TheAgitator.com
L.A. Times on Forensics Reform
Tuesday, September 22nd, 2009The L.A. Times editorializes for reforming the forensics system:
In 2006, Congress charged the National Academy of Sciences with studying the application of forensic science in the U.S. judicial system. Its findings, released last year, are grim. Almost every branch of forensics but DNA testing — hair and fiber analysis, arson investigations, comparisons of bite marks — lacks the extensive scientific research and established standards to be used in court conclusively…
In February, the science academy issued a report calling for Congress to create a national institute of forensic science, and there is more than enough evidence that one is desperately needed. As an independent agency, not part of the Justice Department, it would be charged with conducting research, setting national standards for forensic disciplines and enforcing those standards. Right now, standards vary wildly. An expert in San Diego, for example, might testify that a fiber is similar to one found at a crime scene, while an expert in San Bernardino might testify that a match is impossible to determine.
Advances in forensics have revolutionized the judicial system, aiding both prosecutors and defense attorneys, exonerating the innocent and confirming the guilty in ways that were impossible just a generation ago. The patchwork state of forensic science should not become an excuse to shy away from its use; rather, the nation should invest in the rigorous research required to standardize techniques and application.
I’m generally skeptical of the “blue ribbon panel” approach to public policy, but there are really two issues that need addressing here, and one of them could actually be addressed by the sort of federal agency the Times endorses.
That problem, as the Times explains, is setting a baseline for what sort of forensic evidence ought to be admitted at trial, and establishing what level of certainty a specialist should be permitted to convey to a jury about his conclusions. The faux science of matching bite marks left on skin to human teeth, for example, should never be admitted into evidence. There’s simply no science to support it. A fiber expert can convey important information to a jury, but should be required to accurately describe the limited evidentiary value of a fiber match. The other problem you see occurs when a forensics specialist testifies truthfully and accurately, but in closing arguments, a prosecutor (and less often, a defense attorney) will exaggerate the degree to which the expert’s testimony implicates or vindicates the defendant.
If a federal standards-setting agency can survey the latest scientific research to issue guidelines trial judges then use to determine what evidence should and should not be allowed, and that appeals courts can then consult when determining when improper or scientifically unsupported testimony was wrongly allowed into evidence or improperly exaggerated by a prosecutor in his closing—that all seems like a good thing. It seems unreasonable to expect a trial judge to keep up on the latest forensic and medical research. I don’t see much problem in having a government agency ensure that we’re using good science in criminal cases.
But the other problem with forensics is the bias—intentional and otherwise—and human error that creeps into crime lab work. A standards-setting federal agency isn’t going to be able to do much about the forensics specialist who gives testimony that falls within the parameters of the agency’s general guidelines, but was influenced, perhaps subtly, by the fact that he reports directly to the DA or state attorney general, or he’s a private specialist whose opinions might be influenced by who’s paying for his services.
That’s a problem that calls for the more comprehensive sorts of reforms that economist Roger Koppl recommended in a 2007 report for the Reason Foundation. Koppl and I also wrote a condensed version of his recommendations for Slate.
Two more things to add:
1. Scientific method should be used everywhere. Double/triple blind studies, etc.
2. Crime labs should be completely independent, chosen by the court, and paid for by the court. Such testing should be seen not as a function of the prosecution but as a function of the court itself. Furthermore, people who work at crime labs should be sequestered in the same way as the juries. The people there should read no news. Seriously. They should not be told *anything* about the samples that they’re testing. Items should be sent to multiple labs on occasion for a check.
A simple step would be requiring the jury to provide a written argument detailing their reasoning and evaluation of the evidence. This would immediately expose any confusions created by the prosecution.
Crime labs should be completely independent, chosen by the court, and paid for by the court.
How independent and impartial could any lab possibly be if they are chosen and paid for by the court?
Remember: When a defendant is acquitted or found innocent that is considered a loss by the state, and the state hates to lose which is why they do everything in their considerable power to win.
