Monday, April 5, 2010
Paul C. Giannelli (Case Western Reserve University School of Law) (University of Illinois Law Review, Forthcoming, Case Legal Studies Research Paper No. 2010-6) has posted Daubert and Forensic Science: The Pitfalls of Law Enforcement Control of Scientific Research on SSRN. Here is the abstract:
In 2009, the National Academy of Sciences published a landmark report on forensic science: Strengthening Forensic Science in the United States: A Path Forward. The Report represents one of the most important developments in forensic science since the establishment of the crime laboratory in the 1920s. Within months, Justice Scalia cited the report in Commonwealth v. Melendez-Diaz, noting that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials” and “[f]orensic evidence is not uniquely immune from the risk of manipulation.” After two years of studying fingerprints, handwriting, ballistics, and other common forensic techniques, the Academy concluded that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques.” Indeed, “only nuclear DNA analysis has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between an evidentiary sample and a specific individual or source.”
The NAS Report’s centerpiece is a proposal to establish an independent federal agency, the National Institute of Forensic Science, to control funding and research in the field. This proposal, which is now before Congress, wrests control of forensic science from law enforcement and was attacked by government agencies before the Report was even released. While the Report made clear that the Department of Justice, through the FBI Crime Laboratory and National Institute of Justice, had failed in its obligation to improve forensic science, the Report did not provide details of this failure. This Article supplies those details, documenting how government agencies manipulated science at the expense of both science and justice. As the Report noted, basic research in the forensic sciences is weak. Yet, the only agency currently capable of funding that research, the Department of Justice, has hindered efforts to conduct independent scientific studies.