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Comments on Sharon Begley's Science Column “But It Works on TV! Forensic ‘science’ often isn’t” in the April 12, 2010 issue of Newsweek

George Schiro, MS, F-ABC

E-mail: Gjschiro@cs.com

(337) 322-2724

Sharon Begley’s Science column entitled “But It Works on TV! Forensic ‘science’ often isn’t” in the April 12, 2010 issue of Newsweek is misleading, inflammatory, alarmist, and inaccurate. Below are my comments on the misleading and inaccurate information in the column:

Re: “Forensic ‘science’ often isn’t.”

This is an inaccurate, but inflammatory, statement: The vast majority of forensic science analyses are in drug analysis and toxicology, both of which use established chemistry methods, techniques, and procedures. Forensic ‘science’ almost always is.

Re: “In a culture smitten by CSI, NCIS, and Bones, it wasn’t surprising that the jury bought the blue-jeans testimony. Testifying in a 1989 murder trial…”

CSI, NCIS, and Bones aired well after 1989, so the culture would not have been smitten by these programs. The closest thing to a forensic science TV program during that era was Quincy which ran from 1976-1983, six years prior to the 1989 trial.[1] At this time there was little forensic science programming to smite the culture.

Re: “Testifying in a 1989 murder trial in upstate New York, a forensic scientist explained that the imprint on a pickup truck owned by the accused could have been made only by the victim’s jeans – of which a mere 200 had been sold in the area.  The scientist described her meticulous analysis of fabric and stitching; soil from the truck also matched dirt at the crime scene. The jury bought it: guilty.”

This is a gross exaggeration of the case according to the Innocence Project’s website.  This passage refers to the Steven Barnes case. Steven Barnes was accused and convicted of murdering Kimberly Simon. Eventually he was exonerated based on DNA evidence from spermatozoa found on the victim’s body and clothing. The scientist did not state that the imprint could have only been made by the victim’s jeans. She determined that the two patterns were similar. It was a self-employed manufacturers’ representative who told the court that the stitching was unique and that as many as 200 pairs may have been sold in that particular county. The scientist also testified that soil samples from the crime scene had similar characteristics as soil samples from Mr. Barnes’ truck. She also testified that two hairs collected from Mr. Barnes’ truck were microscopically similar to the victim’s head hair and dissimilar to the Mr. Barnes’ hair. Innocence Project’s website doesn’t mention whether or not Mr. Barnes attorney cross examined the expert regarding the limitations of hair, soil, and fabric impression evidence, all of which was known in 1989. It is also not known if the attorney presented testimony from other experts or provided information at trial regarding the limitations of hair, soil, and fabric impression evidence.

In addition to this, the scientist testified that seminal fluid was found on the victim’s underwear and on swabs from her body, but serological testing was inconclusive regarding Mr. Barnes. Other potentially exonerating physical evidence was presented at the trial, including that no finger or palm prints matching the victim were found in his truck and tire imprint evidence found at the scene did not match his truck.

It is highly doubtful that the analysis of the physical evidence alone led the jury to a verdict of guilty. Eyewitnesses claiming that they saw Mr. Barnes’ distinctive truck around the same time Kimberly was seen walking along the street and a jailhouse informant who claimed that Barnes confessed to him in jail were also presented at trial. Innocence Project’s website doesn’t mention whether or not Mr. Barnes attorney challenged these claims.[2]

 Kimberly Simon's murder is still unsolved. For more information you can go to www.rememberkimsimon.com. If you have any information regarding her murder, please contact the Oneida County District Attorney's Office.

Re: “It was no aberration”

This is an unfortunate aberration in the U.S. criminal justice system. Cases of this type make up a very small percentage of cases in the criminal justice system. The factors that have to be taken into account include anyone who comes in contact with the criminal justice system as an arrestee or a suspect; the number of suspects that have been cleared by forensic science; the number of cases in which the victim drops the charges; and the number of cases in which the grand jury does not indict the suspect. On average, only 5% of cases in which a suspect is indicted go to trial. The average state plea bargaining rate is 95%.[3] Of the cases that go to trial, analysis of physical evidence might not be part of the case or it might have little impact on the overall outcome of the case.

Re: “According to the Innocence Project, of the 252 DNA exonerations since 1989, half the convictions were based at least partly on “unvalidated or improper forensic science.”

