Assessing the Quality of Forensic Evidence: Combating Racial Biases

Racial bias during examinations of forensic evidence is problematic as it directly impacts the fairness and accuracy of criminal justice outcomes. There are well-documented instances where poor-quality forensic evidence has been used to convict innocent people because of assumptions unrelated to the evidence.

In fact, studies have found that the quality of forensic evidence is more likely to be misjudged when the subject of a criminal investigation is a person of color. This can lead to unfair convictions due to incorrect assessments. It is essential to address this problem and devise strategies to ensure that all accused individuals receive fair trials and access to reliable forensic evidence regardless of race or ethnicity.

“In more recent years, we’ve seen examples of forensic evidence being used to exonerate, but traditionally it’s been used more to investigate and to inculpate suspects,” explains Dr. Jeff Kukucka, associate professor of psychology at Towson University. “There’s been a lot of research on other causes of wrongful convictions and miscarriages of justice. Most notably, I witnessed that eyewitness misidentification is the most common cause of wrongful convictions. Psychologists have been studying those for 40 to 45 years. Another common cause of wrongful convictions is false confessions, which again, psychologists have been studying for 30 years or more.”

However, there is another large cause for wrongful convictions. “It wasn’t until maybe 15 years ago or so that psychologists started paying attention to the psychological causes of forensic science errors, which is actually the second most common cause of wrongful convictions. Over the past decade, in particular, we’ve realized that forensic science is not as foolproof as it looks on TV, and that those decisions and judgments are made by people and people are only as good as their brains are. And we know that people make mistakes,” says Dr. Kukucka. “However, we’ve increasingly discovered that those mistakes affect not only the living but also the deceased, which has huge ramifications for not just criminal investigations, but determinations of whether a crime was even committed at all.”

Most of the time, these mistakes are due to an unconscious bias versus overt racism. “The analogy that I often use to explain cognitive bias is that it’s a lot like sneezing. It’s something that we all do because our brain makes us do it. We do it for a good reason, and it’s not something we can just choose not to do. So we’re never going to completely eradicate it. But there are things we can do to make it less likely to happen or less severe when it does happen,” explains Dr. Kukucka.

“In forensic science, no amount of goodwill or willpower is going to make cognitive bias go away because we can’t override how our brain works. The more effective solution is to take preventative measures to keep it from happening in the first place. Akin to taking your allergy medicine, forensic scientists need to make sure that they don’t expose themselves to risk factors for bias.”

Thankfully, professionals like Dr. Kukucka are working hard to help change the field of forensic science to help remove as much bias as possible. “There’s a lot more subjectivity involved in forensic science than people would think. There’s a lot less scientific basis for some of the techniques. What we’re trying to do is find solutions that benefit everyone, and will help increase the general trust in forensics,” says Dr. Kukucka.

Meet the Expert: Jeff Kukucka PhD

Dr. Jeff Kukucka is an associate professor of psychology at Towson University. He graduated summa cum laude and Phi Beta Kappa from Loyola College in Maryland, where he became involved in research on the causes and consequences of wrongful convictions. He then went on to earn his PhD in psychology and law from the CUNY Graduate Center.

His research focuses on decision-making, expertise, and forensic sciences. He has published numerous articles in journals such as Law & Human Behavior. In 2021 the Journal of Forensic Sciences published his paper on cognitive bias in forensic pathology decisions.

Cognitive Bias in Forensic Science

Cognitive bias is a mental shortcut that may lead people to inaccurate conclusions or judgments. These shortcuts are based on patterns of prior decision-making and beliefs, and can often lead to systematic errors in reasoning.

This phenomenon has been found to manifest itself in many areas, including forensic science: “To many people, bias is a very scary word because it implies misconduct, prejudice, or carelessness. But that’s not what psychologists mean when we use the word ‘cognitive bias.’ It’s something that affects us automatically and is a natural part of how our brains process information. Most of the time, it’s actually a very good thing because It helps us process information more quickly. But it can be problematic in situations where there is a right answer, and getting the wrong answer can carry devastating consequences, such as is the case in the forensic sciences,” explains Dr. Kukucka.

