FORENSIC EVIDENCE IN WRONGFUL CONVICTION CASES: FROM BEING A RIGHT-HAND MAN TO BECOMING A SNAKE IN THE GRASS.

• Author: Zakirova, Irina

1. INTRODUCTION

   This article examines the admissibility (1) and reliability (2) of forensic science in the courtroom. I will discuss false or misleading forensic evidence in wrongful conviction cases. In addition, I will examine when an "[e]xoneree's conviction was based at least in part on forensic information that was (1) caused by errors in forensic testing, (2) based on unreliable or unproven methods, (3) expressed with exaggerated and misleading confidence, [and/or (4) fraudulent." (3) It is known that during trials, the presence of forensic evidence that either supports or eliminates the defendant's part in a crime is a powerful factor. (4) Some scholars even consider forensic evidence to be the judge behind the scene, whose "real evidence" (5) is the final proof. (6) However, as forensic testimony has gained value, the presence of wrongful convictions has shaken its reputation--in particular, whether the forensic evidence should be relied upon as before. (7) Therefore, this article will discuss the shifting role of forensic science in the courtroom, particularly, when forensic science, the initial role of which was to help serve justice by being its right hand, can also cause miscarriages of justice and become a snake in the grass.

2. DEFINING THE PROBLEM

   Forensic science is one of the types of hard sciences, used specifically to solve crimes. Since it affects an individual's future, and whether he or she will be found guilty or innocent, its reliability and admissibility can be detrimenta1. (8) However, it may be unclear which of those two aspects comes first and causes the other. In particular, "[a] method is unreliable if it does not produce consistent or accurate results.'... [A] process can be more reliable than it is valid - it can produce consistent results at a greater rate than it produces accurate results". (9) Such a definition implies that forensic science can definitely achieve consistent results more often than accurate results. However, the definition also hints at the fact that forensic experts may consider incorrect, but consistent, results as accurate. (10) Therefore, the confidence of forensic experts in their results--presented as expert testimony--sometimes leads to wrongful convictions. (11)

   According to the Innocence Project, because forensic science is so blindly referenced and relied on in the courtroom, it "is the second most common contributing factor to wrongful convictions" in DNA cases. (12) In particular, it accounts for roughly forty-five percent of wrongful conviction cases. (13) This data is very troubling since it clearly points to the fact that even in the present day, considering all the innovative tools and technologies used in forensic labs, lab results can still be heavily flawed. In addition, considering this data, experts and researchers in the forensic and legal field believe that the role of forensic science in the courtroom as a right-hand man has shifted to being a snake in the grass.

   Going forward in examining the aspects of errors in forensic evidence which caused wrongful conviction, the Innocence Project has identified three factors among them: (1) use of untested methods and techniques, (2) expert testimony which lacks empirical data, and (3) knowing presentation of fraudulent forensic results.

3. ERRORS CAUSED BY UNRELIABLE OR UNPROVEN METHODS AND TECHNIQUES

   When it comes to the use of untested methods and techniques, forensic science analysts and experts are blamed for utilizing "disciplines or techniques that have not been tested to establish their validity and reliability." (14) A study conducted in 1978, examining the quality of work done in forensic science laboratories, found that among the mistakes committed when examining evidence was that labs utilized their own methods, whether they were proven to be accurate or not. (15) Such was the case with bite marks when forensic experts made assertions about the bite mark and its "owner'" even if at that time there was "no science of bite mark analysis." (16) Therefore, it is no surprise that in the study, the tested laboratories have given different results from each other on the same evidence. (17) Clearly, there was a need for precise criteria for which techniques are considered and known to provide accurate data.

