The Emergence of Cognitive Bias in Forensic Science and Sherry Nakhaeizadeh Criminal Investigations Itiel E Dror Ruth M Morgan
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BRITISH JOURNAL OF AMERICAN LEGAL STUDIES VOLUME 4 - ISSUE 2 - SPECIAL ISSUE Fall 2015 SPECIAL ISSUE Criminal Justice and Forensic Science Evidence: Current Controversies Contents FOREWORD ‘Off’Track’ Police Investigations, Case Construction and Marika L Henneberg Flawed Forensic Practices: An Analysis of Three Fatal Barry W Loveday Stabbings in Sweden, California and England The Emergence of Cognitive Bias in Forensic Science and Sherry Nakhaeizadeh Criminal Investigations Itiel E Dror Ruth M Morgan Admissibility Frameworks and Scientific Evidence: Marika L Henneberg Controversies in Relation to Shaken Baby Syndrome / Abusive Head Trauma Science Without Precedent: The Impact of the National Simon A Cole Research Council Report on the Admissibility and Use of Gary Edmond Forensic Science Evidence in the United States Forensic Evidence and the Court of Appeal for England Lissa Griffin and Wales Judicial Responses to Shifting Scientific Opinion in Forensic Sarah Lucy Cooper Identification Evidence and Newly Discovered Evidence Claims in the United States: The Influence of Finality and Legal Process Theory AFTERWORD In the Eye of the Beholder Michael Mansfield QC ISSN 2049-4092 (Print) BRITISH JOURNAL OF AMERICAN LEGAL STUDIES Editor-in-Chief: Dr Anne Richardson Oakes, Birmingham City University Associate Editors Birmingham City University Student Sarah Cooper, Birmingham City University Editorial Assistants 2015-2016 Dr Haydn Davies, Birmingham City University Lorna Arnold Prof Julian Killingley, Birmingham City University Lorenza Simonassi Nogueirra Jack Rogers Prof Jon Yorke, Birmingham City University Seth Barrett Tillman, National University of Graduate Editorial Assistants 2015-2016 Ireland, Maynooth Ilaria Di Gioia Daniel Gough Amna Nazir Alice Storey Editorial Board Hon Joseph A Greenaway Jr, Circuit Judge 3rd Circuit, US Court of Appeals Hon Raymond J McKoski, Circuit Judge (retired), 19th Judicial Circuit Court, IL. Adjunct Professor of Law, The John Marshall Law School, Chicago, IL Prof Antonio Aunion, University of Castille-la Mancha Prof Francine Banner, Phoenix School of Law, AZ Prof Devon W Carbado, UCLA, CA Dr Damian Carney, University of Portsmouth, UK Dr Simon Cooper, Reader in Property Law, Oxford Brookes University, UK Prof Randall T Coyne, Frank Elkouri and Edna Asper Elkouri Professor, College of Law, University of Oklahoma, Norman OK Mark George QC, Garden Court Chambers, Manchester, UK Prof Larry Hammond, Osborne Maledon PA, Phoenix AZ Dr Carolyn Hoyle, Professor of Criminology, University of Oxford, UK. Prof James Kousouros, CALS Visiting Professor, NY Prof Ian Loveland, City University London, UK Prof James Maxeiner, Center for International & Comparative Law, University of Baltimore School of Law, Baltimore, MD Prof Ruth Miller, University of Massachusetts, Boston, MA Dr Anne-Marie O’Connell, University Toulouse 1 Capitole Prof Austin Sarat, William Nelson Cromwell Professor of Jurisprudence & Political Science, Amherst College, MA Dr Stephen W Smith, University of Birmingham, UK Prof Carrie Sperling, University of Wisconsin Law School Prof Clive Stafford Smith, Reprieve Dr Timothy Stanley, Rothermere American Institute, University of Oxford, UK Prof Adam N Steinman, Seton Hall University School of Law, Newark, NJ Prof Russell Wheeler, The Brookings Institution, Washington DC BRITISH JOURNAL OF AMERICAN LEGAL STUDIES VOLUME 4 - ISSUE 2 - SPECIAL ISSUE Fall 2015 SPECIAL ISSUE Criminal Justice and Forensic Science Evidence: Current Controversies Forensic science has played an active role in criminal investigations and the legal process for over a century. A variety of forensic techniques, from fingerprinting and the analysis of tool-marks and bite-marks to facial-mapping and DNA analysis, has assisted law enforcement in England and Wales and America to ‘catch’ criminals. The legal process in both of these jurisdictions has largely welcomed the admission of such evidence into courtrooms, and juries have developed a thirst for the certainty these techniques can allegedly provide. Over time, however, scientific thought about many of these disciplines has progressed, particularly since the development of DNA technology in the 1980s. DNA analysis is now the most reliable known approximation of individualization evidence, and its development has undermined the reliability of individualization claims made by other forensic disciplines. In addition, diagnosis formulas, like that used to diagnose shaken baby syndrome have been questioned. These advances have generated a new cohort of post-conviction claims, with petitioners arguing that shifts in scientific thought undermine their conviction(s). This Special Issue