[Senate Hearing 112-519]
[From the U.S. Government Publishing Office]
S. Hrg. 112-519
IMPROVING FORENSIC SCIENCE IN THE CRIMINAL JUSTICE SYSTEM
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
JULY 18, 2012
__________
Serial No. J-112-86
__________
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 CHUCK GRASSLEY, Iowa
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
CHUCK SCHUMER, New York JON KYL, Arizona
DICK DURBIN, Illinois JEFF SESSIONS, Alabama
SHELDON WHITEHOUSE, Rhode Island LINDSEY GRAHAM, South Carolina
AMY KLOBUCHAR, Minnesota JOHN CORNYN, Texas
AL FRANKEN, Minnesota MICHAEL S. LEE, Utah
CHRISTOPHER A. COONS, Delaware TOM COBURN, Oklahoma
RICHARD BLUMENTHAL, Connecticut
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
prepared statement........................................... 98
WITNESSES
Burns, Scott, Executive Director, National District Attorneys
Association, Alexandria, Virginia.............................. 12
Neufeld, Peter, Co-Director, The Innocence Project, New York, New
York........................................................... 10
Spriggs, Jill, Crime Lab Director, State of California and
President, American Society of Crime Lab Directors, on behalf
of the Consortium of Forensic Science Organizations............ 8
Stoiloff, Stephanie, Commander Forensic Services Bureau, Miami-
Dade Police Department, Miami, Florida on behalf of the
International Association of Chiefs of Police.................. 5
QUESTIONS AND ANSWERS
Responses of Scott Burns to questions submitted by Senators
Franken and Klobuchar.......................................... 23
Responses of Peter Neufeld to questions submitted by Senators
Franken, Grassley and Klobuchar................................ 27
Responses of Jill Spriggs to questions submitted by Senators
Franken, Klobuchar and Grassley................................ 42
Responses of Stephanie Stoiloff to questions submitted by
Senators Franken, Grassley and Klobuchar....................... 62
SUBMISSIONS FOR THE RECORD
Burns, Scott, Executive Director, National District Attorneys
Association, Alexandria, Virginia, statement................... 93
Matson, Barry, Deputy Director, Alabama District Attorneys
Association, ADAA Office of Prosecution Services, OPS,
statement...................................................... 100
Neufeld, Peter, Co-Director, The Innocence Project, New York, New
York, statement................................................ 109
Spriggs, Jill, Crime Lab Director, State of California and
President, American Society of Crime Lab Directors, on behalf
of the Consortium of Forensic Science Organizations............ 117
Stoiloff, Stephanie, Commander, Forensic Services Bureau, Miami-
Dade Police Department, Miami, Florida on behalf of the
International Association of Chiefs of Police, statement....... 121
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.
Spriggs, Jill:
http://www.swgfast.org and http://www.ncjrs.gov
Stoiloff, Stephanie
Joint ATF and SWGGUN Annotated Bibliography, http://
www.afte.org
IMPROVING FORENSIC SCIENCE IN THE CRIMINAL JUSTICE SYSTEM
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WEDNESDAY, JULY 18, 2012
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Franken, Blumenthal, and Grassley.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Although Senator Grassley is here, he had
to step back out for a minute, so we can start. I will continue
on and then, of course, yield to Senator Grassley when he comes
in.
We are going to reconsider the important issue of how best
to ensure the effectiveness and scientific integrity of
forensic evidence used in criminal cases. Of course, it is
essential to make sure the criminal justice system works for
all Americans, for the defense and prosecution.
Now, this is an issue that we have had as a priority in
this Committee for years. It was an issue that formed a
backdrop for the Committee's work on the Innocence Protection
Act and the Justice for All Act in the last decade, and we
focused again on it in the last 3 years.
The National Academy of Sciences published a report in
February 2009 asserting that the field of forensic science has
significant problems that urgently need to be addressed. I did
not then and do not now view the Academy's report as the final
word on this issue but, rather, as a starting point for a
searching review of the state of forensic science in the
country.
In the past several years, we have seen a continuing stream
of exonerations of people convicted of serious crimes, some
because of mistakes of counsel, but also some, too many,
because of flawed forensic evidence. Kirk Odom, imprisoned in
Washington, D.C., for 20 years for a rape he did not commit
based on faulty hair analysis, is just one recent, tragic
example. Twenty years. Just last week, the Justice Department
announced a sweeping review of thousands of cases to determine
whether defendants were wrongly convicted based on flawed
forensic evidence by the FBI lab in the 1980s and 1990s. It has
long been clear that action is necessary to ensure improved
support for forensic science and meaningful national standards.
The Judiciary Committee's process began even before the
National Academy of Sciences report. The Committee held two
hearings in 2009. We have conducted numerous meetings over the
years with those on all sides of the issue--law enforcement,
prosecutors, defense attorneys, forensic scientists, academic
scientists, and many, many others.
In 2011, I introduced the Criminal Justice and Forensic
Science Reform Act--comprehensive legislation designed to build
greater certainty and reliability into forensic science
nationwide. The outreach continues after the introduction of
the legislation. I have asked for feedback from all sides to
try to find a consensus solution.
One thing that has become very clear, though, is that, for
all the serious problems that have been found and questions
that have been raised, forensic practitioners are doing great
work every day. I remember using many of them when I was a
prosecutor. Laboratories and practitioners around the country
follow sound procedures. They strive to be fair and accurate
and produce vital evidence. I say that because I think it is
important to recognize the good work that is done by so many,
as well as to point out the significant gaps. We need a
solution that builds on existing strengths, identifies
weaknesses, and fills in those gaps.
Strengthening forensic science is not something that tips
the scale to one side or the other in the justice system.
Forensic disciplines that have been proven to be reliable and
that create total confidence will help law enforcement and
prosecutors to identify and convict those guilty of serious
crimes. But doubts about the reliability of some forensic
analysis have led to successful challenges in court.
Basically--and I want to put most of my statement in the
record--it comes down to this. We want the accurate science.
Forensic science is not designed to help one side or the other.
It is designed just to be accurate and give the truth. If it
exonerates people, then that is the right thing to do. If it
convicts people because it is accurate, again, the right thing
to do. The worst thing that can happen in society is if we
convict the innocent or fail to convict the guilty. Let us have
it accurate so that both sides when they come in can look at it
and say, OK, the one piece of evidence we can be sure of is
this forensic science. It benefits all sides.
Now we are going to hear from a police lab commander, a
State lab director, a prosecutor, and a founder of the
Innocence Project. They are not going to agree on all of the
details about how best to move forward, but I hope they will
agree that action is necessary and, more to the point, will
agree on many of the principles that should guide a legislative
solution.
I think there is widespread acknowledgment that every
forensic laboratory nationwide should be accredited under
recognized national standards and that forensic practitioners
should be certified in their field based on appropriate
training, education, and ability. That also means we have to
dedicate resources to basic foundational research.
