Last weekend I had the pleasure to participate in a conference sponsored by the Wisconsin Association of Criminal Defense Lawyers entitled, “Whatever Happened to the Science in Forensic Science?” The conference centered upon the 2009 report by the National Academy of Science (NAS) that confirmed suspected and significant concerns about how the criminal justice system had been using science for decades. And as if the NAS report wasn’t bleak enough, a number of speakers pointed to looming problems with DNA evidence, heretofore the vaunted “gold standard” for forensic science, and even with medical experts who diagnose child abuse. In sum, the whole field is starting to resemble a mass of toxic Hungarian red sludge that is oozing over and through the law’s inadequate bulwarks. (And no, I don’t believe that the answer is the Daubert “reliability” standard, which has proven to be ineffectual in most ways and pernicious in others.)
Kudos for organizing the conference go to Amelia Bizzaro (Law ‘03). The conference drew excellent criminal lawyers and forensic experts from across the country (Boston, New York, Phoenix) as well as locally talented lawyers, such as Jerry Buting and Craig Albee. Professor Paul Giannelli (Case Western) spoke about the NAS report itself while I discussed its impact on Wisconsin law governing expert evidence. Paul and I agreed that the NAS report itself could be used to cross-examine forensic experts about deficiencies in their methodologies and theories, an inexpensive yet effective way of putting this information before a jury.
The NAS report is must reading for all criminal trial lawyers. The report explained in detail what had been suspected for some time: the methods and theories underlying a host of forensic sciences techniques lacked rigor and, in many instances, any objective reliability whatsoever. Ballistics, tool mark identifications, fingerprints, handwriting, bite mark evidence, and arson investigations, to name just a few, were roundly criticized. The NAS report’s rebuke was so devastating that just three months after its publication the Supreme Court relied on the report in holding that crime lab analysts must appear at trial, under oath, to explain their findings instead of just providing a terse paper report. See Massachusetts v. Melendez-Diaz, 129 S.Ct. 2527, 2537 (2009) (Scalia, J.).
Yet the conference signaled problems that go beyond the NAS report and to the heart of what we thought was “solid” science. Marvin Schecter, who has shaken the trees in New York (and pretty much any where he goes), previewed unsettling new research, soon to be published, that will likely tarnish DNA’s luster as a gold standard. Put differently, DNA may not be all its cracked up to be. Nor is medical science itself immune from criticism. Dr. Rich Kaplan, a Minneapolis-based pediatrician and child sexual abuse expert, discussed the stunningly significant rates of misdiagnoses of such abuse by ER docs and primary care physicians. And in making his points, Kaplan showed a score of god-awful pictures depicting children’s diseased and injured genitalia that, as it turns out, had not been caused by sexual abuse.
In short, the conference raised provocative questions that will likely take decades to work through in light of the scant resources available to address them. We can avoid the perils of toxic Hungarian red sludge easily enough – stay out of Hungary. The ooze emanating from our own criminal justice system is, however, all around us and cannot be ignored.