Getting Forensics Right

The forensics system is finally getting some national attention, but reformers aren't addressing the real problem.

After countless scandals in recent years, the problems with America's forensics system are finally getting some national attention. In December, Sen. Patrick Leahy (D-Vt.) introduced a bill to reform the country's crime labs. In January, ProPublica and Frontline teamed up for a year-long investigation into the ways criminal autopsies are conducted across the country. In North Carolina, the state legislature is considering reforms to that state's crime lab, which was rocked by a damning 2010 investigation commissioned by the state attorney general and a follow-up report by the Raleigh News and Observer that uncovered widespread corruption, hiding of exculpatory findings, and a pro-prosecution bias among crime lab workers. All of this comes on the heels of a congressionally commissioned 2009 report from the National Academy of Sciences that found expert witnesses in many areas of forensics routinely give testimony that is not backed by good science.

So the good news is that we are starting to see some skepticism, even some outrage, about the way forensic science is used in criminal cases. The bad news is that the solutions politicians and policy makers are proposing, while better than nothing, do not really address the primary problem. That problem is perverse incentives.

To be sure, there are other problems with the forensics system. For starters, many forensic disciplines, such as hair and carpet-fiber analysis, blood spatter analysis, and especially bite mark analysis, have not been subject to rigorous scientific testing. Even fingerprint analysis is not the sure thing it was once thought to be. Many of these fields were either invented by law enforcement agencies or honed and refined by them. The fields have not been subjected to peer review, and the methods by which, for example, a carpet-fiber or ballistics analyst produces a "match" are not blind. On the contrary, the analyst often knows the details of the crime and which sample implicates the suspect. When done this way, these analyses are not science, but they are often presented in court as if they were.

Some of the policies now under consideration at the state and federal levels could help with these problems. Leahy's bill would require any crime lab that receives federal funding to be accredited and to make sure all of its analysts are certified. (It isn't clear who would do the accrediting and certifying.) The bill would also provide funding for scientific research into the various forensic fields to establish best practices and standards and to ascertain the scientific validity and accuracy of those fields. The North Carolina legislature is considering a bill that would create an advisory panel to oversee the state crime lab. The bill also would make it a felony for a crime lab worker to willfully withhold exculpatory information. The fact that such misconduct is not already considered a crime speaks volumes.

These laws would help ensure that only forensics backed by science gets into the courtroom, and they would at least cut down on blatant corruption in crime labs. But the main problem driving nearly all the recent forensics scandals is a built-in bias in favor of winning convictions. In too many jurisdictions, medical examiners report to the attorney general or to the state official who oversees law enforcement. In states like Mississippi, where for most of the last 25 years prosecutors contracted criminal autopsies out to private doctors, the incentive for medical examiners was to produce results beneficial to the prosecutor's case. If they brought back results the prosecutor did not like, they risked losing future referrals. As I've reported during the last several years, that system produced the travesty of justice that was Steven Hayne, a physician who testified in thousands of cases despite serious questions about his qualifications, credibility, and practices. But if it hadn't been Hayne, it would have been someone else.

Although states where medical examiners work directly for the state are better, incentive problems still exist. There is always pressure, blatant or implied, to deliver results the state needs to win a prosecution. That does not mean all or most or even a significant percentage of medical examiners are corrupt. But having a medical examiner and his staff ultimately report to the head of a law enforcement agency introduces subtle pressures that can influence even the most conscientious doctors.

The pressures can be even greater for serologists, ballistics experts, fingerprint analysts, and other nonmedical forensic experts, many of whom are actually sworn law enforcement officers. In a 2008 paper (PDF) published by the Reason Foundation (which publishes Reason magazine and Reason.com), Roger Koppl, director of the Institute for Forensic Science Administration at Farleigh Dickinson University, explains the myriad ways in which unintentional bias can creep into an analyst's work.

In an article that appeared in the January 2002 California Law Review, for example, a research team led by Seton Hall law professor Michael Risinger identified five stages of scientific analysis that can be corrupted by unintentional bias. They include how the analyst observes the initial data, how he records the data, how he makes calculations, and how he remembers and reinterprets his notes when preparing for trial. Koppl also cites a 2006 British study by researchers at the University of Southampton who found that the error rate of fingerprint analysts doubled when they were told the details of the case they were analyzing.

