[Senate Hearing 111-554]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-554

          STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 9, 2009

                               __________

                          Serial No. J-111-43

                               __________

         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                 JEFF SESSIONS, Alabama
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          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel










                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................    80
Franken, Hon. Al, A U.S. Senator from the State of Minnesota.....     4
    prepared statement...........................................    86
Leahy, Hon. Patrick J., A U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   120
Sessions, Hon. Jeff, A U.S. Senator from the State of Alabama....     3

                               WITNESSES

Buel, Eric, Laboratory Director, Vermont Forensic Laboratory, 
  State of Vermont Department of Public Safety, Waterbury, 
  Vermont........................................................     6
Giannelli, Paul, Professor, Case Western Reserve University, 
  Cleveland, Ohio................................................    12
Hurtt, Harold, Chief of Police, Huston Police Department, 
  Houston, Texas.................................................    10
Matson, Barry, Deputy Director, Alabama District Attorneys 
  Association, Chief Prosecutor, Alabama Computer Forensics 
  Laboratories, Montgomery, Alabama..............................    14
Neufeld, Peter, Co-Director, The Innocence Project, New York, New 
  York...........................................................     8
Redle, Matthew F., County and Prosecuting Attorney, Sheridan 
  County, Sheridan, Wyoming......................................    17

                         QUESTIONS AND ANSWERS

Responses of Eric Buel to questions submitted by Senator Specter.    34
Responses of Paul Giannell to questions submitted by Senator 
  Specter........................................................    40
Responses of Harold Hurtt to questions submitted by Senator 
  Specter........................................................    41
Responses of Barry Matsor to questions submitted by Senator 
  Specter........................................................    43
Responses of Peter Neufeld to questions submitted by Senator 
  Specter........................................................    44
Responses of Matthew F. Redle to questions submitted by Senator 
  Specter........................................................    48

                       SUBMISSIONS FOR THE RECORD

Bohan, Thomas L., Peaks Island, Maine, statement.................    54
Buel, Eric, Laboratory Director, Vermont Forensic Laboratory, 
  State of Vermont Department of Public Safety, Waterbury, 
  Vermont, statement.............................................    60
Castelle, George, Chief Public Defender, Kanowha County, West 
  Virginia, statement............................................    67
Cole, Simon A, Associate Professor & Chair, Department of 
  Criminology, University of California, Santa Barbara, 
  California, statement..........................................    74
Donohoe, Colonel W.F., Superintendent, West Virginia State 
  Police, statement..............................................    77
Findley, Keith A., President, University of Wisconsin, Madison 
  Law School, Madison, Wisconsin, statement......................    82
Garrett, Brandon L., Associate Professor of Law, University of 
  Virginia School of Law, Charlottesville, Virginia, statement...    88
Giannelli, Paul, Professor, Case Western Reserve University, 
  Cleveland, Ohio, statement.....................................    95
Human Factors Consultants, Ralph Norman Haber, PH.D., and Lyn 
  Haber, Ph.D., Partners Swall Meadows, California, statement....   101
Hurtt, Harold, Chief of Police, Huston Police Department, 
  Houston, Texas, statement......................................   113
Matson, Barry, Deputy Director, Alabama District Attorneys 
  Association, Chief Prosecutor, Alabama Computer Forensics 
  Laboratories, Montgomery, Alabama, statement...................   122
National Association of Criminal Defense Lawyers, Washington, DC, 
  statement......................................................   141
Neufeld, Peter, Co-Director, The Innocence Project, New York, New 
  York, statement................................................   153
Redle, Matthew F., County and Prosecuting Attorney, Sheridan 
  County, Sheridan, Wyoming, statement...........................   166
Rudin, Norah, Forensic Consultant, and Keith Inman, M. Crime, 
  Senior Ferensic Scientist, Forensic Analytical Sciences, Inc 
  and Assistant Professor, California State University, East Bay, 
  Hayward, California, statement.................................   177
Saks, Michael J., Regents Professor, Sandra Day O'Connor College 
  of Law, Arizona State University, Tempe, Arizona, statement....   183
Shelton, Hilary, Director, NAACP Washington Bureau & Senior Vice 
  President for Advocacy and Policy, Washington, DC, statement...   195
Sloan, Virginia E., President, Constitution Project, Washington, 
  DC, statement..................................................   198

                 ADDITIONAL SUBMISSIONS FOR THE RECORD

Submissions for the record not printed due to voluminous nature, 
  previously printed by an agency of the Federal Government, or 
  other criteria determined by the Committee, list:
Virginia Law Review, Volume 95, March 2009, Number 1

 
          STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES

                              ----------                              


                      WEDNESDAY, SEPTEMBER 9, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 10:10 a.m., Room 
226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 
Chairman of the Committee, presiding.
    Present: Senators Durbin, Whitehouse, Klobuchar, Franken, 
and Sessions.

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

    Chairman Leahy. Good morning everybody. Please sit down. 
Please, I'm sorry. I was somewhat plagued getting in. I was 
just whispering to Senator Sessions that it can take well over 
an hour to go 10 miles, it seems like. A bit excessive, around 
here.
    Dr. Buel and I both live on dirt roads in the little town 
of Middlesex, and we measure our travel in minutes, even during 
rush hour. Rush hour means you sometimes have 5 to 10 cars 
every 10 minutes or so.
    But on a more serious matter, in March this Committee began 
our examination of the serious problems in forensic science 
that go to the very heart of our criminal justice system. Both 
Senator Sessions and I used forensic science in our past lives 
as prosecutors.
    But today we're going to hear from representatives of the 
professional communities that are going to have to work 
together to make advances to solve the problems. We know a lot 
of important work is done through forensics, and those who are 
with us should be proud of their good work.
    Scientific advancements can help prove that you have the 
guilty person. At the same time, it is equally important, it 
can help exonerate the innocent. We have to ensure that the 
forensic science rises to the highest scientific standards, has 
the maximum possible reliability. Unfortunately, since the 
report and testimony from the National Academy of Sciences 
earlier this year, we've heard more about the severity of the 
problem.
    The current issue of The New Yorker includes an article 
that presents strong evidence that in 2004, what we would all 
consider the unthinkable happened: an innocent man may have 
been executed for a crime he did not commit, based in large 
part on forensic testimony and evidence.
    The Committee will soon turn to reauthorizing and 
strengthening the Innocence Protection Act, and that provides 
very important tools, passed by bipartisan majorities in the 
Congress, to prevent that kind of tragedy.
    The key point for today's hearing is that the prosecution 
of Cameron Todd Willingham, discussed in The New Yorker 
article, rested largely on forensic evidence--in that case, 
burn analysis--that may not have had any scientific basis. Our 
criminal justice system, particularly the most serious cases, 
have to be based on facts.
    Also, the Supreme Court held in the case of Melendez-Diaz 
v. Massachusetts that forensic examiners must present evidence 
in court, be subject to cross-examination, rather than simply 
submitting reports of their findings. Again, that's something I 
did as a routine matter as a prosecutor 35 years ago. The 
Supreme Court holding stems from a recognition that forensic 
findings may not always be as reliable as we would hope or as 
they might appear.
    You know, many have the image from the television shows 
like ``CSI'' that forensic scientists get to review crime scene 
evidence in sleek, ultra-modern, state-of-the-art laboratories. 
Well, those of you who are experts know that is not always the 
case, by any means. In fact, the so-called ``CSI effect'' may 
be doing harm by suggesting that forensic science is well-
funded, and that their results are almost always infallible.
    As it turns out, that's not the reality examined by the 
National Academy of Sciences. According to the latest available 
statistics from the Justice Department in 2005, the backlog of 
forensic exams was more than 350,000--the backlog--nationwide, 
up 24 percent from 3 years ago.
    One out of every five labs does not meet the standards for 
accreditation set by the American Society of Crime Lab 
Directors. As the National Academy of Sciences report makes 
clear, we can't allow such nationwide deficiencies in forensic 
sciences to continue. I think it's 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.
    What helps is when we take perpetrators of serious crimes 
off the streets. It doesn't help if we took the wrong person 
off the street because the criminal is still out there. We 
can't wait for the backlogs to get worse or the next scandal to 
take place. I'm looking forward to working with Senator 
Sessions, Senator Klobuchar, and other interested members of 
this Committee to find solutions to this.
    Now, we're going to hear testimony from Dr. Eric Buel, as I 
mentioned. He is the respected director of the Vermont Forensic 
Laboratory, someone who has the respect of both the prosecution 
and defense. Vermont's lab has done consistently excellent work 
and it's helped to solve many important cases. Dr. Buel 
nonetheless, recognizes the need for more standards, more 
research, more funding. I'm glad to welcome back to the 
Committee Peter Neufeld. Mr. Neufeld has worked with us. He's 
the co-director of The Innocence Project, and he's worked with 
us for years in this Committee. His work on individual cases 
and bringing important changes to the law has been very, very 
helpful.
    I look forward to the insights of fellow prosecutors and 
law enforcement officers who are on the front line every day. 
The report issued by the National Academy of Sciences is 
detailed and far-reaching and can provide a foundation for 
broad consensus for change. It calls for mandating national 
standards for enforcing best practices and points to a need for 
standards for the certification of individual examiners, 
accreditation of their laboratories, and the assets to invest 
in the research underlying modern forensic sciences.
    Now, there are areas of significant controversy, including 
the report's recommendation of another major new government 
agency and for the total separation of forensics and law 
enforcement. There will be disagreement on that, but I hope we 
can find the areas that we all agree on. So, I hope we can work 
together toward strengthening our forensic system, rooted in 
science.
    With that, I'll put the rest of my statement in the record.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Leahy. Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. Forensic 
sciences in America does present a challenge, in my view. It's 
something that I have felt strongly about for many, many years. 
If you look at the criminal justice system as a comprehensive 
whole and you ask yourself, are there bottlenecks in this 
system that are causing difficulties, I think you would say 
that the forensic sciences are being shortchanged financially 
and we can do better.
    I have believed that for some time. You consider huge 
sheriffs' departments, huge police departments, probation 
departments, judicial centers, prison systems, the amount of 
money going to that decisive entity, the forensic scientist who 
can make the difference in a case being ready to go to trial 
and being tried fairly and objectively and can be really 
adverse to the whole criminal justice system. So, I worry about 
that.
    As a prosecutor and one who felt that trials were too much 
delayed, I conducted research of it as Attorney General of 
Alabama and concluded one of the biggest things that was 
delaying justice in America is getting your forensic sciences 
reports completed in an effectively and timely way. Prosecutors 
have a slam-dunk cocaine case, the person is tape recorded, but 
months go by before somebody comes back and says the powder is 
cocaine.
    Now, maybe there are more complicated drugs, pills and that 
kind of thing that need to be analyzed before the case can go 
forward. Some prosecutors will use testimony to go forward with 
an indictment. Some will not return an indictment until they've 
received that information. Some cases cannot go forward based 
on fingerprints, based on lack of fingerprints or lack of 
ballistics or DNA evidence that needs to be promptly produced.
    So if you look at the entire criminal justice system, I 
think you could say that more innocent people could have a 
cloud removed from them and not be charged. More guilty people 
could be charged and proceed forward to justice and get their 
just desserts with a more effective forensic system in America.
    The Commission report has some good recommendations. I 
don't accept the idea that they seem to suggest that 
fingerprints is not a proven technology. I don't accept some of 
the other forensics that are not scientific well-based. For 
example, the Commission strongly praises the scientific 
analysis that has gone behind DNA and suggests that should be 
done more comprehensively in other areas, and perhaps it 
should.
    Perhaps it should, Mr. Chairman. Maybe we can tighten that 
up and have some sort of better scientific basis for 
fingerprints and other analysis. But I don't think we should 
suggest that those proven scientific principles that we've been 
using for decades are somehow uncertain and leaving prosecutors 
having to fend off challenges on the most basic issues in a 
trial.
    So, tens of thousands of people, I suggest, are not being 
promptly tried. While they're out on bail or un-indicted, 
they're committing crimes this very moment. A lot of that is 
because we've not invested enough in our forensic sciences so 
that we can get accurate and prompt reports. I believe it's a 
very important issue, Mr. Chairman. Thank you for having this 
hearing. I believe the Commission kicked off a national 
discussion, and maybe we can make some progress. I certainly 
hope so.
    Chairman Leahy. Well, thank you, Senator Sessions. You and 
I have worked on these issues for years, and I think this is an 
important thing.
    Senator Feingold has a statement to place in the record.
    [The prepared statement of Senator Feingold appears as a 
submission for the record.]
    Chairman Leahy. Did you want to----
    Senator Franken. Yes. I have a statement, Mr. Chairman.
    Chairman Leahy. Go ahead.

STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE STATE OF 
                           MINNESOTA

    Senator Franken. Okay. Thank you. Thank you, Mr. Chairman, 
for holding this incredibly important hearing.
    We incarcerate more people than any other industrialized 
nation--in fact, we incarcerate more people than any nation, 
period. We have 2.3 million prisoners behind bars. Compare that 
to China, which has four times our population but only--only 
1.6 million prisoners. We also have the world's highest 
incarceration rate, more than five times higher than the 
world's median rate; even though we have 5 percent of the 
world's population, we have 25 percent of its inmates.
    These are worrying figures for any country, let alone the 
world's leading democracy. But they are especially troubling 
when we consider that the forensic techniques used to prosecute 
and convict many of these individuals have come under serious 
question. Earlier this year, pursuant to a congressional 
mandate, the National Academy of Sciences released a report 
evaluating the scientific integrity of the forensic techniques 
used daily in thousands of crime labs around the country, 
including DNA analysis, fingerprinting, firearms 
identification, and hair/fiber analysis.
    The report which was published after 2 years of research 
and review had a damning conclusion, which I will restate here. 
It concluded that, ``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. The fact is that many forensic 
tests have never been exposed to stringent scientific 
scrutiny.''
    For example, the National Academy's report revealed that 
there is currently no objective uniform method of fingerprint 
analysis or standard for fingerprint identification. In fact, 
in the United States the standard for identification, how many 
points match between two prints, ``has been deliberatively kept 
subjective'' to allow for maximum flexibility by the examiner. 
This means that one examiner can require just 6 points for 
comparison before declaring a match, while another can require 
14 points.
    Bad forensic techniques result in false convictions. That's 
obvious. In a review of 242 DNA exonerations, The Innocence 
Project found that a large number of the cases involved 
invalidated or improper forensic science. The number of false 
convictions is surely higher, however, since 90 percent of 
criminal cases actually do not involve biological evidence that 
can irrefutably exonerate someone through DNA testing.
    What is less obvious is that bad forensics keeps the real 
criminals on the streets. Of the 242 DNA post-conviction 
exonerations nationwide, the real perpetrators were identified 
in 105 cases. In those 105 cases, while innocent people were in 
jail, the real perpetrators committed, and were convicted of, 
90 serious violent offenses, including 56 rapes and 19 murders. 
False convictions are a threat and tragedy, both for the 
innocent and for every law-abiding citizen in the Nation.
    In 2006, Supreme Court Justice Antonin Scalia declared that 
``there has not been a single case, not one, in which it is 
clear that a person was executed for a crime he did not commit. 
If such an event had occurred in recent years, we would not 
have to hunt for it. The innocent's name would be shouted from 
the rooftops.'' Sadly, that day has come after the execution of 
Cameron Todd Willingham. It's being shouted from the rooftops 
today, this week, by The New Yorker.
    The Fifth and Fourteenth Amendments guarantee that all 
Americans will not be deprived of life, liberty or property 
without due process of law. This due process right applies to 
States and it applies to the Federal Government. If it means 
anything, it means that the tools we use to determine innocence 
or guilt must be based on sound, rigorous science. Until we can 
be confident of that, I think we should ask ourselves whether 
it would be appropriate to impose a nationwide moratorium on 
the death penalty. Can we, as a law-abiding Nation, execute 
anyone without being 100 percent certain that they are guilty? 
Can we risk another Cameron Todd Willingham?
    I look forward to hearing from all the witnesses today. 
Thank you, Mr. Chairman.
    Chairman Leahy. Thank you, Senator Franken.
    The first witness is Dr. Eric Buel, current director of the 
Vermont Forensics Laboratory, a position he's held for the last 
11 years. He has 30 years of experience analyzing forensic 
evidence for the State of Vermont and he is widely recognized 
for his expertise on forensic DNA analysis. In 1990, Dr. Buel 
established the Vermont DNA Analysis Program.
    He is a past board member of the American Society of Crime 
Laboratory Directors. He serves on the editorial review board 
of The Journal of Forensic Sciences and has published articles 
on forensic drug and DNA analysis. He received his bachelor's 
degree from the University of Delaware and his Ph.D. in 
biochemistry from the University of Missouri at Kansas City. As 
I mentioned earlier, he lives in one of the prettiest towns of 
Vermont.
    Dr. Buel. Is your microphone on?

   STATEMENT OF DR. ERIC BUEL, LABORATORY DIRECTOR, VERMONT 
  FORENSIC LABORATORY, STATE OF VERMONT DEPARTMENT OF PUBLIC 
                     SAFETY, WATERBURY, VT

    Dr. Buel. I haven't been here for a while, sir.
    Chairman Leahy. We have changed a bit.
    Dr. Buel. Yes. Technology.
    Good morning, Mr. Chairman, members of the Senate 
Judiciary. Thank you for the invitation to speak with you about 
how best to provide forensic science to the citizens of our 
great country.
    I have been in the field of forensic science for almost 30 
years, the last 11 as a laboratory director. I am privileged 
and honored to speak with you about forensic science and how 
best to implement the recommendations in the National Academy 
of Sciences report.
    With your permission, Mr. Chairman, I'd like to read a 
statement into the record.
    Chairman Leahy. Please.
    Dr. Buel. Okay. Several years ago, I served as a board 
member for the American Society of Crime Lab Directors. A theme 
that I brought forward for consideration was a long-term goal 
for us and for society. That goal was for every crime victim to 
expect the highest level of forensic science services 
regardless of where in the United States he/she was victimized. 
Her case would not lie for months in a freezer awaiting 
examination, resources would be available to perform DNA 
profiling, and the DNA database would be current. Fingerprints 
recovered would not fade with time awaiting analysis, and the 
AFIS database would be fully supported and recently updated.
    The laboratory would have the resources to provide the type 
of services our citizens should have in their time of need. The 
resources necessary to make that desired reality have not been 
provided to the State and local crime labs. The Federal funds 
have flowed toward the reduction of backlogs in DNA, and 
although this assistance is appreciated and has done much good, 
crimes continue to go unsolved, citizens continue to be 
victimized as the backlogs in other forensic disciplines grow 
and leave cases unresolved.
    Mr. Chairman, we need to address the capacity in our crime 
lab system. We need to provide resolution to these cases. We 
need secure and stable funding. We need comprehensive forensic 
reform. As you know, the National Academy of Sciences clearly 
recognized this and it provided numerous recommendations to 
reform and modernize our system.
    Let me briefly highlight just a couple of points detailed 
in the NAS report. Quality assurance is a critical component to 
ensure quality work. The forensic community has made great 
strides in this regard through the accreditation process. I 
agree with the findings of the NAS report that all laboratories 
performing forensic science must be accredited with certified 
staff. Accreditation and certification of both laboratories and 
individuals should be prioritized and funded to allow these 
activities to occur as soon as possible.
    There has been much discussion about forensic services that 
may require further research to address accuracy and 
reliability. Let me briefly describe a process that may assist 
us to find a path forward in that regard.
    During the early days of DNA analysis, there were many 
questions concerning how to apply this new science 
appropriately to forensic case work. Studies by the National 
Research Council culminated in two reports that offered 
recommendations and suggestions for DNA testing by the forensic 
community based on adherence to high-quality standards and 
uniform procedures.
    Through the work of the council and working groups, a 
pathway was created for the forensic DNA community to follow. 
The Federal Government recognized the need to fund this 
emerging science, and did so. This provided laboratories with 
the resources to properly train their scientists and purchase 
state-of-the-art instrumentation. These funds permitted 
laboratories to initiate programs, submit expectations, and has 
resulted in the implementation of what has become a very 
successful forensic program.
    This model could be replicated for the other disciplines 
with the proper resources from the Federal Government. Through 
a full vetting of the data, methods and procedures currently 
used by a discipline, appropriate procedures could be modified 
or additional standards applied if the research indicates the 
need for change. If further research is needed, Congress must 
fund this research to resolve unanswered questions. The 
committee members reviewing the science must include experts 
from both academia and the forensic community to allow a mutual 
exchange of ideas and understanding of the work that is 
performed.
    Through this collaborative effort, the success recognized 
by the DNA program could be realized by each forensic 
discipline. The National Academy of Sciences has identified the 
needs of the forensic community and we have an opportunity to 
make use of the report to make the necessary improvements in 
our science. I would recommend that Congress take appropriate 
steps to meet these challenges discussed in the report and to 
promote and provide the best possible science for our people. 
Thank you very much.
    Chairman Leahy. Thank you very much, Doctor. Thank you for 
being here, as always.
    Peter Neufeld co-founded and co-directs The Innocence 
Project, an independent, nonprofit organization affiliated with 
the Benjamin N. Cardozo School of Law. He is also a partner in 
the civil rights law firm, Cochran, Neufeld and Scheck. For the 
last 12 years, he's served on the New York State Commission on 
Forensic Science, which has responsibility for regulating all 
State and local crime laboratories in New York. He has co-
authored several influential books on the use of forensic 
evidence in criminal cases and post-conviction review.
    Prior to his work with The Innocence Project, Mr. Neufeld 
taught trial advocacy at Fordham University Law School and was 
a staff attorney for the Legal Aid Society of New York. He 
received his law degree from New York University School of Law, 
his bachelor's from University of Wisconsin. He's no stranger 
to this Committee, and it's nice to have you back here with us.
    Go ahead, please.

