GateHouse: Presidential council to reveal problems with forensic evidence

Matthew T. Mangino

GateHouse Media

September 10, 2016

Prosecutors and law enforcement practitioners are bracing for bad news from The President’s Council of Advisors on Science and Technology (PCAST). President Barack Obama formed PCAST in 2009 following the National Academy of Science’s report that concluded, aside from DNA, there was little, if any, meaningful scientific underpinning to many of the forensic disciplines.

According to The Intercept, which saw a yet to be released copy of the PCAST report, the council has concluded that forensic bite-mark evidence, among other findings, is not scientifically valid and is unlikely ever to be validated.

The report, titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” is marked as a “predecisional” draft, suggesting the report will be made public sometime this month, reported The Intercept.

The report reviews a handful of common forensic practices, so called feature-comparison disciplines, or pattern-matching practices which involve an “expert” examining evidence and determining whether it matches a particular image, person or object.

PCAST is an advisory group of the nation’s leading scientists and engineers who report to the President and formulate policy in the many areas of science, technology, and innovation.

In 2009, the National Academy of Sciences reported, “Forensic science research is not well supported, and there is no unified strategy for developing a forensic science research plan across federal agencies. Relative to other areas of science, the forensic disciplines have extremely limited opportunities for research funding.”

The FBI has begun to come to grasp with the ills of flawed forensic evidence. Last year the FBI admitted that, after reviewing 500 cases that employed microscopic hair analysis, examiner’s’ testimony contained erroneous statements in at least 90 percent of the cases.

Defendants in at least 32 of those cases received the death penalty, according to the FBI. Nine of those defendants have been executed, and five died of other causes while on death row.

The review is part of an ongoing, long-term investigation of decades of FBI microscopic hair analysis that the agency is conducting in partnership with the Department of Justice, the Innocence Project and the National Association of Criminal Defense Lawyers. The project launched in July 2013, and last year’s announcement covered the first 500 cases of an estimated 3,000 spanning from the 1970s up to 2000.

With regard to bite-mark analysis the record is little better. At least 24 individuals charged or convicted, of murder or rape, based at least in part on identifying bite marks on the flesh of victims have been exonerated since 2000, according to the Innocence Project. Many of those individuals spent time behind bars. A small group of dentists belonging to the American Society of Forensic Odontologists are responsible for the proliferation of bite-mark analysis. Those dentists’ findings are often key evidence in prosecutions — even though there is no scientific proof that teeth can be matched definitively to a bite into human skin. The FBI doesn’t use it, and the American Dental Association does not recognize it.

“Bite-mark evidence is the poster child for unreliable forensic science,” Chris Fabricant, director of strategic litigation at the New York-based Innocence Project told The Associated Press. According to the Washington Post, there are hundreds of people in prison due to bite-mark testimony, including at least 15 on death row.

Even fingerprint analysis — the gold standard of evidence — is under fire. Until recently the FBI described fingerprint identification as 100 percent infallible, that is no longer the case. “There’s going to be, I think, variability anytime there’s a human involved in the process,” FBI expert Melissa Gische told PBS’s Frontline.

There is even more evidence under scrutiny — shoe and tire tread prints, tool marks, ballistics and even bias in line-up and eyewitness identification. The PCAST report is only the first step in what promises to be a long journey through the criminal justice system.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him atmattmangino.com and follow him on Twitter at @MatthewTMangino.

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