   To achieve this, in 1993 the U.S. Supreme Court determined in Daubert v. Merrell Dow Pharmaceuticals, Inc. (18) the criteria with which to evaluate the reliability of forensic-science expert testimony and the techniques forensic experts used to come to their conclusions. (19) The most significant requirement for forensic evidence experts utilizing a technique and establishing conclusions based on it is whether the technique has been "sufficiently tested" (20) and "whether it has attracted widespread acceptance within a relevant scientific community." (21) Utilizing what is now known as Daubert criteria, the Supreme Court wanted to eliminate or at least reduce the use of "'junk science' in the courtroom" (22) in both civil and criminal cases because its use undermines the role of the forensic science. (23)

   Moving away from the traditional understanding of forensic science, the idea that the results are gathered in laboratories is far from accurate. According to the National Registry of Exonerations Report, when it comes to drug crimes, the found material that is assumed to be a drug is tested by the police using drug field tests which are "notoriously unreliable," even though they were created by forensic experts to deal with case overload. (24) However, they are enough to influence defendants to admit guilt even if they might be innocent. (25)

   Besides utilizing unproven methods or techniques for analyzing evidence, it is just as important to have a well-prepared environment in the laboratory to obtain accurate results. A well-prepared environment encompasses a wide range of factors, from following sanitary regulations to having trained and honest leadership and personnel. However, this was not the case when the forensic lab experts received evidence for the case of Josiah Sutton. (26) Upon lab investigation, the officials found that there were myriad sanitary violations including that "[e]vidence in storage freezers was not properly sealed. It could not be established whether forensic workers wore gloves and lab coats." In other words, there was a high risk of evidence contamination which led to the laboratory closedown. (27)

   Ironically, during the investigation, it was found that the director of the laboratory lied that "he had a PhD in biochemistry from the University of Texas." (28) This case is illustrative. It shows that the whole laboratory, going from the director down to the staff members, was seriously unprofessional. In addition, this means that if there had been no secondary investigation to Sutton's case, the laboratory would have still been open, "solving" other crimes. (29) Further, the laboratory was shut down only after the officials conducted an audit of the lab, meaning that only experts could find out whether other forensic experts and their staff were violating any regulations. Therefore, the lack of knowledge in the field of forensic science, including that of jurors, can lead to erroneous mistakes. (30)

   Even though there is a heavy load of studies that conclude that forensic science has led to wrongful convictions by using unreliable or unproven methods, (31) some of the authors point out that such conclusions may be inaccurate (32) due to the evidence found at the crime scene. Specifically, potential wrongful conviction cases had to include biological evidence on which the defendant's conviction was based. (33) In addition, the crime had to be "serious enough that it yielded a sentence severe enough that the convict had an incentive to pursue post-conviction DNA testing" and after secondary analysis of the evidence, it would be found that the defendant was in fact wrongly convicted. (34) As a result, cases where the defendant was charged with a felony would fall under this umbrella. Therefore, it may seem that a majority of wrongful conviction cases are those that involve murder, sex crimes, or both, even though there might be overlooked cases involving less serious offenses where the forensic science has utilized unproven or unreliable methods. (35)

   When it comes to biological evidence that requires the use of serology, blood, or hair sample tests, (36) due to the discriminatory results gained from the tests, the results may be incorrectly interpreted as inculpatory evidence against the defendant. (37) Marion Coakley's case is illustrative. (38) Coakley was wrongly convicted of rape due to incorrect forensic evidence testing and after involving the Innocence Project, which conducted a secondary DNA analysis, he was exonerated. (39) The issue with the forensic test results that found Coakley guilty is that they did not compare the blood elements of Coakley's semen and that of the semen found at the crime scene. (40) Further, Coakley's attorney on appeal, Barry Scheck, founder of the Innocence Project, had taken on the case when he learned about the new method of identifying the perpetrator "DNA typing" which back then was practiced in England. (41) This case heavily relied upon forensic evidence and expert testimony, yet it led to a miscarriage of justice. In other words, it is not always known whether the methods and tests utilized by forensic experts are appropriate for the evidence available, which undermines the reliability of the forensic evidence in the courtroom.

   Further, the crime scene may include evidence such as hair samples, which is not solid enough evidence to rely upon for reaching convictions, but which creates expert testimony that may sound plausible. (42) The FBI, along with the Innocence Project, has found that out "[o]f 28 examiners with the FBI Laboratory's microscopic hair comparison unit, 26 overstated forensic matches in ways...