    [Senate Hearing 111-224]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 111-224

       THE NEED TO STRENGTHEN FORENSIC SCIENCE IN THE UNITED STATES: THE
             NATIONAL ACADEMY OF SCIENCES' REPORT ON A PATH FORWARD

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 MARCH 18, 2009

                                   __________

                              Serial No. J-111-13

                                   __________

             Printed for the use of the Committee on the Judiciary

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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    HERB KOHL, Wisconsin                 ARLEN SPECTER, Pennsylvania
    DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
    RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
    CHARLES E. SCHUMER, New York         JON KYL, Arizona
    RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
    BENJAMIN L. CARDIN, Maryland         LINDSEY O. GRAHAM, South Carolina
    SHELDON WHITEHOUSE, Rhode Island     JOHN CORNYN, Texas
    RON WYDEN, Oregon                    TOM COBURN, Oklahoma
    AMY KLOBUCHAR, Minnesota
    EDWARD E. KAUFMAN, Delaware
                Bruce A. Cohen, Chief Counsel and Staff Director
                  Nicholas A. Rossi, Republican Chief Counsel

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
        prepared statement...........................................    49

                                   WITNESSES

    Edwards, Harry T., Senior Circuit Judge and Chief Judge Emeritus,
      U.S. Court of Appeals for the District of Columbia Circuit, and
      Co-Chair, Committee on Identifying the Needs of the Forensic
      Science Community, National Research Council of the National
      Academies, Washington, D.C.....................................     3

                             QUESTIONS AND ANSWERS

    Responses of Harry T. Edwards to questions submitted by Senator
      Specter........................................................    13

                           SUBMISSIONS FOR THE RECORD

    American Society of Crime Laboratory Directors, Laboratory
      Accreditation Board, Garner, North Carolina:
        Jami St Clair, Chair, Lab Board, March 16, 2009, letter......    22
        Dean Gialamas, President and Beth Greene, President-Elect,
          March 17, 2009, letter.....................................    24
        Dean Gialamas, President and Beth Greene, President-Elect,
          December 2008, statement...................................    27
    Edwards, Harry T., Senior Circuit Judge and Chief Judge Emeritus,
      U.S. Court of Appeals for the District of Columbia Circuit, and
      Co-Chair, Committee on Identifying the Needs of the Forensic
      Science Community, National Research Council of the National
      Academies, Washington, D.C., statement.........................    30
    International Association for Identification, Robert J. Garret,
      Metuchen, New Jersey, March 18, 2009, letter...................    42
    National District Attorneys Association, Joseph I. Cassilly,
      President, Alexandria, Virginia, letter........................    51
    Neufeld, Peter, Co-Director, Innocence Project, New York, New
      York, statement................................................    53

       THE NEED TO STRENGTHEN FORENSIC SCIENCE IN THE UNITED STATES: THE
             NATIONAL ACADEMY OF SCIENCES' REPORT ON A PATH FORWARD

                                  ----------

                           WEDNESDAY, MARCH 18, 2009

                                           U.S. Senate,
                                    Committee on the Judiciary,
                                                         Washington, DC
        The Committee met, pursuant to notice, at 10:02 a.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
    Leahy, Chairman of the Committee, presiding.
        Present: Senators Leahy and Durbin.

    OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
                          THE STATE OF VERMONT

