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13 Cardozo L. Rev. 361 (1991 - 1992)
What DNA Fingerprinting Can Teach the Law About the Rest of Forensic Science

handle is hein.journals/cdozo13 and id is 383 raw text is: WHAT DNA FINGERPRINTING CAN TEACH THE LAW ABOUT THE REST OF FORENSIC SCIENCE Michael J. Saks* and Jonathan J. Koehler ** I. INTRODUCTION The most important legacy of DNA fingerprinting and the de- bate surrounding it will likely be a spillover of standards of empirical testing and statistical rigor to many other forensic sciences which, somehow, have exempted themselves from the conventional standards of scientific rigor. I In short, the debate over DNA fingerprinting may compel the rest of forensic science to become more recognizably scientific.2 After a bumpy start, the debate over DNA typing has proceeded with unusual thoughtfulness. The earliest American cases admitting genetic identification evidence did So on the strength of a few expert witnesses whose testimony was received with little or no challenge.' * John D. Drinko Visiting Professor, Ohio State University College of Law; Professor of Law, University of Iowa College of Law. Ph.D., Ohio State University; M.S.L., Yale Law School. ** Assistant Professor, Department of Management Science and Information Systems, Graduate School of Business University of Texas. Ph.D., University of Chicago. I For discussions and evidence bearing on the point that appropriate scientific standards have not been applied in other forensic sciences, see, A. MOENSSENS, F. INBAU & J. STARRS, SCIENTIFIC EVIDENCE IN CRIMINAL CASES 6-9 (3d ed. 1986); J. PETERSON, E. FABRICANT, K. FIELD & J. THORNTON, CRIME LABORATORY PROFICIENCY TESTING RESEARCH PRO- GRAM, (1977); Risinger, Denbeaux & Saks, Exorcism of Ignorance as a Proxy for Rational Knowledge: The Lessons of Handwriting Identification Expertise, 137 U. PA. L. REv. 731 (1989); Symposium of Science and the Rules of Evidence, 99 F.R.D. 188 (1983). The paucity of empirical research concerning the accuracy of the underlying assumptions of many of the most familiar forensic sciences is immediately evident to anyone who tries to search for such literature. 2 The authors wish to thank Professor Paul C. Giannelli, who is the Albert J. Weatherhead III & Richard W. Weatherhead Professor of Law at Case Western Reserve Uni- versity Law School, for first sharing the prediction that the DNA debate may make the other forensic sciences more recognizably scientific. 3 See, e.g., Andrews v. State, 533 So. 2d 841 (Fla. Dist. Ct. App. 1988), review denied, 542 So. 2d 1332 (Fla. 1989) (holding that genetic fingerprint evidence was admissible); State v. Schwartz, 447 N.W.2d 422 (Minn. 1989) (setting out the conditions for admission of DNA fingerprinting evidence); King v. Tanner, 142 Misc. 2d 1004, 539 N.Y.S.2d 617 (N.Y. Sup. Ct. 1989) (holding results of DNA test, which indicated with 99.993% certainty that alleged fa- ther was child's father, admissible in slander case); People v. Wesley, 140 Misc. 2d 306, 533 N.Y.S.2d 643 (Albany County Ct. 1988), aff'd sub nom. People v. Bailey, 156 A.D.2d 846, 549 N.Y.S.2d 847 (1989) (holding results of DNA fingerprinting test in criminal trials admissible);

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