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Thoughts from Janet Hoeffel, Author of a Very Successful Student Note:

As I mentioned last month, one occasionally sees a student law review article that is cited a great deal by courts — even a lot more than are most articles by tenured academics. Of the student articles I've seen that are published since 1990, the one most cited by courts is Janet Hoeffel's The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant (Stan. L. Rev. 1990), which has been cited by over 25 cases and over 90 academic works.

I therefore thought I'd ask Prof. Hoeffel, who now teaches law at Tulane, some questions about her article, so that other prospective authors may get some guidance or at least inspiration. Prof. Hoeffel kindly replied:

1. Why did you decide to write — and publish — your article?

I would love to say I had high and mighty goals in mind in my decision to write a Note. Nope. A mere requirement of the Stanford Law Review. I have always been a good worker bee — I do what I am told. I reach for the next brass ring as I was taught. I published the Note because the Review accepted it and I was flattered.

I have to tell you, though, that the topic was so hot that I completely burned myself out trying to constantly update the article. I skipped class and worked long hours into the night. Again, the ideals driving me were not high and mighty — mere perfectionism. If I was going to publish it, it had to include every last speck of information out there on DNA, down to the most recent news article. I never in a million years dreamed the article would prove to be so useful.

2. How did you get the idea for the article?

I scoured the earth for an idea for my Note, and flipped through the card catalogue (remember those?) and came across something on "DNA fingerprinting," as they called it. At that point, only one person had written an article about the new use of DNA typing. I was always strong in the sciences and forensic science interested me. I knew I was going to become a public defender so I set out to see whether this new science was ready for the prosecution of the criminally accused.

3. Did you find you learned useful things — whether about writing, about legal reasoning generally, or just about the area you were discussing — while writing the article?
4. Have you found that having published the article has helped you in your career?

What I found most useful was not the writing of the article (although I can blue book the hell out of an article), but the actual knowledge I acquired. I became an instant expert because so few judges or lawyers understood the science, or its fallacies.

When I became a staff attorney at the Public Defender Service in Washington, DC, I did trainings on DNA typing, and someone dubbed me the "Barry Scheck" of the office. I have given other trainings as well and people, amazingly enough, still turn to me as the expert.

The Note helped me get hired as a judicial clerk, at the public defenders, at a private firm, and obviously, it also helped me to get a job as a law professor, because I was ten years out of law school when I applied, with only this Note under my belt. The Note won an award or two in law school, so that helped pad the resume as well.

The most rewarding aspect of all of this, though, was its usefulness to courts and litigants. I am pretty certain that none of my articles will ever be as useful as that one was.

Related Posts (on one page):

  1. Thoughts from Janet Hoeffel, Author of a Very Successful Student Note:
  2. Interview with Victor Cosentino, Author of a Very Successful Student Note:
Dan Simon (mail) (www):
I don't have access to the article, but what little I could find about it strongly suggests that it's an unprincipled hatchet job on the reliability of DNA evidence. If so, that would certainly explain all the citations--after all, for anyone trying to wriggle his or her way out of a damning DNA test result, this is probably as authoritative a straw as he or she is likely to be able to grasp at.

Can anybody out there confirm or dispel my impression of the note? I'd hate to think that the main lesson of Eugene's mini-seminar on student notes is "leave your scruples at the door, and write something that desperate lawyers with just as few scruples will jump to cite even if you're a wet-behind-the-ears law student"....
7.10.2007 10:12pm
finec:

Dan, I read through parts of the note and I'm surprised that anyone would call it an "unprincipled hatchet job," although I'm not an expert and don't really have much of an external frame of reference on this issue.

What about it is unprincipled, according to your sources? Are there misrepresentations, omissions?
7.10.2007 10:35pm
Curt Fischer:
I have read the article, and it is certainly a hatchet job on the reliability of DNA evidence, although I find the word "unprincipled" perhaps an overreach.

Highlights from the introduction:


DNA profiling technology has limitless Orwellian possibilities, but the legal community is presently focused on the technology's ability to identify criminal suspects. Although it usually takes many years for the engines of justice to churn out a personal injury suit or a criminal appeal, in less than two years the combined efforts of commercial laboratories and prosecutors have steamrolled the so-called "DNA fingerprinting" technique through the courts. 7 The technique has been easy to sell. The current national obsession with crime-fighting and the apparent decrease in concern for individualized justice 8 create a receptive environment for a cutting-edge technology, dazzling in its promise of identifying criminals with "virtual" or "99 percent certainty." 9 Courts lost all sense of balance and restraint in the face of this novel scientific evidence, embracing it with little scrutiny of its actual reliability and little concern for its impact on the rights of individuals.

[...]

In the midst of all the cheers and exaggerations, this note presents the darker side of employing DNA profiling to identify criminals. 12 Part I examines the scientific problems with the technique. It presents the underlying scientific principles, the mechanics of the technique as it is presently performed, and the flaws in the technique's application to criminal forensics which currently make it unreliable. [...]



The critical "flaws" that the author identified are chiefly that sometimes, human scientists are fallible, and mis-label samples or fail to include adequate controls. These criticisms hardly constitute a scientific criticism of DNA fingerprinting. Does it take an article in the Stanford Law Review to get the message out the scientists are people too, and sometimes make the same mistakes (mislabeling, misinterpretation, or mishandling) as any other professional class responsible for handling or preparing legal evidence?

I suppose these criticisms may have helped raise the general quality of commercial DNA testing, but nonetheless the hyperbole in the note is still quite a bit overblown.

