Post by thinkinkmesa on Aug 13, 2008 21:18:57 GMT -5
(This article reminds me of the states blood spatter person in Brett's case, Rod Englert)
Forensic science is badly in need of reform.
Here are some suggestions.
By Radley Balko and Roger Koppl
Posted Tuesday, Aug. 12, 2008, at 12:43 PM ET
Last week, the state of Mississippi terminated its 20-year
relationship with medical examiner Dr. Steven Hayne. Hayne has come
under fire from fellow medical examiners, criminal justice groups
like the Innocence Project, and one of the authors of this article
for his impossible workload, sloppy procedures, and questionable
court testimony. In the early 1990s, Hayne and his frequent
collaborator, now-disgraced forensic odontologist Dr. Michael West,
helped secure murder convictions for Kennedy Brewer and Levon Brooks,
both later proven innocent through DNA testing. The two were released
from prison earlier this year.
Mississippi is hardly alone when it comes to bad forensic science. It
now appears that Washington, D.C., may have to retry Angela O'Brien
for the 2000 killing of her 2-year-old goddaughter, Brianna
Blackmond, after revelations that the prosecution' s star forensic
witness, a physicist named Saami Shaibani, lied about his credentials
in a Wisconsin murder case. These are only the most recent and
dramatic examples of forensics fraud to make the headlines. Over the
years, there have been plenty of other hucksters and charlatans happy
to take advantage of the ignorance of juries, prosecutors, judges,
and defense attorneys in very complicated and difficult-to- understand
disciplines.
But the charlatans are only half the story. Courts have also missed
plenty of mistakes from well-intentioned, conscientious scientists,
too. In fact, these may be even more common—and harder to catch.
Studies show that crime lab fiber, paint, and body fluid analyses,
for example, may consistently have error rates of 10 percent or
higher. The error rate in fingerprint analysis is possibly between 1
percent and 4 percent. And bite mark evidence is notoriously
unreliable though still widely used. The Chicago Tribune reported in
July that L. Thomas Johnson—one of forensic odontology's pioneers—has
been attempting to use statistical models to shore up the reliability
of this discredited field. But Johnson's efforts have been hampered
by new DNA testing in a 1984 murder, which concluded that the man
convicted of the crime was not the source of saliva found on the
victim's sweater.
The use of forensic science in criminal trials is critically
important. But reforms of the system are also desperately needed.
It's not enough to weed out the incompetent scientists. We need to
begin to monitor even the good ones. One major barrier to improving
forensic evidence in criminal trials is that in most jurisdictions,
the state has a monopoly on experts. Crime lab analysts and medical
examiners (and to a lesser extent DNA technicians) typically work for
the government and are generally seen as part of the prosecution' s
"team," much like the police and investigators. Yes, science is
science, and it would be nice to believe that scientists will always
get at the truth no matter whom they report to. But studies have
consistently shown that even conscientious scientists can be affected
by cognitive bias.
A scientist whose job performance is evaluated by a senior official
in the district attorney or state attorney general's office may feel
subtle pressure to return results that produce convictions. In cases
in which district attorneys' offices contract work out to private
labs, the labs may feel pressure—even if it's not explicit (though
sometimes it is)—to produce favorable results in order to continue
the relationship.
Cognitive bias can be even subtler. For some experts, merely knowing
the details of a crime or discussing it with police or prosecutors
beforehand can introduce significant bias to a lab technician's
analysis.
A research team led by Seton Hall law professor Michael Risinger
published a study in the January 2002 California Law Review
identifying five stages of scientific analysis in which bias can
affect even the most professional expert's opinion. The study was
careful to note that these biases were unintentional and not the
result of outright fraud. But according to the study, cognitive bias
can factor into the ways in which a scientist observes the initial
data, records that data, and makes calculations and also how he
remembers and reinterprets his notes when preparing for trial—a
problem that looms larger as time elapses between the lab work and
trial testimony.
