Science and the Forensic Sciences

• Author: Alan D. Gold
• Pages: 131-155

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Chapter 5

Science and the Forensic Sciences

      sciences have come under renewed critical

scrutiny in light of evidence law’s newfound emphasis on science. Critics say

there is too much of the forensic and too little of the scientic. Most e xpert evi-

dence is gi ven by employees of govern ment-owned and police-rel ated laboratory

facilities, which are seen to owe their survival more to precedent than to merit.

ey have been described as “Science Constructed in the Image of the Crim-

inal Law.”

 A reassessment of some of these facilities is needed to see if they can

meet the standards for admissibility grounded upon “good science.”

It remains too early to discern how courts will respond to the wide range of

techniques that fall w ithin the forensic science category. e principal di-

culty, it appears, is that many of these techniques have been relied upon for so

 For a traditional revie w, see generally G.M. Chayko, E .D. Gulliver, & D.V. Macdougall,

Forensic Evidence in Ca nada (Toronto: Canada Law Book, ).

 For example, a leading artic le by Michael J. Saks, “Merli n and Solomon: Lessons from

Law’s Formative Encounters with Forensic Identication S cience” ()  Hastings L .J.

, begins one section w ith the introduction: “is Par t reviews the task of forensic

identication science, the eld ’s origins, the evidence on wh ich its claims rest, and pos sible

reasons for its arreste d development as a science.”

 Andre A. Moenssens , “Novel Scientic Evidence in Crim inal Cases: Some Words of Cau-

tion” ()  Crim. L . & Criminology  at , a sserting that most crime la b personnel are

“technicians,” not trai ned scientists, and are prone to pro-police bias and averse to rigor-

ous scientic investigation.

 Saks, above note  at .

    

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long that courts might be reluctant to rethink their role in the trial process.

Topics like handwriti ng identication analy sis, ballistic s, bite marks, ber a n-

alysis and so on are the staples of expert test imony. Yet, even from a distance,

it is immediately apparent that many forensic techniques could not pass the

most minimal Daubert scr utiny. At the very least, Daubert requires judges to

ask where are the data. In many forensic areas, eectively no research exists to

support the practice.

e types of evidence to be reviewed here run the gamut from ngerprint,

rearm, and toolmark identication to handwriting analysis and hair and bre

comparison. e history of these categories and the explanation why forensic

sciences have not proceeded along the rigorous lines of “real science” are well

described by one commentator:

Forensic science plainly has something of value to oer crimina l investigators

and the courts. Why, then, does so much of it cling , instead, to an untenable

absolution and committed subjectivity? By contrast, conventional science

would have proceeded along a dierent course, one guided by the necessity

of collecting and analyzing data to test assumptions. I n court, conventional

scientists might be expected to share wit h the fact nder the analytic basis of

their opinions, their data , and their data-based assessments of the risk of error.

In s hort , conve ntion al sc ienti sts w ould coll ect b ette r dat a and o er t hem t o the

courts without overselling them. W hy doesn’t forensic science proceed along

that more recognizably scientic path?

e answer likely is that forensic science grew up in the criminal law. e

exigencies imposed on it by police and prosecutors molded it into its contem-

porary shape. A par ticularly dramatic demonstration of this is the lengths to

which some forensic scientists have been willing to go to provide courts with

the testimony prosecutors wanted courts to hear, regardless of the truth.

...

e institutional setting of forensic science promotes habits or thought

that more closely resemble the thinking of litig ators than of scientists. While

science pursues knowledge through disconr mation, prosecutions are won by

conrmatory proofs. i s conrmator y bias dominates the thinking of most

forensic scientists. W here science advances by open di scussion and debate for-

ensic science has been infected by the litig ator’s preference of secrecy. Tests of

the prociency of cr ime laboratories are conducted a nonymously, kept secret,

and are not routinely published. It is ironic that while studies of the eective-

 David L. Faigma n et al., ModernScientic Evidence,  vols. (St. Paul, MN: West, ) vol.

 at .