Tue, 10 Feb 2009 20:28:01 +0000 – By Radley BalkoSenior Editor, Reason Magazine
A forthcoming studyfrom the National Academy of Sciences on the poor quality of forensic science in America's courtrooms is expected to send shockwaves through the criminal justice system. According to The New York Times:
"People who have seen it say it is a sweeping critique of many forensic methods that the police and prosecutors rely on, including fingerprinting, firearms identification and analysis of bite marks, blood spatter, hair and handwriting. The report says such analyses are often handled by poorly trained technicians who then exaggerate the accuracy of their methods in court."
Law enforcement organizations have tried to derail the report nearly every step of the way, and with good reason. Police and prosecutors have been relying on bad science to get convictions for decades. It's only recently, as the onset of DNA testing has begun uncovering a disturbing spate of wrongful convictions, that some of the criminal justice system's cottage industry pseudo-sciences like "bite mark analysis" have been exposed for the quackery they are.
The power of DNA to exonerate the condemned has us quickly learning that our courts have for years been corrupted by charlatans and snake-oil salesmen, such as Mississippi's dubious "bite mark expert" Dr. Michael Westand impossibly industrious medical examiner Dr. Steven Hayne; Kansas City's Dr. Joyce Gilchrist; or Maryland's Joseph Kopera, to name just a few.
The report's critique of forensic evidence is much needed, but the proposed solution doesn't sound promising. According to The New York Times, the report:
"...concludes that Congress should create a federal agency to guarantee the independence of the field, which has been dominated by law enforcement agencies."
The problems with the forensics system aren't going to be resolved by creating a new federal bureaucracy. Lack of federal oversight isn't the problem. According to The New York Timesarticle, the NAS report is particularly critical of the FBI crime lab, long considered the gold standard in forensics, and whose technicians often advise state crime labs on best practices.
The problem with criminal forensics is the government monopoly on courtroom science in criminal trials. In too many states, forensic evidence is sent only to state-owned or state-operated crime labs. There's no competition, no peer review, and in some cases, crime lab workers either report to or can be pressured by prosecutors when test results don't confirm preexisting theories about how a crime may have occurred. This sort of bias can creep in unintentionally, or it can be more overt. But studies show it's always there. The only way to compensate for it is to bring competitors into the game, other labs who gain by revealing another lab's mistakes. Every other area of science is steered by the peer review process. It's really unconscionable that criminal forensics--where there's so much at stake--has existed and evolved so long without it.
It wouldn't be a bad idea to set up some sort of task force within the Department of Justice devoted to investigating and prosecuting cases of outright forensic fraud. If prosecutors are conspiring with or pressuring experts to deny criminal defendants a fair trial, that would be a due process violation and under the Fourteenth Amendment, the federal government would be permitted, or even obligated, to step in. Certainly a state like Mississippi, for example, has neglected its dutyto ensure that its citizens accused of violent crimes are given a fair trial.
But if we're really serious about making a true science out of forensics, we need to fundamentally alter the way forensic evidence is generated for use in the courtroom. Roger Koppl, an economist and forensic expert at Fairleigh-Dickinson University has come up with some excellent suggestions (disclosure: Koppl outlined these suggestions in a report(pdf) for the Reason Foundation, which publishes the magazine I work for. Koppl and I have also co-writtentwo articles on this issue). Among them:
-- Defendants should be given access to their own forensic experts. For every prosecution expert, defendants should be issued a voucher to hire their own expert.
-- Forensic evidence (autopsies, fingerprints, blood samples, and so on.) should at least periodically be sent to more than one lab for testing. Even sending just every third or fourth sample to an indepenednt lab would go a long way toward keeping state labs honest (state labs wouldn't know when other labs would be doing the same testing).
-- Forensic experts should refrain from talking with police and prosecutors before conducting their tests. Studies show that exposure to theories about how a crime may have been committed beforehand can bias an expert's results, even unintentionally. States should hire evidence handlers to shepherd evidence between law enforcement and crime labs without conveying any contextual information about where or how the evidence was obtained.
-- State forensic experts should not serve in the same state bureaucracy as police or prosecutros. Ideally, they should report to criminal court judges. Barring that, they should be independent, and not in any way be considered part of the prosecution's "team."
-- States should conduct periodic statistical reviews of crime lab results, to see if any labs or individual lab technicians are producing statisically unlikely results.
These ideas sound radical, but in truth they amount to little more than applying basic scientific principles like peer review, blind testing, and repetition to the evidence and opinions currently presented in criminal cases as science, but isn't subjected to the sort of scrutiny and review other sciences are. Forensic science is in bad need of reform, but it needs to be the right kind of reform. What we don't need is another layer of government bureaucracy that imposes a series of negotiated, compromised-for standards and practices, then fails to properly enforce them.