The perils and pitfalls of forensic science

Both the New York Times and TalkLeft took issue yesterday with the oft-unacknowledged imperfections in forensic science.

The New York Times picks up on the National Academy of Sciences report that we've mentioned before, and how a cross-section of scientists and government officials back the recommendations that the NAS put forward.

Barry Fisher, a past president of the American Academy of Forensic Sciences and a former director of the crime laboratory at the Los Angeles County Sheriff’s Department, said he and others had been pushing for this kind of independent assessment for years. “There needs to be a demonstration that this stuff is reliable,” he said.

It’s not that there hasn’t been any research in forensic science. But over the years much of it has been done in crime labs themselves. “It hasn’t gotten to the level where they can state findings in a rigorous scientific way,” said Constantine Gatsonis, director of the Center for Statistical Sciences at Brown University and co-chairman of the National Academy of Sciences committee. And rather than being teased out in academic papers and debated at scientific conferences, “a lot of this forensic stuff is being argued in the courtroom,” Mr. Fisher said. “That’s not the place to validate any kind of scientific information.”

Meanwhile, TalkLeft discussed the unreliability of fingerprint evidence when analysts are given a "context" for a print. For example, scientists might be given a latent print, and then given a print for comparison and told it was taken from a suspect. Human beings are suggestible, and because this analyst is a human being, they're statistically more inclined to find that the prints match, independent of whether they actually do.

He has conducted studies that show that when working on an identification, fingerprint examiners can be influenced by what else they know about a case. In one experiment, he found that the same examiner can come to different conclusions about the same fingerprint, if the context is changed over time.

The same kinds of contextual biases arise with other decision-makers, said Dr. Dror, who works with the military and with financial and medical professionals. He thinks one reason forensic examiners often do not acknowledge that they make errors is that in these other fields, the mistakes are obvious. “In forensics, they don’t really see it,” he said. “People go to jail.”

Finally, TChris at TalkLeft had a good analogy:

Just as police officers conducting lineups should not be told whether the suspect is or isn't among those who are lining up, forensic scientists who are asked to match a fingerprint shouldn't be told whether the print is suspected to have been left by a particular person. Any other standard raises concerns about the objectivity of the analysis.

Friday Roundup

A few tidbits from around the legalsphere this morning:

Change.org: This blog post reports on a recent study from the National Association of Criminal Defense Lawyers (NACDL). The study shows how the litigation of "small crimes" – crimes like loitering, driving with a suspended license, and dog leash violations – that still carry a prison sentence (!) are clogging the courts.

"Every year literally millions of accused misdemeanants, overwhelmingly those unable to hire private counsel, and disproportionately people of color, are denied their constitutional right to equal justice. And, taxpayers are footing the bill for these gross inefficiencies."

SentLaw: A Pennsylvania inmate who maintains his innocence asks to be executed by the State, having grown exhausted from having multiple appeals denied.

Grits for Breakfast has their take on the Houston Police Department crime lab fiasco: "This is another example of a "team spirit" mentality that contributes to many forensic-based false convictions. Houston crime lab workers apparently weren't acting as scientists seeking independent answers but considered themselves part of the prosecution's team, omitting lab results that might not favor the side they wanted to win."

Simple Justice has a thorough piece discussing what Obama should be looking for in his Supreme Court nominee, now that Justice Souter is retiring.

Houston man, victim of prosecutorial misconduct, could be freed on bond

An article in the Houston Chronicle a few days ago told the story of Gary Alvin Richard, who was convicted of a rape and robbery in 1987. Richard has spent 22 years behind bars for what is now clearly a crime he did not commit. New blood-typing tests and recently-unearthed (withheld evidence, in this case) prosecutorial misconduct solidify that conclusion.

Both sides are asking a judge to overturn his conviction.

A jury convicted Gary Alvin Richard in a 1987 attack on a nursing student in a trial based largely on blood-typing evidence from the Houston Police Department crime lab. But, prosecutors and the defense attorney agree, new tests completed Friday show that an [Houston Police Department] analyst misled jurors at Richard’s trial and failed to report evidence that may have helped him.

Based on the new tests, both sides will ask a judge next week to release Richard on bond while they sort out what happened in his case...

Richard’s case abounds with issues common to wrongful convictions. Among them:

The victim identified him some seven months after the attack. HPD crime lab analysts came to conflicting conclusions about the evidence, but reported only the results favorable to the case. Physical evidence collected in what is known as a “rape kit” has been destroyed, a victim of poor evidence preservation practices, leaving nothing for DNA testing now.

