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Commentators have identified both motivational and cognitive bias as a concern in the forensic setting. (MIKE REDMAYNE, EXPERT EVIDENCE AND CRIMINAL JUSTICE 14 (2001).) These classifications are not mutually exclusive, and cognitive bias comes in several forms. (See D. Michael Risinger et al., The Daubert/Kumho Implications of Observer Effects in Forensic Science: Hidden Problems of Expectation and Suggestion, 90 Cal. L. Rev. 1 (2002).)
Motivational Bias
One type of motivational bias "is close to the popular notion of bias (the referee is biased because he wants one side to win)." (Redmayne, supra, at 14.) Several notorious experts fit within this category. For example, Fred Zain, who became infamous because of his misconduct at the West Virginia state crime laboratory, routinely reported results that favored the prosecution. (See Paul C. Giannelli, Wrongful Convictions and Forensic Science: The Need to Regulate Crime Labs, 86 NC. L. Rev. 163, 172-74 (2007).)
An investigation by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB), found that, "when in doubt, Zain's findings would always inculpate the suspect." (In re Investigation of the W Va. State Police Crime Lab., Serology Div, 438 S.E.2d 501, 512 n.9 (W Va. 1993).) His replacement as director of serology described Zain as "very pro-prosecution." (Id. at 514 n.23.) Zain was such a treasured witness that, even after he left the state to accept a position in a San Antonio crime laboratory, West Virginia prosecutors sent evidence to him for retesting. The prosecutors relied on Zain because the remaining West Virginia serologists were incapable, in their view, of reaching the "right" results: "[Serologist] Myers also testified that after he had been unable to find blood on a murder suspect's jacket, it was sent to Texas, where Zain found a bloodstain which tested consistent with the blood of the victim." (Id at 512.) "[Serologist] Bowles also testified that at least twice after Zain left the lab, evidence on which Bowles had been unable to obtain genetic markers was subsequently sent to Texas for testing by Zain, who again was able to identify genetic markers." (Id)
While working at the Oklahoma City Crime Laboratory for nearly 20 years, Joyce Gilchrist repeatedly overstated test results, withheld evidence, and provided critical evidence for the prosecution. The Court of...