comments on each of these intersections of forensic science and the criminal legal process. The first two papers, using examples from England and America, explore how flawed forensic processes can lead to criminal investigations that can result in case construction and cognitive biases. Papers two and three assess the interpretation of the admissibility frameworks that govern the admission of such evidence in English and American trials. The final two papers consider how arguments relating to shifts in scientific thought are addressed by post-conviction courts in England and Wales and America. Collectively, the papers in this Special Issue inform current discussions about forensic science around the world. In a world that is becoming increasingly underpinned by science and technology, these discussions are vital to engendering criminal justice systems that produce not only fair, but accurate results. Contents FOREWORD Professor Justin Brooks............................................................................... 497 ‘Off’Track’ Police Investigations, Case Construction and Flawed Forensic Practices: An Analysis of Three Fatal Stabbings in Sweden, California and England Marika L Henneberg and Barry W Loveday ..................................................... 499 The Emergence of Cognitive Bias in Forensic Science and Criminal Investigations Sherry Nakhaeizadeh, Itiel E Dror and Ruth M Morgan ................................... 527 Admissibility Frameworks and Scientific Evidence: Controversies in Relation to Shaken Baby Syndrome / Abusive Head Trauma Marika L Henneberg ..................................................................................... 555 Science without Precedent: The Impact of the National Research Council Report on the Admissibility and Use of Forensic Science Evidence in the United States Simon A Cole and Gary Edmond ..................................................................... 585 Forensic Evidence and the Court of Appeal for England and Wales Lissa Griffin .................................................................................................. 619 Judicial Responses to Shifting Scientific Opinion in Forensic Identification Evidence and Newly Discovered Evidence Claims in the United States: The Influence of Finality and Legal Process Theory Sarah Lucy Cooper ................................................................................... 649 AFTERWORD: In the Eye of the Beholder Michael Mansfield QC ............................................................................... 691 Criminal Justice and Forensic Science Evidence: Current Controversies CONTRIBUTORS Justin Brooks Professor Justin Brooks is the Director and Founder of the California Innocence Project and a Professor of Law at California Western School of Law in San Diego, CA. He has practised as a criminal defense attorney for more than 25 years in Washington DC, Michigan, Illinois, and California. He has served as counsel on several high profile criminal cases and has been successful in exonerating many wrongfully convicted clients. Professor Brooks is also involved in reforming justice systems in Latin America. He has published extensively in the areas of criminal law, clinical education, and habeas litigation and wrongful convictions. Marika L Henneberg Marika Henneberg is a Senior Lecturer at the University of Portsmouth, UK. She is the Director of the Criminal Justice Clinic at the University of Portsmouth and has worked with wrongful convictions since 2007, in the UK, US and Sweden. She worked in the forensic field for a number of years and her research focuses on the use and abuse of scientific evidence in criminal investigations and at trials. Barry W Loveday Barry Loveday is Reader in Criminal Justice Administration at the University of Portsmouth, UK. He has worked for a number of London think tanks including the Institute for Public Policy Research (IPPR) and Policy Exchange. He has published extensively in the areas of police governance, police effectiveness, crime prevention and community safety and his work has been cited in debates in the House of Lords on a number of occasions. Sherry Nakhaeizadeh Sherry Nakhaeizadeh is a PhD student in the Department of Security and Crime Science, Centre for the Forensic Sciences, University College, London. Her research focuses on cognitive forensics, with specific reference to forensic anthropology and the avoidance of cognitive errors within this field. She has published and presented her scholarship internationally. Itiel E Dror Dr Itiel E Dror is Senior Cognitive Neuroscience Researcher at the University College London, with a PhD from Harvard University. His work focuses on the cognitive architecture that underpins expertise and has been published extensively. He researches expert performance in the real world, examining medical