How Scientific is Forensic Science?


	Print or Email This Page August 2009, Page 36 *How Scientific is Forensic Science?* By *Quintin Chatman* A report released Feb. 18 says the forensic science system in the United States has major deficiencies and needs to be overhauled. The report from the National Academy of Sciences is entitled Strengthening Forensic Science in the United States: A Path Forward. In addition to calling for new research, the report recommends the formulation of strong standards and protocols for analyzing and reporting on evidence. The report discusses numerous issues, including the need for standards for forensic science professionals and laboratories. Furthermore, the report notes the need to standardize terms used by forensic experts when testifying. Words and phrases such as “match” and “cannot be excluded as the source of” are not used consistently and need clarification. According to the report, some forensic techniques — such as fingerprint, bite mark, and toolmark analysis — are not supported by enough research to establish their level of accuracy and reliability. Moreover, the NAS Report has already been cited by the U.S. Supreme Court in Melendez-Diaz v. Massachusetts.1 In that case, the Court held that the Confrontation Clause prohibited the introduction of a laboratory report on a narcotics test without the lab analyst being called to testify. The Champion assembled a panel to discuss the issues raised in the report. Our panelists are Adina Schwartz, a professor at John Jay College of Criminal Justice and The Graduate Center, City University of New York; William C. Thompson, a professor at the University of California — Irvine; Michael Burt, a death penalty resource counsel in San Francisco; and the Honorable Jed S. Rakoff, a U.S. District Judge in the Southern District of New York. While these issues have been discussed for years on an informal basis, perhaps the assessment by the prestigious National Academy of Sciences will result in positive change. Congress has already started to hold hearings in order to determine next steps. The National Academy of Sciences (NAS) report recommends the creation of an independent, stand-alone entity — the National Institute of Forensic Science (NIFS). If Congress determines that creating a separate agency is not feasible, under which existing agency should NIFS reside? Adina Schwartz: To decide where NIFS should be housed, it is crucial to recognize that: (1) a lot of difficult empirical and statistical research needs to be done to set the forensic sciences on adequate scientific foundations, (2) the overwhelming majority of forensic scientists have neither the time nor, more importantly, the requisite educational background, skills, and scholarly temperament to do the research, and (3) there is very little interest in forensic science among research scientists. Since a critical mass of top-flight scholarly interest in forensic science does not exist, it is unlikely that the “science” in forensic science would be significantly improved if NIFS were housed in an agency like the National Science Foundation whose primary mission is to provide grants to university researchers. Too few qualified researchers would be likely to apply for the NIFS grants. I think the best way to jump start basic scientific research on forensic science would be for NIFS to become a research institution operating its own laboratories, on the model of the National Institute of Standards and Technology (NIST). In my opinion, NIST would provide a particularly good home for NIFS because the purpose of the NIST laboratories is to develop measurement standards and techniques for industry. Thus, NIST and NIFS both seek to bridge the gap between the academy and the “real” world. Both also need to operate laboratories in a broad variety of disciplines in order to achieve their missions. The expertise of the NIST laboratories in developing measurement standards could aid NIFS researchers in the crucial work of developing uniform and precise protocols for forensic science. Moreover, if NIFS were housed in NIST, the prestige of the NIST laboratories might help to attract top-flight researchers to the NIFS labs. Judge Jed S. Rakoff: In my view, the important thing is to have an NIFS. Where in the bureaucracy it is located is much less important, as long as it is not located in the Department of Justice, which would be perceived as compromising its independence. William C. Thompson: If NIFS cannot be an independent agency, then I agree with Professor Schwartz that there are compelling arguments for making it part of NIST. It should definitely not be controlled by the National Institute of Justice. In the area of forensic science, NIJ has been part of the problem — for example, it has refused to fund sorely needed research on the fundamental validity of the pattern matching disciplines out of apparent fear that acknowledging the need for such research would undermine convictions. In order to avoid this type of conflict of interest, the NAS report recommended that forensic science services and oversight be removed from law enforcement control. That is an excellent suggestion, although it will be difficult to achieve. Michael Burt: The NAS Report carefully considered the issue of