COMMENTARY: "Deputy AG announces new working group but still doesn't understand the extent of the problem," by Radley Balko, published on August 7, 2017. (Radley
Balko blogs about criminal justice, the drug war and civil liberties
for The Washington Post. He is the author of the book "Rise of the
Warrior Cop: The Militarization of America's Police Forces.")
GIST: "In a speech at the International Association for Identification on
Monday, Deputy Attorney General Rod J. Rosenstein announced the
creation of a Forensic Science Working Group within the Justice
Department. Recall that one of the first moves by Attorney General Jeff
Sessions was to end the National Commission on Forensic Science (NCFS), which brought in independent scientists to evaluate the credibility of forensics fields used in U.S. courtrooms. The
new group will be housed within the Justice Department, which will
inevitably make it less independent and less transparent than the NCFS.
It will be led by Ted Hunt, a longtime prosecutor. Though Hunt worked
with the NCFS, putting a prosecutor in charge of forensic reform doesn’t
inspire a lot of confidence in the new working group’s impartiality. For
that matter, neither does Rosenstein’s speech. It’s been striking to
see prosecutors and law enforcement groups react to the critiques of
forensics that have come from the scientific community. Those critiques
didn’t come out of nowhere. They came from commissions and panels formed
after DNA testing, crime lab scandals and exonerations showed us that
for decades prosecutors have been presenting juries with “scientific”
evidence that is anything but. The FBI’s hair fiber analysis scandal
alone tainted thousands of cases.
And yet the reactions from prosecutors to these critiques — that
experts are overstating their findings, wrongly implicating suspects, or
practicing fields utterly lacking in any scientific principles at all —
have been utterly devoid of any humility. Rosenstein’s speech Monday is less strident than others I’ve seen, but it’s still preachy and didactic. Those
disciplines have been around for a long time. When subjected to
informed cross examination, expert testimony can be tremendously
probative and helpful to the jury. Nevertheless, some critics
have sought to limit the forensic evidence and testimony that can be
presented in court. These critics suggest that unless a forensic
discipline has a “known error rate,” evidence derived from that
discipline should not be admitted in court. Under that standard, trusted
and reliable forensic evidence would be excluded simply because the
discipline is not susceptible to an easy-to-calculate error rate. The
folly of that approach is clear when critics question fingerprint
analysis. They admit that it usually works. Their objection is that it
requires judgment. This isn’t quite true. Few are
suggesting fingerprint evidence be barred from the courtroom. The
criticism is that experts have been overstating the certainty of
fingerprint evidence, particularly when it comes to partial prints.
Fingerprinting has long been touted as the “gold standard” in forensics.
It’s been touted as foolproof and definitive. The criticism here is
that if we don’t actually know how unique a fingerprint is in a
given population, we can’t tell jurors that they’re unique. If
prosecutors want to present fingerprint evidence, jurors should be made
aware of this. And if experts want to testify about “matches” and levels
of “certainty,” let’s give them regular competency tests arranged by
outside entities. More from Rosenstein: Evidence
is relevant if it tends to make a material fact more or less probable
than it would be without the evidence. It is not necessary for the
evidence to be indisputable. For example, a shoeprint with
irregular edges and unique wear on the outsole found at the scene of a
burglary is likely relevant and admissible. Both the prosecution and the
defense can use the evidence to help the jury decide whether to believe
a defendant was at the scene of the crime. Physical evidence may
be more helpful to a jury if an expert can explain the evidence and
place it in context. The jury may benefit from expert testimony in
interpreting how probative the shoe print is. Is it the same size as the
defendant’s foot? Does it match a shoe found in the defendant’s closet?
Answers to those questions may determine whether the physical evidence
is incriminating or exculpatory. If the testimony were excluded, the
search for truth would be impeded. The jury would have no assistance in
determining what to conclude about the discovery of the shoeprint. There’s
nothing wrong with an expert stating that a shoe print is similar in
size to the foot of a suspect or that it appears to be of a similar
brand of shoe. But how similar? What if an expert tries to
claim not that the suspect’s shoe is of a similar size and brand to
those found in dirt near the crime scene but that he can tell by the
wear in the tread on the suspect’s shoes that only that particular pair of shoes could have left the marks at the crime scene? The problem is that there are no standards for making these assessments,
nor for the language analysts use to convey those assessments to
juries. And here we get back to error rates. With DNA, with blood typing
and with other science-based fields of forensics, we can give juries
probabilities. In the fields of forensics known as “pattern matching,”
there are no such calculations to be made, because those fields are
little more than experts relying on their expertise to “eyeball” the
evidence. And when you’re eyeballing it, it becomes pretty easy to start
to seeing matches that aren’t matches at all. More from Rosenstein: When
the judicial system functions as intended, justice is advanced. Our
adversarial system is based on the principle that the truth is most
likely to emerge when opposing parties have the opportunity to
cross-examine each other’s witnesses, and each party is able to call its
own witnesses and introduce conflicting evidence. Our criminal
justice system provides important procedural protections for defendants.
