Friday, February 20, 2009

Forensic Science: A Challenge To The Adversarial System?

Truth, we say, wins out at trial. Well-prepared adversaries in the well of a court each pressing as hard as they can for their client will yield shimmering gems, compacting coal into diamonds, glittering truths that will decide facts. Such is the theory anyway.

The National Academy of Sciences' recent report on forensic sciences poses a challenge to the adversarial system. Is the legal community up to the task of testing truths generated by science?

We all know that courtrooms are not laboratories. But when a scientist takes the stand to testify, when he enters the fora and by dint of taking an oath turns his science to forensic use, do lawyers and judges advance the search for truth, or do we get in the way?

I've just begun to plow through the report, Strengthening Forensic Science in the United States: A Path Forward. It is written in simple and accessible prose and is the product of research and interview by a panel assembled at the request of Congress to determine how our courts can better handle scientific evidence.

One proposal is shocking in its elegance. The panel calls for creation of an independent National Institute of Forensic Science. Among its many tasks would be the establishment and enforcement of standards for the collection and interpretation of forensic evidence. "Scientific and medical assessment conducted in forensic investigations should be independent of law enforcement efforts either to prosecute criminal suspects or even to determine whether a criminal act has indeed been committed. Administratively, this means that forensic scientists should function independently of law enforcement administrators," the report states.

This is heady stuff. Imagine a forensic laboratory housed, let's say, in a state's Department of Public Health, and administered by scientists accredited in forensic work. No person not so accredited would be permitted to give scientific testimony in a court. We'd need to rework Daubert to realize that general acceptance of a method does not entitle an apprentice without scientific training to opine. The present state of things permits a police officer to testify about a machine's test results without the ability to comment on why or how the machine does its work. This so-called black box testimony is routinely permitted by the courts and it comes down to the following tautology: It is reliable because we rely on it. This stuff isn't self authenticating.

The current state of forensic use of science -- can't we ban the term "forensic science" once and for all as meaningless -- is dismal. Law enforcement crime labs interpret data and opine on behalf of the state or Government. There are not Public Defender labs. And private labs are either too expensive or too poorly equipped to provide much assistance to many defendents. The NAS study acknowledges the observer bias plays a role in the current use of scientific testimony by law enforcement. What you see often depends on where you sit. If you are sitting in the FBI crime lab, small wonder the defendant looks guilty.

The report goes on to acknowledge an obvious truth" "lawyers and judges often have insufficient training and background in scientific methodology, and they often fail to fully comprehend the approaches employed by different forensic science disciplines and the reliability of forensic science evidence offered in trial." I've often been int trial and seen prosecutors put experts on the stand without apparent comprehension of the science the expert opines on. It is easy to cross examine these experts if you do your homework and read their texts: the state won't, and hence rehabilitation of the experts fails when a bleary-eyed prosecutor stands deer-like staring into the headlights.

The courts are awash in the forensic use of science. Often the experts are employees of law enforcement agencies offered as witnesses by prosecutors. The science is often of questionable vintage. They appear in court before jurors dazzled by mere mention of the term "forensic." They testify as defense counsel chips away with what remains of a high schooler's understanding of chemistry or physics. Juries sit back, puzzled, dazzled and confused by a vocabulary not even the judge really understands. How many people are convicted by jurors who say, in effect, I'm not sure what all that meant, but it sure sounded good?

The NAS report is a sub rosa challenge to the adversarial system of justice. Perhaps the truth does not emerge in every case. Perhaps there are cases in which the lawyers, who are supposed to be galdiators well equipped to slay cant, misperception and error, don't know enough to ask the right questions. Perhaps truth is sacrificed by judges who throw up their hands and say if it is good enough for others it is good enough for me, without ever really asking if the others know what they are talking about?

I favor the adversarial system of justice because it highlights my principal skill as a lawyer: cross examination. But I wonder this morning as I begin to digest the significance of the NAS study, whether an inquistorial system might not better serve. Science does not thrive in a world built on conflict; the search for truth is collaborative and the bound by a common method and norms. Are these methods and norms in perpetual conflict with the ethos of a courtroom?