DOJ Tells Forensic Experts To Stop Overstating The 'Scientific Certainty' Of Presented Evidence

from the directed-to-use-air-quotes-when-saying-'science'-or-'certainty' dept

The DOJ is finally addressing some long-ignored problems with the forensic evidence its prosecutors rely on. For two decades, FBI forensics experts handed out flawed testimony in hundreds of criminal cases, routinely overstating the certainty of conclusions reached by forensic examination. Of those cases, 28 ended in death penalty verdicts.

An earlier attempt to address issues with flawed science and flawed testimony swiftly ran aground. Federal judge Jed S. Rakoff very publicly resigned from a committee formed to examine these issues after he was informed by the attorney general’s office that he wasn’t actually supposed to be examining these issues.

Last evening, January 27, 2015, I was telephonically informed that the Deputy Attorney General of the U.S. Department of Justice has decided that the subject of pre-trial forensic discovery — i.e., the extent to which information regarding forensic science experts and their data, opinions, methodologies, etc., should be disclosed before they testify in court — is beyond the “scope” of the Commission’s business and therefore cannot properly be the subject of Commission reports or discussions in any respect.

[…]

Because I believe that this unilateral decision is a major mistake that is likely to significantly erode the effectiveness of the Commission — and because I believe it reflects a determination by the Department of Justice to place strategic advantage over a search for the truth — I have decided to resign from the Commission, effective immediately. I have never before felt the need to resign from any of the many committees on which I have served over the years; but given what I believe is the unsupportable position now taken by the Department of Justice, I feel I have no choice.

Caleb Mason of Brown, White & Osborn (the “White” is Popehat’s Ken White) reports that the DOJ appears to be taking these problems more seriously. It has issued a directive [PDF] forbidding forensic experts from making claims about “scientific certainty” when presenting evidence.

Directive Number 1 provides that agencies must now “ensure that forensic examiners are not using the expressions ‘reasonable scientific certainty’ in their reports or testimony.” Yes, you read that right. The Department of Justice is telling its forensic expert witnesses to stop claiming “scientific certainty.” Why? Because for most forensic disciplines, there never was any, and DOJ is—after decades of resistance—admitting it.

One of the forms of evidence is fingerprints, the thing every law enforcement agency makes sure to obtain when booking suspects because it’s supposedly so infallible. But like almost everything else law enforcement forensic experts claim are reasonably certain, scientifically-speaking, examination of prints no more guarantees a match than examining bite marks.

Fingerprint examiners look for “matching points” in prints, but believe it or not, there are no general standards for which points to look at, how many points to look at, or even what counts as a “point.” Not only are there no established standards, there isn’t even general agreement within the forensic analysis community. Some people like eight points, others ten, others twelve. Many examiners insist they can make an identification with just a single point.

Even more amazingly, in stark contrast to DNA matching, no one knows what the statistical likelihood is of two fingerprints sharing particular points, or whether that likelihood is different for different regions or features of the print. This is the crucial question for any identification methodology, because while each person’s fingerprints may be unique, the examiner doesn’t look at every molecule—the examiner looks at whatever five (or eight, or ten) “points” he or she chooses to look at.

Why is this process still so vague even after decades of reliance on it for identifying suspects? Well, it’s because the DOJ won’t allow anyone other than the government to take a look at the collected records. Researchers who may have been able to make better determinations on how many points are needed for more definitive matches (or how often false positives are returned by the database) have been locked out by the DOJ.

But the big fingerprint databases are controlled by DOJ, and DOJ has steadfastly refused to let researchers use them for the types of analyses geneticists do with DNA. That’s what makes print analysis so frustrating: the data exists, so fingerprint analysis could be a genuine scientific discipline, with publicly-available databases, peer-reviewed research, known error rates, and accepted methodologies. It could be a real body of knowledge about the differential rates of occurrence among populations of particular physical features of our fingerprints. Hopefully one day it will be. But it’s not now, as the DOJ directives finally acknowledge.

The DOJ’s not offering to open up its fingerprint database for outside examination. But at least it’s admitting it hasn’t let anyone without a vested interest in successful prosecutions take a good look at the methods used by its forensic examiners or the collected evidence they’re working with.

