Category Archives: Scholarship

The Shifted Paradigm: Forensic Sciences’s Overdue Evolution from Magic to Law

Chris Fabricant and Tucker Carrington have posted the above-titled article on SSRN.  Download here.  The abstract states:

A decade ago a controversial article in Science Magazine predicted a coming “paradigm shift” that would push forensic sciences toward fundamental change as the result of “[l]egal and scientific forces . . . converging to drive an emerging skepticism about the claims of the traditional forensic individualization sciences.” This article argues that the predicted paradigm shift has occurred. We support our thesis through a deconstruction of the jurisprudence of two of the forensic disciplines implicated in numerous wrongful convictions – forensic odontology (bite mark analysis) and forensic hair microscopy – and an examination of a confluence of unprecedented events currently altering the landscape of forensic sciences. The empirical evidence and data gathered here demonstrates that traditional forensic identification techniques, as well as the doctrines supporting them, are ultimately no more than a house of cards built on unvalidated hypotheses and unsubstantiated or non-existent data. Several very serious consequences result, among them that state, and to some extent federal, jurisprudence that stands for the proposition that this type of evidence is admissible is objectively erroneous and must be reevaluated and effectively rejected as valid precedent; and that the long-overdue paradigm shift presents a unique ethical challenge to criminal justice professionals, one that current professional ethics regimes fail to adequately capture, even though fundamental due process norms compel the conclusion that prosecutors, defense attorneys, forensic experts and their respective governing bodies have an ethical, moral and legal duty to revisit affected cases and provide remedies. Put differently, the “path forward” for forensic sciences that the National Academy of Sciences identified in its seminal 2009 report must have a rear-view mirror.

Center for Prosecutor Integrity – Innocence Summit – June 12, 13

This from Ed Bartlett, Director of the Center for Prosecutor Integrity:

I’m pleased to report that we have now finalized the program for the 2015 Innocence Summit, to be held June 12-13 at the National Airport — Crowne Plaza in Arlington, Virginia. The Summit will feature an All-Star line-up of forward-thinking prosecutors, Innocence Network leaders, civil rights advocates, researchers, journalists, and others. These are some of the highlights:

  • On June 12, the Summit will lead off with a panel of four prosecutors who have challenged conventional wisdom and forged new models of prosecutorial practice.
  • The Friday evening banquet speaker will be former United States Attorney Joseph diGenova, a man who never hesitates to speak his mind!

On Saturday, I’m personally looking forward to Mara Leveritt’s presentation, “Death Threats and More: A Reporter Shares True-Life Experiences Investigating Criminal Justice Abuses.”

And I haven’t said anything about the impressive range of workshops…and networking opportunities….and more.

Check it out: http://www.prosecutorintegrity.org/summit/  Looking forward to seeing you June 12-13!

See the Summit schedule here.

An Open Letter on Shaken Baby Syndrome and Courts: A False and Flawed Premise

A group of 34 esteemed doctors, medical professionals, and international experts has jointly published a letter regarding the problem of how SBS is currently being prosecuted in the courts.

See the Argument & Critique website posting here.     Or access a .pdf copy here: Open letter on SBS

This is a very big deal.

One excerpt from the letter: “It has to be said that there are powerful vested interests in suppressing any open discussion in, or outside, the courts about the viability of the SBS construct. The motives are financial and the preservation of reputations. One of the consequences has been the vilification of experts prepared to advance competing theories and the suppression of sensible debate.” (And if I may just interject – this is exactly what I have been saying on this blog for the last three years.)

It’s notable that Dr. A. Norman Guthkelch is one of the signatories to this letter. It was his initial study, two pages long, published in the British Medical Journal in 1971, that started the whole SBS/triad “religion.” Dr. Guthkelch has been quoted as saying he is appalled that his early study has led us to the situation we experience today with criminal prosecution of SBS based solely upon triad symptoms. Please see the National Public Radio article, Rethinking Shaken Baby Syndrome, here.

 

Submit Papers for Innocence Network Conference…

The Innocence Scholarship Committee of the Innocence Network is seeking high quality social science and legal scholarship for presentation at the 2015 Innocence Network Conference in Orlando, Florida on May 1-2 (http://www.innocencenetwork.org/conference).

Areas of research are open but should touch upon the multifaceted causes, implications, and/or remedies of wrongful conviction. International papers are welcome but must be submitted in English. Please submit a title and paper proposal to the Innocence Scholarship Committee at this G-Mail account: innocencescholarship@gmail.com by February 13, 2015. Paper proposals must be no more than 200 words. Completed drafts must be submitted to the Committee by April 17th, 2015.

