[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]




                     STRENGTHENING FORENSIC SCIENCE
                     IN THE UNITED STATES: THE ROLE
                      OF THE NATIONAL INSTITUTE OF
                        STANDARDS AND TECHNOLOGY

=======================================================================

                                HEARING

                               BEFORE THE

               SUBCOMMITTEE ON TECHNOLOGY AND INNOVATION

                  COMMITTEE ON SCIENCE AND TECHNOLOGY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 10, 2009

                               __________

                            Serial No. 111-8

                               __________

     Printed for the use of the Committee on Science and Technology


     Available via the World Wide Web: http://www.science.house.gov

                                 ______




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                  COMMITTEE ON SCIENCE AND TECHNOLOGY

                   HON. BART GORDON, Tennessee, Chair
JERRY F. COSTELLO, Illinois          RALPH M. HALL, Texas
EDDIE BERNICE JOHNSON, Texas         F. JAMES SENSENBRENNER JR., 
LYNN C. WOOLSEY, California              Wisconsin
DAVID WU, Oregon                     LAMAR S. SMITH, Texas
BRIAN BAIRD, Washington              DANA ROHRABACHER, California
BRAD MILLER, North Carolina          ROSCOE G. BARTLETT, Maryland
DANIEL LIPINSKI, Illinois            VERNON J. EHLERS, Michigan
GABRIELLE GIFFORDS, Arizona          FRANK D. LUCAS, Oklahoma
DONNA F. EDWARDS, Maryland           JUDY BIGGERT, Illinois
MARCIA L. FUDGE, Ohio                W. TODD AKIN, Missouri
BEN R. LUJAN, New Mexico             RANDY NEUGEBAUER, Texas
PAUL D. TONKO, New York              BOB INGLIS, South Carolina
PARKER GRIFFITH, Alabama             MICHAEL T. MCCAUL, Texas
STEVEN R. ROTHMAN, New Jersey        MARIO DIAZ-BALART, Florida
JIM MATHESON, Utah                   BRIAN P. BILBRAY, California
LINCOLN DAVIS, Tennessee             ADRIAN SMITH, Nebraska
BEN CHANDLER, Kentucky               PAUL C. BROUN, Georgia
RUSS CARNAHAN, Missouri              PETE OLSON, Texas
BARON P. HILL, Indiana
HARRY E. MITCHELL, Arizona
CHARLES A. WILSON, Ohio
KATHLEEN DAHLKEMPER, Pennsylvania
ALAN GRAYSON, Florida
SUZANNE M. KOSMAS, Florida
GARY C. PETERS, Michigan
VACANCY
                                 ------                                

               Subcommittee on Technology and Innovation

                      HON. DAVID WU, Oregon, Chair
DONNA F. EDWARDS, Maryland           ADRIAN SMITH, Nebraska
BEN R. LUJAN, New Mexico             JUDY BIGGERT, Illinois
PAUL D. TONKO, New York              W. TODD AKIN, Missouri
DANIEL LIPINSKI, Illinois            PAUL C. BROUN, Georgia
HARRY E. MITCHELL, Arizona               
GARY C. PETERS, Michigan                 
BART GORDON, Tennessee               RALPH M. HALL, Texas
                 MIKE QUEAR Subcommittee Staff Director
        MEGHAN HOUSEWRIGHT Democratic Professional Staff Member
            TRAVIS HITE Democratic Professional Staff Member
           PIPER LARGENT Republican Professional Staff Member
                  VICTORIA JOHNSTON Research Assistant







                            C O N T E N T S

                             March 10, 2009

                                                                   Page
Witness List.....................................................     2

Hearing Charter..................................................     3

                           Opening Statements

Statement by Representative David Wu, Chair, Subcommittee on 
  Technology and Innovation, Committee on Science and Technology, 
  U.S. House of Representatives..................................     5
    Written Statement............................................     5

Statement by Representative Adrian Smith, Ranking Minority 
  Member, Subcommittee on Technology and Innovation, Committee on 
  Science and Technology, U.S. House of Representatives..........     6
    Written Statement............................................     6

Prepared Statement by Representative Harry E. Mitchell, Member, 
  Subcommittee on Technology and Innovation, Committee on Science 
  and Technology, U.S. House of Representatives..................     7

Prepared Statement by Representative Paul C. Broun, Member, 
  Subcommittee on Technology and Innovation, Committee on Science 
  and Technology, U.S. House of Representatives..................     7

                               Witnesses:

Mr. Peter M. Marone, Director, Virginia Department of Forensic 
  Science
    Oral Statement...............................................     8
    Written Statement............................................    10
    Biography....................................................    14

Ms. Carol E. Henderson, Director, National Clearinghouse for 
  Science, Technology and the Law; Professor of Law, Stetson 
  University College of Law; Past President, The American Academy 
  of Forensic Sciences
    Oral Statement...............................................    14
    Written Statement............................................    17
    Biography....................................................    19

Mr. John W. Hicks, Director, Office of Forensic Services, New 
  York State Division of Criminal Justice Services (Ret.); Former 
  Director, FBI Laboratory
    Oral Statement...............................................    20
    Written Statement............................................    22
    Biography....................................................    23

Dr. James C. Upshaw Downs, Forensic Pathologist/Consultant, 
  Coastal Regional Medical Examiner, Georgia Bureau of 
  Investigation
    Oral Statement...............................................    24
    Written Statement............................................    26
    Biography....................................................    31

Mr. Peter J. Neufeld, Co-Founder and Co-Director, The Innocence 
  Project
    Oral Statement...............................................    32
    Written Statement............................................    34
    Biography....................................................    53

Discussion.......................................................    54

             Appendix 1: Answers to Post-Hearing Questions

Mr. Peter M. Marone, Director, Virginia Department of Forensic 
  Science........................................................    82

Ms. Carol E. Henderson, Director, National Clearinghouse for 
  Science, Technology and the Law; Professor of Law, Stetson 
  University College of Law; Past President, The American Academy 
  of Forensic Sciences...........................................    85

Mr. John W. Hicks, Director, Office of Forensic Services, New 
  York State Division of Criminal Justice Services (Ret.); Former 
  Director, FBI Laboratory.......................................    87

Dr. James C. Upshaw Downs, Forensic Pathologist/Consultant, 
  Coastal Regional Medical Examiner, Georgia Bureau of 
  Investigation..................................................    89

Mr. Peter J. Neufeld, Co-Founder and Co-Director, The Innocence 
  Project........................................................    96

             Appendix 2: Additional Material for the Record

Letter to Chair David Wu and Subcommittee Members from Joseph I. 
  Cassilly, President, National District Attorneys Association, 
  dated March 9, 2009............................................   128

 
 STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: THE ROLE OF THE 
             NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY

                              ----------                              


                        TUESDAY, MARCH 10, 2009

                  House of Representatives,
         Subcommittee on Technology and Innovation,
                       Committee on Science and Technology,
                                                    Washington, DC.

    The Subcommittee met, pursuant to call, at 10:00 a.m., in 
Room 2318 of the Rayburn House Office Building, Hon. David Wu 
[Chair of the Subcommittee] presiding.


                            hearing charter

               SUBCOMMITTEE ON TECHNOLOGY AND INNOVATION

                  COMMITTEE ON SCIENCE AND TECHNOLOGY

                     U.S. HOUSE OF REPRESENTATIVES

                     Strengthening Forensic Science

                     in the United States: The Role

                      of the National Institute of

                        Standards and Technology

                        tuesday, march 10, 2009
                         10:00 a.m.-12:00 p.m.
                   2318 rayburn house office building

I. Purpose

    On Tuesday, March 10, 2009, the Subcommittee on Technology and 
Innovation will convene a hearing to review the scientific and 
technical issues raised by the recently released National Academies 
report Strengthening Forensic Science in the United States: A Path 
Forward. The hearing will discuss issues related to the accuracy, 
standards, reliability, and validity of forensic science, as well as 
how the expertise of the National Institute of Standards and Technology 
(NIST) in forensics related research, developing standards and 
certified test methodologies, and performing laboratory accreditation 
may be leveraged to implement some of the recommendations in the 
report.

II. Witnesses

Mr. Pete Marone is the Director of Technical Services at the Virginia 
Department of Forensic Science.

Ms. Carol Henderson is the Director of the National Clearing House for 
Science, Technology and the Law; a Professor of Law at Stetson 
University College of Law; and the Past President at the American 
Academy of Forensic Sciences.

Mr. John Hicks is the retired Director of the Office of Forensic 
Services, New York State Division of Criminal Justice Services; and the 
former Director at the FBI Laboratory.

Mr. Peter J. Neufeld is the Co-Founder and Co-Director of the Innocence 
Project.

Dr. J.C. Upshaw Downs is the Coastal Regional Medical Examiner at the 
Georgia Bureau of Investigation.

III. Issues and Concerns

    Prompted by concerns over the reliability and variability of 
forensic evidence, the National Academy of Sciences Committee on 
Identifying the Needs of the Forensic Science Community recently 
completed a study on the status of the Nation's crime labs, 
Strengthening Forensic Science in the United States: A Path Forward. 
The committee found that many of the techniques and technologies used 
in forensic science lack rigorous scientific discipline. In addition, 
the committee reported a lack of standard accreditation processes for 
individual labs and the technicians who collect and process evidence.
    The committee recommended that a new agency, separate from the 
legal and law enforcement communities, be created to provide oversight 
to correct these inconsistencies which impact the accuracy, 
reliability, and validity of forensic evidence. Many of the functions 
envisioned by the report committee for this new agency already are, or 
could be, performed at NIST. These activities include standards 
setting, the creation of validated test methodologies, and the 
development of standard practices. Indeed, the report recommends this 
new agency specifically work with NIST in several areas.
    The report committee notes that on two fronts the forensic 
disciplines lack consistent science. The first concern is that 
different forensic disciplines vary in the degree to which they are 
based on a well-tested, rigorous scientific methodology. For instance, 
whereas the methodology for fingerprint identification is 
scientifically proven, the analysis of other forensic evidence, like 
bite-mark comparisons, does not follow a prescribed and scientifically 
verified methodology. The second issue with consistency is the degree 
to which some disciplines rely on inexact interpretation to reach their 
findings and report their conclusions. This is evident in the practice 
of identifying partial or smudged fingerprints, when practitioners rely 
on judgment, instead of a reliable scientific methodology, which can 
introduce human error and bias. Furthermore, there is no consistent 
scale or nomenclature to report these types of findings. For example, 
the exact same finding could be reported as ``a match'' in one 
jurisdiction or ``consistent with'' in another jurisdiction.

IV. Background

    DNA evidence has been widely used in the legal system for many 
years. DNA's accepted use in this capacity stems from the fact that it 
has been rigorously shown to identify, with a high degree of certainty, 
a connection between evidence and an individual of interest. This 
certainty can be traced back to efforts of NIST on the development of 
both the test methodologies for DNA analysis and the standard reference 
materials that can be used for laboratory as well as test 
certification. There are other common techniques used by forensic 
scientists such as fingerprint analysis, ballistic tests, hair 
matching, pattern recognition, and paint matching that could benefit 
from a robust research and development program. Many of these 
techniques based on observation, experience, and reasoning lack 
validation on their accuracy and reliability. Because of these 
shortcomings, many of the forensic tests can have high error rates. To 
resolve these issues, additional research and experimental testing 
detailing the reliability of the methods is required.

Lack of Federal Standards
    The forensic science community includes crime scene investigators, 
State and local crime laboratories, medical examiners, private forensic 
laboratories, and law enforcement identification units. They may use 
registries of information, databases for matching, or reference 
materials for comparisons of evidence. The registries need a common 
interface to aid in training and accessibility for all users in the 
community. The databases need to be inter-operable to allow for 
communication between different sources. In addition, reference 
materials must be standardized so that test equipment can all be 
calibrated to an accurate and reliable level. Currently there are no 
clear and consistent standards for the forensic community to apply the 
tools available to them; instead there are many different methodologies 
with no single certification method for practitioners. Without clear 
and measurable standards for all forensic science disciplines, not just 
DNA analysis, it is impossible to assess whether one organization is 
properly conducting analyses. In addition, it is difficult to ascertain 
the validity of a specific forensic science methodology. The report 
recommends that standards need to be set for all facets of forensic 
science and a certification program needs to be developed for both the 
practitioners and laboratories.
    Chair Wu. Good morning. The hearing will now come to order.
    I want to welcome everyone to this morning's hearing. The 
spur for this hearing was the release of a recent National 
Academy of Sciences report, Strengthening Forensic Science in 
the United States: A Path Forward. This report makes a number 
of recommendations on how to improve forensic science in the 
United States and many of the recommendations ask for research 
that supports forensic science and for standards and 
accreditation to ensure the validity, accuracy and reliability 
of forensic science testing.
    The purpose of today's hearing is to determine whether we 
can build on the resources and expertise at the National 
Institute of Standards and Technology (NIST) to implement some 
of the report's recommendations. The report suggests creating 
an entirely new department to govern forensics issues and calls 
for this new agency to work with NIST. Given our current 
economic climate and other constraints, I would first like to 
explore how we can build upon and improve existing federal 
capabilities rather than trying to create a whole new 
governmental structure. We have all learned from the experience 
of creating the Department of Homeland Security that 
legislatively providing for a new agency is far easier and far 
different than from executing on the actual implementation of 
the new agency.
    I fully support the goal of the report to improve forensic 
science in the United States. The popular television show, 
``Crime Scene Investigation,'' or CSI, has raised public 
awareness and expectation of the role of forensic science in 
helping us to solve crimes. However, the show depicts the 
practice of forensics in a manner that is far different from 
the current state of technology or our methodology. I hope that 
this hearing is a first step in bringing reality into better 
alignment with the high expectations created by our 
entertainment industry.
    We have an experienced and distinguished panel of witnesses 
today. I want to thank each of you for taking the time to 
appear before the Subcommittee and I look forward to hearing 
your views and advice on how to move forward from here. We all 
want to support law enforcement and judicial process by 
providing the best forensic science base available.
    Now I would like to recognize the Ranking Member of the 
Subcommittee, Representative Smith, for his opening statement.
    [The prepared statement of Chair Wu follows:]
                  Prepared Statement of Chair David Wu
    Good morning. I want to welcome everyone to this morning's hearing. 
The spur for this hearing was the release of a recent National Academy 
of Sciences report: ``Strengthening Forensic Science in the United 
States: A Path Forward.'' This report makes a number of recommendations 
on how to improve forensic science in the United States. Many of the 
recommendations ask for research that supports forensic science and for 
standards and accreditation to ensure the validity, accuracy, and 
reliability of forensic science testing.
    The purpose of today's hearing is to determine whether we can build 
on the resources and expertise at the National Institute of Standards 
and Technology to implement some of the report's recommendations. The 
report suggests creating an entirely new department to govern forensics 
issues and calls for this new department to work with NIST. Given the 
current economic climate I would like to explore how we can build upon 
and improve existing federal capabilities rather than trying to create 
a whole new government structure. We have all learned from the creation 
of the Department of Homeland Security that legislating a new agency is 
far easier than executing on the implementation of the new agency.
    I fully support the goal of the report to improve forensic science 
in the United States. The popular television show ``Crime Scene 
Investigation,'' better known as CSI, has raised public awareness and 
expectation of the role of forensic science in solving crimes; however, 
the show depicts the practice of forensics in a manner that is far 
different from the current state of technology. I hope this hearing is 
a first step in moving from entertainment to reality.
    We have an experienced and distinguished panel of witnesses today 
who all have important and busy jobs. I want to thank them for taking 
the time to appear before the Subcommittee today. I look forward to 
hearing their views and advice on how to move the process forward. We 
all want to support our law enforcement and judicial processes by 
providing them with the best forensic science base possible.

    Mr. Smith. Mr. Chair, thank you for holding this hearing 
today on the very important issue of forensic science. Many, if 
not most, of the issues we undertake in this subcommittee have 
direct implications well beyond our scientific and 
technological enterprise. Forensic science is no different but 
it is certainly of particular unique importance in that it is a 
key factor in the fundamental functioning of our justice 
system. This importance has only increased in recent years 
through the advancement of new technologies that have enabled 
forensics to contribute a growing amount of information to law 
enforcement investigations as well as courtroom proceedings. 
These advances undoubtedly improved our ability to not only 
identify and convict the guilty but also, very importantly, 
exclude the innocent. However, as the National Academy of 
Sciences' [NAS] report on strengthening forensic science 
demonstrates, continued improvement is necessary to maximize 
the quality of and our corresponding confidence in forensic 
evidence that is used in the courtroom. The NAS report's core 
finding, that many forensic disciplines are in need of more 
rigorous scientific review to validate their accuracy and 
reliability, is very serious and requires the full and 
immediate attention of Congress, the justice system and 
certainly the forensic science community.
    But it is important to remember the absence of rigorous 
scientific underpinning in many forensic disciplines does not 
mean these methods are inaccurate or unreliable. Accordingly, I 
think it is important to recognize the enormous value forensic 
evidence provides to the justice system, even in the absence of 
full scientific validation, and accordingly exercise caution to 
ensure we are not overly dismissive of forensic evidence.
    The immediate focus of this hearing today, however, is to 
review the scientific and technical recommendations of the NAS 
report and discuss how they can best be addressed, particularly 
through the National Institute of Standards and Technology, 
which has the programs and expertise to be a key driver of 
improvements in forensic science.
    I thank the witnesses for being here today, and I look 
forward to a productive discussion.
    [The prepared statement of Mr. Smith follows:]
           Prepared Statement of Representative Adrian Smith
    Mr. Chairman, thank you for holding this hearing today on the very 
important issue of forensic science. Many if not most of the issues we 
undertake in this subcommittee have direct implications well beyond our 
scientific and technological enterprise. Forensic science is no 
different, but it is of particularly unique importance in that it is a 
key factor in the fundamental functioning of our justice system.
    This importance has only increased in recent years through the 
advancement of new technologies that have enabled forensics to 
contribute a growing amount of information to law enforcement 
investigations as well as courtroom proceedings. These advances have 
undoubtedly improved our ability to not only identify and convict the 
guilty, but also exclude the innocent.
    However, as the National Academy of Sciences report on 
strengthening forensic science demonstrates, continued improvement is 
necessary to maximize the quality of--and our corresponding confidence 
in--forensic evidence that is used the courtroom.
    The NAS report's core finding--that many forensic disciplines are 
in need of more rigorous scientific review to validate their accuracy 
and reliability--is very serious, and requires the full and immediate 
attention of Congress, the justice system, and the forensic science 
community.
    But it is important to remember the absence of rigorous scientific 
underpinning in many forensic disciplines does not mean these methods 
are inaccurate or unreliable; it simply means they are in need of 
evaluation. Accordingly, I think it is important to recognize the 
enormous value forensic evidence provides to the justice system even in 
the absence of full scientific validation, and accordingly exercise 
caution to ensure we are not overly dismissive of forensic evidence.
    The immediate focus of this hearing today, however, is to review 
the scientific and technical recommendations of the NAS report and 
discuss how they can best be addressed, particularly through the 
National Institute of Standards and Technology, which has the programs 
and expertise to be a key driver of improvements in forensic science.
    I thank the witnesses for being here, and I look forward to a 
productive discussion.

    Mr. Smith. One final item, Mr. Chair. I do have a letter 
from the National District Attorneys' Association, and with 
unanimous consent I ask that it be included in the record. [See 
Appendix 2: Additional Material for the Record.]
    Chair Wu. Without objection, so ordered.
    Mr. Smith. Thank you, Mr. Chair.
    Chair Wu. Thank you, Mr. Smith.
    If there are other Members who wish to submit additional 
opening statements, your statements will be included in the 
record at this point.
    [The prepared statement of Mr. Mitchell follows:]
         Prepared Statement of Representative Harry E. Mitchell
    Thank you, Mr. Chairman.
    Today we will discuss issues related to the accuracy, standards, 
reliability, and validity of forensic science and how the National 
Institutes of Standards and Technology can play a role in developing 
standards and certified test methodologies related to forensic science.
    According to Strengthening Forensic Science in the United States: A 
Path Forward, a study conducted by the National Academy of Sciences 
Committee on Identifying the Needs of the Forensic Science Community, 
many of the techniques and technologies utilized in forensic science 
lack rigorous scientific discipline.
    Furthermore, this study also found that individual labs and the 
technicians who collect and process evidence do not utilize consistent 
and standard accreditation methods.
    I look forward to hearing more from our witnesses on how NIST can 
play a role in the standardization of forensic science methodology.
    I yield back.

    [The prepared statement of Mr. Broun follows:]
           Prepared Statement of Representative Paul C. Broun
    Good Morning. I'd like to thank Chairman Wu and Ranking Member 
Smith for hosting this important hearing. I'd also like to join them 
and the rest of my colleagues in welcoming our esteemed guests. The 
National Academy of Sciences recent report: ``Strengthening Forensic 
Science in the United States: A Path Forward,'' set forth numerous 
ideas to improve the forensic sciences including upgrading our systems 
and organizational structures, better training, widespread adoption of 
uniform and enforceable best practices, and mandatory certification and 
accreditation programs. These are all reasonable and necessary 
recommendations which would go a long way toward improving forensic 
science in the United States and I applaud the members of the National 
Academies for their diligence and hard work in assembling this report 
as we look to improve the reliability and accuracy of forensic testing.
    As a scientist, I value truth above all else. I believe a vital 
component of our judicial system should be to provide a means of 
forensic testing that is beyond reproach in its accuracy and is uniform 
in its application. It is of a vital national interest that our 
forensic science techniques and procedures be as close to perfect as 
possible. It's a shame that forensic evidence has been misinterpreted 
in that past and resulted in innocent people being jailed unjustly, or 
conversely in the guilty being set free. So I stress that it is 
absolutely vital that we continue to commit resources towards 
furthering forensics with specific goals of one day reaching 100 
percent accuracy and of broadening the applications for its use.
    However, I must join with the Chairman in my skepticism of creating 
an entirely new department to oversee this venture. Not only is it 
rarely ever a good idea for the Federal Government to create a new 
bureaucracy, as the Chairman has already stated, but in my view it is 
unconstitutional to do so, as nowhere in the documents our Founding 
Fathers penned do they afford Congress that power. Instead, I believe 
that we should look to individual states to set uniform standards for 
use within their borders, or expanding the resources available to NIST 
and authorizing them to formulate and set new standards and to test 
current and potential forensic science techniques which may be even 
more beneficial to the pursuit of truth into the future. Any move to 
federalize forensic science is a move to stifle scientific freedom and 
in its place adopt more government control.
    I look forward to hearing testimony from these many fine scientists 
who have graciously come before us today and I hope they can help us 
move towards our mutual goal of strengthening forensic science and its 
applications in our criminal justice system.
    Thank you again for allowing me the time to speak today Mr. 
Chairman.

    Chair Wu. It is my pleasure to introduce our panel of 
witnesses. Mr. Pete Marone is the Director of Technical 
Services at the Virginia Department of Forensic Science. Ms. 
Carol Henderson is the Director of the National Clearinghouse 
for Science, Technology and the Law. She is also a Professor of 
Law at Stetson University College of Law and the Past President 
of the American Academy of Forensic Sciences. Mr. John Hicks is 
the retired Director of the Office of Forensic Services at the 
New York State Division of Criminal Justice Services and the 
former Director of the FBI Laboratory. Dr. Jamie Downs is the 
Coastal Regional Medical Examiner at the Georgia Bureau of 
Investigation. And our final witness is Mr. Peter Neufeld, who 
is the Co-Founder and Co-Director of the Innocence Project.
    Mr. Marone, if you would like to proceed, you will each 
have five minutes for your spoken testimony and your written 
testimony will be included in the record. When you complete 
your testimony--all of you complete your testimony--we will 
begin with questions and each Member will have five minutes to 
question the panel. Mr. Marone, please proceed.

STATEMENT OF MR. PETER M. MARONE, DIRECTOR, VIRGINIA DEPARTMENT 
                      OF FORENSIC SCIENCE

    Mr. Marone. Thank you, Mr. Chair, Ranking Member Smith. It 
is certainly a pleasure, and I appreciate the opportunity to 
speak to this committee. My name is Peter Marone and I have 
gotten a promotion since then. I am Director of the 
Commonwealth of Virginia's Department of Forensic Science now 
and was a member of the committee identifying the needs of the 
forensic science community. Of course, this was a study that 
NIJ [National Institute of Justice] funded at the request of 
the Senate Appropriations Committee but it was really requested 
quite heavily by the forensic science community to make it 
happen.
    In the testimony today, what I would like to do is shorten 
and simplify all the recommendations of the committee and 
specify or spend the time on four particular issues and the 
full potential of the program, broken into scientific and 
technical challenges that must be met in order for forensic 
science enterprise to reach its full potential. I would like to 
break it into four categories, the first being funding, 
resources, if you will, research, standardization, and 
education.
    The first element really is probably one of the most 
important, and it was not specifically addressed as a 
recommendation by the committee, and that is the resource 
issue. Although we didn't address it as a particular criteria, 
it was very, very understood by the committee that for the 
State and local laboratories there was a lack of resources, 
whether it be money, staffing, training or equipment necessary 
to promote and maintain strong forensic science systems. As you 
are acutely aware right now, states are now in a fiscal crisis. 
I would submit that laboratories and medical examiners' offices 
have been in a fiscal crisis for a number of years. This is 
nothing new for us. Further, the funding from the Federal 
Government has really been focused overwhelmingly to one 
discipline, and that is DNA. What I would like to say as an 
individual is, make it very clear that we are asking for 
funding for the full breadth of the forensic science 
disciplines but not to the exclusion of DNA. In other words, we 
are saying very clearly, don't take the DNA money and give it 
to everybody else, keep all the disciplines funded and 
supported. I want to make that very, very clear because in a 
lot of issues that is a misunderstanding.
    Under the category of research, the committee determined 
that the forensic science disciplines need further research to 
provide the proper underlying validation for some of the 
methods in use and to provide the basis for more precise 
statements about their reliability and precision. The report 
clearly states that there is a value in many of the disciplines 
addressed that the forensic science community itself has been 
stating for more than a decade. In order to accomplish this we 
need more funding for research and a stronger, broader research 
base. Disciplines based on biological or chemical analysis such 
as toxicology, drug analysis, some trace-evidence disciplines 
such as explosives, fire debris, paint and fiber analysis are 
all well validated and shouldn't be in the same category as the 
experience-based disciplines such as fingerprints, firearms and 
tool marks and other pattern recognition types of analysis. We 
need studies, for instance, that look on a large population of 
fingerprints and tool marks just to qualify how many sources 
might share similar features. Similarly, we need more research 
on the issues of context effect and examiner bias.
    In standardization, for example, one of the issues was that 
laboratories need to be mandatorily accredited. During our 
reviews, we found that there are approximately 400 
laboratories--publicly funded laboratories in the United 
States, but 320 of them are already accredited so it is not 
like the laboratories aren't espousing this idea, and the same 
thing for the not-mandatory certification. There are a 
significant number of individuals who are voluntarily being 
certified.
    The primary conclusion was that the forensic science 
enterprise doesn't have a unified plan. It needs strong, fresh, 
national direction. Strong leadership is needed to adopt and 
promote aggressive long-term agenda to strengthen forensic 
science. Our report strongly urges Congress to establish a new 
independent institute of forensic science to lead the research 
efforts, establish and enforce standards for forensic science 
professionals, and oversee education. Now, I understand that 
NIST [National Institute of Standards and Technology] serves 
that purpose to a certain extent and we all agree that NIST 
does serve a very important purpose. It does have expertise in 
standardization and experience in a number of those types of 
issues for establishing coherent laboratory practices and 
reporting professionalism, codes of ethics and so forth. What 
NIST doesn't have is all the package, and as the committee 
reviewed all the existing entities, nobody has the global 
experience necessary to complete the package, to give all the 
planning. There are bits and pieces in every one of them, 
nobody has that, and the key is that whatever entity this is 
has to be something that is new in the sense that the fear is 
if you put it in an existing entity or under an existing 
agency, they will tend to create the new entity in their own 
image and likeness, if you will. In other words, they will 
continue doing things the way they do, and what we really need 
is fresh thinking, new thoughts, new issues to be addressed.
    I will finish up quite quickly here now. Mr. Chair and 
Members of the Committee, I would like to thank you for the 
opportunity to come here today. I would like to conclude by 
quoting a part of our study which I believe is one of the most 
important statements and findings we had. ``Numerous 
professionals in the forensic science community and the medical 
examiner system worked for years to achieve excellence in their 
fields, aiming to follow high ethical norms, develop sound 
professional standards, ensure accurate results in their 
practices and improve the processes by which accuracy is 
determined. Although the work of these dedicated professionals 
has resulted in significant progress in the forensic science 
disciplines in recent decades, major challenges still face the 
forensic science community.''
    I thank you for your time. I will be pleased to answer any 
questions you have.
    [The prepared statement of Mr. Marone follows:]
                 Prepared Statement of Peter M. Marone
    Good morning, Mr. Chairman and Members of the Committee. My name is 
Pete Marone. I am Director of the Commonwealth of Virginia's Department 
of Forensic Sciences and a member of the Committee on Identifying the 
Needs of the Forensic Science Community of the National Research 
Council. The Research Council is the operating arm of the National 
Academy of Sciences, National Academy of Engineering, and the Institute 
of Medicine of the National Academies, chartered by Congress in 1863 to 
advise the government on matters of science and technology. Our study 
was sponsored by the National Institute of Justice at the request of 
the Senate Appropriations Committee.
    This study, as you know, was requested by Congress at the urging of 
the Crime Lab Community itself. The charge was (1) assess the present 
and future resource needs of the forensic science community, to include 
State and local crime labs, medical examiners, and coroners; (2) make 
recommendations for maximizing the use of forensic technologies and 
techniques to solve crimes, investigate deaths, and protect the public; 
(3) identify potential scientific advances that may assist law 
enforcement in using forensic technologies and techniques to protect 
the public; (4) make recommendations for programs that will increase 
the number of qualified forensic scientists and medical examiners 
available to work in public crime laboratories; (5) disseminate best 
practices and guidelines concerning the collection and analysis of 
forensic evidence to help ensure quality and consistency in the use of 
forensic technologies and techniques to solve crimes, investigate 
deaths, and protect the public; (6) examine the role of the forensic 
community in the homeland security mission; (7) [examine the] inter-
operability of Automated Fingerprint Information Systems; and (8) 
examine additional issues pertaining to forensic science as determined 
by the Committee. The reason the community asked for this study was due 
to the fact that the focus of the Federal Government has been on the 
single discipline of DNA. The community, including myself, knew that 
the other disciplines and the state of our system needed to have 
further resources and assistance from the Federal Government. In my 
testimony today I will simplify, due to time, our report--Strengthening 
Forensic Science in the United States: A Path Forward--into the 
scientific and technical challenges that must be met in order for the 
forensic science enterprise in the United States to operate to its full 
potential. Specifically, I will discuss them in four classes of 
resources, research, standardization, and education, as these are the 
primary challenges at this time. The report found that some of this 
work has already been begun by forensic scientists, but that additional 
effort and coordination are needed to carry it through.
    The first element of the charge, while not specifically addressed 
in the form of a recommendation, led to a clear committee understanding 
that in general, ``for the State and local laboratories there has been 
a lack of resources (money, staff, training, and equipment) necessary 
to promote and maintain strong forensic science laboratory systems.'' 
As I know you are acutely aware, the states are in a fiscal crisis. As 
a State Crime Lab Director I know that this has in fact been the 
situation for some time. As such, the State and local Crime Labs and 
the Medical Examiner community have not been receiving the funds they 
need, but the case load has been increasing exponentially. Further, the 
funding from the Federal Government has been focused overwhelmingly on 
the discipline of DNA, which is not our largest caseload. The Congress 
has consistently put some funding in for the other disciplines but it 
falls far short of what is necessary. I want to make it clear, Mr. 
Chairman, that this is at the root of many of our issues and, speaking 
as an individual, I am asking Congress to please put funding in at an 
adequate level for all of forensic science, not just a single 
discipline.
    Under the category of research, the committee determined that some 
of the forensic science disciplines need further research to provide 
what the scientific community commonly uses as the proper underlying 
validation for some of the methods in common use and to provide the 
basis for more precise statements about their reliability and 
precision. Because a method has not been sufficiently validated does 
not make it invalid. In order to accomplish this, we need more funding 
for research and a stronger, broader research base. The disciplines 
based on biological or chemical analysis, such as toxicology, drug 
analysis, and some trace evidence sub-disciplines such as explosives, 
fire debris, polymers to include paint and fiber analysis, are 
generally well validated and should not be included in the same 
category as the more experience-based disciplines, such as 
fingerprints, firearms and toolmarks, and other pattern-recognition 
types of analysis. There are variations within this latter group; for 
example, there is more available research and protocols for fingerprint 
analysis than for bite marks. We need studies, for instance, that look 
at large populations of fingerprints and toolmarks so as to quantify 
how many sources might share similar features. In addition to 
investigating the limits of the techniques themselves, research is also 
needed on the effects of context and examiner bias.
    In the realm of standardization and education our report raised 
concerns about the lack of mandatory requirements for professional 
certification and for laboratory accreditation and the variability in 
the way forensic science results are reported in courts. I think it is 
critical to first understand that most in the forensic science 
community have already begun to move in the direction of accreditation; 
in fact the recently published Census of Publicly Funded Crime 
Laboratories, 2005 stated that by 2005, 82 percent of the public 
laboratories were accredited. That number is even higher today. But 
more can be done. Our report calls for certification that is based on 
written examinations, supervised practice, proficiency testing, and 
adherence to a code of professional practice. The report explicitly 
calls for the National Institute of Standards and Technology, NIST, in 
collaboration with the proposed National Institute of Forensic Science 
[NIFS] to be involved in setting standards for certification and 
accreditation and in developing protocols and best practices for 
forensic analysis, using existing programs as a basis. Assisting 
laboratories which have not yet been accredited is a lengthy process. 
Each policy and method must be reviewed to determine if it is in 
compliance and, if not, what must be done to bring it into compliance. 
This process can take a few years. That is not to say that the work 
done by the laboratory is suspect during the process, but that the 
standards and criteria are quite specific.
    Our report's primary conclusion is that the forensic science 
enterprise does not have a unified plan and needs strong, fresh 
national direction. Strong leadership is needed to adopt and promote an 
aggressive, long-term agenda to strengthen forensic science. Our report 
strongly urges Congress to establish a new, independent National 
Institute of Forensic Science to lead research efforts, establish and 
enforce standards for forensic science professionals and laboratories, 
and oversee education standards. Our committee carefully considered 
whether such a governing body could be established within an existing 
agency, and determined that it could not. While we recognize the 
difficulty with this task, we believe that the root of the struggles 
this community has is the lack of federal support and guidance.
    However, while we were impressed with the technical abilities of 
three NIST staffers who briefed our committee, and in fact had a NIST 
scientist as a member of our committee, we concluded that NIST does not 
have expertise in enough of the essential areas to play the governance 
role that forensic science needs. First, while NIST has a strong 
reputation in some aspects of forensic science, it would not be seen by 
that community as a natural leader. In large part that is because the 
context in which forensic science operates is unique. For example, 
forensic science must make the most of whatever evidence has been 
collected, a situation that is not always amenable to prescriptive 
standards. And the recommended new federal entity must be sensitive to 
the interplay between forensic sciences and the criminal justice 
system, which is unfamiliar territory for NIST. Our report calls on the 
new entity to lead an effort to remove public forensic laboratories 
from the administrative control of law enforcement agencies or 
prosecutors' offices or be autonomous within such agencies. That is 
likely to be a difficult task, one that requires knowledge of 
relationships among those operations and between federal, State, and 
local jurisdictions. It is a challenge to which NIST is not well 
suited.
    As I already indicated, a key recommendation of our report is to 
build up the research base and educational infrastructure that will 
enable forensic science to move forward. NIST does not have much 
experience in establishing and running an extramural research program, 
and its ability to stimulate new academic forensic programs and 
strengthen existing ones is untested. Another key requirement is to 
strengthen the practices of forensic science. While NIST has great 
expertise in establishing laboratory standards, it has not previously 
taken on a task similar to what is required for forensic science: 
establishing a coherent set of standards for laboratory practice, 
reporting, and professionalism (including codes of ethics), along with 
standards and practices for laboratory accreditation and professional 
certification and incentives for their widespread adoption.
    NIST does not have expertise in, and influence over, the 
medicolegal death investigation system, nor expertise in the issues 
that need to be addressed to strengthen that system, a critical 
recommendation in our report.
    However, the strongest reason for establishing a new independent 
entity is that it could then be established according to the vision 
laid out in our report. If a new institute is established as an arm of 
some existing entity, that entity will tend to design it according to 
its own existing knowledge and experience, with whatever bureaucracy or 
biases that entails. As an example of this very issue, a draft copy of 
a white paper from NIST, provided to me by the staff of this committee 
regarding the establishment of a National Institute of Forensic Science 
within NIST, lists a number of actions it proposes to answer the 
recommendations of the NAS report. However, what was not addressed at 
all in that proposal was how the existing accreditation programs (both 
for laboratories and forensic science undergraduate and graduate 
education programs), programs for certification of individuals, and the 
technical protocols (although not mandatory) that are already in place 
through the various scientific working groups (SWGs) and in use by many 
laboratories, would serve as a basis for and be incorporated into the 
plan. There also was no indication as to how laboratories would be 
supported in their efforts to meet these standards.
    Mr. Chairman and Members of the Committee, I thank you for the 
opportunity to come before you today. I'd like to conclude by quoting a 
part of our study which I believe is one of the most important 
statements and findings we had:

         ``Numerous professionals in the forensic science community and 
        the medical examiner system have worked for years to achieve 
        excellence in their fields, aiming to follow high ethical 
        norms, develop sound professional standards, ensure accurate 
        results in their practices, and improve the processes by which 
        accuracy is determined. Although the work of these dedicated 
        professionals has resulted in significant progress in the 
        forensic science disciplines in recent decades, major 
        challenges still face the forensic science community.''

