Deputy Attorney General, Sally Yates, made what might be considered a historic announcement at the recent annual gathering of the American Academy of Forensic Sciences in Las Vegas, Nevada.
Summarizing the results of a multi-disciplinary review of forensic hair tests conducted by the FBI laboratory over many years, Yates claimed that 90% of those reviews showed evidence that FBI scientists erred during their court testimony - that perhaps FBI representatives overstated the significance of their findings or suggested that the forensic results were more incriminating than they actually were.
Yates also announced that the review of FBI cases will expand far beyond hair testing and will now look retrospectively at other commonly practiced forensic disciplines.
Interestingly, some of the "partners" involved with the Department of Justice in executing the hair-testing review stood to benefit greatly from maximizing the number of errors found. The Innocence Project in Manhattan alongside the National Association of Criminal Defense Lawyers were involved not only in the review of court transcripts but the characterization of whether or not specific testimony was, in fact, "erroneous." Of course, this is perfectly acceptable as long the reviews remain balanced and nonadversarial.
Reasonable people can disagree about whether or not spending scarce taxpayer dollars on these case reviews is actually necessary - or whether or not it really helps to identify and rectify miscarriages of justice. What is not acceptable, however, is failing to establish reasonable, responsible criteria for what actually constitutes an error. Unfortunately, when Deputy Attorney General Sally Yates claimed that 90% of hair-testing reviews found some form of error, she may have fallen prey to the same temptation for which forensic science professionals have been criticized in recent years.
That is to say that legal and judicial experience have taught us that, from time to time, expert witnesses will succumb to the intense adversarial conditions experienced in the courtroom and will inadvertently make statements that are inappropriate - or may be judged inappropriate decades later as greater understanding about forensic science practices come to bear on the status quo.
We know, for example, that an expert witness can give proper, reliable testimony on the witness stand for hours - but due to a strange line of questioning from a skilled attorney or perhaps from fatigue, that same expert in the same testimony can, without warning, utter a single word or statement that might be a deviation from what is now considered proper professional practice.
And in the worst case scenarios, which are hopefully rare, an expert witness can simply be corrupt or grossly incompetent.
Regardless, the Department of Justice has an outstanding opportunity to set an example for not only forensic scientists working in our criminal justice system but for all expert witnesses - and the message should be clear: Do not speak in absolutes when those absolutes are not justified or supportable with reliable data.
If the Department of Justice wishes to conduct an expensive and highly expanded review of past forensic tests conducted by the FBI laboratory or any other laboratory for that matter, then it should recognize the opportunity it has to be the example. It should refrain from speaking in absolutes when it is not proper or justified. DOJ should recognize that expert testimony is extremely challenging and that expert witnesses have little control over the discourse that occurs within the courtroom. In any professional endeavor, the quality of one's performance falls along a spectrum. Each case is unique. Each circumstance requires careful analysis.
The Department of Justice cannot and should not waste the opportunity it has to be an example for scientific restraint in criminal casework. If it haphazardly characterizes past forensic testimony as being erroneous without strong evidentiary and scientific bases for doing so, then it will simply perpetuate the very scientific carelessness that it wishes to eliminate from the American courtroom.
In the end, highly competent, hard-working professionals working in forensic science laboratories across the United States run the risk of being misportrayed as incompetent fools when such disparagement may be far from warranted.
We will see what happens.
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