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Volume 22, Number 1 (1998) reprinted by permission Legal Studies Forum WITNESS FOR THE PROSECUTION: SCIENCE VERSUS CRIME IN TWENTIETH-CENTURY AMERICA JULIE JOHNSON-MCGRATH* The bodies of murder victims have often had a role in the identification and prosecution of their slayers. Coroners' juries traditionally "viewed the body" as part of the inquest process, the corneas of murder victims were sometimes examined in the mid-nineteenth century to see if they bore the imprint of the murderer's visage, and in earlier times corpses were believed to bleed anew in the presence of their creators.1 Moreover, a murder suspect might be suddenly confronted with the body of his victim in order to elicit a confession. But systematic and routine post-mortem examination of the corpse remained superficial: dissection, and any other type of thorough and/or public scrutiny of the naked dead body, particularly any internal examination that required evisceration, remained the fate of only the most vicious of convicted criminals.2 The role of the murder victim changed in the 18th and 19th centuries, with the rise of huge industrial cities whose popular press fanned citizens' fears by presenting a picture of a rising, unstemmed tide of murder and criminality.3 As populations increased, so did the attention paid to the homicide rate and citizens demanded a new and more effective approach to the investigation and prosecution of crime.4 Urban crimes were more difficult to solve. In a small town, there was seldom much difficulty in identifying a victim, and once that was known, in identifying his or her family, friends, and business partners - always the most likely suspects. But a death in a city tenement block housing thousands was another matter. Too often, victim and culprit alike remained anonymous. Inability to identify victims slowed or rendered impossible the apprehension of murderers; infanticides were difficult to distinguish from still-births; and the testimony of immigrant witnesses was subject to intimidation.5 Yet to leave such crime unpunished seemed to allow yet another threat to the already fraying social fabric to go unchallenged. Solutions to the rising tide of crime were sought from new sources, particularly the medical and social sciences.6 The anthropometric approach of criminologists such as Cesare Lombroso was enthusiastically embraced by a society that increasingly defined itself in terms of racial and ethnic difference.7 Lombroso argued that criminals were biological atavisms, Darwinian throwbacks to a more brutal age, but who fortunately were identifiable by their physiognomy. While some thus labored to identify potential criminals in the hope of preventing crime, others turned their attention to the problem of effectively prosecuting current criminals. As a consequence, in the late nineteenth-century, the dead themselves began to be regularly called as witnesses, and subjected to a form of interrogation that had heretofore constituted one of the most dreaded punishments for the most heinous of crimes and the price paid by the most abject poor for their indigency: the post-mortem examination.8 This coercive act of punishment had to be transformed into a voluntary civic duty, and the role of the corpse transformed from that of passive victim to active social avenger. The ends of the post-mortem examination, argued its proponents, were far more morally and epistemologically pure than those of a dissection. While the anatomical dissection merely reproduced in another generation of medical students the already established knowledge of the structure of the body's systems, the post- mortem examination continually produced new and useful knowledge for the understanding of disease, and, in legal cases, the conquest of crime.9 The physical interrogation of the bodies of the dead, an undeniably violent, and in the minds of many, brutal act in which the body is cut open from collarbone to groin, at least partially eviscerated, the scalp peeled back and the skull sawed open, is changed, in the rhetoric of forensic pathologists, to a voluntary act. "Where the Dead Delight to Help the Living" is the inscription in the stone lintel above the entrance to the New York Medical Examiner's Office.10 Thus forensic pathologists sought to soften the notion of interrogation, with its harsh connotations of the third degree in which living suspects were beaten or tortured into giving information or confessions: testimony from the dead was not coerced, but offered willingly. Thomas LaQueur, in his exploration of the development of what he terms "humanitarian narratives," exemplified by realistic novels, autopsy reports, patient records and parliamentary inquiries, notes that "humanitarianism, while devoted to saving human lives, focuses its attention most powerfully on the dead and becomes a guide to the mastery of death" and that such narratives are characterized by their "reliance on detail as the sign of truth."11 This interpretation is particularly applicable to the