Saturday, September 16, 2017

Why criminal court judges are poor forensic gatekeepers

Yes. This.
Why do judges frequently fail to keep faulty forensics out in criminal cases despite the fact that they rigorously enforce Daubert’s gatekeeping requirements when presiding over civil cases? Daubert requires trial judges in both civil and criminal proceedings to determine “whether the reasoning or methodology underlying the testimony is scientifically valid.” As the relevant research reveals, however, judges are far more willing to fulfill their gatekeeping roles in civil cases than criminal ones. Challenges to forensic evidence pretrial, including Daubert hearings, are rare in the criminal context. As the NAS Report makes clear, “the vast majority of the reported opinions in criminal cases indicate that trial judges rarely exclude or restrict expert testimony offered by prosecutors.” The evidentiary standards that apply to expert forensic evidence should be identical in civil and criminal proceedings according to the Federal Rules of Evidence and relevant precedent, yet courts rigorously engage in gatekeeping of such evidence in civil proceedings while giving broad leeway to prosecutors in criminal proceedings. Therefore, the courts’ failure to exclude faulty forensics in criminal cases cannot be explained away simply by pointing to judges’ lack of scientific prowess.
In Just Liberty's next Reasonably Suspicious podcast, out tomorrow, Mandy Marzullo and I discuss the failure of Texas courts so far to adequately perform their gatekeeping function vis a vis DNA mixture evidence, updating a segment from last month's edition.

The passage above from an academic article gets to the heart of the matter: Though in theory, civil and criminal courts should be applying the same standards for scientific evidence, as a general rule they only perform a true "gatekeeping" function on the civil side.

In the past, Grits has been a tad more generous, attributing this outcome to lopsided disparities in resources on the criminal side, while civil disputes are often more equally matched in terms of both sides' ability to hire independent experts, etc.. But the reflexive posture of admitting anything the prosecution wants until their hand is absolutely forced - even disputed evidence like bite marks, hair microscopy, and black-box DNA mixture analyses - after a while becomes hard to deny.

The other segment on forensics in tomorrow's podcast discusses Texas' junk science writ, assessing a law professor's comparison between our version and California's. Left unsaid in that segment is that the reason we need habeas corpus remedies for bad science on the back end of the process primarily stems from judges' failure to perform a meaningful gatekeeping role on the front end. Well, I suppose now it hasn't been left unsaid.


Soronel Haetir said...

It is easy to find material where courts don't particularly enforce Daubert in the civil context either.

However my understanding is that Daubert is purely a creature of the federal rules, not of constitutional import, and thus state courts are free to apply a different standard (or even different standards to civil and criminal cases).

Anonymous said...

Are there meaningful penalties against trial judges for failing to perform an adequate gatekeeping role? That is, why are there not fines imposed for every trial that is found to have reversible error by the appellate? What is the incentive for a trial judge to doing a better gatekeeping job?

Bad gatekeepers can be voted out of the position by losing elections, but if the voting public doesn't know who is bad or what defines "bad", then how is the introduction of junk science into court rooms to be prevented? I've never heard a judge, when running for re-election, describe the metrics of the judging abilities -- how many times has no error vs. harmless errors vs. reversible error been found for the cases tried in his/her court? How many cases have been remanded by the higher courts?

It seems that there should be a database with this information.

Steven Seys said...

The reason there can be no penalty for a judge who abuses discretion is that the courts have given themselves and all officials that work with them immunity from penalties arising from the use of discretion in their daily activities. When any group is placed above the law, you will find a large number of them who violate the law on a regular basis.

Anonymous said...

"disputed evidence like bite marks, hair microscopy, and black-box DNA mixture analyses - " are seldom offered in civil court. Vehicle crashes, malpractice, and product liability cases bring some interesting "experts" out of the woods. Many criminal judges are former prosecutors who used some of the so called disputed methods for years. Judges tend to focus on a lab's general reputation instead of a specific analysis from that lab. Mark Twain's expert (somebody from out of town) is more likely to show up in civil cases with no prior local reputation.
The undeserved magical conclusiveness of the D word (DNA) remains for judges and juries.

Anonymous said...

Addendum to @7:47
If only they (judges and juries) knew just how imperfect the DNA amplification process can be at low templates amounts with poor quality (degraded). Education issue.

Anonymous said...

At the end of the day the judge, the prosecutor and the DPS lab (or a surrogate thereof) are all members of the same club. As a former DPS crime lab supervisor, I found that most Texas state judges treated us as visiting dignitaries (especially in the smaller remote counties) and took offense when some out of town defense lawyer started attacking our integrity or methods. The "Brotherhood of the Badge" is powerful, unspoken and requires everyone to play their part. That's why I left, none of it has much if anything to do with real truth, justice or the American way. It's all and only about winning and if you believe you are the good guys then anything can and will be justifiable.

Anonymous said...

Daubert is indeed a federal case, but has been adopted by almost all states. Texas law - criminal and civil - largely mirrors Daubert.

IMHO , in state criminal proceedings, the problem is not the law itself, but that defense counsel either don't have the funding/resources, or lack the will/knowledge to mount competent challenges to bad science. I am an appellate lawyer and I rarely see a trial record showing any kind of effective challenge to the state's scientific evidence. It's tragic, and I don't know what can be done to change this situation, since most prosecutors are quite happy to go on presenting questionable scientific evidence, and most judges don't even begin to perform their independent "gatekeeper" function.

Anonymous said...

@8:39, also 5:22-
That's all the more reason to apply penalties to bad gatekeepers. If a trial gets remanded, fines for everyone who didn't do their jobs adequately. (less cost for the taxpayers.)

For Defense Attorneys who claim to not have funding or resources...

1. Get the exit interviews from Human Resources for the lab analysts that most recently departed the labs you're going up against. They may have left the lab knowing the dirty laundry of the methods and protocols (e.g. the ex-DPS Lab Supervisor.) They may have the actual written protocols for you too. They may know of Corrective Actions or emails describing long-standing or incorrectly handled lab problems.

2. Subpoena the ex-employee. They may explain the errors or the protocols for free (but it might cost you a lunch if they provide a good testimony for you. Don't be stingy.) They might be described as "disgruntled", but remember the opposition has a "hired gun" getting paid for a biased testimony.

3. Find a forensics blog (sub-Reddit) and ask questions about specific forensic techniques. It's free, and you'll get plenty of possible situations to cross-examine the Prosecutor's expert witness.

There. No excuses now.

Anonymous said...

In reply to 8:39 -

I have been a forensic scientist at a public lab in Texas for 20 years. My experience with the court system is not reflected in 8:39's comments. In my experience, no one in the adversarial legal process is the friend of the scientist, or of science. Everyone's agenda is different based upon their roles, but the roles change constantly. Prosecutors become defense lawyers become judges become elected DAs become defense attorneys, etc. The lawyers who is your pal as a prosecutor will throw you under the bus the first chance he gets when he becomes a defense attorney. Scientists who buy into the whole legal profession chumminess thing are fools who put themselves and the welfare of their families at profound risk. Scientists stay on safe ground by maintaining themselves as subject matter experts who are outsiders to the adversarial process, and unconcerned with the larger issues of guilt and innocence. Our job is only to provide reliable observations, and fair and objective opinions. We are not the deciders of fact. Although the system may categorize and treat us as agents of the prosecution (in most instances) we can't view ourselves that way. We do everyone a disservice when we go down that road.