Speaking to a room full of forensic scientists, attorney Jules Epstein laid out five problems with forensic science—more specifically, five problems with the connection, or lack of connection, between forensic science and courtroom members.
Epstein, a professor of law and the director of advocacy programs at Temple Beasley School of Law in Philadelphia, gave the opening keynote speech this morning at the sixth annual Forensics@NIST conference. Epsteinspot did not have a scientific background when he entered law, but became more and more immersed in the field as his career forged forward. Now a member of the National Commission in Forensic Science, Epstein has worked on DNA workgroups, capital case trainings and edited multiple books on forensic evidence in the courtroom.
Only 5 percent of lawyers have a forensic background, so the lawyers who use forensic analysis results in their arguments and the judges who rule based upon those arguments are often completed disconnected from the actual forensic science.
“It’s a pitiful stat,” Epstein remarked.
In 2009, Epstein thought he saw hope on the horizon. The National Academy of Sciences released a report titled, “Strengthening Forensic Science in the United States” that was intended to set a path forward for forensic science both in the lab and in the courtroom.
Once Epstein read the report, he thought, “tomorrow is going to be different.” Unfortunately, since then, only 140 law cases mention the report, and all the same issues remain.
According to Epstein, problem number 1 in the connection between forensic science and lawyers is that the court system still permits risky evidence.
He presented a slide with various quotes from lawyers about bite mark analysis, including but not limited to, “it’s a perfect match,” and “the match is one in a million.” Not surprisingly, this got a good chuckle from the forensic scientist-based audience who know that bite mark analysis is not anywhere near as reliable as, say, DNA.
Epstein showed the results of a recent survey of odonatologists that asked three questions about the reliability of bite marks. The answers were split on all three questions.
“They can’t even agree on their own science,” Epstein said. “But bite marks as evidence continue to be used.”
Ethics. The Forensic Science Commission proposed a “national ethics code” for forensic practitioners. Of the code, Epstein said provision 15 specifically took a lot of work to resolve. The committee came up with the following: “once a report is issued and the adjudicative process has commenced, communicate fully with the parties unless a privilege, protective order or law prevents disclosure.” However, the attorney general came back with, “Honestly communicated with all parties when communications are permitted by law or agency practice.”
Epstein said he was disappointed with that response, as he felt the words used were too vague and did not offer a strong enough recommendation for forensic scientists and lawyers—which leads right into communication/language as the third problem.
Perhaps the most problematic word in both forensic science and the courtroom is “probably.”
What is probably?
“We need to come up with better language,” Epstein said, before giving the following example.
1. The shoe/tire is the source of the impression.
2. The evidence and sample share class characteristics.
3. The result is based on one or more randomly acquired characteristics.
1. The shoe/tire probably made the impression.
2. The evidence is based on the correspondence of class characteristics.
3. The result was reached in combination with specific wear and or randomly acquired characteristics.
“If anyone can tell the difference between these two [examples], I will give you $1,000,” Epstein said, in all seriousness. “I have a check up here for $1,000.”
Of course, no one in the audience could accurately explain the difference since both examples are essentially the same thing—but use different wording.
Running out of time, Epstein quickly explained that problem four is the reliability of experts. How is “expertise” defined? Is it by years of experience, number of degrees, the city you work in? There are currently no standards concerning expert witnesses in the courtroom.
And last but not least, problem five can be summed up in one question, “when is enough enough?”
“Let’s assume uniqueness,” Epstein explained. “When are there enough minute characteristics that we can say, ‘we’re there’? Whether it’s the number of points, quality of points, or a combination of the two.” Is “sufficient agreement” enough?
“If I am wrong [about this presentation], then you know education is still continuing for lawyers,” Epstein concluded. “If I’m right, call the police. If anyone can be the police for making forensic discipline evidence, it is NIST.”