On the Issue of Forensics Mistakes and Fraud

The following research paper was for my Crime Scene Investigation and Reconstruction class. I chose a topic that I felt needed attention and solutions. Reminder: my college uses Turnitin so if you plagiarize, you will be caught. I publish my work here on this blog because I don’t want my work and ideas to disappear into academia oblivion. It’s not just a grade for a class to me – it’s my entire philosophy.

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On the Issue of Forensics Mistakes and Fraud by Reagen Dandridge Desilets is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.

 

On the Issue of Forensics Mistakes and Fraud

Reagen Dandridge Desilets

Trident Technical College

13FA_F2 CRJ235 Practical Crime Scene Inv. (W03)

November 17, 2013

Abstract

In the pursuit of justice, all parties involved from the prosecution to the defense claim to aim to seek justice. In this pursuit, both parties attempt to provide solid evidence to either prove or disprove a person’s involvement in crime. In the past several years new, more scientific ways of doing so have burgeoned and taken root doing both to prove someone’s guilt as well as prove the innocence of others. However, methods must be employed to ensure the viability of various forms of forensic analyses to keep the system neutral and for the benefit of truth and justice. Looking at other research, past efforts, and suggestions of professionals in the criminal justice and forensic fields we can ascertain whether or not enough is being done to protect against mistakes and outright fraud and if not, discuss what could be done to increase protections.

On the Issue of Forensics Mistakes and Fraud

The Innocence Project reports that there have been 311 prisoners exonerated using DNA evidence that may or may not have been available during the initial trials (Innocence Project). In theory, if the evidence is followed, then the conviction is based on that and that alone, which is supposed to mean that a jury is convinced beyond a shadow of doubt that the person is guilty. If an innocent person is convicted, ideally, it was because there was not enough evidence to make the jury have any doubt as to his involvement or execution of the crime.

Despite that, there can be a problem with evidence and it is possible for the wrong person to face a sentence for a crime they did not commit. It is estimated that 2.3% to 5% of those in prison are actually innocent (Innocence Project). It sounds like a small number considering recent reports of 7.2 million adults under correctional supervision (Glaze, 2010); however, it could mean anywhere from roughly 165,600 to 360,000 innocent people are currently facing some sort of correctional action. That is a lot of potentially innocent people and it has been said many times over, since Biblical times, that it is better for any number of guilty people to go free than for even one innocent person to suffer (Volokh, 1997). The sentiment is that it is wrong for an innocent person to suffer that which is meant for the guilty. So what can go wrong that we may possibly have over a third of a million innocent people in the corrections system?

June 10, 2013, it was reported that the Laboratory Services Division of the Colorado Department of Public Health and Environment, who does the forensics testing for prosecutors, has been investigated for a number of problems (Greene, 2013). Problems listed included the following:

  • “Employees perceive they are ‘not adequately trained to provide fact or expert testimony in court’.”
  • “Employees justifiably perceive that blood-alcohol training protocols for toxicology lab analysts are inadequate.”
  • “Refrigerators used to store blood and urine samples are not locked, making them accessible by unauthorized personnel.”
  • A supervisor “had toxicology lab employees help him/her with his/her master’s thesis during working hours.”
  • That same supervisor “made statements that suggest s/he is biased against defendants in criminal cases” and “imposes unreasonable burdens on toxicology analysts by making excessive accommodations for prosecutors and law enforcement agencies.”
  • And that “employees justifiably perceive that the toxicology lab is not sufficiently staffed to handle the work load.”

Problems began at least as soon as August 2011 so that means that potentially hundreds, maybe thousands, of criminal cases could be affected (Greene, 2013).

It was also reported on September 28, 2012 that Annie Dookhan, a chemist with Hinton State Laboratory Institute in Boston was arrested (Crimesider Staff, 2012).  She stated her motive for her outright fraud was that she wanted to seem like a good worker. Co-workers began questioning supervisors about her several years ago but they did nothing. Along with the shutdown of the lab due to Dookhan’s actions, three officials resigned, including the state’s public health commissioner.

The above reports highlight the potentials for problems in forensic science; however, misuse of evidence is not limited to only laboratories. On November 8, 2013 a former Texas prosecutor and judge, Ken Anderson, pleaded guilty to intentionally failing to disclose evidence and that led to the wrongful conviction of Michael Morton in the murder of his wife (Godsey, 2013). His only punishment was the loss of his law license, performing 500 hours of community service, and a 10 day stint in jail. That pales in comparison to the 25 years Morton spent in prison. This sort of violation of withholding evidence is known as Brady violations and they are cited as being one of the main causes of wrongful convictions.

In the Brady v. Maryland case, the United States Supreme court ruled that the prosecution must disclose all evidence in a case, even evidence favorable to the defendant (Dewar, 2006). To withhold such exculpatory evidence violates the Constitutional guarantee of a fair trial with due process. The Fifth Amendment of the Bill of Rights in the United States Constitution includes that a person “nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law…” (Legal Information Institute [LII]).

