Fake Justice

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Repairing the System

Donald  Trump has ushered in the era of “fake news.” The only question is whether we should view Trump himself as  its creator  or its victim.  Now we see a parallel problem with Trump’s Attorney General Jeff Sessions– Is Sessions the enemy of “fake evidence” or its champion?  This NYT article by Jim Dwyer suggests he is its champion. https://www.nytimes.com/2017/04/11/nyregion/dental-molds-forensic-dentistry-research-bite-marks.html

By “fake evidence” I mean prosecution testimony that purports to be backed by scientific expertise, but in fact is  junk science. “Bite mark ” evidence is one example. Dwyer points out that twenty-one defendants nation-wide have been  convicted on the basis of  testimony by “experts” that their tooth impressions matched those found at a crime scene, only to later have the conviction overturned  when DNA proved the defendant innocent.  There is also “hair sample” analysis. A FBI study found  that the expert testimony on hair matches in their sample was false in 96% of the cases.  Ninety-six percent!!

And other formerly well-respected types  of forensic evidence, like handwriting identification and  tire tread matching, have also come under suspicion The Justice Department had until recently been working with nonpartisan  groups to improve the quality of “expert” testimony on forensic science. They seemed to be making good progress until President Trump named Jeff Sessions as his Attorney General. Sessions promptly disbanded the nonpartisan National Commission of Forensic Science and suspended an ongoing internal Justice Department review of the use (and misuse) of forensic science in closed cases.

The key issue here seems to be who should decide what constitutes good science in the use of forensic evidence– the scientists or the police and prosecutors?  Sessions, a former prosecutor,  has made clear where his loyalties lie. When  a Senator,  his reaction to a scathing report by the National Academy of Sciences (NAS) on the misuse of forensic evidence was disquieting: “I don’t think we should suggest that those proven scientific principles we have been using for decades are somehow uncertain.” But the NAS report had concluded that the hallowed “principles” Sessions  was defending were in fact mostly junk science.

I  link this issue to a larger malaise that I think has infected our justice system.  Even though we mouth the principle that every defendant is innocent until proven guilty, the reality is a conviction-driven system where the presumption of guilt attaches as soon as the  police  convince themselves they have the “bad guy” in custody.  From that point on, the system uses  a variety of techniques to get a conviction– denial of bail, over-charging to induce a plea to a lesser offense,  aggressive interrogations aimed at confessions, and questionable  eye witness identifications  are all available tools.  And now we find “fake evidence” also allows prosecutors to put  a sophisticated veneer on  what may be little more than a policeman’s  “hunch.”

We can talk about systemic reforms all we want, but I have come to think that the problem goes beyond  shoddy procedures;  the  deeper  problem  may be that police and  prosecutors  feel they are infallible in identifying  guilty defendants.

In a recent post I told the story of the Norfolk Four, four sailors who made coerced confessions to a rape and murder DNA later showed they did not commit. https://guileisgood.com/2017/02/22/to-err-is-human/  The police started with one defendant who confessed after 9 hours of aggressive  interrogation, but later DNA testing showed him innocent of the rape.  So the police decided, not that he was innocent, but that he must have had an accomplice.  A second sailor was arrested and he too eventually confessed, but his DNA also proved him  innocent. The police reacted by arresting another “accomplice.”  And so the story continues.  What shocked me most about the case was that, even though the Norfolk Four were all  finally released from prison, no official– police officer, prosecutor, trial or appellate judge–  ever admitted that an error had been made. Police and prosecutors have to own up to the reality that they are not infallible.

Of course, it’s somewhat presumptuous to believe that intelligent police and prosecutors are not aware of  the human propensity to make mistaken judgments. This realization, however, suggests a more sinister  explanation for prosecutor use of  unreliable evidence to convict defendants of crime– one that emphasizes  the similarity between “fake evidence” and “fake news.”  Maybe it’s not a question of a misguided  prosecution confidence that they are using shaky evidence to convict defendants they feel are guilty, but a callous lack of concern about convicting the innocent so long as someone is held responsible for the crime.  Better that we punish the guilty than the innocent, but even more important that someone be found guilty so the system will appear to be doing its job.

It just might be that the era of “fake justice”  has begun.



  1. Fake justice. Excellent spotlight on a systemic problem within our criminal justice system. Assuming most law enforcement personnel, including prosecutors, recoil at the notion of exalting conviction over innocence, is there any deeper explanation for the prevalence of “fake” justice? Perhaps a racial element at play? I wonder what statistics say about the correlation between instances of “fake” justice and its prevalence in the criminal justice’s treatment of minorities.


  2. Nice critique – your comments echo a long line of academic theorists who hold that effective deterrence doesn’t depend upon punishment of the guilty (see, Foucault, et al.). It is sufficient that the consequences of transgression be visible for all to see (e.g., public lynching). It is only necessary that a system advertising itself as fair, as E.P. Thompson observed, occasionally be fair.


  3. Dede Donovan says

    Thanks, John. I hadn’t realized that handwriting analysis and tire treads had joined eyewitness IDs in the category of unreliable evidence.



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