I wanted to point out a recent speech by federal Judge Harry T. Edwards in Washington, DC to a group of DC judges this morning. The speech addresses the admissibility of or limits on the testimony of forensic examiners for any discipline other than nuclear DNA. ON of my colleagues characterized the speech as “forceful and unambiguous” and it “directly refutes several common government arguments” against the value of the National Academy of Sciences Report regarding the sorry state of forensics in America.

Judge Edwards makes a number of bold statements that are worth mentioning:

• On page 5 and 6 he addresses the notion that courts should just follow precedent for the sake of following precedent, stating that the new information provided by the NAS report should be taken into account by every prosecutor who considers using forensic evidence and every court considering admitting such evidence. He concludes that “[i]f courts blindly follow precedent that rest on unfounded scientific premises, this will lead to unjust results.”
• On p. 11 he notes that his “concern is that some forensic practitioners may not know what they do not know about the limits of their discipline. They will have to be taught this so that they can be appropriately circumspect in their testimony.”
• Also on page 11 he notes that “[e]very forensic laboratory in the United States . . . should use appropriate protocols and employ highly skilled practitioners, but that [r]ight now. . . this is merely an aspiration, not a reality” and the judiciary must “do all that we can to help the forensic science community get its house in order.”

In Florida, we often rely on the way we have done things to guide us on how we should move forward.  Our rules for dealing with new evidence, particularly the Frye test in the scientific evidence context, make it difficult, if not impossible, to revisit old determinations about what was reliable and reevaluate those determinations based on new, more up to date information.  When we fail to have the flexibility built into the law to revisit outmoded determinations, we sacrifice reliability and accuracy for the sake of preserving a broken process.  At the intersection of forensics and criminal trials, the potential consequences of this is a wrongful conviction or, in the case of Cameron Todd Willingham, being executed even though you are innocence.

We have discussed the NAS Report here, here and here.