Finally, there is a shared understanding that the forensic
science community needs Federal support for capacity building,
training, and development. We know the importance of harnessing
the expertise of those here. The Justice Department is well
positioned to play this central role, but agencies like the
National Institute of Standards and Technology and the National
Science Foundation can help.
So I have tried to bring all these thoughts into it, but
the most important thing is I want consensus on a program that
will allow, when a piece of forensic evidence goes in, that
everybody, defense and prosecution alike, knows what the
standards are and knows what they have before them.
I will put my full statement in the record.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Chairman Leahy. As I mentioned, Senator Grassley got here
actually ahead of me. He is with us, and, Chuck, do you want to
go ahead?
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Yes, I would like to make a statement.
First of all, thank you. This is a very important hearing, and
I join you in wanting to make sure that the forensic science
system is as good as it can be. This is an important subject
for our Committee since forensic science is the application of
science in the courtroom, designed to identify the guilt and
exclude the innocent. It is not about academic or pure
scientific research. And I am pleased that we are able to have
a consensus panel today.
Years ago, I supported a whistleblower who exposed serious
problems at the FBI crime lab, Dr. Frederic Whitehurst----
Chairman Leahy. Dr. Whitehurst is here.
Senator Grassley [continuing]. And he is here in the room
today, as you just said. Dr. Whitehurst risked his career to
come forward with allegations about wrongdoing at the FBI crime
lab. In the words of the Federal District Court for D.C., ``Dr.
Whitehurst has made a number of very serious challenges that
call into question the scientific integrity of the FBI crime
lab and the thousands of prosecutions that rely on evidence it
has processed.''
For his efforts, he was retaliated against by the FBI and
spent years litigating with the FBI via the Freedom of
Information Act trying to obtain documents outlining the
retaliation that he faced. The disclosures Dr. Whitehurst made
resulted in the Department of Justice IG investigation that
recommended 40 changes to improve procedures at the lab,
including accreditation by an outside body. Thanks to the
actions of Dr. Whitehurst, cases where faulty procedures,
flawed analysis, and improper testimony had been given were
reviewed. Ultimately, Dr. Whitehurst's case resulted in the
Justice Department creating a regulatory process for
whistleblowers to adjudicate their claims. That process is,
unfortunately, broken and needs legislative correction.
Additionally, more work needs to be done on the FBI crime
lab and the Department of Justice review of past cases.
Recently, the Washington Post found that a 2004 Justice
Department review of flawed hair and fiber analysis at the FBI
lab did not go far enough in identifying potential cases of
wrongful convictions. And even in cases that were identified,
Justice did not ensure that defense counsels were informed. So
as a result, I joined you, Mr. Chairman, in a letter to the FBI
on this matter, but almost 60 days later, we have not received
a response.
The FBI publicly announced last week that it was expanding
its review, but our request for basic information still has not
been answered. So on Monday, I sent another letter with further
questions. I expect answers to this serious matter to ensure
that the problems Dr. Whitehurst uncovered are not continuing
to this day.
So I appreciate the importance of this hearing and the goal
of improving the use of forensic science in the criminal
justice system. Wrongful convictions are very rare, but they do
happen, and flawed use of forensic science accounts for some of
it.
I want to be clear that I do not think forensic science as
a whole is a problem. Forensic science has come a long way over
the years. Most important was the development of DNA testing.
Nowadays we do not even need outdated forensic discipline like
hair comparison or blood matching, which accounts for most of
the wrongful convictions due to flawed use of forensic science.
Furthermore, the cases are usually the result of bad practice
of forensic science, not the science itself.
Unfortunately, there are those who claim that certain
forensic sciences as a whole are invalid. These critics usually
point to one famous case or another to indict the entire
discipline. Example: After more than 100 years of critical
contributions to public science, fingerprints are now called
into question because of Brandon Mayfield's incident. The
Washington Post yesterday said that there is ``uncertainty''
with fingerprints as a whole. This latest attack is similar to
the attacks which questioned whether DNA analysis was valid
when prosecutors first tried to introduce that in the early
1990s.
However, there is plenty of proof on the record that
fingerprints are reliable. One study completed after the
Mayfield incident found a 99.9-percent reliability by FBI
examiners. And this study was published in the peer-reviewed
Proceedings of the National Academy of Sciences. That is why,
as the Justice IG has pointed out, every Federal court of
appeals that has addressed the issue has held that fingerprints
are admissible as evidence.
The criminal justice system is adversarial for a reason.
Why? To help uncover the truth through questioning of evidence.
It is a robust system with constitutional and other legal
protections.
Unlike the adversarial system, some have recommended that
we turn over forensic study to the unelected and, often,
unaccountable bureaucrats.
From my work in the Senate with Federal Government
whistleblowers, I can tell you that I would trust the
adversarial court system before I trusted the Federal
bureaucracy. What happens in a courtroom is public and claims
are subject to cross-examination. Decisions about forensic
science should not be made behind closed doors by people
unelected in the bureaucracy.
We have all seen how a supposedly neutral scientific
regulatory agency, the FDA, handles honest disagreements. They
do it, as I stated yesterday on the floor of the Senate, by
spying on dissenters. I would hate for decisions on forensic
science to fall prey to that bureaucracy as well.
There are three main issues, therefore, that I want to
examine:
First, how do we improve forensic science without throwing
out the baby with the bath water? I do not want our efforts to
improve the system to call into question the hard work that has
already been done--or is being done every day--in the labs
across the country.
Second, what kind of improvements will be most efficient
and effective? Should the Federal Government, which has some of
its own problems--be regulating the States? Or should it get
its own house in order first?
And, last, how will any changes relate to existing policies
and procedures? There is already a lot work going on to improve
forensics. The DOJ-supported Scientific Working Groups for each
discipline are crafting new standards for their members.
Justice and other entities are funding more research. Labs are
being accredited to strict national and international
standards. And prosecutors, defense counsels, and judges are
learning more about how to evaluate forensic evidence. Congress
should be careful not to preempt all of that work. Thank you.
Chairman Leahy. Thank you very much.
Our first witness will be Stephanie Stoiloff, senior police
commander of the Forensic Services Bureau at the Miami-Dade
Police Department. Head of the lab, she oversees forensic labs
and tests controlled substances, trace evidence, biological
evidence, firearms, tool marks, and so on. She is a nationally
recognized leader in forensic science. She is also the co-chair
of the International Association of Chiefs of Police Forensic
Science Committee. She is here on behalf of the IACP. She has
lectured before the American Prosecutors Research Institute,
the National Institute of Justice, teaches forensic biology,
and she received her Bachelor's of Science from the University
of Florida, her Master's from Florida International University.
I apologize for the voice. The allergies seem to pop up as
soon as it gets above 100 degrees in Washington.
Ms. Stoiloff, please go ahead.