formalized, institutionalized scientific investigation of death which became a routine part of the criminal prosecutorial apparatus in the twentieth-century. Forensic pathologists, physicians expert in medicolegal postmortem technique, and other scientists skilled in examining the detritus of crime scenes, offered assurances that through their practice justice would be served and the social order preserved. They would identify the unknown victim and determine the cause of death and the manner in which it occurred: homicide, suicide, or accident. If homicide, the forensic experts might identify the type of weapon or angle of entry, thus giving the police clues to aid in apprehending the criminal. Finally, in the court of law, the full weight of scientific evidence would be brought to bear, ensuring conviction, prosecutors and forensic scientists hoped, by all but the most stupid or obdurate jury. The fear of urban crime and social disorder that marked the turn of the century escalated during the 1910s and 1920s with the rise of organized crime and the inability of prosecutors to convict gangsters like Al Capone on criminal charges. A skilled and highly remunerated criminal defense bar which frequently bested underfunded and inexperienced public prosecutors threatened to subvert the justice process.12 As a result, the twentieth century has seen a vast increase in the power of state prosecutors and the resources at their command-the most heralded being forensic science-and the jury was increasingly targeted as the major stumbling block to a more efficient justice system, particularly by those who saw science as the state's most effective weapon against crime.13 The reliance placed upon scientific evidence by urban prosecutors, and the need for forensic scientists to prove their utility by getting convictions in cases where their evidence was crucial to the state's case, caused reformers to focus on how to compel a jury's belief in the scientific testimony offered by the prosecution. A "good jury" therefore, came to be defined by its willingness to defer to the prosecution's scientific evidence in its deliberations. The role and power of both forensic pathologists and prosecutors were to be expanded under the guise of empowering the dead to speak and play an active role in the prosecution of their killers.14 As one jurist observed in 1935, "A trial is no cool process of mere science. It is not, it cannot be, rigidly formal, coldly logical. In a trial proof is but the means to an end, [and] that end not the stirring of a mild and passive sympathy in the minds of the [jury] with the litigants' point of view, but the inducing there of the impulse to believe, the will to say 'for the plaintiff' or 'for the defendant.'"15 Scientific evidence is presented to juries in the form of expert testimony, and juries, of course, are not obliged to give expert testimony any more credence than that of non-experts. Juries have routinely exercised this right throughout the twentieth century, to the anger and chagrin of prosecutors and scientists.16 The adversarial relationship imposed on witnesses and the necessity of proving the validity of scientific points to a lay audience-the judge and jury-galled the medical profession (the most familiar representatives of science, inside and outside the courtroom) in particular. Legal procedure not only offered an affront to their expertise, but also provided a public forum for dissent which, many physicians felt, harmed the profession's efforts to forge a collective identity and enhance its economic position and social status in the early twentieth century. The medical profession continually tried to have courtroom procedures and evidentiary rules changed to its advantage, attempting to privilege medical testimony over that of lay witnesses, exempt physicians from cross-examination, or circumvent the jury process altogether.17 Trial by jury is one of the cornerstones of Anglo-American democracy. Alexander Hamilton described the jury as "the very palladium of free government" and the Jacksonians heralded the wisdom and intelligence of the common man; but with the rise of industrial capitalism and accompanying influx of non-Anglo Saxon Protestant immigrants, views of the utility of the jury began to change.18 As the courts began to handle more and more complex administrative and corporate cases, involving complicated financial, technical, and scientific evidence, calls increased for the elimination of the jury. Charles H. Dana argued as early as 1853 that "in a process that had become highly professionalized, it was incongruous to entrust the evaluation of the experts' arguments on technical points to uninformed laymen. The certainty and predictability of the system would suffer if decisions . . . were left to the jury."19 Even defenders of the jury system demanded reform. "From the time of the Magna Charta trial by jury has been wisely regarded as the supremest blessing secured to mankind," said Stewart Whitehouse in the Albany Law Review in 1885, "but the quality of citizens that we