Wednesday, September 5, 2018
Aliza Kaplan (Lewis & Clark Law School) and Janis Puracal (Oregon Innocence Project) have posted their article, "It's Not a Match: Why the Law Can't Let Go of Junk Science," (Albany Law Review) on SSRN. Here is the abstract:
In this article, we argue that there is a need to increase validity and reliability of forensic science in the criminal justice system through a collaborative approach. In part II, we explain the legal rules governing the admissibility of scientific evidence in criminal cases and the evolution of that law over time. Parts III and IV describe a 2016 report by the President’s Council of Advisors on Science and Technology (“PCAST”), which analyzed the methodology and validity of many “pattern identification” or “feature-comparison” methods. PCAST asked whether DNA analysis, bite marks, latent fingerprints, firearms identification, and footwear analysis are supported by reproducible research, and is, therefore, reliable evidence. PCAST concluded that many of these forensic methods lack validation studies and need to be addressed. The PCAST Report followed an earlier report by the National Academy of Sciences (“NAS”) in 2009, which enumerated the problems in the forensic science community and the need for significant improvement. In Part V, we address the opposition to the PCAST Report from the National Association of District Attorneys, United States Attorney General, and FBI, along with PCAST’s response to that opposition. Part VI focuses on the promise of the PCAST Report, in particular how implementing its recommendations could help reduce the numbers of wrongful convictions, massive case reviews, and crime lab scandals. We also discuss the broader impact of forensic reform to protect the integrity of our justice system. Unfortunately, as we discuss in Parts VII and VIII, there has been little change in the law to prevent the admissibility of faulty forensics and in fact, courts continue to regularly admit questionable and invalid forensic science into evidence. We explore the reasons for the lack of change, including our reliance on past precedent that makes the legal system a poor venue for forensic reform with a more concerted effort. In Part IX, we note that the likelihood of change coming from the federal government is low as the Obama Administration failed to implement any plan for change after the PCAST Report and the current Administration announced last April that it would not renew the National Commission on Forensic Science. In Parts X and XI, we discuss the need for further collaboration between scientists and lawyers/judges, and we propose a specialized role of forensic resource counsel to help facilitate that collaboration.