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9th Circuit conference urges more skepticism of forensic evidence

A large number of common forensic techniques including bite marks, hair analysis, ballistics, fingerprint IDs and footprint analysis were called into question last year. The President's Council of Advisors on Science and Technology, a nonpartisan group established by Congress in 1976, issued a report that debunked the evidence produced by the techniques as unscientific.

Unfortunately, TV shows like "Law & Order" and "CSI" tend to paint forensic evidence as virtually infallible. Popular culture ignores the scientific flaws in the techniques, along with natural human biases and human error, according to the dean of the UCLA School of Law.

"Faulty forensic science is the second most frequently found contributing cause [of DNA exonerations], second only to eyewitness identifications that turn out to be erroneous," she said, addressing federal judges at Tuesday's Ninth Circuit Judicial Conference.

The trouble with these common forensic tests is that they're not underpinned by scientific evidence. Instead, many of them are based on the collective experience of investigators. Yet "experience, no matter how extensive, could not be a substitute for scientific study."

Recommendations for reining in unscientific evidence

A Deputy Public Defender from Los Angeles addressed the conference about what should be done. She didn't urge the Ninth Circuit to reject these techniques altogether. Law enforcement does rely on them and they may still have some value. She recommended that judges curtail testimony that falsely reassures jurors about the quality of the evidence.

"Forensic examiners shouldn't be able to come into court and make claims of 100 percent certainty, or testify that they've never made a mistake or that the error rate for the discipline is zero," she said. "If the courts were to curtail that type of testimony we would go a long way in preventing wrongful convictions and ensure the integrity of the evidence being admitted."

At the same time, defense attorneys need to step up. They may be reluctant to challenge the validity of long-valued forensic evidence, especially within the frenetic pace of today's courts. They need to raise the issue early and demand that judges set hearings in which scientific proof of the techniques' strengths and weaknesses can be addressed -- and that any evidence that doesn't meet scientific standards be excluded from trial.

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