    Again, thank you for your attention, and I will be pleased to 
answer questions.




                     Biography for Peter M. Marone

B.S. Chemistry, University of Pittsburgh, 1970

M.S. Chemistry, University of Pittsburgh, 1971

    Pete Marone began his forensic career at the Allegheny County Crime 
Laboratory in 1971 and remained in Pittsburgh until 1978 when he 
accepted a position with the Virginia Bureau of Forensic Science. In 
1998 he became the Central Laboratory Director with the Division. On 
February 1, 2007 he was appointed Director of the Virginia Department 
of Forensic Science. He is a member of the American Society of Crime 
Laboratory Directors (ASCLD), American Academy of Forensic Sciences, 
Mid-Atlantic Association of Forensic Scientists, Forensic Science 
Society, and the International Association for Chemical Testing. He has 
served on the ASCLD DNA Credential Review Committee and as the chair of 
the undergraduate curriculum committee of the Technical Working Group 
for Forensic Science Training and Education (TWGED), is a past Chair of 
ASCLD-LAB (Laboratory Accreditation Board). He is a member of the 
Forensic Education Program Accreditation Commission (FEPAC) for the 
American Academy of Forensic Sciences, and served on the National 
Academy of Sciences Committee on Identifying the Needs of the Forensic 
Science Community. He is currently Chair of the Consortium of Forensic 
Science Organizations (CFSO).

    Chair Wu. Thank you, Mr. Marone.
    Ms. Henderson, please proceed.

    STATEMENT OF MS. CAROL E. HENDERSON, DIRECTOR, NATIONAL 
CLEARINGHOUSE FOR SCIENCE, TECHNOLOGY AND THE LAW; PROFESSOR OF 
  LAW, STETSON UNIVERSITY COLLEGE OF LAW; PAST PRESIDENT, THE 
             AMERICAN ACADEMY OF FORENSIC SCIENCES

    Ms. Henderson. Thank you, Mr. Chair and Members of the 
Subcommittee. I was already introduced but I wanted to mention 
that as the Director of the National Clearinghouse for Science, 
Technology and the Law, we have created the only searchable 
database in the world of Raw science and technology 
information. As you mentioned, I am also a Professor of Law and 
the immediate Past President of the American Academy of 
Forensic Sciences, and in fact, two of the officers of the 
Academy are here in the audience today.
    I was an Assistant United States Attorney with extensive 
experience; I was also a founder of the Florida Innocence 
Project; and I have more than 20 years of involvement in 
teaching and scholarly writing on the interface of science and 
law. I am well aware of the importance of forensic science to 
the justice system and the nexus between science and law is 
critical to forensic science. We therefore have to recognize 
that the forensic overhaul which has been desired by the NAS 
[National Academy of Sciences] committee with extensive work, 
and I did go to four of the five hearings that they had, 
requires a collaboration of all the stakeholders: attorneys and 
judges, crime laboratory and technical personnel and the civil 
expert witnesses as well.
    I believe we have really been presented with an opportunity 
to make forensic science serve justice even more reliably and 
effectively. This is the time to build better forensic science, 
but we must be realistic in regard to the urgency of acting now 
and not permitting defects identified in the report to go 
unaddressed, yet we have to make the best use of available 
resources and go forward in a measured and considered manner 
that creates sound and lasting systems. I am therefore 
recommending a three-step approach.
    One is immediate action using existing federal resources to 
address scientific standards. Two, we need interim action which 
will evaluate strategic policy decisions and strategies and 
explore innovative solutions. Vision is needed. And then a 
long-term goal of creating a National Institute of Forensic 
Sciences [NIFS] as envisioned by the [NAS] committee.
    The urgent action, which I am going to go to first, is 
making the best use of our existing resources. Many of the 
issues that were identified in the report concern scientific 
foundation of disciplines and subdisciplines in forensic 
science. The concerns range from, and I quote, ``Are these 
techniques fundamentally unsound'' to, while there is a body of 
evidence that the techniques are of value, there is a lack of 
validation to the degree that has been established in the 
introduction of DNA testing. There is an existing federal 
agency well suited to the task, namely the National Institute 
of Standards and Technology [NIST]. This is where we can begin. 
NIST has a national role in promoting scientific standards and 
has made significant contributions to the core science in 
several areas of forensic science, although not in all areas of 
forensic science.
    Now I would like to move on to the interim action. We need 
to implement a program to address policy issues and focus on 
innovative processes and these include, and I have to echo 
Pete, we need research, much more of it. We need education, and 
it is not just for the people who are in the crime 
laboratories, but for lawyers and judges. We need, of course, 
to continue accreditation and credentialing. We cannot be 
bridged with a Band-Aid, and I brought crime scene Band-Aids to 
show you all. You can have one later. All right. But, it is 
true a Band-Aid is not going to solve this problem, but a 
bridge will, and I think that is one thing that we have to look 
at. So these interim issues must be addressed, and in fact, 
notably, I have to tell you, there are very few papers 
regarding forensic science policy out there, and that is 
something else that needs to be addressed as well. There is no 
established forensic equivalent to think tanks like the Aspen 
Institute, and my objective in discussing these interim 
objectives with you is to emphasize how important they are and 
the need for carefully thought out policy and strategic 
planning.
    The long-term action is to create a NIFS, and I am very 
familiar with NIFS in Australia. It took them 20 years to get 
off the ground. And I talked to Alistair Ross, who is now the 
interim director, who was the original director there, and I 
talked to him last night. Many of the recommendations say this 
is great to have an oversight and coordinating body, but you 
really have to be practical, and I have to say, that is one 
thing: I am practical. This committee knows all too well the 
lengthy, you know, consultative processes that will have to be 
undertaken if the government chooses to pursue creating a NIFS 
in the United States. The process will not be instant and will, 
as with the interim issues discussed above, benefit from 
careful analysis of policy, strategic planning and 
implementation factors.
    All right. So now I would like to talk about the overhaul, 
which is what was recommended in the NAS report, and these are 
more general considerations based on my personal experience 
both as a law professor, a federal prosecutor and the Past 
President of the American Academy of Forensic Sciences [AAFC], 
although as I mentioned, I am not here as a spokesperson for 
the Academy, only the president or the president-elect can 
speak. The lack of academic freedom in research and development 
results in a stifling of forensic science. As long as the 
overwhelming body of forensic science does not challenge itself 
or respond to the voices of all its stakeholders, especially 
the legal community which is a primary stakeholder, we won't 
move forward. I do have great hope, though, for forensic 
science. In fact, my theme while I was the President [of AAFS] 
was, Forensic Science: Envisioning and Creating the Future. 
AAFS, I have to tell you, has recognized education, 
credentialing accreditation, and we actually raised more than 
$300,000 last year for forensic science research because I 
knew, and I think all of us knew, it was a priority. And we 
have really welcomed the NAS report, and under President Tom 
Bohan, who is in the audience here, we will continue to 
champion changes to the forensic landscape.
    So how do we make significant changes? We can draw an 
analogy with the race to the Moon. The Space Age had 
catastrophes just like forensic science, but its successes came 
because there was a stretching, but achievable goal and 
scientists and engineers at NASA could apply themselves to 
delivering successful outcomes. Give forensic science the same 
target and we will see even more progress than has been 
achieved so far. Challenging the status quo is as important as 
a unified commitment to a clear set of objectives and a 
strategic plan. We must identify innovative approaches. It is 
very key to be strategic. Innovation is a cultural issue as 
much as one of the infrastructure and a case can be illustrated 
by comparison to the medical model of education and research. 
Medical schools in top-tier universities act as centers of 
excellence and a second opinion is allowed, in fact expected. 
By contract, forensic science sometimes responds defensively to 
criticism and regards requests for a second opinion as a slight 
and not as a tool to encourage interaction with stakeholders. I 
have to say, Representative Gordon, the Chair of the House 
Committee on Science and Technology, has reminded us that 
scientific progress occurs when we foster the open exchange of 
ideas and information. That is excellent advice and could form 
the basis of a goal of collaboration between all our 
stakeholders, and President Obama has also pledged to place 
science at the top of the national agenda commitment, and that 
is something we in forensic science embrace.
    I would like to thank the Committee for the opportunity to 
address you and your serious consideration of the report.
    [The prepared statement of Ms. Henderson follows:]
                Prepared Statement of Carol E. Henderson

Mr. Chairman and Members of the Subcommittee:

    My name is Carol Henderson. I am the Director of the National 
Clearinghouse for Science Technology and the Law (NCSTL), which is a 
program of the National Institute of Justice. Through my leadership of 
NCSTL, I have been responsible for creating the only searchable 
database on science, technology and law information in the world. I am 
a Professor of Law at Stetson University College of Law, and the 
immediate Past President of the American Academy of Forensic Sciences. 
As an Assistant United States Attorney with extensive experience, a 
founder of the Florida Innocence Project, and more than twenty years of 
involvement in teaching and scholarly writing on the interface between 
science and law, I am well aware of the importance of forensic science 
to the justice system. The nexus between science and law is critical to 
forensic science. We therefore have to recognize that the ``forensic 
overhaul'' desired by the NAS Committee on Identifying the Needs of the 
Forensic Sciences Community requires the collaboration of all 
stakeholders: attorneys and judges, crime laboratory and technical 
personnel, and civil expert witnesses.
    We have been presented with an opportunity to make forensic science 
serve justice even more reliably and effectively. This is the time to 
build better ``forensic science.'' However, we must be realistic in 
regard to the urgency of acting now and not permitting defects 
identified in the report to go unaddressed, yet make the best use of 
available resources and go forward in a measured and considered manner 
that creates sound and lasting systems.
    I am therefore recommending a three-step approach:

          immediate action that uses existing federal resources 
        to address scientific standards;

          interim action to evaluate strategic policy 
        directions and strategies and explore innovative solutions;

          a long-term goal of creating a National Institute of 
        Forensic Sciences (NIFS) as envisioned by the NAS Committee on 
        Identifying the Needs of the Forensic Sciences Community.

Urgent Action: Making the best use of existing resources:

    Many of the issues identified in the report concern the scientific 
foundation of disciplines and sub-disciplines in forensic science. The 
concerns range from ``are these techniques fundamentally unsound'' to 
``while there is a body of evidence that the techniques are of value, 
there is a lack of validation to the degree that has been established 
in the introduction of DNA testing.''
    There is an existing federal agency well-suited to the task, namely 
the National Institute of Standards and Technology (NIST). NIST has a 
national role in promoting scientific standards, and has made 
significant contributions to the core science in several areas of 
forensic science. Its successes include advancement of the fundamental 
science of forensic DNA testing, fundamental work on AFIS systems, and 
major contributions to firearms comparisons. These bring together areas 
defined at various points in the NAS report as being the new scientific 
gold standard of forensic testing (DNA) and areas that are badly in 
need of fundamental research to provide a valid scientific basis to 
support decades of technical experience (fingerprinting and firearms/
tool mark examination). NIST also has a well-deserved reputation for 
independence--a recurring concern of the NAS panel.

Interim Action: Implement a program to address policy issues and focus 
                    on innovative processes:

    The corollary to the need for rapid action and using existing 
resources such as NIST to address scientific standards, is that the 
wider issues such as those of the independence of crime laboratories 
and encouraging education, research, accreditation and credentialing, 
require very careful development and consideration. For example, more 
than 90 percent of the Nation's crime laboratories are housed in law 
enforcement agencies. Any effort to change that will have major 
budgetary and operational consequences. We need to be certain that such 
action is founded in fact and that the change will produce the benefits 
expected. The very fact that more than 90 percent of the Nation's crime 
laboratories are administered from within law enforcement agencies 
means that sophisticated models and analysis will be needed to prove 
the case.
    Accreditation has already been addressed in the forensic community. 
There are established programs that provide accreditation to 
international standards and that have been accepted by the great 
majority of forensic science service laboratories, and indeed, as is 
recognized in the report, some states require their forensic science 
laboratories to be accredited. There are also existing certification 
programs in the forensic community, but there are no mandatory 
requirements and the response of public and private laboratories has 
been sketchy. The courts also have a vital say, with their role as 
gatekeepers of admissibility. The whole question of federal, State and 
local recognition, creation and funding of registration bodies, and the 
definition of meaningful certification standards is another case where 
a considered policy review is required to prevent waste of resources 
and miss-steps in implementation.
    The report identified shortcomings in research, education, and 
standards of practice in the Nation's crime labs. In-depth research and 
analysis of options leading to strategic policy and implementation 
plans is needed. The infrastructure to address the absence of a 
national research agenda in forensic science does not exist; the gap 
between service standards and high quality and life-long education 
cannot be bridged with a band-aid; and realization of the committee's 
recommendation to create a National Institute of Forensic Science 
(NIFS) as an independent oversight and coordinating body is a long-term 
issue.
    These interim issues must be addressed, notably papers regarding 
forensic science policy are marked by their absence. There is no 
established forensic equivalent to think tanks like the Aspen 
Institute, for example. My objective in discussing these interim 
objectives with you is to emphasize their importance and the need for 
carefully thought-out policy and strategic planning.

Long-term action: Create a National Institute of Forensic Science 
                    (NIFS):

    Many of the recommendations of the NAS Committee on Identifying the 
Needs of the Forensic Sciences Community center on NIFS as an oversight 
and coordinating body, and defer action to NIFS. However, it took more 
than 20 years from articulation of the concept before there was an 
operational NIFS in Australia. This committee knows only too well the 
lengthy consultative processes that will have to be undertaken if the 
Government chooses to pursue creating a NIFS in the United States. The 
process will not be instant and will, as with the interim issues 
discussed above, benefit from careful analysis of strategic policy and 
implementation factors, leading to a policy and implementation plan.

The focus of the make-over

    I would like to turn now to more general considerations based on my 
personal experience as a law professor, federal prosecutor and Past 
President of the American Academy of Forensic Sciences (AAFS). There is 
a tendency for crime laboratory administration to be conservative, and 
its ability to foster communication, collaboration and innovation 
probably suffers--as alluded to in the report--from the absence of a 
meaningful university presence in forensic science. The lack of 
academic freedom in research and development results in stifling of 
forensic science. As long as the overwhelming body of forensic science 
does not challenge itself or respond to the voices of all its 
stakeholders, especially the legal community which is its primary 
stakeholder, we will not move forward.
    I have great hope for the future of forensic science. In fact, my 
theme while I was President of the AAFS was ``Forensic Science: 
Envisioning and Creating the Future.'' AAFS has recognized the 
importance of education and credentialing by creating a Forensic 
Science Programs Education Committee and the Forensic Specialities 
Accreditation Board to review the quality of forensic education 
programs and assess boards or organizations that certify individual 
forensic scientists or other specialists. The Forensic Sciences 
Foundation during my presidency of AAFS raised more than $300,000 to 
support research. AAFS has welcomed the NAS report and under President 
Tom Bohan will continue to champion changes to the forensic landscape.
    These initiatives are a start, but how can we make the significant 
changes that are needed? We can draw an analogy with the race to the 
Moon. The space age had its catastrophes just like forensic science, 
but its successes came because there was a stretching but achievable 
goal and the scientists and engineers at NASA could apply themselves to 
delivering successful outcomes. Give forensic science the same target 
and we will see even more progress than has been achieved so far. 
Challenge to the status quo is as important as a unified commitment to 
a clear set of objectives and a strategic plan.
    Identifying innovative approaches is therefore a key strategic 
issue: forensic science will not be made better by providing increased 
funds to do more of the same things that have led it to where it is. 
``Innovation'' is a cultural issue as much as one of infrastructure and 
the case can be illustrated by comparison to the medical model of 
education, research and service delivery. Medical schools in top tier 
universities act as centers of excellence that truly advance medical 
science, including the critical role of transition from student to 
resident to faculty, with an on-going commitment to professional 
development and research. The ``second opinion'' is a natural and 
accepted part of medical practice. Centers of excellence attract 
independent and critical minds, ever seeking to find new and better 
diagnostic and therapeutic tools. By contrast, forensic science 
sometimes responds defensively to criticisms and regards requests for a 
``second opinion'' as a slight and not as a tool to encourage 
interaction with stakeholders.
    Rep. Bart Gordon, the Chairman of the House Committee on Science 
and Technology, has reminded us that ``Scientific progress occurs when 
we foster the open exchange of ideas and information.'' That is 
excellent advice and could form the basis of a goal of ``Collaboration 
between all stakeholders to build, by 2014, a solid foundation from 
which reliable scientific and technologic services can be provided to 
the whole of the justice system.'' President Obama has pledged to place 
science at top of the national agenda, a commitment that we in forensic 
science embrace.

Summary:

    In closing, I thank the Committee for the opportunity to address 
you and for your serious consideration of the report of the NAS 
Committee on Identifying the Needs of the Forensic Sciences Community. 
As we move forward we have to be conscious of the need for action, 
tempered by awareness of the current economic situation and by the 
importance of responding to the opportunity given to us by the NAS 
report in a way that will result in lasting and effective solutions. To 
that end, I have recommended a three-stage approach:

          Immediate action that uses existing federal resources 
        to address scientific standards

          Interim action to evaluate strategic policy 
        directions and strategies, and explore innovative solutions to 
        areas such as education and research, and

          Long-term action to create a National Institute of 
        Forensic Science (NIFS).

                    Biography for Carol E. Henderson

          Professional affiliations:

                  Past President, American Academy of Forensic 
                Sciences

                  Co-Chair Future of Evidence Committee, 
                American Bar Association Science and Technology Law 
                Section

                  Vice-Chair Scientific Evidence Committee, 
                American Bar Association Science and Technology Law 
                Section

                  Member, International Association of Chiefs 
                of Police Forensic Committee.

          Founding director of the National Clearinghouse for 
        Science, Technology and the Law (NCSTL). Professor Henderson 
        planned and managed its development, which includes the only 
        comprehensive, searchable database of science, technology and 
        law in the world. (www.ncstl.org). NCSTL is the most effective 
        source of information on science and the law, with hits from 
        128 countries. NCSTL also produces symposia, conducts community 
        acceptance panels on topics such as less lethal technologies 
        and produces bibliographies on science and technology issues.

          Recognized as an international authority on science 
        and law, Professor Henderson has presented more than 250 
        lectures and workshops to thousands of forensic scientists, 
        attorneys, judges, law enforcement and military personnel 
        worldwide on the topics of scientific evidence, courtroom 
        testimony, and professional responsibility. She has lectured in 
        Argentina, Australia, Canada, Finland, Germany, Hong Kong, 
        Italy, Japan, Scotland, Spain and Taiwan.

          Professor Henderson has more than fifty publications 
        on scientific evidence, law and ethics. She is an editor of the 
        Encyclopedia of Forensic and Legal Medicine (2005), which 
        received the Minty Prize from the British Medical Association. 
        Her latest book, the 5th edition of Scientific Evidence in 
        Civil and Criminal Cases was published in 2008. She serves on 
        the editorial boards of the Journal of Forensic Sciences, the 
        Journal of Clinical Forensic Medicine, and the Forensic 
        Science, Medicine and Pathology Journal. She also serves on 
        numerous working groups for the National Institute of Justice.

          Professor Henderson has appeared in both the popular 
        and professional media, including National Public Radio, Fox 
        National News, CBS ``48 Hours,'' The John Walsh Show, Montel, 
        TruTV, Court TV, the American Bar Association Journal and 
        Lawyers Weekly USA.

          Professor Henderson received her J.D. degree from The 
        National Law Center, George Washington University in 1980. 
        Prior to receiving her J.D., she worked for the Federal Bureau 
        of Prisons and the Department of Justice Criminal Division. She 
        began her legal career as an Assistant United States Attorney 
        in Washington, D.C.

    Chair Wu. Thank you, Ms. Henderson.
    Mr. Hicks, please proceed.

 STATEMENT OF MR. JOHN W. HICKS, DIRECTOR, OFFICE OF FORENSIC 
SERVICES, NEW YORK STATE DIVISION OF CRIMINAL JUSTICE SERVICES 
            (RET.); FORMER DIRECTOR, FBI LABORATORY

    Mr. Hicks. Thank you, Mr. Chair and Members of the 
Subcommittee. Thank you for the opportunity to be here to 
provide my perspectives on this whole study today.
    As Mr. Marone did, I tried to group the 13 recommendations 
of the National Academy of Sciences' study into four 
categories. My categories are very similar to his, the first 
category being methods development and standardization. I think 
this is probably the most critical area where the needs are 
severe right now. The other category, laboratory accreditation 
and quality assurance, the third category, research and 
training, and the fourth, resource requirements, and those 
latter three categories Congress has already undertaken a 
number of initiatives that have helped the laboratories 
considerably under the DNA backlog programs and the Paul 
Coverdale Forensic Science Improvement Program. In my 
experience working with New York State over the last eight 
years, we had 22 laboratories operating within that state, and 
I can tell you that each of these laboratories benefits 
substantially from that, and relies on those funds to continue 
to improve their programs and operations. They are critical 
programs and I would hope that they would be continued.
    Of course, the confidence in DNA technology was brought 
about in large part because the underlying developmental work 
that was done. We were fortunate at the time that work took 
place that it was a brand-new technology. It was quickly 
recognized, the significance and importance of the technology, 
for forensic science and so we had many agencies come together. 
The FBI, the National Institute of Justice and NIST [National 
Institute of Standards and Technology], among those agencies 
working with commissions and others around the country spent an 
enormous number of hours trying to work and address the various 
implementation issues. It wasn't efficient but it did seem to 
get us to the right place in the end.
    Of course, the National Academy committee expressed 
concerns, as Mr. Marone pointed out, with a lot of pattern 
recognition types of things: firearms identification, 
fingerprint matching, and so forth. I think it is significant 
to note that NIST has played an important role in those 
functions. They did a big study not only with respect to DNA 
technology, but did a huge study with respect to the Automated 
Fingerprint Identification System, which helped to identify the 
standards to help the system work more efficiently. And of 
course, that is a system relied upon every minute of every day 
by every police department in the country to carry out its 
work. They also performed a very helpful study with respect to 
a firearms database system to capture fired ammunition 
components and the image data from the markings on those 
bullets and data, and that has resulted in what is now called 
the NIBIN, National Integrated Ballistics Identification 
Network, and it is used widely by firearms examiners around the 
country. It is a good training tool to help begin to maybe 
generate leads in ongoing investigations. So NIST has played an 
important role in those two. Of course, with respect to 
toxicology and chemistry and general analytical services, NIST 
routinely provides standards that are used for traceability and 
quality control purposes when in those operations.
    From my perspective, I think an expanded role for NIST 
represents the most effective and efficient way to bring about 
needed improvements in the forensics community. It would bring 
focus and it would draw on their core competencies, which of 
course relate to standards development and validation of work. 
I suspect there is a lot of work out there that if brought 
together--existing work out there brought together and sort of 
examined closely under great scrutiny, some NIST studies put 
together to round out the available data, I suspect that many 
of the troublesome questions that the Academy report found 
might be addressed fairly quickly through an organization like 
NIST.
    It would be helpful, of course, for NIST to--I think the 
DNA model, while not necessarily all that efficient, did draw 
on collaboration between federal agencies that have some 
competencies in this area and had connections with the 
community. I think it would be very important of course for 
NIST to expand its relationship with the forensic community. 
One of the things that has evolved over the last few years has 
been what are called scientific working groups. And these are 
typically experts in different disciplines brought together to 
share their concerns and questions and issues that come up and 
it has been a very productive way to help promote standards. In 
fact, many of those groups have defined their own--started 
putting together information that helps define what the 
operating standards and procedures should be for their 
disciplines. What would be helpful is to expose these data to 
some good, heavy, rigorous scientific scrutiny as well.
    So I think I will conclude with that. As I said, my 
perspective is that NIST provides an opportunity here to really 
help in the area which I think is the greatest need, and that 
is focusing on the standards development and the 
standardization aspects.
    [The prepared statement of Mr. Hicks follows:]
                  Prepared Statement of John W. Hicks
    Mr. Chairman and Members of the Subcommittee, thank you for the 
opportunity to appear before you today and to offer my perspective on 
the findings and recommendations found in the recently released report 
of the National Academy of Sciences (NAS), Strengthening Forensic 
Science in the United States: A Path Forward. The Academy was given a 
broad charge to assess the state of forensic practices across the 
country and to make recommendations for improvement. In addition to 
traditional forensic laboratory services, the scope of its review 
included functions of medical examiners and coroners in determining 
cause and manner of death.
    The recommendations found in the NAS report fall into four broad 
categories:
    (1) methods development and standardization; (2) laboratory 
accreditation and quality assurance; (3) research and training; and (4) 
resource needs. As described briefly below, a number of congressional 
initiatives over the past few years have directed much needed attention 
to resource needs and to forensic laboratory quality improvement 
issues, including laboratory accreditation and staff training. It is 
recommended that support for these initiatives be continued. It is 
clear, however, that additional steps are needed to address critical 
concerns related to methods development and validation, especially for 
forensic disciplines other than DNA analysis.
    With regard to the forensic use of DNA technology, Congress has 
authorized a series of programs that provide resources needed to meet 
the unprecedented demand for testing services. These programs are 
administered by the National Institute of Justice and are intended to 
help eliminate testing backlogs and reduce case turnaround times, to 
provide defendants with access to post-conviction DNA testing, and to 
help assure that the technology is used effectively to identify missing 
persons.
    With regard to ``non-DNA'' forensic laboratory services and medical 
examiners, legislation was enacted in 2000 which created the Paul 
Coverdell Forensic Science Improvement Program which awards grants to 
states and units of local government to help improve the quality and 
timeliness of forensic science and medical examiner services. Among 
other things, the Coverdell program calls for laboratory accreditation 
by recognized accrediting bodies and provides for staffing and training 
needs. To assure transparency in laboratory operations, especially when 
problems may be indicated, Coverdell also requires that there be an 
independent entity with authority to investigate allegations of 
malfeasance or misconduct by laboratory personnel. While working in New 
York State, it has been my experience that these programs have been 
effective in bringing needed improvements to the 22 State and local 
forensic laboratories across the State. It is strongly recommended that 
support for these programs be continued and expanded.
    In the Senate report that led to the NAS study, and in the NAS 
report itself, forensic DNA technology was set apart from other 
forensic disciplines in terms of what is known of the robustness of the 
underlying research and the methods validation work that was conducted 
to support its applications in the criminal justice system. The 
confidence in forensic DNA technology is the result of the considerable 
efforts of scores of scientists in the public and private sectors, 
working with academic researchers and forensic science practitioners, 
to assess, validate and optimize the various DNA testing methods in use 
today. A national Technical Working Group was formed at the outset to 
facilitate communication among forensic practitioners and help advance 
the technology in a coordinated way. The Technical Working Group on DNA 
Analysis Methods (TWGDAM) was specifically cited in the DNA 
Identification Act of 1994 which authorized CODIS, the national DNA 
Database. This effort was driven by Congressional leaders and agency 
administrators who recognized the importance and potential of this 
emerging technology as an identification tool to solve crimes and 
assure justice in the courts. High level support and direction was 
essential to maintain a focus that would assure the standardized 
methods necessary for data compatibility to enable the mutual sharing 
of information. Key federal agencies that contributed to the 
development and validation of forensic DNA technology include the 
Federal Bureau of Investigation (FBI), the National Institute of 
Justice (NIJ) and the National Institute of Standards and Technology 
(NIST).
    The NAS Committee expressed concern over the apparent lack of 
systematic research to validate the basic premises and techniques for 
forensic disciplines that have been in practice since before the 
emergence of DNA technology. Disciplines which drew particular 
attention in their report are those that rely, in large part, on 
pattern recognition techniques such as those used in the examination of 
fingerprints; firearms and fired ammunition components; tool marks; and 
handwriting, among others. For these and other ``non-DNA'' forensic 
techniques that are widely used today, it would be helpful to identify 
and gather existing empirical studies, to conduct other studies as 
deemed necessary to update or supplement these data, and to put the 
information in a form that is readily disseminated within the relevant 
forensic and scientific communities. Based on these studies, 
appropriate standards should be developed or updated to assure the use 
of uniform and scientifically validated examination techniques by 
forensic practitioners. These appear to be areas of study for which the 
core competencies found in NIST are particularly well suited.
    While perhaps best known for its work in industry, NIST has been 
actively involved with elements in the forensic community over the past 
decade and has made important contributions working collaboratively 
with other federal agencies, industry and academia. For example, the 
agency undertook a number of inter-laboratory and other studies 
pertaining to individual markers used in DNA identification which have 
helped guide the successful development and forensic application of 
this revolutionary technology. The results of these efforts are in 
daily use in public and private forensic DNA laboratories and NIST 
scientists have presented their work in academic courses in order to 
prepare the next generation of forensic scientists. They have also 
provided in-service training sessions and in addition, seminars at 
professional meetings across the country.
    NIST has also performed studies designed to validate and improve 
the performance of large data systems used in criminal justice 
applications such as the Automated Fingerprint Identification System 
(AFIS), a vital system in continuous use by law enforcement and other 
agencies to resolve personal identification issues, and the National 
Integrated Ballistics Identification Network (NIBIN) which correlates 
imaged data from bullets and cartridge casings recovered during the 
course of criminal investigations. NIST provides standard reference 
materials for use by laboratories in private industry as well as public 
laboratories (including forensic laboratories). As new technologies 
continue to emerge with potential applications in forensic 
laboratories, NIST is uniquely positioned to facilitate communications 
between the forensic community and private industry to assure the 
timely and appropriate development and production of laboratory 
equipment, reagents and other supplies needed for implementing new 
techniques.
    An expanded role for NIST represents the most effective and 
efficient way to bring about needed improvements in the forensic 
science community and to assure appropriate focus in the development of 
new technology opportunities that emerge in the future. The activities 
described above, and others that can be cited by officials from NIST, 
clearly demonstrate the agency's unique competencies which can be 
brought to bear more widely in the forensic community not only to 
validate current methods and practices, but also to define a structure 
which can guide a long-term process of continuous improvement. The DNA 
experience provides a useful model and a framework upon which to build. 
This framework includes working with other federal agencies such as the 
FBI and NIJ, and engaging established Scientific Working Groups for 
specific forensic disciplines. If charged with this role by Congress, 
it would be expected that NIST would establish a coordinating body to 
provide oversight and direction to the effort. This body might include 
officials from the criminal justice and crime laboratory communities, 
key professional associations, and established accrediting 
organizations such as the American Society of Crime Laboratory 
Directors--Laboratory Accreditation Board (ASCLD/LAB) and the American 
Board of Forensic Toxicology (ABFT).

