The law must respond when the science changes

By David Faigman and Jeff Kukucka

It’s been an amazing few weeks in the world where science and law intersect. the execution of Robert Roberson she is late because everyone except the highest courts in Texas and the US now realizes that the medical theory on which he was convicted – shaken baby syndrome – was originally based on bad science. Life sentences without parole for Lyle and Erik Menendez, convicted of killing their parents, are also being questioned because researchers at the time did not understand the mental health effects of childhood abuse .

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

In both cases, the scientific understanding changed years ago. Shaken baby syndrome was questioned in early 2010sand, years before, psychologists had identified the relationship between the trauma of childhood abuse and violence. However, all three men struggled to get their cases reopened. An essential tenet of science is that it may change as research accumulates. This is a principle that the law has failed to grasp. This failure threatens the constitutional guarantee of due process.

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The Roberson and Menendez cases are not anomalous. The annals of the law are replete with examples of what we once believed to be scientific truth, on the basis of which judges and juries decided both civil and criminal cases where we later learned that the science was wrong. In 2004, the state of Texas was executed Cameron Todd Willingham for the 1992 arson murders of his family. At the time of his execution, forensic science linking him to the fire had been conclusive invalid. In a 2015 press release, the FBI reported that in their ongoing analysis of microscopic hair identification, which is not based on DNA, 90 percent of the cases had errors. Similarly, prosecutors’ use of a questionable theory known as comparative analysis was eventually abandoned after debunked reports its statistical bases. Even today, courts continue to allow bite mark identification testimony, even though people who claim to be bite mark experts can’t even agree on whether a bite mark is from a person or a dog. And what we know about firearm identification and fingerprints is changing – there could be dozens conviction based on what is no longer true.

Society changes rapidly when science changes. Scientists once told us that butter is bad for us and margarine is better; then we found out how much worse margarine could be and started eating more butter again. With lives at stake, justice demands that we change quickly. Indeed, the Constitution’s guarantee of due process is so important that it appears in both the Fifth and Fourteenth Amendments and promises that “life, liberty, or property” shall not be deprived without ” fair trial”.

The law, never a sophisticated consumer of science, must become one. When scientific evidence is part of a prosecution, there are two critical things the US legal system must do to ensure a fair trial.

Judges should be the “watchdogs” against bad science brought into their courtrooms; this is how the Supreme Court interpreted an evidentiary rule in Daubert v. Merrell Dow Pharmaceuticals in 1993. They must do more to fulfill this obligation. In fact, failure to fulfill this responsibility means that defendants will be wrongfully convicted and future courts will be called upon to correct these miscarriages of justice.

For example, the scientific literature supporting the use of arson investigations prior to 1995 or hair identification without DNA or bite markshe was – and still is – demonstrably unfit to stand in court, let alone sustain a conviction on his own. In 2009, the National Academies of Sciences published a scathing report on the state of forensic science. In 2016, the President’s Council of Advisors on Science and Technology reviewed scientific research across multiple areas of forensic pattern-matching evidence – including DNA, latent fingerprints, bite marks, firearms, hair and footwear – finding scientific support only a passing score for DNA profiling and fingerprinting.

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

California has a similar one STATUSwhich allows the challenge of “false evidence” that has been introduced at trial. False evidence is defined as including “expert opinions that have either been rejected by the expert who originally provided the opinion at a hearing or trial, or that have been undermined by subsequent scientific research or technological advances.” Other states are following suit.

But these efforts are at best illusory and at worst inconceivable 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 rejected Roberson’s attempts to appeal, despite what we now know about shaken baby syndrome. The time needed to reconsider the conviction of the Menendez brothers far outstrips the time needed for the science of abuse, trauma and violence to change.

American law has traditionally provided mechanisms to ensure that everyone has a fair day in court. Fairness requires the opportunity for their cases to be tried in light of the best science available at the time. And when the stakes are particularly high, as is true in the cases of Roberson and the Menendez brothers, those convicted of crimes should have the right to have their cases reopened on an ongoing basis when our understanding of the science that resulted in their endangerment has changed. Such an outcome would allow fairness and truth to come together to ensure that justice is done.

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