In the New York Times, Eric Lander, founding director of the Broad Institute of MIT and Harvard, provides a ringing condemnation of the use of forensic science in the courtroom.
As miscarriages of justice piled up, it became essential to understand precisely how the criminal justice system made such mistakes and how to prevent them. Troublingly, about a quarter of the cases examined by the Innocence Project (on whose board I now serve) involved forensic scientists who had erroneously claimed to identify defendants with near-certainty by matching hair samples, fibers, shoe prints or bite marks.
There were clearly fundamental problems with forensic science. A 2009 report by the National Research Council, an arm of the National Academies, found that apart from DNA testing, no forensic method had been rigorously shown to consistently and reliably demonstrate a connection between evidence and a specific person.
Or to put it more bluntly, we’ve rested our faith in crap, scientifically unproven and unjustifiable, because people dressed in expert suits took the witness stand, offered jargonized mumbo-jumbo in official sounding tones, and promised that they were right, because science.
As has been made clear for years, neither lawyers nor judges tend to come from strong science backgrounds. Ask most what the scientific method is and they’ll either stare blankly into space or divert your attention to their shiny iPhone.
As the flaws in the courtroom are obvious to scientists, particularly those who don’t make a living off testifying but rather are honest about their discipline, the solution is similarly obvious:
Under the federal rules of evidence, expert testimony must be based on “reliable principles and methods.” It is now abundantly clear that an expert’s opinion is not a reliable basis for drawing connections between evidence samples and a particular person. No expert should be permitted to testify without showing three things: a public database of patterns from many representative samples; precise and objective criteria for declaring matches; and peer-reviewed published studies that validate the methods.
This reflects the chasm between the scientist’s appreciation of science and woeful grasp of jurisprudence. It’s not that this couldn’t happen. It could. It’s that every aspect of our system pushes against it happening.
The law is built on precedent. That means, once an expertise is held to be reliable, it is reliable in every case thereafter, and immune from challenge on the question of its reliability. The premise is finality, that we don’t relitigate every challenge over and over. It’s done. Move on.
And so the law is built on the weakest link. The nastiest defendant, whom we want so desperately to convict that we’ll turn a blind eye to the fallibility of the evidence. The judge who sees her role to facilitating conviction of criminals because she believes that it’s best for society to get its miscreants off the streets and into prisons. The prosecutor who will conceal the infirmities of his proof because he believes in the righteousness of his cause. The defense lawyer who is in over his head, disinterested in fighting the junk being thrown at the defendant.
Does anyone really think the justices of the Supreme Court are unaware that dog hits are little better than a coin toss in determining probable cause? They aren’t blind fools. They are, however, practical, recognizing that if they end the lie upon which constitutional rights hinge based upon science, there will be an awful lot of people who possess drugs who will go free. They knowingly trade off the absurdly bad science of the efficacy of dog sniffing for the effectiveness of catching criminals.
What the law should do is proclaim that all science in the courtroom be halted, that no expert be allowed to testify, until it can be scrutinized as Lander suggests. Except we all know that most of it won’t pass muster. Then what will we do? Our system of convictions depends on our maintaining the belief that we have the right criminal, and that belief depends on our acceptance of junk science which has become the accepted method of proof.
All of this falls within the ambit of the gatekeeper function, that judges shouldn’t permit someone who is deigned an expert to take the witness stand and opine on the meaning of evidence and its conclusiveness and reliability. Once this happens, it essentially removes the question from the jury, as science says the hair found next to Joe’s dead body came from Bill, as did the bullet and the bloody fingerprint. So who can possibly dispute that Bill shot Joe? The question is answered by science, and the jury can sleep well at night knowing that they convicted the right fellow.
While all of the infirmities of proof in the courtroom appear obvious to scientists, they are hardly so clear to others. Judges may not get it, and often don’t. Lawyers fare no better. But that shouldn’t be the stumbling block, as neither judges nor lawyers are scientists. All we need to do is get an expert of our own in whatever discipline is in issue, put the expert on the stand to refute the silliness of the duct tape expert, and turn the trial on its ear.
No one who has ever sought to put an expert on the witness stand would be so cavalier about it. An expert must be found, and most people who possess real expertise have little interest in being in the hot seat. There are experts for sale all over the place, and most have no greater expertise than the slugs who shill for the prosecution. The good ones, the real ones, aren’t nearly as interested in being cross-examined as they are in writing editorials.
Experts need to be paid. There really isn’t much more needed to be said about this. As sincere as their belief may be in whatever their expertise, they don’t appear for love. It’s not that I blame them for expecting to be paid for their services, but of the many things in short supply in the courtroom, funds for the defense are a perpetual problem. And real experts aren’t cheap. If you think lawyers are expensive, put an expert on the stand for an hour.
Experts need to be persuasive. Some people are experts in answering questions at trial, but they rarely are the same as the experts in the underlying discipline. In contrast, many scientists who possess true expertise in their field suck as witnesses. They equivocate. They are obtuse and incomprehensible. They say one thing in the office, than say something entirely different on the stand. They get flustered or angry. They are called for the purpose of furthering the truth, and end up looking like idiots because cross-examination doesn’t happen with the niceties of an academic symposium.
There is no question nearly all the science offered in courtrooms is unreliable nonsense, and to the limited extent the participants aren’t clueless or blind, they realize it. But without it, the system would grind to a halt and the guilty, along with the innocent, would go free. The only thing more important than faith in scientific evidence is faith that our legal system will protect us from the criminals.
It’s not that we accept the conviction of the innocent as the price of a smoothly running conviction machine, but that we are comforted by the certainty that junk science offers, that the system isn’t a huge sham. And the mechanisms don’t exist to do much to change it, because nobody really wants them to.
Update: Jeff Gamso adds in a detail about Lander’s op-ed that needs to be recognized:
“Stunned the legal community”? Really?
THE F.B.I. stunned the legal community on Monday with its acknowledgment that testimony by its forensic scientists about hair identification was scientifically indefensible in nearly every one of more than 250 cases reviewed.
Lander says it was no surprise to actual scientists who’ve known for years that nearly all of what’s called “forensic science” is actually forensic bullshit. But the lawyers have known that, too. Really, anyone who’s been paying attention’s known it.
But Jeff misses the key point. While we’ve been screaming about this forever, nobody cared. Nobody listened, because we aren’t trusted government officials and it’s just us criminal defense lawyers complaining about stuff, like evidence and constitutional rights, again.
That the FBI admitted it is what stunned the legal community (of which, apparently, criminal defense lawyers are too minor a part to be worthy of recognition), because they are official. Now the legal community cares. That’s stunning. Us, not so much.