Posts Tagged ‘Resisting science’

On May 28, 2014, the Pennsylvania Supreme Court published two opinions about whether juries could hear from experts.  In Commonwealth v. Walker, the Court said an expert could tell the jury about the traps and weaknesses involved in eyewitness witness testimony.   But in Commonwealth v. Alicia, the Court  said an expert could not tell the jury about problems with the truthfulness of confessions.   Each opinion featured a different 4-2 vote among six of the Court’s Justices.

This juxtaposition seems so bizarre that the press in our state has noticed.  How does one court, on one day, publish two opinions on virtually the same issue, and end up facing in two completely opposite directions?

The explanation that jumps out from the opinions is the recognition of research and science.    In the Walker majority opinion, Justice Debra Todd discusses how much scientific work on eyewitness testimony has taken place in the last twenty years, since the Court last examined the issue.  In those decades, she says, “advances in scientific study have strongly suggested that eyewitnesses are apt to erroneously identify a person…when certain factors are present, ” and she cites the 2011 opinion of the New Jersey Supreme Court in New Jersey v. Henderson, widely regarded as one of the leading cases on the subject.  The scientific consensus is strong:  “it is beyond serious contention that the statistical evidence on eyewitness inaccuracy is substantial…”  Over the course of the last thirty years, forty-four states have recognized this scientific work and decided that trial courts may allow experts to testify about the problems of eyewitness identification.  Ten of the eleven U.S. Courts of Appeals have done so as well.  (False eyewitness identifications have occurred in almost seventy-five percent of all DNA-based reversals of wrongful convictions.)  Thus Justice Todd and the other Justices in the majority in Walker said that Pennsylvania must recognize the evidence that science has brought to bear.

In contrast, what does the Alicia opinion say about the science on the interrogation of suspects, and how various interrogation techniques may lead to false confessions? (False confessions have occurred in about twenty-five percent of all DNA-based reversals of wrongful convictions.)   Considerable scientific consensus exists on these issues as well; the leading scientists who work on the issue of false confessions published a standard-setting white paper, “Police-Induced Confessions: Risk Factors and Recommendation”  for the journal Law and Human Behavior five years ago. Somehow, this scientific work never even comes up in the Alicia opinion.  It is as if the research on false identifications simply does not exist.

Chief Justice Ronald Castille is at least consistent in these two cases: he wants no experts in court on either eyewitness identifications or confessions, so he dissented in Walker and joined the majority in Alicia.  Castille’s dissenting opinion in the Walker case gives us some insight into the thinking of those who want none of this science before the jury.  In his dissent, Chief Justice Castille scorns the very idea that there could be real scientific work on these subjects.  Indeed, he puts the words science or scientific in derisive quotation marks eight times in just the first three pages of his opinion.  While he admits that “a properly trained chemist can usually reliably explain the chemical composition of a substance,” science about human beings cannot claim any reliability: “studies of human beings, human nature, human perception, and human recollection inevitably have a heavy dose of subjectivity.”   Justice Castille’s position betrays a strong misunderstanding of what science is, and of the process of doing scientific work and of using the scientific method to test a hypothesis.  The real question is not whether we are dealing with so called “hard science” — work done with beakers and bunsen burners.  Rather, the question is whether the work is done reliably and rigorously, according to the scientific method, and in accord with principles and protocols that protect against human biases in the laboratory.  So for now, juries in Pennsylvania will have to do without the best scientific knowledge on why we might have false confessions.

But, even more important, the issue of whether experts can testify on these subjects is not a new one; courts in most jurisdictions resolved this issue years ago.  Instead, every institution that forms part of our criminal justice system in PA should be focused on prevention: establishing protocols for police to follow that will keep dangerous mistakes  eyewitness testimony and interrogation from happening in the future.   The research is there; the best practices are known.  Nevertheless, we remain stuck in the past, arguing about expert witnesses.

 

Following up on my last post, in which I asked why there were still no national standards for forensic science five years after the National Academy of Sciences’2009 report Strengthening Forensic Science in the United States, and with scandal after scandal in U.S. crime labs all over the country, there may be light on the horizon.  On January 10, the U.S. Department of Justice (DOJ)  and the National Institute for Standards and Technology (NIST) announced the formation of the National Commission on Forensic Science.

According to the announcement issued by DOJ and NIST:

Members of the commission will work to improve the practice of forensic science by developing guidance concerning the intersections between forensic science and the criminal justice system. The commission also will work to develop policy recommendations for the U.S. Attorney General, including uniform codes for professional responsibility and requirements for formal training and certification.