                      Biography for John W. Hicks
    From May 2000 to January 2008, Mr. Hicks was the Director of the 
Office of Forensic Services, New York State (NYS) Division of Criminal 
Justice Services. Responsibilities of the Office include oversight of 
the State DNA database and providing staff support to the NYS 
Commission on Forensic Science. The Commission sets mandatory 
accreditation standards for 22 State and local forensic laboratories 
operating in New York (eight of which perform forensic DNA analysis) 
and monitors laboratory compliance. The Office of Forensic Services 
also facilitates specialized technical training for laboratory and law 
enforcement personnel, and participates in the administration of 
federal and State grants to the laboratories.
    Mr. Hicks was a Special Agent with the Federal Bureau of 
Investigation (FBI) from 1969 to 1994 and served for much of his career 
in various technical and administrative positions in the Laboratory 
Division. He held the position of Assistant Director in charge of the 
FBI Laboratory from 1989 to 1994. In 1994, Mr. Hicks became Deputy 
Director of the Alabama Department of Forensic Sciences and was 
charged, among other responsibilities, with establishing the DNA 
Databank program for the state.
    Mr. Hicks has been actively involved in the development of national 
standards and supporting State and federal legislation for the use of 
DNA technology in criminal justice applications. He was appointed by 
Governors Pataki and Spitzer to the NYS Commission on Forensic Science, 
is a member of the American Academy of Forensic Sciences and the 
American Society of Crime Laboratory Directors. He is a former board 
member of the National DNA Advisory Board. Mr. Hicks holds a Bachelor's 
Degree in Chemistry from Arkansas State University and a Master's 
Degree in Public Administration from the University of Southern 
California. He completed the Program for Senior Managers in Government 
at the John F. Kennedy School of Government, Harvard University, and 
the FBI Executive Development Institute.

    Chair Wu. Thank you very much, Mr. Hicks.
    Dr. Downs, please proceed.

 STATEMENT OF DR. JAMES C. UPSHAW DOWNS, FORENSIC PATHOLOGIST/
 CONSULTANT, COASTAL REGIONAL MEDICAL EXAMINER, GEORGIA BUREAU 
                        OF INVESTIGATION

    Dr. Downs. Chair Wu, distinguished Committee Members, it is 
indeed an honor and a privilege to be before you today. I speak 
today as a GBI [Georgia Bureau of Investigation] employee, a 
board-certified forensic pathologist, and former Director of 
the Alabama Department of Forensic Sciences, where I saw 
firsthand a lab system go from square one to full accreditation 
while facing a crushing backlog. Most importantly, I speak as a 
son who lost a mother suddenly and had to wait for answers, and 
when those answers came it left many in my family with more 
questions than solace.
    I think the take-home lesson from the NRC [National 
Research Council] report is nothing we didn't already know. For 
years we had seen the initially maligned discipline of forensic 
DNA identification benefit from a focused look at the potential 
and the shortcomings of the science. Although some had been 
skeptical, especially at first, the end result was wide 
acceptance of the reliability and the validity of DNA science. 
We within the rest of the forensic system eagerly sought an 
independent assessment of where we all stood. The NRC report 
is, as Paul Harvey would say, ``the rest of the story'': 
overall, we are doing well but there is some room for 
improvement.
    Of the recommendations in the report, there is little but 
agreement on almost everything. Most involved in the process 
feel standardization of reports and terminology, research into 
underlying principles and validity, addressing potential bias 
and error, establishment of testable metrics, proficiency 
testing, accreditation, certification, quality assurance, 
ethics, enhanced forensic education, and database inter-
operability are all good things. The question today is how NIST 
might fit into the forensics picture.
    Certainly I don't think anybody would doubt the technical 
merits of NIST and their track record of unparalleled success 
in regards to analytical laboratory standards. Their greatest 
strength lies in accuracy and precision--the metrics of 
testing. The NRC specifically reaches out, as it should, to 
NIST to partner in relevant areas where such measurement and 
testing are key considerations. Thus, in areas like 
standardization, research, underlying principles, validity, 
potential bias and error, et cetera, NIST can, and should, be 
involved. However, the day-to-day application of forensic 
testing means working with less-than-optimal and highly 
variable case-specific evidence and trying to obtain the best 
possible test results, then reporting those findings to the 
appropriate entities. NIST is primarily a laboratory science 
body which does not fit well into the NRC call for significant 
research in the entirety of the forensics realm. The NIST 
excellence in laboratory standards and metrics does not 
translate well into the larger issues of accreditation and 
certification, practitioner professionalism, or administrative 
areas. Nor, quite honestly, is there likely to be buy-in from 
the forensic practitioners if they [NIST] did become more 
involved. We already have accreditation and certification. We 
have standard operating procedures in place. I don't think we 
need to reinvent the wheel.
    Another concern that I have is, unfortunately, I think that 
NIST lacks an established history with regards to the 
complexities and intricacies of interactions of law 
enforcement, legal, and governmental entities so vital to the 
effectiveness of the forensic system as a whole. A related 
question would be: exactly under what branch of government is 
there a best fit for forensics? An important point here is 
while we may be scientists, those who use our reports are 
oftentimes not. They are judges, prosecutors, defense counsel, 
police, sheriffs, and civilians. They all share one key 
concern: they want an accurate, reliable answer and they want 
it quickly. These customers have different, sometimes not 
entirely interrelated needs. Does the investigative aspect of 
law enforcement needs or the adversarial tenor of the court 
determine how a case is to be analyzed? Unfortunately, 
questions are far easier than answers.
    The same NRC that conducted this report called for 
professionalization of forensics, specifically death 
investigation, before, through the National Academies. The last 
time in 2003, but also a little further back--in 1928 and again 
in 1932. Perhaps it isn't surprising to see that change is slow 
to come. After all, what is 80 years that we have been waiting 
compared to an office, specifically the coroner, that dates to 
the 900s and was reformed in 1194. Those who live in the past 
are destined to stay there. I think the NRC was wise in 
recognizing that none of their goals, however well intentioned, 
can come about overnight. There are serious challenges, both 
jurisdictional and legal, to overcome.
    Independence is also an important consideration. Within my 
agency, we are operationally independent, as it should be, and 
as the text of the NRC report clearly defines. I have testified 
many times before from the stand that I am neither pro-
prosecution nor pro-defense, I am pro-truth. I don't have a dog 
in the fight. The adversaries in the courtroom are the 
attorneys. I am their guest.
    In closing, I think the path forward for all forensic 
scientists as outlined in the National Academy of Sciences' 
report is best served by that old adage, ``good enough seldom 
is.'' The American people deserve better, and I think perhaps 
Sir William Gladstone best summed it up: ``Show me the manner 
in which a nation cares for its dead and I will measure with 
mathematical exactness the tender mercies of its people, their 
respect for the laws of the land and their loyalty to high 
ideas.''
    Thank you, Mr. Chair and Committee Members. I would be 
happy to answer any questions.
    [The prepared statement of Dr. Downs follows:]
              Prepared Statement of James C, Upshaw Downs
    Chairman Wu and distinguished Committee Members, it is indeed an 
honor and a privilege to appear before you today. As the lone Medical 
Examiner and death investigation professional among the witnesses, I 
believe I offer a unique perspective on several of the issues raised in 
the National Research Council (NRC)'s report. I speak here today as a 
practitioner, a board-certified Forensic Pathologist, and a member of 
several professional organizations (including The National Association 
of Medical Examiners (NAME)\1\ and The American Academy of Forensic 
Sciences (AAFS).\2\ I do not speak for these organizations but their 
views have certainly helped shape my opinions. I speak as someone who 
has seen the pinnacles of investigative success the present system has 
to offer and one who has seen shameful mistakes. Most importantly, I 
speak as a concerned citizen who genuinely desires the improvements the 
forensic sciences and all those who use those services deserve. I speak 
as a son who lost a mother suddenly and had to wait for answers--and 
when those answers came, it left many in my family with more questions 
than solace. For my father, he experienced the same fate a generation 
earlier when his mother had no examination conducted as a lay 
investigator deemed it ``unnecessary.''
---------------------------------------------------------------------------
    \1\ The National Association of Medical Examiners (NAME) is the 
national professional organization of physician medical examiners, 
medical death investigators and death investigation system 
administrators who perform the official duties of the medicolegal 
investigation of deaths of public interest in the United States. NAME 
was founded in 1966 with the dual purposes of fostering the 
professional growth of physician death investigators and disseminating 
the professional and technical information vital to the continuing 
improvement of the medical investigation of violent, suspicious and 
unusual deaths. Growing from a small nucleus of concerned physicians, 
NAME has expanded its scope to include physician medical examiners and 
coroners, medical death investigators and medicolegal system 
administrators from throughout the United States and other countries.
    \2\ The American Academy of Forensic Sciences is a multi-
disciplinary professional organization that provides leadership to 
advance science and its application to the legal system. The objectives 
of the Academy are to promote education, foster research, improve 
practice, and encourage collaboration in the forensic sciences.
---------------------------------------------------------------------------
    I was asked to review the scientific and technical issues raised by 
the NRC Report on Forensic Sciences and how the National Institute of 
Standards and Technology might fit into that picture. I should like to 
address my remarks primarily to the discipline of Forensic Pathology 
and medicolegal death investigation (see recommendation #11), which I 
see as a microcosm of the issues involving the forensic Sciences as a 
whole. I think that perhaps Sir William Gladstone best summed it up: 
``Show me the manner in which a nation cares for its dead and I will 
measure with mathematical exactness the tender mercies of its people, 
their respect for the laws of the land, and their loyalty to high 
ideals.''
    The focus of the entire ``status of forensics'' to me comes down to 
uniformity and best practices (see NRC recommendation #2). A different 
quality of death investigation should not depend on where one has the 
misfortune of dying. Surviving family members and the courts should not 
be forced to wait because a motor vehicle crash victim didn't quite 
make it over the State line to a better jurisdiction. In order to 
ensure that all forensic autopsies are created equal, NAME developed 
and implemented Forensic Autopsy Performance Standards in 2006.\3\ 
Experienced practitioners formulated guidelines that were carefully 
considered and adopted by the membership at large. The intent was to 
create a procedure whereby the technical aspects of the performance of 
the forensic autopsy were consistent from jurisdiction to jurisdiction 
in order to guarantee a quality product. Are there very real and very 
serious problems when best practices are not followed? One need only 
look at recent\4\,\5\ events regarding autopsies by un-
boarded, non-Forensic Pathologist examiners to see the consequences. 
Truly those who do not learn from the mistakes of the past are destined 
to repeat them.
---------------------------------------------------------------------------
    \3\ Forensic Autopsy Performance Standards, http://thename.org/
index.php?option= 
com-docman&task=cat-view&gid=45&Itemid=26
    \4\ CSI: Mississippi, A case study in expert testimony gone 
horribly wrong, http://www.reason.com/news/show/122458.html
    \5\ Reason's Reporting on Steven Hayne and Mississippi's Criminal 
Forensics System, http://www.reason.com/news/show/131242.html
---------------------------------------------------------------------------
    When Forensic Medicine is practiced as it should be--thoughtfully, 
completely, accurately, and impartially--everyone benefits. The 
scientific foundation of medicine is unquestioned. Medicine fought some 
battles similar to those pointed out in The NRC report at the same 
point in the last century with end result being a revolution in medical 
education and practice.\6\,\7\ The net result was enhanced 
confidence in how the science was applied. The other forensic 
disciplines are on a similar road to ours but at several different 
points on their journeys. I think that, in general, the scientific 
underpinnings are there but certainly the disciplines would benefit 
from a more formal structured review. Look at it this way, a race car 
driver can be incredibly proficient on the track. The net result of the 
NRC report is that the same racing champion now has to go back and get 
a driver's license to document that they can in fact do what they 
already do so well.
---------------------------------------------------------------------------
    \6\ The Flexner Report and the Standardization of American Medical 
Education, http://jama.ama-assn.org/cgi/content/full/291/17/2139
    \7\Flexner Report . . . Birth Of Modern Medical Education, http://
www.medicinenet.com/script/main/art.asp?articlekey=8795
---------------------------------------------------------------------------
    All the efforts to improve medicolegal death investigation are 
designed to enhance service delivery to those who rely on the results 
of the forensic autopsy. In addition to the obvious impact Forensic 
Pathology has on the justice system, Medical Examiners have important 
and sometimes under-recognized duties in public health, medical 
research, and homeland security/mass disaster preparedness. Recognition 
of potentially infectious diseases from the performance of the autopsy 
may assist to minimize illness and death. Injuries found at autopsy 
were a large part of the development of automotive seatbelts and 
airbags. By studying sudden deaths, certain commonalities may be found 
and medical science advanced. Our understanding of many deaths, 
including those resulting from violence, can protect the living, for 
example by identifying inherited diseases or dangerous drug 
combinations. In the arena of disaster preparedness, the Medical 
Examiner is responsible for the medical investigation in mass fatality 
incidents, including identification of victims and the determination of 
the cause and manner of death--the Medical Examiner makes the ultimate 
determination if a death was, in fact, a homicide. Another area in 
which the Medical Examiner's contributions may not be fully appreciated 
is one of the most significant--as ``family physicians to the 
bereaved'' and providing closure to untold numbers of surviving family 
members.
    Quality is a goal, not a destination; as such one of the hallmarks 
of any good lab is CQI--continuous quality improvement. NAME concurs 
with the NRC (see recommendation #2) that such quality is essential. As 
part of the NAME accreditation, an office has to have a quality 
assurance program. Benchmarks of that quality were demanded by the NRC 
report--certification and accreditation.
    As physicians, Medical Examiners are well familiar with the 
necessities of personal qualification, to include licensure and medical 
specialty board certification. In 1933, American Board of Medical 
Specialties (ABMS) began medical specialty certification. Their motto 
says it all: ``Higher standards. Better care.''

          Nearly 85 percent of all licensed physicians in the 
        United States are certified by at least one ABMS Member Board.

          Certification by an ABMS Member Board is widely 
        recognized as the gold standard in assessing physician 
        qualification. Health care institutions, insurers, physicians 
        and patients use ABMS Member Board certification status as an 
        essential tool to judge that a physician has the knowledge, 
        experience and skills to provide quality health care within a 
        given specialty.\8\
---------------------------------------------------------------------------
    \8\ ABMS FACT SHEET, http://www.abms.org/
News-and-Events/Media-Newsroom/pdf/
ABMS-Fact-sheet.pdf

    Pathologists have been certified in the sub-specialty of Forensic 
Pathology by the ABMS for the past 50 yrs. NAME will only recognize a 
physician as a Forensic Pathologist if they are certified in Forensic 
Pathology by the ABMS. Of the full members of NAME, 85 percent have 
their specialty boards and 75 percent have their sub-specialty 
boards.\9\
---------------------------------------------------------------------------
    \9\ R. Hanzlick & V. Weedn/National Association of Medical 
Examiners
---------------------------------------------------------------------------
    Just as we believe individuals should have certain basic 
credentials, so too should lab systems. NAME pioneered the 
accreditation of medicolegal death investigation systems, commencing 
formally in 1975. It has accredited offices in cities all over the 
United States (such Atlanta, Miami, Los Angeles, and Houston); in State 
systems (New Mexico and Georgia), and other nations (Singapore). We do 
have a way to go yet, at present, only 49 Medical examiner Offices/
systems are accredited with another 11 in progress.\10\ Regardless, the 
recommendation that ``All medical examiner offices should be 
accredited'' \11\ is a good one. In addition, targeting limited 
available funds (especially given the present budget constraints) is a 
good carrot to encourage compliance: ``All federal funding should be 
restricted to accredited offices . . . or [those] that demonstrate 
significant and measurable progress in achieving accreditation within 
prescribed deadlines.'' \12\
---------------------------------------------------------------------------
    \10\ National Association of Medical Examiners
    \11\ Strengthening Forensic Science in the United States: A Path 
Forward, The National Academies Press, Washington, D.C., February 2009.
    \12\ Ibid.
---------------------------------------------------------------------------
    Forensic pathologists are strong proponents of education and 
research. In addition to attaining basic qualifications, in order to 
maintain licensure physicians are required to undergo continuing 
education, attaining a specific number of hours of training annually 
(another general NRC recommendation). NAME holds two meetings each year 
and the AAFS one in order to provide the latest forensic medical 
advances to attendees from all medical specialties. The American 
Journal of Forensic Medicine and Pathology, the official publication of 
NAME is the oldest professional publication dedicated exclusively to 
the science of medicolegal death investigation. The AAFS' Journal of 
Forensic Sciences is a multi-disciplinary which includes pathology/
biology. These and other specialty journals present the latest advances 
in the field, however, sorely needed ongoing research has been 
difficult to fund. I am personally involved in studies in the field of 
child abuse and have to rely on the generosity of one of my community's 
non-profit hospitals to conduct tests that would otherwise go undone. 
The NRC call ``. . . to support research, education, and training in 
forensic pathology . . .'' \13\ must be heeded if we are to keep pace 
with the ever advancing field of clinical medicine and other scientific 
disciplines. Only by making Forensic Pathology a continuously 
intellectually challenging discipline can we attract the best and 
brightest to the field in order to make that promise of a brighter 
future a reality. Guidance is needed, as indicated in the 
recommendation that a medicolegal death investigation Scientific 
Working Group (SWG) to ``. . . develop and promote standards for best 
practices, administration, staffing, education, training, and 
continuing education for competent death scene investigation and 
postmortem examinations,'' \14\ to include new technologies. Directed 
group efforts have produced vital information to provide high quality 
death investigation at ``every scene, every time.'' \15\ Similarly, 
training curricula targeted to the most difficult of death scenes, 
those involving infants\16\ have sought uniformity to the investigation 
of these tragic cases.
---------------------------------------------------------------------------
    \13\ Ibid.
    \14\ Ibid.
    \15\ Death Investigation: A guide for the Scene Investigator, 
http://www.ncjrs.org/pdffiles/167568.pdf
    \16\ Sudden, unexplained Infant death Investigation Curriculum 
Guide, http://www.cdc.gov/SIDS/PDF/508SUIDIGuidelinesSingles.pdf
---------------------------------------------------------------------------
    One of the more controversial among the NRC findings would be the 
conversion to a nation-wide Medical Examiner system, replacing the 
existing political office of coroner present in many jurisdictions. 
Professionalization death investigation has been proposed by the same 
National Academies--most recently in 2003 through the Institute of 
Medicine,\17\ but also a little further back by the in 1928\18\ and 
again in 1932.\19\ Perhaps it isn't surprising to see that change is 
slow to come, after all what's 80 years against an elected office 
dating to the 900's and which made its comeback in 1194!\20\ Those who 
live in the past are destined to remain there. In that context, ``the 
goal of replacing and eventually eliminating existing coroner systems'' 
\21\ can be seen as an attempt to improve a presently ``adequately'' 
functioning system. We must recognize that the mission of the 
medicolegal investigation of death has changed over the years. What 
used to be considered primarily a function of the justice system (be it 
criminal or civil) is now much, much more: ``The role of medical 
examiners and coroners has evolved . . . to a broader involvement that 
now significantly benefits the public safety, medical, and public 
health communities. It is foreseeable that the public health role of 
medical examiners and coroners may continue to grow and that, perhaps 
in the not too distant future, public health impact will surpass 
criminal justice as the major focus of medicolegal death investigation 
in the United States.'' \22\ We can do better, but in order to do so, 
we must first understand the issue.
---------------------------------------------------------------------------
    \17\ National Research Council. Bulletin of the National Research 
Council, No. 64: The Coroner and the Medical Examiner. Washington DC: 
National Research Council;1928.
    \18\ Institute of Medicine. Medicolegal Death Investigation System: 
Workshop Summary. Washington DC: National Academy of Sciences; 2003.
    \19\ National Research Council. Bulletin of the National Research 
Council, No. 87: Possibilities and Need for Development of Legal 
Medicine in the United States. Washington DC: National Research 
Council; 1932.
    \20\ CROWNER: Origins of the Office of Coroner, Prof. Bernard 
Knight, CBE, http://www.britannia.com/history/coroner1.html
    \21\ Strengthening Forensic Science in the United States: A Path 
Forward, The National Academies Press, Washington, D.C., February 2009.
    \22\ Medical examiners, coroners, & public health: a review & 
update, Arch Path Lab Med. 2006 Sep; 130(9):1274-82.
---------------------------------------------------------------------------
    Typically death investigation is handled at the State or usually 
local level. No two systems are the same, even though many are similar. 
Of the 3,137 U.S. counties, roughly one-third (960) are true Medical 
Examiner counties without Coroners. These fall into four basic models: 
true State Medical Examiner (19 states--697 counties), pure County 
Medical Examiner (two states--98 counties), pure District (Regional) 
Medical Examiner (one state--67 counties), and sporadic (mixed) Medical 
Examiner (14 states--98 counties).\23\ One problem is terminology--for 
example some states use the term ``medical examiner'' but do not 
require that person to be a pathologist. In short, in order to fix this 
one part of the overall ``forensic system,'' significant restructuring 
of operations and local, State, and federal laws would be required.
---------------------------------------------------------------------------
    \23\ R. Hanzlick & V. Weedn/National Association of Medical 
Examiners
---------------------------------------------------------------------------
    In common usage, the terms Medical Examiner and Coroner are used 
interchangeably by many. In reality, there is a world of difference. A 
Medical Examiner in the purest sense is a physician, who after 
completing medical school continues training four or five more years in 
the field of General (also known as ``Hospital'') Pathology. Following 
that, are one to two years of specialized subject matter training in 
Forensic pathology. Following that are an intensive three day written 
and practical board examination in General Pathology followed by a one-
day exam in Forensic Pathology. Compare that with the basic 
qualifications of the coroner, which are election to the office, often 
without any medical background or training at all. Their medical 
education is either on-the-job or yearly seminars on selected topics. I 
ask you--should the unfortunate instance arise, whom would you prefer 
perform this most important medicolegal examination on your loved one 
and then to testify about it in court? Who should be in charge of that 
death investigation system? With all due respect and with no offense 
intended, I do not believe a cab driver should be directing brain 
surgery. NAME agrees with the NRC that ``All medicolegal autopsies 
should be performed or supervised by a board certified forensic 
pathologist.'' \24\ As of now, there are approximately 245 titular or 
de facto chief medical examiners in the U.S. In reality, only 160 of 
those meet NAME's definition of a Forensic Pathologist.\25\ There are 
only 400 active, full-time practicing Forensic Pathologists in the 
U.S.\26\ In 2008 at the 126 Medical schools in the U.S. and 8,589 
Medical Training Programs (representing 141 specialties) and 18,372 new 
medical students, only 37 new physicians entered the field of Forensic 
Pathology.\27\
---------------------------------------------------------------------------
    \24\ Strengthening Forensic Science in the United States: A Path 
Forward, The National Academies Press, Washington, D.C., February 2009.
    \25\ R. Hanzlick & V. Weedn/National Association of Medical 
Examiners
    \26\ Ibid.
    \27\ R. Hanzlick, AAFS Pathology/Biology Annual Luncheon, from 
JAMA, September 10, 2008.
---------------------------------------------------------------------------
    Personally, I have worked with some excellent coroners who were 
dedicated and diligent. I suggest we not throw the baby out with the 
bath water. It is obvious that there insufficient Medical Examiners now 
and for the near-term future to simply flip a switch off on the Coroner 
system. Working with appropriate stakeholders, I would propose we roll 
the present functions of the traditional County Coroner into those of 
the Medical Examiner's office and utilize these already functioning 
professionals as lay investigators within that Medical Examiner system. 
This has the advantage of reduced costs and more rapid implementation. 
Obviously, those directly involved would have to have buy-in.
    In order to achieve the goal of timely delivery of the highest 
quality forensic service to our citizens, we must have sufficient 
resources to make sure it happens. We must increase the numbers of 
trained Forensic Pathologists (and all other forensic practitioners) 
and strive for uniformity in the process of death investigation. 
Estimates indicate that twice the existing number of Forensic 
Pathologists would be needed to fully staff a true Medical Examiner 
system across the entire country. The NRC indicated that ``Congress 
should appropriate resources to . . . support research, education, and 
training in forensic pathology.'' \28\ If we want more people in the 
field, we need to recruit them early and retain them. Toward that end, 
the report made a bold proposal, that ``. . . medical student loan 
forgiveness and/or fellowship support, should be made available to 
pathology residents who choose forensic pathology as their specialty.'' 
\29\ As someone over twenty one years out of medical school and with my 
oldest child graduating college and my second starting, I am proud to 
report that they have no outstanding student loans--but that their 
father could say the same!
---------------------------------------------------------------------------
    \28\ Ibid.
    \29\ Strengthening Forensic Science in the United States: A Path 
Forward, The National Academies Press, Washington, D.C., February 2009.
---------------------------------------------------------------------------
    In addition to the staffing issues, conversion to a nationwide 
Medical Examiner system will be expensive, as will be implementation of 
all the ``forensics system'' improvements called for by the NRC. 
``Funds are needed to build regional medical examiner offices, secure 
necessary equipment, improve administration, and ensure the education, 
training, and staffing of medical examiner offices. Funding could also 
be used to help current medical examiner systems modernize their 
facilities to meet current Centers for Disease Control and Prevention-
recommended autopsy safety requirements.'' \30\ As the panel's charge 
did not include budgetary issues, the inconvenient ``how to pay for 
it'' was left out of the mix.
---------------------------------------------------------------------------
    \30\ Ibid.
---------------------------------------------------------------------------
    Independence is also an important consideration. As my regular job 
falls under the umbrella of a law enforcement agency (the Georgia 
Bureau of Investigation), some might see that I have a pro-police bias. 
In reality, as I have testified from the stand many times before, I am 
neither pro-prosecution nor pro-defense; I am pro-truth. Within my 
agency, we are operationally independent, as it should be. I have 
worked in four different models of death investigation administration: 
private contractor, university employee, independent State agency, and 
law enforcement agency. I have found the best support I have ever had 
in the latter system. That those within law enforcement (as in the 
courts) would be interested in the results of my examinations is hardly 
surprising. Truth be told, I have never dealt with any law enforcement 
officer who wanted me to force a call or modify an opinion to suit some 
clandestine purpose. Quite the contrary, my experience has been that 
those police agencies who rely on my reports to determine if a case 
should be further scrutinized are understaffed and underfunded and are 
looking for guidance into how to best manage their own scarce 
investigative resources.
    As for the science, an important distinction should be made between 
conventional science and forensic science. Ultimately, in the latter 
case the data must be available for courtroom presentation. As such, 
what might be considered intra-disciplinary differences of opinion in 
the interpretation of test results take on a whole new light. The 
objective forensic observer must not only perform the testing neutrally 
but must also report it likewise. Australia has already established 
(and revised five times) Guidelines for Expert Witnesses in Proceedings 
in the Federal Court of Australia.\31\ The intent is to make the expert 
an impartial finder of scientific fact and to impartially report those 
findings and their resultant opinions to the court. I believe that 
impartiality and fairness are essential, test results should be just 
that--good or bad for whichever side, they should be solidly based and 
then should be admitted as a matter of course in accordance with 
procedures. I remember the day when DNA evidence was challenged almost 
incessantly and now a case is almost deemed questionable if there isn't 
DNA evidence. The good folks at the Innocence Project have show first-
hand how valuable good forensic evidence can be--for either side in our 
adversarial legal system.
---------------------------------------------------------------------------
    \31\ http://www.fedcourt.gov.au/how/prac-direction.html
---------------------------------------------------------------------------
    The NRC was wise in recognizing that none of their goals, however 
well-intentioned, can come about overnight. We have serious 
jurisdictional and legal challenges to overcome. ``This requirement 
should take effect within a timeframe to be established . . ., 
following consultation with governing State institutions.'' \32\ It 
might be tempting to find a quick fix to the issue of oversight for the 
forensic sciences by placing it under existing entity. I do not believe 
that is in the spirit of what the NAS report called for:
---------------------------------------------------------------------------
    \32\ Ibid.

         ``The forensic science system, encompassing both research and 
        practice, has serious problems that can only be addressed by a 
        national commitment to overhaul the current structure that 
        supports the forensic science community in this country. This 
        can only be done with effective leadership at the highest 
        levels of both Federal and State governments, pursuant to 
        national standards, and with a significant infusion of federal 
        funds . . .. What is needed to support and oversee the forensic 
        science community is a new, strong, and independent entity that 
        could take on the tasks that would be assigned to it in a 
        manner that is as objective and free of bias as possible-one 
        with no ties to the past and with the authority and resources 
        to implement a fresh agenda.'' \33\
---------------------------------------------------------------------------
    \33\ Strengthening Forensic Science in the United States: A Path 
Forward, The National Academies Press, Washington, D.C., February 2009.

    I do not think it in our best interests to try to ``add on'' to an 
existing structure, with its own extant biases and entrenched 
operational protocols. Such an institutionalized mindset would not seem 
to provide us the optimal chance to create a better way. The NRC report 
called for a new, independent entity for a reason--past experience. We 
have an opportunity to learn from past mistakes and to emulate our 
successes as we move forward. If we are to take home the messages of 
this NAS report, we should not cherry pick what we want to hear and 
disregard the parts we think we might do better without. This is one of 
those rare times in life where we have the opportunity to get it right 
from the start as we follow a new, better path armed with the 
experiences that will ensure our best chances for success.
    As for an independent model, there exists an independent National 
Institute of Forensic Science (NIFS)\34\ in Australia. The NIFS core 
functions include:\35\
---------------------------------------------------------------------------
    \34\ http://www.nifs.com.au/
    \35\ http://www.nifs.com.au/NIFS/
NIFS-frame.html?about.asp&1

---------------------------------------------------------------------------
          Sponsor and support research in forensic science;

          Advise on and assist with the development and 
        coordination of forensic science services;

          Gather and exchange forensic information;

          Support, coordinate and conduct training programs in 
        forensic science; and

          Conduct relevant quality assurance programs.

    Additional present and future activities of NIFS include:\36\
---------------------------------------------------------------------------
    \36\ Ibid.

---------------------------------------------------------------------------
          Raising the profile of forensic science; and

          Constructive and accountable resource management.

