Scientific Evidence

Paul C. Giannelli

Paul C. Giannelli is the Albert J. Weatherhead III & Richard W. Weatherhead Professor of Law at Case Western Reserve University in Cleveland, Ohio. He is coauthor of Scientific Evidence (Lexis 3d ed., 1999.) He is also a contributing editor to Criminal Justice magazine and a member of its editorial board.

In their book examining 62 DNA exonerations to ascertain what factors contributed to the wrongful conavictions of these innocent men, Barry Scheck, Peter Neufeld, and Jim Dwyer found that a third of these cases involved "tainted or fraudulent science." (Barry Scheck et al., Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted 246 (2000).) This finding reinforced earlier works on the abuse of expert testimony. (See Paul Giannelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. Soc. Pol’y & L. 439 (1997); David Bernstein, Junk Science in the United States and the Commonwealth, 21 Yale J. Int’l L. 123 (1996) (discussing cases in Canada, Australia, New Zealand, and England).)

These problems continue to haunt the criminal justice system. The Central Park jogger case in New York is but another example. Not only were there false confessions, but the critical physical evidence in the case came from hair comparison testimony: "At the trial, the prosecution had argued that hairs found on Mr. Richardson’s clothes came from the jogger. Recent DNA tests show that claim to be wrong." (Jim Dwyer, Some Officials Shaken by New Central Park Jogger Inquiry, N.Y. Times, Sept. 28, 2002, at B1, B3.) Another recent example involves the case of Jimmy Ray Bromgard, who spent 15 years in prison before being exonerated by DNA. Once again, hair evidence proved both critical and wrong. (Adam Liptak, 2 States to Review Lab Work of Expert Who Erred on ID, N.Y. Times, Dec. 19, 2002, at A24.)

The improved use of scientific evidence in criminal trials depends on two factors: (1) the regulation of crime laboratories, and (2) the independent validation of scientific evidence. In other words, forensic science needs more science.

More than a decade ago, molecular biologist Eric Lander noted: "At present, forensic science is virtually unregulated—with the paradoxical result that clinical laboratories must meet higher standards to be allowed to diagnose strep throat than forensic labs must meet to put a defendant on death row." (Eric Lander, DNA Fingerprinting on Trial, 339 Nature 501, 505 (1989).) Professor Randolph Jonakait made a similar observation several years later. (Randolph Jonakait, Forensic Science: The Need for Regulation, 4 Harv. J. L. & Tech. 109, 148, 191 (1991) ("All available information indicates that forensic science laboratories perform poorly. . . . Current regulation of clinical labs indicates that a regulatory system can improve crime laboratories.").)

In the interim, there have been a number of voluntary attempts to improve the system, such as accreditation of laboratories by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board. Nevertheless, except for New York, there is no mandatory accreditation. As the president of the American Academy of Forensic Science observed: "Unfortunately, while the ASCLD/LAB program has been successful in accrediting over 200 laboratories, a large number of forensic laboratories in the U.S. remain unaccredited by any agency. A similar situation exists with death investigation agencies accredited by the National Association of Medical Examiners (NAME); forty such medical systems have been accredited, covering only 25% of the U.S. population. The same dichotomy exists in certification programs for the practicing forensic scientist, even though forensic certification boards for all the major disciples have been in existence for over a decade. Why have forensic laboratories and individuals been so reluctant to become accredited or certified?" (President’s Editorial—The Changing Practice of Forensic Science, 47 J. Forensic Sci. 437, 438 (2002).)

Although not the only reason, the lack of funding is a contributing factor. Meeting accreditation and certification standards cost money, and the underfunding of crime labs is chronic. In 1967, President Lyndon Johnson’s Crime Commission noted that "the great majority of police department laboratories have only minimal equipment and lack highly skilled personnel able to use the modern equipment now being developed." (President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 235 (1967).) In 1974, President Richard Nixon’s Crime Commission commented: "Too many police crime laboratories have been set upon budgets that preclude the recruitment of qualified, professional personnel." (National Advisory Commission on Criminal Justice Standards and Goals, Police 304 (1974).) A 1994 investigation of Washington State crime labs revealed that a "staggering backlog of cases hinders investigations of murder, rape, arson, and other major crimes." At any time, "thousands of pieces of evidence collected from crime scenes sit unanalyzed and ignored on shelves in laboratories and police stations across the state." (Thomas Fuillen & Eric Nalder, Overwhelming Evidence: Crime Labs in Crisis, Seattle Times, Jun. 19, 1994, at A1, A14.)

