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It’s time for real criminal justice reform

Law Bulletin columnist

Published: November 23, 2016

Reform is coming to forensic science. For decades, forensic examiners, in Chicago and elsewhere, have provided compelling yet false testimony against poor people in criminal cases.

Forensic examiners routinely testified that the bullets from a crime scene could be “matched” to a single gun to the exclusion of all other guns in the world. They made this claim based on a few scratches on the side of a bullet recovered from the crime scene.

While this type of testimony makes for good TV on CSI shows, it makes for unfair criminal trials because such testimony is not scientifically justified.

Similar to cases involving ballistics, fingerprint examiners have likewise testified for decades that crime scene fingerprints could be matched to a single person — to the exclusion of all other people on earth and with zero chance of error.

As with ballistics, there was never any scientific justification for these claims. We — lawyers and judges in Chicago and across the country — permitted this false testimony to infect the criminal justice system.

A recent comprehensive report by a panel of leading scientists implores stakeholders in the forensic science community to reform their ways.

In a report titled “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” the White House Council of Advisors on Science and Technology states clearly and bluntly the problems with most forensic evidence as offered by crime labs and prosecutors today.

As impetus for the report, the council acknowledges the “dismaying frequency of instances of the use of forensic evidence that do not pass an objective test of scientific validity.”

Noting that the hallmark of reliable forensic evidence is scientific validity (objective large-scale testing which shows that forensic methods actually work), the council concludes that “the foundational validity of the field of (forensic ballistics) had not been established.”

Translated, this means that prosecutors have been soliciting testimony of ballistic “matches” in criminal trials even though there is no scientific justification for such claims.

With regard to fingerprint evidence, the council found that only two studies have been published addressing the validity of fingerprint evidence, and these studies establish error rates as high as one error in 18 cases. Even DNA evidence has serious problems when DNA examiners testify in complex cases without sufficient scientific justification.

The council’s report evoked a bit of déjà vu for many in the criminal justice system. Seven years ago, the National Academy of Sciences issued a similar report, criticizing many forensic practices and calling for reform.

Back then, Cook County judges did not heed this call for reform and continued to admit any and all forensic evidence proffered by prosecutors. Even today, prosecutors present expert testimony on ballistic and fingerprint “matches” even though such claims are thoroughly discredited.

Hopefully, the White House Council’s report will change things.

Forensic reform will not cost taxpayers millions of dollars — all it will take is for the criminal justice system stakeholders to trust the scientific community and reject flawed forensic evidence.

And in rejecting flawed forensic evidence, taxpayers might just be saved from the million-dollar payouts that often accompany wrongful convictions.

Brendan Max is chief of the Forensic Science Division in the Cook County Public Defender Office.