Forensic Education and the J.D. Curriculum

The responsibility for these wrongful convictions and unsupported verdicts lies heavily with the purported forensic experts. In an adversary system, experts may demonstrate an implicit alliance bias—that is, be influenced by an unconscious cognitive bias for the side of the case that hires them—or they may just be intellectually dishonest—that is, simply be inclined to craft an opinion to suit their side of the case or that will help market their services in future cases. These are powerful influences, and forensic scientists have not been able to adequately self-regulate. They often belong to guilds that promote their forensic specialties and propound aspirational standards but that are more membership-oriented than insistent that standards be met. Experts who are striving for excellence try to move beyond self-interest through organizations like the American Academy of Forensic Sciences and programs like the Organization of Scientific Area Committees under the National Institute of Science and Technology. However, that is not enough. The so-called experts willing to sell their wares while ignoring standards continue to find work.

Thus, it is the lawyers and trial judges who have the ultimate responsibility for assuring that forensic testimony maintains the highest standards of science. Studies show that most trial judges do not have special training in forensic science, and, regrettably, neither do most practicing lawyers. Continuing judicial and legal education courses on forensics are available, but only a small percentage of judges and lawyers participate. As a result, lawyers find experts who will do their bidding, and judges usually rule that the proposed testimony is admissible and that the jurors can determine what weight to give it. Of course, jurors are selected (or de-selected) to serve based on the criterion that they have no expertise. Jurors, far from being critical of expert testimony, are unduly influenced by it. Because most present judges and lawyers are behind the forensic science curve, a new paradigm is needed to prepare for contemporary litigation, much of which involves forensic expertise.

That new paradigm involves law students—the future lawyers and judges. Law students must become educated in forensic science. In this writer’s opinion, there should be mandatory education in forensic science as a part of the JD curriculum. Currently, there are only two weeks on forensic science, if that, in a semester class on evidence that spends seven weeks on the hearsay rule. Some schools do not require evidence at all, and some that do never get around to teaching those two weeks on forensics. In order to prepare students to deal with forensic science issues, more has to be done. This is not to train law students to be forensic scientists; it is to give them the basics so that they can work with and challenge forensic experts.

The first objective is to expose students to what scientists do when investigating a subject, collecting data, analyzing it, and forming hypotheses to compare to the data. Scientists have guidelines and limits when reporting their findings and opinions. Students need to learn about falsifiability and the concepts of foundational validity, validity as applied, proficiency, controls, peer review, and the rigor of offering a scientific opinion outside of the forensic context. The Supreme Court has said that the trial court (with the help of the lawyers litigating the case) must make sure the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.”²

Students have to learn that nothing is proven. Science deals with uncertainty. Scientific analysis and testing are subject to error at the theoretical level, the practical level, and the personal level. Cognitive bias as well as errors of measurement at all levels can affect results. Students should learn the ways in which forensic investigations may differ from controlled experimental work. The world is messy, and collection of evidence from a crime scene may not be as reliable as that collected in other scientific investigations. Samples may be inadequate or subject to degradation or contamination. Controls may not be available. Students should learn how all of these factors may affect the nature and extent of a proper forensic opinion.

Students should be exposed to representative work of forensic scientists. While they will not become proficient in the applied science, they will learn how forensic investigations work in various fields, including testing, proficiency, accreditation, data analysis, and actual report writing and testimony. They will learn how working with law enforcement in the investigative stages of a case might involve a different skill set and compromise the objectivity necessary to form ultimate opinions for forensic reports or testimony.

Finally, students should learn how to work with forensic scientists in preparation for the presentation of an opinion. Students will need to understand the laws relating to admissibility of expert testimony. They will have to learn the role of the proponent of the admissibility of an expert’s testimony as well as how to object to or limit the testimony as an opponent. This means the lawyer must educate the judge on the law and the limits of expert testimony. Ultimately, they must be prepared to make sure that the court limits testimony to opinions that are of the type that a true scientist would offer and are not tainted by advocacy, speculation, or overreaching.

Students who belong to the Science and Technology Law Section and who read this journal are in a special position to lead the way in this new paradigm. Forensics are involved in almost every criminal case and many civil cases. While, in this writer’s opinion, a class in forensic evidence should be required, that is not yet a reality. Nevertheless, law students who want to be prepared for contemporary litigation can usually find an elective in a forensic subject or, if they are lucky, an overview class on forensic science. They might be eligible for law school credit for taking a graduate level class from another school in the university. Educating law students who will become lawyers and, in turn, will educate judges—or who will eventually become judges—is the key to raising the level of forensic science in the courtroom.

Endnotes

1. The subject matter of this brief article is covered in more detail with citations to sources in this author’s article, Forensics: Educating the Lawyers, 43 J. Legal Pro. 221 (2019), https://ssrn.com/abstract=3303376.

2. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).