were wont to see in the jury box in bygone times is found there no longer. As a result we are compelled to try our cases before juries with whom stupidity, prejudice, and unreasoning sympathy are the cardinal characteristics."20 Juries, therefore, became the targets of many who sought to make criminal justice more efficient. Although attacks on the institution of the jury are often informed by class prejudice, they are seldom explicitly couched in such terms, and some, like Counselor Whitehouse above, consciously sought to excuse themselves from any imputation of snobbery: I do not mean to say that these men in the lower walks of life are objectionable because of their unfortunate conditions; but I do mean to say that such men are generally unqualified intellectually and other wise to properly discharge the duties which usually devolve upon jurors. Their misfortunes and unpleasant positions in life tend to sour their tempers, and make them constitutionally discontented and pessimistic; and these traits, together with their want of knowledge and experience in the general affairs of the world, utterly unfit them for jury service. Their sympathies and prejudices many be operated upon, but their free and impartial judgements are usually too feeble to be brought into play. 21Learned Hand, writing in the Harvard Law Review in 1901, noted that in medieval times, before the rules of evidence and the roles of witnesses and jurymen had been codified, the jury themselves investigated crimes.22 The jury had tremendous powers well into the 19th century, limited only by the rules of evidence. They not only had the power to decide which evidence to believe or discount, but could also determine which law they would apply to the case; they therefore possessed the ability to completely ignore the case the prosecution or defense set before them, and to decide on their own what the matter under consideration was.23 An 1895 Supreme Court decision rescinded the jury's right to determine law and put the power in the hands of judges instead.24 The increase in discretionary powers and practices of prosecutors-plea-bargaining, acceptance of guilty pleas, and other procedures that circumvented jury trials-also limited the role of the jury in the criminal justice system.25 In the civil courts, their role was even more strictly curtailed, most likely in response to several anti-corporate rulings in the 1870s and 1880s that resulted in large judgments. Francis Wharton spoke for many when he feared that juries might conceivably convict corporate officers of criminal offenses if given the chance.26 Because of the average citizen's antagonism toward capital, settlement of volatile issues such as workman's compensation was removed from the jury's purview.27 The jury could not be dispensed with entirely in criminal cases, however; the Bill of Rights of the United States Constitution, designed to guard individual freedom against the power of the states, protects the right to a jury in criminal cases. In addition, as one writer noted, "The public opinion of the whole process of judicial administration is largely determined by the results of . . . cases which reach jury trial. The out-come of these trials is, therefore, of immense psychological importance."28 Since abolition of the jury in criminal cases was impossible, some criminal justice reformers turned their efforts to controlling the composition of juries. Much attention was focused on why "the better class of citizens" shirked their civic duty. The 1929 Illinois Crime Survey found that Cook County businessmen offered the following excuses for evasion of service: "loss of income, waste of time, objectionable treatment by court officials, inadequate provisions for the comfort of jurors, . . . fear of injury to self and family at the hands of organized criminals" and, finally, "the idea that actual service is, in the eyes of fellow citizens, an exhibition of weakness in being unable to wield sufficient influence to be excused from service."29 While the Illinois Crime Survey may have identified many of the factors that kept them from serving or wishing to serve, the answer to ensuring the participation of middle and upper-class Americans in this particular civic duty has yet to be found. Other reformers focused their efforts on controlling the presentation of evidence before the courts. Some, such as Hubert Winston Smith of Harvard, a leading writer on science and the law in the 1940s, suggested the formation of a National Scientific Commission to serve as a master censor for the courts. Such a body, made up of qualified legal and scientific persons, could probe into the merits of each species of scientific proof and lay down appropriate criteria, safeguards, and cross checks needed to make evidence trustworthy. Such a body could also develop a comprehensive system for certifying the proficiency of expert witnesses.30Roscoe Pound, the Dean of Harvard's Law School, proposed that a "Ministry of Justice" be established to offer similar services, particularly in writing legislation that