Thursday, February 26, 2009

Forensic Gobbledygook And Criminal Law

I hope Connecticut’s Innocence Project takes on the case of Alfred Swinton. I am persuaded that the man was convicted of murder based on bogus science. A recent report by the National Academy of Sciences confirms my opinion. This report is must reading for the anyone concerned about the reliability of evidence presented in our courts.

Alfred Swinton was convicted of murdering Carla Terry. The key piece of evidence against him was bite mark evidence. Photographs of the decedent’s breasts were digitally transposed into an electronic image. Mr. Swinton’s dental impressions where taken and then transposed onto an acetate overlay. The two images were then laid one on top of another and compared. A forensic odontologist then compared the images and pronounced them a match. The match was far from persuasive looking – ill-defined bruises corresponded to locations of teeth. They looked like bite marks, all right. But whose?

I represented Mr. Swinton at trial. I did not challenge forensic odontology as junk science. Under the liberal standards governing the admission of scientific evidence, the so-called expert had the requisite skill, training and experience. And the field had been recognized in other judicial decisions. I challenged whether the expert could give any meaningful account, or foundation, about how two-dimensional images were transposed into digital pixels for comparative purposes, the trial court disagreed. When the Supreme Court later considered the issue, it found admission of the evidence to be harmless error.

Comes now a report prepared by the National Academy of Sciences at the request of Congress. Entitled, Strengthening Forensic Science in the United States: A Path Forward, the report is a chilling read.

"With the exception of nuclear DNA analysis ... no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source," the report notes. Yet the courts are blind to these issues and routinely admit evidence lacking in validity due to the lack of training of judges and lawyers in the basic science and the scientific method.

Not long ago, I cross-examined one of the state’s top forensic scientists on how blood was tested in a hospital lab. This test was later relied upon by the state to extrapolate a blood alcohol concentration in a manslaughter case. Our defense was that the machine had produced a false positive. The expert was familiar with the device used for the testing, but not with its acceptable error rate. The jury acquitted the client of those any claims involving intoxication.

Why was this evidence even admissible? According to the NAS, "the courts continue to rely on forensic evidence without fully understanding and addressing the limitations of different forensic science disciplines." In other words, we are letting juries consider junk science when deciding on a defendant’s fate. Something is seriously wrong in the courts, and the legal standards and tests use to determine the admissibility of scientific evidence are inadequate. That’s not just me talking. That is the National Academy of Sciences.

The academy singles out forensic odontology as particularly unreliable. "Although the majority of forensic odontologists are satisfied that bite marks can demonstrate sufficient detail for positive identification, no scientific studies support this assessment, ..." Question, then why are we allowing it into evidence?

Don’t ask Dr. Henry Lee or anyone at the University of New Haven this question. Notably absent from the list of persons on the NAS panel is the ubiquitous Dr. Lee. It was a curious omission.

Reprinted courtesy of The Connecticut Law Tribune.