Alan Gold, author of Expert Evidence in Criminal Law: The Scientific Approach.
Aug. 3, 2011 – A scientific or technological background is probably a prerequisite for a career in intellectual property law, but what about criminal law? One criminal defense lawyer says judges and lawyers should learn basic scientific principles to snuff out bad science.
Consider the placebo effect, the notion that patients can experience an improvement in health if they “think” they are receiving medicine. So sway a jury who “thinks” they are receiving accurate evidence based on impressive expert testimony (the placebo).
As Amelia L. Bizzaro wrote last year in the Wisconsin Lawyer, jurors familiar with forensic science terms from television “may believe the evidence to be more accurate than it really is, aligning it with their television experiences in which the evidence is always infallible.”
Alan Gold, a criminal defense lawyer in Canada who also studies U.S. evidence law and wrote Expert Evidence in Criminal Law: The Scientific Approach (2d Ed. 2009), says “science training can help attorneys ask the right questions, and deter jurors from giving undue weight to questionable expert testimony.”
The NAS report
A congressionally mandated report – released in 2009 by the National Academy of Sciences (NAS report) and the National Research Council – highlights the importance of science learning when it comes to scrutinizing expert opinions based on forensic science.
The report found serious flaws in the forensic science system. One of its principal authors, the Hon. Harry T. Edwards, noted the importance of scientific learning for lawyers and judges:
“I started the NAS project with no skepticism regarding the forensic science community,” wrote Edwards, a judge for the U.S. Court of Appeals for the District of Columbia.
“Rather, I assumed, as I suspect many of my judicial colleagues do, that the forensic disciplines are well-grounded in scientific methodology and that crime laboratories and forensic practitioners follow proven practices that ensure the validity and reliability of forensic evidence offered in court. I was surprisingly mistaken in what I assumed.”
Judge Edwards noted that dedicated and skilled forensic scientists often lack adequate resources, and the forensic science community is “plagued by fragmentation and inconsistent practices in federal, state, and local law enforcement jurisdictions and agencies.”
The NAS report has led to recent legislation to overhaul the forensic science system. The legislation would establish an Office of Forensic Science to “strengthen and promote confidence in the criminal justice system by ensuring consistency and scientific validity in forensic testing." It would require “education and training of judges, attorneys, and law enforcement personnel in the forensic sciences and fundamental scientific principles.”
Federal funding would be contingent on a state’s willingness to impose more stringent accreditation standards for forensic laboratories and scientists. Currently, an entry level position to be a forensic scientist at a Wisconsin state crime laboratory requires college-level science education. The state crime labs also provide on-the-job training programs.
The NAS report and recent legislation will be the subject of much discussion at the upcoming State Bar of Wisconsin, Criminal Law Section’s Sept. 15-16 program entitled “Forensic Evidence and the Search for Truth,” which will take place in Milwaukee.
Testing the testimony
Notwithstanding recent calls to provide more science education to lawyers and judges, Gold says lawyers and judges should learn basic science principles and methodologies to assist them in assessing forensic evidence, especially under Daubert.
Under Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993), now adopted in Wisconsin, judges must assess the reliability of testimony to ensure expert opinions are based on reliable scientific principles and methodologies, that the expert correctly applied them in reaching his or her conclusion, and the opinion relied on sufficient facts and data.
Gold, a featured speaker at the upcoming Criminal Law Section Program, says judges can benefit from training on basic science principles and methods to aid them in deciding whether evidence is admissible under the Daubert reliability standard.
He also says lawyers can scrutinize expert testimony more closely with scientific knowledge, even if they don’t succeed in excluding the evidence under Daubert.
“Asking the right questions based on scientific principles can often help lawyers destroy the weight of the evidence on cross-examination,” Gold said.
He says bad expert evidence remains one of the leading causes of miscarriages of justice in criminal cases. “If not thinking like a skeptical scientist, it’s easier to be seduced by impressive sounding expert testimony, even if what they are saying is not good science,” Gold said.
Gold isn’t the only criminal defense lawyer to highlight the importance of science training for lawyers. A report by the National Association of Criminal Defense Lawyers (NACDL) stated that, “[i]n this era of increasing reliance on forensic evidence, defense lawyers, more than ever, need to have the ability to understand such evidence to effectively represent those accused. …”
The NACDL report concluded that speculative forensic research or inadequate quality controls can compromise scientific integrity and lead to wrongful convictions. Obviously, the flip side of inadequate quality controls might let guilty persons walk free.
At the Criminal Law Section Program in September, Gold will explain “scientific literacy” in his presentation entitled “Expert Evidence: What Lawyers and Judges Should Know.”
Other sessions at the Criminal Law Program
Simon Cole, an associate professor in the Department of Criminology, Law, and Society at the University of California-Irvine, will discuss “New Developments in Fingerprint Evidence” in light of the NAS report, which questioned the method used to “individualize” fingerprints.
“For prosecutors, an important question is what scientifically supportable conclusion can be offered if ‘individualization’ cannot,” said Cole, who will discuss recent research on fingerprint evidence, such as studies on “bias” in latent print analysis.
Other topics include:
- Milwaukee County Circuit Court Judge John DiMotto will discuss Daubert and its impact in Wisconsin courts;
- Jarrold Leikin, M.D., director of Medical Toxicology at Northshore University HealthSystem, will highlight myths and facts about drug testing;
- William Tobin, founder and principal of Forensic Engineering International and former defacto chief forensic metallurgist at the FBI, will talk pattern matching individualizations for firearms and toolmarks;
- Angela Williamson, Ph.D, forensic Casework Expert and External Training Manager at Bode Technology, will discuss forensic DNA in the courtroom.
Cost and registration
The two day event will take place Sept. 15-16 at the Radisson Milwaukee West. The cost is $35. To register, visit the Criminal Law Section program webpage.