The magnitude of forensics and the law

In 2009, the National Academy of Sciences, a non-profit, private organization that servers as an advisor to the government on scientific matters, reported to Congress that the “science” in forensic science needed an overhaul.

In July during the annual International Association for Identification conference, I sat down for a conversation with Christine Funk, assistant public defender for Minnesota and a co-creator of the state’s forensic trial team to talk about how the worlds of law enforcement and forensic science intertwine, and what kind of discussion has taken place since that damning report was published.

Funk discussed why she’s not really trying to “trick you,” and what about spectating the Casey Anthony case kept her hooked through the (shocking) verdict.

TW: What have you seen take place since the NAS report came out two years ago?

Christine Funk: There’s some interesting opinion in the concurring language of justice ... because as you say, the NAS report pointed out there were some real problems. The NAS report was important to people who come to meetings like [the IAI conference]; people who go to the academy of forensic sciences meetings. Most lawyers were not aware of it when they came out; some lawyers still aren’t familiar with it. (Editor’s note: You can download the PDF free through the National Academies Press at www.nap.edu.) And so whenever I speak to lawyers I say you’ve got to go ... download it; you’ve got to read it.

We’re getting better at science in the law, but we didn’t go to medical school because we weren’t interested in science. And so now, science is sort of coming into our sandbox if you will, at an alarming rate, and it seems more and more of it is presenting itself and we have to figure it out or die out like the dinosaurs. It’s an interesting process for us because there’s a fairly steep learning curve, but we’re getting there.

TW: So it seems like you’re saying it’s still pretty early before you really start seeing a lot of that stuff taking effect that far down the road.

CF: Right. And you have to remember too, even though we’ve got these full-time departments, shoe print cases don’t come across your desk every day, or fingerprint cases don’t come across your desk every day. And with such a big public defense system—for example, Minnesota—there are places that have forensic units, like we do, but cases aren’t necessarily assigned based on that, and it still relies on the lawyer who gets the case to bring it up. While there are some forensic science elements to a case, it may not be something that the lawyer feels is necessary to litigate.

So yes, this is going to be a long, slow process for us to really get some of those questions resolved. If the science isn’t consistent enough that everybody’s going to get the same answer, what are we doing with this?

(Funk held a workshop for forensic professionals at the IAI conference on “Reconciling the Forensic Scientist, the Criminal Defense Attorney and the Criminal Justice System.”)

TW: You did have a couple of sessions where you did get to have some Q&A time with attendees. What were some of the things that you particularly learned?

CF: I don’t know that I’m hearing anything new. But there are certain discussions that need to be had, I think, on a regular basis. I’ll have people say, “Why do your clients want a trial when you know he’s guilty?” Well, there’s a very long constitutional answer to that. “Why do you try to trick us?” I know that there’s a perception sometimes that defense attorneys are trying to make the forensic scientists look stupid. And I certainly will grant you that sometimes our strategy is to call into question the qualifications of the people who are providing evidence to the court, or to the jury. You know, is this someone who really should be relied on? And so that can be strategy. Just having that conversation of why I do what I do, and what I am really doing? I mean, do I get up in the morning and say, “Boy, that guy that I’m representing who’s accused of killing his girlfriend ... I hope I can get him out on the streets and that he can date my daughter.” No, of course that’s not what I’m doing. How could you find enough people to do this job if that was our collective goal, to take people who we probably thought were guilty and let them out on the street?

Contrast with you being the second reader—quality control. I want to make sure that the search warrant is legitimate. I want to make sure that the conclusions drawn by the scientists are supported by the evidence. I want to make sure the state has the evidence in their possession which truly establishes that this person is guilty. Maybe they made a mistake; maybe they looked in the wrong direction; maybe they got some bad information, and they’re relying on science which has now been disproven.

More and more often what we’re seeing is there are several breakdowns in my system. Prosecutors put too much faith in forensic science and its significance; and defense attorneys don’t spend nearly enough time challenging it. And if you look at the NAS report it says exactly the same thing about our profession. And so we’re working on getting better, all of us.

TW: The Casey Anthony case was a big news story for 2011. I was wondering what you thought about that [trial as a viewer] on your side of things?

CF: I see this a lot with my clients because I work for the public defender’s office: people that are watching [cases like the Anthony trial] are ascribing middle-class white values to conduct by people who are not middle-class white people. I tell you what: I have done a lot of DNA cases in my lifetime. I have never done a DNA case where they tested the brother to see if he was the father of the kid. I mean, when I heard that, I go, OK, there’s something going on with this family that doesn’t go on with most families, most of the time. And that didn’t get a whole lot of play, but to me, that was a really important piece of evidence. If there’s even a suspicion that the brother may have been the father of this child, there is a dysfunction junction going on in this family. And does that mean to me that a child could die and the disposing of the remains would be inconsistent with what you would expect someone to do? Yeah, that actually makes perfect sense to me.

 

Editor’s note: Read more about the original NAS report on forensics and the industry reaction here: www.officer.com/10233455.

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