by Matt Clarke
Criminal Legal News and its sister publication, Prison Legal News, have long covered prosecutors’ use of questionable forensics and unscientific lab techniques to secure convictions [PLN Oct. 2010, p. l; Apr. 2015, p. l, and CLN Jan. 2018, p. l; July 2018, p. 36].
Reports by prestigious scientific groups, such as the President’s Council of Advisors on Science and Technology (“PCAST”) and the National Academy of the Sciences, have released reports clearly stating that some forensic methods used by prosecutors lack scientific validity. The FBI even recently contacted hundreds of prosecutors to inform them that tainted testimony from FBI forensic specialists in their cases may have helped secure convictions. Yet U.S. Deputy Attorney General Rod Rosenstein, the number two man at the U.S. Department of Justice (“DOJ”), defended them in a speech he gave on August 7, 2018.
The 2016 PCAST report found “a dismaying frequency of instances of use of forensic evidence,” including hair analysis, bite marks, and shoe print comparisons “that do not pass an objective test of scientific validity.” Obviously, defense attorneys have used the PCAST report to challenge the validity of such evidence when the prosecution intended to use it in court. Rosenstein decried such “motions that challenge the admission of forensic methods.”
“Those arguments are based on the false premise that a scientific method must be instrument-based, automated, and quantitative, excluding human interpretation and judgment,” said Rosenstein. “Such critiques contributed to a recent proposal to amend Federal Rule of Evidence 702 for cases involving forensic evidence. The effort stems from an erroneously narrow view of the nature of science and its application to forensic evidence.
“Forensic science is not only quantitative or automated. It need not be entirely free from human assumptions, choices, and judgments. This is not just true of forensic science. It is also the case in other applied expert fields like medicine, computer science, and engineering.”
Rosenstein’s speech “mischaracterizes and distorts the issues raised over the last decade concerning the problems with unreliable forensic practices,” said Innocence Project co-director Peter Neufeld. “The criticism of pattern matching disciplines is not that these disciplines involve human judgment and interpretation, but rather that there has never been sufficient scientific empirical research to ensure that those human judgments and interpretations have a reliable scientific foundation. The Department of Justice, no less than the Innocence Project, should want to ensure that only reliable science is used in criminal prosecutions because we are all harmed when an innocent person is convicted of a crime.”
“Not challenging ‘routine methods’ is what got us dozens of wrongful convictions with bite marks and hair analysis,” said Virginia criminal defense attorney and former president of the American Academy of Forensic Sciences Betty Layne DesPortes. “The idea that we’re scientists, so don’t challenge us, is very, very dangerous for the criminal justice system, and quite frankly dangerous for science too.”
The PCAST report found that “available scientific evidence strongly suggests that examiners not only cannot identify the source of a bite mark with reasonable accuracy, they cannot even consistently agree on whether an injury is a human bite mark.”
Nonetheless, both the Obama and Trump DOJs refused to implement the draft code of ethics recommended by the National Commission on Forensic Science. Then U.S. Attorney General Jeff Sessions shut down the commission, showing the DOJ has no interest in ensuring the reliability of scientific evidence used to secure convictions. And that harms us all.
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