whether NIFS could be housed within an existing agency and decided that such an approach was not feasible. [The report is available at http://www.nap.edu.] The committee concluded that the problems at issue were too serious and important to be subsumed by an existing federal agency, and that “no existing federal agency has the capacity or appropriate mission to take on the roles and responsibilities needed to govern and improve the forensic science enterprise.” (Executive Summary, S-13). The committee specifically concluded, “Neither NSF nor NIST has the breadth of experience or institutional capacity to establish an effective governance structure for the forensic science enterprise.” (S-12) If an independent, stand-alone entity is not an option, then I would think that a greatly expanded NIST would be preferable over NFS. NFS “has very thin ties to the forensic science community.” (Id.) On the other hand, NIST “has a good program of research targeted at forensic science,” and “an eminent history in standard setting and method development.” (Id.) Standard setting and method development are exactly where the focus of this new agency should be. What would be the advantage of having a separate agency? Schwartz: I agree with the NAS Report that because they view forensic science as a law enforcement tool, neither the National Institute of Justice/DOJ nor any law enforcement agency would provide a suitable home for NIFS. But, I don’t accept the report’s argument that because NIST has limited ties to the forensic science community, NIFS should not be housed there. To do its work properly, the proposed National Institute of Forensic Science will need to rock the boat. Radical changes in the day-to-day practice of forensic scientists will need to be mandated. And some forensic science disciplines may be shown to be scientifically indefensible. Due to NIST’s lack of close ties to the forensic science community and its scientific prestige and considerable political heft and clout, it might be easier to reform forensic science and resist political pressure to maintain the status quo if NIFS were housed in NIST than if NIFS were a free-standing agency needing to create its scientific reputation and political ties from scratch. Thompson: Forensic science is a high profile activity with substantial public support. I think that NIFS will better be able to capitalize on that support when competing for federal dollars if it is an independent agency rather than a subunit of another agency because it will be easier for Congress to support forensic science as a “pure play” than as part of another agency’s budget. Funding levels are important because the ambitious agenda of research and reform called for by the NAS Report will be expensive. Burt: The obvious advantage of a separate agency would be that it would “not be encumbered by the assumptions, expectations, and deficiencies of the existing fragmented infrastructure, which has failed to address the needs and challenges of the forensic science disciplines.” (S-13) What kind of people should lead NIFS? Schwartz: NIFS should be led by research scientists with distinguished publication records who have a demonstrated interest in forensic science, experience in leading large organizations, and the integrity and political skills needed to resist pressures to water down the scientific mission of NIFS. Judge Rakoff: Scientists should lead NIFS, including at least one prominent professor of statistics. Thompson: People with strong backgrounds in academic science should be leading this revolution. Many of the problems we see in forensic science today arose because crime lab practitioners were operating on their own, and developing their own methods, without significant input from the academic community. It was the academic perspective that allowed the NAS panel to see forensic science for the mess that it is, and it is the academic perspective that must lead us out of the morass. Certainly there should be input from forensic science practitioners. The fundamental message of the NAS Report, however, is that the entire field of forensic science needs adult supervision — the practitioners should no longer be running the show. To place NIFS under the control of forensic practitioners would be like appointing Dick Cheney to reform Guant�namo. Burt: The people who lead NIFS should be strongly rooted in science and must not be part of a law enforcement agency. The most important qualification in my mind is that the leaders not be in any way committed to the existing system. If Congress creates an independent federal agency, how can state laboratories and independent laboratories be forced to comply with its mandates? Schwartz: I don’t see how Congress could force all state and independent laboratories to conform to the federal agency’s mandates. Congress could make significant progress in this direction, however, by providing incentive funds for laboratories to conform to the NIFS mandates, barring laboratories that do not conform from using federal forensic science data base systems such as CODIS, AFIS, and IBIS, and barring forensic scientists from nonconforming laboratories from testifying in federal court. Judge Rakoff: It is not, or should not be, a question of anyone being “forced.” If the