STATEMENT OF STEPHANIE STOILOFF, COMMANDER, FORENSIC SERVICES
BUREAU, MIAMI-DADE POLICE DEPARTMENT, MIAMI, FLORIDA, ON BEHALF
OF THE INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE
Ms. Stoiloff. Thank you. Good morning, Mr. Chairman and
Senator. My name is Stephanie Stoiloff. I serve as the
commander of the Forensic Services Bureau for the Miami-Dade
Police Department in Miami, Florida. I also serve as the co-
chair of the Forensic Science Committee of the International
Association of Chiefs of Police. I am here today on behalf of
the IACP, representing over 22,000 law enforcement executives
in over 100 countries throughout the world. In the United
States, there are over 18,000 State, local and tribal law
enforcement agencies with over 800,000 law enforcement
officers. I am pleased to be here this morning to discuss the
challenges currently confronting the forensic science community
within the United States and the need for further resources and
support of forensic science within the law enforcement
community.
In February 2009, the National Academy of Sciences issued a
report entitled, ``Strengthening Forensic Science in the United
States: A Path Forward.'' In January 2011, legislation was
proposed to address some of the topics discussed in this
report. The IACP, the Major Cities Chiefs Association, and the
Association of State Criminal Investigative Agencies each have
Forensic Committees comprised of law enforcement executives,
laboratory directors, and private sector representatives from
across the Nation. The three Forensic Committees, as well as
members of the National Sheriff's Association, have jointly
discussed some concerns with the proposed legislation.
Collectively, law enforcement appreciates that Senator Leahy
and his staff recognize that the collaborative efforts of all
stakeholders are a critical component of this legislation. This
collaboration has been a positive process that has enabled the
concerns of the State and local agencies to be heard.
Over the past 30 years, the forensic science community has
voluntarily established internationally recognized laboratory
accreditation and professional certification programs. Law
enforcement agencies have made considerable financial
investments to support this voluntary accreditation, a program
defined by the implementation and maintenance of rigorous
quality assurance standards, in over 400 crime laboratories
nationwide.
The importance of forensic science to the investigation of
a crime has police chiefs nationwide asking how we can better
use these forensic resources and, further, how do we ensure
scientific integrity?
Forensic science is not the floundering profession that
some may portray it to be. As with any scientific discipline,
there is a perpetual need for support, improvement, and
advancement. In fact, many of the improvements in forensic
science have resulted from the commitment of law enforcement
agencies and their executive leadership to sound forensic
practices. Although many collaborations have been developed to
address the recommendations brought forth in the NAS report,
there are still several important concerns that need to be
addressed.
The first--and greatest--need is funding. The forensic
community needs funding to perform the work conducted
nationwide every day. The common question asked is: How much
funding is needed? One billion dollars was allocated to address
DNA backlogs. That is, $1 billion was allocated for one
discipline alone that still is not able to completely manage
the flood of evidence submitted for analysis. Have we now put a
price on public safety? One billion dollars per forensic
discipline would not be enough to address the need for
accreditation, certification, research, education, and
analysis. The forensic community itself requested the NAS
report to be written to address the resource needs of forensic
service providers. We know what the problem is. The question
is: What is going to be done about it?
The second need is leadership. The forensic community needs
strong national leadership with the understanding that one size
does not fit all. The needs of Federal, State, and local
agencies are separate and distinct from each other. Our
agencies and their forensic laboratories are at ground zero in
the fight on crime. Most of these organizations have higher
demands for service and fewer resources available with which to
wage that fight as compared to the larger State and Federal
laboratories.
Our agencies agree that all forensic service providers
including stand-alone forensic units such as latent prints and
crime scene units should follow quality standards and attain
accreditation. Further, our agencies also agree that each
forensic scientist must demonstrate competency in their
discipline. Our law enforcement executives have the ultimate
responsibility to ensure accurate and efficient delivery of
forensic services. Strong national leadership can provide a
comprehensive plan to incrementally introduce and implement the
funding and other resources necessary to fulfill these goals.
Third, more higher education programs and internships in
forensic science should be established to assist the forensic
science community. While forensic science has attracted
nationwide attention, little funding has been funneled into
higher education for forensic scientists. A common
misperception is that forensic science is not a science. By
definition, forensic science is the application of scientific
knowledge and methodology to legal problems and criminal
investigations. By its very nature, science is about new
testing, new technology, and new applications of technology.
How can we do what we do every day and do it better? New
advances occur every day within universities nationwide.
Forensic science research programs and educational
opportunities support the investigations conducted daily by
public safety agencies to protect its citizens and make its
communities safer.
In closing, Federal, State, tribal, and local law
enforcement are utilizing every possible resource to provide
public safety. The law enforcement community appreciates the
opportunity to work with Senator Leahy and his staff to develop
a workable solution that supports the needs of the forensic
science community. These comprehensive discussions have covered
all aspects of forensic science, including the incredible
advances that have been realized in the recent past, the
limitations of many historical procedures, opportunities for
continued advancement, and the differences between theory, pop
fiction, and real forensic evidence. It is our hope that these
open discussions will continue, allowing everyone to accomplish
the goal of providing the framework and resources necessary to
maintain our existing capabilities and develop new technologies
for the future.
[The prepared statement of Ms. Stoiloff appears as a
submission for the record.]
Chairman Leahy. Well, thank you, and I appreciate your
willingness to continue working with me and with my staff
because we do want something that is going to work for all
involved. And I think you point out the difficulties--we know
what we have to do, but now we have to determine the steps we
have to take to get there.
Our next witness, Jill Spriggs, is the chief of Bureau of
Forensic Services at the California Department of Justice. As
the head of the bureau, she oversees 13 regional crime
laboratories, the fourth largest DNA data bank in the world,
specializes in DNA analysis, and has more than 23 years of
professional experience in forensic science. She is here today
representing the Consortium of Forensic Science Organizations.
She is an officer of that consortium. She works with the
California Department of Justice's Advance Training Center. She
teaches and consults on cold cases. She is also president of
the American Society of Crime Lab Directors and the treasurer
of the California Association of Crime Lab Directors.
Ms. Spriggs, we are delighted to have you here. Please go
ahead.
STATEMENT OF JILL SPRIGGS, CRIME LAB DIRECTOR, STATE OF
CALIFORNIA, AND PRESIDENT, AMERICAN SOCIETY OF CRIME LAB
DIRECTORS, ON BEHALF OF THE CONSORTIUM OF FORENSIC SCIENCE
ORGANIZATIONS
Ms. Spriggs. Mr. Chairman and Members of the committee,
thank you for giving me the opportunity to testify before you
today about forensic advancement. I am Jill Spriggs, the crime
laboratory director for the State of California and the
president of the American Society of Crime Lab Directors.
However, I am here today representing the Consortium of
Forensic Science Organizations and speaking on behalf of the
over 12,000 forensic service providers that our organization
represents.
I would first like to express my appreciation for your
tackling of the daunting task of writing this legislation,
which is very important to our community, as well as for the
process you have created in drafting this legislation. You and
your staff have been most extraordinarily open and
collaborative. It has been a process that we greatly
appreciate. We have been impressed by your office's desire to
listen and learn from the actual practitioners in the complex
field of forensic science. You and your staff have truly
understood that the application of the science is quite
different from what may be written in a textbook or on TV, and
we look forward to a continued productive dialogue.
