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



   NATIONAL RESEARCH COUNCIL'S PUBLICATION ``STRENGTHENING FORENSIC 
             SCIENCE IN THE UNITED STATES: A PATH FORWARD''

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 13, 2009

                               __________

                           Serial No. 111-28

                               __________

         Printed for the use of the Committee on the Judiciary


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



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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
LUIS V. GUTIERREZ, Illinois          TOM ROONEY, Florida
BRAD SHERMAN, California             GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York

            Perry Apelbaum, Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

             ROBERT C. ``BOBBY'' SCOTT, Virginia, Chairman

PEDRO PIERLUISI, Puerto Rico         LOUIE GOHMERT, Texas
JERROLD NADLER, New York             TED POE, Texas
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            J. RANDY FORBES, Virginia
STEVE COHEN, Tennessee               TOM ROONEY, Florida
ANTHONY D. WEINER, New York
DEBBIE WASSERMAN SCHULTZ, Florida
MIKE QUIGLEY, Illinois

                      Bobby Vassar, Chief Counsel
                    Caroline Lynch, Minority Counsel











                            C O N T E N T S

                              ----------                              

                              MAY 13, 2009

                                                                   Page

                           OPENING STATEMENTS

The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Chairman, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................     1
The Honorable Louie Gohmert, a Representative in Congress from 
  the State of Texas, and Ranking Member, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     2

                               WITNESSES

Mr. Kenneth E. Melson, Acting Director Bureau of Alcohol, 
  Tobacco, Fireams and Explosives, former Director, Executive 
  Office for the United States Attorneys, U.S. Department of 
  Justice, Washington, DC
  Oral Testimony.................................................     5
  Prepared Statement.............................................     8
Mr. Peter M. Marone, Director, Virginia Department of Forensic 
  Science, Richmond, VA
  Oral Testimony.................................................    15
  Prepared Statement.............................................    18
Mr. John W. Hicks, Director, Northeast Regional Forensic 
  Institute, The University at Albany, State University of New 
  York, Albany, NY
  Oral Testimony.................................................    26
  Prepared Statement.............................................    27
Mr. Peter Neufeld, Co-Director, The Innocence Project, New York, 
  NY
  Oral Testimony.................................................    29
  Prepared Statement.............................................    31

                                APPENDIX

Material Submitted for the Hearing Record........................    69

 
NATIONAL RESEARCH COUNCIL'S PUBLICATION `STRENGTHENING FORENSIC SCIENCE 
                 IN THE UNITED STATES: A PATH FORWARD'

                              ----------                              


                        WEDNESDAY, MAY 13, 2009

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 3:36 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Robert 
C. ``Bobby'' Scott (Chairman of the Subcommittee) presiding.
    Present: Representatives Scott, Weiner, Gohmert, and Poe.
    Staff present: Bobby Vassar, Majority Subcommittee Chief 
Counsel; Mario Dispenza, (Fellow) ATF Detailee; Veronica 
Eligan, Majority Professional Staff Member; Jesselyn McCurdy, 
Majority Counsel; Caroline Lynch, Minority Counsel; and Kimani 
Little, Minority Counsel.
    Mr. Scott. The Subcommittee will now come to order. Good 
afternoon, and welcome to the hearing before the Subcommittee 
on Crime, Terrorism, and Homeland Security on the National 
Research Council's Publication ``Strengthening Forensic Science 
in the United States: A Path Forward.''
    The term ``forensic science'' refers to a broad range of 
disciplines, each of which aims to solve and understand crimes 
based on physical evidence. Forensic science has played a 
critical role in criminal investigations and prosecutions for 
decades, and law enforcement and prosecutors have come to rely 
on it and for good reason.
    Scientific evidence offered at a trial by a witness 
identified by the court as an expert can be powerful and often 
indisputable. Forensic science is also popular. So popular that 
television networks have created a number of successful 
fictional, sometimes nonfictional, programs based on forensic 
science, which reach virtually every jury pool across the 
country.
    Between the popularity of forensic science and the court's 
acknowledgement of the forensic evidence witness as an expert, 
the evidence presented against a defendant can be very 
persuasive. Unfortunately, the reality is that not all forensic 
techniques have the same reliability. DNA is now recognized as 
among the most reliable and useful tools in the area of 
forensic science.
    The development of DNA technology has allowed scientists to 
use genetic evidence to identify victims and perpetrators with 
almost complete accuracy, enable investigators not only to 
solve many crimes that otherwise would have gone unsolved, but 
also to establish innocence of 233 wrongfully convicted people 
in the United States.
    Alarmingly, in over 50 percent of these wrongful conviction 
cases, other non-DNA forensic evidence was introduced and 
likely contributed to the wrongful conviction. This revelation 
has raised serious questions about the reliability of many 
forms of non-DNA forensic evidence. Where the defendant's 
liberty or even life at stake, evidence as powerful as forensic 
evidence must have the utmost reliability.
    In response to these disturbing questions about the 
reliability of forensic science, Congress authorized the 
National Academy of Sciences to conduct a study. The committee 
made up of members of the forensic science and legal 
communities examined the current state of forensic science and, 
in February 2009, issued a report entitled, ``Strengthening 
Forensic Science in the United States: A Path Forward.''
    The report confirmed our fears and cites many serious 
problems with the national forensic science system. The report 
shows that the most pressing problem is a need for a 
comprehensive knowledge base for many disciplines.
    While DNA evidence has benefited from extensive scientific 
research, other forensic fields such as hair and fiber 
analysis, ballistic analysis, and handwriting samples, among 
others, have not had the same level of research and scrutiny 
leaving their reliability questionable. The report also 
describes a system that is woefully understaffed and 
undertrained and lack uniform standards and poor oversight.
    Perhaps the most disturbing part of this study's findings 
is that trial judges rarely exclude forensic evidence at trial 
even though the scientific community cannot ensure reliability 
of the evidence. Moreover, trial lawyers lack scientific 
training to adequately assess and question the forensic 
witnesses' conclusions.
    This condition does not bode well for justice, and changes 
are clearly in order. The report makes a number of 
recommendations to approve forensic sciences in the United 
States, most prominently, creating a National Institute for 
Forensic Science. The NIFS would be a new entity, independent 
from the existing forensic science system, law enforcement 
agencies and would be tasked with organizing and overseeing all 
forensic science operations in the country.
    It would be tasked with, among other things, establishing 
best practices, creating accreditation standards, coordinating 
and promoting research initiatives, and assessing new and 
existing technologies and funding state and local forensic 
science agencies. Today we will discuss the study's findings 
and recommendations.
    It is now my pleasure to recognize the Ranking Member of 
the Subcommittee, the gentleman from Texas, Judge Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman. And thank you for 
having a hearing to address the ongoing efforts to identify 
weaknesses and make improvements to the forensic science 
community in the United States.
    I do welcome the witnesses, appreciate your being here. 
Thank you for joining us and, obviously, you submitted written 
testimony, and we appreciate your being here to talk to us in 
person. I also understand too well the significance of forensic 
science to our criminal justice system at every level of 
government having been a prosecutor, a district judge, and then 
a chief justice.
    But forensic science, particularly DNA technology, has an 
extraordinary ability to assist in solving crimes, identifying 
missing persons and victims of mass casualties as well as 
guaranteeing justice in American courtrooms and courtrooms 
throughout the world.
    As noted by the National Academy of Science's study on 
forensic science that brings us here today, nuclear DNA testing 
is now the forensic gold standard by which all other forensic 
disciplines are measured. For it is now well-accepted, 
scientifically validated ability to support individually 
specific conclusions to the level of research funding so that 
the legal foundation for its admission in courtrooms, DNA 
testing is a forensic science that has grown up right, so to 
speak.
    The NAS study does not, however, portray other forensic 
disciplines in such positive light. In fact, it calls into 
question the scientific validity and legal reliability of a 
number of forensic disciplines that have been admitted into 
courtrooms throughout this country for decades.
    The study takes great pains to question the scientific 
validity of many, if not all, of the so-called ``pattern 
based'' disciplines, such as friction ridge analysis, 
ballistics, and tool mark identification. Excuse me.
    Not surprisingly, the study's findings have caused 
significant concerns among those in the legal profession who 
are involved with these forensic disciplines. In a recent 
article of the National Law Journal, the real life consequences 
of these findings are explored. The article documented numerous 
defense councels who are citing the report's finding in post-
conviction motions, appeals, and pending trials challenging 
what they claim is invalid ballistics testimony.
    The article went on to quote a member of the board of 
directors of the National District Attorneys Association as 
saying, the science of ballistic has been tested over and over 
again, and the problem was not with the science but with those 
applying it. By contrast, various defense attorneys work hard 
at suggesting that the science of ballistics did not support 
the testimony that was being given.
    Which brings me to what I think is an important point that 
was not brought out in much of the reporting following the 
release of this study. That is this: the belief that particular 
forensic disciplines have not been scientifically validated 
does not mean that they are invalid or unreliable, simply that 
more research needs to be done to validate them. I will be 
interested in hearing the panel review on that topic.
    The study does not stop there. It documents what is called 
fragmented forensic community in need of oversight and 
governance, community that lacks standard methodologies and 
terminologies, mandatory accreditation and subrogation, and 
sufficient peer-reviewed research.
    The study recommends that we create a new independent 
Federal entity, the National Institute of Forensic Science, to 
accomplish these objectives. I wonder given the current 
economic climate whether it makes sense to create an entirely 
new entity that will attempt to replicate what a number of 
other state and Federal agencies as well as private entities 
are already doing.
    Recent history has shown us that creating new agencies at 
the Federal level can be a tremendously costly and complex 
endeavor with moderate success. By its terms, the study did not 
purport to address the financial largesse that will be required 
to implement this new recommendation.
    The study specifically left that task to the congressional 
budget office. Similarly, there was very little discussion 
about the downsides of creating such an entity. I look forward 
to hearing the panel's views on this matter as well as the 
possibility of leveraging some of the strengths of those 
currently involved in the forensic community to address some of 
the needs documented in the study.
    But it was my understanding this was addressed years back 
when the U.S. Supreme Court said that the judge in a case would 
be the gatekeeper. You couldn't bring in scientific evidence 
and a supposed ballistic expert, for example, could not testify 
unless the judge found that they met the requirements as set up 
by the Supreme Court for legal sufficiency.
    As a former gatekeeper myself, sometimes I let in evidence, 
sometimes I didn't, but it had more to do, particularly in the 
case of ballistics, of whether the individual seeking to 
testify had the required requisite training and experience and, 
you know, whether it was credible testimony and worthy of being 
presented to the jury before it was presented to the jury. That 
was our job.
    You are a distinguished panel of witnesses with a wealth of 
experience dealing with the legal, scientific, and leadership 
aspects of forensic science, and I look forward to hearing from 
you. And, again, I do appreciate your time here today.
    Thank you, Mr. Chairman. I yield back.
    Mr. Scott. Thank you. We have been joined by the gentleman 
from New York, Mr. Weiner. I will ask if you have a brief 
comment; otherwise, we will ask for opening statements to be 
placed on the record.
    Mr. Weiner. I appreciate the offer----
    Mr. Scott. Thank you. We have a distinguished panel of 
experts for us today. Our first witness is Mr. Kenneth Melson, 
acting director of the Bureau of Alcohol, Tobacco, Firearms and 
Explosives. He is a past president of the American Academy of 
Forensic Sciences, and in 2006 became chair of the Council of 
Scientific Society Presidents.
    He presently represents the Department of Justice as a 
board member on the American Society of Crime Laboratory 
Directors Laboratory Accreditation Board, serves on the 
editorial board of the Journal of Forensic Science, on the 
ethics committee of the AAFS and on the advisory council of the 
National Clearing House for Science, Technology, and the Law at 
Stetson University College of Law. He is a graduate of National 
Law Center at George Washington University.
    Our next witness will be Mr. Peter Marone, director of the 
Virginia Department of Forensic Science and a Member of the 
Committee that developed the report. He is a member of the 
Forensic Science Education Accreditation Commission of the 
American Academy of Forensic Science and the National Academy 
of Sciences Committee on identifying the needs of the forensic 
science community.
    He is also chair of the Consortium of Forensic Science 
organizations. He has a bachelor's degree and master's degree 
in chemistry, each from the University of Pittsburgh, and I 
would like to particularly welcome him, because he is 
representing the Commonwealth of Virginia, which has a great 
reputation in forensic science, particularly in the development 
of DNA.
    So I want to give you a personal welcome, Mr. Marone.
    Next witness is John Hicks who is director of Northeast 
Regional Forensic Institute at the University of Albany, State 
University of New York, which provides specialized workforce 
development training and educational services for forensic 
laboratory personnel.
    He is the former director of the Office of Forensic 
Sciences, New York State Division of Criminal Justice Services, 
deputy director of the Alabama Department of Forensic Sciences, 
and assistant director in charge of the FBI laboratory. He 
holds a bachelor's degree in chemistry from Arkansas State 
University, master's degree in public administration from the 
University of Southern California.
    Our final witness is Peter Neufeld, cofounder and 
codirector of the Innocence Project at the Benjamin Cardozo 
School of Law. The Innocence Project is directly responsible 
for the release of hundreds of people who were wrongfully 
convicted, who were factually innocent of the charges, some of 
which were actually sentenced to death.
    Mr. Neufeld's work has therefore shaped the course of case 
law across the country and helped to lead another influential 
study--and he helped to lead another influential study by the 
National Academy of Sciences on Forensic DNA testing as well as 
important state and Federal legislation settings standards for 
the use of DNA testing. He has a bachelor's degree from the 
University of Wisconsin and his law degree from New York 
University School of Law.
    I would like to welcome all of our witnesses for joining 
us. Their written statements will be made a part of the record 
in their entirety, but I would ask that you summarize your 
testimony in 5 minutes or less, and to help stay within that 
time, there is a timing device before you, which will start 
with green, when a minute is left, it will go to yellow, and 
when the 5 minutes are up, it will turn to red.
    Mr. Melson?

