No doubt, anyone who is reading this has read about or seen news coverage of individuals being released from incarceration through the use of DNA evidence that exonerated that individual. It is a true case of wrongful conviction and is becoming more common. These cases raise the question of the reliability of scientific evidence presented at trial. Within the past year, a Congressionally mandated report from the National Research Council found serious deficiencies in the nation’s forensic science system and called for major reforms and new research. The report found that mandatory certification programs for forensic scientists are lacking, as are strong standards and protocols for analyzing and reporting on evidence. There is also a scarcity of peer-reviewed studies establishing the scientific bases and reliability of many forensic methods. You can read an article about the report by clicking here http://www8.nationalacademies.org/onpinews/newsitem.aspx?RecordID=12589
Essentially, the report determined the only reliable source of scientific evidence was DNA evidence. Here we are, six months later, with a new report about DNA that could throw the NRC’s determination down the drain. In Israel, a study was conducted to determine whether DNA evidence can be fabricated. The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person. Bottom line, the Israeli study shows that even DNA can be altered in a crime scene. To review the article, click here http://www.nytimes.com/2009/08/18/science/18dna.html?_r=2
These two articles taken together may have a devastating effect on the practice of law. Lawyers should be challenging the physical evidence against criminal Defendants such as fingerprints, blood spatter, tire comparisons, and other forms of “science” that are introduced against them. Since the studies are so new, it is unclear how the courts will rule on these issues, but they should, at the very least, be raised and tested.
This is the day of CSI and Law & Order. Most jurors are seeking hard proof to the hard crimes for which they sit in judgment. Perhaps the studies reflect that we, as citizens, seek more stringent regulation of the so-called “scientific proof” that is brought against individuals.