According to Webster’s Dictionary, “forensic” is defined as: Etymology: Latin forensis public, forensic, from forum forum 1 : belonging to, used in, or suitable to courts of judicature or to public discussion and debate 2 : argumentative, rhetorical 3 : relating to or dealing with the application of scientific knowledge to legal problems.
Generally speaking, forensic science is the application of a scientific field to facts in a legal case. Did the shooter have gun powder residue on his hands? Does the DNA match? Why did the bridge collapse? A jury might find a scientific expert’s assistance helpful in resolving criminal cases seeking to incarcerate an accused or in civil cases where money is sought by an injured party.
But in DUI cases, the phrase “forensic scientist” is used flippantly by prosecutors to describe state employed technicians who are generally paid to deliver an opinion favorable to the government in exchange for continued employment.
The state’s technicians are run through quick programs designed to build their credentials. Michigan’s forensic scientists attend the Robert F. Borkenstein Course on Alcohol and Highway Safety at Indiana University. This week-long course is taught by recognized experts in the field, as well as prosecutors and police officers. One can only wonder at the marvels taught by prosecutors and police officers to the freshly minted “forensic scientist.”
The Robert F. Borkenstein Course has been closed to defense lawyers for several years, despite public funding. This raises significant questions about the program, especially with laboratory scandals such as the "forensic scientist" Annie Dookhan, who pleaded guilty in 2013 to 27 counts of falsifying nearly 40,000 criminal drug cases, effectively upending the Massachusetts criminal justice system. Apparently the information shared with the state-sponsored gunslingers is far too secretive to disclose to the public at large.
Despite the government’s best efforts, information from the Borkenstein Course has been obtained by defense lawyers. For whatever that training is worth, Michigan’s forensic scientists frequently disagree with the experts who teach at the Borkenstein Course, particularly if that testimony helps the prosecution in a DUI case. When confronted with materials presented at the course, our state’s experts refuse to recognize their trainers as experts or blatantly disagree with the published research. In other words, the rhetoric is more important than the pursuit of the truth.
Rhetoric should never take a back seat to science when it comes to forensic science. I once had the pleasure of cross-examining Dr. Ljubisa J. Dragovic, the Oakland County Medical Examiner, in a DUI case. While I expected the worst, Dr. Dragovic admitted almost every flaw in the prosecutor’s case that I was able to expose. There was no hesitancy or reluctance to provide frank and honest answers disclosing the underlying methodology or flaws in the prosecutor’s theory of the case, and my client got a great deal as a result of Dr. Dragovic's testimony. Oddly enough, the Borkenstein Course was mysteriously absent from Dr. Dragovic’s resume.
But the Michigan State Police’s toxicology unit, which provides testimony in most DUI cases across the state, is under serious pressure to produce results. As one commentator noted recently: “According to a recent study conducted under the auspices of the National Academy of Sciences, ‘[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.’ National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6–1 (Prepublication Copy Feb. 2009) . . . . And ‘[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.’ Id., at S–17. A forensic analyst responding to a request from a law enforcement official may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution. And that commentator was none other than Justice Antonin Scalia writing for the majority of the United States Supreme Court in Melendez-Diaz v. Massachusetts, ___ U.S. ___, 129 S. Ct. 2527, 2529, 174 L. Ed. 2d 314 (2009).
There is a conflict in the term “forensic science.” It is an oxymoron akin to “military intelligence.” If science is the pursuit of the objective truth and knowledge, then forensic science is an argumentative, rhetorical application of science. Another oxymoron comes to mind: it is supposed to be an “unbiased opinion,” but that is not what the Michigan State Police are aiming to achieve down in Indiana.