O.J. and evidence

August 25, 1994|By Paul C. Giannelli

Cleveland -- THE O.J. Simpson case, scheduled to go to trial next month, hinges on scientific evidence.

Just this week prosecutors revealed that preliminary genetic testing suggests matches between blood of the ex-pro football player and those found at the scene where his wife, Nicole Simpson was killed.

The DNA analysis of the blood found at the murder scene places him in an extremely small category of people whose blood shares the same characteristics.

A criminal justice system based on skillful investigation that includes scientific evidence is obviously better than one that relies only on conventional methods like eyewitness identifications, which can be unreliable and confessions, which are subject to abuse. And yet scientific evidence is subject to abuse as well.

This summer, a serologist, or blood analysis expert, was indicted by Texas and West Virginia for allegedly falsifying test results in hundreds of cases since 1979.

He reported inconclusive results as conclusive, altered laboratory records, didn't report conflicting results and failed to conduct additional testing to resolve conflicts.

Defendants who have since been exonerated were sentenced to long prison terms on his testimony.

In Texas, a pathologist was convicted in 1992 of faking autopsies.

He performed hundreds of autopsies a year and at least 20 death-penalty convictions were obtained with the aid of his testimony.

For more than a decade, he worked closely with prosecutors and the police and apparently tailored his findings to conform with their theories of the cases.

"If the prosecution theory was that death was caused by a Martian death ray, then that was what he reported," said the special prosecutor who handled the investigation.

A forensic dentist in Mississippi who has testified in numerous capital cases was censured in April by the American Academy of Forensic Sciences for misrepresenting evidence and failing to meet professional standards. Yet he is scheduled to be an expert witness in three upcoming capital-murder trials.

But the problems of scientific evidence in criminal trials run far deeper than these sensational examples suggest.

Unlike clinical laboratories, which perform tests for hospitals and doctors' offices, the nation's crime laboratories are exempt from regulation and external review. There are no minimum certification requirements for lab personnel.

As Eric Lander, a molecular biologist, wrote in a 1989 article in Nature, "At present, forensic science is virtually unregulated -- with the paradoxical result that clinical laboratories must meet higher standards to be allowed to diagnose strep throat than forensic labs must meet to put a defendant on death row."

A 1978 study of more than 200 criminal labs -- the only nationwide survey that has been done -- found that 71 percent reported faulty results in blood tests, 51.4 percent made errors in matching paint samples, 35.5 percent erred in soil examinations and 28.2 percent made mistakes in firearms identifications.

There has been a voluntary proficiency testing program in place since 1984, but the results of these tests have not been published. Thus crime lab personnel may be failing proficiency tests and still testifying in felony prosecutions.

Even if minimum standards are established to prevent discrepancies like these, the nation's crime labs face another severe problem: lack of resources.

A five-part series in the Seattle Times this year on Washington state crime labs, for example, found that a "staggering backlog of cases hinders investigations of murder, rape, arson and other major crimes."

At any time, the newspaper said, "thousands of pieces of evidence collected from crime scenes sit unanalyzed and ignored on shelves in laboratories and police stations across the state" for lack of staff and equipment.

Many people assume that the accused will have the opportunity to challenge expert witnesses who present faulty evidence.

In fact, 80 percent of defendants can't afford to hire a lawyer, much less pay expert witnesses to examine evidence offered by the prosecution.

The remedy for some of these problems is an independent crime lab system under the control of a statewide medical examiner or state attorney general.

In addition, all labs should be subjected to external blind proficiency testings and the results should be made public.

We need adequate financing to research new types of evidence, such as DNA testing, as well as adequate compensation and training for lab personnel.

There are some excellent crime labs in this country, and there are first-rate forensic pathologists, but they should be the rule, not the exception.

In 1974, a commission appointed by the Nixon administration commented: "Too many police crime laboratories have been set up on budgets that preclude the recruitment of qualified, professional personnel." These comments still hold true.

Paul C. Giannelli, professor of law at Case Western Reserve University, wrote this for the New York Times.

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