U.S. Depts. of Justice, Commerce Will Create National Commission on Forensic Science

Four years after the National Academy of Science’s 2009 report Strengthening Forensic Science in the United States: A Path Forward called for basic changes in the forensic sciences, U.S. Department of Justice and U.S. Department of Commerce’s National Institute of Standards and Technology have announced they will create a national commission on forensic science.  The commission will have 30 members — forensic science practitioners, researchers, prosecutors, defense attorneys, and judges — who will develop policy recommendations for the Attorney General.  According to the Department of Justice announcement:

The commission will have responsibility for developing guidance concerning the intersections between forensic science and the courtroom and developing policy recommendations, including uniform codes for professional responsibility and requirements for training and certification.  The new initiative provides a framework for coordination across forensic disciplines under federal leadership, with state and local participation. The Department of Justice, through its involvement in the commission, will take an active role in developing policy recommendations and coordinating implementation.

For many who looked for action in the wake of the National Academy of Science’s 2009 report and saw very little, the creation of the commission will comes as a welcome step forward.   The National District Attorneys Association (NDAA), which took a fairly negative view of the 2009 report and its recommendations, is now reacting with a wait and see attitude.  The NDAA has not yet put out a formal statement in reaction to the announcement of the commission; according to Scott Burns, the Executive Director of the NDAA, the organization will do that once it gets the details on the commission, especially its composition.  So far, Burns told me, the NDAA is  “encouraged” by the fact that prosecutors will be part of the commission, though he stresses that he hopes to see more state and local prosecutors than federal ones.  Burns said that if the commission begins with the attitude that “the system is broken” and that its basics — fingerprints, tool marks, and the like — must be fixed, the NDAA will not look on it favorably.  On the other hand, if the commission starts with the attitude that “we can improve”  the system but that it basically functions well, that would be welcome.

I will write further on this as the story develops.

 

Science Magazine’s Review of Failed Evidence

The current issue of Science magazine contains a review of Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012).  Here is a brief excerpt from the review:

Although science has long been recognized as our most reliable pathway to truth, people are sometimes reluctant to accept scientific evidence, particularly when it challenges established practices or cherished beliefs. In Failed Evidence: Why Law Enforcement Resists Science, David A. Harris accuses police and prosecutors of unwarranted skepticism toward science and tries to explain their perspective. His provocative book will interest those concerned broadly with rejection of science as well as those interested in the U.S. criminal justice system.

Science is published by the American Association for the Advancement of Science.

Oregon Supreme Court: On Eyewitness IDs, Law Enforcement Must Follow the Science

A decision by Oregon’s Supreme Court on eyewitness identification procedures has re-set the way that juries and courts in that state will think about eyewitness identification.

According to the New York Times editorial on the case, the ruling shifts the burden of proof to prosecutors to prove that eyewitness identifications are reliable before they can be admitted in court.  Before last week’s decision, the rule had been that identifications were generally admitted; it was up to the defense in individual cases to prove that an identification was not reliable.

But at least as important as the new rule itself was the reason that the Oregon court abandoned its old precedent:  the court had concluded that the old rule was based on assumptions about eyewitness testimony no longer supported by the science.  Thus the new case represents a textbook case of a court forcing law enforcement away from the failed evidence of discredited methods, and toward methods that accord with what science teaches us now.

Under the old rule, Oregon judges looked at five factors when evaluating an eyewitness identification: opportunity to view the alleged perpetrator, attention to identifying features, timing and completeness of description given after the event, certainty of description and identification by witness, and lapse of time between original observation and the subsequent identification.  Looking at these factors from the vantage point of the present day, the Oregon court found them “incomplete and, at times, inconsistent with modern scientific findings.”  Given the science on eyewitness identification that is by now well established, the court prescribed a new approach, including the change in the burden of proof.

That’s what the Oregon Supreme Court did, but here is why they did it:

…[W]e believe that it is imperative that law enforcement, the bench, and the bar be informed of the existence of current scientific research and literature regarding the reliability of eyewitness identification because, as an evidentiary matter, the reliability of eyewitness identification is central to a criminal justice system dedicated to the dual principles of accountability and fairness.

It’s hard to imagine a better summing up of the ideas behind Failed Evidence, and why the fight to overcome law enforcement’s general resistance to science is so important.

Failed Evidence Is Featured on Jurist

This week, Jurist, a national and international legal reporting website, is featuring my commentary on Failed Evidence.   Here’s a quick sample:

[The] image of a deep alliance between police work and modern science is misleading at best. With the exception of DNA work and certain kinds of classic chemical analysis, law enforcement generally does not embrace existing scientific work. In fact, police and prosecutors in the US resist science. The scientific work I am referring to involves the testing of the more traditional techniques of law enforcement investigation and prosecution: not the high-tech sheen of the DNA lab, but scientific testing of eyewitness identification, the interrogation of suspects and the more traditional forensic methods such as fingerprint identification. This is the daily bread and butter of law enforcement, and scientists have found it wanting. The science on these basic police investigation methods has existed for years — some of it for decades. It is rigorous, and has undergone peer review, publication and replication. It tells us what the problems with traditional police work are, and also gives us some straightforward ways of solving these problems. Yet, most — not all, to be sure, but most — of American law enforcement continues to resist this science and refuses to change its basic tactics to reflect the best of what science has to offer.

