The national effort to improve and advance forensic science experienced a significant setback last week when the only federal judge on the National Commission for Forensic Science stepped down in protest over a decision to abandon a proposed expansion of pretrial discovery in criminal cases.
That forensic science is in need of restructuring is hardly earth-shattering news. Six years ago, in 2009, the National Academy of Sciences published a revealing report, “Strengthening Forensic Science in the United States: A Path Forward,” which detailed the burdens facing forensic science.
The report observed what many players in the criminal justice community already know: That flawed forensic science has contributed to wrongful convictions. And that certain forensic science disciplines—especially those built upon in pattern identification such as fingerprint analysis—suffer from a research deficit. Yet we also know that forensic science is an incredibly valuable component of criminal cases.
Consequently, a national effort was launched to improve research, standards and statistics. At a fundamental level, it is an effort to bring all of forensic science up to the same level of scientific reliability as DNA analysis. Simply put, the aim is to put the science in forensic science.
But beyond emphasizing research protocols, standardization and statistical accuracy measurements, the commission also endeavored to structure the fit of forensic science in the criminal justice system. In particular, the commission’s Subcommittee on Reporting and Testimony proposed a modicum of balance in the sometimes-lopsided nature of forensic testimony in criminal cases by proposing new discovery guidelines.
Indeed, the cozy relationship between crime labs, law enforcement and prosecutors leads to the natural presumption—whether justified or not—that forensic analysts are witnesses for the state rather than witnesses for the evidence. Last week, the deputy attorney general of the U.S. Department of Justice decided that improving pretrial forensic discovery (i.e., disclosure of the underlying forensic data, opinions and methodologies) was not within the commission’s latitude of work.
The cochairman of the Subcommittee on Reporting and Testimony, Judge Jed Rakoff of the Southern District of New York, immediately resigned in protest and called the decision a “major mistake” that could derail any real impact the commission might have.
Judge Rakoff did not reach this decision lightly, and it should not go unnoticed. Real improvement in forensic science means holistically treating the body rather than applying a politically correct bandage to the obvious wounds. The Rules of Civil Procedure permit broad discovery on expert testimony.
Daubert hearings are commonplace in civil cases built upon scientific evidence—where money matters. The same cannot be said in criminal cases, where lives are on the line.
Preventing full pretrial discovery of forensic analyses doesn’t foster a streamlined and efficient justice system. Rather, as Rakoff noted, it tips the system in favor of the prosecution. The ongoing use of incomplete or exaggerated forensic evidence (mixed with a decent amount of judicial notice) will continue unquestioned, and courts will cement the longevity of the practice. And the system will regenerate a pattern of unfairness.
The criminal justice system needs forensic science as part of its infrastructure, and this commission is only beginning the difficult task of transforming the “business” of scientifically fighting crime. For the real reform to have any effect, the Department of Justice cannot merely cherry-pick the proposals that make for good P.R. and ditch those that require it to play more fairly. Anything less essentially handcuffs a commission that is trying to do good work.
Improving forensic science is about more than scaling up research and development. It should include mutual improvements to the ways in which forensic science is used in the legal system. Transparency, consistency, and reliability should be foundations across the entire process, from the crime scene to the courtroom.
It will take collaboration and trust from the scientists, lawyers, judges and policy makers. We can do better. We have the opportunity to set forensic science on the path forward, and we need to get it right.
Jessica Gabel is an associate professor at Georgia State University College of Law. She teaches forensic evidence and forensic medicine. She recently published “Realizing Reliability in Forensic Science From the Ground Up” in the Journal of Criminal Law and Criminology.
Source: Daily Report