    Created in 1991 as a National Common Police Service, the agency 
governance includes a Board of Control (comprised of three Police 
Commissioners, three Forensic Laboratory Directors, and a distinguished 
University Provost) and a Panel of Advisors (scientists, police, legal 
practitioners, and medical practitioners). The multi-disciplinary 
nature of their directorate should not be missed, particularly the law 
enforcement and legal communities shoulder-to-shoulder with the 
scientific and medical; ``. . . diversity makes for a rich tapestry, 
and we must understand that all the threads of the tapestry are equal 
in value no matter what their color.'' \37\ I am not well-acquainted 
with the existing NIFS but it certainly does sound as though it 
addresses many of the issues brought up in the NRC report. I suggest we 
might well benefit from more detailed analysis of this existing model 
as we venture to build our better mouse trap.
---------------------------------------------------------------------------
    \37\ Maya Angelou
---------------------------------------------------------------------------
    As for the National Institute of Science and Technology (NIST) 
specifically, I feel that there are their continued efforts to improve 
forensics will remain beneficial. In fact, the NRC report calls for 
their involvement in setting accreditation and certification 
standards.\38\ While NIST clearly has a demonstrated record of 
unsurpassed technical in many scientific areas, it lacks an established 
history with regard to the complexities and intricacies of the 
interaction of law enforcement, legal, and governmental issues so vital 
to operations within the forensics environment. The day-to-day 
application of forensics means working with less than optimal evidence 
and trying to obtain the best possible result, then reporting to the 
appropriate entities. The NIST expertise in laboratory standards does 
not translate well into the larger issues of accreditation & 
certification implementation, practitioner professionalism and ethics, 
or administrative areas. Nor, quite honestly, is there likely to be an 
easy buy-in from the forensics system as a whole given the shortcomings 
enumerated.
---------------------------------------------------------------------------
    \38\ Strengthening Forensic Science in the United States: A Path 
Forward, The National Academies Press, Washington, D.C., February 2009.
---------------------------------------------------------------------------
    I look forward to working with all those with a sincere interest in 
providing timely delivery of the highest quality forensic science 
services to all. With continued effort, the NAS report is a significant 
step in that direction. In closing, I believe that the Path Forward for 
forensic sciences, as outlined in the national Academy of Sciences 
report is best served by that old adage, ``good enough seldom is.'' The 
American people deserve better.

                  Biography for James C. Upshaw Downs
    James Claude Upshaw (``Jamie'') Downs, M.D., is coastal Georgia's 
first Regional Medical Examiner.
    He has been continuously employed as a Medical Examiner since 1989 
and was Alabama's State Forensics Director and Chief Medical Examiner 
from 1998 to 2002. Dr. Downs has lectured extensively in the field of 
forensic pathology and has presented at numerous national and 
international meetings in the fields of anatomic and forensic 
pathology. He is a consultant to the FBI Behavioral Science Unit in 
Quantico, Virginia, having authored four chapters in their manual on 
Managing Death Investigation and was primary author of the FBI's 
acclaimed Forensic Investigator's Trauma Atlas. He has authored several 
books and chapters in the field of forensic pathology and child abuse, 
including Abusive Head Trauma in Infants and Children: A Medical, Legal 
& Forensic Reference with CD-ROM and Child Fatality Review: A Clinical 
Guide and A Color Atlas (in press). He has lectured regularly at the 
National Forensic Academy and at the FBI's National Academy. Areas of 
special interest include child abuse and police use of force. 
Professional activities have included service on numerous professional 
boards and committees.
    He has testified in numerous State and federal courts, as well as 
before committees of the United States Senate and House of 
Representatives.
    Dr. Downs is on the Board of Advisors for the Law Enforcement 
Innovation Center at the University of Tennessee, the Board of 
Directors of the National Association of Medical Examiners, the Board 
of Directors of the Consortium of Forensic Science Organizations (Vice 
Chair), and the National Forensic Science Technology Center. He also 
serves on the Forensic Committee of the International Association of 
Chiefs of Police.

    Chair Wu. Thank you very much, Dr. Downs.
    Mr. Neufeld, please proceed.

STATEMENT OF MR. PETER J. NEUFELD, CO-FOUNDER AND CO-DIRECTOR, 
                     THE INNOCENCE PROJECT

    Mr. Neufeld. Good morning, Mr. Chair and Members of the 
Committee. My name is Peter Neufeld. I am the Co-Founder and 
Co-Director of the Innocence Project, and certainly I will be 
the first to admit, if it wasn't for DNA, I wouldn't be here 
and there would be no Innocence Project because it was DNA that 
was responsible for the exoneration of 233 men and women in 
this country who were wrongly convicted. Unfortunately, our 
research into these cases suggests that 50 percent of them were 
wrongly convicted because of the use of either an unvalidated 
or improper forensic science testimony at their original 
trials, and it is our familiarity with DNA which leads me to 
take issue with some of the remarks made by some of the other 
speakers.
    The underlying success and virtue of DNA and its robustness 
does not come primarily from the fact that the FBI or NIJ or 
NIST worked on tweaking it to make it more user friendly in the 
crime labs in America. The underlying robustness of DNA comes 
from the fact that for 20 years before it was ever used in a 
courtroom, DNA was being broadly researched--applied research, 
basic research, for research laboratories, for medical 
applications of DNA, and that is the uniqueness of DNA, if you 
will, with respect to these other forensic disciplines that 
come under such harsh criticism in the NAS report, that these 
other disciplines were created first and foremost for law 
enforcement and so they never went through that kind of basic 
or applied research that DNA enjoyed.
    And for our clients, our exonerees, the findings of the NAS 
report are not a total surprise. We knew about this anecdotally 
but fortunately it was the NAS report that looked at it 
methodically and scientifically and arrived at the conclusions 
that are reached. And one of the key conclusions that are 
reached is that ``With the exception of nuclear DNA analysis, 
however, no forensic method has been rigorously shown to have 
the capacity to consistently, and with a high degree of 
certainty, demonstrate a connection between evidence and a 
specific individual or source.'' That is the finding of the 
report, and to us, that is not a surprise because so many of 
our clients were convicted because of less than reliable, or 
less than validated, forensic science. I hold out Kennedy 
Brewer as an example. He is mentioned in the written testimony. 
Kennedy Brewer was convicted because a bite mark expert in 
Mississippi said insect marks on this little three-year-old 
girl's body were not only bite marks but were bite marks that 
came from Kennedy Brewer to the exclusion of everybody on the 
planet. Years later, even though this man was sentenced to 
death for a crime he didn't convict, DNA on the semen recovered 
from her not only exonerated him but identified the real 
perpetrator, a man named Justin Albert Johnson. And the sad 
thing in this case is that 18 months earlier another three-
year-old girl was killed in the same community and once again 
the same bite mark expert said that someone named Lavon Brooks 
was responsible for those bite marks and therefore must have 
been responsible for that murder. Justin Albert Johnson was 
nearly suspect in that other case, but because of the bite mark 
evidence everybody ignored Mr. Johnson and focused on the wrong 
person.
    Every time the police department or the forensic scientists 
focus on the wrong person, the real bad guy is still out there, 
as in this case, committing other horrible crimes. In this 
case, it was a rape and murder of a three-year-old girl. What 
we found in the 230 exonerations are 100 instances where the 
real perpetrator was ultimately identified and during those 
intervening years the real perpetrator committed many serious 
murders and violent rapes. So when we are talking about making 
reforms here, we are talking about not only helping the wrongly 
convicted, we are helping improve public safety for all 
Americans. And when people say oh, this is old science, they 
should know that we tried to do an informal survey here and we 
found out that there are still 200 to 300 of these bite mark 
experts in the last four to five years who were testifying in 
these kinds of cases. Look at Brendan Mayfield and look at the 
language in this report on fingerprint examination, and what it 
says in the report is that the ACE-V [Analysis, Comparison, 
Evaluation, and Verification] does not guard against bias, is 
too broad to ensure repeatability and transparency, and does 
not guarantee that two analysts following it will obtain the 
same results. Well, no wonder two FBI agents in the Brendan 
Mayfield case swore on affidavits that they were 100 percent 
certain that the fingerprints on the bombing device bag in 
Madrid came from this attorney named Mayfield but they were 100 
percent wrong.
    The problem is, when you look at the language in the NAS 
report, if you were not looking at forensic science but instead 
you were looking at medicine, you would outlaw those products 
or you would pull them from the shelf, but historically we have 
always had this double standard for forensic science on the one 
hand and medical science on the other, and that is what the NAS 
report set out to address, to treat it with the same kind of 
rigor, and wherever you decide to place this thing, Mr. Chair 
and Members of the Committee, the key principles are there has 
to be an aggressive research agenda, something that has always 
been lacking in forensic science. There has to be an oversight 
entity concerned with validity and reliability, something that 
has always been lacking in forensic science. There has to be 
some government oversight of quality assurance, of 
accreditation, of certification. If those recommendations are 
implemented, you will have science-based prosecutions, you will 
have fewer wrongful convictions and you will have a robust 
forensic science industry that becomes an incubator for 
innovation and technology, not just in the United States but 
throughout the world. Thank you.
    [The prepared statement of Mr. Neufeld follows:]
                 Prepared Statement of Peter J. Neufeld
    Thank you Chairman Gordon, Ranking Member Hall, and Members of the 
Committee. My name is Peter Neufeld and I am the Co-Director of the 
Innocence Project, affiliated with the Cardozo School of Law, which Co-
Director Barry C. Scheck and I founded in 1992. The project is a 
national litigation and public policy organization dedicated to 
exonerating wrongfully convicted people through DNA testing and 
reforming the criminal justice system to prevent future miscarriages of 
justice.
    Without the development of DNA testing, there would be no Innocence 
Project; 233 factually innocent Americans would remain behind bars, and 
17 of those 233 could have been executed. Our research into the causes 
of wrongful conviction reveals that police and prosecutors' reliance on 
unvalidated and/or improper forensics was the second greatest 
contributing factor to those wrongful convictions. Our analysis 
regarding wrongful convictions involving unvalidated or improper 
forensic science that were later overturned through DNA testing is 
attached to this testimony.
    Given what those DNA exonerations have taught us about the 
shortcomings of forensic science, the Innocence Project is extremely 
thankful to Congress for authorizing and appropriating funds to 
establish the National Academies of Science Committee on Identifying 
the Needs of the Forensic Science Community. By convening some of the 
very best minds in the Nation to focus on the needs and shortcomings of 
forensic practice and how to remedy them, the Nation has been provided 
with both an alarm regarding the serious shortcomings that exist 
regarding forensic evidence, and a roadmap to addressing the major 
improvements in the forensic system necessary to ensure the most 
accurate evidence--and therefore justice--possible.
    I am also extremely pleased to participate in this hearing 
reviewing the recommendations and conclusions of the National 
Academies' report Strengthening Forensic Science in the United States: 
A Path Forward. Thank you for the invitation to testify before you 
today.
    While the Innocence Project is known for its association with DNA 
evidence, we are forever cognizant of the importance of non-DNA 
forensic evidence to determinations of justice. Our criminal justice 
system relies heavily on non-DNA forensic techniques. The Bureau of 
Justice Statistics' 2005 Census of Publicly Funded Forensic Crime 
Laboratories reported that new lab requests for DNA work consist of 
only approximately three percent of all of all new requests for lab 
work.
    As our review of DNA exonerations shows, unvalidated and improper 
forensics contributed to approximately 50 percent of wrongful 
convictions overturned by DNA testing. In the DNA exonerations alone, 
we have had wrongful convictions based on unvalidated or misapplied 
serological analysis, microscopic hair comparisons, bite mark 
comparisons, shoe print comparisons, fingerprint comparisons,\1\ 
forensic geology (soil comparison), fiber comparison, voice comparison, 
and fingernail comparison,\2\ among the many forensic disciplines that 
have produced these tragic miscarriages of justice in our courts. There 
have even been a few innocents whose convictions relied, in part, on 
shoddy DNA testing in the early years of its forensic application. It 
comes as no surprise to us that the NAS concluded: ``With the exception 
of nuclear DNA analysis, however, no forensic method has been 
rigorously shown to have the capacity to consistently, and with a high 
degree of certainty, demonstrate a connection between evidence and a 
specific individual or source.'' \3\ The overarching problem has been 
that all too frequently, these other forensic disciplines have been 
improperly relied upon to connect our innocent clients to crime scene 
evidence.
---------------------------------------------------------------------------
    \1\ Garrett and Neufeld, Virginia Law Review, Vol. 95, No. 1, March 
2009, p. 8.
    \2\ Ibid., p. 13.
    \3\ Strengthening Forensic Science in the United States: A Path 
Forward, Committee on Identifying the Needs of the Forensic Science 
Community, The National Academies Press (2009), p. 5-5.
---------------------------------------------------------------------------
    Just as DNA exonerations reveal inherent shortcomings in other 
forensic disciplines, the evolution and regulation of DNA in the 
forensic setting (from basic research to crime lab and to casework) 
contrast starkly with the near total absence of validation and 
demonstrable reproducibility for many other forensic technologies. Long 
before there was a national forensic DNA testing program, the National 
Institutes of Health (NIH) and others funded and conducted extensive 
and relevant basic research and followed it with applied research. 
Scientists appreciated the challenge of transferring the technology 
from research lab to clinical lab and from clinical lab to crime lab. 
The forensic methods were validated for case work, and individual crime 
labs further validated the kits and protocols for use in their own 
laboratory settings.
    In contrast to DNA, the vast majority of non-DNA forensic assays, 
which have often been erroneously used to suggest an individual match, 
have never been subjected to basic scientific research or federal 
review. Moreover, as pointed out by the NAS, neither the FBI nor the 
National Institute of Justice have, over the years, ``recognized, let 
alone articulated, a need for change or a vision for achieving it. 
Neither has full confidence of the larger forensic science community. 
And because both are part of a prosecutorial department of the 
government, they could be subject to subtle contextual biases that 
should not be allowed to undercut the power of forensic science.'' \4\ 
Without a push for vigorous adherence to the scientific method, 
innocent people have gone to prison or death row while the real 
perpetrators remained at liberty to commit other violent crimes.
---------------------------------------------------------------------------
    \4\ Ibid., p. S-12.
---------------------------------------------------------------------------
    The NAS report references several of the forensic disciplines which 
have gone unregulated and without proper validation and reliability:

          Hair Comparisons:
           ``No scientifically accepted statistics exist about the 
        frequency with which particular characteristics of hair are 
        distributed in the population. There appear to be no uniform 
        standards on the number of features on which hairs must agree 
        before an examiner may declare a ``match.'' \5\ The report 
        notes that along with the imprecision of microscopic hair 
        analysis, the ``problem of using imprecise reporting 
        terminology such as `associated with,' which is not clearly 
        defined and which can be misunderstood to imply 
        individualization.'' \6\ The committee found no scientific 
        support for the use of hair comparisons for individualization 
        in the absence of nuclear DNA. Microscopy and mtDNA analysis 
        can be used in tandem and may add to one another's value for 
        classifying a common source, but no studies have been performed 
        specifically to quantify the reliability of their joint use.'' 
        \7\
---------------------------------------------------------------------------
    \5\ Ibid., p. 5-25.
    \6\ Ibid., p. 5-26.
    \7\ Ibid., p. 5-26.

Jimmy Bromgard spent 14.5 years in prison for the rape of an eight-
year-old girl that he did not commit. The semen found at the crime 
scene could not be typed, so the forensic case against Bromgard came 
down to the hairs found at the crime scene. The forensic expert, Arnold 
Melnikoff, a hair examiner and Laboratory Manager of the State crime 
lab in Montana, testified that the head and pubic hairs found at the 
scene were indistinguishable from Bromgard's hair samples. He claimed 
that there was a one in 100 chance of a head hair ``matching'' an 
individual, and a one in 100 chance of a pubic hair ``matching''--and 
then he multiplied these statistics to say that there was less than a 
one in 10,000 chance that the hairs did not belong to Bromgard. This 
damning testimony was also fraudulent: there has never been a standard 
by which to statistically match hairs through microscopic inspection. 
---------------------------------------------------------------------------
The criminalist took the impressive numbers out of thin air.

          Bite mark Comparisons:
           ``Although the methods of collection of bite mark evidence 
        are relatively noncontroversial, there is considerable dispute 
        about the value and reliability of the collected data for 
        interpretation. Some of the key areas of dispute include the 
        accuracy of human skin as a reliable registration material for 
        bite marks, the uniqueness of human dentition, the techniques 
        used for analysis, and the role of examiner bias . . .. 
        Although the majority of forensic odontologists are satisfied 
        that bite marks can demonstrate sufficient detail for positive 
        identification, no scientific studies support this assessment, 
        and no large population studies have been conducted. In 
        numerous instances, experts diverge widely in their evaluations 
        of the same bite mark evidence, which has led to questioning of 
        the value and scientific objectivity of such evidence . . .. 
        Bite mark testimony has been criticized basically on the same 
        grounds as testimony by questioned document examiners and 
        microscopic hair examiners. The committee received no evidence 
        of an existing scientific basis for identifying an individual 
        to the exclusion of all others.'' \8\
---------------------------------------------------------------------------
    \8\ Ibid., p. 5-37.

Kennedy Brewer spent seven years on death row in Mississippi for the 
murder of a three-year-old girl that he did not commit. An independent 
examiner, forensic odontologist, Dr. Michael West, analyzed several 
marks on the child's body that he testified were bite marks inflicted 
by Brewer, and then only by his top two teeth. West said that ``within 
reasonable medical certainty,'' Brewer's teeth caused the marks, and 
then explained that ``reasonable medical certainty'' meant that Brewer 
was the source of the marks. The ``bite marks'' turned out to be caused 
by insects in the pond where the girl's body was discovered and by the 
natural sloughing of skin a body experiences when left in the water for 
---------------------------------------------------------------------------
several days.

          Fingerprint Comparisons:
           ``ACE-V provides a broadly state framework for conducting 
        friction ridge analyses. However, this framework is not 
        specific enough to qualify as a validated method for this type 
        of analysis. ACE-V does not guard against bias; is too broad to 
        ensure repeatability and transparency; and does not guarantee 
        that two analysts following it will obtain the same results.\9\ 
        Errors can occur with any judgment-based method, especially 
        when the factors that lead to the ultimate judgment are not 
        documented.\10\ As was the case for friction ridge analysis and 
        in contrast to the case for DNA analysis, the specific features 
        to be examined and compared between toolmarks cannot be 
        stipulated a priori.'' \11\
---------------------------------------------------------------------------
    \9\ Ibid., p. 5-12.
    \10\ Ibid., p. 5-13.
    \11\ Ibid., p. 5-21.

Although not a DNA exoneration, Brandon Mayfield's case was referred to 
in the NAS Committee's report as, ``surely signal caution against 
simple, and unverified, assumptions about the reliability of 
fingerprint evidence.'' \12\ Brandon Mayfield was arrested as a 
material witness in the Madrid Bombings of March 2004. Several FBI 
fingerprint experts ``matched'' his print to fingerprints lifted from a 
plastic bag containing explosive material found at the crime scene. 
Mayfield, a Portland Oregon lawyer, who had converted to Islam and 
married an Arab woman, had his prints in the national database because 
years earlier he had served in the U.S. armed forces. Mayfield's print 
was one of 20 prints returned from a search of the national Automated 
Fingerprint Identification System (AFIS) as being very similar to the 
crime scene print. Following a further visual inspection of the 20 
prints, two FBI fingerprint experts swore in affidavits that they were 
100 percent certain that the crime scene prints belonged to Mayfield. 
When the Spanish police ultimately arrested the real source of the 
fingerprint, the FBI initially defended their ``mistake'' as the result 
of poor digital image. Obviously, the two FBI experts could not have 
been 100 percent certain if the image was poor. Several major 
investigations followed, including one conducted by the Inspector 
General of the Department of Justice.\13\
---------------------------------------------------------------------------
    \12\ Ibid., p. 3-16.
    \13\ Ibid., footnotes 75 and 76, which indicated that contextual 
bias and confirmation bias played an important role in the 
misidentification.
---------------------------------------------------------------------------
    The NAS report revealed similar lapses in validation and 
inappropriate associations in several other forensic disciplines:

          Shoe Print Comparisons:
           ``[I]t is difficult to avoid biases in experience-based 
        judgments, especially in the absence of a feedback mechanism to 
        correct an erroneous judgment.\14\ [C]ritical questions that 
        should be addressed include the persistence of individual 
        characteristics, the rarity of certain characteristic types, 
        and the appropriate statistical standards to apply to the 
        significance of individual characteristics.'' \15\
---------------------------------------------------------------------------
    \14\ Ibid., p. 5-17.
    \15\ Ibid., p. 5-18.

          Fiber Comparisons:
           ``Fiber examiners agree, however, that none of these 
        characteristics is suitable for individualizing fibers 
        (associating a fiber form a crime scene with one, and only one, 
        source) and that fiber evidence can be used only to associate a 
        given fiber with a class of fibers.'' \16\
---------------------------------------------------------------------------
    \16\ Ibid., p. 5-26.

          Other Pattern/Impression Evidence: Fingernail 
---------------------------------------------------------------------------
        Comparison, Voice Comparison, Forensic Geology:

           ``Although one might argue that those who perform the work 
        in laboratories that conduct hundreds or thousands of 
        evaluations of impression evidence develop useful experience 
        and judgment . . . the community simply does not have enough 
        data about the natural variability of those less frequent 
        impressions, absent the presence of a clear deformity or scar, 
        to infer whether the observed degree of similarity is 
        significant.\17\ Also, little if any research has been done to 
        address rare impression evidence. Much more research on these 
        matters is needed.'' \18\
---------------------------------------------------------------------------
    \17\ Ibid., p. 5-17.
    \18\ Ibid., p. 5-18.

    The aforementioned disciplines all require further validation. The 
Innocence Project agrees with the NAS report regarding what is needed: 
``(1) information about whether or not the method can discriminate the 
hypothesis from an alternative, and (2) assessment of the sources of 
error and their consequences on the decisions returned by the method.'' 
\19\
---------------------------------------------------------------------------
    \19\ Ibid., p. 4-2.
---------------------------------------------------------------------------
    It is critical that we all understand the real world consequences 
of the forensic problems I and the NAS have discussed. These were not 
incidents reflective of one bad actor, or one wayward jurisdiction; our 
review of the Nation's DNA exonerations showed that seventy-two 
forensic analysts from 52 different labs, across 25 states had provided 
testimony that was inappropriate and/or significantly exaggerated the 
probative value of the evidence before the fact finder in either 
reports or live courtroom testimony. According to the NAS Forensic 
Committee's report, the shortcomings in education, training, 
certification, accreditation, and standards for testing and testifying 
that contributed to wrongful convictions in those cases threaten the 
integrity of forensic results across virtually all non-DNA forensics.
    It is important to recognize that these 233 individuals represent 
just the tip of the iceberg. In the vast majority of cases DNA is 
simply useless to indicate innocence or guilt--in fact, DNA is 
estimated to be probative in only 10 percent of all murder cases, and a 
far lower percentage of all criminal cases. What's more, in most cases 
where convicted people seek our representation to use post-conviction 
DNA testing to prove their innocence, we don't have the opportunity to 
conduct a DNA test because the biological evidence has either been lost 
or destroyed. And in some cases, when we have the evidence and testing 
it can prove innocence, the state simply refuses to allow the test that 
can indicate the truth.
    DNA testing has become the gold standard in forensics because it is 
science-based and tested. It was discovered through basic research and 
later applied to clinical DNA diagnostics, developing under the same 
scrutiny given to medical devices. So when it entered the courtroom, 
there was already a tremendous body of literature in highly respected 
scientific journals, amassed over a number of years, to support and 
validate its accuracy. Subsequently, the National Research Council 
twice convened some of the top scientists from leading research 
universities to discuss not only the scientific application of DNA in 
courts, but also to validate the statistical implications of the data 
that was produced.
    Non-DNA forensic assays have not been scientifically validated, and 
there is no formal apparatus in place to do so for developing forensic 
technology. Though the technology has changed over time, the sources of 
human error, misinterpretation, and misconduct have not. Most of the 
assays used in law enforcement have no other application; they were 
developed for the purpose of investigation, prosecution and conviction 
and took on a life of their own without being subjected to the rigors 
of the scientific process. Essentially, the assays were simply accepted 
as accurate. Many of these forensic disciplines--some of which are 
experience-based rather than data-based--went online with little or no 
scientific validation and inadequate assessments of their robustness 
and reliability. No entity comparable to the Food and Drug 
Administration ever scrutinized the forensic devices and assays, nor 
were crime laboratories subject to mandatory accreditation and forensic 
service practitioners subject to certification. Enforceable parameters 
for interpretation of data, report writing, and courtroom testimony 
have also never been developed.
    While there is research and work that establishes what needs to be 
done to improve various forensic practices, the fact is that no 
existing government entity, nor the forensics community itself, has 
been able to sufficiently muster the resources nor focus the attention 
necessary to use the existing information as a launching pad to 
comprehensively improve the integrity of non-DNA forensic evidence. The 
NAS report is the first step--and a tremendous one--toward fully 
establishing and acting upon what we already know. From the perspective 
of justice and public safety, it is tragic that it has taken this long 
to act on the desperate need to improve the quality of forensic 
evidence. Given the clear and comprehensive message delivered by the 
NAS on this subject, further delay would be unconscionable.
    The report calls for Congress to act, strongly and swiftly. This is 
because as I speak, many of these assays and technologies are being 
used in investigations, prosecutions and convictions daily everywhere 
in this country, despite their potential to mislead police, 
prosecutors, judges and juries away from the real perpetrators of 
crime. Although the conventional wisdom once stated that a sound 
defense and cross-examination would enable courts to properly assess 
the strength of forensic evidence, the Report unequivocally states and 
the post-conviction DNA exoneration cases clearly demonstrate that 
scientific understanding of judges, juries, defense lawyers and 
prosecutors is wholly insufficient to substitute for true scientific 
evaluation and methodology. It is beyond the capability of judges and 
juries to accurately assess the minutiae of the fundamentals of science 
behind each of the various specific forensic assays in order to 
determine the truth in various cases, and it is an unfair and dangerous 
burden for us to place on their shoulders. Indeed, the NAS report deems 
that ``judicial review, by itself, will not cure the infirmities of the 
forensic science community.'' \20\
---------------------------------------------------------------------------
    \20\ Ibid., p. 3-20.
---------------------------------------------------------------------------
    It is absolutely clear--and essential--that the validity of 
forensic techniques be established ``upstream'' of the court, before 
any particular piece of evidence is considered in the adjudicative 
process. For our justice system to work properly, standards must be 
developed and quality must be assured before the evidence is presented 
to the courts--or even before police seek to consider the probative 
value of such testing for determining the course of their 
investigations. There is simply no substitute for requiring the 
application of the scientific method to each forensic assay or 
technology, as well as parameters for report writing and proper 
testimony, as part of the formal system of vetting the scientific 
evidence we allow in the courtroom.
    The Innocence Project whole-heartedly supports the primary 
recommendation of the National Academy of Sciences' report to create a 
federal National Institute of Forensic Sciences. We believe that 
federal oversight body must conduct research into the scientific 
validity and reliability of forensic disciplines and set standards for 
their use in the courtroom. A federal entity is needed to ensure that 
we don't have 50 states operating under 50 definitions of ``science''; 
forensic science in America needs one standard of science so we can 
have one standard for justice. As Congress considers the establishment 
of such an agency, there are several principles that it should adhere 
to.
    First, the National Institute of Forensic Sciences should focus on 
three critical priorities: (1) basic research, (2) assessment of 
validity and reliability, and (3) quality assurance, accreditation, and 
certification. This body should identify research needs, establish 
priorities, and precisely design criteria for identifying the validity 
and reliability of various extant and developing forensic assays and 
technologies. Then, using the data generated by research, this entity 
should then undertake a comprehensive assessment of the validity and 
reliability of each assay and technology to develop standards by which 
the practitioners must adhere and under which their reporting and court 
room testimony must operate. Given NIST's reputation as a highly 
respected and admired standard-setting agency, as well as its history 
of employing Nobel prize-winning scientists who conduct superb research 
and translate basic science to applied commercial standards and its 
tradition of objective, independent, science-grounded work, we agree 
with the NAS report that NIST would make a sensible partner for setting 
those standards. The Innocence Project also believes strongly that this 
body must play a central role in accreditation and certification. 
Laboratories that seek accreditation must have quality controls and 
quality assurance programs to ensure their forensic product is ready 
for the courtroom. Individual practitioners must meet certain training 
and education requirements, continuing education, proficiency testing, 
and parameters for data interpretation, report writing and testimony.
    Second, to ensure this agency's objectivity and scientific 
integrity, and to prevent any real or perceived institutional biases or 
conflicts of interest, it is paramount that NIFS be a non-partisan, 
independent agency, with its basic and applied research products and 
standards grounded in the best traditions of the scientific method. We 
agree with the NAS report that ``Governance must be strong enough--and 
independent enough--to identify the limitations of forensic science 
methodologies and must be well connected with the Nation's scientific 
research base in order to affect meaningful advances in forensic 
science practices.'' \21\
---------------------------------------------------------------------------
    \21\ Ibid., p. 2-19.
---------------------------------------------------------------------------
    Third, this entity will coordinate all existing and future federal 
functions, programs, and research related to the forensic sciences and 
forensic evidence.
    Fourth, in order for this entity to be successful, forensic 
oversight must be obligatory and an effective mechanism of enforcement 
of these standards must exist. After having been given the proper 
direction and opportunity to comply, noncompliant laboratories or 
practitioners should lose their ability to participate in the business. 
These corrective actions can be overseen in conjunction with other 
government agencies; however enforcement powers must be under the 
command and control of the NIFS.
    Fifth, this entity must be a permanent program in order to ensure 
ongoing evaluation and review of current and developing forensic 
science techniques, technologies, assays, and devices; and continued 
government leadership, both publicly and through private industry, in 
the research and development of improved technology with an eye toward 
future economic investments that benefit the public good and the 
administration of justice.
    Finally, Congress must allocate adequate resources to the NIFS so 
that it can undertake its critical work quickly, effectively, and 
completely, and so its mandates can be executed in full.
    Our work has shown the catastrophic consequences of such a lack of 
research, standards, and oversight. It is clear that the Nation's 
forensic science community is ready and willing to work with the 
Federal Government, law enforcement, and other scientists to ensure a 
brighter future for forensic science. Science-based forensic standards 
and oversight will increase the accuracy of criminal investigations, 
strengthen criminal prosecutions, protect the innocent and the victims, 
and enable law enforcement to consistently focus its resources not on 
innocent suspects, but on the true perpetrators of crimes. For as the 
Nation's post-conviction DNA exonerations have proven all too clearly, 
when the system is focused on an innocent suspect, defendant or 
convict, the real perpetrator remains free to commit other crimes.\22\
---------------------------------------------------------------------------
    \22\ In the wake DNA exonerations of the wrongfully convicted, that 
same DNA analysis has enabled us to identify 100 of the true suspects 
and/or perpetrators of those crimes.
---------------------------------------------------------------------------
    The investment of time, effort and resources necessary to deliver 
us from our false reliance on some forensic assays will pay tremendous 
dividends in terms of time, effort and resources not wasted by virtue 
of this false reliance. In short, it will make criminal investigations, 
prosecutions and convictions more accurate, and our public more safe--
and perhaps most importantly, justice more assured.
    We have been directed toward an irrefutable and unprecedented 
opportunity to significantly improve the administration of criminal 
justice in the United States. By evaluating and strengthening forensic 
science techniques with the strong, well-funded, and well-staffed 
entity we described, we can create a formal system to ensure that 
criminal justice is accurately conducted and justly performed. The 
research and development of both existing and new forensic disciplines 
will create new industries and jobs in the U.S., just as the 
development of DNA technologies and their applications has done. With 
your support, we will not only significantly enhance the quality of 
justice in the United States, but we will also minimize the possibility 
that tragedies like that endured by the Nation's 233 (and counting) 
exonerees and their families will needlessly be repeated time and 
again.




                     Biography for Peter J. Neufeld
    Peter Neufeld co-founded and co-directs The Innocence Project, an 
independent non-profit affiliated with the Benjamin N. Cardozo School 
of Law. He is also a partner in the civil rights law firm Cochran 
Neufeld & Scheck, LLP.
    The Innocence Project began in 1992 as a clinical program with the 
single focus of exonerating the wrongfully convicted. In April, 2007, 
the Project celebrated the 200th post conviction DNA exoneration. The 
work has expanded to bring substantive reform to the system responsible 
for unjust imprisonment, with particular attention to improving 
eyewitness identification procedures, requiring the recording of police 
interrogations, and enhancing the reliability of forensic science. The 
Project has also contributed to a significant shift in the national 
debate on the death penalty. Entrenched positions predicated on 
politics and morality have given way to an emerging consensus on the 
relationship between erroneous outcomes and irreversible punishment.
    Peter's law firm represents victims of constitutional violations in 
which the cases have the potential to produce institutional reform. The 
firm's clients have included:

          Abner Louima, the Haitian-American tortured by police 
        officers in a precinct bathroom. The civil case was the first 
        in the Nation to hold a police union accountable for acts of 
        brutality inflicted by its members.

          Two of the four young black and latino athletes 
        wounded by New Jersey State troopers for the crime of ``DWB''--
        driving while black. The case became instrumental in raising 
        the Nation's consciousness about racial profiling.

          Thomas Pizzuto, who entered Nassau County Jail on a 
        90-day sentence for a Vehicle & Traffic Law violation but 
        received a death sentence at the hands of correction officers. 
        His death precipitated a federal investigation that led to a 
        Department of Justice consent decree to implement much needed 
        reform at the county jail.

