Without posting any spoilers, it's fair to say that the new Netflix sensation, Making a Murderer, has sparked a significant discussion on the effectiveness of the US criminal justice system. Bravo. A much more critical attitude towards US incarceration practices is a welcome development, as the US is outstanding in respect to how much of the population we lock up. The graph below shows the prison use rate per 100,000 people in OECD countries.
Most of the discussion the show has stirred up centres on prosecutorial misconduct, police corruption, inadequate defence, false confessions, jury tampering, etc. All of which are important issues. But much less has been said of the role of forensic science in both producing convictions and overturning prior convictions.
Roger Koppl argues the institutional structure of police forensics is an inadequate system for producing good approximations of truth. Why? The institutional organization of forensic science is not a competitive system, where knowledge is tested, contested, voluntarily adopted, and subject to open-scrutiny and revision. Forensic science is political, not a set of institutions designed for tracking Truth.
What features of the US system of conducting police forensics are cause for concern? Koppl gives eight.
1) Monopoly. In most jurisdictions today, including those in the US, each laboratory has a monopoly on the evidence it analyses. No other lab is likely (or sometimes allowed) to examine the same evidence.
2) Dependence. Forensic labs are often organized under the police and are thus dependent on the police for their budgets. This introduces a clear pro-prosecution bias.
3) Poor quality control. Quality control systems tend to be weak.
4) Information sharing. Forensic scientists are privy to information that may be crucial to a criminal proceeding, but extraneous to the questions put to the forensic scientist.
5) No division of labor between forensic analysis and interpretation. The same scientist who, say, performs a test to establish blood type judges whether his test results exclude the police suspect.
6) Lack of forensic counsel. Indigent defendants rarely receive aid and counsel from forensic scientists hired to help them. In common law countries this creates an asymmetry whereby the prosecution has forensic counsel and, indeed, sometimes great batteries of forensic specialists, whereas the defence has no forensic counsel and, often, an attorney unable to adequately understand and challenge forensic testimony.
7) Lack of competition among forensic counselors. From the absence of forensic counsel for the indigent, it follows rather trivially that there is no competition among forensic counselors for their custom.
8) Public ownership. Forensic laboratories are publicly owned. In the US often organized under police agencies such as the State police or the FBI.
This institutional arrangement creates the conditions that can induce unconscious bias, conscious bias, and even give some an incentive to lie. Koppl outlines a system of "competitive self-regulation" with the potential to ameliorate many of these issues. Such a system would utilize private firms to conduct much of the testing, randomization in deciding which labs gets different pieces of evidence and when to send the same evidence to more than one lab, de-coupling forensic analysis and interpretation, statistical review for quality control, and a voucher system for supplying low income defendants with adequate forensic counselors.
Other calls for reform focus on laudable piecemeal changes (independence of forensic labs, double-blind proficiency tests, the use of evidence line-ups, etc) but do not discuss fundamental reforms in the institutional structure of forensic science in the US criminal justice system. Ultimately, the institutions determine both the knowledge and incentives facing actors within the system. Often failures in criminal justice are attributed to corruption, discrimination, or inequalities. But much of the systematic effects of the US judicial system and incarceration practices require examining the rules that structure the system.