NIFS becomes the “gold standard,” everyone will follow its lead. Thompson: If it is adequately funded, NIFS will wield considerable influence through the power of the purse. Furthermore, NIFS will have the ability to set best practice standards that are likely to influence admissibility rulings in the courts. It will be difficult for practitioners to argue that the old ways are generally accepted if they conflict with the NIFS version of “best practices.” For example, if NIFS issues guidelines that say latent print examiners should not claim to make absolute identifications, will courts continue to allow them to do so? I doubt it. Negative admissibility rulings will be the real incentive to comply with NIFS standards. Burt: As the committee put it, “[t]here is every reason to believe that offers of federal funds with ‘strings attached’ can effect significant change in the forensic science community, because so many state and local programs currently are suffering for want of adequate resources.” (S-10) Now that NAS has published its report, what are the next steps? Schwartz: It doesn’t make sense to begin by formulating standards for disciplines if we don’t yet know whether there’s a scientific basis for the disciplines’ claims. For example, rigorous, well-designed studies are needed to determine whether guns do or do not leave unique marks on ammunition components. If it turns out that they do not, firearms and toolmark identification will either have to be abandoned as a discipline or radically scaled back so that examiners can at most identify the type of gun, rather than the individual gun, responsible for firing a particular bullet or cartridge case. Until the studies are done and we know what, if any, sorts of conclusions firearms and toolmark examiners can justifiably reach, detailed standards cannot be set for the discipline. Setting standards first is dangerous because it may distract us from the crucial question: is there a scientific basis for forensic scientists’ claims? Scientists, not attorneys, will need to determine what to study first and how to design the studies. Nevertheless, defense attorneys should: (1) draft proposed legislation and lobby Congress to create a well-funded research institution dedicated to making forensic science genuinely scientific; (2) use the NAS Report in both state and federal court cases to argue against the admission of forensic science testimony; and (3) publish articles, organize conferences, and speak to the press in order to make criminal defense lawyers, judges, politicians, and the public aware of the findings of the NAS Report. Unless all three of these tasks are energetically addressed, the impetus for reform created by the report will be lost. Thompson: Let’s work to see that NIFS is actually established and funded. The defense bar should also work together to create model briefs challenging the admissibility of some of the weaker forms of forensic evidence and arguing for proper limitations on forensic testimony. Burt: The report itself does a fairly good job of taking stock of existing research. What is urgently needed is formulation and implementation of standards that go way beyond what we currently have in forensic science (e.g., a standard that mandates that evidence will not be offered in court unless defined developmental and internal validation has been conducted and peer reviewed). Given the NAS finding that many of the forensic applications (fingerprinting, tool mark/ballistics, bloods spatter, forensic odontology, impression evidence, i.e., shoe marks, tire tracks) require far more research and studies before we can know whether they are valid or invalid, should judges under current federal rules of evidence or state judges under state rules permit any such testimony under either the Daubert or Frye standard? Schwartz: I think all such testimony should be excluded under Daubert and also under Frye on the ground that the NAS Report shows that that these disciplines are no longer generally accepted within the relevant scientific community. And, admitting this testimony as opinion, rather than scientific, testimony seems to me to rest on the backwards assumption that if expert testimony is less intellectually rigorous than science, it is entitled to be judged by a less rigorous admissibility standard. That’s tantamount to rewarding disciplines for not developing scientific foundations for their claims. As to further limits on forensic science testimony, I have problems with decisions to allow experts to testify about similarities between toolmarks, handwriting exemplars, fingerprints, etc., but to preclude them from reaching identification conclusions. If the experts themselves are not qualified to reach identification conclusions, how can the jury be qualified to do so? In United States v. Glynn,2 Judge Rakoff did not allow firearms and toolmark examiners to testify as scientists, and restricted them to testifying that their identifications were more likely than not. When similar restrictions were placed on the testimony of a firearms and toolmark examiner in an Ohio state court case this spring, the jury asked the judge during deliberations why the firearms and toolmark examiner had testified that his conclusions were more likely than not, when the