    Peter has litigated and taught extensively in both the ``hard'' and 
behavioral forensic sciences. Before co-founding the Innocence Project 
at Cardozo Law School, he taught trial advocacy at Fordham University 
Law School and was a staff attorney with the Legal Aid Society of New 
York. For the last decade he has served on the New York State 
Commission on Forensic Science, with responsibility for regulating all 
State and local crime laboratories. He has published more than a dozen 
articles on science and law, and is the co-author, along with Jim Dwyer 
and Barry Scheck of the book entitled Actual Innocence: When Justice 
Goes Wrong And How To Make It Right.
    A 1972 graduate of the University of Wisconsin, Peter Neufeld 
received his law degree in 1975 from New York University School of Law. 
You can read about the Innocence Project at www.innocenceproject.org.

                               Discussion

    Chair Wu. Thank you very, Mr. Neufeld.
    Before we get--we are now in the question and comment 
period of the hearing, and the Chair first recognizes himself 
for five minutes.
    Before we get to other crucial issues like level of 
support, level of funding, whether to create a new independent 
agency or to perhaps approach that in a different way, and 
transition issues, it seems to me there may be some 
disagreement or at least difference in emphasis among the 
witnesses about the current state of forensic science. When I 
hit my first memo on this topic, I have to say that I was a 
little bit stunned. One of the sentences in that memo said with 
the exception of DNA matching, the commonly used forensic tests 
such as fingerprint analysis, ballistic testing, hair matching, 
pattern recognition and paint matching are based more on 
workers' experience than on rigorous scientific protocols. And 
I had the same reaction to that sentence that I did when I was 
visiting my local medical school and they were discussing 
evidence-based medicine. I had a very brief exposure to medical 
school in my training days and my first reaction was, gee, I 
thought all the stuff you all did was evidence-based. It took 
me a while to understand evidence-based medicine and what they 
were getting at. Perhaps the panel for our edification could 
discuss with me, or with us, your concerns about whether there 
is a sound scientific basis for many of the tests that we 
commonly rely on in our forensic testing, and I don't know if 
we want to go from right to left, left to right, or whether any 
of you want to proceed.
    Mr. Neufeld, forgive me. I am reverting to my old Germanic 
past. I pronounced your name Neufeld.
    Mr. Neufeld. I appreciate it actually. Thank you. Very few 
people do but that is the right pronunciation.
    I am not a scientist and I am not----
    Chair Wu. Your microphone.
    Mr. Neufeld. I am not a scientist and I am not the best 
person to answer your question, but these individuals who are 
on this panel all have, obviously, their own subjective 
experience and also their own special disciplines in the case 
of some of them which they may or may not wish to defend. The 
point of the National Academy report, however, is it is a blue-
ribbon body of some of the best minds, not just in the forensic 
science community but in the hard sciences as opposed to, you 
know, in the basic sciences, which are not represented in this 
panel right now before you with the exception of the eminent 
physician who is sitting to my right. And what I will say is, 
it was their conclusion that it was lacking and we can't simply 
ignore that conclusion that is based on a two-year study that 
they did.
    Chair Wu. Well, realizing that you are not a scientist, 
perhaps we can come back to you at some point and you could 
address either examples or analytically what would be different 
if there were a scientific basis to some of the forensic work 
that we do.
    Dr. Downs, would you care to address this issue? Does this 
make a difference or does it not, or is there a problem here?
    Dr. Downs. Mr. Chair, I think it is a great question and 
your model of evidence-based medicine I think is dead on. In 
fact, in my written comments I address the whole source of 
that, which was the Flexner Report from back at the turn of the 
last century.
    Chair Wu. And the question here is whether we are at a 
similar inflection point for, if you will, a slightly different 
profession just as the Flexner Report and the reforms of 
American medical education made a significant difference. Is 
there a need to do something that dramatic in this field at 
this point in time?
    Dr. Downs. I think for the sake of public competence that--
the analogy I use is a racecar driver. They can win 
championships on the track. They have to go back now and get 
their driver's license and prove that they can do what we 
already know they can do very, very well, and I think there is 
good science behind all of the testing that we do. The problem 
is, we kind of got ahead of it and we never went back, because 
as Mr. Neufeld correctly points out, it came through a 
different venue. It came through law enforcement and the courts 
never asked us for that scientific basis as a starting point. 
We know it works.
    Chair Wu. That analogy is very helpful but walk me through 
with some specificity. What kind of difference would it make if 
we were to bring scientific or analytical rigor, if you will, 
rather than the contrasts with experiential work that we 
perhaps--the experiential approach with which we have brought 
to this in the past.
    Dr. Downs. How does one make a call on a fingerprint? How 
many specific points in a fingerprint are required to call that 
a match? In the past that has been based purely on experience; 
when the examiner reaches a certain comfort level, they make 
the call. We don't have a way or metric to say it takes ten 
points of identification, twenty points. So there's no 
``scientific basis'' for where that line is, and if we are to 
apply the standards like we do in medicine to say okay, we have 
these test results, therefore we can with confidence make this 
call, that is I think what we are trying to get to.
    Chair Wu. Do any of the other witnesses want to address 
this point?
    Mr. Marone.
    Mr. Marone. Mr. Chair, I think to say we need additional 
research is the key, additional research. What has happened in 
the past has--research has been done at any number of levels, 
usually by the practitioners, the people working in the field, 
whether it be for firearms identification or fingerprints, and 
I will use firearms examination as the first example. There 
have been a number, literally probably hundreds of studies 
where individuals have taken ten sequentially manufactured 
barrels to see just how close they looked before we do anything 
to them and can we still differentiate them even though they 
have come off the assembly line one after the other. But the 
key is, those studies haven't been broad enough or have looked 
at enough issues, statistically analyzed. Maybe they didn't 
answer all the questions that an individual would want and so 
we need to take those same kind of studies, broaden them, make 
sure that all the questions, issues variables are answered, and 
that would give you the scientific basis. So a lot of the work 
is out there, it just hasn't answered all the questions. But 
what I can say is, of all the work that has been done, all the 
research that has been done in fingerprinting, all the research 
that has been done in firearms identification, nothing has led 
anyone to believe that it isn't proper, that it can't be done, 
which if you are going to truly look at it scientifically, that 
is a two-edged sword. Just because there isn't full validation, 
you can't jump to the conclusion that it is empirically wrong 
when you do have some research that indicates that there is 
some, you just need more work. So I think that is where we are.
    There is a lot of research that has been done. A lot of it 
hasn't been published in technical notes and so forth, and it 
needs to come up to that same level of rigor in peer-review 
journals, and so forth, so that everyone can look at it, try to 
reproduce it, and so forth. So that I think is the issue that 
we need to make the research that has been done more broad 
based and more really attuned to what exactly the question is.
    Mr. Neufeld. Mr. Chair, can I respond to that for one 
second? Because I do disagree.
    Chair Wu. Yes, a response here, and then I intend to return 
to this issue because it is a core issue, but I am a few 
minutes over my time. With Mr. Smith's forbearance, go ahead.
    Mr. Neufeld. My understanding of the scientific method, and 
I am not an expert in it, I don't have a post-doc in it, is the 
burden is on the proponent of any scientific hypothesis to 
prove that it is right. It is not our burden to show that what 
they are doing is wrong, okay? They have to make out sufficient 
basis to demonstrate that something has been scientifically 
validated. That is number one. Number two, in response to what 
Dr. Downs said, could you imagine in a medical context, because 
he was talking about fingerprints, if ten different examiners 
looked at the same cells and had ten different definitions as 
to whether they were simply abnormal as opposed to malignant? 
How could we have confidence in medicine if we had that range 
of opinion? It wouldn't work in medicine. It can't work in 
forensic science.
    Chair Wu. Well, Mr. Neufeld, I may not have a full 
understanding of medicine science but my impression is that 
with guidance from other sources that actually is what happens 
in imaging, that is, you see a pattern of shadows and light 
and, you know, based on 10, 100, 1,000 reads, you develop 
patterns and they become more analytically accurate with 
additional data but ultimately it is a match against that 
background.
    Mr. Neufeld. But you wouldn't expect that there would be 20 
different opinions on the same data looked at by 20 different 
analysts, okay, and that is the difference that I am talking 
about.
    Chair Wu. That is absolutely correct. You would not hope 
for 20 different opinions.
    Mr. Neufeld. Right.
    Chair Wu. But you might get two very different opinions 
from two different readers.
    Mr. Neufeld. I understand that, and the third point of this 
is as follows. You know, what you did have in medicine at the 
early part of the 20th century was a commitment to sort of 
revolutionize and transform medicine in this country. You had 
the creation of the National Institutes of Health [NIH] with a 
very, very ambitious research agenda, and we have never had 
anything--I am not even talking about trying to do something as 
complex as that or as grand as that, but you have never had a 
kind of freestanding research agenda for forensic science, not 
just to validate that which is already out there, if it indeed 
can be validated, but also to encourage, okay, as I am sure 
this committee is concerned with, that kind of incubator for 
new technology, for new forensic science. What is going to be 
the next DNA, the next truth machine that we can build the 
industry out that will be very successful, not only in helping 
forensic science but also in helping commerce and exporting it? 
You know, we want a research agenda that can do all of those 
things and it is sorely lacking at this point.
    Chair Wu. We will return to this issue, and I will be 
asking tougher questions of the other perspective on this.
    Mr. Smith.
    Mr. Smith. If you are on a roll, go ahead.
    Chair Wu. Well, I think that given the presence of other 
Members here, we want to get a round in the interest of 
fairness. Mr. Smith, please proceed. I am reining myself in.
    Mr. Smith. Thank you, Mr. Chair.
    For all of the witnesses, the entire panel here, if you 
wish to respond, certainly there are a lot of technical 
recommendations in the report. What would stand out to you as 
the highest priority, if you wouldn't mind, starting with Mr. 
Marone?
    Mr. Marone. I don't think you have a single highest 
priority. They are very much leveled, if you will. If you look 
at establishing maybe a priority based on what can be attained 
first, not easiest, but with least problematic issues, moving 
on the accreditation and certification, certification of 
individuals and accreditation of laboratories. Those are two 
already vibrant, rigorous programs that are out there and can 
achieve significant gains in the community. The certification 
for the individuals and the accreditation because even though I 
said that, you know, almost 85, 90 percent of the laboratories 
are already accredited, one of the other issues that is out 
there is the other service providers. This is the ID section in 
a police department where they do fingerprint comparison, you 
know. There is not that much accreditation or certification out 
there, certification to a certain extent, but there is not that 
much accreditation out there. So by taking that first along 
with--and then education and somewhere in there you have to put 
in resources because we can train individuals, we can certify 
the individuals, but if they don't have the equipment or the 
people to provide the analysis at the other end, then we are at 
mixed purposes.
    So your question, I am not trying to go around the circle, 
is we kind of need them all and they are separate lines that 
can be done in parallel, the accreditation, the resources. 
Laboratories are just up to their eyeballs in casework. We have 
got to fix that, and it is not a quick fix, well, we give them 
a whole bunch of money for overtime, or we outsource to provide 
laboratories or so forth because that only fixes it now and 
then two years from now we are right back in the same 
situation. So the resource issues, the accreditation and 
certification goes a long way towards a lot of these other 
issues as far as competency, effectiveness of the analysis and 
so forth. You look at a lot of the recommendations and they can 
really be subsumed into one, all the quality control issues 
into accreditation and certification. Those all can be covered 
by those programs so I would place those first and then 
education and certainly resources. You pick which one you want 
to do first.
    Mr. Smith. Any estimate of cost?
    Mr. Marone. If I had that answer, I wouldn't be here right 
now speaking in the capacity I am. I would probably, you know, 
have a global conglomerate answering that question to 
everybody. You know, we look at what has happened in DNA and 
the modest, relatively modest now, amount of money that has 
gone to DNA analysis in the five years that it has been. We 
have seen tremendous progress as far as capacity enhancement 
and backlog reduction, and really let us not worry about how 
much actually was in the appropriations, how much money made it 
to the laboratories, and it was probably $50 million, maybe $60 
million a year, and yet we saw progress. It is still not enough 
but we saw progress. So multiply that by all the other 
disciplines.
    You know, I hesitate to throw a figure out because then 
somebody runs with it, you know, and everybody is throwing out 
trillions of dollars now. I don't think we have any idea what 
this cost may be. Certainly accreditation, several million 
dollars for accreditation, anywhere between $5 million and $50 
million to make accreditation happen, and that is not counting 
the cost from the laboratory's perspective, the time that they 
must spend preparing for that. The same thing for 
certification. We have no--I have no idea how many--how much it 
might cost but, you know, it is a large figure, if that helps 
you. You know, we batted that around the committee and it is 
like there is no way to do that. You have to first find out 
what the issues are before you can figure out what it is going 
to cost, what the numbers are, and we have yet to define the 
number of service providers outside forensic laboratories, how 
many PD ID [Police Department Identification] units are there 
and so forth.
    Mr. Smith. Thank you. Anyone else?
    Ms. Henderson. Yes. I think what we really need to do is do 
a strategic plan and I think this is--my learned colleague at 
the end of the table and on this end of the table as well. One 
of the things that we need to do is, what are our priorities, 
and I think that is the key. You know, the NAS committee listed 
things, they have recommendations, but there is no strategic 
plan put forth, and I think that is very critical, and also I 
have to say with Peter, research is critical. If we don't know 
what is going on in all the different disciplines, and this is 
what is interesting about forensic science. We are a 
multidisciplinary group. We are not like anything else. We are 
not like medicine, although we have, you know, forensic 
pathologists like Jamie with us, but we have so many different 
diverse groups within forensic science. But a lot of research 
could be done and in fact that is where you take the 
institutions, for example. You could use universities and work 
in conjunction with laboratories because the laboratories are 
taxed. They are overtaxed with many things that they have to 
do, and I think Pete is correct. We don't know how much money 
this is going to cost. We have to take a look--what is in 
existence, and that is why I said let us start with some 
immediate action like what can we do with existing things that 
are in place like accreditation and like certification 
programs. There are quite a few of them. And then work from 
there to improve, identify the research priorities and then 
move forward. I think that would be practical, which is one of 
the things in this economy we need to do.
    Mr. Smith. Thank you.
    Dr. Downs.
    Dr. Downs. I think I agree with what my predecessors have 
said. I would also say I think that as a practical matter, 
given that the courts are relying on this fingerprint evidence 
and firearms evidence, for example, and the other pattern 
evidence, that we have to validate that science for those 
purposes, for courtroom purposes because that evidence is 
already ``in process'' and we have people waiting for trial. We 
need to address that issue, I think, as one of those initial 
priorities.
    Mr. Smith. Mr. Hicks.
    Mr. Hicks. I would just like to voice my agreement to all 
that has been said here so far. I think it is--the elements are 
there to draw upon, you know, to enhance and to help address 
some of the critical questions that have been raised. I suspect 
much of that information is already there. It just needs to be 
put into a package and appropriate form and then subjected to 
scientific scrutiny. That would be helpful for the courts. But 
it ought to be recognized, I think, the context of how some of 
these now-called sciences evolved, fingerprints and firearms 
identification, fiber identification, things like that. I mean, 
this was all investigative techniques. These were undertaken to 
try to help bring some information about a criminal event that 
has taken place.
    So one of the first roles that the crime laboratories 
initially had to face was just simply identifying the white 
powdery substance as a controlled substance meeting the 
critical element of the law, so that of course involved in 
chemists being hired at the laboratory. But prior to that, the 
question of trying to reconstruct the criminal event and trying 
to then test what can be observed at the crime scene based--
test that against the statements of witnesses that may be there 
and again trying to assess and reconstruct just exactly what 
took place before it is then decided whether there are any 
charges to be brought and how that would proceed in court.
    So consequently, a lot of the development, particularly of 
the pattern-type recognition, the observation-type techniques, 
such as fingerprints, such as firearms identification, other 
things like that, evolved in police departments probably from 
investigative personnel and not so much scientists and then--
but in my estimation, through the years, through 
organizations--forensic science organizations as these 
individual techniques have evolved, the agencies had brought in 
people with scientific backgrounds as they have recognized that 
need. They probably were surprised when they first arrived at 
the level of sort of scientific underpinnings there and I think 
there has been a lot of work done by a lot of people to try to 
address and assure themselves that they were offering opinions 
confidently in their individual cases. So that is where I think 
again NIST would have the--again as a short-term, efficient, 
quick kind of response kind of a thing, they have the capacity 
to look at information that has been developed, identify where 
the gaps are and, where additional information is needed, and 
might be able to try to more aggressively and quickly and 
directly address some of the most critical comments found in 
the report.
    Mr. Neufeld. It has been said that for a lot of these 
disciplines that there was plenty of scientific data out there, 
we just didn't collect it. One of the specific requests that 
was made by the National Academy of Sciences during the time 
period that they had this committee up and running, and they 
had public sessions was they invited people to come in and 
actually produce the scientific data that folks were referring 
to. And I will just use this as one small example. Under the 
odontology section on bite marks, they reached a conclusion, 
``The committee received no evidence of an existing scientific 
basis for identifying an individual to the exclusion of all 
others.'' There is another report I read which----
    Chair Wu. I am sorry, Mr. Neufeld. What methodology were 
you referring to there?
    Mr. Neufeld. The odontology, bite marks section, for 
illustrative purposes. There was a lot of talk in the report 
that a lot of these problems were known about back in 1999 when 
NIJ did a study, and another report that was done in 1995 and 
one done in 2003, and I think it is shortsighted if we simply 
believe that we can quickly deal with a couple of these 
problems and then things will be okay. When I read this report, 
the one thing I walk away with is that it won't be okay, that 
in fact what they are saying is because no one has ever 
demonstrated the will or the vision to do these things before, 
that you really do need a single entity, which they call a 
National Institute of Forensic Science, that can coordinate all 
these objectives. Yes, once that is up and running they can 
prioritize, they can decide that, for instance, some of the 
disciplines that Mr. Hicks and Dr. Downs were referring to are 
the ones that need to be addressed first. But you still need 
this national entity that can look at the financial needs, for 
instance, of all the various crime laboratories that Pete 
Marone was talking about.
    One of the fundamental problems we have seen in forensic 
science, and I don't think there will be any disagreement in 
this panel, is there has been kind of a balkanization of 
forensic science in America so people have to go to 20 
different pots, people have to deal with 20 different 
organizations, and it would be much better if there was a 
single entity that could coordinate all of this and it could 
create its own priorities for research, for giving out the 
federal money, for doing all those things that you would expect 
to do if this is to be a science-based undertaking.
    Mr. Smith. Thank you very much.
    Chair Wu. Thank you very much.
    The gentlelady from Maryland, Representative Edwards.
    Ms. Edwards. Thank you, Mr. Chair, and thank you to the 
panel. I would say I do look forward to at some point in the 
future hearing directly from NIST about some of the analyses 
and recommendations and the way that they believe they can play 
a continued role in the good work that they are doing out in 
the fourth Congressional District in Maryland.
    To Mr. Neufeld, I really appreciate--and I have been 
pronouncing your name apparently wrong since 1992, but I 
appreciate the work that you have done. I had the great fortune 
when I was at the Arca Foundation of being able to support some 
of the work of the Innocence Project and all the projects 
around the country looking at DNA and obviously other evidence 
that resulted in people being wrongfully convicted, 
particularly of capital crimes and serving life terms and 
facing execution, and I just think that the work that you have 
done with this new technology has been an amazing revelation 
into our criminal justice system and the way that it sometimes 
can fail people who sometimes are of little means and don't 
have the ability to defend themselves, so thank you very much.
    I have a question really that relates to funding, and while 
you may not be able to project the amount of resources that it 
would take to do this work, I wonder if any of you have any 
estimates across the federal landscape of the amount of 
resources that are already being spent in forensic sciences and 
technology. Because I think with a lot of things, we are not 
always in a position here in Congress of creating a new agency 
because we have a new field, and that in itself could be very 
expensive and maybe not even very productive. I look at the 
work, for example, around climate change that is actually 
taking place across--which has a number of different kinds of 
disciplines contributing to the field and taking place across 
many different agencies and now with some greater coordination 
out of the White House and so I wonder if you could comment 
about a way that we can--and particularly Ms. Henderson--about 
the way that we can look at the work that is in front of us and 
the recommendations which I think are important, but that we 
can use some existing resources or build on those capacities 
rather than creating a separate federal agency.
    Ms. Henderson. Well, I think if we look at what is existing 
and then we would have to look, of course, at the latest 
legislation that is out there but, if you have to look at 
different entities, it is going to be NIST, it is going to be 
NIJ. There are forensic capacities that are being utilized in 
the Department of Defense [DOD]. There is the Department of 
Homeland Security. See, that is the thing. As Peter pointed 
out, there are many little pockets out there with different 
resources, and in fact sometimes there is--and this goes back 
to what Pete said too. There is research that is being done 
that we in the forensic community are not privy to because it 
is in Department of Defense or something and that is not out 
for peer review, for example. So I think if we look--and I 
think, Pete, you had mentioned something about that in the new 
economic stimulus package. There is between $4 billion and $5 
billion. Is that correct?
    Ms. Edwards. But do you have an idea across federal 
agencies of the resources? Maybe that is something that we need 
to figure out to get a better handle on. Whether the resources 
that you are talking about that would be used, perhaps, even to 
create a new agency already in existence, and maybe there is a 
way to figure out a coordinating role among these agencies, 
even the ones that are out of our hands in some ways like 
Department of Defense or Homeland Security.
    The other question sort of goes not so much to the funding 
levels, but what type of coordination do you think is necessary 
even across, you know, the ones that we know about, FBI, NIJ, 
NIST?
    Ms. Henderson. Well, I would like to talk about that 
because when I was the President of the Academy, one of my sub-
themes was collaboration, and sometimes there isn't as much as 
we would hope for in the forensic science community, but I 
think now we are all saying we must all work together. I mean, 
this is a diverse panel if you look at us and we have come to 
the table, so to speak, because it is of such concern both for 
the justice system, and I am saying both the criminal and the 
civil justice system. So I think what we have to do is identify 
all the resources that are available. We all want to make sure 
that justice, both civil and criminal, are successful, and we 
cannot do that unless we identify what is available now. Don't 
duplicate efforts. I think that is a waste of everyone's time. 
And we have to be cognizant of what our economy is looking like 
these days. I mean, we cannot ignore that and we are suffering 
across the board here whether we are in education, the 
Innocence Project, in a crime laboratory, you know, pathology 
work, all of that.
    So I would say the first thing probably to do is to 
identify the pots of money, who is working on it and then can 
we bring people to the table. I don't know whether, you know, 
people have to be dragged kicking and screaming or not. I am 
hoping not, since I think we are all trying to collaborate at 
this point.
    Ms. Edwards. My time is up, and I think this is something 
that we actually do need to explore and then we can look at the 
set of short-term recommendations that we could follow through 
on right away even though we may not be able to quite reach the 
long-term yet. Thank you, Mr. Chair.
    Chair Wu. Thank you.
    The gentleman from Georgia, Mr. Broun.
    Mr. Broun. I thank the Chair.
    Let me give you a little background about me. I am a 
physician from Georgia and so Dr. Downs might be able to 
understand what I say. If you all need some interpretation, he 
will be glad to do that, I am sure.
    Mr. Marone said that NIST does not have all the package, 
and I am concerned. I would like to see a show of hands, 
please. Some of you seem to be promoting a new National Bureau 
of Forensic Science or new agency. Who of you all's group are 
proposing a new national bureau? Would you please raise your 
hands? Okay. Three, four, one not. Okay. Of the four that are 
proposing a new national bureau, why not in the private sector? 
Why not in the states? Why can't this be done? Because I am as 
a scientist seeking truth all the time. When I graduated from 
medical school, the Medical College of Georgia in Augusta, I 
was taught things as being absolutely true. Three or 4 years 
later, through continuing medical education, I found the 
opposite is true, and I can give you many examples of that, and 
that is true with all of science and we have to have peer 
review and we have to have the independence that Ms. Henderson 
was describing, and having that independence is extremely 
important as far as I am concerned to make sure that we don't 
convict people who are not guilty. I want to put the guilty 
folks in jail and make them pay for their crimes and I want to 
make sure that people not guilty are exonerated if they are 
charged.
    So why not do this in the private sector? We have got two 
competing forces here, the district attorneys, the prosecutors 
on one hand, the defense attorneys on the other with a lot of 
money involved on both sides at the local and State level. Why 
not allow market forces to develop this kind of scientific 
inquiry to find the truth and the new truth as it develops? Mr. 
Hicks?
    Mr. Hicks. Well, I think the--again, because this is driven 
typically by the D.A.'s, I mean, they are the ones that--and 
the police investigators at the crime scene--they are the ones 
that have the need to try to gather the kind of information 
that will help again reconstruct the event, establish elements 
of the crime, maybe link the suspect and the victim together. 
So it seems to me that is where the need is going to be 
defined. And then whether or not you can turn that to the 
private sector, I think you probably could. I think maybe that 
is where NIST actually is kind of uniquely positioned because 
they are involved with the private sector to a great extent, 
and it just strikes me that if given this role with respect to 
the forensic activities, as these new needs are defined and 
emerge, they may recognize opportunities in the private sector 
that can be brought to bear on those. And of course, just as 
with DNA technology, while the significance of the technology 
was recognized early on, but having the reagents, the testing 
equipment, all the supplies necessary for performance in the 
laboratory, these all had to be communicated with the private 
sector and so there was, you know, a lot of interaction there 
at that time. The private sector was eager to find out what the 
needs were because, I think, they too recognized the potential 
for growth in that area.
    Mr. Broun. Thank you, Mr. Hicks.
    I would like to ask another show of hands, who of you all 
out of the panel have read and studied the Constitution of the 
United States? Could I see hands? Okay. Four or five of you. I 
carry a copy in my pocket and I believe in this document as it 
was intended by our Founding Fathers. Could you all show me 
somewhere in this document where we should develop a new bureau 
of agency of forensic medicine or forensic science here in the 
United States? If you all could show me that, I would 
appreciate it.
    Ms. Henderson. Actually Peter would probably say something 
like we could look for a penumbra, right, or a shadow within 
some of the Constitutional amendments that say that we--to 
protect people's rights that we would be able to have something 
like this. Peter?
    Mr. Neufeld. Congressman, if I may, I also wish to respond 
to your last question because I think you raised a very good 
question, and I actually do believe that the private sector can 
play a huge role in doing a lot of the research that you are 
describing, but the one overarching principle that came out of 
this report, and I think there is no disagreement on this 
panel, is that whatever fixes need to happen have to happen 
upstream of a courtroom, that historically defense lawyers, 
prosecutors and judges have not done a very satisfying job of 
separating the wheat from the chaff when it comes to good 
science and bad science in criminal cases. I would be more than 
happy to send you a peer-reviewed article that I wrote last 
year on that specific subject, and what you will see is that 
even the very famous Daubert decision that came down in 1993 is 
not really used in criminal cases, very, very rarely, and that 
it is believed by everybody here that if you can get this stuff 
right before it ever gets into a courtroom, then we can all 
have much more confidence in what goes on, and you can't simply 
leave it to the so-called crucible of the courtroom to work it 
out.
    Mr. Broun. Mr. Neufeld, I appreciate that. My time is about 
out. If the Chair would just permit me to make a statement, 
then I will quit.
    Chair Wu. Absolutely.
    Mr. Broun. Back to my question about the Constitution, 
unless you look at a perverted sense of the Constitution, you 
will not find in that document anywhere Constitutional 
authority to develop a new national agency or department of 
forensic science. You won't find it. But we are operating here 
on the perverted idea in Congress, the courts as well as the 
Administration whether it is Republican or Democrat, all seem 
to operate on a perverted idea of what the Constitution is all 
about, and I find that very regrettable. But as a scientist if 
I am extremely interested in finding truth whether it is in 
forensic medicine, forensic science, just even medicine as I 
still practice or not, but I don't think we are going to have 
the intellectual freedom with a new government body because 
there is going to be government control over that body, and I 
encourage you to think long and hard before continuing to 
promote a national body. NIST does a great job of setting 
standards and I think we have other opportunities to develop 
truth in the forensic areas without developing a new body, and 
we frankly don't have the money now to develop these new 
standards. So I encourage you and others to look at--we have 
got to solve the economic problem in America and developing new 
bodies and new bureaus and other things, maybe they are nice 
and maybe they are not Constitutional but we would want to do 
that. I think there are better ways than trying to look at 
that, and let us find those solutions because I don't want 
anybody sitting in jail who is not guilty and I want to know 
the truth as a physician.
    So I have other questions I will submit for you all to 
answer and I appreciate you all's time and I thank the Chair.
    Chair Wu. Thank you, Mr. Broun. I am sure that we will be 
able to get back to you on a second round of questions if you 
would like, and I would like to thank the gentleman from 
Georgia for giving me the opportunity to pull out my hip pocket 
copy of the Constitution. The argument is typically that 
article 1, section 8 provides various authorities. There is a 
specific authorizing provision in the Constitution for NIST to 
provide a system of weights and measures for the country but I 
just want to point out, because this issue has come up in my 
Congressional district repeatedly, usually with respect to 
Social Security or Medicare about Constitutional authority. I 
just want to point out that there doesn't appear to be textual 
reference to NASA or to the Air Force in the Constitution 
either but we have seen fit to stretch it in each instance, and 
this is not to engage the gentleman in Constitutional debate at 
this point but we perhaps could continue the conversation over 
lunch sometime.
    Mr. Broun. If the Chair would yield a moment?
    Chair Wu. I would be happy to yield.
    Mr. Broun. I would love to have that opportunity to have 
lunch with you and discuss that, but from my perspective, we 
are operating governmentally in the Congress, pretty much 
throughout the Congress as well as in the federal court system 
as well as in the Administration on a perverted idea of what 
the Constitution is all about, and I believe in the original 
intent of the Constitution. National defense is Constitutional 
so therefore the Air Force and NASA and some of those other 
things that were not specifically mentioned fall within the 
aegis of national security and national defense. NIST certainly 
is one of those things that I agree we need to have the 
national standards, and that is the reason I would like to see 
NIST take over some of these things to make sure that the 
science is correct, but here in this committee, throughout 
Congress, we hear people talk about the climate change and 
global warming that is absolutely certain manmade and there are 
many, many scientists across the world who say that is 
absolutely not true and there are scientists who look at all 
things, in my medicine, my field, and others, and there is 
always debate, and that debate is good in the scientific 
community because that is what peer review is all about, and I 
think it would be critical for us to continue in forensic 
science back to this issue so that we have that independence 
and have many entities looking at these various things whether 
it is DNA testing or bite marks or other entities so that we 
get the truth and continue to seek that truth. Having one 
federal body that is focused on this is I think counter to good 
scientific inquiry, and besides being un-Constitutional in my 
opinion. So let us have lunch and we will talk about that 
further. Thank you.
    Chair Wu. I thank the gentleman.
    Mr. Broun. I thank the Chair.
    Chair Wu. Reclaiming my time. While the gentleman from 
Georgia and I may have slightly different Constitutional 
interpretations, I think we share a concern about whether the 
creation of a new agency at this point in time is the 
appropriate response, and I would like to get to that after we 
return to mining the subject of the core concern about is there 
sufficient science, where is the science behind forensic 
science, what difference does it make. I am still trying to 
understand the core concern here, and forgive me if I am a 
little bit slow, but it appears to me that with DNA evidence we 
had a body of science that was developed independently of any 
forensic application and then a forensic application was found 
and eventually solidified, but DNA is something that we have 
been working on since the 1950s, maybe even a little bit 
before, but there is an independent body of work. What Mr. 
Hicks seems to indicate is that a lot of the methodology 
developed in forensics stems from investigative work and is 
experiential and a body of work that developed over time and 
pieces of it have been--pieces of it are supported by research, 
other pieces remain perhaps more experiential. Am I beginning 
to understand the picture here, Mr. Hicks? Would you care to 
expand on that?
    Mr. Hicks. Yes, I think you have hit it right on the head. 
That is exactly right. And as Peter mentioned earlier, I don't 
know what the response was when they invited those 
practitioners in those fields to come forward with information. 
I suspect that they didn't. I suspect part of it may have been 
an issue of trust and a question about where is this going, who 
are we giving it to, and knowing that they operate in a very 
adversarial environment of the courtroom all the time. But the 
other is that it may just not have been in sort of the more 
formal scientific forum as well. And that is where again I 
think if people who are trained and have the experience in that 
type of activity, if that could be brought to bear on the 
existing information--and there will be gaps, I am sure, 
identified and holes identified and----
    Chair Wu. Can we try to bear down on the issue of what 
difference would it make? Now, Mr. Neufeld gave a very graphic 
example of 200 innocent individuals exonerated by DNA, let us 
say, who were convicted, subsequently exonerated, and out of 
those 200 perhaps 100 perpetrators who were, if you will, loose 
on the streets because of the wrongful incarceration of the 
200, that 100 real perpetrators, if you will, were loose 
longer. I mean, that is one graphic example of a difference 
that it would make. There seems to be different levels of 
challenge as to different testing methods whether it is 
ballistics or bite marks or hair or paint chip analysis. Can 
the panel further address for me examples of what difference it 
might or might not make to the judicial process if we were to 
apply science more broadly to what has historically been a 
collection of experiential data points?
    Ms. Henderson. Mr. Chair, if I could respond. One thing, 
and I think Peter pointed this out also, we have to remember in 
the criminal justice system only two to four percent of the 
cases ever go to trial, so we want to make sure that--so we are 
not really able to cross-examine and challenge many of these 
issues because things are pled out, there are all kinds of 
other things that go on. I would say because we have such a 
diverse area in forensic science, like Dr. Downs, pathology is 
not really--I don't think there are really challenges to that 
as much although there are some, like shaken baby syndrome, and 
things like this come up as theoretical debates and also are 
challenged in court. But then we have the pattern evidence area 
and I think that is really when we look at the NAS report, they 
are looking at what we call pattern evidence. We are looking at 
fingerprints, we are looking at bite marks, we are looking--
see, paint and things like that, we have chemistry. I mean, 
that--again, there is not as many, I think, attacks on 
toxicology, on chemistry, drug chemistry. I mean, there are 
always new methodologies that are developed.
    Chair Wu. Are most of the problems focused in these pattern 
areas where we seem to have, if you will, a statistical 
problem?
    Ms. Henderson. And you can't--I would say one thing, that 
they have not--you can't really have statistics in some of 
these areas. There are actually in tool marks, for example--I 
will give you an example. Somebody comes to pry open, you know, 
your sliding door and then they have someone come from the 
crime scene to say, here, we know that this is the pry bar that 
we just found in this person's car to pry open that door. There 
is a debate whether you count striation marks. I mean, there 
are two theories of this. One group says we don't need to do 
that. The other people say--so within--and again, that is like 
science. You are always debating in science, coming up with new 
methodologies. So there are actually--and like Pete pointed out 
with the knife patterns, that is another one. They have all 
kinds of pattern evidence with tool marks but it is highly 
debated. So I think I saw, at least when I read the whole 
report, the more the challenges are in the area of what I would 
call pattern recognition forensic science, but not in some of 
what I would say forensic pathology, toxicology, drug chemistry 
and areas like that, and I don't think that is really where the 
concentration was in the report.
    Chair Wu. Help me understand that. Where there are things 
like toxicology reports and chemical analysis of paint chips, 
do you all agree that those are more settled procedures and 
less doubt about them? Mr. Neufeld.
    Mr. Neufeld. I agree with your original comment that the 
biggest problems occur in those so-called matching disciplines, 
pattern disciplines, but there are other types of problems in 
the way that they are actually implemented in the criminal 
