The show referenced a recent study and report '2009 Forensic Sciences Report' - which I reviewed and wrote about for The Legal Investigator (official publication of the National Association of Legal Investigators) "Just Because Its Forensics" at http://www.bluetoad.com/publication/?i=60952 Winter 2011 issue (I reviewed the 2009 report a few months before that). Colleague and fellow NALIan Kathleen Cunningham wrote "Attacking Forensics: This is Real Life, Not CSI" at http://www.bluetoad.com/publication/?i=102512 Winter 2012 issue. Kathleen is a Medical Investigator and Medical Legal Nurse Consultant; she worked for the renowned Gerry Spence - I'm sure he hires only the best for his clients, that is why they hired him. She reviewed the concept of CSI and experts - and provides detailed information and a list of resources to search and research experts.
Education is non-stop, training is non-stop, experience is non-stop. Within our agency, Karen and I have written extensively on death investigation protocols and importance of understanding the art and science of investigation and forensics. First, to define 'forensics' is the application of any particular subject to the judicial system. It is not necessarily science - Karen and I are investigators, not scientists or medical doctors. We use science and medicine to enhance the art of investigation. Forensics, like investigation and related skills, is art and science.
First, there is the realization by the FBI that they have learned that science is not 100% correct or infallible. After several instances of being proven wrong, they no longer allow their personnel to testify as being 'with a 100% certainty' or 'infallible'. Regardless of that testimony or opinion stated in another forum, it is simply not possible to assert such a claim. The science may be infallible or 100% correct within the confines of the study, testing and available conclusions of that time. In the future that may not be. When there is human involvement, individual minds using individual education, training and experience, and biases - there is going to be a chance for human or other error. Often the defense team cannot challenge such findings, it is time and cost prohibitive. Prosecution does have almost unlimited resources -- they can send fingerprints, DNA and other physical evidence to the FBI or state labs for analysis, at no charge. The defense cannot, and they have no private equivalent without the necessary funds. I have worked many cases that had this problem.
It is often belief of science over art. If a theory is proven scientifically, it is believed to be 100% valid. However, the human factor is the art -- and problems arise when improperly trained, biased, or not independently -- art in the judicial system is interpreted just as art hanging on the wall.. That is essentially the difference - the concept may be science, the human factor is art.
This show discussed the necessity and, by some judges, a recommendation of having one professional organization certify experts. That may be a few judges, but I know many that would disagree - as does case law. There are associations specific to specialties and Scientific Working Groups (SWGs) of those working these specialties for improvement - it is in their collective best interests. As an analogy, insurance companies use screeners to give approval or denial to treatment and fees -- do you want something similar for experts?
When an expert is declared, there is a jury instruction that is given (though maybe not heard or heeded) that goes something like this (from Commonwealth v. Montecalvo):
When a case involves a technical issue, a person with special training or experience in that technical field is permitted to give his or her opinion about that technical issue, in order to help you as the jury.
Merely because a witness has expressed an opinion, however, does not mean that you must accept that opinion. In the same way as with any other witness, it is up to you to decide whether to rely on it. You may accept it or reject it, and give it as much weight as you think it deserves. In making your assessment, you may consider the witness’s education and experience, the reasons given for the opinion, and all the other evidence in the case.
The voire dire leading to the admission of the expert can be arduous, and may be longer than the actual expert's testimony. At testimony there are issues of medical certainty, scientific certainty, reasonable, reliable, probable, consistent -- all based on education, training and experience. There is no scientific certainty to experience, that is the art. Both defense and prosecution, or plaintiff and defense, have available to them experts that follow the same standards and certifications. Again, if it is not time or cost prohibitive. In one indigent case we were involved in, the defendant was denied new DNA testing for his criminal trial because the judge delayed a decision on cost (he could not deny the testing) until it was too late to have the tests done, and the amount he authorized was less than half of the discounted fees the lab and consultant offered.
Finally, it cannot be ignored the role of media. Media created this show and for what intended purpose? It was biased -- it provided no information or cases in which the same art and science were proven, either in guilt or innocence. It did not validate or dispel CSI, it really did not discuss CSI (CSI being crime scene investigation). It did concentrate on crime labs, personnel and processes.
In the end, we tend to believe what works in our favor and disbelieve what does not. If a fingerprint proves innocence, it is science or if it proves guilt, it is art and vice-versa. It is important to research the process and facilities, know the protocols and consult with independent subject matter experts. As Judge Edwards stated in the closing of this Frontline show - "It is not pro prosecution or pro defense, it is pro justice."
Dean A. Beers, CLI, CCDI is a Certified Legal Investigator and Certified Criminal Defense Investigator. He is a published author and has lectured extensively and authored multiple articles, peer-reviewed white papers, including Practical Methods for Legal Investigations: Concepts and Protocols in Civil and Criminal Cases, released by CRC Press in February 2011, and previously Professional Investigations: Individual Locates, Backgrounds and Assets & Liabilities.
Mr. Beers a member and Forensic Investigations Advisor of the Criminal Defense Investigation Training Council.
He began his investigative career in 1987 and operates Associates in Forensic Investigations LLC, with his wife, Karen, also a CCDI. They have two daughters, a granddaughter and identical twin grandsons.
"We speak for the deceased. To them we owe the truth." AFI-LLC intro video http://www.youtube.com/watch?v=OgsvtbSk8fg