Forensic Fraud and the ‘Insidious’ Culture of U.S. Courtrooms

Flawed forensic evidence is a key reason for many wrongful convictions in criminal cases. Setting rigorous standards for judges and prosecutors to follow in pretrial discovery would reduce its use, argues a study published in the Northwestern University Law Review.

Rigorous rules for pretrial discovery in criminal cases will curb the use of flawed forensic science, and reduce the wrongful convictions arising from the “insidious” prosecutor-dominated culture of American courtrooms, argues a study published in the Northwestern University Law Review.

Criminal justice proceedings, unlike civil and tort trials, too often rely on questionable forensic evidence that is rarely challenged by judges or prosecutors, according to the study.

The study authors suggest the root of the problem is not necessarily individual misconduct by court officers, but the lack of consistent rules that govern the presentation of critical forensic evidence before trial.

“Systems-level procedural problems…all too often contribute to the admission of flawed forensics in criminal proceedings,” the study says.

The study added: “These dynamics are more insidious than questionable individual prosecutorial or judicial behavior in this context. Not only are judges likely to be former prosecutors, prosecutors are ‘repeat players’ in criminal litigation and, as such, routinely support reduced pretrial protections for defendants.”

The study, entitled “Discovering Forensic Fraud,” was written by Jennifer D. Oliva, Associate Professor of Law and Public Health at West Virginia University; and Valena E. Beety, Associate Professor of Law at West Virginia University College of Law.

Pretrial discovery and disclosure rules similar to those used in civil cases could “halt the flood of faulty forensic evidence routinely admitted against defendants in criminal prosecutions,” the authors claimed.

The study focused on forensic odontology—the study of bite marks—which both the American Board of Forensic Odontology (ABFO) and the White House Office of Science and Technology Policy (OSTP concluded in 2015 were an “unreliable forensic discipline.”

But, the study noted, “shockingly, courts continue to admit bite mark evidence in criminal trials and do so virtually exclusively on the bases of precedent.”

Several states have already begun to adopt more rigorous rules. Texas, North Carolina and West Virginia, for example, strengthened their criminal discovery standards following disclosures of wrongful convictions.

In 2014, Texas passed the Michael Morton Act, requiring full open-file discovery of favorable evidence after the prosecution receives a request. The Act was named after a man who was found to have been wrongfully convicted of his wife’s murder after his prosecutor—who later became a judge—hid exculpatory evidence.

The study called on other judicial systems around the country to follow suit.

“Such leveling of the playing field may return integrity to prosecutors’ offices and restore trust in our criminal adjudications,” the authors said.

This study was prepared by TCR news intern Julia Pagnamenta. She welcomes readers’ comments.