Monday, December 13, 2010
Jane Campbell Moriarty (University of Akron School of Law) has posted Will History Be Servitude?: The NAS Report on Forensic Science and the Role of the Judiciary (Utah Law Review, Vol. 2010, No. 2, 2010) on SSRN. Here is the abstract:
For several decades, the prosecution and its witnesses have maintained that despite little research and virtually no standards, they can match a fingerprint, handwriting, bullet and bullet cartridge, hair, dental imprint, footprint, tire track, or even a lip print to its unique source (collectively, "individualization evidence"). Not only can they match it, they claim, they can do so often without any error rate.
In the last few decades, with the help of lawyers and academics, litigants have challenged the underlying reliability of individualization evidence. Scholars in various disciplines have written about the startling state of individualization evidence, including its lack of standards, research, and established error rates, and its failure to rely upon statistical probabilities to estimate the likelihood of a match. Since its inception, the Innocence Project has exonerated more than 250 people, a majority of whose convictions have involved inaccurate or even fraudulent forensic science testimony, including individualization evidence.
Despite the lack of proof that such evidence is scientifically reliable (and continued exculpations), courts have rejected most challenges to individualization evidence and continue to admit such testimony. With every exoneration, proof mounts that forensic science cannot do what it claims to be able to do with the precision alleged. By not requiring minimal standards for the reliability of individualization evidence, courts have allowed the forensic science system to operate without any checks and balances and to convict innocent people in numbers we can only estimate.
In February 2009, the National Academy of Sciences issued its long-awaited and groundbreaking report on the status of forensic science, Strengthening Forensic Science in the United States: A Path Forward ("the NAS Report"). The NAS Report is a scathing indictment of both the state of the forensic science system and judicial rulings on such individualization evidence.
This Article discusses the findings of the NAS Report, relevant cases that predate the report, and some cases decided since the report. It posits that the judiciary, which has created a standard of reliability, has failed to hold prosecutorial expert evidence to that standard. Using examples from history and modern cognitive science explanations, the Article tries to explain why the judiciary has been so unwilling to rigorously examine forensic science evidence and urges the judiciary to rethink its perspective going forward.
While the NAS Report suggests an overhaul of the current system, that overhaul is a contentious idea that may well not occur in the near (or even longer) future. Thus, a current crisis exists that the judiciary must address in its day-to-day decision making. The Article suggests how the judiciary can become a more effective crucible for testing the strength and limitations of forensic science.