Friday, September 29, 2017

The Case of the Sleeping Gatekeepers, or Bolstering Daubert

Over the past several years - really since the lead-up to the National Academy of Sciences 2009 study of forensics - Grits has been giving increasing thought to the failure of judicial gatekeepers to adequately vet dubious evidence from forensic analysts. The NAS clarified for the lay public for the first time that many common forensic methods have no basis in science, relying instead on subjective analyses. But the full implications of their findings are only beginning to become apparent.

The subject has been especially on my mind since we did a podcast segment in August discussing the lack of judicial gatekeeping when it comes to DNA mixture evidence. In the case we discussed, the trial court admitted two different analyses of the same DNA mixture that came to different conclusions, and told jurors to pick the one they preferred! The intermediate appellate court affirmed the conviction, but didn't evaluate the question of admissibility.

That seemed to me like such an abrogation of the gate keeping function, it's hard to understand what if anything labeled "forensic" Texas judges wouldn't admit into evidence? (I mean, there's dog-scent lineups, but we had to shame them into stopping those.)

Clearly I'm not the only one thinking about how to tighten up these lax gatekeeping mechanisms. In that vein, here are several new academic analyses approaching the question from different angles:
I already printed out Giannelli's piece; these get added to Grits' to-read stack.


Anonymous said...

Greater than 90% of criminal cases do not go to trial. Judges rarely see the forensic report much less vet it for admissibility into a court room. Prosecutors, not caring if the forensic report is scientifically sound, use these forensic reports in plea bargains to show defendants. Defense Attorneys, oblivious or not caring themselves, assume infallibility and let the defendant hang.
Get rid of the plea bargain, and more forensic reports will make it to the courtroom to be vetted by the judges with more cross-examination by the Defense Attorneys (as their job performance will then be recorded and can be scrutinized.)

Soronel Haetir said...

Actually, that would be an interesting change to the plea process, require that any evidence that the state (in the form of either police or prosecution) exchanges with the defense in reaching a deal be admissible. I doubt the judges would go for it as it would entail a huge increase in their workload.