Questionable forensic assumptions will continue to be exposed. Electronic evidence may fill the void.
As director of investigation for the Innocence Project at UVA Law, professor Deirdre Enright reviews the latest scientific claims for and against the validity of methods of forensics used in prosecutions.
DNA evidence is considered to be highly accurate when assessing guilt in a courtroom.
So-called “junk science,” however, has led to the convictions of innocent people. Methods of hair, bite mark and fingerprint analysis are among the techniques that have been called into question.
The latest scientific assumption set to topple is shaken baby syndrome, Enright said.
For several decades, a community of medical experts has claimed that the presence of three symptoms in an infant – brain swelling, blood pooling in the two outermost meninges (layers that protect the brain) and bleeding behind the eyes – equate to iron-clad evidence of trauma. The injury would presumably come from a caregiver shaking or mishandling the child.
In recent years, however, defense lawyers have utilized scientific knowledge to push back.
“There are many conditions that cause the triad of symptoms,” Enright said. “You can have a cortical thrombose vein that is caused by dehydration and infection. Many doctors now would say you don’t get this from shaking.”
The Innocence Project recently represented a Northern Virginia woman who was convicted of shaking a baby at her home day care. She served prison time, despite no witnesses to the alleged abuse and no history of problems with her caregiving.
The woman won’t be able to challenge her conviction, however. The courts declined to revisit the case, and she was deported despite a request for pardon.
As the legal system understands more about physical forensic science, and where it’s fallible, electronic evidence may take on increased salience, according to Enright and others on the UVA Law faculty.
The devices that we use in our daily lives create virtual footprints. Metadata fills in the details.
“The question of when and whether the government can collect metadata on individuals is and will continue to be a pressing Fourth Amendment question,” said professor Josh Bowers, an expert in criminal procedure.
But can electronic forensics be misinterpreted or misapplied as well? Enright foresees the possibility.
“Only ‘experts’ can analyze the hard drive of a computer and then testify about what is or isn’t on the hard drive, or when and how it got there,” Enright said. “Not many lawyers or judges share that expertise. We may be developing more junk science, and putting it in front of juries too soon.”
Regardless of the forensic technique, jurors may hold misconceptions that slow progress. A recent study by UVA Law professor Greg Mitchell and Duke Law professor Brandon Garrett found that jury-eligible adults still placed great weight on fingerprint evidence – even when compared to DNA evidence.
Deirdre Enright is director of investigation for the Innocence Project Clinic and professor of law, general faculty. Josh Bowers is professor of law. Greg Mitchell is the Joseph Weintraub–Bank of America Distinguished Professor of Law.
Showing up for court is so 2017. It will become harder to form a class; arbitration will flourish.
Americans have already grown used to online dispute resolution to handle disagreements between buyers and sellers. A similar process may be coming soon to the courthouse nearest you.
Pilot online dispute resolution programs are currently being tested in county courts across the U.S.
Professor Michael Livermore, who studies where new technology intersects with the law, said companies like Modria, an online dispute resolution company led by the team that pioneered the technology’s use for eBay, are leading the push to expand into small claims, landlord and tenant disagreements, debt collection, civil contracts disputes and other matters.
Livermore believes these efforts could be transformative.
“Instead of going into court to resolve a dispute between two neighbors over a fence, is there a way to move that online to reduce the burdens of the court system, give people resolutions faster and do it in a low-cost way?” he said.
For larger matters affecting more plaintiffs, class actions have traditionally been the way to go. But forming a class in the future may be more of a challenge than in the past.
Increasingly, to do business of any kind, one must agree to arbitration in case of a dispute. That includes going to work. Earlier this year, the Law School’s Supreme Court Litigation Clinic lost Epic Systems Corp. v. Lewis in a 5-4 labor law decision. The court’s ruling effectively ended the right for employees to jointly pursue legal action (either through arbitration or the courts).
Employers, moving forward, may see little reason not to impose mandatory arbitration agreements.
“With the loss of Epic, the court has pretty much exhausted the arguments for avoiding arbitration,” said professor Dan Ortiz, the clinic’s director. “I don’t see a lot more activity here – not because the court is not interested in the issue, but because there really isn’t much further it can go.”
Professor A. Benjamin Spencer, an expert in civil procedure, said the future of class actions of any kind hinges on the bar set by the federal courts, which have refined what qualifies in recent years.
“We could see fewer class actions in federal court and more forced arbitration if the court continues to move toward tightening class action standards and an ever-broadening interpretation of the Federal Arbitration Act that validates mandatory arbitration clauses in more contexts,” Spencer said.
Professor Jason Johnston, whose expertise is in law and economics, sees the apparent trend of using arbitration to avoid class actions, and potentially court, as a good thing.
“At least when it comes to consumer class actions, my research dealing with several years of class actions filed in the Northern District of Illinois shows that consumers get very little from the settlements of such class actions, and that such class actions have little deterrent effect.”
He added, “The most important trend in civil litigation over the past 10 to 15 years is the rise of the self-represented litigant. For these people, arbitration – which is cheap, informal and quick – is often the only viable means of real recovery.”
Michael Livermore is professor of law. Dan Ortiz is the Michael J. and Jane R. Horvitz Distinguished Professor of Law. A. Benjamin Spencer is the Justice Thurgood Marshall Distinguished Professor of Law. Jason Johnston is the Henry L. and Grace Doherty Charitable Foundation Professor of Law, Armistead M. Dobie Professor of Law, and director of the John M. Olin Program in Law and Economics