[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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75-711 PDF                       WASHINGTON : 2012 

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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

                              ----------                              

                    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

                              ----------                              


                        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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