"We the jury find John Smith guilty of such crime and sentence him to these many years in prison." That is definitely a line no one wants to have be read to them; especially if they are not responsible for the charges they are being accused of. People, as a part of an inherited nature, do not appreciate being wronged. If such a thing happens even in the most trivial life affairs, imagine being accused of something you had no part on? What if that "something" was pertaining to a matter of importance, namely a crime, and could end up ruining someone's reputation? Unfortunately, that situation is not as uncommon as we would expect or even desire. Henry Lee McCollum, North Carolina, was sentenced to death and spent 30 years in prison. Timothy Cole, Texas, spent 23 years in prison. Roy Brown, New York, was sentenced to life in prison and spent 15 years inside. Dale Brison, Pennsylvania, spent three of his 42-year sentence in prison (The Innocence Project). However divergent sentences these people had, ranging from the peremptory capital punishment to the lighter sentence of short three years (even though there must be no such thing as "short" when it comes to years of life in prison), they all have one thing in common: they were convicted for crimes they did not commit. And those only account for four of the current 341 cases listed on The Innocence Project website. 

The fact that these individuals were all targets of injustice is not the only thing they have in common. A second mutual element is that they didn't get to actually carry their entire sentences, which makes it obvious they were all exonerated. That isn't, however, exactly what makes them similar, though it is part of the reason. Probably the most important facet these citizens share is the fact that every single one of them was exonerated from their wrongful convictions because there was a misconduct of justice in their original trial process. The analysis of the entirety of these cases seems to confirm the accuracy of saying such as, "When justice fails, the innocent turn to their one true ally: science," (Amanda Burton's Killer Forensics). The appeal and consequent reopening of the cases brought to light there had been evidence all along pointing towards their innocence. That evidence came mostly in the form of scientific, or forensic evidence, such as bite-mark analysis, serology, hair analysis, and, more evidently, DNA (The Innocence Project). 

People tend to have the wrong idea about how forensics and everything it deals with works. There's a tendency to associate it with its own "world" and to give it a certain sense of glamour. The reason for that can partially be credited to the media. Crime drama is one of the most popular TV genres in the United States. Shows such as CSI, Law & Order, Criminal Minds, NCIS, just to name a few, reach the highest numbers when it comes to ratings. It is not only television; books and movies also tend to depict the proceedings of the criminal system in a way that may give layman the wrong idea about how the reality actually works. That does not apply exclusively to this particular case as the media in general shows things differently from what they actually are in order to foster an audience. In this particular case, though, it gives us the wrong idea of the criminal system, which might make us believe the actual system works in a way, when it actually is much different. Some call that the CSI effect. These shows make us think that the forensic field is infallible and widely acceptable. The truth is, that is not the case. Evidence that of a forensic nature faces real challenges, especially when it comes to its admissibility in court.

What could an individual in the situation of being under false accusations do then? What, or who, could they resort to? To answer that question, a better understanding regarding the system we have in place today and how it works is needed. To put it in the simplest way possible, a person can be charged with misconduct that ranges from civil to criminal cases. For the present purpose, the cases that are going to be focused on are the ones of a criminal nature. Those are dealt with very differently than are civil cases (United States Courts). The prosecution, being represented by the U.S. Attorney, presents the case before a grand jury, which has to come up with a final decision in form of a verdict (United States Courts). A key element in criminal trials is the presentation of evidence. In the United States, that practice is guided by rules modeled after the Federal Rules of Evidence (Rennison 220). 

While the premise of the Federal Rules of Evidence and its purpose is promising, "administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination," (Rennison) when it comes to actually applying it from paper to real situations, it turns out it is not exactly as pretty as it builds itself to be. A comparison that could possibly facilitate this understanding would be certain types of economic systems that have failed (and continue to do so) but which concepts are ideal and something to aim for. Their definitions are often followed by the word "theory" in dictionaries for a reason. In this case reality is quite the opposite of what is seen in writing, and this also applies to the case of evidence admission. 

