Colorado Technology Law Journal > Digital > In Need of A New Way Forward: The Old and New Ways Science and Technology Have Been Abused in Criminal Trials and the Need for it to Change

In Need of A New Way Forward: The Old and New Ways Science and Technology Have Been Abused in Criminal Trials and the Need for it to Change

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In Need of A New Way Forward: The Old and New Ways Science and Technology Have Been Abused in Criminal Trials and the Need for it to Change

If nothing else, Americans deserve a fair court system. A judicial system with a faithless population loses credibility; throughout history, loss of credibility in judicial systems has caused grave issues. As technology has become more sophisticated, its use in criminal trials has become more pervasive. Many people, myself included, trust science, technology, and those who dedicate their lives to it. However, when it comes to America’s criminal justice system, this trust has been eroded by many forensic science experts and abuses of technology. The abuse of scientific evidence and technology, primarily by prosecutors, is endemic throughout the country.[1]

It is helpful to examine how DNA evidence works in the American judicial system to understand the abuse of scientific evidence. DNA stands for Deoxyribonucleic Acid; it is a molecule within the nucleus of each human cell composed of two polynucleotide chains that coil around one another to create a double helix shape (which we are all familiar with). There are twenty-three pairs of chromosomes, which contain the coded information providing genetic material determining every individual’s physical structure and characteristics. Only identical twins have identical DNA structures, meaning all twenty-three pairs of chromosomes are identical.

DNA evidence relied upon by courts examines the sections which vary from person to person, called polymorphisms.[2] One test examines the length; the other examines the sequence.[3] Contrary to many people’s beliefs, DNA evidence only offers a probability that the DNA is that of the defendant. Depending upon how many of the different individual sections a particular DNA typing test examines, the less probable it is the DNA belongs to someone other than the defendant. Despite the uncertainties associated with DNA evidence, courts have long held that defendants are not entitled to the underlying method used by forensic scientists.[4]

The reason courts regularly allow potentially flawed DNA evidence is primarily due to society’s desire to trust science and scientists. This trust led courts to begin routinely admitting DNA evidence (among many other types of forensic science evidence) before demanding standards for admissibility were required.[5] DNA evidence falls into a category of “widely accepted beliefs that have been subjected to little if any systematic testing, or which continue to be accepted within their field despite testing which reveals them to be doubtful.”[6]

Fred Zain presents one of many examples of how DNA evidence can be abused in criminal trials. Zain was the head serologist for the West Virginia State Police crime laboratory from 1979 to 1989.[7] During his tenure, systemic deficiencies in the operating procedure were found. Written protocols, testing procedures, documentation of methodology, and routine proficiency testing were nonexistent.[8] After ten years of running the crime lab, an inquiry into Zain’s conduct was opened, and it was found Zain falsified DNA test results in at least 134 cases.[9] In one case, State v. Woodall,[10] Glen Dale Woodall was accused of double rape.[11] Zain testified that Woodall’s blood type was identical to that recovered at the scene of the double rape and would only occur statistically in six out of 10,000 males.[12] This testimony was enough to secure a conviction and sentence of 203 to 335 years without parole against Woodall.[13] It took five long years for Woodall’s conviction to finally be overturned when another lab used a PCR test on the DNA, which exonerated Woodall.[14] Problems with Zain did not end in West Virginia.

In 1989, Zain accepted a serologist position with the County Medical Examiner’s laboratory in San Antonio, where he also performed DNA profiling and testified in at least one death penalty case. In another case, Zain testified that the defendant’s DNA profile matched the DNA found on a rape victim’s clothing, stating that it “could only have originated from him.” This testimony, on its face, is suspect; DNA profiling, as powerful as it is, cannot positively identify one person. Subsequent DNA tests excluded the defendant. An independent investigator concluded that Zain’s work in Texas demonstrated inadequate documentation “[i]n every case.” In addition, Zain reached conclusions without specifying the tests performed, used deficient controls, and did not relate test results to the evidence examined. Once again, the laboratory was slow to react. Zain was fired in 1993, but three months later, he was reportedly testifying as a ballistics expert in Hawaii.[15]

