Fall 2009

FORENSICS COMMITTEE REPORT

Myrna J. Glick, Ph.D.
Chair, Forensics Committee
831.646.9330
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What to Believe?

Seven years ago, in the fall of 2002, the entire country was on edge because of a series of seemingly random shootings. They were known collectively as the Beltway Sniper Attacks, even though some had occurred in western states. The attacks were carried out in such very public places as gas stations or in the parking lot of a heavily frequented store--the kind we all go to on occasion. Based on numerous eyewitness reports, much of the country was obsessively searching for a large white van. The search absorbed the law enforcement resources of several states, drawing their attention and time from leads that might have paid off.

Actually, there never was a white van. The lethal vehicle was a blue Chevrolet Caprice--ironically enough, a former police car, the trunk specially modified by John Allen Muhammad, a former Army sergeant, expert marksman, and mechanic. He transformed the trunk to serve as a mobile shooting platform, complete with a viewing hole. The platform was designed to hold Lee Boyd Malvo, an unfortunate teenager from Jamaica whom Muhammad had taken under his very controlling wing. Muhammad systematically indoctrinated Malvo, training him as a sniper. It was part of an elaborate plot designed to allow Muhammad to find his ex-wife, kill her and regain custody of his children. They started out from Tacoma, Washington, and headed toward Maryland, where he suspected his ex-wife was living, or rather hiding from him.

They headed east across the country. While Muhammad drove the car, at his direction Malvo shot targeted victims. Ultimately, they were tried for six counts of first-degree murder, although they had also committed crimes in Alabama, Arizona, California, Louisiana, Maryland, and Texas. It may never be known just how many crimes they actually committed. Ultimately, sixteen deaths and four injuries were officially attributed to the two. Today, Lee Boyd Malvo remains incarcerated. John Allen Muhammed is scheduled to be put to death on November 10 under Virginia law (http://en.wikipedia.org/wiki/John_Allen_Muhammad).

Hopefully, the country learned from that horrifying case and many others that eyewitness leads and testimonies are often wildly inaccurate. Probably much of the inaccuracy occurs just because we are all human and fallible. Furthermore, most such eyewitness descriptions are taken from individuals under great stress or even in shock. The context matters too. Psychologists have also learned from the wonderful work of Stephen J. Ceci and Maggie Bruck (Jeopardy in the Courtroom, A Scientific Analysis of Children’s Testimony, 1995, Washington, DC, American Psychological Association) that we are all highly suggestible. The work of Ceci and several others has established that even sophisticated adults can easily be led to believe that they saw Bugs Bunny on a trip to Disneyland. Actually, Bugs Bunny is a Warner Brothers character and so would not be caught dead in Disneyland. Children are all the more susceptible to suggestion.  For that reason, whenever children’s testimony is introduced, it is advisable to thoroughly investigate how they were questioned. Ideally, all child reports should be videotaped, but that does not always happen.

Just as the forensic psychological community became more attuned to all the ways in which eyewitness evidence can be tainted, the entire nation became mesmerized by such dramatic television shows as CSI. In most such programs, the crime scene laboratory seems to provide definitive, unimpeachable fact. However, in recent years, amazing developments in DNA analysis have been applied to criminal cases long thought irrefutably solved and settled. In many such cases, seemingly established fact turns to fiction. Many such convictions are based on eyewitness testimony, but others rely on other forensic techniques. According to The Innocence Project, “232 people nationwide have been exonerated though post-conviction DNA testing… In approximately half of those cases, unvalidated or improper forensic science contributed to the wrongful conviction” (Eric Ferrero, Director of Communications, Press Release (www.innocenceproject.org).

The tide may be turning toward more solid data. A long awaited, very thorough investigation of forensic science has been completed and presented to Congress. On March 18, 2009, Harry T. Edwards, Senior Circuit Judge, Chief Judge Emeritus and Visiting Professor of Law at NYU, presented a report to the Senate Judiciary Committee on behalf of The National Academies.  Its theme was the need for wide-ranging improvement in the application of forensic science to the judicial process.  Judge Edwards stated that he had “never heard an appeal in which a criminal defendant challenged the admission of forensic evidence at trial” (p. 2 of 10, http://www.nap.edu/catalog.php?record_id=12589). Judge Edwards’ presentation made it quite clear that many or even most forensic labs are far from infallible. He testified that, “With the exception of nuclear DNA analysis, no forensic method has been rigorously shown to consistently…demonstrate a connection between evidence and a specific individual or source.  Yet for years, the courts have been led to believe that disciplines such as fingerprinting stand on a par with DNA analysis.” Aside from inconsistent practices from one crime lab to another, he pointed to unqualified personnel, often lax standards, and the absence of quality control measures. Other problems were cooperating agencies that met infrequently and a judicial system staffed by lawyers and judges who usually lacked the scientific expertise necessary to evaluate data. Further, defense attorneys often do not have sufficient resources to challenge prosecutors’ forensic experts (excluding OJ Simpson’s “dream team”).  He concluded that there are no existing agencies suited to govern the forensic scientific community. He recommended on behalf of the National Academies that Congress act to create one. The report calls on Congress to establish a National Institute for Forensic Science to oversee the forensic science community.

Will it happen? Not likely while the nation has so very much on its plate. But this is a goal that would greatly enhance the validity of verdicts. In a perfect forensic world, there would be no need for The Innocence Project. Psychological testimony must meet the Daubert standard, meaning that the validity of the material presented must adhere to scientific rigor. Unfortunately, that has not been true for all forensic data, including bite patterns, bullet matching, and even several instances when the FBI utilized faulty fingerprint identification techniques. Hopefully, the psychological community will support efforts to make the judicial process more reliable and accurate.

Myrna J. Glick, Ph.D.