Evidence that is to be admitted in court can be of many sources and kinds. Witness testimony is evidence; statistics are also evidence. The most important type for the present purpose, however, is physical evidence. To be more specific, scientific evidence. Scientific evidence is nothing more than a type that is produced according to scientific tests or studies (Gale Encyclopedia). Also known as forensic evidence, this type is perhaps the most peculiar one, as there still hasn't been a consensus when it comes to its validity. Many out there even claim it is not scientific at all. Two west coast professors; Saks from Arizona State University and Faigman from the University of California are active in advocating forensics does not conform to real science. They claim pattern identification disciplines (one of the many branches of forensics) have "little or no basis in actual science," and "neither borrow from established science nor systematically test their hypotheses" (Engdahl).

A study carried out by Peterson shows forensic evidence does affect court decisions, but its use still lacks a much needed standardization when it comes to evidence and offense type. The conclusion they came to was as follows, "in spite of the increased attention paid to forensic evidence over the past decade, there is little published empirical data identifying the types of evidence routinely collected, and the extent to which this evidence is submitted to and examined in forensic crime laboratories. There is even less research that describes the role and impact of such evidence on criminal justice outcomes" (Peterson). 

Not too long ago, I was a part of that group myself. The group that thought that everything was beautiful and worked perfectly in the "world" of the application of forensic science to courts, and there was simply nothing the professionals in that field had to worry about. I didn't know much about the justice system, and I thought, as long as it was available for use, every case made use of forensic evidence. The difficulties faced by this field first came to my attention during a talk with a Criminal Justice professor. While talking about the subject, he pointed out that many in Law did not believe Forensics to be an actual science. My first reaction was to be shocked, you would think those fields would go hand in hand like Science and Technology, but I found out that couldn't be further from the truth. The number of articles I stumbled upon while researching for this paper of people criticizing the use of scientific evidence in courts and how sometimes it might actually make things worse amazed me.

Among the specific attacks forensics faces are claims that, "the nonscience forensics sciences ( ... ) are scientific failures in the sense that science ( ... ) played little more than a rhetorical part in the development of these fields," or "absent any test that can be replicated by other researchers and independently verified by courts, forensic identification science is not really a science at all," Engdahl brings from Saks & Faigman in her response to their Failed Forensics: How Forensic Science Lost its Way and Hot it Might Yet Find It. The claim that there is no research behind forensics to back it up and that it is not a science at all is, at least, unfounded if not absurd. Crime Lab Report, an independent organization that analyzes common issues impacting the profession of forensic science (such as media coverage and public policy trends), is unsettled by what was thought to be due diligence failure from the part of Saks and Faigman when it came to the reviewing of available literature (Engdahl). "If they are unhappy with the fact that they could not find the evidence of research and scholarly review that they would expect, we would politely argue that they should have looked a bit harder ( ... ) the evidence they seek cannot be found in the New York Times, legal journals, or papers written by misguided academicians who have joined the chorus of forensic science critics hoping to bring attention to themselves and their universities...." (Engdahl).

Even with all the negative critiques, forensic evidence is the most reliable kind as it is the only one that can actually link a person to a crime scene (Houck). As long as the procedures and techniques are followed correctly and in accordance with a standard operational procedure, done in actual crime labs, repeated to avoid errors, they are the best source to assure someone was actually present in a place where a crime took place. Or, it could go the other way around and prove that a certain person was not there. That is way more reliable than, for example, witness's testimonies. There are many factors that can make a testimony faulty. First, the person can simply not remember exactly what it was that took place. Second, especially if the person was the victim, it becomes hard for them to have actual recollections. If they escape the fate of becoming murder victims and actually survive, they can end up so traumatized that they might claim their assailer to be the complete opposite of the perpetrator's actual physical appearance. And there is also the case someone might simply not tell the truth because they are either covering for someone or are the authors of the crime and lie simply with the objective of not incriminating themselves.

