Is your favorite crime show rooted in fake science?

If you’ve ever seen a crime show, you probably know how the plot unfolds: A victim is found, an investigation ensues and police conduct a high-stakes search for the culprit. Detectives and crime lab techs collect hair, examine bullet casings and photograph bloodstains. But just how reliable are these clues – and does science back them up? Well, today on the show, with the help of legal expert Chris Fabricant https://innocenceproject.org/speakers-bureau/m-chris-fabricant/, we’re diving into which of these forensic techniques are junk “science”, which we should be more cautious about – and why all of them haunt the legal system. Interested in more crime and pop science? Email us your question at [email protected] mailto:[email protected]. Support public media with NPR+ and enjoy perks for over 25 podcasts like this one. This show’s perks include sponsor-free listening. Learn more at plus.npr.org http://plus.npr.org. See pcm.adswizz.com https://pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences. NPR Privacy Policy https://www.npr.org/about-npr/179878450/privacy-policy

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  This message comes from Google Workspace with Gemini. One subscription that does it all. Personalized AI and premium business versions of Gmail, Google Docs, Drive and more. Try it free for 14 days at g o o dot g l e slash Workspace with Gemini.

• 0:20Emily Kwong?

  You're listening to Short Wave

• 0:24Emily Kwong?

  from NPR.

• 0:29Speaker 02

  I could speak volumes about Conrad Eckley, but I have a crime scene to process, so you'll have to excuse me.

• 0:35Emily Kwong?

  You've seen it, I've seen it. Crime scene investigators doing what they do best, making perfect TV.

• 0:40Speaker 02

  The lights, what, are you working for OSHA now? This is a lady Macbeth.

• 0:44Speaker 03

  Forensic evidence in those shows is presented as conclusive, objective, infallible. Get the bad guy in a half hour and wrap it up.

• 0:53Emily Kwong?

  That's Chris Fabricant, the director of strategic litigation at The Innocence Project. He started out as a public defender in New York City, in the Bronx. And he told us in the early 2000s, forensic evidence came up all the time in court, the kind presented on TV and widely used by law enforcement in the real world.

• 1:12Speaker 03

  DNA evidence, blood spatter evidence, what your listeners will think of as ballistics evidence, psychological evidence, the heavier the cases are, the more forensics that are involved in the case.

• 1:24Emily Kwong?

  Over the years, Chris watched law enforcement and forensic experts present this evidence as a silver bullet.

• 1:32Speaker 03

  It's almost always admitted by the court, no matter how vigorous of a challenge beforehand, and it's almost always accepted by lay jurors as providing an objective, scientific truth that they wouldn't be able to glean for themselves.

• 1:46Emily Kwong?

  But then a watershed report came out in 2009 from the National Academy of Sciences.

• 1:52Speaker 03

  It examined 13 of the most commonly used forensic techniques and found the conclusions that were being accepted in criminal courts were scientifically indefensible.

• 2:04Emily Kwong?

  Chris has a simpler term for these techniques. He calls them junk science. Anyway, later that year, the White House Office of Science and Technology Policy created a subcommittee on forensic science to address problems and strengthen forensics overall. And then a few years later, The Innocence Project partnered with criminal defense lawyers, the FBI and the DOJ to review more than 2,000 criminal cases involving the debunked technique of microscopic hair analysis. It's progress. But as any true crime enthusiast will tell you, forensic science has not fallen by the wayside, far from it.

• 2:40Speaker 03

  Over half of all known wrongful convictions are attributable to the use of junk science.

• 2:45Emily Kwong?

  And Chris says that is a problem. Today on the show, the junk science keeping people in jail. We're diving into the forensic techniques that have been completely debunked, the ones that should be examined more carefully, and the systems that have kept them alive in criminal courts for so long. I'm Emily Kwong, and you're listening to Short Wave, the science podcast from NPR.

• 3:11Speaker 00

  Stay tuned for the following announcements and messages from our sponsors.

• 3:15Emily Kwong?

  This message comes from ProLon. With their five-day fasting-mimicking diet, a clinically-developed nutrition program with the goal of promoting fat loss while protecting lean body mass. Learn more at prolonlife.com/npr.

• 3:28Speaker 00

  This message comes from International Medical Corps. When crises strike, every second matters, and that's why International Medical Corps moves fast. From the flooding in Nepal to earthquakes in Venezuela, they deliver lifesaving medical care and supplies around the world while training local health workers to ensure care continues long after the emergency ends. This giving season, your generosity saves lives and builds resilience for tomorrow. Learn more or donate today at internationalmedicalcorps.org/npr. This message comes from Google Workspace with Gemini. One subscription that does it all. Personalized AI and premium business versions of Gmail, Google Docs, Drive and more.

• 4:12Speaker 00

  Try it free for 14 days at g o o dot g l e slash Workspace with Gemini.

• 4:20Emily Kwong?

  OK, Chris, I'm gonna start us off with your words. You've called certain forensic techniques junk science and said they don't come from the world of science. Where do they come from?