Establishing blue ribbon commissions, best standards and practices, and various oversight boards won't do much to combat cognitive bias. It is not even clear these steps will prevent outright corruption. In Mississippi, professional groups such as the National Association of Medical Examiners (NAME) received numerous complaints about Steven Hayne, going back at least to the early 1990s. They did not act until 2009, despite the fact that Hayne routinely, flagrantly, and admittedly violated NAME's guidelines. The North Carolina crime lab was accredited by the the American Society of Crime Laboratory Directors' Laboratory Accreditation Board, which failed to notice a litany of repeated violations.

The best way to begin mending the problems with the forensics system is to fix the incentives, aligning them so analysts are rewarded only for sound, scientifically supported work and punished for allowing their work to be influenced by bias, intentional or not. Koppl makes several specific recommendations in his paper for the Reason Foundation, which he and I summarized in a 2008 Slate article. The most important changes are taking state crime labs and medical examiner officers out from under the control of state law enforcement agencies and introducing a system of "rivalrous redundancy" for forensic analysis. To its credit, the Mississippi legislature is considering a bill that would have the state medical examiner report to an independent board of supervisors. Unfortunately, while the North Carolina bill changes the name of the state crime lab, it still puts the lab under the control of the State Bureau of Investigation, a police agency.

Rivalrous redundancy is in some ways a more drastic reform, but it also makes a lot of sense. The idea is to send every three, four, or five pieces of testable evidence in criminal cases to a private lab in addition to the state lab. With medical examiners, every three or four autopsies would be reviewed by a private forensic pathologist. This system would also create more work for certified forensic pathologists; part of the current problem is that there are not many independent forensic pathologists because most forensic autopsies are done by government officials, which keeps salaries low and available positions spare.

Under a system of rivalrous redundancy, state workers would not know which of their tests were being reviewed by analysts in private practice. Koppl suggests creating an independent evidence-handling office to coordinate the redundancy tests. Ideally, the tests would be rotated among several private labs. This system would eliminate the perverse incentives that plague state forensics labs. A private lab's incentive would be to discover mistakes made by the state lab. Uncovering those mistakes would enhance the private lab's reputation and prestige. State lab workers could concern themselves only with sound analysis. The incentive to please police or prosecutors would be overwhelmed by the knowledge that an independent lab would be reviewing their work. Their main incentive would be to avoid embarrassing mistakes.

All of this would of course cost money, making the idea a tougher sell in the current fiscal environment than it was when Koppl first suggested it several years ago. But as Koppl points out in his paper, wrongful convictions are also enormously expensive. Taxpayers foot the bill for the initial erroneous investigation, trial, and conviction, the cost of defending that conviction on appeal and in post-conviction proceedings (in most cases, they also foot the bill for the wrongly convicted person's defense), the cost of compensating the wrongly convicted defendant, and then the cost of a second investigation and, if the real culprit is caught, a second trial and round of appeals. Koppel estimates that the cost of just a couple of wrongful convictions would more than pay for the implementation of his proposals.

But the cost of getting the incentives right really should not be an issue. The government's primary responsibility is to protect our rights and safety. Police, prosecutors, courts, and jails are all legitimate functions stemming from that responsibility. But so is ensuring that the people the government puts in prison are actually guilty of the crimes for which they are being punished.

Radley Balko is a senior editor at Reason magazine.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    Rivalrous redundancy is a start...just a start.

  • Matrix||

    The problem is that the government is willing to save $1 today, even if the savings will result in a cost of $1000 tomorrow. I know, I've seen it.

    So, if there is no short-term savings, then the long-term savings will not matter... not to mention the fact that you'll be saving fewer people from being convicted for crimes they didn't commit and focusing efforts on those who DID commit the crimes.

  • Jim||

    Interesting...he backs using state workers, because a strictly private-sector method (as previously used in Mississippi) resulted in reports slanted towards the prosecution, in order to get more business. Is this one of the rare, honest-to-god examples of the private sector not being able to do something as efficient as the gov't (efficiency in this case including a metric for objectivity of analysis)?

