The U.S.-Asia Law Institute hosted Chris Fabricant, director of strategic litigation at The Innocence Project, for a virtual talk about his new book, Junk Science and the American Criminal Justice System. The Taiwan Innocence Project and Innocence Project Japan co-hosted the event on June 8, 2022.
Mr. Fabricant recounted the history of junk science in the US criminal justice system and the role it plays in causing wrongful convictions. “Junk science,” he said, is “subjective speculation masquerading as science.”
“There is no empirical evidence for junk science. It has not been subjected to the rigorous scientific method and peer-reviewed in journals… but it sounds like science and therefore ‘junk’ is the right word,” said Mr. Fabricant.
Ritsumeikan University Professor Mitsuyuki Inaba, a specialist in cognitive science who was founding director of the Innocence Project Japan, asked whether there is any systemic procedure in the US to inform jurors about junk science prior to trial.
“No, that is why it is so dangerous, because we are not capable of critically evaluating forensic scientists,” said Mr. Fabricant. “There’s also research (showing) that we, as human decision makers, turn off our critical thinking skills when an expert, or someone deemed as an expert, is giving an opinion.”
USALI Executive Director Katherine Wilhelm asked if any countries have systems for independently vetting forensic evidence presented in court. In the US, the prosecution and defense separately introduce their own expert witnesses, leaving it up to jurors to decide which side’s conclusions are more firmly grounded in real science.
Mr. Fabricant said that Australia’s “hot-tubbing” method, where the court appoints multiple experts to testify and then the judge determines whether the evidence is valid, may be a better approach. However, he says there is concern that the approach can cause a groupthink effect.
Junk science persists in courts because judges, lawyers, and jurors generally lack sufficient skills to discern its flaws, and because of the strength of judicial precedent. Once one court in a jurisdiction sets a precedent by admitting a particular type of expert evidence, such as bite-mark comparison evidence, defense counsel find it very difficult to keep such evidence out in new trials. Fabricant said The Innocence Project and its local partners are making slow progress in opening paths to retrial for defendants wrongly convicted due to junk science. The criminal justice field also has started to recognize the “pernicious influence of cognitive bias and (makes) efforts to shield expert witnesses from irrelevant case information that has the ability to influence decision-making,” he said.
By: Jessica Chin