Jurist mixes straight reporting and commentary from the U.S. and around the world; it’s a great source for anyone interested in issues of justice and how it plays out in domestic and international situations around the world.  (Full disclosure: Jurist is supported by my own institution, the University of Pittsburgh School of Law, and has been guided and run since the beginning by my esteemed colleague, Professor Bernard Hibbitts.)  Check it out.

Law Enforcement Embracing Science in the Jane Doe Case: Why?

Yesterday, I wrote about the November 13 article in the New York Times that described how police had turned to sophisticated science involving isotope analysis to determine the geographic origin of corpses.  The article focused on the case of a Jane Doe in a 41-year-old murder case in Florida.  The science is fascinating; it allows the authorities to pinpoint where the victim came from with startling precision.  The Jane Doe in Florida, who had been thought to be a white or Native American woman from North America, grew up in Greece and had probably been in the U.S. for less than a year.

Why, I asked, had law enforcement so heartily embraced the science that could do this work,  even as most of law enforcement continues to ignore or resist more basic science on traditional methods of investigation, like eyewitness identification, interrogation of suspects, and old-school forensics?  Here are a few possible reasons:

1) In the Jane Doe case and the others discussed, there was no real alternative.  The cases were old, and most ways of investigating that could be tried had been tried, with no results.

2) The colder a serious case gets,the more likely that police will be open to trying new or untested approaches.

3) The type of science used — hard science, chemical analysis, very traditional sorts of science work — is appealing, in a way that the sorter science challenging eyewitness identification, for instance, is not.

4) The science described in the article does not challenge what police already do and believe in.  Therefore, it does not disrupt the status quo or challenge existing ideas about police expertise, while science about eyewitness identification, interrogation and traditional forensics challenges those things very directly.

My gut is that answers 1) and 4) probably do the most to explain what we see here.  What do you think?

An Embrace of Science by Law Enforcement

The main point of my book Failed Evidence is to explain the real reasons that law enforcement resists science, and with that understanding to enable us to break through that resistance in order tohave better police work that reflects the best scientific  knowledge that we have.

So what a relief to find an example of law enforcement embracing science in a big way.

In the November 13 New York Times, “Jane Doe Gets a Back Story” tells how police have been aided by science in some very cold cases.  They have turned to isotope analysis to pinpoint the geographic origin of some unidentified human remains, and scientists have been able to do this with almost uncanny precision.  In other words, the scientists have not been able to identify the corpses, but they have pinned down where they came from, which might then lead to an identification.  The case featured in the article involved the frozen body of a woman found floating in a lake under a highway overpass northeast of Tampa, Florida, forty-one years ago.  The best guess was that the woman was white or Native American, and 17 to 24 years old.  Police got nowhere with this scant information.

Fast forward to this year, when scientists used shavings of tooth enamel and bones to come up with some “startling” findings:

The best evidence suggested that she grew up in Greece and came to the United States less than a year before she was killed. (Tarpon Springs, north of Tampa, has a large Greek-American population.) The research, according to Detective [Darren] “turned the case upside down.” Based on the findings, he provided information for an article that was published Oct. 11 in The National Herald, an international Greek-language newspaper. It was accompanied by the new reconstructed image of the victim and her clothing.

The case is still not closed. The woman’s identity has not been determined, and Detective Norris acknowledges that it is still a long shot. But he is confident that he is on the right track. “The best lead that has ever come in this case came because of the science,” he said…

What’s fascinating to me is the strong embrace of this scientific work by the police.  Because as readers of Failed Evidence know, that is not a given.  So what accounts for that embrace, while science on far more basic and common law enforcement methods like eyewitness testimony, interrogation of suspects, and basic forensics gets rejected?

Failed Evidence: Chapter 1 Posted by Utne Reader

For those who would like a chance to read a bit of Failed Evidence: Why Law Enforcement Resists Science, the Utne Reader has posted an online version of the first chapter of the book.  You can get to it by clicking here.

“Forensics on Trial” on PBS Gets It Mostly Right

Last night, PBS broadcast “Forensics on Trial” on Nova, the network’s terrific science show.  My take: the show got most of the issues regarding forensic science right, but not all.  And I think it might leave a misleading impression on some viewers.

Here’s a quick list of some of the things the program got right:

* The Brandon Mayfield fingerprint fiasco set in motion deep scrutiny of forensic science, culminating in the National Academy of Science 2009 report, “Strengthening Forensic Science in the United States.”