        Chairman Leahy. Good morning. Today, we are going to
    examine the pressing need to strengthen forensic science in
    America. Just a few weeks ago, the National Academy of Sciences
    completed one of the most thorough reviews of forensic science
    ever undertaken in the United States. That is the good news.
    The bad news is it demonstrates that we have a problem, and the
    problems can go to the heart of our whole criminal justice
    system.
        I was just speaking before we started with Judge Edwards,
    who is going to be our witness, that unlike the image that so
    many of us see on television shows like ``CSI,'' forensic
    scientists too rarely get to review crime scene evidence in
    sleek, ultra-modern, state-of-the-art laboratories. I have been
    to enough crime scenes to know that is not the usual way. And
    though it is an excellent program, the effect of it may be
    suggesting that forensic sciences are well funded and that
    their results are always infallible. As it turns out, the
    National Academy of Sciences says that is not the reality. I
    will give a couple of examples.
        Just last fall, the city of Detroit had to shut down its
    forensic laboratory after an independent audit found that the
    lab's ballistics reports were wrong or false in one out of
    every 10 cases. The lab had not kept records of tests
    performed, nor calibrated instruments properly, in many
    additional cases. Similarly, in 2003, the city of Houston had
    to close its DNA and toxicology testing facilities after an
    audit found untrained staff, shoddy methodology, and potential
    contamination. I mention that because those findings resulted
    in a review of more than 1,300 criminal cases and required
    retesting in 30 percent of these cases. In both of the
    instances, outside reviewers found that labs lacked adequate
    staff, training, or equipment to do the job right.
        It is not limited to just a few underfunded labs with
    overworked staffs. According to the latest available statistics
    from the Justice Department, in 2005, the backlog of forensic
    exams was more than 350,000 nationwide, up 24 percent from just
    3 years ago. I wonder how many rape kits, for example, are
    still sitting on shelves that have been unexamined with the
    perpetrators at large and the victim has not seen justice? One
    out of every five labs does not meet the standards for
    accreditation set by the National Academy of Crime Lab
    Directors. The National Academy of Sciences says it is obvious
    in this case, you cannot let this continue.
        It is critically important to our criminal justice system
    that we have accurate, timely forensic science so we can find
    and punish the guilty, but also exonerate the innocent. It
    helps no one if you imprison the wrong person. If you have a
    serial killer or a serial rapist, and you say, ``Great, we got
    the person, we have locked him up,'' and you have got the wrong
    person, you have created two problems--two major problems: one,
    of course, is locking up an innocent person; but, second, you
    have not made society any safer because the perpetrator is
    still out there. So forensic science has become critically
    important. It is also critically important in supporting
    homeland security and counterterrorism missions. So we cannot
    wait for the next scandal to break or for the backlogs to grow
    worse. We have to pay attention now, and I want to work with
    Senators Specter and Durbin and other interested members of the
    Committee on this.
        This morning, we are fortunate. We have Judge Edwards of
    the D.C. Circuit Court of Appeals at this hearing. Judge
    Edwards was the co-chair of the distinguished Committee of
    scientific and legal experts who worked so hard over the past
    2\1/2\ years to complete this report, as requested by Congress.
    And, Judge, I want to publicly thank you and the other members
    of your Committee for doing this. It is not as though you did
    not have enough things to do to occupy your time, but I am glad
    you have taken it on. With your own credibility and your own
    well-deserved reputation for fairness, I knew that it would
    have a very, very good look and an honest look at the problem.
        The report is detailed and it is far-reaching, and I think
    it can provide a foundation for building broad consensus for
    change. It calls for mandating national standards, enforcing
    ``best practices.'' It points to a need for standards for the
    certification of individual examiners, the accreditation of
    their laboratories, more money in research.
        But even in traditional methods we see problems.
    Fingerprint comparisons can rely heavily on interpretation. We
    all remember the Brandon Mayfield case from a few years ago,
    when the FBI had to recant its initial findings that Mayfield's
    fingerprint matched a print found in the Madrid terrorist
    bombings. An FBI examiner submitted an affidavit claiming there
    was a ``100 percent'' match when, in fact, the FBI later
    admitted the comparison was of no value for identification
    purposes. Other than the fact that you are going after the
    wrong person and the right person is off free, also, as I
    recall, the U.S. Government paid a very, very substantial claim
    in that case.
        We know how faulty forensic science has gotten into the
    courts as evidence. We know this from our own experience and
    this Committee's recent efforts to push the FBI to identify and
    correct the thousands of criminal cases where bullet lead
    analysis was improperly used.
        The report emphasizes the need to preserve evidence
    properly at all crime scenes and even after court proceedings.
    I know the importance of this firsthand from the experience of
    my friend Kirk Bloodsworth, an innocent man who was twice
    convicted of murder and rape, served 8 years in prison,
    including two on death row, and then they finally tested the
    DNA and found, oops, we got the wrong guy. And guess what? They
    found who the right guy was. And he was exonerated. But 8 years
    in prison, 2 years on death row. So we worked hard to pass the
    Kirk Bloodsworth Post-Conviction DNA program to encourage the
    States to retain test evidence from crime scenes. But that is
    meaningless if we do not preserve it.
        I will put my whole statement in the record because,
    frankly, I would rather hear Judge Edwards.
        [The prepared statement of Chairman Leahy appears as a
    submission for the record.]
        Chairman Leahy. Please go ahead, sir.

