Judge Kozinski: DNA is not infallible

Ninth Circuit Court of Appeals Judge Alex Kozinski — has recently published an article in the Georgetown Law Journal providing 12 reasons we should worry about the criminal justice system. His former law clerk and blogger Eugene Volokh has serialized the article for the Washington Post.

This is the fourth in a series of Judge Kozinski's concerns with the criminal justice system, through the analysis of Mr. Volokh.

DNA evidence is infallible. This is true to a point. DNA comparison, when properly conducted by an honest, trained professional will invariably reach the correct result. But the integrity of the result depends on a variety of factors that are, unfortunately, not nearly so foolproof: the evidence must be gathered and preserved so as to avoid contamination; the testing itself must be conducted so that the two samples being compared do not contaminate each other; the examiner must be competent and honest.

As numerous scandals involving DNA testing labs have shown, these conditions cannot be taken for granted, and DNA evidence is only as good as the weakest link in the chain.

Judge Kozinski on scientific evidence

Ninth Circuit Court of Appeals Judge Alex Kozinski — has recently published an article in the Georgetown Law Journal providing 12 reasons we should worry about the criminal justice system. His former law clerk and blogger Eugene Volokh has serialized the article for theWashington Post. This is the third in a series of Judge Kozinski's concerns with the criminal justice system, through the analysis of Mr. Volokh.

With the exception of DNA evidence forensic evidence has some serious shortcomings: “Spectrographic voice identification error rates are as high as 63%, depending on the type of voice sample tested. Handwriting error rates average around 40% and sometimes approach 100%. False-positive error rates for bite marks run as high as 64%. Those for microscopic hair comparisons are about 12% (using results of mitochondrial DNA testing as the criterion).”
Other fields of forensic expertise, long accepted by the courts as largely infallible, such as bloodstain pattern identification, foot and tire print identification and ballistics have been the subject of considerable doubt. Judge Nancy Gertner, for example, has expressed skepticism about admitting expert testimony on handwriting, canines, ballistics and arson. She has lamented that while “the Daubert-Kumho standard [for admitting expert witness testimony] does not require the illusory perfection of a television show (CSI, this wasn’t), when liberty hangs in the balance — and, in the case of the defendants facing the death penalty, life itself — the standards should be higher . . . than [those that] have been imposed across the country.”
Some fields of forensic expertise are built on nothing but guesswork and false common sense. Many defendants have been convicted and spent countless years in prison based on evidence by arson experts who were later shown to be little better than witch doctors. Cameron Todd Willingham may have lost his life over it.

Read my columns on bite-mark identification, hair analysis and eyewitness identification.

Judge Kozinski on fringerprint analysis

Ninth Circuit Court of Appeals Judge Alex Kozinski — has recently published an article in the Georgetown Law Journal providing 12 reasons we should worry about the criminal justice system. His former law clerk and blogger Eugene Volokh has serialized the article for the Washington Post.  Periodically, this is the second in a series of Judge Kozinski's concerns with the criminal justice system, through the analysis of Mr. Volokh.

I have shared similar concerns through this blog.  I will provide links to my commentary as well.
Fingerprint evidence is foolproof. Not so. Identifying prints that are taken by police using fingerprinting equipment and proper technique may be a relatively simple process, but latent prints left in the field are often smudged and incomplete, and the identification process becomes more art than science. When tested by rigorous scientific methods, fingerprint examiners turn out to have a significant error rate. [Footnote: “[F]orensic fingerprint identification almost never deals in whole fingerprints. Rather, technicians use ‘latent’ fingerprints — invisible impressions that they ‘develop’ using a powder or a chemical developing agent. Latent prints are usually fragmentary, blurred, overlapping, and otherwise distorted. The challenge is to match the latent print to a pristine inked (or, these days, optically scanned) print taken under ideal conditions at the police station.” [Citations omitted.] In United States v. Llera Piaza, 188 F. Supp. 2d 549, 564 (E.D. Pa. 2002), for example, Judge Louis Pollack rejected fingerprint identification expert testimony after concluding that the field of fingerprint identification has failed to systematically test its underlying assumptions and claims of expertise.]

Perhaps the best-known example of such an error occurred in 2004 when the FBI announced that a latent print found on a plastic bag near a Madrid terrorist bombing was “a 100 percent match” to Oregon attorney Brandon Mayfield. The FBI eventually conceded error when Spanish investigators linked the print to someone else.

Here is a link to my take on fingerprint analysis in a blog at the Pittsburgh Post-Gazzette

Judge Kozinski: Eyewitness identification

Ninth Circuit Court of Appeals Judge Alex Kozinski — has recently published an article in the Georgetown Law Journal providing 12 reasons we should worry about the criminal justice system. His former law clerk and blogger Eugene Volokh has serialized the article for the Washington Post.  Periodically, I will share Judge Kozinski's concerns with the criminal justice system, through the analysis of Mr. Volokh.

I have shared similar concerns through this blog.  I will provide links to my commentary as well.

1. Eyewitnesses are highly reliable. This belief is so much part of our culture that one often hears talk of a “mere” circumstantial case as contrasted to a solid case based on eyewitness testimony. In fact, research shows that eyewitness identifications are highly unreliable, especially where the witness and the perpetrator are of different races. Eyewitness reliability is further compromised when the identification occurs under the stress of a violent crime, an accident or catastrophic event — which pretty much covers all situations where identity is in dispute at trial. In fact, mistaken eyewitness testimony was a factor in more than a third of wrongful conviction cases. Yet, courts have been slow in allowing defendants to present expert evidence on the fallibility of eyewitnesses; many courts still don’t allow it. Few, if any, courts instruct juries on the pitfalls of eyewitness identification or caution them to be skeptical of eyewitness testimony.

Here is my take in 2011 in the Pennsylvania Law Weekly