Last week, I discussed problems with forensic evidence. Some of it hasn’t been shown to be statistically reliable. Some was not led or created by scientists, but by police officers.
This doesn’t automatically mean it is bad. The original breathalyzer machine was created by a state trooper and has been used (in various forms) for years with reliable results. However, forensic evidence should not be blindly accepted.
I do not advocate that we throw out all forms of forensic evidence because some are unproven. But our current belief in technology does not mean we’re right.
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In Shakespeare’s time, courts used to believe the slain dead could name their killer. The accused was forced to approach a corpse. If the wounds started bleeding again, he was guilty. In Richard III, Shakespeare wrote:
O gentlemen see, see! Dead Henry’s woundsOpen their congealed mouths and bleed afresh!
Clearly, this doesn’t cut it in 2009. But in the 1800s, the “science” of phrenology existed. Basically, it held that a person’s character and criminal tendencies could be found by examining the shape of, and bumps on, their head. This was later discredited and discontinued.
Remember, phrenology was developed around the same time as fingerprint theories came about and those haven’t been fully scientifically tested and proven either.
People should keep an open mind about all evidence brought forth in a criminal trial. Even scientists can make mistakes. Even a particular form of science can be shown to be unreliable or invalid.
If we blindly accept anything scientists tell us in court, mistakes will occur, and these are serious mistakes. People’s lives are ruined by wrongful convictions. Millions of dollars in compensation can’t make up for 20 or 30 lost years in jail for a crime you didn’t commit.
In 1993, William Mullins-Johnson was convicted of a brutal murder. The victim was his niece, age 12. The case tore the family apart. After spending more than 12 years in jail, he was released when it was clear that faulty forensic evidence led to his wrongful conviction. Unfortunately, the family remains bitterly divided and Mullins-Johnson will never recover his good name.
Similarly, Sherry Sherrett was convicted of killing her year-old baby in 1996 but was released due to faulty forensic findings. These aren’t loopholes or technicalities. These are people found guilty of awful crimes of which they were innocent.
A useful discussion of all the things that can go wrong with forensic evidence, as well has how to make it right, can be found at www.scientific.org/tutorials/articles/kruglick/kruglick.html.
Laboratory conditions, operator error, corruption of samples – many things can go wrong.
As well, the legal system has a duty to make sure things go right with forensics if they are going to be used to convict someone of a criminal offence.
Forensic science is a tremendous tool for detecting crimes and the people who committed them. Law enforcement agencies and governments should protect their scientific methods by testing them on a wide scale. Show everyone that fingerprinting is valid and that it works.
That’s why DNA is so incredibly reliable. That’s why matching paint can be done to a virtual certainty.
Do the same for ballistics, for fingerprinting, for fibre analysis. Perform studies that will create a statistical model to show these methods work. Show us that CSI is more than just entertainment on TV.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in teaching and writing about legal issues. His columns are intended as general advice only. He can be reached at thelaw@producer.com.