John P. Holdren, Assistant to the President for Science and Technology and Director of the White House Office of Science and Technology Policy, said that the Commission “will help ensure that the forensic sciences are supported by the most rigorous standards available—a foundational requirement in a nation built on the credo of ‘justice for all.’ ”

The formation of the Commission could be the a significant milestone in the march toward the use of real science and defensible national standards in forensic labs.  But it may be limited in what it can achieve just by its creation and structure: it is not a body created by Congress with power to come up with and implement standards or to regulate anything.  Rather it is a federal advisory committee, formed under the Federal Advisory Committee Act of 1972.  (A quick primer on the Act is here.)   It investigates and debate designated topics, and then reports its recommendations to the relevant federal department(s) that formed it (in this case, the DOJ and NIST).  Those agencies could choose to embrace and follow, or could choose to reject, some, all, or none of the Commission’s suggestions.

Still, this is a hopeful sign that we might be heading in the right direction.  At the very least, we will see a national conversation between the very large number of Committee members; they come from a variety of backgrounds in government, science, the legal system, and elsewhere.  See the list of more than thirty Commission members at the bottom of this announcement.

I hope readers will weigh in on the following question: realistically, what will come from the Committee?  Will the government adopt these recommendations?  Will the recommendations include national standards to regulate forensic testing, assure quality control, and the like? In the end, will the work that you foresee coming from the Commission improve the U.S.’s largely unregulated system?

The use of DNA identification as a forensic tool, beginning in 1989, changed the way that we think about guilt, innocence, and traditional police investigation.  It isn’t just the 311 wrongful convictions that DNA identification has confirmed; it’s the far more numerous cases in which DNA has determined guilt — sometimes in cases years or decades old.

Now DNA identification is about to change: it will become even more powerful than it is now.  A new way of processing and interpreting DNA has arrived that will make our current DNA techniques look weak by comparison.

On Friday, Nov. 8, I attended an incredibly interesting talk by Dr. Ria David.  Dr. David is one of the co-founders of Cybergenetics, a company based in Pittsburgh.  Cybergenetics has perfected computer-based techniques and technologies that will change the way that DNA is analyzed.  With Cybergenetics’ TrueAllele (R) system, the analysis relies the power of computers instead of interpretation done by humans.   The talk was sponsored by the Center for Women’s Entrepreneurship (CWE) at Chatham University.  (Disclosure: my wife runs CWE; my wife and I know Dr. David and her Cybergenetics co-founder, Dr. Mark Perlin, but neither my wife nor I have any personal or financial ties of any kind to Cybergenetics.)

Most of us know that a DNA sample allows forensic scientists to say things like “the odds that this sample came from anyone other than the defendant are fifty million to one.”  Pretty powerful stuff — until you learn that Cybergenetics’ systems will allow prosecutors to offer juries odds of not tens of millions to one, but trillions or even quadrillions to one.  In addition, Cybergenetics will allow analysts to pull apart mixtures of DNA from different people, which is common at crime scenes, and which current DNA technology often can’t handle.  Readers of my book Failed Evidence: Why Law Enforcement Resists Science can get a little more information in Chapter 7, pp. 186-190; you can get the book here.

Cybergenetics’ DNA system has found ready acceptance in the United Kingdom, but the process has been slower in the U.S. There has been considerable resistance — something readers of Failed Evidence are quite familiar with — particularly at the FBI, which governs current DNA protocols and use.

There is much more to how the Cybergenetics’ TrueAllele system works, and what it can do; I’d urge readers to take a good look at Cybergenetics web site, which gives details on what they do, and the many criminal cases and mass disaster identification cases (including the identification of remains at the World Trade Center site).  Once law enforcement sees what this new method of using DNA can do, and once resistance to change is overcome, DNA will be able to identify many more guilty criminals, as well as exonerate many more of the wrongfully convicted, and it will do so with more certainty that we ever thought possible.

 

The National Registry of Exonerations, a joint project of the law schools at University of Michigan and Northwestern, reported last week that in 2012, law enforcement cooperated in some way in a higher percentage of cases than in the past.  Does this mean less resistance of science by law enforcement?

The answer is that we can’t tell from this data.  But the report is worth looking at nonetheless.

Here is what the report says about law enforcement cooperation (I have removed the bullets, spacing, etc.):

In  2012 there was a dramatic increase in the number and the proportion of exonerations that prosecutors or police participated in obtaining.  Of the 63 exonerations in 2012, prosecutors or police initiated or cooperated in 34, or 54%. Over the past 24 years, prosecutors and police have cooperated in 30% of the exonerations we know about (317/1050). Last year for the first time they cooperated in a majority of exonerations, and the number of such cases is a large increase from the previous high (22 of 57 in 2008, or 39%).

