Lisa Waters
Volume 77, Issue 3, 555-612
In the late twentieth century, the boom of forensic disciplines in criminal prosecutions helped drive mass incarceration to an all-time high. Yet scientific and legal inquiry revealed a disturbing truth: Most forensic methods accepted in criminal courts are entirely lacking in empirical support or scientific foundation—in other words, “junk science.” Forensic proponents have recently turned to computer algorithms, costly equipment, and proprietary trade secrets litigation to defend dubious techniques, ushering in a second wave of forensic reliance. But automated technology has masked rather than cured the foundational infirmities in these forensic fields.
This Article examines the growing trend of automated forensics using firearms examination as a case study. The Article demonstrates that firearms examination meets the criteria for junk science, then shows how its proponents are turning to virtual imaging and comparison technology in an attempt to rehabilitate the discipline. But automation fails to correct for underlying scientific shortcomings, instead obscuring them while adding further potential for mechanical and algorithmic error.
Troublingly, the turn to algorithms in defending firearms examination is far from an isolated strategy. Similar efforts are seen with policing tools such as facial recognition technology, DNA analysis software, and risk assessment algorithms. This Article illustrates how the traditional means of challenging forensic evidence with case-by-case litigation are ill-equipped to address the rise in automated forensic technology and examines the risk of automation reanimating and perpetuating the injustices borne of our troubled forensic history. The Article contends that we must eliminate junk science from criminal courtrooms, while also proposing an intermediate path forward through reforms that prioritize transparency, meaningful scientific and legal scrutiny, and the rights of the criminally accused.