Science and the Forensic Sciences

AuthorAlan D. Gold
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 .
    
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 .

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