     STATEMENT OF HONORABLE HARRY T. EDWARDS, SENIOR CIRCUIT JUDGE
     AND CHIEF JUDGE EMERITUS, UNITED STATES COURT OF APPEALS FOR
     THE DISTRICT OF COLUMBIA CIRCUIT, AND CO-CHAIR, COMMITTEE ON
       IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCE COMMUNITY,
         NATIONAL RESEARCH COUNCIL OF THE NATIONAL ACADEMIES,
                             WASHINGTON, DC

        Judge Edwards. Chairman Leahy, and other members of the
    Committee to whom I have submitted material, thank you for
    inviting me to appear today. As you have indicated, my name is
    Harry T. Edwards. I am a circuit judge on the U.S. Court of
    Appeals for the D.C. Circuit, where I have served for 29 years.
    And I am appearing today in my capacity as Co-Chair of the
    Committee on Identifying the Needs of the Forensic Science
    Community at the National Academy of Sciences. The Committee,
    as you have indicated, Mr. Chairman, recently issued a report,
    ``Strengthening Forensic Science in the United States: A Path
    Forward.'' In my very brief prepared remarks, I will highlight
    some of the salient points of the report.
        The impetus for our Committee's report came in 2005, when
    Congress, at the urging of the Consortium of Forensic Science
    Organizations, representing professionals in the forensic
    science community, passed legislation directing the National
    Academy of Sciences to create an independent Committee to study
    the forensic science community. The Consortium's call for help
    was prophetic. After more than 2 years of study, our Committee
    concluded that the forensic science community is plagued by
    serious problems that cannot be cured without significant
    congressional action.
        I started this project with no preconceived views about the
    forensic science community. Rather, I simply assumed, as I
    suspect many of my judicial colleagues do, that the forensic
    science disciplines typically are well grounded in scientific
    methodology and that crime laboratories and forensic science
    practitioners follow proven practices that ensure the validity
    and reliability of forensic evidence offered in court. I was
    surprisingly mistaken in what I assumed. The truth of the
    matter is that the manner in which forensic evidence is
    presented on television--as invariably valid and reliable--does
    not correspond with reality.
        There are scores of talented and dedicated people in the
    forensic science community, and the work that they perform is
    very important. However, the quality of practice in forensic
    science disciplines varies greatly, and it often suffers
    greatly because of: the paucity of scientific research to
    confirm the validity and reliability of forensic disciplines
    and establish quantifiable measures of uncertainty in the
    conclusions of forensic analyses; the paucity of research
    programs on human observer bias and sources of human error in
    forensic examinations; the absence of scientific and applied
    research focused on new technology and innovation; the lack of
    autonomy of forensic laboratories; a gross shortage of adequate
    training and continuing education of practitioners; the absence
    of rigorous, mandatory certification requirements for
    practitioners; the absence of uniform, mandatory accreditation
    programs for laboratories; the failure to adhere to robust
    performance standards; the failure of forensic experts to use
    standard terminology in reporting on and testifying about the
    results of forensic science investigations; and the lack of
    effective oversight.
        In my written statement to the Judiciary Committee, I cited
    a few examples of the problems uncovered by our Committee,
    underscoring the needs of the forensic science community. The
    examples included, as the Chairman has already recounted some
    of them: court opinions reporting that an FBI fingerprint
    expert had ``testified that the error rate for fingerprint
    comparison is essentially zero,'' a claim that is
    scientifically implausible; reports of crime laboratories
    having been shut down and officials fired due to unqualified
    practitioners, lax standards that generated questionable or
    fraudulent evidence, and the absence of quality control
    measures to detect questionable evidence; evidence raising
    doubts about the efficacy of technical protocols adopted by
    Scientific Working Groups and serious concerns about the extent
    to which these protocols are actually followed by forensic
    practitioners; and the absence of qualified medical examiners
    and pathologists in States that still use coroners. These and
    other problems cited in the report highlight glaring weaknesses
    in the forensic science community.
        The principal point of our report is simple: There is an
    obvious and a compelling need to overhaul the existing system
    of forensic science in the United States. Forensic science
    experts and evidence are routinely used in the service of our
    criminal and civil justice systems. So it matters a great deal
    whether an expert is qualified to testify about forensic
    evidence and whether the evidence is sufficiently reliable to
