Opinion The book by the lawyer of the Innocence Project shows where science collides with the law

(Washington Post Illustration; iStock Image)
(Washington Post Illustration; iStock Image)

One of the most intractable problems in the criminal justice system is how to evaluate expert testimony. Who can offer their experience to jurors and how can courts ensure that the expertise is reliable? The acquittal records abound with expert charlatans who inflicted incalculable damage, both by sending innocent people to prison and by allowing the perpetrators to be released.

M. Chris Fabricant, Director of Strategic Litigation for the Innocence Project, has been at the forefront of these battles for more than a decade. In his furious and engrossing new book, The Science of Garbage and the American Criminal Justice System, Fabricant describes the battles he and his colleagues fought to unravel a century of fraudulent experts and bad court decisions that allowed them to thrive.

The age of the dubious forensic expert is rising with the rise of progressivism since the early 20th century, a movement that, thankfully, seeks to eradicate political corruption and replace it with science and expertise. But progressive attachment to expertise can sometimes extend to quackery – often racist. Perhaps the best example is Sir Francis Galton, a Victorian scholar often cited as the father of fingerprint identification. Galton was a mathematician, a scientist, and a celebrity. But he also believed in phrenology and eugenics (he actually coined the term) and supported the involuntary sterilization of groups he considered undesirable.

Judges have long been the gatekeepers of expertise. But judges are trained in law, not science, and these are two very different disciplines with almost conflicting goals and methods of analysis. The law gives priority to consistency and reliability; science is constantly changing on the basis of new evidence and new discoveries.

For a long time the two fields did not intersect much. The criminal justice system has developed the field of criminology, a series of disciplines that shine with the scientific face, but mostly not subject to the rigor of the scientific method, such as double-blind testing or peer review. For decades, judges have allowed trials to be tainted by fraudulent and pseudo-scientific evidence in areas such as arson, hair and carpet matching, forensic pathology and ballistics.

The credibility of some forensic disciplines was shattered in the 1990s, when DNA tests – a real science – began to show that some prisoners whom these experts considered indisputably guilty were in fact innocent. Fabricant’s book comes about 20 years after DNA testing became commonplace as courts continue to tackle this major problem with the square stake / round hole: How to reconcile science with the law.

The book focuses on three of Fabrikant’s cases, including analysis of bite marks, a field that spread in popular culture during the Ted Bundy trials in the 1970s and peaked in the 1990s. The analysis of bite marks is based on two unproven assumptions: The first is that each person’s teeth leave a unique bite mark. The second is that human skin is able to record and preserve these scars in a way that allows them to be compared to a specific person.

Fabricant documents how The people against Marx, a vague decision by the California Court of Appeals in 1975 with an unusual set of facts, triggered a huge law establishing the analysis of bite marks as a court-approved expertise. Paradoxically, in this case the court itself recognizes the coincidence of the bite marks is not science. (Instead, the judges ruled that in this particular case, the evidence of a bite mark was common sense, which allowed them to miss a scientific review.) Since then, that decision has become a textbook cascade of decisions allowing various scientifically questionable disciplines. Subsequent case law is the legal equivalent of children’s play “telephone”. A little after Marx, other court decisions cite it, erroneously stating its conduct in order to allow a new application of bite trail analysis and similar techniques. Another wave of solutions is then cited back to them, introducing still new applications and new methods of analysis. Each new citation is a misapplication of the original decision, each extension of the use of suspicious techniques, and each citation only further cements the original, already erroneous decision as a canon.

In the 1990s, DNA tests began to acquit people accused of crimes by experts on bite marks, a growing group of about two dozen today. These excuses attracted the interest of scholars, who then began to study the wrong discipline. In recent years, numerous peer-reviewed studies, scientific bodies and competency tests have shown or concluded that these basic prerequisites for the analysis of bite marks are simply not true.

Yet, as in other disproved areas of forensics, the courts have stubbornly refused to catch up. Just last February, an Alabama judge upheld a murder conviction, won mainly for witness testimony from a bite, despite the fact that the dentist who testified during the trial refused. A month later, a Michigan man was convicted of child abuse in part because government experts said they had found traces of child bites that could only be left by the man’s broken tooth. While this kind of theory may seem plausible to an audience driven by CSI repetitions, the court file is littered with sentences of allegedly strange-toothed men who were later proven innocent.

The worst thing here is not the excuses, but the fact that the courts failed to correct the course after learning about them. The manufacturer says that in at least three states – Wisconsin, Massachusetts and Mississippi – the controlling precedent, which determines the analysis of bite marks as reliable, ultimately confirms someone’s sentence, and later turns out to be innocent. That is, in a case that still allows the use of bite mark analysis in those states – and to which lower courts must turn today – the bite mark analyst was wrong.

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