An interesting article published yesterday in the
Boston Globe regarding the admissibility of forensic evidence in federal courts --
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US judge urges skepticism on forensic evidence - Gertner says she’ll expect defense lawyers to challenge its validity" [Boston Globe - 02.29.2010]
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US District Court Judge Nancy Gertner has urged defense lawyers and prosecutors not to assume that evidence presented in court is valid. "
Defense lawyers, she wrote, should vigorously challenge fingerprints, bullet identification, handwriting, and other trace evidence, and prosecutors should be prepared to show it is valid. [emphasis added]
“In the past, the admissibility of this kind of evidence was effectively presumed, largely because of its pedigree — the fact that it had been admitted for decades,’’ Gertner wrote in a March 8 order. “As such, counsel rarely challenged it, and if it were challenged, it was rarely excluded or limited.’’
"That needs to change, she said. A critique last year by the National Academy of Sciences, she noted, concluded that forensic evidence used to convict thousands of defendants for nearly a century is hardly the infallible proof of police procedurals on television. Too often, the study found, it is the product of sloppy practices that should be improved and standardized.
Spurred by the report and criminal cases she has presided over, Gertner wrote that the validity of such evidence “ought not to be presumed’’ and that defense attorneys should contest it at pretrial hearings, or explain why they do not. She will allow the evidence to go before a jury only if it meets sound scientific principles.
Defense lawyers and advocates for people who have been wrongly convicted of crimes welcomed Gertner’s order.
“It’s a wakeup call not only to other judges and to prosecutors but frankly to defense attorneys who for years — despite the rising tide of scientific reports indicating that many of the so-called tried-and-true disciplines were not in fact so true — rarely did their homework to mount serious challenges,’’ said
Peter Neufeld, a cofounder of the New York-based Innocence Project. The nonprofit group uses DNA evidence to exonerate wrongly convicted prisoners.
Neufeld, who testified before the panel of scientific and legal experts that produced last year’s report on forensic evidence, said a recent study he co-wrote for the Virginia Law Review [
Invalid Forensic Science Testimony and Wrongful Convictions. by Brandon L. Garrett and Peter J. Neufeld. 95 Va. L. Rev. 1 (2009)] found that flawed forensic testimony contributed to 60 percent of 137 wrongful convictions later overturned through DNA evidence. That makes misapplied forensic evidence the second-leading cause of wrongful convictions, behind eyewitness misidentification, he said.
A spokeswoman for US Attorney Carmen M. Ortiz of Massachusetts declined to comment on Gertner’s order.
Jennifer Mnookin, a professor at UCLA’s School of Law and leading scholar on expert and scientific evidence, said
she was unaware of any other federal judge who has issued such an order, [emphasis added] although judges have refused to let shaky scientific evidence go before juries after pretrial hearings..."
