[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
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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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54-304 PDF WASHINGTON : 2010
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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
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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
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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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