These cases are made even more troubling by the malleability of DNA evidence. For example, a criminal laboratory in Israel found that DNA evidence is easily synthesized in a lab.[16] The Israeli team would gather minuscule amounts of DNA from cigarette buds or other items and replicate identical synthetic DNA from the sample. This synthetic DNA requires a specific test to distinguish it from organic DNA.[17] Problematically, currently, no criminal laboratory in the United States uses the method of testing DNA to distinguish organic from synthetic.[18] In theory, sophisticated criminals could grab a random cigarette bud off the ground, send it to a lab, synthesize the DNA on the cigarette bud, and then spread the DNA at a future crime scene. If this were to happen, no criminal laboratory in America would be able to detect that it was synthetic DNA.

The abuse does not stop at DNA evidence, however. Another “expert,” the “forensic dentist,” Dr. Michael West, provided questionable testimony in numerous capital cases.[19] Dr. West developed an untested, non-peer-reviewed, “blue light” technique to match bite marks, stab wounds, and scratch marks to secure a conviction on innocent defendants.[20] No court required that Dr. West turn his methodology over to the defense. Nor was Dr. West required to demonstrate the credibility of his blue light technique.[21]

Without significant change, our problems with the abuse of scientific evidence will not end anytime soon. The NYPD is a prime example of the types of abuse that are likely just around the corner. Facial recognition software has been in use by the NYPD to locate suspects since 2017.[22] The accuracy of this software is a mystery to the public.

If DNA evidence has taught us anything, the courts will likely not require the accuracy to be disclosed. Rather, courts will do as they have done in the past, accept the scientific evidence as valid.

Police are also using video tracking software to scan license plates.[23] But what happens if the software mistakes a 1 for an I? Will the defendant be allowed access to the underlying technology to ensure it functioned properly? Again, experience tells us that is unlikely.[24]

What about American privacy? Should technological advances subvert Americans’ right to expression? Police throughout the country use fake accounts to infiltrate online groups such as the BLM movement.[25] Simply because technology allows for police to easily view this information, does that justify a presumption of suspicion for minority groups? Allowing police to collect social media information effectively allows them to build a case file on anyone they think one day could maybe become a suspect. All of this can be done without the person’s knowledge, and most if not all the relevant information obtained because of presumption of suspicion will be admitted into court.

Problematically mining social media data is capable of being accomplished through machine learning.[26] Because machine learning learns from the data it is provided, any program relied upon by a police force would become inherently biased. Casefiles could become automatically generated, and minority groups could be targeted and labeled as suspicious solely based on their race.

For instance, person Z is the victim of a crime. Video footage from a CCTV captures an image of the assailant’s face, with the only distinguishing feature to the human eye being the assailant is a black man.[27] The image is run through facial recognition software and compared with various government databases and images posted on social media. The software comes back saying it has identified the assailant with 95% surety. From this, the police obtain the name of the person, home address, and possibly even a warrant.

This facial recognition software that our criminal justice system already uses will likely become more pervasive in securing a conviction. This software will be developed by a small group of scientists working for a corporation seeking or currently in a contract with law enforcement. This software, like that used in DNA evidence, will not be subject to peer-review but rather protected by trade secret law. Defendants will not be allowed access to the underlying code by most courts in the country. Thus, there is no procedural method to ensure a program matching images is functioning correctly and does not contain implicit biases.

As science and technology progress, the methods police and prosecutors throughout the country rely on change and evolve. It is highly likely the abuse of scientific evidence and technology will only become more pervasive. This, however, should not be the case. When a person’s liberty and life are on the line, Americans deserve more procedural protections under the law. They deserve a better criminal justice system than this.

