| StylinRed | 07-22-2013 04:33 AM |
And FBI flawed hair sample analysis drawing reexamination of thousands of cases
national academy of sciences also say bite mark, burn mark, etc analysis are also flawed Quote:
Flawed Evidence Under a Microscope
Disputed Forensic Techniques Draw Fresh Scrutiny; FBI Says It Is Reviewing Thousands of Convictions
The National Academy of Sciences said bite-mark evidence is unreliable. Above, dental molds used in an experiment to show bite marks on skin.
A series of recent court decisions and policy changes is starting to reshape how the U.S. justice system handles disputed or debunked forensic techniques used in thousands of criminal convictions.
The changes affect crime-show staples like identifications made using hair samples, burn patterns, bite marks, ballistics evidence and handwriting analysis, among others. Over the past two decades, many scientists have said these disciplines are unreliable and subject to bias, but courts and law-enforcement authorities had until recently done little to address them.
On Thursday, the Federal Bureau of Investigation said that a sweeping review found its experts used microscopic hair comparison to help identify suspects in at least 2,100 convictions from 1985 through 1999, including 27 death-penalty cases. Before the adoption of DNA testing around 2000, investigators routinely relied on visually matching hairs from suspects with those at crime scenes, but recent exonerations have cast doubt on the practice. The FBI said it would now review the 2,100 cases to see if its experts exceeded the bounds of science in their lab reports or testimony. The number under review could increase as the FBI studies more cases.
The Justice Department also said, in a rare move, that it wouldn't raise procedural objections if the defendants in these cases seek to have their convictions overturned, and that it would notify defendants—rather than just prosecutors, as is typical—of any errors found in the cases.
"This is, one, a huge acknowledgment that in thousands of cases, invalid scientific testimony was proffered," said Peter Neufeld, co-founder of the Innocence Project, a nonprofit that is aiding the FBI in its review. "And, two, it's a whole loosening of the rigid rules [of the postconviction process]…as people realize that the system isn't as perfect as we thought."
The FBI review accelerates a shift toward greater scrutiny of questioned forensic techniques—and raises difficult questions about how to address thousands of convictions that relied on potentially flawed evidence.
After decades of inaction in addressing criticized forensics, the past year has marked a sea change. The Justice Department established a National Commission on Forensic Science to set guidelines for forensic disciplines. The Texas state fire marshal launched a review of arson convictions, while the Mississippi Supreme Court stayed an execution hours before it was scheduled after the Justice Department sent letters admitting that FBI experts erred in their testimony.
And in April, responding to the FBI's hair-comparison review, the national organization that accredits state and local crime labs urged them to determine if they need to conduct their own audits of cases that used similar hair analysis. "We have an ethical obligation to take appropriate action if there is potential for, or there has been, a miscarriage of justice," the Laboratory Accreditation Board at the American Society of Crime Laboratory Directors wrote to the crime labs.
Meanwhile, legal experts are watching several trials that involve criticized forensic disciplines, including a Manhattan murder trial in which a judge is set to rule soon on whether identifications using bite marks can be used as evidence. The decision is expected to be one of the biggest test cases for the justice system's response to claims of flawed forensics.
The developments are "a wonderful start" toward addressing cases that relied on flawed forensics, said former federal prosecutor Kenneth Melson, the past president of the American Academy of Forensic Sciences. But, he cautions, "there's a long way to go and many bridges to cross."
Some prosecutors and forensic scientists have lamented that the criticisms of forensic techniques go too far and that many are still useful. Dr. Peter Loomis, president-elect of the American Board of Forensic Odontology, said that although bite-mark analysis shouldn't be used to identify a suspect, "it's not junk science.…It can be used to either include or exclude a suspect."
Pressure from activists and media exposés of flawed forensic practices led Congress in 2005 to commission a report by the National Academy of Sciences. Published in 2009, it concluded that besides DNA analysis, "no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source." Expert witnesses, the report said, have consistently overstated to juries the value of forensic techniques and "the courts have been utterly ineffective in addressing this problem."
Still, many courts have continued to admit evidence based on such practices, and some appeals judges have been reluctant to reconsider convictions. That's in part because, unlike with DNA evidence, the doubts raised about forensic evidence generally can't prove a person's innocence. Indeed, in cases without DNA evidence, exonerations remain rare.
Advocates for an overhaul are now focused on a New York murder case in which the judge has called one of the first-ever hearings on the admissibility of bite marks. In the case, Clarence Dean is charged with killing a woman in a Times Square hotel. For the prosecution, a forensic dentist matched a bite mark on the victim's body to Mr. Dean's teeth.
The National Academy of Sciences has said bite-mark evidence is unreliable and not based on objective science. Bite marks can be distorted by the elasticity of skin, scientists say, and controlled studies have shown different experts produce widely different results, with high rates of false positives.
Mr. Dean's attorneys argued the evidence didn't meet the court's scientific standards. In a rare move, Justice Maxwell Wiley called a hearing to decide.
Challenges to the scientific admissibility of evidence—called Daubert or Frye challenges after past court decisions—are relatively common. But judges have almost always admitted evidence based on the discredited forensic disciplines, citing precedent in past cases, said Nancy Gertner, a retired federal judge who issued several landmark rulings that labeled ballistics, handwriting and arson testimony as invalidated science.
In May, the Justice Department acknowledged the limitations of ballistics evidence in a Mississippi murder case. In Willie Manning's 1994 conviction for killing two college students, an FBI agent used analysis of bullet markings, called toolmarks, to connect him to the bullets used in the murder. In three letters to the prosecutor, a Justice Department lawyer said FBI experts overstated the value of their analyses of toolmarks and hair in the case. "In some cases, FBI Laboratory examiners exceeded the limits of science," the lawyer said.
Judge Gertner said it is imperative the justice system resolves any questions around potentially flawed forensic sciences. "There are two issues: People in jail on the basis of flawed evidence and the people who are being tried tomorrow on the basis of flawed evidence."
Write to Jack Nicas at jack.nicas@wsj.com
| Disputed Forensic Techniques Draw Fresh Scrutiny - WSJ.com
to read more American justice scandal: FBI could be at fault in 27 death row cases - Americas - World - The Independent |
