WEBVTT - CSI On Trial: Ep 1 – The Flaws of Forensic Science 0:00:05.240 --> 0:00:19.040 Oh can you name this TV show? So the width 0:00:19.080 --> 0:00:21.520 of the burn and the pinpoint detail in the fuel, 0:00:21.640 --> 0:00:24.400 I've narrowed down what our suspects using. Burned the tags 0:00:24.480 --> 0:00:29.000 off a blowtworks. Yeah, burns a small precise, just like 0:00:29.040 --> 0:00:31.840 what you get with compact torches used in dental labs. 0:00:32.479 --> 0:00:37.000 It's CSI Crime Scene Investigation, a CBS crime drama featuring 0:00:37.040 --> 0:00:41.319 a team of investigators solving crimes by analyzing the physical evidence. 0:00:42.360 --> 0:00:45.880 See once a dried, the pattern revealed itself. You see 0:00:45.919 --> 0:00:48.680 this discoloration right here. Looks at the tread from a 0:00:48.760 --> 0:00:52.159 boot well I initially thought was a V is actually 0:00:52.159 --> 0:00:56.240 a WU And that's the logo for Woodridge Hunting boots. 0:00:56.840 --> 0:01:01.040 They look at things like bloodstain patterns, footprints, and bullet casings. 0:01:01.680 --> 0:01:04.800 The original show launched in two thousand, then came the 0:01:04.840 --> 0:01:07.959 spin and offs, inspiring still more shows that dig into 0:01:08.040 --> 0:01:12.840 forensic science, Bones and CIS Dexter. The list is long. 0:01:13.680 --> 0:01:18.440 These crime scene procedurals. They're fun, they make investigations digestible, 0:01:18.600 --> 0:01:23.040 engaging millions watch them. But these shows also propel the 0:01:23.120 --> 0:01:27.440 idea that forensic science is precise in proving guilt or innocence. 0:01:27.840 --> 0:01:31.800 It's called the CSI effect. The CSI effect, from a 0:01:31.840 --> 0:01:34.600 defense attorney's perspective is is that and shows like that 0:01:34.720 --> 0:01:38.640 they depict forensic evidence as infallible, and that it's quick, 0:01:38.720 --> 0:01:41.160 it's fast, and they do it in a half an hour, 0:01:41.200 --> 0:01:44.280 and they wrap it all up right, and that jurors 0:01:44.640 --> 0:01:47.760 come into lajers come into a criminal case with the 0:01:47.800 --> 0:01:52.240 expectation that forensic evidence can conceivably do that. That's Chris 0:01:52.240 --> 0:01:55.760 fabricand I'm the director of Strategic Litigation at the Innocence 0:01:55.760 --> 0:01:58.280 Project in New York, and i am the author of 0:01:58.680 --> 0:02:02.400 Junk Science and the American Criminal Justice System. CSI and 0:02:02.480 --> 0:02:05.920 shows like it give jurors a false sent of security 0:02:06.200 --> 0:02:10.760 that forensic science methods are totally accurate, that expert testimony 0:02:10.800 --> 0:02:15.720 from CSI analysts is infallible. Studies show that juries put 0:02:15.720 --> 0:02:19.080 an outsized amount of trust in the testimony of experts. 0:02:19.760 --> 0:02:23.480 But as we'll discuss in this podcast, forensic science methods 0:02:23.720 --> 0:02:27.079 and the expert testimony that shares that evidence with juries 0:02:27.320 --> 0:02:32.000 can both be flawed. It's an issue that has serious consequences. 0:02:33.040 --> 0:02:37.560 CSI this all crap. That's Keith Harward, one of several 0:02:37.600 --> 0:02:40.560 people you'll meet in this series, who was wrongly convicted 0:02:40.720 --> 0:02:43.760 based on forensic evidence that turned out to be wrong. 0:02:45.800 --> 0:02:48.840 I'm Molly Herman. I'm a filmmaker and producer of a 0:02:48.920 --> 0:02:53.320 six part documentary series for Curiosity Stream that digs into 0:02:53.360 --> 0:02:58.280 forensic crime science, one discipline at a time. I've interviewed 0:02:58.280 --> 0:03:04.640 nearly seventy practitioners, attorneys, scientists, journalists, judges, and innocent people 0:03:04.680 --> 0:03:08.200 who spend decades in prison, some who are still there. 0:03:08.800 --> 0:03:12.079 When I started this project, I believed that old adage 0:03:12.120 --> 0:03:15.600 that the US justice system isn't perfect, but it's still 0:03:15.640 --> 0:03:18.799 the best system out there. But what I discovered is 0:03:18.840 --> 0:03:22.600 that many methods of forensic science used to build criminal 0:03:22.680 --> 0:03:29.480 cases aren't just imperfect, but irresponsible and unscientific with profound 0:03:29.600 --> 0:03:33.519 impacts on human lives. And that's the mission of this 0:03:33.600 --> 0:03:38.200 podcast to investigate how and why forensic methods are flawed 0:03:38.640 --> 0:03:44.720 and how the system can be fixed. From School of Humans, 0:03:45.000 --> 0:03:50.680 Curiosity Stream and iHeart Podcasts, this is CSI on Trial. 