In her keynote address at the Unlocking
Innocence conference, former Attorney General Janet Reno specifically
mentioned junk science as a "major cause of wrongful convictions." Several
speakers made similar mention, and several case histories were provided as
examples. Junk Science in the
Courtroom litanies dozens of examples of junk science being used to convict
the innocent. Ms. Reno further noted that many lawyers are not familiar with
forensic science and terminology, and do not want to be bothered with it.
But lawyers need
to be equipped to identify junk science. Ms. Reno recommends the creation of a
forensic institute which would bring law and science together to eliminate junk
science from the courtroom.
Understanding Rules of
It is the responsibility of trial judges to keep
our courts free of junk science. But how should a judge decide? What are the
standards? "In the 1923 case of Frye v. United States, a federal judge
refused to admit polygraph results against a criminal defendant because the
principles of the polygraph had not yet been "generally accepted" by others in
the relevant scientific community" (Source).
"Generally accepted" became the standard, the Frye standard. However, in 1975
the Congress enacted the Federal Rules of Evidence.
With regard to the admissibility of scientific evidence, Rule
702 states that:
If scientific, technical, or other
specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in
the form of an opinion or otherwise.
In other words, if a jury
would find the testimony of one with specialized knowledge to be
helpful, a court may admit it. Following the enactment of Rule 702, many
courts rejected the Frye standard of "general acceptance" in
favor of the more liberal "helpfulness" standard of Rule 702.
The U. S. Supreme Court helped resolve the
division in the lower courts in Daubert v. Merrel Dow
Pharmaceuticals, Inc., 509 U. S. 579 (1993), by stating that
Frye was no longer the standard governing the
admissibility of sceintific evidence. Rather, the court
interpreted Rule 702 to mean that scientific evidence may be
admitted only if it is relevant to the issue at hand and rests
on a reliable foundation.
In order to
assist the lower courts in applying Daubert, the Court
provided the following list of factors that courts should
consider before ruling on the admissibility of scientific
- Whether the theory or technique has been
- Whether the theory or technique has been
subject to peer review and publication;
- What is the known or potential rate of
error of the method used; and
- Whether the theory or method has been
generally accepted by the scientific community.
Junk Science's deadly potential
comes from the trust the Courts and the Jurors place in "expert
testimony," and generally can't tell a good expert from a bad
The general public seems content with the myth that "paid experts,"
i.e., experts that are paid to deliver the desired outcome, result
only from rich defendants who can afford to pay for such, and that
every expert who testifies for the State is well-qualified, highly
ethical, and only wants to present the truth.
Junk Science in Scott Peterson's Trial
In Scott Peterson's
trial, we have two clear cases of junk science used to convince the
Jury of critical "facts" -- facts without which the State had no
case. As with other appeals issues, the determining factor is
the importance of the expert testimony to the State's case. In
each of these instances, correct facts would have undoubtedly
resulted in an acquittal.
Each of these expert
witnesses is well-qualified in his field, but not in the specific
area of his testimony. Each is well published in his field,
but not in the specific area of his testimony.
Ralph Cheng. His expert testimony connected the location of
the bodies to Scott's fishing trip, the most critical element of
the State's case. Cheng's analysis is seriously flawed:
He used a
scientific method that could not produce consistent results
He failed to
familiarize himself with the recovery sites and the particular
placement of the bodies
mischaracterized the lower low tide as a negative MLLW
exaggerated the wind conditions
He falsely stated
that the lower low tide coincided with winds averaging 20 knots
He had Conner
coming ashore at a water level far too low to wash him over the
Greggory Devore. His expert testimony established Conner's
death date within the necessary time frame 8:30 p.m. on the 23rd
to 10:08 a.m. on the 24th. His expert opinion is seriously
He is not a
has never before been used to determine age of a dead fetus
has never been subjected to peer review
He favored a
single measurement to the exclusion of 17 other measurements
He ignored 3 out
of 4 measurements from his favored study
He ignored the
scientific findings of a forensic anthologist