TheAgitator.com
More on Forensics and Criminal Law
Wednesday, February 11th, 2009New York criminal defense attorney Scott Greenfield has some cogent but depressing thoughts on the issue.
Who’s going to be the one to shut down prosecution witnesses spouting all the traditional junk science nonsense that has put tens of thousands of people in prison for the last few generations?
For those of us who spend a bit of time monitoring the decisions on new “science” in the courtroom, and watch with incredulity as judges shrug and take the word of very official sounding pseudo-experts who proclaim the infallibility of whatever scientific tripe they are selling, writing about or spent the last months learning at the Government School for Expert Witnesses, one thing is painfully clear. Judges have no more clue what good science is then we do, and when asked to pass on the accuracy of expert testimony in some scientific endeavor, invariably turn to the research to see if some other judge has already allowed it. If so, it comes in. If rejected, it doesn’t. If truly novel, God help us…
This report could blow the roof off junk forensic science. But only if judges across the country chose to care. The report itself will never find its way before a jury. Sure, we’ll question witnesses about it, just as we do now to challenge the actual scientific underpinnings of their “expertise”. And the judges will let these pseudo-experts testify anyway, just as they do now, because they feel that there’s no other choice. Once one judge opens the gate, it’s open forever. That’s how science in the courtroom works.
The use of dubious science is so routine in courtrooms that experts are frequently avoided by having a cop testify that he took a course at the Academy and can now testify on all manner of forensics. The beauty of this testimony is that it’s purely conclusory, the cop either explaining that he doesn’t know why something happens, but that he knows that it’s 100% reliable. The judge just nods. That’s all it takes to get something in front of a jury. I’ve seen judges allow expert testimony from agents with all of 37 minutes of experience come in as if he’s a professor emeritus from MIT. Over objection, naturally…
I applaud the National Academy of Sciences for having done this study, and for having overcome the government’s opposition to anyone challenging their self-serving insular control over what constitutes valid scientific evidence. But this report alone won’t do anything if judges, each and every one of them, won’t take the responsibility to put an end to witnesses spouting nonsense in the name of science and for the goal of convictions in front of a jury.
As I wrote in the Fox column, and have written before, I think the solution here is legislative. It’s too much to ask judges to be able to distinguish real expertise from quackery, and credible professional organizations from certification mills. The quacks who get online certifications and are then allowed to testify in court as “scientists” aren’t publishing in respected, peer-reviewed journals or held in high esteem by other scientists. We need to apply the scientific method to the courtroom. That means double-blind testing, peer review, and statistical analysis. If an expert routinely used by the state is shown by other labs to be wrong on a consistent basis, a judge then has the evidence he needs to disqualify the guy as an expert. Or, if not, the defense can cite the guy’s track record in its appeal.
The secret is to convince state legislatures that (a) this is a problem, and (b) they’re going to save money in the long run in the number of wrongful convictions better science is going to prevent.
Gotta love you Radley. Hope springs eternal.
“The secret is to convince state legislatures that (a) this is a problem, and (b) they’re going to save money in the long run in the number of wrongful convictions better science is going to prevent.”
Sounds easy enough. What’s your rebuttal to the inevitable argument that hamstringing the prosecution will put dangerous criminals on the street? What’s in it for the politician? What incentive is there for government to save money? It’s not their money!
I find your remedy wanting. In this bizarro world we inhabit, it is becoming more clear to me that it is now better to be carried by six than judged by twelve.
While I agree with the guy, this last sentence is troubling:
“The secret is to convince state legislatures that (a) this is a problem, and (b) they’re going to save money in the long run in the number of wrongful convictions better science is going to prevent.”
I don’t think the state cares a whit for saving money here, especially if it results in less convictions.
Tragically, most people are horrifically ignorant as to what ’science’ actually is, as the scientific process is simply not taught in most schools.