Most jurors aren't aware of any of these biases; in fact, most give
enormous weight to expert witnesses. Even out-and-out frauds like
West and Shaibani can persuade jurors if they're presented in court
as reputable experts, appear likeable, and can testify with
conviction. A study of the first 86 DNA exonerations garnered by the
Innocence Project estimated that faulty forensic science played a
role in more than 50 percent of the wrongful convictions. While it's
obviously not possible to completely eradicate bias and scientific
error from the courtroom, a few simple and relatively inexpensive
reforms could go a long way toward reducing it. Here are a few more
recommendations:
Forensic counsel for the indigent. In many jurisdictions, indigent
defendants aren't given access to their own forensic experts. As a
result, the only expert witnesses are often testifying for the
prosecution—experts that come prepackaged with the inherent biases
noted above. This undermines the whole adversarial basis of our
criminal justice system. Indigent defendants should be given vouchers
to hire their own experts, who can review the forensic analysis and
conclusions of each prosecution expert.
Expert independence. Crime labs, DNA labs, and medical examiners
shouldn't serve under the same bureaucracy as district attorneys and
police agencies. If these experts must work for the government, they
should report to an independent state agency, if not the courts
themselves. There should be a wall of separation between analysis and
interpretation. Thus, an independent medical examiner would, for
instance, perform and videotape the actual procedure in an autopsy.
The prosecution and defense would then each bring in their own
experts to interpret the results in court. When the same expert
performs both the analysis and interpretation, defense experts are
often at a disadvantage, having to rely on the notes and photos of
the same expert whose testimony they're disputing.
Rivalrous redudancy. Whether the state uses its own labs or contracts
out to private labs, evidence should periodically and systematically
be sent out to yet another competing lab for verification. The
state's labs should be made aware that their work will occasionally
be checked but not told when. In addition to helping discover errors
that might otherwise go undetected, the introduction of competition
to government labs would all but remove any subconscious incentive to
appease police and prosecutors and would strengthen the incentive for
a more objective analysis.
Statistical analysis. The results from forensic labs should be
regularly analyzed for statistical anomalies. Labs producing
unusually high match rates should throw up red flags for further
examination. For example, in 2004 Houston medical examiner Patricia
Moore was found to have diagnosed shaken-baby syndrome in infant
autopsies at a rate several times higher than the national average.
This led to an investigation— and the reopening of several convictions
that had relied on Moore's testimony.
Mask the evidence. A 2006 U.K. study by researchers at the University
of Southampton found that the error rate of fingerprint analysts
doubled when they were first told the circumstances of the case they
were working on. Crime lab technicians and medical examiners should
never be permitted to consult with police or prosecutors before
performing their analysis. A dramatic child murder case, for example,
may induce a greater subconscious bias to find a match than a
burglary case. To the extent that it's possible, evidence should be
stripped of all context before being sent to the lab. Ideally, state
or city officials might hire a neutral "evidence shepherd," whose job
would be to deliver crime-scene evidence to the labs and oversee the
process of periodically sending evidence to secondary labs for
verification.
These proposed reforms would go a long way toward correcting the
problems of bias and improper incentives in the forensics system.
They're also relatively inexpensive—particul arly when compared with
the cost of a wrongful conviction. (In the Brooks and Brewer
exonerations noted above, the state of Mississippi paid for both the
prosecution and defense in two high-profile murder trials, three
decades of unnecessary incarceration, several rounds of appeals, and
will likely have to pay each man millions of dollars in compensation. )
The continuing stories of forensics error and wrongful convictions
are troubling but not all that surprising. Our criminal justice
system is centuries old. It just hasn't adapted well to the dramatic
advances in science and technology over the past 30 years. But as
forensic evidence becomes more and more important in securing
convictions, the need for monitoring and oversight grows
exponentially. Every other scientific field properly requires peer
review, statistical analysis, and redundancy to ensure quality and
accuracy. It's past time we applied the same quality-control measures
to criminal forensics, particularly given the fundamental nature of
what's at stake.
Radley Balko is a senior editor for Reason magazine.
Roger Koppl is director of the Institute for Forensic Science
Administration at Fairleigh thingyinson University.