[As a bonus, here’s another fantastic read by Caleb Mason: a Constitutional examination of Jay-Z’s hit track, entitled “JAY-Z’S 99 PROBLEMS, VERSE 2: A CLOSE READING WITH FOURTH AMENDMENT GUIDANCE FOR COPS AND PERPS.”]



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Comments on “DOJ Tells Forensic Experts To Stop Overstating The 'Scientific Certainty' Of Presented Evidence”

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54 Comments
OldGeezer (profile) says:

Re: Forensic Science

Juries tend to believe eyewitness testimony and have often convicted on that with no other evidence. If the witness knew the suspect well beforehand or multiple witnesses testified the were certain I might give it some consideration. The vast majority of prisoners cleared by DNA were sent up by a faulty ID by one witness. Often these identifications are made when the witness only saw the suspect for a few seconds, in poor lighting or from a distance. I bought groceries just yesterday and chatted with the check out clerk for several minutes. If I was asked to pick her out of a lineup today I doubt I could do it. At best I could give generalities like height, race or approximate age. The practice of using the “six pack” of photos should be be outlawed. Prosecutors try to give the idea that trauma of the crime somehow indelibly records images in the victim’s mind and that is bullshit. If anything it causes them to fixate on the first resemblance they see and then point at them from the witness stand. Fictional TV series often show the police sketch looking just like the perp. On real crime shows like The First 48 or Forensic Files that is rarely the case. I had to laugh at one they actually released that looked just like Freddy Fudd from Bugs Bunny cartoons. Who can forget the famous Unabomber sketch that looked more like Michael Jackson than Ted Kaczynski?

Anon E. Mous (profile) says:

So the forensic science of federal/State crime labs that prosecutors say leads to the certainty of guilt of an accused in a case isn’t so solid.

So how many have been convicted by testimony that was professed to be of over whelming certainly that an accused was/is involved in a crime by way of scientific evidence? And now the science and testimony is in question.

What troubles me most is the government has people on a committee who deal with these issues but yet they didn’t want the committee to look at said issues and ignore it , so they could still have the tactical advantage over an accused and their counsel.

Isn’t part of the just systems balance and checks is that their is separation between the various parties involved and that disclosure and following the rules of law and the court not to mention sworn professional oaths and that little swearing in to tell the truth, the whole truth and nothing but the truth still apply these days?

If your an accused the deck seems to be getting higher and higher against you and the amount of collusion in seeking to make sure that prosecutions move along to convictions even if their has been hanky panky or questionable actions on part of the prosecution side of cases that judges seem to be allowing.

It seems as though impartiality is a thing of the past as is the ethics that govern all players in the justice system as it would seem more and more that prosecutors are being allowed a wide berth with disclosure and playing by the rules and that more and more courts are okaying that uneven playing field.

You are no longer innocent until proven guilty more you are now guilty till you can prove your innocence.

It really is a shame how the constitution and peoples rights have taken a back seat to a scorched earth campaign at convictions at any cost no matter what.

Groaker (profile) says:

Re: Re:

The Feds use tests that even an 9th grader should be able to refute. But unearned prestige, power, and ignorance on the part of justice system allow such agencies to say the outlandish things by abusing the invocation of “Science.”

Even fingerprints have not passed the Daubert standard yet, though they are taken as gospel.

Anonymous Coward says:

Re: Re:

Innocent untill proven guilty has never truely been the standard in USA. For that, the courts are way too politically biased and the prosecutors too politically ambitious in their “tough on crime”-campaign to let people the media have already convicted go.

Furthermore, innocent untill proven guilty would also entail a requirement to stay relatively agnostic on evidence for the prosecutor. Such a job is not on the prosecutor as much as the judge, meaning that the prosecutor is free to act in the interest of getting a conviction as long as the judge allows it. Since the prosecutor is in charge of the investigative ressources it sometimes leads to some ridiculously biasing interrogation techniques like those used on Aaron Swartz or worse.

Therefore it is more like guilty unless the evidence says otherwise or the prosecutor deems the political value of a conviction on the case too low.

Quiet Lurcker says:

The (in)justice department won’t allow people to comb through its database of fingerprints.

Why aren’t private entities or even public institutions stepping up to the plate, to do the research on their own?

