Law Commons^™

The Forensic Community Can Educate Lawyers, Judges, Robert M. Sanger

Robert M. Sanger

The New Pcast Report To The President Of The United States On Forensic Science, Robert M. Sanger

Robert M. Sanger

Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye

David Kaye

Day in and day out, criminalists testify to positive, uniquely specific identifications of fingerprints, bullets, handwriting, and other trace evidence. A committee of the National Academy of Sciences, building on the writing of academic commentators, has called for sweeping changes in the presentation and production of evidence of identification. These include some form of circumscribed and standardized testimony. But the Academy report is short on the specifics of the testimony that would be legally and professionally allowable. This essay outlines possible types of testimony that might harmonize the testimony of criminalists with the actual state of forensic science. It does …

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

David Kaye

For over 130 years, scientific sleuths have been inspecting hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners “exceeded the limits of science” in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI “faked an entire field of forensic …

Junk Science? Four Arguments Against The Radiological Age Assessment Of Unaccompanied Minors Seeking Asylum, Gregor Noll

Gregor Noll

Should radiological age assessment at all be considered as a means to alleviate the doubts of a decision taker in the asylum procedure? In this text, I ask, first, whether the use of radiological imaging methods in the age assessment of unaccompanied adolescents seeking asylum are in compliance with internal norms of the forensic science community and find that they are not. Second, I consider whether their use is scientifically authoritative according to the current state of the art in forensic medicine and traumatology. I find that they are not. Third, I pursue they question whether their use is sufficiently …

Forensic Science(S) In The Courtroom: Symposium, Joseph R. Slights, Jules Epstein, Lisa M. Schwind, Gerard Spadaccini, Anjali A. Ranadive

Jules Epstein

No abstract provided.

From Gridlock To Groundbreaking: Realizing Reliability In Forensic Science, Jessica D. Gabel

Jessica Gabel Cino

In 2009, The National Academy of Sciences published a scathing report announcing that forensic science is broken and needs to be overhauled. Weaknesses have plagued forensic evidence for decades, and the resulting legal challenges have been hard fought but met with few victories. What we do know is a harsh truth: that faulty forensic science has contributed to the conviction of innocent people—and will continue to do so if the status quo persists.

In recent years, the reality of wrongful convictions has become mainstream through the work of the Innocence Project and other organizations. Out of the 305 DNA-based exonerations …

Defying Dna: Rethinking The Role Of The Jury In An Age Of Scientific Proof Of Innocence, Andrea L. Roth

Andrea L Roth

In 1946, public outrage erupted after a jury ordered Charlie Chaplin to support a child who, according to apparently definitive blood tests, was not his. Half a century later, juries have again defied apparently definitive evidence of innocence, finding criminal defendants guilty based on a confession or eyewitness notwithstanding exculpatory DNA test results. One might expect judges in such cases to direct an acquittal, on grounds that the evidence is legally insufficient because no rational juror could find guilt beyond a reasonable doubt. Yet few if any do. Instead, courts defer to juries when they form an actual belief in …

Remapping The Path Forward: Toward A Systemic View Of Forensic Science Reform And Oversight, Jennifer E. Laurin

Jennifer E. Laurin

The 2009 report of the National Academy of Sciences on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice. But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts. This Article aims to illuminate a critical and currently neglected feature of that territory, namely, the manner in which police and prosecutors, as upstream users of forensic science, select …

Remapping The Path Forward: Toward A Systemic View Of Forensic Science Reform And Oversight, Jennifer E. Laurin

Jennifer E. Laurin

The 2009 report of the National Academy of Sciences on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice. But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts. This Article aims to illuminate a critical and currently neglected feature of that territory, namely, the manner in which police and prosecutors, as upstream users of forensic science, select …

The Criminal Justice System Creates Incentives For False Convictions, Roger Koppl, Meghan Sacks

Roger Koppl

We examine the incentive structure of the various actors of the criminal justice system within an organization economics framework. Specifically, we examine the incentives of the police, forensic scientists, prosecutors and public defenders. We find that police, prosecutors and forensic scientists often have an incentive to garner convictions with little incentive to convict the right person, whereas public defenders often lack the resources and incentives to provide a vigorous defense for their clients. The “multitask problem” of organizational economics helps explain how this skewed incentive structure creates false convictions.

Fire Pattern Analysis, Junk Science, Old Wives Tales, And Ipse Dixit: Emerging Forensic 3d Imaging Technologies To The Rescue?, Thomas R. May

Thomas R. May

No abstract provided.

Forensic Science Evidence And Judicial Bias In Criminal Cases, Hon. Donald E. Shelton

Hon. Donald E. Shelton

Although DNA exonerations and the NAS report have raised serious questions about the validity of many traditional non-DNA forms of forensic science evidence, criminal court judges continue to admit virtually all prosecution-proferred expert testimony. It is is suggested that this is the result of a systemic pro-prosecution bias by judges that is reflected in admissibility decisions. These "attitudinal blinders" are especially prevalent in state criminal trial and appellate courts.