Richard's case is of many that have come to light since the Houston Police Department initiated a review of past cases in October of 2007. That review was spurred "days after DNA evidence cleared Ronald Taylor of sexual assault in a case where HPD analysts performed faulty tests on body-fluid evidence." Kudos to Houston for reviewing its past cases with some genuinely desire for justice, but this episode also serves as a reminder of the importance of getting things right the first time.

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Texas bill allows defendants to challenge their convictions based on junk science

Per the Innocence Project's blog today, "A bill passed by the Texas Senate this week would provide an avenue for prisoners to challenge convictions based on discredited forensic science." They reference a story in the Marshall News Messenger that begins,

Criminals who were sent to prison — or sentenced to death — based on discredited scientific evidence would be given a new way to challenge their convictions under a bill passed this morning by the Texas Senate.

In recent years, an increasing number of arson and gunshot convictions in Texas have triggered alarm as new technology proved earlier evidence wrong, and convictions were cast into doubt — including at least one case in which the prisoner was executed.

The measure by state Sen. John Whitmire, D-Houston, would allow discredited scientific evidence that figured in a criminal conviction to be considered by an appeals court in order to establish the innocence of a defendant...

Advancements in forensic testing — DNA, ballistics and arson — have led to new evidence being uncovered in several cases in Texas. Whitmire said that led him to file the bill, which clarifies how discredited scientific evidence can be used in court appeals.

In December 2008, we worked to overturn Jimmy Ates' conviction, based largely on fraudulent FBI bullet lead analysis. Since then, the National Academy of Sciences has issued a scathing report, decrying the sorry state of forensic science labs around the country.

We know well how junk science can contribute to a wrongful conviction – indeed, the Innocence Project in New York says that junk science contributed to over half of the nation's first 225 DNA exonerations. We applaud steps like these being taken in Texas, and hope that a new incredulity toward and accountability regarding forensic science will spread to other states and jurisdictions.

The Coverdell Grant Program for forensic science

The Innocence Project in New York recently released a report titled, "Investigating Forensic Problems in the United States: How the Government Can Strengthen Oversight through the Coverdell Grant Program." From the executive summary:

In 2004, Congress established an oversight mechanism within the Paul Coverdell Forensic Science Improvement Grant Program, which provides federal funds to help improve the quality and efficiency of state and local crime labs and other forensic facilities.

[...] Nearly five years after Congress passed legislation to help ensure that forensic negligence or misconduct is properly investigated, extensive independent reviews show that the law is largely being ignored and, as a result, serious problems in crime labs and other forensic facilities have not been remedied. In short, the U.S. Department of Justice’s Office of Justice Programs (OJP), which is responsible for the program, has failed to make sure that even the law’s most basic requirements are followed.

Yesterday, the blog for TheHill.com paraphrased some of the results of this study, and reiterated the Innocence Project's call for increased oversight or, rather, they called for the Obama administration to increasingly take advantage of the grant program that Congress created five years ago. One particularly egregious fact they quote is this: only 13% of designated oversight entities meet the federal law’s forensic oversight requirements. If you were a defendant, would you want to take a 1-in-8 chance that the forensic lab that processed the evidence in your trial was subject to proper oversight?

Finally, "Under new leadership, the Department of Justice can – and should – make sure crime lab problems are properly addressed, which will enhance the public safety and help prevent wrongful convictions." Remember, working to correct problems in order to preclude wrongful convictions is cheaper than housing wrongfully incarcerated individuals.


No sooner had The Hill run this post than Grits for Breakfast published some presentations from the public meetings held by the National Academy of Sciences, meetings held to address the problems plaguing forensic science labs around the country. They link to this presentation in particular that calls for forensic tests "to be as blind as possible, for as long as possible," and which contains the shocking graphic on common error rates linked above.

You'll notice that firearms and fingerprints, while among the most reliable forensic testing methods, still yield erroneous conclusions around 1-5% of the time. Some toolmark and bitemark tests, meanwhile, are reliable less than half of the time. That report also refers to several studies that found that, for example, when a scientist was provided with "context" for certain samples – context such as, "The suspect has already confessed, here's his hair and a hair from the crime scene" – that error rates were much higher. Those who conducted the psychological studies could induce false positives by giving false context, leading the forensic scientist to believe certain conclusions before they came to them independently.

All of these scientific studies point to the sad state of the crime labs in this country. Scientists might think so, but they are not immune to psychological tendencies – such as suggestibility – that afflict every human being. Independent oversight and common-sense reforms are the necessary solution to the problem.

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UPDATE II: CBLA Amicus Brief

On Tuesday, IPF received the good news that the Florida Supreme Court sent the case of Thomas Wyatt, a death-row inmate, back down to the trial court for a new hearing on the Comparative Bullet Lead Analysis issue and the jailhouse snitch issue in Mr. Wyatt's case.