Brady violations are against this amendment and represent serious misconduct on the part of the prosecution. Yet few are ever called out on it and even less are punished for it. A recent empirical study of the capital convictions from 1973 to 1995 found that about 16% of reversals at the post-conviction stage were as a result of Brady violations (Dewar, 2006). It has been said that there are a number of motives behind these violations, some of which include inexperience, the desire to win, political gain, ensuring guilt for the sake of closing the case, and the natural conflict of their job of being an advocate while at the same time finding evidence that is detrimental to their own cases. Even cognitive psychology has been noted wherein a prosecutor may fully believe in the guilt of the defendant, which may interfere with understanding the exculpatory value of evidence.

There is also a question of how sound some forensic science methods are, such as with those used to convict someone but they were later exonerated with DNA. Some of these methods “included bite marks, shoe prints, soil, fiber, and fingerprint comparisons, and several included DNA testing” (Garrett & Neufeld, 2009). In their study, Garrett and Neufeld found that 82 of the 137 cases where there was exoneration (60%), the prosecutions’ forensics analysts gave testimony with conclusions using misstated empirical data or conclusions that were unsupported by empirical data. The rate of problems was not insignificant at all. This study included 72 forensic analysts, employed by 52 laboratories, practices, or hospitals from 25 states. Procedures tend to feed this sort of misconduct as defense attorneys rarely can hire their own experts and do not know when to object to misleading expert testimony.  When the expert evidence is challenged, judges rarely relent. Below is a table from their study, showing types of evidence and invalid testimony on behalf of a scientific expert.

Table 1: Invalid Forensic Science Testimony by Type of Analysis

Type of Forensic Analysis Cases with trial transcripts Cases involving invalid science testimony Percentage of cases with trial transcripts involving invalid science testimony
Serology

100

57

57

Hair comparison

65

25

38

Soil comparison

6

0

0

Fingerprint comparison

13

1

8

Bite mark comparison

6

4

67

Shoe print comparison

3

1

33

DNA testing

11

3

27

Voice comparison

1

1

100

In today’s time, the scientific method acknowledges and allows for consideration of things such as observer effects (Risinger, Saks, Thompson, & Rosenthal, 2002). Observer effects can be described when “the results of observation depend upon the state of the observer as well as the thing observed.”  It is also not uncommon for there to be extensive communication between detectives and forensic personnel, which can taint the view point of the forensics examiners on the case, such as with the case mentioned above from Colorado (Greene, 2013).

Falsifiability is vitally important to the scientific process and helps to test the refutability of a theory (Princeton University). If the examiner works to find only the facts, and is able to prove the theory false or is unable to prove it false, rather than working to prove it true, then the findings remain unbiased and offer far more validity and reliability as evidence. Blind and double blind testing are ways that science has tried to thwart observer effects (Risinger, Saks, Thompson, & Rosenthal, 2002). It was also suggested that, in addition to blind studies of evidence in a case, that the model include a method dubbed “an evidence lineup”. This presents the examiner with the evidence along with “foils”, evidence not a part of the case. The examiner would be blind to which evidence is related evidence and which the foils are. This solves the problem of approaching forensics testing and examination from a single-suspect viewpoint in which there is an assumption that the correct person is in custody and it is just a matter of technicality to prove it in court.

In regards to DNA analysis, there is a concern that DNA kits suffer from errors and that this may result false positives (Mellon, 2001).  The kits, made by private companies, seek to not reveal too much about their methods to avoid copycat productions; however, this makes it much like a VCR. The examiner uses it based on instructions and not based on any knowledge and understanding of how it works scientifically. They are “happy to push a button and get results”. This removes the scientific method from the process and out of the hands of the examiner. It is suggested that if the defendant is not granted via discovery the science behind the kit, then any DNA evidence should be ruled as inadmissible. Most often times, the defense has to subpoena the information instead of it being part of the discovery process. If the defense cannot seek to validate the DNA evidence, how can it ever be considered as inculpatory?

Database dependency is another issue with a lot of today’s forensics, such as large DNA databases (Murphy, 2007). This brings about concerns of privacy and protection of data as well as potential misuse of data. When there is a lack of standards being enforced in crime laboratories, other issues arise such as contamination and destruction of samples. An example of such mishandling is seen with a crime lab in Houston, where 280 boxes of evidence covering approximately 8,000 criminal cases were misplaced (Blumenthal, 2005).

Another issue in forensic science is the lack of treatment as an “ordinary” science (Murphy, 2007). It is a field that does not typically arise out of other collaborative or competitive environments. Instead, it is dominated by the government, which is also the entity that almost exclusively administers it.  It has been stated that a peer review in forensics science is the equivalent to self-congratulations and validation comes from those that will benefit the most from a method’s approval. Because of this, crime laboratories rarely engage in self-criticism and they work to keep their clients, such as police departments, happy. Many of those working in the field have an undergraduate degree and are not qualified to conduct proper research, even when encouraged to do so. As a result, the science of forensics can be in a state of “arrested development”.