The Innocence Scholarship Committee is actively seeking publication for those papers accepted for Conference presentations in a law review symposium edition. More information about that is forthcoming.

The Innocence Scholarship Committee is comprised of the following Members: Professor Aliza Kaplan, Oregon Innocence Project, Lewis & Clark School of Law, Portland, Oregon; Professor Valena Beety, West Virginia Innocence Project, West Virginia School of Law; and Dr. Robert Schehr, Arizona Innocence Project, Northern Arizona University.

Center for Prosecutor Integrity’s 2015 Innocence Summit – Call for Session Proposals

CPI Logo

2015 Innocence Summit – Invitation for Workshop Proposals

Crowne Plaza Hotel, Arlington, Virginia              June 12-13, 2015

 The Center for Prosecutor Integrity (CPI) is announcing its Invitation for Workshop Proposals for the 2015 Innocence Summit, themed “Forging Best Practices for Innocence Reform.” CPI invites individuals and organizations throughout the criminal legal system to submit a proposal.

Workshops are designed to educate attendees on issues of substantive law and practical interest. Recent research findings, program descriptions, case studies, legal analyses, advocacy strategies, and innovative solutions are all welcome.

Proposals must include the following:

  • Workshop title
  • Three learning objectives
  • Description of the workshop content (maximum 500 words)
  • Presenter biography (maximum 250 words)

Proposals are welcome from a variety of presenters and using a variety of presentation formats. Workshops will be 60 minutes in length.

Proposals should be submitted here: summit@prosecutorintegrity.org. Applications are due no later than Friday, January 16th, 2015.

Applicants will be notified whether their proposal has been selected by February 20th. Presenters are responsible for their own conference registration, travel, and lodging expenses. Further information about the Innocence Summit can be found here: http://www.prosecutorintegrity.org/summit/2015-3/

Last year’s Innocence Summit was a great success, and we invite you to participate in this exciting opportunity to advance best practices for innocence reform!

If you have any questions, contact Gina Lauterio, CPI Program Director, at summit@prosecutorintegrity.org .

Thank you,

Gina R. Lauterio Esq., Program Director, Center for Prosecutor Integrity (CPI)

P.O. Box 1221, Rockville, MD 20849

Office: 301-801-0608, Cell: 908-783-3542

Email: glauterio@prosecutorintegrity.orgInternet: www.prosecutorintegrity.org

The Center for Prosecutor Integrity, a 501(c)3 organization, works toward preserving the presumption of innocence, assuring equal treatment under the law, and ending wrongful convictions.

New Scholarship Spotlight: Criminologizing Wrongful Convictions

Professor Michael Naughten has posted the above-titled article on The British Journal of Criminology.  Download here.  The abstract states:

This article considers the apparent lack of serious engagement with issues pertaining to wrongful convictions by criminology at present. It seeks to address this by criminologizing wrongful convictions in two senses: firstly, by highlighting a variety of forms of intentional law or rule breaking by police officers and prosecutors in the causation of wrongful convictions that in other circumstances would likely be treated as crime and dealt with as such; and, secondly, to reveal the extent to which such powerful criminal justice system agents can cause profound and wide-ranging forms of harm to victims of wrongful convictions, their families and society as a whole with almost total impunity. In so doing, the relevance of the study of the intentional forms of crime and deviance committed by criminal justice system agents in the manufacture of wrongful convictions to both arms of the criminological divide is emphasized: mainstream and critical criminology. The overall aim is to show that the study of wrongful convictions can further extend and enrich existing criminological epistemology in vital and important ways and can even contribute to the prevention and possible elimination of those that are caused deliberately.

 

New Scholarship Spotlight: Reducing Guilty Pleas Through Exoneree Compensations

Professors Murat Mungan and Jonathan Klick have posted the above-titled article on SSRN.  Download here.  The abstract states:

A great concern with plea-bargains is that they may induce innocent individuals to plead guilty to crimes they have not committed. In this article, we identify schemes that reduce the number of innocent-pleas without affecting guilty individuals’ plea-bargain incentives. Large compensations for exonerees reduce expected costs associated with wrongful determinations of guilt in trial and thereby reduce the number of innocent-pleas. Any distortions in guilty individuals’ incentives to take plea bargains caused by these compensations can be off-set by a small increase in the discounts offered for pleading guilty. Although there are many statutory reform proposals for increasing exoneration compensations, no one has yet noted this desirable separating effect of exoneree compensations. We argue that such reforms are likely to achieve this result without causing deterrence losses.