    merit a fact finder's reliance on the truth that it purports to
    support. Unfortunately, the adversarial approach to the
    submission of evidence in court is not well suited to the task
    of finding ``scientific truth.'' Judicial review, alone, will
    not cure the ills of the forensic science community.
        And simply increasing the number of staff within existing
    crime laboratories and medical examiners' offices will not
    solve the problems of the forensic science community. What is
    needed is interdisciplinary, peer-reviewed, scientific research
    to determine the validity and reliability of existing
    disciplines, and to achieve technological advancements. We also
    need to upgrade organizational structures, establish better
    education and training programs, adopt uniform and enforceable
    practices, require mandatory certification and accreditation
    programs, and ensure operational autonomy for forensic
    laboratories. This overhaul of the system is essential if we
    expect forensic practitioners to serve the goals of justice.
        The Committee found that, not only does the forensic
    science community lack adequate resources, talent, and
    mandatory standards; it also lacks the necessary governance
    structure to address its current weaknesses and to adopt and
    promote an aggressive, long-term agenda. Truly meaningful
    advances will not come without significant concomitant
    leadership from the Federal Government. With these
    considerations in mind, the Committee's principal
    recommendation is that Congress should authorize and fund the
    creation of an independent Federal entity, the National
    Institute of Forensic Science, or NIFS. This new entity should
    be staffed by professionals who have expertise and experience
    in scientific research and education, physical and life
    sciences, forensic sciences, forensic pathology, engineering,
    information technology, standards, testing and evaluation, law,
    and public policy. And it should be headed by professionals who
    understand and are experienced in Federal oversight, regulatory
    regimes, and Federal-State relations. We believe that an entity
    like NIFS will serve our country well, as a new, strong, and
    independent entity, with the authority and resources to
    implement a fresh agenda designed to address the problems found
    by the Committee.
        Mr. Chairman, I have submitted a more complete written
    statement to the Committee for your review; however, I am happy
    to answer any questions that you may have at this time.
        [The prepared statement of Judge Edwards appears as a
    submissions for the record.]
        Chairman Leahy. Thank you very much, Judge, and obviously
    any extra time you need, feel free.
        I read your report, and it is rather chilling. I hope that
    prosecutors and defense attorneys around the country are
    reading it and raising questions.
        One of the most glaring examples is the lack of national
    standards in death investigations. Back in 1928--even though I
    have been here a long time, I was not here then--the National
    Academy of Sciences called for the coroner system in this
    country to be abolished. Coroners were to be replaced by
    qualified medical examiners, and my little State of Vermont
    follows that. Even back in my days as a prosecutor, we did not
    have a coroner; we had a medical examiner. It had to be a
    physician, had to be trained in this area. We had what we
    called ``untimely deaths,'' a murder or suicide, anything where
    there was any question about it. But in a lot of States, they
    do not have the expertise or the training. They are simply
    elected officials with little or no medical training.
    Apparently, a third of all the States have such a coroner
    system, more than 1,500 of these officers around the country.
        Your Committee concluded it should be abolished, much like
    the National Academy of Science report in 1928.
        Judge Edwards. Right.
        Chairman Leahy. Why hasn't it been corrected? I was amazed
    to read that because my experience had been with the Vermont
    system. We are the second smallest State in the Union, and we
    made a determination 40 years ago when I was a prosecutor,
    which had been in place for years before then. If a little tiny
    State like ours could do it, why don't other States do that?
        Judge Edwards. Political inertia, possibly. I am not sure.
    These systems, some of them may be even embedded in State
    constitutional provisions which make it hard to make the
    change. Nonetheless, it is a good example of why we think
    change is likely to happen if we have a push from the Federal
    Government; that is, where standards are promulgated at the
    Federal level and are announced for the country to look to and
    to follow.
        Chairman Leahy. Well, let me ask you about that. Suppose
    you had a degree in forensic science, and I have to assume this
    goes everywhere from correspondence courses to courses at some
    of our finest universities where it really means something.
    Simply saying you have a degree in forensic science, does that
    mean you really know how to work your way around a forensic
