Posts Tagged ‘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.

 

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.

 

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.

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.

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.

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?

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?

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.