Guest opinions. One decision that received little attention this season from the U.S. Supreme Court was Certificate In a lawsuit challenging a criminal conviction based on bite mark evidence, a specialty based on practice and skill, not scientifically provable methods, even the expert who testified in that lawsuit recanted his expert testimony based on the latest science.
On July 2, 2024, the U.S. Supreme Court Certificate in McCrory v. State of AlabamaIn that case, a man was imprisoned for 40 years based on scientific testimony, which experts later retracted.
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An ideal case to determine whether bite mark analysis is ultimately inadmissible has been granted by the U.S. Supreme Court. But why?
The slow disappearance of bite mark evidence
As early as 2005, Congress had asked the National Academy of Sciences to review the reliability of forensic science, including bite mark testimony. The NAS report (2009) concluded that “there is no scientific basis for identifying individuals and excluding others” from bite mark evidence. In 2016, the President’s Council of Advisors on Science and Technology (PCAST) produced a report to evaluate which areas of forensic science from the NAS report have now been improved enough to be used in court, i.e., are “basically valid and reliable” for use in court. The report found that:
“Bite-mark analysis does not meet basic scientific standards of validity and falls far short of meeting such standards,” the report concluded. Furthermore, the report concluded that “the prospects for developing bite-mark analysis into a scientifically valid method are low.”
In refusing to hear the case, Justice Sotomayor foreshadowed the Court’s action in her ruling.
Some states have already addressed this thorny issue with post-conviction laws that provide an efficient remedy for innocent people who have been convicted based on forensic science that is now largely rejected by the scientific community.
The court further noted that 30 cases have already been overturned due to the use of bite mark testimony.
The U.S. Supreme Court has always been a little hesitant to admit that while it may be a superstar in the legal field, it tends to be even less adept than society at understanding science and technology. Unable to take on this case, the long-delayed decision was left to state legislatures, Habeas Corpus Laws that allow petitioners to seek a new trial based on discredited science or testimony that was at least partially responsible for a criminal conviction, which literally means that a prisoner is asking for his or her own body to be set free so that he or she can appear in court and seek a new trial or exoneration. Junk Science Habeas Corpus (Texas is a pioneer in passing such a law.) But it will likely be a decade or so before such laws are passed in each state to help those who may have been wrongfully incarcerated.
This raises major concerns that the U.S. Supreme Court is reluctant to address technology about which it has little or no understanding. Just this week, they Chevron The deference standard means that courts can defer to agency expertise in issues where the statute is vague or unclear. (Courts can still adopt an agency’s interpretation of the statute, but they are no longer bound by established principled ways of doing so.) This reversed the result of increased reliance on agencies dealing with highly specialized scientific subject matter, such as the EPA and FDA, which had the highest number of Chevron deference decisions.
Technology phobia
A few years ago, I cited several examples of cringe-worthy comments made by the justices about technology from U.S. Supreme Court decisions. In each case, the justices were not particularly concerned about being “tech-savvy.”
On fundamentalism and emerging technologies
Justice Alito, the Supreme Court’s most analogical advocate, summed up the Court’s historical handicap best when he mocked Justice Scalia in 2011: “I think what Justice Scalia would want to know is what James Madison thought about video games. Did he enjoy video games?”
About Analogy
“I think there are very few pre-digital searches for which similar items would not be found,” Justice Breyer said during oral argument in Riley, “and in most cases the issue is one of quantity and how far one is willing to look.”
About GPS
During oral argument in Reilly, Justice Breyer interrupted the discussion of smartphone GPS functionality with another jokey analogy: “As much as I hate to admit it, my wife might leave little notes on my phone. [with directions] In your pocketRiley v. California
intellectual property
For example, Justice Kennedy appeared completely unaware of the new definition of “troll,” and during oral argument in eBay v. MercExchange tried to hide his ignorance with a joke asking whether trolls were “scary creatures lurking under bridges, or just fishing techniques,” which raised eyebrows in the patent community, where “patent troll” has become a cliché.
Computer Programming
For example, in 2006, Chief Justice Roberts questioned whether eBay had actually been invented. He asked attorney Seth Waxman what eBay was invented, and when Waxman explained that it was an electronic marketplace, Chief Justice Roberts blithely replied, “So it’s not like he invented the internal combustion engine or anything like that. That’s very vague.”
When Waxman countered Roberts by pointing out, “I’m not a software developer, and I have reason to believe that neither is your chief justice,” Roberts fully explained his disdain for technology: “I may not be a software developer, but I read inventions and I think they’re very good at what they do.” [of eBay]”That means displaying pictures of products on a computer network, picking out what you want, and buying it,” he said, before adding, referring to his multi-billion-dollar internet company, “I could have done that.”
This is a question from a guy asking four years later what the difference is between a pager and email.
About the Game
“But they also try to educate themselves. In her first year on the bench, there was a case about violent video games, and the justices, who had never played the games before, jumped in and tried playing them,” Kagan said. “That was kind of crazy,” she said, declining to say which games they played.
so what?
The risks of having “what is the law” determined by people who do not understand the facts and often the technology at stake may be too great.
Unfamiliarity with the social context of technology
“Isn’t it a bit worrying that arguably the most important people in America are making important decisions about things that are embarrassingly unfamiliar to them?” says Amar Toor of Switched.
Not understanding the development stage of technology
Justice Anthony Kennedy wrote in his opinion for the Supreme Court that the prevalence of these new media tools may lead some people to consider them “a necessary means of self-expression, even self-identification.”8 But he also argued that the Supreme Court lacked “the knowledge and experience” to “adopt a system that could be used to justify its use.”[a] Wide range of holdings”
Justice Kagan made the comment in response to lawyers’ arguments that GPS was a form of privacy invasion in 1984, but that expectations of privacy have changed since then, to which she countered: “Mr. Given, that seems to me to be going too far. I mean, when you think about this, when you think about a little robotic device today that tracks you everywhere except your home 24 hours a day and reports everything you do to police and law enforcement, I don’t see how you can say that we don’t have an expectation of privacy, and that we don’t think that our privacy rights are violated by this robotic device.”
What next?
With the U.S. Supreme Court avoiding difficult choices regarding the legal reliability of some areas of forensic science, perhaps it is time to require the Court to take annual CLE on technology and demonstrate competency with technologies commonly used in society. Declaring it is the Supreme Court’s job to determine what the law is without needing the opinion of agency experts on legal interpretation of the law and dismissing Chevron deference further ensures the Supreme Court’s isolation from scientific and technological expertise, which is not a good trend in a society where the adoption of emerging technologies is expected to continue.
To read Professor Sutton’s other articles, please see below. https://profvictoria.substack.www.
Professor Victoria Sutton (Lamby) is a Professor of Law at Texas Tech University. In 2005, Sutton became a founding member of the Policy Advisory Committee of the National Congress of American Indians Policy Center to help Native American communities address and lead policy issues that affect Native American communities in the United States.
About the author: “Levi \”Calm Before the Storm\” Rickert (Prairie Band Potawatomi Nation) is the founder, publisher and editor of Native News Online. Rickert is the recipient of a 2021 Native Media Award for best column in the print/online category from the Native American Journalists Association. He serves on the advisory board of the Multicultural Media Correspondents Association. He can be reached at levi@nativenewsonline.net.”
Contact: levi@nativenewsonline.net