    lab?
        Judge Edwards. No. No, it does not. The less sexy part of
    the report has to do with the need for scientific research and
    better educational programs. But it is a critical need. We have
    to build it up from the bottom; that is, the educational
    foundation and the scientific research have to be established.
        The universities are not excited about doing work in
    forensic science. If we can get the universities interested in
    interdisciplinary, multidisciplinary work, that is, if there
    are incentive funds that we can find to give to the
    universities to do this research--it has not been done. I mean,
    that is the problem with most of the disciplines where you are
    talking about subjective examinations as opposed to DNA and
    drug analysis, which are on much more secure footing. We just
    do not have the research, and we do not have the educational
    programs.
        When we looked, as best I recall, we found that there was
    no Ph.D. program strictly in forensic science. Well, that is
    fairly appalling given what we expect of the forensic science
    community.
        And so the educational programs are not what they should
    be. There are some decent programs, but not nearly enough to
    serve the needs of the community.
        Chairman Leahy. I would think just to say from a law
    enforcement point of view, I would think they would want it,
    because if you flip to the other side for the defense
    attorneys, I mean, I would think this was one of the areas I
    would move to attack, that the State's witness is not
    qualified, does not have--you know, fill in the blank. I am not
    asking you to prejudge a case that might be coming before the
    Court of Appeals. But if you were a defense attorney in one of
    those areas, isn't that one of the things you would think of
    attacking?
        Judge Edwards. Yes, but I think it is going to be easier
    for these questions to be raised and for the problems with
    forensic science to be exposed if we move to systems that
    include things like mandatory certification and mandatory
    accreditation, because then judges are going to be better able
    to determine who is and who is not qualifiable as an expert.
        There are a lot of people testifying now who I think bring
    dubious credentials to the courtroom, and it is very hard for
    judges to figure that out. If we had a national system, a
    nationally approved system of certification, and attorneys and
    judges could now ask the questions such as, are you certified,
    and if so, where, and is it a program that we understand and
    recognize, that will begin to effect some change.
        Chairman Leahy. But, Judge, there are areas--not in this
    area, but there are certain things in courtrooms that you ask
    for your certification, whether you are an accountant, whether
    you are a psychiatrist, a brain surgeon or whatever else. You
    have to show your credentials. They have to fit a certain
    standard that is accepted, whether it is in Vermont or Oklahoma
    or California or Illinois or anywhere else.
        Judge Edwards. We have not asked very much, so under the
    Federal Rules of Evidence, what has happened is the way Rule
    702 is written and has been applied, experience counts, and the
    judge can credit someone as an expert based on alleged skill
    and experience, and so that person may not be certified
    pursuant to any useful standards, but will attest to the fact
    he or she has been doing this a long time.
        Well, the Committee's is that qualifying experts in this
    way does not give good assurance that the person understands
    the limits of the forensic discipline. If an examiner is
    certified under a good, mandatory certification program, this
    would tell us much more than a person merely saying, ``I have
    been an examiner for a lot of years.''
        Chairman Leahy. I am 100-percent certain that this
    fingerprint is the one except, Oops, no, found out it was not.
        Judge Edwards. It is not a scientific notion. There is no
    such concept as a ``zero error rate'' in good scientific
    methodology.
        Chairman Leahy. Senator Durbin.
        Senator Durbin. Judge Edwards, thank you very much.
        Chairman Leahy. Incidentally, I want to thank Senator
    Durbin for the hearing he held yesterday on Mexican drug
    cartels. This is something that should frighten every single
    person in this country, so thank you very much, Senator, for
    doing that.
        Senator Durbin. Well, I am glad to do it.
        Judge Edwards. Thank you, Senator.
        Senator Durbin. We had good participation, and I would say
    the Attorney General of Arizona has said this is the new crime
    syndicate in America. You know, we have some vision of what
    organized crime is all about. It is all about the Mexican drug
    cartels at this point. For another day, we will be back on it.
        Thank you for doing this and raising some critically
    important questions. And I am just wondering what you might
    think the next time that someone appears in a courtroom across
    America and says, when fingerprint evidence is produced,
