Mimesis Law
1 May 2017

The Cost Of Reliably Unreliable Evidence

Mimesis Law (Apr. 20, 2015) — Of the defendants convicted, 32 ended up on death row, and 14 have either been executed or died in prison.  But hey, better dead than red, right? Via the Washington Post:

The Justice Department and FBI have formally acknowledged that nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.

Of 28 examiners with the FBI Laboratory’s microscopic hair comparison unit, 26 overstated forensic matches in ways that favored prosecutors in more than 95 percent of the 268 trials reviewed so far.

Ours is an evidence-based system, and within the pantheon of strong evidence, the only thing more damning than eyewitness identification is expert evidence.  When I give talks about eyewitness identification, I open with a slide of a tweet by badass astrophysicist Neil DeGrasse Tyson.

Tyson twit

But then, everybody knows that seeing is believing, so why bother questioning the validity of eyewitness identifications?  And yet, as unreliable as they are, forensic science is a cesspool far worse.

It’s not that every defendant against whom the FBI lied (since there is no reason to mince words here) about the efficacy of hair analysis was innocent, or didn’t have other, totally valid evidence proving guilt.  But it is about another bit of the puzzle of conviction based upon legal stupidity when it comes to science, the manufacture of phony law enforcement sciences that provide magic bullet testimony for conviction, bolstered by similarly phony academies that exist to give the faux science the appearance of substantiation, and the concept of precedence.

University of Virginia law professor Brandon L. Garrett said the results reveal a “mass disaster” inside the criminal justice system, one that it has been unable to self-correct because courts rely on outdated precedents admitting scientifically invalid testimony at trial and, under the legal doctrine of finality, make it difficult for convicts to challenge old evidence.

This time, it turns out that microscopic hair analysis is malarkey.  And it sounds so cool, so ripe for a TV show.  Bite mark analysis? Crap.  Fingerprint analysis? Pretty much the same.  Drug analysis? Sometimes. Dog sniffs? Spare me. DNA?  Not yet, but then, we believed with all our heart and soul in every fake forensic science until it failed to find support in scientific method, or was disproven by subsequent science.

That we’re back at the same trough of another failed science that did its voodoo putting people in prison, people in the executioner’s chair, is pathetic.  The NACDL and Innocence Project rightly praise the FBI for coming somewhat clean on its “experts” lying to convict all these years.  After all, they didn’t stonewall the truth. This time. It’s certainly better than the alternative.

Yet, tell it to the guy who did 30 years, and ask him if he wants to send roses to FBI Director Jim Comey for being such an honest guy.  I would say “ask the guy they executed,” but you can’t because they’re dead.  It’s not good enough to play catch up again. Always catch up.

Garrett nails the problem, though it’s hardly a mystery. People don’t become lawyers because they’re masterful scientists, and even fewer become judges. The systemic problem has been obvious forever, that one judge admits into evidence some junk science that feeds a jury its conclusory finding and removes the heavy burden of actually proving guilt. Hey, the expert said so, and what else can a juror do?

The solution seems obvious, revisit every forensic science held admissible for re-examination as to its soundness and accuracy, but that would present an insurmountable problem as it would impair the smooth running of the conviction machine.  So what if we learn, inch by inch, that the science in which we repose sufficient faith to kill a man turns out to be an unscientific sham, a phony construct put together by an industry whose purpose it is to provide magic bullets that give us faith in our legal system?  If they weren’t guilty, they wouldn’t be there, right?

As the system matures, and we learn that our most reliable evidence turns out to be neither, we are given the opportunity to learn from our mistakes.  It means that there is a good chance that some guilty guys will go free, not because they didn’t do the crime but because there is no sound way to prove it.  And we are unwilling to take that chance, Blackstone’s ratio be damned?

All of which likely sits okay with most people, just as long as it isn’t one of their loved ones in the dock being convicted on the miracle of duct tape analysis.  Because the American Academy of Duct Tape Experts, comprised entirely of former assistant managers at the local Dairy Queen, says it’s 98.3% certain that the guy is guilty.  Who can argue with an expert?

Main image via Flickr/my_southborough.

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