We have long since recognized that while our Nation's crime
laboratories and medical examiner offices are State and local
entities, our science has no borders and it crosses into
numerous jurisdictions. Continuity of processes is very
important. In 1994, Congress passed the DNA Identification Act
to provide Federal guidance to standards that would allow for
the advancement and expanded use of DNA technology in order to
utilize this groundbreaking technology in the most productive
manner to the Nation's criminal justice system. The Federal
Government then took the leadership role in creating technical
working groups consisting of Federal, State, and local forensic
scientists, international members, academia, and independent
consultants. One of the most visible groups is the Scientific
Working Group on DNA Analysis Methods, or SWGDAM. The role of
this group is to ensure the uniformity of DNA standards and
improve processes within the forensic human DNA laboratory
community.
Each discipline in forensic science also has a similar SWG
group. However, these other disciplines have not enjoyed the
widespread Federal support as the DNA analysis Scientific
Working Group. Yet they comprise over 90 percent of the work
conducted in our Nation's lab system. The Nation's crime lab
and medical examiner systems need to be viewed and addressed as
a single system that encompasses all disciplines.
At the core of our issue is the ability of the system to be
flexible and responsive. Our Nation's crime laboratories must
have the capacity to process all the evidence that comes into
the laboratories in a timely manner and with the utmost in
quality and accuracy. This applies to all 13 disciplines. In
fact, while DNA is the most popular in the media, our largest
backlog and casework is, in fact, controlled substances. Many
of our crime labs are drowning in synthetic drug cases. This is
a perfect example of why we need Federal guidance and
leadership.
All labs and State legislatures are experiencing similar
issues with identifying drugs to schedule, then be able to
place these substances into their respective codes, have the
crime labs in a position to analyze them, only to have the
uncontrolled analogs to these drugs produced and distributed in
a very efficient manner to circumvent the new legislation.
We support the accreditation for all public and private
crime labs and believe they should operate in accordance with
ISO 17025 and other relevant ISO standards. We agree that these
standards should evolve and advance as the science does and are
encouraged by the discussions that we have had with your office
regarding the continued utilization of these standards as we
move forward versus starting over with federally established
standards.
A natural progression from the quality systems of the
organization--in other words, accreditation--is the competency
of the individual, or certification. We are supportive of an
organized Federal role in enhancing the breadth of proficiency
testing, but again do not believe that the process should begin
from scratch.
A National Research Strategy for comprehensive and targeted
research of forensic science also must be pursued. It is
critical, however, that there is input from the active
practitioners in the field to ensure that the research is
applicable to and necessary for the casework currently handled
by crime labs and medical examiners.
Also key to continued advancement of our science is a group
of rigorous forensic science education programs both at the
undergraduate and graduate levels. The well-established
Forensic Education Program Accreditation Commission, or FEPAC,
has for some time been credentialing these programs and does
not need to be reinvented.
Another key element of forensic science is that of death
investigation. At present, roughly half of the country is
utilizing a system of untrained or minimally trained lay
coroners lacking requisite forensic training. The other half
uses highly trained and certified forensic pathologist
physicians functioning as medical examiners. This must be
resolved so that the death investigation and all death
investigation is equal.
Finally, grants for forensic science must stem from the
requirements of the community providing grants, and a process
must be developed to ensure that grant funding matches the
need.
Mr. Chairman and members of the Committee, there is much
precedent in other countries for guidance and assistance for
forensic science, such as Australia and New Zealand where the
National Institute of Forensic Science provides guidelines and
coordination among the forensic science providers in those
countries. In fact, it operates on a staff of six at the
Federal level. We are supportive of a model similar to this
which will provide the much needed leadership, guidance, and
experience to ensure the continuation of a quality system.
Crime laboratories serve the public at large and the criminal
justice system. In order to do this effectively, there must be
an open line of communication between all parties in which
quality forensic science comes first.
Again, thank you for all that you have done, and we look
forward to the continued discussion so as to achieve the much
needed Federal leadership that we require in the field of
forensics. Thank you.
[The prepared statement of Ms. Spriggs appears as a
submission for the record.]
Chairman Leahy. Well, thank you very much. What I am going
to do is have each witness testify and then ask questions.
Our next witness is Peter Neufeld, who is no stranger to
this Committee. He has testified here before. He co- founded
and co-directs the Innocence Project, an independent, nonprofit
organization affiliated with the Benjamin Cardozo School of
Law. He is a partner in the law firm of Neufeld, Scheck &
Brustin. For the last 12 years, he has served on the New York
State Commission of Forensic Science. He has co-authored a
number of books, influential books on the use of forensic
evidence in criminal cases. Prior to his work with the
Innocence Project, he taught trial advocacy at Fordham
University Law School, a staff attorney at the Legal Aid
Society of New York.
Mr. Neufeld, please go ahead, and thank you for being here.
STATEMENT OF PETER NEUFELD, CO-DIRECTOR, THE INNOCENCE PROJECT,
NEW YORK, NEW YORK
Mr. Neufeld. Thank you, Chairman Leahy, and thank you,
Senator Grassley, for inviting me. As you mentioned, I am the
co-founder and co-director of the Innocence Project. We have
special gratitude, obviously, for Senator Leahy, who for the
last decade or more has been the staunchest advocate of
wrongful conviction reform, not because simply he is concerned
with the civil rights of the wrongly convicted, but also as a
prosecutor he is aware personally how important it is to
strengthen these disciplines as a matter of public safety.
I also wish to introduce to the Committee right now two men
who were wrongly convicted who were just exonerated in the past
week. They are here with their very persevering and tenacious
lawyer, Sandra Levick, from the Public Defender Service here in
the District of Columbia. Both men are local D.C. residents.
Kirk Odom, who is right behind me, was arrested in 1981 at
age 18 for a rape he did not commit. He has been exonerated
through DNA quite recently.
Santae Tribble, who is on the other side of Ms. Levick, was
arrested at age 17 and convicted for a 1978 murder which he did
not commit, only to be exonerated recently through DNA testing.
Both of these innocent men were denied their youth, their
families, their careers, and their liberty for far too long.
Indeed, it took each man more than 30 years to prove their
actual innocence. But I produce Mr. Tribble and Mr. Odom today
because they have particular resonance for the issues before
this Committee.
In both cases, microscopic hair evidence was analyzed by
the FBI crime lab here in Washington. The trace unit of the FBI
crime laboratory handled hair microscopy. In both cases, two
different forensic examiners from the FBI erroneously declared
an association between the crime scene evidence and these two
men. And in both cases, more importantly for this committee,
the FBI agents testified at trials in a manner inconsistent
with what was then known as the limitations of the science.
They both offered invalid testimony had been, as in another FBI
agent in another case which Ms. Levick got an exoneration on a
few years ago, also involving the FBI hair unit.