0:03:51.240 --> 0:03:54.600 Two or three stays are really not enough to call 0:03:54.680 --> 0:03:57.560 something an impacts patter from gunshot that's going to put 0:03:57.600 --> 0:04:00.600 someone in prison the rest of their life. Sto making 0:04:00.680 --> 0:04:04.720 up a lie was gonna get you home center. What 0:04:04.960 --> 0:04:06.680 is it about a bite mark that would make a 0:04:06.800 --> 0:04:10.280 dentist an expert in this area who shot at you? 0:04:12.640 --> 0:04:14.360 He said, I will sit in this jail and I 0:04:14.400 --> 0:04:18.800 will rot before I take the problem with forensic science 0:04:19.080 --> 0:04:21.839 in the criminal legal system today is that it's an 0:04:21.880 --> 0:04:24.240 awful lot of forensic and not an awful lot of science. 0:04:24.960 --> 0:04:35.040 Episode one, the Flaws of Forensic Science. Popular television has 0:04:35.040 --> 0:04:38.560 made forensic science famous. True crime has been a long 0:04:38.640 --> 0:04:42.080 time fascination for the American public, from the Salem witch 0:04:42.120 --> 0:04:45.479 trials to the Missing Lindbergh Baby, to the prosecution of 0:04:45.600 --> 0:04:51.279 gangsters like al Capone. Al Capone goes to jail, the 0:04:51.320 --> 0:04:54.120 federal government strikes its first telling law at the underworld 0:04:54.280 --> 0:04:57.320 by convicting public Enemy number one on income tax brauds. 0:04:58.000 --> 0:05:01.839 Modern forensic science launches because of a massive influx of 0:05:01.920 --> 0:05:05.720 federal funding in the late nineteen sixties, after PubL unrest 0:05:05.880 --> 0:05:09.280 during the Civil Rights Movement and protests against the Vietnam 0:05:09.360 --> 0:05:13.240 War spur President Lyndon Johnson to declare a war on 0:05:13.400 --> 0:05:17.640 crime to attack and to overcome growing crime and lawlessness. 0:05:18.440 --> 0:05:20.680 I think we must have a stepped up program to 0:05:20.800 --> 0:05:25.440 help modernize and strengthen our local police forces. Our people 0:05:25.600 --> 0:05:29.400 have a right to feel secure in their homes and 0:05:29.480 --> 0:05:33.800 on their streets, and that right just must be secured. 0:05:37.440 --> 0:05:42.240 It marks the first moment in American history where the 0:05:42.320 --> 0:05:48.120 federal government becomes directly involved in local law enforcement. Menka 0:05:48.200 --> 0:05:51.320 Sinha spent a decade as a public defender in Washington, 0:05:51.400 --> 0:05:54.440 d c. She's now a law professor and teaches the 0:05:54.440 --> 0:05:57.919 Criminal Defense Clinic at the University of Maryland School of Law. 0:05:58.680 --> 0:06:03.599 She's published on how forensic science can contribute to wrongful convictions. 0:06:03.680 --> 0:06:08.400 And they believe that this crime problem originates in these 0:06:08.440 --> 0:06:15.640 black urban communities, and without really consulting with the residents 0:06:15.640 --> 0:06:18.600 of these communities themselves, they do this investigation and they 0:06:18.640 --> 0:06:21.680 do the study, and they produced this really sweeping report 0:06:22.120 --> 0:06:25.560 that was issued in nineteen sixty seven. President Johnson put 0:06:25.600 --> 0:06:28.520 together a crime Commission with a mix of backgrounds in 0:06:28.640 --> 0:06:32.840 law education, social work, and law enforcement. The report they 0:06:32.880 --> 0:06:36.120 issued was called The Challenge of Crime in a Free Society. 0:06:36.480 --> 0:06:39.599 It had over two hundred recommendations, one of them the 0:06:39.680 --> 0:06:43.040 creation of a national emergency number, you know it as 0:06:43.160 --> 0:06:46.760 nine one. One. One of the things the commission points 0:06:46.800 --> 0:06:52.440 to is it says we need to improve our law 0:06:52.560 --> 0:06:59.640 enforcement technique by improving our capability of analyzing evidence left 0:06:59.680 --> 0:07:03.840 at scenes. So we should be improving our ability to 0:07:03.880 --> 0:07:07.400 do fingerprint nails, we should be improving our ability to 0:07:07.440 --> 0:07:10.560 do shoeprint analysis, and it mentioned the whole bunch of them, 0:07:10.600 --> 0:07:13.840 and it says we should be developing a centralized fingerprint database. 