[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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