  1. Paul C. Gianelli, The Abuse of Scientific Evidence in Criminal Cases: The Need for Independent Crime Laboratories, 4 Va. J. of Soc. Pol’y & L. 439 (1997). See also Erin Murphy, The New Forensics: Criminal Justice, False Certainty, And The Second Generation of Scientific Evidence, 95 Calif. L. Rev. 721 (2007); Erin O’Neill, Safeguarding The Opportunity For Effective Cross-Examination: The Confrontation Clause and Pretrial Disclosures, 58 Geo. Am. Crim. L. Rev. 462 (2021); Ric Simmons, Big Data and Procedural Justice: Legitimizing Algorithms In The Criminal Justice System, 15 Ohio. St. J. Crim. L. 573 (2018). ↑
  2. People v. Shreck, 22 P.3d 68, 71 (Colo. 2001). ↑
  3. Id. ↑
  4. U.S. v. Prince, 75 F.3d 1440, 1445 (10th Cir. 1996), certiorari denied 517 U.S. 1239; See also Pennsylvania v. Ritchie, 880 U.S. 39, 53 (1987) (“The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.”); Moore v. Illinois, 408 U.S. 786, 795 (1972) (“no constitutional requirement that the prosecution makes a complete and detailed accounting to the defense of all police investigatory work.”); U.S. v. Johnson, 2011 U.S. Dist. LEXIS 131856 (N.D. Ohio, Oct. 7, 2011) (“whether or not the analyst erred at the investigatory stage of his DNA analysis has no bearing on the strength of the DNA evidence…”). ↑
  5. Paul C. Giannelli, The Supreme Court’s “Criminal” Daubert Cases, 33 Seton Hall L. Rev. 1071, 1106 (2003). ↑
  6. Michael J. Saks, Scientific Evidence and the Ethical Obligations of Attorneys, 49 Clev. St. L. Rev. 421, 423 (2001). ↑
  7. Gianelli, supra note 1 at 442-448. ↑
  8. Id. ↑
  9. Id. ↑
  10. 385 S.E.2d 253 (W. Va. 1989). ↑
  11. Gianelli, supra note 1 at 453-458. ↑
  12. Id. ↑
  13. Id. ↑
  14. Id. ↑
  15. Id. at 447-448. ↑
  16. Dan Frumkin, et. al., Authentication of Forensic DNA Samples, 4 Forensic Int’l: Genetics 95 (2009). ↑
  17. Id. ↑
  18. Id. ↑
  19. Gianelli, supra note 1 at 453-458. ↑
  20. Id. ↑
  21. Id. ↑
  22. Amnesty International, Surveillance City: NYPD Can Use More than 15,000 Cameras to Track People Using Facial Recognition in Manhattan, Bronx, and Brooklyn, (June 3, 2021) https://www.amnesty.org/en/latest/news/2021/06/scale-new-york-police-facial-recognition-revealed/ (last visited Sept. 15, 2021) ↑
  23. Id. ↑
  24. It is worth noting that New Jersey courts have taken steps in the right direction to ensure that scientific evidence is not able to be abused in criminal cases. See State v. Picket, 246 A.3d 279 (N.J.Super.A.D. 2021) (holding that defendant articulated a particularized need for examining proprietary source code of DNA typing software to ensure that it was functioning properly). ↑
  25. Sahar F. Aziz & Khaled A. Beydoun, Fear of a Black and Brown Internet: Policing Online Activism, 100 B.U. L. Rev. 1153 (2020). ↑
  26. Po-Wei Liang & Bi-Ru Dai, Opinion Mining on Social Media Data, 2013 IEEE 14th Int’l Conf. on Mobile Data Mgmt. (2013). ↑
  27. It has been found that facial recognition software can have implicit biases and is also less accurate at distinguishing black and brown people compared to white people. See Clare Garvie & Jonathan Frankle, Facial-Recognition Software Might Have a Racial Bias Problem, The Atlantic (Apr. 7, 2016) https://www.theatlantic.com/technology/archive/2016/04/the-underlying-bias-of-facial-recognition-systems/476991/. ↑
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