On Jan. 13, Donald Trump’s Department of Justice snuck in one last blow against truth, science, and justice.
With just days left before Joe Biden’s inauguration, the DOJ abruptly responded to a milestone report on forensic science published years ago. In 2016, Barack Obama’s President’s Council of Advisors on Science and Technology, or PCAST, composed of renowned scientists, pulled the curtain back on the misuse of forensic science in American courts. The council’s report concluded that methods frequently relied upon by prosecutors to convict people, like firearms and bitemark analysis, lack basic scientific validity.
Just days before Joe Biden took office, however, Trump’s DOJ issued an unsigned 26-page statement designed to undermine those findings. It was a smoke-and-mirrors attempt to use the credibility of the federal government to prop up the uncritical use of flawed forensic evidence that has contributed to hundreds of wrongful convictions. Like the Trump administration’s last-minute execution spree, the statement seems calculated to advance a regressive, reactionary, and cruel system of criminal prosecution.
The “science” part of forensic science is much murkier than crime shows like Law & Order or NCIS suggest. On TV, we might see a white-coated scientist gravely study a bullet mark on a computer screen as an algorithm scans a database for matches, ultimately landing on the culprit’s gun and cracking the case. But these TV depictions bear little resemblance to actual forensics. In the 2016 report, PCAST cautioned that several “pattern-matching” disciplines, like firearms, bite mark, and hair comparison, are highly subjective, involve circular reasoning, and have been insufficiently tested. They rely on subjective comparisons—essentially, eyeballing it—dressed up with the gloss of seemingly scientific language.
PCAST also offered several practical recommendations for improvement. The council called for judges to carefully assess the scientific validity of forensics methods before admitting them in court and recommended scientists conduct more research and improve the standards of each science, among other things. A core conclusion of the report is that these methods need to undergo well-designed, empirical testing that reflects real-life cases. This testing is necessary to determine which disciplines are scientifically valid and which are essentially junk science.
Those committed to equity in criminal justice have welcomed PCAST’s guidance. Several courts around the country drew on PCAST’s findings to begin restricting the use of pattern evidence. DOJ’s new statement—unsurprising from Trump’s DOJ, which consistently rolled back racial justice gains—is a step backward: It is a striking example of a win-at-all-costs prosecutorial mentality that values convictions over justice.
Federal and state prosecutors all over the country can now point to this statement to argue to judges that PCAST was wrong and that there is no reason to disallow problematic evidence from being used against criminal defendants. If judges buy these arguments, miscarriages of justice will keep piling up.
While Obama’s second attorney general, Loretta Lynch, disagreed with PCAST, this latest attack is more nefarious—and goes farther—by claiming to be a scientific refutation of the report.* As judges have begun to seriously grapple with important scientific issues, Trump’s DOJ has responded not with a commitment to research, but with a strategic maneuver seemingly intended to stop more courts from doing the same. Much like Trump administration efforts to disperse fake news in other contexts, this new statement affirmatively spreads disinformation about science in a way that may be persuasive to judges considering similar issues. It has greater potential to do harm than Lynch’s statement because it is presented as government-sponsored science.
DOJ raises three unpersuasive criticisms of the PCAST report that fundamentally misunderstand the science and mischaracterize the report’s findings.
First, DOJ suggests that PCAST’s criticisms should not apply to most forensic methods by claiming that PCAST improperly categorizes pattern matching as “metrology,” the science of measurement, because these methods rely on subjective comparisons in lieu of objective statistics and measurement. Not only does this reflect a misunderstanding of the science, it also misses PCAST’s point, perhaps deliberately. PCAST’s central premise is simpler than the DOJ statement attempts to make it: Regardless of whether pattern matching qualifies as metrology, as even the Supreme Court recognizes, a theory that has not been empirically tested is not scientifically valid. Simply, it is unscientific—and dangerous—to carve out fields that lack scientific rigor from the PCAST report.
DOJ’s other complaints are equally perplexing. Its second claim that PCAST’s validity criteria are too demanding is inconsistent with middle school—level scientific principles. Requiring well-designed, empirical testing that reflects real-life conditions is uncontroversial to scientists and legal experts alike.
PCAST also called for rigorous black-box studies to establish how often each discipline comes up with an incorrect result. Error rates help jurors understand just how often forensic examiners are wrong before sending people to prison. DOJ complains that error rates are not one-size-fits-all, but PCAST acknowledges this, offering a widely accepted solution: presenting the actual error rate as falling within a range of possibilities.
DOJ’s arguments are unconvincing on their own terms, but it’s hard to escape the conclusion that they were made in bad faith. For example, DOJ’s statement claims that another scientific organization supports its positions when, in fact, the opposite is true. That’s why this statement is especially pernicious: It looks persuasive; it feels scientific. Cloaked in scientific-sounding language and issued via press release, it bears the hallmarks of an official government report. In truth, it’s an agenda-driven attempt to undermine commonsense reforms that would prevent reliance on unreliable “science” that has been responsible for generations of unjust convictions, particularly of young Black men.
Biden has begun building a DOJ staffed with civil rights leaders with deep commitment to criminal justice reform. This new DOJ should quickly rescind the statement and stand in support of meaningful forensic reform.
The Trump administration’s assault on science has already harmed public health and the environment. Its attacks on forensic science are no less concerning. As one of his first acts as attorney general, Jeff Sessions disbanded the National Commission on Forensic Science, a cross-disciplinary body of scientists, judges, and others aimed at providing recommendations to improve forensic sciences. He replaced the commission with an internal adviser with a track record of opposing reform, dubbed “the Mike Pence of forensics.”
Yet this most recent attempt by DOJ to make straightforward science appear debatable has the potential to wreak even more havoc on the justice system. The statement’s veneer of authority may fool judges, lawyers, and others into relying on it. Justice demands that we reject it.
Disclosure: As a public defender, the author participated in one of the cases restricting pattern-matching evidence, United States v. Tibbs, which focused on the limitations of firearms analysis.
Correction, Feb. 5, 2021: This piece originally misstated that Loretta Lynch was Obama’s first Attorney General.