0:07:14.440 --> 0:07:19.880 And this recommendation becomes the backbone of the development of 0:07:20.240 --> 0:07:24.360 crime labs. Using the Commission's report and energized by the 0:07:24.400 --> 0:07:28.360 political climate of the time, Congress creates a major federal 0:07:28.400 --> 0:07:32.880 funding pipeline for state and local police forces, including funding 0:07:32.920 --> 0:07:36.840 for forensic science development and training. In order for police 0:07:36.920 --> 0:07:39.480 to be eligible for many of the grants, they have 0:07:39.560 --> 0:07:42.640 to show an increase in arrest rates. In other words, 0:07:42.840 --> 0:07:46.440 the development of modern forensic science was tied to and 0:07:46.560 --> 0:07:52.520 incentivized by arrests and prosecutions. Notice what I didn't say 0:07:52.640 --> 0:07:58.960 fueled modern forensic science, and that's science, independent, rigorous science. 0:07:59.680 --> 0:08:04.160 Here's Manca again. We tend to think of forensics as 0:08:04.280 --> 0:08:09.720 really reliable, really accurate, really scientific, And what most people 0:08:09.800 --> 0:08:14.440 don't realize is that most forensic methods they weren't developed 0:08:14.480 --> 0:08:17.960 in scientific labs. They weren't developed through scientific method They 0:08:17.960 --> 0:08:23.680 weren't developed through scientific research. They were developed by and 0:08:23.920 --> 0:08:29.200 for law enforcement to help law enforcement pursue law enforcement functions, 0:08:29.360 --> 0:08:37.040 meeting surveillance, investigation, prosecution, securing convictions, and sometimes even at 0:08:37.040 --> 0:08:41.640 sentencing to secure a higher punishment. The problem with forensic 0:08:41.679 --> 0:08:45.120 science in the criminal legal system today is that it's 0:08:45.120 --> 0:08:47.040 an awful lot of forensic and not an awful lot 0:08:47.040 --> 0:08:51.760 of science. That's Kate Judson. I'm the executive director of 0:08:51.800 --> 0:08:55.720 the Center for Integrity and Forensic Sciences. Much of it 0:08:55.880 --> 0:08:59.960 was developed for law enforcement for use in courtrooms rather 0:09:00.000 --> 0:09:03.960 than at a lab bench in academia, for example, and 0:09:04.160 --> 0:09:06.920 for that reason attend to be quite skewed. It tends 0:09:06.920 --> 0:09:09.880 to be in pursuit of a results or an agenda, 0:09:10.160 --> 0:09:13.679 rather than simply going where the science leads. In the 0:09:13.760 --> 0:09:18.120 late nineteen eighties, a proverbial bomb dropped on forensic sciences. 0:09:18.880 --> 0:09:23.839 DNA analysis developed by the scientific community far away from 0:09:23.840 --> 0:09:28.080 the world of arrests and prosecutions. DNA analysis held up 0:09:28.120 --> 0:09:32.440 a mirror to forensic science methods. My name's Julia Layton. 0:09:32.720 --> 0:09:35.920 I'm the former General Counsel for the DC Public Defender Service, 0:09:36.080 --> 0:09:39.360 but I've been retired for several years now. When I 0:09:39.400 --> 0:09:43.040 went to law school, most of the forensic disciplines that 0:09:43.320 --> 0:09:46.400 had been admitted for decades. So in the nineteen eighties 0:09:46.440 --> 0:09:49.720 when I started practicing, we weren't challenging the evidence. We 0:09:49.720 --> 0:09:52.800 weren't even looking very closely at the evidence. That sort 0:09:52.840 --> 0:09:57.040 of changed with the introduction of DNA forensic evidence, because 0:09:57.040 --> 0:10:00.160 suddenly this was something new and our responsibility as lawyers 0:10:00.280 --> 0:10:04.400 was to investigate it, learn about it, and so slowly 0:10:04.440 --> 0:10:08.319 but surely we started to learn about the technology behind it. 0:10:08.520 --> 0:10:11.040 We started to learn about the scientific method, and I 0:10:11.080 --> 0:10:14.240 think once we had started to master those topics, we 0:10:14.360 --> 0:10:17.080 naturally started to turn to look at the other disciplines. 