I am a research engineer with seven years of experience in biotechnology. I have zero legal experience, but I am struck at how one-sided this article is.
7.11.2007 12:24am
Truth Seeker:
So the key to getting your student note cited a lot is to:
1. find a topic few have written about
2. take a position that no one else has taken but that many would like to use to support their cases
7.11.2007 12:33am
happy lee (mail):
Very inspiring. Her modesty aside, a good note is a little more than finding a good topic and collecting and sifting through good source material. Nope, it was her passion for the subject, or should I say "subjects" of DNA evidence. Add to her passion some excellent intrinsic motivation and, poof!, out comes some good stuff. Bravo.
7.11.2007 2:05am
PEG (mail) (www):
@Truth Seeker: That's true of more than student notes.
7.11.2007 3:57am
c.f.w. (mail):
The best work in this fingerprints and DNA area I have seen is briefing by an SF public defender - Michael Burt - in a death penalty case.

Articles in law reviews about forensic evidence matters (especially from a defense perspective) will tend to have more of an adversarial tone, I suspect, because they are about (and arise from) the demands of an often non-collegial adversarial system.

And yes, it does often take strong prose to convince conservative judges in emotional cases that scientists can make mistakes and technology is not fool-proof.
7.11.2007 9:47am
TerrencePhilip:
Curt Fischer,

thank you for your post-- a worthy reminder that if lawyers write about science it might be helpful to have an actual scientist look it over before it's published!
7.11.2007 9:53am
Steve:
Does it take an article in the Stanford Law Review to get the message out the scientists are people too, and sometimes make the same mistakes (mislabeling, misinterpretation, or mishandling) as any other professional class responsible for handling or preparing legal evidence?

Yeah, it sorta does. In the legal world where there are always two or more sides to every story, the narrative that a certain type of evidence is "99.9% reliable" is extremely compelling, enough so to make people discount the possibility of human error and simply pronounce the defendant guilty. When you hear "the DNA evidence was a match," your first thought is probably "guilty," not "maybe the lab made an error."
7.11.2007 11:16am
Andy Freeman (mail):
> When you hear "the DNA evidence was a match," your first thought is probably "guilty," not "maybe the lab made an error."

Note that "probably guilty" and "maybe the lab made an error" are consistent with one another. Heck, so are "guilty" and "maybe the lab made an error".
7.11.2007 12:59pm
Alaska Jack (mail):
From the intro:

"The current national obsession with crime-fighting..."

Huh? Crime fighting isn't important?

The tenor of her intro doesn't give me great confidence in the objectivity of the note.

- Alaska Jack
7.11.2007 2:13pm
Sigivald (mail):
Curt: Does it even claim to be a scientific criticism, not a legal one?

My impression (I don't have access either) is that it's the latter, as it's a law review article, and all the flaws you state are legal reasons to take a DNA fingerprint with a grain of salt, rather than as an iron-clad slam-dunk fill-in-your-cliche-of-choice proof of presence (and thus presumably guilt) in all cases.

If the article simply made the few notional sloppy labs clean up their procedure (and all of them document it and get certified as "following proper procedure to prevent evidence contamination") to withstand such a challenge, that's a net win anyway on all sides; the innocent are thus less likely to be fingered by mistake, the guilty to be let go for the same reason.
7.11.2007 2:31pm
visitor from Texas (mail) (www):
The first time I was asked to look at DNA evidence, I was asked if it was kosher to take two readings and average them to show that the average matched the Defendant's DNA ... (neither sample did, but the averaged results were close).

That was only about ten years ago.
7.11.2007 4:07pm
Curt Fischer:
Sigivald said:

Does it even claim to be a scientific criticism, not a legal one?



Well, the passage I quoted in my previous post included the statement "Part I examines the scientific problems with the technique[.]"

I interpret that as a claim that the author is doing scientific criticism. That claim is unjustified, because all the discussion in her paper is legal criticism, as you wrote.

Reading this paper made me think that perhaps I simply have a naive notion as to the role of law review journals. As in most other academic settings, I expected at least a semblance of objectivity and balance.

Instead, I found that not a single passage of the paper stated explicitly that if done correctly, DNA fingerprinting is a highly informative and worthwhile forensic tool. There may be caveats. There may have been a need for better quality control. But Hoeffel neglected to explicitly acknowledge even the *potential* of DNA fingerprinting. No objectivity or balance to speak of.
7.11.2007 9:05pm
Bill Poser (mail) (www):
The introduction doesn't strike me as at all indicative of a hatchet job. One thing that scientists often don't understand is how scientific information is actually used in the legal system, especially in the criminal courts. Once a certain technology is accepted in the legal system, it is frequently abused. This can be due to inadequate training and expertise on the part of personnel, inadequate funding and equipment, time pressure, pressure to obtain results favorable to the prosecution, sloppy procedures, and failure of the lawyers involved to ask the right questions about the evidence in particular cases. A good example is the use of fingerprints. There's no question that fingerprints are extremely reliable if one has a complete, undamaged print, but they are much less reliable when one doesn't, as is not infrequently the case in criminal cases. Several years ago it came out that FBI fingerprint analysts had been reporting identifications based on fragmentary latent prints without disclosing this. You can argue about whether this was their fault, that of the prosecutors, or that of the defense attorneys, but one way or another unreliable evidence was portrayed as reliable because the underlying science is reliable. Similarly, look at older cases in which identification was based partly on blood type being "compatible". While distinct blood types show that two blood samples cannot have been produced by the same person, the number of blood types is so small that the probability of two samples being merely "compatible" is far too high for compatibility to be probative. A scientist who cited mere compatibility of blood types as showing anything in a journal article would be laughed at, but this kind of nonsense got by in the courts.

Articles like this that point out all of the possible points of failure of what may well be, when properly used, a highly reliable technique, are valuable.
7.12.2007 9:16pm