Download This Paper Open PDF in Browser

Preferring the 'Wise Man' to Science – The Failure of Courts and Non-Litigation Mechanisms to Demand Validity in Forensic Matching Testimony

38 Pages Posted: 17 May 2014 Last revised: 30 Jun 2015

Jules Epstein

Widener University - Widener University School of Law

Date Written: May 14, 2014

Abstract

The 2009 report Strengthening Forensic Science: A Path Forward, issued by the National Research Council of the National Academy of Sciences, made clear that many forensic disciplines - handwriting analysis, latent print [fingerprint] comparison, ballistics matching, fire [arson] causation and more - lacked a foundation in hard science and offered claims of "individualization" [attributing the crime scene evidence to only one possible source in the world] without a proper research foundation. The Report described the judicial system as "utterly ineffective" in understanding the limits of these disciplines and policing admissibility. Five years later, virtually no change has occurred, with such evidence continuing to come in without qualification or tempering. This Article reviews the post-report years and assesses the causes of this stasis - the lack of rigor in the Frye and Daubert admissibility regimes, the scientific 'illiteracy' of many legal professionals, inadequate funding for expert services, and a comfort with the status quo of evidence relied upon for decades. The Article then surveys non-litigation mechanisms such as forensic science commissions and finds them also wanting in their ability to respond to the Report's criticisms. The Article concludes that a tolerance of "wise man" testimony over science will persist, absent crises such as DNA exonerations that expose flawed forensics, unless a major institutional push occurs or there is a new stringency imported into the "gatekeeping" function performed by judges.

Keywords: forensic science, evidence, criminal law

JEL Classification: K14, K41

Suggested Citation

Epstein, Jules, Preferring the 'Wise Man' to Science – The Failure of Courts and Non-Litigation Mechanisms to Demand Validity in Forensic Matching Testimony (May 14, 2014). Widener Law Review, Vol. 20, 2014; Widener Law School Legal Studies Research Paper No. 14-15. Available at SSRN: https://ssrn.com/abstract=2437084

Jules Epstein (Contact Author)

Widener University - Widener University School of Law ( email )

4601 Concord Pike
P.O. Box 7286
Wilmington, DE 19803-0474
United States

Paper statistics

Downloads
95
rank
241,745
Abstract Views
450