The Santa Cruz Sentinel is reporting the disturbing trend nationwide of judges continuing to allow evidence unsupported by science.
Examples of judges continuing to allow forensic science which is not been properly validated into the court room include a case in Connecticut, where a judge allowed prosecutors to present evidence about a footprint they felt was relevant. Testimony evidently involved representations of a forensic scientist that a specific shoe belonging to a man accused of the crime left of the relevant footprint. In Chicago, a federal court judge allowed experts to describe firearm and toolmark comparisons performed on bullets collected at crime scenes. In Pennsylvania, a judge ruled that prosecutors could elicit testimony about bite marks found on the body of a murder victim.
These rulings are troubling for several reasons. In Chicago, the federal court rationalized the testimony would be subject to cross examination by the defense attorneys. This rationale seemingly ignores the fact defense attorneys can always examine the government’s witnesses, experts or not. Relevancy, whether a fact being testified to makes something more or less likely, is a separate judicial determination that should be made based on the facts and the evidence, not based on the availability of cross examination as a means to discredit the testimony.
The Connecticut judge’s determination about the “footprint evidence” ignores the findings of the President’s Council of Advisers on Science and Technology that such associations are “unsupported by any meaningful evidence or estimates of the accuracy.” Finally, bitemark evidence has resulted in at least 29 documented wrongful convictions and arrests in United States in the last 17 years. It has been called into question by both the PCAST report and the National Academy of Sciences 2009 report on forensic science.
Interviewed by the Sentenial, Chris Fabricant, Director of Strategic Litigation for the Innocence Project in New York, observed, “At some point, we have to acknowledge that precedent has to be overruled by scientific reality.”
Not all judges, however, are allowing such evidence. Missouri Judge Calvin Holden recently limited the testimony of a proposed ballistics expert, stating, “It remains a rather obvious notion that if forensic method lacks foundational validity, then a criminalist should not be heard in court to opine that ‘this bullet came from that gun. . . ‘”
Change on the Horizon?
Recently, the United States Seventh Circuit Court of Appeals ruled a wrongfully convicted defendant can sue two dentists who testified against him about bitemark evidence. The Court found the dentists “were not entitled to absolute immunity.” Mr. Stinson’s suit alleges the dentists “knowingly manipulated the bitemark evidence and Stinson’s dentition to appear to ‘match’ when there was in fact no correlation between Stinson’s teeth and the bitemarks inflicted on [the victim’s] body.”