The Junk Science Conundrum

What's the best way to keep questionable, or junk, science out of court in a criminal case? That's the question the Texas House Criminal Jurisprudence Committee considered during a hearing Jan. 11 with a number of notable witnesses – including Craig Bey­ler, the fire science expert whose opinion in the case of Cameron Todd Willingham put Texas forensics in the spotlight, and John Bradley, the Williamson County district attorney who late last year took over as chair of the state's Forensic Science Commission.

The topic is not among the five interim charges given to the committee by Speaker Joe Straus, but as the number of exonerations continues to climb and as high-profile cases, like the Willingham case, continue to dog the system, questions about its fundamental fairness persist. "I've had to take kind of a deep breath and wonder if we're doing this in the best way that we can," commented Rep. Pete Gallego, D-Alpine, who chairs the committee.

The hearing touched on whether the rules governing the admissibility of evidence in a criminal trial are sufficient to deal with untested forensics, such as the much-derided dog scent lineup, which the state has used in numerous cases even though its main practitioner says there's no need for formal training or scientific protocols when conducting such a lineup. (The Innocence Project of Texas issued a report on scent lineup evidence in Sep­tem­ber and has asked the state Foren­sic Science Commission to investigate its use in the state.) The real question, said Gallego, is how to "minimize errors and maximize the level of confidence" that we have in our system of criminal justice.

Of course, there's disagreement on how to accomplish these reforms. UT Law professor Olin Wellborn, who teaches aspiring lawyers about evidence and took part in drafting the state's rules of evidence, said he saw merit in amending Texas' rules to require courts to determine whether a particular science – anything from DNA to dog – has achieved "general acceptance" by the practitioners in the relevant field; Bradley countered that Texas' rules as they stand – which essentially require a judge to determine whether the particular piece of evidence is relevant and whether the science and the expert delivering it are reliable – are quite enough. Indeed, Brad­ley told the committee that if the acceptability test (the so-called "Frye test") were applicable in Texas courts, it is unlikely that DNA evidence would've been allowed in courts as early as it was, in the late Eighties, because it was still fledgling and controversial. Bradley's point may have been dramatic, but the logic is dubious. The Frye test is in use in a minority of states, but those with a majority of the population, Wellborn pointed out; one of those states is California, where DNA evidence has been admissible for at least two decades. Jeff Blackburn, IPOT general counsel, pointed out that if the state had on the books some rule regarding acceptability, scent-lineup evidence would never have been allowed in Texas courtrooms. There has to be some way to keep junk out of the courtroom, he said. "I think we can do better than that."