Now, I mention these men--by the way, we have now found at
least 11 FBI agents, so this is not simply a bad apple
situation, 11 different FBI agent hair examiners who produced
scientifically invalid testimony, and I assume the number will
grow as we acquire more and more transcripts over a 30-year
period.
And, Senator Grassley, with all due respect, the FBI
continues to use hair microscopy to this day. They use the
technique as a screening test before they do DNA testing. And
what we at the Innocence Project are concerned about is the
danger of false negatives just as much as we care about false
positives.
The point I want to bring up is that these gentlemen--and,
by the way, one of the examiners was not just a staff examiner.
He was the unit chief for the trace unit.
The point is this: not that these are bad men. None of them
are bad men. None of them had malice in their minds when they
testified incorrectly in these cases and grossly exaggerated
the probative value of the evidence. As a result, innocent men
lost three decades of their lives. That is not the issue. The
issue is for hair microscopy, when they testified, the FBI--and
nobody in the United States had done the basic, essential
research to validate that discipline and to validate the
limitations of proper testimony. And there were no national
standards for microscopy as to what would be appropriately
testified to in a court of law. And to this day, in 2012, that
research has still not been done. There are no national
standards. And the danger of it happening still exists.
And it is not just with hair microscopy. It is the other
disciplines as well, the other impression disciplines that were
listed in the National Academy of Sciences report,
approximately a dozen disciplines. The basic applied and basic
research has not been done. National standards do not exist.
People are allowed willy-nilly to testify to statistics and
probabilities for which there is no scientific basis. That is
the purpose of the NAS report. That was their findings, and
that is what they hope to accomplish.
So it is not about bad individuals. It is about bad
science, if you will, or at least poor science and the way it
is being explained to juries. And that has not changed.
The point that we want to make now is that not only do we
want that kind of basic and applied research for validation
purposes and standards for hair; we want them for all the
disciplines. That is what the NAS report called for. It is all
well and good that other speakers are here today talking about
the importance of accreditation, the importance of certifying
every individual in the laboratory, of expanding our
educational programs and forensics. That is great. It will be
extremely helpful. But at the cornerstone of the scientific
method, of the scientific method that is described in the NAS
report, is unless you have the basic research done to validate
these methods, to determine what are the proper parameters of
testimony and of the science of how to interpret the data,
unless you have standards, it is not going to work.
You know, we think about forensic science a lot here
because we are the Judiciary Committee. But think about
something that is much closer to home. Imagine it was a
clinical laboratory and the clinical laboratories were all
accredited by the best accrediting organization in America, and
all the employees in those laboratories were certified to the
highest possible standards. But you as a father or you as a
mother wanted to know whether or not your kid has strep throat,
and so you have the kid sent to the doctor to have the kid's
culture tested, and while you are there, you find out that they
never bothered to validate the test for strep throat. So even
with the best accreditation and the best certification, you
cannot have confidence in the data produced by that laboratory,
and you as a mom or dad will not know what to do with your kid.
That is the issue.
[The prepared statement of Mr. Neufeld appears as a
submission for the record.]
Chairman Leahy. Thank you.
We are going to have to go now to Scott Burns. We are going
to have votes. Senators are going to have to leave.
Scott Burns is the executive director of the National
District Attorneys Association, who call themselves ``the voice
of America's prosecutors'' It is one of the largest
professional organizations representing district attorneys,
states' attorneys, attorneys general, and county and city
prosecutors. I was once one of the vice presidents of the
National DAs Association. I gave up the opportunity for the
glory of being president of it to substitute the anonymity of
the U.S. Senate. But I enjoyed my years on the board. He was
nominated by President Bush to serve as Deputy Director for
State, Local, and Tribal Affairs at the White House Office of
National Drug Control Policy. He served in that role until 2009
when he was selected to serve as the executive director of the
NDAA, and, of course, he had been elected county and chief
prosecutor of Iron County, Utah, for 16 years.
Where is Iron County located?
Mr. Burns. The most beautiful place in the world, Senator.
Southern Utah.
Chairman Leahy. Southern Utah is beautiful. Thank you. Mr.
Burns, please go ahead, sir.
STATEMENT OF SCOTT BURNS, EXECUTIVE DIRECTOR, NATIONAL DISTRICT
ATTORNEYS ASSOCIATION, ALEXANDRIA, VIRGINIA
Mr. Burns. Thank you, Mr. Chairman, Ranking Member
Grassley, and members of the committee. Like the other panel
members, it is an honor to testify before you today on behalf
of America's 39,000 prosecutors, and I think it is important to
note up front prosecutors handle 95 percent of all criminal
cases in this country. So for all of the Federal judges, U.S.
Attorneys, Federal crime labs, 95 percent are State and local
prosecutors, women and men primarily in small offices across
the country, three or four fewer prosecutors in the office,
which is why the National Academy of Sciences report is so
interesting to us because, of all of the members, not one
prosecutor was on the committee. The chairman, whom I am sure
was extremely bright and talented, was an appellate Federal
court judge, and appellate Federal court judges do not spend a
lot of time in courtrooms trying cases and dealing with
evidence.
Since 2009, the committee and you, Chairman Leahy and
Ranking Member Grassley have worked hard to gather all of the
groups together, and that has not been easy because there are,
as you know, many viewpoints on this. And I think getting all
of us into this room is an accomplishment in and of itself.
In early 2011, when you introduced Senate bill 132, NDAA
had significant concerns with the bill, along with other
groups. However, when the bill was first introduced, your staff
and others intimated to us that they saw this as a ``starting
point'' where shareholders could weigh in on what they agreed
and disagreed on, and that has happened. We believe your
approach to this massive undertaking was sound, and we
appreciate both you, Chairman Leahy, and ranking member
Grassleyfor your willingness to work with all of the
shareholder groups. Your staff has been, both of you,
absolutely terrific.
Since the National Academy of Sciences released its study,
it has been reported that State and local prosecutors have
worked to curtail reform efforts on forensic sciences. Nothing
could be further from the truth.
Prosecutors also do not oppose research. Prosecutors want
and need the best quality evidence and analysis possible to
determine the innocence or guilt of the accused. That is our
job, to protect victims, to exonerate the innocent, and to
point the finger of guilt at those who have committed the crime
and hold them accountable.
The commitment of the forensics community for reliable
science is evidenced by its investment in their own
accreditation process, and they have worked hard over the last
decade-plus. Virtually all public laboratories are accredited
today, and most of those laboratories were accredited after
2009--excuse me, before 2009.
It is NDAA's belief that non-DNA forensic science
disciplines have been demonized in recent years. Some cases are
fortunate enough to have DNA evidence, but unlike television,
most do not.