   TESTIMONY OF KENNETH E. MELSON, ACTING DIRECTOR BUREAU OF 
  ALCOHOL, TOBACCO, FIREAMS AND EXPLOSIVES, FORMER DIRECTOR, 
    EXECUTIVE OFFICE FOR THE UNITED STATES ATTORNEYS, U.S. 
             DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Mr. Melson. Thank you very much. Good afternoon, Chairman 
Scott and Ranking Member Gohmert. Thank you for the opportunity 
to present the views of the Department of Justice on the NRC 
report.
    DOJ considers the report to be a helpful addition to the 
public discourse on the state of the forensic science 
community. It recommends many of the same useful steps to 
strengthen forensic science that the 1999 and the 2004 
Department of Justice reports recommended.
    While the NRC recommendations are not entirely new, the 
Department certainly agrees with virtually all of them. The 
forensic community has been and continues to address most of 
the recommendations in the report. Laboratory accreditation 
programs under ISO 17025 standards are in place.
    Scientific working groups are establishing standards and 
protocols. A uniform code of ethics for accredited laboratories 
have been adopted. NIJ grant solicitations for validation 
research have been issued. And experts in the field have 
already begun to conduct research on such topics as context and 
confirmation bias. In fact, yesterday I was pleased to get in 
the mail my copy of the Journal of Forensic Sciences, which is 
one of the world's foremost peer-reviewed forensic journals.
    And there was an article in there on just that type of 
bias, and it was funded by a grant. So the work is ongoing, but 
more needs to be done.
    Although one charge the NRC by Congress was to assess the 
present and future needs of the forensic science community to 
include state and local crime labs, medical examiners and 
coroners, the report did not attempt to create a so-called gap 
analysis or needs assessment with funding requirements.
    The cost of developing and implementing the report's 
recommendations and achieving significant capacity building are 
important and urgent questions. For the first time, a 
President's proposed budget includes $35 million for the Paul 
Coverdell Forensic Science Improvement grant in anticipation of 
such an assessment.
    As the President's leadership in this regard reflects, the 
Federal Government has an important role to play in support of 
our criminal justice stakeholders and constituents, and the 
Department of Justice has already focused on that effort.
    We have been consulting with our Federal laboratory 
directors across the government on ways to harness the full 
power of the Federal experience and expertise to assist these 
ongoing efforts.
    We have met with forensic science groups to listen to their 
concerns and ideas, discussed the issues with groups like ISAP 
and crime lab directors at the Crime Laboratory Management 
Symposium sponsored by the FBI, and we have participated in 
conferences throughout the U.S. since the report was published.
    The Department intends to continue to work with the FBI-
sponsored scientific working groups, also known as SWGs to 
create consensus standards and guidelines for testing protocols 
while significant advances have been made in the accreditation 
programs regarding report writing and terminology, we will 
continue to work with the non-profit internationally recognized 
accreditation programs like AFSCA Lab to enhance the reporting 
guidelines and consistent use of terminology.
    And as I have already mentioned, the National Institute of 
Justice has issued grant solicitations for validation studies 
and is arranging for community input on a variety of forensic 
science issues. And NIJ is also working with NIFT on AFIS 
interoperability issues, which is one of the recommendations in 
the report and the expert working group on human factors on 
latent print analysis project, all of which address the issues 
that were raised in the report.
    And, of course, as always, we look forward to working with 
Congress to develop and refine a comprehensive approach 
including necessary executive branch action and legislation to 
address serious issues raised by the NRC report. There are two 
recommendations, however, that the Department does not, at this 
time, support. One is the creation of the National Institute of 
Forensic Sciences, of NIFS, to oversee the Nation's entire 
forensic science community, and the removal of all forensic 
labs from administrative control of law enforcement agencies or 
prosecutors.
    Since my time is almost up, I hope I will have the 
opportunity to comment on those two recommendations during the 
question and answer period. Thank you.
    [The prepared statement of Mr. Melson follows:]
                Prepared Statement of Kenneth E. Melson




    Mr. Scott. Thank you.
    Mr. Marone?

TESTIMONY OF PETER M. MARONE, DIRECTOR, VIRGINIA DEPARTMENT OF 
                 FORENSIC SCIENCE, RICHMOND, VA

    Mr. Marone. Good afternoon, Mr. Chairman, Ranking Member 
Gohmert, Congressman Weiner.
    My testimony today----
    Mr. Scott. Is your mic on?
    Mr. Marone. No.
    Mr. Scott. Thank you.
    Mr. Marone. I would like to simplify the 250-page report, 
if you will, into the scientific and technical challenges that 
must be met in order for the forensic science community in the 
United States to operate to its full potential.
    Specifically, I will discuss these challenges in the four 
categories of resources, and it should be resources, resources, 
resources, but resources, research, standardization, and 
education. These are the primary challenges for our community 
at this time. The report found that some of the work has 
already begun by many of the forensic scientists but that 
additional efforts and coordination are needed to carry it 
through.
    To make this effective, however, an annual assessment--this 
is one thing the report didn't do--an annual assessment or, if 
you will, a requirements analysis, need to be done to set forth 
a valid national strategy.
    The first element of the charge of the committee while not 
specifically addressed in the form of a recommendation was very 
clearly put in the report, ``For the state and local 
laboratories, there has been a lack of resources--money, 
staffing, training, and equipment--necessary to promote and 
maintain strong forensic science laboratory systems. The state 
and local crime labs as well as the medical examiner community 
have not been receiving the support they need, but the case 
loads have been increasing exponentially.''
    If we continue to--and that is the end of the quote--if we 
continue to focus solely on backlog reduction rather than on 
actual capacity enhancement and methodology advancement, the 
capacity of the labs that process the work will be continuing 
to keep getting backlogs back again.
    I want to make it clear, Mr. Chairman, that this is the 
root of many of our issues, and as a laboratory director, I am 
asking Congress to please establish funding in an adequate 
level for all disciplines, not just a single discipline, but on 
the other hand not in place of that discipline. In other words, 
we are not asking to take the DNA money away, we are looking to 
spread the bigger pie around.
    Congress has been consistently putting some funding for 
other disciplines, but it falls short of what is necessary. The 
amount of funding to accomplish this is probably the most 
difficult to estimate, since we really don't have an accurate 
number of forensic service providers, and that may be a term 
that you haven't heard before. You are familiar with forensic 
laboratories. Forensic service providers would include the 
crime scene units or the ID units, fingerprint sections in 
police departments.
    And the instrumentation and facilities involved are equally 
difficult to ascertain their conditions and needs. There are 
over 17,000 police and sheriff departments, and we have roughly 
estimated there may be 11,000 forensic service providers--
units, not people--in those departments in addition to the 400 
plus publicly funded laboratories across the country.
    All of these numbers need to be verified and understood. 
Under the category of research, the report determined that some 
of the forensic science disciplines need further research to 
provide 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.
    However, as Congressman Gohmert mentioned, not validated by 
one man or another does not mean it is of no value. The report 
clearly states that there is a value in many of the disciplines 
addressed. We need studies, for instance, that look at a large 
population of fingerprints or tool marks so as to quantify how 
many sources might share similar features.
    In addition to investigating the limits of the techniques 
themselves, the research also is needed on issues of context 
effect and examiner bias. In the realm of standardization, the 
report raises concerns about the lack of mandatory requirements 
for professional certification and for laboratory accreditation 
and also the variability in ways that forensic science results 
are reported in courts.
    I think it is critical to first understand that most of the 
forensic science laboratories in the community have already 
begun to move in the direction of accreditation. In fact, in 
the recently published census of publicly funded crime labs, 
which was from 2005, just recently published, it stated then 
that 82 percent of the public laboratories were accredited.
    That number is much higher now, but more can be done. There 
are a significant number of forensic service providers--those 
are the police ID units--which need to be notified of the 
existence of accreditation programs, which are appropriate for 
their functions.
    Few realize that existing ISO/IEC 17025, that is the 
international accreditation, is actually applicable for their 
use. The community fully supports mandatory accreditation, but 
we do not believe one needs to reinvent the wheel. The report 
did not intend to establish new accreditation or certification 
programs but to bolster the existing structure.
    Lastly, the NRC report stresses a need for establishing a 
robust educational component. The Federal Government needs to 
support such a program and the institutions applying to the 
program for accreditation. The example for accreditation for 
forensic education programs has already been mentioned, FEPAC. 
It has been quite successful in raising--in just the 5 years it 
has been in place--in raising the scientific rigor of the 
program for which it has been--the programs it has been 
accredited.
    The primary recommendation of the report, Mr. Melson has 
already mentioned, so I will skip over that, and I would like 
to thank the opportunity to speak to the Committee and answer 
any of your questions.
    [The prepared statement of Mr. Marone follows:]
                 Prepared Statement of Peter M. Marone




                               __________

    Mr. Scott. Thank you very much.
    We have been joined by the gentleman from Texas, Judge Poe.
    Mr. Hicks?

