Ask any criminal defense lawyer about the joys of forensic science and you’ll likely get an earful. It’s not just that junk science is junk, but that we’re accutely aware of its use, its misuse and the impact it has on juries. So Edward Humes op-ed in the L.A. Times comes as no surprise.
Forensic science’s shortcomings have left the justice system alternately in a quiet panic or massive denial. The issue was first brought into the spotlight by a highly critical report from the National Academy of Sciences in 2009, which found a dearth of scientific backing for most forensics methods other than DNA. It cited evidence that “faulty forensic science analyses may have contributed to wrongful convictions of innocent people.” That report was followed by an even more blistering presidential commission report in 2016, which found serious errors and junk science in a host of commonly used forensic methods tying suspects to crimes.
Note the dates. The NAS report was 2009. The presidential commission report was 2016. Yet, here we are, still talking about it. And there it is, still being admitted into evidence. Argue over Frye or Daubert all you want. It’s still coming in.
But at least there’s DNA, and everybody knows that’s legit.
The rigorously researched and peer-reviewed newcomer to forensics, DNA matching, has thrown into sharp relief the lack of scientific rigor in many other forensic disciplines. According to data gathered by the National Registry of Exonerations, of the 2,363 inmates exonerated of murder or other serious felonies since 1989 (most commonly through DNA), 553 were convicted with flawed or misleading forensic evidence—nearly one out of four.
Except its preclusive use is different than its inclusive use, as DNA likes to travel and get itself all over the place. It’s like drug field tests that way, solid to prove the negative but not to prove the affirmative. Even Hume, in challenging junk science, made the egregious error of promoting DNA without grasping its limitations, from overstating certainty of a match to lab techs fudging the results.
Then comes the New York Times to troll us with the latest and greatest solution.
They call it the “magic box.” Its trick is speedy, nearly automated processing of DNA.
“It’s groundbreaking to have it in the police department,” said Detective Glenn Vandegrift of the Bensalem Police Department. “If we can do it, any department in the country can do it.”
DNA is magic. The box is magic. What could possibly go wrong?
But already many legal experts and scientists are troubled by the way the technology is being used. As police agencies build out their local DNA databases, they are collecting DNA not only from people who have been charged with major crimes but also, increasingly, from people who are merely deemed suspicious, permanently linking their genetic identities to criminal databases.
Collecting DNA has already become a fixture in the government’s CODIS database, and the more DNA collected, the better. Except when snippets connect bad dudes to relatives and the SWAT team bursts into their house, preceded by a flashbang grenade because cops are people too, surprising the nice sleeping children who react poorly to conflicting commands as the bullets fly. Or with less melodrama, having to explain to your local cop why you didn’t murder anyone when they’ve got your DNA on the coffee cup you handed to the nice customer wearing a hood.
Moreover, there is little agreement on which types of genetic material should be run through the device. Valuable genetic evidence is likely to be rendered useless if handled by nonexperts, critics say, and police officers risk being misled by the results of Rapid DNA analysis.
Handling DNA isn’t as easy as it seems on the telly, so there’s the problem of cops ruining good evidence when they try to shove it into the magic box.
“There are not the same standards and rules and safeguards that are in place for the national database,” said Michael Coble, the associate director of the University of North Texas Center for Human Identification. “Who is going to change that? I don’t know.”
And if there were “standards and rules and safeguards”in place, what exactly would any of you propose to do to the burly cop who decided he didn’t care and was going to do it his way?
But it’s rapid, and it’s DNA, and that means cops can solve crimes quickly. Certainly that’s a good thing, a vast improvement over the prolonged process for DNA matching by experienced and qualified techs who still managed to mess it up with regularity.
“To say they haven’t been validated in the same way doesn’t mean it’s an inappropriate use of the technology,” said Melissa Schwandt, a senior application scientist at ANDE. Vince Figarelli, the superintendent of the Arizona Department of Public Safety crime lab, emphasized the benefit to police.
“You’ve solved the crime that day rather than waiting six months, eight months or years to get through lab backlogs,” he said.
How cool that they can get results in a day rather than six months, but the issue isn’t merely timing but the “solved the crime” part. Remember fingerprints, the “old gold” standard?
Even the seeming infallibility of fingerprint evidence took a big hit. Multiple experts at the FBI’s vaunted Latent Print Unit incorrectly matched a Portland, Ore., attorney to prints found at the scene of the 2004 Madrid train station bombing. The prints actually belonged to an Algerian terrorist. A form of cognitive bias — finding what you expect to find— has been blamed because the FBI examiners had received extraneous information about the lawyer converting to Islam, and they were also told that a respected senior agent had already declared a match.
Remember Brandon Mayfield? We’re always certain that science will save us until it fails. And yet, it keeps happening, over and over, and nobody seems to connect the dots that the newest shiny forensic weapon in the war on crime won’t prove infallible. Now at a police station near you.