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

    Mr. Neufeld. Thank you, Chairman Leahy, Ranking Member 
Sessions, and of course, Senator Franken. Thank you all for 
being here.
    I am the co-founder of The Innocence Project and it is a 
special occasion for me to be back here. I have an incredible 
respect for this Committee. After all, it was this Committee 
that played such a pivotal role in the passage of the Innocence 
Protection Act in 2004, which gave people who have been 
imprisoned access to DNA testing to prove their innocence.
    It was also this Committee that played a critical role in 
passage of the Coverdell amendment in 2004 which required State 
and local crime laboratories that receive Federal funding to 
conduct independent audits whenever there were serious 
questions about negligence or misconduct that would call into 
question the reliability of their forensic results.
    In that regard, I'd like to congratulate the speaker to the 
left of me here, Harold Hurtt, who is the police chief of 
Houston who, frankly, embarked on probably the most 
comprehensive forensic science audit in the country of a 
laboratory, and did it before the Coverdell amendment went into 
effect, just simply did it proactively on his own, and it 
should be an extraordinary role model for other crime 
laboratories in the country. So, thank you, Chief Hurtt.
    But what I'm here to talk about today is the real-life cost 
of what happens when forensic science is either misapplied or 
invalidated forensic science is relied upon to secure a 
conviction.
    On May 23, 1991 in upstate New York, a young social 
services worker was found dead outside of the farmhouse where 
she lived. She had been strangled, she had been stabbed. Her 
assailant had bitten her in half a dozen places, right through 
her nightgown into her skin. Roy Brown, who is sitting here 
behind me today, became a suspect in that case, primarily 
because he had a beef with the social service agency where this 
victim had worked.
    The centerpiece of the police case and the prosecution's 
case to convict Roy was testimony from a forensic dentist. The 
forensic dentist used what was then the prevailing methods of 
comparing bite marks found on a body with the dentures of a 
suspect. He examined them and he decided that he had a match 
with Roy's bite. He so testified in court and Roy was 
convicted. Fortunately for Roy, it happened just before, a year 
before the New York State legislature brought back the death 
penalty, and so Roy received a life sentence. While in prison, 
he got very ill. He contracted hepatitis and almost died.
    But Roy never gave up fighting. He actually, through the 
FOIA request, got some police reports which identified a person 
who he believed had actually committed the crime. Roy wrote to 
him and said, ``One day they'll do DNA testing on those saliva 
stains left by the biter and it will demonstrate that you're 
the real perpetrator: repent now! ''
    The letter was sent, and 3 days later that man threw 
himself in front of an Amtrak train in upstate New York and 
killed himself. We got involved in the case, and of course we 
couldn't do DNA testing on the deceased because of the way he 
died, but we were able to eventually get DNA testing on the 
saliva stains all over the woman's back and compare them with 
DNA from the daughter of this man who threw himself in front of 
the train. Lo and behold, it was a perfect paternity. Again, 
the remnants of this man were exhumed, DNA testing was done, 
and everybody agreed, the prosecutor and the judge, that Roy 
Brown was completely innocent, having spent 15 years of a life 
sentence in prison for a crime he did not commit.
    You've already heard from both Chairman Leahy and also Mr. 
Franken the story of Todd Cameron Willingham, who very well may 
have been executed, albeit completely innocent, simply because 
a State arson investigator used what were then prevailing, 
generally accepted means to determine when a fire was 
deliberately set as opposed to an accident. It just so happened 
that those means that he relied upon had never been 
scientifically validated and turned out to be unscientific, at 
least so say the five national experts who have reviewed the 
data in that case since.
    These are only two of the examples of the 242 people that 
we worked with at The Innocence Project who have been 
subsequently exonerated through DNA. Although Mr. Willingham 
was not exonerated through DNA, I think it's pretty clear he 
was innocent based on the other evidence.
    What folks have to realize about these cases, as Senator 
Franken pointed out, is it's not just about exonerating 
innocent people because in each of these cases the real 
perpetrator was out there committing other heinous crimes. In 
fact, in the 105 cases where we at The Innocence Project worked 
with police and prosecutors to identify the real perpetrator, 
it turns out that those real perpetrators committed a minimum 
of dozens of other vicious rapes and murders, rapes and murders 
that could be avoided if something had been done about that 
early on with better science.
    The real question here as we go forward is, are we going to 
try and have an independent scientific entity that can 
rigorously scrutinize the forensic disciplines and make sure 
that we have the best, robust methods possible, or are we going 
to allow the same old system to be perpetuated and allow 
innocent people to be wrongly convicted and the guilty to go 
free? I am confident that this Committee will not let that 
happen and will do the right thing.
    Chairman Leahy. Thank you very much. Again, thank you for 
your help in the past, especially the original Innocence 
Protection Act.
    Chief Harold Hurtt is the chief of police in Houston, 
Texas, a position he's held since 2004, am I correct, Chief?
    Chief Hurtt. Yes, sir.
    Chairman Leahy. Chief Hurtt began his career in 1968 with 
the Phoenix, Arizona police department. He rose to the post of 
executive assistant chief of police. After serving as chief of 
police for Oxnard, California, he returned to Phoenix in 1998 
and served as chief of police there. Chief Hurtt has been 
selected twice by his peers as president of the Major Cities 
Chiefs Association. Chief Hurtt received his undergraduate 
degree in sociology from Arizona State University, and later 
received his master's in organizational management from the 
University of Phoenix. He and his associate are well known to 
this Committee, of course.
    It was about 38 years ago when the District Attorney of 
Harris County, a man named Carol Vance, was also the president 
of the National District Attorneys Association. I know that 
only because I was one of the officers of the National DAs at 
the time and went to Harris County and went to Houston a couple 
of times for meetings and one time for an extradition. Houston 
has changed a great deal since then.
    Chief Hurtt. Yes, it has.
    Chairman Leahy. Chief, it's good to have you here. Please 
go ahead, sir.

  STATEMENT OF HAROLD HURTT, CHIEF OF POLICE, HOUSTON POLICE 
                   DEPARTMENT, HOUSTON, TEXAS

    Chief Hurtt. Mr. Chair and members of the Committee, good 
morning, and thank you for inviting me to testify today. It is, 
indeed, an honor.
    Today I will give you an historical account of the Houston 
Police Department's crime lab, talk about reforms implemented, 
and potential solutions for addressing challenges in forensics.
    In November of 2002, the Houston Police Department 
requested an independent audit of the DNA Section of the 
Houston Police Department by the Texas Department of Public 
Safety. Deficiencies were found that resulted in the suspension 
of DNA testing. An Internal Affairs investigation was conducted 
and discovered criminal and administrative violations. Two 
grand juries reviewed the evidence and no indictments were 
returned. Results of that investigation led to reprimands, 
suspensions, and separation of management and employees of the 
crime lab.
    In 2003, a review of cases in which DNA testing was 
performed began, in consultation with the Harris County 
District Attorney's Office. Three outside DNA laboratories were 
employed to conduct DNA re-testing. The police department hired 
the National Forensic Science Technology Center to assist in 
the evaluation of the crime lab's operation and to assess its 
employees.
    In September of 2004, I sought an independent review of the 
crime lab and property room. A stakeholders' committee was put 
together to oversee the selection and progress of an 
independent investigator. Mr. Michael Brumwich, a former 
Inspector General with the U.S. Justice Department, was 
selected. The stakeholder committee included various community 
leaders, civil rights advocates, prosecutors and defense 
attorneys, forensic scientists, and members of the academic 
community.
    The primary elements addressed by this study or 
investigation consisted of reviewing the past and present 
operation of the crime lab and property room. Serology 
incarceration cases from 1980 to 1992 were reviewed. The final 
report was issued in the summer of 2007.
    The investigation revealed the following: for the previous 
15 years prior to the 2002 closing of the HPD DNA crime lab, or 
the DNA lab, there was a lack of support and resources for the 
crime lab. Ineffective management was in place. There was a 
lack of adequate quality control and quality assurance.
    There have been many reforms implemented in the Houston 
Police Department crime lab. We have implemented new crime lab 
testing procedures, practices, and policies. In 2005, the Texas 
State legislature mandated accreditation for all crime labs in 
the State. During that year, the crime lab received national 
accreditation from the American Society of Crime Lab Directors' 
Laboratory Accreditation Board. It was accredited in the 
following areas: controlled substances, firearms, toxicology, 
question documents, and biology. In 2006, the crime lab 
received accreditation in DNA and trace analysis.
    Our hiring criteria has been upgraded, with emphasis on 
experience, certifications, and educational credentials. We 
have also imposed rigorous training requirements, including 
yearly ethics training. We have instituted a comprehensive 
quality assurance program and we have continued our cooperation 
with The Innocence Project. We have started case assessment 
strategies based on the United Kingdom model. A new property 
room has been built and robots are being evaluated for DNA 
testing.
    Now we'd like to make some recommendations in reference to 
addressing the challenges in forensic science. First of all, 
proper funding for crime labs must occur. We need to take 
advantage of the new technology, especially robotics. The 
hiring of competent staff and training will be critical. Case 
assessment strategy that was implemented by and used in the 
United Kingdom must be used here. Also critically important is 
the educating of judges, prosecutors, and defense attorneys of 
the basic principles of scientific evidence.
    Thank you.
    Chairman Leahy. Chief Hurtt, thank you very, very much. We 
appreciate the help you and your colleagues have given to this 
Committee over the years. I appreciate it very much.
    Chief Hurtt. Thank you, sir.
    Chairman Leahy. Paul Giannelli is the Albert J. 
Weatherhead, III and Richard W. Weatherhead Professor of Law at 
Case Western Reserve University. He began his career as a 
military prosecutor and defense counsel, where he became an 
academic expert in the field of evidence and criminal 
procedure.
    Mr. Giannelli has authored numerous articles and books on 
the use of scientific evidence. He received his J.D. and Master 
of Laws from the University of Virginia, and he has a Master of 
Science degree in forensic science from George Washington 
University.
    Mr. Giannelli, welcome. Please go ahead, sir.

