The district court’s findings of fact are reviewed for errors of law. I.R. App. P. 4.

            B. PRESERVATION OF ERROR.

            The district court’s findings on these predicates to Harrington’s appeal were embodied in its final order pursuant to Iowa Code §822.7. App. 763 (Ruling). Harrington’s defense of these findings has been preserved by the timely filing of Harrington’s notice of appeal.

            C. THE P300 TEST IS MATERIAL EVIDENCE        DERIVED FROM A SCIENTIFIC INNOVATION THAT POST-DATED THE TRIAL.

            Iowa Code §822.2(4) provides that relief is available where “[t]here exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction in the interest of justice.”

            Where, as here, the invention of a forensic technique post-dates the trial, its application to the crime is newly discovered evidence that may be considered in proceedings for postconviction relief. In Whitsel v. State, 525 N.W.2d 860, 863 (Iowa 1994), this court was amenable to entertaining newly discovered DNA testing, but declined to do so in light of the overwhelming evidence of Whitsel’s guilt. Id. In

the case at bar, due to the thorough impeachment of prosecution eye-witness Hughes at the Harrington trial, App. 771-72 (Ruling), Harrington’s conviction lacks the support of the state’s only witness to the crime.

            The brain fingerprinting evidence is material, and not merely cumulative or impeaching, because it identifies, scientifically and circumstantially through P300 monitoring, whether Harrington remembers information pertinent to the crime scene and alibi. This information, and the knowledge that it is present in or absent from Harrington’s memory, can materially assist the trier of fact to determine whether Harrington was present at the crime scene. 

II.                 THE DISTRICT COURT EXERCISED ITS DISCRETION SOUNDLY WHEN IT ADMITTED THE RESULTS OF HARRINGTON’S P300 TEST AS EXPERT SCIENTIFIC EVIDENCE. 

            A. STANDARD OF APPELLATE REVIEW.

            On appeal this court reviews the trial court’s determinations of the admissibility of expert opinion evidence for abuse of discretion. The appellate court “will not reverse the trial court’s receipt of [expert opinion] evidence absent a manifest abuse of that discretion.”

Mensink v. American Grain & Related Indus., 564 N.W.2d 376, 380 (Iowa 1997).

            This court is “committed to a liberal view on the admissibility of expert testimony, and [is] quite deferential to the district court in the exercise of its discretion in that area.”  Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525, 531 (Iowa 1999) [quoting Mensink v. American Grain & Related Indus., 564 N.W.2d 376, 380 (Iowa 1997)].

            B. PRESERVATION OF ERROR.

The district court’s finding on this predicate to Harrington’s appeal was embodied in its final order pursuant to Iowa Code §822.7. App. 763. Harrington’s defense of this finding has been preserved by the timely filing of Harrington’s notice of appeal. 

C.     THE P300 EVIDENCE IS SUFFICIENTLY RELIABLE TO MERIT ADMISSION INTO EVIDENCE.

1.         The district court admitted the P300 into evidence. In the case at bar, the district court found that the brain fingerprinting test is based on a “P-300 effect.” …. The P-300 effect has been recognized for nearly twenty years. The P-300 effect has been subject to testing and peer review in the scientific community. The consensus in the community of psychophyiologists is that the P-300 effect is valid. App. 759. See also App. 763 (Ruling) (P-300effect is “well-established.”).

            These statements have ample support in the record and in particular in the testimony of the state’s witness, Dr. Donchin, who characterized the P300 effect as follows:

[T]he procedure which Dr. Farwell calls brain fingerprinting, … is essentially identical to the procedure we published in 1991 [and] has a scientific component to it … and if the probes are responded to, the science of P300 would agree that [that] means that the subject has clearly identified the probes as different from the irrelevants.

App. 487, Tr. 221, lines 2-5, 10-13. Dr. Donchin acknowledged that the brain fingerprinting procedure he described as “the science of P300” has been thoroughly peer-reviewed, published, and “widely accepted within the scientific field of  psychophysiology.” App. 477, Tr. 211, line 21 to App. 478, Tr. 212, line 8.

            The court’s validation of the P-300/brain fingerprinting effect is a finding of admissibility under I.R. Evid. 702, even though the district court did not cite the rule or formally make a statement using the words “admissible” or “not admissible.”

