In the 1920s and 30s progressive police administrators, legal scholars, and pioneers in forensic science believed that one day well-educated, highly trained detectives, working hand-in-hand with highly qualified crime scene technicians and forensic scientists, would defeat crime. It was hoped that the widespread use of forensic science would render certain aspects of the criminal investigation function obsolete. The scientific analysis of physical evidence would eliminate the need for the third-degree, and law enforcement’s heavy reliance on confessions. Convictions based solely on confessions, evidentiary foundations built on sand, would be eliminated. Moreover, criminal identification, based on eyewitness accounts, including the questionable reliability of mug shot and lineup identifications, would come to represent the old fashioned, unprofessional way of conducting investigations. One of the first things forensic science would replace would be the widespread use of jailhouse informants, the bottom of the evidentiary barrel, and the most insidious and underhanded tool in the investigator’s (and prosecutor’s) bag of tricks. Not only would police and prosecutors make the streets safer for law abiding citizens, the chance of an innocent person being convicted of a crime would be significantly reduced. In other words, science and scientific methodology would put justice back into the criminal justice system. Criminals, because they couldn’t get away with their crimes, would either go straight, or go straight to jail. Fewer criminals meant fewer cops which meant that tax revenues could be spent in more humanitarian and productive ways. This was, of course, a dream, but not the dream of fools. Pioneers in forensic science, and progressive law enforcement, were practical, intelligent men who were experienced in the ways of the world. This dream of a better way to administer justice would have, and should have, come true. It was, however, a dream that never got close to becoming reality. Now, even the dream is gone.
By 1935, forensic science in America was in full bloom, and moving forward with a full head of steam. Major crime labs were operating in New York City, Chicago, Detroit, Boston, Los Angeles, and Philadelphia. The FBI Laboratory had been underway for two years. J. Edgar Hoover, the high-profile director of the FBI was making fingerprints the unofficial logo of the bureau, signifying highly trained, scientific investigators backed by a modern full service crime laboratory. August Vollmer, the progressive police chief in Berkeley, California, and Dean John Wigmore of Northwestern Law School, were tireless crusaders for police training, scientific crime detection, and the use of physical evidence and expert testimony in court. Dean Wigmore did everything in his power to promote the use of physical, circumstantial evidence over direct evidence in the form of eyewitness identification and confessions acquired by intimidation. By 1940, numerous textbooks and manuals had been published in the fields of fingerprint identification, firearms identification, trace evidence analysis, document examination, forensic pathology, toxicology, forensic dentistry, general crime scene investigation, and forensic anthropology which included the identification of skeletal remains and the reconstruction of faces from skulls. Books on general criminal investigation included instructions on how to protect crime scenes, mark and package physical evidence, make plaster-of-Paris casts of tire tracks and shoe impressions, take crime scene photographs, dust for and lift latent fingerprints, and, in the case of sudden, unexplained and violent death, look for physical evidence of homicide. These texts were extremely detailed, and even by today’s standards, sophisticated. By this time, virtually every court in the country accepted the expert opinions of practitioners in all of the forensic fields. Juries recognized the advantages of scientific evidence over testimonial proof, and criminal defendants were being convicted solely on the basis of scientific, circumstantial evidence.
Seventy years later, notwithstanding cutting edge science, and hundreds of colleges and universities offering degrees in either criminal justice, policing, or forensic science, America’s crime solution rates (for aggravated assault, criminal homicide, arson, burglary, robbery, car theft, kidnapping, and rape), compared to the percentage of crimes solved from 1933 (when they first started keeping records) have not improved, and may have gotten worse. Television shows like “CSI,” “Forensic Files,” “The New Detectives,” and “Autopsy,” have created a lot of public knowledge and interest in forensic science, and high expectations for detectives and prosecutors. The increased public awareness of the role of forensic science in criminal investigation has caused what prosecutors call “the CSI effect,” the expectation among jurors that the prosecution will feature physical evidence and expert testimony. Because police investigators continue to ignore or mishandle physical evidence, and continue to rely heavily on eyewitnesses, jailhouse snitches, and confessions, juries don’t always get the physical evidence they desire and expect. In cases like this, prosecutors either eliminate potential jurors who are fans of “CSI,” or try to downplay the importance of physical evidence as a method of proving a defendant’s guilt. Perhaps instead of lowering reasonable expectations, prosecutors (with the help of judges, medical examiners, and crime lab administrators), should demand more of the nation's police investigators.
