A recent article in the Wall Street Journal has quite a few members of the expert witness community up in arms. In “Rejecting Voodoo Science in the Courtroom,” Alex Kozinski, a judge on the Ninth Circuit Court of Appeals, asserts that many forensic evidence techniques used in criminal trials “are flawed, some irredeemably so.” The techniques in question include DNA, fingerprint, bitemark, firearm, footwear, and hair analysis.
Kozinski bases this assessment on a new study from the President’s Council of Advisors on Science and Technology (PCAST). He neglects to mention that he was a senior advisor to the PCAST report, a fact noted in his bio, but certainly comes down in favor of its findings. “Why trust a justice system that imprisons and even executes people based on junk science?” he asks. He questions both the science itself as well as its practitioners. The disciplines are “bad science,” “mumbo jumbo,” and have “absolutely no scientific basis,” while forensic scientists, according to Kozinski:
- “See their job as helping to get a conviction”
- “Fabricate evidence or commit perjury”
- “Are poorly trained and supervised”
- “Overstate the strength of their conclusions”
This feels like a case of tremendous oversimplification, characterizing entire fields of study and practice based on the shortcomings of a few. Yes, some forms of forensic evidence have been questioned or discredited based on evolving science. That’s a good thing. It shows progress. It doesn’t mean that when originally presented, that evidence or witness was being deliberately misleading. And yes, there are expert witnesses who are bad apples. Some do succumb to real or imaginary pressure to reach a certain verdict, and a very few may even have nefarious intentions, for whatever reason. But the vast majority of experts called upon to analyze evidence do so to the best of their ability, and with great knowledge and insight into their chosen area.
Several of those experts made their opinions of Kozinski’s article known to the WSJ in a follow-up piece. They all make great points that poke solid holes in the judge’s treatise: The constantly-changing nature of science. The courts’ system of checks and balances in the form of opposing counsel and witnesses. The assumed ineptitude of defense counsel. The assumed “starring role” that evidence plays in every single case. The fact that law enforcement has “inadvertently found so many… guilty clients using such ‘unreliable’ evidence.” I like these responses because they emphasize facts and experience, not the bruised egos of experts who wax defensive when their expertise is challenged.
As a result of all of this supposed voodoo science and incompetent and/or outright deceptive witnesses, the article and apparently the PCAST study recommend “developing standards for validating forensic methods, training forensic examiners, and making forensic labs independent of police and prosecutors.” All of which makes perfect sense. I don’t think anyone would argue with any of those ideas. I do wish, however, that Kozinski had chosen to highlight them without dragging entire disciplines and their experts down in the mud.