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Current Issues in the Law: Forensics

4/16/2009

By Jules Epstein

The world of forensics – the application of science to investigating and resolving disputed issues in criminal law – is exploding. As we learn more, the push to incorporate solid science into the courtroom continues; and at the same time, questions about older disciplines, once presumed reliable, raise anew the issues of admissibility or restricted use. Each of these trends will be explored at the Current Issues in the Law course in West Yellowstone, June 21-25, 2009, in addition to other current issues topics.

The trend toward expanded admissibility is in the use of expert knowledge in eyewitness identification cases. The phenomenon of DNA exonerations has confirmed that the single most recurring cause is that of a mistaken identification - the process where a sincere but incorrect witness says “that’s the person.”

“Current Issues” will explore the most recent psychological findings that explain how such a mistake can occur, and raise and seek to address a series of overlapping legal issues - whether and when expert witnesses should be allowed to testify in eyewitness cases; the scope of such testimony; and the role science can play in helping police and prosecutors implement newer identification investigation techniques that can reduce the risk of mistaken identifications. While the last topic may appear to be more appropriate for a policy change in the executive branch, or for model legislation, “Current Issues” will also address the issue of what role the bench may play when neither branch implements such reforms and the defense seeks to have the court either order their use or suppress evidence when they are ignored.

While the ‘push’ is for the admission of eyewitness identification, courts must now anticipate motions to exclude or limit expert opinion in more traditional areas of forenssics - handwriting, latent print and ballistics evidence. The impetus for this comes from the February, 2009 National Academy of Sciences (NAS) report STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD. The report’s basic findings are as follow:

• Most importantly, that there are insufficient studies to allow these disciplines to state that the source of the evidence [the fingerprint, the fired cartridge case, etc.] came from this person or firearm to the exclusion of all others.

• The disciplines do not have known error rates.

• The disciplines do not have uniform standards/metrics for deciding what is/is not a match.

• The disciplines often deviate from model scientific practices, in particular in not having “blind” testing, or in having labs interwoven with prosecuting or law enforcement agencies.

What are the challenges this will present to trial judges nationally? In a Daubert jurisdiction, reliability challenges may seek to limit forensic testimony to establishing similarities without a conclusion of “individualization” or “source attribution.” In Frye jurisdictions, courts will have to determine whether a determination of “general acceptance” can be revisited and, if so, whether the NAS report undercuts or eliminates general acceptance. If the answer to either question is “no,” courts will then have to address the right of defendants to present the NAS findings as trial evidence undercutting the claim of the prosecution expert. This will also raise financial issues as indigent defendants will seek funds for such assistance.

These forensics issues go to the heart of reliability determinations in criminal cases. The focus of “Current Issues” will be to flesh out the legal and practical problems they raise. To register or learn more about Current Issues in the Law, please call the registrar’s office at 800-255-8343.

Jules Epstein is Associate Professor of Law at Widener University School of Law (Delaware) and a member of the faculty of the NJC. He will be one of the three faculty members at Current Issues in W. Yellowstone.