PASSAGE OF THE DAY: (From abstract of the paper): "Recent exonerations have spotlighted the link between implicit racial bias, faulty forensic testimony and wrongful conviction. One such case involved Patrick Pursley, a Black man who was wrongfully convicted of murder in 1994 based on a firearm examiner’s opinion that test fires from a pistol attributed to Pursley matched bullets and cartridge cases retrieved from the crime scene.
Twenty-two years later, as Pursley was serving a life sentence without parole, the examiner testified at a post-conviction hearing that a review determined the original evidence was “inconclusive.” A post-conviction court vacated Pursley’s conviction and exonerated Pursley, who was ultimately awarded a certificate of innocence. “Again, there was no new information about the bullets, cartridge cases, or the weapon itself, which begs the question of what led the examiner to his remarkably definitive conclusion at the original trial and whether Mr. Pursley’s race played a role through implicit bias,” the authors write. This case, and others like it, illustrates the subjectivity of forensic testimony, its susceptibility to implicit racial bias and its power to reinforce biases. Other academics, the authors maintain, have already explored the racial biases that pervade DNA phenotyping and facial recognition technologies."
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STORY: "Forensic Testimony Distorted by ‘Implicit’ Racial Bias: Paper," by reporter Eva Herscowitz, published by The Crime Report on September 8, 2021.
SUB-HEADING: "Far from an objective and equalizing tool, forensic testimony perpetuates a “presumption of guilt” towards individuals of color involved in the criminal legal system, argue the authors of a forthcoming Criminal Law Bulletin article.."
GIST: "Far from an objective and equalizing tool, forensic testimony perpetuates the “presumption of guilt” for people of color involved in the criminal legal system, argue the authors of a forthcoming Criminal Law Bulletin article.
In “Perpetuating the Presumption of Guilt: The Role of Implicit Racial Bias in Forensic Testimony,” Forensic Justice Project Executive Director Janis C. Puracal and Lewis & Clark Law School Professor Aliza B. Kaplan argue that government experts are often susceptible to implicit racial bias, tainting their supposedly scientific analyses of firearms, toolmark impressions and bloodstains.
Analyzing, for instance, a bullet from a crime scene might appear to be an empirical process. But an examiner assigned to such an analysis is typically given “irrelevant contextual information” like the name, race and background of the lead suspect — information that could “predispose” the examiner to believe the bullet was fired from that suspect’s gun, producing a “result-driven opinion” about a suspect’s guilt.
“The human eye will see what it wants to see, and, because there are no objective standards by which to measure the marks, the examiner’s conclusions may reflect bias in favor of guilt, rather than a true determination that the marks are, in fact, the same in appearance or sufficient in number,” Puracal and Kaplan write.
Recent exonerations have spotlighted the link between implicit racial bias, faulty forensic testimony and wrongful conviction.
One such case involved Patrick Pursley, a Black man who was wrongfully convicted of murder in 1994 based on a firearm examiner’s opinion that test fires from a pistol attributed to Pursley matched bullets and cartridge cases retrieved from the crime scene.
Twenty-two years later, as Pursley was serving a life sentence without parole, the examiner testified at a post-conviction hearing that a review determined the original evidence was “inconclusive.” A post-conviction court vacated Pursley’s conviction and exonerated Pursley, who was ultimately awarded a certificate of innocence.
“Again, there was no new information about the bullets, cartridge cases, or the weapon itself, which begs the question of what led the examiner to his remarkably definitive conclusion at the original trial and whether Mr. Pursley’s race played a role through implicit bias,” the authors write.
This case, and others like it, illustrates the subjectivity of forensic testimony, its susceptibility to implicit racial bias and its power to reinforce biases. Other academics, the authors maintain, have already explored the racial biases that pervade DNA phenotyping and facial recognition technologies.
By focusing on other commonly-used forms of forensic evidence that have maintained a “façade of unbiased objectivity,” Puracal and Kaplan hope to address the absence “in the literature on bias in forensic science.”
Ultimately, they endorse reforming policies that govern forensic practitioners, including minimizing irrelevant contextual information through the use of case managers, removing public forensic labs from law enforcement control and cross-examining forensic examiners on implicit bias, all of which could highlight where implicit racial bias is impacting results and could help officials adopt corrective actions.