            In its ruling, the court went on to carefully examine the weight to be given to the P300 probes. App. 764-65. Fulfillment of the court’s gate-keeping function in relation to scientific evidence is a pre-requisite to the assessment of the weight to be given to such evidence. Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d at 553. The court found this prerequisite to have been met. App. 763.

            2. The Leaf/Daubert standard. This court has held that, when exercising their gate-keeping function to bar spurious expert opinion,

[T]rial courts may, in their discretion, consider the following factors if deemed helpful in a particular case: (1) whether the theory or technique is scientific knowledge that can and has been tested, (2) whether the theory or technique has been subjected to peer review or publication, (3) the known or potential rate of error, or (4) whether it is generally accepted within the relevant scientific community.

 

Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2dat 553 [four criteria derived from Daubert v.Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94(1993)]

            3. The district court applied the Leaf/Daubert standard when it admitted the brain fingerprinting evidence. The district court heard uncontroverted testimony that

(a)    the P300 basis of brain fingerprinting is accepted as scientific within the field of cognitive psychophysiology [App. 428, Tr. 162, lines 7-10; App. 432, Tr. 166, line 21 to App. 433, Tr. 167, line 9; App. 435, Tr. 169, lines 13–17 (Iacono); App. 477, Tr. 211, line 21 to App. 478, Tr. 212, line 8 (Donchin)];

(b)   brain fingerprinting has been tested (App. 294, Tr. 29, lines 8-22 (Farwell);

(c)    Dr. Farwell and others have published extensively on P300 in the peer review literature [App. 555; App. 522-27; App. 428, Tr. 162, lines 7-10 (Iacono); App. 478, Tr. 212, lines 1-8 (Donchin)];

            (d) the rate of error is known and very low [App. 502; App. 437, Tr. 171, lines 13-

            16 (Iacono: “very close to … perfect accuracy”)];

            (e) the P-300 is generally accepted in the relevant scientific community. App. 435, Tr. 169, lines 13–17 (Iacono); App. 471, Tr. 205, lines 11-13 (Donchin); App. 477, Tr. 211, line 21 to App. 478, Tr. 212, line 8 (Donchin).

            This testimony provided ample support for the court’s determination to proceed beyond an examination of the technique’s reliability and to assess the weight to be given to Dr. Farwell’s findings.

            Accordingly, this court, like the district court, should accept the P300 basis of brain fingerprinting as being sufficiently reliable to allow the court to proceed with an evaluation of the weight of the P300 evidence.

D.                 THE ADMISSION OF P300 EVIDENCE DOES NOT ABROGATE THE FUNCTION OF THE TRIER OF FACT OR REQUIRE AN EXTRAORDINARY FOUNDATIONAL SHOWING.

            In a dictum in the Leaf case, this court warned that, “[A]ny potential for an exaggerated effect of the proffered evidence should be considered” in connection with evidence based on tests such as polygraphy, “where so much depends on subjective analysis by the machine operator and the outcome of trial may well turn on the polygrapher's opinion.” 590 N.W.2d at 533.

            P300 science bears no resemblance to the polygraph. The polygraph has a substantial error rate, it is based on dubious scientific theory, the formulation of its results (deception or non-deception) is left to the subjective evaluation of the tester, and it is not generally accepted among scientists. In contrast, the P300 effect is reliable, is generally accepted in the relevant scientific community, and using standard, pre-determined evaluation criteria, it has an accuracy approaching 100%. App. 437, Tr. 171, lines 13-16 (Iacono: “very close to … perfect accuracy.”).

            Polygraph testing generally monitors a subject’s response to ultimate questions, such as, “Did you commit this crime?” and attempts to determine from autonomic functions whether the subject is exhibiting signs of stress, which in turn are thought to indicate deception.

            In contrast, P300 testing does not pose ultimate questions or attempt to read a witness’s stress level. No questions are asked or answered during a brain fingerprinting test. Instead, brain fingerprinting simply and accurately determines from monitoring of a core brain function whether the subject recognizes a stimulus in relation to a remembered context. If the subject emits a P300 in response to the stimulus, the necessary conclusion is that the subject is familiar with the stimulus in its context.

            Though the P300 investigator’s skill and judgment are involved in the selection of probes, his methods are subject to the following filters and checks:

            (1) A determinate test result means that the person has or does not have knowledge of the probes. The P300 science is reliable.

