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June 01, 2016

Sua Sponte: A Judge Comments

Two judges with forensics expertise comment on "Mass Forensics Errors."

Hons. Christopher J. Plourd and Ron Reinstein

Download a printable PDF of this article. (The Sua Sponte begins on page two of the article.)

In Bad Hair: The Legal Response to Mass Forensic Errors, Professor Brandon Garrett begins by describing the infamous Santae Tribble case. Fortunately, we have learned a lot since his conviction in 1980, and not just in microscopic hair analysis. It is clear that many forensic witnesses in years past overstated their conclusions and that prosecutors also overstated the experts’ conclusions in their jury arguments. But one caveat is that, in many instances, that was the “science” as it was known at the time. We have learned much since the advent of DNA analysis about where the system went wrong. In most cases, it is unfair to overgeneralize past forensic science testimony as widespread fraudulent forensic science.

Of course, while some conclusions were overstated, not every defendant was factually innocent. Often other evidence pointed toward guilt. That said, even the overstated conclusions likely would warrant a new trial or, at a minimum, an evidentiary hearing. There is no excuse for withholding evidence or laboratory procedures, especially if the undisclosed evidence or procedure might lead to the exclusion or exoneration of a suspect. Transparency and disclosure of any and all relevant information to the defense and the courts is essential. While Professor Garrett is critical of government agents, including forensic scientists, it also should be noted that defense attorneys, trial judges, and appellate courts at the time often didn’t challenge or critically review forensic evidence and the conclusions flowing from it.

Errors and omissions of the type that occurred in the Tribble case often still happen today. But one very positive step to correct that has been the increasing effort to provide forensic science education for prosecutors, defense attorneys, and judges in the various forensic science disciplines, as well as explaining the role human factors play in forensic analysis. The Texas Forensic Science Commission and the Arizona Forensic Science Academy, among others, have provided a model for such training. Also, the National Commission on Forensic Science’s subcommittee on training and education has made great efforts to provide an education template for the improvement of the forensic sciences.

Laboratories and forensic scientists are now advocating for and developing improved, consensual standards, guidelines, and forensic practitioner ethics codes. To its credit, the FBI has conducted inquiries in the area of microscopic hair analysis, lead bullet analysis, latent print comparisons, and DNA mixture interpretation—some in conjunction with other stakeholders such as the Innocence Network and the National Association of Criminal Defense Lawyers. As Professor Garrett writes, the FBI’s response and cooperation in the microscopic hair analysis reexamination project provides a road map for future collaborative reviews.

The 2009 National Academy of Sciences report led to formation of the National Commission on Forensic Science (by the Department of Justice) and the Organization of Scientific Area Committees (by the National Institute of Standards and Technology), both of which seek to improve the field of forensic science as well as the intersection of science and law because of the deficiencies found in various reviews. Those reexaminations should not necessarily be limited to cases that went to trial; they should also include those resolved through plea bargains, given the many DNA exonerations of people who pleaded guilty. The form of these reviews should be based on recommendations from multi-stakeholder bodies like the National Commission on Forensic Science. Professor Garrett’s recommendations as to notice, bar participation, post-conviction time bar waivers, and model statutes or regulations are important steps in a collaboration to help ensure justice is served.

Progress to right the wrongs of the criminal justice system has been slow, but it is beginning to speed up, with forensic scientists now getting together to improve their disciplines. Statistical evaluation of forensic methods and technical concepts are being used to better understand how past errors occurred. Fundamental research has identified human factor strategies for maximizing reliability in real-life forensic investigations. Based on our experience, we want to strongly commend forensic scientists for their demonstrated commitment to improve reliability in their field and thereby improve the delivery of justice.

Hons. Christopher J. Plourd and Ron Reinstein

Christopher J. Plourd is the presiding judge of the the California Superior Court, County of Imperial; chairman of the Legal Resource Committee of the National Institute of Science and Technology’s Organization of Scientific Area Committees; and a fellow of the American Academy of Forensic Sciences, Jurisprudence Section.

Ron Reinstein served as a judge on the Superior Court of Arizona and is now a judicial consultant to the Arizona Supreme Court, vice chair of the Legal Resource Committee of the National Institute of Science and Technology’s Organization of Scientific Area Committees, and chair of the Arizona Forensic Science Advisory Committee.