What constitutes "unvalidated or improper forensic science" is still subject to debate among attorneys, academicians, and forensic scientists. Without examining the entire case record and talking to jurors, no one can determine the basis for the convictions, and what, if any, impact the forensic science testimony had on the outcome of the trial. One examination of exoneration data determined that in 200 cases, there were 283 instances of systemic failure. Forensic science malpractice was found in 32 instances (11%). Of these 32 instances, 31 of them occurred in unaccredited labs. The only instance that occurred in an accredited lab did not directly incriminate the suspect. Forensic science malpractice was identified as the sole systemic failure in only two overturned convictions (1%). Both were associated with the work of a now deceased crime lab employee who had a track record of fraudulent work.[4]

Re: “The surprise is that the rate isn't higher: a 2009 report by the National Academy of Sciences found that, in contrast to DNA matching, "for many other forensic disciplines—such as fingerprint and toolmark analysis—no studies have been conducted" to determine how many shoes, teeth, fibers, sand grains, or anything else "share the same or similar features" and so might be linked to the wrong person.”

Studies have been conducted to determine if items share the same or similar features. The fingerprints of identical twins have been studied and shown to be distinguishable.[5] The toolmarks of consecutively manufactured gun barrels have been studied and been determined to be distinguishable.[6] The number of shoes manufactured with the same sole pattern can be retrieved from shoe manufacturers to determine how many shoes would have similar features.

Re: “As a result, invalid forensic science “may have” helped convict innocent people. There is no “may” about it.”

The problems associated with forensic science are not with the underlying principles and theories. Few people, including the NAS, have examined the historical records that make up much of the foundation of modern forensic science. It is this foundation combined with peer reviewed publications, proficiency test results, and validation studies from then to now that firmly establish the forensic science disciplines used in crime labs.

Re: “An Idaho man was convicted of rape and murder based on shoeprints…”

This is an exaggeration of the case according to the Innocence Project’s website.  This passage refers to the Charles Irvin Fain case. Mr. Fain was accused and convicted of kidnapping, raping, and murdering a young girl. Mitochondrial DNA testing conducted on post-conviction appeal revealed that pubic hairs found on the victim's socks and underwear were not Mr. Fain's. While the shoeprint examiner misstated the mechanics of wear patterns in shoeprint evidence, his testimony and report emphasized that no definite conclusion could be drawn regarding Mr. Fain’s left shoe as having made the questioned impression. He stated that the sole pattern, a wear characteristic, and the size of Mr. Fain’s left shoe was the same as the impression found at the scene. Mr. Fain’s attorney cross-examined the shoeprint examiner and it was re-emphasized that a definite conclusion could not be drawn as to the specific shoe and, although, the shoes had the same characteristics, other shoes could have these characteristics as well.

In addition to the shoeprint testimony, an expert in hair comparisons testified at the trial. He testified that he had examined over 2000 cases during his six years with the FBI lab. He also testified that Mr. Fain’s pubic hair had characteristics, including one particular set of rare characteristics (bifurcated medulla, cracked cuticle, and split tips) that he did not see in the samples of pubic hair from the other 44 individuals that were sent to him, in common with the pubic hairs found on the victim’s socks and underwear. His report stated that the two pubic hairs could have come from Mr. Fain and “that hairs do not possess enough individual microscopic characteristics to be positively identified as originating from a particular person to the exclusion of all others.” Mr. Fain’s defense attorney re-emphasized this during cross examination.[7]

It is doubtful that the analysis of the physical evidence alone led the jury to a verdict of guilty. Two jailhouse informants testified that Fain had told them of his involvement in the crime and provided graphic details while they shared a cell with him.[8]

Re: “A Louisiana man was convicted of rape when a bite-mark analyst testified that he “is the person who bit this lady.”

This is a case of the expert going beyond the limitations of the examination and the science. This passage refers to the Willie Jackson case. Mr. Jackson was accused and convicted of the sexual assault of a woman. A semen stain that was missed in the initial examination (this was before the widespread use of alternate light sources in finding body fluid stains) of the victim’s pantyhose did not match Mr. Jackson’s profile, but did match Milton Jackson, the defendant’s brother. Post conviction examination of the bite-mark by another expert indicated that Willie Jackson was excluded as the source of the bite-mark, and that Milton Jackson made the bite-mark. Records indicate that Mr. Jackson’s defense attorney never presented a bite-mark expert to talk about the limitations of the science or to refute the prosecution’s expert’s findings.[9]