justice system which you should be made aware of, which are in 
the NAS report. For instance, since most cases don't involve 
DNA, we all agree on that, and we all agree that most cases 
don't go to trial. Most cases are either dismissed or resolved 
by a plea of guilty and so therefore in most cases the people 
who are the principles, the lawyers and the defendant and the 
victim, are looking at a lab report, a piece of paper, and 
there are no national standards on what goes into a lab report. 
And one of the things that the NAS report calls for is there 
needs to be national standards so whoever reports the report 
can figure out what happened.
    Chair Wu. So even where there is, if you will, more science 
as in chemistry, there are certifications issues about the 
accuracy of the lab tests. There are issues about procedure. 
There are issues about the format and the content of various 
reports.
    Mr. Neufeld. That is correct. Thank you.
    Chair Wu. And nobody disagrees with that. But is there 
still consensus that there is a much bigger problem in the 
pattern recognition fields like ballistics, bite marks, 
fingerprints? Dr. Downs.
    Dr. Downs. I think what we are looking at is a couple of 
issues that overlap. One is the fundamental scientific testing, 
the reproducible number, and I am going to probably get my good 
friend, Mr. Neufeld, upset, but he refers to ``DNA 
exonerations.'' To my knowledge, DNA has never exonerated 
anyone. It has been used for that purpose but it is only a test 
result, and we have to place that test result into context. DNA 
has never convicted anyone. It has been used and interpreted 
for that purpose but what we are talking about is the metric of 
actually performing a scientific test.
    The accreditation and certification goes to the scientist 
practitioner--that they are actually qualified to interpret 
that test result and put it into the context. So I think that 
part of the report, that you need to have both of those 
together simultaneously because the reports need to be 
understood. They need to be understandable. Someone needs to be 
able to read my report and understand why I made a 
determination.
    Chair Wu. Well, Dr. Downs, I think that we are in agreement 
that if there is a sound methodology, one still has to have a 
sound practitioner and have standards for the form of the 
report and the content of the report.
    Dr. Downs. Yes, sir.
    Chair Wu. So we are in agreement on that, and there is a 
certification issue here and a standard-setting set of issues. 
I am trying to get back to, are there core issues with some of 
these technologies that we use that have a deep history but 
perhaps have not been analyzed in ways that we would consider 
supported by lab science? Ms. Henderson?
    Ms. Henderson. Yes. Actually this brings up another issue 
which I wanted to touch on is education.
    Chair Wu. Can we finish this one first?
    Ms. Henderson. Yes. Well, that is what I am getting at. I 
am going in a circular fashion right now. No, actually it is 
education because lawyers for a long time--these things weren't 
challenged because lawyers did not have science backgrounds. 
Only 5.3 percent of law students have any education in physical 
sciences. So now that people are getting, I would say, up to 
speed in whether it is computer science or something else, now 
there are many more challenges that are being made, and for a 
long time fingerprints were never challenged, tool marks were 
never challenged. It was a given that this is good science. But 
then when people started asking well, where is the rigor, where 
is--and there is the very famous case that took place in 
Philadelphia with fingerprints. It was the first time that 
somebody in federal court challenged a fingerprint, and this 
was in a bank robbery case, and all of a sudden people said 
well, where is the data, we don't have anything that supports 
that the fingerprint evidence is really valid. So I think that 
is where we are looking, and these are many cases. I mean, if 
you go to my website, NCSTL.org, we have cataloged all these 
types of cases that say here is where the challenges are and 
that is again, I think--really what we are seeing is the 
challenges are being made in things that, as John said, 
developed through law enforcement but then didn't have the 
rigor until the attorneys started getting educated, and they 
are still not that well educated, I have to say, in most 
science, other than Peter Neufeld, of course. But, you know, 
that is one of the things, and he has been doing this for 
years, but other people are not being trained in that 
particular area. So I think the rigor needs to be imposed in 
many of, I would say, traditionally accepted pattern evidence 
areas and that is what the report says.
    Chair Wu. Thank you, Ms. Henderson.
    Mr. Hicks, you headed up the FBI crime lab. Have we just 
been taking on faith these fingerprint matches, these bite mark 
matches, and if you drill down to really focus on: is there 
evidence that a match is a match, do we have problems when we 
actually drill down and start asking those questions?
    Mr. Hicks. Well, of course, I am not an expert in all those 
areas, you know, to that extent, but it is experientially based 
and I think if you were to speak with someone who has worked in 
that field for some period of time, they have confidence that 
they are able to distinguish patterns. But again, there are so 
many uncertainties in an actual forensic evidence case, for 
example, fingerprints. You may not have a full, clear image. 
You may----
    Chair Wu. But, I mean, a full fingerprint is a full 
fingerprint, but the problem is you are frequently working with 
something a lot less than that.
    Mr. Hicks. What you are faced with, right. And so that is 
where the--as Pete mentioned earlier, about the quality 
assurance practices where you do want to be sure that you have 
some level of redundancy in your analytical system. You have a 
confirmation process maybe where somebody else looks at it and 
verifies, at the very least reviews, the work done to agree 
that they come to the same opinion. And can errors happen? I 
think they can as has been demonstrated and undoubtedly will in 
the future. Errors even happen in medicine with all the rigor 
that is behind that. So I think that is where the quality 
control process and the accreditation process of course 
supports that to be sure that you have systems in place that 
help to detect when things go wrong or inconsistent, you know, 
with what the sort of established community standards.
    I think if you were to go--I mentioned scientific working 
groups earlier. I think if you go to the FBI website, for 
example, and then look at some of their publications, Crime 
Laboratory Digest, for example, is one of those publications, 
and you will find on there listings of recommended guidelines 
for fiber identification, for example, fiber matching, and it 
will go to the level of what should be included in the report. 
It will talk about the kinds of tests which should be at least 
considered and applied, although not all tests would apply in 
all circumstances, but at least it defines which tests will 
provide certain elements of information that might help to 
resolve whatever question it is they have been put to.
    Chair Wu. Mr. Hicks, in those fields where the FBI does 
have guidelines, in your professional experience, what 
percentage of tests submitted in those fields where there are 
guidelines do you think actually meet those guidelines?
    Mr. Hicks. I am reluctant to even hazard a guess. I don't 
know. It has been--first, with the FBI, it has been a long time 
since I have been there. Much has changed in the last 10 or 15 
years at the FBI as in all laboratories--the entire community, 
in part because of the DNA experience.
    Chair Wu. Yes, this is why we are spending a bit of time on 
this because frequently when you focus down on an area, as a 
legislator I don't get to do that nearly as often as I want to, 
what is there is not what one fully expects and many of us 
strive for original intent or for truth but it is a little bit 
slipperier than being able to get it on the first pass. I guess 
even though I didn't--I don't think I have ever seen the TV 
show. I perhaps fell in the same trap of assuming that because 
folks said it was so, it must be so, and I am beginning to 
wonder if it ain't so and whether we should be asking that 
question more consistently.
    Mr. Hicks. Well, I think, again, it is a question of being 
in the forum that is expected, and that is again why I keep 
getting back to NIST. I mean, they have the competencies to 
help make that assessment, to look at that kind of information 
and working with the laboratories and the scientific working 
groups of experts in those individual fields, people that are 
at least practitioners in the field to draw together what 
information is there and put it to that kind of scrutiny, and I 
suspect that there will be many areas where they can find that 
there are some gaps that need to be filled. Some areas might 
just be simply a matter of conducting--refining the scope of 
the study and performing the study in a slightly different way 
to get to the very specific questions being asked.
    Chair Wu. Well, I want to get to the other Members for 
another round, and I will continue this, but I just want to 
comment that it disturbed me greatly when I made the transition 
from a science background to law school and then it took me a 
while to figure out how the paradigm had shifted because in 
science you kind of work at something and you have competing 
hypotheses. Until you collect the data you don't draw a 
conclusion about which of the competing hypotheses one should 
proceed upon. With law, with judicial process or the 
legislative process, it is really quite different. There is a 
deadline and there is a deadline for decision. There is 
procedural fairness but one has to reach a decision by the 
deadline and you make the best choice you can under the 
procedural rules and then you live with that decision until 
something else comes back and you reverse it. It was very 
unsettling to come to that conclusion. I am still not sure that 
I am fully comfortable with it but I am not sure that there is 
any way to proceed in our society without those deadlines. I am 
still going to come back to this topic before getting to a few 
crass administrative things like cost and transitional issues.
    Mr. Smith, you have been very patient. Thank you.
    Mr. Smith. Thank you. Actually I find this interesting and 
I appreciate the expertise that you bring. That is, I think, 
why we have these hearings and I am grateful for the 
opportunity to participate.
    We have got progress of science and we have got a criminal 
justice system. Are they keeping up with each other? I mean, 
Mr. Neufeld, you cited over 200 cases and I certainly commend 
your organization for striving for a better way, if you will. 
If we used today's system that is most often practiced, I mean 
each state would probably have a little different way of doing 
things but if we applied today's practices to those cases over 
the last several years, I am not real certain with the timeline 
of all of those cases that you mentioned, but have we made 
progress? How are we doing, say, from the 40,000-foot level?
    Mr. Neufeld. You have made progress with respect to those 
cases which would be resolved through DNA testing, but as--
because DNA is that robust. But again, as everybody on this 
panel will tell you, the types of cases which lend themselves 
to DNA is a very small minority of what goes on in a crime 
laboratory or what goes on in the broader area called forensic 
science. Many of the same disciplines that gave rise to the 
wrongful convictions are still practiced today and they are 
still practiced today much the same way they were practiced 
five or ten or fifteen years ago. They haven't changed, and 
that is one of the reasons why there is concern for a new 
initiative because others before have failed to have that 
initiative to make the changes. Okay. People knew, for 
instance--and I am not going to--John Hicks was an expert in 
hair microscopy which the Chair asked him about, that is, 
looking at hairs under a microscope, a hair from a crime scene, 
and comparing with a hair or hairs from a suspect and seeing 
whether they are similar. They would look at, you know, perhaps 
a dozen or more variables, and I will defer to him on what the 
exact number is. But the problem is, they never had any 
empirical data as to how common or rare each of those variables 
were. Nevertheless, they would make statements in courts of law 
about how unusual it is to find two things that are similar or 
common without any database, without any empirical data, and to 
a large extent the problem with a lot of these so-called 
matching disciplines is they lack empirical databases to allow 
people to create a statement about an association, and that is 
still a problem today. It hasn't changed. And it is not getting 
any better in the courts because judges don't deal with it any 
more adequately and the lawyers, the defense lawyers and 
prosecutors, don't deal with it any more adequately because if 
they had done well in organic chemistry they would have 
followed Mr. Wu to medical school as opposed to me to law 
school. It is that simple.
    Chair Wu. Mr. Hicks, do you want to respond?
    Mr. Smith. Go ahead.
    Mr. Hicks. Well, again, with hair identification you are 
looking at features that may help to distinguish one person 
from another but always in the reports that were issued there 
was a disclaimer more or less, a warning statement put in 
there, that this is not an absolute means of identification, 
and so it should be viewed in that light. There may have been 
circumstances where the hair had been artificially treated, for 
example, repeatedly where it would add some level of 
uniqueness. At least in the experience of the examiner it would 
seem to be something that they had rarely observed and that 
might be offered during the course of testimony there to--but I 
am not aware of any instance where there was testimony given in 
a hair case, maybe Peter knows some, but some instance where it 
was given that this is an absolute match that nobody else has. 
It was always considered--urged that it be considered in the 
context of other information. And so, for example, in some 
cases, it might have been a fiber case, for example, if you 
find a blue nylon fiber on a victim, on a homicide victim, and 
you find a suspect that has a blue nylon sweater. That may be 
some association but of course there are many sweaters that 
might have been produced like that so that I think intuitively 
most people would recognize that and wouldn't have difficulty 
understanding that that is not an absolute association.
    On the other hand, if you have a case as in Georgia, the 
Wayne Williams case some years ago, the Atlanta murders case, 
as it was referred to, where there were a number of young men 
who were found killed and there were many different fiber types 
that were found, 28 different fiber types, in fact, that were 
consistently found on the homicide victims and there was at the 
suspect that was eventually developed sources for those fiber 
types were found in one location. Now, was it an absolute 
identification? I don't think so. There was an effort to try to 
develop some statistical estimate of how likely it might be 
that type of circumstance might occur. But that is the 
challenge again. In forensics, you don't know what you are 
going to be presented with, and the whole idea is to try to 
assess and reconstruct what you are observing and to see if it 
might help bear light on a particular investigation, 
particularly either to corroborate or dispute eyewitness 
testimony that you might have or other facts and circumstances 
that you have. It should always be considered in the context of 
the whole case, and I think that is what you had gotten to 
earlier, I guess. Of course, that is sort of the legal 
requirement to look at the totality of things and assess 
whether or not you can come and make your best decision based 
on the information you have. In some respects, that is taking 
place to some extent in some of those types of experiential 
types of practices in some forensic labs.
    On the other hand, hair identification, the cases that 
Peter is referring to where they had success in reversing these 
convictions, those are convictions which occurred 15 or 20 
years ago prior to the advent of DNA technology typically. If 
you were looking at a forensic laboratory today, I suspect 
there are a few that actually end with the microscopic 
observation of features of the hair. Now they would typically 
use that only to identify hairs which might be good candidates 
for DNA analysis. So rather than analyze 20 different hairs 
recovered in the debris from a crime scene, they will focus on 
one or two that seem to be similar in appearance maybe to the 
hair from the suspect source that they are considering but then 
they would isolate those hairs that looked to be the best 
candidates for a potential DNA match and then pass that on for 
DNA confirmation.
    Mr. Neufeld. You know what? Actually it proves too much 
because even when you talk about a combination between hair and 
mitochondrial DNA, you have the National Academy of Sciences 
explicitly reporting on page 5-26 of their report, but no 
studies have been performed, referring to mitochondrial, 
working with hair microscopy specifically to quantify the 
reliability of their joint use. The problem is, frankly there 
are dozens of cases that we have where people were wrongly 
convicted based on the inappropriate use of statistics in those 
hair microscopy cases and sometimes it was FBI agents 
themselves who actually offered these statistics completely in 
the absence of any empirical database. That is documented in 
transcripts. We can share them with the panel. It is not at all 
controversial.
    But there is a bigger problem. Even if you don't do as we 
did in the case which I submitted to the panel, say giving a 
number of one in 10,000, even if you say that something is more 
likely than not to have come from this individual, that in 
itself, even without giving a number, is a probabilistic 
statement and you can't give a probabilistic statement unless 
you have some empirical data. So it is not enough to say that 
we would have a disclaimer that we will not say it is this 
person to the exclusion of the rest of the world, but when you 
give any statement like that, it most likely hairs or more 
likely than not hairs, that is a probabilistic statement and 
you can't make those kinds of statement in the absence of a 
scientific empirical database, and they never had it.
    Mr. Smith. Ms. Henderson?
    Ms. Henderson. Yes. I thought Peter might cite to the--was 
it the Williamson case that was in Oklahoma, I believe, or 
Texas. There have been cases where they have said something was 
a match with hairs and fibers and they said you cannot do that. 
It is true, as John says, there are some, you know, 
evaluations, improvements now with hair and fiber evidence, but 
a lot of laboratories have done away with microscopy. They just 
said we don't want to do this anymore, instead we are going to 
see if we can do mitochondrial DNA testing, we will do that on 
the hairs but we are not going to go ahead and just say it is 
microscopically similar because there is not the data.
    Now, one thing I wanted to point out though, when you asked 
before about whether--how reliable certain areas were, there 
was a publication in the Journal of Forensic Sciences on 
proficiency testing. They went back to 1978 and looked at--Joe 
Peterson is the author of this particular article and he has 
done an update. He started in 1978 and looked at proficiency 
testing in every area of forensic science and their 
reliability, and I have to say hair and fiber was one of them. 
You might as well as have flipped a coin. In fifty percent of 
the cases they made misidentifications and so that is I think 
something that--and I can provide that to the Committee if they 
would like to look at this particular study.
    Chair Wu. Ms. Henderson, can you explain that to me a 
little bit further? I don't know what you mean by proficiency 
testing.
    Ms. Henderson. Okay.
    Chair Wu. And when you say 50 percent is misidentified, 
tell me what this means.
    Ms. Henderson. Okay. Pete can probably talk more about 
proficiency testing because he does this in the laboratory.
    Mr. Marone. Sure.
    Ms. Henderson. Go ahead, Pete.
    Mr. Marone. Proficiency testing is a quality assurance 
method, if you will, that is designed to test, ascertain the 
competency of the individual examiner. Each drug chemist every 
year, accredited laboratories must go through a proficiency 
testing program. For example, every drug chemist is given an 
unknown. They have to identify what it is. That could either be 
from an external source or an internal source but they don't 
know what the outcome is. And it is the same thing for trace 
evidence, for DNA folks. They will get a stain, identify the 
stain, tell us what the profile is, is there semen present or 
whatever. And so what it literally is, it is a test of the 
competency of both the individual and the operating process 
within the laboratory. DNA requires two a year. Everybody else 
gets one a year in every discipline. Part of the proficiency 
testing process is to ascertain why you got the wrong answer, 
whatever that might be. In a lot of instances it is something 
minor that you can fix. If it is an instance where you find out 
the person really has issues, that individual is taken off of 
work until the problem is fixed, and at that same time you go 
back and look at other work that that person has done prior to 
that proficiency test to see if those issues are----
    Chair Wu. Actually I misunderstood you. When you were 
talking about proficiency testing and then said 50 percent of 
test results were incorrect, I thought the implication was that 
50 percent of the results submitted as evidence were incorrect.
    Ms. Henderson. No, this is looking at proficiency testing 
within the laboratory, not necessarily that they made it to the 
courtroom, if I wanted to--and again, it was in certain areas. 
Now, again, when they started in 1978 and looked at this and 
moved forward, we have put in place, I have to say in the 
forensic community, a lot more proficiency tests than were ever 
done before. We also have put into place of course ASCLAD/LAB 
[American Society of Crime Laboratory Directors--Laboratory 
Accreditation Board] accreditation, which then requires these 
proficiency tests. Before many laboratories did not have these 
requirements, and I know Peter Neufeld will probably chime in 
on this at some point. But that is one of the things that have 
been improved. I have to say, things have improved over the 
years, although I can say it is human nature. It is not 
perfect. I mean, these are human beings doing laboratory tests. 
But what they are trying to do--and that is why they have 
quality assurance groups that go out to the laboratories and 
identify if there are weaknesses perhaps in the system, and 
that is the other thing that they are trying to work through 
and that is something to encourage, I believe with more funding 
as well.
    Chair Wu. Here is an analogy from a different field. Ms. 
Henderson, what you are saying is that this is like having 
sanitary tests for restaurants and the restaurants fail 50 
percent of the tests or inspections but that is not to say that 
50 percent of the customers are necessarily eating unsanitary 
food?
    Ms. Henderson. I don't know if I would say it that way. I 
have to say, with all due respect, I think that is putting 
words in my mouth. I don't think that is really--what I am 
saying is, in certain areas reflected in the work by Dr. 
Peterson, he found that over the years, and he looked at 20 or 
more years of proficiency tests, that in certain areas, I won't 
say all areas of forensic science, but in certain areas of 
forensic science people failed proficiency tests, right, and 
that was in--the hair and fiber was one of the most, I would 
say, telling areas of the proficiency test failures.
    Chair Wu. I am sorry, Ms. Henderson. You all are experts. 
That is why you are here. We are not. That is why we are here. 
And I am just trying to understand the policy implications of 
what you all are trying to tell us.
    Ms. Henderson. Okay. I think Peter can address that.
    Mr. Neufeld. Mr. Wu, there is a fundamental disconnect, and 
the fundamental disconnect is that the reason you use 
proficiency tests is there is no way to know. When you are 
looking at a piece of crime scene evidence and you match it to 
me, did you get the right answer or the wrong answer, if you 
will, because you don't have a control. It is an unknown. And 
so proficiency tests are a substitute for that. Is that clear 
kind of? That is the fundamental difference. So for instance, 
when you----
    Chair Wu. That is clear. It is somewhat troubling but it is 
clear.
    Mr. Neufeld. Well, it is very troubling and so one of the 
things that you would want from a national----
    Chair Wu. Mr. Hicks does not agree.
    Mr. Neufeld. One of the things you would want from a 
National Institute of Forensic Science, for instance, would be 
to come up with a program of proficiency testing because there 
are four types of proficiency testing. There are external, 
there are internal, there are open, and there are blind. So a 
lot of the proficiency testing that is done, for instance, is 
the kind where the individual analyst knows it is a proficiency 
test and may or may not treat it the same way that he or she 
would actual casework. So what you would like to do ideally is 
to make the proficiency test more challenging and more robust 
and be able to sort of move it into the lab system so the 
proficiency test looks no different than an actual case. So you 
get the laboratory and the personnel to treat it the same way 
they would a regular case. It is expensive to do that. I think 
we all agree with that. But hopefully if you had this NIFS, 
okay, they could create national standards, they could create, 
if you will, a national proficiency test so the expense would 
not be on every laboratory and that kind of robust proficiency 
testing could happen more consistently throughout the country. 
The reason you want to do it--one of the problems we had, for 
instance, you know, in some of these other disciplines is you 
can assume that you have got the right person, but you don't 
have the same kind of scientific control that you have with the 
proficiency test to tell you for sure that you have the right 
person.
    Mr. Smith. Full circle. Back to the creation of a new 
agency perhaps. Do we not have enough of a grasp of where we 
need to go within the current agency framework, NIST or however 
we might proceed without creating yet another new agency that I 
think could end up being a bit of a distraction with the 
administrative parts of it rather than ramping up with current 
agency framework.
    Ms. Henderson. I would like to go back to my immediate 
action first. I think let us take existing resources. And we do 
have--I want to mention, we do have ASCLAD/LAB, which is the 
American Society of Crime Laboratory Directors Laboratory 
Accreditation Board, which also has testing methods. NIST has 
testing methods in place already and I think then we do the 
interim action. So first let us start with what we have in 
existence. We don't throw out the baby with the bathwater, to 
use a hackneyed phrase here, but go ahead and say what do we 
have, and we have to corral the existing resources and I think 
Ms. Edwards, when she said let us see what is out there, we 
need to see what is existing in terms of funding, then let us 
see what federal resources we already have in terms of testing 
and things like that. Then we go to the interim action, which 
would be to evaluate strategic policy decisions and strategies 
because we need to say what do we have here right now, and I 
think probably us in the forensic community would be able to 
probably pull all these things together and see what is out 
there. Then do the interim action. Then we go to the long-term 
action. I think it has to be a three-step plan. I think that is 
a much better way to exercise this particularly and looking at 
policy and strategies.
    Mr. Smith. Thank you.
    Chair Wu. Thank you, Mr. Smith.
    I ask the forbearance of the witnesses in repeatedly asking 
these questions related to the role of science and forensics 
and why it makes a difference. I think this is a topic to which 
we will return at some future date. I just want to say in my 
own defense or admission of guilt that I have been asking why 
does nanotechnology matter for the last ten years because 
people don't seem to have good explanations about why it should 
be important just because it is small. And I have come to the 
conclusion that it is important and it is worth supporting. I 
have come to the conclusion that we are on to something here 
and that it deserves more focus, but I still quite frankly do 
not--I am still trying to understand the role that scientific 
rigor can play in being brought to bear on what has been an 
experiential field for the most part. Mr. Neufeld has provided 
some graphic examples based on DNA and I am trying to 
understand how it might affect the rest of what we do, whether 
it is conviction rates going up or going down, and our 
certainty about providing a sound service. I think that Mr. 
Smith has asked some good questions about what would happen in 
the organizational interim in trying to organize a new agency 
if that were the path we were to choose.
    I want to focus on that a little bit, but first I start 
with Mr. Marone, and Mr. Marone, you said that resources are a 
real problem, but when asked specifically about how much more 
in resources, you begged off on the question, and I want to 
press you a little bit on that because it is easy to come here 
and say we need more, and we are in the line-drawing business 
about how much more, so if you are going to ask for more, I am 
going to have to ask you how much more.
    Mr. Marone. Well, I didn't beg off from the answer of what 
kind of resources, how much resources. I begged off the 
question as to how much it is going to cost, which are two 
different things, one could argue. But for example, if you want 
to look at resources----
    Chair Wu. We deal with dollar funding here, so if you could 
help us with that metric?
    Mr. Marone. Well, I can tell you things that it is going to 
take. For example, we need more people. How many people? We 
have to assess that and find out where we are. But where does 
that begin? We need a better entry source for our examiners. 
One of the things that we are looking at is the forensic 
science applicant pool. Who do we want them to be? Do we want 
them to be hard science or would we like them to be more 
science based and not requiring a baccalaureate degree as in 
many instances now with fingerprint examiners, firearms 
examiners and so forth. So we need to start at that level just 
like Dr. Downs needs to start with--if you need more people, 
you need to educate more people, you need to train them for 
pathology. You know, there are reasons why people go into other 
fields. We have got to make it more meaningful to them, more 
palatable to them to go into the forensic science field, to go 
into public service. Forensic science has no scholarship 
program, for example, like in graduate school they get a free 
ride to go get a Ph.D. Okay. There is no such thing even at a 
Master's level in forensic science. We need that to get the 
qualified higher-caliber students interested in forensic 
science. That is going to----
    Chair Wu. Mr. Marone, what I think we need from you to make 
a case for this are the measurable inputs that you need. The 
factors that you are mentioning are all important policy 
concerns but ultimately I think, you know, we have to decide 
what are we going to put into this, what are the dollars and 
cents, what are the undergraduate or graduate programs, what 
are the certification programs, what are the standards that 
need to be developed, and I hate to be so pedestrian about this 
but I think that is what we need for action going forward. And 
I would like to ask you for help with that if we are going to 
take meaningful action in this field.
    Mr. Marone. I fully understand. That is one of the things 
that as a community we have to be able to provide to you is----
    Chair Wu. Yes, I am asking you to provide it, and if you 
are saying you can't provide it today, I am saying we need to 
have that before we can take meaningful action. At least I 
think we need to have that before we can responsibly take 
meaningful action.
    Mr. Marone. I defer to anybody else on the panel because I 
know among us we have hammered this thing around a lot and I 
don't know that we have come up with any definitive answer.
    Dr. Downs. I may be able to give at least a partial answer 
regards medical examiners. Recommendation number 11 
specifically referred to the medical examiner community 
replacing lay coroners with physicians, board-certified medical 
examiners.
    Chair Wu. And Dr. Downs, I wanted to ask you about that 
because in your written testimony you do make that 
recommendation, and if you look at the graduation rate for 
board-certified forensic pathologists, which is also in your 
written testimony, there is just no way that we can get to 
having the qualified pathologists that you want with the 
graduation rate that we have.
    Dr. Downs. Agreed. It is staggering. We go through 
extensive training, as you know. Then we go into the 
subspecialty of forensic pathology, which I did in order to cut 
my salary in half. No one spoke to my wisdom in doing that, but 
the reality is, we go into forensic pathology for a different 
reason than perhaps other people go into medicine. It is a 
public service, and the number of people we need--we graduate 
37 residents in forensic pathology a year, 37. We have 400 
medical examiners actively practicing full time. We need an 
estimated 800. The cost per citizen, somewhere between $3 and 
$5 a head. So you can multiply that out. I get roughly $1 
billion to $2 billion just to have an operating system. That 
doesn't get into the infrastructure of how many offices need to 
be replaced and quite honestly need to be up to code for CDC 
[Centers for Disease Control], safety and performance of an 
autopsy.
    Chair Wu. That is the medical examiner side of things, the 
medical examiner/coroner side of things?
    Dr. Downs. Right, and if we actually were to do away with 
the 1,000-year-old office of the coroner, there are 3,000 
counties out there and a fair number of them are served by 
coroners, and I would imagine that the counties would have 
something to say about that issue. In some places----
    Chair Wu. Well, Dr. Downs, when an institution has survived 
for 1,000 years, there is usually a reason, and the paperless 
office has been predicted for a long time but papyrus has been 
with us a long time. There is a lot of paper up here.
    Dr. Downs. Yes, sir.
    Chair Wu. So I think I get the drift of where you want to 
go and we ought to push in that direction but implementing from 
here to there is the challenge.
    Dr. Downs. If we could enhance the investigation, the 
abilities of the coroner to do their job, I think that is a 
good place to start. We aren't going to get rid of the office 
of the coroner anytime soon, as you pointed out, sir, and I 
think if we can professionalize the office, we are way ahead of 
the game.
    Chair Wu. Ms. Henderson, you make recommendations about 
substantially increasing research. Do we have the 
infrastructure in place to do the amount of research that you 
are recommending?
    Ms. Henderson. Well, we do have in many universities now, 
because, of course, forensic science has increased attention so 
there are different programs that are out there that have Ph.D. 
students but we can also go to other institutions. I think 
there is--and again, if we want to look at hard science, and 
that is one of the areas to go to, let us go to biology 
departments, we will go to chemistry, because all of these 
things can be worked, not just in a forensic science program, 
but also in hard science programs. So I think, particularly if 
there is money to do research--I know this because I live on 
grant money myself--that people will then come and do the 
research, again working, I think, in conjunction with existing 
laboratories to know what are the needs or with the medical 
examiner's offices.
    Chair Wu. What I am hearing is a mixed answer. There are 
existing laboratories, State laboratories, private 
laboratories, federal laboratories. There is a university 
research base and----
    Ms. Henderson. And they are not always talking to each 
other. That is one of the problems.
    Chair Wu. And what I don't hear you saying is that the 
capacity is there. I don't hear you saying the capacity isn't 
there.
    Ms. Henderson. Well, of course, I know that--I think the 
capacity is there. Of course, people will say we need to have 
the dollars to fund it and then I will have to get back to you 
with how much money we would need to fund those types of 
research programs. As I told you, when I was president of the 
academy, one of the things we saw was, there was a lack of 
research dollars within the Forensic Sciences Foundation, which 
is a group that actually spun off, if I can say it that way, 
from the American Academy of Forensic Sciences. So now what we 
are doing is, with this $300,000 plus, we are giving stipends 
basically to graduate students in these accredited forensic 
science programs so that they can do research and they can go 
present the research in peer-review settings. So there has been 
a movement in that particular area. So I think we are making 
many efforts in that particular area.
    Chair Wu. Would it be constructive to have departments of 
forensic science or a new organization at the federal level to 
handle forensic science when this is a very important applied 
field but it brings together so many, if you will, different 
stovepipe sections of science, whether it is metallurgy, 
whether it is mechanics, whether it is biology, organic 
chemistry or DNA and biochemistry. Would this be a meaningful 
add to try to create this field, if you will?
    Ms. Henderson. Well, we actually have--I have to say, and 
this is where I receive some of my grant money from is the 
National Institute of Justice. They have a science and 
technology section that, you know, gives grants to people to do 
research. The Bureau of Justice Assistance also has money. So 
there are existing institutions that do provide money for 
people to do significant research, and of course NIST has been 
doing research over the years as well. In fact, they testified 
before the National Academy of Sciences group, so I think 
that--I don't know that creating another entity is always a 
good idea. I don't know whether there could be better 
coordination between entities. That perhaps might work. And I 
don't know if you, you know, can actually twist enough arms 
from federal agencies in order to all work together as a 
collaborative venture.
    Chair Wu. Well, it seems to me that this is a field that is 
tailor-made for our research university structure where there 
are disciplines from across many different fields and you 
really need to tap and access those fields in order to do good 
work.
    Ms. Henderson. I would not disagree with that.
    Chair Wu. Mr. Neufeld.
    Mr. Neufeld. I would just, you know, echo the words of 
recommendation number three of the NAS report which calls for 
the creation of a competitively funded peer-reviewed research 
program that would be at this National Institute of Forensic 
Science. They point out through the two years of hearings they 
had that there was a terrible paucity of federal funds 
available for meaningful research in the forensic sciences, and 
certainly what you would want to have is some coordinator, or 
quarterback, who could decide what the priorities are, and even 
if there are pools of money at DOD or Homeland Security or 
other places, at least the quarterback could decide maybe we 
can tap into some of those other pools of money but at least 
there will be strategic decisions made by somebody, and there 
are no strategic decisions being made now by anybody. When the 
NAS had their hearings, somebody testified in fact from NIJ, 
who was in charge of their science and technology program there 
and felt that NIJ was a poor place for locating this research 
undertaking because of their own internal perceived conflicts 
of interest as representing the different law enforcement 
agencies that NIJ currently represents. Moreover, there is a 
historical problem at NIJ of almost all their research money 
being earmarked, terribly earmarked for not just a discipline 
but earmarked that it would take place at a particular 
institution, which is the antithesis of the way that the 
National Science Foundation works. It is the antithesis of the 
way the National Institute of Health works. One of the things 
that the reports recommends, for instance, is the NIH should 
have a research budget to help forensic pathology so to help 
people who are medical examiners get research done in the areas 
that are breaking into new territory. They don't even have 
that, okay. But if there is a quarterback somewhere who is 
going to be looking out for the interests of all these people 
in the forensic community, then they can push the NIH to get 
some of that money. Then they can push Defense or other 
agencies that have pools of money to bring it to bear where it 
is needed.
    Chair Wu. Well, Ms. Henderson, thank you for sharing your 
perspective on Australia, that it has taken them 20 years of 
work on this. I expect that as we go down this road, it will 
not be a short one no matter what path we choose to take.
    Last pass. Mr. Hicks, you seem to have a different opinion 
about whether a new independent agency or quarterback or 
anything else is needed and I wanted to give you and anybody 
else who wants to take the other side a moment to more fully 
explore whether to do that or not. What do you see as the 
downside of proceeding down that path?
    Mr. Hicks. I think just from the practical aspects of 
implementation, and you have already articulated, I think, a 
lot of the concerns about trying to establish that large an 
agency. And even in conducting research, I think it is 
important that this be community driven so that someone in an 
academic setting who is not familiar with the ongoing 
operations of a laboratory and the kinds of questions that they 
need to address, there needs to be some connection there so 
that they have a sense of directing research that is applicable 
to the questions to be answered. And as has already been 
mentioned, again, there have been other federal initiatives 
here to try to support problems and needs in the forensic 
community such as backlog DNA testing and overall quality 
laboratory improvement. These may be vehicles that can continue 
to be brought to bear to help improve laboratory services. It 
seems to me where the big gap is, as I have said repeatedly 
here, is that in looking at some of those currently practiced 
forensic techniques as to whether or not they meet the 
scientific rigor and scrutiny that will help to assure 
confidence in the courts and that is where again I think you 
could direct activity instead of sort of open-ended research 
but you could direct activity into looking specifically at some 
of those areas, and it is a question of where does the 
competency lie to try to address that right now. Do you have to 
build a new organization to do that or are there competencies 
now that might be brought to bear on that question.
    Chair Wu. Does any advocate for a new organization want to 
take a minute to address that? You all are good? Okay. Very 
good. Thank you all very much for being here today. The record 
will remain open for additional statements and for questions 
and answers on the record that Members of the Committee may ask 
of each of the witnesses. I want to thank you all for beginning 
this path at this committee level to explore what we can do to 
improve the state of forensic science in America and look 
forward to working with you all going forward.
    Thank you very much, and the hearing is adjourned.
    [Whereupon, at 12:17 p.m., the Subcommittee was adjourned.]
                              Appendix 1:

                              ----------                              


                   Answers to Post-Hearing Questions




                   Answers to Post-Hearing Questions
Responses by Peter M. Marone, Director, Virginia Department of Forensic 
        Science

Questions submitted by Chair David Wu

Q1.  The NAS recommends that the Federal Government oversee education 
standards and accreditation of forensic science programs in colleges 
and universities. What is your opinion of this recommendation?