            (2) The tester asks the subject prior to the test whether he is familiar with the probes in their contexts. This protocol gives the subject an opportunity to reject a probe that is known to him, as well as to explain later how he came to have that knowledge. Harrington did not reject any of the probes offered to him.

            (3) If the probes are poorly constructed so that inconsistent results are obtained, the analytical filters will yield a non-prejudicial indeterminate result.

            (4) If the statistical confidence is less than very high for any reason, an indeterminate result will be obtained.

            (5) The trier of fact can readily evaluate whether the probes in their context are highly probative of the ultimate issue, somewhat probative or not probative.

            Consequently, P300 test results do not displace the trier’s function but assist it by ascertaining whether specific items of information are known to the subject.

            As the district court’s record and ruling in this case demonstrate, to determine the weight to be given to the P300 findings, the trier of fact simply engages in the familiar process of comparing the proffered evidence to the other known facts and drawing appropriate inferences to see if the probes indeed have significant evidentiary value. Dr. Iacono, a person with considerable experience as an expert witness, testified that,

I think [the probes] do provide relevant information, because I think they clearly indicate that [Harrington] doesn't recognize the memories related to the [crime-scene] probes and he does recognize the memories related to the alibi information. I don't think that from that you would conclude that he was guilty or innocent. That would require going further and making inferences about how reasonable it is that he should actually know this sort of information about the crime, but the basic test that assesses whether or not he has recognition memory, I think the [result] of that test is clear. App. 454, Tr. 188, lines 2-11.

            For this reason, this court need not apply heightened scrutiny to P300 science or defer less to the district court’s finding of admissibility than in other Rule 702 cases.

            Even if such scrutiny were applied, P300 science would amply meet the test, because the district court held the P300, MERMER and mathematical innovations to the high standard of general acceptance by the relevant scientific community. App. 763. See footnote 1, supra, at 8-9. The general acceptance test is the former standard set forth in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) that was tempered by the U.S. Supreme Court in Daubert and rejected outright by this court in State v. Hall, 297 N.W.2d 80, 85 (Iowa 1980). See Leaf, 595 N.W.2d at 533.

            Doubtless the courts will be faced with novel questions of how to evaluate P300 evidence if it comes into wider use. See, e.g., section III(D) infra. This is a normal part of the evolution of evidence law as it accommodates new forensic techniques. It is not a reason to erect a higher barrier to scientific innovation than is normally applied or to vitiate the gatekeeping discretion historically accorded to the trial judge.

III.       THE WEIGHT OF THE P300 EVIDENCE IS SUFFICIENT TO HAVE CHANGED THE VERDICT. 

            A. STANDARD OF APPELLATE REVIEW.

            The district court’s findings of fact and the inferences it draws from them are reviewed for error. I.R. App. P. 4. They will not be disturbed if the findings and inferences are reasonable. Mastland v. Evans Furniture, Inc., 498 N.W.2d 682, 684 (Iowa 1993) (“The district court's findings of fact are binding on us if supported by substantial evidence. …. Evidence is substantial if a reasonable mind could accept it as adequate to reach the same findings.”) [citing Bluffs Development Co. v. Board of Adjustment, 499 N.W.2d 12, 14 (Iowa 1993)] (emphasis added).

            B. PRESERVATION OF ERROR.

            The district court’s findings on this issue were embodied in its final order pursuant to Iowa Code §822.7. App. 763, 765. Harrington’s challenge to this finding has been preserved by the timely filing of Harrington’s notice of appeal.

C. THE DISTRICT COURT CORRECTLY REASONED THAT HARRINGTON’S KNOWLEDGE OF THE ALIBI PROBES DOES NOT PROVE HARRINGTON’S ALIBI.

            The district court acknowledged that the P300 alibi results showed that Harrington knew about the alibi probes. App. 760-61. The court concluded, however, that Harrington could have acquired this information at any time subsequent to the alibi concert. App. 765. This inference is consistent with Dr. Farwell’s report and testimony and is a correct application of P300 science. App. 359, Tr. 94, lines 13-18. Accordingly, the district court correctly determined that the alibi test results did not prove the alibi.

D. THE DISTRICT COURT ERRED WHEN IT FAILED TO INFER FROM THE CRIME-SCENE PROBES THAT HARRINGTON WAS ABSENT FROM THE CRIME.