As stated on the Innocence Project's Web page, since 1989
there have been 294 post-conviction DNA exonerations in the
United States. And while NDAA agrees that even one wrongful
conviction of an innocent person is too many--it is a
prosecutor's worst nightmare, and we have several prosecutors
here on the committee. It is the worst thing that can possibly
happen. But we have to put this into proper context. In the
United States, there are a minimum of 10 million serious crimes
committed and serious prosecutions each year. That does not
include traffic offenses. Ten million. Since 1989, that means
there have been 220 million cases in America prosecuted by
State and local prosecutors. And while 294 post-conviction
exonerations are of great concern to us, and to all of us--look
at the criminal justice system--in reality those wrongful
convictions constitute less than 0.0001 percent, one ten-
thousandth of one percent, of the convictions obtained. And
while no one from NDAA is naive enough to think that the
Innocence Project has uncovered every single wrongful
conviction in America, 99.9999 percent is a pretty good record.
It is also important to note, misinformation and hyperbole
aside, that the majority of wrongful convictions do not owe
their existence to faulty forensic science but, rather, to bad
lawyering on both sides of the courtroom, false confessions,
and misidentification. Recognizing that, NDAA has created a new
committee, the Fair and Truthful Administration of Justice
Committee, to educate all of our members about our
extraordinary ethical obligations, the phenomenon of false
confessions, and the frailties associated with eyewitness
identification. In just a few days, our summer conference will
have lectures presented from nationally renowned experts in the
fields of identification and ethics, and in the near future on
the issue of false confessions. We will continue to educate our
members on presenting the best forensic evidence available--
evidence that both exonerates and convicts.
Finally, I want to thank you, Mr. Chairman, Ranking Member
Grassley, and members of the committee, for all you have done
and do to support State and local prosecutors and the victims
of crime.
I am happy to answer any questions.
[The prepared statement of Mr. Burns appears as a
submission for the record.]
Chairman Leahy. Well, thank you. And I think you would
agree, wouldn't you, Mr. Burns, that it is important for
everybody in the criminal justice system--the judges, the
lawyers, detectives--to be properly trained so they--and when I
say lawyers, lawyers on both sides as well as the judges and
police officers and everybody else, to be properly trained in
the best use of forensic science and what constitutes accurate
forensic science?
Mr. Burns. I absolutely agree, Mr. Chairman.
Chairman Leahy. I think it is safe to say that the fear of
any good prosecutor is the idea that they may convict an
innocent person. I sit here and think of the lives of the two
gentlemen sitting behind you wrongly convicted. I know if any
one of us were behind bars wrongly convicted, it would be hard
to keep your sanity knowing that you were innocent. At the same
time, nobody is naive enough to think that there are not bad
people out there who do need to be convicted. I just want to
make sure that if we convict somebody, we convict the right
person, because if you convict the wrong person, not only do
you create a terrible injustice to that person, but it means
the person who committed the crime is still out there, and we
want to get that person.
Ms. Spriggs, one of the things I have done in trying to
come to grips with this and one of the reasons I appreciate the
four of you being here--and the dozens and dozens of people
that we have met with in trying to figure out the best way to
go--is I feel we have to have a comprehensive national strategy
that ensures the reliability of forensic science for everybody,
both at the State and local level. I feel we need some strong
leadership at the Federal level to have accreditation standards
that can be recognized in every State, whether it is a little
State like mine or a big State like yours.
Can you tell us how strong leadership at the national level
and I guess something like an Office of Forensic Science might
give support and guidance to people at the State and local
level?
Ms. Spriggs. We are looking for coordination and direction
on the Federal level. With accreditation, most of the
laboratories in the country are following ISO 17025. That is
over 400 standards that we must adhere to. Those are the same
standards that a pharmaceutical company adheres to or
pharmaceutical testing or environmental testing, and that
encompasses----
Chairman Leahy. And that would be the same whether that
pharmaceutical company was in Vermont or in California?
Ms. Spriggs. That is correct. We would use the same ISO
standards from 17025, whether it be Vermont, whether it be
California, or whether it be Texas. In with those standards, as
I said, there are over 400 standards that we must adhere to. It
means that a robust quality management system must be in place.
We must have training procedures, educational requirements,
protocols must be written, report writing. It also includes
testimony monitoring, proficiency testing, making sure all your
equipment is calibrated, and validation.
As part of that Federal coordination and direction, one of
the reasons that the DNA community has been so successful and
is seen as a gold standard is because it has gotten support,
rather it has received very little support, for the SWG groups.
Remember, each discipline also has a scientific working group
underneath it which also is composed of validation of what is
needed, what is needed for report writing, education, training,
proficiency testing, and interpretation of your casework and
your results. But what is really needed is Federal direction
and Federal coordination of all those SWG groups so that we are
all meeting the same type of SWG standards.
Chairman Leahy. Well, I think we would all be more
comfortable if we knew that. As you said, the pharmaceutical
company, whatever State it is in, has to follow standards. This
should, too, and I am going to ask Commander Stoiloff, we know
we have some very hard-working, very dedicated people in our
laboratories, and we also know they are being asked to do more
and more every day. It looks awfully easy on television
programs. The reality is a lot different, especially because a
lot of times you do not have forensic evidence.
Do you agree with me that the State, local, and tribal law
enforcement agencies can provide a unique and important
perspective if we are trying to do the kind of national
standard that I feel we should have but we talked about--safe
to say we better talk to people like you and everybody else who
is on the front line?
Ms. Stoiloff. I do agree with that, and part of the reason
behind that is that all of our organizations represent every
forensic service provider, whether or not they are actually
part of a laboratory or not. So all of the stand-alone units
still need to follow those same procedures. We want to accredit
all of the crime scene units, all of the latent print units,
and all of the forensic service providers that are not
traditionally classified under a crime laboratory.
Chairman Leahy. Last, Mr. Neufeld, you have been passionate
on the need for forensic science reform, and not just in this
hearing--you and I have had a lot of discussions not in the
hearing room, and I commend you for that passion. I feel that
we wanted to help exonerate the innocent, but we also wanted to
help convict the guilty. Do you agree with me that if we
strengthen our standards in forensic science, it is going to
give more confidence in the criminal justice system that we
will be able to make sure the innocent are not convicted but
the guilty are convicted?
Mr. Neufeld. I think there is no question, Senator Leahy,
that if we had robust national standards in place, then we
could be assured that a laboratory in Iowa City or a laboratory
in Montpelier, Vermont, were turning out the same data, and
that would be a huge boon for everybody.
But where I would perhaps disagree with the last remark was
that there is a fundamental difference between what we are
talking about here and a pharmaceutical company. And the
fundamental difference is that before the pharmaceutical
company can be accredited or the clinical laboratory that uses
their products can be accredited, there has already been an NIH
and an NSF that has spent a lot of money doing basic and
applied research. There has already been an FDA that passed on
whether or not that product was ready for prime time. And there
has already been a national CLIA set up to determine how those
products are to be used in a reliable fashion. Nothing like
that exists right now.
Chairman Leahy. Notwithstanding that, that does not mean
that we cannot have standards that apply--the same kind of
standards to crime labs and forensic scientists, does it?