    ``Well, I would like to quote for you a statement from Judge
    Edwards' Committee on forensic science where he said, `With the
    exception of nuclear DNA analysis . . . 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' '' ?
        Judge Edwards. Well, I think advocates will certainly raise
    questions, having read the report, and a number of judges will
    have looked at it. And I think questions are likely to be
    raised in court in a way that they have not previously been
    raised.
        You know, there has been an interesting split, when I talk
    to attorneys, in how we have proceeded on the civil as opposed
    to the criminal side. There are a lot of civil attorneys who
    are well funded on both sides, plaintiff and defendant, who
    feel like they can use the Daubert standards effectively to
    prevail in their individual cases.
        In criminal cases, however, what we have seen is a lot of
    defense counsel who do not have the resources to be able to
    raise the right questions; and we have had the problem of
    judges, lawyers, and jurors not knowing much about science; and
    trial judges operating alone; and a very limited standard of
    review when cases are appealed.
        Often there is not much we do at the appellate level if and
    when these cases come up on appeal, because we must give great
    deference to the trial judges. And if the right questions are
    not being asked in trial, the issue is not preserved for
    appellate review.
        Senator Durbin. And you probably heard or read of this
    March 15th announcement in Wayne County, Michigan, which backs
    up what you have to say here: 147 cases in a police lab mess
    called the ``tip of the iceberg.'' I think this was ballistic
    testing, if I am not mistaken. Too much of this is coming out,
    and it is accumulating. I thought it was particularly
    interesting. My gut reaction when I heard about the problem was
    the National Science Foundation. But you make it pretty clear
    in here that you say they are not really equipped to do this.
    They do not have the relevant expertise, as you say, needed to
    strengthen the practices of forensic science. And then you
    caution, and I think this is an important caution: ``The entity
    that is established to govern the forensic science community
    cannot be principally beholden to law enforcement.''
        Judge Edwards. Right.
        Senator Durbin. So your conclusion then is we have to
    really create a new entity.
        Judge Edwards. Yes. We really do need a new entity that is
    not beholden to the past dysfunctions of the community. I mean,
    you really need new people coming from multidisciplinary
    backgrounds. There are plenty of good sources for them to tap,
    ASCLD labs on accreditation; SWGs on technical protocols; and a
    number of smart people in the field and smart scholars and
    commentators who know the field well. these resources can be
    tapped by the leaders of the new entity--people who have no
    agenda based on the prior dysfunctions.
        We were thoroughly convinced that we must move from what
    presently is, which is not very good--it is dysfunctional--to a
    new agenda. If we had a Director of NIFS like the President's
    new Science Adviser, John Holdren, we would be in really good
    shape. The NIFS director would put together a really smart
    team, and he would have some really smart people who would
    think about the interdisciplinary science questions that need
    to be addressed.
        Senator Durbin. And the solutions are not only standards
    and accreditation, but obviously resources dedicated----
        Judge Edwards. Absolutely. Scientific research and the
    resources, yes.
        Senator Durbin. And I would assume, as in my State of
    Illinois and others, it is the coordination of many disparate
    jurisdictions, law enforcement whether it is at the local level
    or the county level or State level, that they start sharing
    some resources here so they can have the very best.
        Judge Edwards. Right.
        Senator Durbin. Now, I do not know if you happened to see a
    few weeks ago when ``60 Minutes'' had a program about
    eyewitness identification, and it was a very troubling
    situation where a woman literally identified her rapist and
    picked him out of a group of photographs, then picked him out
    of a line-up, and then went through the entire conviction of
    this man, and sat in the courtroom when he said, ``I didn't do
    it and found the man who did,'' and said, ``He is wrong, he did
    it.'' And then, of course, the DNA tests proved he did not do
    it, and the person that he had suggested did it was ultimately
    identified as the culprit.
        It really kind of calls into question in my mind--I am
    trying to get to the bottom line here--about what we expect of
    our criminal law enforcement system in a democratic society. We
    want bad people to be punished and taken away so that they do
    not hurt us again--at least until they are rehabilitated, not
    to be released. We will get into that in another hearing. But
    this really brings into question--it seems to me like DNA is
    the one bright line, the one gold standard where we say this is
