Judge Rakoff has another provocative essay in the NYRB, discussing forensic science in the US courts. Or should one write "forensic science"? It covers, briefly, the absurdity of the Mayfield case, making clear just how thin the grounds for his detention were. It was more than confirmation bias at work. Or rather a good deal less. But the overall topic, the treatment of science in the US courts is large and serious topic. There is greater focus on the use in criminal cases. It creates a more stark moral picture to have people (men, mostly) off to prison for decades based in large part on ridiculous or dishonest presentations in court. There is no science of blood spatter or science of bitemarks, TV notwithstanding. The misuse of evidence like DNA or fingerprints is not of the same order, but it is certain that the discussions by witnesses are not just false, but structured in ways that deeply corrupt, by which I mean more or less intentionally obfuscatory, inaccurate, and misleading. The story is no better in civil cases. Experts are vetted to give the right outcome as part of deciding to hire, come to court with the predicted testimony and rely on methods that are in no way science. It is just that money is what changes hands, not freedom.
There is plenty of blame to share. Lawyers do what they are expected to do, paid to do, and what the rules of professional conduct direct them to do -- look to the interests of their clients. That is the procedural structure. It is useless to ask lawyers to act in a different way. Still, that does not get one out from under the tent. Lawyers can, because I know lawyers who do, try for experts who have a reliable methods, are part of properly scientific or expert social structure (in other words, are actively involved in the relevant culture and practice). On the criminal side, the economic constraints alone make the whole conversation painful. Criminal defense just does not have the resources to mount challenges to prosecution experts, let alone to present experts of their. The whole process of the criminal law system is, well, dismal to contemplate.
One link in the system could be improved: the judges. They could start learning some of the relevant statistics and science, they could have schools on social sciences. I do not think it will happen any time soon, but these things are possible. And necessary, because it is judges who decide what is admitted to trial. Far too many judges have no understanding of the materials from experts they admit. Rakoff has good discussions of these issues. There is one additional point I would make here -- another problem is that the courts create fake facts. Some analysis is admitted, the judge says it is good enough, and then that is set forever. Two examples, one has a little light and the other not. Shaken baby syndrome and fingerprints. For some years testimony that an infant was killed or injured because it was shaken was taken as established based on inferences from spinal and brain injuries. But over time the medical science changed (or more accurately, some science developed), establishing that the inference just was not substantiated, was not reliable. Or recovered memories. And some courts stopped accepting the testimony. On the dark side, fingerprint testimony is accepted everywhere even though it lacks a reliable scientific foundation. The probabilities are made up, the standards for matching are no more than "connoisseurship".
Courts should engage their own experts more. The standards for admissibility ought to be tightened. I should be the next Doge.
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