A1. One of the main points discussed throughout the report is 
standardization. The Committee's recommendation was not to replace the 
existing accrediting body with a totally newly developed federal 
program, but to utilize the existing, already working program which can 
be reviewed to assure that it meets the needs. Then support this 
program and the institutions applying to it for accreditation. The 
example for accreditation of forensic science educational programs 
would be the Forensic Education Program Accreditation Commission 
(FEPAC), which is a standing committee of the American Academy of 
Forensic Sciences. While this Commission has been in existence for just 
five years, it has shown significant success in raising the scientific 
rigor of the programs which it has already accredited. There is a 
quantum difference between overseeing the accrediting body and creating 
a new body from the ground up. A benefit of the standardization of 
these requirements is that students and these accredited universities 
could receive the benefit of federal support in the nature of 
scholarships or loans for tuition (forgivable at a rate of say, 20 
percent for each year of service in a publicly funded crime 
laboratory).
    For the existing undergraduate FEPAC accredited universities there 
are approximately 1,600 students. If the average cost for each student 
is $25,000 per year, the cost to fully fund undergraduate education for 
the existing forensic programs would be approximately $40,000,000.
    For the existing FEPAC accredited graduate level programs, there 
are approximately 175 students. If the average cost of graduate study 
is $30,000 per year for each student, the cost to fully fund graduate 
education for the existing forensic programs is approximately 
$5,250,000.

Q2.  What is the level of funds the Federal Government currently 
allocates to forensic science research? What will the transitional 
issues be in changing from a mostly experienced-based system to a 
rigorous scientific-based system?

A2. As noted in the report, in Chapter 2, pages 14 & 15, NIJ funding 
for the forensic sciences in 2007 was a total of $6,590,702, of which 
$4,048,563 was directed to DNA related research and only $2,542,139 was 
directed to crime scene tools, techniques and technologies; Impression 
Evidence; Facial Recognition; Iris Recognition; and Automatic 
Fingerprint Matching. The Federal Bureau of Investigation has about $33 
million allocated for research purposes. Currently, I have no idea as 
to the amount of forensic research funding from the Department of 
Defense, Department of State or other agencies. However, it must be 
noted that other agencies are not developing forensic technology 
intended for State and local use. It could, however, be commercialized 
but it is critical that Congress recognize that even if a R&D program 
for technology was increased, the forensic community would not have the 
funding to purchase the new equipment or to maintain it if they were 
able to purchase it. Further, these programs are focused on the 
advancement of existing technologies not on validation.
    Transitional issues should be considered first, research to 
validate the underlying principles of the disciplines at issue, namely 
friction ridge determination, firearms and toolmark analyses, and 
questioned document analyses. In addition to this would be 
determination as to the application of statistical models that would 
allow for the assessment of a statistical significance of the 
particular comparison.

Q3.  What federal resources would be required to establish a National 
Institute of Forensic Science?

A3. I don't believe that I am qualified to give a number for this as I 
do not work in the Federal Government. However, if one were created or 
if the existing structure was expanded, then funding would be necessary 
for staffing of the entity. In addition, there would be needed travel 
funds for numerous technical advisors necessary to review, comment on 
and aid in implementation. They would then require a budget of great 
significance to support the operational needs of the State and local 
forensic community which I believe must be assessed through annual 
requirements analysis of that community.

Questions submitted by Representative Adrian Smith

Cost

Q1.  What would the recommendations in the NAS report cost? 
Specifically, how much funding do you think is required for the 
proposed forensics institute? How much is necessary to fulfill the 
other technical recommendations, such as basic research, validation, 
and standards for accreditation and certification?

     You also state in your testimony that federal funding for 
disciplines outside of DNA ``falls far short of what is necessary.'' 
Could you provide an estimate of how much is necessary--even a ballpark 
figure for us as we move forward?

A1. I do not believe I can provide to you a total cost to do this as I 
am not a federal employee so I am unsure of what it costs to run a 
federal agency. I have, however, put together the numbers I believe to 
be rough for accreditation which I have listed below. It is important 
to realize that this does not include daily operations of labs, such as 
additional personnel (which have been estimated by some to be as many 
as 10,000 examiner positions), nor the equipment needed not only to 
support the new individuals, but also to replace and upgrade the 
equipment existing in laboratories now, nor the additional laboratory 
space for the additional personnel.

Accreditation NOTE: These numbers do not include any estimates for the 
inclusion of Coroner or Medical Examiner offices.

    From very preliminary surveys and numbers drawn from the number of 
police departments and sheriff offices, it is estimated that there may 
be 11,000 entities that fit into the category of forensic service 
providers.
    To train one individual in each agency to prepare for accreditation 
is approximately $5,000 each or a total of $55,000,000.
    It requires approximately two years of time for that trained 
individual to bring the agency into compliance to achieve 
accreditation. The cost of two years (times 11,000 agencies) for this 
process is estimated at $900,000,000.
    Cost of upgrading of facilities to meet safety, security, etc., 
cannot be estimated since these issues are variable.
    The average cost of an accreditation site visit is approximately 
$10,000 per visit, totaling $110,000,000.
    The accreditation cycle is five years. The average cost of an 
annual surveillance visit is $1,000 per site, so the total cost for a 
five-year cycle would be approximately $11,200,000 for the surveillance 
visits.
    Currently, administrative cost of the program is approximately 
$150.00 per (what would be a certified individual). If each agency has 
an average of 10 individuals working as forensic service providers, 
(that's 110,000), the total is 16,500,000 per year or $82,500,000 for a 
five-year cycle.

Certification NOTE: These numbers do not include any estimates for the 
inclusion of Coroner or Medical Examiner offices.

    The cost of certification fees, travel to testing site, study 
materials, etc. is approximately $1,000 per individual (times the 
110,000 estimated above), for a total of $110,000,000. The ongoing fees 
and annual fees will be less than this figure for the succeeding four 
years, maybe $75,000,000 each year.

NIST Capabilities

Q2.  Assume for a moment that Congress opts not to create a new 
forensics institute but still follows through on the technical 
recommendations in the NAS report. Which among those should be carried 
out by NIST versus other agencies or private sector organizations? (May 
want to ask for more detailed answers in writing.)

     To put this question another way, if no new agency is created, is 
NIST capable of, and should they: a) Establish best practices for 
scientists and laboratories? b) Establish standards for accreditation 
of forensic labs and certification of forensic scientists? c) Develop 
standard operating procedures for forensic labs? d) Oversee education 
standards and accreditation of university forensic programs?

A2. Once again, the intent of the report was not to establish new 
provisions from scratch, but to work from existing programs. NIST can 
aid in standardizing of the protocols and best practices recommended 
(but not mandatory) as outlined by the various Scientific Working 
Groups. I have already answered b., c., and d. above.

Crime Lab Accreditation

Q3.  You note in your testimony that great progress has been made with 
respect to accreditation of public crime laboratories--in 2005 over 82 
percent of labs were accredited. How do you think existing 
accreditation mechanisms should be dealt with in light of your 
recommendations for the Federal Government to develop its own 
accreditation standards? How might government intervention impact 
private sector organizations' incentives to continue its accreditation 
work?

A3. Actually, the report is quite clear. Just as in the accreditation 
of academic forensic science programs, the committee specifically 
stated that the existing accreditation programs not be ``reinvented'' 
by the Federal Government. What we intended was for the federal entity 
to review and assess whether an accrediting body (for testing 
laboratories) met the international standards of ISO/IEC 17025 and 
therefore would be able to conduct the assessments of compliance to 
those standards. During that process, an accrediting body may have to 
adjust their requirements to meet the ISO/IEC 17025 specifications. 
This action is to assure that all accreditations would meet the 
standards required and therefore comply with federal requirements for 
funding.

         ``On Friday, September 12, 2008 at an annual meeting of the 
        General Assembly of the InterAmerican Accreditation Cooperation 
        (IAAC), held in Paraguay, ASCLD/LAB was formally accepted as a 
        signatory to the IAAC Multi-lateral Recognition Arrangement. 
        This action means that ASCLD/LAB, and specifically the ASCLD/
        LAB-International accreditation program for testing 
        laboratories, is now internationally recognized and accepted as 
        operating in conformance with ISO and IAAC standards and 
        practices. ASCLD/LAB is the first Forensic Science Accrediting 
        Body in the United States to achieve this recognition.''

    Upon acceptance by the federal entity, the ASCLD/LAB International 
Accreditation Program would continue to conduct accreditations, meeting 
the intent of the committee report. This would be true of any 
accrediting body which meets or would meet the requirements and is 
approved.

Prioritization of NAS Recommendations

Q4.  Among the technical recommendations in the NAS report, what one or 
two stand out to you as the highest priority, and why?

A4. I believe that this is not a circumstance where A needs to be 
completed before proceeding to B or C. Several of the recommendations 
can be implemented concurrently. Certainly the research needed to 
validate the underlying principles for latent print comparison, 
firearms and toolmark examinations, and questioned document analysis 
needs to begin (Recommendation 3), as well as the research into the 
effects of observer bias (Recommendation 5). This will take some time. 
At the same time, the preparation for implementing and requiring 
accreditation forensic service providers (labs, fingerprint comparison 
units, crime scene, and digital evidence sections) and certification of 
individuals can begin. This also will be a multi-year process for 
educating the applicable parties, aiding in the preparation, 
application, and final accreditation and/or certification. 
(Recommendations 2, 6, 7, and 8).

Prioritization of Research Needs

Q5.  Has the forensic science community attempted to prioritize 
research needs across various disciplines? If not, in your opinion what 
areas of research are likely to contribute the greatest benefits to the 
legal system through increased funding?

A5. See answer to number 4 above concerning research. While some 
research has been conducted along these lines, there has been no 
nationally coordinated process to assure that the needs of the 
community have been addressed.
                   Answers to Post-Hearing Questions
Responses by Carol E. Henderson, Director, National Clearinghouse for 
        Science, Technology and the Law; Professor of Law, Stetson 
        University College of Law; Past President, The American Academy 
        of Forensic Sciences

    The questions posed by the Committee are thoughtful and relevant. 
However, most cannot be answered accurately at this time because of a 
lack of data.
    For example: there is no data on how many of the Nation's 
approximately 17,000 law enforcement agencies are conducting pattern 
analysis investigations such as fingerprint and tool mark comparisons 
and no line for ``Forensic Science Research'' in the budget of federal 
agencies.
    Without a solid platform of information it is not possible to 
answer questions such as the cost of establishing a NIFS, the cost of 
implementing a national research agenda and conducting the associated 
research, or even the cost of moving pattern evidence from experiential 
to science-based. The same applies to the recommendation on 
transitioning control of forensic services from police to non-law 
enforcement control.
    While I have tried to give the Committee the best answers to their 
questions, I strongly caution--as I did consistently in my written and 
oral testimony--that significant research is required to provide 
adequate data on which to base supportable cases regarding 
implementation of most of the NAS recommendations.
    Although much of the focus in this response has been on federal 
agencies, the majority of cases are processed by State and Local 
agencies.
    A thoughtful, well-researched strategic plan to propel the forensic 
science community forward so that we all serve the justice system in 
the manner in which it deserves is required.
    The first step should be to require an independent study of the 
funding and resource implications of the report recommendations, and to 
produce a strategic plan for their implementation.
    I know that the National Clearinghouse for Science Technology and 
the Law, which I direct, has the capability and experience in bringing 
together expert groups to be able to deliver such a plan in a timely 
fashion.

Questions submitted by Chair David Wu

Q1.  The Academy of Forensic Sciences (AAFS) has created an Education 
Committee and Accreditation Board to review the quality of forensic 
science education programs and current accreditation and certification 
programs. What have been your findings?

A1. The AAFS established a Forensic Science Education Programs 
Commission (FEPAC) in 2004 to review education programs.
    FEPAC accredits forensic science education programs that lead to a 
Bachelor's or Master's degree in forensic science or in a natural 
science with a forensic science concentration. All programs that FEPAC 
accredits are located within institutions that are accredited by a 
regional accreditation organization.
    The review function of FEPAC is to assess programs against 
standards, and either grant or not grant recognition. There are 
currently 25 programs that have applied for and received FEPAC 
accreditation. The AAFS has estimated that there are 148 forensic 
science programs offered by colleges or universities in the United 
States.

Q2a.  What is the level of funds the Federal Government currently 
allocates to forensic science research?

A2a. There has been no study of all the funding resources covering all 
federal agencies. However, the following describes the situation as 
best as can be determined.
    The only on-going source of general research funding in the 
scientific aspects of forensic science is the National Institute of 
Forensic Science (NIJ).
    Funds for DNA research were $9.227M in 2008 (http://www.dna.gov/
funding/research-development/). Information about funding for non-DNA 
research is not readily available as they are allocated on a year-to-
year basis depending on the level of funds available, including 
Congressionally-directed funds.
    Not all of the available discretionary funding is allocated to 
forensic science research.
    There is a National Academy Panel working on the topic of NIJ 
research funding, with an expected reporting date of early 2010 (see 
http://www8.nationalacademies.org/cp/projectview.aspx?key=48868, 
Project Title ``Assessing the Research Program of the National 
Institute of Justice''; Project scope includes ``1) What is the role of 
NIJ in supporting and sustaining the Nation's scientific infrastructure 
of crime and criminal justice research . . ..''
    In general, only eight percent of requests to NIJ are supported. 
Other agencies such as the FBI, BATF, DHS and DOD fund forensic 
research on an ad hoc basis.

Q2b.  What will the transitional issues be in changing from a mostly 
experienced-based system to a rigorous scientific-based system?

A2b. This question is impossible to answer without extensive research, 
as I described in my testimony to the House Subcommittee.
    It is not known how many of the 17,000 or so law enforcement 
agencies in the U.S. conduct some sort of forensic science testing, 
such as latent print or firearms examinations.
    Issues include: personnel qualifications; training and education, 
grandfathering or waivers for non-science practitioners who can 
demonstrate competency (which in turn begs the question of whether 
there is a need to transition); national quality assurance standards; 
and the rights of states to implement their own standards independent 
of federal mandates.

Q3.  What federal resources would be required to establish a National 
Institute of Forensic Science?

A3. Australia has a national institute of forensic science with a 
mandate similar to that proposed for NIFS in the NAS report.
    The current fiscal year budget for NIFS Australia is $1.233M 
Australian (http://www.anzpaa.org/pubs/ANZPAA%20Business%20Plan%202008-
2009.pdf) which is approximately $13.5M U.S. allowing for population 
and currency exchange rates.

Questions submitted by Representative Adrian Smith

Prioritization of NAS Recommendations

Q1.  Among the technical recommendations in the NAS report, what one or 
two stand out to you as the highest priority, and why?

A1. There is no national prioritization of forensic science research 
needs, identification of gaps and opportunities in anything other than 
in short-term, ad hoc or narrowly focused ways.
    Without a valid research program and strategy forensic science 
cannot develop the sound knowledge base needed for training, education, 
and service delivery that is needed to serve the justice system.

Prioritization of Research Needs

Q2.  Has the forensic science community attempted to prioritize 
research needs across various disciplines? If not, in your opinion what 
areas of research are likely to contribute the greatest benefits to the 
legal system through increased funding?

A2. Many forensic tests-such as those used to identify the source of 
tool marks or bite marks--need to have additional, rigorous, scientific 
research to prove their validity and reliability.
    Proper and rigorous scientific studies must be performed and 
published, which are tightly coupled to legal requirements that focus 
on accuracy, validity and reliability, including the human component 
(understanding human performance, bias, and human error).
    Sources of error and limitations of each discipline and associated 
methods have to be identified.
                   Answers to Post-Hearing Questions
Responses by John W. Hicks, Director, Office of Forensic Services, New 
        York State Division of Criminal Justice Services (Ret.); Former 
        Director, FBI Laboratory

Questions submitted by Chair David Wu

Q1.  What is the level of funds the Federal Government currently 
allocates to forensic science research? What will the transitional 
issues be in changing from a mostly experience-based system to a 
rigorous scientific-based system?

A1. With regard to current funding levels for forensic science 
research, it is respectfully suggested that the federal budget may be 
the most accurate and reliable source for this information. 
Traditionally, the National Institute of Justice is recognized as the 
primary agency supporting forensic science research by academic 
institutions and other practitioners. In addition, research funding is 
typically supported for agencies which operate forensic laboratories 
such as the Federal Bureau of Investigation; the Drug Enforcement 
Administration; the Bureau of Alcohol, Tobacco, Firearms and 
Explosives; the United States Secret Service; the U.S. Postal 
Inspection Service; and Department of Defense agencies. Research funds 
usable for these purposes may also be available within and through the 
National Institute of Standards and Technology.
    With regard to your ``transition'' question above, I think it is 
important to recognize that a sound scientific basis already exists for 
much of the work performed by federal, State, and local forensic 
laboratories--especially work performed under the discipline headings 
of forensic DNA analysis, forensic analysis of controlled substances, 
and forensic toxicology. In addition, work performed in other 
disciplines to determine the chemical composition of materials 
recovered from a crime scene such as explosives, paints, and polymers 
is carried out using proven and well-established scientifically-based 
analytical methods. Many of these laboratories are accredited by the 
American Society of Crime Laboratory Directors/ Laboratory 
Accreditation Board (ASCLD/LAB) under their ``Legacy'' or 
``International'' programs of accreditation. Under these programs, the 
laboratories must demonstrate that test methods in use are fully 
documented and validated in order to maintain their accreditation 
status.
    As indicated in the recent report of the National Academy of 
Sciences, there appears to be a need for independent review of 
methodologies employed in the ``experience-based'' forensic disciplines 
which rely in large part on pattern recognition and comparison 
techniques such as those employed in the examination of fingerprints; 
firearms and fired ammunition components; toolmarks; impression 
evidence; hand writing; and crime-scene reconstruction. As indicated in 
my testimony before the Subcommittee, I believe that data may exist 
that could be subjected to further studies to bolster the scientific 
underpinnings of the work being performed and provide greater assurance 
for the courts in considering forensic evidence. In some areas, it may 
be necessary to gather additional data for specific studies to address 
questions that have arisen.
    In my view, the most efficient, effective, and economical way to 
accomplish the ``transitions'' where such a need is indicated is 
through a coordinated effort by agencies already engaged in forensic 
science research under the general guidance of a national advisory 
board comprised of forensic science practitioners, research scientists 
and academicians. Established Scientific Working Groups for the various 
forensic disciplines would be engaged in this effort subject to the 
general guidance of the national advisory board. The National Institute 
of Standards and Technology has already demonstrated its core 
competencies for this effort and should be given a primary role in 
carrying out assessments of current methodologies and their supporting 
data and in conducting detailed and rigorous scientific studies where a 
need is indicated to further validate forensic methods. This process 
should be sufficiently transparent to assure the courts of the general 
acceptance and scientific validity of forensic techniques. It would be 
important to provide expanded resources to support the development and 
delivery of specialized training programs not only for forensic 
laboratory personnel but also for the ``client'' groups that receive 
their work product such as investigators, prosecutors, defense 
attorneys and judges. As indicated in my testimony before the 
Subcommittee, the forensic DNA experience provides a helpful and proven 
model in this regard.

Q2.  What federal resources would be required to establish a National 
Institute of Forensic Science?

A2. I do not support the call for the creation of a National Institute 
of Forensic Science. In my view, a separate federal agency would be 
unnecessarily duplicative of well-established expertise, forensic 
services, and resources now in existence in several federal agencies.
    I also do not believe it is politically feasible or practical to 
incorporate all activities that might be characterized as ``forensic'' 
under a single entity as has been proposed. For example, death-
investigation services as provided by Medical Examiners and Coroners 
are typically and with rare exception conducted independent of and 
apart from forensic laboratory operations as are other specialty 
services such as ``forensic'' odontology (bite mark evidence), and Fire 
Marshall activities in determining the cause and origin of a suspicious 
fire. In addition, it is not clear that non-governmental forensic 
practitioners (so-called private experts) who provide services in civil 
matters or for criminal defense purposes would be included under the 
scope and authority of a National Forensic Science Institute as 
proposed.

Questions submitted by Representative Adrian Smith

Prioritization of NAS Recommendations

Q1.  Among the technical recommendations in the NAS report, what one or 
two stand out to you as the highest priority, and why?

A1. In my opinion, elements found in NAS recommendations #1, #3 and #10 
should be given the highest priority.
    As set forth under their recommendations #1 and #3, funding should 
be directed at promoting scholarly, competitive peer-reviewed research 
which addresses issues of accuracy, reliability, and validity in 
forensic science disciplines. Funds should also be directed at 
assessing the development and introduction of new technologies in 
forensic investigations, especially technologies that improve the 
detection and discrimination potential for materials typically 
encountered at crime scenes and automation technologies which can be 
applied to reduce evidence processing times.
    Under the NAS recommendation #10, funding should be made available 
for distribution to educational institutions and other appropriate 
organizations to encourage the development and improvement of graduate 
education programs in the forensic sciences. Funding should also 
support continuing education programs for lawyers, judges, law 
enforcement personnel, practitioners and other groups that are involved 
in the collection of physical evidence or groups that utilize the 
results of forensic analyses within the criminal justice system. Such 
groups might include those involved in the medical treatment of victims 
of crimes.

Prioritization of Research Needs

Q2.  Has the forensic science community attempted to prioritize 
research needs across various disciplines? If not, in your opinion what 
areas of research are likely to contribute the greatest benefits to the 
legal system through increased funding?

A2. I believe that steps have been taken within individual forensic 
disciplines to identify research and developmental needs. Typically 
these have been articulated through the various Scientific Working 
Groups. As expressed in my written statement, I believe a national 
advisory board comprised of representatives from the criminal justice 
and crime laboratory communities, working with relevant professional 
organizations, accrediting bodies and individual discipline scientific 
working groups, would provide the best perspective for assessing and 
assigning these priorities. This activity would be supported by a 
closely coordinated effort among key federal agencies to include the 
National Institute of Standards and Technology, the National Institute 
of Justice and the Federal Bureau of Investigation.
                   Answers to Post-Hearing Questions
Responses by James C. Upshaw Downs, Forensic Pathologist/Consultant, 
        Coastal Regional Medical Examiner, Georgia Bureau of 
        Investigation

Questions submitted by Chair David Wu

Q1.  What do you feel have been the institutional impediments that have 
prevented a national vision for the forensic sciences? What about our 
current infrastructure proves resistant to change?

A1. Impediments to change in forensics exist on multiple levels.

         Inertia
         Lumping (one size-fits all solutions)
         Accreditation& certification
         Resources/facilities
         Massive unfunded mandate
         Personnel
         Training/continuing education
         Caseload
         Adversarial jurisprudence
         Lack of sufficient information acquisition and transfer

    First and most pervasive is inertia. A national resignation to the 
status quo is defended with typical ``easy'' answers: insufficient 
resources, lack of jurisdiction, lack of incentive, overwhelming case 
loads, etc. The truth is that there is no ``system'' to change. The 
present U.S. local, county, State, and federal jurisdictions have 
different strategies for accomplishing the scientific analysis of 
evidence and the presentation of same into the courts. Even as far 
reaching a change as the Daubert decision by the Supreme Court of the 
United States is not a national evidentiary standard. It does provide 
guidelines to courts under the federal umbrella but is not directly 
applicable across the board. Thus the legal precedent arguably 
insisting that quality forensic work is a federal responsibility and 
essential for justice is little more than a footnote in many areas. 
``Injustice anywhere is a threat to justice everywhere.'' \1\
---------------------------------------------------------------------------
    \1\ Dr. Martin Luther King, Letter from Birmingham Jail.
---------------------------------------------------------------------------
    The reality is that, as was pointed out by the NRC report, the 
forensic sciences have no champion to provide that vision for change or 
a unified drive to implement and follow through on what is sure to be a 
slow and trying process of updating. The NRC Committee recognized a 
compelling to do things differently if we truly wanted substantive 
change. Having carefully considered the issue over the course of years 
and benefiting from numerous presentations by practitioners in numerous 
sub disciplines, the diverse NRC Committee made this challenge their 
first priority. The response to this, their paramount recommendation, 
will determine just how ingrained the mindset of inertia is. Merely 
complaining that change is needed does nothing to effect such change.
    The need for a high-level champion for the needs of forensics is 
obvious. The question then becomes where such best to locate the 
oversight. Again, the committee specifically considered numerous 
possibilities but these experts best advice was to start anew.\2\ 
Failing that, it would seem most logical that since we are talking 
about the application of science to justice, the existing natural fit 
would be within justice.
---------------------------------------------------------------------------
    \2\ Strengthening Forensic Science in the United States: A Path 
Forward. National Academies Press. 2009.
---------------------------------------------------------------------------
    All the revisions in existing practice would have to take place 
concurrently with continued case throughput. In many areas, crushing 
backlogs in evidence analysis are albatrosses around a lab's neck. 
Leadership to instill confidence in the personnel involved and in the 
user agencies must occur in advance of and continue simultaneously with 
implementation in order to achieve maximal success.
    Although in practice the crime lab and Medical Examiner/Coroner 
worlds intersect routinely, they are not by any stretch the same. As a 
former State crime lab director, I fell qualified to address certain 
large picture issues in that arena but would defer to a more 
experienced active crime laboratorian in discussion of details and 
certain other issues. In the area of death investigation, the 
recognition of the important difference between the office of the 
Medical Examiner and that of the Coroner must be kept in mind. Of 
course, there is no national death investigation system at all. Every 
one of the 50 states and all 3,000 counties operate differently--
sometimes dramatically so. Roughly half of the U.S. population is 
served by a forensic pathologist-based (read scientifically founded) 
investigation and half by an elected coroner-based (read little to no 
training or background required) operation. If we are to truly reform 
the medical practice of death investigation, it is essential to not 
only recognize the inequity inherent in such a structure but to take 
the step of doing something about it.
    A brief digression into the history of the Anglo-based office of 
Coroner may help to give perspective. References to a Coroner, charged 
with death investigation, can be found as early as tenth century 
England. In the twelfth century, the office was reinvented in order to 
balance the national debt, owing to the ransoming of Richard the 
Lionhearted from Austria. The office was staffed by a nobleman of means 
in order to ensure that the then-corrupted office of Sheriff (viz. 
Sheriff of Nottingham) was kept at bay. The office then remained 
largely unchanged over the ensuing centuries until immigrating to the 
colonies. In the worst present-day cases, the office of Coroner is 
elected and requires no requisite training in death investigation at 
all. The myth of a general physician or other medical personnel somehow 
being better qualified seems to derive from the belief that since most 
deaths are natural and since a general physician knows about natural 
disease, they can triage the cases with the remainder being referred to 
a more skilled Forensic Pathologist. The inherent flaw here is that it 
assumes that persons with natural disease have died a natural death--
the Pygmalion effect in the extreme. Stagnation is comfortable. Since 
the office of Coroner is generally elected and since ``all politics is 
local''\3\ it may well continue prove to be difficult to eliminate an 
office that has existed for over a millennium. In order to ensure 
public health, national security, and justice roles, a national death 
investigation system should be created to ensure all similar cases are 
treated the same, regardless of jurisdiction. This can only happen with 
a dramatic change in the status quo and with a, heretofore abdicated, 
federal interest in the process. With a strategic plan to correct 
extant jurisdictional iniquities, the office of the Coroner can be 
absorbed into a professional medicolegal death investigation system 
wherein the local (city, county, region, or State--depending on 
population and needs) director is a board-certified Forensic 
Pathologist. The Coroner would become a skilled paraprofessional tasked 
with referral of appropriate cases for evaluation by the specialist.
---------------------------------------------------------------------------
    \3\ U.S. Rep. Tip O'Neil by http://www.riverdeep.net/current/2000/
10/103000-politic.jhtml
---------------------------------------------------------------------------
    All of the changes called for by the study are going to require 
significant funds to accomplish the goals spelled out. Unfortunately, 
especially in the present economy, such a massive unfunded mandate 
calling on locals to eliminate a system largely recognized to be 
working will be a tough sell. The NIFS would be an important component 
in getting nationwide compliance.
    Another impediment is the seeming metastasis of the courtroom's 
adversarial system into the forensics laboratory. While there have 
clearly been some high visibility failures, the fact that we have 
recognized and corrected issues in the past speaks to the fundamental 
fairness and confidence we should have in practitioners. Just as other 
non-forensic sciences have weathered the storms of unethical 
practitioners and faked research, so has the forensics world. 
Regardless of specialty, practitioners should have no agenda in 
conducting their analyses other than finding immutable scientific 
facts. As a practical matter it makes sense to assign forensic 
laboratories to work closely with justice-related agencies. The reality 
is that the unquestioned biggest user of forensic services is law 
enforcement. Although unheralded by some, these results are oft used to 
exclude individuals and to avoid prosecutions. Some argue an inherent 
bias in such a relationship but as the NRC committee clearly 
recommended (is carefully edited out of the commentary by many) is that 
forensic labs should be operationally autonomous\4\ from law 
enforcement agencies. This does not mean removed from same. In point of 
fact, too great an independence can bring its own very real problems. 
Despite media popularity, television ratings have never really equated 
with budget numbers. Especially in trying economic times, a free agent 
crime lab or Medical Examiner/Coroner may find it difficult to compete 
for funding.
---------------------------------------------------------------------------
    \4\ Strengthening Forensic Science in the United States: A Path 
Forward. National Academies Press. 2009.
---------------------------------------------------------------------------
    An important and little recognized issue is the marked differences 
between crime laboratories and Medical Examiner/Coroner operations. 
Further, within the latter, the differences between Medical Examiners 
and coroners range from vast to none--in short, there is no one-size-
fits all answer, off-the-shelf answer. Were there, the NRC committee 
would have called for same. Instead, the loud and clear message of the 
panel was ``we need change, we need it now, it will be expensive, and 
we need guidance.''
    Accreditation and certification should go a long way to ensuring 
requisite neutrality and checks and balances. Practitioners of a craft 
are in a much better position to address the particular scientific 
expectations and needs of a specific discipline--one would not want a 
Forensic Pathologist (unless, perhaps one uniquely skilled in that 
discipline) advising a trace evidence analyst how to conduct an assay 
any more than one would think the reverse a good plan. As such, lab 
accreditation should be spearheaded by groups such as the American 
Society of Crime Laboratory Directors--Laboratory Accreditation Board 
to expand.
    We are creating an artificial distinction in the forensic sciences 
in the over-emphasis of the forensic component and not enough on the 
science. In short, science is science. A theory is developed, 
experiments conducted, results obtained, and an interpretation is made. 
The difference is that in the forensic world, the test results and 
opinions related thereto are often used in court proceedings (although 
oftentimes they are used to avoid taking a matter to trial). Skeptics 
argue that this raises the bar on these test results because in the 
courtroom, someone's life, liberty, and/or livelihood are at stake. 
What they fail to mention is that this is no different from scientific 
endeavors in other fora. A medical test may determine if medication is 
given and if that medicine will save or take a life. An incorrect 
engineering test can result in catastrophic design failure and untold 
loss of life.
    Fundamentally, if we are to trust a laboratorian, we have to bestow 
that trust. The qualifications and ethics of the practitioner must be 
assured in advance. For example, in the medical model, clinical 
pathology labs are expected to receive national accreditation--usually 
a prerequisite for reimbursement. The Clinical Laboratory Improvement 
Act (CLIA) some two decades ago sought to assure the public of such 
baseline confidences:\5\
---------------------------------------------------------------------------
    \5\ http://www.cms.hhs.gov/clia/

         The Centers for Medicare & Medicaid Services (CMS) regulates 
        all laboratory testing (except research) performed on humans in 
        the U.S. through the Clinical Laboratory Improvement Amendments 
        (CLIA). In total, CLIA covers approximately 200,000 laboratory 
        entities. The Division of Laboratory Services, within the 
        Survey and Certification Group, under the Center for Medicaid 
        and State Operations (CMSO) has the responsibility for 
---------------------------------------------------------------------------
        implementing the CLIA Program.