I’m surprised there aren’t more defense attorneys out there getting their clients off with an argument similar to this:
“Ladies and gentlemen of the jury, contrary to what you have seen on TV in series like CSI and Cold Case, any forensic evidence, other than DNA, is a guess at best. It just isn’t science. I have here a copy of the Congressional report from the National Academy of Sciences which was submitted to Congress in 2007. They studied the application of forensic science in the U.S. judicial system and found that hair and fiber analysis, arson investigations, comparisons of bite marks, and other “fantasy forensics” lack the extensive scientific research and established standards to be used conclusively in court. This is our top Scientific and Technological institute in the United States. And they found, conclusively, that there is no science in forensics. Let me repeat that again, there is no science in forensics. They might have well brought out Penn and Teller and shown you a magic trick instead of the “forensic” studies that the prosecution has tried to convince the jury with.
This is very simple, Ladies and Gentlemen, if the science doesn’t fit then you must acquit!”
A few of those where the government starts loosing cases and I’m sure they’ll fund the branch that the NAS is pushing for, if only to standardize the system.
Also, having the court pay for the forensics is just unconstitutional (IMHO, but I’m not a lawyer). Courts are there to listen to arguments and to ensure that the prosecutor and defense atty are following the law in court. They are supposed to be impartial. The prosecution, however, are there to prove that you are guilty. Therefore, if these tests aren’t done then he has less evidence to use to try to convict you. Since the burden of proof is on them, they should foot the bill.
One of the few government agencies I really like is NIST. They set the National Standards for measurements. NIST already has a strong science basis and a solid reputation in the science community.
NIST has a established Laboratory accreditation system already in use for things like biometrics, mass spectrometry , fire research, Asbestos Fiber Analysis, and cryptography. They are highly involved with ISO17025 which is the widely adopted international system for lab accreditation.
NIST should take charge of this.
I don’t see much problem in having a government agency ensure that we’re using good science in criminal cases.
Good idea, it’s not like the government would manipulate science for its own ends. :-P
Steamed McQueen is exactly right. The judge and prosecutor are employed by the same organization. If you give more control to the judge, then the judiciary will become politicized. Ultimately, the political class must care about sound science, rather than obtaining convictions, but they have little incentive to do so.
I do agree the labs should be independent. Perhaps they should be selected in advance by panels of prosecutors and defense attorneys.
Fine, then, let the jury employ the labs. While it’s true that the judge is employed by the state, he’s supposed to be impartial.
This brings up the other issue – at some point, you have to trust somebody. I’ll trust a judge over a prosecuting attorney any day.
It wouldn’t be impossible to set up a forensics agency independent of the courts. For example in Maryland (I think we may be the only state that does this) our public defender’s office is 100 percent independent of the court system. It is its own administrative agency. Basically the governor appoints a board and the board appoints a head public defender who is in charge of the public defender’s office. Unlike other states public defenders aren’t part of the judicial branch. It isn’t a perfect system but you could always set up an independent scientific agency that sets standards for scientific evidence.
Also at #4
There are a couple reasons that hasn’t happened (yet). One is that this report only came out last Spring. The legal world is a slow, conservative place. It isn’t nice for the people still being convicted based on junk science but it takes awhile for practicing judges and attorneys to be made aware of these developments. It isn’t an excuse, it’s just reality.
You also might be giving that argument more weight than an average jury would. Now I generally like the jury system and based on my experiences people often give juries way less credit than they deserve. I have seen cases where they come to extremely logically consistent decisions.
That being said juries are a cross section of the local populace. If you live in a wealthy, highly educated area that argument might stick. If you don’t then jurors may not even understand what you’re trying to tell them. You’re fighting an uphill battle against their favorite television shows. You also have to keep in mind the problems with the juror selection process. In many places juries tend to be older, whiter, and less educated than the average American due to both parties’ the ability to strike without cause. Prosecutors can eliminate diversity in the selection process but defense attorneys can’t increase diversity.
I’m not saying it’s a bad argument I’m just saying it takes awhile for it to come around and even then it isn’t as easy as it might sound.
I think one of the problems with having the “courts” pay for forensics labs is that the “courts” are almost always pro-prosecution. Forensics labs should be independent of the judicial system (perhaps run by universities).
Another problem is how we choose judges. I firmly believe that to be qualified to be a judge, one must serve both in the District Attorney Office AND the Public Defender Office. Private practice as a defense lawyer is icing on the cake; the point being you must be able to see things from both sides of the fence.