   TESTIMONY OF JOHN W. HICKS, DIRECTOR, NORTHEAST REGIONAL 
FORENSIC INSTITUTE, THE UNIVERSITY AT ALBANY, STATE UNIVERSITY 
                    OF NEW YORK, ALBANY, NY

    Mr. Hicks. Thank you, Mr. Chairman. It is a pleasure to be 
here with you today, and I thank you for this opportunity. I 
must say, first, I share many of the views that have already 
been expressed by the previous panelists here.
    I also should say that I also do not support the notion 
that there should be a separate independent agency developed as 
was put forth in the National Academy, but on the other hand, 
there does need to be close coordination amongst the Federal 
agencies that are involved in forensic's development and we can 
look to the DNA experience to kind of see how that has 
successfully been applied to bring in the new DNA technology 
as, again, was acknowledged in the report.
    The three agencies that played key roles--there are many 
agencies involved and many academic institutions and research 
centers that were involved throughout the country--throughout 
the world for that matter--with DNA.
    But the three primary agencies were the FBI, the National 
Institute of Justice, and the National Institute of Standards 
and Technology. Each of those agencies, I think, bring certain 
elements that can help in addressing many of the issues that 
were raised in the National Academy report.
    With respect to the--what I think is probably the primary 
recommendation--the most significant recommendations of the 
report, and that is to address the--there were recommendations 
number one, three, and ten in the report, but they speak to 
providing funding that would be directed to promoting 
scholarly, competitive peer-reviewed research, which addresses 
issues of accuracy, reliability and validity in forensic 
science disciplines.
    As Mr. Marone has already said, that is an area, clearly, 
of need and application, particularly in areas which have been 
around for many years, and from my perspective, I think we can 
have confidence in many of these pattern-based recognition 
techniques if they are applied by people that are properly 
trained and they have experience in the field, and they operate 
in a way that accreditation programs call for, and that is a 
quality management system that has appropriate review processes 
in place to verify the systems.
    I think we can have confidence in the systems. That is not 
to say that mistakes can't be made and that there is definitely 
a need to know more about those technologies and applications 
and do some of the kind of developmental research work that 
really is within the core competencies of the National 
Institutes of Standards and Technology.
    I think they should play a lead role in helping to apply 
their expertise in developing some of this kind of data that 
has been called for. I think just to sum up my perspective. I 
think I have already said it, but that is that the most 
efficient, effective way to quickly try to address the kinds of 
recommendations and issues that came up in the National Academy 
of Science report is to assure that you have a high degree of 
coordination among these agencies, that there is a lot of input 
from the forensic community at large.
    Of course with the DNA experience, one of the key elements 
to help coordinate the development was what was called the 
technical working group on DNA analysis methods. Now it has 
been sort of changed to the scientific working group, and based 
in part on that experience, the community has adopted 
scientific working groups in virtually all disciplines, and 
their products can be seen in different kinds of publications 
where they have been working toward articulating standards and 
coming to more uniformity in the practice nationally.
    So, in my judgment, that kind of a model might be a very 
useful model to follow with respect to the other 
recommendations in the report.
    Thank you, sir.
    [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.
    First, I should say 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 costly to establish and unnecessarily duplicative of 
well-established programs and activities now found within several 
federal agencies. I do agree with the underlying premise of this 
proposal that there needs to be a well coordinated effort among these 
agencies and within the national forensic community to focus attention 
on issues related to the quality and delivery of forensic services by 
publicly funded agencies.
    The essential recommendations found in the NAS report may be 
grouped 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 the 
resource needs within the forensic community 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.
    Priority attention should be directed to elements found in NAS 
recommendations numbered 1, 3 and 10. Specifically, under NAS 
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 those 
automation technologies which can be applied to reduce evidence 
processing times.
    As called for under the NAS recommendation 10, funding should be 
made available for distribution to educational institutions and other 
appropriate organizations to encourage the development, improvement, 
and delivery 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.
    It should be noted that with regard to the forensic use of DNA 
technology, the Congress has already authorized a series of highly 
relevant and critically needed programs that provide the resources to 
help meet the unprecedented demand for DNA testing services. These 
programs are administered by the National Institute of Justice (NIJ) 
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 
examiner services, legislation was enacted in 2000 which created the 
Paul Coverdell Forensic Sciences 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 highly effective in bringing needed 
improvements to the 22 state and local forensic laboratories across the 
State.
    It is strongly recommended that federal support be continued for 
these programs which have already been demonstrated to address critical 
needs identified in the NAS report. There is a need to expand or 
establish other programs which can focus greater attention on the 
development and validation of methodologies used in forensic 
disciplines. In addition, funding is needed to support a range of in-
service and other specialized training initiatives to maintain and 
improve the technical skills of forensic laboratory personnel.
    In the NAS report, as in the Senate report that ordered the NAS 
study, forensic DNA technology was set apart from other forensic 
disciplines with the recognition of the robustness of the underlying 
research and 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--academic researchers and 
forensic science practitioners--to identify, 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. This 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 which has been proven so helpful in resolving crimes 
which might otherwise have gone unsolved. 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 as used in the examination of 
fingerprints; firearms and fired ammunition components; tool marks; and 
handwriting. 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 kinds of activities are among the core 
competencies found in NIST and supported by other federal agencies such 
as NIJ and the FBI.
    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 as well as with industry and academia. For 
example, in close coordination with the FBI and NIJ, 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 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.
    In my view, the most efficient, effective, and economical way to 
move the forensic community forward, especially in those disciplines 
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. The DNA experience 
provides a useful model and a framework upon which to build. The 
National Advisory Board for Forensic Sciences might include federal, 
state and local 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). 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. 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 engage the academic 
research community in this effort and 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. Again, the forensic DNA 
experience provides a helpful and proven model in this regard.
                               __________

    Mr. Scott. Mr. Neufeld?

