April 2009 Arizona Attorney coverTime flies while little happens.

That’s what occurred to me the other day, when I came across the April 2009 issue of Arizona Attorney Magazine. In that issue, I wrote an article exploring the implications of a hot-off-the-presses report from the National Academy of Sciences. The NAS report was titled Strengthening the Forensic Science System in the United States: A Path Forward,” and it described in sometimes stark detail many of the problems with the current forensic science system.

And it’s worth recalling that forensic science is the stuff used in court, marshaled in an effort to convict people and send them to prison—or worse.

That 2009 spring was a whirlwind of activity, as the report’s launch was announced, delayed, and announced again. Until the week we went to press, we weren’t sure we could manage to have a timely story.

But what I never really doubted was that the report would have a significant effect on courts and policy. I’m not typically a sunny-side up guy, but the scholarly report was the work of a blue-ribbon panel to end all blue-ribbon panels. It was headed up by a respected jurist. And the writers included a wide variety of people (translated, not just scientists or law professors).

But more than three years later, the report has made few ripples. And this week, a blog post describes the reasoning behind at least some courts’ rejection. In the story, the D.C. Court of Appeals is the focus (note: That court is the District’s highest court; it is not the D.C. Circuit Court of Appeals).

April 2009 forensic science openerIn the case discussed, a lawyer sought to use sections of the NAS report that questioned the reliability of fingerprint analysis. The trial court denied this, and the court of appeals affirmed. The appellate court found:

“that the sections of the report at issue weren’t a ‘learned treatise,’ a term referring to a text that is considered authoritative and can be used to question experts. The appeals court found that [the] lawyer failed to present any evidence that the section on fingerprint analysis was a ‘reliable authority’ and accepted by the scientific community.”

True; that is the standard. But how long do courts wait until the scientific community accepts a report that eviscerates that very same community in significant ways. I’m not sure what the Latin is for “don’t hold your breath,” but I may look it up.

Yesterday, though, I saw this story out of Miami, in which a trial court judge ruled that fingerprint evidence should be restricted.

Note that he did not rule that such evidence should be excluded. He merely read the NAS report and decided that language like “a match” in direct testimony would be overreaching by a forensic expert.

Time will tell whether other courts begin to make granular changes such as this—and whether they will be upheld by appellate courts. But it grows more likely that change stemming from the NAS report will be more grassroots and less global; more lawyer-driven than chief justice- or legislature-driven.