Over the past year, Americans have spotlighted the racial bias pervading policing and incarceration. Devoting the same amount of resources and attention to implicit bias in forensic testimony will produce a more just criminal legal system, the authors argue.
“A desire for a more fair and transparent criminal justice system means taking action based on the research and the disproportionate outcomes that paint a very real picture of the presumption of guilt facing people of color,” the authors write.
“Focusing on the role that forensic testimony plays in perpetrating that presumption is crucial to our pursuit of justice.”
The paper can be downloaded here."
The entire story can be read at: https://thecrimereport.org/2021/09/08/forensic-testimony-distorted-by-implicit-racial-bias-paper/
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An abstract of the paper can be read at the link below:
ABSTRACT: "Since the murders of George Floyd and Breonna Taylor, conversations around racial bias in the criminal justice system have accelerated. Much of the focus has turned to police reform. The potential for racial bias, however, does not end with the initial stop, search, and arrest. Rather, it can be found throughout our criminal justice system, and forensic testimony is one area that does not get nearly enough attention when it comes to implicit racial bias.
Lawyers, judges, and jurors often approach scientific sounding evidence with a predisposition to accept the expert’s conclusions, without a critical eye. Experts for the government are often presumed to be neutral and objective witnesses who report the science with no stake in the outcome.
Government experts, however, are susceptible to bias, including implicit racial bias, just like the rest of us. These experts who testify in criminal cases may not be reporting “neutral science”; the testimony may be contaminated by implicit racial bias, among other biases, that has colored their conclusions.
Pattern matching methods —for example, analysis of firearms and toolmark impressions, bloodstains, latent prints, hairs, and footwear and tire impressions—are especially problematic. These methods are inherently subjective, meaning that they rely heavily on the examiner’s individual judgment, rather than any objective standard. Even though the examiner may be analyzing, for example, a bullet from a crime scene, that examiner may also be given “irrelevant contextual information,” such as the name, race, and background of the lead suspect. Knowing that information can predispose the examiner to believe that the bullet was fired from that suspect’s gun, leading to a result-driven opinion about whether the marks on the bullet “match” the marks on test fires from the gun. The human eye will see what it wants to see, and, because there are no objective standards by which to measure the marks, the examiner’s conclusions may reflect bias in favor of guilt, rather than a true determination that the marks are, in fact, the same in appearance or sufficient in number. For many law enforcement-led forensic labs, that predisposition toward guilt exists regardless of knowledge about the suspect’s race; knowing that information only adds to the level of bias—a bias that is often difficult to identify because it is unspoken and rooted in decades of societal learning that has created presumptions about dangerousness, culpability, and propensity toward violence based on race.
A number of recent exonerations have raised questions about the role of implicit racial bias in faulty forensic testimony that resulted in a wrongful conviction. For example, there are cases in which an examiner’s opinion changed over time from inculpatory to exculpatory or neutral. The million-dollar question is what led the examiner to the inculpatory opinion in the first place, especially when that opinion ultimately proves to be changeable without any new information about the evidence itself.
In this article, we address how implicit racial bias can affect forensic testimony and ways to address it before wrongful convictions occur. In section II, we explain what implicit bias is. In section III and IV, we discuss the presumption of guilt that exists in our criminal justice system for people of color especially Black and Brown people. Section V provides an overview of the relative lack of attention that implicit racial bias has received in forensic reform to date. In section VII, we examine how widespread acceptance of forensic evidence as objective and impartial ignores how implicit racial biases in forensic testimony perpetuate the presumption of guilt for people of color in our criminal justice system. In sections VIII and IX, we indicate the steps necessary to limit implicit racial bias and provide examples of what can be done to address it in forensic testimony such as auditing state forensic labs, creating independent (not law enforcement led) forensic labs, conducting root cause analyses in forensic labs, and cross-examining the government’s forensic experts about how implicit racial bias may have infected their opinions. Finally, we conclude in section X that, in order to fully address the impact of implicit racial bias in the criminal justice system, we must acknowledge and address the role that forensic testimony plays in perpetuating the presumption of guilt for people of color."
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3902603
Christina Swarns: Executive Director: The Innocence Project;--------------------------------------------------------------------------
