Forensic science and the myth of adversarial testing

Abstract

This article explains why the adversarial trial has not been an effective mechanism for regulating the admission and use of many forms of forensic science evidence. Drawing upon mainstream scientific perspectives, and using an historical study of reported decisions involving latent fingerprint evidence, it documents how lawyers and judges never required forensic scientists to formally evaluate their procedures or express opinions in ways that are scientifically defensible. For more than a century every challenge to latent fingerprint evidence focused on legal and procedural issues, or the significance of fingerprints for the case. Questions about validity and scientific reliability (e.g. Can you do it? How accurate are you?) were not asked until 2015. The study shows that legal approaches and practices were, and are, insensitive to mainstream scientific perspectives on latent fingerprint evidence. It demonstrates that our practices around the admission and presentation of fingerprint evidence (and implicitly many other types of forensic science and medicine) are fundamentally misconceived, that our lawyers and judges genuinely struggle with technical evidence, and that our legal institutions have developed rules and commitments that prevent them from receiving the benefits of mainstream scientific research and advice.

Retraction of a peer reviewed article suggests ongoing problems with Australian forensic science

“…Past “successes” within the court system can remove the onus for further developmental work to explore the limitations of methods. Thus, for example, fingerprint evidence was widely accepted over more than a century without its limitations being appreciated [ 42 ]. Forensic science goes astray when it allows standards to be set by the legal system, rather than a scientific system.…”

Ethics as Lived Practice. Anticipatory Capacity and Ethical Decision-Making in Forensic Genetics

“…This role and its fulfilment has been highly criticized already for adversarial systems where mechanisms are in place for contestation [56,57], with conclusions drawn that "scientific illiteracy on the part of the legal profession, when coupled with the flaws in forensic science, forms a 'toxic combination'" (p. 82, [56]). The trial process rarely affords even the scientifically literate much opportunity to interpret and apply 'correctly' complex tests (assuming there is a 'correct' application) for whether scientific evidence is 'sufficiently reliable' [58]. In addition, such admissibility testing may come too late in the criminal process.…”

Towards another paradigm for forensic science?

“…On the other hand, does not expertise tend towards (private) bargaining when, on occasions experts would not accept the mission and conditions requested by their party, the latter preferring searching for another one? Can we deny that the expert debtor of a party has little interest in losing their favor, while their clients will stretch the conclusions to win the conviction of the decision-maker (Edmond, 2020)?…”