    objective--at least at the moment, we say it is objective--and
    this can give us some certainty, a yes or no answer. Everything
    else is more subjective and subject to human error.
        Judge Edwards. Yes. It is not just that some forensic
    disciplines rely on subjective analyses. The problem is that
    some disciplines are not supported by good scientific research
    to determine the accuracy of forensic practice, to determine
    the extent to which observer bias is in play, and to quantify
    sources of variability and possible error.
        The Committee listened to a number of experts. We asked for
    that research. It is not there. So it is not that these other
    disciplines cannot service us. It is that we have not ever
    supported them the way we supported DNA.
        It goes with our recommendation that you should give the
    labs autonomy so that the science side of this enterprise can
    operate the way it ought to operate. The law enforcement/police
    side of it is terribly important, and the labs serve them. But
    the labs should not be beholden to the law enforcement side,
    because labs should be about science. And if we supported the
    rest of the disciplines the way we supported DNA, the forensic
    science community would have an entirely different look.
        Senator Durbin. Do I have time for one more question?
        Chairman Leahy. Take all the time you want.
        Senator Durbin. Tell me about fingerprints, because I
    thought that that was kind of a solid, objective piece of
    evidence that we could rely on here. I think you raise
    questions about fingerprint analysis as well.
        Judge Edwards. The reason fingerprinting became a subject
    of so much conversation is because it has had a long history of
    being credited as being essentially infallible. And, indeed, as
    I mentioned in my opening statement, there were FBI experts who
    testified in Federal courts that there fingerprint analysis has
    a ``zero error rate.'' Well, there is no ``zero error rate'' in
    science. There is no such thing. But the courts were led to
    believe otherwise. And one court would cite it, and the next
    court would cite the prior court's statement to that effect; it
    was most unfortunate.
        One of the most telling moments for me during the
    Committee's hearings occurred when I heard the testimony of an
    expert fingerprint analyst who is a member of the Scientific
    Working Group on Friction Ridge Analysis, Study, and
    Technology. At one point in his testimony, he was asked what
    was the scientific basis for determining a match in prints in a
    situation when the examiner has only a partial or smudged
    print. The expert did not hesitate in conceding that the
    research has yet to be done.
        When there is no good scientific basis to support a
    forensic discipline, and when experts cannot quantify certainty
    and uncertainty, the testimony that they offer is too often
    exaggerated (as with the claims of ``zero error rates''); and
    sometimes testimony is even fabricated. You may have seen the
    recent story in the San Jose Mercury News reporting that, for
    years, San Jose police never told anyone when fingerprint
    technicians could not agree about whether a suspect's prints
    matched those taken from the crime scene. Instead, the police
    department's Central Identification Unit generated a report
    indicating that two technicians agreed that the suspect's
    prints had been positively identified, while omitting that a
    third technician dissented. Stories like this are
    disheartening, to say at least.
        Senator Durbin. Is that discoverable, incidentally? If I am
    criminal defense----
        Judge Edwards. It should be.
        Senator Durbin [continuing]. Lawyer--now do you think it is
    discoverable?
        Judge Edwards. It should be. It should be available. And
    that is one of the reasons that we have said in the report that
    the reporting requirement should be changed; there should be a
    national standard on how you report what it is that you found
    in the lab. There should be model lab reports. We do not mean
    to micromanage lab reports, but what we are suggesting is that
    there ought to be a national notion of the information that is
    included in these reports so that the judge and the jury are
    weighing the facts, all of the facts, fairly. And if a
    fingerprint examiner can only say, ``Based on good science, my
    quantifiable estimate is this''--which is something less than
    100 percent, that should be weighed against the other evidence
    presented. A fingerprint examiner should not, in my view,
    testify ethically that ``I have a match,'' when, in fact,
    science says you do not know that you have a match. You know
    that you have some good indication----
        Senator Durbin. Probabilities.
        Judge Edwards. Right.
        Senator Durbin. Thank you.
        Thanks, Mr. Chairman.
        Chairman Leahy. I am going back--we all do this. I am going
    back in my own mind to some of the cases I tried, trying to
    remember just what was said there. I am thinking, in 2004,
    Judge, we passed the Justice for All Act that had combined new