           TESTIMONY OF PETER NEUFELD, CO-DIRECTOR, 
              THE INNOCENCE PROJECT, NEW YORK, NY

    Mr. Neufeld. Good afternoon, Mr. Chairman. Good afternoon, 
Ranking Member, Mr. Gohmert.
    On September 18 of 1985, a 16-year-old girl was abducted in 
Utica, New York and eventually sexually assaulted and murdered. 
Initially, one of the people who was suspected of that crime 
was a gentleman named Steven Barnes, only because he owned a 
pickup truck which fit the description of a truck seen driving 
along the road at about the time that the young gal was 
abducted.
    He wasn't arrested then, because they didn't have enough 
evidence. But during the next 2 years, they built a forensic 
case against Mr. Barnes. He was ultimately charged, convicted, 
sentenced to life in prison and spent 20 years in prison 
before, just a couple of months ago, forensic DNA testing on 
the semen recovered from the victim and on the clothing 
recovered from the victim exonerated Steven Barnes.
    I would like to introduce Mr. Barnes to the Committee. 
Would you stand up 1 second. As Mr. Barnes was exonerated in 
the last couple of months after 20 years in prison for a crime 
he did not commit.
    The reason I wanted to mention Mr. Barnes' case to you is 
because a very professional criminalist forensic scientist 
working at a first rate forensic science laboratory--the 
Connecticut State Crime Laboratory--provided three pieces of 
very powerful evidence that were used to convict him.
    First, she testified that the soil under the truck that Mr. 
Barnes was driving was very consistent with the soil found on 
the dirt road where the victim was found. Two, that hairs found 
inside Steven's vehicle were consistent with hairs belonging to 
the victim. Indeed, that they were microscopic matches to those 
hairs.
    And, three, that a layer of dust found inside the van left 
an impression of blue jeans and of blue jean stitching, and 
that the victim wore similar blue jeans, and that she looked at 
other manufacturers of blue jeans--five or six of them--and 
didn't see that particular pattern and, therefore, these were 
very unusual patterns.
    Now, this was somebody who probably came from a laboratory 
that would no doubt be accredited, a person who is extremely 
professional and would be certified. However, the underlying 
disciplines that she was describing had never been adequately 
validated.
    And when I say ``adequately validated,'' it doesn't mean 
that somebody can't examine soil or somebody can't look at 
hairs under a microscope or can't look at a pair of blue jeans, 
but what it means is--and this is one of the things that the 
National Academy of Science talked about so vociferously--is 
that well, what does it mean to say that something is similar 
or matches? Is it one in 10, one in a million, or one in a 
billion?
    And what you realize is--and what the National Academy 
realized is that the hypothesis suggesting that a certain piece 
of evidence left at a crime scene had as its source a 
particular defendant or may have come from that defendant is 
the type of the thing that hasn't been adequately validated. 
And that is one of the main problems here.
    And that is why the National Academy of Science found--not 
me, I don't know science. I am a lawyer with a project in New 
York, but what the scientists found is that with the exception 
of nuclear DNA analysis, no forensic method has been rigorously 
shown to have the capacity to consistently and with the high 
degree of certainty demonstrate a connection between evidence 
and a specific individual or source.
    That is their finding, not ours. And the problem is that 
you now want to figure out how to test that hypothesis to see 
whether or not they can be validly used for that specific 
purpose or whether they can't be. And no doubt if we do studies 
like that some will pass, some might not.
    But, you know, what is interesting is that in other 
institutions, we don't do that kind of testing after the horse 
is out of the barn. We don't decide after we first have the FDA 
look at a new piece of medicine or a medical device and decide 
whether it has been adequately validated before we unleash it 
on the consumer public.
    We don't have the pharmaceutical companies decide how the 
National Institute of Health should give out grant money for 
basic research and applied research. We don't do that for other 
kinds of applied science. Why should we do it in forensic 
science? We shouldn't.
    We should have, number one, an entity that looks at these 
things before they are used, not after. One of the problems 
that other speakers have recognized here is that some of these 
systemic problems were known for a long time, yet no one at 
NIJ, no one at the FBI laboratory did anything affirmatively 
about many of these systemic problems and testing that basic 
hypothesis for 5 or 10 or more years.
    Now they want to do something because the NAS report is 
out, but the other thing, which is very important for us to 
learn in terms of a lesson from what we do with clinical 
laboratories in medicine, is we don't have the users themselves 
decide when a product is ready. We have independent people do 
that.
    What is being suggested by some other people at this point 
in time is that it is okay to have the leaders of the forensic 
laboratories or the leaders of these different forensic 
disciplines decide when a device has been adequately validated.
    We have never felt that is an adequate assurance when 
matters of public health are at stake. I don't see any reason 
why we should have less rigor when matters of criminal justice 
are at stake.
    Thank you.
    [The prepared statement of Mr. Neufeld follows:]
                  Prepared Statement of Peter Neufeld
    Thank you Chairman Scott, Ranking Member Gohmert, 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. I am 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.
    The development of DNA testing has allowed the Innocence Project to 
help exonerate 238 factually innocent Americans--17 of whom were on 
death row awaiting execution.
    However, fewer than 10 percent of cases that come before the courts 
involve biological evidence that could be subjected to DNA testing; DNA 
testing cannot help us identify the truth in the remaining 90 percent 
of cases, many of which involve some form of forensic evidence. Thus 
the need to be as sure as possible about the probative value of non-DNA 
forensic evidence is critical to the integrity of our criminal justice 
system.
    This is particularly true given the fact that our work with DNA 
exonerations has shown us the shortcomings of non-DNA forensics. Our 
cases have allowed us the opportunity to examine what went wrong, and 
that research has yielded a stunning statistic: police and prosecutors' 
reliance on un-validated and/or improper forensics was the second-
greatest contributing factor to those wrongful convictions.\1\ Those 
cases show what the NAS report documents--that the lack of science 
underpinning non-DNA forensics has tremendous potential to mislead the 
criminal justice system away from the real perpetrators of crime, and 
that the system must use science to address these scientific 
shortcomings in order to improve the reliability of forensic evidence, 
and thus our criminal investigations, prosecutions and convictions.
---------------------------------------------------------------------------
    \1\ The Innocence Project's analysis regarding wrongful convictions 
involving unvalidated or improper forensic science that were later 
overturned through DNA testing is attached to this testimony.
---------------------------------------------------------------------------
    The Innocence Project strongly believes that the NAS report 
provided a critical wakeup call 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. While the findings 
of this expert scientific panel was a source of alarm about the 
criminal justice system's forensic practices, we must recognize that it 
provides the system with a tremendous opportunity. Namely, its 
recommendations will allow us to increase the accuracy of criminal 
investigations; strengthen criminal prosecutions; bring justice to 
victims; conserve resources so law enforcement can dedicate them toward 
finding true perpetrators; and protect the innocent from wrongful 
conviction. The Innocence Project therefore strongly endorses the 
report's recommendations; the findings and recommendations of this 
report are critical to the improvement of our criminal justice system.
    The Innocence Project strongly supports the Academy's central 
recommendation: to ensure the integrity of the forensic evidence used 
to guide the criminal justice system, the federal government must 
create a National Institute of Forensic Sciences. Many forensic 
techniques--such as hair microscopy, bite mark comparisons, 
fingerprints, firearm tool mark analysis and shoe print comparisons--
have never been subjected to rigorous scientific evaluation. Yet as I 
speak, 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. Likewise, forensics techniques 
that have been properly validated--such as serology, commonly known as 
blood typing--are sometimes improperly conducted or inaccurately 
conveyed in trial testimony. The overarching problem has been that all 
too frequently, these forensic disciplines have been improperly relied 
upon to connect our innocent clients to crime scene evidence.
    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 NAS 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.
    An example of this is the case of Steve Barnes. Barnes was 
convicted in 1989, at the age of 23, of the rape and murder of a high 
school classmate he did not commit. Three types of unvalidated forensic 
science were used in the trial to convict him. Eyewitness testimony at 
his trial was shaky and the lack of other strong evidence put 
particular weight on the forensic evidence involved in the case. That 
evidence included testimony that soil on Barnes' truck tires was 
similar to soil at the crime scene, that an imprint in the dirt on the 
surface of Barnes' truck matched the fabric pattern on a particular 
brand of jeans the victim wore when she was killed, and that two hairs 
collected from Barnes' truck were microscopically similar to the 
victim's hairs and dissimilar from Barnes' hair.
    The soil, fabric, and hair analysis are examples of an area of 
forensics called ``pattern evidence'' techniques. These techniques take 
an item found at the crime scene and determine if it is a match with a 
sample from the suspect to link them to the scene. However, microscopic 
hair analysis, soil comparison and fabric print analysis have not been 
tested to determine their scientific reliability or validity; as a 
result, it is impossible to know how many other soil samples might be 
similar to soil from the crime scene or the likelihood that other 
brands of jeans can make prints of a similar pattern, and there is not 
adequate empirical data on the frequency of various class 
characteristics in human hair. Without an existing database or set of 
``knowns,'' a proper statistical inference of likelihood cannot be 
made.
    However, neither the defense counsel, judge, nor jury were familiar 
with these underlying facts, and as a result this misleading and 
inaccurate forensic evidence was accepted as scientific fact. In 2007, 
the Innocence Project secured the latest DNA testing, which yielded 
conclusive results on sperm cells from the victim's body and clothing--
none of which matched Barnes. After serving near 20 years in prison for 
a murder and rape he always said he didn't commit, Barnes was freed on 
November 25, 2008. His exoneration became official on January 9, 2009, 
when prosecutors announced that they were dropping all charges. Shortly 
after his exoneration he celebrated his 43rd birthday--the first one at 
home in two decades.
    According to the NAS report, ``[f]or a variety of reasons--
including the rules governing the admissibility of forensic evidence, 
the applicable standards governing appellate review of trial court 
decisions, the limitations of the adversary process, and the common 
lack of scientific expertise among judges and lawyers who must try to 
comprehend and evaluate forensic evidence--the legal system is ill-
equipped to correct the problems of the forensic science community. In 
short, judicial review, by itself, is not the answer.'' \2\
---------------------------------------------------------------------------
    \2\ 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. 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.
    The vast majority of forensic employees are hardworking, ethical 
and responsible. They use the best scientific techniques available to 
them to deliver objective, solid information--regardless of whether the 
science favors the defendant, supports the prosecution or is 
inconclusive. In most cases, the science--rather than the scientist--is 
inadequate. In other cases, forensic analysts make mistakes that could 
result from lack of training, poor support or insufficient resources to 
meet an ever-growing demand. In still other cases, forensic analysts' 
testimony goes further than the science allows because the techniques 
that have been practiced for years have not been subjected to the 
rigors of scientific research. Our review of the nation's DNA 
exonerations showed that 72 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. They are 
accepted and repeated as fact, leaving juries with the impression that 
the evidence is more scientific than it is. According to the NAS 
report, the shortcomings in education, training, certification, and 
standards for testing and testifying that contributed to wrongful 
convictions in those cases threaten the integrity of forensic 
results.\3\
---------------------------------------------------------------------------
    \3\ Ibid., p S-3.
---------------------------------------------------------------------------
    Some may argue that mandatory accreditation and certification would 
be a sufficient oversight mechanism for the forensic community. While 
this would, of course, be superior to no oversight structure at all, 
the NAS Report makes clear that this alone would fail to solve some of 
the most pressing deficiencies in forensic evidence. Specifically, 
mandatory accreditation and certification alone would fail to address 
the lack of validity and reliability the NAS identified in numerous 
forensic practices.
    Voluntary accreditation of laboratories and voluntary certification 
of analysts have, of course, been part of the forensic system for 
years. However, many of the accredited labs and certified practitioners 
have, nevertheless, been reporting results that the NAS concludes--and 
DNA exonerations have confirmed--have never been scientifically 
validated for their accuracy. Accreditation only provides assurance 
that protocols for laboratory operations, evidence handling, personnel 
management, review of lab reports, and monitoring of testimony takes 
place; and certification only monitors education, experience, training, 
and completion of a skills-based test. Neither practices are 
determinative of the accuracy of the forensic product.
    Without the basic and applied research and comprehensive assessment 
and standardization needed to validate the various forensic techniques 
and assays, mandatory accreditation and certification alone would do 
little to address the fundamental scientific shortcoming which is of 
such serious concern to the NAS. If the underlying forensic discipline 
adopted by the lab and used by the analyst has not been scientifically 
validated nor its reliability assessed, the final product proffered to 
prosecutors and court will remain in question.
    However, we cannot expect the courts to sort through or overcome 
the patchwork of standards, or to assess for themselves the reliability 
of a device or technique, no matter how widely used. Judges nor juries 
cannot be expected to understand the accuracy of an expert witness's 
testimony and whether the science they claim to represent has been 
tested and validated by the best scientific practices. Because of the 
fragmentation of the criminal justice system, and because of the lack 
of a sound scientific foundation for many forensic technologies and 
assays, 50 states may be operating under 50 definitions of 
``science''--and therefore 50 standards of justice. While states' 
autonomy must be respected, it is entirely appropriate for the federal 
government to establish the scientific standards that foster justice 
when any court is considering forensic evidence.
    For our justice system to work properly, standards must be 
developed and quality must be assured as part of the formal system of 
vetting the scientific evidence we allow in the courtroom. 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--the application of the scientific method to 
each forensic assay or technology, as well as parameters for report 
writing and proper testimony, must be required. Since the police 
officers, lawyers and judges who are tasked to adjudicate these cases 
are very rarely forensic specialists themselves, properly understanding 
forensic scientific evidence presents a challenge that demands a 
strong, unified, federal response before scientific evidence reaches 
the courtroom. This is particularly important because the overwhelming 
majority of cases are resolved with plea bargains, necessitating 
defense lawyers and prosecutors--with no judicial involvement--to 
interpret and rely on the reports' conclusions as a basis for making an 
important decision affecting the liberty of life of the accused.
    Another challenge to the quality of forensic evidence is 
information dissemination. When information about new technologies and 
technique surfaces, there are few formal channels for sharing that 
information with practitioners in the field. As a result, many 
practitioners continue to practice unaware of the latest critical 
advances and news that can inform their work, a problem that is 
exacerbated because of the lack of resources for continuing education 
and training to adapt to those advances, when they are known A formal 
entity is needed to track the latest advances, and to serve as a 
centralized repository and to validate the newest technological 
advances, and ideally to promote innovative research as well. This is 
also an opportunity to harness the federal government's resources to 
promote and subsidize continuing education and training.
    The NAS report states that ``The forensic science enterprise also 
is hindered by its extreme disaggregation--marked by multiple types of 
practitioners with different levels of education and training and 
different professional cultures and standards for performance and a 
reliance on apprentice-type training and a guild-like structure of 
disciplines . . .'' \4\ What is called for is a standardized approach 
to education, training, proficiency testing, and ultimately 
certification of practitioners to ensure a consistent and high standard 
is met nationwide. Likewise, enforceable parameters for interpretation 
of data, report writing, and courtroom testimony must be developed.
---------------------------------------------------------------------------
    \4\ Ibid., p. S-11
---------------------------------------------------------------------------
    Because of both a lack of resources and the current fragmented 
allocation of funding streams, most crime labs are focused on 
eradicating backlogs in addition to new casework. In addition, current 
funding is not adequate to allow necessary research to be conducted to 
improve the various disciplines. This both delays justice and hinders 
the ability of a practitioner to conduct his or her work as well as 
possible. It is clear that a comprehensive assessment of the resource 
needs of the forensic science community--and those who employ forensic 
evidence--must be conducted to ensure that funding is allocated 
appropriately. This will also allow us to fully grasp the magnitude of 
the problem and work to make sure that suitable funds are appropriated 
to address the work that needs to be done.
    And of course, the variety of assays, devices, and technologies 
must be closely examined and subjected to the scientific method. The 
Innocence Project can cite well over a hundred cases that involved 
faulty forensics, from the nation's 239 post-conviction DNA 
exonerations alone. And the NAS report is very clear: ``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.'' \5\ Non-DNA forensic assays have not 
been scientifically validated, and there is no formal apparatus in 
place to do so for developing forensic technology. 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. 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 FDA ever scrutinized the 
forensic devices and assays, nor were crime laboratories subject to 
mandatory accreditation and forensic service practitioners subject to 
certification. Only the federal government has the resources and the 
power to undertake such a challenge.
---------------------------------------------------------------------------
    \5\ Ibid., p. 5-5.
---------------------------------------------------------------------------
    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 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. 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. Given the clear and 
comprehensive message delivered by the NAS on this subject, further 
delay would be unconscionable.
    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. 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.'' \6\
---------------------------------------------------------------------------
    \6\ 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.
    The investment of time, effort and resources necessary to improve 
forensic sciences will pay tremendous dividends in terms of time, 
effort and resources not wasted by faulty data. It will make criminal 
investigations, prosecutions and convictions more accurate, and our 
public more safe--and perhaps most importantly, justice more assured. 
It will allow us to eliminate backlogs, allowing properly-funded crime 
labs to turn around evidence in time for a quick trial. There will be 
no question about what evidence is admissible: all forensic assays, 
devices, and technologies will have been validated, reliability studies 
will have been done, and reports will be properly documented. Clear 
guidelines for testimony will be set which will prevent evidence from 
being manipulated or mischaracterized to benefit the defense or 
prosecution. Research on developing technologies will not only improve 
forensic technology, but will uncover ways to innovate and improve upon 
current technology and devices.
    Our work has shown the catastrophic consequences of such a lack of 
research, standards, and oversight. 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.\7\
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    \7\ 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.
---------------------------------------------------------------------------
    We have an unprecedented opportunity to significantly improve the 
administration of criminal justice in the United States. By 
strengthening forensic science 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, just as the development of DNA 
technologies and their applications has done. With your support, we 
will minimize the possibility that tragedies like those endured by the 
nation's 238 (and counting) exonerees and their families will be 
needlessly repeated, and we will significantly enhance the quality of 
justice in the United States.

