We hear daily about the wonders of forensic science and engineering. DNA analysis helps match bodily fluids and tissues to help imprison the guilty and free the innocent. The scanning electron microscope alone has given forensic science a tool unimagined 50 years ago. Failure analysis has made such great strides over the recent years that it is usually possible to determine the cause of unexpected material failure. The guilty parties may be forced to pay for their sins and innocent parties absolved of blame.
Things looked so rosy that recently the Massachusetts governor proposed reinstating the death penalty because forensic science could remove all possibility of executing an innocent person. I read this proposal and thought, "whoa, forensic science isn't perfect." This column and the next discuss problems with forensics in damage cases, along with hopeful recent developments. There is a similar story to be told on criminal forensics.
Greed is Corrosive
Never get greedy: So advised several senior colleagues when I got into forensics. The low hanging fruit can be tempting and the urge to take on too much or stretch one's competence can be powerful. Such greed is corrosive.
Stunted careers are common. One of my peers from academe was so overcommitted that his own clients had to subpoena him to appear in court. He made a lot of money, but never reached the rank of Full Professor, the goal of most young academics.
Unwarranted claims of expertise are all too common. I saw one consultant's letterhead that claimed expertise ranging from sewer engineering to modern physics plus many points in between. Leonardo Da Vinci was the last mortal with such breadth of expertise. One may get away with claims of such broad expertise unless a judge catches wind. I know of cases where the judge disqualified witnesses in fields where they were competent because they claimed too wide an area of expertise. The experts had thus misled their clients, who were left hanging in court.
Eradicating Junk Science
The term junk science refers to purportedly scientific testimony that is considered nonsense to those knowledgeable in the area. A litigant facing damaging expert testimony or with a case devoid of scientific merit will sometimes hire an "expert" who will say anything for the right price. Judges in the past tended to let both sides tell their story. Conflicting scientific testimony usually confused the jury, which simply threw up its hands. The damaging testimony was thereby negated. If the opposing side did not present expert testimony, the junk science was likely to be accepted as fact. Lawyers refer to such an "expert" by a rude, five letter Anglo-Saxon term for sex worker denoted here by *****. An attorney-client once told me, "Ken, all lawyers deny using *****s, but when you need a ***** you get a *****!"
Daubert is a 1993 Supreme Court decision meant to improve the quality of forensic testimony. Under Daubert, federal trial court judges become the "gatekeepers" of scientific evidence. The judge is charged with determining whether expert witness testimony is both relevant and reliable. In 2000 the Supreme Court amended the rules to require that expert testimony be based on sufficient facts and data and that reliable principles and methods be applied to the facts of the case. This standard has also been applied by many states to their courts. Daubert is generally seen as having reduced the prevalence of junk science and *****s and made it more difficult for plaintiffs to litigate successfully.
Where a case is tried has a lot to do with the probable outcome. Certain state courts are considered hell-holes for business defendants, with juries all too willing to approve huge judgments. Such judgments are actually bad for the state, which is usually trying to induce business to settle there. Mississippi recently passed a law to improve the chances of businesses in their courts and took out full-page ads in national newspapers to trumpet the fact.
The federal government recently passed legislation that grouped class action cases and moved much of the work from state to federal courts where Daubert applies. The quality of justice is also thought to be higher in federal courts. Business was a strong supporter of this law.
The next column will discuss forensics in class action suits.