The Washington Post has been running a series of stories on problems with forensic science. Radley Balko, a Post opinion writer focusing on civil liberties and the criminal-justice system, explains.
In covering these issues, I have found that there are lots of people willing to talk about the problems with forensics in the courtroom. But solutions are harder to come by — especially solutions that would be politically feasible, findable, and fit the current framework of our judicial-legal system.
He queried people he described as “critics of the way forensics are used in criminal cases.” Fourteen responded to a set of six questions. They include Frederic Whitehurst, an FBI crime lab scientist whistleblower and director of the Forensic Justice Project at the National Whistleblower Center. Whitehurst flagged the agency for sloppy science more than 25 years ago. (A January story from independent news source ProPublica identified some new crime lab problems.)
There seems to be an inescapable tension between the fields of law and science. Law strives for consistency and finality, so courts tend to look to precedents for guidance. Science is always changing with new evidence and new research. But of course science is an important tool in the search for justice. We’ve also entered the era of “alternative facts,” in which the courts pick and choose between expert testimony that’s not only contradictory, but also irreconcilable.
Several media outlets have documented a disturbingly large and growing number of court rulings that have relied on expert testimony and assertions in amicus briefs that are flat-out wrong.How do we ensure that the justice system operates on reliable information?
Here is Whitehurst’s response:
First, we need to recognize that our inability to handle this disharmony has resulted in human rights violations. Individuals are now being freed after decades in prison for crimes they did not commit because their convictions were based on, for instance, forensic hair analysis. These are human rights violations. Once we’ve called the situation what it is, we can begin to find ways to reconcile these two fields.
As a PhD candidate in the 1970s at Duke University, I found myself in a chemistry research building across the street from Duke Law School. Neither future lawyers nor future scientists ever crossed that street. With all the talent at Duke, no one crossed the street to tackle some of the most complex and exciting scientific and legal issues of our day.
Nationally, some have finally have crossed that figurative street. A forensic science commission comprised of scientists and lawyers, commissioned by the White House, was leading us in the right direction. They were then abruptly shut down on the mere whim of the lead attorney in this country, our own attorney general.
Sandra Guerra Thompson, of Houston Forensic Science Center at the University of Houston Law School noted that the Texas Forensic Science Commission decided in 2016 that unreliable bite-mark evidence should be inadmissible in court.
These new developments create judicial awareness about forensic disciplines that have proven to be unreliable. This awareness, in turn, should make trial judges more willing to revisit past precedents when considering whether to admit forensic evidence in the face of a well-reasoned defense objection. The law, like science, does evolve and change.”