                               ATTACHMENT




                               __________

    Mr. Scott. Thank you very much. We will now recognize 
ourselves observing the 5-minute rule. And I will begin by 
recognizing the gentleman from New York who has been relentless 
in his advocacy for getting overdue and rape kits tested in New 
York. I mean, we have an embarrassing backlog, and he has just 
been relentless trying to get funding for that particular 
science.
    I will recognize the gentleman from New York, Mr. Weiner.
    Mr. Weiner. Thank you, Mr. Chairman, and I appreciate your 
continuing this conversation going.
    Peter, let me pick up on what you just finished with. The 
difference between a pharmaceutical drug or a process is that 
no one has to go into a court of law ask a judge, do you think 
this--I am a kosher expert, do you think that this is--you 
know, no one is going to stand there and present that evidence 
without having someone on the other side.
    It strikes me that the report identified some problems with 
collection, some problems with the standards for testing, and 
now you are talking about problems with how you interpret any 
information that is presented before a jury.
    Now, in the tragic case of your client--and I welcome him 
here today--wasn't this just a case though that you had a jury 
was too willing and a judge that were too willing to let into 
evidence as proof of a hypothesis stuff that was really just 
stuff that you--wasn't really up to standard, that even if we 
solved the other problems of standards, that you are still 
going to have someone saying, aha, I found a jean print in 
dust, and going to a jury and said here is the picture, and I 
think that this is the jean of whatever.
    So why don't you take a stab at that.
    Mr. Neufeld. Okay. First of all, you are not going to have 
that problem for two reasons: one is, it is one thing for 
someone to say that this jean print is consistent with or 
matches whatever, I don't even have a problem with that. The 
problem is that the jury has to be told is it a rare jean or a 
common blue jean, okay?
    If the jury doesn't know that, they don't know how to 
interpret the evidence. When an expert very often says that 
something is consistent with or similar, there is a whole 
series of psychological studies which prove that jurists take 
that to mean it is his, it is a match, it is unique, it is 
individualized.
    The problem is that that hypothesis--you don't know what it 
is. Is it one in 10 or one in 1,000? That has to be proved 
scientifically. That is what the NAS report says. Before the 
evidence comes into court.
    The other difference that you mentioned between 
pharmaceuticals and the FDA and NIH and the criminal justice 
system is a suggestion that there is a judge who is a 
gatekeeper. And, yes, there are several judges who are good 
gatekeepers, and there are even a few lawyers who know when to 
challenge something, be they prosecutors or defense attorneys, 
but I did a peer-reviewed published study showing the way that 
Daubert was administered over the first 12 years of existence.
    And in the civil context, it was administered very 
rigorously. In the criminal context, it wasn't administered at 
all to speak of. So 90 percent of the time, the evidence would 
be kept out in a civil case and only 2 or 3 percent of the time 
would it be kept out in a criminal case. There was no either 
meaningful challenge. There was no meaningful cross 
examination. Most the judges, frankly, were interested in other 
kinds of legal issues as opposed to scientific issues.
    After all, they didn't go to medical school, they went to 
law school and then went onto become judges, and I mean that in 
all fairness, sir, that is just a natural tendency. But the 
data speaks for itself. There haven't been any kind of 
meaningful scrutiny, and that is why the NAS said in its report 
that it is too late if you wait until it gets to court.
    Mr. Weiner. Right.
    Mr. Neufeld. The idea is to try and fix a lot of this 
upstream before it gets to court. The judges can still be 
gatekeepers, but at least they will have much more guidance.
    Mr. Weiner. I appreciate that. Can I change subjects and 
ask the rest of the panel this question? You know, it is true 
that we have made strides on dealing with the backlog, although 
there are problems that have emerged.
    But in the testimony that I heard here today that now we 
have got other types of problems that are building up. Are we 
reaching a place though that the process of taking collected 
DNA evidence, presenting it into a form that attorneys like Mr. 
Neufeld can use it--are we reaching a place where through 
advance of technology or economies of size that that is getting 
more foolproof.
    It is getting easier now to take data and to take this 
information is it more likely that you are going to be able to 
reduce the costs, make it simpler to process the evidence, and 
then our problem moves elsewhere in the system. I mean, is it 
getting more foolproof, kind of like developing film a hundred 
years ago turned into a Fotomat 50 years ago, turned into a 
digital one-click camera today.
    Are we reaching that point with DNA evidence collection?
    Mr. Marone. I would have to say that is simply putting it, 
yes. But the bottom line is that a lot of the methods now are 
lending themselves quite more easily to automation and when you 
get into automation, obviously, you get an efficiency of scale, 
one.
    Two, it is less chances for manipulation errors with 
individuals, because you are working on a math scale, an 
automated scale with robotics, you can use smaller samples. So 
I would say yes to all those, but the caveat with that is, when 
you start looking at smaller and smaller samples and higher and 
higher sensitivity, you then have to worry about the 
consequences of unintended DNA that you are picking up----
    Mr. Weiner. Contamination.
    Mr. Marone. I hesitate to use contamination, because it may 
or may not be a contamination issue. For example, if you are 
looking at door lobs, you are now looking at everyone who 
touched a doorknob. Those kinds of issues.
    So, yes, we are getting better along those lines, but one 
must still have that caution to realize what it is that you are 
looking at.
    Mr. Weiner. Thank you.
    Thank you, Mr. Chairman.
    Mr. Scott. The gentleman's time has expired. Thank you.
    The gentleman from Texas, Judge Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman. Obviously, for Mr. 
Barnes to serve any time improperly is particularly egregious. 
I am curious, when did that case go to trial?
    Mr. Neufeld. It went to trial 4 years after the incident, 
in 1989.
    Mr. Gohmert. 1989, okay. So that was before DNA evidence 
really came to the forefront.
    Mr. Neufeld. It was before they had DNA testing. The 
problem, sir, from our perspective, and I think everybody on 
the panel would agree, is that DNA, which obviously has 
revolutionized the criminal justice system in a lot of ways, is 
unavailable as the truth test, if you will, in many cases.
    Mr. Gohmert. Right.
    Mr. Neufeld. So crime----
    Mr. Gohmert. It wasn't in that case, though.
    Mr. Neufeld. Right.
    Mr. Gohmert. In the current day, it wouldn't not even be an 
issue, and as far as the dust left behind an impression of blue 
jeans. I mean, if I am the gatekeeper on that case, somebody 
testifies to that, that tells me maybe we are looking for 
someone wearing blue jeans or we are looking for a 2-year-old 
wearing denim Osh Kosh overalls, you know.
    That is nothing. That evidence I am surprised that anybody 
would let that in. That is just way too vague as to be 
supported scientifically. I just can't imagine that coming in. 
The soil under a truck? They don't do an analysis and say it is 
exactly the soil or, I mean, those kind of things are kind of 
hard to believe that any kind of adequate gatekeeper would 
allow that stuff in.
    Obviously, a judge did, an appellate court didn't see 
through it, and so Mr. Barnes served unnecessarily, but I am 
curious and liked to get the panel's consensus here. You know, 
the study talks about pattern-based disciplines. Do any of you 
believe that fingerprints have inadequate scientific 
validation? I would like to know is there anybody that believes 
that pattern-based fingerprints have inadequate scientific 
validation?
    Mr. Neufeld. In all fairness, sir, I don't think 
necessarily that the four of us are the best qualified people 
to answer that question. I think what the National Academy of 
Science report said is that that is a scientific question, 
and----
    Mr. Gohmert. Okay, so your opinion is it is not appropriate 
for you to have an opinion, but I would like your opinions 
anyway.
    Mr. Hicks?
    Mr. Hicks. Now it is on.
    Mr. Gohmert. Yes.
    Mr. Hicks. Okay. I do believe that fingerprint technology 
has an enormous amount of data behind it. I mean, we have 
established automated systems that are in use in every police 
department in the country. They are connected nationally. They 
are used internationally. They have been shown to be highly 
effective in distinguishing people.
    I think what may be lacking is having put some of that the 
information and experience there into a form and this sort of 
meets what is being defined now as these rigorous scientific 
studies. I think there may be some validation-type studies that 
may be performed and published that would help to support--may 
provide new information about the limits or extent of 
fingerprinting, but my personal opinion is that there is----
    Mr. Gohmert. Adequate validation.
    Yes, Mr. Marone?
    Mr. Marone. Two things, actually. Let me, let me quote from 
the report itself. This is in chapter five, the chapter that 
dealt with the scientific disciplines. Historically, fiction 
ridge analysis has served as a valuable tool both to identify 
the guilty and exclude the innocent.
    Because of the amount of detail available in friction 
ridges, it seems plausible that a careful comparison of two 
impressions can accurately discern whether or not they had a 
common source. Although there is limited information about the 
accuracy and reliability of friction ridge analysis, claims 
that these analyses have zero error rates are not 
scientifically plausible, and I think that is the crux of the 
matter.
    Where DNA, because of its nature, has very discrete 
alleles, each one of those low--the alleles in each--have a 
particular probability that they show up in the population, and 
that lends itself very well to coming up with a nice number, a 
possibility of occurrence.
    With fingerprinting, there are a number of ridge details. 
What hasn't occurred here is someone mapping those details and 
give a statistically supportable conclusion as to if I have X 
number of points of comparison, how strong is that?
    Mr. Gohmert. Right.
    Mr. Marone. And that is what, I think, is lacking there is 
not that you can't do it.
    Mr. Gohmert. Well, I don't know that it is lacking. I used 
to hear that testimony.
    Mr. Marone. Right. You can't put a level----
    Mr. Gohmert. I used to hear that testimony. Some say seven 
points was enough, and we didn't allow less than 10 points, and 
you had to be positive about those 10 points, and then we heard 
about the statistical analysis of what that did when you went 
from seven to 10 points.
    Mr. Marone. Sure, and then two compound that issue, because 
again, where DNA has those alleles, think about circumstances 
where you don't have 13 losa, you don't have 26 alleles, the 
numbers reduce significantly.
    Mr. Gohmert. Right.
    Mr. Marone. If you have three or four or five, you can't 
even search it unless you have 10. But fingerprinting, it is 
not like it is a nice clean print, may be smudged, may be 
smeared so all those other environmental aspects of it----
    Mr. Gohmert. They didn't have enough points, they didn't 
come in.
    Mr. Marone. Exactly. But, I mean, that is----
    Mr. Gohmert. The jury never heard it.
    Mr. Marone. That is where the argument is.
    Mr. Gohmert. Yes. But if there were enough points, you 
don't have a problem with that being scientifically validated?
    Mr. Marone. I think after----
    Mr. Gohmert. As long as the jury understood----
    Mr. Marone. After all these studies are done, I have no 
doubt that the underlying science will be found to be valid. 
The application of it by an individual might be a different 
issue.
    Mr. Gohmert. My time has expired, but if I could hear from 
Mr. Melson.
    Mr. Melson. Well, I think the science is applicable and 
probative for court when it is properly applied by a qualified 
individual. The problem is you can make a generalized 
statement, because you may have a very clear latent print to 
compare with the rolled print, then it is easy, probably nobody 
would object to that.
    But once you get to the smaller smudges, the partial latent 
prints, then it becomes much more difficult to make a 
comparison. Doesn't mean it can't be done, but that is where 
the research needs to be done. So all of these areas, even 
though there may be questions about them, and even though 
courts allow them into evidence, more research should be done 
on all the areas.
    Mr. Gohmert. When you say courts allow them into evidence, 
what are----
    Mr. Melson. Courts are allowing this type of pattern 
evidence into evidence every day.
    Mr. Gohmert. With how many points?
    Mr. Melson. Well, it depends on the circumstance. The 
admission of the evidence is so case-specific. You have got to 
make sure that your expert is qualified.
    Mr. Gohmert. Sure.
    Mr. Melson. You have to have confidence in his ability to 
do the examination. You find that out through direct and cross 
examination. And if you believe that based upon what he did, 
whether he is from an accredited laboratory, whether he is 
certified, all of the other evidence that you take in 
holistically, you have to make a judgment call as to whether 
that is probative in this particular case for the issue at 
hand.
    Mr. Neufeld. Congressman Gohmert, if I just may, because I 
didn't take advantage of it before?
    Mr. Gohmert. Do I have unanimous consent?
    Mr. Scott. Yes, please.
    Mr. Neufeld. I think your last question was incredibly 
poignant. You said, how many points does it have to be that 
they say it is a match? One of the problems is that in one 
state it could be five, in another state it could be seven, 
another place it could be nine or 11.
    You would not be satisfied if you sent your blood out to 
four different laboratories and they had a different way of 
determining whether you had a certain disease or whether or not 
you reached a certain threshold that you need a certain 
medication. You want to create one kind of standardized way of 
interpreting data.
    And one of the problems is we haven't done that, and that 
is why people talk about having a National Institute of 
Forensic Science so there would be some group other than just 
the users who would just say, you know what, it has got to be 
nine, or it has got to be seven, whatever it has to be, it 
becomes a national standard.
    Mr. Gohmert. Was that seven before they consider it an 
acceptable match?
    Mr. Melson. The FBI has no----
    Mr. Gohmert. They have no----
    Mr. Melson [continuing]. No standards.
    Mr. Gohmert. Okay.
    Mr. Melson. Now, there are no minimum points that you have 
to have. It is on a case-by-case basis.
    Mr. Gohmert. Alright, and what Mr. Neufeld seems to forget 
sometimes is when he talks about the medical laboratories. They 
are dealing with pristine samples. You know, they aren't 
contaminated; they aren't partial draws of blood and things 
like that. It is pristine, so it is a lot different than doing 
an analysis of a latent fingerprint and a rolled fingerprint.
    You can't have, necessarily, specific rules that apply to 
every single type of analysis.
    Mr. Melson. Okay. I appreciate the Chair's indulgence. 
Thank you.
    Mr. Scott. Thank you. Let me just follow up on this 
fingerprint, because if all you have for evidence is five 
points, and you look at it as absolutely consistent, you do a 
visual overlay, and it just overlaps exactly, does the jury not 
get to see that if the standard is nine?
    You only get seven. You have a standard of nine, but seven 
is all you have got. I mean, would the jury not get to see 
that?
    Mr. Melson. Well, that is the problem with having a uniform 
standard that is not flexible to meet the particular case at 
hand. Those five points of comparison may be relatively unique 
and, therefore, could even be a better identification than 
another comparison with nine points.
    So what you are doing is you are setting an artificial 
standard for the community which deprives juries of probative 
evidence.
    Mr. Scott. Mr. Neufeld? Why was Mr. Barnes tested when he 
was tested? What were the circumstances that--I assume he was 
claiming innocence all along.
    Mr. Neufeld. He was claiming innocence all along. He 
actually wrote to the Innocence Project way back in the early 
1990's, and we tried to do then state-of-the-art DNA testing, 
but as these folks here will know better than I will, the type 
of testing at the time was friction fragment laying 
polymorphism needed a larger sample than the kind of very 
sensitive Y-STRs and other STRs that we were able to finally 
exonerate him with in 2008 and 2009.
    So we did testing way back when, then we just waited for 
the technology to catch up, and that is how he finally got out.
    Mr. Scott. Did you get a cold hit to know who it was?
    Mr. Neufeld. On this case, no, but on more than a hundred 
of our 238 exonerations, we have worked with police and 
prosecutors to identify the real perpetrator, and invariably 
those people who are identified committed other serious violent 
crimes in the intervening years.
    And that is why when we are talking about these reforms 
that the NAS is talking about, it is not just about avoiding a 
wrongful conviction, it is about public safety. It is about 
trying to make sure that the system is working as 
scientifically as possible so we can get the most powerful 
evidence to solve crime and identify perpetrators.
    Mr. Scott. Well, you indicated your--in questions and in 
your testimony something along the lines of the purpose for 
which it is used. So you could have very good science, and 
there would be a difference between, for example, using it for 
screening or investigations and using it as evidence in a 
trial.
    DNA, for example, you would have all kinds of--if you have 
got all these samples out there, you would have all kinds of 
chain-of-custody problems if you tried to use the sample in the 
database in court. But we don't do that. You use the sample in 
the database for screening. When you get a cold hit, you go to 