This was particularly important because they instructed the lower court to have a hearing on whether the CBLA testimony given at trial against Mr. Wyatt sufficiently prejudiced his trial given the fact that the FBI issued a letter recently saying that its testimony was false and not supported by science.

This ruling preserves the case-specific FBI letters as the paramount newly discovered evidence in these CBLA cases.

You can learn more about CBLA by reading this Washington Post article from 2007 or by reading our amicus brief by clicking here.

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Update: Wyatt v. State Amicus brief

On Thursday, April 2nd, the Innocence Project of Florida, along with The Innocence Network, filed an amicus curiae brief with the Florida Supreme Court in the case of Wyatt v. State of Florida. IPF is urging the court to allow inmates, including Mr. Wyatt, the opportunity to present to the trial court recently received letters from the Federal Bureau of Investigation indicating that its agents gave false and misleading trial testimony regarding Comparative Bullet Lead Analysis (CBLA). The press release we posted earlier is now available for download by clicking here, or you can read the brief we filed by clicking here.

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What if DNA evidence from a crime scene could tell us what the perpetrator looked like?

That question is the taken from a new post over at the Change.org Criminal Justice blog. The post is inspired by an article in the Wall Street Journal, that explains how researchers at Pennsylvania State University performed a study attempting to link specific genes to "phenotypes," or their physical expressions. What this means, then, is that scientists might be able to tell, roughly speaking, a person's physical characteristics by examining their DNA.

As Matt Kelley, the author of the post points out, there is much reason for alarm here. As he says, and as we have noted before, there is cause for concern over "the propensity of criminal justice agencies to use scientific methods before they're ready." He adds, "The U.K. and the Netherlands are already using some form of these tests, as are some U.S. states. Germany has outlawed the practice, along with Indiana, Wyoming and Rhode Island."

Lastly,

The WSJ reports that researchers are able to predict eye color 70-90% of the time and skin color 46% of the time. These numbers aren't strong enough to rely on. Wrongful convictions happen - and real perpetrators get away - when faulty or limited science puts police on the wrong track in those crucial first few days after a crime. I agree that these tests could be helpful in some cases to confirm other evidence, but can we guarantee that genetic composite sketches won't be become simply another form of unreliable forensic science?

The question is when and whether this will become more accurate than other methods of identification, and whether this technique can be used without any illusions of its accuracy. The worry is that juries might hear DNA evidence and assume the practice is close to 100% accurate, rather than the more pitiful, but more truthful, measure of its accuracy.

National Academy of Sciences Blasts Nation's Crime Labs

A report being released this month by the National Academy of Sciences is expected to be "a sweeping critique of many forensic methods that the police and prosecutors rely on," according to The New York Times last week.

People who have seen it say it is a sweeping critique of many forensic methods that the police and prosecutors rely on, including fingerprinting, firearms identification and analysis of bite marks, blood spatter, hair and handwriting.

The report says such analyses are often handled by poorly trained technicians who then exaggerate the accuracy of their methods in court.

Its authors recommend the creation of a federal agency "to finance research and training and promote universal standards in forensic science, a discipline that spans anthropology, biology, chemistry, physics, medicine and law." Oh, and it also "calls for tougher regulation of crime laboratories." Hmmm....is it a surprise then to find out that the report's publication was delayed by opposition from law enforcement?

What is it with these guys? The reason for using science in investigations is to find the truth -- not to exaggerate it, distort it or create it, but to find it. Why do so many law enforcement personnel and prosecutors react so negatively to attempts to discover the truth about a crime? In the words of The King, it never ceases to amaze me that we continue to get resistance from certain State Attorneys to DNA testing, and even AFTER we have exclusionary DNA results in a case, they continue to resist. I mean, what exactly is it that THEY are seeking? It's certainly not the truth, or they would welcome testing if the evidence is available.

And what really got my ticker going was learning that

the National Institute of Justice, a research arm of the Justice Department, tried to derail the forensic study by refusing to finance it and demanding to review the findings before publication. A bipartisan vote in Congress in 2005 broke the impasse with a $1.5 million appropriation.

That's our National Institute of Justice, a misnomer if I've ever heard one. There is so much wrong with this that words fail me. I'm just sitting here shaking my head.

It's hard to say how much of an impact the report will have. The National Academy certainly shook things up in 2004 when they issued a report discrediting the practice of "matching the chemical signature of lead in bullets at a crime scene to similar bullets possessed by a suspect." The F.B.I. ended up having to contact hundreds of people who might have been wrongfully convicted due to this bogus science. One of them, Jimmy Ates, is here in Florida. Jimmy is now out on bond and waiting to see if the State will re-try him.

"Everyone interviewed for this article agreed that the report would be a force of change in the forensics field." We can only hope.

Read the entire article here.

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