would declare scientific theories legally true.31 With these reforms "junk science" could be excluded from the courts, and the jury deprived of means for evading or ignoring expert testimony. As with much other writing on juries, a strong current of elitism runs through Hubert Winston Smith's writings. He was quite aware of the role that socioeconomic class played in the jurors' responses to different types of evidence: "A WPA worker might be partial to lay evidence in situations where a blue-ribbon juror with a college degree might give controlling weight to scientific testimony."32 Smith was concerned that presentation of expert testimony in the courts would result in "futile efforts of the experts to descend to the lay juror's comprehension." He lamented that, "The chief barrier [to reform] are constitutional guarantees of jury trial." 33 While Smith and his allies decried the Sixth Amendment and lobbied for their Ministry of Justice, still other approaches to promote jury acceptance of scientific evidence were explored. Public acceptance of scientific testimony over eyewitness testimony in criminal trials required something of a cultural revolution; the traditional distrust of circumstantial evidence and reliance on eyewitness testimony had to be reversed. The law defines two types of evidence: direct evidence, such as eyewitness testimony to the act in question-murder, burglary, whatever-and circumstantial evidence, whose meaning must be interpreted and inferred.34 All scientific evidence is therefore circumstantial evidence, and in our culture we have traditionally been reluctant to convict a person of a serious crime solely on circumstantial evidence.35 The legal and medical journals of the first half of the century are filled with lamentations of juries' refusal to acknowledge scientific circumstantial evidence.36 Murder juries often refused to convict in the absence of eyewitness testimony, which was often nonexistent, as the best eyewitness had been silenced by the crime itself. Forensic scientists, therefore, had to somehow transform circumstantial evidence associated with the body and the crime scene into indisputable fact offered by witnesses whose veracity and acuity of perception were beyond any reasonable doubt. Throughout the twentieth century, politicians, prosecutors, and forensic scientists sought to ensure juries' appreciation of and belief in scientific evidence through a widespread public relations campaign, one of the aims of which was to convince the public of the superior probative value of scientific evidence.37 The campaign was carried out through magazine articles, World's Fair exhibits, short stories, books, and Hollywood movies: the propaganda had supporters ranging from Harvard University and Erle Stanley Gardner to local police departments eager to convince taxpayers of the need to fund a municipal or state forensics lab. The message was simple: disinterested, "objective" science was the best weapon against crime. The widely studied Cleveland, Missouri, and Illinois Crime Surveys of the 1920s, along with the 1927 National Research Council Report, "The Coroner and the Medical Examiner," urged the establishment of municipal scientific crime detection laboratories, independent from machine politics. The FBI opened its highly publicized Scientific Crime Detection Lab in 1932. An exhibit on the scientific virtues of the medical examiner system versus the corruption and suspect cause-of-death diagnoses of the coroner's office at the 1933 Century of Progress Fair in Chicago nicely captured the didactic tone of the campaign. According to the exhibit text, the coroner was "a political official usually without professional qualifications . . . whose medical findings are questioned by courts and insurance agencies." The medical examiner, on the other hand, was a non-political official, expert in medicolegal pathology, who conducts a scientific investigation into the cause of death, whose work is purely medical [and] whose impartial findings are accepted by court and jury in criminal cases and by insurance companies and compensation boards in accident cases. 38Thus prosecutors and forensic scientists sought to suborn potential jurors before they ever entered the courtroom. Forensic scientists' task of transforming their interpretation of the circumstantial evidence of the body and the scene of the crime in order to convey it with the immediacy and authority of eyewitness testimony was also aided immeasurably by the construction of science's cultural authority as pure, unbiased, and objective. In this construction, the forensic scientist's testimony is unaffected by his or her own back-ground, beliefs, and social and intellectual biases: the dead speak through them directly. Ordinary witnesses may perjure themselves, but "The Evidence Never Lies," as the title of one book on forensic science has it.39 Forensic scientists are not spiritualist mediums, however, but translators: they interpret the evidence of the corpse-wounds, blood loss, lividity, rigor mortis, stomach contents--or