—by Jennifer Pratt
Abstract: Attorney General Loretta Lynch opted not to adopt any recommendations set forth in a report to the President about the unreliability of scientific testing in court settings. Critics fear this may lead to increased numbers of convictions for innocent defendants.
Citations: Gary Fields, White House Advisory Council Report is Critical of Forensics Used in Criminal Trials, The Wall Street Journal, http://www.wsj.com/articles/white-house-advisory-council-releases-report-critical-of-forensics-used-in-criminal-trials-1474394743 (Sept. 20, 2016); President’s Council of Advisors on Science and Technology, Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods, https://obamawhitehouse.archives.gov/sites/default/files/microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf (2016).
In early September, the President’s Council of Advisors on Science and Technology (“the Council”) released a report (“the report”) on forensic science. The report was a scathing review of how scientific evidence is analyzed and used in criminal trials. According to the Council, a large portion of the most common analyses used do not meet scientific standards.
A large part of the Council’s criticism rested on the Federal Bureau of Investigation (FBI) laboratory and its processes. The report raised various questions about the use of different types of common analyses performed at the lab, including hair, firearm and bite-mark analysis. It also made recommendations for how to improve the forensic science agenda at the laboratory. According to the Council, it is necessary for the FBI to expand its development of objective scientific methods used to test evidence that will be used in criminal cases. Currently, said the Council, there are three specific subjective tests that need to be made objective: latent fingerprint analysis, firearms analysis, and sometimes, DNA analysis.
The Council also articulated recommendations for stricter proficiency testing of analysts. It argued that the current standards for proficiency are insufficient for what is required of experts in the field. According to the Council, “increased rigor” in proficiency testing is necessary to ensure that analysts are as well trained as is necessary.
In regard to the law, the Council stated that legal standards in cases that involve any scientific evidence should be based on scientific validity. The report further intimated that neither experience, judgment, nor even solid professional practices could make up for actual evidence of “validity and reliability” in scientific testing.
Shortly after the Council released its report, the United States Attorney General, Loretta Lynch, responded to its findings. She stated that the Justice Department would not be adopting any of the recommendations laid out by the Council. In explaining why, Ms. Lynch said that there had already been large steps taken toward strengthening forensic science within the Justice Department. She also said that the current legal standards are already based on sound scientific principles, and therefore do not need updating or changing.
This is not dissimilar to actions taken by the Department of Justice in the past. For example, when the Attorney General formally adopted a new code of ethics for forensic science in September, there had been large changes made from what had been suggested by the National Commission on Forensic Science. To critics, it appears as though the Justice Department is reluctant to adopt any new standards that would take power away from prosecutors or law enforcement.
One such critic is Barry Pollack, the president of the National Association of Criminal Defense Lawyers. He stated that it is common knowledge amongst defense attorneys that the validity of scientific evidence and testing has been overstated by law enforcement for years. He went on to say that the report to the President provided even more evidence that flawed analyses were consistently being used in courts, and furthermore, that those analyses were leading to wrongful convictions.
Law-enforcement officials, on the other hand, have stated that the report’s findings, if adopted, would lead to many “unwarranted challenges” in cases where defendants had been correctly convicted. The FBI also disagreed with much of what the report said. In a statement, an FBI official said the report “makes broad, unsupported assertions” about scientific testing, and forensic science in general. The official further attacked the Council for not mentioning any published research studies, which may have already met the report’s criteria for scientific testing.
The question for many now is whether the Justice Department will continue to reject any and all recommendations for improving scientific analyses. If it does, many defense attorneys worry that conviction rates for those who are innocent will continue to rise. This poses ethical and moral questions to prosecutors across the country, as they must now determine how to handle evidence that may not be reliable. At the very least, this issue has made its way into the spotlight and will hopefully be discussed more in the future.