At a time when DNA science has developed beyond the imaginations of the pioneers of forensic serology, rapists, pedophiles, and killers are escaping timely justice because of DNA backlogs created by a shortage of qualified analysts. Ironically, one of the byproducts of DNA technology has been the release of hundreds of innocent prisoners who had been convicted on coerced confessions, erroneous eyewitness identifications, and the bogus testimony of jailhouse snitches. DNA technology, instead of ridding the country of rapists and pedophiles, has exposed the backwardness of our criminal justice operation. If the forensic scientists and pioneers of the 1930s came back to life, they would be appalled by the low quality of American’s investigative services. It would be like Thomas Edison coming back to life to a world still lit by candles.
Since the early 1990s, while crime rates have been falling, detectives have been solving a fewer percentage of their cases. Our streets are a little safer, not because of better criminal investigation, and forensic science, but because of the protracted war on drugs. Turning users into informants and catching people with drugs on their persons is not criminal investigation. Criminal investigation in a democratic society where the burden of proof is on the government, where citizens have civil rights, is difficult and time consuming. It takes a lot of training, and years of mentoring and experience to create a master detective. The reason so many arsonists, burglars, wife beaters, rapists, and thieves end up behind bars is not because criminal investigators have proven they have committed these crimes. Most of the people in our prisons were simply caught possessing or selling drugs. One might argue that his is a heavy-handed way of administering criminal justice, and that there is a difference between a person whose criminal activity is drug use and one who is living a life of violent crime. But the drug user and violent criminal go to prison because they both possessed or sold drugs. Ideally, arsonists would go to prison for setting fires, and rapists because of their sex offenses. But for this to occur, we would need a large and competent body of detectives, more forensic scientists, and more prosecutors, judges and courtrooms. This is not about to happen. In America, the streets are relatively safe because of the enforcement of drug laws. The best way for rapists, arsonists, burglars, wife beaters, and thieves to stay out of prison, is not to get caught possessing or selling contraband. One can only wonder how safe the streets would be if Americans were not so hooked on drugs. Proponents of aggressive drug enforcement would argue that the use of illicit drugs is the cause of these other crimes. That may be true, but it’s no excuse for drug enforcement to take the place of criminal investigation, and in the process create so much injustice.
If the drug war suddenly switched from enforcement to treatment, and none of the soldiers in the drug campaign were turned into detectives, America would experience a significant rise in burglary, robbery, arson, rape, and murder. They would be a terrible problem because the drug war, and more recently the domestic war on terrorism, has rendered criminal investigation a lost art. Converting narcotic officers, SWAT team members, and drug intelligence gatherers into full-fledged detectives would be a difficult, time consuming, and costly assignment. As law enforcement has become more paramilitary in nature, the transition from cop to detective has become more problematic. A person who will make a good uniformed officer is not necessarily one who will make a good detective. Law enforcement recruits are hired to be good cops, not good detectives. If this weren’t the case, eyesight, physical strength and agility would not be required for the job. Detectives have to be thinking people, cops are reacting people. In other words, being a cop is not the best prerequisite for detective work.
The diminishing role of criminal investigation in the administration of justice is not the only reason forensic science has not fulfilled its promise. Science is no longer considered the answer to our problems. It is not respected as it once was by ordinary people. It is no longer understood. A recent national study revealed that high schoold science education is of extremely poor quality. Criminal justice majors in college, while expressing career interests in forensic science, avoid courses in chemistry, biology, math, and physics. Jurors are drawn from of society of magical thinkers, believers in ghosts, astrology, alien abductions, crop circles, UFO’s, and psychic detectives. In this era of new age thinking, what one believes is more important than what one knows. In fact, what people know involves very little science. As a result, jurors are not always impressed with physical evidence and expert testimony. While jurors might see and be impressed with the similarity between a crime scene fingerprint and its corresponding, inked counterpart; believing in the incriminating or exonerating ramifications of DNA analysis demands a leap of faith, a trust in science and scientific methodology.
