04 September 2010

Fixing Forensics: The Future of Forensics for Prosecutors, Criminal Defense Attorneys, and the Judiciary

By Katlin Connelly, Juris Staff Writer 2009-2010

       Last September, The Cyril H. Wecht Institute of Forensic Science and Law presented a CLE Seminar in response to the National Academy of Sciences’ 2009 Report on the Future of Forensic Science in the United States.  The CLE was entitled Does Forensics Need Fixing? and featured a panel of prosecutors, defense attorneys, judges, legal scholars, and forensic scientists.  The panel discussed the broad implications of the National Academy of Sciences’ Report (Report).  

          The Report brought to light the lack of evidence to support the reliability of many forensic techniques.  The Report asserted that techniques, such as fingerprint analysis, which would “‘match’ a piece of evidence to a particular person, weapon, or other source...” have not “...been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”  Additionally, the Report pointed out that, although there are many qualified forensic scientists across the country, certification is not mandatory, thereby causing a disparity between the reliability of forensic evidence from state to state. 

The Report also focused on the contention that the reliability of forensic evidence, from a scientific standpoint, varies among disciplines therefore making certain disciplines more accurate than others.  Because such uncertainties and disparities exist, the Report suggested that “court testimony should be grounded in science” and “acknowledge uncertainties.”

The Report did not just significantly alter the discussion of forensic scientists by bringing to light a list of issues with long-established ways of examining and gathering forensic evidence, but the revelations of the Report also will have a significant effect on the legal community.  Craig Watkins, Esq., who is the District Attorney in Dallas County, TX, spoke at the CLE. During Watkins’ tenure, there have been more exonerations than anywhere else in the U.S.  Most of these exonerations have relied upon DNA evidence to rebut other less reliable or inconclusive evidence.  Watkin’s believes that reliable evidence such as DNA will bring credibility back to the justice system and enable the “jury to find justice, not necessarily a conviction.”

          The District Attorney of Fayette County, Nancy Vernon, Esq., also spoke at the CLE.  She noted the importance of forensic evidence in linking a defendant to a crime and “wholeheartedly agrees with the NAS Report.”  Vernon stressed the importance of experts in court, saying, “Attorneys are not scientists.  Experts need to educate attorneys in order for us to pursue our case in court.” Vernon also explained the importance for experts in the areas of forensic science that have been scrutinized by the Report, to never say that a fingerprint, tool mark, or bite mark, for example, is an exact match because the methods themselves are not exact.  Vernon also believes that forensic evidence should be implemented into the law school curriculum because “forensic science evidence is how cases go to court and how cases are proven.”

          From the criminal defense standpoint, Carole Schwartz Rendon, Esq., said that the “report is invaluable to the practice of law.”  Rendon expressed how eye opening this report was because in the past, she “had no idea” there could be no conclusive match with gunshot residue or fingerprint analysis.  She believes that in the past, experts who would testify at trial regarding the forensic evidence that is under scrutiny by the Report, believed that they could make definitive conclusions based upon that evidence.  After the Report, this is no longer true.  Rendon believes the Report needs to be the impetus for a change in the admissibility of certain forensic evidence.   “We should not, in these cases where people’s lives are at stake," he said, "be presenting evidence with any degree of scientific certainty that has not been validated.”

          Michael Machen, a public defender in Allegheny County, also gave his perspective on the Report and stressed the disadvantage that his indigenous clients have in obtaining experts.  Machen also believes that there should be a standard lab report that “needs to be more simplistic for lawyers, judges and [the] jury to understand.” 

          From the standpoint of the judiciary, The Honorable James G. Carr, a U.S. District Judge, expressed that a better informed bar would help bridge the problems in court with inconclusive forensic evidence.  Judge Carr also expressed that the “difference between law and science is that it’s the duty of science to question, challenge and change established wisdom, what lawyers call precedent.  As a judge, to change precedent is an audacious act that should be rarely if ever done at the trial level.”

          The Honorable Joseph A. Del Sole, the former President Judge on the Superior Court of Pennsylvania, agreed that there is a constant struggle between science and precedent.  Judge Del Sole stated that judges “can only resolve the issues that are presented to the court, if the issue isn’t raised, it cannot be expected to be changed.”  Judge Del Sole suggested that not only an objection to the evidence be raised, but also an objection to the methodology of these types of inconclusive forensic evidence.

          The Honorable Dr. Stephanie Domitrovich, a judge in Erie County, believes that attorneys, experts, and judges need to work together to “change this whole forensic issue.”  Judge Domitrovich also recounted a time when she nearly excluded reliable expert testimony because she did not fully understand the scientific implications.  Judge Domitrovich thinks that judges still need to “reach out” and understand scientific issues and determine in preliminary matters whether certain scientific evidence is going to help or confuse the jury.

          Since the Report came out in February of 2009, it has been discussed and reviewed extensively because of its implications not only on the discipline of forensic science itself, but also on the law.  Although it is unclear whom or what can change this seemingly flawed system, it is clear that forensic scientists, prosecutors, defense attorneys and judges all need to work together.  The credibility of the justice system that attorneys and judges alike work to protect is at stake. 

Source: http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12589

Katlin Connelly is the Executive Editor of the Duquesne Law Review, Volume 49. She is also a student Senator with the Student Bar Association and participates in Trial Advocacy Moot Court competitions. Katlin graduated from Duquesne University in 2008 with a B.A. in History and Political Science. She will graduate in June of 2011 and can be reached at katlinconnelly@gmail.com.