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America’s Forensic Science Crisis

In my talk on America’s criminal injustice system, I note that because of decades of shows like Law and Order and CSI, the American public thinks they know how the system works. But the difference between how it actually works and how they think it works is astonishingly stark. This is especially true of forensic science. Because of CSI, lots of Americans think forensic science is a foolproof way of making sure the police always get the right person. My friend Radley Balko points to a long list of scandals and problems at crime labs all over the country and writes:

As I noted in a piece for HuffPost last year, crime lab scandals have erupted in recent years. Scandals have plagued state crime labs “in North Carolina, California, Virginia, Illinois, Maryland, West Virginia and Mississippi; the city crime labs in Houston, Cleveland, Chicago, Omaha, Oklahoma City, Washington and San Francisco; the county lab in Nassau County, New York; and… the Army crime lab.”

And that doesn’t even include Detroit, where the city crime lab was so incompetent and corrupt that they shut down the whole thing — and then found thousands of rape kits that had never been tested (and after several years, most of them still aren’t tested).

Public officials tend to be reluctant to admit to the scope of the problem because doing so would call thousands of convictions into question. Of course, that’s exactly what should happen, but I think it’s about more than that. When you’re talking about thousands and thousands of possibly corrupted cases spread out over several decades; when you’re talking about implicating not only crime labs and crime lab technicians, but prosecutors, judges, appeals courts that failed to pick up on the problem, and, frankly, the entire field of forensics — well, now you’re talking about implicating the criminal justice system itself. It all raises some profound, far-reaching questions that start to scratch at the notion of what justice means in America.

How is it that our courts have for decades now allowed the use of bad science to put citizens in prison — or even to send them to their deaths? Why is it that junk science can so easily slip into the courtroom during a criminal trial, but when said science is later called into question — or even shown to be complete nonsense — it can be so difficult, sometimes impossible, for the people convicted by that science to get a new trial? Should the objective of a prosecutor be to seek justice, or to win convictions? Do crime labs exist to objectively test and analyze forensic evidence, or are they part of the prosecution’s “team?”

Heck, we now have judges running for office by touting their conviction rate, which should immediately disqualify them from the ballot. The job of a judge is not to secure convictions, it is to secure justice. But every single incentive in the system is focused on convictions, not accurate outcomes. And with prosecutors, the Supreme Court has granted them absolute immunity from civil suit. Even if you can prove beyond a reasonable doubt that the prosecutor deliberately faked evidence and put an innocent person in prison for decades, or even put them to death, that prosecutor cannot be sued.

If a crime lab analyst comes up with results that could undermine a high-profile prosecution, is the analyst typically rewarded, potentially thwarting a pending injustice, or possibly punished for derailing a conviction? I’ve reported on cases in which crime lab technicians and medical examiners have been punished for testifying for the defense. And some in the forensics community tell me its still considered unethical for a forensic expert to take the initiative of calling a defense attorney if the analyst believes he has found exculpatory evidence that the prosecution is ignoring, or hasn’t turned over to defense counsel. Crazier still, there are parts of the country where crime lab technicians report to prosecutors. Prosecutors conduct their performance reviews, determine who gets promoted and who gets a raise. Who thought this was a good idea?

There have been enough scandals now that we need to start talking about these issues as systemic failures, and no longer as individual incidents to be addressed and fixed on a case-by-case basis. And it’s time to start considering more fundamental changes to how we test, analyze, and use forensic evidence in the courtroom, changes that may seem radical, but that would restructure the incentives of the key players here so that we reward people for moving cases toward just outcomes, not outcomes that serve political interests.

Our criminal justice system is deeply flawed at every single level. No one has done more than Balko to reveal those flaws.

Comments

  1. DonDueed says

    You can add Massachusetts to your list. A chemist in one of the state’s crime labs was found to be falsifying results in the prosecution’s favor — for nine years running. There may be more than 10,000 convictions voided. No one knows how many of those may have been invalid. It’s a still-unfolding disaster. The chemist has been charged with criminal misconduct.

  2. slc1 says

    As I have noted previously in Mr. Brayton’s previous blog, the problem begins with the conduct of investigations. Investigations are run from the police departments, who are under the gun to “solve cases” and the prosecutor’s offices. Both of these entities are in the business of getting convictions. I got a big laugh during the OJ Simpson trial when prosecutor, Marsha Clark, proclaimed in her closing statement that the business of a prosecutor’s office was to do justice. In a pig’s eye, the business of the prosecutor’s office is to obtain convictions.