Mr. Neufeld. I am sorry. I misunder----
Chairman Leahy. Notwithstanding that maybe we can use
analogies, we can talk about testing air bags on cars and
everything else, but the fact is we can have--no matter which
analogy you use--we can have standards that would give,
reliable standards throughout the country, can we not?
Mr. Neufeld. We can have reliable standards, and certainly
the people who practice those trades in various crime
laboratories have a vital role to play, because, obviously, it
is essential that independent scientists be made aware of the
particular problems and uses and applications that those crime
lab people are dealing with on a daily basis. And certainly
there has to be buy-in from them. But, ultimately, independent
scientists are going to be there to set those standards, which
will be extremely useful for all of us in the country--crime
victims, defendants, lawyers, judges, and the public at large.
Chairman Leahy. Thank you.
Senator Grassley is also one of the most senior members of
the Finance Committee. I know he is supposed to be there, and I
thank him for spending this amount of time here. I will yield
to you for questions, and I realize you have to leave
afterward.
Senator Grassley. I thank you for your consideration.
You probably know that last year Chairman Leahy put in his
bill he has consulted widely with stakeholders such as those
represented here today, and also his staff has engaged with my
staff to find common areas of agreement and look for ways to
move forward. So I would ask Stephanie and Jill and Scott, as
you have considered that legislation, would you suggest any
specific changes? And I do not want you to take up all 5
minutes with suggestions now, but maybe one or two from each of
you, and then you can submit additional information to me in
writing. Stephanie.
Ms. Stoiloff. I am sorry. Could you be more specific as to
what----
Senator Grassley. In regard to Chairman Leahy's bill, the
Criminal Justice and Forensic Science Reform Act, any changes
you would suggest in that?
Ms. Stoiloff. Well, I can tell you that I am communicating
continually with Senator Leahy's staffers to make continual
improvement, so we have an open dialogue and we make
suggestions all the time. And most of that has been to consider
the law enforcement response, to consider that all local
agencies--you know, every level of law enforcement be
considered. That is a big part of the problem when you consider
a national strategy--that everybody be included--because there
are different levels of resources available throughout the
country for each agency.
Senator Grassley. Let us go on to Jill.
Ms. Spriggs. We believe the process is working well,
starting with the existing standards that we already have, the
17025 and the SWG groups. But we are open to any changes that
might be needed and are welcome to discussions, and we are very
thankful for the process.
Senator Grassley. But you are not in the process--you are
not suggesting any specific changes. You are just looking at
what other people suggest. Is that what you just told me?
Ms. Spriggs. That is correct, Senator.
Senator Grassley. Scott.
Mr. Burns. Well, I would concur with your statements. As I
said in my opening remarks, your staff has been remarkable, as
has Chairman Leahy's, in reaching out to prosecutors, to law
enforcement, to the defense bar, and others, and that has just
been a wonderful thing.
The only main suggestion that prosecutors have is that
there be more practitioners in the governance structure, more
law enforcement represented, more prosecutors represented, and
we have had specific discussions with your staff and others
about that.
Senator Grassley. OK. I am not going to go back through
what I said in my opening statement about my work with Dr.
Whitehurst, but that experience makes me skeptical about
entrusting scientific standard setting to a Government
bureaucracy. The Federal Government does not have a very good
record on accountability and transparency. In the original and
now expanded review of the FBI lab's hair and fiber analysis,
the Innocence Project was given access but not the public.
Again, to the three of you that just answered my first
question, do you think that the Federal Government has the
resources and technical capability to oversee the use of
forensic science across the country? And I would ask for a
short answer, starting with you, Stephanie.
Ms. Stoiloff. I think with the creation of strong national
leadership, I think they do.
Senator Grassley. OK. Jill.
Ms. Spriggs. I agree with Stephanie. With a strong national
leadership and coordination and direction, they do.
Senator Grassley. Scott.
Mr. Burns. Concur.
Senator Grassley. OK. How would such oversight affect the
work of State and local prosecutors? Again, Stephanie, Jill,
and Scott.
Ms. Stoiloff. Affect the prosecutors?
Senator Grassley. Yes, affect prosecutions, the work of
local and State prosecutors.
Ms. Stoiloff. Well, I think that strong national leadership
creates a program that would have--as stated earlier, it
creates stronger confidence in the system. We feel it already
is a very robust system, so it should just increase their
confidence that they have in the technology we provide.
Senator Grassley. Jill.
Ms. Spriggs. I believe it can help with the prosecution by
not only helping with the coordination and direction but also
firming up those existing scientific working groups that we
already have and not throwing those out and starting over but
enhancing those, as well as looking at accreditation with the
ISO 17025 standards.
Senator Grassley. OK. Scott.
Mr. Burns. I guess as long as the good outweighs the bad,
if the good is having standards, accreditation, everybody
reading from the same playbook and coordinated, that is the
good. The bad is I do not know that prosecutors, 39,000 of them
across the country, would feel comfortable with a bureaucracy
in Washington, D.C., telling them everything about the handling
of forensics unless, as I said before--which has not happened
in a lot of instances. There is not a single voice at the table
that is a prosecutor or a defense lawyer or a judge. I just
think that is crucial, Senator.
Senator Grassley. Could I ask one more question?
Chairman Leahy. Of course.
Senator Grassley. This will be my last one because I have
to go. I will submit some questions for answer in writing. But
supposed Federal involvement is needed. The question then
comes: Should there be direct regulation of what happens in
State courtrooms? And I will start with Stephanie.
Ms. Stoiloff. I think that would have to be evaluated as it
were to evolve. I do not know that I would say that anything
needs to be regulated to that extent. I think there needs to be
support there to support the process. If you have strong
Federal leadership--and the evolution of that in practice would
be a different story. I do not think we could--at least I do
not think as law enforcement we can make that statement.
Senator Grassley. Jill.
Ms. Spriggs. We are not looking for Federal oversight. We
are looking for leadership and direction and cooperation.
Senator Grassley. Scott.
Mr. Burns. I guess we have had these discussions at NDAA
for some time, and the frustration that we have, for example,
the National Advocacy Center, those in the Federal system that
do 5 percent of the prosecution are given about $50 million a
year; State and local prosecutors are now down to zero. We have
some grants and we have some ability to train, but we are
supportive of individual States making determinations and
decisions in their own States, but the big emphasis on our
part, Senator, is consistent training.
Senator Grassley. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Mr. Neufeld, do you want to add anything to this?
Mr. Neufeld. The only thing I would add to your last
question, Senator Grassley, is I do not believe that the
Federal Government can regulate what goes on in this area in
the State courts. The kinds of fixes that we have all been
talking about and what the legislation talks about are fixes
upstream in laboratories. And if we improve things in
laboratories, then it will have that kind of impact on the
courts without the Federal Government stepping on anyone's
toes.
Chairman Leahy. Let me suggest this: We have heard actually
some areas where you agree but some areas where you would make
some changes. I noted earlier how much I appreciate the fact
you have all worked with me and with Senator Grassley and with
our staffs on this. I think we all agree, especially with the
changes in science, and also agree with the lack of funding
that we need in some of these areas, that we need to improve
the system and the standards, and we need to have, no matter
what State you are in, if you are being prosecuted in a State
court, no matter what State you are in, that you know there are
some basic good standards.
