Academic journal article Fordham Urban Law Journal

"Utterly Ineffective": Do Courts Have a Role in Improving the Quality of Forensic Expert Testimony?

Academic journal article Fordham Urban Law Journal

"Utterly Ineffective": Do Courts Have a Role in Improving the Quality of Forensic Expert Testimony?

Article excerpt

Introduction: Forensic Science and the National Research Council
  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
     A. Saks' Explanation
     B. Contextual Approach to Knowledge
     C. Information About the Particular Case
III. What Role Might Courts Play?


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. …

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