Forensic science is badly in need of a “system overhaul” that is less weighted towards bolstering prosecution, according to a forthcoming paper in the Alabama Law Review.
Most experts now agree that much of the forensic evidence presented in modern courtrooms has been “junk dressed up as scientific analysis” and would greatly benefit from a series of abolitionist-framed reforms, writes Maneka Sinha, an assistant professor of law at the University of Maryland Francis King Carey School of Law, the author of the paper.
It’s also subject to racial bias, Sinha argued.
According to the paper, 24 percent of wrongful convictions were due to faulty forensic evidence, and 54 percent of those convictions involved Black or Latinx defendants.
This means that communities which are already more at risk of being involved in the criminal justice system are put at an even worse disadvantage by the forensic science community, argues the paper, entitled “Radically Reimagining Forensic Evidence.”
“Real change requires scaling back and divesting from carceral institutions that create harm and replacing them with institutions designed to value Black, Brown, and other marginalized lives.”
But, Sinha notes, forensic science is so deeply resistant to change that it is “‘beyond ‘reform’ in the sense that tweaks around the edges cannot fix it.”
“Rather, to root out the problems that prevent the forensic science system from performing in the ways that it purports to—as a system that provides reliable, objective evidence that can aid in the pursuit of justice—systemic overhaul is needed,” Sinha writes.
Even though extensive research has proved that many reforms are needed for forensic evidence to be consistently reliable in court, such reforms provide a “veneer of reform” and little action has actually been done, the report argues.
“Ironically, the extent to which lay people without scientific training tend to trust forensic science evidence and mistakenly believe that it brings neutrality, fairness, accuracy, and certainty to the criminal process has allowed forensic evidence to do just the opposite,” Sinha writes.
Because forensic evidence is most influential in the courtroom, the science itself closely aligns with the prosecution side of the criminal justice system, said Sinha. Evidence that, because of vague national standards, isn’t completely valid or verifiable, can still be used to sway a jury.
That’s one reason why prosecutors have been resistant to genuine change, Sinha argued.
Two reports that focused on major reforms and upheavals of the forensic science system, the NAS and PCAST, were both largely undermined and discredited by prosecutors, as a way to “exert influence over the forensic science landscape,” said Sinha.
“The latest effort, riddled with scientific inaccuracies, mischaracterizations and wholly false claims, appeared to be no more than a last-ditch effort by the Department of Justice under former President Donald Trump to discredit the PCAST Report before judges give it greater consideration in admissibility determinations,” said Sinha.
“These reactions to and attempts to undermine the PCAST and NAS Reports are among the most prominent collective efforts by prosecutors to exert influence over the forensic science landscape but are by no means the only ones.”
Unlike other forms of science, which thrive on peer review, rigorous controls for error and continued research, forensic science primarily exists to close a criminal case, putting more emphasis on timeliness rather than scientific research.
While there is forensic science research that resembles other standards of science, such feedback is less common and less widespread than in other fields, according to the report.
“Once a conviction is obtained, there is little incentive for prosecutors to encourage further research that might result in findings that undermine the forensic evidence that has proven persuasive to judges and juries,” said the report.
“Instead, forensic scientists often receive positive feedback for their work, regardless of the accuracy of their findings.”
Reforms arising from past studies have failed to make a significant impact on the justice community, claimed Sinha. For example, accreditation of forensic scientists who testify at trials, was meant to establish common standards across different forensic labs.
But the effort proved “weak” and “inadequate” to the need, the report said.
The lack of guidance on ensuring quality forensic evidence prevents assurance that what was submitted is accurate, said Sinha. Peer review, adequate testing, and reliability are all lacking when considering forensic evidence.
“Commonly used forensic techniques can be made admissible by wrapping them up in the trappings of science—as laid out by relevant admissibility standards—even when what lies beneath has hardly been established as reliable,” wrote Sinha.
Because forensic evidence is portrayed as strict science in the courtroom, faulty or invalid evidence can cause an innocent person to spend time within the criminal justice system that they wouldn’t have to otherwise -— leading to significant harm to their mental health, finances, as well as job, family life or housing status.
“Not only do forensic methods enable carceral harm; they also launder and legitimize it by cloaking surveillance, policing and prosecution with the allegedly neutral and objective aura of ‘science.’”
Sinha applied what she called an “abolitionist lens” to the future of forensic science, citing that much like the movement to defund police, the forensic science system also needs to be completely rebuilt and restructured in order to function adequately.
“Forensics might still be used to identify those who cause harm, so long as such methods are not used to funnel people into the carceral system and so long as communities are empowered to determine how, and for what purposes, forensic method may be used in achieving accountability,” said Sinha.
The paper is forthcoming in Volume 73 of the Alabama Law Review.
Emily Riley is a TCR Justice Reporting intern.