0:10:17.880 --> 0:10:23.800 In contrast to DNA analysis, common forensic science disciplines firearms analysis, 0:10:23.920 --> 0:10:29.760 footprint comparison, byte mark analysis were revealed as unscientific. But 0:10:30.000 --> 0:10:35.880 most troubling and most revealing, DNA analysis was directly contradicting 0:10:35.880 --> 0:10:39.120 the validity of forensic evidence that had locked people in 0:10:39.200 --> 0:10:43.960 prison or even put them to death. In the early nineties, 0:10:44.280 --> 0:10:48.720 DNA technology becomes ripe enough for us to use in 0:10:48.960 --> 0:10:51.800 criminal cases. We can go back and test samples that 0:10:51.840 --> 0:10:55.920 have never been tested what they learned was that actually, 0:10:55.920 --> 0:10:59.199 we have convicted a lot of innocent people, and one 0:10:59.400 --> 0:11:03.840 of the major contributing factors they found was some sort 0:11:03.840 --> 0:11:06.320 of shoddy forensic evidence that was used in the first place. 0:11:06.920 --> 0:11:10.840 So everyone saw what was happening with DNA and exonerations 0:11:11.160 --> 0:11:13.360 and there was a huge change in the way we 0:11:13.400 --> 0:11:18.400 developed and used forensic science. Right. Well, no, it turns 0:11:18.440 --> 0:11:22.080 out there were more powerful forces than science and truth 0:11:22.320 --> 0:11:26.000 at play. It was a very impressive set of expertise 0:11:26.040 --> 0:11:29.840 in this committee and their report was really damning, and 0:11:29.920 --> 0:11:34.600 so for us it was like finally somebody's opened the door, 0:11:35.080 --> 0:11:41.120 opened Pandora's box about how little research, how little foundational, empirical, 0:11:41.280 --> 0:11:44.600 scientifically valid research has been done, and we thought we 0:11:44.600 --> 0:11:46.800 were going to go forth and have a sea change, 0:11:47.200 --> 0:12:13.040 and we were wrong. When DNA analysis began proving the 0:12:13.080 --> 0:12:16.880 innocence of people originally convicted on the weight of forensics science, 0:12:17.320 --> 0:12:20.640 Congress did act in the late two thousands. It funded 0:12:20.640 --> 0:12:23.600 a commission to study the issue and tapped the National 0:12:23.600 --> 0:12:27.200 Academy of Sciences to run it. The commission released its 0:12:27.200 --> 0:12:30.760 report in two thousand and nine. It was titled Strengthening 0:12:30.800 --> 0:12:35.080 Forensic Science in the United States a path forward. Manka 0:12:35.200 --> 0:12:38.200 Sinha says, the reports authors made sure it had a 0:12:38.240 --> 0:12:42.800 tone of optimism rather than blame. So the report's goal 0:12:42.960 --> 0:12:45.280 was really to improve the forensic system. So it makes 0:12:45.280 --> 0:12:48.800 all these recommendations for how to do that. We're gonna 0:12:49.000 --> 0:12:52.080 come up with a research strategy and guide how research 0:12:52.080 --> 0:12:54.600 should be funded. We're going to work on standards and 0:12:54.640 --> 0:12:57.480 regulations to regulate the use of forensics, and we're going 0:12:57.520 --> 0:13:00.199 to all do that centrally and through this national governing body. 0:13:00.880 --> 0:13:04.479 David Fegman is the Chancellor and dean at UC Hastings 0:13:04.480 --> 0:13:08.400 College of Law in San Francisco. So the report was 0:13:08.679 --> 0:13:11.400 published in two thousand and nine, and one of the 0:13:11.400 --> 0:13:15.679 things that the report advocated was for a federal agency 0:13:15.960 --> 0:13:19.400 to oversee the development of forensic science that would be 0:13:19.440 --> 0:13:23.920 able to accredit and certify labs, would oversee research and 0:13:23.960 --> 0:13:27.480 fund research, not unlike the National Institutes of Health might do. 0:13:28.920 --> 0:13:31.040 I'll just say it, this report came out in two 0:13:31.040 --> 0:13:34.560 thousand and nine. It's many many years after that, and 0:13:35.000 --> 0:13:38.760 there's no national governing forensic body. It never happened, It 0:13:38.880 --> 0:13:42.840 never got off the ground. Forensic analysts and their industry 0:13:42.880 --> 0:13:47.000 associations made some cosmetic changes to the language they used. 0:13:47.840 --> 0:13:51.520 The Department of Justice continued to provide research money, and 0:13:51.679 --> 0:13:55.040 some of the money did go to actual scientists. Some 0:13:55.120 --> 0:14:01.040 forensic associations and labs required more training hours, assessments, or accreditations, 0:14:01.560 --> 0:14:05.040 but there were no fundamental changes to what techniques were used. 0:14:05.760 --> 0:14:09.240 To be fair, the report was released during a tumultuous time. 0:14:09.800 --> 0:14:13.000 The research was done under the Bush administration, but released 