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“False or Misleading Forensic Science” and “Official Misconduct” Leading Factors in 1523 Exonerations

By: , Posted on: January 19, 2015

This article originally appeared on, Michael’s personal blog. Click here for the original article.

The op-ed excerpted below from the HuffPost’s Radley Balko makes the case that prosecutorial misconduct is a major factor in exoneration cases and exists in other criminal convictions. I have added a second category of interest which raises my concern with forensic science’s contributions.

The prosecution category has to do with Brady violations. The judicial and legal organizational responses to violations of Brady are nil. Legal research at the University of Santa Clara in California indicates over 700 cases of prosecutorial misconduct in California courts are on the books  but never punished by either the law profession or the criminal courts where this misconduct occurred.

Here is a chart and statistical data from the National Registry of Exonerationswebsite that identifies “factors” involved in over 1500 exons in the United States. You will see “Official Misconduct ” and ” False or Misleading Forensic Science” as major contributors. Click the chart to enlarge.

Factors-Exon copy

 All areas of contribution.

Among exonerations in specific crime categories:

  • The rate of Perjury or False Accusations is highest in child sex abuse cases (82%) and homicide cases (67%).
  • The rate of Official Misconduct is highest in homicide cases (59%) and child sex abuse cases (46%).
  • The rate of Mistaken Identifications is highest in in Robbery cases (83%) and adult sexual assault cases (73%).
  • The rate of False or Misleading Forensic Evidence is highest in adult sexual assault cases (33%) and child sex abuse cases (23%).
  • The rate of False Confessions is highest in homicide cases (21%).

It is telling that 1/3 of assault cases and 1/4 of child abuse cases leading to false convictions have forensic testimony containing false positive identifications or interpretations of physical evidence. One anecdotal study confirms that a certain type of forensic expertise admitted in homicides and child abuse presents evidence that is nothing more than opinion. This suggests subjective interpretations are occurring in these cases.

But in contrast, the American Academy of Forensic Sciences keeps a “hands-off” approach to such issues. This certainly undermines its approach as a bastion of forensic science standards. It did accept all 13 recommendations of the 2009 National Academy of Sciences regarding “forensic reform.”

The op-ed starts with: 

One of the Supreme Court’s most celebrated criminal procedure decisions turns 50 years old Monday. By a 7-2 vote, the Court ruled in the 1963 case Brady v. Maryland that under the 14th Amendment’s due process clause, prosecutors are obligated to disclose all exculpatory evidence to criminal defendants. “A prosecution that withholds evidence … which, if made available would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant,” wrote Justice William O. Douglas in the decision. “That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice.”

Like many of the controversial criminal-justice decisions issued during the tenure of Chief Justice Earl Warren, the popular perception of Brady over the years has been that a prosecutor’s failure to disclose the most minor and insignificant of details to defense attorneys has often resulted in violent criminals “getting off on a technicality.” But a number of studies conducted since the onset of DNA testing in the early 1990s have shown that not only is that not true, but the Brady decision itself — renowned as it is — may have been mostly symbolic and had little practical effect on the day-to-day justice system.

“It simply hasn’t worked,” says Steven Benjamin, president of the National Association of Criminal Defense Lawyers. “Brady violations are a system[atic], everyday problem in the courts. I would say they affect a majority of criminal cases.”

forensic testimonyRead the full Op-ed piece here

Read more from Michael:

Michael’s most recent book Forensic Testimony: Science, Law and Expert Evidence is available on the Elsevier store for a 30% discount. Just use discount code “STC215” at checkout and save!

About Michael Bowers:

Michael BowersC. Michael Bowers, DDS, JD is a practicing forensic dentist and consultant who has testified and worked on hundreds of cases where dental evidence has been involved. He is a Senior Crime Scene Analyst for the International Association for Identification (IAI) and has written other articles, chapters and books on forensic dentistry. He owns and operates his own dental practice in Ventura, CA.

Additionally, he is a Fellow of the American Academy of Forensic Sciences and a past member of the editorial board for the Journal of Forensic Sciences. He is author of Forensic Dental Evidence, published by Elsevier’s Academic Press in 2010, and his new book, Forensic Testimony: Science, Law and Expert Evidence will be published in October 2013.

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Forensic Sciences

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