  • Radley Balko||

    State involvement is unavoidable because the state runs the criminal justice system. The question is how to conduct forensic analysis in a way that produces non-biased results. I'd be fine with an entirely private system, so long as there are checks in place (like rivalrous redundancy) to ensure that the incentive for analysts and medical examiners rewards sound analysis, not pleasing police or prosecutors. A quasi-privatized system with bad incentives is no better than a public system with bad incentives.

  • Jim||

    I agree with you sir, I was just imagining the howls of outrage if this was posted on Mises.org.

  • ||

    assuming sufficient quantity of sample, it should always be an option for the defendant to get a second test by a private tester of his choice.

    this is how DUI's work in my state. we first use the breathalyzer, but ANY arrestee has an absolute right to get taken to a medical facility and have any doctor, nurse etc. of the suspect's choosing to draw a blood sample as well.

    despite the fact that this is available, it is almost never utilized and defense attorneys always advise against it imo because they know the breathalyzer is accurate. if it wasn't, the blood test would and could prove that.

  • ||

    The state running the criminal justice system IS the problem.

  • ||

    Of course there being no state would guarantee justice. Sorry, as a minarchist who knows that human nature precludes anarcho-capitalism I'm fine with justice being operated by the "state".

  • ||

    You mean the kind that slaughtered several hundred million people in the 20th century?

  • ||

    Being a miarchist does not mean one favors the monopolization of the administration of justice.

  • ||

    ^this. also, the vast majority of the slaughters were undertaken by countries that were anti economic freedom. there's a lesson there.

  • ||

    countries that were anti economic freedom

    You mean, the anglo-americans and their ally STALIN?

    Ah, but the scumbags who lick the boots of the amerikkkan military don't mind murdering a few millions in the name of 'miniarchism'... (who cares if some hundreds of thousands of vietnamese monkeys get killed - or japs - or even better germans - all those are non-american sub-humans)

  • billo||

    The thing is, Mr. Balko, that you are not merely cheering "government involvement" to the most limited possible degree.

    You are cheering federalization and centralization with regulation by Washington-based interests. Your premise, as far as I can see, is that since the States have not done enough, we should cheer the federal takeover and complete federal regulation-- which is what the Leahy bill essentially does.

    That is essentially the standard statist argument, and underlies almost all calls for federal control of most things.

  • Roger Koppl||

    billo, I think Radley was arguing *against* the idea that federal oversight would make much difference. As Radley says, you gotta get the incentives right, which doesn't have much to do with centralization or federalization.

  • billo||

    Good. I misread it, then. I thought that he was endorsing the Leahy bill, which essentially federalizes all of this.

    The problem with putting ME offices under commissions and panels such as the Medical Examiner Commission in Florida (and the national panel envisioned by the Leahy bill) is that while it sounds good to put the ME office under review of "stakeholders," it introduces, and does not add, bias.

    The case in point is that of Dr. Charles Siebert, who was fired because he made the *correct* diagnosis in the death of a young inmate in Florida, but ended up being fired because the diagnosis was politically unpopular. At that point, you ended up having members of the review board saying that while they didn't know anything about forensic pathology, they could count pages, and clearly a long report must be more accurate than a short one.

    There is also the problem that nobody seems to address of the bias that a review must somehow be more correct than the original report. The opposite is often the case -- the original prosector *saw* the case, while the reviewer sees only selected portions from selected views and reviews reports. And, don't kid yourself, reviewers carry their own biases. Yet, the assumption is that the reviewer is always right and the original report is always wrong. When the "rivalrous" review finds something different, who's right? Do you have a second, third, fourth, fifth "rivalrous" review?

  • ||

    Except that the system you have advocated, in which different labs would compete scientifically and economically in the same market, only makes the incentives worse.

  • ||

    Hardly unavoidable, since governments contract out all sorts of services to the private sector, including running prisons and schools and providing services to the military. Why not simply have all forensic science analysis done privately, with state and local governments paying for every analysis done?

    And does Koppl's plan provide any details about where all of these qualified and experienced forensic scientists will be found to re-analyze state crime lab work, and who will pay for them? If there are better ones out there, why not just hire them to do the primary, and most important work? And what provision does Koppl's plan have when the two lab disagree? Best two out of three?

