Bruce Barket, a partner at Quadrino Schwartz, was an assistant district attorney in Nassau County from 1986 to 1991. He is a current member, and former board member, of the New York State Association of Criminal Defense Lawyers.
Recent trouble at the Nassau County Police crime lab highlights a well-documented but under-reported nationwide problem with the veracity and accuracy of police "science."
In 2009, the National Academy of Science released the results of a congressionally mandated study of forensic science. The committee found that forensic science is plagued by the "absence of solid scientific research demonstrating the validity of forensic methods"; a lack of research on human bias and error; labs governed by law enforcement agencies instead of being independently run; a marked lack of adequate training and continuing education; nonadherance to rigorous performance standards, and inadequate oversight.
This national study tells us that the problems in Nassau are hardly unique.
Perhaps because of television dramas like "CSI," forensic evidence is seen by the public as well as by jurors as objective and conclusive. In truth, however, it is subjective and derived in many cases from the judgment of poorly educated technicians using subpar equipment and failing to diligently care for evidence.
Worse, the 2009 study found that much of what is touted as science is unsupported by reasonable research in the specific field. Across the country, too many cases include questionable - and sometimes fraudulent - evidence.
The national report details problems in Houston, where several DNA experts employed by the lab alleged the DNA/serology unit was performing "grossly incompetent work" and producing deliberately misleading findings to help the prosecution.
In West Virginia, more than 100 convictions came into doubt and at least 10 were vacated because a crime lab employee falsified results. In 2008, a lab in Detroit had to be shut down because of false findings in 10 percent of a random sample of 200 murder cases.
These examples and the problems in Nassau taint every aspect of police forensics - from fingerprints to blood alcohol content, from ballistics to blood spatter, and from autopsies to child sex offense exams. The system is littered with poorly trained personnel, badly maintained equipment and unwarranted conclusions. We now have to add shoddy forensic practices to the list of systemic flaws that cause miscarriages of justice.
Criminal defense groups such as the National and New York Associations of Criminal Defense Lawyers have been at the forefront of the fight to improve standards for forensic labs. A number of improvements in the system are necessary.
First, "expert testimony" should be scrutinized initially by the prosecutors presenting the evidence. It is their responsibility to make sure that the forensic evidence they offer is credible. Next, the defense bar must do a better job at challenging forensics. Lawyers will prepare for weeks to cross examine an eye witness, but too often fail to ask a drug examiner any questions at all. Finally, judges must be the final gate keeper, excluding inadequate evidence. Just because witnesses calls themselves experts, doesn't mean they should be allowed to testify.
Next, we need legislation empowering a state agency with the ability to enforce national standards for methodology, education and accreditation. The group that issued the Nassau report is a private, not-for-profit organization that lacks real enforcement powers. Crime labs are not mandated to seek accreditation. We regulate everything from doctors to lawyers, from airline pilots to subway operators. Yet there is no regulatory body charged with overseeing and enforcing minimal standards for operation and staffing of police crime labs.
The curtain of "police science" is being pulled back, and we see not an all-knowing wizard but the flaws of a system in desperate need of an overhaul. Each failure potentially represents either the release of someone from whom society needs protection or an innocent person being unjustly imprisoned. We can and should be better.
Advances in forensic science technology, including properly trained lab personnel, will help law enforcement correctly identify perpetrators of crimes and thereby reduce the tragedy of wrongful convictions. Failing to act would be its own form of injustice.