In 1999, the National Institute of Justice (NIJ) scrutinized the status and needs of the forensic-science community, concluding that its training needs were “immense.” The development of new technology, equipment, methods, and techniques demands that forensic scientists stay up-to-date, necessitating that the forensic-science community broaden its scope of training. NIJ concluded that “[f]orensic professionals need to take advantage of the explosion in information technology and the ability to use it to exchange information and deliver training,” and provided several recommendations. Noted authority on expert testimony and scientific evidence Carol Henderson, a law professor with previous experience at the Federal Bureau of Prisons and the United States Attorney’s Office, assumed leadership in developing a program to meet some of the needs specified by NIJ. The National Clearinghouse for Science, Technology and the Law at Stetson University College of Law (NCSTL) was born. NCSTL became a nationwide organization that provides information-sharing and
professional development not only to forensic scientists, but also to lawyers, judges, law enforcement personnel, and the general public.
Page 1 of 3
There have been several significant social, legal, and scientific changes in the criminal justice system and the forensic sciences since the 1970s that have dramatically altered the contours of the law-science interface. While this Article highlights several scientific and technical breakthroughs that have fundamentally enhanced the types of assistance that forensic science provides to the criminal justice system, its primary emphasis will be on the key legal, cultural, professional, and organizational changes that have shaped how science is used in today’s criminal justice system. DNA typing is, without question, the single greatest forensic scientific breakthrough in the past century, but there have been several other key changes, such as the following: landmark Supreme Court decisions have modified how our courts evaluate and admit scientific evidence; professional initiatives have addressed the credentials of forensic examiners, the quality of laboratory operations, and the accuracy of scientific evidence testing; and legal and popular culture has created an unprecedented awareness of, and appetite for, forensic science.
“[T]he machine does not isolate man from the great problems of nature but plunges him more deeply into them.” Nowhere is this more apparent than in the struggle between rules of law and scientific and technological advances. Our court system’s response to this challenge is scrutiny and adaptability, two traits evidenced by the ebb and flow of requirements for authentication of digital images.
This Article examines the evolution of authentication requirements for digital images, with particular emphasis on the impact of State v. Swinton. Part II of this Article provides an overview of digital images as well as the general rationale for their authentication. Part III reviews past statutory and common law rules for establishing the authenticity of such evidence. Part IV summarizes Swinton, a 2004 case from Connecticut which represents a major development in this area of law. Part V applies the holding from Swinton to a new type of digital evidence, virtual autopsies, in a theoretical context. The Article concludes in Part VI.
This Article posits a substantial divide between scientific findings and the courtroom practice in cases where mistaken identification is alleged. After tracing the chronicity and significance of the phenomenon of mistaken identification, this Article reviews the science of perception and memory and the mixed and decidedly inadequate response of the courts to that body of knowledge and concludes with an assessment of the limits of cross-examination and the need for sophisticated advocacy in cases where eyewitness testimony is at the core of the prosecution theory of guilt. Put most simply, the efficacy of the “great engine” is overstated, and it is less likely to achieve its stated purpose than the little engine that could.
“[A] pertinent consideration [in determining whether a theory or technique is scientific knowledge that will assist the trier of fact] is whether the theory or technique has been subjected to peer review and publication.”
—Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993)
The phrase “peer review” connotes the evaluation (“review”) of scientific or other scholarly work by others presumed to have expertise in the relevant field (“peers”). Specifically, and most to the present purpose, it refers to the evaluation of submitted manuscripts to determine what work is published in professional journals and what books are published by academic presses (in which context it is also called “refereeing,” “editorial peer review,” or “pre-publication peer review”). Occasionally, however, the phrase is used in a much broader sense, to cover the whole longrun history of the scrutiny of a scientist’s work within the scientific community, and of others’ efforts to build on it, a long-run process of which peer review in the narrower sense is only a small part.
It is a singular privilege to have my name associated in any way with that of William Reece Smith. He is a true giant of our profession—nationally and internationally—and, of course, a great leader in this community. Most importantly, he teaches us, by his commitment to access to justice and his lifetime of pro bono and public service work, what being a lawyer should be about. Sir, by our presence here tonight, we all honor your continuing and extraordinary professional example.
I am truly honored to join you today in dedicating the William R. Eleazer Courtroom. Let me first congratulate the Stetson Centers for Excellence in Advocacy and Elder Law for making this cutting-edge, optimally accessible courtroom a reality. I also want to congratulate Dean Darby Dickerson for guiding Stetson University College of Law’s proud tradition of advocacy to new heights. This year’s victory at the Willem C. Vis International Commercial Arbitration Moot Court competition in Vienna is only one of the recent testaments to this school’s tradition of advocacy training.
More than 1,300 Americans died in the wake of Hurricane Katrina. Several months following the natural disaster, almost 200 bodies remained unclaimed or unidentified. In response to cries from city officials and citizens to provide these unclaimed Americans a “proper burial,” New Orleans officials requested a significant amount of funds from the Federal Emergency Management Agency (FEMA) to build a mausoleum for the bodies. Local officials, citizens, and the federal government went to great lengths to protect the dignity of the unclaimed bodies found after this natural disaster.
Instead of this response, imagine that someone suggested that we dissect the unclaimed bodies from Hurricane Katrina, place them in various extreme and sometimes unflattering poses in an exhibit, and allow the public to view them for a price. That person would likely be accused of insensitivity and other violations of basic social values. Why, then, has our society legitimized exhibits that display the dissected bodies of unclaimed Chinese people?
In an average year approximately four million American women experience “a serious assault by an intimate partner.” One-third of women seeking hospitalization in America do so because of such domestic violence. Many women feel that a restraining order is an effective way to combat abusive behavior at the hands of their boyfriends, spouses, or partners. Thus women constitute a majority of the beneficiaries of all restraining orders granted in this country. In fact, in protection order cases involving spouses or dating couples, ninety percent of the defendants are male.
“I beg you take courage; the brave soul can mend even disaster.”
In the Ojibwa tongue, the term for disaster is whangdepootenawah: “an unexpected affliction that strikes hard.” When disasters do strike, it immediately becomes obvious that the legal issues involved in local government disaster planning are some of the most misunderstood and confusing aspects of the entire process of disaster preparation and recovery. This makes the prudent involvement of the local government attorney essential. The local government attorney is encumbered with the responsibility of understanding and interpreting the seemingly
conflicting and ever-changing body of federal, state, and local regulatory laws, rules, and guidelines. It is likewise the local government
attorney who is called upon to be the bearer of bad news regarding the legal consequences of a public entity’s failure or inability to execute an effective disaster-recovery plan properly. This Article will explore the evolving body of emergency management law, as well as the practical, and at times impractical, application of that law. The Article’s analysis of state law will focus on Florida, but its discussion of the challenges that a disaster poses should resonate with all local government attorneys.