    I would suggest that the first thing that should be done is to remove the direction of investigations from police departments and prosecutor’s offices and move it to specially trained judges, in addition to eliminating the system of electing judges. This is the system in France (of course, conservatives will immediately bad mouth this suggestion because of their disdain for things French). Judges appointed for life are far more likely to go where the evidence leads them as, presumably they have no incentive to obtain convictions or acquittals for that matter. They are far less likely then prosecutor’s offices to not investigate leads that seem to be inconsistent with preconceived notions.

    As for forensic labs, recall the disdain and calumny that emanated from the talking heads on cable news when the OJ Simpson defense team had the temerity to question the competence of the LA crime lab and its evidence collection procedures. Again, these institutions should be removed from the direction of police departments and prosecutors and reconstituted as independent entities responsible to the specially trained judges mentioned in the first paragraph.

    Unfortunately, I suspect that, as with gun control, it is unlikely that anything will be done because the public’s attitude toward criminal justice is lock ‘em up like a mad dog and keep ‘em locked up. Or they will take position enunciated by the late and unlamented Dominic Dunne, even if the accused is actually innocent of the crime charged, he/she was probably guilty of other crimes in which he/she was either not a suspect or evidence was insufficient for a conviction.

  3. says

    Where I live a drug squad agent was caught lying in a court hearing. The judge berated the cop and threw out the case. And the law enforcement agency? They put him on paid leave for more than a year (reportedly because of “mental issues). Finally he was hired by an agency a few hundred miles away and AFAIK is still a cop in “good standing.”
    Sheesh.

    Obviously his testimony in dozens and dozens of cases could have been called into question after his being caught flagrantly lying in a court proceeding.

  4. steve84 says

    Judges should never be elected in the first place. The biggest flaw in the American justice system that in some place top of law enforcement, prosecution and judges are all elected. Attorney generals in special are in debt to their political masters. This is obviously an insane idea.

  5. rowanvt says

    This is profoundly disturbing. I’ve not been the biggest fan of our justice system for a while but this adds a whole new level.

  6. Didaktylos says

    Sorry slc1. but your words don’t really hold water. In France, the position of juge d’instruction is the entry level rung on the career ladder of criminal justice officialdom. The next step up is Public Prosecutor, then Trial Judge, then Appeal Judge. There’s still an in-built bias toward the prosecution.

  7. TGAP Dad says

    Something which is not covered in this post: Suppose everything in the system works right, as in there is no corruption in the lab, no falsifying evidence or hiding of exculpatory evidence, the judge is undeniably impartial. There is still in the American psyche an assumption that the forensic sciences are validated, tested, and verified. That is far from the case as has been conclusively demonstrated in the past with fingerprint analysis, bite mark analysis, radar guns, and breathalyzers. Yet findings from these means are still admissible in a court of law, and the assumption remains that these are definitive, “gold standard” devices and analyses.

  8. matty1 says

    And with prosecutors, the Supreme Court has granted them absolute immunity from civil suit. Even if you can prove beyond a reasonable doubt that the prosecutor deliberately faked evidence and put an innocent person in prison for decades, or even put them to death, that prosecutor cannot be sued.

    Civil suit? Surely faking evidence to convict an innocent person should be a criminal offence. I’m even open to the idea the penalty should be that the person faking the evidence has to serve the same sentence they tried to impose on their victim.

  9. slc1 says

    Re Didaktylos @ #7

    I stand corrected relative to the system in France. I still stand on my claim that specially trained independent judges who are appointed for life is a considerable improvement on the current system.

    Re TGAP Dad @ #8

    Incompetent fingerprint analysts are certainly a problem. However, another problem is that too few points of identification are required for an analyst to declare a match and there is no scientific evidence as to the probabilities of matches vs number of points of identification. For instance, in California, 12 points of identification is required while 9 points of identification is the Federal requirement and 8 is the requirement in Virginia for the analyst to declare a match.

  10. pacal says

    Those shows “teach” very important lessons. Aside from presenting forensics like magic, a show like Law and Order taught how “technicalities” allowed the guilty to get off and how they impeded the search for “justice”.

    What both the CSI and Law and Order shows gave people was mega doses of fantasy dressed up as “reality”. Much like Peary Mason these shows existed only in an alternative world not this one. Sadly people take these shows seriously as describing reality. Like the fantasy forensics of the CSI programs to the woo profiling of Criminal Minds to the absolutely absurd repeated shootings on the court room steps of the original Law and Order, these shows are fantasy with little to no relation to reality.

    Very sadly they have affected how people view the law and the criminal justice system.

