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Judges growing critical of ‘CSI’ evidence

http://content.usatoday.com/communities/sciencefair/post/2011/05/judges-becoming-more-critical-of-csi-evidence/1

Judges growing critical of ‘CSI’ evidence

By Dan Vergano, USA TODAY

The CSI: Crime Scene Investigation series makes it look easy, but forensic science doesn’t always do so well in the courtroom with judges. And a pair of upcoming studies in the Journal of Forensic Science suggests some judges’ suspicions are growing about the shakier types of scientific evidence.

In the studies led by Mark Page of Australia’s University of Newcastle, legal experts looked at U.S. cases since the 1993 Daubert v. Merrell Dow Pharmaceuticals Inc. and 1999 Kumho Tire Co. Ltd. v. Carmichael court decisions that set higher standards for scientific evidence in criminal cases. Previously, past use of a technique, such as fingerprints or ballistics, had been sufficient to allow their use in the courtroom. But the Daubert and Kumho decisions had allowed defense attorneys to challenge the reliability of the techniques and the experts championing them, on scientific grounds:

“After Daubert and Kumho, many scholars assumed that a large proportion of forensic evidence presented in criminal and civil courts across the country would now be subject to renewed judicial scrutiny. However, some quickly realized that the real question was not whether legal academics concerned with the reliability of forensic science could interpret Daubert to justify the results they desired, but whether judges would do the same. Studies on the admissibility of forensic science since the Daubert decision have revealed that courts across the United States have felt its influence, even in those jurisdictions that have not explicitly adopted a Daubert standard. Several authors have noted that ”some forensic sciences have been with us so long, and judges have developed such faith in them, that they are admitted even if they do fail to meet minimal standards under Daubert”. The courts thus still appear extremely reluctant to deny the admission of forensic science evidence testimony in both civil and criminal trials. The legal reasoning by which forensic science evidence is admitted, characterized by some as ”judicial gymnastics,” has also been the subject of much criticism,” says the first study.

In addition, scandals at police crime labs and a critical 2009 National Research Council report have also called forensic science (aside from DNA analysis) into question. So, the studies look at how judges are sizing up scientific evidence. The bottom line is that some are growing skeptical, but probably not enough.

In the first analysis, the team looked at 551 cases from 1991 to 2008 where defense lawyers challenged forensic evidence, particularly the 81 cases where judges threw out some or all of it. The leading cause of exclusion was the lack of reliability (36%) for techniques such as document analysis followed by (24%) expert witnesses making inappropriate statements. Says the study, “it is clear that there is a sizable proportion of forensic identification evidence that is failing to meet evidentiary standards in U.S. courts. It is also apparent that in such cases, the reliability of forensic identification science evidence, encompassing the concerns regarding the discipline’s underlying theory, the expert’s testimony, and their methodology, accounts for the majority of judges’ concerns regarding its admission.”

In the second report, the team looked at the reasons for those exclusions, findin that poor casework and unreliable techniques are increasingly chipping away at judge’s acceptance of some standard kinds of forensic evidence, such as custom experiments by experts or handwriting analysis. “Reliance on general acceptance is becoming insufficient as proof of the admissibility of forensic evidence. The citation of unfounded statistics, error rates and certainties, a failure to document the analytical process or follow standardized procedures, and the existence of observe bias represent some of the concerns that have lead to the exclusion or limitation of forensic identification evidence,” concludes the study.
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