As emphasized in our first piece in this trilogy of pieces on forensic evidence, Discovering Forensic Fraud, judges are capable of ensuring that that the forensic science evidence they admit at trial is reliable in both criminal and civil proceedings. In addition, the law mandates that they do so. The Federal Rules of Evidence and Daubert demand the application of the same standards to vet the admissibility of expert evidence in criminal and civil cases. Moreover, Kumho Tire v. Carmichael expands that mandate to exclude capricious forensic evidence regardless of whether it is characterized as “scientific” or “technical.” Unfortunately, thirty-one states have failed to embraced the holding of Kumho Tire. As a result, litigants are not entitled to raise Daubert challenges to fire evidence that courts deem technical knowledge, rather than scientific, in the overwhelming majority of American jurisdictions.
The ongoing admission of flawed fire science in criminal cases causes us to circle back to the problem Daubert sought to address: the courts’ failure to exclude junk science in American trials. Criminal courts must follow their civil counterparts and rigorously enforce gate-keeping when prosecutors proffer questionable forensic “science” evidence in order to secure a conviction. Moreover, criminal defense attorneys must invoke Daubert and challenge unreliable forensic science during the trial proceedings. As several courts have held, the failure to do so falls below the constitutional requirements that attend to effective advocacy. In a recent opinion piece in the LOS ANGELES TIMES, none other than famed legal novelist John Grisham frames the current state of affairs as follows:
Over the past five decades, our courtrooms have been
flooded with an avalanche of unreliable, even atrocious
“science.” Experts with qualifications that were dubious at
best and fraudulent at worst have peddled — for a fee, of
course — all manner of damning theories based on their
allegedly scientific analysis of hair, fibers, bite marks, arson,
boot prints, blood spatters and ballistics. Of the 330 people
exonerated by DNA tests between 1989 and 2015, 71%
were convicted based on forensic testimony, much of which
was flawed, unreliable, exaggerated or sometimes outright
fabricated.
Unfortunately, faulty fire science has been responsible for several high-profile wrongful convictions. Unless and until the courts close their doors to subjective, inaccurate, and unreliable fire origin and causation conclusions, “horror stories about wrongful prosecutions and convictions will undermine the public’s confidence in the ability of the justice system to respond appropriately to fire losses.”