            While disposing of the alibi probes, the district court also engaged in the same analysis regarding the crime-scene probes (App. 764), even though the crime-scene probes yielded an “information absent” response, the very opposite of Harrington’s “information present” response to the alibi probes. As Dr. Farwell clearly indicated in uncontroverted testimony, Harrington’s “information absent” response to the crime-scene probes really does mean that he was unfamiliar with them. App. 353, Tr. 89, lines 10-11; App. 561. Accord, Donchin: “[T]he science says if you get a P300, [the probes] are discriminated, they are recognized. If you don't get a P300, they are not recognized.” App. 483, Tr. 217, line 24 to App. 484, Tr. 218, line 1; App. 484, Tr. 218, line 22 to App. 485, Tr. 219, line 1 (Donchin); App. 454, Tr. 188, lines 2-4 (Iacono: The crime-scene test results “clearly indicate that he doesn't recognize the memories related to the probes.”).

The district court made an elaborate examination of the trial record and of the other materials available to Harrington in an effort to show that Harrington could have recognized the crime-scene probes. App. 764.4 However, the P300 test had reliably shown that Harrington did not recognize them. App. 353, Tr. 89, lines 10- 11; App. 561.

The court’s stated purpose in making this evaluation was to implement Dr. Farwell’s remark that “[I]f a suspect knows everything that we know or could discover about the crime then we cannot apply brain fingerprinting.” App. 761, quoting App. 543.

            In this remark Dr. Farwell was describing the tester’s responsibility to the subject not to present as probes information known to the subject and obtained by him from innocent sources, lest the test yield an “information present” finding that could be mis-attributed to guilty knowledge. App. 357, Tr. 92, line 19 to App. 358, Tr. 93, line 3. Dr. Farwell attempted to find fresh probes in 23-year old evidence and succeeded. Even so, the test protocol provides a fail-safe opportunity for the subject to assert that he is familiar with a probe and to explain the source of his knowledge, so that the probe can be discarded. App. 520. Harrington in fact asserted that he did not know about the probes in the contexts presented to him (App. 306, Tr. 41, line 24 to App. 309, Tr. 44, line 7), and the P300 results confirm this. App. 310, Tr. 45, lines 1-5; App. 549.

The court’s analysis misapplied Dr. Farwell’s assertion that brain fingerprinting is inapplicable when all the probes are known from sources other than the crime scene. By ignoring the fact that Harrington did not recognize the crime-scene probes, the court failed to draw a necessary inference from the crime-scene test results: Harrington simply did not know these probes in their context.

______________________

4              The district court held that Dr. Farwell had violated his own standards for the selection of probes. App. 764. The court found that

            (a) three of the probes were “not sufficiently significant in this context for the court to accept them as valid probe stimuli for a murder scene.” App. 764. The significance of these probes is treated, infra at 46-48. Additionally,

            (b) components of two of the other 3 crime sceneprobes (“weeds” and “ditch”) were mentioned in the trial and therefore might have been known to Harrington. However, these words were not placed in their respective contexts at the trial: the test presented both the “weeds and grass” probe and the “drainage ditch” probe in a context where the perpetrator was said to be impeded by or surmounting an obstacle as he ran to the getaway car. Simply because the words without a context were uttered in the trial record, the court should not have inferred that the probes were in some way tainted by exposure to Harrington at the trial.

The sixth probe, referring to the getaway car being parked “by trees,” was mentioned in a document, but there is no evidence that Harrington specifically reviewed that document. 

            The district court found that three of the crime-scene probes were not sufficiently significant, despite the fact that each of the 6 crime-scene probes in its context presents salient and significant information that would be known to the perpetrator. The six crime-scene probes in their contexts were

weeds and grass:

What was on the ground the perpetrator ran over after he shot the victim and ran behind the building back towards the car.

 

drainage ditch

An obstacle that the perpetrator had to get across to get to the road where the getaway car was parked.

 

by trees

What the getaway car was parked next to.

 

across a street

Where the perpetrator had to go to get from the location of the car he allegedly intended to steal to the location of the shooting.

 

parked cars

What was behind the victim when he was shot.

 

straight ahead

The direction that the perpetrator drove the car immediately after the shooting.

 

App. 511; App. 546.