 STATEMENT OF PAUL GIANNELLI, PROFESSOR, CASE WESTERN RESERVE 
                  UNIVERSITY, CLEVELAND, OHIO

    Mr. Giannelli. Thank you, Mr. Chairman, Senator Sessions, 
Senator Franken.
    While serving in the Army during the Vietnam War, I was 
assigned to the forensic medicine program at the Armed Forces 
Institute of Pathology at Walter Reed. At the same time, I 
earned a Master's degree at George Washington University and I 
then taught a course on scientific evidence at the Army JAG 
school in Charlottesville for 2 years. I've been at Case 
Western Reserve University for going on 35 years, and 
scientific evidence has been my area of research interest for 
that time.
    The publication of the National Academy of Sciences report 
is one of the most important developments in forensic science 
since the creation of the first crime laboratory in this 
country in the 1920s. The report is both comprehensive and 
insightful. Its findings are well-documented, and the need for 
a new approach, one rooted in science, as outlined in the 
report, is critical.
    In sum, I believe this is an exceptional report. Its 
recommendations, if adopted, would benefit law enforcement and 
prosecutors in the long run. It would allow forensic science to 
develop a strong scientific basis and limit evidentiary 
challenges regarding the reliability of scientific evidence.
    First, I want to stress the importance of scientific 
evidence in the criminal process. It is often superior to other 
forms of proof. Forty years ago, the Supreme Court noted that 
``fingerprinting is an inherently more reliable and effective 
crime-solving tool than eyewitness identifications or 
confessions and is not subject to such abuses as an improper 
line-up or the `third degree.' ''
    More recently, the DNA exoneration cases have highlighted 
the problems with eyewitness identifications, jail informant 
testify, and false confessions. According to The Innocence 
Project, there are now over 240 exonerations. However, the 
exoneration cases have also exposed problems with scientific 
evidence, and I want to focus my remarks on what I believe is 
the crucial issue: the lack of empirical research in some 
forensic identification disciplines and how to address that.
    The lack of empirical research is noted in the report over 
and over again. ``Among existing forensic methods, only nuclear 
DNA has been rigorously shown to have the capacity to 
consistently, and with a high degree of certainty, to 
demonstrate a connection between an evidentiary sample and a 
specific individual source.''
    Another passage states, ``Some forensic science disciplines 
are supported by little rigorous, systematic research to 
validate the discipline's basic premises and techniques. There 
is no evident reason why such research cannot be conducted.'' 
Common identification techniques, those that rely on an 
examiner's subjective judgment, lack sufficient empirical 
support.
    For example, the report wrote, first, ``sufficient studies 
on firearms identification have not been done to understand 
reliability and repeatability of the methods''; two, ``the 
scientific basis for handwriting comparisons needs to be 
strengthened''; three, ``research is needed to properly 
underpin the process of fingerprint identification''; four, 
``testimony linking microscopic hair analysis with particular 
defendants is highly unreliable''; five, ``there is no science 
on reproducibility of the different methods of bite-mark 
analysis.'' Chapter five of the report documents these 
conclusions in detail and my research is in accord.
    Similar concerns can be found in court decisions for more 
than a decade. After the Supreme Court's decision in Daubert v. 
Merrill Dow Pharmaceuticals, some lower courts began to 
question how expert testimony was being presented at trial.
    In the Mitchell case, Judge Becker wrote, ``The testimony 
at the Daubert hearing indicated that some latent fingerprint 
examiners insist that there is no error rate associated with 
their activities. This would be out of place under Rule 702,'' 
which is the governing standard on expert testimony. In United 
States v. Green, the judge wrote, ``the more courts admit this 
type of tool mark evidence without requiring documentation, 
proficiency testing, or evidence of reliability, the more 
sloppy practices will endure; we should require more.''
    In United States v. Crisp, the judge wrote that ``the 
government has had ten years to comply with Daubert. It should 
not be given a pass in this case.'' The case dealt with 
fingerprint and handwriting evidence, and this was six years 
ago.
    Firearms identification. Examiners testified in another 
case to the effect that they were 100 percent sure of their 
match. The judge wrote, ``Because an examiner's bottom-line 
opinion as to identification is largely a subjective one, there 
is no reliable statistical or scientific methodology'' to 
support that conclusion.
    In United States v. Glynn, the court wrote that the 
``Government did not seriously contest the Court's conclusion 
that ballistics lacked the rigor of science, and that whatever 
else it might be, its methodology was too subjective to permit 
opinions to be stated to a `reasonable degree of ballistic 
certainty.' ''
    In Williamson v. Reynolds the court wrote: ``this court has 
been unsuccessful in its attempts to locate any indication that 
hair comparison testimony meets any requirements of Daubert.'' 
This decision was handed down in a habeas case five days before 
the scheduled execution date.
    A New York case in 1995 concluded that, ``forensic document 
examination, despite the existence of a certification program, 
professional journals, and other trappings of science, cannot, 
after Daubert, be regarded as scientific knowledge.''
    Independent scientific research is critical and the most 
thorough and well-reasoned reports in the field have come from 
independent scientific investigation: the National Academy's 
voice print report in 1979, its DNA reports in 1992 and 1996, 
its polygraph report in 2002, the bullet lead report in 2004.
    The creation of a National Institute of Forensic Sciences, 
recommendation one in the report, is essential. An independent 
agency, steeped in the traditions of science, is required. In 
addition to independence and strong scientific credentials, a 
new entity should be dedicated solely to forensic science. It 
should not be encumbered with multiple missions.
    Once in place, it could focus quickly on the agenda 
outlined in the report. Moreover, a national institute would 
have the prestige to attract top scientists to the field and to 
influence universities to conduct peer-reviewed research and to 
establish rigorous educational programs. In contrast, an entity 
that is part of an agency in another department will not 
attract the same level of talent.
    Finally, there are many talented, conscientious examiners 
working in crime laboratories throughout this country. These 
examiners need to be supported, they need funds for better 
equipment and advanced schooling, and continuing education.
    Thank you.
    Chairman Leahy. Thank you very much, Mr. Giannelli.
    Mr. Matson is from Alabama, and I'd ask if Senator Sessions 
would like to introduce him. And we thank you for being here, 
Mr. Matson.
    Senator Sessions. Thank you, Mr. Chairman. It's a delight 
to introduce Barry Matson to the Committee. He is an 
experienced prosecutor who has personally tried many serious 
major felonies, including capital cases. He's conducted grand 
jury investigations and personally worked with a lot of complex 
cases. He now is the chief prosecutor for the Alabama Computer 
Forensic Laboratories and is deputy director of the Alabama 
District Attorneys Association. He is founder of the National 
Computer Forensic Institute in Hoover, Alabama.
    I think he'll provide some valuable information to us from 
a practical perspective, Mr. Chairman. Thank you for inviting 
him.
    Chairman Leahy. Thank you, Senator Sessions.
    Please go ahead.
    Senator Sessions. I would note, his degree is from 
Jacksonville State University in criminal justice, 
undergraduate, which has got an excellent criminal justice 
program, and his law degree at Birmingham School of Law.

 STATEMENT OF BARRY MATSON, DEPUTY DIRECTOR, ALABAMA DISTRICT 
   ATTORNEYS ASSOCIATION; CHIEF PROSECUTOR, ALABAMA COMPUTER 
           FORENSICS LABORATORIES MONTGOMERY, ALABAMA

    Mr. Matson. Thank you, Your Honor.
    Mr. Chairman and members of the Committee, I want to thank 
you for the honor of appearing before you to discuss the 
National Academy of Sciences' report. It is especially 
significant that we appear before you on a subject so vital to 
the future of law enforcement, prosecution, and the 
administration of justice everywhere.
    I'm a career prosecutor. Prior to my current position, I 
was Chief Deputy District Attorney in Talledega County, Alabama 
for 16 years. In that county, in Talledega County, it's not 
unlike most jurisdictions across this country. We were faced, 
and are faced every day, with challenges facing the criminal 
justice system while our dockets were exploding. We faced those 
challenges with a strong work ethic, a deep passion to protect 
the public, and to do justice.
    Mr. Chairman and members of the Committee, please know, a 
prosecutor is held to a higher standard than that imposed on 
other attorneys because of the unique function we perform in 
representing the interests and exercising the sovereign power 
of the State. In my testimony today I will endeavor to give a 
voice to the everyday prosecutor, struggling with too few 
resources, expanding caseloads, as well as agenda-driven 
criminal defense lobbies.
    We applaud Congress for directing the National Academy of 
Sciences to undertake the study that led to this report. It is 
not in spite of the fact that we are prosecutors that we 
welcome a serious critique of the forensic science process, it 
is because we are prosecutors.
    But like many endeavors, those with agendas have made an 
impact, not only on this report, but now in the courtrooms 
across this country. The absence of prosecutors on the National 
Academy of Sciences Committee on Forensic Sciences has not been 
lost on those of us serving every day in the trenches of 
America's courtrooms.
    The failure of the Committee to seek the consultation of 
State or local prosecutors in its eight separate meetings is 
glaring and overlooks one of the criminal justice system's most 
vital components. Mr. Chairman and members, you well know the 
role of the prosecutor in the American system. A prosecutor is 
to judge between the people and the government. He is to be the 
safeguard of one and the advocate of the rights of the other.
    Make no mistake about it: I and my colleagues--I'm a tough 
prosecutor and I vigorously seek justice for the victims in the 
community. However, that toughness is tempered with a simple 
desire to do what is right. One thing that has been grossly 
overlooked in all the process that has gone on in this report 
is that prosecutors and forensic science professionals do more 
every day to free the innocent and safeguard the liberties of 
our citizens than any defense project or academician will ever 
do in their career. Those entities have no burden or have taken 
no oath to seek the truth. Conversely, they are required to 
suppress the truth when it serves the best interests of their 
needs and of their client.
    Have regrettable instances occurred in the forensic 
setting? Yes. Is it to the level that some entities and special 
projects would have us to believe? Absolutely not. As long as 
human beings are involved, we will endeavor to do the very best 
we can, but no system we ever have will ever be perfect.
    However, the NAS report before you seems to erroneously 
focus on perceived biases in the forensic law enforcement 
communities. Forensic technicians and scientists are said to be 
rife with cognitive bias. This report says they demonstrate 
bias by seeking to play supervisors or by basing results on 
suggested data. Some passages suggest that forensic scientists 
simply might see things that don't exist or skew their outcome 
by intentionally presenting their findings in an unfair way to 
produce a particular result.
    If we follow that logic, we must ask this question: when a 
fingerprint examiner in some jurisdiction tells us that a 
suspect is excluded as a source of the latent print, meaning 
that person didn't do it, should we now charge him anyway 
because the examiner's cognitive bias may affect the 
examination? Obviously the answer is a resounding no. That's a 
silly question. But it makes a point that this report 
overlooks. In other words, this report suggests that the only 
time forensic sciences is wrong or inaccurate is when the 
conclusion by the scientist or technician points to the guilt 
of the accused. If the evidence does not, then everything is 
okay.
    As we speak in courtrooms all across this country and in 
jurisdictions of yours and your States, a prosecutor is trying 
to do the right thing. As a seeker of truth, that prosecutor 
must be able to do everything possible and take every tool into 
the courtroom that they can to seek justice. If she does not 
have the forensic evidence juries have come to demand from a 
satiation of crime scene television and the defense bar 
demands, she is bludgeoned with pleas of, where are the 
fingerprints, or where is the bullet? But if that prosecutor 
has such evidence and it is relevant and admissible, she must 
now defend that evidence from the defense lawyer's attacks 
using this NAS report as Defendant's Exhibit Number 1. It's 
happening every day in our courtrooms.
    Members of this Committee, it is vital that you know the 
negative impact this report has already had on prosecutors 
trying to find the truth in every jurisdiction across this 
country. Former convictions and current prosecutions are being 
challenged by using the words of the NAS report to attack 
forensic science evidence. This is true, even though the report 
made efforts to say that no judgment is made about past 
convictions and no view is expressed as to whether courts 
should reassess the cases that have already been tried.
    We welcome the recommendations of this Committee, in 
conclusion, and of the NAS report. We believe that some of 
these recommendations will serve to strengthen forensic 
sciences for years to come. However, we absolutely recognize 
and vehemently disagree with portions of the agenda-driven 
attack upon well-founded investigative techniques. These same 
techniques or sciences are used every day to find the truth in 
every type of case.
    As an investigative tool, every discipline of forensic 
sciences has not simply led to convictions, but has delivered 
the truth. I know this truth, and I sleep very well at night 
knowing that the dedicated prosecutors, forensic technicians 
and scientists working in independent law enforcement agencies 
or labs use their craft to see that justice is done, innocents 
are exonerated, and the guilty are held responsible for their 
actions.
    I thank you for your time.
    Chairman Leahy. Thank you very much.
    Our next witness is Matthew Redle. Did I pronounce that 
correctly?
    Mr. Redle. Redle, Mr. Chairman.
    Chairman Leahy. Redle. Redle. Sorry. Mr. Redle. That is the 
note that I had from my staff, so it's my fault, not theirs.
    Matthew Redle is a County and Prosecuting Attorney in 
Sheridan, Wyoming. Mr. Redle has given lectures and conducted 
training on forensic issues at the National Advocacy Center and 
for organizations including the National District Attorneys 
Association, the Wyoming Division of Criminal Investigation, 
and the Wyoming State Crime Laboratory. He's been a panelist at 
the National Institute of Justice on post-conviction DNA 
issues. He's a member of the Council of the Criminal Justice 
Section of the American Bar Association.
    Mr. Redle received his undergraduate and law degrees from 
Creighton University.
    Mr. Redle, please go ahead, sir.