the crime scene and present their opinion as to the truth that evidence tells. By invoking science's cultural authority and alleged objectivity, scientists sought to transubstantiate opinion into fact. To do so, they had to ignore or deny that this truth was inevitably filtered and shaped by professional experience, interests, and personal biases. One of the best examples of the triumph of this popular positivism--the power of "scientific" circumstantial evidence, uncorro-borated by any eyewitness testimony, to compel belief-is the trial of Bruno Richard Hauptmann for the "crime of the century," the kidnaping and murder of Charles Augustus Lindbergh, Jr. On March 1, 1932, the 20-month-old son of Charles and Anne Morrow Lindbergh was taken from their home in Hopewell, New Jersey. On April 2 of that same year, $50,000 in ransom money was paid to a man with a German or Scandinavian accent, who said that the child was being cared for on a boat off Cape Cod. Lindbergh searched for such a boat in vain, however, and on May 12, the body of the kidnaped child was found in the next county over from Hopewell. The entire country was outraged, and the search for the kidnappers proved fruitless for over two years. The kidnappers left few clues: there were no fingerprints in the nursery from which the child had been taken (not even those of the Lindberghs or their servants); a single footprint was found on the ground outside the house but was not measured nor a plaster cast taken; the main piece of physical evidence was a broken, makeshift ladder found some seventy feet from the house.40 On September 19, 1934, Bruno Richard Hauptmann, an illegal German immigrant who worked as a carpenter in the Bronx, was arrested for possessing some of the ransom money. His guilt in the death of the child was immediately assumed. Although he protested his innocence, stating that a somewhat shady friend, by then deceased, had given him the money, the headlines screamed the news of the arrest of the Lindbergh kidnapper. There was no evidence linking Hauptmann to the actual kidnaping, however, and no evidence linking him to any accomplices. Until the arrest, the working theory had been that a gang was responsible, a supposition supported by the ransom notes, the experience of negotiating the ransom, and the FBI's opinion of the physical impossibility of one man being able to climb from the makeshift ladder into the house, and then back out and down carrying a 30-pound child.41 Yet the horrifying nature of the crime and Lindbergh's enormous popularity resulted in Hauptmann being tried for the kidnaping, not merely for possession or extortion of the ransom money, and that he be executed if convicted. This presented difficulties for the New Jersey prosecutor in charge of the case. Kidnaping was not yet a Federal offense (though it became one as a consequence of Charles Jr.'s abduction). New Jersey's kidnaping statute was nebulous, neither defining the crime as a felony nor prescribing a punishment most felt this crime in particular merited. The only route to the electric chair lay through a burglary charge: burglary, defined as "illegal breaking and entering a dwelling house at night" was a felony in New Jersey, and any death occurring during a felony, whether accidental or intentional, was first degree murder. The prosecution would therefore have to prove that Hauptmann was the man who climbed in the second-floor nursery window and took the child; an act no-one had witnessed. The only hope in linking Hauptmann to the crime lay in linking him to the ladder found broken and abandoned some seventy feet from the house. At the trial, Arthur Koehler, chief wood technologist in the Madison, Wisconsin Forest Services Laboratory of the United States Department of Agriculture, testified that wood in the ladder came from the floor of Hauptmann's attic.42 Koehler, the author of 32 monographs on the weaknesses, strengths, commercial possibilities, and other attributes of wood, offered his services to Lindbergh soon after the kidnaping. If given a sample of the wood from the ladder, he claimed, he might be able to determine where the wood had come from: what section of the country, and even what mill. He first examined slivers of wood sent to him from New Jersey, on which he detected textile fibers that he excitedly thought might come from the kidnapper's clothing, but instead turned out to be from the blanket that the state police had used to cover the ladder on its travels around the Hopewell neighborhood in a fruitless search for someone who recognized it. Two of the ladder's rails, made of yellow pine, showed marks indicative of the use of a defective planer, and Koehler felt that this was a clue that could be pursued, despite the almost ubiquitous use of yellow pine as a construction material. After months of traveling and correspondence, Koehler located the mill with the defective plane in South Carolina and obtained a list of the lumber yards that had received any of the 47-train car loads of yellow pine it had shipped between 1929 and 1932. Over