It is not that people who don't believe in forensics are wrong. Of course, like everything in life, it has to go through screenings, tests, and all sorts of validation processes before they become accepted. But all the tests done with the purpose of becoming "forensic evidence" are actual tests that existed long before and have other scientific purposes. The courts are just borrowing them because they offer something that can be used in order to make a case. Forensics is really just a name, a definition given to the use of science in courts, specifically. But the science itself was not created for this purpose. Saks and Faigman's claim that "forensic identification sciences ( ... ) became an instrument of law enforcement, largely controlled by police technicians and their superiors," (Engdahl) is absurd. Chemical identification tests have existed for centuries. Even though DNA science is somewhat more recent, it is still not something just discovered yesterday and only now being implemented. 

It gets even worse if on top of it all we have a corrupt system. That is the real circumstance around many criminal cases, one of them being the Avery case, featured in Netflix's hit documentary, Making a Murderer. In the first part of that case, which related to the rape of public figure Penny Beernsten, there was more than enough evidence to, at the very least, bring up questions about the case, make the people in the Sheriff's Department ask themselves if there were actual signs that somehow Avery was not responsible for the crime. But the exact opposite happened. In episode two of the Netflix series you see that there were conversations between the people in law enforcement, and they talked in a way as if to cover up for what they had done. Even when the actual perpetrator of the crime came to play, his involvement in the crime was constantly disregarded, they wouldn't even look into it because they already had "the right guy". Had there been stronger laws in place pertaining to the use of every piece of evidence gathered for a case in its actual courting procedure, the outcome could have been very different.

We would like to think the reason for the inadmissibility of available, readily evidence would be linked to motivations pertaining to its legitimacy, or the questioning of the possibility of it being tampered with. Of course, there is no such thing as a completely "black" system, and there are actual cases in which that is exactly just the situation. Unfortunately, however, the other side of that are cases in which people were wrongfully convicted simply because of law enforcement corruption, negligence, fraud, and misconduct, Steven Avery's being one of many cases. The sad reality is that there is evidence that said practice is not as abnormal as it should be (The Innocence Project). 

For that reason, forensics starts being attacked. Because it poses a threat to interests that might be guiding the conduct of the justice departments. Because the system is not actually only about bringing justice to its citizens, though it should be. Forensics should not be under attack; it should not be the target of questioning. On the other hand, efforts should be underway to make the admissibility of its evidence universal in all courts and cases. A first step would be to educate the general population around it. You can't just expect the people to watch CSI and know what they are dealing with. It's something that is going to take some time, but the importance of mandatorily incorporating forensic evidence into all prosecuted cases, without exception, is palpable and urgent. Every single person exonerated by The Innocence Project, including Avery, have forensics to give be thankful for. The Innocence Project shows exactly both points trying to be made: how invaluable forensics is and how it gets pushed aside because of corruption in the prosecuting process. In most of those cases the reason for the exoneration was because some sort of forensic evidence was not admissible at the time of the original trial. That it is just the type of evidence that ends up exonerating the person. But that happens years later. By then people have lost decades of their lives living in confinement and being punished for something they didn't do.

Claims by the forensics critics, like Saks and Faigman, are systematically being invalidated (Engdahl). Where the opposition claims that bias ends up corrupting the results of forensic examiners, research shows the truth to be the exact opposite (Engdahl). Again, showing Saks and Faigman's argument that research is absent in forensics to be far from the truth. "Even the slightest bit of effort would have allowed Saks and Faigman to find and summarize the groundbreaking work sponsored by the Midwest Forensic Resource Center (MFRC)," (Engdahl), work which results have been presented in both national and international conferences and that shows Saks and Faigman themselves fail at what they claim forensics fails (Engdahl).

Is this really not something to fight about? Just because it's not with you? Doesn't it bother you that your fellow citizen might be put in such a situation? I know it bothers me, a lot. Maybe more than it actually should. But what if it were you? What if it were a loved one? That is basically what happened in the Avery case. One day he was home minding his own business when the police came in and simply took him. And he sits in prison to this day. What's not to say that tomorrow that couldn't be you? Is this really something we shouldn't care about? What about the other way around? The fact that an innocent person sits in prison for something they didn't do means the actual perpetrator is free to do it again as many times as they want.

