CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, December 20, 2010

Risinger on the NAS Report and Error in Forensic Science

Risinger_michael_lg2 D. Michael Risinger (Seton Hall University School of Law) has posted Whose Fault? - Daubert, the NAS Report, and the Notion of Error in Forensic Science (Fordham Urban Law Journal, Forthcoming) on SSRN. Here is the abstract:

The notion of "error" and "error rates" is central both to the Daubert opinion and to the recent National Academy of Sciences Report on the strengths and weaknesses of forensic science in the United States. As might be expected, the NAS Report does a better job of explaining the kinds of error it is concerned with than did the opinion in Daubert. However, to a greater or lesser degree, both fall short of a full consideration of the applicable concept of error, and so doing, they invite confusion about how inaccurate results in forensic science and criminal adjudication may occur, and who if anyone is to blame. This paper examines the notion of error as it might apply in these settings, with due regard to both the philosophical and scientific literature. It concludes that competing notions of normative and objective error have led to unnecessary miscommunication between practitioners of forensic disciplines and their critics, which has resulted in many forensic practitioners feeling unfairly criticized. This in turn has led some in the forensic science community, perhaps understandably, to resist changes in forensic practice that are necessary for the reduction of error in all its forms.

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My experience has been that forensic scientists react defensively whether criticisms are fair or unfair. The NAS report criticized techniques but most practitioners pretend they've been personally insulted by the observation that there's little "science" behind their work. As Risinger says in his article, they misunderstand that most "bad outcomes are not due to practitioner mistake, but to limitations in the technique even when perfectly applied." That's especially true in the comparative disciplines - ballistics, fingerprints, hair analysis, etc..

I'm frankly sick of worrying about whether such lab workers feel "unfairly criticized." Better that than having more innocent people unfairly convicted.

Posted by: Gritsforbreakfast | Dec 21, 2010 6:47:49 AM

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