In 2009, the National Academy of Sciences issued a report called “Prosecution Science is Hooey.” The official title was “Strengthening Forensic Science in the United States: A Path Forward” and the gist was that, whether it’s a fingerprint, bullet, shoeprint, bitemark, fiber or handwriting, the prosecution “expert’s” opinion that it’s “a 100% match to the exclusion of all others” is nothing but exaggerated eyeballing without any real scientific foundation. The Report says this methodology “needs to be strengthened” before it puts any more people on death row.
Pretty rad for government work, and we’ve all noticed what a revolution it’s caused in the courtrooms. Fingerprint experts are being laughed out of court while judges are issuing indignant opinions precluding the prosecution from misleading the jury with pseudo-scientific testimony by cops in labcoats. Okay, maybe 3 preclusions in 3 years.
The other day we attended an ABA-sponsored conference called “If We Know This Stuff Is Unscientific, How Come It’s Still Being Used To Convict People?” The official title was “Prescription for Criminal Justice Forensics” and unlike the elitist NAS Report committee, which included only scientists and legal scholars, the ABA event gave generous stage time to the quacks. At a ratio of about 4 to 1.
Cops in labcoats assured us that they no longer tell juries it’s a 100% match. Instead they say they’re 100% certain it’s a match. (“It’s opinion testimony, right?”) Instead of saying “to the exclusion of all others,” they now say, “I would never expect to reach this level of agreement.” That makes it scientific.
The equivalent on the legal side was a smooth-talking defense attorney whose dabbling in constitutional scholarship on behalf of the Office of the Chief Medical Examiner and the Manhattan DA’s Office revealed that the Confrontation Clause is just too darn inconvenient to apply to them. Okay, so the Supreme Court says a lab report is a testimonial statement when made for the purpose of criminal prosecution, but my goodness, you can’t ask the poor, beleaguered, multi-million dollar OCME to make the authors of the report available for cross-examination. Same for autopsy reports, he tells us, and you can count on him to be a good sport about waiving his clients’ confrontation rights.
Then there was Barry Scheck literally thumping the podium on behalf of making photo arrays admissible at trial and eliminating live lineups. Totally indifferent to the fate of all those guys in homeless shelters who can get ten bucks a gig as lineup fillers. Just goes to show what happens to defense lawyers who spend too much time on committees with DA’s.
Scary government buzz-cut types talked about “Rapid DNA testing” designed by the Department of Defense for use in Afghanistan. This new technology enables anybody to take a buccal swab and throw it in a portable box, just like in CSI. In 45 minutes a light flashes, green for the good guys and red for the bad. There might be “reliability obstacles” to using this marvel Stateside, the speaker conceded, but for use on Afghanis it’s apparently good enough for government work.
Another step forward for civil liberties is the proliferation of local – or “rogue” – DNA databases. Any law enforcement entity with enough Q-tips can “persuade” people to “consent” to giving their DNA and create its own database for which it makes its own rules. And if the crime scene DNA doesn’t match your profile by an allele or two, maybe we’ll have a look at your father or brother.
We realized we’d been too hasty in thinking the NAS Report has been ignored. “There’s been a huge mobilization,” said a speaker from the Innocence Project. “We haven’t seen any change,” she added innocently, “but there’s a lot going on.”