Problems Aplenty With Forensic Science

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.

Continue ReadingProblems Aplenty With Forensic Science

Racial Disparities and Risk Assessment

Bernard Harcourt (University of Chicago) has an interesting new paper entitled “Risk as a Proxy for Race.”  (A copy is available here on SSRN.)  Harcourt is responding to progressive arguments in favor of tying prison release to risk assessment:

An increasing chorus argues, today, that risk-assessment instruments are a politically feasible method to redress our problem of mass incarceration and reduce prison populations.  The argument, in essence, is that prediction tools can identify low-risk offenders for release and thereby protect correctional authorities from the political whiplash of early release.

Harcourt’s concern is that risk-based early release opportunities will disproportionately benefit white inmates and thereby exacerbate racial disparities in the prison population.  He points out, “[R]isk today has collapsed into prior criminal history, and prior criminal history has become a proxy for race.” 

Continue ReadingRacial Disparities and Risk Assessment

New Right-to-Counsel Rulings Address Bail and Waiver

State courts in Maryland and Indiana have recently broken new ground in the right-to-counsel area.  First, a trial judge in Baltimore ruled inRichmond v. District Court that indigent defendants have a Sixth Amendment right to be represented by counsel at bail hearings.  The decision is described in more detail at The Blog of Legal Times.  Additional coverage appears in The Daily Record.

Second, the Indiana Supreme Court ruled in Hopper v. State that defendants who wish to waive their right to counsel and plead guilty must be advised of the benefits of having a lawyer during plea negotiations.  The United States Supreme Court had previously rejected such “formulaic” requirements for a valid waiver of the right to counsel in Iowa v. Tovar, 541 U.S. 77 (2004).  However, unlikeTovar, the new case was decided not on Sixth Amendment grounds but on the basis of the Indiana Supreme Court’s general supervisory authority over lower state courts.

If it is affirmed on appeal and replicated in other jurisdictions, the Baltimore ruling is likely the more significant of the two.  

Continue ReadingNew Right-to-Counsel Rulings Address Bail and Waiver
Newer Posts
Older Posts