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
Date Written: May 14, 2014
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: Suggested Citation