Personal experience tells us that being a “smart consumer,” means we should use products and goods that have been tested at the factory, retested by the government (FDA, Dept. of Transportation, Consumer Digest, Ralph Nader (sorta ) and other independent means rather than the seller’s promises of ” use XXY toothpaste and get the cleanest teeth ever.” As we found out that the Chinese cleaning agent is leadbased substances. Even after proper scrutiny the public gets the short end of the reliability stick. Some even die from defective machinery (GM) where allegations of cover-ups still appear in the media.

Using the above scheme in a criminal justice context, I would say the general public is our consumer market for justice. Our Constitution and its progeny (subsequent amendments, interpretive case law and statutory regulation)  acts as a road map (blue print) for public and individual protections from overbearing an insensitive state or federal governmental structure. Of course all of this social policy stuff takes a few centuries to even things out. Science is generally not a part of this recipe. Until maybe 1993 or so when the fed courts came up with a quasi “scientific” threshold for the courts to use (the Daubert standards) that has been legally interpreted (or ignored or misunderstood) since in so many jurisdictions as to make one’s head spin.

A fairly recent trial scenario involved the clash between (1) “ipse dixit” forensics, (2) a newer technique that allows measurements which creates “data” and (3)  this technique being used to distort the  “data.”

All in one case. All three were accepted in the same court room.

This boils down to:

(1) having no data the first forensic expert says “trust me, I can see what I am talking about,” (2) a second expert, using a validated commercially used photo program  creating  data in opposition, (3) a third forensic expert, using the same program, “cooking” the data to support expert (1).

The trial judge chose (1) and (3) to be “credible.”

Now, whose fault is that? Read the following Law Review article on this question.

USC Law Review_Murphy holds the opinion that the  judiciary has been inept (or at least unprepared to handle “First Generation” forensics (the “believe what I say” kind)  and is pessimistic the “Second Generation” forensics conversion, which is the 1G  struggling to achieve quantifiable, measurable, and reproducible opinions (the scientific method). Added by me.  1G and 2G are  still “fakeable.” See this week’s latest on that last part……. 

DNA technician allegedly tampered with records at Houston crime lab http://www.khou.com/news/crime/DNA-technician-allegedly-tampered-with-records-at-Houston-crime-lab-263915591.html …

DNA Lab Fraud in TX. Fast forward to just past the 80 minute mark http://houstontx.swagit.com/play/06202014-548