Ethics: The Prosecutors' Role as Gatekeepers for Scientific Evidence

Abstract

Abstract Lawyers have been blamed for introducing junk science into the courtroom. To combat the proliferation of junk science, the Supreme Court took the responsibility for screening scientific evidence from the lawyers and put it in the hands of judges who now act as gatekeepers for its evidentiary reliability. That does not mean, however, that lawyers are immune from responsibility for presenting valid and reliable scientific evidence. Particularly in criminal cases where the goal is justice, not just winning, prosecutors have a moral responsibility to understand the science and its methodologies before sponsoring expert witnesses. They should be gatekeepers themselves of scientific evidence they propose to use. An appropriate test for the prosecutor as a gatekeeper might be a good faith basis based on personal investigation to believe the scientific evidence is valid and that the methodologies used in testing are conducted properly. To this end, prosecutors must be trained in forensic sciences and professional responsibility associated with the proffer of scientific evidence. The Department of Justice (DOJ) has failed to adequately train its prosecutors in forensic sciences and to provide them with an acceptable level of professional responsibility training. With three major crime laboratories under its purview, Federal Bureau of Investigation ( FBI ), Drug Enforcement Administration ( DEA ), and the Bureau of Alcohol, Tobacco, Firearms, and Explosives ( ATF ), the DOJ must enforce its draft Scientific and Research Integrity Policy required by the Executive Office of the President. The DOJ attorneys are generally ill‐equipped to be the initial gatekeepers of sound scientific evidence used in criminal prosecutions. With the emergence of more complex forensic science, the DOJ, and other prosecution authorities, can wait no longer to clarify the parameters of their responsibilities governing conduct regarding scientific evidence.