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.

Hon. Ron Reinstein (ret.) speaks at ASU Law School, Nov. 16, 2010

Yesterday, a program at ASU Law School turned a light on what may be one of the most important issues in law today.

“The White House Subcommittee on Forensic Science: Policies and Issues” was the title, and it covered developments—or the lack of them—that have followed on the nearly two years since the National Academy of Sciences issued a compelling report about the state of forensic science today.

(We covered the report’s release in Arizona Attorney in April 2009. You can read it here.)

The speaker was Ron Reinstein, former Maricopa County Superior Court Judge who now works at the Administrative Office of the Courts. His experience in the area is broad and deep, and he currently chairs the state’s Forensic Science Advisory Committee.

ASU’s Law & Science Student Association was the host, and it gave Reinstein 50 minutes to explain “what’s happening in the world of forensic science.” He did quite a job in his allotted time.

He admitted, though, that the White House Subcommittee is pretty stringent on what can and cannot be said about the group’s workings, at least until it issues its report. As he landed on his last slide, he said, “We’re only allowed to do that PowerPoint.”

Of course, he was able to explain far more than that about the world outside the subcommittee.

The takeaway message was that much work had been accomplished over the past year at the federal, state and local level. Unfortunately, that work has translated very little into changes in approach and operations in forensic labs. “To be honest,” he said, “I am not that encouraged about state government responses around the country.”

Even in terms of education, Reinstein admitted that few judges have read the NAS report, and many others are even unaware that it exists. A survey of Texas judges showed that only 22 percent knew anything about it. “That’s kind of scary,” Reinstein said.

Much that was proposed in the NAS Report is unlikely to come to pass, he said. That includes an effort to require that all forensic labs be independent of law enforcement agencies. “That was dead on arrival,” he said.

(For insight into why that is important, read an article in the November issue of the ABA Journal, titled “CSI Breakdown.” As it says, “Some police and prosecutors tend to view government-employed forensic scientists, including medical examiners, not as independent experts but as members of the prosecution’s ‘team.’” The article is here.)

Courts, too, have not taken a leadership position on forcing changes in the forensic science regimen. “Judges don’t feel comfortable taking the lead on this,” he explained, adding that there have been few challenges by defense counsel based on the NAS findings that would allow judges to rule on admissibility. (One exception he mentioned is Nancy Gertner, a federal judge for the United States District Court for the District of Massachusetts. You can read more about her here.)

The speaker showed some silver lining in terms of education. He’s been pleased at the focus on the topic at Arizona Judicial Council conferences, and at the State Bar Convention. He said that people interested in the topic are watching to see what if anything the state’s new Attorney General, Tom Horne, and the Legislature adopt in regard to forensic science. And he is confident that “The Supreme Court wants to see change occur”; he mentioned Justices Hurwitz and Bales, and former Justice Ryan, as three who have indicated a strong desire to see positive change happen soon.

In the same vein, his Forensic Science Advisory Committee has developed a six-month course that will educate prosecutors and defense attorneys—25 of each—on all aspects of forensic science. It will meet weekly from January through May.

Look for more coverage in Arizona Attorney in 2011.

Here are more photos from the event.

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