Will US Courts Wake Up and Look at Bad Forensic Science?

It was once said that science over the long term is self-correcting. Too bad law isn’t.

But there is hope. There is at least one jurist who cares. US District Court Judge Nancy Gertner has issued a standing order for all prosecutors and defenders who come before her. She has ordered that they not assume the validity and admissibility of what was traditionally accepted forensic science disciplines. Indeed, she has invited a vigorous challenge of the very admissibility of such disciplines as fingerprints, bullet identification, handwriting, and trace evidence.

“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.’’

For every great and learned judge such as US District Court Judge Nancy Gertner there are literally thousands who not could care less. Perhaps in some extreme cases some even know better but choose to ignore what is wrong. These judges seek to actively block the organic progression and self-correction of science in the courtroom.

US District Court Judge Nancy Gertner

What is the excuse that some judges use to openly ignore the self-corrective action of science???

The idea that if admitted into evidence once, then it remains admitted forever. The courts point to the fact that fingerprints for example have been admitted into courtrooms for over 100 years, therefore, it must be valid. They say that in order to have a Frye or Daubert hearing, it must be a “novel” scientific method. I like to call it the “Toyota rationale”. As we all know Toyota recently made over 9.5 million cars using what it believed was a validated production methodology—but it did so the wrong way forcing a recall of millions and millions of vehicles. Just as with Toyota, claiming that just because there is 100+ years of allowing something into court, does not make it right. Repetition does not equate scientific validity.

I wonder if America’s courts are aware that they are like Pope Urban VIII when they only allow Frye and Daubert hearings for “novel” forensic science disciplines. If science obeyed this rationale that is used in the Courts, then we would still be stuck with the Ptolemaic System.