The Ninth Judicial Conference included several internationally known speakers on forensic science. The general message? Judges must be more vigilant, budget more time, and be more skeptical of forensic methods.
Commonly Held Beliefs about Forensic Science
Years of television entertainment such as CSI have led jurors to trust the infallibility of forensic science, said Jennifer Mnookin, dean of the UCLA School of Law. However, she cautioned judges, “Faulty forensic science is the second most frequently found contributing cause” to wrongful convictions, second only to eyewitness identification.
While fingerprints, bitemarks, and toolmarks are commonly admitted in criminal courts, due to their long-standing use, Mnookin specifically cautioned against the “We’ve always done it this way” line of argument for admitting forensic science evidence. “It must take scientific study to make a field scientifically reliable. . . Experience, no matter how extensive, could not be a substitute for scientific study.”
The PCAST Report, Revisited
In September of last year, the President’s Council of Advisors on Science and Technology (PCAST) released recommendations regarding actions the forensic science community should take to strengthen forensic science. (The full PCAST report can be found here. Commentary on the forensic science PCAST report here.)
Criminal defense attorney Jennifer Friedman reminded the judges the PCAST report was directed to the courts specifically. The report was intended “to discuss and explain the intersection of scientific validity and legal reliability.” Ms. Friedman noted the courts have the power to rein in forensic examiners during testimony. For example, forensic examiners shouldn’t be allowed to claim any of the following:
- 100 percent certainty in their conclusions;
- A mistake free history as a practitioner; or
- An error rate of zero for a given discipline.
A Perspective from the Bench
The Judges’ Obligation
Judge Alex Kozinski, of the Ninth Circuit, also spoke at the Conference. He praised the PCAST report as a step forward, “because after all, this is not a situation where we’re dealing with just technicalities but we’re dealing with the question of whether people are guilty or innocent.”
The Defense Bar’s Duty
Judge Kozinski also observed judges aren’t the only ones to question scientific evidence put on by the prosecution. “Many defense lawyers, like the rest of us, grew up with fingerprints, bitemarks and footprint evidence and simply accept it as being inherently valid and not worth challenging.”
It’s been five years since the Saint Paul Police Department Crime Lab closed its doors. In an opinion piece on the subject, the Saint Paul Pioneer Press wrote, “When your freedom depends on the reliability of testing performed by the government that’s attempting to convict you of a crime, and because you are innocent until actually proven guilty, you want the burden of proof to be sufficiently heavy.” Those words remain just as true today.
It is incumbent on judges, defense attorneys, and prosecutors to apply a healthy dose of skepticism to forensic evidence, regardless of its packaging.