0:14:13.040 --> 0:14:16.720 a few months after President Obama took office. The global 0:14:16.800 --> 0:14:19.880 economic crash sucked up all of the oxygen in US 0:14:20.000 --> 0:14:24.960 public policy, But years later, the Obama administration decided to 0:14:25.000 --> 0:14:28.640 pick up where the Congressional study left off. The President's 0:14:28.680 --> 0:14:33.400 Council of Advisors on Science and Technology, also known as PEACAST, 0:14:33.440 --> 0:14:37.640 pulled together the nation's top scientific talent to dig deeper 0:14:37.760 --> 0:14:43.160 into specific forensic science areas. University of Maryland physics professor 0:14:43.240 --> 0:14:47.840 Jim Gates was a principal author. Science is all about measurement, 0:14:48.240 --> 0:14:51.280 So the PEACASH report said, we are going to look 0:14:51.320 --> 0:14:54.440 at parts of forensic science that are based on measurement 0:14:54.560 --> 0:14:57.880 and ask the question, when we look at processes and 0:14:57.960 --> 0:15:02.120 practices in forensic science, how closely do those adhere to 0:15:02.720 --> 0:15:06.960 measurements made outside of forensic science, and unfortunately not much 0:15:07.040 --> 0:15:11.480 improvement had occurred. Professor Thomas Albright from the Salk Institute 0:15:11.640 --> 0:15:15.440 also contributed to the report, which came out in twenty sixteen. 0:15:16.240 --> 0:15:22.280 The Peacast report broadly condemned a particular category of forensic 0:15:22.320 --> 0:15:27.200 practices known as the feature comparison techniques. These are kenner fingerprints, 0:15:27.200 --> 0:15:32.960 tire tracks, bulletmarks, and so forth, and the major concern 0:15:33.360 --> 0:15:37.800 was that they hadn't been in most cases validated properly validated. 0:15:38.080 --> 0:15:41.760 Validation simply means that you've empirically tested the technique so 0:15:41.800 --> 0:15:44.720 that you're certain that a large fraction of the time 0:15:44.800 --> 0:15:48.160 it gives you the correct answer. But the Department of Justice, 0:15:48.320 --> 0:15:52.320 which has been entwined with forensic science since lbj's War 0:15:52.480 --> 0:15:57.040 on Crime agenda, rejected the findings on the day of 0:15:57.080 --> 0:16:01.800 its release. Attorney General Lauretta Lynch, who was the Attorney 0:16:01.800 --> 0:16:06.880 General at the time, she says, no, thank you, Peacast. 0:16:07.480 --> 0:16:10.480 We appreciate your efforts, but we are not going to 0:16:10.520 --> 0:16:15.400 adopt your recommendations. Attorney General Lynch said in a statement 0:16:15.480 --> 0:16:19.160 reported at the time by The Wall Street Journal that quote, 0:16:19.760 --> 0:16:23.880 we remain confident that when used properly, forensic science evidence 0:16:23.920 --> 0:16:28.080 helps juries identify the guilty and clear the innocent, and 0:16:28.200 --> 0:16:31.760 the Department believes that the current legal standards regarding the 0:16:31.800 --> 0:16:35.960 admissibility of forensic evidence are based on sound science and 0:16:36.120 --> 0:16:41.760 sound legal reasoning. The National District Attorney's Association they denounced 0:16:41.840 --> 0:16:46.160 the report immediately. The FBI criticizes the report. A whole 0:16:46.160 --> 0:16:48.840 bunch of bodies criticize the report and decline to adopt 0:16:49.000 --> 0:16:54.520 the recommendations. William Fitzpatrick from the National District Attorney's Association 0:16:54.720 --> 0:16:59.520 made it pretty clear how local prosecutors like himself felt 0:17:00.000 --> 0:17:03.960 if I were to have taken the Peacast reports seriously, 0:17:04.399 --> 0:17:08.120 which I did, or the two thousand and nine NAS report, 0:17:08.720 --> 0:17:11.879 which I did not, as well, and to embrace some 0:17:12.000 --> 0:17:16.959 recommendations suggested, I could actually picture myself in my office 0:17:17.040 --> 0:17:20.159 telling a grieving father of the domestic violence victim that 0:17:21.000 --> 0:17:24.639 even though his daughter's ex boyfriend was ideed fleeing the scene, 0:17:25.320 --> 0:17:28.000 even though he left a fingerprint that matched his left 0:17:28.040 --> 0:17:31.200 thumb in the victim's blood at the scene, and even 0:17:31.199 --> 0:17:34.039 though a friends at godentologists matched a bite mark on 0:17:34.080 --> 0:17:37.280 the victim's chest to the defendant and the thirty two 0:17:37.320 --> 0:17:41.319 caliber revolver recovered from his jacket pocket was ballistically matched 0:17:41.760 --> 0:17:45.800 to the projectile and his daughter's head. It's just right now, 0:17:45.840 --> 0:17:47.999 the case is too thin to proceed and I won't 0:17:48.000 --> 0:17:53.200 be able to prosecute please. They were worried that what 0:17:53.239 --> 0:17:55.359 it would mean for these closed cases, would they open 0:17:55.399 --> 0:17:57.159 back up? Would we have to relitigate all of this? 0:17:57.439 --> 0:17:59.199 And they were also worried about what it meant for 0:17:59.239 --> 0:18:02.959 open cases, even though the authors of the Peacast report 0:18:03.040 --> 0:18:06.439 were careful to say they had no view on the 0:18:06.560 --> 0:18:10.719 legal question of whether any past cases were erroneously decided. 0:18:11.080 --> 0:18:14.719 People convicted of a crime where questionable forensic science was 0:18:14.840 --> 0:18:17.600 used might be able to appeal their case and even 0:18:17.639 --> 0:18:22.119 walk free. Professor Jim Gates, again one of the report's authors, 0:18:22.800 --> 0:18:25.320 there's a large part of the pushback that comes from attorneys, 0:18:25.399 --> 0:18:30.600 quite frankly, particularly prosecuting attorneys. And one can understand why 0:18:31.719 --> 0:18:35.119 are there motivations for this, because in the current state, 0:18:35.560 --> 0:18:37.999 a forensic science is a tool that basically they can 0:18:38.119 --> 0:18:41.919 use to get convictions. The only problem, as I said, 0:18:41.959 --> 0:18:45.399 as an outside scientist, many of us outside the field say, 0:18:45.560 --> 0:18:48.879 this isn't science. You're using the power science. But you're 0:18:48.919 --> 0:18:52.119 not doing science. And this is a deep moral as 0:18:52.119 --> 0:18:56.320 well as practical problem. I have no criticism at all 0:18:56.479 --> 0:18:59.520 of the people who actually do the forensic science. It's 0:18:59.560 --> 0:19:05.080 a systemic problem that exists, and that systemic problem impact 0:19:05.280 --> 0:19:10.239 some communities more than others. Black people and brown people 0:19:10.560 --> 0:19:14.519 and other people for marginalized communities, but especially black people, 0:19:15.439 --> 0:19:20.519 suffer the punitive effects of our criminal legal system more 0:19:20.679 --> 0:19:25.000 and more harshly at every single stage of the process. 0:19:25.840 --> 0:19:29.639 A recent report by the National Registry of Exonerations found 0:19:29.679 --> 0:19:33.439 that Black Americans are seven times more likely to be 0:19:33.479 --> 0:19:38.840 wrongly convicted of serious crimes than white Americans. So, if 0:19:38.840 --> 0:19:42.239 that's the snapshot, and then you have a prosecutor or 0:19:42.239 --> 0:19:45.719 a prosecutorial entity saying, well, I won't be able to 0:19:45.760 --> 0:19:49.000 get a conviction if I don't have this tool. Well, 0:19:49.040 --> 0:19:52.320 if you particularly want to take somebody's liberty away, who 0:19:52.399 --> 0:19:55.840 is more likely to be black or brown? In this context, 0:19:56.679 --> 0:20:01.800 we should be making sure it's reliable and producing reliable results. 0:20:02.040 --> 0:20:04.199 At the least, if you should be able to do 0:20:04.239 --> 0:20:06.279 any of this at all, you should be doing it 0:20:06.280 --> 0:20:10.359 with tools that are reliable. Both prosecutors and defense attorneys 0:20:10.520 --> 0:20:14.519 call on expert witnesses to enter forensic science evidence into 0:20:14.560 --> 0:20:18.520 court and to explain that evidence to the jury. Judges 0:20:18.560 --> 0:20:21.840 are supposed to be the gatekeepers of those expert witnesses 0:20:22.119 --> 0:20:25.960 to make sure junk science or junk scientists aren't allowed 0:20:26.000 --> 0:20:30.199 in court. But that's not happening. Sometimes you have experts 0:20:30.239 --> 0:20:33.439 who come in and lab codes and it feels really scientific, 0:20:34.159 --> 0:20:37.919 even when it's not. It can have this effect of 0:20:38.639 --> 0:20:44.320 making other aspects of a case that are questionable sort 0:20:44.320 --> 0:21:10.560 of wash them away. We've talked about how law enforcement 0:21:10.600 --> 0:21:14.639 and prosecutors rely on forensic science, but what about judges. 