that person, get the sample, and that sample is what you 
introduce in court. So you don't have any of the chain-of-
custody problems.
    Is there good science that will help you solve a crime that 
may not be good enough for admissibility in court?
    Mr. Neufeld. That is a good question. I think that police 
are constantly using different investigative tools to work 
leads that nevertheless may not be admissible in a court of 
law. A police officer can secure, for instance, a confession 
from somebody in violation of their Miranda rights, in 
violation of all kinds of things that would prevent the 
confession from being admitted, but it may leave the police 
other evidence which corroborates somebody's guilt, okay.
    Mr. Scott. What happened to poison fruit?
    Mr. Neufeld. No, no, no. What I am saying is the 
confession----
    Mr. Scott. Fruit of the poison tree.
    Mr. Neufeld. The confession itself won't be admissible but, 
for instance, even with confessions, under a case called Harris 
v. New York, if the defendant testifies and says something that 
contradicts the confession he gave, even though it was 
involuntary, they can then introduce the confession as part of 
the rebuttal case.
    I mean, there are all kinds of evidentiary rules to handle 
those situations. But the point here is that, you know, I don't 
even have a problem with the forensic scientists in the Barnes' 
case doing the kind of work that she did. She was a very 
professional person, very highly regarded in the community, and 
since New York didn't have someone with this expertise, they 
went to the Connecticut State Crime Laboratory who availed them 
this woman to do the work.
    The problem is once you have some leads like that, unless 
you are able to quantify the probative value of that evidence, 
what is the jury supposed to do? And so what you have to 
realize, it is not enough with a lot of these forms of 
evidence, whether it is ballistics, whether it is bite marks, 
pattern evidence, or hair evidence, in this case, okay, which 
was probably the most probative of all.
    It is not enough to say that something is consistent with 
or matches or whatever unless you can communicate the jury what 
does it mean to be consistent?
    Okay, and that is science, by the way. That is not just a 
judge as gatekeeper. The scientific community must ensure when 
they validate something that they have not only validated the 
analytic capacity of it, but they have also validated the way 
it will be interpreted and explained.
    Mr. Scott. Is the use of the word ``match'' problematic in 
court?
    Mr. Neufeld. Well, it is interesting. Just to give an 
example of it, the board of forensic odontology has five 
different types of testimony that you can give, and the lowest, 
in terms of its evidentiary significance, is match, okay? Yet, 
when the psychological studies were done at Arizona State 
University on jurors, 84 percent of the people tested said 
``match'' is the equivalent of it is his to the exclusion of 
the whole planet.
    So obviously, one of the things that the NAS talks about 
here is, you know, we really have to have a scientific basis 
for the way these words are used, and the best way to do that, 
they say, is that for all these different pattern and 
impression evidence systems is to go out, roll up their sleeves 
like they do with DNA and get data.
    Find out, you know, how common a certain class 
characteristic is. Once you know how common or rare a class 
characteristic is scientifically, you get to communicate that 
to the juror as opposed to words like, match, similar, or 
consistent with.
    Mr. Scott. I have several other questions.
    Mr. Gohmert? Do you have further questions?
    Mr. Gohmert. Just a couple of brief--you know, the study 
recommended this new National Institute of Forensic Science, 
and indicated that the National Institute of Standards and 
Technology had limited ties to the forensic community and would 
not be seen as a leader by scholars, scientists, and 
practitioners.
    Mr. Hicks? You had indicated in your testimony that you 
didn't support the new NIFS. How do you respond to the report 
saying that it may not be seen as adequately a leader by 
scholars and scientists?
    Mr. Hicks. Well, I guess, in looking----
    Mr. Gohmert. I mean, the NIST.
    Mr. Hicks. Right. In looking at NIST, NIST played a very 
significant role in the DNA development, and their scientists 
at NIST continue to play a significant role in terms of 
teaching and passing along a technology to others.
    NIST was very much involved in the optimization, I guess, 
of the automated fingerprint identification systems. They were 
involved in the automated firearms identification systems in 
trying to optimize those systems. They are involved in 
standards development for industry for all sorts of clinical 
applications and other applications, and they produce the 
traceability standards that are used as a quality management 
device or control in any laboratory and quality management 
system.
    So I am not sure where that statement would come from. It 
may be that some forensic people don't have a full recognition 
or appreciation for the role that NIST has played, but from 
perspective, they were a key player in the development of those 
systems.
    Mr. Gohmert. Okay. Well, thank you.
    And, Mr. Neufeld? You know, I applaud the efforts of the 
Innocence Project, you know, where you could work so hard, take 
so much time and effort to exonerate someone who was wrongfully 
convicted, but it is my understanding that since 2004 of the 
significant number of innocent people that you have helped get 
released that there have just been two since that time.
    Is that not accurate?
    Mr. Hicks. Right, in looking at NIST----
    Mr. Gohmert. Okay, thank you. And Mr. Newfeld----
    Mr. Neufeld. No, that is not accurate at all. In fact, I 
think just in the last----
    Mr. Gohmert. Who were convicted since 2004.
    Mr. Neufeld. Oh, yes, well----
    Mr. Gohmert. Yes.
    Mr. Neufeld [continuing]. Also know that. In fact, the 
average life--Mr. Barnes is a good example. Mr. Barnes we took 
on as a client in 1993. It took us--you do the arithmetic--15 
or 16 years to get him exonerated. The average client who we 
represent, it can take 5 or 6 years before we exonerate them. 
So you wouldn't expect any people who were convicted since 2004 
to yet make it into our cycle.
    Mr. Gohmert. Yes.
    Mr. Neufeld. First of all, we have a backlog now of, I 
think, more than 2,000 cases.
    Mr. Gohmert. But you said with Mr. Barnes, you had to wait 
for the science to catch up, and we have come so far in the 
last 20 years, and that is why I was thinking that perhaps the 
courts are doing a better job now. Perhaps that is an 
indication they are doing better now than they were----
    Mr. Neufeld. I don't----
    Mr. Gohmert [continuing]. When he was inappropriately 
convicted.
    Mr. Neufeld. Well, I don't think that is the answer, and 
the reason that is not the answer, sir, is because DNA is only 
available in a small minority of violent crimes. And if we 
realized that these other disciplines were being used and 
provided misleading evidence then, and those other disciplines 
may be still utilized today where there is no DNA evidence to 
correct it, then there is the very real likelihood and risk 
that other innocent people will continue to be wrongly 
convicted.
    The reason we do our work, sir, is because DNA can't solve 
all the problems. If it could, I would go home and go fishing. 
But we have all these other disciplines that are not as 
reliable or robust as DNA that are still out there, and we want 
to make them better.
    Mr. Gohmert. And I appreciate that. That answered my 
question, thank you.
    Mr. Scott. The gentleman from New York.
    Mr. Weiner. Thank you. Can I ask--I don't know who referred 
to it in their testimony--have all of these CSI shows polluted 
our debate over this to a point that it is almost 
irretrievable? I mean, they are--I mean a lot of these 
conceptions that jurors must walk in with, and even language 
like, ``match'' or ``a hit'' or--I mean, I don't know who would 
be best to answer this.
    I mean, aren't we in this circumstance that we went for 
this long period of time, we got this great new technological 
tool that everyone looks at, as you can see on this Committee, 
through their own ideological lens--some people see it as a 
tool to put away bad guys, some people see it as a tool to 
exonerate people who didn't do anything wrong.
    I think most Americans see it as both, and that is what the 
beauty of these tools, but are we at a point now that there is 
something that even a new government agency would have 
difficult handling, which is the language that we use when 
talking about it.
    Is it your suggestion, Mr. Neufeld, that there be these 
terms of art that get built into any standards that are arrived 
at, that putting aside the mathematics that you would say a 
judge would hear objection if someone used the word match, and 
they would have to say with reasonable probability to one in 
two--you know, one in a million or whatever--how do you solve 
the language problem here?
    Mr. Neufeld. Well, what the National Academy says, and I am 
not a scientist, I am not a mathematician, I am not a 
statistician. But what the scientists in the National Academy 
of Science report say is that we should probably ultimately 
eliminate terms like match, consisting with, and similar to, 
and instead have science-based testimony.
    So, in other words, if you have a database that says that a 
particular--let's say they do the research and they show that 
this particular impression made by a shoe occurs in, you know, 
one out of 80 pairs of shoes that are marketed in the United 
States--whatever it is--whatever the data is, okay.
    Then an expert can get up there, and instead of saying, 
similar or consistent with, he would say, you know, one out of 
every 80 pairs of shoes is like this one, the defendant had it 
and the perpetrator had it.
    So if you do away with all those general----
    Mr. Weiner. But isn't there an unlimited number of 
combinations and permutations of pieces of evidence? How would 
you conceivably do that? I mean, you are going to have a shoe 
match standard for Keds in the year 1972 to 1981, you know, how 
do you do that?
    Mr. Neufeld. Well, actually, I think, for instance, Mr. 
Hicks could answer that better than I could, because the FBI 
laboratory maintain databases on lots of things like that with 
fibers, you know, and----
    Mr. Weiner. And tires and things like that.
    Mr. Neufeld. And things like that, okay. But what they 
didn't do in terms of the wear of a used tire or a used shoe, 
you know, you didn't have necessarily databases on class 
characteristics when it came to wear.
    Mr. Weiner. I am sorry, go ahead.
    Mr. Neufeld. So all I am simply saying is, is that we have 
science-based testimony for DNA, and it doesn't have to be 
necessarily as definitive as DNA. I remember the old days when 
I was trying a case where if the serologist said, you know, 
your client had the same ABO and PGM type, which was good 
science, and that we would only see that particular profile in 
one in 50 people, I thought that was pretty persuasive evidence 
of guilt.
    Of course when it is now matched given the CSI world of DNA 
and one in a trillion or one in a billion, it may not seem that 
persuasive, but it was very powerful then. The point is no one 
should try and exaggerate or overstate the probative value of 
evidence.
    And I think it is a lot to ask gatekeepers to know exactly 
what is out there. It would be much better if there was some 
standard-making body which said, this is all you can say about 
the sneakers, or this is all you can say about the screwdriver, 
nothing more, okay. And these are your arrow bars, these are 
your confidence intervals, this is the chance of human error. 
You say all that. You put----
    Mr. Weiner. Well, let me just let Mr. Hicks weigh in on 
this. Let's take the case of Mr. Barnes. Let's say there was 
jeans impressions in dust. Is it reasonable, as Mr. Neufeld 
and--is it reasonable to come up with types of standards for 
something like that?
    I mean, is it reasonable to say, alright, we have got 220 
brands of jeans, 900 different combinations, permutations, and 
sizes, here is the math. Is that a reasonable thing to expect 
in advance of a jury?
    Mr. Hicks. I don't think so. I think you have already 
characterized there are certain elements of randomness there 
that may not lend themselves to those kinds of studies.
    Now, the types of reference files that Peter alluded to 
there, the shoeprint file, the tire tread file, those weren't 
used for court testimony purposes, but basically to provide 
lead information. So if you saw a certain type of image of a 
shoeprint I said it was available at a scene, you might be able 
to tell the investigators it looks like this was a 
characteristic of a Keds product produced during some certain 
time frame. You might be able to provide that lead.
    But that is a class characteristic not an individualizing 
characteristic. So the next challenge would be, of course, for 
the investigators to find a suspect that happened to have those 
kind of shoes, and then see if a direct comparison of those can 
find those wear characteristics, those things that might 
suggest that they are similar in appearance.
    Mr. Weiner. Can I just squeeze in one final question? The 
report talked about the disparities in forensic science 
capabilities from one community to another. Are there trends 
that you four have seen that leads you to believe if you are in 
a big city, you don't want to get into problems with DNA 
because the prosecutors are less--or is there a regional thing, 
you know, if you are in the West coast, you know they are much 
better at dealing with these things.
    Are there some labs that we can look at? Are there some 
systems that on their own have gotten much better that you can 
say, you know what, St. Louis is a good system. They train 
their forensic people very well. I mean, are there those types 
of things that we can learn--best practices from someone 
before--as we are starting to arrive at what the national 
standard should be?
    Or is it purely random? There are cases like Mr. Barnes, 
tragically, throughout the country, and there are cases where 
people were caught because of evidence as well. I mean, are 
there any conclusions we can draw from one community to the 
next? I know Virginia is just great, I hear. Just terrific.
    Mr. Melson. Well, Virginia is great. I used to be a state 
prosecutor there, and we had great service from Pete Marone's 
lab. I think there are some labs out there that are better than 
others. In the accreditation program when a lab has applied for 
accreditation and they are just starting, we see a tremendous 
difference between the time that they begin the process and the 
time that they are actually accredited.
    And during that process, we see that some labs are better 
funded than others. Some labs have better training programs 
than others. So it is possible to point to particular labs and 
say they seem to be exceptional labs. That doesn't mean they 
can't make a mistake from time to time, but there are 
difference in quality between laboratories and communities.
    And the issue usually is surrounding funding. How much 
money do they get to invest in the infrastructure, the capacity 
building, the education, the training, and the certification 
and retraining.
    Mr. Weiner. And have any states gotten ahead of the curve 
on this in terms of the accreditation of laboratories, 
accreditation of, or standards for, within their own state 
courts that we can look at and say, here, this is a state that 
has tried to do it better?
    Peter? Do you have some sense that there are some states 
that you have operated in that seem to be more advanced on this 
than others?
    Mr. Neufeld. Well, there are some states, for instance, 
which are trying to proactively deal with the problems of 
forensic science by having an oversight commission. For 
instance, in Texas, in the congressman's state, on the one 
hand, we have had the most exonerations through DNA in Texas, 
and it is not a reflection at all, I believe, on the criminal 
justice system in Texas.
    There have been a lot of people out there who were able to 
locate the evidence. It wasn't destroyed in the intervening 
years. Thank goodness the laboratory saved all the old samples 
from 20 years ago, and they were able to do the testing.
    But what they did do very affirmatively in Texas was they 
set up a forensic science commission, one of the first in the 
country. And, for instance, they are taking a look at arson--at 
the mechanisms that were utilized in the old days to determine 
that a fire was caused intentionally as opposed to accidental 
origin, and they are actually trying to wrestle with that.
    New York has a commission also that is trying to do some of 
that. Virginia now has an oversight commission as well. But 
that isn't enough, okay. It would be much better if there were 
a single entity nationwide that could look at this stuff, 
because there is actually no reason--there is no reason why 
someone should think that you are going to get better quality 
forensic science in Nebraska than you will in Arkansas.
    Something as important as that should be consistent 
throughout the country just as we require that the use of 
medical devices or drugs is the same throughout the country.
    Mr. Weiner. Thank you, Mr. Chairman.
    Mr. Scott. Thank you. I think we have decided that the 
judge would be inadequate as a gatekeeper to decide what kind 
of scientific evidence comes in and comes out.
    The next question, if it is not the judge, who is it? I 
have heard an accreditation standards, but would we have an 
accreditation standard for each different technique, that is 
somebody to accredit ate fingerprints, somebody to accredit 
some other technique, or would it be one agency for everything?
    Mr. Marone. Well, I think you have got a number of issues 
there. If you are looking at setting up the methodologies, Mr. 
Melson mentioned the SWGs as a starting places. These are 
scientific working groups.
    That doesn't mean that those SWGs necessarily composed all 
of forensic scientists. There can be other scientists in there. 
In fact, the committee that was also mentioned in this--has 
psychologists on it looking at biased concerns and so forth.
    And so, I think, the methodology is set up by technical 
groups that have particular interest or expertise in those 
areas, one. There are recognized international accrediting 
bodies that accredit laboratories who utilize these approved 
methods.
    You have approved certifying bodies--already recognized 