The first bite-mark expert clearly overstated the evidence and this could have played a significant part in the jury reaching a verdict; however, other factors also led to Willie Jackson’s accusation and conviction. The victim found a bank receipt with Willie Jackson’s name on it on her windshield. She had placed this in her pocket and shortly afterward was forced by a man into his car. Eight months prior to the rape, Willie Jackson moved 185 miles away; however, his brother and mother still lived in the area. A search of Ms. Jackson’s home revealed a sweater with the name “Milton” in it similar in description to one worn by the perpetrator. Ms. Jackson’s vehicle was similar in description to the attacker’s vehicle. The victim also picked out Willie Jackson from a photographic and a live line-up. The victim did not pick out Milton Jackson in a line up as her attacker.[10]

Re: “…the only forensic field that is formally trying to be more scientific is fingerprinting, which is already better than analyses of bite marks, handwriting, lip prints, shoe prints, and other variants of "pattern recognition."”

Forensic odontologists have revised how they report and testify to bite-mark comparisons.[11] They are also studying the frequencies of marks left by different teeth.[12] Handwriting analysts for several years now have been shoring up their findings through more quantitative assessments, standardized procedures, and standardized wording. Shoe-prints identifications can be conservatively quantified and random match probabilities can be calculated.

Re: “In her 2009 book, 206 Bones, Reichs tears into pop-culture portrayals of forensic scientists "as knights in shining lab coats." She warns that jurors cannot "spot junk science" (blue jeans, anyone?) and that some forensics disciplines are rife with "bad methodology, sloppy performance, or intentional misconduct."” and “In her next book, Spider Bones, which is due in August and centers on the misidentification of a body, she underscores the shoddy evidentiary basis for many forensic sciences.”

This is misleading. 206 Bones and Spider Bones are works of fiction.

Re: “"Jurors have been misled by Bones and CSI and the idea that science is always going to solve the case,"…”

Kathy Reichs’ life and writings are the inspiration for Bones. She produces the series and she has even acted in one episode of the show.[13] She has made a lot of money misleading jurors and being part of a supposed problem that she helped to create.

Re: “Those who specialize in the pattern-recognition techniques that have little empirical basis have been "resistant," Reichs told me. Yet the "science" of these fields is so dodgy that "sometimes they can't even agree if, for example, it is a bite mark," let alone whose.”

Ms. Reichs may not have examined the historical records that make up much of the foundation of modern forensic science. Sir Francis Galton was one of the first people to statistically analyze fingerprints and determine that the probability of two people having the same fingerprint is so small that fingerprints are essentially unique.[14] He was an English Victorian polymath, anthropologist, tropical explorer, geographer, inventor, meteorologist, proto-geneticist, psychometrician, and statistician. Dr. Henry Faulds was a Scottish scientist who is noted for the development of fingerprinting classification and comparison. Faulds' first paper on the subject was published in the scientific journal Nature in 1880.[15] In the late 1920’s Dr. Calvin Goddard, a cardiologist and former Army colonel, was the founder of modern firearms identification in the United States. Victor Balthazard, a French professor of forensic medicine at the Sorbonne in Paris, was his European counterpart and first identified individualizing markings on cartridge cases around 1912. Dr. Albert Llewellyn authored an article on firearms identification that appeared in the Buffalo Medical Journal in June, 1900.[16] Dr. Edmund Locard was an early 20^th century pioneer in forensic science, particularly in fingerprint identification and trace evidence analysis.

If two experts do not agree if a mark is even a bite mark, then they can both present their findings in court, be cross examined, and allow the jury to decide whose findings are more valid. This is the hallmark of science. Hypotheses are presented and then scrutinized to see if they are falsifiable or reproducible.

Re: “…meaningless. Like too much forensic "science."”

Much of forensic science is not meaningless. There are scores of talented and dedicated people in the forensic science community, and the work that they perform is vitally important. They are often strapped in their work, however, for lack of adequate resources, sound policies, and national support.[17] For decades, the forensic science disciplines have produced valuable evidence that has contributed to the successful prosecution and conviction of criminals as well as to the exoneration of innocent people.[18] There is room for improvement and many of the problems associated with forensic science are isolated incidents that can be identified and prevented through scientific working groups, lab accreditation, analyst certification, proper training, proficiency testing, rigorous technical review, rigorous cross examination, and the use of opposing experts in court.