Takes a Kicking and Keeps On Ticking

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Charles Parker
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Joined: Mon Jul 04, 2005 6:15 am
Location: Cedar Creek, TX

Takes a Kicking and Keeps On Ticking

Post by Charles Parker »

Here is somthing to brighten your day.
While the panel's recommendations are not binding, they are considered influential. Many experts say the report could have a broad impact on crime labs and the courts, ushering in changes at least as significant as those generated by the advent of DNA evidence two decades ago. But the sweeping reforms proposed by the academy would take years of planning and major federal funding to enact.

In the short term, a flood of new legal challenges - in both current cases and past convictions that have relied on the techniques - are planned, defense attorneys say.

To the frustration of some, the report is silent on how such legal issues should be handled, something that will fall to judges and juries to decide.
I would think that Defense Advocacy Groups are Hi-Fivin and will be celebrating until the wee morning hours.

Joking aside I have not been able to read it all yet but some of the recommendations are good, some not quite in reality and some not practical.

As someone else just wrote me-----How long until they get it off the ground. Well I will probably be dead and buried before then, but in the meantime they have given the defense ammunition to ask a lot of questions. Of course I expected that after Harding and did not get a darn question one.
Knuckle Draggin Country Cousin
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L.J.Steele
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Re: Takes a Kicking and Keeps On Ticking

Post by L.J.Steele »

I would think that Defense Advocacy Groups are Hi-Fivin and will be celebrating until the wee morning hours.
More a sense of cautious optimism that things will actually change this time. And a cynical sense that probably they will not, or at least not soon.

I would hope you folks would be celebrating -- I haven't read the report itself, but the press conference and summary seem to call for more funding, better training, more clear standards and protocols -- all the sorts of things that many of the folks on this list have been saying for quite some time.
Gerald Clough
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Re: Takes a Kicking and Keeps On Ticking

Post by Gerald Clough »

Some thoughts, also with only a skim of the Report and Statements:

Things of this sort do what studies most often do, which is point out a direction for more work. It's unusual for any complex matter to be neatly cleaned up in one pass or even several passes. What's interesting here is that it's an effort to go at a criminal forensic issue from the science end, implying a desire for a legislative effort, rather than evolving something through litigation. I think it is unlikely that there is any simple legislative approach. Almost every practical issue in criminal matters rests with the states, and this one deals with issues that have their practical effects in state crime labs and the relatively few large local official labs. State legislatures, in this case, can't approach it with their sometimes unfunded mandates, because it's their own labs and their own funds that are affected. I think part of the reason states like Texas exempt latent print units from their certification requirements is that the state couldn't possibly handle the volume. The recommendation that a proposed National Academy of Forensic Sciences mandate certification and accreditation is certain to run foul of the state reservation. Like most federal programs that lack direct constitutional authority, efforts of this sort must depend on funding, rather than force. If the imaginary NIFS did, as proposed, fund state and local labs, they could certainly tie compliance to funding. That reality, alone, points up how much this is a report for the future (more far than near) than it is a proposal for rapid change. (Or perhaps a few billion dollars to that end could "stimulate" by putting to work all those folks graduating from forensic science programs who otherwise are being sorely disappointed.)

There are some very positive comments and ideas in the report. One is the stated goal of the forensic sciences contributing more to criminal justice. There are specific comments suggesting that fields that cannot pass admissibility review can indeed provide guidance to investigators. And there is a recognition that a discipline that cannot reliably identify a source can reliably exclude a source. While the mention I refer to seemed to be associated with odoentology, it's something we tend to short sometimes when there is little detail but some peculiar detail that could certainly exclude. The call for funding to establish medical examiner operations as the universal standard to replace "coroners" is another positive that addresses a shameful failing in the U.S.

The co-chair's Opening Statement included this passage: Unfortunately, the adversary system, and its highly partisan approach to the submission of
evidence in court, is not well suited to the task of finding "scientific truth."
That is, I think, the key motivator. That is what this report is really talking about. It is not a one-sided issue. Enormous effort and considerable money is expended wrangling over scientific "truth." And the truth of the statement applies somewhat differently in different fields. The Report addresses the "crime lab" forensic sciences. In court, those disciplines are treated differently from fields whose experts must be found among "independent" practitioners. Judges tend too accept too little adverse expertise in the "crime lab" sciences and accept extravagant adversarial expertise in the non-crime lab sciences, where there is a pool of "independent" experts who are quite prepared to testify to very different and opposing conclusions. The Report seems to me to take the track of correcting the situation by seeking to render the "crime lab" practitioners more independent and more subject to the evaluation of relative competency by comparing training and certification. This is an understandable academic orientation where school, degree, publication history, and success in gaining research money help determine status. But it doesn't insure quality (or honesty) in academia or in court.

The adversarial legal process grates on scientists. I think a lot of the enthusiasm for a project of this sort grows out of finding repugnant the notion that scientist testify but laypeople decide. I think they hope that the end result will be that forensic scientists will, upon examining any evidence, produce conclusions acceptable to the whole forensic science community that then must be accepted by the lay finders of fact, and that the processes of analysis will have been accepted by the scientific community, including academics. Our experience in the non-lab forensics suggests this will not happen quite the way they imagine. More autonomous labs will still be focused on the hunt for positive identification or sources and incidentally excluding sources. The bias we worry about is NOT a simple bias in favor of the State, but rather is a matter of desire to acquire a target, a simply subconscious equating of success with identification. That won't change. The Report seems to envision a forensic world in which admissible evidence can only come from more independent analysts who meet federal certification standards. That is not going to pass muster with courts where the guiding law specifically rejects formulaic approaches to admissibility of scientific evidence. The Government cannot declare that only the Government can say who can testify to such evidence in matters where the Government is a party. I know the Report's attention is on government labs, but they simply cannot realistically seek to regulate all forensic lab science in an effort to limit the adversarial nature of criminal justice. They cannot seek to legislate who can and cannot testify. (For that matter, it was probably a mistake in the Opening Statement to refer to "The judicial system (that) is encumbered by, among other things, judges and lawyers..." :lol: )

But, all in all, a good start, defining the issues.
"Nothing has any value, unless you know you can give it up."
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