0:21:14.879 --> 0:21:18.639 How do they fit in a critical Supreme Court ruling 0:21:18.719 --> 0:21:22.800 in nineteen ninety three set as standard on evidence judges 0:21:22.800 --> 0:21:27.359 are supposed to follow. Here's David Fegman again. He specializes 0:21:27.399 --> 0:21:30.559 in the use of scientific research and legal decision making. 0:21:31.560 --> 0:21:34.479 And then you had in nineteen ninety three, the United 0:21:34.479 --> 0:21:38.119 States Supreme Court decided what is now a landmark case, 0:21:38.239 --> 0:21:42.520 Daubert versus Merldal Pharmaceuticals. And what the US Supreme Court 0:21:42.600 --> 0:21:45.959 said was that judges under the federal rules of evidence 0:21:46.280 --> 0:21:48.639 had to be gatekeepers and they had to look at 0:21:48.679 --> 0:21:54.560 the underlying methods and principles for scientific evidence that's being 0:21:54.560 --> 0:21:58.479 offered in court. It's called the Daubert standard after the 0:21:58.560 --> 0:22:02.799 court case that established it. So what happened in the 0:22:02.800 --> 0:22:07.159 early nineties is courts started look at what the data 0:22:07.280 --> 0:22:11.239 actually were, what the methods that were being used, and 0:22:11.280 --> 0:22:14.240 they realized that there wasn't much there. And a good 0:22:14.239 --> 0:22:17.600 example of that is handwriting in the handwriting area. Quote 0:22:17.639 --> 0:22:21.200 started asking well, where the data, and the forensic scientists 0:22:21.199 --> 0:22:24.359 basically said, well, we don't have data, we don't have studies, 0:22:24.719 --> 0:22:27.639 but we know we can do it because we've been 0:22:27.679 --> 0:22:30.799 doing it for twenty five years. So trust us. And 0:22:30.919 --> 0:22:34.799 judges said, well, under the Daubert rule, you have to 0:22:34.800 --> 0:22:36.759 tell us the statistics. You have to give us the 0:22:36.800 --> 0:22:39.919 research studies. They have to be pure viewed in mainstream 0:22:39.959 --> 0:22:43.479 scientific journals. And these experts started saying, we don't have 0:22:43.520 --> 0:22:47.159 any of that, and judges, I think we're surprised. Through 0:22:47.199 --> 0:22:51.279 pre trial evidentiary hearings, judges are supposed to evaluate the 0:22:51.359 --> 0:22:54.560 forensic science and rule on whether or not a jury 0:22:54.600 --> 0:22:57.719 should hear it. What people forget is that judges are 0:22:58.320 --> 0:23:01.920 human being subject to the same kind of cognitive pressures 0:23:01.959 --> 0:23:06.159 that other people are This is Nancy Gertner. I was 0:23:06.239 --> 0:23:09.600 a criminal defense lawyer and a civil rights lawyer for 0:23:10.199 --> 0:23:12.639 twenty four years, and I was on the bench federal 0:23:12.679 --> 0:23:16.399 bench for seventeen and now I teach, I write, I 0:23:16.520 --> 0:23:19.959 do some litigation. I'm sort of a gadfly in lots 0:23:19.959 --> 0:23:23.800 of areas. When judges are asked to decide on these issues, 0:23:24.040 --> 0:23:29.520 they often fall back on established precedent. If forensic evidence 0:23:29.560 --> 0:23:34.519 has been admitted over the years have in an unchallenged way, 0:23:34.600 --> 0:23:37.799 then there's precedent for it, and a judge, a trial judge, 0:23:37.879 --> 0:23:41.359 knows that allowing it in is consistent with the precedent. 0:23:41.639 --> 0:23:45.439 It enforces this feedback loop that keeps us from critically 0:23:45.479 --> 0:23:50.760 examining forensic evidence. Overruling that precedent is rare because it's 0:23:50.760 --> 0:23:53.759 a big deal. A ruling like that is like a 0:23:53.840 --> 0:23:57.560 rock thrown in a pond. It can send ripples system wide. 0:23:58.119 --> 0:24:01.560 So judges will often let the evidence and the expert 0:24:01.560 --> 0:24:05.239 witness in and then the chances are that if you 0:24:05.320 --> 0:24:10.080 let in evidence like this, you'll be affirmed. You will 0:24:10.119 --> 0:24:13.279 be affirmed on appeal, and you'll be affirmed on appeal. 