Criminal Law and Science

In Superstition and Force, Henry Charles Lea relates the story of Joannes Demarest, a coroner in Bergen County, NJ in 1767. Demarest and a coroner's jury were tasked with inspecting the body of Nicholas Tuers and determining whether he had been murdered. At the time, a common superstition held that if a murderer were to touch the body of his victim, the corpse would bleed. One of the jury members decided there was nothing to do in this case but submit Harry - a slave and the prime suspect - to this ordeal (commonly known as bier right). The jury member touched Tuers body; nothing happened. When Harry touched the body, though, it bled. Demarest, by his own admission a skeptic, asked for the experiment to be repeated and reported that, upon Harry's touch, the corpse did indeed bleed from its nostrils.

Bier Right (sketch) by Jeno Gyarfas (1857-1925). Taken from Wikimedia Commons.

The use of bier right was not uncommon, nor was it restricted to the 18th Century. Lea mentions a number of examples of bier right that occurred after the Civil War, as well as one case in 1860 where relatives of the deceased begged the coroner to exhume the body so that they might test the guilt of a suspect. Thankfully, their exhortations went unheeded.

Before I lose too many readers, I ought to clarify: I don't mean to make a direct analogy between practices like bier right and the sciences that are currently applied in criminal law. Bier right and other more ancient ordeals were superstitions perpetuated by tradition and religion. These methods were based on a stubborn belief in the supernatural, and, though they persisted for quite a long while, they were critiqued and discouraged even in their own time. In fact, in 1215 Pope Innocent III forbade Catholic clergy from administering the ordeals of boiling water (in which a person would fish around in a cauldron of boiling water for a small stone or ring - their innocence being determined by whether god protected them from severe burns) and hot iron (in which a person would carry red-hot iron for a small number of steps). Historical records indicate that the clergy didn't pay much mind to Innocent III's edict.

Pope Innocent III: thwarted reformer. Taken from Wikipedia.

There may not be a directly analogy between atavistic ordeals - buttressed by blind belief - and modern science, but there is one parallel worth pointing out. Like trials by ordeal, science (as presented in courtrooms) is a form of evidence that refuses doubt. This is true for a number of reasons. The error rates of particular branches of forensic science have never been determined. Juries made up of laypeople (not to mention judges!) may not have the education or training to question the evidence that experts present. Defendants may not be able to afford experts of their own or a lawyer well versed in crossing experts.

Any evidence labelled scientific and any witness admitted as an expert immediately gain serious credibility and value. The failure to interrogate what passes for science in criminal courtrooms puts innocent people in jail and creates (even more) disparate outcomes for poor and rich defendants.

In the coming weeks, I'll be writing a series of articles about different applications of science in criminal law. As a teaser, let me leave you with three links.

(1) An article in the NY Times about "behavior analysis" as practiced by the TSA. 

(2) A piece by NPR's Alix Spiegel about the misuse of the Psychopathy Checklist-Revised (PCL-R), a test designed to diagnose psychopathy that is now used by several states (including California) as a major factor in parole hearings.

(3) David Grann's tragic article about Cameron Todd Willingham and the role that arson investigators played in his wrongful conviction. If you're going to click one link, choose this one.

Thanks for reading.

J

Taken from Cameron Todd Willingham - Innocent and Executed.