Will History Be Servitude?: The Nas Report On Forensic Science And The Rule Of The Judiciary, Jane Moriarty

Jane Campbell Moriarty

For several decades, the prosecution and its witnesses have maintained that despite little research and virtually no standards, they can match a fingerprint, handwriting, bullet and bullet cartridge, hair, dental imprint, footprint, tire track, or even a lip print to its unique source (collectively, “individualization evidence”). Not only can they match it, they claim, they can do so often without any error rate. In the last few decades, with the help of lawyers and academics, litigants have challenged the underlying reliability of individualization evidence. Scholars in various disciplines have written about the startling state of individualization evidence, including its lack …

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable …

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable …

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable …

Safety In Numbers?: Deciding When Dna Alone Is Enough To Convict, Andrea L. Roth

Andrea L Roth

Fueled by police reliance on offender databases and advances in crime scene recovery, a new type of prosecution has emerged in which the government's case turns on a match statistic explaining the significance of a “cold hit” between the defendant’s DNA profile and the crime-scene evidence. Such cases are unique in that the strength of the match depends on evidence that is nearly entirely quantifiable. Despite the growing number of these cases, the critical jurisprudential questions they raise about the proper role of probabilistic evidence, and courts’ routine misapprehension of match statistics, no framework currently exists – including a workable …

Twenty-First Century Forensic Science Challenges For Trial Judges In Criminal Cases: Where The "Polybutadiene" Meets The "Bitumen", Hon. Donald E. Shelton

Hon. Donald E. Shelton

This artice discusses the challenges faced by trial judges in crimnal cases in fulfilling their Daubert "gatekeeping" role in the face of rapid advancements in forensic science. Admissibility questions for various forms of scientific evidence are reviewed, from DNA to fingerprints to social science "syndrome" evidence. The article discusses the pretrial issues presented by DNA databases, search issues and limitations problems as well as the impact of forensic science developments on juror expectations. Finally, forensic science issues regarding trial conduct are discussed, including voir dire, arguments and jury instructions,

Turning A Blind Eye To Misleading Scientific Testimony: Failure Of Procedural Safeguards In A Capital Trial, William C. Thompson

William C Thompson

In September 1999, Robin Lovitt was convicted and sentenced to death for the murder of a pool hall manager in Arlington, Virginia. The DNA evidence that was a key part of the government’s case was presented in a misleading and unfair manner. In this case study, we first examine the way in which DNA evidence was misused. We then discuss the failure of the legal system at all levels to recognize and remedy this problem. Our goal is to explain how a system that supposedly leaves no stone unturned in capital trials managed to miss or ignore a crucial problem …

The Individualization Fallacy In Forensic Science Evidence, Michael J. Saks, Jonathan J. Koehler

Michael J Saks

Forensic scientists across a broad array of sub-specialties have long maintained that they can link an unknown mark (e.g., a partial fingerprint or tireprint) to a unique source. Yet no scientific basis exists for this assertion, which is sustained largely by faulty probabilistic intuition that equates infrequency with uniqueness. This article traces the origins of the individualization claim and explicates the various failed lines of evidence and argument offered in its support. We conclude with suggestions for how to improve the scientific basis of the forensic identification sciences.

“Misconvictions,” Science And The Ministers Of Justice, Jane Campbell Moriarty

Jane Campbell Moriarty

DNA evidence has exonerated over two hundred wrongfully convicted defendants in the last several years, providing insights into the causes of such convictions. One such cause, faulty scientific evidence, is a focus of this article. For decades, many have written about the prevalence of and reasons for wrongful convictions --what I have termed “misconvictions.” A few reasons support the coinage “misconvictions”: the miscarriage of justice when an innocent person is convicted; the mistakes involved in the prosecution and trial of the case; the mistaken identification that may have occurred; and finally, the recognition that all wrongful convictions are a missed …

The “Csi Effect”: Better Jurors Through Television And Science?, Michael Mann

Michael D. Mann

This Comment explores how television shows such as CSI and Law & Order have created heightened juror expectations in courtrooms across America. Surprise acquitals often have prosectors scratching their heads as jurors hold them to this new "Hollywood" standard. The Comment also analyzes the CSI phenomena by reflecting on past legal television shows that have influenced the public's perception of the legal profession and how the "CSI effect" has placed an even greater burden on parties to proffer some kind of forensic evidence at trial.

The Comment was published in volume 24 of the Buffalo Public Interest Law Journal (2006).

Forensic Science: Grand Goals, Tragic Flaws, And Judicial Gatekeeping, Jane Campbell Moriarty

Jane Campbell Moriarty

In the last decade, a number of scientists have published articles and testified in court, explaining the ways in which they believe that some of the forensic sciences do not meet reliability standards and that laboratories make errors. The explosion of exonerations resulting from DNA technology has raised questions about the accuracy of many forensic sciences and the quality of some laboratory testing. A substantial number of these defendants can point to erroneous forensic science as a contributing cause of their wrongful convictions. In the courts, increasingly, the parties have substantial and serious disagreements about the quality of forensic science. …