FBI and DOJ Vow to Continue Using Junk Science Rejected by White House Report
Apparently the FBI and DOJ operate independently of the White House, which may in fact be true: it’s not a good idea for the President to be deciding what the DoJ and FBI should do, since they should follow the law. (It’s probably also not a good idea for the President to decide on his own authority to have American citizens killed with no due process and certainly no trial.)
Jordan Smith reports in The Intercept:
Although a report released this week by the President’s Council of Advisors on Science and Technology concludes that there is scant scientific underpinning to a number of forensic practices that have been used, for years, to convict thousands of individuals in criminal cases, the U.S. Department of Justice has indicated that it will ignore the report’s recommendations while the FBI has blasted the report as “erroneous” and “overbroad.”
The report, titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” concludes that a number of common, pattern-matching forensic disciplines – bite mark analysis, fingerprint and firearm comparison, shoe tread analysis, and complex DNA mixture analysis – need additional support to be deemed scientifically valid and reliable – a conclusion in line with that reached in the groundbreaking 2009 report on forensics issued by the National Academy of Sciences National Research Council.
In a statement reported by the Wall Street Journal, Attorney General Loretta Lynch said that the agency remains “confident that, when used properly, forensic science evidence helps juries identify the guilty and clear the innocent, and the department believes that the current legal standards regarding the admissibility of forensic evidence are based on sound science and sound legal reasoning.” As such, she said, while “we appreciate their contribution to the field of scientific inquiry, the department will not be adopting the recommendations related to the admissibility of forensic science evidence.”
The DOJ did not respond to The Intercept’s request for additional information, but based on her statement, it appears Lynch is saying there’s simply nothing to see here and that the criminal justice system is working just fine.
The Intercept first reported on the report’s conclusions earlier this month, after obtaining a draft copy. The text of the final report, released Sept. 20, appears to be nearly identical to the leaked draft.
Foundational validity and reliability are essential to shore up forensic practices, the report concludes – attributes that are largely absent in the disciplines it reviewed, which rely heavily on the subjective determinations of practitioners. Pattern-matching forensics involve an examiner determining whether a piece of crime scene evidence can be visually matched to a suspect – whether an alleged bite mark on a victim’s hand matches a suspect’s dentition, for example, or whether a partial, or smudged, fingerprint found at the scene of a crime matches a clean print obtained from a suspect – determinations currently based primarily on a subjective eyeballing of the objects at issue.
“Foundational validity requires that a method has been subjected to empiricaltesting by multiple groups under conditions appropriate to its intended use,” reads the report. Such studies must demonstrate that a practice is “repeatable and reproducible” and must provide “valid estimates of the method’s accuracy” – in other words, a meaningful error rate. “The frequency with which a particular pattern or set of features will be observed in different samples, which is an essential element in drawing conclusions, is not a matter of ‘judgment.’ It is an empirical matter for which only empirical evidence is relevant,” the report continues. “For forensic feature-comparison methods, establishing foundational validity based on empirical evidence is thus a sine qua non. Nothing can substitute for it.”
For years forensic practitioners in many of the disciplines included in the White House report (as well as in the National Academy of Sciences report) have overstated in court the validity and reliability of their results. Consider the case of Bill Richards, for example, who spent nearly 23 years in prison for murdering his wife Pamela before the California Supreme Court last May overturned his conviction, concluding that Richards had been a victim of junk science and false testimony. In his case, a renowned forensic dentist testified that a mark found on Pamela’s hand was a clear match to Richards’s supposedly unique dentition. Notable, the dentist testified, was that Richards had an under-erupted canine tooth that would account for a void in the alleged bite-mark injury to Pamela’s hand; only “one or two or less” people out of 100 would have such a feature, he testified. The dentist, Dr. Norman “Skip” Sperber, ultimately recanted that testimony, saying that it had no scientific basis. The new White House report notes that it is unlikely that bite-mark evidence will ever be scientifically supported.
In all, the report makes eight overarching recommendations for improvement— to the National Institute of Standards and Technology, to the FBI, to the attorney general, and to the judiciary — and called for “a vigorous research program” to improve forensic sciences building off “recent important” research conducted into fingerprint analysis, that the judiciary take into account actual scientific criteria when assessing whether forensic evidence and testimony should be allowed into court, and that the attorney general should “direct attorneys appearing [in court] on behalf of the [DOJ] to ensure expert testimony in court about forensic feature-comparison methods meets the scientific standards for scientific validity.”
“Where there are not adequate empirical studies and/or statistical models to provide meaningful information about the accuracy of a forensic feature-comparison method,” the report concludes, “DOJ attorneys and examiners should not offer testimony based on the method.” And in the event that testimony is necessary, the report says, the expert should “clearly acknowledge to courts” the lack of scientific evidence to support the underlying forensic practice.
Under “current legal standards,” and under the U.S. Supreme Court ruling in the 1993 case Daubert v. Merrell Dow Pharmaceuticals, federal judges are tasked with acting as gatekeepers over what expert testimony will be allowed into evidence. Where scientific – or supposedly scientific – evidence is concerned, the Supreme Court concluded that before allowing expert testimony in a case the trial judge must ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable” which necessitates, in part, an assessment of “whether the reasoning or methodology underlying the [expert’s] testimony is scientifically valid.”
This, the new report correctly notes, is where science and the law intersect. But in practice, legal scholars note, the Daubert standard has not kept pseudoscience out of the courtroom. And when courts rely on precedent to allow certain questionable forensic practices into evidence the result is something like a feedback loop. “Bite-mark analysis has passed every Daubertchallenge that it has ever faced and [yet] there isn’t a scientist on the planet that would argue that bite-mark analysis is a valid and reliable science, aside from the few practitioners who still cling to that belief,” said Chris Fabricant, director of strategic litigation for the Innocence Project and a vocal critic of the use of junk science.
Fabricant said the DOJ’s rejection out-of-hand of the White House report is disheartening. “You would think that they would want to get it right. The idea is not that we’re going to spring open the jailhouse doors and let everybody free. The idea is that scientific evidence ought to be scientific,” he said. “To simply reject the call for more research and to say that Daubert is sufficient is ludicrous, because Daubert is obviously not sufficient,” he continued. “So, the idea that you would point to the courts and to precedent for the idea that forensic evidence is good enough for government work is a joke.”
Attorney General Lynch was not alone in her rejection of the science council’s report. The FBI also . . .
It’s important and it shows clearly how out of whack a good part of the government is.