    The objective of the CLIA program is to ensure quality laboratory 
testing. Practitioners are expected to achieve individual certification 
in their respective disciplines--again an important assurance of 
laboratory excellence.
    The lab accreditation model, although not universal, is well-
accepted in the crime lab world, with upwards of 80 percent of publicly 
funded crime labs accredited.\6\ In the Medical Examiner world, there 
has been significantly less achievement of this benchmark, with only 
60 accredited sites.\7\ Coroner operations vary so dramatically across 
the country that only a handful has achieved.\8\
---------------------------------------------------------------------------
    \6\ http://www.reuters.com/article/pressRelease/idUS238414+29-Jul-
2008+PRN20080729
    \7\http://thename.org/
index.php?option=com-content&task=view&id=67&Itemid=69
    \8\ http://theiacme.com/iacme/accreditation.aspx
---------------------------------------------------------------------------
    Again to the medical model--in many areas, the Medical Examiner's 
office falls under a medical university. Such hospitals are tertiary 
care and training centers, seeing the most complicated patients while 
training tomorrow's physicians how to treat them. Regrettably, in many 
cases, the outcome not surprisingly is bad. In such cases falling under 
Medical Examiner jurisdiction (a fairly sizable percentage), the 
medicolegal autopsy examination is conducted by employees of the same 
hospital who will later be sued for malpractice in the death of the 
patient. There is simply no reasonable alternative, as the paucity of 
Medical Examiners assures no other qualified practitioners within a 
given area. As a result, some might question the veracity of the 
Pathologist's conclusions due to the ``obvious bias'' in such 
circumstances. With sufficient checks and balances assured by 
accreditation, certification, peer review, continuing quality 
improvement, and enforced ethical canons such issues are disposed of 
routinely as a matter of course. Challenges come when some may not like 
the outcome of the report, as is to be expected. Certainly serious 
allegations of wrong-doing should be investigated thoroughly, 
completely, and impartially but no more so than in any other arena. The 
first step to ensure confidence in the practice of forensic sciences is 
to require the accreditation and certification which will mandate a 
system of checks and balances is in place.
    The lack of available recent data regards the overall needs and 
status of the Nation's forensic services providers makes a compelling 
case for one of, if not the most, important impediments. Annual 
practitioner needs assessments should be conducted to determine what 
those actively engaged in the profession need in terms of education/
training, equipment, facilities, staffing, research, and other 
resources. Such information is simply unavailable at present.

Q2.  What is the level of funds the Federal Government currently 
allocates to forensic science research? What will the transitional 
issues be in changing from a mostly experience-based system to a 
rigorous scientific-based system?

A2. Ascertaining the present level of federal funding to all forensic 
matters is beyond my ability, as it was beyond the NRC committee's.\9\ 
Based on the 2009 budget, some observations can be made. Total federal 
research includes, ``. . . $151.1 billion in federal R&D, an increase 
of $6.8 billion or 4.7 percent above the FY 2008 estimate. As a result, 
every major R&D funding agency will receive an increase greater than 
the expected rate of inflation, and in many cases the final FY 2009 
numbers are larger than the budget request submitted by the previous 
administration . . ..'' \10\ In the fiscal year 2009 year, the Office 
of Justice Programs is appropriated $156,000,000 for DNA related and 
forensic programs and activities, specifically include through the 
National Institute of Justice $151,000,000 for DNA analysis and 
capacity enhancement program; $5,000,000 for the Post-Conviction DNA 
Testing Program; and $25,000,000 for Paul Coverdell Forensic Science 
Improvement Grants.\11\ Thus 0.1 percent of the total federal research 
money goes to ALL the forensics needs. By way of comparison, the budget 
includes $125,471,000 for the National Center for Complimentary and 
Alternative Medicine and $134,344,000 for the Center for Veterinary 
Medicine.\12\ There is absolutely no assurance that any of this money 
will go to practitioner or end-user driven targeted research or that 
research done in Defense or similar areas will be made available as 
deliverables to the locals involved in forensic practice. In general, I 
believe a budget analyst would have to research the question in depth 
to be more precise than that.
---------------------------------------------------------------------------
    \9\ Strengthening Forensic Science in the United States: A Path 
Forward. National Academies Press. 2009.
    \10\ http://www.aaas.org/spp/rd/fy09.htm
    \11\ H.R. 1105, One Hundred Eleventh Congress of the United States 
of America.
    \12\ H.R. 1105, One Hundred Eleventh Congress of the United States 
of America.
---------------------------------------------------------------------------
    In my specialty of medicolegal death investigation, the numbers are 
much easier to find. I believe the answer is basically none. The only 
funding stream open to Medical Examiners is the $25,000,000 Coverdell 
grant program--but it must be remembered that this pot is distributed 
across the board to all states via formula grants and a small portion 
for competitive grants--none of which are designated specifically to 
research. Arguably, some programs such as the Violent Death Reporting 
System impact the Medical Examiner/Coroner world, but not in terms of 
research directly applicable to the practice of the craft. The Bureau 
of Justice statistics did analyze the status of the country's Medical 
Examiners/coroners for the first time ever in 2005\13\ but again this 
fact-finding assessment is hardly useful applied science research.
---------------------------------------------------------------------------
    \13\ http://www.ojp.gov/bjs/abstract/meco04.htm
---------------------------------------------------------------------------
    Medical Examiners have long clamored for increased funding in the 
field. True, a proportion of the U.S. Medical Examiners are affiliated 
with Medical Schools and may get small research stipends through such 
associations but these amount to basically to little more than slightly 
expanded basic service provisions (for example histology slides, 
chemical analyses, etc.). Serious questions such as the rates of and 
differences in wound healing, injury mechanisms in shaken/impact 
syndrome cases, and radiologic-clinical-pathologic correlation abound. 
The low fruit is remains and is easy to pick.
    Personally speaking, I have never received federal dollars for 
research nor am I familiar with any Medical Examiner who has received 
such monies. In fact, despite being actively engaged in research 
throughout my career, I have only received a one-time, $1000 stipend to 
employ a medical student one summer to compile case data for me. 
Everything else I have done, including ongoing very expensive CT and 
MRI studies in child abuse cases, has relied exclusively on the charity 
of others. This is hardly a basis on which to build a system. Consider 
that of the in excess of $151 billion in federal research and 
development, millions are spent on medical research alone\14\ and none 
on medicolegal death investigation. The potential for improvement here 
is obvious and the cost should be remarkably cheap.
---------------------------------------------------------------------------
    \14\ H.R. 1105, One Hundred Eleventh Congress of the United States 
of America.
---------------------------------------------------------------------------
    As for transitional issues, movement to a more science-based system 
presumes the system in question lacks a scientific basis. Medicolegal 
death investigation, properly conducted, is headed by a board-certified 
physician specializing in the medical science of forensic pathology. 
The major issue in transition would then relate to bringing lesser 
systems ``up to code.'' This would mean redefining the role of lay 
Coroners who presently serve roughly half the U.S. population and 
ensuring in all cases a qualified physician is not only available to 
but responsible for each local jurisdiction.
    Issues would relate to the inadequate numbers of board certified 
Forensic pathologists available to assume such a role. Given the 
present numbers of active full-time practitioners (estimated at 400) we 
would have to double the number of newly-minted practitioners from the 
present of slightly less than 40 to 80. Recruiting and finding the 
resources for doubling the population in question then become related 
issues. Replacing the office of coroner, as called for by the NRC 
Committee, would require several matters be dealt with. As the Coroner 
is an elected and/or constitutional office, the relevant laws would 
have to be changed. Appropriate new law would need to be enacted (such 
as the Model Post Mortem Examinations Law proposed by the National 
Association of Medical Examiners\15\ ). Acceptable interim procedures 
and practices would need to be formulated. Adequate facilities, 
resources, and support would need to be put in place at the regional 
and/or local levels to handle a dramatically increased workload at 
whichever level would be involved. Additional costs for storage, 
transport, and processing of remains would be incurred regardless of 
which model system were established. The eventual fate of the office of 
Coroner would need to be decided--either fading into the annals of 
antiquity or revision into a scientifically trained medicolegal lay 
investigator.
---------------------------------------------------------------------------
    \15\ http://thename.org/
index.php?option=com-content&task=view&id=97&Itemid=41
---------------------------------------------------------------------------
    Arguably some other forensic disciplines are on clearly less solid 
footing. In the vast majority of forensic sciences as a whole, the 
laboratorians' efforts began as scientific endeavors to answer specific 
questions. The system is really built more on applied science answering 
targeted questions than systematic research as many other applications 
practice. Some issues can be anticipated to be similar to those faced 
in medicolegal death investigation--facilities, resources, and 
personnel--while maintaining active case throughput. Incumbent with 
such a dramatic increase in staff and labs would require sufficient 
accreditation and certification opportunities to keep up with the 
increased dramatically demand for same, if the recommendation to 
require accreditation and certification. Others areas of concern might 
include actual prioritization/conduction of research and translation 
from the theoretical to the practical. Obviously, the oversight of such 
an undertaking would be important--who will, without bias, ensure 
compliance with regulations is uniform across the board. The NRC 
assigned the duty to their chief recommendation, the National Institute 
of Forensic Sciences.
    Acceptance of all the foregoing is assumed by those directly 
involved at various levels in the affected systems. Given the track 
record, as relates to the existing system, this may a pipe dream. 
Without strong, public, and broad support for the suggested 
improvements, there is little reason to believe that the net result 
will be anything but the same.
    Another issue would be understanding of and acceptance of the new 
system by users of the services. All the change would be for naught if 
the adversarial system of the courtroom failed to accept them. There is 
precious little reason to believe that the actual test results will 
dramatically differ from those presently achieved. Those same present 
results that we know from years of experience are valid, although 
dismissed by some (to whom the data are unfavorable) as somehow flawed, 
will remain valid. The interpretations of results, as presented in 
courts, will remain inclusionary to some accused and exclusionary to 
those many who do not make it to trial. Without addressing the undue 
influence of the adversarial legal system on the reportage of 
scientific testing, there can be little hope of a better outcome. The 
bias inherent in a system where (almost uniformly) the prosecution must 
use an accredited lab and a certified scientist because they are 
already employed for that specific purpose and therefore the 
prosecution cannot afford to solicit multiple persons for the purpose 
of proving a case the crime lab's own scientist said there wasn't one. 
Such extravagance is not a wise use of limited tax dollars. The defense 
argues it must use the same crime lab already extant and when the 
result is not to their liking, argues by insinuation that the analysis 
is somehow biased or flawed but such ad hominem attack amounts to 
nothing more than empty words. Expert shopping, an option chiefly 
available to the defense which is free to use whatever engaged 
report(s) favor their position while conveniently never disclosing the 
many more support the prosecution's case, must end. Some will protest 
loudly that such a fundamental change in their ability to seek out 
qualified professionals jeopardizes their ability to represent their 
position. Such an argument is easily overcome if all solicited expert 
reports--on both sides--are automatically allowed, regardless of 
outcome. In my opinion, this would be one of the most difficult issues 
to address if we are to effectively modify our system.

Q3.  What federal resources would be required to establish a National 
Institute of Forensic Sciences?

A3. The NRC Committee said of the proposed NIFS:

         ``The forensic science system, encompassing both research and 
        practice, has serious problems that can only be addressed by a 
        national commitment to overhaul the current structure that 
        supports the forensic science community in this country. This 
        can only be done with effective leadership at the highest 
        levels of both Federal and State governments, pursuant to 
        national standards, and with a significant infusion of federal 
        funds.'' \16\
---------------------------------------------------------------------------
    \16\ Strengthening Forensic Science in the United States: A Path 
Forward. National Academies Press. 2009.

    ``The forensic science enterprise needs strong governance to adopt 
and promote an aggressive, long-term agenda to help strengthen the 
forensic science disciplines. Governance must be strong enough--and 
independent enough--to identify the limitations of forensic science 
methodologies, and must be well connected with the Nation's scientific 
research base to effect meaningful advances in forensic science 
practices. The governance structure must be able to create appropriate 
incentives for jurisdictions to adopt and adhere to best practices and 
promulgate the necessary sanctions to discourage bad practices.'' \17\
---------------------------------------------------------------------------
    \17\ Ibid.
---------------------------------------------------------------------------
    The resources existing within the Federal Government can be 
expected to include the Department of Justice; the National Institute 
of Justice; the Federal Bureau of Investigation, the Bureau of Alcohol, 
Tobacco, and Firearms; the Office of the Armed Forces Medical Examiner; 
The National Institute of Standards and Technology; the Department of 
Defense; the Department of Health and Human Services; the Drug 
Enforcement Administration; the National Science Foundation; the 
National Academy of Sciences; the Institute of Medicine; the Library of 
Medicine; the Department of Homeland Security; and other agencies.
    The financial resources can be anticipated to be substantial. I 
have no experience in the federal funding world and fell uncomfortable 
trying to predict how these existing entities might use their resources 
towards the forensics effort.

Questions submitted by Representative Adrian Smith

Prioritization of NAS Recommendation

Q1.  Among the technical recommendations in the NAS report, what one or 
two stand out to you as the highest priority, and why?

A1. Although the NRC committee charged with studying the issues advised 
against separating the initiatives or emphasizing one to the exclusion 
of others, the reality is that such a broad-reaching revision of such a 
far-reaching vision may not be easily achieved without dividing the 
response. Ideally all the recommendations should proceed simultaneously 
on their own intersecting paths. If we separate the component proposals 
and attempt to sort by category, the recommendations can be simplified 
to address: accreditation/certification, education/training, research, 
oversight, and medicolegal death investigation.
    Professionally, I am keenly aware of the many needs of the Medical 
Examiner/Coroner system nationally, however, I believe the greater good 
is served in addressing two issues which would arguably have the most 
impact the most quickly--accreditation/certification and research.
    Accreditation of existing labs is a seeming daunting task given the 
lack of existing investment in the process. The good news is that this 
should be much easier to achieve than many fear because a sizable 
percentage of State crime labs already have accreditation. Other labs 
are typically small and I believe lack of a concerted effort is likely 
the biggest sticking point in moving to full accreditation. I can speak 
from the personal experience as the former director of a State crime 
lab system with 175 employees who oversaw a 10 lab operation spread 
across a broad geographic territory go from zero to full accreditation 
in basically two years. There were naysayers early in the process, 
especially since there were basically no new State funds set aside for 
the effort. This can only be overcome by achieving buy-in from staff 
first, followed by users. The mantra must reflect a philosophy that 
``one does not strive for mediocrity.'' This case example of how to 
achieve success though one's own efforts reflected well of an excellent 
staff but credit for the financial aspects must be given to the 
National Institute of Justice, who, working through the National 
Forensic Science Technology Center and other partners within the 
Forensic Resource Network (Marshall University) showed that indeed the 
impossible can be achieved if one merely sets the bar high enough and 
settles for no less than the best. A relatively small financial 
investment continues to pay massive dividends. Top management must 
aggressively pursue the goal if the mission is to succeed.
    Employee certification is a slightly more difficult matter as a 
smaller percentage of crime lab personnel already possess the requisite 
background. As this is a personal achievement, there may be policy 
requiring revision in some areas to allow governmental employers to 
require and/or fund this credentialing process. In some disciplines, 
there may need to be special provision made to ``grandfather in'' 
existing scientific personnel. Another obstacle would be the strain the 
volume of scientists requiring certification would place on the 
existing system.
    In the area of death investigation, the present status of 
accreditation and certification are to a certain extent reversed for 
physicians and minimal to none for large numbers of lay coroners. Some 
85 percent of pathologists active in the field have Pathology boards 
and 75 percent sub-specialty certification.\18\ All have the requisite 
physician training. Professional practice standards have been 
promulgated. Only a minority of existing Medical Examiner facilities 
have achieved accreditation. Usually this shortcoming relates to 
insufficient resources, staff, or facilities. Regardless, the root 
cause would need to be addressed. Lay coroners have only a handful of 
operations (eight total\19\ ) achieving any formal accreditation. 
Formalized recognition of basic skills is available through the 
American Board of Medicolegal Death Investigation,\20\ however, this 
has been primarily achieved by lay investigators employed by Forensic 
Pathologists. If the coroners were to achieve the necessary training to 
obtain this credential, it should dramatically improve death 
investigation in the affected jurisdictions--up to half the U.S. 
population.
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    \18\ Executive Director, National Association of Medical Examiners.
    \19\ http://theiacme.com/iacme/accreditation.aspx
    \20\ http://medschool.slu.edu/abmdi/index.php
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    Both certification and accreditation would ultimately serve to 
provide confidence in the fairness of the analyses being conducted and 
impartiality and qualification of the analyst. Structures are presently 
in place for both, however, the stress of scale may well overburden the 
existing process. Advantages of the professionalization of the practice 
and the practitioner in the achievement of these goals would include 
adoption of ethical codes and continuous quality improvement as part of 
the criteria for the standard.
    The other issue of utmost concern would be validation of the 
underlying science. As there are individuals presently incarcerated or 
awaiting trial, personal liberty is at stake. Despite the foundation of 
all forensics in the underpinnings of science, the focus has not been 
sufficiently broad. In order to confirm what experience tells us is 
valid and to restore full confidence by the users in the truth and 
accuracy of the system, sufficient validation should be aggressively 
pursued in those areas most often used and most often challenged.

Prioritization of Research Needs

Q2.  Has the forensic science community attempted to prioritize 
research needs across various disciplines? If not, in your opinion what 
areas of research are likely to contribute the greatest benefits to the 
legal system through increased funding?

A2. I do not believe there has been anything approaching a national 
plan on forensics research. The field really originated by conducting 
targeted experiments to answer case-specific questions. The tradition 
basically continues to the present day, although obviously there has 
been more extensive research conducted through the years. Another 
benefit of the proposed NIFS would be to ensure such a strategy were 
created and implemented.
    Specifically regards the research likely to be most cost-effective 
most quickly would be validation of pattern-type forensic disciplines 
(fingerprint analysis, footwear impression comparison, firearms 
examination, document analysis, etc.). Another important area would be 
to expand preliminary work done on bias and see the extent to which it 
actually could impact a case. It is imperative such research on bias 
not be biased itself--if conducted with an eye to ``proving'' bias by 
governmental labs, a much more obvious potential bias (solicited 
contract forensic analysis) might be overlooked, creating an illusion 
that one is a problem while the other is not. Individuals involved in 
such research should absolutely have no real or perceived bias which 
might adversely impact the outcome of the studies.
                   Answers to Post-Hearing Questions
Responses by Peter J. Neufeld, Co-Founder and Co-Director, The 
        Innocence Project

Questions submitted by Chair David Wu

Q1.  What is the level of funds the Federal Government currently 
allocates to forensic science research?

A1. The Federal Government allocated $106 million to DNA related 
forensics programs in 2008 the bulk of which went to DNA backlog 
reduction. Non-DNA forensic program spending by the Federal Government 
in 2008 has not yet been calculated, but in 2007 that amount was $16.5 
million.
    Of the money spent on DNA, approximately $9 million was allocated 
for research. Little to none of the non-DNA forensic funding is spent 
on research; the Coverdell Forensic Science Improvement Grant Program 
awards grants primarily to eliminate backlogs and to train and employ 
forensic laboratory personnel.

Q2.  What will the transitional issues be in changing from a mostly 
experienced-based system to a rigorous scientific-based system?

A2. In order to transition forensic sciences to a rigorous science-
based system, basic and applied research on the validity and 
reliability of assays, technologies, and devices will need to be 
conducted by an independent, science-focused federal agency. After this 
research is completed, standards for methodology, reporting procedures, 
and court testimony will need to be developed and implemented so that 
all assumptions made, conclusions reached, and inferences drawn by 
forensic science expert witnesses will be supported and confirmed by 
research.
    For forensic practitioners, the greatest transitional issues will 
involve continuing education, training, and professional development so 
that they can meet certification requirements in the fields in which 
they conduct examinations. As the research evolves in each discipline, 
so too will the guidance on how evidence is presented and how the 
forensic practitioners can testify in court.
    For public crime laboratories, the greatest transitional issues 
will involve accreditation to the ISO 17025 level. While most publicly-
funded crime laboratories are accredited, the majority of crime labs 
are not accredited to this more rigorous international standard. States 
and localities will also need to be encouraged to make their crime 
laboratories independent of law enforcement agencies to ensure a 
working environment free of external pressures and bias.
    Finally, on an immediate and ongoing basis, significant and 
continuous educational programs about the report's findings regarding 
non-DNA forensic assays, devices, and technologies and their 
limitations needs to be conducted for judges and criminal 
practitioners, and updated as the research progresses.

Q3.  What federal resources would be required to establish a National 
Institute of Forensic Science?

A3. Many of the ``pieces'' required for a National Institute of 
Forensic Science (NIFS) exist in the Federal Government today. The 
National Science Foundation and the National Academy of Sciences have 
experience in competitive grant-making and have existing relationships 
with research universities and bodies to whom such grants would be 
made. Once the research is completed, standard setting could be done by 
the National Institute of Standards and Technology. Lastly, the 
compliance and enforcement needs could be handled internally at NIFS 
and/or in cooperation with other law enforcement entities. NIFS could 
be modeled after the lean and flexible regulatory body that administers 
the Clinical Laboratory Improvement Amendments (CLIA) at the Centers 
for Medicare & Medicaid Services. CLIA oversees all clinical laboratory 
diagnostic testing in the United States and employs just 27 people in 
their administrative office and 30 employees over 10 regional cities 
across the Nation.

Questions submitted by Representative Adrian Smith

Accreditation

Q1.  Mr. Neufeld, you emphasize in your testimony the importance of 
laboratory accreditation to ensuring quality control, and Mr. Marone 
noted that the overwhelming majority of crime labs used by prosecutors 
are now accredited. Does the Innocence Project also make sure to 
support work only from accredited labs? Why or why not?

A1. The National Academy of Sciences' (NAS) report on Strengthening 
Forensic Science in the United States' seventh recommendation\1\ is for 
the mandatory accreditation of all crime laboratories and the 
certification of all practitioners.
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    \1\ Strengthening Forensic Science in the United States: A Path 
Forward, Committee on Identifying the Needs of the Forensic Science 
Community, The National Academies Press (2009), p. 7-18.
---------------------------------------------------------------------------
    It is critical, however, that the existing, voluntary accreditation 
standards are assessed for strength and reliability. The largest crime 
laboratory accreditation organization in the United States, the 
American Society of Crime Laboratory Directors Laboratory Accreditation 
Board, accredit 362 laboratories (the majority of which are publicly 
funded). However, only 80 of their laboratories are accredited under 
their ``international'' program--the higher tier of crime lab 
accreditation that is most compliant with the international standard, 
ISO/IEC 17025. That program notably omits three important elements that 
are present in its lower tier accreditation program: (1) blind 
proficiency testing, (2) requirements for safety equipment and the 
physical design of the lab, and (3) requirements for written 
objectives.
    The NAS report also notes that, ``[a]ccreditation is just one 
aspect of an organization's quality assurance program, which also 
should include proficiency testing where relevant . . .. In the case of 
laboratories, accreditation does not mean that accredited laboratories 
do not make mistakes, nor does it mean that a laboratory utilizes best 
practices in every case, but rather, it means that the laboratory 
adheres to an established set of standards of quality and relies on 
acceptable practices within these requirements.\2\ . . . Accreditation 
cannot guarantee high quality--that is, it cannot guard against those 
who intentionally disobey or ignore requirements.'' \3\
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    \2\ Ibid., p. 7-2.
    \3\ Ibid., p. 7-3.
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    In fact, past allegations of negligence or misconduct filed under 
the federal Coverdell program have included accredited laboratories. 
Consequently, there is a need to assess the strength of current 
accreditation standards and to make sure make sure that the standards 
reflect best practices and are as stringent as they can be. Moreover, 
for the solo or two person laboratory, current accreditation 
requirements may be unduly burdensome. It is certainly possible that 
NIFS would make the accreditation requirements more rigorous on matters 
that affect reliability of results yet more accessible for the 
excellent but very small forensic laboratories.
    The Innocence Project typically engages accredited laboratories for 
conducting post-conviction DNA testing in their cases. At times--
particularly when more advanced testing on minute samples is required--
a two person laboratory that has not applied for accreditation, 
Forensic Science Associates (FSA), has provided more reliable results 
than the accredited laboratories. Indeed, Mr. Marone is personally 
familiar with the extraordinary high quality work accomplished by FSA. 
In the Earl Washington DNA exoneration, the initial post-conviction DNA 
typing was conducted by Virginia's ASCLD-LAB accredited State forensic 
laboratory. Subsequent testing was conducted by FSA. Not only did the 
FSA results contradict the Virginia State lab results but FSA concluded 
that the State lab had reached an erroneous conclusion. When the then 
director of the State lab refused to conduct a meaningful investigation 
of what went wrong or even acknowledge that an error had been made, the 
Governor asked ASCLD-LAB to intervene and conduct an external 
investigation. ASCLD-LAB's report, which I attach to this document, 
confirmed that FSA's results were both correct and reliable and that 
the accredited Virginia laboratory had indeed made a serious error. 
Nevertheless, within days of that report, ASCLD-LAB re-accredited the 
Virginia State lab, without so much as a comment on the impact of its 
own highly critical external investigation in the Earl Washington case.

Admission of Evidence

Q2.  Mr. Neufeld, you state in your testimony that ``it is absolutely 
clear--and essential--that the validity of forensic techniques be 
established `upstream' of the court, before any particular piece of 
evidence is considered in the adjudicative process.'' Based on the NAS 
report findings then, are you calling for courts to deny admission of 
forensic evidence from all disciplines except DNA analysis? If so, do 
you think that will improve the justice system's ability to convict the 
guilty and protect the innocent?

A2. It is not the job of judges and lawyers to become scientific 
experts, and hardly a responsibility we can place on the shoulders of a 
jury. This is the reason why clarifying the specific reliability of all 
such evidence and the parameters for testifying on such evidence are so 
critical to the administration of justice. When forensic evidence 
enters the courtroom, it should be sound and not used beyond its 
demonstrated scientific limits. The NAS report states ``with the 
exception of nuclear DNA analysis, however, no forensic method has been 
rigorously shown to have the capacity to consistently, and with a high 
degree of certainty, demonstrate a connection between evidence and a 
specific individual or source.'' \4\
---------------------------------------------------------------------------
    \4\ Ibid., p. S-5.
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    The Report divides forensic disciplines into laboratory-based and 
experience-based disciplines. Laboratory-based disciplines such as 
``DNA analysis, serology, forensic pathology, toxicology, chemical 
analysis, and digital and multimedia forensics--are built on solid 
bases of theory and research.\5\ The level of scientific development 
and evaluation varies substantially among the forensic science 
disciplines.'' \6\ Some experience-based disciplines (fingerprint 
analyses) have had the support of more dedicated research in the past 
compared to other experience-based disciplines (lip print, ear print 
comparisons\7\ ). Secondly, experience-based disciplines suffer from 
the same problem--``A body of research is required to establish the 
limits and measures of performance and to address the impact of sources 
of variability and potential bias. Such research is sorely needed, but 
it seems to be lacking in most of the forensic disciplines that rely on 
subjective assessments of matching characteristics.'' \8\
---------------------------------------------------------------------------
    \5\ Ibid., p. 5-1.
    \6\ Ibid., p. S-5.
    \7\ Ibid., p. S-6.
    \8\ Ibid., p. S-6.
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    This strongly suggests that non-DNA forensic evidence should not be 
used to individualize in the courtroom, and the entire criminal justice 
system would be well served by respecting this fact as soon as 
possible. This is not, however, to say that non-DNA forensic evidence 
has no place in the courtroom, nor to say that there should be a rule 
or rules immediately imposed upon courts to ban all such evidence. The 
report offers no judgment about closed or pending cases and instead 
offers forward looking recommendations for the future of forensic 
science. We agree with the report. Indeed, each case, post-conviction 
or pending, must be considered on its own merits.

Prioritization of NAS Recommendations

Q3.  Among the technical recommendations in the NAS report, what one or 
two stand out to you as the highest priority, and why?

A3. Aside from the NAS report's primary recommendation to create a 
National Institute of Forensic Science, the two priority 
recommendations for the forensic community should be funding research 
(Recommendation #3 and #5) and developing standards from that research 
(Recommendation #6). In competitively funding peer-reviewed research to 
establish validity and reliability of the non-laboratory-based forensic 
disciplines, Congress would be applying and requiring the same 
scientific principles and processes for validation that had been 
utilized so successfully for forensic DNA. Once the research has been 
satisfactorily completed and the technique, method or assay validated, 
then standards must be developed so that reliable procedures and 
practices can be provided to the forensic examiners in a shovel-ready 
format.

Prioritization of Research Needs

Q4.  Has the forensic science community attempted to prioritize 
research needs across various disciplines? If not, in your opinion, 
what areas of research are likely to contribute the greatest benefits 
to the legal system through increased funding?

A4. In terms of prioritizing research, I can't speak for the forensic 
science community. To date, the non-DNA forensic science community has 
had to use virtually all of the funding it receives for addressing 
backlog issues and funding laboratory needs. In the past, there has 
been little time and virtually no money available for research efforts. 
Previous needs assessments, The U.S. Department of Justice report, 
Forensic Sciences: Review of Status and Needs (February 1999 and the 
American Society of Crime Laboratory Directors' 180-Day Study Report: 
Status and Needs of United States Crime Laboratories (May 2004) did not 
prioritize the research needs in the forensic sciences intended to spur 
the change in practice that the NAS report deems essential to justice. 
It is the Innocence Project's position that areas of research should be 
prioritized by areas of greatest needs. We look forward to working with 
Congress to find a way to assess this prioritization.






                              Appendix 2:

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                   Additional Material for the Record







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