At Fault Lines, Jessica Gabel Cino emphasized the magical influence DNA has had on the criminal justice system.
With the exception of DNA, no single forensic technique has the potential ability to establish a definitive link of an evidence sample to its source. Potential, however, can be very different from reality, and even DNA evidence has its limitations and weaknesses. The latest reality check: the statistics utilized in the interpretation of DNA mixture evidence could be so wrong that they require retesting of thousands of cases.
That reality check, brought to you courtesy of the Texas Forensic Science Commission, which was aware of the problem for a while but finally got around to making it public, is that DNA mixture analysis not only failed to meet the one in gazillion probability to which prosecution analysts typically testified, but was in fact one in fifty. Oops. Sorry. We bad.
But that comes from the maturation process of science, a reality that’s always denied until it can’t be denied any longer. Today’s gold standard is tomorrow’s total malarkey.
Studies have disputed the scientific validity of pattern matching in bite marks,arson, hair and fiber, shaken baby syndrome diagnoses, ballistics, dog-scent lineups, blood spatter evidence, and fingerprint matching. Massachusetts is struggling to handle the fallout from a crime laboratory technician’s forgery of results that tainted evidence in tens of thousands of criminal cases. And the Innocence Project reports that bad forensic science contributed to the wrongful convictions of 47 percent of exonerees.
They rise. They are accepted as real. They convict. They fall. This is the forensic scientific method, as distinguished from real scientific method. It’s not like lives actually depend on the reliability and accuracy of this science. Oh wait.
But there is yet another, darker, deeper level of problems that is emerging, and worse yet, being accepted. The proprietary code problem.
Take California. Defendant Martell Chubbs currently faces murder charges for a 1977 cold case in which the only evidence against him is a DNA match by a proprietary computer program. Chubbs, who ran a small home-repair business at the time of his arrest, asked to inspect the software’s source code in order to challenge the accuracy of its results.
Chubbs sought to determine whether the code properly implements established scientific procedures for DNA matching and if it operates the way its manufacturer claims. But the manufacturer argued that the defense attorney might steal or duplicate the code and cause the company to lose money. The court denied Chubbs’ request, leaving him free to examine the state’s expert witness but not the tool that the witness relied on. Courts in Pennsylvania, North Carolina, Florida, and elsewhere have made similar rulings.
So you want to have a business that makes you rich by creating some code that puts people in prison? How nice for you. That this is your position, that your secret code is magic and wonderful, but you can’t reveal it or someone else is going to steal your loot, is a perfectly viable argument to make in a capitalist society where making money is an admirable goal.
But then, there is still that gatekeeper role judges are expected to play. You don’t want to reveal your code? Fair enough. But then, your code can’t be used to form the basis of an expert opinion at trial. You’re allowed to make money. You are not entitled to have your magic code used in a court of law.
Some judges, however, haven’t seen their role as clearly as other judges.
We need to trust new technologies to help us find and convict criminals but also to exonerate the innocent. Proprietary software interferes with that trust in a growing number of investigative and forensic devices, from DNA testing to facial recognition software to algorithms that tell police where to look for future crimes.
While “trust” is certainly a virtue, it is not the test of admissibility of scientific testing in court. When it comes to determining whether expert testimony should be admitted into evidence, jurisdictions rely on one of two tests, Frye or Daubert.
The Frye test is essentially one of simplistic deference: if a scientific technique is generally accepted by the relevant scientific community, then it’s good enough for court. Daubert, on the other hand, would require the scientific technique to be reasonably proved as valid by scientific method. Trust is a feeling. Science is not.
So how can either test be met when the underlying code is proprietary? After all, it’s not like any other person in the scientific community has a basis aside from the proprietary source to reach consensus that it’s valid, and certainly it can’t be proved by scientific method since no one else has the code to test.
Jeez, those are tough questions for someone whose job it is to serve as gatekeeper, to determine whether junk science gets to stroll into the courtroom as if it was real. Except that it’s really not hard at all, unless the judge feels some overwhelming need to accommodate the prosecution’s desire to introduce expert testimony based on proprietary coding rather than do his job.
Isn’t subjecting the testifying expert to the crucible of cross good enough? As much as cross-examination, as a concept, is invaluable, in this instance, it’s tantamount to crossing a black box. Black boxes don’t talk. It’s a pointless endeavor when the only response is, “the black box says so.”
The problem here, which is not only very real, but may well come back to be yet another disgrace in the annals of forensic junk science despite there being so little room left on the Wall of Shame. Unlike so many past failures, the problem here isn’t based upon judicial scientific cluelessness combined with the arrogance of power that allows judges to believe that they know enough to make a science-y decision. While that’s a huge problem, it isn’t the problem here.
The rules would strike anyone who isn’t desperately trying to facilitate the prosecution’s introduction of evidence to convict as remarkably clear and straightforward: You can keep your proprietary code a big secret, or you can have your cash cow used as evidence in a court of law, but you can’t have both. There is no other legally acceptable option. Problem solved.