the next year and a half, Koehler and State Trooper Lewis Bornmann visited the thirty lumberyards in the Bronx, Brooklyn, and other parts of New York and New Jersey that were on the list. After his arrest for passing the ransom money, Hauptmann was identified as a customer of one of these yards. Koehler clinched the case for the prosecution by testifying that the used piece of wood in the ladder came from Hauptmann's attic. Hauptmann went to the electric chair, still proclaiming his innocence, on April 3, 1936.43 This case was the first time that expert testimony on wood had been offered to the courts in a capital case, and the defense attempted, albeit unsuccessfully, to have Koehler's evidence excluded on the grounds that it was too new to have achieved the scientific reliability of toxicological or serological evidence. There was no one with similar skills or expertise whom the defense could have hired to attempt to refute Koehler's findings. Koehler, testifying as an expert witness, was able to present his opinions, theories, and painstaking methodology to the jury essentially unchallenged.44 There was another, and more established, role that science could have played in this trial and in the central issue of defining the crime. The only way that a capital charge could be maintained was by declaring that the baby's death had occurred in the course of the burglary--and time of death pronouncements are extraordinarily difficult to make and far from precise. Hauptmann's lawyer appealed to Dr. Eduard Marten, a New York City medical examiner, to testify as to the improbability of pinpointing the child's time of death. Marten was adamant in his belief that the prosecution erred in its insistence on the time of death, but he also believed that Hauptmann was guilty, and therefore declined to appear for the defense.45 Scientific crime detection had been a subject of fiction and journalism since the end of the nineteenth-century, but through radio, newspapers and newsreels, the Hauptmann trial reached a far greater audience than any previous attempts by reformers to educate the public in the inherent validity of scientific evidence. The number of books and newspaper and magazine articles on scientific crime detection increased in the 1930s and 1940s. The public relations campaign continued into the 1950s, with the release of the MGM movie Mystery Street about the Harvard Department of Legal Medicine, and the publication of articles with titles like "How to Get Away with Murder" and "Horse and Buggy Coroner: Alibi for Murder." The 1970s, of course, saw the long prime-time run of the television series, Quincy, M.E. Forensic science is, of course, as capable of exonerating a suspect as convicting him. However, because until quite recently forensic science was virtually monopolized by municipal, state and federal laboratories, its use has been in turn monopolized by the prosecution. Many forensic scientists have sought to ignore this one-sided application of their skills, pointing to their scientific creed of objectivity. Some occasionally appear as witnesses for the defense in high-profile murder cases, refuting the findings of the local coroner or medical examiner. Yet many others join with Eduard Marten in feeling that their job is to arm the prosecution, not to aid and abet the defense--unless they are certain that the defendant is innocent. The vast majority of the popular stories chronicling the exploits and successes of forensic scientists emphasize their invaluable aid in convicting a criminal who otherwise would have escaped punishment. Moreover, in almost every instance of this type of popular education, the scientific principles underlying the forensic applications remained obscure. The public is regaled with the painstaking methods of science, and asked to assume that the outcome of such scientific activity is truth. This popular positivism extols method while ignoring content, and can lead to an unquestioned faith in the veracity of scientific evidence. The interests that forensic scientists serve are obscured: cloaked in the mantle of "objective" science. While they perform the important social function of speaking for the dead, their interpretation of physical evidence and judgements of probability--actions inherently subjective--go unremarked. Popular positivism was not enough, however, to ensure the acceptance of forensic scientific evidence: the reliability of eyewitness testimony had also to be undermined. In 1908, Harvard psychologist Hugo Muensterberg published the first edition of his best-selling book, On the Witness Stand: Essays on Psychology and Crime, in which he detailed his experiments on the measurement of visual perception, memory, the power of suggestion, and other aspects of applied psychology that affected the ability of people to accurately bear witness to events they had observed. Muensterberg concluded that few people's perceptions and memories of events are accurate. His research, supplemented in following years by a series of works that detailed the number of false