2/21/2011

By Emily Smith

            In a justice system designed with “blind” in mind, law has embraced the scientific community and the guidance it offers in convicting the guilty. As noted by the National Research Council, “many crimes that may have gone unsolved are now being solved because forensic science is helping identify the perpetrators.”[1] Law's embrace is seemingly well-founded because of science's benefit: it is dispassionate. It appears to remove bias from the equation and present the “truth” with confidence. It is neutral in a forum that usually requires sifting through adversarial points of view. Science seems to be driven by logic, and plays the role of the calming voice in the middle of a he said-she said storm. Judges may even subconsciously appreciate the role that science plays. It removes the hard parts of their jobs, giving them the “right” answer. Because “science” said it is so, it must be true.

            Yet, science does not purport that it is always right. Most scientists would be hesitant to ever declare anything at 100%. However, the law appreciates, and even venerates, finality. In fact, the entire post-conviction structure is designed to uphold an original conviction, refusing except in the most egregious circumstances to second-guess that decision.[2] This reality has the affect of putting science at odds with the legal community. Grappling with how and when science should apply to the courtroom, the Court in Daubert v. Merrell Dow Pharmaceuticals said, “there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally. . .”[3] Much, therefore, “depends on whether the evidence offered is reliable.”[4]

            This conflict between the indefinite and finality would not be such a problem if, despite its hesitance to trust itself, the forensic science community were getting it right. But, it is not. While it seems like a system free from bias, it is not detached from human error, poor methodology and misguided reliance, and everyone seems to agree that the forensic science discipline is damaged.[5] Too many of those serving their “debt” would never have been convicted but for the science in the first place.[6]

            DNA is, in fact, the only consistently reliable form of scientific evidence. As the National Research Council said in their extensive report on the state of science in U.S. courtrooms, “no forensic method [save DNA] has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”[7] Additionally, it is important to remember that, while DNA has been appropriately championed for exonerating many of the wrongfully convicted, too many more will never have the benefit of DNA testing. If there's nothing to test, there's little left for the justice system to say. Thus, even DNA can't right every wrong. Should courts consider the absence of evidence when deciding whether to grant an appeal? Maybe sometimes it depends on whether our goal is finality or true justice.

            Thomas Haynesworth is an example. Haynesworth, whom the Washington Post profiled in a recent article, has accumulated twenty-seven unnecessary years behind bars.[8] And those years are counting. He was convicted in the 1980s of rape and sexual assault in four separate cases. While he has always proclaimed his innocence, it was not until more recently that science agreed. DNA has proven that Haynesworth is, in fact, innocent in two of the four cases, and he has been exonerated of those crimes. Yet, in the other two cases, there is no DNA to test and as of today, Haynesworth continues to sit in prison. As stated by the Post, because of the lack of DNA evidence, Haynesworth's innocence just “can't be proven to a scientific certainty.”[9]

             Even DNA is beginning to show the same signs of training and protocol deficiencies as other less reliable sciences. So, whose interest is science really serving? Judges are intimidated, defendants and victims are manipulated and juries are confused. Were the courtroom left to fact rather than opinion and to lay people rather than experts, would it really be worse off? In the wake of similar serious questions about the reliability, methodology and soundness of the death penalty, the U.S. Supreme Court issued a moratorium on death sentences in 1972, requiring reform before its use could be restored.[10] Taking a cue from the high court, Houston issued its own suspension in 2007, shutting down its Crime Lab.[11] The city felt it had simply no choice after an investigation revealed twelve years worth of convictions based on unsound scientific “proof.”[12]So is science really helping create a just system, or until its methods prove reliable, useful and accurate, should science just stay out of the courtroom?