By now, most Americans have watched "CSI," "Law & Order," or some other variation and are fully convinced that crime scenes are dripping with DNA. These shows have led to what criminal justice insiders refer to as the “CSI effect,” a problematic belief by jurors that not only is forensic science readily available at all times, but is also infallible.
Nothing could be further from reality.
Fewer than 10% of cases involve DNA evidence in the first place, and the misapplication of forensic science has been the culprit in 45% of the thousands of wrongful convictions that have been discovered.
Rather than be viewed as a savior, forensic science should be viewed with caution. It can be used as a tool to re-examine evidence, solve cold cases, and exonerate the innocent, but it can also be used as a weapon.
One thing crime shows on TV never got around to in all that airtime examining the supposed daily work of forensic labs is how those labs are often financed.
It’s a little-known fact that conviction rates drive the funding of crime labs. More convictions equals more revenue — an incentive so perverse it’s hard to believe. But here’s the proof.
When an entity’s income comes from its ability to produce convictions instead of its ability to find the truth, errors — and potentially corruption — are inevitable. Since crime labs are often paid by law enforcement agencies, this arrangement can lead to a partisan bias where the experts tend to favor the prosecutor over the defense.
The results of this are frightening.
In West Virginia, organic chemist Fred Zain perjured himself and gave erroneous testimony that led to convictions in many cases. After a review of nearly 200 cases he had influenced, special prosecutors concluded that the guilt of 134 people was substantially in doubt.
And in Oklahoma, Joyce Gilchrist has been accused of falsifying evidence during her 21-year tenure as a forensic chemist — leading to 23 death sentences. Twelve of those sentences culminated in executions, and one of them has been exonerated.
These characters, while notorious, are not outliers.
Aside from outright corruption, ineptitude abounds in America’s crime labs.
In Harris County, home to the most death penalty cases in Texas (the U.S. leader in executions), independent reviews found hundreds of cases where incompetence, lack of guidance and resources, and even intentional bias contributed to mistakes. The problems ranged from not running proper scientific controls, to inconsistencies between the lab report and what was said in court, to a lack of independent reviews (or even access to the results before court) for the defense.
These problems aren’t siloed to Harris County.
Similar problems have been discovered in labs ranging all the way from Washington to North Carolina. In Virginia, an independent lab even found contradicting results in the samples used to send a man to the death chamber.
Lastly, there are often problems with the concreteness of the science being used to begin with.
Several practices once considered foolproof, such as microscopic hair analysis, arson evidence, and bitemark evidence, have all been debunked as “junk science” in recent years. And in a 2009 report, the National Academies of Science also noted the lack of scientific evidence supporting the accuracy of modern fingerprint analysis. But that doesn’t mean those convicted using these techniques as evidence have been released, or even given new trials or evidentiary hearings.
In fact, it is quite difficult for those convicted to have evidence re-tested. Shifts in scientific understanding can take decades, and many states do not recognize discredited evidence as new evidence of a wrongful conviction. Only five states have enacted laws clarifying this process.
Even DNA typing, the academic discipline based on human genetics and long held out as the superior tool in forensics, has flaws. The problem in this area is not with the science itself but in how we use it.
When first developed by Alec Jeffreys in the mid-1980’s, the technique involved side-by-side comparison tests, a complete sizeable sample (blood from the crime scene) next to another complete sizeable sample (blood from the suspect). But now, labs are using methods of extraction to pull even the tiniest fragments of DNA from objects (like a smeared thumbprint or so-called touch DNA) and using these incomplete DNA profiles to make matches. The reading of these complex mixtures is much more subjective than scientific.
In 2013, the National Commission on Forensic Science was formed to investigate the use of forensic science, how it was being portrayed in the courtrooms, and the soundness of the science being used by witnesses during trials. In 2017, former U.S. Attorney General Jeff Sessions allowed this charter to expire. Today, there remain very few checks on crime labs or their testing of forensic science.
DNA hasn’t saved us from human error or bias, and we shouldn’t expect it to. At the end of the day, all components of our justice system are still operated by humans — and humans are fallible. With this in mind, it’s obvious that we should not allow this system to carry out irreversible sentences like the death penalty, and an urgency ought to be placed on protocols that both review forensic science and usher in new results.
Hannah Cox is the National Manager of Conservatives Concerned About the Death Penalty. Hannah was previously Director of Outreach for the Beacon Center of Tennessee, a free-market think tank. Prior to that, she was Director of Development for the Tennessee Firearms Association and a policy advocate for the National Alliance on Mental Illness. To read more of her reports — Click Here Now.
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