Article URL: www.slate.com/id/2197284/
Copyright 2008 Washingtonpost. Newsweek Interactive Co. LLC
Forensic science is badly in need of reform.
Here are some suggestions.
By Radley Balko and Roger Koppl
Posted Tuesday, Aug. 12, 2008, at 12:43 PM ET
Last week, the state of Mississippi terminated its 20-year
relationship with medical examiner Dr. Steven Hayne. Hayne has come
under fire from fellow medical examiners, criminal justice groups
like the Innocence Project, and one of the authors of this article
for his impossible workload, sloppy procedures, and questionable
court testimony. In the early 1990s, Hayne and his frequent
collaborator, now-disgraced forensic odontologist Dr. Michael West,
helped secure murder convictions for Kennedy Brewer and Levon Brooks,
both later proven innocent through DNA testing. The two were released
from prison earlier this year.
Mississippi is hardly alone when it comes to bad forensic science. It
now appears that Washington, D.C., may have to retry Angela O'Brien
for the 2000 killing of her 2-year-old goddaughter, Brianna
Blackmond, after revelations that the prosecution' s star forensic
witness, a physicist named Saami Shaibani, lied about his credentials
in a Wisconsin murder case. These are only the most recent and
dramatic examples of forensics fraud to make the headlines. Over the
years, there have been plenty of other hucksters and charlatans happy
to take advantage of the ignorance of juries, prosecutors, judges,
and defense attorneys in very complicated and difficult-to- understand
disciplines.
But the charlatans are only half the story. Courts have also missed
plenty of mistakes from well-intentioned, conscientious scientists,
too. In fact, these may be even more common—and harder to catch.
Studies show that crime lab fiber, paint, and body fluid analyses,
for example, may consistently have error rates of 10 percent or
higher. The error rate in fingerprint analysis is possibly between 1
percent and 4 percent. And bite mark evidence is notoriously
unreliable though still widely used. The Chicago Tribune reported in
July that L. Thomas Johnson—one of forensic odontology's pioneers—has
been attempting to use statistical models to shore up the reliability
of this discredited field. But Johnson's efforts have been hampered
by new DNA testing in a 1984 murder, which concluded that the man
convicted of the crime was not the source of saliva found on the
victim's sweater.
The use of forensic science in criminal trials is critically
important. But reforms of the system are also desperately needed.
It's not enough to weed out the incompetent scientists. We need to
begin to monitor even the good ones. One major barrier to improving
forensic evidence in criminal trials is that in most jurisdictions,
the state has a monopoly on experts. Crime lab analysts and medical
examiners (and to a lesser extent DNA technicians) typically work for
the government and are generally seen as part of the prosecution' s
"team," much like the police and investigators. Yes, science is
science, and it would be nice to believe that scientists will always
get at the truth no matter whom they report to. But studies have
consistently shown that even conscientious scientists can be affected
by cognitive bias.
A scientist whose job performance is evaluated by a senior official
in the district attorney or state attorney general's office may feel
subtle pressure to return results that produce convictions. In cases
in which district attorneys' offices contract work out to private
labs, the labs may feel pressure—even if it's not explicit (though
sometimes it is)—to produce favorable results in order to continue
the relationship.
Cognitive bias can be even subtler. For some experts, merely knowing
the details of a crime or discussing it with police or prosecutors
beforehand can introduce significant bias to a lab technician's
analysis.
A research team led by Seton Hall law professor Michael Risinger
published a study in the January 2002 California Law Review
identifying five stages of scientific analysis in which bias can
affect even the most professional expert's opinion. The study was
careful to note that these biases were unintentional and not the
result of outright fraud. But according to the study, cognitive bias
can factor into the ways in which a scientist observes the initial
data, records that data, and makes calculations and also how he
remembers and reinterprets his notes when preparing for trial—a
problem that looms larger as time elapses between the lab work and
trial testimony.
