"Utterly ineffective": do courts have a role in improving the quality of forensic expert testimony?

• Author: Sanders, Joseph

Introduction: Forensic Science and the National Research Council Report I. The NRC's Reasons for Giving the Courts Almost No Role in Improving Forensic Expertise II. Why Are Courts So Lenient in Admitting Expert Forensic Evidence? A. Saks' Explanation B. Contextual Approach to Knowledge C. Information About the Particular Case III. What Role Might Courts Play? Conclusion INTRODUCTION: FORENSIC SCIENCE AND THE NATIONAL RESEARCH COUNCIL REPORT

For at least three decades we have witnessed an academic critique of the quality of forensics evidence as it is employed in criminal prosecutions. (1) Although the critique has proceeded at many levels, at its core is the fact that many forensic science fields have failed to conduct the research necessary to test the reliability and validity of the methods and techniques forensic witnesses employ to support their courtroom testimony in criminal cases. The critique became more vocal and more persistent with the United States Supreme Court admissibility decisions in Daubert v. Merrell Dow Pharmaceuticals, Inc., (2) General Electric v. Joiner, (3) and Kumho Tire Co. v. Carmichael. (4)

In the early years following Daubert, it sometimes seemed that the forensic expert community simply didn't understand the academic critique. (5) For example, D. Michael Risinger reports that during a 1996 discussion, document examiners made the following comments: "Only we who do it can know that what we say about it is true," and "[they] went after our weak point: no data." (6) Later, the expert community developed more elaborate justifications for its practices and its lack of interest in conducting research designed to test the validity and reliability of its conclusions. Michael J. Saks and Jonathan J. Koehler have persuasively argued that at the heart of this set of justifications are the concepts of individualization and uniqueness. (7) As Simon Cole notes, individualization is understood to mean that it is possible to narrow the potential sources of a forensic trace "to a single object in the universe," and this sort of individualization is itself supported by the assumption that each forensic object (a fingerprint, a spent bullet, a bite-mark, a signature) is unique. (8) Combined, these assumptions lead to assertions such as the following: "And we profess as fingerprint examiners that the rate of error is zero. And the reason we make that bold statement is because we know based on 100 years of research that everybody's fingerprints are unique, and in nature it [sic] is never going to repeat itself again." (9) Empirical investigations by outside experts on the ability of forensic experts to make such assertions are claimed to be unnecessary. (10)

It is against this backdrop that the National Research Council (NRC) published its Report, Strengthening Forensic Science in the United States: A Path Forward. The Report clearly sides with the critics. The Report's summary makes the following observation: "With the exception of nuclear DNA analysis ... no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source." (11)

The Report offers a series of recommendations designed to change this state of affairs. Its first recommendation is the establishment of a National Institute of Forensic Science that would be independent from the existing forensics community and would have an advisory board with expertise in multiple disciplines. Its third recommendation is a call for research to assess accuracy, reliability, and validity in the forensic science disciplines. (12)

What is interesting is that the recommendations are neither directed at the courts, nor do they call on the courts to use the admissibility standards developed in Daubert and state court analogs to tighten admissibility standards. Certainly, this is not because the courts are already doing a good job in this regard. The Report agrees with many commentators that the courts have not adequately policed forensic experts. (13) In a rather blunt passage, the Report adopts Peter Neufeld's assessment that "the courts have been 'utterly ineffective' in addressing the problem" of unreliable testimony. (14)

In Part I, I review the NRC's stated reasons for giving the courts little or no role in improving forensic evidence and argue that these reasons cannot explain the fact that the same courts have played a significant role in policing expertise in civil cases. Why then have courts been so reluctant to exclude forensic expert evidence? I explore this question in Part II. I argue that two deep seated factors: (1) the courts' contextual approach to knowledge, and (2) the limited ability of science to provide causal answers about the particular case, limit the courts' willingness to raise admissibility standards in forensic cases. In Part III, I argue that courts can play a limited role in improving expert forensic evidence by excluding the worst evidence in each area. I believe that to date they have not done so consistently in part because the forensic community has made it difficult to easily distinguish between better and worse testimony. I propose some steps that could be taken to make such distinctions more transparent. I briefly review admissibility decisions in drunk driving cases to indicate how greater transparency in that area has led to more frequent exclusion of less well-supported conclusions. I end with a brief conclusion.

1. THE NRC'S REASONS FOR GIVING THE COURTS ALMOST NO ROLE IN IMPROVING FORENSIC EXPERTISE

   Prior to the Daubert trilogy of cases, one might have argued that the courts could play no role in improving expert testimony because they do not have the conceptual tools to do so. This is no longer the case. Unlike the Frye test that asked judges when making admissibility determinations to defer to the judgment of the relevant expert community--too often interpreted as the community of individuals offering their testimony in court--the Daubert opinion invited judges to assess the evidence themselves, undermining the self-validating tendency of the Frye test. (15) Moreover, the Daubert Court equated evidentiary reliability with scientific validity (16) and declared that two important admissibility factors were whether theory or technique could be, and has been, tested, (17) and the error rate associated with a procedure.iS Many forensic areas score poorly on these factors. (19)

   Why, then, does the Report fail to call upon the courts to change their liberal admissibility policy? The answer, apparently, is that the Report has no faith in the ability of the courts to use these tools, or at least no faith in their ability to use them effectively. Here is one key passage explaining why the Report gives the courts a pass:

   The 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, trial judges (sitting alone) who must decide evidentiary issues without the benefit of judicial colleagues and often with little time for extensive research and reflection, and the highly deferential nature of the appellate review afforded forded trial courts' Daubert rulings. Furthermore, the judicial system embodies a case-by-case adjudicatory approach that is not well suited to address the systematic problems in many of the various forensic science disciplines. (20) The implication is that judges are simply not up to the challenge. A combination of lack of time, lack of general focus, and lack of expertise, places this task beyond the ability of the judiciary.

   Undoubtedly, a great many opinions admitting forensic evidence leave much to be desired. The inanities sometimes advanced to admit forensic testimony are well documented. Consider the following examples.

   In a microscopic hair comparison case, the Kentucky Supreme Court, purportedly applying the state's Daubert test, was presented with no empirical support for the reliability of the test and ultimately fell back on general acceptance. (21) But it did so in a very backhanded way. There were no Kentucky cases reviewing such evidence under Frye. The court took this absence of any prior assessment of the admissibility of microscopic hair analysis as evidence for its admissibility.

   Although we have never specifically addressed the scientific reliability of this method of hair analysis, we must assume that it at least satisfied the Frye test of general acceptance; for otherwise, the evidence would never have been admitted in the first place. The absence in our previous opinions of any in-depth analysis under the "general acceptance" test was probably due to the overwhelming acceptance of this procedure as a reliable scientific method for the past fifty years. (22) Additionally, the United States District Court of the Southern District of Indiana in United States v. Havvard, (23) ruled on the issue of whether fingerprint analyses had been tested per Daubert's falsification criterion.

   They have been tested for roughly 100 years. They have been tested in adversarial proceedings with the highest possible stakes--liberty and sometimes life. The defense has offered no evidence in this case undermining the reliability of the methods in general. The government points out correctly that if anyone were to come across a case in which two different fingers had identical fingerprints, that news would flash around the legal world at the speed of light. It has not happened in 100 years. (24) In the fingerprint arena, Havvard hardly stands alone. With very few exceptions, courts have refused to conduct Daubert hearings, (25) have implicitly reversed the burden of persuasion to require the defendant to demonstrate that a fingerprint identification is not reliable, (26) have admitted expert testimony by relying on the fact that other...