New Scholarship Spotlight: Innocence Found: The New Revolution in American Justice

Keith Findley, President of the Innocence Network, has posted the above-titled chapter on SSRN.  Download here:  The summary says:

This short extract — the first four pages of Chapter 1 in an edited volume, Controversies in Innocence Cases in America — begins to describe the history and significance of the Innocence Movement in the American Criminal Justice System. The full chapter traces the origins of the innocence organizations that came together to form the Innocence Network and fostered the new Innocence Movement, the manner in which the Innocence Movement has created an impetus and model for criminal justice reform that shifts the focus from the Warren Court’s due process revolution of the 1960s to a more substantive focus on reliability. In this framework, the chapter then considers some of the specific reforms that have emerged from the Innocence Movement’s focus on substantive justice, and the challenges that lie ahead.

New Scholarship Spotlight: In Defense of American Criminal Justice

The Honorable J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit has published the above-titled article in the Vanderbilt Law Review.  It argues that the system is not nearly as broken as many critics allege, some convictions of innocents is part of a necessary trade-off, and that the reforms pushed by the Innocence Movement often go to far.

Have a read here.

New Scholarship Spotlight: The Consequences of Error in Criminal Justice

Daniel Epps has posted the above-titled article on SSRN.  Download here.   Abstract below.  I haven’t read the piece yet, but the friend who sent it to me read it and said, “These kids with their Harvard degrees and Supreme Court clerkships and no real experience in the criminal law trenches can be really scary.”   Have a read…Enjoy!

“Better that ten guilty persons escape, than that one innocent suffer,” William Blackstone’s famous adage, stands for a powerful idea in the criminal law: that it’s essential to minimize wrongly convicting the innocent even at the expense of overall accuracy. This “Blackstone principle” accords with most people’s deeply felt intuitions about criminal justice.

This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone’s time and earlier death was the exclusive penalty for many crimes — but provides no compelling justification today.

The leading modern argument for the Blackstone principle is that false convictions are simply more costly than false acquittals. But that argument is incomplete, because it focuses myopically on the costs of errors in individual cases. A complete analysis of the Blackstone principle requires taking stock of its dynamic effects on the criminal justice system as a whole. The Article conducts that analysis, which reveals two significant but previously unrecognized draw-backs of the Blackstone principle: First, its benefits to innocent defendants are smaller than usually assumed; it could even make those defendants worse off. Second, the principle reinforces a widely recognized political process failure in criminal justice, hurting not just defendants but society as a whole. The magnitude of these effects is uncertain, but they could more than cancel out the principle’s putative benefits.

The Article then analyzes alternative justifications for the Blackstone principle. None is satisfactory; each rests on dubious empirical premises, logical errors, or controversial premises. There is thus no fully persuasive justification for the principle. Rejecting the Blackstone principle would require us to re-think — although not necessarily redesign — various aspects of our criminal-procedure system.

New Scholarship Spotlight: A Systems Approach to Error Reduction in Criminal Justice

John Hollway, for the Quattrone Center for the Fair Administration of Justice, has posted the above-titled article on SSRN.  Download here.  The abstract states:

The “systems approach” has been used, improved, and refined over time to improve safety and reduce errors in a variety of complex, high-risk industries, including health care, aviation, and manufacturing, among others. Such an approach targets the system for improvement rather than specific individuals within the system, and seeks to provide an environment that maximizes each participant’s ability to act safely and in a way that achieves the goals of the system. It prizes a non-punitive culture of disclosure to identify errors, gathers and applies data to understand the causes of the error, and tests systems changes to prevent future errors. This focus on system improvement, rather than on individual punishment or blame, unites all participants around objective criteria and allows each participant to do his or her job more efficiently, accurately and safely.

While the challenge of preventing errors in well-meaning complex systems is neither new nor unique to criminal law, the need for error reduction in the criminal justice system is clear. This document advocates for the application of a systems approach to reducing errors in the criminal justice system, generating reform in a fashion that will unify well-intentioned but professionally adversarial participants around an objective shared by all: the integrity of investigations, prosecutions, and adjudications, and the elimination of known and currently unknown errors that undermine the fair administration of justice. It then sets forth requirements for the successful application of a systems approach, and a model for interaction among researchers, reformers, and practitioners in the criminal justice system – including prosecutors, defense attorneys, judges, and law enforcement officials – that will allow for more rigorous analyses of the criminal justice system and the design, testing, dissemination and implementation of successful best practices that will improve the fair administration of justice.

