Criminal Justice

Reforming Forensics

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Fairleigh Dickinson Professor Roger Koppl argues for a significant overhaul of forensics in the U.S. in the current issue of Forbes. Forbes editor William Baldwin was alarmed enough at Koppl's examples of forensics malfeasance to write a sharply-worded editorial of his own.

Koppl wrote a study on forensics reform for the Reason Foundation, and wrote a summary of the study for the November issue of reason. Koppl and I have also co-written an article touching on similar themes that will appear in an upcoming issue of Engage, a journal published by the Federalist Society.

Koppl's work deserves more attention. Controlled studies have shown that the bias forensic experts absorb even by such seemingly innocuous interactions as speaking with police and prosecutors before running tests can have a disturbingly significant impact on their results. This bias exists even in well-intentioned, professional scientists. That's bias that's independent of the more egregious examples such as Dr. Hayne in Mississippi, or cases where prosecutors put ethically dubious pressure on forensics experts to tailor their findings to help the prosecution's case.

Koppl's proposals employ competition, proper incentives, and strategic manipulation of information (that is, separating information about the crime from the analysis of the evidence) to produce more accurate results—results less likely to be influenced by unintended bias, and that also would also go a long way toward uncovering the more egregious offenders. Koppl estimates that the cost of implementing his ideas would be less than the cost of just a couple wrongful convictions.

The most urgent of Koppl's reforms is the idea of giving forensic vouchers to indigent defendants. We need a Gideon v. Wainwright for forensics. Until defendants are given access to their own experts, far too many criminal cases will feature testimony only from state forensic scientists, and all the problems that come with that. When only one guy with letters after his name is testifying, jurors are going to tend to put quite a bit of faith in what he says. We've seen this even when what the expert is saying is absurd, and scoffed at by just about everyone else in the scientific community. When poor defendants aren't given access to their own experts, then, it calls into question whether we really have an adversarial criminal justice system.

Unfortunately, too many people think all of the country's forensic labs work like the ones they see on CSI. I'm not sure it's enough to merely ask that judges take a more aggressive approach to weeding out the frauds. First, judges can be duped, too. Second, even competent, professional forensic scientists can make mistakes. The changes need to be more radical. Another of Koppl's suggested reforms essentially applies the idea of peer review to the criminal forensics process. That would go a long way toward cutting down on mistakes, intentional and otherwise.

NEXT: Marion Barry for School Vouchers

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  1. This should help significantly if it gets adopted. I’d really love to see a greater emphasis on adopting double blind methodology. After all, the double blind study is the gold standard of scientific objectivity.

  2. Controlled studies have shown that the bias forensic experts absorb even by such seemingly innocuous interactions as speaking with police and prosecutors before running tests can have a disturbingly significant impact on their results.

    This reminds me of the story of how music auditions started to be held behind curtains where the judges couldn’t see the performer, because it was found seeing the performers greatly altered the judges’ evaluation of their musical aptitude.

    Surely the pursuit of justice is as least as important.

  3. I think this is an example of the Constitution being elastic to new technologies. Having the only guy in the room who knows how to perform an autopsy be somebody who is friends with the prosecutor and isn’t friends with the defendent is no more a breach of due process than having the only guy with a law degree be the attorney general or one of his delegates. Forensics scientists are supposed to be objectively presenting evidence, and prosecutors are supposed to be trying to find the truth, but you need someone there challenging them or people get railroaded.

  4. “We’ve seen this even when what the expert is saying is absurd, and scoffed at by just about everyone else in the scientific community.”

    There is a Supreme Court test for admission of new scientific methods and one of its major factors is whether it has been accepted by the scientific community so supposedly this should be taken into account.

    “Another of Koppl’s suggested reforms essentially applies the idea of peer review to the criminal forensics process.”

    I know peer review already happens with fingerprints but it’s not very effective because it’s not blind so the reviewer is more likely to back up what his/her colleague found.

    “First, judges can be duped, too.”

    There’s a really interesting case from a Pennsylvania fed court a couple years ago where a judge threw fingerprint evidence out because it failed the supreme court test… then the DOJ complained a bunch to him privately and he reversed himself two weeks later.

    “When poor defendants aren’t given access to their own experts, then, it calls into question whether we really have an adversarial criminal justice system.”

    I clerked at a public defenders office in a wealthy bay area county and our PD’s were top notch and had their own really good experts. I would trust them over a lower to mid tier private defense attorney any day.

  5. There are no “mistakes” to be reformed away. The courts are machines for manufacturing convictions, and they do it with almost perfect efficency.

    Talking as if prosecutors, “experts,” judges, juries, or even defense attorneys care about evidence will get you nowhere. It doesn’t even make sense.

    But they’ll like this “forensics voucher” idea. More gold for the guild.

  6. Talking as if prosecutors, “experts,” judges, juries, or even defense attorneys care about evidence will get you nowhere. It doesn’t even make sense.

    But they’ll like this “forensics voucher” idea. More gold for the guild.

    Throw this guy a life preserver; he’s drowning in a sea of cynicism.

