Mar
26

A Modest Proposal For Connecticut's Crime Lab

It would not take much to assure that there were fair criminal trials supported by a truly neutral and independent crime laboratory in Connecticut. But I suspect most folks like the way things are and see little need for change. But none of those folks were responsible for producing the National Academy of Science's recent report on the use of science to investigate crimes.

Entitled Strengthening Forensic Science in the United States: A Path Forward, the 2009 report should be must reading for every judge in the state. Criminal defense lawyers will benefit from it, too: It is a storehouse of information about weaknesses in what we use as evidence. As to prosecutors, well, I suspect more than a few will wish the report were never written.

First, a pet peeve. There is no such thing as forensic science. There is simply the forensic use of science.

The scientific method, that revolutionary force that has set the world a whirring for the past 300 years, is simple: We observe the world, render hypotheses about how things are related. Patient observation and experimentation yield reliable theories on the nature of the physical world. Good science knows the strengths and weaknesses of its particular methods.

What, then, is called forensic science? That's simply a Latinate deceit. Science refers to what can be know. The fora is simply a courtroom. Forensic science is really no new and more reliable version of the core sciences. It is mere applied science. Methods used to investigate the natural world are used in the context of a legal proceeding. The next time you see a witness call himself a forensic scientist, slap him silly. There's no such thing.

Of course, the NAS doesn't go that far. No use stirring verbal hornet's nests when innocent men and women are going to prison based on evidence lawyers and judges, much less juries, do not comprehend. The NAS wants better applied science in the courtroom.

One of the report's more radical proposals is to sever the tie that binds many of the nation's forensic laboratories to law enforcement. There is a subtle bias, the report notes, when an investigator takes his check and his bearings from the needs of law enforcement. Science takes no sides. The truth sometimes convicts and it sometimes sets free.

In Connecticut, the state's forensic laboratory is housed within the same agency as the state police. While its employees profess a willingness to talk to any and all, it is hard to take this seriously. Any law enforcement agency can get testing done by requesting. The same is not true, I suspect of any defendant.

The Connecticut General Assembly can show national leadership quite simply with regard to the state's crime lab. Here's a three-part reform that should be met with open arms by anyone who believes in fair trials.

First, transfer control of the forensic lab from the Department of Public Safety to the Department of Public Health. This is merely an act of administrative fiat. A neutral lab belongs somewhere other than a law enforcement agency. Let it go to the same agency that assures public health. Wrongful convictions kill spirits.

Second, charge any user of the lab the same fee. When New Haven's Police Department, for example, needs a DNA test, charge a flat fee. Charge the same to any defendant asking for it. Those folks without means could apply for an indigency waiver. Indeed, nothing prevents a town from crying poor and asking for such a waiver as well.

Finally, require that the laboratory be managed by a three person panel. One appointee would come be recommended by the Office of the Chief State's Attorney. Another would be recommended by the Public Defender's Office. The final would be appointed by the Legislature's Judiciary Committee. Let the governor appoint an ombudsman to respond to complaints about whether the lab is truly neutral and even-handed.

It's a simple proposal, really. Watch who opposes it: Law enforcement and lab employees They like things just as they are. I wonder why.

Reprinted courtesy of the Connecticut Law Tribune.
Comments (3)
Posted on April 1, 2009 at 1:52 pm by Aaron Brudenell
Even without the current and prevailing practices ...
Even without the current and prevailing practices of ASCLD/LAB and ISO 17025 crime laboratory accreditation, peer review of reports and conclusions by qualified scientists, and an endless array of individual institutional measures within each agency to ensure quality and accuracy, this "problem" is still a just a phantom. In the courtroom, the members of both the prosecution and defense (and in some cases, the jury, too) are free to challenge the assertions offered by scientific witnesses as they see fit. Opposing experts can be brought to testify, published research can be presented, tests can be reviewed or redone by independent practitioners, and educated members of the bar can challenge the expert’s qualifications or individual assertions directly. This is, or at least should be, the highest form of oversight, especially when those answers offered by the scientific experts are unscripted and recorded for posterity (mistakes in testimony last forever).Crime labs go above and beyond these measures, often to excess and absurdity, and yet the majority of academic and legal critics choose to focus on adding to these crime lab specific layers of quality control. If a serious problem of bias or quality exists, wouldn't it make more sense for these critics to address these issues within their own venue of the legal arena governed by these judges, lawyers, and policy makers in order to affect how such wanting expert testimony is proffered? The author cautions readers to take note of those in crime labs and law enforcement who oppose his “simple proposal” without taking similar care to observe the pedigree of like-minded critics who seek an end run around established evidentiary practices in their own field. You don’t see scientists trying to appoint themselves as overseers of the legal system to correct perceived problems within their own areas of interest.

Posted on March 31, 2009 at 5:28 am by Anonymous
When government funded crime labs AND private labo...
When government funded crime labs AND private laboratories are all accredited by the same independent body, and have to meet the same set of rigorous standards, then I will listen to your opinion that crime labs may need to be separate from law enforcement agencies. If a government funded/sponsored lab does shoddy-work, they should be closed until they can consistently prove that a standard of quality has been met. The same is true for any private 'crime' laboratory that does analysis on evidence. And how far do you allow defense attorneys to go in the pursuit of justice for their clients? If one lab's opinion is not good enough, are two opinions sufficient? Or three, or four...or can they keep searching for a scientist who will support 'their' view of the 'facts'? And how about the real-life scenario (which occurs frequently)when the defense does hire its own lab, gets the same results as the government lab, but is not required to have the results presented as testimony?

Posted on March 30, 2009 at 6:07 pm by Robert J. Shem
Having a "neutral" applied science lab may not be ...
Having a "neutral" applied science lab may not be the best answer to the perceived problems with crime labs associated with law enforcement agencies. With a single lab assessing the evidence where is the quality control of the lab results? The current system of adversarial courtroom science allows a defendant the opportunity to secure his own expert witness, often at the expense of the taxpayer. Opposing experts are the best line of defense against shoddy lab work. With a "neutral" public health courtroom science lab the State would be less willing to fund a second opinion.It ain't broken, so don't fix it.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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