A USA Today survey reached the same conclusion: "Evidence that could imprison the guilty or free the innocent is languishing on shelves and piling up in refrigerators of the nation’s overwhelmed and underfunded crime labs." In one case a suspected serial rapist was released "because it was going to take months to get the DNA results needed to prove [the] case. Weeks later, [the suspect] raped victim No. 4 as she slept in her home. When the DNA tests finally came back—18 months after samples first went to the lab—a jury convicted [the suspect] of all four rapes." (Becky Beaupre, Crime Labs Staggering Under Burden of Proof, USA Today, Aug. 20, 1996, at 1.)

To improve scientific evidence in criminal cases, the nation’s crime laboratories need to be improved. They need to be funded so they can be accredited and their examiners certified. The lessons learned from the DNA admissibility "wars" should not be forgotten. Valid protocols and proficiency testing are important. As the FBI’s leading DNA expert later conceded, there were significant start-up problems: "The initial outcry over DNA typing standards concerned laboratory problems: poorly defined rules for declaring a match; experiments without controls; contaminated probes and samples; and sloppy interpretation of autoradiograms. Although there is no evidence that these technical failings resulted in any wrongful convictions, the lack of standards seemed to be a recipe for trouble."(Eric Lander & Bruce Budowle, DNA Fingerprinting Dispute Laid to Rest, 371 Nature 735, 735 (Oct. 27, 1994); see also National Research Council, DNA Technology in Forensic Science 55 (1992) ("No laboratory should let its results with a new DNA typing method be used in court, unless it has undergone such proficiency testing via blind trials.")

Not long after the advent of DNA evidence commentators began asking why such procedures were not applied in other forensic fields: "[F]orensic scientists, like scientists in all other fields, should subject their claims to methodologically rigorous empirical tests. The results of these tests should be published and debated. Until such steps are taken, the strong claims of forensic scientists must be regarded with far more caution than they traditionally have been." ((See Michael Saks & Jonathan Koehler, What DNA "Fingerprinting" Can Teach the Law About the Rest of Forensic Science, 13 Cardozo L. Rev. 361, 372 (1991).)

Another critical need is basic scientific research. Many forensic sciences gained judicial acceptance before the demanding standards of Daubert and Kumho were required. There is an embarrassing lack of empirical research on such well-accepted techniques such as fingerprints. (See Robert Epstein, Fingerprints Meet Daubert: The Myth of Fingerprint "Science" Is Revealed, 75 So. Cal. L. Rev. 605 (2002); Jennifer Mnookin, Fingerprint Evidence in an Age of DNA Profiling, 67 Brooklyn L. Rev. 13 (2001); Jessica Sombat Note, Latent Justice: Daubert’s Impact on the Evaluation of Fingerprint Identification Testimony, 70 Fordham L. Rev. 2819 (2002).)

The same is true for firearms identification. (See Joan Griffin & David LaMagna, Daubert Challenges to Forensic Evidence: Ballistics Next on the Firing Line, Champion 20 (Sept.-Oct. 2002); Lisa Steele, "All we want you to do is confirm what we already know." A Daubert Challenge to Firearms Identifications, 38 Crim. L. Bull. 465 (2002).)

More recent techniques, such as bite-mark comparisons, also often lack empirical support. (See Howard v. State, 697 So. 2d 415, 429 (Miss. 1997) ("While few courts have refused to allow some form of bite-mark comparison evidence, numerous scholarly authorities have criticized the reliability of this method of identifying a suspect. . . . There is little consensus in the scientific community on the number of points which must match before any positive identification can be announced. . . . Suffice it to say that testimony concerning bite marks in soft, living flesh has not been scientifically accredited at this time."); I.A. Pretty & D. Sweet, The Scientific Basis for Human Bitemark Analyses—A Critical Review, 41 Sci. & Just. 85, 86 (2001) ("Despite the continued acceptance of bitemark evidence in European, Oceanic and North American Courts, the fundamental scientific basis for bitemark analysis has never been established.")

Only the federal government—the FBI and National Institute of Justice—have the resources to fund this research. The actual research, however, needs to be done outside forensic science. It should be done by independent organizations such as the National Academy of Sciences, which has conducted studies on voice-prints, DNA profiling (two reports), and the polygraph.

The disclosures concerning the abuse of scientific evidence are slowly beginning to have an impact. In 2001, the Florida Supreme Court in Ramirez v. State, 810 So. 2d 836, 853 (Fla. 2001) (citations omitted), felt compelled to note:

In order to preserve the integrity of the criminal justice system in Florida, particularly in the face of rising nationwide criticism of forensic evidence in general, our state courts—both trial and appellate—must apply the Frye test in a prudent manner to cull scientific fiction and junk science from fact. Any doubt as to admissibility under Frye should be resolved in a manner that minimizes the chance of a wrongful conviction, especially in a capital case.

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