Book Review – Forensic Testimony; Science, Law and Expert Evidence

 

Bowers book

There has been a recent addition to the literature regarding the validity of forensic evidence and the power that expert testimony has in court.  The book Forensic Testimony; Science, Law and Expert Evidence is written by C. Michael Bowers and published by Elsevier Academic Press.

Professor Jane Taylor, University of Newcastle, New South Wales, Australia has reviewed the book, and you can read that review here.

I have had the opportunity to personally review this book, and can say without question that it is a must read for anyone who deals with the validity (or lack of) and the power of forensic evidence and expert testimony in a trial.

The book really resonates with me, because it emphasizes the problems with the “uniqueness principle” and the use of flawed inductive reasoning in the development of the forensic disciplines (I refuse to call them “sciences.”) that I have been preaching about for years.

I most highly recommend it.  The book is available on Amazon here.

The chapter headings:

Chapter 1     The History of Experts in English Common Law, with Practice Advice for Beginning Experts

Chapter 2     Science and Forensic Science

Chapter 3     The Admissibility of Forensic Expert Evidence

Chapter 4     Professional Forensic Expert Practice

Chapter 5     Managing Your Forensic Case From Beginning to End

Chapter 6     Character Traits of Expert Witnesses: The Good and the Bad

Chapter 7     Voir Dire and Direct Examination of the Expert

Chapter 8     Cross Examination: The Expert’s Challenge and the Lawyer’s Strategies

Chapter 9     Uniqueness and Individualization in Forensic Science

Chapter 10   Forensic Failures

Chapter 11   Forensic Expert Ethics

Chapter 12   The Unparalleled Power of Expert Testimony

 

 

New Scholarship Spotlight: Expert Testimony on Interrogation and False Confession

Innocence Network President Keith Findley and others have posted the above-titled article on SSRN.  Download here.  The abstract states:

This article examines the need and bases for expert testimony on false confessions in criminal cases. Drawing on social science research, the article first briefly assesses the role of false confessions in wrongful convictions, including the nature of the false confession problem and the impact of false confessions in producing false convictions as well as in tainting other evidence and other aspects of police investigations. The article then turns to admissibility standards that govern expert testimony and their application to false confession expert testimony. In particular it sets forth the typical standards used for assessing admissibility of expert evidence and then shows that, when those standards are applied objectively, appropriately framed expert testimony on false confessions should be admissible in most cases. In particular, the article discusses the research on false confessions to highlight the types of facts that experts can provide to juries. The article then addresses the most prominent systemic response to coerced confessions “the Miranda warnings.” The article examines psychological research to demonstrate that Miranda provides very little protection against coerced and false confessions, and, therefore, cannot provide justification for dispensing with expert testimony.

 

 

National Academy of Sciences Study: Over Four Percent of People Sentenced to Death are Likely Innocent

New peer-reviewed research indicates that at least 4.1 percent of defendants sentenced to death in the United States are likely innocent. The article, “Rate of False Conviction of Criminal Defendants who are Sentenced to Death,” published today in one of the world’s most respected scientific journals—Proceedings of the National Academy of Sciences—is available at http://www.eurekalert.org/account.php

“This study provides the first rigorous estimate of the rate of conviction of innocent criminal defendants in any context. It shows that the number of innocent people sentenced to death is more than twice the number of inmates actually exonerated and freed by legal action,” said Bruce Levin, Ph.D., Professor and Past Chair, Department of Biostatistics, Mailman School of Public Health Columbia University. Levin, an expert in statistics, did not participate in the research but is familiar with the study. Continue reading

Thursday’s Quick Clicks…

Swirls and Whorls: Litigating Post-Conviction Claims of Fingerprint Misidentification after the NAS Report

U of Washington Professor, and director the Innocence Project Northwest, Jackie McMurtry has posted the above-titled article on SSRN.  Download here.  The abstract states:

The National Research Council of the National Academies’ 2009 report, Strengthening Forensic Science in the United States: A Path Forward (“NAS Report”), noted that “[t]he number of exonerations resulting from the analysis of DNA has grown across the country in recent years, uncovering a disturbing number of wrongful convictions — some for capital crimes — and exposing serious limitations in some of the forensic science approaches commonly used in the United States.” The evidence can include the comparisons of bite marks, hairs, voiceprints, earprints, and fingerprints.