convictions made on the basis of mistaken eyewitness evidence, proved useful to many members of the trial bar. On the Witness Stand appeared in several further editions, one in 1925 appearing with a foreword by Charles S. Whitman, former Manhattan D.A. and Governor of New York 46 Thanks to Muensterberg, eyewitness testimony was now question-able, even testimony from the most disinterested of witnesses. Propo-nents of forensic science seized on this research to forward the increased use of scientific testimony, and by World War II criminal prosecutors had a formidable array of experts working to produce evidence that could be presented in court as unbiased and non-partisan. Popular education in scientific crime detection also made it possible for police and prosecutors to threaten suspects with scientific evidence and attempt to convince them to confess and plead guilty, to avoid the time and expense of a trial.47 The self-induced psychological terrorism of Edgar Allan Poe's "Tell-tale Heart" is thus used by police investigators and prosecutors in coercing guilty pleas from suspects. In essence, what has been achieved is a reversal of the social roles and physical treatment of murder suspect and murder victim. By stressing the benefits to society of scientific investigation of deaths, pathologists and prosecutors sought to create public acceptance of post-mortem examinations and the state's (and forensic pathologists') right to desecrate the corpse in the name of science, justice, and crime control. The body of the victim is interrogated for evidence of the crime-the undersides of fingernails scraped for pieces of skin that might have been scratched off an attacker, clothing and skin examined microscopically for the presence of stray hairs not belonging to the victim, bitemarks recorded to match with the teeth of suspects, stomach contents, blood, semen, and saliva analyzed. While the Fourth and Fifth amendments protect criminal suspects against the use of state-sponsored torture or physical harassment to secure incriminating evidence, at the end of our own century, a series of Supreme Court decisions have expanded the power of police and prosecutors to collect evidence from the bodies of suspects, at the expense, many feel, of civil liberties.48 But what civil libertarians view as inalienable constitutional rights, conservatives see as loopholes allowing criminals to escape punishment. Theoretically, forensic science may exonerate the innocent as effectively as it can identify the guilty, but there are few opportunities for exoneration offered at the trial court level. Indigent or working-class defendants-the majority of criminal defendants-often lack the resources to pay for laboratory tests and recompense expert witnesses for their appearances in court, and when those witnesses do appear, the validity of their presentations are called into question. They are painted, in the press if not in the courtroom, as hired-guns, unethical and marginal members of their profession whose only role is to confuse the jury about the validity of the prosecution's evidence. Crime control dominates the urban reform agenda today more than ever. With so much emphasis on punishment, one scholar notes that the expenditure of time, money, and medical expertise in the investigation of violent or undetermined death seems on a broad and cultural scale to stress that society seems prepared to go to great lengths to find the exact cause of a murderous act, whereas socially it often fails to direct its available resources at the prevention of similar crimes.49 [198] Juries' willingness to accept scientific evidence has much to do with fears of urban crime, the same impulse that led to the establishment of forensic science laboratories and the consolidation of prosecutorial powers nearly a century ago. The Progressive reformers who established the scientific crime detection bureaucracies viewed them as an effort to redress the imbalance between the power of the state and that of the criminal defense bar, but the means of employing scientific evidence now lies overwhelmingly with the prosecution. The tenet that criminal defendants are innocent until proven guilty in a court of law has been reduced to the status of a legal fiction; the bodies of suspects can now be forced to testify on behalf of the prosecution. Suspects must submit samples of their fingerprints, skin, hair, blood, saliva, sweat and semen. The constitutional privilege against self-incrimination extends only to oral testimony, and not to the body. Although the suspect's body, unlike that of the victim, cannot be cut into or invaded in anyway that "shocks the conscience," our changing sense of morality underscores the fluid and changeable nature of what our culture considers sacrosanct.50 Even without the aid of the surgical knife, the twentieth-century murder suspect's body can be made to turn traitor against itself and, like the victim's body, be forced to produce testimony that may, in this era of increased fervor for capital punishment, lead to its own death. |
