This week, the President’s Council of Advisors on Science and Technology (“PCAST”) released a system-shaking report that explains how several fields of forensic analysis—including bite-mark analysis, hair comparisons, and shoeprint analysis—lack adequate scientific validation. Although many of these techniques have not been shown to be sufficiently reliable, they have been permitted to produce evidence in criminal cases across the country for many years. It is no wonder that D.C. Circuit Court of Appeals Judge Harry Edwards and Jennifer Mnookin, the dean of UCLA’s law school, wrote in the Washington Post that “[t]he report is a much-needed wake-up call to all who care about the integrity of the criminal-justice system.” Rather than waking up, however, the National District Attorneys Association (“NDAA”) is doubling down on the pseudo-science masquerading as forensic evidence. Given that district attorneys themselves widely evade accountability and face inadequate constraints on their power, perhaps it is no surprise that their representative organization is unwilling to stomach expert scrutiny of the evidence prosecutors introduce in criminal trials every day.
PCAST is no group of unqualified slouches, it is a prestigious body comprised of well-respected scientists from around the country. As Judge Edwards and Mnookin (senior advisors to the report) explain, “[w]hat is noteworthy about the new report is that it is written solely by eminent scientists who carefully assess forensic methods according to appropriate scientific standards.” Yet, in a press release issued shortly after a draft of the report was circulated before its official publication (and likely before most of the NDAA’s members even read it), the NDAA claimed that the report’s authors suffer from a “lack of qualifications” and asserted that the report’s conclusions are “scientifically irresponsible.” The basis for these harsh allegations? The mere fact that PCAST had the gall to call the prevailing system into question without deference to “settled law”. Their press release reads: “Notwithstanding the lack of qualifications, PCAST has taken it upon itself to usurp the Constitutional role of the Courts and decades of legal precedent and insert itself as the final arbiter of the reliability and admissibility of the information generated through these forensic science disciplines.”
Indeed, “settled law” has been responsible for the continued reliance on even the worst of forensic practices, including bite-mark analysis. Some defendants are still facing lifelong sentences—if not execution—today as a result of convictions based on this faulty forensic evidence. The Washington Post’s Radley Balko has been following a trail of these cases from Mississippi for years. These cases suggest that, like the NDAA, some thoroughly discredited forensic “experts” like Michael West are totally unwilling to accept challenges to the scientific validity of the work. Indeed, Balko recently reported that West “gave  testimony in  cases that resulted in convictions of people we now know were not guilty. Yet he doesn’t show the slightest bit of regret or reverence for what has happened. Only defiance.” Defiance.
PCAST’s report does not undermine all forensic disciplines; far from it. Instead, it recommends that those disciplines develop standards to validate their methods. In other words, it embraces the basic proposition that the scientific method should be used to evaluate the fitness of “scientific” evidence regularly brought into criminal trials. And, at this juncture, “many forensic techniques do not yet pass scientific muster . . . . impl[ying] [that] these techniques are not ready for use in the courtroom either.”
If prosecutors are meant to seek justice rather than simply push for convictions, why is the leading organization of prosecutors so forcefully battling scientists who want to ensure that courtroom evidence is more reliable? Judge Alex Kozinski of the Ninth Circuit Court of Appeals (another senior advisor to the report) wrote in the Wall Street Journal that “[p]roblems with forensic evidence have plagued the criminal-justice system for years.” Given that one of the most well-respected federal judges in the country has recognized this problem, it is notable that still the NDAA is unwilling to yield even an inch. (In breaking news, the Department of Justice itself is evidently siding with the NDAA, as Attorney General Loretta Lynch announced today that the department is not adopting PCAST’s recommendations regarding the admissibility of forensic evidence. So go the prosecutors, sticking to the pack.)
Jordan Smith at the Intercept appropriately brought attention to the NDAA’s perverse press release. As she explained, “[p]redictably, reaction to the draft report by the . . . NDAA was swift. On September 2— the day after the PCAST reportedly voted to approve it— the group issued a press release blasting the PCAST—and, seemingly missing the point the PCAST is trying to make.”
Here at the Open File, we have observed that aggressive prosecutors often rely on bogus “science” to paper over weak or even plainly vindictive prosecutions. As we stated in that earlier post:
precisely because . . . bad science and bad prosecutors often go together, it will require all the more journalistic and legal resources to vindicate the rights of those given unfair trials because it is these prosecutors who are most likely to resist the evidence of their misconduct and sharp practices. The first step, for anyone interested in prosecutorial accountability, is to document the evidence and highlight those instances where the illegitimacy of the evidence and the accompanying malfeasance of the prosecution has been brought into the light of day.
While the NDAA continues to fight against progress and fairness in the criminal justice system, PCAST has taken a critical step to safeguard that system from unreliable evidence. Judge Edwards and Professor Mnookin are right to suggest that “[t]he integrity of our criminal-justice system deserves no less. Requiring that the forensic methods we use in court have a reasonable modicum of scientific validity is neither pro-defense nor pro-prosecution; it is, rather, both pro-science and pro-justice.” To the NDAA—and apparently to the DOJ as well—this requirement is an encroachment on the discretion they have enjoyed without oversight for the past three decades, and they don’t like it one bit.