  • Roger Koppl||

    You're getting into some of the nitty gritty, Scott. On cost, see my contribution to the recent volume edited by Ed Lopez:
    http://www.independent.org/pub.....?bookID=86

    Click on my website for more on how to improve forensic science.

  • Chris George||

    No, no, no. CSI showed me: they take a piece of carpet from the crime scene, put it in a science machine, and the computer renders an infallible verdict. No problems.

  • Mensan||

    All while making lots of R2D2ish beeps and whistles. If my computer made that much noise, I'd hit the mute button.

    Also, why the hell is it always dark in the labs on the CSIs? Have the set designers ever been in a lab, or at least seen a picture of one? I won't even get into the instant DNA assays.

  • ||

    What about the 'magic box' used for D,U,I arrests.It's my understanding they have a large rate of error depending on many factors

  • ||

    that understanding is absolute rubbish.

    the breathalyzer (at least under my state protocols)

    takes
    1) ambient room sample (must be .000)
    2) measures the simulator solution and readings must be within tolerances (as well as sim solution being at proper temperature)
    3) takes two individual suspect samples, seperated by a purge of the chamber that must read .000 in between. and the two samples must be very close in readings.

    etc.

    ALSO, any arrestee if they doubt the veracity of the breathalyzer has an absolute right to have us take them to any facility that has doctor or nurse available to take an independent blood sample that they can have submitted for testing as well

    virtually NOBODY takes this option because they know damn well that the blood test would support the breath test, and IF they got it, they would have to try to attack TWO complementary readings vs. one

    about the only crime (at least in my state under these protocols) that an actual innocent person has near complete protections on is DUI.

    fwiw, I was stopped for suspected dUI. I took the FST's and passed.

  • DNS||

    fwiw, I was stopped for suspected dUI. I took the FST's and passed.

    Why were you stopped in the first place? Since you would have had to have been breaking a law in order to arouse suspicion, were you issued a citation for that primary infraction? Or do police officer not need reasonable suspicion?

  • ||

    that's false. one does not have to be "breaking a law" to arouse suspicion.

    it's sometimes true.

    one can be stopped based on a traffic infraction (something as simple as a burnt out taillight)

    OR

    facts and circumstances that would lead a reasonable and prudent police officer to SUSPECT a crime is being committed, was committed, or is about to be committed

    in the latter case, a person can be entirely innocent of having "broken a law in the first place", there merely has to be suspicion thereof.

    the classic example I use is a cop who sees a guy trying to enter a car in a parking lot at 2 am, using a coat hanger.

    is that reasonable suspicion? yes.

    if it turns out the guy is the owner etc. that suspicion vanishes, but the suspicion justifies the stop TO investigate that.

    regardless, the reason I got pulled over was that one of my brakelights was inoperative. i didn't know that, but it justified the stop. i had consumed A beer about 1/2 hr previously and he smelled the odor. my eyes were also pretty bloodshot. I happened to be very tired and had surfed for several hours, which made my eyes very red.

    at that point, he certainly had RS and asked me to take a FST. I knew I wasn't impaired and took it.

    but that;s a fallacy that is often made. the issue with lawful stops is NOT whether or not one has committed a crime (or infraction). it is whether the officer has reasonable suspicion that one has.

    one can very well have committed a crime (or infraction) and the officer has no knowledge of it... stop not justified

    contrarily, one can not have committed a crime or infraction, but the facts and circumstances provide reasonable suspicion of same - stop justified

    he gave me a warning for the taillight. yah!

  • ||

    As Chappelle said, since he doesn't drive on the outside of his car a warning is all one should ever get.

  • David||

    Unless it's the second time that officer has stopped you for that tail light...

  • ||

    As Chappelle said, since he doesn't drive on the outside of his car a warning is all one should ever get.

  • ||

    i cited a guy for reckless not too long ago for letting a minor ride on the outside, specifically on a saucer towed by a rope in the snow. driver went around a corner and slingshot the saucer rider into a mailbox breaking his leg. oops.

    frankly, i had to call the major accident detective to figure that one out. apparently, being towed in a saucer makes one an "external passenger" thus making it a motor vehicle collision.