STATEMENT OF MATTHEW F. REDLE, COUNTY AND PROSECUTING ATTORNEY, 
            SHERIDAN COUNTY SHERIDAN COUNTY, WYOMING

    Mr. Redle. Thank you, Mr. Chairman, Senator Sessions, 
members of the Committee. My name is Matt Redle. I'm the duly 
elected county and prosecuting attorney of Sheridan, Wyoming. 
It is an honor, a distinct honor, to appear before you today.
    As a prosecutor, I'm charged to act as a minister of 
justice, to seek justice in the discharge of my duties. When a 
crime is committed a victim cries out for justice, the evidence 
necessary to satisfy that plea may rely upon the work of 
earnest members of the forensic science community. It is their 
careful analysis of physical evidence that may provide a 
critical link in the chain of proof that is necessary to lead 
to the perpetrator of their crime being brought to justice.
    Police, prosecutors, and dedicated men and women in our 
Nation's crime laboratories know that the arrest of the wrong 
person, the arrest of an innocent person, may result in yet 
another innocent person being victimized at the hands of the 
true perpetrator. It does not satisfy our victim's plea to 
arrest the wrong person, neither does it fulfill my duty to 
seek justice, nor protect the citizens of my community. 
Prosecutors know that justice is best served by exonerations of 
the innocent before trial. The reliability of forensic science 
is critical to that effort.
    The release of the National Resource Council report titled, 
``Strengthening Forensic Science in the United States'' was one 
step in a dialog. It a dialog on how best to provide reliable 
scientific evidence to the criminal justice system. This 
hearing and your work are a critical next step in that process.
    My prepared remarks concern one recommendation of the 
Research Council that misses the mark in our effort to secure 
reliable scientific evidence. Recommendation No. 4 suggests the 
removal of public crime laboratories from law enforcement or 
prosecution agencies. I believe, Mr. Chairman, that the 
question of where a laboratory is located is not nearly as 
important to the reliability of its evidence compared to the 
question of how it operates.
    Two things, in my estimation, are far more important in 
promoting scientific reliability in a crime laboratory. The 
first, is the culture developed within that laboratory. 
Hopefully that culture is one that recognizes the contribution 
that the integrity of the process makes to the reliability of 
the results and therein to the success of the investigation. It 
is that culture that fosters autonomy within a law enforcement 
agency, encouraging objective clinical judgment. Such a culture 
insulates scientists from inappropriate influences and promotes 
the scientific value of transparency in the testing process.
    The second is more concrete. It is the implementation of 
effective programs of quality assurance and quality control. 
Quality control measures, such as laboratory accreditation, 
certification of scientists, adherence to validated testing 
protocols, proper and complete documentation, internal and 
external performance audits and inspections, regular 
proficiency testing, and appropriate corrective procedures in 
the event error is discovered promotes values of transparency 
and reliability and are far more important than the name of the 
agency outside the building.
    With all due respect to Mr. Brown, I would suggest, Mr. 
Chairman, that Mr. Brown's case represents not so much a 
failure of science. As much as it pains me to say so, my 
understanding of the events involved in that case, it 
represents a colossal ethical failure on the part of the 
prosecution in that case.
    The prosecutor, as I understand it, had retained a forensic 
dentist well-known in New York State to examine the evidence in 
that case. That doctor, Dr. Levine, returned a finding that was 
exculpatory of Mr. Brown. The prosecutor, not abiding by his 
ethical responsibilities, not following the constitutional rule 
of Brady v. Maryland, withheld that information from the 
defense and instead shopped for a new expert, a local dentist. 
As a result of that failure, that ethical failure, this tragic 
injustice was perpetrated on Mr. Brown, and I apologize on 
behalf of prosecutors everywhere.
    Mr. Chairman, as you and the members of the Committee work 
through the issues raised by the report, I look forward to 
providing whatever assistance I might to help you in your 
efforts. Thank you.
    Chairman Leahy. Thank you, Mr. Redle.
    Both you and Mr. Matson and others have stressed the need, 
as a prosecutor, you're in a pivotal part of the criminal 
justice system, not only the ability to bring charges, but 
you're the only one who has the real ability to withhold 
bringing charges if you don't feel the evidence is sufficient. 
You do stand at that juncture between society and the criminal 
justice system. I've always felt that. In many ways, the 
prosecutor carries the most important part, having to make 
those decisions.
    I won't have time to ask all my questions, and I'll submit 
some for the record after I finish, because of an 
appropriations matter. I'm going to turn over the gavel to 
Senator Klobuchar, who is a former prosecutor herself.
    Dr. Buel, you emphasize the need for comprehensive forensic 
reform, substantive reform, support for research, and in not 
just a few high-profile disciplines, like DNA. Now, Congress, 
again, in a bipartisan way, has pushed for important advances 
in DNA technology, standardization of DNA testing, funding to 
reduce the backlogs in DNA testing. The more traditional 
forensic sciences, fingerprints, ballistics, tool-mark 
examinations, for example, have not received comparable 
support.
    When I used to prosecute cases we didn't have DNA. We did 
have bullets, we did have fingerprints, we did have tool marks, 
we did have fiber analysis and so forth. I think every crime 
victim in America deserves to have the highest quality of 
forensics examination, whether it's DNA or whatnot. If we take 
on the challenge of comprehensive forensic reform, we invest 
more in research and training for all forensic sciences--I 
think I know the answer to this--not just DNA, would that help 
us solve more crimes?
    Dr. Buel. Mr. Chairman, if we can fix the infrastructure of 
our country, if we can fix the bridges, roads, we can improve 
forensic science. I think it's imperative. I think, like you 
mentioned, there's only a certain number of cases where DNA 
would be appropriate for use. The other disciplines provide 
much information for the prosecutor to either eliminate or 
include somebody as a suspect.
    The NAS report took some snapshots of these disciplines, 
and I believe what we need is a full album of pictures to see 
how best to go forward with some of these areas. That's my 
recommendation of something like the NRC report, done on a 
national level for some of these other areas. So, yes. The same 
sort of support we're giving to DNA, where we're trying to 
remove the backlogs, trying to improve the science, trying to 
make education paramount for each examiner would go a long way 
in solving crimes in our great country.
    Chairman Leahy. Well, Dr. Buel, I like the fact that you 
mentioned that there's not DNA evidence in a lot of crimes. I 
just want to underscore that. Many times now, because of, I 
call it the ``CSI effect'', people are saying, OK, where is the 
DNA evidence? In an earlier era, where are the fingerprints? In 
many cases we don't have that and we don't have those things. I 
think it's good that you emphasize this.
    Mr. Neufeld, you talked about forensic evidence exonerating 
people. You've worked very hard, you and the others, on this 
area. How important is comprehensive scientific research and 
testing of the non-DNA forensic sciences? Are we doing enough 
in the non-DNA forensic sciences in our standards and our 
testing?
    Mr. Neufeld. Well, you know, it's interesting. Congress 
historically has been extremely generous in providing States 
and localities money to do forensic DNA testing. I think one of 
the main reasons they were generous is that everybody 
understood the validity and reliability, the robustness of this 
technology. It made sense. It was good public safety. What this 
issue----
    Chairman Leahy. Could we not be doing the same in some of 
the other areas?
    Mr. Neufeld. Well, I mean, what the NAS report is saying, 
you know, these other areas are not as robust and they need 
more research, basic research, applied research. They need 
standards, like DNA has. Once they have those things in place, 
sure, they should be getting additional funding as well. But to 
simply give the funding for the other disciplines----
    Chairman Leahy. But isn't there kind of a chicken/egg thing 
there? I mean, if you're going to improve them you're also 
going to have to have funding, training, and standards to 
improve them, are you not?
    Mr. Neufeld. Well, absolutely. But what you have to do 
scientifically, is the first thing you do is you have the basic 
and applied research to validate. Once it's validated you come 
up with standards and parameters for understanding when the 
technology will work and when it won't work, and then you have 
additional funding to train all the people who are utilizing it 
to make sure they do it the right way. It's not a chicken and 
egg, it's actually a very logical procedure----
    Chairman Leahy. So what you're saying is, establish the 
standards and then make sure you've got the money so the 
standards can be used.
    Mr. Neufeld. Absolutely. And to establish the standards, do 
the necessary research.
    Chairman Leahy. Thank you.
    And if I might, with the forbearance of Senator Sessions, 
just ask one other question. I'll put the rest in the record.
    Chief Hurtt, I read more than I laid out in my introduction 
of you about the problems you faced in Houston. You actually 
had two choices. You could have tried to sweep it under the rug 
or you could have confronted it and tried to make changes and 
do the necessary retesting, evaluation, and so on.
    Based on your experience, and based on your experience of 
40 years in law enforcement, what would you tell another police 
chief if they called you up and said, hey, chief, I think we're 
a little shaky in our labs here. What should I do about it?
    Chief Hurtt. Thank you, Mr. Chairman. The first thing the 
chief did, as far as admitting to, is that he did have a 
problem. The other is to make sure that any process that is 
undertaken to fix that problem, that they be very transparent. 
The only way that we're going to be able to regain the 
confidence of forensic science, whether it's DNA or the other 
sciences, we need to make sure that we make it plain that we 
understand that there were mistakes or errors made and that 
we're taking the appropriate steps, and that we will employ 
experts in the field like we did in the Houston Police 
Department to come in and do an extensive investigation and 
then implement the recommendations from that investigation. 
Thank you.
    Chairman Leahy. Thank you very much, Chief.
    Chairman Leahy. Senator Sessions, thank you for your 
forbearance.
    Senator Sessions. Thank you.
    Mr. Brown, I also would say to you how distressing it is to 
hear your story and what you suffered as a result of an 
injustice. That's pretty clear that that happened and it 
troubles me, as someone who has spent a lot of time in law 
enforcement. I've seen some close cases. The two I've seen that 
were innocent, the hair still stands up on my neck when I think 
about them. Neither served a lot of time. It was eyewitness 
testimony that turned out to be wrong. So, it's scary. We have 
to be careful in the criminal justice system.
    I would note that in the Corsican Daily Sun in Texas, Judge 
John Jackson, who was one of the prosecutors in the Willingham 
case, wrote a letter August 28th that was published. He said 
the trial of Mr. Willingham contained overwhelming evidence of 
guilt completely independent of the undeniably flawed forensic 
report. He said, for example, the event which caused the three 
children's death was a third attempt by Todd Willingham to kill 
his children, established by the evidence. He had attempted to 
abort both pregnancies by vicious attacks on his wife in which 
he beat and kicked his wife with the specific intent to trigger 
miscarriages.
    Blood gas analysis revealed that he had not inhaled smoke, 
contrary to his statement which detailed rescue attempts. He 
rejected taking a polygraph. He was a serial wife abuser, both 
physically and emotionally. His violent nature was further 
established by his vicious attacks on animals, which is common 
to violent sociopaths.
    Witnesses heard him, at the funeral of his deceased older 
daughter, at the funeral home, whispering to, I guess, the 
body, ``You're not the one who was supposed to die.'' A 
refrigerator had been pushed against the back door, making it 
difficult, if not impossible, to get out. When a plea bargain 
was discussed with him, it was rejected with an obscene and 
potentially violent confrontation with his defense counsel. So 
I don't know what the truth is in that case. That does not 
excuse a flawed forensic report, but it looks like there was 