There are many more concerns with forensic evidence, its misuse, and the impacts that it has on society as a whole, such as the innocent people suffering, the victim and their families not having a sense of peace and justice, and the legal costs involved in such cases. The goal of demanding standards in incriminating expert evidence is not for making it difficult; but rather to support criminal justice values, such as a presumption of innocence and the burden on the state to prove one guilty beyond reasonable doubt (Edmond & Roach, 2011). Until these issues are taken into account and questioned on a regular basis by all involved, including the prosecution, the courts, the defense and the public, these sorts of problems will continue to arise. Public accountability could include opening up books for public scrutiny, such as is done with other public agencies. Independent laboratories could help by creating competition instead of the government retaining a monopoly on forensic science. This would separate the missions of a laboratory, truth seeking, and law enforcement, prosecution, and take the pressure off examiners to prove the prosecutions’ cases (Turvey, 2013). They can then remain unbiased and get to the truth.

References

Blumenthal, R. (2005, January 5). In Texas, Oversight for Crime Labs Is Urged. Retrieved November 11, 2013, from New York Times: http://www.nytimes.com/2005/01/05/politics/05labs.html?_r=0

Crimesider Staff. (2012, September 28). Annie Dookhan, chemist at Mass. crime lab, arrested for allegedly mishandling over 60,000 samples. Retrieved from CBS News: http://www.cbsnews.com/8301-504083_162-57522579-504083/annie-dookhan-chemist-at-mass-crime-lab-arrested-for-allegedly-mishandling-over-60000-samples/

Dewar, E. N. (2006, Apr.). A Fair Trial Remedy for Brady Violations. The Yale Law Journal, 115(6), 1450-1469. Retrieved November 9, 2013, from http://www.jstor.org/stable/20455658

Edmond, G., & Roach, K. (2011, Summer). A Contextual Approach to the Admissibility of the State’s Forensic Science and Medical Evidence. University of Toronto Law Journal, 61(3), 343-409. Retrieved October 29, 2013, from http://www.law.unsw.edu.au/sites/law.unsw.edu.au/files/pre/f/docs/pubs/unsw_edmond_contextual_approach.pdf

Garrett, B. L., & Neufeld, P. J. (2009, Mar.). Invalid Foresnsic Science Testimony and Wrongful Convictions. Virginia Law Review, 95(1), 1-97. Retrieved November 9, 2013, from http://www.jstor.org/stable/25475240

Glaze, L. E. (2010). Correction Populations in the United States, 2010. Washington, DC: Bureau of Justice Statistics. Retrieved November 9, 2013, from http://www.bjs.gov/content/pub/pdf/cpus10.pdf

Godsey, M. (2013, November 8). For the First Time Ever, a Prosecutor Will Go to Jail for Wrongfully Convicting an Innocent Man. Retrieved November 9, 2013, from Huffington Post: http://www.huffingtonpost.com/mark-godsey/for-the-first-time-ever-a_b_4221000.html

Greene, S. (2013, June 10). Colorado Forensic Lab Under Fire For Alleged Mismanagement, Lab Bias, and ‘Cover Up’. Retrieved November 10, 2013, from Huffington Post: http://www.huffingtonpost.com/2013/06/10/colorado-forensic-lab-und_n_3416143.html

Innocence Project. (n.d.). Retrieved November 9, 2013, from Innocence Project: http://www.innocenceproject.org

Legal Information Institute [LII]. (n.d.). Fifth Amendment. Retrieved November 9, 2013, from Cornell University Law School: http://www.law.cornell.edu/wex/fifth_amendment

Mellon, J. N. (2001, Dec.). Manufacturing Convictions: Why Defendants Are Entitled to the Data Underlying Forensic DNA Kits. Duke Law Journal, 51(3, Thirty-First Annual Administrative Law Issue), 1097-1137. Retrieved October 29, 2013, from http://www.jstor.org/stable/1373185

Murphy, E. (2007, Jun.). The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence. California Law Review, 95(3), 721-797. Retrieved October 29, 2013, from http://www.jstor.org/stable/20439109

Princeton University. (n.d.). Falsifiability. Retrieved November 9, 2013, from Princeton University: http://www.princeton.edu/~achaney/tmve/wiki100k/docs/Falsifiability.html

Risinger, D. M., Saks, M. J., Thompson, W. C., & Rosenthal, R. (2002, Jan.). The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion. California Law Review, 90(1), 1-56. Retrieved November 9, 2013, from http://www.jstor.org/stable/3481305

Turvey, B. (2013). Turvey – Forensic Fraud Promotional. OnQ Film.

Volokh, A. (1997). n Guilty Men. Retrieved November 9, 2013, from UCLA Law (University of California): http://www2.law.ucla.edu/volokh/guilty.htm

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