For example, a federal defendant is entitled to a written summary of
the testimony of the government’s forensic expert. That allows the
defendant to know in advance what the government’s expert plans to say,
and to rebut it with his own expert testimony. The defendant also has
the right to examine and challenge the results of any scientific test. The
search for truth benefits from those protections. But most of all, the
quest for truth benefits from prepared legal practitioners and trained
forensic examiners. This cuts to the heart of our
adversarial justice system. It also cuts to the heart of what’s wrong
with it. The very fact that two experts claiming to employ a form of
scientific analysis can testify in direct opposition to one another
about, say, a bite mark or blood spatter or a hair fiber, is a pretty
good indication that the field isn’t all that scientific. You’ll rarely,
if ever, see two DNA experts at odds over how many markers match
between two samples. There are a few reasons why we can’t simply
rely on cross-examination and our adversarial system to weed out bad
expert testimony. The first is that when two experts contradict one
another, the jury will be won over by the expert who is most effective
at persuading juries. And that isn’t always the expert who is using the
best science. In fact, as prosecutors themselves often admit,
juries love certainty. They love experts who will tell them what to
think. Scientists tend to avoid speaking with certainty. They speak in
probabilities. All of which means the adversarial system may be biased against more scientific evidence. The second is that we have
relied on the current system for most of our history. And DNA testing
has revealed that doing so has sent a lot of innocent people to prison.
Rosenstein’s Justice Department oversees the FBI. The FBI used flawed
hair fiber and ballistic evidence for decades. All of those experts were
subject to cross examination. The FBI now admits that its experts were
wrong. Should the FBI be allowed to continue to have experts testify to
these flawed theories, on the theory that defendants will get to cross
examine them? Of course not. The flaws in the agency’s hair fiber and
ballistics analysis were exposed with competency testing, statistical
analysis. So why not ask the scientific community to subject a field of
forensics to that sort of scrutiny before it’s used to send thousands of people to prison instead of after? More from Rosenstein: The
Department of Justice has undertaken unprecedented efforts to examine
and strengthen the reliability of forensic science and its use in the
courtroom. We are committed to improving forensic science. That’s good to hear. But we’ve heard that before. And the Justice Department’s reaction to the P-CAST
and NSFC reports was basically hostile. And again, given the history
here, you’d expect perhaps some humility. Instead, we get empty promises
and assurances. Much
of the rest of what Rosenstein proposes consists of additional funding,
training and supplying of crime labs. That’s all well and good, but
what’s really needed are assessments of crime lab methods and practices
from scientists outside the field of forensics. The areas of forensics
with no basis in science need to be discarded. Those that have some
evidentiary value but are heavily reliant on the judgment and expertise
of analysts (as opposed to more objective measures) need safeguards
against cognitive bias — the unconscious bias that can creep into the
work of even the most conscientious analysts. That means testing should
be done blind whenever possible, and analysts’ work should be regularly,
blindly and randomly double-checked for accuracy. We need to understand
the incentives and be sure they’re properly structured — crime labs
should never be under the auspices of police agencies or prosecutors’
offices. (Which means that, yes, the “FBI Crime Lab” shouldn’t exist.) Rosenstein’s
line here seems to be “trust us, we’ve got it right this time.” But
we’ve heard that before.........The
one approach that seems most obviously wrong is the one that Rosenstein
is suggesting — that we ignore history, incentives and common sense and
simply put our trust in prosecutors, police agencies and other law
enforcement officials to get it right."
The entire commentary can be found at:
https://www.washingtonpost.com/news/the-watch/wp/2017/08/07/deputy-ag-announces-new-forensic-science-working-group-but-still-doesnt-grasp-the-extent-of-problem/?utm_term=.359ec3f67e3c
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the
Charles Smith Blog for reports on developments. The Toronto Star, my
previous employer for more than twenty incredible years, has put
considerable effort into exposing the harm caused by Dr. Charles Smith
and his protectors - and into pushing for reform of Ontario's forensic
pediatric pathology system. The Star has a "topic" section which focuses
on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please
send any comments or information on other cases and issues of interest
to the readers of this blog to: hlevy15@gmail.com. Harold Levy;
Publisher; The Charles Smith Blog.