“The worst way that it can manifest itself is leading an examiner to see things that aren’t there. For example, if one forensic expert looks at a fingerprint, and decides that it matches a suspect, and a different fingerprint expert looks at the same fingerprint and decides that it doesn’t match the suspect, at least one of them has to be wrong,” posits Dr. Kukucka. “This has pretty clear implications for the administration of justice, and can result in either a wrongful acquittal or a wrongful conviction.”

Some members of the forensic science community have embraced cognitive bias more than others: “There are folks who are very progressive and want to attack the issue of bias head-on, and they understand the benefits of doing so. And then there are others who just continue to dig in their heels and insist that there’s no such thing as bias and that we’ve misrepresented what they do. In the medical community, there’s a lot of variability in terms of how much they recognize the potential for bias to impact their work. Unfortunately, forensic pathologists and medical examiners are consistently on the low end of that spectrum. But, I’m hopeful that we are making progress,” shares Dr. Kukucka.

Combating Bias in Forensic Science

There are many ways to tackle the problem of racial bias in forensic science: “The first step is to get forensic labs on board with this idea. You can’t fix a problem that you don’t acknowledge. Over the past decade, we have painstakingly been educating labs about this issue and making sure they understand that we’re not attacking their professionalism or their competency. What we’re doing is we’re trying to protect them from their own brains and make small but important and feasible changes that will hopefully enable them to make better judgments,” explains Dr. Kukucka.

However, this process does take buy-in and work. “Cognitive bias is largely implicit so just being aware of the problem isn’t enough to fix it right. No matter how aware you are, no matter how motivated you are to fix the problem, it does require some degree of procedural change and outside intervention to make sure that forensic labs are analyzing evidence in ways that minimize the risk of bias and error,” shares Dr. Kukucka.

“The first big push we have done is to make sure that forensic expert opinions are based only on what we would call task-relevant information, meaning if you’re a fingerprint expert, your opinion of the fingerprints should be based on the fingerprints, and you don’t need to know what the eyewitness said. If you’re a medical expert, your opinion of how a person dies should be based largely on their anatomy, you don’t need to know about this person’s criminal history.”

Limiting the information scientists get is a great start but there are other low-tech efforts and methods that can help remove bias well: “We need to make sure that examiners not only follow very careful and standardized processes, but they’re also very transparent about how they arrived at their decisions. All too often they’ll form an opinion but won’t provide any documentation or justification for their opinion. What we were pushing for is for them to be more thoughtful and transparent in terms of how exactly they arrived at the opinion so that it can be easier to evaluate whether that opinion is based on sound principles and sound methods and should be trusted,” notes Dr. Kukucka.

Because of the recent work done by researchers such as Dr. Kukucka, there have been incremental changes that are improving the reliability of this field while actively working to reduce incidental bias: “During the Derek Chauvin trial for the murder of George Floyd, the medical examiner who initially performed Mr. Floyd’s autopsy, Andy Baker, chief medical examiner of Hennepin County, was an expert witness for the prosecution. He was asked on the stand, ‘Did you watch Darnella Frazier’s cell phone video of Mr. Floyd’s death before you performed his autopsy?’ And Baker’s response was, ‘I deliberately chose not to watch the video before I did the autopsy because I didn’t want the video to bias my work,’” remembers Dr. Kukucka. “It was one of the first indications on a national scale that the work we have been doing for years had finally made a significant impact.”

While those actively working on removing their bias are being hailed, the opposite is also coming true: “Scientists who aren’t embracing this will eventually be scrutinized more. One example is Dr. David Fowler. He was the former chief medical examiner for the state of Maryland, and he testified as a defense expert at the Chauvin trial. He made some statements that were absolutely ludicrous and unjustifiable from a medical perspective, so much so that many of his colleagues wrote a letter to the Maryland Attorney General asking for his work to be reviewed for evidence of bias,” shares Dr. Kukucka. “So now we’re auditing all of the in-custody deaths that occurred during his tenure to see if there is evidence of bias in his work, which, if we find any, would be very discrediting.”