other evidence in the case indicating guilt.
    Chief Hurtt, you have a big police department. You bring a 
lot of cases every year. Do the delays in forensic sciences 
overall, a lack of resources in the forensic science 
laboratories, does that present a problem for your police 
officers who go out and make a case, but then you have to wait 
before it can go forward to prosecution for these reports to be 
completed?
    Chief Hurtt. That is, indeed, a problem that we face in the 
Houston Police Department on a daily basis. For instance, we 
were investigating a serial rapist and homicide case in north 
Houston and we wanted to send out some evidence to the FBI DNA 
lab. It took almost a year for us to get a return on that 
because of the backlog that they were facing and the requests 
that they were getting from around the country.
    Senator Sessions. So you send your DNA to the FBI lab 
routinely?
    Chief Hurtt. In some cases, sir, we send it to the FBI lab, 
but we do have a fully operating lab within the Houston Police 
Department.
    Senator Sessions. Mr. Matson, I guess you're still 
prosecuting, but as a Talledega County prosecutor do you find 
that frustrating for law enforcement officers and prosecutors, 
the delays in getting forensic reports? Could those delays 
actually result in a criminal being able to run loose in the 
community and commit more crimes?
    Mr. Matson. Yes, it is. It's frustrating. One case comes to 
mind. We would not report a case out of grand jury until we got 
the forensic reports back to make certain. An individual that 
wanted to plea on the information, which is a pre-indictment 
form of plea in our State, they made the written request. He 
said, I was caught with it, it was powder, it was LSD, and I 
want to plead guilty.
    The report came in about 6 weeks later and it was not. He 
had been ripped off when he bought it and it wasn't LSD. He 
couldn't plead to the controlled substance. He could have plead 
guilty to something he thought he had, but we had to wait. That 
delay caused serious problems in that case. So delaying those 
cases--we can't go to trial until we have those reports, and 
sometimes when you get the reports, then you need further 
analysis.
    But I will say this: our State has an independent forensic 
sciences department and they have made great strides in our 
State to overcome that backlog, but it's come at a great cost, 
financially and manpower. They're working tremendous hours to 
get this backlog. I remember several years ago--many years ago, 
about 10 or so, maybe, going to the lab to speak with an 
expert, with the defense lawyer, on a case upcoming. I walked 
in and there were refrigerators down the wall full of rape kits 
waiting to be done that had to be compared to some perpetrator 
or to the database system.
    Senator Sessions. Did Federal funding help the backlog, to 
your knowledge?
    Mr. Matson. Yes, sir, and we thank you so much. They really 
did. They were just backed up, and they've been able to get 
those taken care of and it's been a great help. But that 
backlog is a tremendous burden for us.
    Senator Sessions. My time is over.
    Mr. Redle, do you believe that the report, perhaps trying 
to get our attention, used some pretty strong language 
suggesting the unreliability of what I have always understood 
to be proven scientific techniques? Is that something that the 
District Attorneys are finding, as Mr. Matson said he's finding 
in Alabama, that this is being thrown up to create the 
impression with a jury that there's no basis for these kinds of 
reports?
    Mr. Redle. Senator Sessions----
    Senator Sessions. You might push your button there to go on 
record.
    Mr. Redle. Thank you. Senator Sessions, yes. It seems to be 
spotty around the country, but as a result, we're trying to 
track that within the national DA's community to see where the 
impact is, what disciplines are being subject to attack. There 
are some concerns, although I would note that the National 
Academy report does indicate that it is not passing any 
judgment on the use of any of these techniques in prior cases, 
in past cases. It's simply calling upon the country, the 
Nation, as it were, policymakers such as yourself, to provide 
the necessary leadership to see that unvalidated issues of 
science are given the resources to be validated.
    Senator Sessions. Well, you're right, it does make those 
qualifications. But there is some language, I assume, that's 
probably being thrown up in court a lot. I'd like--Madam 
Chairman, maybe we can talk with Chairman Leahy, you, and 
others on this issue. Maybe some national training. Maybe we 
don't have enough national training centers. It would be 
something the Federal Government could do without taking over 
local law enforcement, providing training at a discounted rate, 
or free, for people so we reduce the possibility of error. 
Thank you.
    Senator Klobuchar. Thank you very much, Senator Sessions.
    Senator Franken.
    Senator Franken. Thank you, Madam Chair.
    I have a question for Mr. Neufeld. I read the article in 
The New Yorker about Mr. Willingham. Actually, I find some of 
Mr. Jackson, the prosecutor's, testimony to be very suspect. It 
doesn't seem that it washes. There are parts of this article 
that really--first of all, five experts said that there was no 
arson in this. But I don't want to argue this case, but I found 
the article extremely disturbing and the findings of the 
National Academy's report to be terrifying, both for the 
falsely accused and for the safety of our communities who 
falsely think the real criminals are off the streets.
    In my opening statement I asked whether we should consider 
a nationwide moratorium on the death penalty. What do you think 
of this? Do you think it is necessary at this point in time?
    Mr. Neufeld. Thank you, Senator. First of all, just to 
follow up on the remark you made in response to Senator 
Sessions' statement about the case in Texas, in all these 
cases, Senator, where we've exonerated people, there was 
overwhelming evidence of guilt. It just so happened the person 
was innocent. What we find so extraordinary in these cases is 
that when we go back and we deconstruct them, all those 
different pieces that, together, look like overwhelming 
evidence of guilt, turn out to not hold scrutiny.
    For example, in Mr. Brown's case there was also a jailhouse 
informant who said he had confessed to him. He, too, had a wife 
who said not such nice--an ex-wife who said not such nice 
things about him during the course of the prosecution. It 
turned out that the informant was wrong, that the wife's 
remarks had a certain bias themselves, and indeed, this man, 
Roy Brown, was completely innocent, but nevertheless spent 15 
years in prison.
    The same can be said for the other 241 post-conviction DNA 
exonerees, 17 of whom had been sentenced to death. Many of them 
had been sentenced to death based on the misapplication of 
forensic science. The case that Mr. Giannelli referenced of Ron 
Williamson, came within five days of execution. The centerpiece 
of that case was bad hair evidence from the State hair 
examiner.
    Mr. Brown, fortunately, was never on death row, but we had 
a death row inmate in Mississippi where the leading forensic 
dentist said it was absolutely certain it was his teeth, to the 
exclusion of the whole world. He was dead wrong. He came within 
months of being executed. Again and again and again, in hair, 
in serology, in bite marks, and in fingerprints. Brandon 
Mayfield could have faced the death sentence as a terrorist had 
he been convicted as an accessory in the bombing of the Madrid 
train station. Nevertheless, completely innocent.
    So the point is, to answer your question, finally, is that 
whereas we can debate all kinds of things about the death 
penalty politically, philosophically, religiously, the one 
thing we can't debate is that all these wrongful convictions 
demonstrate quite compellingly that the system is not quite as 
perfect, as invulnerable as we always thought it was and to 
have a punishment where you can't reverse it in the event you 
find new evidence of innocence, as in the Willingham case, 
raises a very serious problem and perhaps a justification for 
considering suspending temporarily the death sentence unless 
and until we can make these forensic sciences sufficiently 
rigorous that we don't have to have those reservations.
    Senator Franken. Thank you.
    Mr. Matson, the National Academy's report unequivocally 
says that DNA testing is far and away the most reliable and 
scientifically sound forensic technique. Yet, as you mentioned, 
law enforcement agencies around the country have a major 
backlog of rape kits that often contain critical DNA evidence. 
These should be high-priority cases. Given your experience in 
the field, what do you think we should do, or could do, to make 
sure that funding is available for forensic testing, to 
maximize DNA testing?
    Mr. Matson. Senator, I think Congress has taken great steps 
to provide funding for that. I think those backlogs are 
starting to decrease. We're seeing that in our State, and in a 
lot of States. I think the state of forensic science, 
particularly with DNA in that area, even the NAS report and I 
think the folks at this table would agree, that DNA is in a 
place where we would like it to be. I think it's important, 
though, when we look at DNA cases and we look at the 
exoneration cases, to understand that when we say that serology 
and hair evidence that Mr. Neufeld mentioned earlier, that 
those cases are flawed science. Well, 75 percent of the cases 
that have gone through The Innocence Project, or those people 
that were exonerated, were cases that were hair and serology 
from maybe 20 years ago.
    Back then, you looked at ABO secreters for blood typing to 
determine if somebody left a sample. Well, we're beyond that, 
so those cases are not happening anymore. We're not having ABO 
secreters tested, it's DNA. If it's hair, it's mitochondrial 
DNA. I had the first mitochondrial DNA in the State of Alabama. 
In that case, we used a laboratory out of Virginia. It cost a 
tremendous amount of money. We had no local funding for it. We 
had to find the dollars. We did, and had that case. So I do 
think that there are things in place to help us in funding and 
DNA and getting that backlog----
    Senator Franken. Thank you, Mr. Matson.
    Mr. Matson. Yes, sir.
    Senator Franken. I think you answered my question. Thank 
you very much.
    Mr. Matson. Thank you.
    Senator Franken. Thank you, Madam Chair.
    Senator Klobuchar. Senator Durbin.
    Senator Durbin. Thank you, Madam Chair.
    Mr. Neufeld, based on DNA evidence, how many prisoners have 
been exonerated following their convictions?
    Mr. Neufeld. As of today, we have 242 people who have been 
convicted who have subsequently been exonerated by DNA. I would 
point out that in almost all those cases, the exonerees had 
completely exhausted their direct appeals, had completed their 
collateral attacks on habeas corpus, and would have either been 
executed or spent the rest of their years in prison but for the 
sort of serendipitous intervention of DNA testing.
    Senator Durbin. In those States where access to DNA testing 
is not available on a post-conviction basis, what is the 
solution?
    Mr. Neufeld. Where there hasn't been access to DNA?
    Senator Durbin. States where there is no access to DNA 
testing.
    Mr. Neufeld. Well, that's a tough question, because I had 
the misfortune of arguing a case before the U.S. Supreme Court 
this last term to determine whether there was a constitutional 
right to post-conviction DNA testing, and five of the nine 
justices disagreed with me. So we're going to do everything we 
can to create access through the local legislatures as best we 
can. I do think that there is something more that Congress can 
do in that regard.
    When the Innocence Protection Act was passed, it was the 
will of the Congress that States pass bills that would provide 
easier access to post-conviction DNA testing, and if they did 
so there would be certain pools of money made available to 
them. What ultimately happened with that bill is that the pools 
of money that would be made available shrunk considerably so it 
no longer became that important to a State to allow for post-
conviction DNA testing.
    Certainly when you reconsider the Innocence Protection Act, 
which is coming up, I think, this fall, it would be very useful 
to go back to the original position taken by many members of 
this Judiciary Committee to create a much greater incentive for 
those few States who have so far refused to grant access to DNA 
testing.
    Senator Durbin. Mr. Matson, as a professional prosecutor, 
don't you believe, in good conscience, that there should be DNA 
testing in every State?
    Mr. Matson. Yes, sir. I believe that when it's available, 
when the DNA evidence is available to show that, then it should 
be. I would give an example, though. Something we must 
understand is, post-conviction evidence, sometimes from so many 
years ago, that evidence, it could be an article of clothing, 
may be kept in a filing cabinet in a court reporter's office. I 
had a case that involved a post-conviction on a death penalty 
