“Acculturating Forensic Science: What is ‘Scientific Culture’, and How Can Forensic Science Adopt It?” by Simon Cole

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February 3rd, 2012

The topic for this special issue is: “How should judges, legislators, and the legal community in general respond to the National Research Council of the National Academy of Sciences’ 2009 report, Strengthening Forensic Science in the United States?”  I think there are some fairly easy answers to this question that should not brook a great deal of controversy or disagreement.  First, validation studies[1] should be performed for forensic assays[2] for which they have not yet been performed.[3]  Although the NAS Report is fairly clear about the absence of validation studies, some controversy remains over whether validation studies have been performed for some assays.  Therefore, Dr. Bohan suggests that “validation investigations” should be performed to assess the state of validation of each assay.[4]  These might be followed by validation studies.

Second, the proposed National Institute of Forensic Science (NIFS) should be created.[5]  Certainly, there are potential downsides and criticisms, but creating NIFS is probably better than the status quo.  If created, the Institute should be in the form proposed by the NAS Report.[6]  Crucial aspects of this form include that it should be an independent agency, especially independent of law enforcement, and a proper scientific organization staffed by scientists.  If it is “captured”[7] by law enforcement, it becomes less obvious that it would be a force for improvement rather than stagnation.

Third, the reporting of forensic analyses results should be reformed and standardized such that they are scientifically supportable.[8]  Judges should restrict the admissibility of forensic assays that lack the aforementioned validation.[9]

Finally, judges, legislators, and the legal community should contemplate the broader meaning of the NAS Report’s conclusion that the courts’ handling of forensic evidence over the past couple of decades has been “utterly ineffective.”[10]  Setting forensic evidence aside, what weaknesses in our current system of justice does this “utter ineffectiveness” identify?  Reforms to the justice system should be enacted so that in the future, courts’ handling of scientific issues is less likely to become a glaring embarrassment to the legitimacy of the courts.

[Please download the attached PDF file to see the full document]

   [1]. “[A] validation study is designed to measure the accuracy of a scientific technique.  The Study attempts to identify and quantify the inherent margin of error in the technique.”  Edward J. Imwinkelried, Coming to Grips With Scientific Research in Daubert’s “Brave New World”: The Courts’ Need to Appreciate the Evidentiary Differences Between Validity and Proficiency Studies, 61 Brook. L. Rev. 1247, 1254 (1995) (internal citations omitted).

   [2]. An “assay” might also be called a “forensic test” or a “forensic technique,” and would include, inter alia, tests of techniques involving the comparison of latent prints, firearms and tool marks, handwriting identifications, and bite marks.

   [3]. Nat’l Res. Council, Nat’l Academy Sci., Strengthening Forensic Science in the United States: A Path Forward 22 (2009) [hereinafter NAS Report].

   [4]. Thomas L. Bohan, Strengthening Forensic Science: A Way Station on the Journey to Justice, 55 J. Forensic Sci. 5, 6 (2010).

   [5]. NAS Report, supra note 3, at 19.

   [6]. Id.

   [7]. Roger Koppl, Who Will Capture Forensic Science?, ThinkMarkets (Apr. 6, 2009), http://thinkmarkets.wordpress.com/2009/04/06/who-will-capture-forensic-science/#more-1289.

   [8]. NAS Report, supra note 3, at 21.

   [9]. Id. at 85-86.

  [10]. Id. at 109.