fingerprint examiner in the case had testified that his conclusions were reached to a reasonable degree of scientific certainty. The defendant in the Ohio case had faced life without parole; he was acquitted of all charges. Although the Ohio case, Ohio v. Eashawn Anderson,3 shows that restricting forensic scientists to testifying that their conclusions are more likely than not may greatly benefit the defense, I think the restriction’s ultimately illogical. Since adequate statistical empirical foundations have not been developed for firearms and toolmark identification, United States v. Monteiro says firearms and toolmark examiners “may not assert any degree of statistical certainty, 100 percent or otherwise, as to a match.”4 But, testifying that firearms and toolmark identifications are more likely than not is testifying to a certain degree of statistical certainty. Judge Rakoff: A good question, but one that I can’t comment on in any detail, since it is an issue that is likely to come before me and other judges in the future. I would only note, to state the obvious, that Rule 702 of the Federal Rules of Evidence plainly contemplates that lots of expert testimony that is not science is nonetheless admissible, but not if it is presented as science. An experienced plumber, for example, could give his opinion as to why a drain clogged (causing, say, a flooded basement), even if he hadn’t done any “scientific” tests, as long as he had sufficient data and had reliably applied to that data a method for arriving at this conclusion that in plumbing terms would be considered reliable. Many of the issues concerning the admissibility of “forensic science” arise because it often is not science at all, but it is not exactly plumbing either. Thompson: Judges will need to look closely at proffered testimony and make an assessment of whether the specific conclusions offered have an adequate scientific foundation. In the past, courts seemed to decide admissibility on a blanket basis for entire disciplines — if latent print analysis was admissible then almost anything an examiner wanted to say about latent prints was deemed admissible; any concerns about validity were said to go to the weight rather than the admissibility of the expert’s conclusions. In the future, I expect to see a finer grained analysis of admissibility, with courts allowing some conclusions and not others from a particular expert. For example, latent print examiners might be able to tell the jury that two prints could have a common source but might not be allowed to conclude that they were definitely made by the same finger to the exclusion of all other fingers in the universe. It does not matter whether the conclusion is offered as a “fact” or merely as an “opinion;” there must be an adequate scientific foundation in either case. Saying “it’s just my opinion” will not rescue an otherwise inadmissible scientific conclusion. Of course, that’s just my opinion. Burt: It is hard for me to understand why we should permit any forensic evidence that lacks basic research showing its reliability. Cautionary jury instructions cannot cure the problem of a lay jury overvaluing reliance on unreliable evidence, whether that evidence is labeled “science” or “opinion evidence.” Do we need to amend the rules of evidence so that forensic testimony can be offered only by experts that have been certified by NIFS or some other entity? Schwartz: I’m strongly against any such amendment. First, we (and NIFS) shouldn’t even be thinking about certification until adequate scientific foundations have been developed for forensic science disciplines. Certifying someone to testify as an expert in a discipline that may or may not be reliable is absurd. Also it risks playing into the hands of forensic scientists who will say, “What’s your problem? We’re certified experts! All this concern about statistical empirical foundations is just asking for high brow science that we don’t need.” Second, it’s unrealistic to think there will come a time when all forensic science rests on scientifically unquestionable foundations. New techniques will be developed; new questions will arise; forensic scientists will continue to find ways of pushing the envelope with established techniques. To guard against the admission of unreliable forensic science, the defense will need to use experts who are not forensic scientists, for example, research geneticists and statisticians, to testify about the limits of DNA tests. If we amend the rules of evidence to require that experts be certified, the researchers and scholars whom the defense will need to bring into court to testify about the limits of forensic science may wind up being disqualified on the ground that they haven’t been certified. Judge Rakoff: No. Certification, no matter by whom, is definitely not a science. Thompson: Defense counsel need to be careful about endorsing mandatory certification schemes because forensic scientists have already showed signs of using them as a club to attack legitimate scientific critics. Many of the existing certification schemes, such as those run by the American Board of Criminalistics (ABC), allow only crime lab employees, or former employees, to become certified. Thus, for example, academic molecular biologists and