The magnitude of forensics and the law

Dec. 21, 2011

I sit down for a conversation with Christine Funk, assistant public defender for Minnesota and a co-creator of the state’s forensic trial team on why she's not really trying to 'trick you' & what about spectating the Casey Anthony case kept her hooked through the (shocking) verdict.

In 2009, the National Academy of Sciences, a branch under the 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. At the time, the organization made several recommendations in its report ("Strengthening Forensic Science in the United States: A Path Forward") including removing forensic labs from law enforcement oversight and bodies. Funk and I begin our discussion of how the worlds of law enforcement and forensic science intertwine and the magnitude of how forensics and the law work together by discussing what kind of discussion and movement has taken place since that damning report was published. (Read more about the original report and reaction here:

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, I believe Justice Meyer, talks about we really need to be having the hearing, exploring, and asking the questions, what is sufficient; 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 who were not aware of it when they came out; some lawyers still aren’t familiar with it; it is now available for free download (Editor's note: You can download the PDF free through the National Academies Press at, and so whenever I speak to lawyers I say you’ve got to go; you’ve got to download it; you’ve got to read it. At least read chapter five; that’s the one that talks about strengths and weaknesses. 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. Most times, defendants plead guilty. And you may litigate something pretrial, you may have a client where maybe there’s fingerprint evidence; but maybe there’s also a video of him breaking into the bank. Or his co-defendant confessed and they went to our client’s house with a search warrant and they executed the search warrant properly and found the stolen things in the defendant’s house. And so while there is 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. Are these things generally accepted? What are we going to do in these cases where, I think they were talking about shoeprints, where in the NAS report they talk about they sent out the same shoes and evidence to seventeen different labs and got a bunch of different answers as to the results.

If the science isn’t consistent enough that everybody’s going to get the same answer, what are we doing with this?

TW:  You did have a couple of session where you did get to have some Q&A time with attendees. What were some of the things that you particularly learned; I think you said you were asking them ‘what are you guys looking to learn from me and my trial?’ What are some of the things they’re saying?

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. Say ... I got DNA case right, sperm in the vagina. You can look into a microscope can see it. So maybe if my client wants a trial it’s because he’s saying it was consensual, or maybe it was his twin brother. There’s really not many more ways you can go with a sample like that.

I think that having the discussions about why do I do what I do, you know what I’m saying? There’s such a misperception.

And of course, just like with what forensic scientists do that’s fostered by television, right? And you’ll see like on "Law and Order" there’s this one prosecutor in particular that talks about this one scumbag defense lawyer who’s going to try to get the bad guy back on the street with the perfectly legitimate defense; and somehow it’s offensive that someone would go into the court and provide someone with a defense that’s valid. 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 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 the 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: I’m really glad you went that road, because one of the other things I was going to ask you about was really big news this last month, the Casey Anthony casewhich I haven’t made a solid study of as far as getting the materials over. But particularly what I find interesting about that is the public response to that she was"let off’.. is a phrase to use—but I was wondering what you thought about that on your side of things, and when you said people think that, "Oh, you wanted to let this guy off because you think he’s a good guy or whatever." And it made me think of there’s that picture of her defense attorney after the trial where he’s flipping off the media. I just recently saw it.

CF: I haven’t [seen the photo but I consider that] bad form. But let me tell you something from my own experience, and also a bit from that case; I can appreciate the frustration that he felt. Because all of America is outraged that this girl got off. What they know about the case? What they know about the case is what the media presented to them. What I can tell you from my own experience, is what the paper prints and what actually happens in court may not be the same.

I had a very unpopular murder case in southern Minnesota; a guy breaks into the house and kills a family. It was just horrible; no explanation; absolutely tragic; salt of the earth people; but there were some days where I made some important points that I thought were important or valid, and made some headway as far as the sufficiency of the evidence, and one day in particular I remember I came in the next morning and I said to the reporter, who was there every day, I’m like, you know, I told my mom  I was brilliant yesterday; and I read the paper this morning and there was no mention of the points that I made. And that reporter told me I had in about three inches on what you did and my editor took it out because the people here don’t want to read about that that. Ok. Fair enough, you know, if you’re trying to sell newspapers I suppose reporting the whole picture. I can’t speak to that. But I have that experience time and time again.

Funk was recently a presenter at the 2011 International Association of Identification Conference a professional organization focused on advancement in forensic discipline and continuing education for the forensic field specialists where she held a workshop for members and attendees on "Reconciling the Forensic Scientist, the Criminal Defense Attorney and the Criminal Justice System."  

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