case. We were in the Rule 33, or post-conviction hearings. 
About a year into it, the person serving time, a clerk wanted 
to come down and look at some of the evidence. They opened the 
rape kit. He wanted to open it and actually touch it. Well, he 
would have left DNA in that sample.
    Senator Durbin. But that's an issue that would be raised, 
would it not, on chain of custody and credibility of the 
evidence? I mean, it could be that there is not any piece of 
evidence remaining that could either convict or exonerate a 
person. I mean, the court has to reach a threshold of where 
they have some credible piece of evidence. But assuming they 
have a credible piece of evidence and chain of custody, you're 
saying, as a professional prosecutor, you believe there should 
be DNA testing allowed, is that correct?
    Mr. Matson. Any time that we can do anything to find the 
truth, I support it. I just know that sometimes when you've got 
a case that is 8, 9, or 10 years old and you've got a sample, 
maybe from a rape kit or something of that nature, maybe an 
article of clothing you want to test, we don't know who's 
handled it and who hasn't handled it in 10 years. Then we come 
back if a motion for a new trial is granted. The prosecutor is 
dead, the witnesses are dead, and I'm left there reading a 
transcript into the record in front of a jury for 3 days.
    Senator Durbin. I think you make a valid point there, and I 
appreciate your statement.
    Mr. Neufeld, are there any forensic science methods that we 
should basically disregard based on what you've been through? I 
mean, we understand that nuclear DNA analysis is reliable, but 
are there some forensic methods that you believe are so 
intrinsically suspect or unreliable that we should not count on 
them?
    Mr. Neufeld. Senator Durbin, I'm not a scientist. I'm also 
not a good technician. I'm not a scientist and I'm unqualified 
to answer that question. In fact, there's only one scientist 
actually sitting at this bench right now, and that's the doctor 
from Vermont. Others have written who are scientists that a 
number of disciplines have not been adequately validated.
    I have seen firsthand, in the cases that I've represented 
individuals, where technologies that are still in use, such as 
bite marks and arson, are nevertheless misapplying science and 
the result is that there are wrongful convictions and the 
really bad guys are left out there to commit more crimes. If 
other scientists who are reputable scientists have reached that 
kind of consensus as they did in the National Academy of 
Sciences report, then that should be a cause for pause. But 
hopefully that decision will be made by other scientists, not 
by a mere lawyer.
    Senator Durbin. Thank you.
    Thank you, Madam Chair.
    Senator Klobuchar. Thank you very much.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Madam Chair.
    Chief Hurtt, I'd like to ask you to comment on the problem 
of delays, particularly delays occasioned by lack of resources 
in the processing of crime scene evidence, not only from the 
perspective of its effect on the prosecution of that particular 
offense, but from a police and investigation point of view as 
you try to develop leads that might relate to other cases. This 
was brought home by a recent visit in Rhode Island with a local 
police chief who had been waiting over a year for a simple 
firearms ballistics report to come back to him in a case.
    How significant is it, in terms of your own investigative 
authorities and responsibilities as police officers, to not 
just have accurate scientific evidence, but timely access to it 
while the crime is fresh and the witnesses are around and 
interconnections can be made with other evidence in other 
cases?
    Chief Hurtt. Madam Chair, Senator Whitehouse, that's a very 
good question, because as cases linger my investigators are 
assigned new cases every day. In order for them to be able to 
manage their cases, at some point they need to close a case, 
clear it, and move on, otherwise we'll have officers with 
stacks and stacks of cases. We are very interested in seeing 
that justice is done.
    When we have delays, as you say, witnesses disappear, 
people die, and I guess the worst part of it all, when we have 
to wait long periods of time for evidence to be tested, that 
suspect may stay free to continue to commit other violent 
offenses. So I guess to sum it up, number one, it increases the 
workload for the detective, it also gives an opportunity for 
that individual to remain free and commit other crimes, and 
justice is not being served to the victims that have been 
victimized by either property crimes or violent offenses.
    Senator Whitehouse. Thank you, Chief.
    I guess I'd like to ask prosecutors, Mr. Matson and Mr. 
Redle, this. When I was our Attorney General in Rhode Island, 
it's one of the very few States where the Attorney General is 
also the D.A. We, Delaware, and Alaska are the three. So I have 
been in your shoes and I remember very distinctly a case that 
happened during my tenure when a police officer who had been 
convicted of murder proved to have been innocent.
    He was imprisoned, and it was my, I guess, mixed duty--
happy to get the right thing done, unfortunate this happened in 
the first case--to move as rapidly as we could to secure his 
release from prison and proceed with the prosecution of the 
individual who had come in to confess to the crime after the 
police officer had spent several years in prison for a crime 
that he had not committed.
    Now, Rhode Island doesn't have a death penalty. We gave it 
up years ago after a murder back in 1850, when it appeared very 
much that the wrong individual had been convicted and hanged 
for the murder. So we haven't had to face the issue of dealing 
with death penalty prosecutions.
    But I was also U.S. Attorney. The U.S. Attorneys Offices 
have very rigorous standards for proceeding with a death case. 
They struck me as being good, thoughtful standards. I was glad, 
as U.S. Attorney, that there were these additional layers of 
process, procedure, internal review, disclosure, and so forth 
that were required for death penalty cases. I don't believe 
that those standards exist around the Nation.
    In many States there seems to be no real difference at all 
between a death penalty case and a regular case. I'm just 
wondering what your observations are as prosecutors about the 
extent and the merits of additional procedural protections in 
death penalty cases where, if there is error, the error becomes 
irretrievable by virtue of the application of the death 
penalty.
    Mr. Matson. You would like us both to respond?
    Senator Whitehouse. If you would.
    Mr. Matson. If I could, a judge that I've worked with for 
many, many years said he called death penalty cases death 
penalty cases because the judge and the prosecutor were dead 
before the defendant was because of the years it takes. That's 
actually true. It is a lengthy process. In our State, and I 
think in most States, you have, certainly, the charging process 
and the grand jury process, and then the trial itself, which is 
bifurcated here. We have a jury trial, and then once there is a 
finding of guilt of capital murder--and that doesn't 
necessarily mean death penalty.
    Probably more times than not when I've had a capital case I 
sought life without parole, or non-dead, which was the 
recommendation of the victims, the community, or law 
enforcement, and so we didn't seek death in those cases. It's 
not a given that it's going to be death. But we go through that 
process and then there is a stringent amount of appellate 
systems. We have lengthy post-conviction hearings that come 
back to State courts where evidence is taken, things can be 
retested, are retested, and they take years. I do think we do 
have those safeguards in our State system.
    Senator Whitehouse. And you're comfortable that that's true 
not only of your own State system, but across the country?
    Mr. Matson. I will say this. I'm asked a lot of times, are 
you for the death penalty? Until you've stood in front of a 
jury, 12 people, and asked for that punishment, you really 
don't know. Everybody in a coffee shop somewhere says they are, 
but they don't really know. That's why the jury selection 
process is very difficult. When I'm asked that, are you for the 
death penalty, I say, in the cases that I've had, in the 
horrible, gut-wrenching homicides that I've had, yes.
    In a case in some other States, the facts--it's hard for me 
to speak to a case in another State that I don't know the facts 
of, I've not sat on, I've not been part of that. So when those 
decisions were made, I trust the judgment of a person who lives 
in that community, who is a part of that community, who has 
weighed the evidence. I know the jury system, I know the 
evidence in the case, and I believe in those cases the right 
thing was done for those people, but I can't judge that for 
myself because I'm not in that State, in that circumstance.
    Senator Whitehouse. Mr. Redle, my time has expired, so it 
looks like you're off the hook.
    Madam Chair.
    Senator Klobuchar. If you want to finish up, Senator 
Whitehouse, you can. Okay.
    I wanted to thank all of you for your good testimony here, 
and I wanted to focus a little bit more on where we can find 
some agreement on the recommendations of the panel. I sit here 
and I've listened to both the prosecutors and I just feel that 
frustration when you want to get a case done and you have a 
delay in the evidence, and 2 years from now it's much harder to 
do, or a year from now, than it would have been if you could 
get it back in a month.
    I also have had my own experience with working and finding 
out that we thought we had the right person for 8 years, when--
you've all had these cases--some eyewitness comes forward and 
says this is the right person, and then you get the DNA back--
and what a blessing it is to have that science--and you find 
out, no, it's not the person that was arrested that happened to 
live in the building that looked like the guy, it's someone 
else. So I think the science has been truly a blessing, both 
for convicting people and also for making sure we are not 
convicting people who are innocent. So I want us to all 
remember that as we go forward.
    The questions I had were specifically, first, on this 
report, if there could be some agreement from the prosecutors 
on this accreditation issue, that this is something--despite 
the language you may not agree with in the report, that that is 
something that we could look at going forward as a possibility 
that could be helpful.
    One of the things with the delays, we've seen more and more 
testing, forensic testing going on, and there would be a 
reason, I would think, to try to have some set accreditation. I 
just wondered if you could comment on that.
    Mr. Redle. Senator Klobuchar, yes. I think in most 
instances we actually agree with a lot of the recommendations 
that the National Academy makes, accreditation being one of 
them. In fact, as a result of the DNA testing and the standards 
that were placed on that by the DNA Advisory Board, you now are 
looking at a community of forensic crime laboratories where I 
believe we're pretty close to 90 percent of the public 
laboratories are in fact accredited. That's a good thing. 
Certification needs to happen. That needs to be the next step. 
We believe in standards. The devil is always in the details, 
but we believe in the imposition of appropriate standards on 
those disciplines.
    Senator Klobuchar. Thank you.
    Mr. Matson, do you agree with that?
    Mr. Matson. Yes. Yes, I do. We have taken steps in our 
State, in the example of computers.
    Senator Klobuchar. I know. But how about this? Just to go 
back to the report, I think--correct me if I'm wrong--they're 
looking at some national standards for accreditation. Do you 
think that would be all right?
    Mr. Matson. Certainly. I think the more we can give 
credibility to the science and to the technology and the 
technicians that are doing it, the better. I would support 
that.
    Senator Klobuchar. Okay. And then the other piece of this 
is to suggest some kind of a National Institute of Forensic 
Science to try to get some more research. I realized, as we 
went on, we had the type of DNA testing, for instance, or other 
kind of testing got more and more refined as the science got 
more and more refined. Not only did this involve the training 
that Senator Sessions was mentioning, which I would hope would 
be a part of any effort that we would have here, some training 
dollars as well as some of the backlog that you're talking 
about, but this idea of the research that is suggested by the 
report, is that something that you think would be helpful?
    Mr. Redle. Madam Chair, in terms of research, I believe we 
do need more dollars for research. Whether or not that would 
best be provided through some kind of National Institute of 
Forensic Sciences, I very much doubt it. I think that we can be 
more efficient than that. I think we have the framework for 
accomplishing a lot of those things through already existing 
agencies. It was odd to me when I read the National Academy 
report that it proposed the National Institute of Forensic 