The methodology and application shouldn’t be that hard (especially if comparing to, oh, say particle physics), and I would think that entities like the Innocence Project would have at least some vested interest in the results of such research.

Roger Strong (profile) says:

DNA

I started programming at the end of the punch card era, back when it was still common to hear the phrase “computers don’t make mistakes.”

I’ve seen at least four cases in the news where DNA evidence turned out to be mistaken. Three from lab and evidence collection errors. And one where someone in a factory was packing cotton swabs by hand, his DNA then detected in multiple investigations, leading police in Europe to believe that they were dealing with a serial killer.

It’s a good tool, but the real-world certainty isn’t as good as the theoretical certainty.

Mason Wheeler (profile) says:

But like almost everything else law enforcement forensic experts claim are reasonably certain, scientifically-speaking, examination of prints no more guarantees a match than examining bite marks.

A few months ago I had to be fingerprinted as part of obtaining clearance for work. I went to a place that performed fingerprinting, which they did by pressing my fingers up against the glass surface of some sort of scanning machine, which fed the results into a computer.

They were supposed to run each finger twice to make sure they matched. The guy running it had to do each finger multiple times because he couldn’t get matches, and several times he just overrode the requirement to get a second print after multiple failures.

This makes me think maybe I ought to go commit a crime, because my prints don’t match themselves! 😛

Roger Strong (profile) says:

Re: Can we get this standard used in climate science?

For those who don’t know, there’s a steady stream of claims of how climate model predictions – and charts of past climate history – turned out to be inaccurate.

Inevitably the claim gets thoroughly debunked. The climate model predictions and histories are shown to have been accurate. But by then the next such claim is making the rounds.

Anonymous Coward says:

Re: Re: Can we get this standard used in climate science?

Wow, that is definitely news to me and probably most everyone else. The hockey stick graph didn’t happen, their has been a long pause in warming, the number an intensity of tornadoes and hurricanes have gone unaffected. So no, the models/lies have not been proven true.

Then there is the hole study of the effect of the CO2 on plants and what do you know, the trees, shrubs and more importantly crops will thrive under even greater concentrations of CO2 than we have today. And what does all the green stuff create? More O2.

Roger Strong says:

Re: Re: Re: Can we get this standard used in climate science?

Wikipedia: Hockey stick controversy

> More than two dozen reconstructions, using various statistical methods and combinations of proxy records, have supported the broad consensus shown in the original 1998 hockey-stick graph, with variations in how flat the pre-20th century “shaft” appears. The 2007 IPCC Fourth Assessment Report cited 14 reconstructions, 10 of which covered 1,000 years or longer, to support its strengthened conclusion that it was likely that Northern Hemisphere temperatures during the 20th century were the highest in at least the past 1,300 years. Over a dozen subsequent reconstructions, including Mann et al. 2008 and PAGES 2k Consortium 2013, have supported these general conclusions.

Your “long pause in warming” is also thoroughly debunked.

Roger Strong (profile) says:

Re: Re: Re:3 Can we get this standard used in climate science?

Actually there WAS statistically significant warming during the 15 years. On one hand it wasn’t as much as some climate models predicted, but on the other hand it was too short a time period to declare the models wrong.

The selected period starts immediately after 1998’s temperature record (making the few years after seem lesser by comparison) and stops before new high temperature records. It’s classic cherry picking, and STILL there was overall warming during the period.

Anonymous Coward says:

Re: Re: Re:4 Can we get this standard used in climate science?

Have you seen the graph of temperatures over a 400,000 period? Have you noticed we are in our 4th spike and not even as high as previous spikes? Yet man could not have caused the previous 3 spikes? Talk about cherry picking time periods.

Also, you have yet to address the dire consequences we should be facing by now but aren’t.

http://www.climate4you.com/images/VostokTemp0-420000%20BP.gif

Roger Strong (profile) says:

Re: Re: Re:5 Can we get this standard used in climate science?

Turns out the author of that graph was mistaken.

For “dire consequences” we’re not talking about birds bursting into flames in mid-air.

We’re talking about sea-level rise, which we know happened before and is happening again now. With a large fraction of the human population now living on the coasts, there’s “dire consequences” that weren’t there before. We’re talking about a large reduction in the world’s food supply, especially in places where it’ll hurt the most.

