Bias, Subjectivity, and Wrongful Conviction

University of Michigan Journal of Law Reform Volume 50 Issue 3 Article 13 2017 Bias, Subjectivity, and Wrongful Conviction Katherine Judson University of Wisconsin Law School Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Evidence Commons, Juvenile Law Commons, and the Medical Jurisprudence Commons Recommended Citation Katherine Judson, Bias, Subjectivity, and Wrongful Conviction, 50 U. MICH. J. L. REFORM 779 (2017). Available at: https://repository.law.umich.edu/mjlr/vol50/iss3/13 This Symposium Article is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact . BIAS, SUBJECTIVITY, AND WRONGFUL CONVICTIONS Katherine Judson I’m Kate Judson, and I teach at the University of Wisconsin in the Law School. I’ve been asked to summarize the science for the lawyers in the room, which I have been told is a hopeless cause, but I’m a Cubs fan and I do wrongful convictions work, so I am comfortable with hopeless causes and I feel I’m up to the challenge. I’m confident that lawyers can learn science, maybe even before the Cubs win the World Series. I want to talk about bias, subjectivity and wrongful convictions. In law, we apply lessons from the past to contemporary problems. When we look at a wrongful conviction after exoneration, we get to look back at what might have caused it. This is valuable because we learn lessons we can then apply to prevent future miscarriages of justice. Today I’d like to discuss a little about what we know from past exonerations and some of the factors that can contribute to wrongful convictions. What’s great about this is that a lot of these factors have been ably analyzed by everybody who’s been up here before me, so I’m really grateful for that. Thank you. Examining wrongful convictions that were later overturned with new DNA evidence allows us to identify six factors that significantly contribute to wrongful convictions.1 The influence of these factors may be slightly different percentagewise for DNA versus non-DNA cases, but they are significant in both contexts. Wrongful convictions often occur as a result of incentivized testimony from witnesses, like jailhouse informant or “snitch” testimony, false confessions, eyewitness identification error, bad lawyering, government misconduct and faulty forensic science.2 The one I’m going to focus on today is faulty forensic science. Faulty forensic science may mean a couple of different things. First, there is unverified or unvalidated forensic science, science that doesn’t have a reliable evidence base. Then, there are misstatements of forensic science: misstatements about probability, misstatements about what the evidence actually shows, and misstatements about reliability. And then there is actual misconduct or fraud by experts or lab analysts, which, though alarming, happens 1. BARRY SCHECK, PETER NEUFELD & JIM DWYER, ACTUAL INNOCENCE: WHEN JUSTICE GOES WRONG AND HOW TO MAKE IT RIGHT 361 (2001). 2. Id. 779 780 University of Michigan Journal of Law Reform [VOL. 50:3 less frequently. It makes lots of headlines when it happens,3 but does not appear to happen very frequently. More often what we’re dealing with when we deal with faulty forensic science are issues of bias and issues of improper testimony. About sixty percent of wrongful convictions that used forensic science involve improper testimony.4 After a comprehensive review of hair comparison analysis cases following a series of high-profile exonerations, a joint press release issued by the FBI, the National Association of Criminal Defense Lawyers (NACDL), and the Innocence Project acknowledged that FBI testimony on microscopic hair analysis contained testimonial errors in more than ninety percent of cases in an ongoing review—analysts misstated what the evidence actually showed and testified with more certainty than the evidence warranted.5 Often the problems lie with a lack of underlying research.6 Many have recognized the difficulty and potential for missteps when forensic science disciplines are developed to aid prosecutors in the courtroom, rather than based firmly in hard science.7 The Daubert case itself explicitly recognizes that “there are important differences between the quest for truth in the courtroom and the quest for truth in the laboratory.”8 In the absence of adequate data, there is more room for subjectivity, and therefore bias, to creep into the process. In science-dependent child abuse cases, the underlying research is often inadequate or fraught with error.9 This creates a climate that can lead to wrongful conviction. It is particularly important to consider how much subjectivity is involved in child abuse cases because many child abuse cases are science-dependent, meaning that the entire case rests upon expert opinion (in some cases, science is used to show both the actus reus and the mens rea, sometimes in the absence of any other evidence), 3. Id. at 138. 4. Brandon L. Garrett & Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful Convictions, 95 VA. L. REV. 1, 14 (2009). 5. Press Release, Fed. Bureau of Investigation, FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review (April 20, 2015), https://www.fbi.gov/news/pressrel/press-releases/fbi-testimony-on-microscopic-hairanalysis-contained-errors-in-at-least-90-percent-of-cases-in-ongoing-review. 6. NAT’L RESEARCH COUNCIL, STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 187 (2009) (“[T]he forensic science disciplines suffer from an inadequate research base.”). 7. Id. 8. Daubert v. Merrill-Dow Pharmaceuticals, 509 U.S. 579 at 596–97 (1993). 9. See, e.g., Nytt Juridiskt Arkiv [NJA] [Supreme Court] 2014-11-2 B 3438-12 (Swed.), http://rffr.se/wp-content/uploads/2014/12/Swedish_supreme_court_20141016.pdf (discussing the limitations of research tracing the reasons of a child’s injury to violent shaking by adult). SPRING 2017] Bias, Subjectivity, and Wrongful Convictions 781 rather than science-reliant, where forensic science helps elucidate a particular part of the case (identity of the perpetrator, for example). Just because a case involves faulty forensic science, whether the case is science-dependent or science-reliant, does not mean that the defendant is innocent. If the importance of the science goes up, however, so does the risk of wrongful conviction. If a conviction rests entirely, or nearly so, on unvalidated, misleading, or improper forensic science, it is of particular concern. When a field of forensic science is without safeguards for validity and reliability, expert witness testimony should either be kept from the jury (as i (...truncated)