    This sort of bitterness stems from taking examples of actual abuse and generalizing very poorly from them. You’ll find that if you insert the word “some” (perhaps even the word “many”) before each of those groups, you’ll have an actually accurate statement. But it is certainly not true of the whole group; jury trial systems are demonstrably, emphatically better than what had come before, whereas if you are to be believed, there has never been any progress in criminal *justice*.

  7. Then color me cynical too.

    Our justice system was the best ever devised by man (still not perfect mind you) but it has been perverted to a legal system where justice is not even welcome for lip service let alone real consideration.

    Mens rea is gone. To get around owners rights they ROUTINELY charge objects with crimes.

    Jury rights are undercut in virtually EVERY set of jury instructions I’ve ever seen.

    Defendant’s constitutional rights . . . ROFL. Seriously, not worth mentioning anymore. What country are you living in?

    These are THE NORM. They aren’t some few and far between examples.

  8. Color me cynical three.

    Just the fact that we can be stopped at any time while traveling in a car means that the concept of probable cause is nearly dead.

  9. To offer some defense of forensic science here (my wife is a DNA analyst), the lab does need to have some interaction with police and prosecutors. Without that interaction, they really have no idea what tests to run or what samples to look at. It’s fairly routine for them to get 20 bags of evidence. Without some direction as to what they’re looking for, it would be functionally impossible to get more than a few cases a year processed.

    That said, the biggest change that needs to be made is to give defense attorneys the same level of lab access as police and prosecutors have. Known samples should be submitted along with 5 other random samples. Independant testing by multiple labs would be nice, but often is not feasilble.

  10. I’m fairly cynical, but the amount of cynicism that kynismos’ comment displayed was absurd and nihilistic. There are real erosions to concepts like probable cause as others have noted, but the system is not a “perfect machine for manufacturing convictions” by any stretch of the imagination.

    If it *were* true, then we might as well just go back to star chambers and monarchial justice. I’d be shocked if anyone here (besides Neil) thinks that is a good idea, and the probably reason for that is that the adversarial jury system is loads better than the old ways, despite its backsliding and defects. To say, essentially, *why bother* improving systems of forensic analysis to be more just is yet another perfection performing as the bitter enemy of the good.

    To overstate the case is to overshadow the real problems and simultaneously make finding solutions sound pointless and futile. The very definition of counterproductive, IMO.

  11. True it is not a PERFECT machine for manufacturing convictions, however it has been turned from an imperfect justice system into a machine for manufacturing convictions (albeit imperfect).

  12. Unfortunately, too many people think all of the country’s forensic labs work like the ones they see on CSI.

    Some here in Motown (those who read the news, admittedly a minority), are not laboring under that misconception.

    Accuracy of crime lab is questioned
    All firearms investigations temporarily suspended

    Sigh.

  13. I clerked at a public defenders office in a wealthy bay area county and our PD’s were top notch and had their own really good experts. I would trust them over a lower to mid tier private defense attorney any day.[emphasis added]

    How do you think that works in Gary, Detroit, and Gallup?

    Possibly not quite as well?

  14. In calling for a Gideon v Wainwright for forensics, isn’t Reason advocating the creation of a new, expensive entitlement — insofar as someone (taxpayers) would have to provide the funding for all those indigent defendants’ experts? I do agree that justice is not served when Hayne-type “experts” are the voice of authority in the courtroom, but it looks like a case of libertarians being willing to advocate for the expenditure of more public money so long as the cause is dear to their hearts.

  15. Sometimes the distortion of justice is not subtle, but dramatic and truly shocking.

    Here in Oklahoma we had a forensic chemist named Joyce Gilchrist, a favorite expert witness for Oklahoma County District Attorney Robert Macy.

    Gilchrist frequently testified to assert “facts” that were beyond the capacity of the underlying science– and sometimes just outright lied. Moreover, her work in the lab was substandard and careless.

    Her testimony helped Macy maintain a high “kill rate”, building a track record of convictions that helped to re-elect him to his office.

    During her 15 year career, Gilchrist helped to convict 23 persons in capital punishment cases.

    Many of the cases in which GIlchrist testified, capital or lesser, have been successfully appealed. Unfortunately, some questionable convictions have yet to be reviewed, and at least convicted defendant has been executed before his case came under scrutiny.

  16. Roger Koppl writes that the core problem with the forensic system is monopoly. His point is of course that because they are ostensibly generating “knowledge” this amounts to an **epistemic** monopoly. By definition there is a sense of epistemic infallibility in monopolies: they wouldn’t know if they were wrong and have no incentive to find out. To redress this Koppl suggests an epistemic marketplace. Koppl is not suggesting a vulgarized “supply and demand” marketplace but merely presents the conditions that would best **promote** truth. Truth is an intrinsic good with profound moral import, not to mention the economic, scientific and social benefits that accrue.

  17. “it looks like a case of libertarians being willing to advocate for the expenditure of more public money so long as the cause is dear to their hearts”

    Being “libertarian” is not about not having the gov’t spend money across the board. It is about it spending it only in the areas where they should have the power to do so.

    In those areas, it is perfectly rational to suggest in some cases they should be spending more … particularly since they can get the money by removing it from the many places where they are spending it unwisely.

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