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Life of a Law Student, University of Houston Law Center

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Please note: I'm no longer updating this particular blog, but keep it around for archival purposes. Visit me at the current blog at www.lukegilman.com

The CSI Effect

Jeffrey Toobin reports in the New Yorker: The CSI Effect: The truth about forensic science. Judges and prosecutors complain that the show is raising jurors’ expectations of the forensic evidence that should be available and presented to convict.

“I just met with the conference of Louisiana judges, and, when I asked if ‘CSI’ had influenced their juries, every one of them raised their hands,” Carol Henderson, the director of the National Clearinghouse for Science, Technology and the Law, at Stetson University, in Florida, told me. “People are riveted by the idea that science can solve crimes.”

The same words often carry different meanings in science and the law, reflecting a difference in approach that can be problematic.

The fictional criminalists speak with a certainty that their real-life counterparts do not. “We never use the word ‘match,’ ” Faber, a thirty-eight-year-old Harvard graduate, told me. “The terminology is very important. On TV, they always like to say words like ‘match,’ but we say ‘similar,’ or ‘could have come from’ or ‘is associated with.’ ”

Virtually all the forensic-science tests depicted on “CSI”—including analyses of bite marks, blood spatter, handwriting, firearm and tool marks, and voices, as well as of hair and fibres—rely on the judgments of individual experts and cannot easily be subjected to statistical verification.

Yet not only do the words of forensic science and the certainty they are meant to convey give rise to problems, some of the essential concepts of forensic science have come under fire.

“There are really two kinds of forensic science,” says Michael J. Saks, a professor of law and psychology at Arizona State University, and a prominent critic of the way such science is used in courtrooms. “The first is very straightforward. It says, ‘We have a dead body. Let’s see what chemicals are in the blood. Is there alcohol? Cocaine?’ That is real science applied to a forensics problem. The other half of forensic science has been invented by and for police departments, and that includes finger-prints, handwriting, tool marks, tire marks, hair and fibre. All of those essentially share one belief, which is that there are no two specimens that are alike except those from the same source.” Saks and other experts argue that there is no objective basis for making the link between a “q” and a “k.” “There is no scientific evidence, no validation studies, or anything else that scientists usually demand, for that proposition—that, say, two hairs that look alike came from the same person,” Saks said. “It’s the individualization fallacy, and it’s not real science. It’s faith-based science.”

Hair analysis has given rise to a particularly contentious debate both among forensic scientists and in the criminal justice system that must decide if it will continue to rely on it and under what circumstances.

Life and Death in the Law About to Change?

Charlie Rose had a really interesting interview last week with Nicholas Schiff and Henning Voss of the Weill Cornell Medical College in New York, and Joseph Giacino of the JFK Johnson Rehabilitation Institute in New Jersey. The discussion centered on the case of Terry Wallis who had been in a coma for over 20 years, and who was considered to be in a permanent vegetative state, emerged lucid and talking. All of this of course, has to be viewed in light of the Terry Shiavo case.

This was the topic of an interesting discussion of this semester in Crim Law, but the discussion focused more on the classification change in the law from death as the cessation of breathing and the stopping of the heart, to the more modern conception of brain-death. At this point it seems we’re poised for another, perhaps more legally problematic transition to a more nuanced understanding of when the brain has ‘died’.

The transition is potentially problematic because while the skills necessary to tell if someone is breathing or not are rudimentary, the skills to determine brain activity are less so, and the skills to determine the difference between cases like Wallis and Schiavo are a distinct specialty within that. Most hospitals, it seems, are not equipped to tell the difference.

  • Charlie Rose Interview: Conversation on brain regeneration
  • New Scientist: Not brain-dead but ripe for transplant
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