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Forensic Problems in the Criminal Courts

There is a big difference between civil courts and criminal courts. The obvious fact is one deals with money in large part and the other, the loss of liberty: jail or prison. The rules of evidence that govern both systems are essentially the same. Or so one would think. The reality is that criminal courts have come under large scrutiny for not following the rules of evidence when it comes to bogus science. The National Academy of Science and The National Institute of Justice were both contracted to perform a comprehensive study on the state of modern forensic science methods allowed in court. They issued a scathing report: https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf

Law enforcement has crossed many lines in their efforts at obtaining convictions, whether rightfully or wrongfully. This is the problem. Their use of “scientific methods” to convict people such as bite mark analysis and arson investigations, like the one used in wrongfully convicting Michael Morton to over 30 years of prison, have come under fire by the nation’s scientific community. So how has this happened? The simple answer is that the criminal judges in this country have forsaken the gate keeping role established by rule of law. The civil courts have done an excellent job of keeping out fake science. See the video above, civil turned criminal defense attorney Mike Mosher articulating his shock at how the criminal courts do not follow established law when it comes to allowing in questionable police tactics to convict. The established law in the United States for admitting forensic evidence is the Daubert standard. The Court in Daubert defined “scientific methodology” as the process of formulating hypotheses and then conducting experiments to prove or falsify a hypothesis. It sets out five factors in determining the legitimacy of a “scientific” method before the jury is allowed to consider it:

1. Whether the theory or technique employed by the expert is generally accepted in the scientific community;
2. Whether it has been subjected to peer review and publication;
3. Whether it can be and has been tested;
4. Whether the known or potential rate of error is acceptable; and
5. Whether the research was conducted independent of the particular litigation or dependent on an intention to provide the proposed testimony.

The purpose of the justice system is to arrive at truth. This cannot be done using fake methods to convict a person. As the commentator, Mike Mosher, refers to in ​the above video, it is alarming that our criminal courts across America have fallen prey to allowing the overzealous whims of law enforcement to dictate evidence, even when such evidence is fake.

I met Mike Mosher this month at the nation’s largest DWI seminar in the country put on by the National Association of Criminal Defense Lawyers and the National College of DUI Defense in Las Vegas. He has spent a successful career suing pharmaceutical companies in civil courts over false claims in an effort to save lives. He was very shocked when he started practicing in the criminal courts. Many criminal defense lawyers such as myself, are used to the low standard used in admitting ineligible evidence. The problem is that criminal appellate courts let it slide. There are innocence clinics popping up in law schools all across America trying to right these wrongs. We the people, the voters who elect these judges, must be aware of these atrocities committed in our courts in the name of “tough on crime” and do better to prevent further injustices.