population geneticists, no matter how distinguished, cannot be certified in forensic DNA analysis because, in the eyes of the ABC, they lack relevant experience. Sir Alec Jeffreys invented DNA typing, but he does not meet the ABC requirements for certification because he hasn’t worked in a crime lab. If we allow only “ABC-certified” experts to testify, it will limit the pool of potential experts to current or former forensic practitioners, cutting out most academic scientists. This is a serious matter because academic scientists have been the major group to raise legitimate concerns about forensic evidence. We should be trying to get more academic scientists involved in forensic science, not making it difficult for them. Burt: Certification should be one of many prerequisites to admissibility. Requirements such as laboratory accreditation and analyst certification can help weed out bad science, but cannot alone ensure reliability. Why can’t courts solve problems related to forensics evidence on a case-by-case basis? Schwartz: Using case-by-case decisions by courts to solve systemic problems takes a long time, at best. In the process, individuals inevitably suffer from wrongful verdicts. The history of nuclear DNA profiling can be used to explain the problems with a case-by-case approach. Although there were fundamental scientific problems with nuclear DNA profiling when it was first introduced into court in 1987, by 1996 these problems had been solved. As the NAS Report recognizes, this scientific progress was due, in large part, to the vigorous courtroom challenges that spurred the highly critical NAS Report on forensic DNA in 1992 and to the courtroom challenges that were advanced on the basis of the 1992 report. Unfortunately, courtroom challenges to the traditional forensic sciences are unlikely to be as effective at spurring scientific progress as the courtroom challenges to forensic DNA. Forensic DNA analysis was rooted in research science; molecular biologists, population geneticists, and statisticians could come into court and base their criticisms on work being done within their communities. And, although the DNA wars were fierce, there was never much doubt that the necessary work could be done to set forensic DNA analysis on firm scientific foundations. By contrast, the traditional forensic sciences (e.g., fingerprint, firearms and toolmark, bite mark identification) are grounded in very little research. Paradoxically, the lack of interest in the traditional forensic disciplines among research scientists makes it harder for the defense to find experts to criticize these disciplines than it was (and is) to find experts to criticize forensic DNA. And, excluding traditional forensic identification testimony from the courtroom will not be sufficient to create the pool of qualified researchers needed to set these disciplines on firm scientific foundations. If forensic science is to become first-rate science, government agencies other than the courts will need to invest heavily in luring top-flight research scientists to work on forensic science. This is where the need for NIFS arises. Judge Rakoff: Who says courts can’t solve these problems on a case-by-case basis? But they will be greatly assisted by this marvelous report and by the proposed creation of an NIFS. Thompson: The NAS Report is not just a critique of forensic science; it can also be read as a severe criticism of the judiciary for being too lenient in evaluating the admissibility of forensic evidence. According to the report, judges have been negligent gatekeepers. Through excessively lenient applications of the Frye and Daubert standards, they have allowed a broad range of questionable forensic science to reach juries. Let’s hope the report alerts judges to this problem and prompts them to take their gate keeping duties more seriously. Burt: Courts do not have the time, expertise, or the funding to ferret out and solve the kinds of systemic flaws in forensic science identified in the NAS Report. What has been the reaction of the forensic science community to the report? Schwartz: There’s tooth and nail resistance to the report’s scientific criticisms and attempts to spin the report to gain increased funding for existing forensic science organizations and increased control, through accreditation of laboratories and certification of practitioners, over who can testify. In view of the forensic science community’s vigorous and vocal resistance to the report’s recognition of the need to convert forensic science into first-rate science, it is crucial for the defense to make legislators aware that the forensic science organizations are providing them with distorted accounts of the NAS Report. Thompson: The responses generally fall into two categories, which I call intransigence and subversion. The intransigent response has been to question the scientific authority of the National Academy of Science and to repeat, vociferously, various tired arguments that the NAS Report considered and rejected. Intransigent responders continue to argue, for example, that the pattern matching disciplines have already been validated (although they cannot cite relevant studies) and that their error rate is zero (although many errors have been exposed). Their biggest canard is