Junk Science and Criminal Trials

Unfortunately in the criminal justice system, real life is nothing like the television series CSI. Far too often, what is sold to jurors as science is junk science.
In 2009, a distinguished panel under supervision by the National Academy of Sciences prepared a detailed report at the request of Congress analyzing science and the law. That report, entitled "Strengthening Forensic Science in the U.S.: A Path Forward," should give trial lawyers, judges, and jurors pause.
The report found that disturbingly, "often there are no standard protocols governing forensic practice in a given discipline." "There is no uniformity in the certification of forensic practitioners, or in the accreditation of crime laboratories." Most frighteningly of all, the authors of the NAS Report questioned "whether - and to what extent - there is science in any given forensic science discipline."
In addition to a scathing critique of forensic science practices the NAS Report offered recommendations and thoughts about specific areas of improvement. The grim bottom line is that "The forensic science system, encompassing both research and practice, has serious problems that can only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country."
Some of the salient findings of the report:
  • "With the exception of nuclear DNA analysis, [] no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source."
  • Judges are more careful to screen and vet scientific experts in civil cases, where money is in dispute, than in criminal cases, where somebody can go to jail or worse!
  • Accepted terminology should be promulgated to be used in expert reports and testimony.
  • Better protocols should be made for scientific analysis.
  • Research still needs to be done to ascertain the basic validity of certain scientific disciplines, such as microscopic hair comparison, ballistic and toolmark analysis, and tire impressions.
  • Experts should be nationally accredited.
  • Laboratories should be independent from police and prosecutors.
The report proposes the creation of an independent agency called the National Institute of Forensic Science (NIFS). Senator Patrick Leahy has introduced legislation in Congress this year to implement key recommendations in the NAS Report. In the meantime, it is not enough for reform to proceed top-down. Each and every judge has the power to stop junk science by forcefully exercising his role as the gatekeeper of expert evidence. Prosecutors and criminal defense lawyers have a duty to abide by ethical standards when presenting expert testimony. As jurors, our role is most important. When you have an expert witness telling you the sky is green - even a professor at Harvard - it's time to say "enough is enough." Similarly, if the reasons don't add up, don't buy an expert's opinion.

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