• 4:30Speaker 03

  Forensic sciences are often created by law enforcement for law enforcement purposes, often to solve a particular crime. That's not the scientific method. That's expedient to get a conviction. And once a forensic technique has been admitted in a criminal court, it's forever thereafter accepted by other courts. Legal precedent reigns supreme in criminal law. The first time that something is introduced in court and accepted by court, there's a legal precedent is established, and it's very, very difficult to get any other court to exclude that evidence.

• 5:08Emily Kwong?

  So there's a lot of forensic science that appears in courtrooms as evidence, in TV courtrooms, but also some courtrooms around the country. There's so many different tools that have been used in this way. We can't cover all of them, so let's just focus on three. I want to start with hair microscopy. What is that?

• 5:28Speaker 03

  Hair microscopy is a discredited technique that was used to match suspects to hairs found at crime scenes fundamentally. So a hair was found in a probative place at a crime scene, a suspect is developed, you pluck some hairs from the suspect, and you examine the questioned hair and the known hair side by side under a microscope and declare a match. But it was dressed up as very sciency by the FBI primarily. They claim that there was a match. Often, they would make a probabilistic statement, like that it's very, very likely that it came from this suspect or something along those lines.

• 6:12Speaker 03

  But what they didn't know in reality was it could be 1 in 10 people might also match that hair or 1 in 10 million, right? They really had no idea. And it was, it took nearly 70 wrongful convictions, 70, before the FBI and the Department of Justice came to The Innocence Project and the National Association of Criminal Defense Lawyers and admitted that their agents had been overstating the significance of this evidence.

• 6:37Emily Kwong?

  And comparing bite marks, I suppose made by people's teeth, has also been used as evidence. What do you think about that?

• 6:44Speaker 03

  Bite marks are garbage. They should never have been used.

• 6:48Emily Kwong?

  Tell me how you really feel. OK.

• 6:50Speaker 03

  There's nothing probative that could ever come from a so-called bite mark comparison. Eyeballing an injury and determining that it's a so-called bite mark, the research shows and anecdotally from wrongful convictions, forensic dentists are no better than you and me at diagnosing an injury as an adult human bite mark. And beyond that is that these dentists were taking photographs of these injuries at a moment in time. A decomposing body changes hour to hour, day to day, week to week. So a so-called match, you know, could be match one day and not match the next.

• 7:25Emily Kwong?

  One of the most widespread techniques that the FBI has also supported is blood spatter analysis. And what's interesting about this one, I did a little reading, ProPublica has a really good article about it, that this, this method was created by a scientist, someone with a chemistry degree who kind of got into forensics. What do you think of blood spatter work in forensics today?

• 7:51Speaker 03

  Well, there is a there there with blood spatter evidence if it's done by an expert who understands trigonometry, understands the effect of gravity on blood spatter, and understands fluid dynamics, which is an area of research that's highly technical and highly scientific and beyond the ken, certainly of your average crime scene technician. So if it's done in a way that it can be relatively rigorous and modest in what it can and cannot say, it could be used. The trouble is, blood spatter evidence is often used by undertrained police officers

• 8:34Speaker 03

  who don't have a background in mathematics or a real science, and it's used to explain an entire crime scene, how everything unfolded, and way overstated and has led to wrongful conviction.

• 8:45Emily Kwong?

  Yeah. I want to talk about the people who are presenting this evidence. You describe them always as they're forensic experts. And they're presented as having significant backgrounds in science. And that's a key part of why juries should believe them. What do you think about the people who are the ones taking the stand to share this evidence in trial?

• 9:13Speaker 03

  Well, forensic experts, I should say, are well-intentioned, smart, dedicated, well-trained in their fields and are trying to do the right thing. They believe that they're participating in a civic responsibility. Troublingly, many of them look at themselves as crime fighters or crime solvers, which is, of course, not a scientist's role, which is to provide objective, scientific information. The trouble with most forensic experts and in their fields is that there are less formal training. They don't have degrees in science, and they're not required to have degrees in science.

• 9:56Speaker 03

  And they've accepted at face value the overstated and exaggerated claims that their mentors have taught them.

• 10:02Emily Kwong?

  Of the methods we've described, have any fallen out of favor in a way that you're like, this is good. It's the method that's the problem. Or is it actually the whole field that's the problem?

• 10:13Speaker 03

  I get asked that question a fair amount. People say that we're not using hair microscopy anymore, and we're not using bite marks or what have you. And the reality is that we are, in that I get a call all the time from defense attorneys that are seeking to resist the introduction of those techniques. But new junk science emerges every day. Let's talk about ShotSpotter evidence. This is supposed to be a digital acoustic forensic technique that allows police officers to detect gunshots and separate those sounds from all other loud noises and then direct police resources to the sound of gunshots. And that sounds reasonable.

• 10:54Emily Kwong?

  Yeah.

• 10:55Speaker 03

  But actually, it's worse than flipping a coin as to whether or not there are actual gunshots. Without real scientific scrutiny, the chance of a forensic technique being introduced to trial and being wrong or exaggerated is overwhelming.

• 11:11Emily Kwong?

