National Conference on Science and the Law Proceedings
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U.S. Department of Justice Office of Justice Programs National Institute of Justice National Conference on Science and the Law Proceedings Research Forum Sponsored by In Collaboration With National Institute of Justice Federal Judicial Center American Academy of Forensic Sciences National Academy of Sciences American Bar Association National Center for State Courts NATIONAL CONFERENCE ON SCIENCE AND THE LAW Proceedings San Diego, California April 15–16, 1999 Sponsored by: National Institute of Justice American Academy of Forensic Sciences American Bar Association National Center for State Courts In Collaboration With: Federal Judicial Center National Academy of Sciences July 2000 NCJ 179630 Julie E. Samuels Acting Director National Institute of Justice David Boyd, Ph.D. Deputy Director National Institute of Justice Richard M. Rau, Ph.D. Project Monitor Opinions or points of view expressed in this document are those of the authors and do not necessarily reflect the official position of the U.S. Department of Justice. The National Institute of Justice is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, Bureau of Justice Statistics, Office of Juvenile Justice and Delinquency Prevention, and Office for Victims of Crime. Preface Preface The intersections of science and law occur from crime scene to crime lab to criminal prosecution and defense. Although detectives, forensic scientists, and attorneys may have different vocabularies and perspectives, from a cognitive perspective, they share a way of thinking that is essential to scientific knowledge. A good detective, a well-trained forensic analyst, and a seasoned attorney all exhibit “what-if” thinking. This kind of thinking in hypotheticals keeps a detective open-minded: it prevents a detective from ignoring or not collecting data that may result in exculpatory evidence. This kind of thinking in hypotheticals keeps a forensic analyst honest: it prevents an analyst from ignoring or downplaying analytical results that may be interpreted as ambiguous or exculpatory evidence. This kind of thinking in hypotheticals keeps attorneys thoroughly prepared: it prevents a prosecutor from ignoring alternative theories of the crime that will surely arise in the defense, and it keeps the defense open to raising alternative theories. Our adversarial system of justice relies on thinking in hypotheticals, examining each possibility, looking at all the angles because we expect proof beyond a reasonable doubt. We have already seen too many times what happens when “what-if” thinking breaks down. Consider what happens when a detective refuses “what if” thinking. Exculpatory evidence is not collected at the crime scene; an innocent person may be convicted. Evidence is collected in such a sloppy manner that it cannot be processed by the crime lab; a guilty person may be set free. Consider what happens when a forensic analyst refuses “what if” thinking. A crime lab technique has been accepted for the last 50 years; no one has questioned its validity or reliability because everyone just believes that it works; people may be wrongfully convicted or exculpated by a scientifically unsound technique that is presented as scientific evidence. Or consider what happens when “what if” thinking breaks down in the courtroom. Judges naively accept whatever scientists with a particular set of credentials tell them, the scientist-witness is allowed to represent both the opinions of the entire scientific discipline as well as specific opinions with regard to the case, and the expert witness industry is thriving. Currently, the criminal justice profession has several mechanisms for ensuring that “what-if” thinking does not break down. Daubert—and now Kumho—hearings can highlight serious deficiencies in traditionally accepted forensic sciences. Training for judges and lawyers can upgrade their ability to determine the value of scientific evidence and to distinguish between good investigative leads, which may result from pre-scientific techniques, and solid scientific evidence, which derives from the scientific method. Research by academics or scientific organizations such as the National Academy of Sciences can provide answers to methodological dilemmas which face any science moving from the laboratory to the crime scene. Law enforcement training can provide detectives and departments with best practices for investigation and evidence collection, such as the National Institute of Justice’s recent publication on crime scene investigation. Technical -3- working groups that are discipline based, such as the National Institute of Justice’s Technical Working Group on Eyewitness Evidence, can provide checks on scientific and investigative procedures and interpretation of results. But even with such homologous ways of thinking, judicial decisions, and educational safeguards in place, science and law continue to be uneasy partners. Questions about this partnership form the basis for the following papers, from scientists, attorneys, and judges, which all address, from differing aspects, the relationship between science and law. It is hoped that by facing these questions directly we shall find answers that enable us to use science and law in the service of truth and justice. Carole E. Chaski, Ph.D. Executive Director Institute for Linguistic Evidence, Inc. Georgetown, Delaware -4- Table of Contents Table of Contents Preface ................................................................... 3 Executive Summary ......................................................... 7 Welcoming Remarks ....................................................... 10 David G. Boyd .......................................................... 10 Keynote ................................................................. 13 C. Thomas Caskey ....................................................... 13 Panel I. Conceptions of Science: Defining the Disconnect .......................... 24 Joshua Lederberg ........................................................ 24 Margaret Berger ........................................................ 28 William Gardner ........................................................ 33 Panel II. Admissibility: The Judge as Gatekeeper ................................ 45 Sam C. Pointer, Jr. ....................................................... 45 Edward J. Imwinkelried ................................................... 46 Myrna S. Raeder ........................................................ 70 Luncheon Address ......................................................... 82 Thomas D. Pollard ....................................................... 82 Panel III. “Junk” Science, Pre-Science, and Developing Science .................... 87 Andre A. Moenssens ..................................................... 88 Michael J. Saks ......................................................... 93 Carole E. Chaski ........................................................ 97 James E. Starrs ........................................................ 148 Panel IV. Scientific and Demonstrative Evidence: Is Seeing Believing? .............. 155 Mark Garcia .......................................................... 155 Robert J. Humphreys .................................................... 158 Samuel A. Guiberson .................................................... 162 Ronald Reinstein ....................................................... 170 -5- Panel V. Jury’s Comprehension of Scientific Evidence: A Jury of Peers? ............ 172 David G. Boyd ......................................................... 173 Neil Vidmar ........................................................... 174 Lawrence M. Solan ..................................................... 179 Arthur H. Patterson ..................................................... 185 Shari Seidman Diamond .................................................. 190 Panel VI. Science, Technical Knowledge, and Skill: Who Is an “Expert”? ........... 198 Vaughn R. Walker ...................................................... 198 Paul C. Giannelli ....................................................... 201 Lawrence M. Mckenna .................................................. 208 Panel VII. Expert Witnesses: Is Justice Ruined by Expertism? .................... 219 Barry A.J. Fisher ....................................................... 219 Bert Black ............................................................ 221 E. Michael McCann ..................................................... 226 Summary Discussion ...................................................... 235 David G. Boyd ......................................................... 235 -6- Executive Summary Executive Summary The National Conference on Science and the Law brought together scientists, jurists, lawyers, and academics to foster understanding of science among legal professionals and of the legal system among scientists. The conference, held April 15–16, 1999 in San Diego, California, provided a forum to examine issues of concern to legal professionals and scientists and to improve communication between the two groups. The meeting was sponsored by the National Institute of Justice, the American Academy of Forensic Sciences, the American Bar Association, and the National Center for State Courts, in collaboration with the Federal Judicial Center and the National Academy of Sciences. Conference speakers explored how conceptions of science work in a judicial environment; the role of judges as gatekeepers