FORENSIC SCIENCE: WHY NO RESEARCH?

Introduction I. Early Period A. Initial Admissibility Decisions B. Establishment of the Crime Laboratory C. The Legal System II. Recent Period: Post-DNA, Post-Daubert Conclusion INTRODUCTION The ground-breaking report on forensic science by the National Academy of Sciences--Strengthening Forensic Science in the United States: A Path Forward (1)--raised numerous issues. (2) One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles--in particular, to support claims with empirical research. The Report observed that "some forensic science disciplines are supported by little rigorous systematic research to validate the discipline's basic premises and techniques. There is no evident reason why such research cannot be conducted." (3) The Report went on to identify fingerprint examinations, (4) firearms (ballistics) and toolmark identifications, (5) document comparisons, (6) hair analysis, (7) and bite mark examinations (8) as disciplines lacking such empirical research. This essay attempts to answer the "why" question: Why was there a lack of research across so many forensic disciplines? For purposes of discussion, the time frame is divided into an early period and a recent period. The line of demarcation between the two eras is the advent of DNA profiling in the late 1980s, along with the Supreme Court's 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. (9) If not a perfect line of demarcation, this division is a useful one for present purposes. I. EARLY PERIOD An understanding of this formative period requires some appreciation of the time frame in which courts first admitted forensic identification evidence, the dates that crime laboratories were established, and the legal system's weaknesses during this era. A. Initial Admissibility Decisions The Illinois Supreme Court decided the first reported fingerprint case in this country, People v. Jennings, (10) in 1911. (11) Handwriting evidence was used in the Alfred Dreyfus case (12) at the turn of the twentieth century in Europe and was well established by the time of the Lindbergh kidnapping prosecution in 1935. (13) Firearms identifications gained notoriety at the Sacco and Vanzetti trial in 1921 (14) and then gained further acceptance after its use in the investigation of the Saint Valentine's day massacre in Chicago at the end of that decade. (15) By this time hair evidence had also been admitted as evidence. (16) The only exception to this early judicial acceptance of forensic identification evidence is bite mark comparison evidence, which was first admitted at trial in State v. Doyle, (17) a 1954 case which involved a bite mark left on a piece of cheese discovered at the scene of a burglary. Validating research for these techniques was absent from the beginning. As Professor Mnookin has noted: "[F]ingerprints were accepted as an evidentiary tool without a great deal of scrutiny or skepticism." (18) Similarly, in examining the origins of handwriting evidence, Professor Risinger and his colleagues observed: Our literature search for empirical evaluation of handwriting identification turned up one primitive and flawed validity study from nearly 50 years ago, one 1973 paper that raises the issue of consistency among examiners but presents only uncontrolled impressionistic and anecdotal information not qualifying as data in any rigorous sense, and a summary of one study in a 1978 government report. Beyond this, nothing. (19) Moreover, after his imprisonment, Alfred Dreyfus was exonerated, (20) and the firearm identification evidence in the Sacco and Vanzetti trial was misused. (21) B. Establishment of the Crime Laboratory The establishment of the modern crime laboratory did not result in the creation of a research base. …