an argument that Professor Simon Cole has called “the fingerprint examiner’s fallacy” (although the same argument is advanced by toolmark and bite mark analysts, among others). According to this argument, trained analysts can tell by looking whether particular marks (such as latent prints, toolmarks, bite marks, etc.) are “unique” and can therefore determine with absolute certainty whether two such marks had a common origin. As the NAS Report recognized, there is no proof that such marks are unique or that analysts could tell if they were, and hence no reason to believe that what an analyst decides to call a “match” between two marks is proof that the marks have a common origin. Nevertheless, forensic scientists keep arguing that because the marks they identify are “unique,” their identifications must be infallible. The subversive response acknowledges that problems exist in the field of forensic science but attempts to avoid the major structural changes called for in the report by arguing there are cheaper, easier solutions. Most of the major professional societies in forensic science have taken this approach. They hope to use the report to leverage additional funding and strengthen the hand of existing professional associations while essentially maintaining the status quo. Burt: Predictably, the reaction has been to attempt to downplay the significance of the report. For instance, in a hearing on May 13, 2009, before the House Subcommittee on Crime, Terrorism, and Homeland Security, the acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives stated, “We must also be cognizant, however, of what the report does not do. The report does not, and was never intended to, comprehensively assess the forensic sciences themselves. That was not the mandate of the committee that drafted the report. Likewise, the report does not undermine the use of forensic science generally — or any specific discipline — in the courtroom.” Expect more of the same as defense lawyers cite the report in their motions to exclude evidence. Because defense experts are hard to find in some places, should state crime labs allow their employees to moonlight and work as defense experts? Schwartz: This wouldn’t do much to solve the problem of lack of defense access to experts. First, even if they moonlight, state crime lab employees are likely to be biased against the defense, even if only at a subconscious level, by the law enforcement culture within which they work and/or by the fact that the prosecution is their main source of bread and butter. Second, allowing state crime lab employees to moonlight won’t provide the defense with experts to testify about the underlying scientific problems with the forensic science disciplines. Judge Rakoff: No. There is too much potential for conflicts of interest. Thompson: Don’t expect crime laboratory employees to help defense lawyers challenge the weaker forms of forensic science. They won’t help lawyers challenge methods that they and their colleagues are using themselves. Lawyers who want to capitalize on the NAS Report to challenge disciplines such as latent print analysis, toolmark analysis, bite mark analysis and the like will need to look outside of forensic science and identify potential experts in the academic community. Burt: A “moonlighter” whose primary job is working for the government crime lab would be subject to an obvious conflict of interest. Also, how do you ensure confidentiality under such a system? If a national code of ethics is created for the forensics community, what happens when there is a violation of the code of ethics? Schwartz: A national code of ethics could only be enforced if accreditation by an agency with nationwide jurisdiction and/or employment in a nationally certified laboratory was required for all practitioners. Then, on a nationwide level, there could be the equivalent for forensic scientists of state bar disciplinary proceedings and penalties. The serious problem, however, with instituting such a proposal is that current certification and accreditation organizations, such as ASCLD/LAB and the Association of Firearms and Toolmark Examiners, view forensic science as an instrument of the prosecution and are invested in not changing the scientific underpinnings of forensic science. Unless the accreditation and certification process is taken over by new organizations that agree with the NAS Report’s calls for scientific change and for making forensic laboratories independent of the police and the prosecution, we cannot expect forensic scientists to be effectively disciplined for distorting results to serve the prosecution. Judge Rakoff: De-accreditation would seem the likely way to proceed. If the violator is not even accredited, that by itself may hinder his employment as an expert. Thompson: The problems in forensic science that were identified by the NAS Report have little or nothing to do with personal ethics. These are not problems that can be attributed to “a few bad apples” that need to be eliminated or reformed through enforcement of ethical standards. The problems are systemic and are rooted in the institutional structure of forensic science. Entire disciplines rest on an inadequate scientific foundation and employ procedures lacking in essential scientific