NACDL Champion on NAS Report

[L.J.Steele]

New article discussing the implications of the NAS Report.

http://www.nacdl.org/public.nsf/01c1e76 ... enDocument

[Charles Parker]

An interesting article and the following are some quotes from the article. Use the article to try to determine the type of reasoning behind each.

People’s differing diverse views are always interesting in some respects.

In the area of forensic science, NIJ has been part of the problem — for example, it has refused to fund sorely needed research on the fundamental validity of the pattern matching disciplines out of apparent fear that acknowledging the need for such research would undermine convictions.

To do its work properly, the proposed National Institute of Forensic Science will need to rock the boat. Radical changes in the day-to-day practice of forensic scientists will need to be mandated.

NIFS should be led by research scientists with distinguished publication records who have a demonstrated interest in forensic science,

Scientists should lead NIFS, including at least one prominent professor of statistics.

People with strong backgrounds in academic science should be leading this revolution.

It was the academic perspective that allowed the NAS panel to see forensic science for the mess that it is, and it is the academic perspective that must lead us out of the morass.

The fundamental message of the NAS Report, however, is that the entire field of forensic science needs adult supervision — the practitioners should no longer be running the show. To place NIFS under the control of forensic practitioners would be like appointing Dick Cheney to reform Guantánamo.

The people who lead NIFS should be strongly rooted in science and must not be part of a law enforcement agency. The most important qualification in my mind is that the leaders not be in any way committed to the existing system.

if NIFS issues guidelines that say latent print examiners should not claim to make absolute identifications, will courts continue to allow them to do so? I doubt it. Negative admissibility rulings will be the real incentive to comply with NIFS standards.

(2) use the NAS Report in both state and federal court cases to argue against the admission of forensic science testimony;

The defense bar should also work together to create model briefs challenging the admissibility of some of the weaker forms of forensic evidence and arguing for proper limitations on forensic testimony.

(e.g., a standard that mandates that evidence will not be offered in court unless defined developmental and internal validation has been conducted and peer reviewed).

I think all such testimony should be excluded under Daubert and also under Frye on the ground that the NAS Report shows that that these disciplines are no longer generally accepted within the relevant scientific community.

If the experts themselves are not qualified to reach identification conclusions, how can the jury be qualified to do so?

For example, latent print examiners might be able to tell the jury that two prints could have a common source but might not be allowed to conclude that they were definitely made by the same finger to the exclusion of all other fingers in the universe. It does not matter whether the conclusion is offered as a “fact” or merely as an “opinion;” there must be an adequate scientific foundation in either case.

Certifying someone to testify as an expert in a discipline that may or may not be reliable is absurd.

Certification, no matter by whom, is definitely not a science.

…..makes it harder for the defense to find experts to criticize these disciplines…..

In view of the forensic science community’s vigorous and vocal resistance to the report’s recognition of the need to convert forensic science into first-rate science, it is crucial for the defense to make legislators aware that the forensic science organizations are providing them with distorted accounts of the NAS Report.

Intransigent responders continue to argue, for example, that the pattern matching disciplines have already been validated (although they cannot cite relevant studies) and that their error rate is zero (although many errors have been exposed). Their biggest canard is an argument that Professor Simon Cole has called “the fingerprint examiner’s fallacy” (although the same argument is advanced by toolmark and bite mark analysts, among others). According to this argument, trained analysts can tell by looking whether particular marks (such as latent prints, toolmarks, bite marks, etc.) are “unique” and can therefore determine with absolute certainty whether two such marks had a common origin. As the NAS Report recognized, there is no proof that such marks are unique or that analysts could tell if they were, and hence no reason to believe that what an analyst decides to call a “match” between two marks is proof that the marks have a common origin. Nevertheless, forensic scientists keep arguing that because the marks they identify are “unique,” their identifications must be infallible.

Lawyers who want to capitalize on the NAS Report to challenge disciplines such as latent print analysis, toolmark analysis, bite mark analysis and the like will need to look outside of forensic science and identify potential experts in the academic community.

Entire disciplines rest on an inadequate scientific foundation and employ procedures lacking in essential scientific rigor. To talk about codes of ethics trivializes the problem and diverts attention from the systemic measures needed to solve it.

That is one of the reasons it is important for courts to assure that forensic testimony is based on solid science rather than wishful thinking.

[SConner]

Wonder what the NACDL's position on the state of forensic science is when our so called shoddy and non-scientific methods point to somebody other than one of their clients.

[L.J.Steele]

Wonder what the NACDL's position on the state of forensic science is when our so called shoddy and non-scientific methods point to somebody other than one of their clients.

Speaking wholly for myself and not NACDL, let me try to respond. I've been giving Conner's question some thought.

When I am representing a client, I have an ethical duty to zealously represent that client within the bounds of the law. In defending that client, I may be obligated to present testimony that I have qualms about, so long as I don't believe the testimony is perjury or otherwise a fraud on the courts. The defense may involve an alibi witness who is also the defendant's kin or friend. It might involve an eyewitness who is certain my client wasn't the culprit. Or it might involve exculpatory forensic evidence using a method or technique that I have challenged in other cases. Zealous representation means looking at that evidence, doing some research and investigation, and making a decision about whether offering it will help or hurt the case.

Certainly, reliablity is a factor that a good attorney will consider, presenting testimony that is vulnerable to a successful attack by a prosecutor may not help the case, and may weaken a decent defense. (Rumpole has a great quote about alibis -- "I'm not altogether sure I like cast-iron alibis. They're the sort that sink quickest - to the bottom of the sea.") If I have qualms about a forensic method, I'm going to have concerns about relying on it to exculpate the client, knowing that the prosecutor may borrow some of my own briefs and articles to use in crafting the cross or Daubert motion. There are ethical requirements about candor to the courts that require me to bring certain adverse precedent to the court's attention, but otherwise leaves it to my opponent to do his or her own investigation and prepare a cross or challenge.

Whether I offered it, and to what extent I relied on it if I did, would depend a great deal on the nature of the evidence and how it fits into the case.

Stepping out of that role as defense attorney in a specific case, I live in the community too. I know there are genuine bad guys out there who should be prosecuted and convicted for their crimes. I want the investigators to use good science to find the right bad guys, without making good-faith mistakes which inculpate the wrong people and leave the actual culprits on the streets. To that extent, I think we are all on the same side.