0:24:13.359 --> 0:24:17.679 Because the review of evidentiary decisions that a judge makes 0:24:18.239 --> 0:24:22.679 is actually quite cursory, is really not very substantial. So 0:24:22.719 --> 0:24:24.919 if a judge says, I'm going to allow in this 0:24:25.239 --> 0:24:28.919 arson evidence based on the precedent, even if it's unexamined 0:24:28.959 --> 0:24:31.319 precedent over years and years and years and years, the 0:24:31.359 --> 0:24:33.879 odds are you'll be affirmed. And I think that that 0:24:34.080 --> 0:24:37.639 kept lawyers from raising the issues. It's good for the 0:24:37.679 --> 0:24:44.080 system to have standards of some threshold reliability and the 0:24:44.119 --> 0:24:47.999 irony or the tragedy is on the civil side, the 0:24:48.080 --> 0:24:51.600 courts are pretty good at restricting what comes in. And 0:24:51.679 --> 0:24:53.720 it's really been on the criminal side and the forensic 0:24:53.760 --> 0:24:56.840 side that it's been a much steeper held a quie. 0:24:57.719 --> 0:25:01.520 So that means on the criminal side juries not judges 0:25:01.679 --> 0:25:05.720 are often weighing forensic evidence. The judge, you'll say, well, 0:25:05.760 --> 0:25:07.800 I'll err on the side of let the jury decide 0:25:08.199 --> 0:25:10.520 that way. It won't be error that way. I won't 0:25:10.560 --> 0:25:14.600 be making a mistake that way. Know, the acquittal in 0:25:14.639 --> 0:25:16.479 this case of the hung jury won't be on me. 0:25:17.359 --> 0:25:20.719 So if you're a juror and you're sitting in a courtroom, 0:25:21.439 --> 0:25:24.959 you are likely to weigh evidence that you perceive to 0:25:25.000 --> 0:25:28.520 be scientific or from an expert more highly than other 0:25:28.600 --> 0:25:32.919 pieces of evidence. In that case. This is Manka Sinha again, 0:25:33.560 --> 0:25:36.959 and that's a fundamental problem because the jurors don't know 0:25:37.119 --> 0:25:40.879 about the carcerel origins of these disciplines. Jurors don't know 0:25:41.159 --> 0:25:45.119 about the criticism and the scrutiny that these disciplines have 0:25:45.199 --> 0:25:48.879 received for failing to really shore up the scientific underpinnings. 0:25:49.239 --> 0:25:52.999 Jurors don't know that stuff. Scientific studies have revealed that 0:25:53.080 --> 0:25:59.159 forensic science testimony has outsized influence with juries. Jay Kohler 0:25:59.280 --> 0:26:03.399 teaches at Northwestern's Pritzker School of Law and studies behavioral 0:26:03.439 --> 0:26:07.639 decision theory. Studies show that jurors generally do give a 0:26:07.639 --> 0:26:11.439 lot of weight to expert testimony, and because this testimony 0:26:11.479 --> 0:26:14.359 is often technical in nature, jurors tend to rely on 0:26:14.399 --> 0:26:17.800 the experts credentials and experience when deciding how much weight 0:26:17.840 --> 0:26:20.559 to give to this testimony. But some studies show that 0:26:20.639 --> 0:26:23.479 jurors don't particularly care about whether the methods used by 0:26:23.520 --> 0:26:27.760 the experts have been scientifically tested or not. Instead, they're 0:26:27.800 --> 0:26:31.560 generally content to trust the credential and experienced expert. This 0:26:31.600 --> 0:26:34.560 is a problem in some forensic sciences, where most experts 0:26:34.560 --> 0:26:38.840 are trained and experienced, but where the methods used haven't 0:26:38.879 --> 0:26:43.879 been subjected to rigorous scientific testing. When these experts testify 0:26:43.959 --> 0:26:47.359 in trials, they tend to use one phrase over and over, 0:26:47.879 --> 0:26:52.679 reasonable scientific certainty. But what does that even mean? To 0:26:52.719 --> 0:26:55.239 a reasonable degree of scientific certainty? Is kind of a 0:26:55.280 --> 0:26:57.839 bogus phrase. It doesn't really have any meaning. It's just 0:26:58.000 --> 0:27:00.800 a phrase that has caught on in the courtrooms over 0:27:00.840 --> 0:27:04.080 the last ten or twenty years. Unfortunately, now people are 0:27:04.080 --> 0:27:07.159 onto it and realizing that's just a misleading wave of saying. 0:27:07.479 --> 0:27:11.719 In my opinion, here's what I think has happened. The 0:27:11.800 --> 0:27:15.280 phrase came about in nineteen thirty five as a ploy 0:27:15.320 --> 0:27:18.560 from a lawyer. The case was about a death resulting 0:27:18.600 --> 0:27:22.399 from a capsized boat. The plaintiff's lawyer asked a witness, 0:27:22.719 --> 0:27:25.800 a man who had experienced building this kind of motor boat, 0:27:26.119 --> 0:27:30.679 if he could quote determine with reasonable scientific certainty the 0:27:30.800 --> 0:27:34.639 cause of the capsizing of the boat. So a guy 0:27:34.679 --> 0:27:38.559 who had experience in building boats, not a scientist, was 0:27:38.600 --> 0:27:43.959 providing scientific certainty. David Fegman, most of the folks that 0:27:44.040 --> 0:27:48.639