Science In The Courts: Crazier Than Fiction?
Science In The Courts: Crazier Than Fiction?
Let’s say you’ve decided to write a novel. You’ve always loved the crime genre and television dramas like CSI, and you pride yourself on knowing something about science and the law. So you decide your novel will be about a forensic scientist who works in a police crime lab, maybe for the FBI, maybe in a city with lots of murders, like New York, Chicago, or your own hometown of Milwaukee.
You’ve also done your homework. You know that getting a publisher interested won’t be easy. To do so, you’re going to need a HIGH CONCEPT. So you get out a felt pen and a legal pad and start brainstorming. Maybe you can come up with an idea nobody has thought of before. Maybe you can turn it into a bestselling series.
You’ve done a lot of reading in the genre, so you know that readers of mysteries are drawn to interesting characters, most often those who are quirky and have BIG PERSONAL PROBLEMS. Maybe it’s a marriage that ended in divorce, or an addiction to alcohol, or a tragedy from their past that haunts them to this very day. Whatever it is, it must be COMPELLING and not cliché.
You’ve further noticed that the hero/ines in many popular series have names that: (a) are different, (b) they don’t like, and (c) were given to them by a parent with whom they had a TROUBLED RELATIONSHIP. So you decide that your heroine’s father, a renowned classics scholar, christened her Nike after the Greek goddess of victory, a name she despises not only because she’s always being confused with a popular brand of athletic shoe – a potential source of witty dialogue, you write down on your legal pad — but also because her father turned his back on her after she decided to major in science.
You further decide that Nike blames herself for a horrific car accident that killed her ONE TRUE LOVE and left her with a prosthetic foot that has bravely not stopped her from becoming a black belt in an obscure martial arts discipline you can’t think of right now but will research.
Further, Nike is a vegan who gave up animal products for ethical reasons but still craves hamburgers (INTERNAL CONFLICT), reads the Aeneid in Latin for fun, and has a pet Gila Monster named Gil with whom she shares living quarters in a converted gas station that was the only thing she could afford on her crummy civil servant salary.
You think Nike has potential, but now comes the hard part. By far, the most important question is how Nike will catch the killer. Here again, you want to do something creative and unique. By now, readers must be tired of plots that turn on painstaking DNA analysis of evidence left behind by brilliant but sloppy perps. And DNA requires a lot of research to understand and explain, which will take time away from the suspense-filled prose you plan on writing during your day job when the boss isn’t looking.
So you put on your thinking cap, trying to come up with a clue that only Nike will notice and immediately recognize as significant. As you are ruminating, you let your pen linger too long on the legal pad, creating a giant splotch of ink. You are hit with a sudden inspiration. That’s it! The clue will be an inkblot left near the murder victim by the killer, who has a weakness for fountain pens and always leaves a signature of his presence behind to taunt and confound the police.
What’s more, Nike has been working for years on a way of connecting ink to the pen it came from, a method that her narrow-minded and obviously sexist boss pooh-poohs as a waste of the taxpayer’s money, which has forced Nike to perfect her technique in secret and at constant risk of losing her job.
Your imagination continues to soar. The bodies — and inkblots — multiply, until Nike convinces a handsome if skeptical detective (FUTURE LOVE INTEREST) that the ink in question came from a Mont Blanc pen used by Kaiser Wilhelm to sign the 1919 Versailles peace accord, recently sold by an antiques dealer in London to a reclusive billionaire whom Nike now believes is the killer.
To prove the billionaire is guilty, Nike and the detective will fly first class to Heathrow, undergo a car chase that forces Nike to relive memories of the accident that killed her ONE TRUE LOVE – and that she now realizes wasn’t really her fault — and come close to being killed themselves before they are saved AT THE VERY LAST MINUTE by agents from MI5.
You smile in satisfaction as you picture the very last scene: Back in the United States, Nike on the courthouse steps bowing her head ever-so-modestly after the jury has voted for the death penalty, her work hailed as a TRIUMPH OF JUSTICE OVER WRONGDOING . . .
But then doubt begins to creep in. Will anyone believe this? Is it really possible to match a drop of ink to the pen it came from? And could a jury really find guilt beyond a reasonable doubt without any other evidence linking the alleged killer to his victims?
Hurriedly – because you’ve fallen in love with this plot – you open your laptop and search the internet for actual cases in which the defendant was convicted on the basis of dubious science. You discover the following:
Over the course of decades, experts from the FBI’s microscopic hair comparison unit gave flawed testimony in at least 295 cases, including 14 where the defendant was executed or died in prison. The FBI now admits that the so-called science behind crime scene hair matches was based on misleading and incomplete statistics.
Bite mark evidence, or forensic odontology, once considered infallible, has been thoroughly discredited after sending numerous innocent defendants to jail. In one of the most notorious examples, Ray Krone was convicted and sentenced to death without any physical evidence linking him to the crime except for a curious mark on the victim’s body. Krone spent 10 years in prison, some of it on death row, before being exonerated by DNA testing.
Handwriting analysis, which is expected to feature prominently in the forthcoming murder trial of Robert Durst, the subject of a recent six-part HBO documentary, is also controversial. A 2009 report by the National Academy of Sciences said “there has been only limited research to quantify the reliability and predictability of the practices used by trained document examiners.”
Expert testimony linking bullets recovered from a crime scene to those in the possession of the defendant was admitted in courts without challenge for more than 40 years. But recent studies have undercut both the theory and assumptions underlying comparative bullet lead analysis, or CBLA. Once again, the FBI played a leading role in championing such evidence until one of its retired examiners raised the alarm. In 2004, the National Academy of Sciences released a report seriously questioning CBLA. Since then, the FBI has ceased doing CBLA analysis.
Even fingerprint analysis, once considered the “gold standard” of forensic evidence has come under fire, especially in the wake of the FBI’s false identification of American lawyer Brandon Mayfield as the perpetrator of a 2004 Madrid train bombing. Before then, the FBI routinely claimed that it could match fingerprints with a “zero percent” error rate, an assertion another National Academy of Sciences report found “not credible.”
Almost half of the cases tracked by the Innocence Project in which convictions were later overturned on the basis of DNA testing involved “invalidated or improper forensic science.”
You read on and on, simultaneously fascinated and disturbed by these gross miscarriages of justice. Your confidence in your plot has taken a beating. Can you make inkblot analysis the centerpiece of Nike’s detective efforts without getting egg all over your face?
And then you hit pay dirt: An FBI forensic science report explaining how ink source comparison can be used to identify certain blue ball point pens. In fact, the technique was relied upon in part to convict Martha Stewart in her insider trading case.
You breathe a huge sigh of relief. If the FBI thinks it can trace ink to the pen it came from, it must be a valid scientific technique, right?
And besides, you now have proof that nothing you put in your novel could be crazier than what passes for evidence in a real court of law.
Lynne Raimondo is a lawyer and the author of the Mark Angelotti crime novels, Dante’s Wood (2013), Dante’s Poison (2014), and Dante’s Dilemma (forthcoming in August, 2015), all featuring a forensic psychiatrist with big personal problems, a physical disability, and a hated first name.