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Harvard Law Review Forum

No Room for Error: Clear-Eyed Justice In Forensic Science Oversight

The full text of this Commentary may be found by clicking on the PDF link to the left.

The memorandum issued by the Legal Resource Committee to the Organization of Scientific Area Committees (OSAC) convened by the National Institute of Standards and Technology (NIST)1×1. Memorandum from the Legal Res. Comm. to the Org. of Sci. Area Comms. for Forensic Sci., Nat’l Inst. of Standards & Tech., Question on Hypothesis Testing in ASTM 2926-13 and the Legal Principle that False Convictions Are Worse than False Acquittals (rev. ed. Oct. 7, 2016), reprinted in 130 Harv. L. Rev. F. 137 (2017) [hereinafter LRC Memo]. is remarkable as much for its existence as for its content. Despite a long history of formal and informal calls to radically restructure forensic science in the United States, the march of reform has been slow and plodding. The emergence of the OSAC, in direct response to the critiques lodged in the 2009 National Academy of Sciences report,2×2. See generally Comm. on Identifying the Needs of the Forensic Sci. Cmty., Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward (2009) [hereinafter Strengthening Forensic Science]. marked one small but meaningful step to prod forensic science away from the strict control of the law enforcement community, and toward a more scientific culture. Indeed, critical space to question forensic orthodoxy has opened simply because the OSAC sits partly within a scientific community (namely NIST) as opposed to wholly within a law enforcement community (such as the Department of Justice or the Federal Bureau of Investigation).3×3. In many ways, the precursors to the OSAC were the SWGs, or scientific working groups, housed within the FBI. Those groups offered guidance and issued standards for a wide range of forensic disciplines. Although the SWGs remain, the OSAC ended their relative monopoly.

The Memorandum by the Legal Resource Committee thus represents a rare and welcome development: forensic scientists seeking expert guidance about how to resolve the potential clash between legal and scientific standards applicable to their work. Although asked in connection with the standards for glass comparison, the sophisticated question posed — should the standard for error in forensic testing mirror the aspirational near-zero tolerance for error in criminal adjudication? — is pertinent to a wide array of disciplines. And the answer given by the Committee, approving with caution the use of less demanding error thresholds in forensic testing, likewise applies broadly. But while the Committee’s response is almost certainly correct as a matter of law, consideration of the actual implementation of this standard, given the realities of criminal justice practice in the United States, reveals the inherent difficulty of the project of forensic reform. Even if factfinders could be made to understand what is at stake in choosing a margin of error, the predominant consumers of this information — judges, defense lawyers, and prosecutors — almost certainly will not, and it will be criminal defendants who suffer as a result.

* Professor, NYU School of Law.