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Increasing Forensic Evidence's Reliability and Minimizing Wrongful Convictions: Applying Daubert Isn't the Only Problem

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Increasing Forensic Evidence's Reliability and Minimizing Wrongful Convictions: Applying Daubert Isn't the Only Problem Tulsa Law Review Volume 43 Issue 2 Daubert, Innocence, and the Future of Forensic Science Winter 2007 Increasing Forensic Evidence's Reliability and Minimizing Wrongful Convictions: Applying Daubert Isn't the Only Problem Craig M. Cooley Gabriel S. Oberfield Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Craig M. Cooley, & Gabriel S. Oberfield, Increasing Forensic Evidence's Reliability and Minimizing Wrongful Convictions: Applying Daubert Isn't the Only Problem, 43 Tulsa L. Rev. 285 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol43/iss2/6 This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Cooley and Oberfield: Increasing Forensic Evidence's Reliability and Minimizing Wrongfu INCREASING FORENSIC EVIDENCE'S RELIABILITY AND MINIMIZING WRONGFUL CONVICTIONS: APPLYING DAUBERT ISN'T THE ONLY PROBLEM* Craig M. Cooley** & Gabriel S. Oberfield*** I. INTRODUCTION The U.S. Supreme Court decided Daubert v. Merrell Dow Pharmaceuticalsfifteen years ago. 1 During the intervening years, the judiciary has failed to apply Daubert's 2 "exacting standards" to forensic evidence offered by the prosecution. This unwillingness is disturbing by itself, and only compounded by recognizing that, during the same period, 216 people have been exonerated with DNA technology and scores of others have been exonerated via traditional, non-DNA evidence. It appears from the initial social science and anecdotal research that unreliable forensic evidence has played 3 a moderate to significant role in many of these injustices. Many suggest that unreliable forensic evidence undermined the criminal process and presumably played a role in several wrongful convictions because the judiciary has not applied Daubert to prevent prosecutorial reliance on unreliable or "junk" forensic evidence in the courtroom. While this claim is partially true, there are other factors at play. The judiciary is merely a single star in a constellation of legal and forensic science shortcomings that have contributed to wrongful convictions. Thus, to minimize the * The authors extend particular thanks to the Innocence Project, 100 Fifth Avenue, 3rd Floor, New York, New York, 10011, which provided significant material and support that underlie this article. The views and opinions expressed by the authors do not necessarily reflect the Innocence Project's views and opinions. ** Staff Attorney, the Innocence Project, 100 Fifth Avenue, 3rd Floor, New York, New York, 10011; J.D., Northwestern University School of Law, M.S., (Forensic Science), University of New Haven, B.S., (Psychology), University of Pittsburgh. Mr. Cooley can be contacted via his email, [email protected] or through his website, www.law-forensic.org. *** Research Analyst, the Innocence Project, 100 Fifth Avenue, 3rd Floor, New York, New York, 10011; J.D., Fordham University School of Law, M.S.J., Northwestern University, Medill School of Journalism, A.B., Brown University. Mr. Oberfield can be contacted via his email, [email protected]. 1. 509 U.S. 579 (1993). 2. Weisgram v. Marley Co., 528 U.S. 440, 442 (2000). 3. For example, in a comprehensive review of the first 200 convictions overturned with DNA evidence: One hundred and thirteen cases (57%) involved introduction of forensic evidence at trial, with serological analysis of blood or semen the most common (79 cases), followed by expert comparison of hair evidence (43 cases), soil comparison (5 cases), DNA tests (3 cases), bite mark evidence (3 cases), fingerprint evidence (2 cases), dog scent identification (2 cases), spectrographic voice evidence (1 case), shoe prints (I case), and fiber comparison (1 case). Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 81 (2008). Published by TU Law Digital Commons, 2007 1 TULSA LA W REVIEW [Vol. 43:285 Tulsa Law Review, Vol. 43 [2007], Iss. 2, Art. 6 likelihood unreliable forensic evidence will affect the criminal process, both the judiciary and the forensic science community must enact various reforms. This Article identifies and discusses the reforms to forensic science that can combat the judiciary's failure to apply Daubert evenhandedly in criminal cases. Part I briefly summarizes Daubert and its progeny, their potential to prevent unreliable forensic evidence from undermining the criminal process, and the reality that judges have applied Daubert unevenly in civil and in criminal cases. Through case studies, Part III presents the noticeable link between certain wrongful convictions and unreliable forensic evidence. In Part IV, suggested reforms will be presented that can diminish the likelihood of future wrongful convictions affected by forensic scientific shortcomings. 