Handicapping Defense Work, or Abandoning the Search for Truth?
Attorney General Jeff Sessions announced that the Justice Department will end its partnership with independent scientists to improve forensic science standards, and ended the review of FBI testimony for several scientific techniques that have been recently questioned on their validity. Both of these programs began under the Obama administration, and were framed as a process to better improve the criminal justice system with more accurate use of scientific data. The main issues targeted during the Obama administration were the use of scientific techniques, such as methods of tracing to complex DNA samples, bullets, tread and bite marks and subsequent testimony that lack accuracy but lead to convictions. The move by AG Sessions is to place the review within the Justice Department, meaning the Trump administration's policies can influence the findings and recommendations. This of course would be done without the aid of the scientific community, but the reliable methodology of the scientific community would be lost during this process.
The effects of ending this partnership and movement toward more stringent scientific standards will impact criminal defense work the most. Movement away from unsound forensics methods will continue at the externally slow pace it has been moving before the partnership. For example, looking at the 2005 abandonment by the FBI of its 40-year practice, of chemical analysis to trace bullets after it was scientifically debunked. The technique of hair analysis has been extremely flawed, according to a 2015 DOJ and FBI report of an elite hair-analysis unit which gave flawed or overstated testimony in 90 percent of cases for two decades. This included thirty-two defendants sentenced to death. It is unknown what other, or how many techniques that are currently being used, suffer from the same flaws.
To the criminal defense community this is a blow. Defense attorneys are now armed with the knowledge that some of the scientific techniques may very well be inaccurate or overstated during testimony, but they can still be used in court. The tough job now is how to combat this information when given to the jury. Expert witness can poke scientific holes in the testimony, but that is expensive and is only as good as the expert, creating a battle of expert witnesses. The defense can get a neutral lab to conduct the same test, but the problem is the accepted techniques are likely to be used there as well as in the FBI and DOJ.
The three years of the partnership brought to light many useful reports that have lead to techniques being improved, but the partnership was unable to review all the techniques that are used by the FBI and DOJ. Meaning, some techniques were reviewed and some are now more accurate or abandoned, but there are many techniques that need to be reviewed for accuracy. Take bite-marks for instance, scientists cannot consistently agree whether they injuries are caused by human teeth, yet courts accept testimony that identifies someone by their bite-marks. The DOJ needs to decide what its purpose of forensic science is, to put people away or to find the truth. The Trump administration has been very vocal about the need for Law and Order, and punishing violent criminals. The DOJ must decide at what cost they are willing to get a guilty verdict, and will that be at the expense of a fair trial or ever worse at the expense of the truth.