Tuesday, November 24, 2015

Keith A. Findley's urgent call for reforming the ‘science’ in Forensic Science, published by Wisconsin Lawyer. (Must, Must Read. Should be posted on every courthouse door. HL);

COMMENTARY: "Reforming the ‘Science’ in Forensic Science," by Keith A. Findley, published by Wisconsin Lawyer on November 22, 2105. (Keith A. Findley, Yale 1985, is an assistant professor at the U.W. Law School, where he is also cofounder and codirector of the Wisconsin Innocence Project. He is president of the Innocence Network, an affiliation of 70 innocence projects in the United States and nearly a dozen other countries. He previously was a trial and appellate assistant state public defender in Madison.)

SUB-HEADING:  "Despite the flaws in the criminal justice system’s long-term faith in forensic science to find and convict offenders, forensic sciences remain increasingly critical components of the fact-finding process in criminal cases. To make forensic science evidence more reliable, a wide range of reforms must take place."

GIST: "Five years ago, in a press release hailing the court of appeals’ decision in State v. Jones,1 which upheld the admission of “ballistics” evidence and affirmed a murder conviction, then-Wisconsin Attorney General J.B. Van Hollen declared, “Murderers should fear forensic science.”2 Few would quibble with that sentiment. Forensic science can and should be a powerful tool for identifying and convicting the guilty – and for clearing and exonerating the innocent.
Today, as we continue to learn ever more about the challenges facing forensic science, however, Van Hollen’s declaration is perhaps better reinterpreted as aspirational as much as it was congratulatory. Indeed, even then there was some irony in Van Hollen’s choice of that particular case to celebrate forensic science, because it involved some of the most suspect and least scientific expert testimony imaginable..........Challenges confronting forensic science;    Until recently, few participants in the criminal justice system paused to question or examine the reliability of forensic science evidence; forensic science was a staple of criminal cases that was viewed as virtually infallible and precise, whose validity was established by decades of adversary testing through litigation. The reality, however, is different than that perception. It is a reality with which the legal system is just now beginning to come to terms. The sense of infallibility began to change when DNA evidence began to reveal criminal case errors at rates never before imagined. Since 1989, when the first two men in the United States were exonerated by postconviction DNA testing, at least 330 convicted individuals have walked free in serious cases after DNA testing proved their innocence.7 Many hundreds, indeed thousands, more have been exonerated by other types of evidence.8 Surprisingly, flawed forensic science evidence is the second-leading contributor to the wrongful convictions in those DNA cases. Of the first 325 DNA exonerations, 154, or 47 percent, included misapplication of forensic science.9 Only eyewitness-misidentification evidence contributed to more false convictions. A detailed analysis of the cases in which a forensics expert testified at trial and DNA evidence later proved the defendant’s innocence found that 60 percent of the experts proffered scientifically inappropriate testimony.10 In the much larger pool of exonerations counted by the National Registry of Exonerations since 1989 (which includes exonerations based on all types of evidence, not just DNA), misapplied forensic evidence played a smaller but still significant role – flawed science was present in 363, or 23 percent, of the 1,600 exonerations in that database.11 Of course, the problem of shaky forensic science evidence concerns much more than wrongful conviction of innocent persons. Flawed forensic science inevitably means that the system also fails to identify the truly guilty. Hence, this is a problem recognized by more than only advocates for the innocent. Most notably, in 2009 the National Academy of Sciences (NAS) – the preeminent scientific authority in the United States – published its groundbreaking study of forensic sciences.12 Among its many findings, the NAS concluded that, despite their long pedigree in the criminal justice system, most forensic identification disciplines (those whose objective is to match evidentiary traces found on crime scene evidence to a particular individual) are fundamentally unscientific. The NAS wrote: “With the exception of nuclear DNA analysis, ... no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”13 This is not to say that traditional forensic sciences have no value. As the NAS also wrote, “For decades, the forensic science disciplines have produced valuable evidence that has contributed to the successful prosecution and conviction of criminals as well as the exoneration of innocent people.”14 But it is to say that forensic sciences are not all that they were presented as being, and that they can and must be improved. The NAS explained that, unlike science-based disciplines such as DNA analysis, serology, and chemical analyses, the identification disciplines “have been developed heuristically. That is, they are based on observation, experience, and reasoning without an underlying scientific theory, experiments designed to test the uncertainties and reliability of the method, or sufficient data that are collected and analyzed scientifically.”15 In its voluminous report, the NAS examined a number of specific identification forensic specialties, including friction-ridge analysis (fingerprints) and other pattern-impression evidence (shoe prints, tire tracks, lip prints, ear prints, glove prints, and so on); forensic odontology (bite marks); microscopic hair and fiber analysis; questioned-document analysis, including handwriting analysis; firearms and toolmark analysis; and forensic DNA profiling. For each specialty, except DNA, the NAS found that there is little if any underlying scientific research, an absence of uniform protocols and standards, no databases of evidence to enable calculating the statistical significance of a “match” between crime scene evidence and a suspect, and wide room for subjective judgments by analysts. The critique applies to even the most venerated of the traditional, pre-DNA identification disciplines – fingerprints. The NAS concluded that, because there are no set standards for declaring a fingerprint “match,” “[e]xaminers must make subjective assessments throughout. In the United States, the threshold for making a source identification is deliberately kept subjective, so that the examiner can take into account both the quantity and quality of comparable details. As a result, the outcome of a friction ridge analysis is not necessarily repeatable from examiner to examiner. In fact, recent research by Dror16 has shown that experienced examiners do not necessarily agree with even their own past conclusions when the examination is presented in a different context some time later.”17 Finally, the NAS Report also addressed serious challenges confronting forensic pathology.18 Of concern in criminal cases, for example, are growing doubts about the validity of medical diagnoses in matters such as “shaken baby syndrome,” or “abusive head trauma” cases. Numerous courts, including the Wisconsin Court of Appeals19 and the U.S. Supreme Court,20 and legal and medical literature21 have noted the increasing scientific challenges to previously held beliefs about the medical diagnosis of murder in such cases. The discovery of junk science: New scrutiny has even exposed some forensic disciplines as essentially “junk” sciences, which laboratories are abandoning as useless, or worse.  Read on through the link  for some of Findley's examples of junk science: Comparative bullet lead analysis; Microscopic hair comparison; Forensic odontology  bite matching;  Also note his enlightened references to cognitive bias in forensic analysis, context effects, role effects and group think,  confirmation bias, countering cognitive biases, challenges to cutting edge sciences, and prescriptions for improvement - and a strongly worded  conclusion: "Criminal cases are increasingly science dependent, and the traditional forensic sciences have played a crucial role in the way we dispense justice. Recent years have shown, however, that forensic science is no silver bullet. A weak scientific foundation, sparse research support, and surprisingly high error rates beset most forensic sciences."

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