  • ||

    so what do you mean by accurate,I'm not being a smart a-- I'd like to know from your point of veiw

  • ||

    it's not my pov. it's the evidence. fwiw, there is only one crime i am absoltely 100% convinced i won't be falsely convicted for. that's DUI. why? because if i am arrested, and i am not DUI I can take a breathalyzer and in the phenomenally unlikely possibility that it gives an erroneous reading, i can have a blood test taken at a hospital by a physician and have that value sumbitted as evidence.

    the breathalyzer especially under my state's standards has a metric assload of crosschecks, etc. simulator solution, multiple subject samples, chamber purging, and ambient room air checks.

    furthermore, it must be blown into for several seconds before registering, ensuring alveolar air is measured.

    and again, IF it is was inaccurate, then the blood test results would prove that. except ... they don't.

    `the breath test instrument extrapolates blood results from alveolar air samples. it necessarily and by design has to err on the side of caution in that formula. i have yet to see ONE (just one) example of a breathalyzer giving a higher reading than a blood test when the samples are taken contemporaneously.

    and again, in my state, you have the absolute right to have BOTH taken, and thus you have crosschecking.

  • ||

    oh, and as a corollary, portable breath test instruments are not nearly as accurate,and thus under the frye standard are NOT admissible as direct evidence. a breathalyzer is.

  • ||

    you did not answer the question,what is the accuracy rate,99 percent,95,90 or lower.As for false reading,you can finf many exaples of them in Radley's past post,hundres in DC last year alone

  • ||

    i don't think i've ever seen the # quantified as such.

    let's assume arguendo, that it gives an accurate reading 98% of the time.

    even IF it was only 98% of the time, accurate, and assuming it erred equally frequently to the lower side vs. the higher side, that would mean 1% of people would get a false reading that is detrimental to their defense. in THAT case, they have the absolute right to get a blood sample and have that tested. what is the accuracy rate of blood samples? furthermore, what is the chance that BOTH would give an error that is
    1) in the same direction (iow over the actual %age)
    2) and to the same extent (w/in tolerances) such that it would be acceptable under the formula.

    assume the breathalyzer is 98% and the blood test is 99%

    and the same 50/50 thang.

    then you would have a 1% of the time false reading that is detrimental , and then have a second test that is 99% accurate (thus having only a .5% chance of giving a detrimentally false reading) and THEN both readings would have to be close to each other.

    and even then, when they test a blood sample, they do not use the entire sample. they hold the balance. so, you could get ANOTHER blood test of the same sample

  • Trespassers W||

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  • ||

    i'm not a big fan of federal oversight, but imo since people's civil rights is at stake here, a federal standard for forensics testing would be a good thing. there should be a national standard. ditto for labs.

    CALEA should also require agencies improve their standards if they want accreditation.

    used properly, forensic testing helps convict the guilty, and free the innocent, a laudable goals. the vast disparity in quality, application etc. that balko points out is VERY disturbing.

    the "justice system" long ago ceased to truly be about a search for the truth. with defense, the object is (if guilty as fuck) to obfuscate truth. with prosecutors, all too often, the object is WIN WIN WIN not to seek justice and truth

  • ||

    Since the federal government is supposed to handle external matters and putting more power in the hands of a central government only increases the potential for corruption, then I would rather the federal government stay out of civil rights.

  • ||

    um, no. the federal govt. is not ONLY supposed to handle external matters, although due to commmerce clause chicanery, they handle WAY WAY too much that should be left to states.

    who is to print currency? the states? seriously?

    etc.

    putting more power in any sort of govt.'s hands ALWAYS increases the potential for corruption. of course. however, we still recognize that govt. must have some power/authority, unless one is an anarchist. the question is - does the necessity for govt. to have X power, assuming it is of course consisten with the constitution, outweigh those considerations?

    in our system, it is designed that we have the highest court of the land under federal jurisdiction (the scotus) and they certainly don't only handle external matters.

  • The Fringe Economist||

    Of course they want the results to be non-scientific. The more interpretation there needs to be and the less science, the more "evidence" they will have to build a case.

  • ||

    the disparity between the frye and the daubert standard is not huge, but it is notable. my state conforms to frye. personally, i think it is a better standard in terms of scientific reliability.

    the issue with any standard is to what extent does it exclude valid scientific evidence vs. to what extent does it include evidence that shouldn't be.

    it's kind of analogous to the Type I and Type II error stuff we see in hypothesis testing (and "sensitivity" of medical tests).

