The Law Must Respond When Science Changes

The law must respond when the science changes

Who David Faigman & Jeff Kukucka

It’s been an amazing couple of weeks in the world where science and law intersect. Execution of Robert Roberson it is delayed Because everyone except the Texas and US Supreme Courts realizes that the medical theory that condemned it—shaken baby syndrome—was originally based on bad science. The life parole sentences of Lyle and Erik Menendez, convicted of killing their parents, are also in doubt because investigators at the time did not understand the mental health effects of childhood abuse.

While the law seeks to provide due process in an appropriate manner, science seeks to discover the truth over time. This means that what was once fair can become unfair; former justice may be unjust today. The Roberson and Menendez brothers are the victims of this division.

In both cases, scientific understanding changed years ago. It was shaken baby syndrome doubted in the year In the early 2010sand, years earlier, psychologists had identified the relationship between childhood abuse and the trauma of violence. However, all three men have fought to have their cases reopened. A fundamental principle of science is that it can change as research accumulates. That is the principle that the law has largely failed to achieve. This failure threatens the constitutional guarantee of due process.

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The cases of Roberson and Menendez are not abnormal. The legal annals are full of examples of what we once believed to be scientific truth, upon which judges and juries decided both civil and criminal cases, where we later came to understand that the science was wrong. In 2004 the state of Texas was executed Cameron Todd Willingham In 1992 for the arson murders of his family. At his execution, the forensic science he linked to the fire was categorical canceled. In a 2015 press release, the FBI reported that in their ongoing review of DNA-based microscopic hair identification, 90 percent they had case errors. Prosecutors also eventually stopped using a questionable theory known as comparative bullet-lead analysis after the scientists. reports dismissed its statistical foundations. Even today, courts continue to accept bite mark identification testimony, even though those who claim to be bite mark experts cannot agree on whether a bite mark belongs to an individual. And what we know about firearm identification and fingerprints is changing: there could be dozens beliefs according to what is no longer true.

Society changes rapidly when science changes. At one time, scientists told us that butter was bad for us, and that margarine was better; then we learned how much worse margarine could be and started eating more butter again. With lives at stake, justice calls for swift change. In fact, the Constitution’s guarantee of due process is so important that it appears in the Fifth and 14th Amendments, which mandate that “life, liberty, or property” shall not be taken “without due process.”

The law, never a sophisticated consumer of science, must become one. When scientific evidence is part of a criminal prosecution, two things are critical for the US legal system to ensure due process.

Judges are supposed to be the “gatekeepers” against bad science brought into their courtrooms; this is how the Supreme Court interpreted a rule of evidence Daubert v. Merrell Dow Pharmaceuticals en 1993. They must do more to fulfill this obligation. In fact, failure to fulfill this responsibility means that the accused will be tried unfairly, and future courts will be asked to correct these miscarriages of justice.

For example, scientific literature supporting the use of pre-1995 fire research or non-DNA hair identification bite marksit wasn’t—and still isn’t—enough to be admissible in court, let alone to support a conviction. In 2009 the National Academy of Sciences a sharp report on the state of forensic science. In 2016, the President’s Council of Advisors on Science and Technology review scientific research Finding matching forensic patterns in various areas of evidence (including DNA, latent fingerprints, bite marks, firearms, hair and shoes). scientific support Only for DNA profiling, and to give a score that is almost non-existent to fingerprints.

Second, the law must provide for it the mechanisms For post-conviction relief based on a changing understanding of science, which of course includes when the courts got it wrong the first time. They can do this, for example, through judicial interpretation of the due process clauses or through legislative action. Texas has such a law on its books, though enforcement so far has been anemic. under Texas statuteA petition for habeas corpus may be considered if “relevant (and admissible) scientific evidence is available and was not available at the time of the trial of the convicted person because it was not verified by reasonable diligence … before the date. or at the trial of the convicted person”. In other words, a convicted person, like Roberson, can ask the court to reconsider their case because the scientific evidence has changed.

California has a similar one statutewhich allows for challenges to “false evidence” presented at trial. False evidence is defined as: “Expert opinion that has been discarded by the expert who originally gave the opinion at a hearing or trial or that has been vitiated by later scientific research or technological advances.” Other states are following suit.

But these efforts are illusory at best, and pointless at worst, if the courts do not enforce them. Roberson has been on death row for two decades, and the Menendez brothers were sentenced more than 28 years ago. The state of Texas has denied Roberson’s appeals attempts, despite what we now know about shaken baby syndrome. The time it has taken to reconsider the conviction of the Menendez brothers exceeds the time it has taken to change the science of abuse, trauma and violence.

American law has traditionally provided mechanisms to ensure that everyone has their day in court. Fairness demands that their cases be judged according to the best science available at the time. And when the stakes are particularly high, as in the cases of the Roberson and Menendez brothers, convicted felons should have the right to reopen their cases when their understanding of the science that caused their danger has changed. Such an outcome would allow fairness and truth to come together to ensure that justice is done.

This is an opinion and analysis article, and the views expressed by the author(s) are not necessarily their own. American scientific