Investigative reporters for the Nation found a troubling lack of scientific support for forensic pattern-matching techniques like toolmark and bitemark analysis. They concluded that the legal system has failed to keep unreliable, unscientific evidence out of the courtroom, even in capital cases, and prosecutors are working to preserve and even expand their ability to present such evidence.
Forensic "Science" Is Not Really Science
In contrast with forensic DNA analysis, which relies on scientific principles like the known variations in the human genome, "pattern-matching" disciplines that compare bite marks, hairs, shoe prints, tire tracks, or fingerprints involve an enormous amount of subjective judgment in determining what counts as a match. The Nation specifically investigated handheld toolmarks analysis, in which examiners compare marks left by knives, bolt cutters, bayonets, scissors, screwdrivers, pipe wrenches, pliers, or wire-strippers.
Toolmark analysis emerged out of a national push in the early 20th century to professionalize police investigative techniques, the Nation reports.
Law enforcement borrowed terms from science, establishing crime 'laboratories' staffed by forensic 'scientists' who announced 'theories' closed in their own specialized jargon. But forensic 'science' focused on inventing clever ways to solve cases and win convictions; it was never about forming theories and testing them according to basic scientific standards. By adopting the trappings of science, the forensic disciplines co-opted its authority while abandoning its methods.
In 2009, an independent survey by the National Academy of Sciences found that "[m]uch forensic evidence—including, for example, bitemarks and firearm and toolmark identifications—is introduced in criminal trials without any meaningful scientific validation, determination of error rates, or reliability testing to explain the limits of the discipline."
The report found no scientific basis for forensic examiners's claims of certainty in court, no professional guidelines for testimony, no standard accreditation or certifications for labs, and little research on variability, reliability, or human bias.
What little research has been done eviscerates forensic examiners' claims of infallibility. Bite-mark examiners claimed a coincidental match would occur less than one in 10 quadrillion times, but when actually tested, the most experienced examiners were wrong about one in six times. The FBI Firearms-Toolmarks Unit chief claimed a qualified examiner will rarely if ever make a misidentification, but in 2008, the Detroit Police Department's crime lab was shut down when auditors found that its examiners made one error in every 10 cases. And after the head of the FBI’s fingerprint laboratory claimed its error rate was one in 11 million, tests of fingerprint examiners showed error rates as high as one in 24.
In 2013, the Justice Department established the National Commission on Forensic Science. Comprised of forensic practitioners, scientists, and attorneys, it recommended a new code of professional conduct for laboratories and that examiners should stop using the misleading phrase "to a reasonable degree of scientific certainty" in testimony.
The President's scientific advisory council, PCAST, concluded in a follow-up report three years later that "lack of rigor in the assessment of the scientific validity of forensic evidence" is "a real and significant weakness in the judicial system."
The council identified a lack of scientific support for firearm and toolmark analysis, noting that only one appropriately designed study on error rates existed, and it showed a false-match rate of one in 100. The Nation's review found a similarly shocking lack of empirical data on error rates in handheld toolmark examination.
Courts Have Not Prevented Unreliable, Unscientific Evidence
Judges decide what evidence can be presented in court. Most of them lack scientific training and the ability to assess the scientific validity of a forensic technique, and the legal standard in place for decades did not require the prosecution to prove that a technique is reliable. Once a technique has been allowed into court, subsequent judges continue to allow it by citing precedent—which forensic examiners also cite to claim their techniques are reliable.
In this circular way, legal rulings—which never really vetted the science to begin with—substitute for scientific proof.
In 1993, the Supreme Court mandated that judges allow only scientific evidence supported by testable claims and required proponents of the evidence to provide measures of how often examiners make mistakes. Federal courts and most states have adopted this standard, but it has little impact because most judges still rely on precedent. As Harry T. Edwards, chief judge for the D.C. Circuit Court of Appeals, explained:
Judges believe that because we said it before, it must be right, and because these practitioners have been around for a long time, it must be right. In other words, history is the proof.
Recently, a few judges have acknowledged the problem. In 2016, D.C. Court of Appeals Judge Catherine Easterly wrote in a robbery case involving a firearm:
As matters currently stand, a certainty statement regarding toolmark pattern matching has the same probative value as the vision of a psychic: it reflects nothing more than the individual's foundationless faith in what he believes to be true.
Prosecutors Preserve — and Expand — Reliance on Forensic Evidence
Most prosecutors resist reform because it could weaken one of their most powerful tools, threaten currrent cases, and call past convictions into question.
The Justice Department knew for years that its hair comparison examiners made mistakes, but even after a whistle-blower forced a review of 2900 cases, the department kept the review secret. In 2015, it finally conceded that its examiners gave flawed testimony in 96 percent of cases, including 33 of 35 death penalty cases reviewed. Nine of those defendants had already been executed.
Because forensic analysts identify as part of the prosecution team, unconscious cognitive bias can infect results, such as examiners unconsciously seeking evidence that confirms their colleagues' view of the case.
The NAS report stressed the need for reform to be independent of prosecutorial agencies, but Attorney General Jeff Sessions allowed the National Commission on Forensic Sciences to expire, suspended the ongoing review of standards for examiner testimony, and put DOJ back in charge of forensic science "reform."
The accelerating use of digital forensics — already, artificial intelligence predicts criminal "hotspots" and software purports to analyze tiny amounts of DNA in complex mixtures from multiple people — underscores the urgency of addressing the problems in forensics that lead to wrongful convictions. Experts warn that these issues, including secrecy, pro-prosecution bias, inflated claims that lack empirical support, and courts' failure to keep out unreliable evidence, will be compounded as forensics becomes more automated.