1I. EXPERT TESTIMONY AND THE LAW No one will deny that the law should in some way effectively use expert knowledge wherever it will aid in settling disputes. The only question is as to how it can do so best.4 Expert witnesses are fundamental to Anglo-American judicial proceedings; 5 their influence on the legal system dates to the 13th century, when judges called upon them to aid in their decision-making. 6 During the era extending from the rise of the adversarial jury system and into the 1800s, courts summoned persons with specialized knowledge to serve as jurors on "special juries."7 Nevertheless, courts and legal commentators traditionally have been wary of expert witnesses. 8 Accordingly, the legal community has struggled to develop coherent admissibility standards for expert testimony9-particularly that of scientific experts.10 Developing admissibility standards for scientific evidence is difficult because law and science have different philosophies and objectives. I I Law emphasizes prompt resolution and finality 12 whereas science predominantly focuses on precision.13 Junk science and slapdash scientific work have only further muddied 14 admissibility standards. 4. Learned Hand, Historical and PracticalConsiderations Regarding Expert Testimony, 15 Harv. L. Rev. 40,40 (1901). 5. See Stephan Landsman, One Hundred Years of Rectitude: Medical Witnesses at the Old Bailey, 1717- 1817, 16 L. & Hist. Rev. 445 (1998). 6. See Stephen Landsman, Of Witches, Madmen, andProduct Liability: An HistoricalSurvey of the Use of Expert Testimony, 13 Behav. Sci. & L. 131 (1995). 7. See James Oldham, The Origins of the Special Jury, 50 U. Chi. L. Rev. 137 (1983). 8. See William L. Foster, Expert Testimony--Prevalent Complaints and Proposed Remedies, II Harv. L. Rev. 169, 169 (1897); Lee M. Friedman, Expert Testimony, Its Abuses and Reformation, 19 Yale L.J.247, 247 (1910); Hand, supra n.4, at 40; Clemens Herschel, Services of Experts in the Conduct of Judicial Inquiries,21 Am. L. Rev. 571, 571-72 (1887); Emory Washburn, Testimony of Experts, I Am. L. Rev. 45, 48-49 (1866). 9. See Samuel R. Gross, Expert Evidence, 1991 Wis. L. Rev. 1113, 1116. 10. David L. Faigman et al., Modern Scientific Evidence: The Law and Science of Expert Testimony, Admissibility of Scientific Evidence § 1-1.0, 2 (2d ed., West 2006). 11. See Edward K. Cheng, Changing Scientific Evidence, 88 Minn. L. Rev. 315, 329-35 (2003) (discussing these differences). 12. See Calderon v. Thompson, 523 U.S. 538, 555 (1998) ("Finality is essential to both the retributive and the deterrent functions of criminal law."). 13. See Cheng, supra n. II at 329 ("science focuses primarily on accuracy alone"). 14. See Peter W. Huber, Galileo's Revenge: Junk Science in the Courtroom (Basic Bks. 1991) (discussing https://digitalcommons.law.utulsa.edu/tlr/vol43/iss2/6 2 2007] APPLYING DAUBERT ISN'T THE ONLYPROBLEM Cooley and Oberfield: Increasing Forensic Evidence's Reliability and Minimizing Wrongfu During the late nineteenth and early twentieth centuries, experts could testify if 15 qualified, and if they presented testimony beyond the average juror's knowledge range. Expertise was implied by the expert's success in an occupation or vocation comprising the subject matter at issue. 16 Yet with Frye v. United States,17 the court of appeals required a showing that the expert's novel scientific test had been generally accepted in the scientific community. In that 1923 case, the Court of Appeals for the District of Columbia affirmed the exclusion of a psychologist's finding, based on blood pressure measurements, that a defendant had been truthful when he denied committing a murder. In one of the most oft-cited passages in evidence law, Judge Van Orsdel articulated the "general acceptance" standard: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficientl established to have gained general acceptance in the particular field in which it belongs. Although many courts embraced Frye's general acceptance standard, 19 it had its 2 ° detractors and its shortcomings in practice. In 1975, Congress signed the Federal Rules of Evidence (FRE) into law.2 1 Rule 702 articulated a "helpfulness" standard that departed from the common law's stricter "beyond the ken" of an ordinary fact finder standard. 22 Legal scholars characterized this rule as a "relevancy test." 23 As applied, the test often meant that a witness's technique automatically qualified whenever the witness did.24 Neither the advisory committee's commentary nor Rule 702 mentioned Frye. As a result, "in principle, under the Federal Rules no common law of evidence remain[ed]. ' 25 The failure to clarify whether Rule 702 superseded Frye produced confusion among federal and state courts during the 1970s and 1980s that ultimately led to Daubert and its progeny. related instances over the past century).
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