Science and the Forensic Sciences
| Author | Alan D. Gold |
| Pages | 125-144 |
Chapter
5:
Science
and the
Forensic
Sciences
THE
forensic identification
sciences1
have come under renewed critical
scrutiny
in
light
of
evidence law's new-found emphasis
on
science.2
It has
come
to be
strongly
and
persuasively suggested
that
many
of the
well-rec-
ognized areas
of
forensic identification science comprise
too
much
of the
forensic
and too
little
of the
scientific.3
Most
such
expert
evidence
is
given
by
employees
of
government-owned
and
police-related laboratory
facilities.
These
areas
of
expert evidence,
it is
said,
owe
their survival
more
to
precedent than
to
merit. They have been described
as
"...
Science
Constructed
in the
Image
of the
Criminal
Law."4
An
emphasis
on
scien-
tific
validity
may
well compel reassessment
of
some
of
these topics
to see
if
they
can
meet
the
standards
for
admissibility grounded upon
"good
science."
1 For a
traditional review,
see
generally G.M.
Chayko,
E.D. Gulliver,
&
D.V. Macdougall,
Forensic
Evidence
in
Canada (Toronto: Canada
Law
Book, 1991).
2 For
example,
a
leading
article
by
Michael
J.
Saks,
"Merlin
and
Solomon: Lessons
from
Law's Formative Encounters with Forensic Identification Science" (1998)
49
Hastings
LJ.
1069 begins
one
section with
the
introduction:
"This
Part reviews
the
task
of
forensic iden-
tification
science,
the
field's
origins,
the
evidence
on
which
its
claims rest,
and
possible rea-
sons
for its
arrested development
as a
science."
3
Andre
A.
Moenssens, "Novel
Scientific
Evidence
in
Criminal Cases: Some Words
of
Cau-
tion"
(1993)
84
Crim.
L. &
Criminology
1 at 6,
asserting
that
most crime
lab
personnel
are
"technicians,"
not
trained scientists,
and are
prone
to
pro-police bias
and
averse
to
rigor-
ous
scientific
investigation.
4
Saks, above note
2 at
1090.
[12.5]
FIVE:
SCIENCE
AND THE
FORENSIC
SCIENCES
It
remains
too
early
to
discern
how
courts will respond
to the
wide range
of
techniques that
fall
within
the
forensic
science category.
The
principal
difficulty,
it
appears,
is
that many
of
these techniques have been relied
upon
for so
long that courts might
be
reluctant
to
rethink their role
in the
trial process. Topics like handwriting identification analysis, ballistics, bite
marks,
fiber
analysis
and so on are the
staples
of
expert testimony.
Yet,
even
from
a
distance,
it is
immediately apparent that many
forensic
tech-
niques
could
not
pass
the
most minimal Daubert scrutiny.
At the
very least,
Daubert requires judges
to ask
where
are the
data.
In
many forensic areas,
effectively
no
research exists
to
support
the
practiced
Again,
the
relevance
of
precedent should
be
noted.
The
highly case-
specific
nature
of the
decision regarding
the
admissibility
of
expert
evidence
has
already been pointed
out.6
Just because similar
or
even iden-
tical expert opinion evidence
has
been admitted
in
previous cases does
not
automatically mandate admission again. Admission depends upon
a
balancing
highly dependent
on the
particular issues
and
evidence
in
each
individual
case.
It
would also
be
foolish
to
deny that traditionally recog-
nized
areas
of
expert evidence
enjoy
the
advantage
of
precedent,
no
mat-
ter
how
illogically. Nevertheless, there
can be no
doubt that
an
increased
emphasis
on the
dictates
of
good
science
now
renders
some
traditional
areas
of
forensic
expert evidence highly suspect.
The
types
of
evidence implicated here
run the
gamut
from
fingerprint
evidence,7
handwriting
comparisons,8
hair
and
fibre
comparisons, docu-
ment analysis, bite-mark
comparisons,9
firearm
identification,10
toolmark
5
David
L.
Faigman, David
H.
Kaye, Michael
J.
Saks,
&
Joseph
Sanders,
Modern
Scientific
Evidence,
2
vols.
(St.
Paul,
MN:
West Publishing,
1997) vol.
1 at 33.
6 R. v.
600;
R. v.
A.K.
and
N.K.
(1999),
27
C.R.
(5th)
226 at
para.
76
(Ont. C.A.);
R. v.
Chisholm
(1997),
8
C.R.
(5th)
21 at
para.
57
(Ont.
Gen.
Div.).
7 The
first
appellate (and perhaps
the
only) case
in the
United States admitting lip-print evi-
dence
to
identify
the
perpetrator
of a
crime
was
People (Illinois)
v.
Davis,
(111.
App.
2
Dist.
1999),
appeal
denied
720
N.E.2d
1097
(111.
1999).
The
decision assimilates
lip
prints
to
fingerprints.
8
Joan
Griffin
&
David
J.
LaMagna,
"Daubert
Challenges
to
Forensic Evidence: Ballistics
Next
on the
Firing
Line"
(Sept./Oct. 2002)
XXVI.-8
The
Champion
(NACDL)
20 at
21-22.
9 See
Howard
v.
State
(Mississippi),
(Miss.
1997)
regarding inadmissible evi-
dence.
See
also Faigman
et
al.,
above
note
5,
vol.
2, c. 24,
"Identification from Bite
Marks,"
156-87;
Saks, above
note
2 at
1119-27.
10
Faigman
et
al.,
above
note
5,
vol.
2, c. 23,
"Firearms
and
Toolmark Identification," 124—
55;
Saks, above
note
2 at
1106—12.
Especially
useful
is
Griffin
&
LaMagna,
above
note
8
at
20.
[12.6]
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