certifying bodies that are in place that set the credentials of 
the individuals. Now, it is not to say that the Federal entity 
doesn't have a role in each one of those developments, but the 
role of the Federal entity is to make sure that all these 
things are working in tandem and it--well together.
    That is where you need the oversight of, are you accredited 
by appropriate means, yes-no? Are you certified by a recognized 
body, yes-no? Are you using appropriate methods, yes-no? All 
these things coming together at the same time. Do you have 
appropriate people who have the proper graduate or 
undergraduate education, yes-no?
    And so for me, that is what I see the oversight is being 
the facilitator, if you will, of all these different functions 
that need to all come together and really be meshed together 
quite intricately.
    Mr. Scott. Just following up on that. Mr. Hicks, could you 
indicate what effect the Coverdell Forensic Science Improvement 
Program has had? Has that helped in this?
    Mr. Hicks. It has been very helpful, yes. Of course, one of 
the elements of the eligibility for funding under Coverdell 
requires that the laboratory be accredited or be working toward 
accreditation. So that, I am sure, has had a significant effect 
in moving laboratories toward those standards.
    And in New York state, it has been very helpful in that 
regard in helping laboratories to update their systems, and to 
be sure that they are complying with the standards.
    If I may just go back to the scientific working group issue 
too. I wonder if it is almost as the DNA experience, of course, 
as that technology was evolving and emerging, there was a high 
level recognition amongst lots of people about the potential of 
that technology.
    The scientific working group was established to help draw 
that together and do it in a coordinated way that would meet 
the needs of the criminal justice system, and following that, 
we saw scientific working groups emerge in other disciplines as 
well.
    But just as with DNA where once we got started, there were 
questions of backlogs and difficulty keeping up with the work, 
and the Federal Government came in and supported that activity, 
and it has helped to address that to some extent, that is sort 
of where we are, it seems to me, with respect to some of these 
other disciplines.
    Perhaps now that the elements are in place to sort of work 
on this, it just needs some funding support to help drive the 
system. It needs some centralized coordination to help guide 
the system and address the kind of questions that were raised 
in the Academy report.
    Mr. Scott. One of the worst pieces of evidence and one of 
the most frequently cause of mistakes is eyewitness 
identification. How would we let eyewitness identifications 
come in?
    Mr. Neufeld. The way we have let eyewitness identifications 
come in for the last 25 years, after a series of Supreme Court 
decisions such as Manson v. Brathwaite and Neil v. Biggers, is 
we look at five factors of reliability.
    The problem is that several of those factors, again, don't 
have a scientific basis for them. Although they were 
articulated by the Supreme Court 25 or 30 years ago, there is a 
whole new body of social scientific research done in 
laboratories coupled with the compelling data of the Innocence 
Project where 75 or 80 percent of our cases involve 
misidentifications that would warrant a second look, if you 
will, at what the court should utilize before an identification 
is deemed sufficiently reliable to be heard by the jury.
    One other thing, Mr. Chairman, which is that you were 
asking about accreditation. There is a fundamental difference 
between accrediting a laboratory and accrediting an actual 
methodology. The ASPA lab system accredits laboratories.
    We talked about certification. We certify individual 
practitioners. But before you get to accrediting and 
certifying, you got to be darn sure that the actual technology 
that these people and these laboratories are going to use has 
been sufficiently validated. And, you know, folks said that 
well, we have SWGs to do that. SWGs, in large part, are user 
groups. They are some of the better people at better 
laboratories, but they are user groups.
    We would never ever allow user groups such as 
pharmaceutical companies or doctors to be the people who sit at 
the FDA to decide whether a device can be utilized or not. We 
use an independent group, and it has always been a tradition in 
important matters of health and safety to use independent 
people as opposed to users to decide whether or not something 
has been sufficiently validated or not.
    And that is one of the reasons why the NAC called for a 
National Institute of Forensic Science.
    Mr. Scott. Thank you.
    Mr. Marone? We were talking about backlogs and money. I 
don't think I heard a number. How much money do we need to 
eliminate these backlogs and improve the technology? In just 
order of magnitude, what are we talking about?
    Mr. Marone. When we begin to look at the complexity of all 
the issues that we are talking about, there are some things you 
can put a dollar figure on easily by estimating.
    One of those is not how many people we need or how much 
equipment we need, because we still don't have the numbers on 
that. But let me give you a for instance. One of the report's 
recommendations said that we need to look at a bigger pool of 
employees. We need better qualified people.
    How do you do that? You get the kids going to school 
interested in that. I am old enough--some of the folks in the 
room remember LEAA. I went to graduate school under LEAA. I 
worked 4 years. My loans were forgiven in graduate school. I 
worked in a lab for 4 years, boom. We need to do that again.
    What would that cost? FEPAC accredited institution--these 
are accredited institutions in forensic programs. There is only 
20 some out there. I don't have a handle on how many students, 
just a couple hundred students. Giving them loans for $30,000 a 
year, is $5 million. That is what it costs.
    To do that for undergraduate for all the existing programs 
that are there is $55 million. I mean, that is easy to estimate 
what you need. Now, that may swell when, you know, more 
institutions see that, but what it does is it makes those 
people competitive with the kid who gets a free ride to go get 
a Ph.D. in chemistry at Duke.
    So you can get the better qualified--the sharper kids into 
the system. When we are looking at accreditation, accreditation 
roughly averages about $10,000 per site--excuse me, per site 
visit.
    If we are looking at 11,000 entities out there that need to 
be accredited, 11,000 times $10,000, $110 million. So those are 
the ones that I can put easy numbers on to begin with. What 
does it cost to train the people to become accredited? Somebody 
is going to take classes in a year or two to work for that 
particular agency to be accredited.
    Training for that person alone is $5,000. If there is one 
in each one of these institutions, it is 11,000 times $5,000. 
So those are the ones that are easy to figure. The ones that 
are impossible to figure right now is, we don't even know if 
11,000 is a good number, because we can't ascertain how many of 
these ID units or crime scene units are out there.
    I do in Virginia, because we did a survey. There are about 
20 or 30 that do it full time, crime scene, and another 15 or 
so that have ID units--fingerprint units. So we need to do that 
nationwide to figure out what we are looking at and what kind 
of facilities they are in, what kind of equipment needs it is a 
very significant needs assessment.
    The military would call it, you know, their requirements 
document, if you will. What do we need before we move on? The 
number is going to be staggering.
    Mr. Scott. Thank you.
    And final question, Mr. Melson, in your testimony, you 
ended by saying that you would hope that somebody would ask you 
about the two recommendations you were not supporting. Did you 
want to comment on that?
    Mr. Melson. Yes, sir. On those two recommendations, which 
the department feels needs further review, the first is whether 
or not there ought to be an independent agency, and I think 
that requires more review to see whether or not we could spend 
our money more wisely and our time more wisely than creating a 
new bureaucracy.
    Both here at home and abroad, we have seen how difficult 
that is, how time consuming it is. The needs of forensic 
science are much more urgent than we can wait to have a new 
entity created.
    With respect to taking the law enforcement laboratory, or 
the laboratories out of law enforcement, that needs further 
review too. I mean, just to give you an example, and going off 
of Mr. Marone's comment about the 11,000 small forensic science 
service providers in police stations and sheriff's units and so 
forth, to get them out of there into their own separate 
laboratory is going to be immensely costly.
    It is going to be very disruptive. You are going to get a 
lot of pushback, I would think, from the chiefs and the police 
officers and so forth. The good news is that when you are 
accredited under the ISO standards, like many of our 
laboratories are accredited, there are required management 
standards in there that require autonomy from the parent 
organization so that, number one, you can maintain your 
scientific integrity and independence, and two, there is 
independence of some nature with regard to the funding stream 
for those laboratories.
    So there is something in place there that meets the goals, 
I think, of the NAS report without stripping out these 
laboratories from law enforcement at an immense cost and 
disruption.
    Mr. Scott. Thank you.
    Mr. Gohmert?
    Mr. Gohmert. Just an observation with the greatest of 
respect, the Chairman had indicated that it seems that we have 
established the judge is inadequate as a gatekeeper. And I am 
still not sure that is the case. It just seems that----
    Mr. Scott. I think the judge, in fact, will be the 
gatekeeper.
    Mr. Gohmert. Okay.
    Mr. Scott. There is no question about that.
    Mr. Gohmert. Okay.
    Mr. Scott. I thank the judge for his comment.
    Mr. Gohmert. They may need greater training and 
understanding in order----
    Mr. Scott. And also the scientific backup. If he is going 
to determine it has to be some scientific peer review to 
ascertain whether this is junk science or regular science.
    Mr. Gohmert. Yes.
    Mr. Scott. And then what happens after you find out that it 
doesn't particularly work? 60 Minutes ran a report on 
ballistics, suggesting that the protocol for ballistics 
evidence wasn't up to par.
    Mr. Hicks? Do you want to comment on where we are on that?
    Mr. Hicks. I am not sure what you are referring to.
    Mr. Scott. 60 Minutes did a----
    Mr. Hicks. It was about bullet lead identification.
    Mr. Scott. Tracing ammunition on----
    Mr. Hicks. On compositional analysis, bullet lead 
identification, I think. Is that correct?
    Mr. Scott. Yes.
    Mr. Hicks. Right. Of course I am not really prepared to 
comment very much on that other than what was in the report. 
But I think essentially for some period of time, the FBI would 
look at the elements within a particular batch of lead, for 
example, look for the signature elements, if you will, that 
would be present there.
    And if they found consistency between one bullet lead and 
another bullet lead, they would draw the inference that they 
could have come from the same batch. And I think there have 
been studies shown that suggest that maybe that is the 
variability and the manufacturing process and everything else, 
it may not support that conclusion.
    And so I think they made their decision to discontinue that 
type of service.
    Mr. Scott. Mr. Melson? Did you want to comment?
    Mr. Melson. Well, I was just going to say that I don't 
think they found that the science was bad. The science was 
good, because it is an elemental analysis. What they found was 
that the conclusions that were drawn from that analysis were 
not necessarily accurate.
    So it kind of talks to what Mr. Neufeld is saying is that 
we have to understand what it means to be consistent within 
other things. We have to determine that terminology and make 
terminology understandable to the lay person.
    Mr. Neufeld. Just to clarify that. It is part of the 
science to communicate the probative value of the experiment 
that you did. It is not a separate matter. Scientists would say 
that you need a scientific basis in statistics and 
probabilities to communicate the value of the experiment or the 
analysis.
    So it is all part of the same thing. What is interesting 
about the CBLA matter is that the FBI continued testifying in 
many, many cases over 25 years that they could say that a 
particular bullet found in a body or at a crime scene came from 
a particular box of cartridges found in the home of a 
defendant.
    And they didn't on their own realize that they had never 
validated sufficiently to make that claim. They never looked at 
that, and they allowed their examiners to so testify. After the 
NAS did its study saying, there is not enough science there to 
permit that kind of conclusion, subsequent to that, the FBI 
finally started writing letters to prosecutors around the 
country saying, you know what, when our expert testified in 
your case back in 1995 or 2001, okay, his conclusion was not 
sufficiently based in science.
    So it is all about science as well when you give these 
probabilistic estimates, and why you need a separate 
independent entity to do this is because--and bullet lead is a 
perfect example of it--the laboratory didn't come to the 
conclusion on its own. It took the National Academy of Science 
to do it for them.
    Mr. Scott. Thank you.
    Mr. Gohmert?
    Mr. Gohmert. The other thing I was going to mention 
though--the study recommends that Congress provide funds with 
strings attached to state and local forensic programs in order 
to gain compliance with the best practices and standards. 
Because what this comes back to--and it has been alluded to 
already, but we are the Federal Government, and most of the 
crimes we are talking about are state crimes.
    And although some would like to obliterate the state lines 
and just say, we are taking charge of everything here, it is a 
matter of state, and some states provide better justice than 
others, and I would hope that we could bring states along as 
effectively as possible.
    But I applaud those who do hold their prosecutions to the 
proper standards, because I don't want the public that may be 
watching to get the wrong impression that people aren't trying 
to do a proper job before they allow people to be convicted.
    I think most people are, but I thank you for the time.
    Mr. Scott. Gentleman from New York? Any final comments?
    Well, thank you. I would like to thank our witnesses for 
their testimony today. Members may have additional written 
questions, which we will forward to you and ask you to answer 
quite as promptly as you can in order that you response can be 
made part of the record.
    Without objection, the hearing record will remain open for 
1 week for the submission of additional materials.
    I, again, want to thank all of the witnesses. This is very 
helpful testimony, and we are going to follow through on what 
we have heard. Thank you very much.
    Without objection, the Subcommittee stands adjourned.
    [Whereupon, at 5:03 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
    Representative in Congress from the State of Texas, and Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security
    Thank you, Mr. Chairman. I would like to thank the witnesses here 
this afternoon, and everyone at the National Research Council who 
worked so hard to bring us this report.
    In 2005, the Congress asked the National Academy of Sciences to 
conduct a study on forensic science.
    They were told to assess the present and future resource needs of 
the forensic science community; make recommendations for maximizing the 
use of forensic technologies and techniques; identify potential 
scientific advances in the field; disseminate the best practices and 
guidelines concerning the collection and analysis of forensic evidence; 
examine the role of the forensic community in the homeland security 
mission; as well as any other additional issues concerning forensics 
determined by the committee.
    We are here today to look at the findings of this report, and to 
find ways to improve the forensic skills across the country, so that 
they may better solve crimes, investigate deaths, and protect the 
public.
    There are many examples of incidents where the men and women 
responsible for our law enforcement would have been better served by 
improved forensics. In my home city of Houston, Mr. Gary Allen Richard 
knows this all too well.
    He was put on trial in 1987 for rape and robbery. Blood-typing 
evidence from the Houston Police Department crime lab led to a 
conviction and to what would be a 22 year prison sentence. Less than 
three weeks ago, new tests were conducted, and now both Mr. Richard's 
attorney and prosecutors say that the jury was not informed of all the 
necessary facts.
    Just as DNA forensics let an innocent man go free, so can it help 
criminals who had thought that the past years had allowed them to 
escape the consequences of their actions. Houston saw this when, in 
2003, a leader in private forensic DNA testing, aided the local police 
in analyzing biological evidence from a 1992 murder. This cooperation 
resulted in the identification and arrest of Anthony Allen Shore. He 
confessed, and is now known to be responsible for the sexual assault 
and strangulation deaths of four Houston-area women dating back to 
1986. The city has advancements in forensics to thank for this recent 
justice.
    Indeed, I have offered amendments on the safekeeping and collection 
of DNA samples in various crime bills. I believe that improvements in 
forensics science will help criminal justice and criminal law 
enforcement. In the past, Harris County has had problems with retaining 
DNA and has had difficulty maintaining the integrity of samples. 
Samples were either lost or polluted. I am hopeful that as technology 
becomes more advanced that forensics science will also improve. As 
members of Congress, we must work to ensure that forensic science is 
advanced and perfected to ensure the proper conviction of defendants 
that have committed wrongs against society.
    That is why I look forward to speaking with the witnesses here 
today about the findings of this report. Congress owes to the victims 
of forensics failures past to better the science that is now so central 
to our law enforcement.
    Thank you, Mr. Chairman, and I yield back the balance of my time.