  11. kangxi says

    As an outsider (I’m from the UK) I’ve been uncomfortable for years about the system of justice in the US. Ever since I started more than ten years ago reading reports from the Death Penalty Information Centre (especially one focusing on Texas), I’ve struggled to understand why you have, or tolerate, these elements of your justice system:
    - elected judges
    - systemically overzealous & vindictive prosecutors & DAs (examples are legion: say Ken Cuccinelli)
    - incompetent public defenders
    - refusal to inform foreign prisoners of their rights under the Vienna Convention on Consular Relations (signed by the USA) resulting in eg foreigners being tried in a language they don’t understand and convicted (and sometimes executed) before their own governments even know (well known examples include executed people from Germany, Canada & (obviously) Mexico)
    - trying a child as an adult defender because of the gravity of the offence
    - trying mentally incompetent defenders as mentally competent, again because of the gravity of the offence
    - using laughably junk science (fire spread, hair, bite marks, permanently blinkered court psychiatrists))
    - your seeming obsession with the death penalty
    - the wildly skewed racial imbalance permeating the entire system
    - the blank refusal to even consider putting an obvious wrong right (eg the case of the Angola Three)
    - the seeming abandonment of a duty of care to people held in custody by the state (evidence is rather more anecdotal for this point, but the slew of books and TV programmes about the violent societies in your prisons don’t appear to be contradictory)
    - the grotesque results arising from plea bargaining, where the most guilty of a group acting criminally inform on the least, who gets executed

    I know that we are certainly not perfect in the UK (where there are actually 2 distinct legal systems), and there have been several notorious miscarriages of justice over the last 20 or 30 years. But I honestly think ours is in a far better state of health than yours. I wonder why this is so, and what you you think you can do about it. Mind you, I have the greatest respect for your supreme court, and rather hope Obama can skew the current make up of the court into a more liberal direction in this term of office. (Given that American “Liberal” seems equivalent to European “Conservative”.)

  12. cottonnero says

    kangxi:

    Yup. Blue equals blue. It’s just that our red and your red are in opposite directions from that point.

  13. DonDueed says

    kangxi: you forgot to mention the lack of a requirement that all questioning of suspects must be recorded. The UK has that right, at least.

  14. says

    “The biggest flaw in the American justice system that in some place top of law enforcement, prosecution and judges are all elected.”

    While I agree that this is a problem, it turns out that even in places where judges and DAs are appointed and not elected you still see terrible miscarriages of justice for all the same reasons. There is a much deeper, cultural problem at work here. I suspect that a lot of it is class/race based such that “those people” are getting what they surely deserve.

  15. martinc says

    slc1 @ 3:

    “Or they will take position enunciated by the late and unlamented Dominic Dunne, even if the accused is actually innocent of the crime charged, he/she was probably guilty of other crimes in which he/she was either not a suspect or evidence was insufficient for a conviction.”

    This might well be described as ‘having criminal-colored skin’.

  16. martinc says

    Pacal @ 11: Profiling is a gem, isn’t it? I like the way the profiler will invariably instruct the investigators of a serial rapist to be on the lookout for “a loner who has trouble forming relationships with women”. No! Really? What was your first clue, Sherlock?

  17. laurentweppe says

    I’ve struggled to understand why you have, or tolerate, these elements of your justice system:

    Because if you open your mouth the bullies will gang up on you.

    ***

    I suspect that a lot of it is class/race based such that “those people” are getting what they surely deserve.

    Do not underestimate the cynicism of the priviliged: for many people near the top of the totem pole, “those people” may not deserve what they get, but the fear of the lash -real or metaphorical- is the only thing that stops “them” from overthrowing “us”

  18. zmidponk says

    It seems to me that, putting it in very general terms, what’s happened in the US is that the criminal justice system has started from a point that’s not too bad (the prosecution goes all out to convict, the defense goes all out to clear, the jury decides who’s won, and the judge decides what consequences, if any, should be applied, more or less), but, as time has gone on, and especially as new technologies and procedures have arrived on the scene, the system has gotten more and more complicated, and, as that’s happened, more and more measures have been taken to ensure the guilty are convicted. However, that has failed to be balanced by additional measures to ensure that the innocent are not convicted. In addition, I think it’s also seen that this new technology should make it so that there are less innocent people even in court in the first place (the problem being that this is not actually the case), so there is an increasing attitude of simply having enough evidence to charge someone is, by itself, reasonably strong evidence in favour of their guilt. This is why shows like Law & Order, where they show the trial, are the exception, not the rule – most crime dramas show the story ending with the suspect being formally charged, and it’s given that they’re then convicted, except maybe in the occasional episode where something quite unusual occurs during the trial itself.

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