Sciences and rejected the National Science Foundation and NIST 
as being host agencies, perhaps, for research funding. It did 
so on the basis that they had modest experience in research 
funding. Yet, it was proposing the creation of a brand-new 
agency that at least presumably would have no experience in 
research funding.
    Senator Klobuchar. Okay.
    Do you want to answer that, Mr. Giannelli.
    Mr. Giannelli. I was a prosecutor for 2 years in the Army, 
so I appreciate the frustration that prosecutors are now facing 
with this report. I've talked to lab people and they're 
frustrated, too. The problem, though, is if you look at the 
cases by 1995, some of the cases I cited, this evidence was 
being challenged under Daubert and the research was not done. 
It's been 14, going on 15 years when we've had these first 
cases and the research has not been done under the current 
system. So that is the problem here. Now, the money was being 
given, but it was not funneled through the right type of 
research. I think you need some sort of independent scientific 
research program. Thank you.
    Senator Klobuchar. Okay. Thank you.
    Do you want to add anything, Mr. Matson?
    Mr. Matson. Just, we agree with the concept of the research 
and having that, but I don't know that a new political entity 
that would go through the political process, the ebbs and flows 
of politics getting into forensic sciences, is not something I 
think we need at this time.
    Senator Klobuchar. Okay. We'll look at that.
    I had wanted to ask one question about a case that actually 
I asked now-Justice Sotomayor about, Mr. Neufeld. Just so 
people know, I actually worked with The Innocence Project a 
little bit when I was a prosecutor. We videotape interrogations 
in Minnesota, and actually our police have grown to like it 
because it has protected them in various claims and also has 
protected defendants, so we've worked together on that, as well 
as eyewitness identification. It was again I found that we 
could find some common ground on some of these issues.
    I had a question about the Melendez-Diaz case. I think I 
had told you that I disagreed with that case and agreed with 
Justice Kennedy's dissent. This is the case about requiring 
various people--it's not clear from the details--to testify in 
forensic cases. You yourself, in your written testimony, said 
that cross examination wasn't enough to weed out bad forensic 
science because judges and lawyers didn't usually have the 
scientific backgrounds to understand the limitations of some 
form of forensic science evidence.
    So I'm just curious about how that Melendez-Diaz ruling 
could be a good thing if it just guarantees more cross 
examination that may not be particularly useful in the first 
place.
    Mr. Neufeld. Senator Klobuchar, I think you're completely 
correct. It's our position that one of the problems right now, 
and why the court took the position that it's not enough to 
introduce a certified crime lab report, that you'd want the 
individual who actually created that report in court, is 
currently there are no national standards about the content of 
a report. We have seen too many forensic reports all over the 
country which have little more than a paragraph in length and a 
thumbs up or a thumbs down.
    The kind of report that if your doctor gave it to you for 
an important medical decision, you'd fire the doctor and go to 
a new hospital. What we're talking about here, and what the NAS 
is talking about, is having meaningful standards for report 
writing, standards which will require the forensic scientists 
to not only describe what items were tested, to describe what 
methods were utilized, to identify the results, and then draw 
conclusions. Those are the things that go into a standard 
scientific report.
    If they did that here, OK, I can assure you, based on my 
experience--and that's what happens with DNA--what happens is, 
there are more pleas based on that report. If there aren't 
pleas, there are stipulations to the content of the report, 
because the last thing a defense attorney needs is some 
scientist who can support all of those findings with 
comprehensive reporting.
    Senator Klobuchar. So your argument is, if you had more set 
standards for these reports, then you wouldn't need these 
witnesses testifying?
    Mr. Neufeld. My opinion, Senator Klobuchar, is if you have 
these reports you will ameliorate the problem considerably 
because people will simply stipulate to their results and they 
won't have that kind of need to confront somebody on the 
witness stand. There may be some occasions where someone does 
it, but there's no question that if you have more rigorous 
report writing, it becomes a more efficient system.
    Senator Klobuchar. Senator Sessions, do you have more? 
Senator Sessions was out, but we did have a good discussion at 
the beginning about some common agreements here on the 
accreditation issue, and perhaps more research. There was some 
disagreement on where that research should be housed, but I was 
trying to--as you and I had discussed up here, there is some 
common agreement we can find here with this important report, 
while people may not agree about all the language in it as we 
move forward, and I added that we may want to look at funds for 
the training that you addressed, as well as the backlog that we 
continue to deal with all the time, Chief Hurtt. Thank you.
    Senator Sessions. Well, law enforcement overwhelmingly is a 
State and local responsibility. The Federal Government has a 
lot of problems, but one of them should not be to try to 
micromanage every burglary, robbery, or rape case in America. 
It's just not possible to do that. What can the government do? 
Well, Fred Thompson, when he was on this Committee, he believed 
that we should conduct--the first thing the Federal Government 
could do in a positive way is to spend the money to do the kind 
of research that can benefit every State and local law 
enforcement agency in America, to provide training, to do those 
kinds of things. None of those result in a major bureaucracy, 
hopefully, nor a takeover of local responsibility. So I'm 
positive about a lot of things that we could do together.
    Dr. Buel, with regard to DNA, that's sort of uniquely 
capable of a virtual absolute scientific certainty, is it not? 
Not total, but it's----
    Dr. Buel. We in Vermont still use statistics, so we give a 
statistical analysis of the results.
    Senator Sessions. How many chances----
    Dr. Buel. If you're giving statistics in the town of 
Montpelier that has a population of 10,000, and they're in the 
billions, it's pretty good evidence. Yes.
    Senator Sessions. Well, I think that's true.
    Now, with regard to fingerprints, that is just never going 
to be an exact science, is it?
    Dr. Buel. Well, I guess my feeling is that under proper 
use, when it's in an accredited laboratory, when we use quality 
assurance controls, when we have proficiency testing, blind 
proficiency testing, peer review, verifications, that we're 
trying to do the best possible job that we can. If we use a 
conservative approach to how we are to do this work, I think 
it's properly done and provides excellent evidence.
    Senator Sessions. Well, I've seen them testify and I've 
seen blow-ups of the handwriting, and it's pretty impressive. 
If that was the only thing in the world I had as evidence 
against a defendant I might be a bit nervous if I were a juror 
or a prosecutor, but when you see that as cumulative, it makes 
you believe it's very unlikely somebody else wrote that 
document. But some handwriting, there's not enough of it and 
it's not so clear.
    With regard to your forensic people in Vermont, if they 
wanted to be trained in fingerprint analysis or ballistics or 
DNA, where do you go? What kind of--are there a lot of places? 
Could we do a better job of having training centers of the 
highest order?
    Dr. Buel. Yes. Our region has what we call a New England 
Laboratory Directors Group. Several years ago, we wrote, I 
guess, a very short position paper to NIJ, the National 
Institute of Justice, requesting them to----
    Senator Sessions. To a National Institute of Justice?
    Dr. Buel. Of Justice. Yes. To try to provide some funding 
such that we can establish centers for fingerprint examiners 
and firearm examiners to go through a college such that when 
they come out, that they would be able to pass a CTS, a 
collaborative testing program proficiency test. Now, that would 
get them up to a point, but they would still need further in-
house training in the laboratory. Okay. So that is----
    Senator Sessions. Does that exist today? I mean, how does a 
fingerprint person who comes out of college and they want to be 
a fingerprint analyst, where do they get trained?
    Dr. Buel. What we do in forensics, is we steal one from the 
other laboratory.
    [Laughter.]
    Dr. Buel. And it's unfortunate. We just stole one from 
Chicago. Hopefully we won't have somebody steal one from us. 
But it's a very small group. It's a lot of on-the-job training 
that takes a couple of years to do. But there could be 
educational programs that allow individuals to come out with, 
perhaps, a 5-year degree, able to do at least the basics and 
have the understanding to do a proficiency test. That would not 
prepare them to do casework, but that would prepare them to do 
in-house training.
    Senator Sessions. Chief Hurtt.
    Chief Hurtt. Thank you, Madam Chair and Senator Sessions. I 
listened to the conversation about more, I guess, training in 
fingerprints and trace evidence and firearms to ensure that 
we're doing a good job in identifying suspects. In my 40-plus 
years of law enforcement, I've found DNA to be the best source, 
or dependable source, of identifying the suspect in criminal 
cases. Last year, myself----
    Senator Sessions. If you have it and the scientific 
analysis is good, reliable.
    Chief Hurtt. Yes. But I think, with major cities, counties, 
and State labs and FBI labs, small jurisdictions should have 
access to DNA. Whether they have to send it to the Federal, the 
State, or one of the major cities in this country, there should 
be access to DNA. Last year, I'm going to share with you, 
myself and several of my staff members made a trip to the U.K. 
to visit their crime lab, as far as DNA, and also to visit new 
Scotland Yard.
    At Scotland Yard, they have used DNA for the identification 
of property suspects, burglary suspects. They've used skin 
cells and also information that they gained because the person 
left prints at the scene, whether it was fluids or skin cells. 
Their detection rate of suspects increased from 15 percent to 
50 percent.
    Now, is it a good investment of our time to continue to 
train people in being able to do fingerprint identification or 
should we move the practice toward using DNA or touch-DNA to 
solve problems or property crimes? I would submit, the best 
process would be, move toward using DNA to solve property 
crimes as well as violent crimes.
    Senator Sessions. Good point.
    Madam Chairman, I would just say that to me, we give 
billions of dollars to the Department of Justice. I don't know 
why they're not working on this anyway. I mean, you have to go 
over there, the police chief of Houston. It seems to me the 
Department should be on top of all these issues, cutting-edge 
technology, providing what does work, what is reliable, what's 
not reliable, and feel that they are a resource, a supportive 
entity with the best science available, to our local and State 
law enforcement. To me, I've always felt a bit blase about 
that. The National Institute of Justice and Bureau of Justice 
Statistics provide a lot of valuable information, but I think 
we could do a better job of getting into that.
    Mr. Chairman, I would offer for the record the Corsican 
Daily Sun. Senator Cornyn had provided that to me. He was not 
able to be here at this hearing and he wanted it made a part of 
the record, and I would offer that.
    Senator Klobuchar. Without objection, it will be included 
in the record.
    [The article appears as a submission for the record.]
    Senator Klobuchar. All right. Well, I wanted to thank all 
of you for being here today, and especially for Mr. Brown, for 
sitting through this hearing and everything that you've had to 
endure. I want to thank you for your courage in being here. 
Also, just to point out again, I do think that we have some 
common agreement on the need to move forward here with some of 
the recommendations from this report.
    Again, we will work out the details and we will work with 
all of the groups involved here. That's how we like to get 
things done. But I will stress again that I have found some 
common ground with prosecutors, defense lawyers, and police, 
that we always want to get the right person, if for no other 
reason than the person who committed the crime is still out 
there, not to mention, no one wants to put an innocent person 
behind bars. So I think that there's good reason to move 
forward here. This has been a very helpful hearing. Thank you 
very much.
    We are adjourned.
    [Whereupon, at 12:02 p.m., the Committee was adjourned.]
    [Questions and answers and submissions follow.]

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