CSI:Crime Scene Investigation may have been a classic TV show, but it did not do a very good job of reflecting how our justice system actually works with respect to the validity of forensic science methods. Criminal attorneys dubbed the term “the CSI effect” to describe how jurors expected to see the same type of high-tech forensic evidentiary displays in criminal trials as they did on TV. Sometimes the lack of this evidence left prosecutions without forensic evidence appear weak. But more often than not, the dangerousness of scientific evidence is that both judges and jurors have the false impression that if a well-credentialed expert witness says a piece of evidence is valid scientifically, well then that must be true.
A recent 174-page report released by the President’s Council of Advisers on Science and Technology, however, demonstrated that junk science has been pervasive in our criminal courts in recent years, pushed into evidence by federal prosecutors despite widespread shortcomings with the scientific methods underlying the evidence. The report included several recommendations that, because so many false convictions have resulted from the inclusion of junk science in criminal trials, the Department of Justice (DOJ) should take greater care to make sure submitted evidence is scientifically valid. Despite the voluminous data supporting the recommendations, Attorney General Loretta Lynch already rejected the recommendations.
The Report Finds Shortcomings Across Various Methods
In a world where new scientific studies are published every day, and “expert witnesses” are asserting all kinds of new scientific theories before judges and juries without science backgrounds, the purpose of the study was twofold: 1) to provide clarity about the scientific standards that should be applied in forensic science, and 2) to evaluate specific types of forensic evidence methods currently being used. To that end, the authors of the report evaluated seven separate forensic science methods as applied in murder, rape, and other violent crime investigations and trials:
- DNA analysis of single-source and simple-mixture samples
- DNA analysis of complex mixture samples
- Bitemark analysis
- Latent fingerprint analysis
- Firearms analysis
- Footwear analysis
- Hair analysis
Overall, the study found serious shortcomings in these areas with respect to both uniformity and reliability of the methods currently being used to convict criminal defendants.
The Council’s Recommendations to the DOJ
Due to the widespread issues with the forensic methods analyzed, and the high incarceration rate of individuals wrongly convicted using such methods, the report made numerous recommendations to various government institutes as well as the FBI, the DOJ, and the federal judiciary. Specifically, the recommendations to the DOJ were as follows:
- The Attorney General should direct attorneys appearing on behalf of the DOJ to ensure expert testimony in court about forensic feature-comparison methods meets the scientific standards for scientific validity.
- The DOJ should take further steps to work with the National Institute of Standards and Technology (NIST) to make sure that other forensic science methods not discussed in the report are scientifically valid.
- Where the DOJ and NIST determine there is a lack of support for the scientific validity of a method, further study and testing should be done on those methods.
- The Attorney General and DOJ should work to ensure that its proposed “Uniform Language for Testimony and Reports” and related materials are based on scientifically valid principles.
- The Attorney General should issue instructions to federal prosecutors to refrain from using evidence not supported by certain scientific standards and should instruct witnesses to tell jurors about potential errors in their data and analysis.
The Attorney General Rejects the Council’s Recommendations
Shortly after the report was issued, Attorney General Loretta Lynch issued a statement that the DOJ would be rejecting the recommendations made in the voluminous report. Lynch stated, in part, “The department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning. While we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”
Although it is not shocking that the DOJ, which is in the business of winning convictions, would not welcome findings that call into question the prosecutorial methods used by its attorneys to target defendants, it is nonetheless disheartening that attorneys in such positions of power would reject such well-researched findings. That said, the report should give encouragement to defendants and defense lawyers in pushing back against the junk science so often wrongfully asserted in courtrooms across the country.