By Ana Swanson | The Washington Post | July 20, 2015

We like to believe that decisions made in U.S. courts are determined by the wisdom of the Constitution, and guided by fair-minded judges and juries of our peers.

Unfortunately, this is often wishful thinking. Unsettling research into the psychology of courtroom decisions has shown that our personal backgrounds, unconscious biases about race, gender and appearance, and even the time of day play a more important role in outcomes than the actual law.

Adam Benforado, a professor of law at Drexel University, describes these unsettling problems with the justice system in the recently published book “Unfair: The New Science of Criminal Injustice.” The book uses psychology and neuroscience to examine and expose the illogical and unfair ways that judges, jurors, attorneys and others in the legal system make decisions about who is sent to prison, and who walks free.

Benforado’s research shows that mistakes in the criminal justice system are more common than we like to think, and that our personal biases play a disturbingly strong role. He also argues that there are clear and easy steps that we could follow to limit these injustices, if we care to take them. Continue reading »

By Nancy Gertner | The New York Times | March 30, 2015

Hon. Nancy Gertner, CLBB faculty member, former federal judge and Professor at Harvard Law School, participated in a dialogue on how forensic science can be made more dependable and professional in The New York Times Room for Debate column. Read the debate, “Judging Forensic Science,” here.

The National Commission on Forensic Science was formed in response to widespread concerns that forensic evidence that lacked any meaningful scientific basis was being regularly permitted in trials. The concerns were not just about the “expert” witnesses, but about the judges who, according to the National Academy of Sciences report that led to the commission’s creation, have been “utterly ineffective” in assessing the quality of research behind the evidence.

The evidence used to win convictions has often been based on bad science. In about half of the cases in which D.N.A. evidence led to exoneration, invalid or improper forensic science contributed to the wrongful conviction.

Appeals courts almost invariably affirm trial judges’ admission of evidence that has been challenged, unless the judge abused his or her discretion by, in the words of one ruling, making a decision that “no conscientious judge, acting intelligently, could honestly have taken.” That’s hardly a strict standard.

Sadly, judges are more likely to reject scientific evidence in civil cases, in which both sides can have substantial resources, and in which there is a discovery process that enables each side to find out about the other’s case far in advance of trial. In an arson case I presided over as a judge, I could find no criminal cases in which there had been a challenge to the admissibility of evidence from dogs who supposedly could sniff out fire-spreading fuels.

The national commission is doing more than exhorting judges to do the right thing, which sadly did not get very far. It is bringing together representatives of the Department of Justice, the National Institute of Standards and Technology, defense lawyers and experts to set standards for judges, and prosecutors, to follow. If the Justice Department doesn’t try to admit evidence of questionable validity, then state and local prosecutors may follow suit. That could go a long in solving the problems with forensic science.

Read Judge Gertner’s post originally published in The New York Times.

By Owen Jones, Anthony Wagner, David Faigman, and Marcus Raichle | Nature Reviews Neuroscience | September 12, 2013

Abstract:

Neuroscientific evidence is increasingly being offered in court cases. Consequently, the legal system needs neuroscientists to act as expert witnesses who can explain the limitations and interpretations of neuroscientific findings so that judges and jurors can make informed and appropriate inferences. The growing role of neuroscientists in court means that neuroscientists should be aware of important differences between the scientific and legal fields, and, especially, how scientific facts can be easily misunderstood by non-scientists, including judges and jurors.

This article describes similarities, as well as key differences, of legal and scientific cultures. And it explains six key principles about neuroscience that those in law need to know.

Read the full paper here.