This is all to the good.  But there are some aspects of the findings that counsel caution.  First, the author(s) of the report freely admit they don’t know why  this is happening.  It could have many causes.

This increase [in cooperation] may be due to a confluence of related factors: changes in state laws that facilitate post-conviction DNA testing, the emergence of Conviction Integrity Units in several large prosecutorial offices, and, perhaps, a change in how law enforcement officers view the possibility of false convictions at trial.

And just to be clear, it’s good that they admit that it’s not clear what the cause or causes could be.  Too often, those working with statistics take an opposite tack.

As far as resistance to science, however, the report may indicate that the cases where science and forensics matter most still do not get cooperation for law enforcement.  The first clue is that 57% of the exonerations in 2012 were homicide cases, and another 24% were sexual assaults — 81% in all.  These are the types of cases in which resistance science on eyewitness identification, interrogation, and  forensics can matter the most.  These cases also have the highest public profile.  And there, perhaps, is the rub: “Official cooperation is least common among exonerations for highly aggravated and publicized crimes – murders with death sentences and mass child sex abuse prosecutions – and most common among exonerations for robberies and drug crimes.”

The best way to answer whether this increased cooperation represents any lessening of the resistance to science would be to look at the individual exoneration cases for 2012: do they feature law enforcement cooperation over these science-based issues, or is it something else — for example, information on a witness interviews illegally withheld from the defendant in a previous trial?

Perhaps we will see that in the next report from the Registry.

On Thursday April 4, and Friday April 5, I’ll be in Cincinnati for two discussions of Failed Evidence: Why Law Enforcement Resists Science (2012).  Both are free and open to the public.

On April 4, I’ll be discussing the book at 7:00 p.m. at the Clifton Cultural Arts Center, 3711 Clifton Avenue, Cincinnati OH 43220.  The event is sponsored by the ACLU of Ohio.

On April 5, I’ll present at talk at the University of Cincinnati College of Law at noon.  The address is  2540 Clifton Ave, Cincinnati, OH 45221.  The event is in Room 114.  The event is sponsored by the Lois and Richard Rosenthal Institute for Justice/Ohio Innocence Project.  The event has been approved for CLE credit for attorneys.

A story on National Public Radio highlights one of the central themes of”Failed Evidence: how does the criminal justice system react to advances in science that throw past convictions into doubt?  The answer will not surprise readers of this blog or Failed Evidence: they resist.

The story concerns the case of William Richards, convicted in 1997 of murdering his wife.  The conviction came in a fourth trial, after two hung juries and a mistrial failed to result in a verdict.  In the fourth trial, the prosecution introduced new evidence: testimony by a forensic dentist, who said that marks seen in a photograph of the victim’s body were human bite marks .  The marks, he said, were unusual enough that they were likely to have been made by the defendant’s distinctive teeth.   Ten years later, another forensic dentist corrected a distortion in the photo of the marks, using photo editing software.  Now, the first forensic dentist says the marks weren’t from human teeth at all, and he says that he should not have testified as he did.  Yet the defendant remains in prison, serving 25 years to life.

There’s a lot that is familiar here — too much.

First, the idea that bite mark identification should ever play a role — let alone the key role — in convicting someone and sending them to prison is just intolerable.  I have posted about the weakness of bite mark analysis before (here), and Richards’ case demonstrates the point all over again.  The forensic dentist who put Richards in prison testified that the bite mark (that turned out not to be a bite mark) was so distinctive that he estimated that only one or two out of a hundred people could have made it.  The idea that such an estimate — not at data-based study, but his personal estimate — of such a low probability could ever be considered for admission in a court should make everyone shiver.

Second, the story gives us the reaction of Jan Scully, past president of the National District Attorneys Association and the elected District Attorney of Sacramento County, California.  Scully says there is something more important than the fact that the central evidence in the case has been fatally undermined.  According to the NPR story:

“We need to have finality of verdicts,” she says. “There is always a new opinion or there might be a refinement in our forensic science areas. So, just because something new occurs doesn’t mean that the original conviction somehow was not valid.”

In other words, it’s the same old story from the NDAA: there is no significance to the demonstrated falsity of the “science” that was used to put a man in prison.  It is more important for the verdict to remain undisturbed.

It’s hard to imagine a story that captures the ideas in Failed Evidence more strongly.  Go to the story, and check it out.

Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012) has been reviewed in Chemical and Engineering News, the publication of the prestigious American Chemical Society.  The review, entitled “Why Criminal Law Ignores Science,” is both enthusiastic and nuanced.  Here’s a slice or two:

The [criminal justice] system desperately needs changes, and it needs them fast. In his book, “Failed Evidence: Why Law Enforcement Resists Science,” David A. Harris, a law professor at the University of Pittsburgh, discusses the three most common causes of wrongful convictions, makes recommendations to help right the ship immediately as well as long term, and takes on law enforcement and prosecution that refuse to implement any meaningful changes—even in the face of scientific proof that doing so would decrease the number of wrongful convictions.

This “resistance to sound, science-based police investigative methods” is the theme of “Failed Evidence.” The book is an easy and informative read best suited for policymakers, scientists, advocates, judges, prosecutors, law enforcement, defense attorneys, and anyone with a general interest in the American criminal justice system. Truth be told, anyone who might find themselves sitting in the chair of a juror should read Harris’ book before sitting in judgment of a fellow human.

….

Harris paints a picture suggesting that together we can make a difference. We will never be perfect, but we can do things much better. “Ignoring science, when doing so increases the risk of wrongful convictions, simply does not square with justice or fairness,” he writes. Positive change must happen and as Harris concludes, “Justice demands no less.”

You can read the full review here.

Michael Mermel, formerly a lawyer in the State’s Attorney’s office in Lake County, Illinois, became famous as a the prototypical prosecutor resisting science — even DNA.  Readers will remember Mr. Mermel from my post “Resistance, Thy Name is Mermel” back in June of 2012.  When DNA results in four of the office’s cases did not support the guilty verdicts, Mermel made clear that the DNA results meant nothing to him.  Mermel eventually resigned from the office  after telling The Chicago Tribune: “The taxpayers don’t pay us for intellectual curiosity. They pay us to get convictions.”  Mermel’s boss,  State’s Attorney Michael Waller, was replaced after the last election by Mike Nerheim, who made restoring the damaged integrity of the office one of his top priorities.

Now Nerheim has acted.  He has appointed a special “case review board” to examine possible cases of wrongful convictions.   In a video clip posted on YouTube, Nerheim explained that since “Lake County, Illinois, unfortunately,  has been identified as having an issue  with wrongful convictions,” he had appointed a panel of “independent” lawyers  All of the six appointees “have no ties to these cases or to the office.”   According to Nerheim, an independent “fresh set of eyes” was critical in order to  “restore the public’s trust and confidence in the State’s Attorney’s Office.”

For making integrity of convictions a high priority for his office, Mr. Nerheim deserves credit and applause.  The only thing that seems off is the make up of the case review board.  According to The Chicago Tribune, four of the six members are former prosecutors; one of these four was a prosecutor in the Lake County office.  Without in any way impugning the integrity of the board members, their backgrounds may cause members of the community to perceive the board as less than fair — that the deck is stacked deck in favor of the prosecution.  I take no position on whether this is true or not; the concern is that if the function of this  very worthy panel is to restore trust and integrity, some citizens of Lake County may be less than fully impressed with the independence of the group.  One possible remedy would be to do what DA Craig Watkins has done with his Conviction Integrity Unit in Dallas: he has made the Texas Innocence Project an integral part of the Unit’s work.

Still, it’s important to congratulate Mr. Nerheim and everyone he serves in Lake County, Illinois.  Now things can start to get better, even if they aren’t perfect.

The current issue of the American Criminal Law Review has a review essay of Failed Evidence: Why Law Enforcement Resists Science (2012).   According to the review, the book “engages…broadly with forensics” to explore “why law enforcement and prosecutors have shown such marked reluctance to incorporate a modern understanding of the scientific method.”  The review concludes that Failed Evidence “provides a thoughtful analysis of the scientific bases underlying forensics, current evidentiary and investigatory problems, and possible solutions. [The] suggestions are particularly well thought-out because they consider the problems faced by law enforcement when implementing ideal solutions in the real world.”

You can read the full review here.

I will be presenting a talk on my book Failed Evidence: Why Law Enforcement Resists Science on Thursday, Jan. 31 at noon at the University of Toledo College of Law.  The College of Law is located at 2801 W. Bancroft, Toledo, 43606.  The talk, in the McQuade Auditorium, is free and open to the public.  Copies of Failed Evidence will be available for purchase and signing.  Further details on the event are here and here.

The talk will be recorded by WGTE, Toledo’s public television station, for its “Knowledge Stream” programs.

One thing that makes this presentation different from all the others I’ve done on Failed Evidence: I taught at the College of Law for almost 18 years, so for me this will be a kind of homecoming.  I’m hoping for the chance to see many friends.