Most jurors aren't aware of any of these biases; in fact, most give
enormous weight to expert witnesses. Even out-and-out frauds like
West and Shaibani can persuade jurors if they're presented in court
as reputable experts, appear likeable, and can testify with
conviction. A study of the first 86 DNA exonerations garnered by the
Innocence Project estimated that faulty forensic science played a
role in more than 50 percent of the wrongful convictions. While it's
obviously not possible to completely eradicate bias and scientific
error from the courtroom, a few simple and relatively inexpensive
reforms could go a long way toward reducing it. Here are a few more
recommendations:
Forensic counsel for the indigent. In many jurisdictions, indigent
defendants aren't given access to their own forensic experts. As a
result, the only expert witnesses are often testifying for the
prosecution—experts that come prepackaged with the inherent biases
noted above. This undermines the whole adversarial basis of our
criminal justice system. Indigent defendants should be given vouchers
to hire their own experts, who can review the forensic analysis and
conclusions of each prosecution expert.
Expert independence. Crime labs, DNA labs, and medical examiners
shouldn't serve under the same bureaucracy as district attorneys and
police agencies. If these experts must work for the government, they
should report to an independent state agency, if not the courts
themselves. There should be a wall of separation between analysis and
interpretation. Thus, an independent medical examiner would, for
instance, perform and videotape the actual procedure in an autopsy.
The prosecution and defense would then each bring in their own
experts to interpret the results in court. When the same expert
performs both the analysis and interpretation, defense experts are
often at a disadvantage, having to rely on the notes and photos of
the same expert whose testimony they're disputing.
Rivalrous redudancy. Whether the state uses its own labs or contracts
out to private labs, evidence should periodically and systematically
be sent out to yet another competing lab for verification. The
state's labs should be made aware that their work will occasionally
be checked but not told when. In addition to helping discover errors
that might otherwise go undetected, the introduction of competition
to government labs would all but remove any subconscious incentive to
appease police and prosecutors and would strengthen the incentive for
a more objective analysis.
Statistical analysis. The results from forensic labs should be
regularly analyzed for statistical anomalies. Labs producing
unusually high match rates should throw up red flags for further
examination. For example, in 2004 Houston medical examiner Patricia
Moore was found to have diagnosed shaken-baby syndrome in infant
autopsies at a rate several times higher than the national average.
This led to an investigation— and the reopening of several convictions
that had relied on Moore's testimony.
Mask the evidence. A 2006 U.K. study by researchers at the University
of Southampton found that the error rate of fingerprint analysts
doubled when they were first told the circumstances of the case they
were working on. Crime lab technicians and medical examiners should
never be permitted to consult with police or prosecutors before
performing their analysis. A dramatic child murder case, for example,
may induce a greater subconscious bias to find a match than a
burglary case. To the extent that it's possible, evidence should be
stripped of all context before being sent to the lab. Ideally, state
or city officials might hire a neutral "evidence shepherd," whose job
would be to deliver crime-scene evidence to the labs and oversee the
process of periodically sending evidence to secondary labs for
verification.
These proposed reforms would go a long way toward correcting the
problems of bias and improper incentives in the forensics system.
They're also relatively inexpensive—particul arly when compared with
the cost of a wrongful conviction. (In the Brooks and Brewer
exonerations noted above, the state of Mississippi paid for both the
prosecution and defense in two high-profile murder trials, three
decades of unnecessary incarceration, several rounds of appeals, and
will likely have to pay each man millions of dollars in compensation. )
The continuing stories of forensics error and wrongful convictions
are troubling but not all that surprising. Our criminal justice
system is centuries old. It just hasn't adapted well to the dramatic
advances in science and technology over the past 30 years. But as
forensic evidence becomes more and more important in securing
convictions, the need for monitoring and oversight grows
exponentially. Every other scientific field properly requires peer
review, statistical analysis, and redundancy to ensure quality and
accuracy. It's past time we applied the same quality-control measures
to criminal forensics, particularly given the fundamental nature of
what's at stake.
Radley Balko is a senior editor for Reason magazine.
Roger Koppl is director of the Institute for Forensic Science
Administration at Fairleigh thingyinson University.
Article URL: www.slate.com/id/2197284/
Copyright 2008 Washingtonpost. Newsweek Interactive Co. LLC