This article provides a brief outline of latent fingerprint evidence as it is currently presented in courts. Latent fingerprint individualization was rapidly accepted as forensic identification evidence, largely without question — and before being validated through scientific research. Legal challenges only began in the 1990s. Although the NAS Report’s discussion of fingerprint identification raises many questions, petitioners who claim to have been wrongly convicted because of it will still face substantial hurdles.

New Scholarship Spotlight: The Banality of Wrongful Executions…

Virginia professor Brandon Garrett has posted the above-titled article, reviewing several important books, on SSRN.  Download here.  The abstract states:

What is so haunting about the known wrongful convictions is that they are the tip of the iceberg. Untold numbers of mundane errors may escape notice while sending the innocent to prison and even to the death chamber. That is why I recommended to readers a trilogy of fascinating new books that look into the larger but murkier problem of error. In this article for Michigan Law Review’s annual book issue, I review three books: Los Tocayos Carlos, by James Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky; Anatomy of Injustice: A Murder Case Gone Wrong, by Raymond Bonner; and In Doubt: The Psychology of the Criminal Justice Process, by Dan Simon. Each of these books brings important new perspective and understanding to the reasons why our criminal justice system can make terrible mistakes.

“Flawed Convictions – Shaken Baby Syndrome and the Inertia of Injustice”

flawed conv

Sue Luttner has posted an excellent piece on her blog OnSBS about the new book by Prof. Deborah Tuerkheimer to be released in April – Flawed Convictions – Shaken Baby Syndrome and the Inertia of Injustice.

Please see Sue’s post here.

This book will be a must read for any involved in the SBS debate.

New Scholarship Spotlight: The Need for Defense Access to the Law Enforcement DNA Database

Jason Kreag has posted Letting Innocence Suffer:  The Need for Defense Access to the Law Enforcement DNA Database on SSRN.  Download here.   The abstract states:

Law enforcement has gradually amassed a sizable DNA database that holds considerable promise for solving cold cases and identifying suspects. The Supreme Court has blessed this effort, allowing investigators to include profiles of arrestees as well as convicted persons in the database. At present, though, law enforcement has a near monopoly on use of the DNA database, leaving defendants at the whim of the law enforcement officials who control access to this tool. Legal scholars have alternatively praised and decried the database, but none has examined its prospects for proving defendants’ innocence post-conviction. This Article fills that void by identifying a limited due process right to defense-initiated DNA database searches. The Article argues that the database is a powerful truth-promoting tool that should be available to law enforcement and defendants alike. Because legislators have failed to promote the search for actual offenders through statutory rights of access, this Article presents the constitutional authority for defense-initiated searches to vindicate the rights of innocent defendants.

New Scholarship Spotlight: Cognitive bias in forensic anthropology

Itiel Dror and others have posted the newest piece on the issue of confirmation bias in forensics.  If you haven’t been introduced to Dror’s body of work yet, check it out here.  The abstract of the newest paper, which can be downloaded in full here, states:

An experimental study was designed to examine cognitive biases within forensic anthropological non-metric methods in assessing sex, ancestry and age at death. To investigate examiner interpretation, forty-one non- novice participants were semi randomly divided into three groups. Prior to conducting the assessment of the skeletal remains, two of the groups were given different extraneous contextual information regarding the sex, ancestry and age at death of the individual. The third group acted as a control group with no extraneous contex- tual information. The experiment was designed to investigate if the interpretation and conclusions of the skeletal remains would differ amongst participants within the three groups, and to assess whether the examiners would confirm or disagree with the given extraneous context when establishing a biological profile. The results revealed a significant biasing effect within the three groups, demonstrating a strong confirmation bias in the assessment of sex, ancestry and age at death. In assessment of sex, 31% of the participants in the control group concluded that the skeleton remains were male. In contrast, in the group that received contextual information that the remains were male, 72% concluded that the remains were male, and in the participant group where the context was that the remains were of a female, 0% of the participants concluded that the remains were male. Comparable results showing bias were found in assessing ancestry and age at death. These data demonstrate that cognitive bias can impact forensic anthropological non-metric methods on skeletal remains and affects the interpretation and con- clusions of the forensic scientists. This empirical study is a step in establishing an evidence base approach for dealing with cognitive issues in forensic anthropological assessments, so as to enhance this valuable forensic sci- ence discipline.