I wonder if we should focus more on debunking and understanding this type of pseudoscience.
I think we might start by ending the racially biased “war” on drugs and assert reasonable sentencing guidelines. This which would help take the pressures off the legal system to rush cases, allowing investigators more time and resources to do the work properly.
Debunking pseudoscience would help, but we also need to fix a system that is simply overwhelmed.
I have long questioned the wisdom of trial by jury for most types of cases. Yeah, I guess I’m a radical. But lots of other countries abandoned jury trials in part or as a whole over the years. They found jury trials fraught with unfairness and I tend to agree. Yes, no system is perfect but jury trials frighten me.
A commenter under the aforementioned article by the name of SarDeliac goes a bit far but is thought-provoking nonetheless:
Courtroom science is unscientific because a jury box is not peer review.
The point of courtroom science isn’t to demonstrate accuracy, factual information, or consistency with proofs and prior art. The point of courtroom science is to get twelve people who aren’t smart enough to get out of jury duty, and who have been raised and weaned on CSI, to return the verdict you want.
I was on a jury once that involved DNA evidence - sexual assault of a minor. The DNA evidence was garbage. Two of the tests were “inconclusive.” The third test was positive, but easily could have occured through casual contact or even shared laundry - the victim and suspect lived in the same house and their clothing was often laundered together. It was frightening how many jurors said “I saw this episode of CSI…”. If I were ever on trial, I would ask for a bench trial.
In my practice, I never asked for jury trials – that was because I never filed a case where I didn’t think my client was right, and who the hell needs a randomizer introduced to the result? Jury demands are made in civil cases for two reasons: either (1) you have a terrible case, or (2) you are hoping to get an out-of-control damages award. If you are actually in the right, you want a bench trial.
This is one of the reasons why cases where people seek injunctive or declaratory relief are rarely coupled with a demand for damages. If the Kitzmiller plaintiffs had asked for damages, the whole “is intelligent design science” question would have gone to the jury. Not a good thing when you know you’re right; great if you aren’t sure but think you can scam your way through it.
My late husband was a lawyer - malpractice defense - and hated jury trials. He thought juries were too easily swayed by emotion.
Still better than trial by combat … maybe.
I tend to lean that way as well. I can understand why the founders put jury trials into the US Constitution given the power that contemporary governments held over the judicial system, but this simply isn’t a problem anymore. I strongly doubt there is enough passion on this topic within the populace to get the constitution amended, but I do agree with your sentiments.
Note that the overwhelming majority of criminal cases are not settled by a jury but instead by a plea deal. The plea deal system is, of course, rife with its own sets of problems and injustices.
This article focuses on federal cases but has data on some states as well:
That’s certainly a part of it. I think it’s also an expertise problem, in many cases – it’s very hard for a jury to understand what an appropriate standard of care in medicine is, what the risks of procedures are even without anyone being negligent, and things like that. A lot of my work was in rather law-heavy rather than fact-heavy areas, too – but a group of jurors will never have considered, for example, what sorts of procedures for processing permit applications are and are not fair, so if I had taken one of my due process cases that I won at a bench trial to a jury instead, the outcome would have depended a lot more upon how nice my client seemed, how nice the municipal officials seemed, the political dispositions of the jurors (e.g., do they think of the problems of “rapacious land developers ruining the environment,” or do they think of the problems of “out-of-control government regulation,” when they think about what’s wrong with the world?). Jury trials in such cases wind up being a crapshoot, where a bench trial is simpler and more predictable.
Juries force lawyers to use language and reasoning understood by ordinary folk, so the justice system does not evolve into an esoteric mystery cult.
That’s possibly true. But the Brits seem to have done away with jury trial in almost all civil cases without it having much of that sort of consequence.
To the original subject:
The difficulty here is that the development of scientific standards in the courtroom has been haphazard. There are legal standards for what thresholds one has to meet in order to get expert testimony into evidence, and those legal standards are applied to facts by litigants in ordinary criminal cases who do not have the sophistication to critique them. The FBI’s “fingerprint” bullshit went on for decades before anybody seems to have really asked whether there was any empirical basis for the FBI’s claims.
The fingerprint issue came up, I think, on an episode of Frontline a few years back. There was a lawyer in Oregon whose fingerprint was found on a part of the bomb that had been used to attack the Madrid subway system. This lawyer had evidently handled a DUI once for some guy who may or may not have been loosely affiliated with a terror organization. He was arrested and charged. He had a hell of a time explaining to his own lawyers that whatever the fingerprint evidence might or might not show, the fact was that he had nothing whatsoever to do with the crime. Nobody believed him – fingerprint evidence, as we all “know,” is pretty much 100% reliable. Except, of course, that it’s not, and we actually don’t know (or didn’t then; I haven’t kept up) HOW reliable it actually is. It seems we all assumed the FBI was telling the truth all these years.
We pretty much use one process for validating the scientific evidence AND validating the expertise of the witness testifying to it. We need to separate these more plainly: corroborate the claim that the scientific evidence has been demonstrated to be sufficiently reliable to be admissible at all, and THEN evaluate whether the witness is sufficiently expert in it to be allowed to testify. But what we have tended to do is call the expert in, ask him to explain how the scientific evidence is validated and what his training is, and then make the judgment that the evidence is, or is not, admissible.
This can get comical. In the AC/DC backmasking case, a guy who had written a popular book on “subliminal advertising” testified as an expert. He said things along the lines of “science is whatever you can get away with.” He’d have made a great ID proponent.
We could solve the problem legislatively, perhaps – but that’s fraught with difficulties. The thing is: there isn’t really a rulemaking body that is in a position to do much about it. Rules of procedure tend to be about filings and deadlines and standards of decision. But perhaps a state should start up some sort of forensic science panel with rulemaking power to decide what sorts of forensic science are and are not admissible. This, of course, is problematic, too, because the “right” answer to a question like that is always changing.