Posts Tagged ‘interpretation’

In a newly-published study, researchers find that forensic experts rendering opinions may unconsciously bias their results toward the parties that employ them.  The results have potentially broad application across a wide variety of traditional forensic disciplines.

The journal Psychological Science has posted the study, called “Are Forensic Experts Biased by the Side That Retained Them?”  (I thank The Crime Report, from John Jay College of Criminal Justice, for bringing it to my attention.)  The authors, Daniel C. Murrie, Marcus T. Boccaccini, Lucy A. Guarnera, and Katrina A. Rufino, tested the idea that forensic experts called upon to evaluate evidence in an adversarial legal proceeding might respond differently, depending solely upon which party asked them to perform the evaluation.  Here’s the abstract to the study:

How objective are forensic experts when they are retained by one of the opposing sides in an adversarial legal proceeding? Despite long-standing concerns from within the legal system, little is known about whether experts can provide opinions unbiased by the side that retained them. In this experiment, we paid 108 forensic psychologists and psychiatrists to review the same offender case files, but deceived some to believe that they were consulting for the defense and some to believe that they were consulting for the prosecution. Participants scored each offender on two commonly used, well-researched risk-assessment instruments. Those who believed they were working for the prosecution tended to assign higher risk scores to offenders, whereas those who believed they were working for the defense tended to assign lower risk scores to the same offenders; the effect sizes (d) ranged up to 0.85. The results provide strong evidence of an allegiance effect among some forensic experts in adversarial legal proceedings.

If these results stand the test of time, the implications are potentially great,  As discussed in the National Academy of Sciences’ landmark 2009 report “Strengthening Forensic Sciences in the United States: A Path Forward,” most forensic disciplines (outside of DNA identification and those that use traditional chemical analysis) rely to a significant degree on human interpretation to generate conclusions.  The results of the Murrie et al. work suggest that all of these disciplines may be influenced by a very important piece of context — who pays for their work — regardless of which side of the case that is.  The study would seem to support one of the central recommendations of the National Academy of Sciences report: “removing all public forensic laboratories and facilities from the administrative control of law enforcement agencies or prosecutors’ offices” (p. 24).

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With Robert Bork’s death on Wednesday, December 19, I didn’t think first of his failed nomination to the U.S. Supreme Court.  Instead, I was back in my first semester of law school, as a student in his class on Constitutional Law.

By the time I took my seat in his class in the Fall of 1980, Bork was already well known. During the  Nixon Administration, he’d served as U.S. Solicitor General, the Administration’s advocate in the Supreme Court.  When the Watergate Scandal began to consume Nixon’s presidency, Archibald Cox was appointed special prosecutor.  Cox showed every sign of pursuing the ugly facts of the case all the way to their origin, and Nixon wanted him fired.  But Nixon’s Attorney General, Elliot Richardson, and Richardson’s deputy, both refused.  Bork stepped forward and fired Cox, in what was known thereafter as “the Saturday Night Massacre.”

Bork was also well known as an acerbic and distinctively conservative voice among law professors.  It was he who came up with what became known as the “original intent” school of constitutional interpretation.  According to Bork, the language of the Constitution and its amendments could only be understood through the intention of those who wrote those words.  Thus constitutional protection for the rights of women, privacy protections for personal decisions on birth control or abortion, the one-person-one-vote rule, even the 1964 Civil Rights Act and its regulation of interstate commerce on a non-discriminatory basis — all of these would be out under the Bork philosophy.

In the classroom, we could all see that Bork was an incredibly smart man.   His mind was powerful, supple, and insightful; he ran rings around all of us without any effort at all.  Lazy, fuzzy, or unexamined thinking got students into trouble quickly.  There was also little humor or humility in his approach; he was a guy with THE ANSWERS, and he made sure you knew it.  The class was challenging, and forced me to re-examine everything I thought I believed, and everything that generations of justices had said in their opinions.  Now, with twenty years in front of classrooms in law schools myself, I know that was the point.  But I often found myself recoiling from what I considered a harsh, almost Hobbesian worldview.  The clear implication of many of Bork’s views would have been the repeal of the New Deal, many steps backward on equality for women and  minorities, and a narrowing of political power to already-favored groups.  A society I did not recognize and had not lived in would have been preserved in amber.

Bork was not shy about these views; on the contrary, he wrote and spoke them frankly and frequently.  Justice Scalia, very much Bork’s intellectual twin, still holds the same sorts of views on interpreting the Constitution; Scalia, though, has gradually backed away from strict “originalism” to what he calls “textualism.”  When he speaks publicly and is challenged on whether his views would, in fact, give him the basis for repealing the New Deal, the regulatory state, and the like, I have heard him say, “I’m a textualist.  I’m not a nut.”  I can only imagine Bork’s scowl upon hearing that.  Bork would not have considered himself a nut, but he would have had — did have — the guts to be consistent.  He meant what he said.

Thus it was no surprise that Bork’s nomination to the Supreme Court attracted opposition fiercer than anything ever seen before.  His chance to be a justice — to enjoy what he told the Senate Committee would be “an intellectual feast” — went down to defeat, 58-42.

Personally, I was not surprised.  Quite aside from his views, which were then very far from the mainstream of even conservative legal thought, he was the same person in front of the Judiciary Committee as he had been in the classroom: an intellectual titan, but dry, harsh, seemingly unmoved by human concerns.  I did not know the man personally; by all accounts of those who did, he had a warm and human side.  But no Senator saw it, and his manner played right in to the efforts to defeat him as a cold-eyed elitist.

Bork lived out the rest of his life as a public intellectual, writing books and giving speeches.  The defeat embittered him, and he became a moral scold.

But, in his time, he mattered, and his defeat mattered.  In my next post, I’ll discuss why.

 

In the July 23 issue of The New Yorker,  “Words on Trial” introduces us to forensic linguistics.  Linguists, it seems, can now harness their knowledge to solve crimes.   The article describes a number of cases in which linguistic patterns expose who, or in some cases who did not, commit crimes that police could not solve.

It is an intriguing idea: linguists analyze various sorts of patterns and usages in writing and speaking.  With writings, they detect patterns that can go a long way toward identifying the author of a ransom note or a threat.

For me, what was so striking was how the same old forensic science questions from fingerprint analysis, tool marks, and hair and fiber comparisons emerge in this very new forensic discipline.  Is this a field the power of which is based on human interpretation, in which the experience and knowledge of the analyst rules, as is true with fingerprint analysis? If so, does it suffer already from the same deficiencies?  Or should forensic linguists strive for a data-based standard, such as DNA?  Both approaches are on display in the article, though the former is featured as the probable future of the field.

After looking hard at the 2009 NAS report, we should be cautious about introducing another forensic methodology that cannot quantify its error rate, cannot state the probability that the answer it gives is correct, and therefore cannot truly state whether or not a particular piece of writing is in fact associated with a defendant.  One forensic linguist says that he does not testify that he knows who wrote the items he analyzes; he will only say that the language in a given item “is consistent with” the language in the defendant’s other writings.  The caution is absolutely appropriate, but I wonder whether a jury will overlook this nuance, and simply hear “it matches.”

Every new tool that promises to solve crimes deserves serious attention; some new methods will make the world safer from predators.  But let’s not take these new tools where we have gone blindly before — into the land of failed forensics.  Instead, courts should accept them only when they can actually claim to use rigorous methods that support their claims.  Anything else will just generate a new wave of wrongful convictions.