The New York Times pre-announcement of the report of the of the National Academy of Sciences report on the junk science used by prosecutors in the courtroom promises a scathing critique. It’s touted as a “must read” for criminal defense lawyers, and no doubt it will be. But.
This is not a judicial ruling; it is not a law,” said Michael J. Saks, a psychology and law professor at Arizona State University who presented fundamental weaknesses in forensic evidence to the academy. “But it will be used by others who will make law or will argue cases.”
Legal experts expect that the report will give ammunition to defense lawyers seeking to discredit forensic procedures and expert witnesses in court. Lawyers could also use the findings in their attempts to overturn convictions based on spurious evidence. Judges are likely to use the findings to raise the bar for admissibility of certain types of forensic evidence and to rein in exaggerated expert testimony.
Anyone who tries cases for a living, and has enjoyed the experience of some insane government witness tell a jury, with a look so sincere that you just want to take him home and love him, that it’s impossible to get fingerprints off a nice, shiny chrome pistol, is left to ask one question.
Who’s going to be the one to shut down prosecution witnesses spouting all the traditional junk science nonsense that has put tens of thousands of people in prison for the last few generations?
For those of us who spend a bit of time monitoring the decisions on new “science” in the courtroom, and watch with incredulity as judges shrug and take the word of very official sounding pseudo-experts who proclaim the infallibility of whatever scientific tripe they are selling, writing about or spent the last months learning at the Government School for Expert Witnesses, one thing is painfully clear. Judges have no more clue what good science is then we do, and when asked to pass on the accuracy of expert testimony in some scientific endeavor, invariably turn to the research to see if some other judge has already allowed it. If so, it comes in. If rejected, it doesn’t. If truly novel, God help us.
Am I being silly? Ask any cop who takes the stand to explain that some mope blew a .18 on the Intoxilyser 5000 how the little black box figures that out. He won’t know. It’s a box. It shows a number. That’s it. Object and the judge will look at you like you’re nuts. Everybody knows the Intoxilyser 5000 is admissible. Why? Because one judge somewhere held a hearing and said so. After that, the rest of them go along for the ride. When the day comes that they figure out that the little black box may not be quite perfect, they will have a new little black box that is “much more accurate.” But if the new one is much more accurate, doesn’t that mean the old one was inaccurate?
This report could blow the roof off junk forensic science. But only if judges across the country chose to care. The report itself will never find its way before a jury. Sure, we’ll question witnesses about it, just as we do now to challenge the actual scientific underpinnings of their “expertise”. And the judges will let these pseudo-experts testify anyway, just as they do now, because they feel that there’s no other choice. Once one judge opens the gate, it’s open forever. That’s how science in the courtroom works.
The use of dubious science is so routine in courtrooms that experts are frequently avoided by having a cop testify that he took a course at the Academy and can now testify on all manner of forensics. The beauty of this testimony is that it’s purely conclusory, the cop either explaining that he doesn’t know why something happens, but that he knows that it’s 100% reliable. The judge just nods. That’s all it takes to get something in front of a jury. I’ve seen judges allow expert testimony from agents with all of 37 minutes of experience come in as if he’s a professor emeritus from MIT. Over objection, naturally.
The sad fact is that science and law don’t mix. Lawyers aren’t scientists. Judges aren’t scientists. We hear the words that come out of true expert’s mouths and it gives us a headache. We study up in advance of testimony and become overnight “experts” as best we can, but we are constrained to accept the popular notion about what is and is not real because the literature can’t make us truly understand all the chemistry, physics, biology, etc. needed to bring us from the core science to the junk spoken from the witness stand.
I applaud the National Academy of Sciences for having done this study, and for having overcome the government’s opposition to anyone challenging their self-serving insular control over what constitutes valid scientific evidence. But this report alone won’t do anything if judges, each and every one of them, won’t take the responsibility to put an end to witnesses spouting nonsense in the name of science and for the goal of convictions in front of a jury.