US Department of Justice Takes Step Backwards in Raising Forensic Standards

In 2013, the U.S. Department of Justice partnered with scientists in the private sector to review the use of forensic science in criminal cases. This reform effort came in the wake of a steady stream of news stories about forensic laboratories and their employees mishandling evidence, falsifying reports, and using questionable methods that did not meet scientific standards to ensure accuracy, reliability, and fairness in their use as evidence to establish facts in criminal proceedings. Now, this effort to seek truth, justice, and fair play in the use of purported scientific evidence has been brought to halt, though the federal judiciary has not sat by idly in this controversy. Read more by clicking here.

In April, U.S. Attorney General Jeff Sessions stated that the U.S. Department of Justice would not renew the charter of the advisory group known as the National Commission of Forensic Science. Rather that thirty-member panel of scientists, judges, crime lab heads, prosecutors, and criminal defense attorneys would be replaced by a forensic advisor to the U.S. Attorney General and some Department of Justice employees. Thus, the work of setting uniform standards for forensic testimony, or even setting standards for the use of forensic evidence by federal prosecutors, has been put on hold for the foreseeable future and will probably be subject to future review, if any, by the very sort of persons who misused this evidence in the past.

This has effectively put to a halt the effort by the federal government to examine and correct the use of evidence presented under questionable scientific authority, such as the crime scene hair analysis, bite marks, and tracing bullets by chemical composition. Even though past advocates of this sort of evidence, such as the Federal Bureau of Investigation, have admitted that these so-called forensic science techniques are either flawed in their methodology or their reliability has been overstated by government experts in testimony in criminal cases, the U.S. Department of Justice has recently made an about face, and decided to halt the investigation, examination, and correction of such erroneous use of methods that fail to pass muster under scrutiny by the scientific community. Fortunately, the fight for accuracy, reliability, and competency has not ended with its abandonment by the U.S. Department of Justice.

Rather the fight is now being taken up by the judiciary, for example the federal Court of Appeals for the Ninth Circuit (https://www.courthousenews.com/skepticism-forensic-methods-urged-9th-circuit-conference/). Ninth Circuit Judge Alex Kozinski acknowledged in a July conference that he had long accepted the idea that certain forensic methods were virtually infallible, but later questioned his beliefs, noting his study revealed “when you subject (the various methods of forensic evidence used in criminal cases) to tests of scientific validity, they turn to be doubtful and all the way down to completely useless. Bite marks turn out to be completely useless, bullet fragments tend to be highly unreliable. Fingerprints, which I thought were the standard of validity, turn out to have a significant error rate when you test them against unknown samples.”

In this time of turmoil and uncertainty, a criminal defense attorney must know how to identify issues of unreliability or inaccuracy in forensic evidence, and how to raise those issues before a criminal trial. If you are facing a criminal trial, make sure your attorney knows how to identify these issues and fight to keep out evidence that is not accurate or is not reliable. Contact the Law Office of Patrick J. McLain, using the phone number or form on this page, to get that help.

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