As we explained a few months ago, highly-respected scientists have levied heavy criticisms against our criminal justice system’s reliance on various forensic sciences. In September 2016, we wrote:
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 they introduce in criminal trials every day.
Last month, Professor Adam Shniderman of TCU published an article in the Yale Law Journal Forum that underscores concerns many have expressed both about the integrity of this so-called “scientific” evidence and prosecutors’ insistence on defending it at all costs. As Shniderman puts it, “[t]he NDAA’s hyperbolic response to the PCAST Report borders on contempt for truth and justice.” Comparing the current critiques of various forensic sciences to the earlier cycle of challenges against DNA evidence in its nascence, Shniderman observes that scientists in the 1990s responded by addressing legitimate accuracy and reliability concerns to make DNA evidence the “most conclusive forensic feature comparison discipline.” If courts, legislatures, and prosecutors take the PCAST Report to heart, they would encourage forensic scientists to address the flaws that make some fields—like latent fingerprint identification—unreliable. But, as Shniderman writes, “the NDAA’s hostile attitude toward reform suggests an emphasis on convictions and a belief that the criminal justice system’s current error rate is ‘good enough.’” His conclusion is a sound one: “Until law enforcement officials and forensic science organizations and practitioners are open to engaging in meaningful reform, little progress will be made and miscarriages of justice are likely to continue . . . .”
One journalist who has long covered these miscarriages is Radley Balko. His work makes clear that prosecutors are not the only ones perpetuating the problems with junk science; judges have regularly failed to hold this evidence inadmissible at trial despite compelling evidence that it is unreliable. This past week, Balko published a piece bringing to light the fact that “not a single court in the United States has upheld a challenge to bite mark evidence.” One of the major problems, Balko points out, is that courts generally lack the scientific expertise and knowledge needed to evaluate most forensic evidence. Shniderman’s piece also explores the issue in some detail, and covers it well. Balko observes that courts rely on the fact that other courts have admitted bite mark evidence to determine that it must be admissible. He contends, “[t]hat this is such a strong argument in the courts demonstrates about as emphatically as anything just how ill-equipped the courts are when it comes to assessing science.”
Though judges certainly deserve some of the blame for their failure to consider meaningfully the weight of real scientific expertise, Balko circles back to the real culprits in our nation’s junk science crisis: prosecutors. Reviewing pleadings in a recent case that are representative of briefs prosecutors commonly file in opposition to defense challenges to bad forensic sciences all around the country, Balko writes,
They’re arguing that the only opinions that should matter in these cases are those of prior courts, prosecutors, law enforcement and the small community of forensic analysts in the very field being challenged. . . . In other words, the only people we should listen to are the same people who have gotten it wrong, over and over again.
His conclusion is powerful:
In a just world driven by true merit, prosecutors [like the ones mentioned in this article] would be sanctioned or even lose their jobs for such brazen attempts to mislead the courts. In our world, they’re not only permitted to keep making these arguments, they continue to win.