Realizing reliability in forensic science from the ground up.

AuthorGabel, Jessica D.
PositionIntroduction through III. To Big to Fail: Obstacles to Federal Forensic Oversight B. Federal Enforcement Creates National Standards, p. 283-318

TABLE OF CONTENTS INTRODUCTION I. FORENSICS: FAR FROM SCIENTIFIC CERTAINTY A. "Science" Short of the Nth Degree B. Splitting Hairs: Anatomy of a Cheap Fix C. Reading the Fine Print D. Crime Lab Contagion: A Culture of Cutting Comers II. GROUNDHOG DAY: ATTEMPTS AT REFORMING FORENSIC SCIENCE IN THE UNITED STATES A. Treating Symptoms Instead of the Cause: The Early Years of Forensic Reform B. The Cash Cow: Funding Linked to DNA Testing C. Forensic Reform 3.0: A Graveyard of Good Ideas III. TOO BIG TO FAIL: OBSTACLES TO FEDERAL FORENSIC OVERSIGHT A. Federal Power to Mandate Standards. B. Federal Enforcement Creates National Standards C. Tie Federal Funds to Adoption of Regulations D. The Buy-In: Resistance to Reform IV. ORGANIC CHEMISTRY: REFORMING FORENSIC SCIENCE FROM ITS BASE A. Appreciating the Big Picture: Nonnegotiables B. Drilling Down on the Details: Longer-Term Goals V. BUILDING ON EXISTING MODELS AND FRAMEWORKS TO IMPROVE QUALITY AND COST A. Incubating Forensic Science Reform: Ideas at Home and Abroad B. Acknowledging that Probably Nothing is Perfect C. Setting a Stage for Reform CONCLUSION INTRODUCTION

Forensic science is a fractured and burdened discipline. Five years ago, in 2009, the National Academy of Sciences (NAS) published a revealing report announcing that forensic science is broken. (1) Depending on the audience, reactions to the NAS Report ran the gamut, from calling it predictable to groundbreaking to misleading. (2) In many respects, although it could hardly be characterized as new information, the NAS Report laid forensic science's shortcomings to bare and brought to the surface the weaknesses that have plagued forensic science for decades. (3) Moreover, the NAS Report underscored a harsh truth: faulty forensic science has contributed to convicting innocent people--and will continue to do so if the status quo persists. (4)

American courts have improperly legitimized various forensic disciplines without subjecting them to the kind of scrutiny that would be required of novel scientific or technical evidence today. Courts accept the untested view that "science," such as fingerprinting and hair analysis, is (1) generally accepted, (2) science, and (3) reliable. Such unsupported conclusions have lacked adequate scrutiny, whether from a scientific or a legal perspective. Take forensic fingerprint analysis. The common--yet unrealistically romantic--starting point is that there are no two fingerprints exactly alike in the world. That assumption produces the further assumption that fingerprint analysis must be correspondingly reliable. This logic is erroneous.

For example, forensic science and its resulting expert testimony sealed the fate of Bennie Starks during his trial for a brutal rape in 1986. (5) At trial, the State's forensic serologist testified that, based on her analysis of a semen sample taken from the victim's underpants and a sample obtained from Starks, she could not exclude Starks as the source. (6) The prosecution also hired dentists Dr. Carl Hagstrom and Dr. Russell Schneider (who self-identified as experts in forensic odontology) to testify that bite marks on the victim's shoulder had been made by Starks. (7) The dentists testified that after comparing the evidence, photos, X-rays, and a model of Starks's teeth, the bite marks shared sixty-two similar characteristics with Starks's teeth. (8) After hearing these forensic "experts" testify that scientific evidence tied the defendant to the crime, the jury convicted Starks of two counts of aggravated criminal sexual assault, attempted aggravated sexual assault, and aggravated battery. (9) Starks was sentenced to sixty years in prison. (10)

In 2006, after spending nearly twenty years behind bars, a DNA test categorically excluded Starks as the source of the semen. (11) Additionally, two other odontologists' independent examinations of the bite mark evidence completely discredited the conclusions and testimonies presented at trial. (12) Their reports pointed out that the examination method used by the State's odontologists had since been rejected by its own creators and concluded that the dentists "misapplied the methodology and used flawed preservation and photography techniques." (13) The appeals court ordered Starks released on bond pending a new trial. (14) His convictions were vacated and the last charges dismissed in January 2013. (15) Although Starks is free today, the lack of lab oversight and forensic standards leaves forensic science distrusted and vulnerable to manipulation. During the twenty years Starks spent behind bars, advancements in forensic science technology progressed exponentially, yet the system continues to suffer from fatal flaws and a low threshold of reliability.