  What you're describing, the way that forensic science is widely used in courtrooms across the country, of course, has consequences. Your colleagues and you have found that when this happens, it leads to false convictions. How often is that happening and to whom?

• 11:28Speaker 03

  Well, the to whom question is overwhelmingly poor people and disproportionately Black and Brown people. That's true with everything about the criminal legal system in the United States. This is happening all over. Before I got to the Innocence Project, I had never litigated a Capitol case. And I naively assumed that in Capitol litigation, that the science would be much more rigorous, that the evidence would be much more rigorously tested, that the evidence would be more carefully scrutinized, that courts would exclude unreliable evidence because the stakes are literally life and death. But what I have found is the opposite.

• 12:10Speaker 03

  The higher profile, the higher the stakes, the more Capitol litigation that I've done, the more junk science that I've seen.

• 12:18Emily Kwong?

  Yeah. And I understand that's in part because of something called the CSI effect, where jurors are biased towards forensic evidence because of TV, because of how science is portrayed on CSI or Dexter.

• 12:29Speaker 03

  So there are two versions, or two points of view on the CSI effect. There's the prosecutor's point of view, and there's the defense attorneys. Prosecutors argue that CSI effect requires them to introduce scientific evidence because all these crime shows always have scientific evidence and that jurors are going to expect scientific evidence. And if they don't get it, they won't get their convictions.

• 12:54Emily Kwong?

  Wow.

• 12:55Speaker 03

  And what the defense attorneys will tell you is that the CSI effect makes jurors credulous about any scientific evidence that's presented because, as we talked about earlier, crime television and regular news presents forensic science as infallible.

• 13:15Emily Kwong?

  Yeah.

• 13:16Speaker 03

  Always catches the bad guy.

• 13:17Emily Kwong?

  Interesting. What a pickle.

• 13:20Speaker 03

  I've got an easy solution.

• 13:21Emily Kwong?

  What is it?

• 13:22Speaker 03

  Well, one is that we need to have something like the FDA for forensics. We have to have a government agency that's testing the validity and reliability of forensic techniques before they're ever introduced to make life and liberty decisions. And the other thing, the easiest free fix that you could have is to blind the experts from biasing information.

• 13:45Emily Kwong?

  To make them more like scientists, where there's

• 13:48Speaker 03

  Right.

• 13:48Emily Kwong?

  double-blind studies involving the participants.

• 13:51Speaker 03

  Right. Every other area of science goes through hoops to avoid bias in properly influencing a subjective decision. Nothing like that is done in forensics.

• 14:03Emily Kwong?

  And you're saying that forensic experts, whoever's presenting this evidence, should be far more explicit about the uncertainty involved?

• 14:13Speaker 03

  100%. That's a good way to put it. Much of these techniques and much of this testimony is presented as though there is no error rate, literally, no such thing. The other is the limitations, appropriate limitation as to what a quote-unquote "match" means. As that bullet was fired by that gun, that fingerprint was left by that person, and that shoe print could only have been made by that shoe, and on and on, called individualization testimony. Does this mean that there couldn't be somebody else in the universe who might also match this? If you eliminate the possibility of mistake and you make claims of individualization when the science doesn't support that, you invite wrongful conviction.

• 14:54Emily Kwong?

  Chris, if I may, it doesn't sound like you're saying science should not be allowed in the courtroom at all. You want good science to be allowed in the courtroom.

• 15:04Speaker 03

  Absolutely.

• 15:04Emily Kwong?

  And what you're advocating for is that before the trial happens, there is far higher standards for what is allowed into that courtroom.

• 15:15Speaker 03

  Yes. I mean, we have to have upstream fixes on it. You have to have a separate entity determining what an error rate for the field is and what the personal error rate for the examiner is and the validity of the technique outside of the courtroom. Because once you get in the courtroom, the gloves are off.

• 15:33Emily Kwong?

  Well, Chris, thank you so much for sharing a slice of your world with us. I know you're by day a lawyer, but you thought deeply about how science shows up in your world, and I thank you so much for your time.

• 15:43Speaker 03

  Thank you for having me.

• 15:45Emily Kwong?

  Chris's book is called Junk Science and the American Justice System. This episode was produced by Hannah Chin. It was edited by our showrunner, Rebecca Ramirez, and fact-checked by Tyler Jones. The audio engineer was Jimmy Keely. I'm Emily Kwong. Thank you for listening to Short Wave from NPR.

• 16:08Speaker 00

  Stay tuned for the following announcements and messages from our sponsors.

• 16:12Speaker 04

  This message comes from the Breast Cancer Research Foundation, doing more than raising awareness this Breast Cancer Awareness Month. Your gift supports more than 280 top breast cancer researchers. Donate at bcrf.org/support.

• 16:27Speaker 00

  This message comes from Google Workspace with Gemini. Ever notice how every new AI tool asks you to explain your business to it all over again? Google Workspace with Gemini skips that. You get Google's AI built right into the premium versions of Gmail, Google Docs, Sheets, and more. No new tools, no extra logins, just one subscription that gives you personalized AI right inside your actual workflow. Try Google Workspace with Gemini at g o o dot g l e slash workspace with Gemini.