New approach needed for scientific evidence
The National Association of Sciences (NAS) issued their long awaited recently. Others have talked about what the report what says, and there's no need to add to that discussion. To sum it up, there are serious problems with everything except DNA. That was a conclusion that came as no surprise to those of us who have dealt with these issues, particularly the so called “junk sciences”, such as blood spatter, arson, bite marks.... The report validated what many have been saying for several years. The question I now have is what effect, if any, this is going to have on criminal cases.
The report points out that judges have done a terrible job of keeping out unreliable evidence, which includes scientific evidence. Unfortunately, almost no judge ever refuses to admit evidence, especially when it is offered by the State. They are charged with being the gatekeeper, but seldom do they exercise that role. In some respects, you can't blame judges. They aren't scientists, and you cannot expect them to be up the current science. If a so called scientist comes in and talks about reliable evidence is, they don't have the ability to make an independent interpretation of what they are being told. The end result is that the admissiblity of evidence is often left to scientists, who have an interest in establishing its reliability. Bite mark evidence is one example. No matter how much it has been discredited, there are still experts who will claim its valid. To do otherwise would be to put them out of business.
so what do we do. I think the first thing we need to address is the role science has taken in the criminal process. Trials are often based on nothing more than scientific evidence. I've seen cases that came down to whether the blood spatter establishes suicide or murder. In my opinion, that is placing too much power in the hands of scientists. They should not be the ones determining who is guilty and who is innocent. Unfortunately, judges and jurors love scientific evidence. Scott Greenfield suggests it is because introduces some certainty in an area where nothing is clear cut. The problem with that as we now know is that such evidence is not as “certain” as they claim.
This is not an issue that will be solved easily. To start though, judges need to be more critical. Evidence should not be introduced without a significant showing of reliability. That showing needs to be based on scientific findings, that have been verified. A prime example is fingerprints. No one has ever verified that no two people have the same fingerprints, yet that statement continues to be made in courtrooms every day. More importantly, there is little evidence on comparing the types of prints that are located at crime scenes, which are not the same quality as those taken at the jail.
I don't think the problem is a lack of education. Judges receive enough training, and they are aware of the problems. What the need to do is apply what they know. They have a tremendous responsibility, and in those wrongful convictions based on junk science I would suggest they have the ultimate responsibility for the result. They could have prevented it, and you can't get off the hook by saying the decision is up to the jury; they are going to accept the evidence if the judge does. I realize the decision to keep out evidence is not popular, but if you are concerned about winning re-election you don't need to be on the bench.
It would be nice if there was a presumption that scientific evidence was not reliable, that had to be overcome by sufficient evidence. It would also be nice if there was a special corroboration requirement for scientific, similar to what exists for accomplice witnesses in some places. I'm sure there are ideas you could come up with if you are really interested in addressing the problem.
One other issue that needs to be addressed is how to deal with those defendants who have been convicted on faulty evidence. The post-conviction process does not provide an effective remedy for those people. Perhaps there should be a special process to review those cases, and grant relief in appropriate cases. If something is not done, there are a lot of people that are going to remain in jail that shouldn't be there.
The NAS report is an important first step. It points out the problems with the use of science in criminal cases. Lets hope we now do something about it.