* According to that report, aside from DNA, most forensic science isn’t science at all but a craft based on human interpretation, subject to all of the cognitive flaws one would expect.

* Most of forensic science operates without standards, accountability, or basic certification.

But I had some reservations:

* The show conveyed a sense that the lack of scientific rigor in forensic methods would be solved by shiny new high-tech gadgetry.  Too little attention was paid to the ways we should address more basic flaws: the lack of real data on which to base our judgments about the sources of the evidence we find; the absence of standard laboratory practices, such as blind testing,  to protect against cognitive biases and flaws.

* The show failed to probe into the weaknesses of some of the lamest forensic disciplines, such as tire and shoe prints, hair and fiber matching, and the like.  Some of this was mentioned, but only in passing.

* The segment on bite mark identification was particularly striking.  It did a good job of exposing how this “discipline” put an innocent man in jail for fifteen years.  But it made it seem as if the problem was shoddy use of a legitimate method, when the issue is more fundamental: bite marks on skin are not consistent, and they change as the body tissue changes, moves, etc.

* I recall nothing about fraudulent forensics — so-called “dry labbing” that is now rocking the Jamaica Plain lab in Massachusetts, and that has shown up again and again in other places.  (Paging Fred Zain…paging Joyce Gilchrist…)

A worthy effort?  Yes, no question.  But I was hoping for better.

Reaction, readers?

DA Sickened by Convicted Criminals Going Free Because of MA Crime Lab Scandal

In the latest result of the Jamaica Plain crime lab scandal in Massachusetts, convicted criminals are leaving jail and a district attorney recoils at the damage done.  An article in today’s Boston Herald says that the cases of at least  twenty inmates have been affected so far, and more releases will soon follow.

The wrongdoing at the lab, in which protocols were not followed and results were possibly falsified, points out the importance of many of the recommendations in Failed Evidence and in the National Academy of Science’s 2009 report on forensic sciences: established protocols that trigger systemic warnings if not followed; laboratory accreditation and analyst certification; and regular proficiency and quality assurance testing, just to name a few.  But it’s actually more instructive to hear the comments of Norfolk District Attorney Michael Morrissey, upon hearing that inmates serving sentences had been freed because of the scandal:

It makes me feel sick that the hard work that had gone into prosecuting these individuals could be thrown out the window…There will be a larger onslaught in the coming weeks of people who have committed very serious crimes who will be let out of jail or face significantly lesser charges.  It leaves me kind of speechless that one individual could cause so much damage.

There’s only one thing you can say to this:  Mr. Morrissey is right.  A lot of hard work by good police officers and dedicated prosecutors has gone for naught, and some number of guilty people will get out of jail or serve less time than they could have — something they do not deserve.  It is a huge waste and a real injustice, which will only be compounded if the individuals freed go out and commit more crimes.

We don’t yet know the full story: was this one rogue lab worker, as Mr. Morrissey’s statement suggests, or was the wrongdoing more widespread?  Whatever the answer to that question is, we know that, going forward, all of the leaders in the criminal justice system who have felt the impact of this scandal must lead the way to comprehensive reform.  Nothing less will do, because nothing less will assure us that the same thing can’t happen again.

Why Does DC Law Enforcement Resist an Independent Forensics Lab Staffed by Trained Professionals?

From a story in the Washington Post, we learn that police and prosecutors in Washington, D.C. oppose staffing the District’s new independent forensic laboratory with trained professionals, and instead want to keep the sworn police officers who now serve as forensic staff in those jobs.  T1he reasons for this go back to a fundamental question: why does law enforcement resist science?

As the article explains, there are of course issues of jobs and efficiency.  The District government wants the officers now staffing the lab out on the street, fighting crime, and says that using civilians trained in forensic disciplines will be less expensive.  The police union denies that the change will result in savings, and also says that the changes being made renege on an earlier agreement to preserve the lab jobs for sworn officers.

But the real argument here is over who whether those who do the job of forensic analysis will or will not be part of the police department.  The 2009 National Academy of Sciences report, “Strengthening Forensic Science in the United States”, pointed out that forensic labs needed to be independent of the police departments and prosecutor’s offices that often “owned” the labs in the past.  They also needed professional staff who would not share the “we’re part of the law enforcement team” ethos.  All of this is essential to avoiding cognitive biases in laboratory procedures, communication, and protocol.

That’s what makes the law enforcement response interesting: they want to retain the law enforcement personnel and connection in order to have people on their side who can get the job done as they need it.  According to the Post, “officers in the District’s forensics division said their experience is invaluable, and they think their training and time as a sworn officer helps them understand investigations” — a coded way of saying that sworn officers in the lab will “get it,” but civilian analysts in an independent lab won’t.

The District appears to have done the right thing for the right reasons: the government there: “authorized the lab and removed administrative authority from police and prosecutors, in part to try and avoid problems involving faulty and contaminated test results that have beset other labs across the country.”  They deserve support for this, and should not be shoved back toward the “bad old days” in forensic labs.