Science is not the database of knowledge it produces, it’s the process of cooperative correlation that produces it. One person (or team) discovers something, then publishes the discovery for others to duplicate or prove wrong. Those teams also publish their results, for or against. Ideas that are flat out wrong are crushed immediately in this environment.
For example, this book, written in three editions from 1849 to 1881 by Samuel Rowbotham details his explanation of why the world is flat: http://www.sacred-texts.com/earth/za/index.htm
In the 1800s, a good debater could actually convince you that this book is true. Obviously, that would be a bit tougher today. There are still, however, people that believe the world is flat.
The way charlatans like Rowbotham convince you of this bogus ’science’ is by sounding really good in debate, and not allowing dissenting proofs to be presented. Does that sound familiar?
My question would be how do you legislate science in the first place? My experience with expert witnesses and scientific evidence comes in civil court as opposed to criminal, but I believe most of the issues are the same (general acceptance within the scientific community, tests developed and applied outside of a legal setting, etc.). These are issues that require, for lack of a better word, judgment. Perhaps there are certain issues specific to criminal forensics that can be codified (double-blind testing when you’re matching a physical specimen to an individual; making bite mark analysis inadmissible as a matter of law) but at the end of the day most of these issues have to be resolved on a case-by-case basis. I’m really starting to lean towards supporting a blue-ribbon panel type of solution where the courts rely on third-party experts in the field to determine the reliability of expert witnesses and their methods. Of course I suppose even that solution would be enacted by Congress, so perhaps some sort of legislation is unavoidable.
I think as well as the arrogance surrounding current cases and methods it’s easy to underestimate the fear among every class of the establishment of the chaos a chink in the armour of forensic science would cause.
Imagine how many people have been convicted (most of them real criminals and all of them screwed up by prison time) who would be eligible for retrial if the forensic methods unrerpinning their conviction were challenged.
I’d imagine the best that pressure of this sort could acheive is a quiet shift in court room attitudes going forward combined with a blanket denial that prior convictions might be unsound.
Anything else would be too scary for them to contemplate.
State’s care more than you think. 49 states now have drug courts and most others have other alternatives to incarceration programs set up. The “lock em up” mentality is starting to fade, especially with Republicans holding fewer governorships and legislatures. If you can concretely define how this action will save states money, especially int he short term, they will listen.
The simple fact that comprehensive reform would actually get rid of a lot of crime by making it easier for innocent people to not be targeted in the first place. If the police and prosecutor have to always be trained in the latest best practices, they will be more effective at getting the right people in the first place, and the system will be more efficient at quickly processing innocent people out of the courts and back to their normal lives.
Two eye or more witnesses to the same offense. Good enough for God, good enough for me. Throw out the BS of peer-review, etc. Ain’t no such thing. Peer-review is another good ol’ boy game. Been at it 30+ yrs. Know how it works. Science while interesting is still based on human opinion, replete with human error. Science quit searching for “truth” when publish or perish became the norm.
Dominus providebit!
Of course, that would require a bigger training and science budget for law enforcement agencies. They could easily get that by cutting off funds from the welfare babies and socialized medical system, but that wouldn’t win much with the left-wing voters.
#6 | Mike T |
Cynical: “Sounds easy enough. What’s your rebuttal to the inevitable argument that hamstringing the prosecution will put dangerous criminals on the street?”
Mike T: “The simple fact that comprehensive reform would actually get rid of a lot of crime by making it easier for innocent people to not be targeted in the first place. If the police and prosecutor have to always be trained in the latest best practices, they will be more effective at getting the right people in the first place, and the system will be more efficient at quickly processing innocent people out of the courts and back to their normal lives.”
Can’t argue with the logic, Mike. But your premise requires that government act rationally. How is that possible?
My question was rhetorical. Politics is war. Politics is not interested in efficiency. All the sound logic in the world can’t influence the State.
Can’t argue with the logic, Mike. But your premise requires that government act rationally. How is that possible?
Government does often act rationally, in the interests of those with power.