Forensic Flaws

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Today is

COURT-MARTIALS, THE CSI EFFECT, AND FORENSIC FLAWS.

It's what I call the CSI effect, it happens in a court-martial just as in civilian court. The CSI effect is a belief in the ability of science to produce flawless forensic results. There are many times when the CSI effect helps the defense. The audience -- the Members -- have come to believe in forensic science evidence. The down side is that they also overweight forensic evidence when it is admitted at trial. What is typically ignored are the flaws not controlled by science -- people and procedures. As to people, the psychologist and research community is well aware of the problems of cognitive confirmation bias and also behavioral confirmation bias. Police officers, investigators, and interviewers do "bias" all the time, and the bias is mostly unconscious.

If the examiner (or interviewer) has a prior belief or expectation then two potential psychological biases arise. “Cognitive confirmation bias,” is a tendency to seek out and interpret evidence in ways that fit existing beliefs – such as ‘he did it.’ “Behavioral confirmation bias,” commonly referred to as the self-fulfilling prophecy, is a tendency for people to procure unwittingly support for their beliefs through their own behavior. See e.g. Lisa J. Steele, The Defense Challenge to Fingerprints, 40(3) CRIM. L. BULL. 2004, citing to Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 Rev. Gen. Psych. 175-220 (1998); Snyder, Motivational Foundations of Behavioral Confirmation, 25 Advances in Experimental Soc. Psych. 67-114 (1992); Zuckerman, Knee, Hodgins & Miyake, Hypothesis Confirmation: The Joint Effect of Positive Test Strategy and Acquiescence Response Set, 68 J. Personality & Soc. Psych. 52-60 (1995); Christian A. Meissner, Saul M. Kassin, "He's Guilty!": Investigator Bias in Judgments of Truth and Deception, Law and Human Behavior, Vol. 26, No. 5 (Oct., 2002), pp. 469-480.

Flawed Forensic ComputerExaminations at DCFL

Flawed DNA Examinations at USACIL

Flawed FBI "Science."

Article One, Two, Three, Four

Flawed Urinalysis Screening at Military Drug Labs.

I'm sure the Brooks AF Lab false positive is well known -- (but now) suppressed in evidence. Also well known is the Mobley Letter. The false positive is suppressed but prosecutors still are allowed to introduce evidence of how perfect drug labs are. And of course we know that none of the Drug Lab personnel were affected by the potential impact of the Mobley Letter. Interestingly, I had a case involving a female E-7 (P). When the DNA examination of her sample showed that the only contributor to the sample was a male, guess what the prosecution's theory became -- yep, you guessed, contamination in the accession process (an explanation that also didn't make sense). The prosecution couldn't explain the absence of the Y chromosome in the sample, assuming their contamination theory. The E-7 is now an E-9.

There is a general pattern of behavior in these government, prosecution oriented laboratories. They claim to be neutral and scientific. The evidence shows otherwise, they are partisan advocates for themselves and for the prosecution. In each of the examples below -- cover-up or a refusal to acknowledge error -- or should we say Complete Tolerance for Error.

Remember the Rules of Forensic Evidence (these Rules are seem to be supported by research, believe it or not) --

Rule #1, if it helps the prosecution it must be good science and it comes in.

Rule #2, if it helps the defense it can't be good science -- it's junk -- it doesn't come in.

Rule #3, if the "junk" science previously excluded to the defense is offered by the prosecution, go to Rule #1.

See, Risinger, Michael D., Navigating Expert Reliability: Are Criminal Standards of Certainty Being Left in the Dock? 64 Albany L. Rev. 99 (2000).

Here are some items to read.

Types of Scientific Misconduct.

Genie Lyons, COMMENT & NOTE: Shaken Baby Syndrome: A Questionable Scientific Syndrome and a
Dangerous Legal Concept, 2003 UTAH L. REV. 1109 (2003).

Paul C. Gianelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Virginia Journal of Social Policy & Law 439 (Spring 1997). Examines recent abuses in the use of scientific evidence in the courtroom, including the fabrication of lab reports, the reporting of autopsy results in the absence of an autopsy, and shopping for biased expert testimony.

Confirmation bias is addressed in this interesting case about admission of fingerprint examinations. State v. Rose, Case No. K06-0545 (Md. 2008).