Anonymous Coward says:

Re: Re: Re:4 Can we get this standard used in climate science?

Answer me this; what are you doing personally to combat global warming? Do you ride share or take public transit to work? Do you drive a good MPG car? Do you have a energy efficient green home? Have you converted your home to solar? Do you recycle or better yet, reuse? Or do you, like most on the left, feel that somebody else should take the hit on being green while you continue living how you wish?

Anonymous Coward (user link) says:

Re: Re: Can we get this standard used in climate science?

“Ensemble Models” are used in climate predictions, where the predictions of many models are, more-or-less, averaged. There are some good explanations in the freely available IPCC 2013 report. Specifically Chapter 12, Page 1036-1037, FAQ 12.1 “Why Are So Many Models and Scenarios Used to Project Climate Change?”

Here’s a link:
https://www.ipcc.ch/pdf/assessment-report/ar5/wg1/WG1AR5_Chapter12_FINAL.pdf

Anonymous Coward says:

Re: Can we get this standard used in climate science?

Not likely, as climate science isn’t about making accurate predictions at this point. Actual climate scientists won’t make scientific predictions for the most part; that’s left to journalists. Climate scientists will make observations (the global climate is warming at an unprecedented [during recorded history] rate, even during what is supposed to be a global cooling cycle), and sometimes dabble in circumstantial corroborations (current global warming appears to be tracking the human-caused CO2 and methane release into the atmosphere).

Predictions are left up to weather science and meteorologists, and they always affix a wide margin of error to their predictions.

TL;DR: if you see a prediction without error bounding, it’s not scientific.

OldGeezer (profile) says:

Re: Can we get this standard used in climate science?

Whatever statistics presented can be explained by normal fluctuations throughout known history. When I was in school in the 60’s we were taught that the earth was heading toward another ice age. That was because we were in a normal cooling cycle even though the years of WWII and after saw the greatest increase in manufacturing in all history. I could accept evidence of global warming but the link to it being caused by man is weak. Natural events like volcanoes, forest fires and even cow farts produce more C02 and other pollutants than we ever could. Emission controls are a good thing because they do reduce a lot of toxins but they can do little to change the climate. I have never understood the claim that emission controls help prevent global warming. Five gases are measured in testing, hydrocarbons, carbon monoxide, oxygen, nitrous oxide and carbon dioxide (CO2). You want the first four to be as low as possible but CO2 high, ideally over 13%. I thought CO2 was the big bad culprit in greenhouse gases yet a properly running car produces more of it.

Groaker (profile) says:

DNA

Yes computers make mistakes, and I have seen some that were truly incredible since 1965. Far more often are statistical method errors. While fingerprints may or may not be unique, the system used to declare matches depends on congruence with a relatively few number of points. DNA declarations of matches tend to depend on a 10 point system, which may or may not be adequate to overcome the “Birthday Paradox.”

The greatest source of error comes in collection, labeling, transport and storage of specimens. This may result from innocent error, ignorance, misfeasance or malfeasance. This is an issue in medical systems where people are well trained, and usually dedicated. I can not believe that police are as well trained, as dedicated to truth, or generally as intelligent as the medical world.

You can’t trust the justice system because:
1) It has ridiculous laws.
2) It has little concept of science, how to interpret it, and what results mean.
3) Forensic work is subject to massive error and falsification.
4) Evidence gathering is subject to error and malicious behavior.
5) The defense is often not permitted to explain the existence of evidence, or to challenge it in a court of law.
6) First hand eyewitness evidence is well known to be often faulty.
7) Jurors are instructed not to think for themselves as to why a particular piece of evidence is likely to exist, but has not been presented.
8) For those who think we have a wonderful system, tell me why we have 25% of the worlds prisoners, but only 5% of the worlds population.

Roger Strong (profile) says:

Re: DNA

9) Because the justice system can simply ignore DNA evidence.

News of the Weird occasionally features these stories.