In order to find criminal defendants guilty, jurors must also believe that police officers and detectives do not fabricate evidence or lie under oath. They also must believe that prosecutors are not withholding evidence of the defendant’s innocence. Jurors who read the newspaper or watch crime television know that a lot of innocent people have been sent to prison because of law enforcement and prosecutorial misconduct. When a judge asks potential jurors if they would take the word of a police officer over than of a defendant, many jurors find that question difficult to answer. It has not always been this way. For prosecutors and police, things might be a lot worse if it were not for the fact the public has a low opinion of defense attorneys.
Regarding the current role of forensic science in the United States, the forensic science community itself has contributed to the problem. Across the country, dozens of city, county, and state crime labs have been temporarily closed following audits revealing sloppy work, scientific errors, unqualified analysts, poor quality control, weak supervision, and unclean working environments. Incompetent lab personnel, thanks to administrative cover-ups, have been allowed to testify against defendants later determined to have been innocent. Federal crime labs, including the FBI Laboratory, have been embroiled in scandal. In the mid-1990’s, thanks to a whistleblower in the FBI lab, the public learned of serious problems of quality control, and the lack of scientific objectivity in the nation’s largest crime lab. The scandal led to reforms, but problems have persisted. Damage to the lab’s image and prestige have not been fully repaired. If the FBI lab can’t be trusted, what forensic science facility can?
There are fakes, incompetents, and charlatans in every field, but over the years there have been a series of high-profile cases featuring the so-called expert from hell, forensic scientists whose testimony helped convict innocent people, a few of whom were executed before being exonerated. Experts from hell are hired-guns willing to testify for any side that pays. The alarming aspect of these stories involves how long these phonies are able to operate before being exposed and defrocked. Just beneath the expert from hell is the forensic scientist who is well meaning but incompetent, blinded by media attention, or a practitioner who bows to prosecutorial pressure. The first duty of the forensic scientist is to science, not to the law enforcement team prosecuting the case. Maintaining the wall between science and criminal prosecution is a constant challenge, one that is not always met.
Today, jurors are commonly exposed to trials where each side presents an expert. If forensic science is about hard science, how does one explain the dueling expert phenomena? How can one expert testify that two plus two equals four, and the opposing expert testify that two plus two equals five? If there is a forensic scientist for every prosecutor and every defendant, how can there be forensic science for anyone? When juries are faced with opposing experts, they tend to disregard the physical evidence entirely. What other choice do they have? How are jurors supposed to know which expert to believe? One solution to this problem lies with the court itself. Somehow, judges will have to find a way to seek out the phonies and prohibit them from testifying. Moreover, unless the science related to a specific issue is not settled within the scientific community, there should be no expertise brought to bear on this question. The role of science is to clarify, not to muddy the waters. In forensic science, this is exactly what is happening. This is not, obviously, what the founders of forensic science intended or foresaw.
The historical trajectory of American forensic science can be traced through three celebrated cases: the Lizzie Borden case in 1892; the 1932 kidnapping of the Lindbergh baby, and the resultant 1935 trial of Bruno Richard Hauptmann; and the O. J. Simpson double murder investigation and trial in the mid-1990s. The trajectory is an arc starting with the Borden case, rising to the Lindbergh trial, then descending a century later with the O. J. Simpson verdict. When a profession’s golden era is seventy-five years old, that profession is in trouble.
When Lizzie Borden was arrested for the hatchet murders of her stepmother and father in their Fall River, Massachusetts home, forensic serologythe identification of blood and other body fluidsdidn’t exist. Neither did the identification of crime scene fingerprints. Without the capacity to scientifically identify blood, or even group it, there was no way for the police to positively identify the murder weapon, or the large stain found on the dress Lizzie had been wearing that day. Since blood itself could not be scientifically classified as such, there was no way to count Lizzie’s assertion that her dress had been stained by paint. Having opportunity, motive, and the means of committing the crime, Lizzie Borden was a good suspect, but without being linked to the crime through physical evidence, that’s all she was, a good suspect. But in American criminal jurisprudence, being a good suspect is not good enough. As a result, the all-male jury, believing that an upper-middle-class woman was incapable of such violence, acquitted her. Had she been guilty of double murder, Lizzie Borden was the beneficiary of a male misconception about the homicidal capabilities of refined women.