  • Colonel_Angus||

    Forensics are a supplement to witnesses and physical evidence. Not a replacement.

  • David||

    Witnesses are also horribly unreliable, unfortunately...

  • ||

    Not all physicians who perform forensic autopsies are "medical examiners." That title should be conferred only on physicians who are board certified in forensic pathology. Generalists who earn extra money by performing forensic autopsies are much more likely to screw up than certified medical examiners.

    The forensic lab situation has been dismal for decades. My profession is clinical laboratory medicine, and if my labs had the same level of quality as many forensic labs, there would be a lot of people dead or injured due to incorrect lab test results.

    The fix to the forensic lab quality problem would be to provide defendents with the resources to send evidence to private forensic labs that have proved their quality. Labs owned by or contracted to law enforcement agencies could then be challenged when their results are biased towards the prosecution. Frequent lost challenges would be grounds for terminating a contract or closing a forensics lab.

  • Roger Koppl||

    I think that's right, Dr. T. There should be a greater "equality of arms" between defense and prosecution. In the 2008 Reason Policy Study Radley links to, I call for a voucher system to ensure that indigent defendants get forensic counsel.

    See p. 25 ff. here:
    http://reason.org/files/d834fa.....6d3328.pdf

  • OJ Simpson||

    See, I toja I was innocent.

  • ||

    "The government's primary responsibility is to protect our rights and safety. Police, prosecutors, courts, and jails are all legitimate functions stemming from that responsibility. "

    HA! Yeah in a perfect world. In the real world, its all about getting a "win". I have personally sat across from government lawyers, both Federal and county, and even though those lawyers KNEW I was innocent, they didn't care. All they cared about was that they had enough to take it to court, figured they could scare me into taking a deal, and then get that "win" that is all important for their career. When your livelihood depends on a conviction, you are going to get one, no matter who's life you destroy in the process.
    Then, lets not forget the prison workers union, that lobbied for the "3 Strikes" law in California. Those people lobbied to lock up more of their fellow citizens, just so that they had job security.
    I have come to the conclusion that anybody who takes a job in law enforcement is rotten to the core.

  • Roger Koppl||

    We don't know how many prosecutors are willing to bend their ethics to get a win, but the incentives are pointed in the wrong direction.

  • One Objectivist||

    It is impossible to get justice-- and the results in america bear this out-- when even the lawyer who works for you is compromised. He is prevented from making arguments that would get you free, lest he be disbarred (example: tax cases, drug cases where arguing that the law is not valid resulted in such threats.)

    The cops who collect all the evidence and control all the forensics work for the state.

    The prosecution obviously works for the state.

    The judge works for the state.

    The laws are made by the state.

    Nowhere in that system is any of these people beholden to justice.

    They are all beholden to the state.

  • ||

    I reject Mr. Balko's presupposition that the forensic labs run by the government are somehow rigged. Police and prosecutors do not start with the presumption that "Mr. X" committed the crime - lets go and get forensic evidence to establish that. What is completely absent from your discussion is that the overwhelming majority of the time lab results come back negative or inconclusive and that people are eliminated from the suspect pool. Forensic evidence is as much a tool for exclusion as it is inclusion. On the strenght of state lab results in we are willing to release a man from prisons if new found DNA exlcludes him. The system is far from perfect and certainly could be improved but it is irresponsible to suggest that there is some hidden hand guiding this process in favor of conviction.

  • Roger Koppl||

    Your reply would be more persuasive, prosector, if crime labs regularly practiced "sequential unmasking"
    (http://www.bioforensics.com/sequential_unmasking/Sequential_Unmasking_2008.pdf) and if the police never practiced "evidence filtering" (http://articles.baltimoresun.com/2008-09-27/news/0809270007_1_dna-crime-lab-found-on-evidence).

    In any event, the point is NOT who's a good guy and who's a bad guy. The point IS to create a system that is robust to occasional (indeed rare, let us hope) misconduct and, more importantly, to the risk of human error. Rivalrous redundancy makes for a more robust system. For as long as humans are humans and gods, it's just good common sense to build a little redundancy into the system.

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