Nice feature in the Post about the continuing problems with forensic science. This is in the news this week because the FBI, prodded by an earlier Post investigation, has re-opened 27,000 cases in which data from its crime lab helped to secure a conviction. In particular, they discovered that their lab technicians had been testifying in court that hair from crime scenes was "certainly" from the suspect, when there is no certainty at all about this method. This was proved conclusively in the 1970s and the FBI modified its own guidelines to say that hair "matches" should not be used except as supporting evidence. But their own "experts" never got the memo and never stopped testifying about supposed hair matches, which have helped convict hundreds of people. The Post's summary of this method says, "Hair and fiber cannot be identified to one source." The same summary also notes that the marks guns leave on bullets are not unique and matching them is difficult, elemental analysis of bullet lead is "unreliable and potentially misleading," bite mark analysis lacks any supporting evidence whatsoever, and DNA works if you do it right but police and crime labs often mess up the samples, nobody knows how often.
By way of relating this to cases in the news, let me say I am personally convinced that George Zimmerman brought on the confrontation that led to Trayvon Martin's death, seriously mishandled the situation, and then lied about being attacked out of the blue. The verdict was nonetheless correct. We have no way of knowing beyond reasonable doubt what really happened. The scandal is that we send tens of thousands of poor black men to prison without giving any consideration to the real weight of evidence in their cases.
Given what sociologists have shown about the unreliability of eyewitness testimony, the ongoing scandal of what we call forensic science, and the steady stream of revelations of police and prosecutor misconduct, I doubt the standard of beyond reasonable doubt could be met to my satisfaction in half of criminal cases. Maybe not in 10 percent. It may be that our society could not survive if we really took our own laws and standards seriously, but if so we should acknowledge that and think hard about what it means.
I would make two points. First, my understanding is only a small portion of criminal cases ever actually get to a jury's vote. So the huge numbers in our incarcerated population aren't based on the "beyond a reasonable doubt" standard, but on the "this is what was worked out" standard. This may not be edifying, but the emphasis on such negotiations is built deeply into our legal system, which anyway seems to me more fundamentally at home in the law suit form of trial than in the truth-finding investigative form. I agree about Zimmerman, and I think the Martins should now sue his ass to kingdom come.
ReplyDeleteSecond, I'm wary of the injunction that a society should think hard about its contradictions. Yes, there are some issues--civil rights, gay marriage, etc.--where this process has been unavoidable and has worked out in ways I sympathize with. But in principle I think tussles over fundamental issues are not to be sought out where they aren't forced upon us. The usual result is ideological rigidity and civil conflict, followed eventually by exhausted compromise. I'd argue the current crisis in our politics derives in large part from certain conservatives thinking too hard about contradictions and deciding they have to get rid of them.
You are probably right about avoiding contradictions wherever possible. I wish people would stop bringing up evolution and creationism in schools, for example, since no resolution seems possible.
ReplyDeleteAnd of course most criminal cases are plea bargained. But I believe we routinely convict innocent men of felonies, and this is an issue that bothers me a great deal. I think our casual attitude toward forensic evidence really needs to be fixed -- science, after all, is something we are really good at, and we could clarify these issues for a billion dollars or so if we cared to. I am also bothered that there are no repercussions for prosecutors who commit serious offenses like concealing evidence from the defense; I think they should be fired and disbarred at minimum.
Yes, you're right that this is something the legal profession and police institutions should think hard about how to get right. It's absolutely infuriating that someone could be convicted because the hair analysis department didn't get the memo, or decided they could ignore it.
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