Indeed, five years after the NAS Report, the so-called "Path Forward" seems murky, and various political logjams have barricaded the road to reliability. I posit that reliability--the bedrock of forensic science-remains a fleeting notion, because efforts at reform have lacked coordination and implementation. The only way to adequately address the flaws brought to light through the NAS Report is to align the various stakeholders and make a concerted effort from all facets of forensic science, rather than waiting for guidance through a frustrated and exhausted legislative and judicial process.

Although impossible to quantify, the number of wrongfully convicted individuals is at least in the hundreds. (16) Unreliable science presents itself in a virtual smorgasbord of ways, from the routine (contamination) to the egregious (forensic misconduct) and everything in between (misrepresented or exaggerated results, misinterpretation of results, lack of research for basic assumptions, unqualified analysts, inconsistent lab practices). Regardless of the root causes of the forensic flaws, the NAS Report clearly issued a "call to arms" to reform forensic science from the top down by proposing the creation of a centralized National Institute of Forensic Science (NIFS). (17) Little has been done, however, to achieve reform. Indeed, legislation has crawled to a standstill (i.e., dead in the water) several times in Congress, and certain constituencies have brought stiff resistance to reforms. (18)

With the exception of DNA, no single forensic technique yet has the ability to definitively link an evidence sample to its source. (19) Ability is very different from invariable actuality, however; even DNA evidence has its limitations and stress points. (20) Deficiencies in forensic science have harrowing implications, and the number of exonerations in recent years has underscored the very real threat that innocent people can be convicted. The reality of wrongful convictions has risen to the forefront of public awareness through the work of the Innocence Project and other organizations. (21) Of course, there are numerous factors that relate to wrongful convictions outside of faulty forensic evidence--witness misidentification, false confessions, jailhouse snitches (22)--but in some ways, the public conception of erroneous convictions, and that DNA will cure them all, represents a somewhat myopic view.

The Innocence Project predominantly accepts cases where biological evidence is available for DNA testing. (23) That only applies to a small subset of cases with potential claims of actual innocence. For each case where DNA is able to definitively exonerate an individual, there are many more equally innocent people in cases where DNA evidence is lacking. (24) Relying on the postconviction process to correct the problem simply puts a Band-Aid on a gaping wound. We can do better. DNA may provide the "get out of jail free" card in certain cases, but its absence in others nearly ensures that both the convictions and any bad forensic practices involved will persist.

To prevent wrongful convictions (as opposed to just responding to them), the NAS Report concluded that problems with forensic evidence could "only be addressed by a national commitment to overhaul the current structure that supports the forensic science community in this country." (25) To be clear, the NAS Report was not the first conscious conclusion that forensic science needs work. (26) Moreover, the Report was not the first suggestion that the mechanisms for change should occur at the federal level. (27) It probably will not be the last.

The spate of legislation the NAS Report has spawned over the past few years represents a laudable but failed effort to repair a broken system. (28) The top-down mentality of restructuring forensics essentially sweeps everything behind a gigantic curtain in an attempt to control all of the loose pieces in a one-size-fits-all manner. But a careful evaluation of the bottom of that curtain reveals the wizard's feet peeking out: reforms are plagued by underfunded entities, unrealistic budgets, and permissive language that strips real reform of any enforcement power. Simply put, if we continue to suggest a national entity to overhaul forensic science in a grandiose and unrealistic fashion, then we will continue to tabulate wrongful convictions based on bad science.

Having formerly argued that we need a federal agency devoted to the reliable development and distribution of sound forensic science, (29) history coupled with reality tells me that legislative gridlock and territorial pissing contests may make this impossible. Thus, while I still maintain that centralization is the key, I now advocate for a grassroots effort in creating a reliable forensic framework from the ground up, rather than the top down. Cooperation and collaboration across all levels of the criminal justice commerce stream is, in my view, the only currently accessible method. In addition, bringing universities--the bastions of scientific research--into the framework will increase the speed and accuracy, while reducing the costs, of developing standards. Law enforcement, forensic analysts, research...

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