In 1935 Bruno Richard Hauptmann, an illegal alien from Germany living in the Bronx, New York, went on trial in Flemington, New Jersey for the March 1932 kidnapping and murder of the twenty-month-old son of Charles and Anne Lindbergh. The case against Hauptmann, who remained unidentified for two and a half years following the home invasion near Hopewell, New Jersey, was entirely circumstantial. No one saw him enter the second story nursery window of the Lindbergh estate, there was no direct evidence regarding exactly where or how the baby had died, and Hauptmann never confessed. He had, however, been passing he ransom money around the New York area for two and a half years, the police found $14,000 of the $50,000 ransom hidden in his garage, and he met the description (including the German accent) provided by the Lindbergh intermediary who handed over the ransom money to a man in a Bronx cemetery a month after the abduction. A few weeks later the child’s remains were found in the woods about two miles from the Lindbergh estate. Although in a state of decomposition, the remains were identified through its clothing, and more generally through its teeth, hair, and bones. Because of the condition of the body, fingerprint identification was not possible.
At Hauptmann’s trial, the most damaging evidence against him came in the form of expert document and wood analysis. Eight of the country’s most respected forensic document examiners testified that Hauptmann had written the ransom note left in the nursery and the fourteen handwritten notes and letters sent to the Lindberghs in the course of the ransom negotiations. A federal wood expert took the stand and identified a floor plank from Hauptmann’s attic as being the board from which a piece of the homemade wooden kidnap latter had been sawed. Hauptmann, although by trade a carpenter, had not worked a day between the ransom pay-off and his arrest two and a half years later. During that period, a time of the Great Depression, Hauptmann had lost $25,000 playing the stock market. The jury, based on the money found in his garage, his unexplained affluence, the testimony of the handwriting experts, and the forensic connection between the crime scene ladder and his attic, found Hauptmann guilty of murder. In April 1936, following numerous appeals, Hauptmann was electrocuted at the New Jersey state prison in Trenton. Although the evidence against him was circumstantial, very few people took issue with the outcome of the trial. (Decades later, in an era of junk science, ridiculous revisionist history, and magical thinking, some people believe that Hauptmann had been railroaded. However, numerous modern day re-evaluations of the physical evidence by forensic document examiners and wood experts have confirmed the conclusions of the original experts.) The Lindbergh kidnapping trial is considered by many crime and forensic science historians to be the high-water mark in the history of forensic document examination.
Some sixty years after Bruno Richard Hauptmann was put to death in New Jersey, O. J. Simpson was arrested for the murder of his ex-wife and an acquaintance of hers who happened to be at the wrong place at the wrong time. The bloody, disorganized double knifing took place at a time when many police officers had college educations, a time when blood could not only be identified and grouped, but traced, through DNA science to an individual donor. The crime was also committed in an era when people who watched television knew all about the importance of proper crime scene investigation, including photography, sketching, and evidence gathering. Unlike the Borden case, the Simpson crime was awash in identifiable physical evidence in the form of blood at the murder scene, blood in Simpson’s car, and blood in his house. There were also bloody shoe impressions, a bloody sock, a cut on Simpson’s hand, and the killer’s glove at the scene. The prolonged, and for some, tedious trial, featured DNA experts, crime scene technicians, two FBI footwear impression experts, forensic pathologists, and a number of other forensic specialists testifying on both sides of the case. Notwithstanding DNA testimony linking Simpson to the crime the jury found him not guilty. The physical evidence did not exonerate Simpson. He was acquitted because the police bungled certain aspects of the investigation and the defense muddied the water with their own forensic witnesses that included the famous criminalist, Dr. Henry Lee. This allowed the jurors to do what they wanted to do all along, free O. J. Simpson. Although Simpson was not convicted, he, like Lizzie Borden, was not exonerated either. There is a good reason for this in the Borden case, there is not in the Simpson fiasco. In the Simpson case the verdict is a disgrace, a low-water mark in the history of forensic science. Since the Simpson debacle, this history has repeated itself in celebrated and uncelebrated crimes across the country. There isn’t a person who follows the local news who isn’t aware that criminal investigation has become a lost art and that forensic science is becoming a sideshow.