The crim­i­nal defense attor­ney is truly not the enemy of foren­sic sci­ence, the pros­e­cu­tion is.  That is a pretty bold state­ment, but it is true.  The way that prosecutor’s present foren­sic sci­ence in the Court­room is the biggest hin­drance to the truth.

I took the time to go out and attend the 62nd annual con­fer­ence of the Amer­i­can Acad­emy of Foren­sic Sci­ence (AAFS).

Justin McShane at the AAFS conference

I have to tell you that I was impressed over­all by the open­ness of the foren­sic sci­en­tists and Med­ical Exam­in­ers that I met.  I had many a dis­cus­sion with them espe­cially the younger ones pre­sent­ing their posters (I found that the poster pre­sen­ta­tion was a fan­tas­tic oppor­tu­nity and am most glad I went to it).  To a per­son they were the oppo­site of the type of folks that I had met in the adver­sar­ial set­ting in the Court­room.  I found and iden­ti­fied areas of com­mon ground and con­sen­sus.  I dis­cov­ered that they too were con­cerned about the hon­est pre­sen­ta­tion of sci­ence and truth in the court­room, just like ideal lit­tle old me.

I had met an ana­lyt­i­cal chemist who taught foren­sics at a col­lege on the plane flight.  The long 5+ hour flight yielded a great amount of time to dis­cuss a vari­ety of things.

We were both rel­a­tively young.  (31 and my 33)  As we sat and chat­ted, we tried to answer the fol­low­ing ques­tion:  “If we had a mag­i­cal wand, but it was a rea­son­able one, what would we each wish to come true to improve the sci­en­tif­i­cally hon­est pre­sen­ta­tion of foren­sic results in a Courtroom?”

Justin McShane at the AAFS conference

We can find consensus

This is the very rough prod­uct of what we con­cluded would be the result of that mag­i­cal wand and our con­sen­sus.  We first stated def­i­nitely that these pre­cepts applied to both sides when­ever they called a wit­ness to the stand

1. There needs to be wide-scale true sci­en­tific val­i­da­tion of the under­ly­ing method that the tes­ti­fy­ing wit­ness must be able to present and explain to the trier of fact(e.g., why this step is com­pleted in this order; why this is done and not that).
2. Allow­ing access to the raw data gen­er­ated on any test and the method­olo­gies employed upon demand for sci­en­tific review.
3. Tes­ti­fy­ing experts must imme­di­ately admit and fully dis­close their bias.  They must also address what, if any reme­dial mea­sures, they took to con­trol this bias.  This reme­di­a­tion must be effec­tive and mean­ing­ful and not superficial.
4. Tes­ti­fy­ing wit­nesses must rec­og­nize both the exis­tence and the scope of their lim­i­ta­tions in terms of their exper­tise and not tes­tify beyond it.  (e.g., a trained oper­a­tor of a machine ver­sus a true cre­den­tialed Sci­en­tist; who trained you? How do you know what you know?)
5. The removal of loaded lan­guage from the vocab­u­lary of the court­room and ceas­ing the over­state­ment of a posi­tion.  (e.g., “Match”; “Identical”)
6. As a tes­ti­fy­ing wit­ness, you must go beyond the stan­dard min­i­mum in your pro­fes­sional devel­op­ment.  Train.  Read.  Do not over­state in your CV.
7. Stand for exter­nal proficiency
8. Uncer­tainty must be reported in a metro­log­i­cally respon­si­ble way.
9. The recog­ni­tion that the impor­tance of any court case can­not be mea­sured by the ver­dict as it is often incon­gru­ous to it.  If an error is dis­cov­ered dur­ing direct or cross exam­i­na­tion that you rec­og­nize, be a sci­en­tist announce it.  Even if there is a guilty ver­dict, then be a respon­si­ble sci­en­tist don’t shrug your shoul­ders and con­tinue to do wrong.