Moriarty on the NAS Report on Forensic Science

Jane Campbell Moriarty (University of Akron School of Law) has posted Will History Be Servitude?: The NAS Report on Forensic Science and the Role of the Judiciary (Utah Law Review, Vol. 2010, No. 2, 2010) on SSRN. Here is the abstract:

For several decades, the prosecution and its witnesses have maintained that despite little research and virtually no standards, they can match a fingerprint, handwriting, bullet and bullet cartridge, hair, dental imprint, footprint, tire track, or even a lip print to its unique source (collectively, “individualization evidence”). Not only can they match it, they claim, they can do so often without any error rate.

In the last few decades, with the help of lawyers and academics, litigants have challenged the underlying reliability of individualization evidence. Scholars in various disciplines have written about the startling state of individualization evidence, including its lack of standards, research, and established error rates, and its failure to rely upon statistical probabilities to estimate the likelihood of a match. Since its inception, the Innocence Project has exonerated more than 250 people, a majority of whose convictions have involved inaccurate or even fraudulent forensic science testimony, including individualization evidence.

Despite the lack of proof that such evidence is scientifically reliable (and continued exculpations), courts have rejected most challenges to individualization evidence and continue to admit such testimony. With every exoneration, proof mounts that forensic science cannot do what it claims to be able to do with the precision alleged. By not requiring minimal standards for the reliability of individualization evidence, courts have allowed the forensic science system to operate without any checks and balances and to convict innocent people in numbers we can only estimate.

In February 2009, the National Academy of Sciences issued its long-awaited and groundbreaking report on the status of forensic science, Strengthening Forensic Science in the United States: A Path Forward (“the NAS Report”). The NAS Report is a scathing indictment of both the state of the forensic science system and judicial rulings on such individualization evidence.

This Article discusses the findings of the NAS Report, relevant cases that predate the report, and some cases decided since the report. It posits that the judiciary, which has created a standard of reliability, has failed to hold prosecutorial expert evidence to that standard. Using examples from history and modern cognitive science explanations, the Article tries to explain why the judiciary has been so unwilling to rigorously examine forensic science evidence and urges the judiciary to rethink its perspective going forward.

While the NAS Report suggests an overhaul of the current system, that overhaul is a contentious idea that may well not occur in the near (or even longer) future. Thus, a current crisis exists that the judiciary must address in its day-to-day decision making. The Article suggests how the judiciary can become a more effective crucible for testing the strength and limitations of forensic science.

Whether a fleeing suspect, who was intentionally shot in the back by police but not immediately arrested, was “seized” for Fourth Amendment purposes.

April M. Zeoli , Hannah Brenner (pictured) and Alexis Norris (Michigan State University – School of Criminal Justice , Michigan State University – College of Law and Michigan State University) have posted A Summary and Analysis of Warrantless Arrest Statutes for Domestic Violence in the United States (Journal of Interpersonal Violence, Forthcoming) on SSRN. Here is the abstract:

In the United States in 2005, more than 60% of the more than 564,000 nonfatal, violent incidents perpetrated by intimate partners were reported to the police. Whether police arrested the alleged perpetrators of domestic violence in response to these reports varied widely, based in part on state law governing the ability or duty of an officer to make a warrantless arrest. Although all 50 states and the District of Columbia currently allow officers to make warrantless arrests for domestic violence, state laws differ from one another in multiple, important ways. This article details, compares, and analyzes differences between state domestic violence warrantless arrest laws.

SPRINGFIELD, Ill. — An effort to abolish the death penalty in Illinois won’t go forward in the final hours of this year’s legislative session, supports are saying, because they don’t yet have the 60 votes they need to get it by the House. They will try again in the first week of January.

“We’re in the high 50s,” Jeremy Schroeder, executive director of the Illinois Coalition to Abolish the Death Penalty, told me a little while ago. He said there was “not enough oxygen” around this week to push it through the system, meaning too much other high-profile stuff was going on. (Civil unions, gambling expansion, pension reform, to name a few.)

The current lame duck session will reconvene in the first week of January, giving the abolition proponents a narrow window before the Jan. 12 swearing-in of the new class of lawmakers. It will still be a Democratic majority after that, but a narrower one, and none of them will be on their way out of office.

