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August 5, 2011

Not All Forensic Evidence Reliable, ABA Experts Say


By Betsy M. Adeboyejo
Aug. 5, 2011

TORONTO — Judges analyzed the challenges with forensic science evidence yesterday at the _ Annual Meeting, as DNA, fingerprints, handwriting, hair, bite marks, bloodstains and bullets were put on trial at a session designed to evaluate forensic evidence.

“You are likely to see challenges to forensic evidence play out in your courtroom,” warned Judge Herbert B. Dixon Jr. of the Superior Court of the District of Columbia, speaking at “Forensic Science, A View from the Bench: Challenges for the 21st Century,” a program of the Judicial Division.

Dixon’s discussion hinged on a report by the National Research Council of the National Academies of Science “Strengthening Forensic Science in the United States: A Path Forward.” He admonished meeting attendees to get a copy of the report, which examines the credibility of various forms of forensic science and, with the exception of DNA, highlights questions of “admissibility as to evidence we have traditionally allowed the government to introduce.”

Got Science? 9 Ways to Learn with Lexis-Nexis

Panelist Nisha A. Falcigno, a lawyer at LexisNexis, is responsible for implementing legal and technical solutions to help judges make effective judicial decisions.

Falcigno listed services that are available on LexisNexis to assist judges:

  • Forensic Sciences
  • Courtroom Toxicology
  • Defense of Drunk Driving Cases (samples included)
  • Criminal Investigation Handbook
  • BNA Digital Discovery and e-Evidence Report
  • HOMO-Journal of Comparative Human Biology
  • Digital Investigation
  • Arkfeld’s Judicial Bench Book
  • Arkfeld’s Best Practice Guide

In the forensic sciences category, judges can type in a hypothetical question and get answers.

“There are valuable resources that could help you in the courtroom,” Falcigno said.


“The uncritical acceptance of various forensic sciences needs to be reexamined because in many instances they have not undergone the rigorous process to meet standards,” said Dixon.

Dixon pointed to errors that have occurred in contextual bias in fingerprint cases. “The lesson is you can’t take forensic science for granted. You have to look at it with a critical eye and, for judges, expect that challenges will occur.”

Joining Dixon on the panel was Chief Judge Donald E. Shelton, author of the book, Forensic Science in Court: Challenges in the Twenty-First Century .

“Most of us became judges because we couldn’t stand science,” Shelton quipped. “Now, we’re the gatekeepers of scientific evidence.”

Shelton encouraged the audience of judges and lawyers to educate themselves in the area of forensic science and to also use resources that are available to help make more informed decisions.

Shelton said that forensic evidence in criminal cases has been around for more than a century. It has been the last 20 years that doubt has surfaced around forensic testimony. He said though DNA is the “gold standard,” judges cannot continue with the status quo of admitting traditional types of forensic evidence that has long been viewed as reliable.

Shelton said the increase in the number of wrongful convictions is an indication that the routine admission of non-DNA expert testimony may be misleading.

Most of the discussion was anchored in the 1993 Daubert v. Merrell Dow Pharmaceuticals case. That case said the trial judge is the gatekeeper.

As to forensic evidence, Shelton said, “We have to make sure it’s valid science and not junk science.”

“Just the fact that we have always admitted evidence doesn’t mean that it’s scientific. Judges must examine anew whether the scientific evidence is valid,” Shelton added.

Judge Stephanie Domitrovich, chair of the National Council of State Trial Judges, the moderator of the session, agreed with Shelton.

While closing out the program, she reminded judges that it is important for them to use Federal Rule 706, which gives trial lawyers the authority to appoint their own experts.

She later said, “If one lawyers’ expert says it’s purple and another lawyers’ expert says it orange, I get to intercede and say ‘I want to appoint my own expert.’ This is a great rule, but many judges are reluctant to use it. In the long run, you save money and time and you’re able to have good science in the courtroom, not junk.”
ABA Annual Meeting 2011

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Comments (1)

  • phd jd
    1:59 PM August 7, 2011

    As a scientist (chemist/physicist) before I became an attorney, I have noticed that a lot of “scientific” things get into the court as evidence that I would question and doubt the results as a scientist. It calls into question our judicial system.