Article of Interest: “Forensic Science and the Judicial Conformity Problem,” by Katie Kronick

Professor Katie Kronick (American University Washington College of Law) has posted “Forensic Science and the Judicial Conformity Problem” (Seton Hall Law Review, forthcoming) on SSRN. Here is the abstract:

Almost a quarter of known wrongful convictions have involved faulty forensic science evidence. Since 2008, a series of government-sponsored reports reveals that many areas of forensic science are not only vulnerable to human error, but also lack scientific or evidentiary support for the conclusions they purport to reach. This includes fingerprint analysis, firearm and toolmark examination, bitemark comparison, and hair microscopy. Yet judges continue to admit this expert testimony in criminal cases ranging from homicide to firearm possession to sexual assault without the critical analysis one might expect given the now well-identified problems and the stakes at hand.

This Article explores whether pressure on judges to conform with their peers is a contributing influence to forensic science judicial decision-making and whether judges are admitting faulty or questionable forensic science evidence because they find it reliable or rather because they feel pressure to maintain the norm of admitting such evidence. The “conformity problem” is an interrelationship among the judge’s desire to conform, her personally held beliefs, and the impact of those seeking to exert influence on judicial decisions. This problem, however, is not irreversible. Some judges’ personal characteristics, such as a particular interest in evidentiary issues, may make them more open to forensic science challenges and willing to deviate from the norm. Once these judges decide to limit or exclude questionable forensic evidence, other judges are more likely to deviate. Eventually a new norm—one in which judges critically analyze this evidence—can be established.

After discussing the theoretical underpinnings of the conformity problem and its application to judicial decision-making on forensic science evidence, this Article examines three examples of the conformity problem in judicial decision-making: New Jersey eyewitness identification cases and District of Columbia and Massachusetts firearm and toolmark examination cases. The Article concludes that if even a handful of judges issue decisions properly limiting or excluding forensic science, other courts will follow, the norm will change, and judges will exercise more appropriate critical analysis of forensic science evidence.

-CM