rigor. To talk about codes of ethics trivializes the problem and diverts attention from the systemic measures needed to solve it. Burt: Everybody makes mistakes and I would not be in favor of banishment as a sanction for a single violation of a code of ethics. Exclusion of evidence and a lesser form of discipline would probably have sufficient deterrent effect. Private practitioners should be a member of any accredited group and subject to the same rules. Isn’t part of the problem — aside from deficiencies in forensic labs — that juries tend to believe the government’s experts, and thus defense attorneys will always face an uphill battle when challenging forensic evidence? Schwartz: I suspect it is wrong to view an uphill battle as an inevitable fact of life. As more and better informed defense challenges are made and as the problems with forensic science are publicized, it may become easier for the defense to convince the jury to discredit the testimony of prosecution experts. I am encouraged in this belief by the jury’s reaction in the Ohio v. Eashawn case mentioned earlier. Judge Rakoff: At least in my jurisdiction (the Southern District of New York), juries have a healthy skepticism that they apply across the board to all experts. The real challenge here is for the judge to make sure that both sides explain the evidence in simple terms that a reasonable juror can understand and evaluate. Thompson: Yes, forensic science comes to court with tremendous credibility. Jurors are likely to give it a lot of weight. That is one of the reasons it is important for courts to assure that forensic testimony is based on solid science rather than wishful thinking. Burt: Prosecutors nowadays often complain that they are being harmed by the CSI effect. I see just the opposite in the science cases I have litigated before juries. Juries come into the system believing in the infallibility of forensic science. It is always an uphill battle to dispel this misconception. In cases in which you have been involved, did defense attorneys challenge the prosecution when prosecution experts exaggerated or overstated the reliability of forensic evidence? Schwartz: My sample is biased. I’m only contacted by attorneys who are interested in challenging the scientific foundations of firearms and toolmark identification. Judge Rakoff: Very, very rarely. The adversarial process will not fully achieve its function of ferreting out the truth if defense attorneys don’t do more to educate themselves about the putative deficiencies of forensic science and then raise them with the court. Thompson: I see post-conviction cases all the time in which defense counsel rolled over and did nothing to challenge exaggerated, overstated forensic conclusions. We clearly need to do a better job educating defense lawyers about these issues. And we need to provide better expert support. Burt: In well-tried cases, such challenges have always been part of the standard of practice. The problem has always been with those lawyers who don’t adhere to this standard of practice. What do you hope for that might be implemented as a result of this report? Schwartz: My wish list is for greatly increased interest in forensic science on the part of research scientists. Also, I would like to see research that: (1) establishes firm scientific foundations for particular forensic science disciplines; (2) shows that a discipline as a whole or certain of its claims is scientifically unsupportable; or (3) develops new technology. An example of new technology would be laser stamping of random numbers on the firing pins of all newly manufactured guns that end-runs problems with existing methods (e.g., the problem, for traditional firearms and toolmark identification, that the toolmarks on firing pin impressions may not be unique). Judge Rakoff: The same judges who can be very probing when “scientific” evidence is offered in a civil case are often far too automatically accepting of “forensic science” offered in a criminal case, simply because it has always “come in.” If the report even just raises judges’ consciousness as to the serious questions that have been raised as to the validity and reliability of much of this evidence, I have confidence that many judges will then give such evidence the close scrutiny characteristic of a genuine search for truth. Thompson: If the report prompts courts to find some of the weaker forms of forensic science inadmissible, then good things will follow for forensic science. Negative admissibility decisions will cause howls of anguish from law enforcement, but will also force them to support sorely needed steps to improve the field. What happens in the courts will be the key. Burt: My greatest hope for this report is that courts and legislators will start to take more seriously some of the criticisms of forensic science that the criminal defense bar has been voicing for years. Notes 1. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2538 (2009) (citing the NAS Report’s discussion of “problems of subjectivity, bias, and unreliability of common forensic tests”). 2. 578 F. Supp. 2d 567 (S.D.N.Y. 2008). 3. No. 50953 (Court of Common Pleas Cuyahoga Co. 2009). 4. 351 F. Supp. 2d 351, 373 (D. Mass. 2006).
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