Something should be done about this, or there are going to be a lot of other Steven Averys, Roy Browns, Timothy Coles out there. There probably already are but we've never heard of them. Could this actual injustice not turn them into actual crime committers? Far be it from me to say I endorse and praise people becoming criminals for the way they are treated, that's entering a whole other social matter, but don't you think people would be so mad they end up disregarding everything? If they were imprisoned for something they didn't do and spent so much time in jail for that, what's to say it couldn't happen again? What's to say someone won't come to your door and take you into custody for a whole other crime? Steven Avery anyone? That's exactly what even the title of the documentary suggests "making" a murderer.

What I mentioned before about the Federal Rules of Evidence having this idealized side to it comes from the fact that, as always, there are exceptions to it, and those are exactly the places where these gaps can occur and an innocent person gets wronged because the "fairness" part of it wasn't played. As mentioned before, the rules determine what evidence may be admitted, for what uses, and under what conditions. This admissibility is controlled by a set of rules that govern security of the evidence, authenticity, and relevance (Houck). In a criminal trial, the government must provide evidence to convince the jury of the defendant's guilt. The defendant must be found guilty "beyond a reasonable doubt," which means the evidence must be so strong that there is no reasonable doubt that the defendant committed the crime (United States Courts). 

The Rules, however, do not generally apply in grand jury proceedings (Federal Rules of Law). But a grand jury is exactly the kind of jury of choice for these types of trials. The jury might press for the presentation of evidence or testimony, but only if they find it appropriate (Federal Rules of Law).  Now, how is the jury supposed to be responsible for such an important task? How can they judge if the production of one of those is important or not? This is not saying the jury is ignorant by all means, but it is natural people would be confused under such circumstances. Especially in these types of trials. If I were a jury member in a murder case, I wouldn't know what type of evidence to bring to court and which would be irrelevant. It shouldn't be the jury's choice. There is also another angle to consider, and this might be the most dangerous one because it is the one in which there's a greater possibility for a source of corruption. The Federal Rules say: " ( ... ) the rules governing privileges generally do apply at grand jury proceedings, and thus grand-jury witnesses may refuse to disclose information on the grounds that it is protected by attorney-client privilege," unfortunately, the ethical matter matter gets more important here. The same way a doctor can't disclose of information on their patients, even though in some cases that might actually bring some benefit to the patient, there's also the confidentially matter in legal issues. At some extent, doesn't it feel like this beats the purpose that, "the rules are designed to secure fairness, to eliminate unjustifiable expense and delay, and to promote the growth and development of the law of evidence so that truth may be ascertained and proceedings justly resolved" (Federal Rules of Evidence). Does client-attorney privilege ultimately beat having a fair system and preventing those privileges from bringing evidence into court that could exonerate someone? Or the other way around, not bringing something that could make a difference between decades in prison for someone and their freedom?

The U.S. court system still counts with what is knows as double jeopardy, which prohibits a person from being tried twice for the same offense. That could be either good or bad both ways. If you are found guilty of something but are innocent, it is bad not to have the chance of being tried again. It also can happen in another direction, a person who might have committed a heinous crime ends up being found not guilty and they can't be tried again for it. So on the one hand we have this unfounded attack on forensics when it actually makes all the difference in the life of the people who have been wrongfully convicted as well as their families. On the other hand, beyond the obstacles faced by the admissibility of the evidence there is still the complexity and subterfuge of the system to work around. 

It feels like such a pressing matter needs to be reiterated. Can you imagine being charged with a crime you didn't commit? Not only being charged but actually having to sit in trial and watch your rights being taken away from you right before your eyes? Can you imagine actually being convicted with that crime, receiving a sanction of maybe decades behind bars and sitting helplessly knowing there's nothing you can do about it. Even worse, can you imagine yourself in this situation knowing there's one (maybe even more) piece of evidence that could make that all go away. There's a bloody shirt, a footprint, hairs, anything that can make you be exonerated of all guilt beyond a doubt, but because the system won't allow for that evidence to be brought to court, you have to accept the fact that you are going to spend decades in prison? That is just unacceptable. Perhaps what society really needs is a reform on the criminal justice system. Perhaps that is even more urgent and pressing than the admissibility of forensic evidence in courts, and needs to be dealt with before any change can be made in the latter.  

