Criminal Justice

L.A. Times on Forensics Reform

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The 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 (this site's publisher). Koppl and I also wrote a condensed version of his recommendations for Slate.

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  1. Develop standards like the tech sector. It’d still be panels, but more academic. Like ITU, RFC stuff.

  2. I’m not a kiss-ass, and I don’t regularly comment on this blog, although I read it religiously. But I’d like to thank Radley Balko for his relentlessness in covering this topic fairly and objectively, and his modesty in (not) trumpeting his own role in discrediting bite mark analysis and the criminal abuses of Dr. Stephen Hayne. He deserves whatever rewards come his way, though I doubt they will be many.

  3. Another problem is juries taught every single night on prime-time television that forensic science always has the gospel truth.

  4. If evidentiary standards of this sort, which are so often crucial to the outcome of criminal litigation today, vary so greatly, then that represents an arbitrariness within our judicial system that may threaten both our liberty and our right to due process. Great article.

  5. The problem of courtroom expertise being politically rather than scientifically defined would surely be solved by adding a pre-captured regulatory layer to it.

  6. I think the question really is whether a federal standards agency could keep itself from aligning with the government, i.e. the prosecution. Government tends to work for itself.

  7. Public defenders work for the government, would the agency align itself with them too Episiarch?

  8. How often do you find an article on Reason advocating a new government agency?

  9. A good point JD. At least in the federal courts, public defenders are funded and supervised by the courts, not the DOJ.

    So, Bite Mark, what’s your better alternative, or are you happy with things the way they are?

  10. So, Bite Mark, what’s your better alternative, or are you happy with things the way they are?

    I can’t speak for Bite Mark, but I think the system would be improved by testing potential jurors for knowledge of basic science, math, and logic. But that “of your peers” thing must be considered, I suppose.

  11. Public defenders work for the government, would the agency align itself with them too Episiarch?

    Seeing as the forensic labs and coroners seem to align with the prosecution most of the time, my question seems pretty valid to me.

  12. From what I’ve seen of the mixed results of federal standards efforts in other fields, I would not trust a government agency in a field as sensitive as this one. Even federal funding of a private standards organization could improperly influence its development and operation.

    What is needed are a few successful lawsuits against bad forensic witnesses that would encourage the funding of one, or preferably more than one, private standards organizations led by prominent scientists who do not themselves appear as witnesses. Let the private sector sort this out. The government can encourage them rhetorically, but otherwise needs to stay out of it.

  13. Your question was about regulations by the federal government pertaining to coroners and forensics labs Episiarch… not about what coroners and forensics labs already do, according to you. What if these regulations inhibited the action you allege? What then?

  14. Dear Jon Rowland,

    The law is a product of government, not the free market. I think you have it backwards.

    Sincerely,
    J D

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