Lost in the public debate over whether DNA testing should be done on death-row convicts is the case of Texan Roy Criner, now 33, who is in no danger of execution but has been imprisoned since 1990 (sentence: 99 years) for rape, despite a subsequent DNA test concluding that the sperm in question was not his. One appeals court had overturned Criner’s conviction even before the DNA test was performed, but the state’s highest court reimposed the conviction, and in interviews with the PBS TV program “Frontline” in January, Judge Sharon Keller of that court said that Criner was nonetheless properly convicted even though the sperm did not match.

In an October decision, the U.S. Court of Appeals for the 6th Circuit voted, 8-7, not only to affirm Paul Gregory House’s 1986 rape-murder conviction but also to keep him on Tennessee’s death row, despite subsequent knowledge that the prosecutor’s primary evidence was faulty. The eight judges accepted the conviction, even though the rape evidence was based, nearly archaically, on a match of blood “type” in semen found on the victim; much more sophisticated DNA testing later showed that the semen was not from House but from the victim’s estranged husband (who, it was subsequently learned, allegedly “confessed” the crime to three witnesses, evidence that was too belatedly offered to satisfy the majority judges). [New York Times, 10-7-04]

Cox News Service reported in August that Florida state-agency DNA paternity tests on child-support-resisting men found that 36 percent of 1,025 “fathers” in four counties were not the fathers after all. However, Florida courts are split on whether even a negative DNA test will relieve men of support responsibilities once they voluntarily begin paying.

Granted, some times it all turns out OK:

William Dillon was released in November after 26 years in prison when a DNA test ruled him out as the murderer. He was the second Florida man recently freed by DNA after being positively identified at trial by a star police dog, Harass II, whose trainer Bill Preston had sworn could amazingly track scents through water and after months of site contamination. In June, the Innocence Project of Florida said as many as 60 other convicts might have been “identified” by Harass II. According to an Orlando Sentinel report, only one judge (who’s now retired) thought to actually test Harass II’s ability in a courtroom, and he wrote that the dog failed badly. [Orlando Sentinel, 6-14-09]

That One Guy (profile) says:

Re: Re: DNA

Of course, after all if they let one person go just because the evidence clears then them they might have to let other people go because the evidence clears them, and that’s just such a huge freakin’ hassle. Not to mention it might make the prosecutors and judges look bad for sending an innocent man to prison/death row, and we can’t have that now can we?

Nah, better by far to just ignore any ‘inconvenient’ evidence and let the actual guilty person walk free, I mean really, what’s a few wrongfully convicted/executed people compared to more paperwork and making someone in a position of authority look bad?

Groaker (profile) says:

Re: Re: Re:2 DNA

At least one of his predecessors found great joy in tele-execution and torture. I don’t see any reason to think this governor is any different.

Of course there is a possibility of cowardice. Being unwilling to go up against the judges, prosecutors and cops who couldn’t wait to see this man murdered.

That One Guy (profile) says:

Re: Re: Re:2 DNA

Unless the tone when they said it was positively dripping with sarcasm I wonder if whoever said that has any idea that they outed themselves as not only accepting of murdering an innocent person but downright in favor of doing so?

Even more worrying is given they were willing to say it how widespread is that murderous mindset in their area…

Yet another reason to stay far, far away from texas I guess.

Anonymous Coward says:

I can see why the DOJ doesn’t want to release its big fingerprint database. I would frankly have concerns if they did; it’s not just criminals in there. But even so, why can’t they do this research themselves? Is it that they are afraid of the answer?

Also, how big of a database would someone actually need to do this sort of research? Could they get volunteers?

Anonymous Coward says:

Re: Re:

Short form:

“If they’ve done nothing wrong, they’ve got nothing to hide.”

/s

Of course, it’s tricky when you’re dealing with other people’s data. Part of the problem with the DOJ database is that the contents aren’t even standardized. Some of the samples are of a much higher quality than others, which means you can’t even generate a reliable standard of error.

Skeeter says:

Fingerprints or Chops

The real reason the DOJ will NEVER allow full research investigation into fingerprint databases is for the very reason they are kept so secret now. They do not want what they know about them to become public, as it would utterly destroy the criminal legal system currently in place.