Illinois has had a moratorium on executions since 2000, when it was discovered the state had 13 innocent men on death row. Death sentences have continued being handed down, but the state has indefinitely stopped all executions, pending on-going review of the system.

Death penalty opponents this month have launched a major push to take the death penalty off the state’s books completely, arguing that the special legal reviews and safeguards necessary for death-penalty cases are costing the cash-strapped state millions of dollars, for what has become a merely hypothetical sentence. (Here’s our earlier story on the new lobbying effort.)

The movement to get the abolition vote through the system during the lame duck session has, itself, been controversial, with pro-death-penalty supporters accusing them of trying to ram it through the system with the support of outgoing lawmakers.

The bill is SB3539.

5. Is Death Penalty Over in Texas?

A district court hearing will be held in Texas on Monday to determine
whether the death penalty is unconstitutional due to the risk of
wrongful convictions. It will be the first time in the state’s history
that a court will examine the issue of innocent people being executed in
the Texas judicial system, according to the Huffington Post. The case
will be brought by lawyers for John Edward Green, Jr. who is charged
will killing a Houston woman during a 2008 robbery. Green’s attorneys
will argue that a number of factors in Texas increase the risk of
wrongful executions. Since 1976, 12 people on the Texas death row have
been exonerated.

Sacharoff on Miranda’s Hidden Right

Laurent Sacharoff (University of Arkansas School of Law) has postedMiranda’s Hidden Right on SSRN. Here is the abstract:

Miranda v. Arizona said that a suspect can waive her right to remain silent but also that she must invoke it. How can both be true about the same right? This article argues that the Miranda “right to remain silent” actually contains two sub-rights: the right not to speak, and the right to cut off police questioning. The Court has never distinguished these as two separate rights – instead usually using the term “right to remain silent” for both – and has thus created confusion over what can be waived and what must be invoked. But when we separate the two rights, we see that Miranda implicitly held that a suspect can waive the right not to speak but must invoke the right to cut off questioning – a premise implicitly confirmed by both the majority and the dissent in Berghuis v. Thompkins.

Leigh Buchanan Bienen (Northwestern University School of Law) has posted Capital Punishment in Illinois in the Aftermath of the Ryan Commutations: Reforms, Economic Realities, and a New Saliency for Issues of Cost (Journal of Criminal Law and Criminology, Vol. 100, No. 4) on SSRN. Here is the abstract:

In 2000 when Governor George Ryan unilaterally imposed a statewide moratorium on executions in Illinois, in response to accumulating evidence of more than a dozen wrongfully convicted persons on death row in Illinois. In 1999 the Illinois legislature created the Capital Litigation Trust Fund, to allow private, appointed defense counsel, state’s attorneys, and public defenders to be paid directly for the expenses of a capital trial from state appropriated funds, upon the approval of the trial court judge. Publishing new data on capital prosecutions in Illinois since 2000, this article documents evidence of state money spent at the county level on more than 500 capital prosecutions, the largest proportion from Cook County, which resulted in 17 death sentences imposed. More than 100 million dollars of state money has been spent out of the Capital Litigation Trust Fund alone by county state’s attorneys, appointed private counsel, and by public defenders. The availability of state funds changed the dynamics and economic and bureaucratic incentives for capital prosecution. In addition, over 64 million dollars has been spent by the state, the city of Chicago, and the counties in judgments involving wrongful convictions. This article presents data on capital prosecutions and murders across the state, and publishes for the first time the State’s Attorney’s own adopted guidelines for the selection of cases for capital prosecution. When patterns of capital prosecution are examined across the state as a whole, it becomes clear that the counties most likely to spend the state’s money on prosecuting first degree murder cases capitally are not those jurisdictions with the largest number of first degree murders. Nor is there a correspondence between the number of county capital prosecutions, the number of death sentences imposed, the number of murders or the murder rate in that county, and the amount of money spent by the county from the Capital Litigation Trust Fund. County by county disparities in capital case prosecutions and in expenditures of state money are startling. The absence of centralized review and the presence of many potential areas of conflicts of interest should submit the existing system to close scrutiny at this time of budgetary pressure.

November 23, 2010 | Permalink