    forensic programs and resources from law enforcement,
    especially for DNA testing, along with protections for
    defendants, even after conviction, to have access to DNA
    testing. I think a lot of it strengthened our whole system.
    That was in the area of DNA, but many key provisions of this
    landmark are supposed to expire this year.
        I think maybe what we should do is, if we go back to
    reauthorizing that, we should be looking at some of the
    recommendations in your report to see whether it should be
    done. I have seen the enormous cuts in the amount of money that
    is available for forensic science in the past few years. But
    you are saying that it is not just the money. You have got to
    have the training, you have got to have some basic standard--
    you can say you have got to have this much training--and
    experience, I suppose.
        Judge Edwards. We need a Federal entity, we think, that can
    oversee extramural research to get the universities interested
    in doing some serious scientific research, just like they were
    when we started our moves on DNA. That is the kind of work that
    we need, we need both private and public research and
    university institutes to do some serious work to back up what
    is going on in the forensic disciplines.
        Chairman Leahy. Are there any universities that are
    concentrating on this today that you know of offhand?
        Judge Edwards. There are some, and there are some decent
    programs, and we list them--I do not want to speak out of turn.
    We list the ones that we know of in the report. But I think all
    of the good forensic science people with whom I have talked
    have agreed, that the number of good programs is nowhere near
    what it should be. We really need interdisciplinary research.
    It is not enough for the forensic disciplines to simply
    continue to train people in their limited practice realm
    because that means we are not considering whether that practice
    realm is valid and reliable. All you are doing is teaching a
    new group of young people to do the same things that we are not
    sure are valid and reliable. And so what we need is to bring
    multidisciplinary research to the fore to look at these
    forensic disciplines to see whether or not they really are
    valid and reliable.
        Chairman Leahy. So it is not so much a problem of having
    honest, hard-working professionals----
        Judge Edwards. No.
        Chairman Leahy [continuing]. But having the scientific
    research to back them up and back them up by everything we know
    today, but also start providing everything we are going to know
    tomorrow and the next day.
        Judge Edwards. Exactly. Innovation, scientific innovation.
    I want to make it very clear we did not intend to damn the
    professionals who are working in the field. There are some
    terrific people working in the field, and we had a number of
    them on the Committee. So that is not the problem. The problem
    is, as they said back in 2005, they need help.
        Chairman Leahy. So we have to strengthen--just from some
    notes I have here, we have to strengthen our forensic science
    system; we have to fund new research; we have to improve our
    labs, fully train our examiners, and have standards that one
    can look at. And if we do that, that improves our criminal
    justice system.
        Judge Edwards. Mandatory standards.
        Chairman Leahy. Mandatory standards.
        Judge Edwards. Yes.
        Chairman Leahy. I understand. Well, I have received written
    testimony from the American Society of Crime Laboratory
    Directors, the International Association for Identification,
    National Association of Medical Examiners. I understand the
    Innocence Project intends to submit written testimony. All of
    it is going to be made part of the record, and we will keep it
    open for a week for that.
        This Committee has done a great deal, for example, on
    ensuring the testing of rape kits when there has been an
    unacceptable backlog. I will use the personal privilege of
    being Chairman to notice that Rob and Debbie Smith are in the
    audience here today. They have done an enormous amount, given
    an enormous amount of their own time in bringing that law
    about, and I want to thank them.
        Well, Judge, I want to thank you. I will probably be
    getting back to you on this matter. I appreciate that you took
    the time. I suspect it turned out, once you got into it, it
    took a lot more time than you thought. But I am very, very
    thankful that you did.
        Judge Edwards. Thank you, Mr. Chairman. I appreciate the
    opportunity afforded me to speak on behalf of our committee.
    After more than two years of hard work, the committee realized
    that it was dealing with a very serious issue. We are pleased
    that careful attention is being given to the report. Thank you
    for allowing me to share my thoughts with you.
        Chairman Leahy. Thank you, and we will keep the record open
    for a week. We stand in recess.
        [Whereupon, at 10:43 a.m., the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

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