Can I ask all of you if you will continue to work with me
and the Committee in trying to develop legislation that we can
all agree would be an overall improvement? Commander Stoiloff,
would you agree to that?
Ms. Stoiloff. Yes, sir.
Chairman Leahy. And Ms. Spriggs.
Ms. Spriggs. Yes, sir.
Chairman Leahy. Mr. Neufeld.
Mr. Neufeld. Yes, sir.
Mr. Burns. Absolutely, Chairman.
Chairman Leahy. Thank you. Well, I still go back to the
same thing, that I considered myself a pretty confident,
effective prosecutor, but, boy, I always wanted to make sure
that I did not convict the innocent for two reasons: one, the
horrible, horrible thing that it does to an innocent person,
but it also meant that whoever committed the crime is still out
there.
So let us work together on this. It is a world far more
complex than what we see on an hour-long TV program which has
to wrap up in 43 minutes, or whatever it is. It is a lot more
complex than that.
Senator Franken, let me turn to you.
Senator Franken. Thank you, Mr. Chairman, and thanks to the
witnesses. First, I would like to say to Commander Stoiloff and
Chief Spriggs, thank you for being here today. I know that many
crime labs are overworked and underfunded. You have a tough
job. The NAS report was fairly critical of the current state of
forensic science in the U.S., but I think that criticism is
directed as structural problems that were identified in the
report and should not be directed at the men and women who do
the hard work, the honest hard work in our Nation's crimes
labs, and I think it is important that we remember that.
I also would like to thank Mr. Odom and Mr. Tribble for
being here. I just cannot imagine what you have been through,
and it takes tremendous courage to be here today and sort of
remind us why reform is so important, so thank you.
Mr. Neufeld, I attended a hearing a few weeks ago on
solitary confinement practices, and Anthony Graves testified.
He was wrongfully convicted and forced to spend 18 years behind
bars, including many years in solitary confinement. In March I
attended a hearing at which Thomas Haynesworth testified. He,
too, spent time in prison for a crime he did not commit.
Some people point out that wrongful convictions are rare,
but Mr. Graves and Mr. Haynesworth provided a forceful reminder
that even one wrongful conviction has horrendous effects on the
accused and threatens the credibility of our judicial system.
I know that the Innocent Project has identified 293
wrongful convictions in the last 20 years, or about 14 per
year. But aren't there other cases that we do not know about,
too? What is the real scope of the problem? And what role does
forensic science play in these cases?
Mr. Neufeld. Sure. Thank you, Senator. The Innocent Project
plays a very limited role. All we do is we look at those people
who are exonerated by DNA testing. There are hundreds of other
people who have been exonerated by other types of evidence
around the country, but they are not on our list because it was
not a DNA exoneration.
It has been pointed out by other people here today that,
regrettably, this miracle called DNA is only usable in a very
small minority of the violent crimes. So we are limited to
working with that small minority.
Moreover, in many of the cases that we take on, the
biological evidence has been lost or destroyed in the
intervening years. It is kind of like if a tree falls in the
forest. If you do not hear it, you might say, you know, well,
it is fine, it is still standing. The best example of it is the
FBI's decision last week that they are going to have a review
of thousands and thousands of cases where their analysts wrote
reports and testified in many, many instances in excess of the
limits of science.
Now, those cases have not been tested yet. We may find
dozens and dozens more wrongful convictions. We do not know.
And we do not know how many people have been wrongfully
convicted where there is no biological evidence to exonerate
them. So it is actually quite confusing for someone to suggest
a certain numerator and a certain denominator. It has nothing
to do with reality.
Senator Franken. Sure. In your written testimony, you
noted, ``There is a global market for technologies with an
application to public safety, and the United States has the
capacity to capture that market with a national commitment
today.''
This is an interesting point, and we know that investments
in forensic science will benefit the criminal justice system,
but can you talk a bit more about the potential collateral
benefits of----
Mr. Neufeld. Sure. The best example currently is in the DNA
area where you do have a company and other companies that make
the software and the hardware that have made millions, indeed
billions of dollars by being able to sell that product not only
here at home but abroad. There is no question that the United
States has the right and the ability to be the leader in
developing new technologies for fighting crime, for fighting
terrorism, and we can market those products around the world.
I would also say--and it is a different kind of product,
but that product is the rule of law. And to the extent that we
can become first and foremost in the world in developing more
rigorous scientific techniques for solving crime, wouldn't that
be a marvelous example to send that all over the world so other
countries will not decide cases based on politics or philosophy
or associations but, rather, on hard scientific evidence?
Senator Franken. Thank you.
I see my time is up, but may I continue, Mr. Chairman?
Chairman Leahy. Go ahead.
Senator Franken. OK. Thank you.
Mr. Burns, in your testimony, you noted that there may be a
perception out there that the law enforcement community is
resistant to forensic science reform but that, in fact, nothing
could be further from the truth. I am glad to hear you set the
record straight on that point because it seems to me that the
law enforcement community would actually benefit from
improvements in forensic science, improvements in funding and
research and training and certification standards.
Can you talk a little bit about why availability of
accurate and validated forensic science is so important to
prosecutors?
Mr. Burns. Well, first of all, thank you for the question,
and I guess the key for prosecutors and law enforcement is that
we want to be included. We were not included in the National
Academy of Science report.
We also want to make it clear, because we get beat up every
day, Senator, over the exceptions, and if there are 220 million
cases handled since 1989, 220 million--and that is a minimum--
of serious offenses, the only time prosecutors come to the
media is, you know, when the plane crashes, not when they land
safely. And the Innocence Project has done a great job at
finding horrific cases, ones that keep prosecutors up all night
long, and taking them around the country and telling those
stories, and then there is some perception that the entire
system--forensic, prosecutors, ethical--is broken, and that is,
in our humble opinion, simply not the truth. Nobody talks about
homicides are down 50 percent in this country over the last 30
years--50 percent. Burglaries, rapes, robberies are down 30 and
40 percent. This is a much safer country, and a lot of that is
because not only forensics but because of the defense bar,
prosecutors, and a heightened sophistication of our judicial
system.
So I just want to make the point that the system is not
broken and the sky is not falling.
Senator Franken. Well, thank you, and I do have a couple of
other questions, but I will just submit them for the record, if
that is OK.
Chairman Leahy. Thank you very much.
Senator Franken. Thank you, Mr. Chairman, and thank you for
this hearing.
[The questions of Senator Franken appear under questions
and answers.]
Chairman Leahy. With that, we will stand in recess, and I
thank all of you for coming here, and I appreciate also the
willingness to work with us. We will get a piece of
legislation, I think, that we can all agree on. But more
importantly than just having a piece of legislation, we will
have a better system as a result.
So thank you all very much. We stand in recess.
[Whereupon, at 11:21 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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