Looking backwards at old cases: when science moves forward.

• Author: Epstein, Jules
• Position: The Role of the Courts in Improving Forensic Science: An Empirical Research Agenda for the Forensic Sciences

TABLE OF CONTENTS INTRODUCTION SCIENTIFIC ILLITERACY: A PROBLEM IN THE LEGAL PROFESSION KULBICKT. THE LAWYER'S DUTY WHEN FACED WITH SCIENTIFIC EVIDENCE KULBICKI'S CONSEQUENCE CONCLUSION INTRODUCTION

How should judges evaluate lawyers' alleged mishandling of forensic science evidence (forensic evidence) when the challenge is brought years after the trial? One recent United States Supreme Court decision grapples with this issue, (1) and this article contextualizes that holding, analyzes its weaknesses, and suggests some factors forjudges to weigh.

In criminal cases, the importance of science (and understanding the limits of science) cannot be gainsaid. The statistics are clear: in a review of homicide cases in Cleveland, Ohio, the clearance rate (2) was higher (63.1%) for cases with probative results after collection of a variety of types of forensic evidence--DNA, firearms evidence, fingerprints, etc.--than in cases without such evidence (56.3%), and the average sentence imposed was higher in the former category. (3)

Yet, there is a perplexing problem--the judges, prosecutors and defense counsel who are consumers of forensic evidence have little or no scientific training, either at the college level or on the job. Perhaps 5% of lawyers (and judges) studied science, a number confirmed repeatedly by polling attendees at legal education conferences. And the consequences may be severe, because when lawyers do not understand science and its limitations, they can neither assess, nor challenge the proof being presented in court.

SCIENTIFIC ILLITERACY: A PROBLEM IN THE LEGAL PROFESSION

The scientific illiteracy of lawyers was highlighted in the 2009 Report of the National Academy of Sciences, Strengthening Forensic Science: A Path Forward, which concluded, "[t]he judicial system is encumbered by, among other things, judges, and lawyers who generally lack the scientific expertise necessary to comprehend and evaluate forensic evidence in an informed manner." (4)

This was brought home directly in a recent judgment, overturning a Pennsylvania capital conviction based on DNA evidence. (5) As argued at trial, "[t]hat hat that was left at the scene in the middle of the street has [the defendant's] sweat on it and has [the victim's] blood on it ... DNA is a witness. It is a silent, unflappable witness." (6)

There was only one problem--the blood was on the victim's hat, not the hat of the accused. (7) The prosecutors misread the report and the defense lawyers never caught the error. (8) This was not the only science-related error made at trial. The prosecutor also argued to the jury that, because the defendant was the major contributor of the DNA on the hat, he was the person who wore it most recently, a statement contrary to science. (9) The defense made no objection. (10)

It cannot be said that this is an isolated incident of scientific illiteracy on the part of lawyers, although documenting instances is difficult because it takes later scrutiny by courts or scientifically-knowledgeable lawyers to uncover the phenomenon. But the concern over lawyers not knowing and challenging science has been expressed for decades."

The late Judge Louis Poliak acknowledged as much in 2002 when he expressed concern over how a law-trained person could decide questions of science:

The most important question here, of course, is, Am I the right person to be a gatekeeper?" he said. "I, who know little of science.... As society comes to rely more fully on technology, the question will become acute." Poliak said that he found it worrisome that the Supreme Court ruling in the Daubert case meant that he could rule one way on an issue like fingerprints and another federal judge in a different jurisdiction could do the opposite, and neither ruling would be reversed (the Court will hear appeals only on procedure, not on the law). He was frank about how poorly prepared most judges are for making decisions based on scientific issues. (12) KULBICKI: THE LAWYER'S DUTY WHEN FACED WITH SCIENTIFIC EVIDENCE

With this background, one would hope that when confronted with a claim that counsel erred by not researching the science being used against his client, the United States Supreme Court would emphasize that the lawyer's first duty is to learn--ask questions, conduct basic research, and consult with an expert before trial. But the exceptional deference (13) paid to lawyers' judgment calls, especially when viewed through a retrospective prism that emphasizes finality, dominated the Court's analysis.

The case is Maryland v. Kulbicki, (14) and its story is worth telling. James Kulbicki, a police officer, had an extra-marital affair in which the woman gave birth to a child. (15) Kulbicki was subsequently the subject of a paternity and child support action. (16) In 1993...