            At the time of the test, Dr. Farwell clearly explained to Harrington the significance of each of the probes in a specific context, without telling Harrington which stimulus was the actual probe containing the correct information about the crime. Harrington’s brain responses show that he did not recognize these specific probes as significant in their respective contexts.

            The district court concluded that “across a street,” “parked cars” and “straight ahead” were “not sufficiently significant,” such that they did not contribute to the inquiry. App. 764. The court evidently failed to consider these probes in their specific contexts, which in each case caused them to appear as concrete and salient details that were directly relevant to the crime. Accordingly, the district court failed to draw the reasonable and appropriate inference from each of these 3 probes in their contexts.

            As a result of (a) failing to draw the necessary inferences from the “information absent” finding in relation to the crime-scene probes and (b) failing to evaluate seemingly bland probes in the contexts that made them compelling, the court’s finding that the crime scene probes would not have affected the verdict is unsupported by substantial evidence and should be reversed. Mastland, 498 N.W.2d at 684. Harrington’s ignorance of all this salient crime-scene information is compelling evidence that he did not participate in the crime. The district court erred when it assigned so little weight to the crime scene probes, and its conclusion that the crime-scene results would not have affected the verdict is erroneous.

 

CONCLUSION

            P300 science reveals that Harrington had knowledge of the alibi scene and was unfamiliar with key information about the crime scene. All three experts testified that these inferences from the P300 evidence are grounded in reliable science.

            Harrington’s unfamiliarity with concrete and important details of the crime-scene strongly support a finding that he did not participate in the crime. His familiarity with the alibi information, while not definitive in comparison to his unfamiliarity with the crime scene probes, adds additional credence to the conclusion that Harrington is innocent of this crime. If the jury had had the benefit of these P300 findings, a contrary verdict would have been likely. 

February 28, 2002 Respectfully submitted, 

_____________________

Thomas H. Makeig

JE #0007824

Thomas H. Makeig, P.C.

500 N. Third St., Ste. 213

P.O. Box 931

Fairfield, IOWA 52556

Voice: (641) 472-2235

Facsimile: (641) 472-6347

Email: Tmakeig@iowabar.org

ATTORNEY FOR AMICUS CURIAE

DR. LAWRENCE A. FARWELL

   

 

CERTIFICATE OF SERVICE OF

BRIEF OF AMICUS CURIAE DR. LAWRENCE A. FARWELL

IN SUPPORT OF APPELLANT TERRY J. HARRINGTON

 

I, undersigned, certify that on the 1st day of March, 2002, I caused the within and foregoing document to be served on all the parties to this action by sending copies thereof by depositing the same in the U.S. Mail, postage pre-paid in an amount sufficient to reach the addressee by first class mail, addressed as set forth below: 

Atty. General Thomas J. Miller

Asst. Atty. General Bridget A. Chambers (2 copies)

Iowa Department of Justice

Hoover State Office Building

Des Moines, IA 50319

Fax: (515) 281-4902

 

ATTORNEYS FOR STATE OF IOWA

 

 

 

Mary Kennedy

209 W. 5th Street

P.O. Box 222

Waterloo, IA 50704

Fax: (712) 236-6818

 

ATTORNEY FOR APPELLANT TERRY J. HARRINGTON 

 

 

 

Thomas P. Frerichs

Frerichs Law Office, P.C.

751 Progress Ave.

P.O. Box 328

Waterloo, IA 50704-0328

Phone: (319) 236-7204

Fax: (319) 236-7206

 

ATTORNEY FOR APPELLANT TERRY J. HARRINGTON

 

            March 1, 2002                 

                                                                         _____________________

 

                                                                        Michael G. Rikard

 

 

 

CERTIFICATE OF FILING OF BRIEF OF AMICUS CURIAE

DR. LAWRENCE A. FARWELL IN SUPPORT OF APPELLANT

TERRY J.  HARRINGTON

 

I, undersigned, certify that on the 1st day of March, 2002, I caused the within and foregoing document to be filed by sending eighteen copies thereof by depositing the same in the U.S. Mail, postage prepaid in an amount sufficient to reach the addressee by first class mail, addressed as set forth below: 

Clerk of the Iowa Supreme Court

State Capitol

Des Moines, IA 50319

 

 

March 1, 2002                              _____________________

Michael G. Rikard