Forensic science: why no research?

• Author: Giannelli, Paul C.

Introduction I. Early Period A. Initial Admissibility Decisions B. Establishment of the Crime Laboratory C. The Legal System II. Recent Period: Post-DNA, Post-Daubert Conclusion INTRODUCTION

The ground-breaking report on forensic science by the National Academy of Sciences--Strengthening Forensic Science in the United States: A Path Forward (1)--raised numerous issues. (2) One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles--in particular, to support claims with empirical research. The Report observed that "some forensic science disciplines are supported by little rigorous systematic research to validate the discipline's basic premises and techniques. There is no evident reason why such research cannot be conducted." (3) The Report went on to identify fingerprint examinations, (4) firearms (ballistics) and toolmark identifications, (5) document comparisons, (6) hair analysis, (7) and bite mark examinations (8) as disciplines lacking such empirical research.

This essay attempts to answer the "why" question: Why was there a lack of research across so many forensic disciplines? For purposes of discussion, the time frame is divided into an early period and a recent period. The line of demarcation between the two eras is the advent of DNA profiling in the late 1980s, along with the Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (9) If not a perfect line of demarcation, this division is a useful one for present purposes.

1. EARLY PERIOD

   An understanding of this formative period requires some appreciation of the time frame in which courts first admitted forensic identification evidence, the dates that crime laboratories were established, and the legal system's weaknesses during this era.

   1. Initial Admissibility Decisions

      The Illinois Supreme Court decided the first reported fingerprint case in this country, People v. Jennings, (10) in 1911. (11) Handwriting evidence was used in the Alfred Dreyfus case (12) at the turn of the twentieth century in Europe and was well established by the time of the Lindbergh kidnapping prosecution in 1935. (13) Firearms identifications gained notoriety at the Sacco and Vanzetti trial in 1921 (14) and then gained further acceptance after its use in the investigation of the Saint Valentine's day massacre in Chicago at the end of that decade. (15) By this time hair evidence had also been admitted as evidence. (16) The only exception to this early judicial acceptance of forensic identification evidence is bite mark comparison evidence, which was first admitted at trial in State v. Doyle, (17) a 1954 case which involved a bite mark left on a piece of cheese discovered at the scene of a burglary.

      Validating research for these techniques was absent from the beginning. As Professor Mnookin has noted: "[F]ingerprints were accepted as an evidentiary tool without a great deal of scrutiny or skepticism." (18) Similarly, in examining the origins of handwriting evidence, Professor Risinger and his colleagues observed:

      Our literature search for empirical evaluation of handwriting identification turned up one primitive and flawed validity study from nearly 50 years ago, one 1973 paper that raises the issue of consistency among examiners but presents only uncontrolled impressionistic and anecdotal information not qualifying as data in any rigorous sense, and a summary of one study in a 1978 government report. Beyond this, nothing. (19) Moreover, after his imprisonment, Alfred Dreyfus was exonerated, (20) and the firearm identification evidence in the Sacco and Vanzetti trial was misused. (21)

   2. Establishment of the Crime Laboratory

      The establishment of the modern crime laboratory did not result in the creation of a research base. The first crime laboratory in this country was founded in Los Angeles in 1923. (22) Other California labs followed, (23) as did the Chicago crime lab in 1929. (24) The Federal Bureau of Investigation (FBI) laboratory came on line in 1932. At its inception, the FBI laboratory staff included only firearm identification and fingerprint examiners. (25) The laboratory later added handwriting comparisons, trace evidence examinations, and the serological testing of blood and semen. (26) When initially established, crime laboratories handled a modest number of cases. For instance, in its first full year of operation, the FBI laboratory processed fewer than one thousand cases. (27) Crime laboratories soon sprang up in other large cities during the "gangster era." (28)

      Although reliance on physical evidence to solve crimes was a noteworthy reform, (29) the establishment of these laboratories was ad hoc at best. One commentator observed: "Most laboratories owe their existence, not to progressive attitude on the part of police administrators, but because the police agencies inaugurating laboratory services were shamed into it by adverse publicity or the threat of it" and "all too often the laboratory was poorly conceived, poorly equipped, and poorly staffed." (30) Another author, writing in the 1960s, reflected:

      After the early 1930s, crime laboratories were established in rapid fashion until nearly all states and the major cities had some facility for examining evidence. Not all laboratories were properly founded. No model existed and the development depended upon local whim and resources. For reasons of local pride, some departments created laboratories by the device of a name on the door. In many places, what may be called a crime laboratory is in fact a small step beyond a latent fingerprint and photographic set-up, adequate for evidence collection but unsuited by equipment and staff to engage in the analysis and evaluation of evidence. (31) By this time, courts had accepted most of the forensic identification techniques mentioned earlier. (32) Several reasons may explain the lack of research in the ensuing decades. First, the early crime labs, as is still true today, were operational, not research, laboratories. (33) Second, basic research can be both time-consuming and expensive, and the underfunding of crime laboratories has been chronic. (34) Third, even if research was perceived to be desirable, these laboratories were ill-equipped to conduct it. Police officers, whose skills were developed through on-the-job training, staffed these labs. (35) As would be expected, they were imbued with a police, not scientific, culture. (36)

      Paul Kirk, a giant in the field of forensic science, described the research in 1963 as follows:

      [Forensic science] progress has been technical rather than fundamental, practical rather than theoretical, transient rather than permanent. Many persons can identify the particular weapon that fired a bullet, but few if any can state a single fundamental principle of identification of firearms. Document examiners constantly identify handwriting, but a class of beginners studying under these same persons, would find it difficult indeed to distinguish the basic principles used. In short, there exists in the field of criminalistics a serious deficiency in basic theory and principles, as contrasted with the large assortment of effective technical procedures. (37) One exception to the dearth of research might be the paraffin test for the detection of gunshot residue on a shooter's hand, which was introduced in this country in the 1930s. However, even this is not an encouraging example. That test was admitted at trial for over thirty years before it was debunked by research. (38) In hindsight, a university-based, rather than a law enforcement-based, system would have been preferable. (39)

   3. The Legal System

      The legal system shares responsibility for the lack of research. Experience gleaned from the DNA admissibility wars indicates that adversarial procedures sometimes do trigger research. (40) Even the DNA proponents subsequently conceded that "most would now agree that this extended debate has been good for the science." (41) In contrast, there was little incentive for the government to sponsor research to validate the premises of forensic techniques that the courts had already accepted. (42) In Daubert, the Supreme Court emphasized the importance of the adversary process by noting that "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky hut admissible evidence." (43) However, the Supreme Court did not recognize the right to a defense attorney in all felony trials until Gideon v. Wainwright (44) in 1963.

      Furthermore, the right to a defense expert, albeit a limited one, was not firmly established until Ake v. Oklahoma (45) in 1985. The woeful inadequacy of pretrial discovery in criminal prosecutions, especially when compared to civil cases, also undermined attempts to challenge forensic evidence. (46) For example, in 2009, the Supreme Court observed that the laboratory report in one case

      contained only the bare-bones statement that "[t]he substance was found to contain: Cocaine." At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed. (47) Moreover, the evidentiary standards in place were not geared to analyzing the underlying basis of scientific proof. In 1923, the D.C. Circuit created the "general acceptance" test for determining the admissibility of scientific evidence. The case, Frye v. United States, (48) involved a precursor of the modern polygraph. Although the general acceptance test eventually became the majority pre-Daubert view, (49) it was mostly limited to polygraph cases for several decades. (50) Under the general acceptance test, scientific testimony is admissible if the underlying theory or...