                                

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    The National Research Council report entitled Strengthening 
Forensic Science in the Unites States: A Path Forward offers many 
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                          committee membership
    Drawing on a diverse membership of more than 825 members, ASTM 
Committee E30 is a leader in the development of consensus standards for 
forensic science applications. The committee includes technical experts 
from government agencies including the Department of Justice (National 
Institute of Justice); Federal Bureau of Investigation (FBI), Secret 
Service, Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF); 
Internal Revenue Service (IRS); City, County, and State police 
departments and crime labs, District Attorneys and Attorney General 
Offices, National Institute of Standards and Technology (NIST); and the 
Department of Defense. Participation from the government along with 
other stakeholder such as forensic science professional organizations 
and academics makes ASTM an ideal environment for the development of 
standards that advance science and technology in the forensic field.
                       forensic science standards
    Existing ASTM forensic science standards include:

          ASTM E1732 Standard Terminology Relating to Forensic 
        Science

          ASTM E620 Standard Practice for Reporting Opinions of 
        Technical Experts

          ASTM E1658-08 Standard Terminology for Expressing 
        Conclusions of Forensic Document Examiners

          ASTM E678 Standard Practice for Evaluation of 
        Scientific or Technical Data

          ASTM E1492 Standard Practice for Receiving, 
        Documenting, Storing, and Retrieving Evidence in a Forensic 
        Science Laboratory

          ASTM E1843 Standard Guide for Sexual Assault 
        Investigation, Examination, and Evidence Collection

          ASTM E2329 Standard Practice for Identification of 
        Seized Drugs

    In addition to the standards that are already developed, E30 is in 
the process of exploring standards related to Practice for Computer 
Forensics, Education and Training in Digital Forensics, Continuing 
Education and Professional Development of Forensic Document Examiners, 
the Restoration and Preservation of Charred Documents just to name a 
few.
             the u.s. voluntary consensus standards system
    Another recommendation by the National Research Council report 
encourages the National Institute of Forensic Science (NIFS) to work 
with the National Institute of Standards and Technology (NIST) on tools 
for advancing the forensic science discipline as it relates to testing, 
reliability and validation. NIST is a major participant in ASTM's E30 
work, but also participates in the standards work of other standards 
development organizations, allowing the agency to be keenly aware of 
the standards community.
    The National Technology Transfer and Advancement Act of 1995 
(NTTAA) requires federal agencies to work with private sector to 
create, use, and adopt voluntary consensus standards in lieu of 
creating their own and NIST is the coordinating agency for this law. 
Adherence to this law is perhaps one reason why ASTM E30 membership is 
comprised of members of various law enforcement agencies at the local, 
state, and national level. Thus, the NRC's recommendation is correct in 
asking for the appropriations of funds to ensure that NIST can properly 
carry out its duties to promote a better understanding of the existing 
system. NIJ and FBI also play an important role in this area by 
providing scientific knowledge and tools that can be transferred to 
underpin the development of standards and test methodologies through 
ASTM E30. ASTM's standards development process is accredited by the 
American National Standards Institute and adheres to procedures for due 
process, openness, balance and transparency.
           astm standards and the code of federal regulations
    ASTM has a long history of working in partnership with Federal 
agencies to develop standards that meet evolving regulatory and 
procurement needs. According to the National Institute of Standards and 
Technology (NIST) Standards Incorporated by Reference Database, there 
are 2,500 standards from ASTM International incorporated by reference 
in the US Code of Federal Regulations. An additional 500 ASTM standards 
have been identified by NIST as federal procurement standards 
incorporated by reference in various Federal policies. Accordingly, 
ASTM International is the single most Federally-referenced standards 
developing organization in the US.
                               conclusion
    In summary, ASTM International has demonstrated success in working 
cooperatively with all interested stakeholders to craft voluntary 
consensus standards that meet the emerging needs of forensic science 
disciplines. Enhancing public-private cooperation and Federal 
participation in ASTM Committee E30 on Forensic Sciences will help to 
develop standards that advance science and technology in the forensic 
science field and improve the overall accuracy, reliability, and 
validity of forensic evidence.
    ASTM International welcomes the opportunity to transmit these 
comments. For more information about ASTM Committee E30, please visit 
http://www.astm.org or contact Tim Brooke at 610-832-9729 or 
[email protected].






                                 
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