While the average fingerprint is ‘quite rare’, the quoted myth of ‘there is only one per human on earth’ is very-much a lie. There are several cases in the past where more than one person has had the same visual print, even in the same relatively-small town. While not all prints are ‘so common’, the truth is, SOME ARE. If 2-percent of prints are highly common (say, 1 occurrance in 10,000), while 90-percent are rather rare (say, 1 in 1,000,000), and the remaining 9-percent fall somewhere in-between, then in actuality what you have is no better than trying to identify a criminal based on his car’s paint-job – heaven help you if you have that red-car or those common fingerprints.

This is the nasty, NASTY little secret that the DOJ doesn’t want known about fingerprints, and why they will NEVER allow researchers to investigate their print databases.

ECA (profile) says:

REALLY

“Why is this process still so vague even after decades”;

Is this an understatement?? its Just passed the 100 year mark in the USA..and in the world, abit longer..

Always wondered how many dots/dashes there were in a 3/4 inch area..
AND HOW you can match less then the WHOLE thing..
Then to decide the orientation..
its like looking at a CLOCK with no numbers..TURN IT ANY WAY YOU WANT..just line up the Hands for the time..
I love that TV. can take a print from ANY surface..

But its the easiest way to TELL if someone has been in a room..

Uriel-238 (profile) says:

The justice system doesn't even use forensics to detect culprits.

They choose their culprits and then seek out evidence to convict them. When a suspect is acquitted, they assume he escape justice through a technicality. It doesn’t even occur to them that they got the wrong guy in the first place.

They certainly don’t re-open the case and look for other suspects.

So why do we regard acquittals as false and evasion, but regard convictions as absolute, enough that we can doom them to a heinously cruel penal system?

We need to completely change how we investigate, and then refine our forensic science accordingly.

Pirates and emperors: Our state policies are more monstrous than the crimes of those trapped in the system.

And we need to change our penal system to include the presumption we probably got the wrong guy and he’s there to be reformed and contained, but doesn’t necessarily deserve punishment.

OldGeezer (profile) says:

Re: The justice system doesn't even use forensics to detect culprits.

Even when there is strong evidence that the wrong person was convicted it can take years to free an innocent man. There have been cases where DNA, police or prosecutorial misconduct, jury tampering, or new evidence comes to light. Testimony by jailhouse snitches who are rewarded with charged dropped or reduced are taken as facts. Even when someone else confesses and there is strong evidence that it true it is not enough. Victims and witnesses have admitted to lying sometimes under pressure or threats by investigators. Often authorities don’t like to admit they were wrong. Sometimes there is a conviction and crimes with very distinct signatures and details that were never released continue. Even when they catch the right person it is an uphill battle to get the wrongful conviction overturned. TV crime shows that portray these situations and the next day the prisoner is freed with the judge apologizing are far from reality. Often they have to go through retrials and sometimes are falsely convicted again. It can take years and sometimes they die in prison or are executed before they are exonerated. The child abuse hysteria in the 1980’s saw dozens of innocent people convicted. Children were interviewed and encouraged to invent crimes and even the most ridiculous stories were believed. It was claimed “children don’t lie about these things.” They do when improper methods are used and are pushed to make up fantasies of satanic rituals and are told the lie “your friend already told what happened.” Tapes have been released where their persistent denials that anything happened are met with displeasure and unbelief. Eventually tell what they think the interviewer wants to hear.

Groaker (profile) says:

Re: Re: The justice system doesn't even use forensics to detect culprits.

No matter what the justice system says about a search for the truth, it is my experience that everyone in a court room is willing to lie.

One incident that truly surprised me was a bone headed lie told by a judge in an attempt to intimidate a prospective juror during voir dire. I was quite shocked not because of the lie so much, but because it was such a stupid one. Anyone who had read their jury notice, saw the video presented to all jurors, or listened to the welcoming speech by one of the county supreme court judges knew that the judge had lied. Bad enough that he lied, but to make such an ass of himself in front of a 100+ people was hard to believe.

That One Guy (profile) says:

Re: Re: Re: The justice system doesn't even use forensics to detect culprits.

Bad enough that he lied, but to make such an ass of himself in front of a 100+ people was hard to believe.

And who exactly is going to call a judge out on a lie, baldfaced or not, in their own courtroom?

When everyone at your ‘job’ has to suck up to you then I imagine the ego gets just a wee bit swollen, and blatantly lying doesn’t seem like much of a problem because even if everyone knows you lied none of them dare say anything about it.

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